PLJ 1999 Judgments

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1 Present: muhammad naseem chaudhri, J. Mst. BALQEES-Petitioner versus STATE-Respondent Cr. Misc. No. 598-B of 1998, heard on 29.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(l)(i)~Murder case-Female accused-Further inquiry-Case of- Bail rejected by ASJ on ground that Mst. B. was involved in a case falling under prohibitory clause-Challenge to-It would be instructive to express that a bail application has to be disposed of within framework of S. 497 of Code of Criminal Procedure-There is nothing on record as to how he ignored proviso (1) to sub-section (1) of Section 497 of Code of Criminal Procedure according to which a female is entitled to discretion of Court ^-- for purpose of her admission to bail-Working of learned Additional Sessions Judge ignoring rulings of Superior Courts whereby fe ale accused has been made entitled to be admitted to bail under Section 497 of Code of Criminal Procedure cannot be approved especially when it is a case of circumstantial evidence with respect to an unwitnessed occurrence of murder-Bail granted. [P. 5] A Mrs. Nahida Mahbcob Elahi, Advocate for Petitioner. SyedMazaahar Naqvi, Advocate for State. Date of hearing: 29.7.1998. judgment On the night falling between 24/25.1.1996 Muhammad Ansar son of " Kala Khan husband of Mst. Bilqees petitioner-accused was found dead in the room of his house No. 401/PD Mohallah Nazim Abad Pandora, Rawalpindi. Mst. Bilqees petitioner-accused intimated her father Bashir Ahmad that at 12.00 at mid-night the call bell was heard. Muhammad Ansar opened the door who returned and asked her to go to the room of the kids to have the f slumber and that he would sleep with his friend who had arrived. She went to the room of the children. In the morning she saw the dead-body of her husband Muhammad Ansar lying in a pool of blood whose throat was cut. Crime case No. 19 dated 25.1.1996 was registered at Police Station New Town Rawalpindi under Section 302 Pakistan Penal Code at the instance of Bashir Ahmad. 2. The law was set in motion. The police officer reached the place of occurrence who took into possession the dead body of Muhammad Ansar. He prepared the inquest report and the injury statement and sent the dead body for autopsy. There was one lacerated wound of entry of firearm and one incised wound on front of neck. The matter remained untraced even though Mst. Bilqees was joined in the investigation at the initial stage. On 13.10.1997 Mst. Bilqees is said to have made the extra judicial confession before Ali Zaman 'Behnoi' of Muhammad Ansar deceased and one Muzaffar Khan wherein she implicated herself as the assailant alongwith one Sudheer who has also been treated as the accused. She was arrested on ^ 14.10.1997. Her physical remand was obtained and on 17.10.1997 she is said to have led to the recovery of blood-stained 'Chhurri' wrapped in a newspaper and lying in the iron box in the room of her house. Mst. Mahmooda Begum, a sister of Muhammad Ansar, also made her statement before the police on 9.10.1997 to the effect that on 26.1.1996 she attended the telephonic call of Sudheer before whom she posed to be Mst. Bilqees who asked about the afterwards impressions in the family and that she rebuked Sudheer there and then. 4. Holding that Mst. Bilqees and Sudheer are the assailants, the police has proceeded against them in the matter who have been treated as the accused. 5. Mst. Bilqees was arrested on 14.10.1997 who at present is in the judicial lock-up. She made her application before the learned Court of Session at Rawalpindi for her admission to bail which has been dismissed with the reasoning that she is involved in a case falling under the prohibitoiy clause and that the evidence collected by the prosecution is enough to prima facie connect her with the occurrence. In this regard the statement of Mst. Mahmooda Begum with respect to the telephonic call, extra-judicial confession and the recovery of 'Chhurri' were referred to Mst. Bilqees has filed this petition before this Court to try her luck to be admitted to bail. 6. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. The contentions of the learned counsel for the petitioner are that the circumstantial evidence collected by the Police during the month of October, 1997 with respect to the occurrence taking place during the month of January, 1996 is enough to make out that the involvement of this petitioner _js a question of further inquiiy who is a female and is also entitled to the legal benefit contained under proviso (1) to sub-section (1) of Section 497 of the Code of Criminal Procedure. It is added that the recoveiy of the blood­ stained 'Chhurri' from the house of Mst. Bilqees petitioner at her instance on 17.10.1997, when the tracker dogs were also employed, is to be viewed with caution and that the statement of Mst. Mahmooda Begum recorded on 9.10.1997 about the telephonic call received on 26.1.1996 is liable to be brushed aside due to the aforesaid lapse of sufficient period. The learned counsel for the petitioner also expressed with respect to the extra judicial confession in the same terms. On the contrary learned Counsel for the State laid the emphasis that the evidence collected during the investigation by the police is enough to connect Mst. Bilqees with the present occurrence who is prima-facie liable under Section 302/34, Pakistan Penal Code and has rightly been denied the concession of bail. He referred to sub-Article (2) of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 and canvassed that on the basis of sex Mst. Bilqees is not entitled to be admitted to bail as equitable treatment has to be afforded to the males and females in, the country. 7. At the very outset I would express that Article 25(2) of the Constitution, 1973 is not attracted in view of Article 4(1) of the Constitution, 1973 which provides that "to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen where ever he may be and of every other person for the time being within Pakistan". Thus in the field of penal law the aforesaid reasoning adopted by the learned State Counsel cannot be sustained. 8. With respect to the merits of this bail application it can safely be held that the reasoning adopted by the learned counsel for Mst. Bilqees petitioner-accused has to prevail. The occurrence took place on the night falling between 24/25.1.1996. It is better to dispose of the matter in sequence. Mst. Mahmooda Begum stated before the police on 9.10.1997 that on 26.1.1996 she received a telephonic call from one Sudheer who asked about the afterwards effects of the occurrence. However, she did not intimate any body including the police. It is the admitted position that after the occurrence the police reached at the spot and made the spot inspection. The aforesaid type of silence on the part of Mst. Mahmooda Begum has failed to touch my sense of appreciation even at this initial stage. The extra judicial confession is said to have been made before Ali Zaman 'Behnoi' bf Muhammad Ansar deceased and one Muzaffar Khan which can prove to be a corroborative piece of evidence and cannot independently form the basis of the conviction of the petitioner-accused. The recovery of blood-stained 'Chhuri' effected on 17.10.1997 at the instance of Mst. Bilqees petitioneraccused from the room of the house while she was on physical remand shall have also to be viewed with caution on two grounds, viz. first that the tracker dogs were employed who made the effort to dig out the truth and secondly that with the passage of the considerable time was it possible that the 'Chhuri' was stained with blood when the same was wrapped in a newspaper and was lying in an iron box. 9. The contention of the learned counsel for the petitioner is that with the lapse of the time the injury of death of Muhammad Ansar has healed but the dispute about inheritance of the deceased is still in the field and my view is that this aspect of the matter shall also steal the eminence for the purpose of the use of the discretion in favour of Mst. Bilqees. The cumulative effect of the aforesaid state of affairs, dissection of the matter and discussion is that the involvement of Mst. Bilqees about the murder of her husband Muhammad Ansar is a question of further inquiry. 10. At this stage I have to express my surprise on the perfunctory working of the learned Additional Sessions Judge who dismissed the bail application of Mst. Bilqees on the ground that Mst. Bilqees is involved in a case falling under the prohibitory clause and thus is not entitled to be admitted to bail. It would be instructive to express that a bail application has to be disposed of within the framework of Section 497 of the Code of Criminal Procedure. There is nothing on record as to how he ignored the proviso (1) to sub-section (1) of Section 497 of the Code of Criminal Procedure according to which a female is entitled to the discretion of the Court for the purpose of her admission to bail. The working of the learned Additio al Sessions Judge ignoring the rulings of the Superior Courts whereby the female accused has been made entitled to be admitted to bail under Section 497 of the Code of Criminal Procedure cannot be approved especially when it is a case of circumstantial evidence with respect to an unwitnessed occurrence of the murder of Muhammad Ansar deceased and it is hoped that in future such a lapse shall not be shown. I am tempted to express that the law has to take its course and the Courts have to keep in mind the shape of scale of justice. Consequently I accept this application and admit Mst. Bilqees petitioner-accused to bail in the sum of Rs. 25.000/- (rupees twenty five thousand only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Rawalpindi with the direction to appear before the learned trial Court on every date of hearing failing which she shall be liable to face the legal consequences. 11. The police has not submitted the challan and the Police Officer has been directed to submit the challan within a period of 15 days in the "Court of the learned Ilaqa Magistrate who obviously shall proceed further under Section 190(3) of the Code of Criminal Procedure. (K.A.B.) Petition allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 5 Present: muhammad naseem chaudhri, J. SARDAR KHAN-Petitioner versus STATE-Respondent Cr. Misc. No. 589 of 1998, heard on 28.7.1998. Criminal Procedure Code, 1898 (V of 1898)— —S\ 497~Offence u/S. 13-A of Arms Ordinance, 1965-Bail-Grant offor~Recovery memo was attested by Police Constable-Further inquiry-case of—There was no justification to dismiss bail plea of petitioner-accused-inquiry report prepared by D.S.P. is enough to makg, out that ASI/complainant transgressed his authority and that involvement of petitioner-accused shall have to be viewed with caution- Place of occurrence is a habited place where presence of general public even at 10.30 p.m. in April is expected~No person from public was joined in recovery proceedings and rather no effort in matter was made- Recovery memo was attested by two police constables and in view of aforesaid material it can safely be expressed that involvement of petitioner is a question of further inquiry-Bail granted. [P. 7] A Ch. Afrasiab Khan, Advocate for Petitioner. Malik Muhammad Kabir Additional Advocate General and Raja Saeed Akram, A.A.G. for State. Date of hearing: 28.7.1998. judgment While on gasht of the area alongwith Azhar Hussain, Muhammad Safdar and Altaf Hussain Constables, Muhammad Safdar ASI C.I.A. Chakwal surprised Sardar Khan petitioner-accused on 2.4.1998 at 9.10 P.M. in Choa Chowk Chakwal and over-powered him. He took into possession one kalashnikov alongwith five live cartridges for keeping of which he could not produce the licence. He took into possession the aforesaid illicit arms vide memo attested by two constables. He sent the complaint to Police Station Saddar Chakwal where FIR No. 87 dated 2.4.1998 was registered under Section 13-A of the Arms Ordinance, 1965. He prepared the site plan and recorded the statements of the witnesses. Sardar Khan was arrested there and then on 2.4.1998 who at present is in the judicial lock-up. His bail plea has been rejficted by the learned Additional Sessions Judge, Chakwal who has filed this petition before this Court for his admission to bail. 2. It is proper to express that during the proceedings an application was submitted against Muhammad Safdar ASI, C.I.A. Chakwal by Haji Wazir Khan father of Sardar Khan petitioner-accused to the Chief Minister Punjab, Lahore with the allegation that his son Sardar Khan was involved in a false case and that Muhammad Safdar ASI, C.I.A. Chakwal had forced him and received an amount of Rs. 45,000/- as illegal gratification. This application was sent to the Superintendent of Police, Chakwal who deputed Mr. Abdul Jalil D.S.P. Choa Syedan Shah to conduct the inquiry wherein it was held that the allegations against Muhammad Safdar ASI were correct who had received the illegal gratification. A copy of the inquiry report has been submitted by Mr. Abdul Jalil D.S.P. Choa Syedan Shah who was called for this purpose. In this inquiry report it is contained that Muhammad Safdar ASI is involved in case FIR No. 107 dated 18.5.1998 registered at Police Station City Chakwal under Sections 342/302 Pakistan Penal Code and it was intimated on the query of this Court that Muhammad Safdar ASI was in judicial lock up. 3. I have heard the learned counsel for the petitioner as well as the learned State counsel and the learned Additional Advocate General. In my view there was no justification to dismiss the bail plea of Sardar Khan petitioner-accused. The inquiry report prepared by Mr. Abdul Jalil D.S.P. is enough to make out that Muhammad Safdar ASI/complainant of this case transgressed his authority and that the involvement of Sardar Khan petitioner-accused shall have to be viewed with caution. The fact of the matter is that Chowk Choa Chakwal is a habited place where the presence of general public even at 10.30 P.M. on 3.4.1998 is expected. No person from the public was joined in the recovery proceedings and rather no effort in the matter was made. The recovery memo was attested by two police constables and in view of the aforesaid material it can safely be expressed that the involvement of Sardar Khan petitioner is a question of further inquiry. hen questioned by this Court it was intimated that no case of the instant nature was earlier registered or is pending against Sardar Khan petitioneraccused. Consequently I hold that Sardar Khan petitioner is entitled to be admitted to bail. 4. During the proceedings I examined the Daily Diary brought by Iftikhar Hussain Inspector/Incharge C.I.A. Chakwal being maintained in his office and was surprised to see that one entry with soft pencil prepared with respect to the registration of FIR No. 89 dated 3.4.1998 against Taj Muhammad son of Haji Wazir Khan, a real brother of Sardar Khan petitioner of this application ot registered by this very Muhammad Safdar ASI was erased. The Daily Diary is to be prepared with hard pencil. Further every entry is shown to have been made by the Moharrir C.I.A. Staff Chakwal and not by the concerned Police Officer(s). It isprima facie iolative of Section 44 of the Police Act, 1861 when interpreted in the strict sense. The maintenance of the Daily Diary in the aforesaid manner has ade me to hold that the same is suspicious in nature and the entry was made to defend the working of Muhammad Safdar ASI. 5. During the hearing of the arguments on the Assistant Director, Anti-Corruption Rawalpindi. However, Ch. Riyasat All, Additional irector Anti-Corruption, Rawalpindi was courteous to arrive immediately. Ke was asked to register the case at the instance of Wazir Khan father of Sardar Khan petitioner against Muhammad Safdar ASI for obtaining the illegal gratification. Both the said Wazir Khan and Ch. Riaz Hussain witnesses of the receipt of illegal gratification are present who shall accompany the Additional Director Anti-Corruption, awalpindi for this purpose. Muhammad Sardar ASI shall be arrested by the Anti-Corruption Department in this case which shall be further processed with and concluded in accordance with law. During the proceedings Mr. Abdul Jalil D.S.P. made the futile attempt to defend Muhammad Safdar ASI, C.I.A. Chakwal about his involvement in the murder case registered at FIR No. 107 dated 18.5.1998 at Police Station City Chakwal under Sections 342/302 Pakistan Penal Code. He expressed that one old person was taken to CIA Staff, Chakwal where he fell and died of heart attack. He was told that he had been summoned to produce the inquiry report, a photo stat of which was handed over by him to the Reader of this Court and has been added with this file. He expressed that even the Medical Officer has exonerated Muhammad Safdar ASI. This type of unholy defence of Muhammad Safdar ASI, C.I.A. Staff Chakwal by Mr. Abdul Jalil cannot be appreciated. In the circumstances I would pass the order that in case the discharge report is submitted before the Area Magistrate by the SHO Police Station City Chakwal in this murder case, a copy of the order to be passed either way shall be sent by the Area Magistrate through the learned Sessions Judge, Chakwal to the Registrar of this Court at Lahore which shall be placed before me for my perusal. 6. A copy of this judgment shall be sent to the learned Sessions Judge, Chakwal as well as the Additional Director, Anti- orruption, Rawalpindi . 7. For what has been said above, I accept this petition and admit Sardar Khan petitioner-accused to bail in the sum of Rs. 20,000/- Rupees Twenty Thousand only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Chakwal with the direction to appear before the learned trial Court on every date of hearing failing which his bail may be cancelled by the learned trial Court. (K.A.B.) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 12 Present: muhammad naseem chaudhri, J. MUHAMMAD IRFAN-Petitioner versus AHMED ALI S.I., C.I.A. FAISALABAD-Respondent Cr. Misc. No. 1225-H of 1998, disposed of on 18.9.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 491-Habeas Corpus petition-Arrest and detention by Police without legal justification-Contention of-Free hand cannot be granted to police who arrested both R and M in a criminal case under Section 382 Pakistan Penal Code without any legal and factual justification-If aforesaid type of working of Police was affirmed by grant of weight, then nobody would be able to save his skin-High Court declared both R and M as detenu who were set at liberty and free to leave to place(s) of their choice. [P- 14] A Roshan Ara, Advocate for Petitioner. Syed Zulfiqar All Bokhari, A.A.G. for State. Date of hearing: 18.9.1998. judgment This is a petition under Section 491 of the Code of Criminal Procedure for the recovery of Rashad son of Muhammad Rashid and Muhammad Rashid son of Siraj Din from the illegal and improper custody of Ahmad Ali S.I., C.I.A. Sargodha Road , Faisalabad . The order for appointment of a bailiff to do the needful was passed on 17.9.1998. 2. Muhammad Saleem bailiff of this Court reached C.I.A. Sargodha Road, Faisalabad on 17.9.1998 at 3.40 P.M. who entered his arrival in the Daily Diary which he took into his possession. Muhammad Rashad was found confined in the lock up while Muhammad Rashid was found sitting on a cot in a room. Ahmad Ali Inspector informed the bailiff that Muhammad Rashad son of Muhammad Rashid was confined in the judicial lock up in case FIR No. 381 registered on 26.6.1998 under Articles 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in Police Station Chak Jhumra; case FIR No. 519 registered on 6.8.1998 under Section 13 of the Arms Ordinance, 1965 in Police Station Chak Jhumra; Crime Case No. 242 registered on 30.4.1998 under Sections 380/411 Pakistan Penal Code in Police Station Chak Jhumra and FIR No. 382 dated 26.6.1998 registered under Sections 324, 337-F(iii) 337-F(iv)/34 Pakistan Penal Code in Police Station Chak Jhumra. 3. Ahmad Ali Sub-Inspector informed the bailiff that he had brought Rashad son of Muhammad Rashid from the judicial ock up on 14.9.1998 with the permission of the Court to join him in the investigation of FIR No. 169 registered on 1.3.1997 in Police Station Sargodha Road , Faisalabad and that he obtained physical remand for four days who was detained in the lock up under his control. He also informed the bailiff that Muhammad Rashid was arrested in the aforesaid case FIR No. 169 of 1997 on 16.9.1998 whose arrest was shown in the Daily Diary. The bailiff mentioned in his report that he checked FIR No. 169 dated 1.3.1997 registered under Section 382 Pakistan Penal Code in Police Station Sargodha Road , Faisalabad wherein both Muhammad Rashad and his father Muhammad Rashid (both alleged detenus) were not nominated as the accused. 4. I have heard the learned counsel for the petitioner as well as the learned A.A.G. and gone through the record of Crime Case No. 169 registered on 1.3.1997 under Section 382 Pakistan Penal Code in Police Station Sargodha Road , Faisalabad . Ahmad Ali Sub-Inspector intimated this ourt that on 9.9.1998 Shahbaz and Liaqat Ali appeared before him as the prosecution witnesses in the said case and stated that both Rashad and Rashid alleged detenus had made the extra-judicial confession before them and thereafter arrested them under Section 54 of the Code of Criminal Procedure. On the query made by this Court he informed that Muhammad Rashid alleged detenu was produced before him by one Mansoor Iqbal. 5. The main contention of the learned counsel for the petitioner is that on the basis of extra-judicial confession about which the tatements of Shahbaz and Liaqat P.Ws were recorded on 9.9.1998 with respect to aforesaid FIR dated 1.3.1997 both Rashad and Rashid alleged detenus could not be considered as the accused of the case and that it was simply a case of transgression of authority on the part of the Police Officer. Learned A.A.G. supported the Sub-Inspector and took up the stand that both Rashad and Rashid alleged detenus are the accused of aforesaid case FIR No. 169 registered on 1.3.1997 at Police Station Sargodha Road, Faisalabad under Section 382 Pakistan Penal Code and that they are not the detenus. On the query made by this Court the Sub-Inspector could not produce and rder from the superior Police Officer to justify that he could investigate case FIR No. 169 registered on 1.3.1997. Keeping in view this aspect of the matter as 6. well as the facts that the statements with respect to extra-judicial confession of Rashad and Rashid alleged detenus were made before Shahbaz and Liaqat P.Ws on 9.9.1998 about FIR No. 169 dated 1.3.1997 who did not produce Rashid alleged detenu before the police and he was produced before the Police by one Mansoor Iqbal and thereafter both of them were arrested under Section 54 of the Criminal Procedure Code; it can safe be held that Muhammad Rashad and Muhammad Rashid were involved afresh in the matter with mala fides. At this stage I am tempted to record that the learned counsel for the petitioner as well as the alleged detenus took up the stand that Muhammad Rashid alleged detenu was the accused of case FIR No. 381 registered on 26.6.1998 under Articles 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Chak Jhumra who was admitted to bail and to put him again in the judicial lock up the design was coined by the CIA Staff who was confined in the police lock up. In the circumstances I hold that the aforesaid free hand cannot be granted to Ahmad Ali Sub-Inspector who arrested both Rashad and his father Rashid in Crime Case No. 169 registered on 1.3.1997 at Police Station Sargodha Road, Faisalabad under Section 382 Pakistan Penal Code without any legal and factual justification. If the aforesaid type of working of the Police Officer is affirmed by the grant of weight, then nobody would be able to save his skin. 6. For what has been said above, I declare both Muhammad Rashad and Muhammad Rashid as the detenus who are set at liberty and are free to leave to the place (s) of their choice. 7. At this stage I have to express that Muhammad Rashid detenu can leave because his person was not obtained from the judicial ock up. However, Muhammad Rashad detenu is the accused of the aforesaid four criminal cases who was brought by Ahmad Ali Sub-Inspector from judicial lock up Faisalabad with the permission of the competent court. Ahmad Ali Sub-Inspector is directed to remit Muhammad Rashad today in the same judicial lock up from which he had brought him. (K.A.B.) Petition disposed of.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 14 Present: MUHAMMAD NASEEM CHAUDHRI, J. ABDUL MAJID-Petitioner versus S.H.O.-Respondent Crl. Misc. No. 627-H of 1998, disposed of on 26.8.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 491 read with S. 54 PPC~Habeas Corpus petition-Detenu was not mentioned in FIR-His arrest had been shown under Section 54 of Code of Criminal Procedure-High Court's view is that to save his skin SHO has falsely prepared record in matter which has become a usual practice with police regardless of fact that they claim to be Muhafiz, but in fact are a source of inconvenience to general public-In this view of matter High Court declared as a detenu-High Court set him at liberty who can go to a place of his own choice-S.P. suspended concerned S.H.O.-Fine also imposed on S.H.O. etc. [Pp. 15 & 16] A Sardar Abid Hussain Jatoi, Advocate for Petitioner. Mr. fahir Haider Wasti, A.A.G. for State. Date of hearing: 20.8.1998. judgment In terms of order dated 19.8.1998 Bashir Ahmad injured alleged detenu was examined by the Medical Board which found six injuries on his person. Bashir Ahmad was mercilessly tortured at his buttocks. 2. This is a petition under Section 491 of the Code of Criminal Procedure for the recovery of Bashir Ahmad son of Muhammad Bakhsh father of the petitioner form the illegal and improper custody of the SHO Police Station Khangarh, District Muzaffargarh. 3. Nazir Ahmad Bailiff reached Police Station Khangarh at 5.15 p.m. on 18.8.1998. The petitioner was shown to have been rrested on 18.8.1998 a 7.15 a.m. in the Daily Diary under Section 54 of the Code of Criminal Procedure in case FIR No. 217 of 1998 registered under Sections 457/380 Pakistan Penal Code. Bashir Ahmad alleged detenu intimated the Bailiff that he was arrested three days before. 4. In terms of order dated 19.8.1998 Dr. Jamil Ahmad Superintendent of Police, Muzaffargarh has appeared today. He has examined the buttocks of Bashir Ahmad and has expressed that he has mercilessly been tortured. Abdus Sattar SI/SHO tried to defraud this Court by submitting a photostat of the entries in the case diary to the effect that the injuries were caused due to fall of Bashir Ahmad as he attempted to escape and was followed. The Superintendent of Police has expressed that the said reason mentioned by his subordinate is simply false. 5. In view of the fact that the SHO has falsely projected the dispute before this Court it can safely be held that the version of Bashir hmad alleged detenu is correct. He is not mentioned in the FIR. His arrest has been shown under Section 54 of the Code of Criminal Procedure. My view is that to save his skin the SHO has falsely prepared the record in the matter which has become a usual practice with the police regardless of the fact that they claim to be Muhafiz, but in fact are a source of inconvenience to the general public. In this view of the matter I declare Bashir Ahmad as a detenu who is not involved as an accused in the aforesaid criminal case. I set him at liberty who can go to a place of his own choice. 6. It is a case of merciless beating of Bashir Ahmad detenu released today. Bashir Ahmad detenu intimated that Waheed Iqbal, uhammad Saif Ullah and Waj Pervez Constables also practically effected torture upon him by giving him shoe-beating. The aforesaid SI and the three Constables verbally expressed their regrets and apologized which has made out that all of them have transgressed their authority. 7. At my query Dr. Jamil Ahmad Superintendent of Police has assured this Court that Abdus Sattar SI/SHO Police Station Khangarh, District Muzaffargarh shall be immediately suspended by him who shall be sent to the Police Lines, that against him as well as heed Iqbal, Muhammad Saif Ullah and Wajid Pervez Police Constables the departmental inquiry shall be conducted separately, that SI and the three Constables shall not wear the uniform during the period of their suspension and the conclusion of the departmental inquiry and that the investigation of any case shall not be handed over to Abdus Sattar SI placed under suspension by him. Dr. Jamil Ahmad Superintendent of Police, Muzaffargarh is a responsible officer who shall abide by the undertaking given by him before this Court and shall immediately intimate this Court the result of the inquiry conducted against aforesaid SI and three Constables. Dr. Jamil Ahmad Superintendent of Police has the qualification of MBS. After examining Bashir Ahmad released detenu he has expressed that an amount of Rs. 3.000/- to Rs. 4,000/- shall have to be spent by the injured for his treatment. I, therefore, direct Abdus Sattar SI to pay an amount of Rs. 3,000/- (rupees three thousand only) to Bashir Ahmad. I also direct each of Waheed Iqbal, Muhammad Saif Ullah and Wahid Pervez Constables to pay an amount of Rs. 500/- to Bashir Ahmad. They shall bring the aforesaid amount on 26.8.1998 to be paid to Bashir Ahmad released detenu/injured. 8. This matter shall be listed for 26.8.1998. Note: 10. A copy of this judgment shall be immediately sent to the Superintendent of Police, Muzaffargarh. In terms of order dated 20.8.1998 an amount of Rs. 3,000/- has been paid by Abdul Sattar S.I. and Rs. 500/- has been paid by each of the aforesaid Constables. The order stands executed.2. This petition stands disposed of . ( K.A.B.) Petition disposed of.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 17 (DB) Present: muhammad naseem chaudhry and M. javed buttar, JJ. Hqji ABDUL AZIZ-Appellant versus , STATE-Respondent Crl. Appeal No. 937 of 1996, accepted on 20.1.1998. Arms Ordinance, 1965 (W.P. Ord. XX of 1965)-- —-S 13--Kalashankov-Recovery of-Conviction and Sentence by Special _^ Court, Suppression of Terrorist Activities-Challenge to—Recovery witness was an accused person-Contention of-Trial Court's judgment could not be sustained for following reasons: (i) Alleged recovery is held to be false and fictitious on simple ground that PW-4 had admitted in his cross-examination that a .^ _ case under Section 364 PPC and under Articles 10/18 of """ Offence of Zina (Enforcement of Hadood) Ordinance, 1979 was registered against him at the same police station where present appellants case was registered which means that he was under nfluence and pressure of police-Even otherwise an accused of a case, in normal routine, is not associated as a recovery witness in such like recovery proceedings by police-Further in his cross-examination PW-4 has specifically stated that he signed recovery in police station and that his signatures were obtained by ASI-It can safely be deduced that recovery memo was not prepared at alleged place of recovery-This aspect of matter has stolen eminence to go to very root of alleged recovery proceedings-It is simply surprising that appellant has been convicted on basis of aforesaid material. (ii) Statements of Inspector DW-2 and S.P. DW-1, who also investigated case at directions of D.T G. cannot be ignored who had declared petitioner as innocent and has recommended for cancellation of FIR as well as discharge of appellant-Afore-said aspect of matter has also made out false-hood of prosecution case. (iii) High Court's view is that in ordinary course of working an Inspector does not go in area for purpose of service of proclaimed offenders and at best upto rank of ASI this type of duty is performed-It shows that Inspector/SHO (PW-3) has proceeded in matter with ma/a/Zcfes--Appeal accepted. [Pp. 19 & 20] A Mr. Khuda Dad Khan Burki and Af. Zubair Saeed Khan, Advocates for Appellant. Mr. Nizam ud Din Arif, Advocate for State. Date of hearing: 20.1.1998. judgment Muhammad Naseem Chaudhri, J.,--This appeal is directed against the judgment dated 16.10.1996 passed by the Judge, Special Court, Suppression of Terrorist Activities, Faisalabad-Sargodha Divisions at Faisalabad whereby Abdul Aziz alias Banarsi appellant son of Pir Hassan Caste Khattak resident of Village Khattak Abad, Tehsil and District Mianwali was convicted and sentenced to R.I. for seven years and to pay a fine of Rs. 50,000/- and in default of payment of fine to further undergo R.I. for six months u/S 13 of the Arms Ordinance, 1965. 2. The facts giving rise to this appeal are that on 25.12.1995 Dil Muhammad Inspector/SHO Police Station Daudkhel (PW-3) is said to be present in the area in connection with the service of summonses when he received a secret information that a person was present in his area while armed with kalashnikov. He organised the raiding party and went to that place where that person was present at that time. The police party as well as Muhammad Jan (PW-4), from the public, accompanied him. He surprised that person (appellant) and apprehended him. The kalashnikov PI alongwith loaded magazine P2 from which 16 live cartridges P3/1-16 were recovered after unloading, were taken into possession vide memo. Ex.PB attested by Muhammad Jan (PW-4) and Tariq Javed ASI PW (not produced). The appellant could not produce the licence to keep the fire arms with him. The same were sealed in a parcel. S.H.O. (PW-3) drafted complaint Ex.PA and sent the same to Moharrir at Police station Daudkhel where formal FIR Ex. PA/1 was prepared by Darvesh Khan Moharrir Head Constable PW-1) containing his notes Ex.PA/2. The site plan Ex. PC of the place of recovery was also prepared by the S.H.O. The sealed parcel was handed over to Darvesh Khan MHC (PW-1) who delivered the same to Zarif Khan Constable (PW-2) which he delivered in the office of Forensic Science Laboratory, Lahore from where report. Ex. PD was received to the effect that the kalashnikov recovered from the appellant was an automatic weapon. After completing the investigation the challan was submitted. 3. The appellant was charged under Section 13 of the Arms Ordinance, 1965 who pleaded not guilty thereto. At the trial the afore-said PWs stood in the witness box and supported the prosecution case. When examined under Section 342 of the Code of Criminal Procedure the appellant claimed to be innocent and termed the afore-said recovery of afore-said illicit arms as false. He did not claim the ownership of illicit arms. He adduced in his defence documents Ex. DA to DD/1 as well as Mark 1 to Mark 5. Mumtaz Ahmad Inspector (DW-2) and Mr. Abdullah Khalid S.P. Range Crimes, Sargodha (DW-1) were produced in defence by the ppellant who aft investigation had declared the appellant as innocent and recommended for the discharge of the appellant after cancellation of the case. 4. However, after giving weight to the statements of S.H.O. PW-3 and the recovery witness Jan Muhammad PW-4, the learned trial ourt onvicted the appellant as narrated above, who has preferred this appeal which has been resisted by the State. — 5. We have heard the learned counsel for the appellant as well as the learned State counsel and gone through the record before us. 6. There is no need to reproduced the arguments addressed by them We hold the view that the impugned judgment is imply a laboured judgment and the same cannot be sustained for our following reasons: (i) The alleged recovery is held to be false and fictitious on the simple ground that Muhammad Jan PW-4 has admitted in his cross-examination that a case under Section 364 PPC and under Articles 10/18 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 was registered against him at police station Daudkhel which means that he was under the influence and pressure of the police i.e. the S.H.O. Police Station Daudkhel (PW-3). Even otherwise an accused of a case, in normal routine, is not associated as a recovery witness in such like recovery proceedings by the police. Further in his crossexamination Muhammad Jan PW-4 has specifically stated that he signed the recovery memo Ex.PB in the police station and that his signatures were obtained by Tariq Javed ASI. It can safely be deduced that the recovery memo was not prepared at the alleged place of recovery. This aspect of the matter has stolen the eminence to go to the very root of the alleged recovery proceeding. It is simply surprising that the appellant has been convicted on the basis of the aforesaid material. (ii) The statements of Mumtaz Ahmad Inspector DW-2 and Mr. Khalid Abdullah S.P. DW-1, who also investigated the case at the directions of the D.I.G. Sargodha Range, Sargodha, cannot be ignored who had declared Abdul Aziz alias Banarsi as innocent and had recommended for the cancellation of the FIR as well as the discharge of the appellant. The afore-said aspect of the matter has also made out the false-hood of the prosecution case. (iii) Our view is that in the ordinary course of working an Inspector does not go in the area for the purpose of service of the proclaimed offenders and at the best upto the rank of ASI this type of duty is performed. It shows that the Inspector/SHO Police Station Daudkhel (PW-3) has proceeded in the matter with malafides. Mr. Kahlid Abdullah S.P. DW-1 had recommended for the initiation of departmental inquiry against Dil Muhammad Inspector/SHO Daudkhel (PW-3). 7. For what has been said above, we hold that the prosecution case is false and Abdul Aziz alias Banarsi appellant is innocent. We, therefore, accept this appeal, set aside the impugned judgment and acquit Abdul Aziz alias Banarsi appellant who shall be released forthwith, if not required to be detained in any other case. (K.A.B.) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 21 Present: sardar muhammad raza, J. SHAMRAIZ and another-Petitioners versus STATE etc.-Respondents Crl. Misc. No. 254/98, decided on 30.10.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Offence u/S. 337-(ij)/337-F(iv)/452/34 PPC--Bail-Grant of-- Prayer for--Offence against both victims do not fall under prohibitory clause of S. 497 Cr.P.C.-Contention of--No doubt that original punishment of offences is same as alleged by learned counsel for petitioners but regard being had to circumstances of case, court can award imprisonment as well which falls within prohibitory clause of Section 497 Cr.P.C-Accused-petitioner No. 2 while armed with a deadly weapon had entered house of Mst. Z when she had no protection of a male in house and therefore High Court declined to use discretion in his favour-So far as Petitioner No. 1 is concerned, he is charged for causing injury on head of Mst. R but there is no fracture of any bone, ather, according to doctor, no bone injury was seen~His case deserves leniency- Consequently application of Petitioner No. 2 is rejected while Petition No. 1 accused is directed to be released on bail. [P. 22] A, 6 & C Mr. Saeed Akhtar Khan, Advocate for Petitioner. Mr. Abdullah Khan Tanoli, Advocate for State. Mr. Khalid Rehman Qureshi, Advocate for Complainant. Date of hearing: 30.10.1998. judgment Shamrez and Gulzeb, sons of Banaras of village Siriya Haripur, having been charged under Sections 337-A(ii)/337-F(v)/452/34 PPC vide FIR # 223 dated 23.5.1998 of Police Station Kotnajibullah and having been refused bail by the forums below, are before this Court. 2. Mst. Zakia Bibi wife of Abdus Sattar is a complainant in this case. On 29.5.98 at 2100 hours while in injured condition and alongwith her injured daughter Mst. Rukhsana lodged a report at Police Station

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 23 [F.B.] Present: sardar jawaid nawaz khan, malik hamid saeed and mian muhammad ajmal, JJ. GUL NAWAZ-Appellant versus STATE-Respondent Criminal Appeal No. 88 of 1996 and Murder Reference No. 3 of 1996, dicided on 23.2.1998. (i) Criminal Procedure Code 1898, (V of 1898)-- —S. 154-Delayed FIR-Complainant, being young boy of 16/17 years of age, had no knowledge of intricacies involved in delay of lodging F.I.R.-After killing of his brother and uncle he rushed to his house to inform inmates about unfortunate occurrence-This conduct of complainant, in circumstances, is most natural—He must have consumed some time in the process-Thereafter, he went to road side to hire pick-up-His assertion that he could not find pickup also appears to be quite genuine- Young boy finding no vehicle for transporting dead bodies, of three persons to police station, returned to scene of occurrence—Admittedly, Investigating Officer was on routine 'Gasht' of Ilaqa on eventful day when at about 7.30 PM he was informed about occurrence-He, therefore, rushed to place of occurrence-On reaching there he met complainant who reported incident—Report was reduced into writing in form of "murasila" by Investigating Officer and then sent to police station where FIR was registered—Time consumed by complainant in informing inmates of his house, his efforts to fetch pickup for transportation of dead bodies and his return to scene of occurrence, all taken together, would indicate that time of occurrence as alleged cannot be doubted-This also explains as to why lodging of report was delayed—Held : Delay in lodging FIR has ben, therefore, completely and satisfactorily explained-Sardar Jawaid Nawaz Khan J. and Mian Muhammad Ajmal J. agreeing. [Pp. 33 & 34 ] A, B, C, D & E (ii) Criminal Procedure Code 1898, (V of 1898)-- —- S. 154-Delayed FIR-Prosecution did not explain that how time of about 4 hours was consumed between occurrence and registration of case that too at spot-Attempt made by complainant in his statement to meet delay was neither plausible nor convincing, particularly keeping in view conduct of complainant, who stated in his statement that after lodging report and making pointation of various points to Investigating Officer, left dead bodies of his real brothers and uncle at the spot and went to house-Such conduct is not expected from such near relation-Held : From unexplained abnormal delay, coupled with said conduct of complainant, it transpires that factually he has not seen occurrence and he is cooked/procured witness-Per Malik Hamid Saeed, J. Sardar Jawaid Nawaz Khan, J. and Mian Muhammad Ajmal, J. disagreeing. [P. 45] K (iii) Criminal Procedure Code 1898, (V of 1898)-- —S. 154-FIR-Delay in lodging of-Delay in lodging report has sufficiently been explained by complainant-After occurrence, complainant went to his house to inform his family members about unfortunate incident, but there was no male member present in house, so he went to road side to arrange pickup, but could not find any transport and thus disappointed came back to spot-In the meantime police arrived and he reported matter—There is nothing unnatural in conduct of complainant as any person in his place would have acted in same manner-Held : Delay, if any, has plausibly been explained by Complainant—Per Mian Muhammad Ajmal, agreeing with Sardar Jawaid Nawaz Khan, J. [P. 49] U (iv) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302~Murder~Offence of-Conviction on solitary statement of complainant-Credibility and character of such statement-Complainant had categorically stated that two accused had fired burst each at three deceased—His assertion was also supported fully by post mortem reports- Fact that three deceased were killed in Baitak of "A", dead bodies, recovery of 7-62 bore empty shells/spent bullets and recovery of blood stained earth from inside said Baitak, lend more than sufficient corroboration to version advanced by complainant-Version given by complainant was fully corroborated by other evidence such as site plan, recoveries, post mortem reports, time of occurrence etc. on almost all material points, coupled with observation of trial judge regarding his credibility and character—There hardly exists any reason to discard his testimony, just because he was closely related to two deceased—There is nothing on file to suggest, even remotely, that complainant had any motive or animosity to charge appellant/absconding accused falsely or substitute them for real killers-Held : Prosecution proved its case beyond shadow of doubt against appellant for having committed offence with which he was charged-Appeal dismissed--Per Sardar Jawaid Nawaz Khan J. and Mian Muhammad Ajmal J. agreeing. [P. 35, 36, 37, 40 & 41] F, G, HI & J 1968 SCMR 1168; 1969 SCMR 437. (v) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-Murder-Offence of-Conviction and sentence on solitary statement of complainant-Challenge to-Ocular evidence was furnished by close relative of deceased having enmity with accused could only be accepted if found materially corroborated by some very strong corroboration-Very recovery of five empties from spot was in total contradiction of narration made by complainant, who stated that each accused fired burst at deceased and recoveries from spot and for that matter injuries sustained by deceased were not in consonance with said version of complainant-It would not be safe to rely on testimony of complainant, who was highly interested and inimical towards accused-In order to cany conviction on capital charge, ocular account must come from unimpeachable source or must be supported by some strong circumstances-Eye-witness account furnished was lacking of said qualifications and was, therefore, liable to be discarded-Medical evidence was not in consistent with, ocular account of eye-witness of case and had witness been really present at spot, discrepancies and lapses with which his evidence was pregnant would not have occurred-Held : Prosecution miserably failed to bring home guilt of convict appellant beyond any shadow of doubt-Appeal accepted-Per : Malik Hamid Saeed, J, Sardar Jawaid Nawaz Khan, J. and Mian Muhammad Ajmal J. disagreeing. [P. 46 & 47] L, M, N, O, P & Q PLD 1973 SC 321; PLD 1990 Pesh. 10; PLD 1960 (W.P.) Pesh. 141; NLR 1993 Criminal 161 ; NLR 1993 Criminal 480; PLJ 1989 Criminal (Pesh.) 178 (DB) (vfl Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-Murder-Offence of-Conviction and sentence on solitary statement of complainant-Challenge to-Complainant re-iterated version given by him in FIR and also had given cogent reasons for his presence at spot, hence his evidence could not be brushed aside merely because of his relationship with deceased or enmity with accused party-Other contention that no independent person from locality appeared as witness, had also no force, as testimony of witness could not be discredited merely on ground that none from locality came forward to depose as witness-­ Eye witness furnished direct evidence of convincing nature which is confidence inspiring and was supported by medical evidence, motive, abscondance, recovery of 7.62 bore empties, state of injuries and weapons employed in crime—It was broad day occurrence and witness had no difficulty in identifying accused-Eye-witness was subjected to cross-examination and his evidence remained intact and could not be shaken by defence, hence conclusion drawn by trial court appears to be in line with evidence on record-Held: Prosecution proved its case against appellant- Appeal dismissed-Per Mian Muhammad Ajaml J. agreeing with Sardar Jawaid Nawaz Khan, J. [P. 48, 49 & 50] R, S, T, U & V 1976 SCMR 128; 1997 SCMR 659. Syed Zaffar Abbas Zaidi, Advocate for Appellant. Syed Hussain Sherazi, A.A.G. for the State. Mr. Shehar Yar Khan, Advocate for the Complainant. Date of hearing: 13.6.1997. judgment Jawaid Nawaz Khan Gandapur, J.--This appeal, filed by Gul Nawaz accused appellant, is directed against the order of Special Judge, Lakki (Mr. Abdur Rehman Khan, Sessions Judge), dated 7.9.1996 by which he convicted the appellant under Section 302/34, P.P.C., on two counts, and sentenced him to death (to be hanged by the neck till he be dead) for killing Asmatullah and Fida Muhammad. 2. Additionally, the trial Judge, convicted the appellant under Section 302/34, P.P.C. in respect of the murder of Amir Hatim and accordingly sentenced him to life imprisonment. The appellant was further directed to pay a fine of Rs. 50,000 or in default thereof to undergo S.I. for 5 years. It was also ordered that in case of the recovery of the fine, 2/3rd of the amount would be paid to the heirs of the deceased as compensation. 3. Murder Reference (No. 3 of 1996) has also been put up to us for confirmation. 4. Since the appeal and the Murder Reference are inter-linked, therefore, I propose to dispose of the two by this single judgment. 5. The facts of the case, stated briefly, are that Amir Hatim, in order to settle an old blood-feud between Asmatullah and Fida Muhammad, on the one hand and the appellant and his brother (absconding accused), on the other hand, •arranged for a meeting for reconciliation between them to be held at his Baithak situated in village Kheru Khel. Both the parties had to assemble there at about Digar Wella on 9-2-1991. On the eventful day, Asmatullah, alongwith his two nephews namely, Fida Muhammad and Taj Muhammad (P.W.8), went to the Baithak of Amir Hatim at the appointed time. They were all sitting inside the Baithak alongwith Amir Hatim and waiting for the accused party, when in the meantime Taj Muhammad Khan (P.W.8) aged about 16/17 years, was directed by his uncle and brother to leave them alone and to go and wait outside as they wanted to discuss something in private. Taj Muhammad Khan obliged and went out and sat there on a Charpai. 6. It was thereafter that Gul Nawaz (appellant) alongwith his brother Shamal Khan (absconding accused), duly armed with lethal weapons (klashnikov), reached there. The appellant and his brother, without wasting any time, and in furtherance of their common intention, while standing in the door of the Baithak' opened indiscriminate firing at Asmatullah Khan, Fida Muhammad and Amir Hatim. All the three persons were resultantly killed. The appellant allegedly killed Asmatullah and Fida Muhammad whereas Shamal Khan is alleged to have killed Amir Hatim, an innocent person. Both the accused, after accomplishing their task, decamped from the scene of occurrence. 7. Taj Muhammad Khan (P.W.8), after having seen his uncle and brother killed rushed to his house to inform his relatives about the nfortunate incident. Immediately after that he went to the main road to hire Datsun Pick-up in order to take the dead bodies of his brother, uncle and Amir Hatim to the police station/Hospital. However, he failed to find any and after waiting for some time, ran back to the Baithakwhere the dead bodies were lying. He was there when the police party, headed by Sub-Inspector, Naik Nawaz (P.W.9) Investigating Officer arrived. Taj Muhammad Khan narrated the occurrence to him. His report was reduced into writing by Sub-Inspector, Naik Nawaz Khan in the form f Murasila (Exh.P.A./l). The same was read over and explained to him who, after hearing and admitting the same to be correct, signed the same. The Murasila was despatched to Police Station Ghazni Khel where, on its basis, F.l.R. No. 17 of 1991 (Exh.P.A.) was duly registered by A.S.-I. Bakht Jamal Khan (P.W.2). 8. The Investigating Officer, prepared the injury sheets (Exh.P.W.1/3 to Exh.P.W.1/8) and inquest reports (Exh.P.W.1/11 and Exh.P.W.1/12) in respect of the three dead persons. The dead bodies were thereafter despatched to the mortuary under the escort of F.C. Abdur Rahim (P.W.5). The Investigating Officer also prepared the site-plan (Exh.P.B.) at the pointation of complainant Taj Muhammad Khan. During the course of spot inspection he recovered 5 empties of 7.62 bore and took the same into his possession vide recovery memo. Exh.P.W.3/2 and sealed the same into a parcel alongwith spent bullets recovered from inside wall of the Baithak. The Investigating Officer also took into his possession blood-stained earth, from three different places, where the dead bodies were lying. He sealed the same into a parcel vide recovery memo. Exh P.W.3/1. The clothes of the three deceased, containing cut marks, when brought from the hospital, were also taken into possession by the Investigating Officer. 9. At the mortuary an autopsy was conducted on the dead body of Asmatullah by Dr. Muhammad Aslam Khan, Medical Officer, Civil Hospital, Lakki (P.W.I) on 10-2-1991 at 9-45 a.m. who prepared the post-mortem report (Exh.P. W. 1/1) in this respect. On examination he found the following:-- External: (i) One entrance wound of fire-arm on the postero lateral part on the right side, five inches inferior to the right iliac crest, and 1-1/2 inches posterior to mid axillary line, size half c.m. 1 x half c.m. (ii) One exit wound of fire-arm on the postero lateral part of right hip two inches below the right iliac crest, size 1 c.m. x 1 c.m. (iii) One entrance wound of fire-arm on the right lateral part of the abdomen, one inch above the right iliac crest, size 1/2 c.m. x 1/2 c.m. cavity deep. (iv) One exit wound on right lateral part of thorax in the posterior axillary line 4 inches below of axilla, size 1 c.m. x 1 c.m. (v) One entrance wound of fire-arm on right posterio lateral pan of neck, three and half inch infero posterior to the right ear, six 1/2 c.m. 1/2 c.m. (vi) One exit -ound of fire-arm on the back of right half of thorax, 5 inches medial to the posterior axillary line, and 6 inches below the inferior angle of right scapula, size 1 c.m. x 1 c.m. (vii) One entrance wound of fire-arm on the left lateral part of thorax in the posterior axillary line 2" below the axilla size 1/2 c.m. x 1/2 c.m., cavity deep; (viii)One exit wound on the back of left half of thorax situation one inch below the inferior angle of left scapula, size 1 c.m. x 1 c.m. Internal Thorax wall, right and left pleura, right and left lung abdominal wall, peritoneum diaphragm, small and large intestines and liver were all found injured. Stomach was found healthy and fuii of juices. Thorax ribs were laterally fractured. 11. In the opinion of the doctor death was caused because of the injuries to the vital organs like lungs, liver, intestines, diaphragm, peritoneum, leading to massive haemorrhage, shock and death. 12. According to him, the probable time between the injury and death was about 1 to 10 minutes whereas the time between the death and post-mortem examination was about 16 to 17 hours. 13. The said doctor also examined the dead body of Amir Hatim (deceased) on the same day at 9-30 a.m. 14. On external examination he found the following injuries :-- (i) One entrance wound of fire-arm on the left side of the head situated 4" above the outer can thus of left eye skin muscle and bone deep, size 1" x 1?. (ii) One exit fire-arm-wound on left side of the head, three inches above the left ear and one inch lateral to wound No.l, size 3" x 3". Brain protruding out. 15. On internal examination, the scalp, skull, brain were found to be fractured/injured. Lefi vertex and left temporal bone were also found fractured. 16. According to the doctor (P.W. 1) death was the result of injuries to vital organs like brain, meninges, skull bone, leading to perfused haemorrhage and shock. 17. Probable time between injury and death was found to be about 15 minutes. While that of death and post-rnortem examination (Exh.P.W.1/4) was 16/17 hours. 18. The dead body of Fida Muhammad (deceased) was also examined, on the same day at 9-15 a.m. (Exh.P.W.1/5) by Dr. Muhammad Aslam Khan, Medical Officer. On external examination he noticed the following injuries:-- (i) One entrance wound of fire-arm on the left of the neck 3 or 4 inches lateral to mid line and two inches above left clavical, size 1" x 1". (ii) One graze wound of fire-arm on left side of neck situated half inch above wound No.l and 1-1/2" lateral to mid line, size 1/4" x 1/4". (iii) One graze wound of fire-arm on the left side of neck situated one inch above wound No.2 and two inches lateral to mid line, size 1/4" x 1/4". (iv) One exit wound on the back of right shoulder situated four inches infero medial to right shoulder joint, size 1-1/2" x 1-1/2". 19. On internal examination, posterior wall of right side of thorax, right pleura, right lung, trachea and left carotid were found to be injured while the right scapula was found fractured. 20. In the doctor's opinion death was caused as a result of injuries to the vital organs. Probable time between injury and death was found to be 6 to 15 minutes and that between death and post-mortem examination was 16/17 hours. 21. After the completion of the usual police investigations complete challan was submitted against the appellant (as the other accused had absconded) in the Court of Special Court (Sessions Judge) Lakki Marwat, for trial. 22. The charge against him was framed on 2-4-1995, which was read over and explained to him. The appellant pleaded not guilty, professed innocence and claimed trial. 23. In order to establish its case, the prosecution, at the trial, produced and examined the following witnesses:- P.W.l Dr. Muhammad Aslam Khan, Medical Officer, Lakki. P.W.2 Bakht Jamal Khan, A.S.-I. P.W.3 Hamidullah Khan son of Gul Dad resident of Kheru Khel Pacca. P.W.4 Yousaf Khan F.C. No.286 and P.P. P.W.5 Abdur Rahim Khan son of Muhammad Din resident of Daulat Khel. P.W.6 Salamat Khan F.C. No.58 Police Station Pezu. P.W.7 Noor Aslam Khan son of Gul Nabi resident of Kheru Khel Pacca, Tehsil and District Lakki Marwat. P.W.8 Taj Muhammad Khan, complainant. P.W.9 Nek Nawaz Khan. S.H.O. and P.P. 24. F.C. Muhammad Yousaf Khan was examined as search witness (S.W.I), he was entrusted with warrants under section 204, Cr.P.C. issued against Shamal Khan, the absconding accused. S.W.I searched Shamal Khan in his village as well as in the surrounding villages. However, in order to avoid his arrest. Shamal Khan, had gone into hiding. The warrants could not be executed and were accordingly returned by S.W.I, alongwith his report. Exh.S.W.1/1. The said F.C. was also entrusted with proclamation issued against the absconding accused under section 87, Cr.P.C. which, too, was returned nserved alongwith his report (Exh.S.W.1/2). Resultantly, the trial Court proceeded against the absconding accused under section 512. Cr.P.C. When F.C. Salamat Khan delivered the Murasila (Exh.P.A./l) to A.S.-I. Bakht Jamal (P.W.2) at Police Station Ghazni Khel. on its. basis, F.I.R., Exh.P.A. was duly registered. 25. In the presence of Hamidullah Khan (P.W.3) son of Gul Dad, aged but could not find one. Resultantly, he rushed back to the scene of occurrence where the dead bodies of the three deceased were lying. I: was then that the police party, headed by the Investigating Officer (P.W.9), arrived there and the complainant (P.W.8) narrated the unfortunate incident to him. The complainant's repon was accordingly reduced into writing, in the form of Murasila (Exh.P.A./l) and then despatched to the police station, through F.C. Salamat (P.W.6) where, on its basis, F.I.R. (Exh.P.A.) was duly registered under section 302/34, P.P.C. 38. With regard to the statement of A.S.-I. Bakht Jamal Khan (P.W.2) that he had received the Murasila at Digar Wella, from Salamat (P.W.6) it would be ufficient to say that he had done so deliberately/intentionally so as to extend some concession to the accused. Since the version of P.W.2 has neither been supported by F.C. Salamat Khan (P.W.6) nor by any other evidence, therefore, the same is discarded to this extent. Besides, the very fact that the F.I.R. was registered by P.W.2 at 21-15 hours at the police station, would belie his version that he had received the Murasila at Digar Wella. If P.W.2 had received the Murasila at Digar Wella then I fail to understand as to what had prevented him from registering the F.I.R. immediately. Further no explanation is forthcoming as to why he had deferred the matter of recording the F.I.R. till 21-15 hour:. 39. It is an admitted fact that during the days of occurrence the Digar prayer were offered between 4-00 p.m. and 5-00 p.m. According to Taj Muhammad Khan complainant (P.W.8), he, alongwith his brother, Fida Muhammad deceased and uncle Asmatullah deceased, after offering the prayers, went to the Baithak of Amir Hatim (deceased). They sat there for sometime, when he (P.W.8) was asked to leave the Baithak and wait outside. P.W.8 complied with the direction and went out. It was then that the two accused arrived there. In the circumstances it can be safely concluded that the accused had arrived at the scene of occurrence at about 5-00 p.m. On their arrival both the accused started firing with their klashnikovs and killed three persons in furtherance of their common intention. The complainant, Taj Muhammad Khan (P.W.8), was faced with a grave situation. His real brother as well as his real uncle had been killed. He had himself escaped death because the accused had not noticed his presence otherwise he would not have been spared. The complainant, being a young boy of 16/17 years of age, had no knowledge of intricacies involved in delaying the lodging of the report. After the killing he rushed to his house to inform the inmates about the unfortunate occurrence. This conduct of the complainant (P.W.8), in the circumstances, is most natural. He must have onsumed some time in the process. Thereafter, he went to the road side to hire a pick-up. His assertion that he could not find a Datsun also appears to be quite genuine. At odd hours and at a place where three persons had been killed nobody could dare/or be prepared to take the risk of playing even a nominal role. It is common knowledge that everybody avoids such situations. So, the young boy (P.W.8), finding no vehicle for transporting the dead bodies of the three persons to the police station, returned to the scene of occurrence. 40. Admittedly, the Investigating Officer Naik Nawaz Khan (P.W.9) was on routine "Gasht" of the Ilaqa on the eventful day and was present in village Ghazni Khel, when at about 7-30 p.m. he was informed about the occurrence. He, therefore, rushed to the place of occurrence. On reaching there he met Taj uhammad Khan (P.W.8) who reported the incident to him. The report was reduced into writing in the form of Murasila by the Investigating Officer (P.W.9) and then sent to the police station where the F.I.R. was registered. 41. It was next contende 3 that except in his statement recorded during the trial, Taj Muhammad Khan (P.W.8) nowhere gave the details as to why there as delay in lodging the report. Admittedly, in his report or in his supplementary statement, the details, which led to the delay in lodging the report, have not been given but it is a matter of common knowledge that it is not at all mandatory that each and every detail must be given in the Murasila/F.I.R. which, of course, is not a substantive piece of evidence. However, the fact, that the Investigating Officer, Naik Nawaz (P.W.9), after receipt of the information regarding the occurrence, had reached the scene of occurrence, within half an hour, cannot be lost sight of. According to him (P.W.9) the Murasila was recorded by him at about 8-15 p.m., therefore, it would suggest that he (P.W.9) had received the information at about 7-30 p.m. keeping in view the distance between the place where the Investigating Officer (P.W.9) was present, at he relevant time, and the place where the occurrence took place, it can be safely concluded that he reached there within half an hour. On the other hand, the time onsumed by Taj Muhammad Khan (P.W.8) in informing the inmates of his house, his efforts to fetch a Datsun for the ransportation of the dead bodies and his return to scene of occurrence, all taken together, would indicate that the time of occurrence as alleged by him cannot be doubted. This also explains as to why the lodging of the report was delayed. Additionally, the injuries found on the person of the three deceased also support the version of Taj Muhammad complainant (P.W.8). In my opinion, in the circumstances of this case, the delay in lodging the F.I.R. has been, therefore, competently and satisfactorily explained. Needless to mention that this witness (P.W.8) has been quite consistent on all the material points. The learned counsel for the accused-appellant next contended that in the case in hand, the eye-witness ccount has only been furnished by complainant Taj Muhammad Khan (P.W.8) who happens to be the real brother of Fida Muhammad (deceased) and the nephew of Asmatullah (deceased). Since he is the only eye-witness, therefore, I am of the considered view that his evidence requires to be subjected to close and critical scrutiny/analysis. 42. It may be noted that the perusal of the site plan (Exh.P.B.) would 43. reveal that deceased Fida Muhammad was sitting on Charpai at point No.l, whereas deceased Asmatullah and deceased Amir Hatim were sitting on other "Charpais" at point No.2 and point No.3 respectively. While in the witness-box T-aj Muhammad Khan complainant (P.W.8) stated on oath, that appellant Gul Nawaz, while standing in the door of the Baithak, fired at his brother Fida Muhammad (deceased) and uncle Asmatullah (deceased) whereas the absconding 1 accused (Shamal Khan) fired at Amir Hatim (deceased) with their klashnikovs. The number of the entrance wounds and grazed wounds, found on the dead bodies of all the three deceased were eight. This fact, therefore, fully supports/corroborates the version of the complainant that the two accused had fired many shots at the deceased. The complainant, a young boy of 15/16 years, had categorically stated that the two accused had fired a burst each at the three deceased. His assertion is also supported fully by the post-mortem reports. 45. According to the prosecution version all the three persons, who were killed, had assembled in the Baithak of Amir Hatim, deceased, so as to settle the dispute between the two deceased and the accused party. While the three deceased were waiting for the arrival of the accused party inside the Baithak, the "Complainant, Taj Muhammad Khan (P.W.8) was sitting outside the said Baithak. It was then that the two accused, namely Gul Nawaz appellant and Shamal Khan (absconding accused) arrived there and, while standing in the door of the Baithak, fired indiscriminately at the three deceased with their lethal weapons (klashnikovs) and killed all three of them on the spot. 46. During the spot inspection the Investigating Officer (P.W.9) recovered five empty shells of 7.62 bore. The Investigating Officer also recovered blood­ stained earth from the places at which the three deceased were sitting and later killed. Thus, the version of the sole eye-witness, Taj Muhammad Khan (P.W.8), stands fully corroborated by the site plan and post-mortem report with regard to:- (a) the place and the time of occurrence; (b) the manner in which the three deceased were killed; and (c) the weapons with which the appellant had killed the three deceased. 47. The learned counsel for the appellant vehemently argued that according to Taj Muhammad Khan (P.W.8) the two accused had fired a burst each at the deceased. However, from the spot inspection only five empties shells and two spent bullets were recovered by the Investigating Officer. He submitted that this fact would belie the assertion of the complainant regarding the firing of the bursts. According to him, since klashnikovs were allegedly used for the commission of the crime, therefore, lot of empty shells should have b» aiv recovered from the spot. That the recovery of 5 empties only from thence of therefore, did not support/corroborate the version of the complaip < =- dl tne packet his statement is taken to be correct men in that case the -veference was also shells/spent bullets recovered from the spot should have been much more. In my opinion the contention of the learned counsel for the appellant is not only incorrect but is also misconceived. Firing a burst would not mean that 20/25 bullets had to be fired by each accused. By using the word "burst" the complainant (P.W.8) meant that the appellant/the absconding accused had fired a volley of shots, may be 4/5 shots each. 48. The fact that the three deceased were killed in the Baithak of Amir Hatim deceased, the recovery of 7.62 bore empty shells/spent bullets and the recovery of blood-stained earth from inside the said Baithak, led more than sufficient corroboration to the version advanced by Taj Muhammad Khan (P.W.8). It was indeed for this reason that the trial Judge in his impugned judgment (Page 42 of the print book) had observed and correctly so:- "Here in the instant case when the ocular version of complainant given in the Murasila is to be scrutinized alongwith other material circumstances of the case either external or internal, it appears that complainant has given a complete satisfactory version about his presence alongwith the deceased at the relevant time of occurrence on the spot, and there is no material doubt into the same on the basis of which it can be presumed even for the sake of arguments that presence of complainant on the spot at the relevant time is either not proved or appears to be doubtful. The complainant was a young boy, the occurrence was taken place in the year 1991, he was first examined by the Court of learned Additional Sessions Judge, Lakki as P.W.8 on 16-2-1994 and thereafter, before this Court as P.W.8 on 2-11-1995 both the time his veracity was testified with the able and long cross-examination by the defence but nothing favourable to accused has come forth from his mouth. He has not made any material confrontation on both the time with his version given in the F.I,R. despite the fact that he was a young boy at the time of occurrence and was cross-examinetfby the defence after the lapse of five years of the occurrence. He confidently and satisfactorily faced the cross-examination and has given satisfactory explanation to each and every question without making any departure or improvements." 49. In case Gul Nawaz v. State reported as 1968 SCMR 1168, a Full Bench of the Honourable Supreme Court, consisting of his Lordships Mr. Justice S.A. Rahman, C.J. Mr. Justice Fazle Akbar, Mr. Justice Hamoodur Rahman, Mr. Justice Muhammad Yaqub Ali and Mr. Justice Sajjad Ahmad, JJ. Had observed :-- "In the circumstances, we are clearly of the opinion that Faizullah Khan and Mian Shakirullah Jan, JJ., were wrong in disregarding the criticism made by the learned Additional Sessions Judge, of the prosecution evidence adduced in this case. It should have been remembered that the appreciation of evidence mad? by the trial Cou_njjMt jjwavs be given due weight and importance, for, that Court has the advantage of not only hearing the evidence but also observing the demeanour of the witnesses deposing before it. Its Judgment of the credibility of a witness is not to be lightly discarded, particularly^ where such Judgment is supponed bv co£ent and substantial reasons." (Note: The underlining is mine) 50. Since in the case in hand the version given by Taj Muhammad Khan, (P.W.8) is fully corroborated by other evidence such as the site plan, recoveries, post-mortem report, the time of occurrence etc., on almost all the material points, coupled with the observation of the trial Judge regarding his (P.W.8) credibility and character, there hardly exists any reason to discard his testimony, just because he is closely related to the two deceased. In this respect I am also fortified by a decision of the Full Bench of the Honourable Supreme Court in case Abdul Majeed v. The State reported as 1969 SCMR 437, wherein it was observed/held as under:-- The defence was one of false implication due to enmity, but no evidence was led. The trial Court accepted the evidence for the prosecution and convicted and sentenced the appellant and four other accused. In appeal it was contended before the High Court that as the eve-witnesses were not only related to the deceased, but were on terms of bitter enmity with the appellant the other accused and the absconder. the evidence of Saifal and Ganjoo, though their presence at the occurrence could not be doubted, should not be acted upon unless it was corroborated, and for this, reliance was placed on the decision of the Chief Court of Sindh in Janu Khair Muhammad and others v. The Crown ILR 1943 Kar. 148. The learned Judge accepted this contention observing that on applying the principle of this decision to the facts of the present case, they found that the other four accused were entitled to an acquittal, as the evidence against them was not corroborated. They, therefore, acquitted those accused, but confirmed the convictions of the appellant because they found that the evidence was corroborated as far as he was concerned bv the opinion of the expert referred to above. When the appeal first came on for hearing before us it was argued by Mr. Muhammad Ali for the appellant that the evidence on record did not establish the safe custody of the crime shells from the time of their recovery till they reached the Forensic Science Laboratory and that the' two live cartridges that were seized from the appellant had mysteriously disappeared. Reliance in this connection was placed on the evidence of the Assistant Sub-Inspector, Ijaz Ali that he did not seal the packet containing empty shells at the time of recovery. Reference was also made to the fact that the statements recorded from the injured witnesses by the Magistrate had also mysteriously disappeared. As the conviction by the High Court was based mainly on the corroborative evidence afforded by the Expert we considered it necessary to take additional evidence with regard to the actual custody of the crime shells between the time of their recover)' and their reaching the Expert's office. Ijaz Ali the Assistant Sub-Inspector of police, who seized these shells as well as his Muharrir who placed the articles in the Malkhana and a Head Constable of the Jacobabad Police Station who took the parcel to the Expert, were examined. Their evidence was to the effect that the practice followed in Sindh, before the Punjab Police Rules were made applicable, was to bring the articles recovered from the scene and deposit them in the Malkhana by tying them in a bundle and affixing to it a label containing the number of the case and putting the same into a sealed box and that it was only when sending them to the Expert that they were packed and sealed, that this practice was followed in this case and that the crime shells were kept in the Malkhana in a packet on which the number of the case was noted and under the orders of the Superintendent of Police those shells were put into a sealed packet and were sent alongwith four test live cartridges purchased from the bazar which, however, were not sealed. Even apart from this evidence, we consider that the version of the evewitnesses particularly of Saifal and Ganjoo who sustained serious gunshots wounds could safely be accepted against the appellant and the other accused. The contention that has found favour with the learned Judges of the High Court that there was bitter enmity between the eye­witnesses and the accused does not appear to be based on any definite evidence. On the other hand, what is indicated in the evidence is that there has been a feud between these sections of the same caste and we have not been shown any evidence of personal animosity between the eve-witnesses and the accused. That being so, it is difficult to believe that Saifal and Ganjoo whose presence at the occurrence cannot be disputed falsely implicated members of the opposite faction who were not there. In this connection it was contended for the appellant that the fact that the statements of these witnesses recorded by the Magistrate were not available was a definite disadvantage to the accused because if these statements had then been available it might have been possible to establish that at the early stage these two witnesses did not implicate all or any of these accused. But, it cannot be doubted that the police recorded the statements of these two witnesses and no contradictions in respect of them have been proved. As regards the statements by the Magistrate there is his evidence that Saifal named six persons as the assailants and Ganjoo, though, he did not name the six assailants, was definite that the assailants were six in number. Samano (P.W.9) who took the injured witnesses to the hospital stated that when he went to the place of occurrence Saifal told him that the accused were the assailants. It is significant that this statement was not subjected to cross-examination. There was no avoidable delay in lodging the first information and therein the names of all the accused including the one, who is absconding, are mentioned. In the circumstances we consider that the direct evidence in this case was reliable particularly the evidence of the two injured witnesses, and on that alone the conviction could be sustained. As for the decision which the learned Judges of the High Court have relied on, the head note has to be considered with the circumstances of that case. In fact that observation occurs after a discussion on of the evidence. There, the case and counter-case were dealt with. There were two reports to the police given by either side and the learned Judges came to the conclusion that neither side had given a correct version of the events and that both sides placed before the Court false version of what took place wholly inconsistent with the circumstances of the case. If the intention is that interested testimony should under no circumstances be relied upon unless it is corroborated. We have no hesitation in disagreeing with it. We think that decision there was on the facts of that case and has no application to the case under consideration. There would have been justification for the view taken by the High Court in the present case if there was personal animosity between the accused and the witnesses so that it could be said that they either falsely added persons who did not participate in the occurrence or substituted some of them by implanting those against whom they had a personal grudge, but the feud here was tribal and not personal. We, therefore, find that the appellant has been rightly convicted and accordingly dismiss the_appeal. (Note, underlining is mine). 51. Learned counsel for the appellant then argued that Taj Muhammad JChan (P.W.8) has made improvements in his statement. According to him in the F.I.R. he (P.W.8) had alleged that he, alongwith Asmatullah and Fida Muhammad (deceased), had gone to the Baithak of Amir Hatim in connection with conciliation between them and Gul Nawaz appellant etc. However, when his statement was recorded, at the trial, he stated that they were summoned by Amir Hatim (deceased) so that a date could be fixed for effecting a compromise between the complainant party and the accused party. I do not tend to agree with the learned counsel for the appellant because the above exposition of fact would, in no way, constitute improvement. In both the statements the purpose and the intent of going to the Baithak of Amir Hatim (deceased) is the same. Whether they went to the Baithak of Amir Hatim when summoned or otherwise is immaterial. The question for determination is whether they had in fact gone to the Baithak of Amir Hatim and for what purpose. In this respect-xhere is no contradiction in the statement of Taj Muhammad Khan (P. W.8). 52. The learned counsel for the appellant then argued that the complainant was not present on the spot because if he had been there at the spot the accused would not have spared him and should have killed him. It would be sufficient to say that since he (P.W.8) was sitting outside the Baithak, his presence was not noticed by the accused. Moreover, he, being a young boy of 16/17 years of age, might not have been recognized by the accused with the result that he was not killed. Above all, killing of this witness (P.W.8) might not have been in the execution of the task ahead of the accused. In any case this is not a ground to discard the testimony of an eye-witness as to why he had not been killed. 53. I am, therefore, of the considered view that the presence of Taj Muhammad Khan (P.W.8) at the crucial time, his witnessing the occurrence, the time and the place of the murders of the three persons and the manner in which the deceased were done to death, stand fully established/corroborated by the site plan, the recoveries effected from the spot, the Murasila, the post-mortem report etc. etc. The doctor, who examined the dead bodies of the three deceased, between 9-15 a.m. to 9-45 a.m., on the following day of the occurrence, has given the time, that had elapsed in between the dean and post-mortem examination, as 16 to 17 hours. The said opinion of the doctor has not been questioned by the defence. Moreover, the doctor has opined that the three deceased, after having been injured, died within 1 to 15 minutes. This fact also supports the version of Taj Muhammad Khan (P. W.8) who had stated that, after the departure of the accused, when he approached the three deceased he saw them breathing their last and that thereafter they died then and there. Thus, he ti e of occurrence as narrated by Taj Muhammad Khan (P.W.8) and the time intervening injuries and death of the three deceased is fully corroborated by the Medical'Officer (P.W.I). 54. It may also be n ted that no sane person, with ordinary prudence, would leave the actual killers of his real brother and uncle and implicate innocent persons falsely for no rhyme or reason. There is nothing on the file to suggest, even remotely, that the complainant had any motive or animosity to charge the appellant/absconding accused falsely or substitute them for the real •Cillers. 55. The learned counsel for the appellant has miserably failed to point out any substantial contradiction or improvement in the statement of Taj Muhammad Khan (P.W.8) so as to persuade me to discard his testimony. In my opinion, the murders were all pre-planned/premaditated. The three deceased had assembled in the Baithak of Amir Hatim (deceased) for finding out ways and means to patch up the matter with the accused party and were waiting for their arrival. The their enmity with present accused/appellant etc. The said two deceased sat alongwith Amir Khatim deceased inside the Baithak while complainant was asked to sit outside. Accused/appellant and his brother absconding accused Shimal Khan arrived there armed with Klashnikovs and from the door of Baithak they opened fire. As a result deceased Fida Muhammad and Asmatullah were hit with fire shots of accused appellant while deceased Amir Khatim was hit by the fire shots of absconding accused. Both the accused then decamped from the spot. The motive for the occurrence was stated to be blood feud enmity in reference to the murder of Sardaraz Khan, brother of accused/appellant for which deceased Fida Muhammad, his father and uncle were charged. The entire occurrence was allegedly seen by the complainant from the window of the Baithak. 4. During the tna! prosecution produced and examined as many as 9 witness in support of its case. The solitary eye witness in the case s P.W.8 Taj Muhammad Khan, the complainant, who is real brother of deceased Fida Muhammad and nephew of deceased Asmatullah. 5. P.W.I Dr. Muhammad Aslam, Medical Officer, District Headquarters Hospital, Lakki Marwat examined the dead body of deceased Asmutullah and found the folio wing:-- (i) One entrance wound of fire-arm on the postero lateral part of right hip, five inches inferior to the right iliac crest, and 1-1/2 inches posterior to the mid axillary line, size half c.m. 1 x half c.m. (ii) One exit wound of fire-arm on the postero lateral part of right hip two inches below the right iliac crest, size 1 c.m. x 1 c.m. (iii) One entrance wound of fire-arm on the right lateral part of the abdomen, one inch above the right iliac crest, size 1/2 c.m. x 1/2 c.m. cavity deep. (iv) One exit wound of fire-arm on right lateral part of thorax in the posterior axillary line 4 inches below of axilla, size 1 c.m. x 1 c.m. (v) One entrance wound of fire-arm on right postero lateral part of neck, three and half inch infero posterior to the right ear, six 1/2 c.m. 1/2 c.m. charring marks present. (vi) One exit wound of fire-arm of fire-arm on the back of right half of thorax, 5 inches medial to the posterior axillary line, and 6 inches below the inferior angle of right scapula, size 1 c.m. x 1 c.m. (viii) One entrance wound of fire-arm on the left lateral part of thorax in the posterior axillary line 2" below the axilla size 1/2 c.m. x 1/2 c.m,. cavity deep; (viii) One exit wound on the back of left half of thorax, siruatied one inch below the inferior angle of left scapula, size 1 c.m. x 1 c.m. 6. On internal examination, the Doctor had found thorax wall, right and left plurae, right and left lung injured, the abdominal walls, peritoneum diaphragm, the small and large intestines and liver also injured. Stomach & rest organs were found healthy with fluid juices while thorax ribs were found laterally fractured. In his opinion, the deceased had died due to injuries to the vital organs, i.e. lungs, liver, intestines, diaphragm, peritoneum, leading to massive haemorrhage shock. Time that elapsed between injuries and death was 1 to 10 minutes, while between death and post-mortem examination was 16 to 17 hours. 7. The said Doctor had also performed post-mortem exaination of deceased Amir Khatim Khan on 10-2-1991 at 9-30 a.m. and xternally found the following: One entrance wound of fire-arm on left side of the head situated 4" above the outer canthus of left eye skin muscle and bone deep, size 1" (ii) One exit wound of fire-arm on left side of head, three inches above the left ear and one inch lateral to wound No.l, size 3" x 3". Brains protruding out. INTERNAL Scalp, skull, brain and its membranes injured and fractured. Stomach was healthy containing food juices, left temporal bone fractured. In his opinion, the death had occurred due to injury to vita! organs, i.e. brain, meninges and skull bone leading to proposed hemorrhage hock. Probable time between death and post-mortem was 16-17 hours while that between injury and death was 1 to 5 minutes. 8. This P.W.9 had also conducted autopsy on the dead body of deceased Fida Muhammad the same date at 9-14 a.m. and found the following:-- Extemal (i) One entrance wound of fire-arm on left side of neck 3/4 inches lateral to mid line and two inches above left clavical, size 1" x 1". (ii) One graze wound of fire-arm on left side of neck situated half inch above wound No.l and 1-1/2" lateral to mid line, size 1/4" x 1/4". (iii) One graze wound of fire-arm on the left side of neck situated one inch above wound No.2 and two inches lateral to mid line, size 1/4" x 1/4". (iv) One exit wound on the back of right shoulder situated four inches infero medial to right shoulder joint, size i-1/2" x 1-1/2". Internal On internal examination, the Doctor had found posterior wall of right side of thorax, right pleurae right lung, the trachea, left carocid and oesophagus injured. Stomach was healthy containing fluid juices while right scapula was fractured. In the opinion of the said Doctor, the death had occurred due to injuries to vjtal organs, i.e. left carotid blood vessels, trachea, oesophagus, right lung, right pleura, right scapula leading to profuse haemorrhage shock. Time which consumed between injury and death was 5 to 15 minutes, while between death and post-mortem examination was 16 to 17 hours. 9. P.W.2, namely Bakht Jamal A.S.-I. has registered the case on receipt of Murasila vide F.I.R. Exh.P.A. He categorically admitted that he received Murasila at Deegarvela through Constable Salamat. P.W.3 Hameedullah is a marginal witness to recovery memo. Exh.3/2 vide which Investigating Officer took into possession 5 empties of 7.62 bore and spent-bullets. P.W.4 Yousaf Khan was entrusted with warrants of arrest against accused/appellants and absconding accused under section 204, Cr.P.C. P.W.5 Abdul Rahim escorted the dead bodies from site of occurrence to the Hospital. The witness also stated that he accompanied the Investigating Officer from Police Station to the scene of occurrence. P.W.6 Salamat Khan F.C. was a marginal witness to Exh.P.W.6/1. This witness also accompanies the Investigating Officer from Police Station to place of occurrence. P.W.7 Noor Aslam identified the dead bodies. P.W.8 Taj Muhammad Khan is the complainant and only eye-witness of the occurrence. He made the report and in his statement before the Court corroborated the contents of his F.I.R. with certain deviations, i.e. in F.I.R. it is stated that complainant alongwith two deceased went to the Baithak of deceased Amir Hatim while in his statement before the Coun, he stated that they were summoned by deceased Amir Hatim. The witness admitted that Village Kherokhel is linked with the Police Station by a metalled road. The witness funher tried to explain the delay in lodging the report. Nek Nawaz the Investigating Officer was examined as P.W.9 who stated that he got information of the occurrence at Adda Ghazni Khel and from Adda he rushed to the spot where complainant met him and made report Exh.P.A. to him of the occurrence. 10. The recoveries from the spot are as under: Two empties of 7.62 bore recovered from point 5 in the site plan where accused/appellant's presence is shown. Three empties of 7.62 bore freshly discharged from point No.7. Two spent bullets from points "A" and "B" were recovered. 11. After the close of prosecution evidence, accused was examined under section 342, Cr.P.C. wherein he denied the charges and pleaded innocence. 12. M/s. Zafar Abbas Zaidi, Advocate for the accused/appellants, Sheher Yar Khan, Advocate for complainant and Saeed Hassan Shirazi, learned Assistant Advocate-General advanced arguments in support of their respective parties. We consciously considered their arguments and also perused the record with their help_. 13. Prosecution ocular evidence is from the mouth of P.W.8 Taj Muhammad Khan. The enmity between the parties is an established fact. The occurrence took place at Deegarvela i.e. in between 4 and 5 p.m. while the report was lodged at 20-15 hours i.e. 8-15 p.m. on the spot. Distance in between Village Kherokhel where occurrence has taken place is 13/14 kilometers from Police Station and linked with a metalled road. Prosecution did not explain that how a time of about 4 hours was consumed between the occurrence and egistration of the case that too at the spot. The attempt made by the complainant in his statement to meet the delay is neither plausible nor convincing, particularly keeping in view the conduct of P.W.8 Taj Muhammad Khan who stated in his statement that after lodging the report and making pointation of various points to the Investigating Officer, left the dead bodies of his real brother and uncle at the spot and went to his house. Such a conduct is not expected from such a near relation. From the unexplained abnormal delay, coupled with the said conduct of the complainant Taj Muhammad Khan it ranspires that factually he has not seen the occurrence and he is a cooked/procured witness. Further the S.H.O. P.W.9 has stated that he was informed about the occurrence at Adda Ghazni Khel while P.W.5 Abdul Rahim and P.W.6 Salamat Khan has categorically stated that they have accompanied the Investigating Officer from Police Station to spot and as such contradicted the statement of P.W.9 the Investigating Officer in this regard and if this fact is accepted as stated by P.W.5 and P.W!6 then who informed the S.H.O. in Police Station and then why the information so received was not recorded. It is alleged and strongly argued by the counsel of accused/appellant that deceased Amir Hatim was a retired Police Inspector, therefore, the S.H.O. P.W.9 arranged the attendance of P.W.8 the complainant and made him an eye-witness to the occurrence while it was an unseen occurrence and this was the reason for delay in registration of the report and this fact gets support from the statement of P.W.2 Bakht Jamal A.S.-I. who stated that he received Murasila at Deegarvela hich might not be the Murasila but will be the first information of the occurrence which he received in Police Station at Deegarvela, Presence of eye­ witness P.W.8 Taj Muhammad Khan is appearing doubtful and the occurrence does not seem to have taken place in a manner as stated at trial. P.W.8 Taj Muhammad Khan is the solitary witness of the occurrence who is the real brother of deceased Fida Muhammad and nephew of deceased Asmatullah and admittedly had previous enmity with accused. Inordinate delay in recording F.I.R. particularly in case where F.I.R. is recorded on spot by the Investigating Officer which have always been suspected by the superior Couns in absence of any plausible explanation. The ocular evidence in this case has been furnished by a close relative of the deceased having an enmity with the accused could only be accepted if found materially corroborated by seme very strong corroboration. In the instant ca^e recoveries from the spot could not be termed as corroborative piece of evidence. The very recovery of five empties from the spot is in total contradiction of narration made by the said Taj Muhammad Khan who has stated that each accused fired a burst at the deceased and the recoveries from the spot and for that matter injuries sustained by the deceased are not in consonance with the said version of the complainant. Furthermore, the scene of occurrence is a Baithak where there is no chance of missing of the empties. Even there is only recovery of 2 spent bullets from the wall in range of the firing and no reference of any bullet marks on the walls of the Baithak are available where allegedly two bursts of Klashnikovs have fired. It would be in these circumstances not safe to rely on the testimony of P.W.8 who is highly interested and inimical towards accused. 15. In order to carry conviction on a capital change, ocular account must ome from unimpeachable source or must be supported by some strong ircumstance. Appraisement of evidence of any eye-witness has to be based upon full consideration and evaluation of ail the ircumstance appearing in the case here there is total absence of physical circumstances to connect the accused ith the crime with a background of enmity. The eye-witness account furnished n the case in hand is lacking of the said qualification and is, therefore, liable to e discarded. Reliance in this respect can be placed on Bagh Ali and 4 others v. The State reported PLD 1973 SC 321, Attaullah and others v. The State PLD . 199C Pesh. 10, Abdul Hamid and another v. The State 1960 (W.P.) Pesh. 141 are referred in support of my view that reliance on any eye-witness who is closely related to the deceased and inimical towards the accused as is the case in hand, would be unsafe unless it receives independent corroboration. Besides, absence of contradiction in statement of witness before police and his testimony at trial cannot be used to strengthen the witness's statement. 16. As stated earlier, the medical evidence is not consistent with the ocular account of the eye-witness of the case and had the witness been really present at the spot, discrepancies and lapses with which his evidence is pregnant would not have occurred. Reliance in this regard is placed on Ashiq Hussain v. The State, eponed in 1993 SCMR 417. The F.I.R. is held to be lodged after deliberations and consultations and is, therefore, not taken into its true prospective. Reference is made jo Islam Badshah etc. v. The State reported in PLD 1993 Pesh. 7. As j discussed above, such like F.I.Rs. in absence of any plausible explanation which I too was recorded on spot by the Investigating Officer have always been viewed with grave suspicion by the Superior Courts. The case of Sher Zaman and 2 others, reported in 1988 PCr.LJ 440 is relied upon for ready reference, in this respect. 17. The upshot of my above discussion is that the prosecution has miserably failed to bring home guilt of the convict-appellant beyond any shadow of doubt. Therefore, by extending the benefit of doubt to the appellant, I accept his appeal, set aside his conviction and sentence and acquit him of the charge Q brought against him. He shall be set free forthwith if not wanted in any other case. The murder reference is answered in negative. Mian Muhammad Ajmal, J.—I have had the privilege to go through the proposed judgments of Mr. Justice Sardar Jawaid Nawaz Khan Gandapur, and Mr. Justice Malik Hamid Saeed, whereby the former while dismissing the convict's appeal answered the murder reference in affirmative, whereas the later accepted the appeal and acquitted the accused appellant of the charge against him. 2. This criminal appeal is directed against the judgment dated 7-9-1996, of he learned Special Judge, Lakki, whereby Gul Nawaz Appellant was convicted nder section 302, P.P.C. on two counts for the murder of Asmatullah and Fida Muhammad deceased and sentenced to death. He was also convicted under section 302/34, P.P.C. for committing the murder of Amir Hatim Khan and sentenced to life imprisonment aiongwith fine of Rs.50,000 or in default of payment thereof, to suffer further S.-I. for five years. It was directed that on realisation of the fine, 2/3rd shall be paid to the legal heirs of the deceased as compensation. 3. The prosecution was set in motion by Taj Muhammad Khan (P.W.8) who reported to the police on their arrival at the spot, that on the day of occurrence after "Digar 1 prayers he aiongwith Asmatullah (uncle) and Fida Muhammad (brother) went to the 'Baithak' of Amir Hatim (arbitrator), Asmatullah his uncle asked him to go out as he wanted to discuss some matter with Amir Hatim deceased, accordingly he went out of the Baithak and sat on a 'cot' lying outside the Baithak. In the meantime, Gul Nawaz, accused-appellant and his brother Shimal Khan, absconding accused, armed with Klashnikovs came there and gunned down Fida Muhammad, Asmatullah Khan and Amir Hatim Khan. After the commission of the crime, both the accused made their escape good. The prosecution case rests upon the sole ocular testimony of Taj Muhammad Khan (P.W.8), which would be considered in the light of surrounding circumstances. The contention of the learned counsel for the appellant that the P.W.8 is closely related to the dead, therefore, his evidence cannot be relied upon is not tenable, as there is no hard and fast rule that any person who is closely related to the deceased would always be unreliable witness nor it can be said that a stranger or non related person would always be a truthful witness. The statement of the witness has to be weighed with reference to the facts and circumstances of the case and other evidence on the record. The credibility of the witness does not depend on the relationship but it flows from the statement itself which he makes and it is the quality and inherent merit of the statement which matters. In the instant case P '•'/. Taj Muhammad Khan has reiterated the version given by him in the F.I.R. and has given cogent reason for his presence at the spot, hence his evidence cannot be brushed aside merely because of his relationship with the deceased or enmity with the accused party. 5. The other contention that no independent person from the locality has appeared as a witness, has also no force, as the testimony of the witness cannot be discredited merely on the ground that none from the locality came forward to depose as a witness. It is common knowledge that people from public generally avoid to be cited as witness in murder case so as to shun the work of animosity of the accused pany. It has been held in Mst. Hayat Bibi's case 1976 SCMR 128 that:- "Trial Court and High Court holding it very difficult and impossible to secure independent and disinterested witnesses in a murder case in district of Mianwali for fear of being regarded as enemies of accused— Prosecution witness and old woman of 71 years though suffering from weak eye-sight but able to identify person from a distance of 8/9 paces—Witness seeing assailants from a very close quarter not difficult for her to identify assailants known to her-No reason for such old woman to falsely implicate accused-Medical evidence fully supporting evidence with regard to manner of occurrence as well as number of assailants involved-Accused remaining in abscondence for about a month until arrested-No reason, held, to interfere with conclusions of Lower Courts based on reliance of ocular evidence as well as reporting circumstances." The eye-witness has furnished direct evidence of convincing nature which is confidence inspiring and is supported t>y medical evidence, motive, abscondence, recovery of 7.62 bore empties, state of injuries and the weapons employed in the crime. It was a broad day occurrence and the witness had no difficultly in identifying the accused. The eye-witness was subjected to crossexamination and his evidence remained intactand could not be shaken by the defence, hence the conclusion drawn by the trial Court appears to be in line with the evidence on record. In case of Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659, the August Supreme Court of Pakistan has observed as under:-- "We are unable to accept the broad proposition that no conviction can e based on the solitary evidence of an interested witness. This view is not supported by the decision of this Court in the case of Nazir v. State PLD 1962 SC 269 as claimed on behalf of the petitioners. In the case under report it has been held that there can never be an inflexible rule that the statement of an 'interested' witness can never be accepted without corroboration. Besides it has been held in the case under report that for corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had __ not been implicated in addition to those who were guilty, the circumstances relied upon must have a hearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accpmplice for the two do not stand on the same footing."So far the delay in lodging the report is concerned, in my opinion, the same has sufficiently been explained by P.W.8 in his statement. It may be observed that after the occurrence the complainant went to his house to inform his family members about the unfortunate incident but there was no male member present in the house, so he went to road side to arrange a Datsun but could not find any transport and thus disappointed came back to the spot. In the meantime the police arrived and he reported the matter. There is nothing unnatural in the conduct of P.W.8 as any person in his place would have acted in the same manner. Hence in the circumstance, the delay, if any, has plausibly been explained by the complainant. There is nothing on the record to support the statement of Bakht Jamal Khan A.S.-I. (P.W.2) regarding the receipt of Murasila' by him at 'Digar Vela', and it appears that the police official has made an obliging answer in the cross-examination which has no legal value. Such concession by formal witness has been deprecated by the Supreme Court of Pakistan . Reference can be made to PLD 1976 SC 452 and PLD 1976 SC 593. 6 Another assertion of the learned counsel for the appellant that the complainant was not present on the spot as alleged by him and had he been there "he would not have been spared by the assailants, did not impress me at all, as the possibility is either the complainant was not noticed by the accused or he was considered not to be of any significance being of tender age or-he was not recognised to be from the rival party. Anyhow it was to his good luck that he did not become victim of the accused and escaped who gave an eye account of he tragedy which appears to be straight forward and natural, thus, there is no reason to disbelieve it. 7. The occurrence took place in February, 1991 whereas the statement of P.W. 8 was recorded in November, 1995 i.e. after four years and 9 months, therefore, after the lapse of such a long time certain contradictions or discrepancies between the earlier statement and statement at the trial were inevitable and natural, hence they would have no adverse effect on the prosecution case. Reference can be made to PLD 1977 Supreme Court 557. In view of the above discussion, I am of the opinion that prosecution has proved its case against the appellant, as such, I tend to agree with the judgment of Mr. Justice Sardar Jawaid Nawaz Khan Gandapur, J. and while dismissing this appeal answer the murder reference in the affirmative. This judgment shall have no effect on the case of the absconding accused as and when tried. (K.K.F.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 50 [ Rawalpindi Bench] Present: muhammad nawaz abbasi, J. ASAF MANSOOR-Appellant versus STATE-Respondent Cr. A. No. 50 of 1992, heard on 4.8.1998. (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302, 365 & 365-A-Criminal Procedure Code (V of 1898), S. 337- Qanun-e-Shahadat (P.O. 10 of 1984), Arts. 16 & 129-Murder-Sentence of imprisonment for life was based on evidence of co-accused (who had been acquitted on basis of compromise effected between them and legal heirs of deceased)--Legality--Story of commission of offence disclosed by accused was not supported by any other direct evidence-'No evidence was produced to connect convicted accused with snatching of taxi and killing deceased—Prosecution could not bring any evidence on record as to how and under what circumstances and in what manner taxi was snatching by accused and when deceased was done to death-Time of death could not be ascertained for only bones of dead body were recovered-Such fact would create reasonable doubt about time elapsed between day when taxi was hired and date of death of deceased, therefore, there being no proximity of time, last seen evidence in the nature of statement of complainant was not much helpful to prosecution to establish charge nder Section 302 PPC-Conviction of accused on basis of last seen vidence alongwith alleged abscondence of accused s t enough to old him guilty-Acquitted accused allegedly played similar role to that of onvicted accused, therefore, no-specific role having en ascribed to him, ndividual liability could not be determined-Conviction and sentence warded to accused were, thus, not sustainable. P. 57] A (i) Pakistan Penal Code, 1860 (XLV of I860)- —-S. 302-Qanun-e-Shahadat Order (P.O. 10 of 1984) Arts. 16 & 129- Criminal Procedure Code (V of 1898), S. 337-Conviction for murder on evidence of co-accused (who had been acquitted on basis of compromise effected between them and legal heirs of deceased)-Legality-Article 16, Qanun-e-Shahadat envisaged that statement of accomplice was not admissible if the same was in conflict with illustration (b) of Article 129 thereof and did not seek corroboration from independent source- Evidence of co-accused (as court-witnesses) lacking independence was muddled with motive to save their skin, therefore, such evidence could not acquire standard of independent evidence admissible for purpose of conviction for capital charge-Co-accused having not been made approver in terms of Section 337 Cr.P.C. did not acquire status of witness to disclose truth of matter—Co-accused having not made any confessional statement, their evidence as court witnesses in the capacity of accused being not an evidence under Article 129 (b) Qanun-e-Shahadat was not reliable under Article 16 thereof—Such evidence therefore, could not be used and read in evidence unless corroborated by independent source-­Conviction and sentence of convicted accused on basis of such evidence ~ was, thus, not sustainable. [Pp. 57, 58 & 59] B, C & D 1994 SCMR 932 case ref. Mr. Z. BabarAwan, Advocate for Appellant. Raja Muhammad Ayub Kiani, Advocate for State. Date of hearing: .1998. judgment Asif Mansoor appellant alongwith his co-accused, namely, Muhammad Arif and Qaiser Rashid (since acquitted on the basis of compromise effected between them and the legal heirs of the deceased) having faced trial for the charge under Sections 302/34, 420/406 P.P.C. before the learned Additional Sessions Judge, Islamabad was convicted and sentenced through the judgment dated 17.12.1992 in the following manner:- (i) Under Section 302 P.P.C.: (ii) Imprisonment for life with a fine of Rs. 15,000/- or in default thereof to further undergo R.I. for two years. (ii) Under Section 420/406 P.P.C:- Rigorous imprisonment for five years with a fine of Rs. 2,000/- or in default thereof to undergo R.I. for six months each under Sections 420 and 406 P.P.C. separately. All the sentences have been ordered to run consecutively with benefit of Section 382-B Cr.P.C. The co-accused of the appellant, namely, Muhammad Arif and Qaiser Rashid having compromised with the legal heirs of the deceased, were acquitted of the charge, under Section 345(6) Cr.P.C. The appellant being aggrieved of his conviction and sentence has filed this appeal. 2. Precisely, the prosecution case as contained in the complaint Exh. P.F.) lodged by Muhammad Raziq (P.W. 5) on 11.8.1990 at Police Station Aabpara, Islamabad, is to the effect that on 5.8.1990 at 9.30 a.m., the ppellant alongwith his co-accused, namely, Muhammad Arif and Qaiser Rashid, approached the complainant in the Capital Hotel, Islamabad and hired a car bearing No. IDA-4039 from him to take them to Lahore to be driven by Tariq Javed with the understanding that they would come back on 6.8.1998. The accused having not turned up till 11.8.1990, the complainant smelling some foul play reported the matter to the police and upon investigation it revealed that the appellant and his co-accused after committing the murder of Tariq Javed, the driver of the car, in a jungle near Sarai Alamgir, District Gujrat left for Lahore with the car. The appellant and his co-accused were accordingly challaned to face the charge under Section 302/420/406 P.P.C. 3. The prosecution produced as many as 13 witnesses in proof of the allegations against the appellant and his co-accused. Muhammad Arif and aiser Rashid, who having acquitted as a result of compromise with the legal heirs of the deceased, where examined as C.Ws. 1 and 2, respectively, at the trial against the appellant. Dr. Rehana Azim was examined as C.W. 3. 4. Shakil Ahmad (P.W. 1) deposed that he took the appellant and his co-accused to Tariq Javed deceased, who was running taxi car No. IDA- 4039 and got his taxi engaged for the appellant and his co-accused. Haji Ahmad (P.W. 2 stated that Muhammad Arif and Qaiser Rashid, co-accused of the appellant, pointed out the place of occurrence, from where the bones of the different parts of human body were recovered alongwith one shoe (Exh. P. 1), shirt (Ex. P. 2), pant (Exh. P. 3) and a photostat of identity card of the deceased, which were taken into possession vide memo Exh. PA and PB. Mukhtar Ahmad, A.S.I. (P.W. 4) stated that on an information, he took into possession he car bearing No. IDA-4039 in broken condition under Section 550 Cr.P.C. from Pabbi jungle nearby Railway crossing, Kharian. Muhammad Raziq (P.W. 5), complainant of the case who was managing the office of Rent A Car in Capital Hotel, Islamabad and was pproached by the accused including the appellant for hiring a car for Lahore and consequently a car bearing No. IDA-4039 (Exh. P. 5) was given to them on rent deputing Tariq Javed deceased as driver with the accused. The witness has deposed that the appellant was accompanied by Muhammad Arif and Qaiser Rashid (since acquitted) and when the car and driver did not turn up for 5/6 days, the matter was reported to the police. Syed Abid Hussain (P.W. 6) stated that the appellant has pointed out the place near Sarai Alamgir, where the deceased was done to death. Johar Ali (P.W. 7) deposed that he witnessed the arrest of the appellant on 14.10.1990 and recovery of pistol (Exh. P. 7) from him, which was taken into possession vide memo Exh. PH. Yasar Raza (P.W. 9) has stated that the acquitted accused, namely, Muhammad Arif and Qaiser Rashid pointed out the place of murder of the deceased in the jungle near Sarai Alamgir and he accompanying the police party took photographs of the said place, which have been made part of the record. Muhammad Sharif (P.W. 11), a Section Officer in the Ministry of Interior, deposed that the appellant being known to him, was brought by his parents to him for his production before the police, but he slipped away and ultimately was arrested on 14.10.1990. Farman Ahmad (P.W. 12) has stated that he being cousin of Qaiser Rashid was informed by him that the appellant after hiring a taxi from Islamabad snatched the same from its driver in Pabbi Jungle while proceeding towards Lahore after causing injuries to him and left for Lahore and he did not know whether the driver was still alive or dead. This witness, however, got arrested Qaiser Rashid and Asif Mansoor on 8.9.1990 and 11.8.1990, respectively through Mughalpura Police at Lahore . Muhammad Yousaf (P.W. 13), the Investigating Officer of the case has recorded the statement of the complainant (Exh. PF) and after registration of case through formal F.I.R. (Exh. PF/1) conducted the investigation and ultimately having found the appellant and his co-accused (since acquitted) involved in the case challaned them to face the trial. 5. Muhammad Arif and Qaiser Rashid, co-accused of the appellant upon their acquittal on the basis of compromise with the legal heirs of the deceased, appearing as C.Ws. 1 and 2, respectively, deposed in the following manner:- STATEMENT OF MUHAMMAD ARIF: "I know Asif Mansoor accused present in Court and also Qaisar Rashid since acquitted. I became acquainted with both of them as the said two accused were in District Camp Jail Lahore as under-trials in other cases, and I was on duty there as Ex-Warden of Jail. They became my friend. After being acquitted in other cases, Asif and Qaisar were released from that Jail and even thereafter they went on seeing me as we had developed friendship. They invited me for a visit to Murree. Thus, I obtained five days leave from the Superintendent Jail. On 3.8.1990, I and Qaisar came to Islamabad but were informed by the younger brother of Asif that Asif was at Murree, so we went to Murree and contacted Asif accused there. We two stayed in Murree for the night and on the next day we three came to Islamabad . Asif Mansoor accused arranged for our stay in Islamabad with his friend Abbasi. e three then chalked out a program to leave for Lahore, thus we went to Ambassador Hotel in a Taxi and from there we went to Capital Hotel in the same taxi and from there Asif accused hired a Taxi for Lahore being Honda Accord. Tariq Javaid was driver of that Taxi car. We three occupied that Taxi and left for Lahore being driven by Tariq Javed. When we reached ahead of Sarai Alamgir, Asif accused stopped the Taxi as he wanted to make water. We had already planned to snatch Taxi from the driver. We noticed that there was no traffic on the part of the road at that time. So after stopping the Taxi, we got alighted the driver and we three took him into bushes. Qaisar Rashid was having a pistol 30 bore with him, he fired at Tariq Javed hitting him on front near shoulder left side. I was also having pistol of 30 bore with which I then fired at Tariq hitting his left arm, and thereafter Asif Mansoor accused fired at Tariq Javaid with his 32 bore revolver hitting in the neck of Tariq and then Tariq fell down. We left Tariq there in injured condition and we three drove away the taxi to Lahore . From where, I departed for Narowal and Asif returned to Islamabad , whereas Qaisar remained at Lahore . We left the said Taxi at car stand of Services Hospital Lahore . We three had further planned to sell away the Taxi. I went to Narowal on 6.8.1990 and returned to Lahore on 11.8.1990 but was arrested by the police of Mughal Pura P.S. We were also having a scheme to commit dacoity but due to arrest of us, the said scheme could not materialized." STATEMENT OF QAISAR RASHID: "I and Asif Mansoor accused remained together in Camp Jail Lahore as under-trial in different cases and thus developed intimacy. Muhammad Arif C.W. 1 being employed inthat Jail also became our friend. Asif Mansoor was firstly released from that Jail and afterwards, I was released. Asif came to Islamabad and through a letter he invited me and Arif C.W. 1 to visit Islamabad. About one and a half years back I and CW 1 came to Islamabad and from here we went to Murree where we stayed for one day with Asif accused and on the next day we three came to Islamabad and went to Capital Hotel and from there to Ambassador Hotel and from there on the identification of Asif accused, we were able to rent a car for Lahore which was being driven by its driver Tariq. Myself, Asif and Arif left by that Taxi car driven by Tariq for Lahore and when we reached between Kharian and Jhelum, we got stopped the Taxi on the pretext of making water. When the driver came out of the Taxi, Arif lifted him to a depression (Kassi). Arif was armed with 30 bore pistol. I got that pistol from him and fired one shot at the driver hitting him in the chest. CW 1 or Asif Mansoor did not fire any shot at the driver. On sustaining of fire shot, Tariq fell down facing the earth. Afterwards Arif examined Tariq and told us that he had expired. During all this process Asif accused as well as CW 1 had also come down to Kassi where I had fired shot and took the life of Tariq. CW 1 remained landing at a distance of about one pace from me whereas Asif accused was standing about 10 paces from there when I fired the shot. Thereafter we three went to Lahore in that Taxi car being driven by Asif. From there Arif went to Narowal, Asif returned to Islamabad . During the investigation we three were arrested. It was at Murree for the first time that Arif disclosed the plan to take a Taxi to Lahore and we must snatch the Taxi from its driver, and then to kill him who so ever he might be. Again said CW 1 at that time had only planned to snatch the Taxi from its driver but he had not nominated Tariq at that time. It was however, at the place of occurrence when CW 1 further planned to kill the driver Tariq as according to CW 1, the driver had seen the house of Asif and if the driver was not killed he would report the matter to the police resulting in our arrest. Thus on the direction of CW 1, I killed Tariq. I did not volunteer for making statement before a Magistrate rather the I.O. compelled me for involvement of all of us. In this case my relatives have compromised the matter with the legal heirs of the deceased." Professor Dr. Rehana Azim, Anatomy Department, Rawalpindi Medical College , Rawalpindi appearing as C.W. 3 has stated that she examined the bones and skull recovered from the place of occurrence and reported that the same were of human being. 6. The appellant in his statement under Section 342 Cr.P.C. admitting the factum of having faced trial in different cases at Lahore together with Qaiser Rashid and Muhammad Arif, a Warden in jail, giving detail of friendship with them and the activities denied the allegation of having accompanying his co-accused to Lahore in the car in question and snatching of the same from the driver Tariq Javed after committing his murder. He stated that he has been falsely involved in the case. He, however, did not make a statement under Section 340 Cr.P.C. or produce any evidence in defence. 7. The prosecution placed reliance upon the evidence as mentioned bove alongwith the statements of Muhammad Arif and Qaiser Rashid, C.Ws. 1 and 2, both co-accused of the appellant, who were acquitted as a result of compromise with the legal heirs of the deceased during the pendency of the trial. The prosecution also banking upon the abscondence of the appellant, the evidence of Muhammad Sharif (P.W. 11) with admission of the accused regarding his association with his co-accused, (since acquitted), in his statement under Section 342 Cr.P.C. succeeded to get the trial Court convinced to convict the appellant. 8. Before the conclusion of the trial, the co-accused of the appellant, namely, Muhammad Arif and Qaiser Rashid having entered into compromise with the legal heirs of the deceased by making payment of Rs. l.OO.OOO/- (Rupees one lac) each as Diyat and compensation to them, made extra-judicial confession before Farman Khan (P.W. 12) and upon acquittal from the charge, they were called to the witness box and examined as C.Ws. 1 and 2. The trial Court mainly placing reliance on their statements along with the alleged admission made by the appellant before Muhammad Sharif (P.W. 11) and his abscondence with the extra-judicial confession allegedly made before Farman Khan (P.W. 12) and the recovery of the human bones, clothes, identity card a boot of the deceased and the compromise of legal heirs of the deceased with the acquitted accused as corroborative evidence convicted and sentenced the appellant in the manner detailed above. 9. Learned counsel for the appellant contended that the circumstantial evidence produced by the prosecution at the trial being insufficient to connect the appellant with the commission of offence, the trial Court on the basis of the statement of the co-accused as Court witnesses illegally convicted the appellant and sentenced him for the charge under Section 302/420/406 P.P.C. Learned counsel without discussing the evidence in detail contended that the statement of the co-accused could not be used against the appellant as neither they were declared approver nor were the prosecution witnesses. He also contended that even if they hold the status of witnesses, unless their evidence is corroborated through independent source is of no evidentiary value to be used for the purpose of conviction in the capital charge. 10. Conversely, learned counsel appearing on behalf of the State argued that for the purpose of bringing out the truth, the Court under Section 540 Cr.P.C. is empowered to call any person as Court witness and consequently examination of the co-accused of the appellant as Court witnesses was not illegal. 11. I have heard the learned counsel for the parties at length and carefully perused the record with their assistance. ccording to the prosecution story set up in the complaint lodged by Muhammad Raziq (P.W. 5), the appellant as well as his co-accused, since acquitted, participating in the occurrence together hired a taxi from Islamabad to go to Lahore and in the way when they reached near Pabbi Jungle at Sarai Alamgir, after causing injuries to the Driver, Tariq Javed deceased, snatched the taxi from him. All the three accused after pointing out the place of occurrence, disclosed the commission of offence during the investigation. This story disclosed by the accused is not supported by any other direct evidence, as the remaining evidence brought on record is confined to the extent of proving the fact of taking away the taxi by the accused from Islamabad. There is no evidence available on record in proof of the causing of injuries and taking place of the occurrence in the Pabbi Jungle near Kharian except the statement of the accused as Court witness. Thus, the story is divided into two parts. First part relates to the taking of taxi from Islamabad and second of its snatching and killing the deceased. There is no other evidence to connect the appellant with the second part of the story except the statement of the C.Ws., the accused in the case. The first question for determination is whether without reading the statement of these Court witnesses the conviction and sentence in the capital charge is sustainable on the basis of remaining evidence. The answer is in the negative for the reason that taking away of the taxi with driver from Islamabad could constitute an offence under Sections 365 and 365-A P.P.C., but the same by itself is not an evidence of murder. The prosecution has not been able to bring any evidence on record that how and under what circumstances and in what manner the taxi was snatched by the accused and when the deceased was done to death. The time of death could not be ascertained as only the bones of the dead-body were recovered. This would create a reasonable doubt about the time elapsed between the day when the taxi was hired from Islamabad and the date of death of the deceased and therefore there being no proximity of time, the last seen evidence in the nature of the statement of the complainant whereby the taking of taxi by the accused from the Capital Hotel, Islamabad with the deceased is not much helpful to the prosecution to establish the charge under Section 302 P.P.C. Thus, the conviction of the appellant on the basis of the last seen evidence alongwith the alleged abscondence of the appellant is not enough to hold him guilty. The acquitted accused allegedly played the similar role to that of the appellant and, therefore, it being not known that what distinguishable role has been played by an individual accused, to determine the individual liability. 12. Resuming to the evidence of the Court Witnesses, namely, Muhammad Arif and Qaiser Rashid, who were co-accused of the appellant, it is necessary to Judge the admissibility of their evidence. Under Article 16 of the Qanun-e-Shahadat Order, 1984 (President's Order No. 10 of 1984), the statement of an accomplice is not admissible if it is conflict with the Illustration (b) of Article 129 thereof and does not seek corroboration from independent source. Article 16 and Illustration (b) of Article 129 (ibid) reads as under: - "16. Accomplice.- An accomplice shall be a competent witness against an accused person, except in the case of an offence punishable with Hadd and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." "129. Court may presume existence of certain /bete.--The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to be common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case: Illustrations: The Court may presume:- (a) ............................................................................................................ (b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars": Considering the argument of the learned counsel that the statement of the co-accused of the appellant after entering into a compromise with the legal heirs of the deceased and getting acquittal from the charge, as Court witnesses is not admissible as they being accused of the case did not reduce their statement less than an accomplice is not without force. The evidence of the Court-witnesses lacking independence is mudded with the motive to save their skin and therefore, in any case, cannot acquire the standard of independent evidence admissible for the purpose of conviction for capital charge. They having not made approver as envisaged in Section 337 Cr.P.C. did not acquire the status of a witness to disclose the truth of the matter. They also did not make any confessional statement and their evidence as Court witnesses in the capacity of accused being not an evidence under Article 129 Illustration (b) of the Qanun-e-Shahadat Order, 1984 is not reliable under Article 16 thereof. Consequently, the same cannot be used and read in evidence unless corroborated by independent source. The remaining evidence available on record relied upon by the trial Court as corroborative evidence is equally usable against the said Court-witnesses and thus the same has lost its corroborative value against the appellant The question regarding the admissibility and evidentiary value of statement of ar accomplice, who has been declared as competent witness under Article 16 (ibid) has been judged by the apex Court in the case Federation of Pakistan v. Muhammad Shaft Muhammadi, Advocate and 3 others (1994 S.C.M.R. 932) in the following manner:- "We may also observe that Article 16 and illustration (b) of Article 129 of the order are apparently in conflict. In such a case the Court is required to place such construction, which may harmonize the above two provisions. Though by virtue of the above Article 16 it is permissible that the Court may convict an accused person on the basis of uncorroborated evidence of an accomplice, but the Court as a rule of prudence and because of above illustration (b) of Article 129 of the Order insists upon for having the testimony of an accomplice corroborated in material particulars and, thereby harmonize the above two provisions." 13. In the light of the above discussion, after exclusion of uncorroborated evidence of the Court-witnesses, namely, Muhammad Arif and Qaiser Rashid, who being accused in the case are accomplice, there is no evidence on record direct or circumstantial to connect the appellant with the commission of offence and his case being not distinguishable to that of his coaccused, who have been acquitted of the charge as a result of the compromise with the legal heirs of the deceased, the conviction and sentence of the appellant is not sustainable. Consequently, this appeal is allowed, the conviction and sentence of the appellant under Section 302/420/406 P.P.C. is set aside and he is directed to be released from jail forthwith if not required in any other case. (K.K.F.) Accused acquitted

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 59 (DB) [ Rawalpindi Bench] Present: muhammad nawaz abbasi and sh. amjad ali, JJ. SAID ULLAH-Appellant versus STATE-Respondent Crl. Appeal No. 47 of 1994 and Murder Reference No. 75 of 1994 and Crl. Revision No. 60 of 1994, heard on 3.8.1998. Pakistan Penal Code, 1860 (XLV of I860)-- —-S. 302-Criminal Procedure Code (V of 1898) Ss. 374, 410 & 439- Murder—Appeal against sentence of death awarded to accused for murder of his wife—Statuts-Presence of eye-witnesses at place of occurrence was not un-natural~Blood stained earth and oken piece of pitcher and other rticle belonging to deceased having been taken iiitufyossession by nvestigation Officer near ace currence rerm.ed all doubts egarding happening of occurrence at specified place and presence of emale witness with deceased- esence of other witness (brother of ceased) was also free of doubt-Prosecution story to the extent of trained relation of accused th his wife was supported by accused in his tatement under S. 342 Cr.P.C.-Independence and truthfulness of itnesses was tablished-Ocular account was amply corroborated from e fact that injuries were caused with sharp edged weapon-Despite eing lated to deceased witnesses were independent therefore, their vidence even if not corroborated from any other evidence was fficient o sustain conviction-Detailed analysis of evidence would show that onviction of accused under S. 302 (b) P.P.C. for arge committing urder of deceased was un-exceptionable-High Court, however, onsidering possibility of deceased (accused's wife) ving behaved ggressively with accused, converted death sentence awarded to accused nto life imprisonment. [Pp. 64 & 65] B, C & D Sardar Muhammad Ishaq Khan, Advocate for Appellant. Qazi Ahmad Naeem Qureshi, Advocate for Respondent. Sh. WaqarAzeem Siddiqui, Advocate for Complainant. Date of hearing: 3.8.1998. judgment Muhammad Nawaz Abbasi, J.-The appellant, namely, Saif Ullah son of Muzaffar Khan faced trial for the charge under Section 302 P.P.C. for the allegation of committing Qatle-Amd of Mst. Ghulam Farida, his wife on 6.3.1993 within the area of Police Station Makhad, District Attock before the learned Sessions Judge, who vide judgment dated 29.3.1994 having found the appellant guilty of the charge convicted him under Section 302 P.P.C. and sentenced him to death. He was also directed to pay Rs. 20.000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of the deceased aiid in case of default in payment of compensation to further undergo R.I. for six months. 2. The appellant has challenged his conviction and sentence through rir mal Appeal No. 47 of 1994, whereas the learned Sessions Judge has sen' Murder Reference No. 75 of 1994 under Section 374 Cr.P.C. for con . mation of sentence of death awarded to the appellant. Criminal Re\ aon No. 60 of 1994 has been filed by Khadim Hussain complainant for enl r cement of the compensation. 3. The appeal as well as Criminal Revision and Murder Reference are jeing disposed of through this single judgment. 4. The brief facts in the back-ground as contained in the statement (Ex P.C.) of Khadim Hussain complainant made before Gulfam Hussain Sub Inspector, at Kafi Chowk at 4.35 p.m. on 6.3.1993 on the basis of which a case through F.I.R. Ex. P.C/1 was registered are to the following effect:- "The complainant is the resident of Village Bhata and agricultural by profession. Mst. Ghulam Farida, sister of the complainant was married to Saif Ullah s/o Muzaffar Khan resident of the same Village about one and a quarter years back and about three months earlier, she due to strained relations with her husband left for the house of the complainant, but after 10/12 days due to the intervention of the respectables, Ghulam Farida was sent to the house of the appellant by her father. However, the relations between the spouse remained strained and about twenty days ago, the sister of the complainant again left for his house as she was given beating by her husband namely Saif Ullah. Two days ago, Noor Zaman, Chairman Zakat and Ushr Committee came to the house of the complainant for compromise who was told by the father of the complainant that after Eid, he would send his daughter to the house of her in-laws. Saif Ullah had been extending threats that if Mst. Ghulam Farida would not be sent to his house, immediately she would be done to death. Today, at Paishivela, Mst. Ghulam Farida and Mst. Sharfan, wife of the complainant had gone towards the Kassi Bhatawan for taking water and the complainant was also left for the said place with his cattle to provide them water. The moment Mst. Ghulam Farida and Mst. Sharfan reached near the Spring in the .Kassi, Saif Ullah accused armed with a Churi suddenly emerging there raised Lalkara that Mst. Ghulam Farida would be taught a lesson for living in the house of her father and inflicted a Chhuri blow on the left flank of Mst. Ghulam Farida. Thereafter, he further caused two successive Chhuri blows to Mst. Ghulam Farida on her left flank. She made an attempt to escape from the place of occurrence, but she was given two more Chhuri blows on her left arm by Saif Ullah who after causing injuries to her left the place of occurrence." 5. The complainant while taking his sister Mst. Ghulam Farida in n injured condition to the Hospital met with Gulfam Hussain, Sub Inspector (PW-9), who recorded his statement. He after preparing the complaint Ex. P.C. and injury statement Ex. P.F. of Mst. Ghulam Farida - sent her for medical examination to Rural Health Center, Chhab. He prepared rough site-plan Ex. P.G., recorded the statement of Mst. Sharfan Bibi PW and took into possession the blood-stained earth from the spot through memo Ex. P.D. He also took into possession iron bucket P-l, silver cup P-2, few pieces of broken pitcher P-3 and a shirt P-4 vide Memo Ex. P.E. On receipt of information about the expiry of Mst. Ghulam Farida in the Hospital, he prepared her injury statement Ex. P.I. for the second time and inquest report Ex. P.J. and dispatched the dead body to the mortuary for post-mortem examination. After completing the spot inspection, he got siteplans Ex. P.C/2 and Ex. P.C./3 prepared by the Patwari Halqa. Gulfam Hussain S.I. arrested Saif Ullah appellant on 17.3.1993 and during the course of investigation, he led to the recovery of blood-stained Chhuri P-8 form his residential house on 19.3.1993 which was taken into possession through memo Ex.P.L. After completing the formal investigation, he challaned the accused to face the trial. 6. Lady doctor Shahida Perveen PW-1 medically examined Mst Ghulam Farida in an injuried condition and traced the following injuries on er person:- Incised wound measuring 5.2. x 3 x 1.5 cm in left lumber egion posteriorly. An incised wound measuring 1 x 0.5 x 0.5 cm on back 3 cm ateral to spinal card line. 1. Incised wound measuring 2.5 x 1 x 1 cm in mid axillary line on left side. 2. Incised wound measuring 4 x 1 x 0.5 cm on left elbow j int posteriorly. 3. Incised would measuring 5 x 2 x 1 cm on left elbow joint anterior laterally. 7. The post-mortem examination on the dead body of Mst. Ghulam Farida was conducted by Dr. Dost Muhammad PW-2 on 7.3.1993 at 9.0 a.m. who also observed the same injuries which were found by the lady doctor at the time of medical examination of Mst. Ghulam Farida in an injured condition. Injuries No. 1 and 2 were found grievous and dangerous to life which were caused with sharp edged weapon and were sufficient to cause death in the ordinary course of nature. The remaining injuries were simple in nature.

8. The prosecution produced eleven witnesses in all in proof of the harge against the appellant including the eye-witnesses namely Khadim ussain and Mst. Shazfan Bibi. The eye-witnesses have supported the rosecution story as set down in the complaint Ex. P.C. consistently and ave corroborated each other on all material points. 9. The positive reports of the Chemical Examiner Ex. P.M. and Ex. P.M./l and that of the Serologist Ex. P.N. and Ex. P.N./l were placed on record as corroborative evidence. 10. The appellant in his statement under Section 342 Cr.P.C. enying the charge pleaded innocence. He in answer to question "Why this case against you and why the PWs have deposed against you" replied as unden- "The PWs are closely related to the deceased and also inter-se. They have purposely hecome eye-witness against me, although it was an un-witnesses crime on account of strained relations between me and them. I have been falsely involved in this case. Mst. Ghulam Farida was done to death by her paramour who wanted to take her away. He being very close relative of the complainant party was left away and 1 was named as assailant on account of mere suspicions it was an unwitnessed occurrence. Mst. Ghulam Farida deceased used to desert my house off and on without my permission as she had illicit relations with some of the person in the village. I wanted to keep her at the Dhok but she did not put her mind to live with me on which I and my parents had strained relations with the father, brother and other relatives of the deceased. Further more we wanted to decide the matter once for all and for that we had sent information to her parents that we will bring the Jirga on 27th of Ramazan for that purpose which further infuriated her parents and they falsely involved me." 11. Learned counsel for the appellant contended that the witnesses being closely related to the deceased, are interested and inimical towards the accused. He with reference to the statement of Aulia Khan (P.W. 8) argued that Khadim Hussain complainant was not accompanying Mst. Ghulam Farida when she was taken to the Hospital in an injured condition. He excluding the presence of Khadim Hussain complainant at the spot contended that the presence of Mst. Sharfan Bibi, wife of the complainant at the spot was also not believable. He pointing out the minor discrepancies in the statements of the eye-witnesses such as that the deceased and Mst. Sharfan Bibi did not use to take water from the Spring together and difference of the distance of accused given by them from the Spring and the deceased argued that the eye witnesses were not present at the spot. Learned counsel placing reliance on the suggestion put to the witnesses that the deceased was not of good character and used to visit the house of her parents with short intervals n order to see her paramour and she was killed by her paramour on her refusal to go with him who being closely related to the family of deceased, was not named in the F.I.R. and instead the appellant was substituted as an accused. Similar suggestions put to Mst. Sharifan Bibi PW-11 that Mst. Ghulam Farida had developed illicit relations with one Mushtaq who done her to death was denied by her. It was also contend d with reference to the statement of Mst. Sharfan Bibi that the women-folk of the Village jointly fetched water from the Spring in question and that nonproduction of any woman present at the Spring has made the prosecution story doubtful. 12. Learned counsel appearing on behalf of the complainant as well s the State argued that it being a broad day light occurrence having taken place at the open place at Spring and seen by the two natural witnesses, the guilt of the appellant is proved beyond doubt. They argued that the evidence does not suffer from any material infirmity to suggest a remote possibility of the innocence of the appellant, therefore, the conviction under Section 302(b) P.P.C. is unexceptionable. They further argued that the appellant having caused successive Churri blows to an innocent and helpless lady does not deserve any leniency in the matter of sentence. 13. We have heard the learned counsel for the appellant as well as the State at length and also perused the record with their assistance. The eye-witnesses account in the present case is consisted upon Khadim Hussain complainant (P.W. 10), brother of the deceased, and Mst. Sharfan Bibi, wife of Khadim Hussain complainant. The occurrence took place at 'Pashi-vela at Spring at a short distance from the residential houses of the witnesses and the deceased in Village from where the women of the Village used to take water for their domestic use. The going of the two ladies to the Spring for fetching water at the relevant time was not unnatural. It is common in villages that the ladies go together to well or Spring for fetching water, therefore, the presence of Mst. Sharfan Bibi with the deceased at the p ace of occurrence was not unnatural. The causing of death of Mst. Ghulam Farida near the Spring when she had gone to fetch the water itself was a strong proof of the presence of Mst. Sharfan Bibi, her Bhabi, with her at the relevant time. The blood stained earth and the broken piece of pitcher and other articles belonging to the deceased having taken into possession by the Sub Inspector near the Spring removed all doubts regarding happening of the occurrence at the Spring and the presence of Mst. Sharfan Bibi with the deceased. 14. The presence of Khadim Hussain, brother of the deceased with his catties in the Kassi was also free of doubt. While being cultivator, It was natural for him to take his catties for drinking water from the Kassi. However, the presence of the two eye witnesses at the place of occurrence having established is not by itself sufficient to believe them truthful witnesses. They are closely related to the deceased and we, therefore, ollowing the rule of corroboration as abundant caution examined their evidence in detail but have not been able to find out any material contradictions or discrepancies creating any doubt in the prosecution story or convincing us to believe that the appellant was not the actual culprit. The appellant in his statement under Section 342 Cr.P.C. has admitted the factum of strained relations with his wife. Therefore, the prosecution story to the extent of strained relations between the spouses is supported by the admission made by the appellant in his statement under Section 342 Cr.P.C. This would indicate that there was no other dispute between the parties except the objection of the appellant to the attitude of the deceased of not taking interest in him and the appellant for the said reason having grievance ~~" against his wife caused her murder. Thus, the motive given by the prosecution stands proved through the admission of the appellant. 15. The occurrence took place on 6.3.1993 whereas the appellant after his arrest on 17.3.1993 led to the recovery of blood-stained Chhuri on 9.3.1993 i.e. after thirteen days of the occurrence. According to the reports • --.. of the Chemical Examiner and the Serologist, the Chhuri was stained with human blood. Without commenting much on the subject, we cannot digest the argument that after lapse of thirteen days, the blood could still be deducted on the weapop of offence. Be that as it may, the sharp edged injuries on the person of the deceased having traced by the doctor as mentioned in the medical report, without proving the use of Chhuri allegedly s^ recovered from the appellant, the ocular account seeks ample corroboration from the fact that the injuries were caused with sharp edged weapon. 16. The independence and truthfulness of the witnesses is established from the fact that undoubtedly the appellant had strained elations with his wife, but the other family members had no grudge or illwill against him, as the father of the deceased made repeated attempts to rehabilitate the family by sending the deceased to the house of the appellant. Thus, it can be visualized from the circumstances that the witnesses had no reason to depose falsely against the appellant who wanted reconciliation between the appellant and the deceased. Therefore, despite being related to — — -the deceased, the eye witnesses were independent and, therefore, their evid nce even if is not corroborated from any other evidence is sufficient to sustain the conviction. We, therefore, after making a detailed analysis of the evidence are of the view that the conviction of the appellant under Section 302 (b) P.P.C. for the charge of committing the murder of Mst. Ghulam Farida is unexceptionable. 17. Considering the question of sentence, we notice that the circumstances under which the occurrence took place and the strained relations of the appellant with the deceased in the background would frustrate the appellant due to the desertion of his wife and he becoming revengeful and loosing balance probably caused injuries to the deceased upon her refusal to accept his demand of joining him. The possibility of the ___^_ deceased having behaved aggressively with the appellant being also not ruled out, we, giving the benefit of such extenuating circumstances to the appellant, are of the view that it is not a case of capital punishment. We, therefore, converting the death sentence awarded to the appellant by the learned trial Court into life imprisonment, dismiss this appeal. We also finding no reasonable ground to enhance the compensation awarded by the learned trial Court, dismiss the revision petition. The death sentence having not confirmed, the Murder Reference is answered in the negative. (K.K.F.) Order accordingly.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 66 (DB) Present: ghulam sarwar shaikh and dr. munir ahmad mughal, J J. MUNAWAR a/z'as SHABBOQ-Appellant versus STATE-Respondent Crl. Appeal No. 755 of 1993 and Cr. Reference No. of 1993 heard on 19.8.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302(b)--Criminal Procedure Code (V of 1898), S. 410-Murder- Sentence of death-Case of two versions-Legality of conviction and sentence-Both versions have to be kept in juxta-position and one favourable to defence has to be preferred of the same gets support from admitted facts and circumstances of case and appeals to common-sense— Edifice erected by prosecution would crumble down and fall to ground when tested on touchstone of admitted facts and circumstances of case- Very made of occurrence disclosed by prosecution would look doubtful- Deceased and his brother were admitted by cutting gross with sickles at the at time of attack by one person with a small knife; they were thus, in possession of effective weapon to withstand attack of convict who-was just armed with small knife, yet convict was allowed to accomplish his mission so conveniently and without any resistence and receiving any scratch- Presence of. prosecution witnesses, thus, looked highly doubtful particularly when compared to medical evidence, which run counter to ocular account relating to number of injuries-Defence version that female of their household was dragged by deceased towards sugarcane field only shelter nearby to out rage her modesty and chastity and her hue and cry attracted accused convict who in order to save family honour attacked deceased with small knife which was in his possession at that time, rings true-Prosecution version was, thus replete with discrepancies and contradiction and the same could not provide valid basis of conviction and sentence awarded to convict-Defence version as compared to that of prosecution was not only plausible, but also sound and appealed to reason-Where prosecution evidence stood rejected in its totality, statement of accused has to be accepted in its totality without scrutiny- Conviction in term of material on record had acted under impulse of grave and sudden provocation to cause death of deceased-Conviction of accused was, therefore, altered and converted from S. 302/b, to S. 302 (c) and sentence was reduced to period undergone by him-Payment of compensation was also declined to legal heirs of deceased from immoral ct of their predecessor. [Pp. 71, 72 & 73] A, B, C, D, E & F 1992 SCMR 1592 ref. Khawaja Sultan Ahmad, Advocate for Appellant. Mr.'Masood Sadiq Mirza, Advocate for Respondent. Date of hearing: 19.8.1998. judgment Ghulam Sarwar Sheikh, J.--Appellant, Munawar alias Shabhoo was charged, for, having allegedly caused Qarf-i-Amd'/intentional murder of Muhammad Mansha by inflecting knife blows upon his chest on 5th of May, 1992 in the area of Chak No. 23/J.B. within the limits of Police Station Chak Jhumra District Faisalabad. 2. Manner and mode of commission of alleged crime set up by the prosecution, as reflected by, unfolded in and gleaned out, of statement Ex. C made by Muhammad Ali complainant, brother of the deceased, and re­ terated by him at the trial as PW. 6, succinctly, stated, is as below. On fateful and eventful day, at about 4 P.M., Muhammad Ali omplainant, Ghulam Muhammad and Muhammad Mansha were cutting arseem fodder in the field belonging to Nau-Bahar Noon. Mazhar came here and wanted to extract sugar-cane from the field, too, owned by Nau- Bahar Noon. Muhammad Mansha did not allow to do so, causing annoyance, to Mazhar, who, went back. Shortly thereafter appellant Munawar alias Shabboo reached there raising "lalkara" to teach a lesson to Muhammad Mansha, as, he had forbidden Mazhar to extract sugar-cane. Such voice of appellant attracted complainant Muhammad Ali and his companion Ghulam Muhammad and within their sight, appellant, caused two knife blows on chest of Muhammad Mansha, who, fell down on the ground. In the mean­ time, Nau-Bahar Noon also arrived there. However, appellant ecamped/made good his escape along-with weapon of offence and Muhammad Mansha succumbed to his injuries at the spot. Leaving dead body of his brother Muhammad Mansha at the lace of occurrence in care of PW7, Ghulam Muhammad and others, Muhammad Ali complainant, proceeded to report the matter to olice. Maqsood Ahmad, Sub-Inspector (PW. 9) met him in Chak No. 102/JB where he had gone in connection with patrol, duty. Complainant made statement Ex. PC before PW 9 Maqsood Ahmad, Sub-Inspector. After sending it to Police Station Chak Jhumra through PW 8 Manak Ali Constable No. 2560 formal registration of the case, Maqsood hmad, Sub-Inspector went to place of occurrence, prepared injury statement Ex. PF and inquest report Ex. PF/1 of Muhammad Mansha deceased and despatched his dead body to morgue for autopsy, under the escort of PW. 2 Falak Sher Constable No. 3812. He also inspected the place of occurrence and collected blood stained earth from the spot, made it into a sealed parcel, and secured it vide Memo. Ex. PE, duly attested by the witnesses. Statements under Section 161 Cr.P.C. of witnesses were also recorded/taken down by him. 6. Post mortem examination, Carbon copy Ex. PB, of dead body of Muhammad Mansha was conducted by PW. 3, Dr. Abdul Shakoor Gill, who found following three injuries, caused by sharp edged weapon on the person of deceased:- 1. A stab wound 1/2 cm x 1/2 cm probe passed into chest cavity at front of left side chest 3^ cm below left ipple and 8 cm away from midline. The stab injuries skin sub­ utaneous tissue intercastil muscles of left side of front of chest. Injured left pleura after passing through 10 th intercostil past anteriorly. Then it injured left lung at front in middle. Left lung was congested. Left side of pleura! cavity contained one litter of blood. 2. A stab wound 1 cm x 1/2 cm x probe passed into chest cavity at front of left side of chest 3 cm below injury No. 1 and 6 cm away from midline. It injured skin, soft tissue and passed through llth intercostil space at front and injured pericardium. Anterolaterally and injured left ventricle. Both sides of empty of blood in heart. 3. A stab wound 1/2 cm x 1/2 cm muscle deep at front of right side chest 7 cm above right nipple 5^ cm away from, midline. It injured skin soft tissues and muscle at front of right side chest." 7. In the opinion of doctor, cause of death was haemorrhage and shock due to Injuries No. 1 and 2, which, were sufficient to cause death in the ordinary course of nature individually as well as collectively. Approximate and probable time elapsing between injuries and death was stated by the doctor to be "few minutes" and death and post mortem about 18 hours. 8. After autopsy, Investigating Officer, took into possession last worn clothes i.e. blood stained shirt P-l and Shalwar P. 2 of deceased by means of memo. Ex. PA and got prepared formal site plan Ex. PH and Ex. PH/1 of place of occurrence from PW 10 Muhammad Javed Halqa Patwari. 9. Appellant/accused Munawar alias Shabboo was arrested on 13.5.1992. On next day i.e. 14.5.1992, while in police custody, he led to the recovery of knife P. 3 from the dera of Ghulam Hassan Noon. It was made into a sealed parcel and secured by Memo. Ex. PD. Rough site plan of place of recovery of knife P 3 Ex. PG was also prepared. 10. As indicated above, proceedings commenced with framing of the charge with one head under Section 302 PPC, to which, appellant pleaded not guilty and claimed trial. 11. To substantiate its version, ten witnesses, in all, were examined by the prosecution. Complainant Muhammad Ali (PW. 6) and Ghulam Muhammad (PW 7) furnished ocular account of the incident. Motive set up in the case was also narrated by both of them. They further testified about recovery of knife P. 3 at the instance of appellant. PW3, Dr. Abdul Shakoor Gill provided Medical Evidence. Various steps taken by him during the investigation of this case were enumerated by Sub-Inspector Maqsood Ahmad PW. 9. Remaining evidence is more or less of formal nature. 12. In his statement under Section 342 Cr.P.C. the appellant candidly confessed to have caused injuries to Muhammad Mansha, ut, claimed to have been constrained to resort to this measure under the sting and impulse of grave and sudden provocation. While nswering question No. 6 therein, he maintained that:- "I am innocent. The case against me is false. In fact on the day of occurrence it was near sunset time when I heard the shrieks of my Bhabi Mst. HaJima and I ran towards the sugar cane field where I wound the deceased had caught Mst. Halima and in order to save the family honour and in order to save Mst. Halima from being raped, I inflicted injuries upon the deceased." 13. However, he, opted not to appear and make any statement as envisaged by the provisions of law embodied in Section 340(2) Cr.P.C. Mst. Halima Bibi was produced in defence as solitary witness. 14. Being "two version" case and placing both of it in juxta-position, earned trial Court, on culmination of trial, after passing usual phases, arrived at the following conclusions:- "The further question arises as to whether the accused has been able to prove defence version or there is any reasonable possibility of his version being true. But the same seems to me a fabricated one after-thought and has been taken by the accused to save his kin, for the reasons that he did not state in his statement under Section 342 Cr.P.C. that it was his first version which he disclosed before the 1.0. during the investigation in this case. After the murder of Muhammad Mansha deceased, knife P3 was admittedly with the accused Munawar alias Shabboo and he did not produce the weapon before the police voluntarily to prove his bonafides. The accused himself did not surrender before the police, he was arrested by Maqsood Ahmad SI, I.O. of this case on 13.5.1992 after 8 days of the occurrence. These circumstances also implicate the accused with the commission of the crime. DW1, Mst. Halima although deposed in line of the defence plea but her statement is not worth reliance. She stated that she made a statement before the I.O. in defence of the accused who did not record her statement but she never made any application to the higher authorities of the police against the I.O. Further more she did not lodge any report in the Police Station against Muhammad Mansha deceased. She appears to me a wholly tutored witness. Thus, I am convinced with the prosecution version of the occurrence which rings true and there is no reasonable possibility of the defence version being true which is concocted and after-thought." 15. Such inference/conclusion led to the conviction of appellant as nder:- "Munawar alias Shabboo accused is held guilty under Section 302(b) PPC because the sentence of Qisas cannot be imposed as the evidence of the prosecution is not available in accordance with the injunction of Islam as required under Article 17 of Qanun-e-Shahadat. Therefore, Munawar alias Shabboo accused is convicted under Section 302(b) PPC and is sentenced to death as Tazir and a fine of Rs. 30,000/-, in default thereof to further undergo R.I. for 2 years. The amount of fine if recovered half of it shall be paid to the legal heirs of the deceased as compensation as required under Section 544-A Cr.P.C." 16. In wake thereof, details of recovery and other factors need not be ecapitulated. Occurrence, its time and venue, having gone un-disputed, matter stands cut down to limited and solitary proposition, if the case falls within the ambit and compass of Section 302(c) or Section 302(b) P.P.C., nder which, the appellant stands convicted and sentenced to "Death" as detailed supra and against which he has preferred this appeal and the matter has been referred under Section 374 Cr.P.C. Obviously quantum of sentence is also involved. 17. Salutary and cardinal principle of law for just decision of a case of "two versions" stands enunciated in Muhammad Yunis vs. State (1992 SCMR 1592). Following illuminating observation made therein furnish „ guide-line in this context:-"It is by now well established that in a situation like the one in hand, both the versions have to be kept in juxta-position and the one favourable to the defence is to be preferred to, if it gets support from the admitted facts and circumstances of the case and appeals to common sense." ^ 18. When tested on the touch-stone, so laid, by august Apex Court, edifice erected by the prosecution crumbles down and falls to the ground like house of Cards and in no way, could be taken, to have been established by the data and material on record. 19. Every mode of occurrence disclosed by P.Ws look doubtful. Both W. 6 and PW. 7 alongwith deceased were allegedly cutting Barseem fodder " with sickles. In other words PW. 6, PW. 7 and even deceased were in possession of effective weapons to with-stand attack of convict, who, was ^ '~armed with small knife as borne out of sketch Ex. PG of knife P. 3. He could easily be overpowered, but amazingly, he was allowed to accomplish his mission so conveniently and without any resistance and receiving any ratch. It has been rightly pointed out by learned Counsel for the appellant " that even clothes of any of P.Ws were not stained with blood. PW. 6 is real brother of deceased and two persons were on his flanks, but, astonishingly, all of them witnessed the occurrence as silent spectators. Prosecution story is rendered uncredible on this source alone. 20. According to prosecution version, deceased and PWs were "cutting Berseem fodder. In natural course of events, assailant should have one to that field and not sugar-cane field, where, deceased is not supposed to await arrival of appellant by any stretch of imagination. Very venue of incident is sufficient to falsify prosecution version, which, even otherwise is belied by absence of any bushel on the spot. Undoubtedly no fodder was taken into possession. These lapses go a long way to suggest that the incident had not taken place in the manner claimed by the prosecution and none of PWs was present there. 21. Even timing of 4 P.M. lends fortification to this belief as no body cuts fodder in such agonising heat, Hence presence of PWs looks highly doubtful particularly when compared to Medical Evidence, which, runs counter to ocular account relating to number of injuries. ~^" 22. There is yet another aspect of the matter. Deceased is alleged to have restrained Mazhar, who, took ill. But appellant is stated to have emerged on the scene to teach a lesson to deceased. Admittedly, no sugar­cane was extracted, nor vestiges of extraction were shown to Investigating Officer. Moreover Mazhar and not the appellant was restrained. But for retaliation only the convict chose to come, whereas, Mazhar disappeared. When dived deep, it comes on surface that extraction of sugar-cane by Mazhar or that he was forbidden, which, by itself is of provocative nature, is manifestly a ruse conveniently tailored to put the rope around the neck of appellant and, in no way, could be the cause of such gruesome act and shoe pinched some-where else. Nau-Bahar Noon also did not come forward to support the prosecution version and was given up as having been "won over". On the other hand, Mst. Halima and the convict sprouted that Mansha deceased had attempted to out-rage the modesty and chastity of Mst. Halima DW 1 and pulled/dragged her to sugar-cane field only shelter near-by for such a nefarious act. As satisfied by DWI, and claimed by appellant, her hue and cry, attracted the convict, who attacked Muhammad Mansha with small knife, he, was perhaps having at that time, to save family honour in the course of natural re-action. Needless to say that even attempt in this context furnishes provocation so as to bring the case under Section 302(c) PPC. 23. Above enumerated factors and misty nature of such a trivial motive set up by prosecution leave no room for doubt that the prosecution story has no legs to stand, erected superstructure is full of crevices; prosecution version is replete with discrepancies and contradictions, rampant with fabrications, patch work and snags, and rather stands impaired beyond repair. In no way, it could provide and afford valid basis of conviction and sentence awarded to the appellant. 24. As against it, defence version is not only plausible, but also sound and appeals to reason and common sense. Mere fact that appellant chose not to go to Police Station after occurrence, surrender voluntarily with weapon of offence hardly go to discredit his confession or lend support to cause of prosecution any way. Claim of DWI, in clarion voice, of having divulged true facts to Investigating Officer, who, allegedly declined to record her statement is sufficient to categorise appellant's claim as to be his "first version". 25. Be that as it may, where prosecution evidence stands rejected in its totality, statement of accused has to be accepted in its entirety without scrutiny as held consistently by august Supreme Court. It has been expounded in Rahim Bakhsh vs. Crown (1952 F.C. 1) where conviction is based entirely on statement of accused then that statement in toto should be taken into consideration. 26. Appearance of Mst. Halima as DW 1, even at stake of exposure and great risk to the honour of her husband and parents, has the effect of putting last nail in the coffin of prosecution version. 27. Taking all these aspects into consideration, we are of considered opinion that appellant acted under the impulse of grave and sudden rovocation to cause death of Muhammad Mansha and denial of such plea to appellant by learned trial Court, is palpably fallacious. Resultantiy appeal is partly accepted, conviction of appellant is altered and converted from Section 302(b) to Section 302 (c) P.P.C. and sentence is reduced to the period already under-gone by the appellant, who, seemingly, is behind the bars for the last more than six years. Sentence of fine imposed upon him is also set aside. Nevertheless we do not feel any legal or moral compulsion to direct payment of compensation to legal heirs of deceased inasmuch as awarding thereof may tantamount to reward for an immoral act of their predecessor. 28. As a sequence thereto, appellant shall be released forthwith, if, not required to be detained in any other case. 29. Murder Reference No. 301 of 1993 is, accordingly, answered in the negative. (K.K.F.) Appeal partly accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 73 (DB) Present: shaikh abdur razzaq and zafar pasha chaudhry, JJ. ABDUL SATTAR-Appellant versus STATE-Repsondent Crl. Appeals Nos. 301/93 and 113-J of 1993 and Murder Reference No. 161 of 1993, heard on 16.9.1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/109-Qanun-e-Shahadat (10 of 1984), Art. 30-Murder~Case against accused was based in circumstantial evidence which consisted of extra-judicial confession and evidence of recoveries-Extra-judicial confession consisted of statement, of interested witnesses; which for want of independent corroboration could not be made basis for passing order of conviction-Motive part of prosecution version was also not proved because of different versions, of prosecution witnesses-Rule as to quality of circumstantial evidence which could be sufficient for conviction were that facts proved must be incompatible with innocence of accused and incapable of explanation upon any reasonable hypothesis than of guilt-­ Prosecution had miserably failed to prove all link, of chain required in case of circumstantial evidence-Prosecution, thus failed to establish its case against accused-Accused were directed to be released forthwith if not required in any other case. [Pp. 77 & 78] A, B, D & E (ii) Qanun-e-Shahaidat, 1984 (10 of 1984)-- —-Arts. 18 & 19-Pakistan Penal Code 1860 (XLV of 1860), S. 302/109- Circumstnatial evidence-Essentials-Conviction could be made on basis of circumstantial evidence, in absence of direct vidence, if the same xcludes all hypothesis of innocence of accused-Circumstantial evidence must be incompatible with that of innocence of accused-Such evidence should be incapable of ny explanation of any other reasonable hypothesis than guilt of accused-Essentials for proving case through essential evidence would be; that circumstances from which conclusion is to e drawn should be fully established; that all facts should be consistent with hypothesis; circumstances should be of conclusive nature; and circumstances should lead to moral certainty and ctually include every hypothesis but one proposed to be proved. [P. 77] C Sardar Muhammad LatifKhan Khosa, Advocate for Appellant. Mian Ghulam Hussain, Advocate for State. Date of hearing: 16.9.1998. judgment Shaikh Abdur Razzaq, J.-This judgment will dispose of Murder Reference No. 161/93, Criminal Appeal No. 301 and Criminal Appeal No. 113-J/93, against judgment dated 6.5.1993 passed by Mr. Saif-ur-Rehman Khan, Additional Sessions Judge, Faisalabad, Camp at Samundri, whereby he convicted Abdul Sattar @ Abdul son of Bashir Ahmad under Section 302-B PPC and sentenced him to death as Tazir and further directed him to pay a sum of Rs. 10,000/- as compensation under Section 544-A Cr.P.C. He further convicted Mst. Maftooran widow of Pir Ali under Section 302/109 PPC and sentenced her to imprisonment for life. She was however ordered to pay a sumjof Rs. 5,000/- as compensation under Section 544-A Cr.P.C. payable to the legal heirs of the deceased. Benefit of Section 382-B Cr.P.C. was, however, extended to the appellants/accused. The accused Shaukat and Niaz were given benefit of doubt and were acquitted. Similarly the appellants/accused Abdul Sattar and Mst. Maftooran were acquitted of the charge under Section 201 PPC. 2. The instant case has been registered vide FIR No. 165 dated 1.8.1991 on the basis of statement of Muhammad Sabir son of Muhammad Bux, brother of Pir Ali deceased, at Police Station Mamunkanjan District Faisalabad. 3. Succinctly stated the facts of prosecution stoiy as unfolded in FIR Ex. PC/1 are that 12/13 years prior to this occurrence, Pir Ali deceased was married to Mst. Maftooran accused. About 5/6 months ago she developed illicit relations with Abdul son of Bashir accused. On coming to know abo t their liason Pir Ali deceased abstained Abdul from visiting his house and passing his Bazar. About 8/9 days prior to this, incident Abdul accused was stopped by the deceased when he passed through the bazar. It resulted into exchange of hot words between them. The matter was patched up by the intervention of complainant and his brother Allah Ditta. This annoyed Abdul who left the said place issuing threats of dire consequences for said insult. It is alleged that 5/6 days prior to this incident Pir Ali deceased was missing from his house. The complainant-Muhammad Sabir and Allah Ditta PW approached Mst. Maftooran to enquire about him. After a lot of hesitation she informed them that Pir Ali had left for Kamalia about 5 days back and that Abdul, Shaukat and Niaz had come to her and inquired about Pir Ali and she disclosed to them about the departure of her husband. She further informed the complainant and Allah Ditta PW that all the three expressed their intention to kill Pir Ali and she also subscribed to their intention and further told that it would be better if he be done to death and thereafter all the three left that place. On that very day (when complainant Muhammad Sabir and Allah Ditta PW had contacted Mst ; Maftooran) she was told by Abdul accused that he, Shaukat and Niaz had murdered Pir Ali and had thrown his deadbody in the canal about four days ago. The complainant alongwith Kamir, Ahmad Ali and Rahim met Abdul, who after great hesitation admitted that he, Shaukat and Niaz and murdered Pir Ali and had thrown his body in the canal. The complainant was about to leave in search of deadbody, when on the receipt of information about the recovery of deadbody, he, Kamir and Ahmad Ali etc. made for Police Station and met Manzoor Hussain Shah ASI, who recorded his complaint Ex. PC. 4. Manzoor Hussain ASI PW-9, sent the complaint Ex. PC to the Police Station for formal registration of FIR Ex. PC/1 and made for the place where the deadbody was lying. He prepared injury statement Ex. Pk , iaquest report Ex.PL , despatched the deadbody through Muhammad J^lawaz Constable for autopsy. He prepared rough site plan of that place Ex. PM, secured the identity card deceased P6 vide memo Ex. PN. He also collected last worn clothes of deceased vide memo Ex. PD. Subsequent investigation was carried out by Saleem Muhammad S.I. (PW-11) who secured Cycle P-3, Churi P-4 and Kassi P-5 vide memo Ex. PF. He also secured piece of skin, hair of head of deceased as well as blood stained earth vide memo Ex. PG. Mst. Maftooran accused pointed out the place where Pir Ali was murdered and memo Ex. PH was prepared of that place. He also prepared the rough site plan Ex. PO of the place of occurrence. On completion of investigation case was sent up for trial. 5. A charge under Section 302/201/109/34 PPC was framed against Abdul, Shaukat, Niaz and Mst. Maftooran to which all of them profession innocence and claimed trial. 6. In order to bring home guilt to the accused prosecution examined PW-1 Dr. Akram Ali Dogar who on 1.8.1991 at 4.00 p.m., conducted post mortem examination on the deadbody of Pir Ali and found the following injuries on his person:- 1. Incised wound 3 cm x 1 cm x trachea cut on front of neck at its middle part. 2. Incised wound 5 cm x 2 cm x chest cavity on right side of chest 4 cm inner to right nipple. 3. Incised wound 5 cm x 2 cm x abdominal cavity in right hypochondrium. 4. Incised wound 6 cm x 3 cm abdominal cavity at the upper part in the midline. In his opinion death was due to haemorrhage and shock due to injuries referred above and which were ante mortem . He gave the probable time between injuries and death as immediate whereas between death and post mortem examination 3 to 4 days. He produced corbon copy of post mortem report Ex. PB and sketch of injuries Ex. PB/1. Both Muhammad Sabir PW-2 and Allah Ditta PW-3 supported the prosecution version appearing in complaint Ex PC. PW-3 Allah Ditta also attested memo of recovery Ex. PD pertaining to the recovery of clothes of deceased. PW-4 Kamir deposed about extra judicial confession of Abdul and Shaukat accused regarding committing murder of Pir Ali and throwing his deadbody in the canal. PW-5 Murad is witness of recovery of Cycle P-3, blood stained Chhuri P-4 and Kassi P-5, but he did not support prosecution version and was declared hostile. PW-6 Naseer Ahmad is a marginal witness of memo Ex. PF as well as that of Ex. PG referred above. He is also a marginal witness of Memo Ex. PH relating to the place pointed out by Mst. Maftooran to. be the place where deceased was murdered and a bundle of his dead body was prepared. Ata Muhammad PW-7 and Muhammad Yaqoob Headconstable PW-8 are formal witnesses of delivery of parcels in the office of Chemical Examiner as well as that of recording formal FIR Ex. PC/1 respectively. PW-9 Manzoor Hussain Shah ASI is the Investigating Officer whose evidence has already been discussed above. PW-10 Babar Nadeem Drafts-man prepared site plan Ex. PO and Ex. PO/1 and handed over the same to the Investigating Officer. PW-11 Saleem Mehmood S.I. is another Investigating Officer whose evidence has also been discussed above. PW-12 Khizar Hayat Khan is the witness of recovery of Identity Card secured vide memo Ex. PN. However he did not support the prosecution version and was declared hostile. Thereafter the learned DDA produced the report of Chemical Examiner Ex. PQ and of Serologist Ex. PR and closed the prosecution evidence vide his statement dated 17.4.1993. 7. When examined under Section 342 Cr.P.C. all the accused denied the prosecution version and stated that they have been implicated in this case falsely. None of them chose to produce defence evidence and to examine himself under Section 340(2) Cr.P.C. 8. After going through evidence produced by prosecution, the trial Court convicted and sentenced the appellants-accused vide judgment under appeal. 9. We have heard learned counsel for the appellants and given our passionate thoughts to the respective arguments addressed by the learned counsel for the parties. It). Tne case oi prosecution agam^i 'ftife HppiSsn 4 ® 'is, circumstantial evidence, which is of following nature:- (1) Evidence of extra judicial confession and (2) The evidence of recoveries. 11. So far as evidence of extra judicial confession is concerned, that consists of statements of Muhammad Sabir complainant (PW2), Allah Ditta ( PW3) and Kamir (PW4). Both PWs 2 and 3 are brothers inter se and are also brothers of the deceased Pir Ali, whereas PW-4 Kamir is their brotherin-law, as his wife Mst. Maryam is their sister. Thus the so-called extra judicial evidence consists of statements of interested witnesses; which for want of independent corroboration can't be made a base for passing an order of conviction. Again the stand of prosecution is that Abdul and Mst. Maftooran had been carrying on with each other and this afforded a motive for committing the murder of deceased. Even this motive part of prosecution version is not proved from the statements of PWs 2 and 3. It is admitted by PW-2 that he learnt about the liason between the accused-appellants about 5/6 months prior to occurrence, whereas PW-3 states that he came to know about their affair only on the day when Abdul exchanged hot words with the deceased. It is thus clear that motive in the instant case is not proved and it appears that the same has been coined to involve the appellants in this case. Similarly evidence of recovery of articles P-3 to P-5 in no way connect the appellants with the commission of this offence. There is no doubt that conviction can be made on the basis of circumstantial evidence. In absence of direct evidence, if it excludes all hypothesis of innocence of the accused. The circumstantial evidence must be incompatible with that of innocence of accused. It should be incapable of any explanation of any other reasonable hypothesis than that guilt of accused. For proving a case through circumstantial evidence following four essentials are required:- (1) circumstances from which conclusion is to be drawn should be fully established; (2) all facts should be consistent with hypothesis; (3) circumstances should be of conclusive nature; and (4) circumstances should lead to moral certainty and actually exclude every hypothesis but one proposed to be proved. Rules as to quality of circumstantial evidence which can be sufficient for conviction is that facts proved must be incompatible with innocence of accused and incapable of explanation upon any reasonable hypothesis than of guilty. 13. Now the question emerges, whether in the instant case the rosecution has proved all the links of chain as required in the case of circumstantial evidence. We are afraid prosecution has miserably failed to prove the said links. The only piece of evidence against the appellants consists of their extra judicial confession, which as held earlier does not ring true. There remains the evidence of recovery hut that also does not appeal to reason. It has come on record that initially the investigation was conducted by Manzoor Hussain ASI, PW-9 and it remained with him till 20.8.1991 and by the date nothing was recovered at the instance of accused Abdul. As soon as the investigation was entrusted to Saleem Muhammad SI, (PW 11) the accused Abdul is said to have led to the recovery of articles secured vide memo Ex. PE , F & G. All these memos have been attested by PW-6 Naseer Ahmad, who is also real brother of complainant (PW-2) and Allah Ditta (PW 3). 14. It is also pertinent to point out that it has come on record through the statement of PW-2 Muhammad Sabir that deceased Pir Ali used to remain out of house 4/5 days even in the past. Thus the disappearance of deceased on the fateful day was not unusual. It appears that some unknown person committed the murder of deceased and threw his deadbody in the canal. As soon as the complainant came to know about this fact, he impleaded the accused Abdul as well as Mst. Maftooran, as they were suspected of carrying on with each other. 15. The upshot of above discussion is that prosecution has failed to establish its case against the appellants-accused as such appeals are accepted and Murder Reference is answered in negative and death sentence is not confirmed. Appellants are directed to be released forthwith if not required in any case. (AAJS) • Accused acquitted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 78 Present: SHAIKH ABDUR RAZAQ, J. ALI SHER-Appellant versus STATE-Respondent Criminal Appeal No. 688 of 1997, heard on 22.9.1998. Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302--Conviction/sentence-Challenge to-It is prosecution's own stand that appellant suspected his wife for having illicit relation with M~ Complainant has also made this admission and similarly it has been stated by appellant that on fateful day he saw his wife together with his paramour-It is clear form evidence brought on record that appellant/accused ommitted murder of his wife as a result of sudden and grave provocation i.e., Ghairat, as such his case does not fall within purview of S. 302-b PPC, but it squarely falls under S. 302(c) PC- Sentence of imprisonment for life is reduced to 5 years, R.I.~Appeal disposed of accordingly. [Pp. 81 & 82] A & B Mr. Muhammad Ali Sial, Advocate for Appellant. Mr. Muhammad Ilyas Jhamat, Advocate for State. Date of hearing: 22.9.1998. judgment This appeal is directed against the judgment dated 21.10.1997 passed by Mr. Muhammad Hanif Khan, Additional Sessions Judge, Faisalabad, whereby he convicted the appellant/accused -under Section 302 PPC and sentenced him to imprisonment for life. However he was given benefit of Section 382-B Cr.P.C. 2. Briefly stated the facts are that Ms?. Khurshid Bibi is daughter of Pehlwan complainant who married her with Ali Sher appellant/accused. On 9.7.1994 at about Degarvela, he alongwith Qutab son of Muhammad and Khadim son of Varyam were sitting in the house of his son in-law Ali Sher. Exchange of hot words took place between Ali Sher and Mst. Khurshid Bibi, upon which Ali Sher brought out Carbine from his residential room and fired two shots hitting Mst. Khurshid Bibi on her neck and left wrist. The incident was witnessed by the complainant as well as Qutaba and Khadim. They raised cries upon which Ali Sher succeeded in decamping from there waving Carbine in his hand. They found that Mst. Khurshid Bibi had succumbed to the injuries. The motive behind this occurrence is that Ali Sher suspected his wife for carrying on illicit relations with Mushtaq son of Khushi Muhammad. Leaving Qutab and Khadim to guard the dead body, he made for the Police Station to lodge report. Asghar Ali SI/SHO (PW9) met him on Chowk Killianwala, who on the basis of his statement recorded complaint Ex.PC and sent the same to the Police Station for formal registration of case through Bahawal Sher Constable. He then made for the place of occurrence, inspected the dead body, prepared statement of injury Ex. PF, inquest report Ex. PG, inspected the site vide memo Ex.PH and secured blood stained earth vide memo Ex. PI. He despatched the dead body for post mortem examination. On 10.7.1994 last worn clothes of the deceased PI to P4 were produced before him which he secured vide memo Ex. PB. On 11.7.1994 he got the site plans Ex. PE and Ex. PE/1 prepared through Aurangzaib Draftsman (PW 9). He handed over the parcels to Moharrir/HC. On 17.7.1994 he arrested the accused who led to the recovery of Carbine P5 and cartridge P6 which he secured vide Memo Ex. PD and prepared site plan of place of recovery Ex. PD/1. After usual investigation the case was sent up to the Court for trial. 3. A charge under Section 302 PPG was framed against the accused to which he pleaded not guilty and claimed trial. 4. To prove its case prosecution examined PWs 1 & 2 Naseer and Manzoor, who are witnesses of identification of dead body of Mst. Khurshid Bibi but they have not supported the prosecution version and have been declared hostile. Prosecution also examined PW 3 Qutab and PW 4 Khadim who are the alleged eye witnesses but they have also not supported the prosecution version and have been declared hostile. PW 5 Dr. Liaqat Ali deposed that he conducted post mortem examination on the dead body of Mst. Khurshid Bibi on 10.7.1994 and found 4 fire arm injuries and one lacerated wound on her person. He issued post mortem examination report Ex. PA and pictorial diagram Ex. PA/1. According to his opinion all these injuries were anti mortem and were inflicted by fire arm except Injury No. 5. The death was due to shock and haemorrhage as a result of Injuries Nos. 1 to 4. PW 6 Nazar Muhammad Constable deposed hat he was handed over the dead body of Mst. Khurshid Bibi on 10.7.1994 for post mortem examination. After post mortem examination he produced her last worn clothes Ex. PI to Ex. P4 which were secured by the Investigating Officer vide memo Ex. PB. He further deposed that on 17.7.1994 the appellant/accused led to the recovery of Carbine P5, cartridge P6 which were secured vid memo Ex. PD which bears his signatures. On 25.7.1994, he further deposed, he was handed over two parcels consisting of blood stained earth and vaginal swabs for onward transmission to the office of Chemical Examiner which he delivered there intact. PW7 Pehlwan is complainant of this case and has supported his version appearing in complaint Ex. PC. PWS Bahawal Sher is another witness of recovery of Carbine P5 and cartridge P6 which were secured vide memo Ex. PD. PW9 Aurangzaib visited the place of occurrence on 11.7.1994 and prepared site plans Ex.PE and Ex.PE/1 and handed over the same to the I.O. PW 10 Tanvir Asghar HC deposed that on 9.7.1994 on the basis of complaint Ex. PC, he recorded formal FIR Ex. PC/1. He further deposed that he was handed over two parcels consisting of blood stained earth and swabs by the I.O. for keeping the same in the Malkhana and he handed over the said parcels to Nazar Muhammad Constable on 25.7.1994 for its delivery in the office of Chemical Examiner, Lahore. PW 11 Asghar Ali is the Investigating Officer whose evidence has already been discussed above. The learned D.D.A. produced report of Chemical Examiner Ex.PJ and of Serologist Ex. PK and closed the prosecution evidence, vide his statement dated 25.4.1997. 5. When examined under Section 342 Cr.P.C. the accused denied the prosecution version and stated that illicit relations have been going on between Mst. Khurshid Bibi and her paramour namely Mushtaq son of Khushi. On the fateful day Mst. Khurshid Bibi deceased and said Mushtaq were found together, therefore, Mst. Khurshid Bibi was murdered by any member of her family on account of Ghairat and family honour. He further stated that he was innocent and had heen involved by the police with the connivance of complainant. • 6. After going through the evidence produced by the prosecution, the learned trial Court convicted and sentenced the appellant vide judgment under appeal. 7. Arguments have been heard and record perused. 8. It is submitted by the learned counsel for the appellant that as per contents of the complaint the incident was witnessed by complainant as well as Qutab PW3 and Khadim PW4, that both Qutab and Khadim PWs have not supported the prosecution version and consequently have been declared hostile, that there remains the solitary statement of the complainant in the field implicating the appellant/accused for the commission of murder ofMst. Khurshid Bibi deceased, that as per contents of complaint Ex. PC, it is clear that accused suspected the deceased for carrying on illicit relations with Mushtaq son of Khushi, that this very fact stands evident even from the statement of appellant/accused recorded under Section 342 Cr.P.C., that although appellant/accused has alleged his involvement in this case as false yet it is spelt out from the evidence on record that appellant/accused had committed the murder of deceased Mst. Khurshid Bibi as he found her together with Mushtaq son of Khushi on the fateful day, that the murder of Mst. Khurshid Bibi is the result of sudden and grave provocation, as such he cannot be saddled for "Qatl-i-Amd" of Mst. Khurshid Bibi and cannot be punished under Section 302-B PPC and his case squarely falls within the ambit of Section 302-C PPC, that in such cases the maximum sentence awarded, ranges from 3 to 5 years and relied upon Ghulam Yasin and two others vs. The State (PLD 1994 Lahore 392), Akbar - vs. The State (1997 P.Cr.LJ 1887 Lahore), Muhammad Ishaque @ Baig vs. The State (1998 P.Cr.L.J. 1110 Lhr.), Muhammad Ayub vs. The State (1997 P.Cr.L.J. 2056 Lahore) wherein the sentence of life imprisonment has been reduced to 5 years. He further relied upon Saeed Ahmad vs. The State (1996 P.Cr.LJ 1016 Lhr.) and Fateh Muhammad @ Fattu vs. The State (PLD 1967 Lahore 579) wherein the sentence awarded ranges between 3 to 4 years. He has also relied upon Ghulam Farid vs. The State (1997 P.Cr.L.J 1411 Lhr.) where under the present circumstances the accused has been acquitted. He thus submitted that sentence awarded to the appellant/accused may be reduced to 5 years and the appeal be disposed of accordingly. 9. On the other hand, learned counsel for the State while opposing the appeal and supporting the conviction and sentence, has submitted that the element of Ghairat is not apparent as it is not a defence plea. Learned counsel for the State has also placed reliance on The State vs. Abdul Waheed and another (1992 P.Cr.LJ 1596) and Abdul Hague vs. The State (PLD 1996 S.C.I). 10. The argument of the learned counsel for the State that the element of Ghairat is not apparent, has no force as it is the prosecution own stand that the appellant suspected his wife for having illicit relation with Mushtaq. The complainant has also made this admission and similarly it has been stated by the appellant that on the fateful day he saw his wife together with his paramour i.e. Mushtaq son of Khushi Muhammad. I am convinced that the appellant acted in Ghariat and the question is whether the conviction of the appellant u/S. 302(b) PPC and the sentence of life imprisonment as recorded by the trial Court is justified in the circumstances. 11. In Ghulam Yasin and two others vs. The State (PLD 1994 Lahore 392), 1997 P.Cr.L.J 1887 Lhr., 1998 P.Cr.LJ 1110 Lahore and 1997 P.Cr.LJ. 2056-Lahore, (supra) under these circumstances, sentence of imprisonment for life has been reduced to 5 years. In other cases 1996 P.Cr.LJ. 1016 Lahore and PLD 1967 Lahore 579 the sentence of mprisonment for life was reduced to three to four years. 12. The citations referred above, have a tendency to justify imposition of lesser penalty for an offence involving element ofGhairat. On a careful consideration of the facts and the evidence of the present case I am of the firm view that appellant acted under Ghairat for which he deserves to be dealt with from an angle different from one normal criminal acts are treated and in these circumstances smaller sentence would meet the ends of justice. There is no doubt that he has not taken a definite plea to the effect that he committed the murder of his wife out of Ghairat yet he has candidly stated in his statement recorded u/S. 342 Cr.P.C. that on the fateful day, both, his wife Mst. Khurshid Bibi and Mushtaq son of Khushi were found together. He has however stated that some member of the family of deceased had committed her murder. This contention of appellant/accused hardly stands to reason. After seeing his wife with Mushtaq, it could not be possible for the appellant to remain a silent spectator of that ugly scene and he must have resorted to the act attributed to him. It is thus clear from the evidence brought on record that appellant/accused committed the murder of his wife as a result of sudden and grave provocation i,e, Ghairat, as such his case does not fall within tha purview of Section 302-B PPC, but it squarely falls under Section 302(c) PPC. Accordingly the conviction under Section 302-B PPC is altered to that under Section 302-C PPC and the sentence of imprisonment for life is reduced to 5 years' R.I, The benefit of Section 382-B Cr.P.C, is however extended to the appellant, 13. With this modification in the sentence, the appeal is disposed of accordingly, (A,S.) Appeal partly accepted,

PLJ 1999 Cr PLJ 1999 Cr.C. (Peshawar) 83 [D.I. Khan Bench] Present: malik hamid saeed, J. AZAD KHAN and others-Appellants " versus STATE and others-Respondents » Crl. Appeal No. 43 1997 of decided on 12.5.1998. Pakistan Penal Code, 1860 (XLV of 1860)- —-S. 302/324/148/149--Criminal Procedure Code (V of 1898), S. 410- Conviction of accused (persons) on charge of murder-Validity-Witnesses produced by prosecution had corroborated in substance prosecution version-No previous enmity was noticed which could have prompted deceased to falsely charge accused—Being co-villagers accused were known to deceased-Recovery of empties from five different places supported prosecution version in establishing presence of all five accused at scene of occurrence—Such piece of prosecution evidence had totally gone un-rebutted-Dying declaration of deceased was so short and brief consisting of twelve lines only which indicated that there was no exaggeration on part of police or deceased, therefore, it could not be deemed to have been tailored-Medical evidence furnished by three doctors which was in line with each other further corroborated rest of prosecution evidence-No single infirmity in statements of eye-witnesses which could be fatal to prosecution case was pointed out-Depsite detailed cross-examination both eye witnesses remained consistent-Accused in order to counter blast F.I.R. cwm-dying declaration also lodged crossreport which did not prompt trial Court to take cognizance thereof- Conviction and sentence of accused were un-exceptional in circumstances. [Pp. 86 & 87] A & B M, Zahoor-ul-Haq, Bar at Law for Appellants. S. Saeed Hassan Sherazi, A.A.G. for State. Mr. Dost Muhammad Khan, Advocate for Complainant. Date of hearing; 12.5.1998. judgment Azad Khan, Nourses Khan, Khiyalwal, Noor Janan and Zair Muhammad charged under Section 302/324/148/149 PPC, vide FIR No. 19 dated 15.1.1994 of Police Station Domel, Teh: and Distt; Bannu, were tried by the learned Special Judge, Bannu who vide his judgment dated 31,7.1997 convicted and sentenced them each to imprisonment for life and a fine of Rs. 60.000/- sach or in default further six months' S.I, each, The fine on realization was ordered to be paid to the legal heirs of the deceased as compensation u/S, 544-A Cr.P.C. Benefit of Section 382-B Cr.P.C. was also extended to all the accused. Feeling aggrieved of their conviction and sentences the convicts have filed the appeal in hand. 2. Facts of the case in brief are that on 15.1.1994 at 09.00 A.M. the deed: complt: was present in her house when the appellants duly armed with topaks encircled her house and tarted firing at her as a result whereof she was hit, got injured and fell on the ground. The accused-appellants after committing the offence decamped from the spot towards their houses, Motive for the offence is that a few days back a quarrel had taken place between the children of the parties. 3. The report was recorded by Faridullah Khan, S.H.O. Police tation Domel, Bannu (PW. 13) vide F.I.R./Dying Declaration (Ex. PA). It was read over to the complainant and she dmitting it correct thumb impressed it. He then prepared her injury sheet (Ex. PW. 8/2) and referred her for treatment and examination under the escort of Khazada Constable (PW. 5). He hen went to the spot and carried out the spot inspection and took into his possession one spent bullet of 7.62 bore and four other bullets of the same bore vide memo (Ex. PW. 4/3) in resence of the marginal witnesses. He also took into possession a pair of chappal (P-8) from the place of the accused Azad Khan vide memo (Ex. PW. 4/4). Vide Memo (Ex. PW. 4/1) he took nto possession blood stained earth from the spot. This witness also took into possession Shalwar (P-9) of the injured which was blood stained with corresponding cut marks sent by the doctor hich was taken into possession vide Memo (Ex. PW. 4/5). Similarly, he took into possession seven crime empties of 7.62 bore (P-l), six crime empties of the same bore (P-2), 9 crime empties f the same borne (P-3), four crime empties (P-4) of the same bore. On 16.1.1994 he received a blood stained shirt (P-1A) of the complainant who had scumbed to the injuries by then which as sealed into a parcel in presence of the marginal witnesses vide memo (Ex. PC). On getting information about the death of the complainant section of law was changed and Section 302 PPC as inserted in all the relevant documents. The blood stained articles were sent to the laboratory. The accused were absconding and he initiated and completed proceedings under Section 204/87 Cr.P.C. against them in the Court of Illaqa Magistrate. Thereafter this witness was transferred. Taj All Khan, Inspector, SHO submitted complete challan in Court on 25.2.1994 under Section 512, Cr.P.C. Muhabat Khan, A.S.I. (PW. 7) arrested accused Azad Khan and Nouroz Khan on 30.11.1994 as they voluntarily surrendered before him. Then he submitted supplementary challan against these accused in Court. On 24.2.1996 Ashraf Zaman SHO (PW. 6) arrested accused Noor Janan and Zair Muhammad while Khial Wai accused was arrested on 4.2.1996 and therefore supplementary challan was submitted against these accused in Court. and his statement under Section 161, Cr.P.C. was recorded by the Investigat­ing Officer, wh«rein he stated that his sons disclosed to him the names of the accused-appellants. Thirdly the learned counsel submitted that the deceased has not given the description of the weapons and further Syed Nawaz Khan (PW. 11) and Marwat Khan (PW. 12), sons of the deceased were not visible to her being outside the house and therefore her statement to this effect in the dying declaration is not free from suspicion. Fourthly it was contended that Investigating Officer has not bothered to collect the hay from the places where the said PWs. 11 and 12 were present at the time of occurrence to support their contention that they were making "hay" in their fields and lastly it was submitted that as per prosecution evidence firing by the accused-appellants continued for 7-8 minutes but only one spent bullet was recovered from inside the house which h was the target of the accused firing. The learned counsel for the complainant and learned Assistant Advocate General in reply submitted that the prosecution has successfully proved the murder charged against the appellants through reliable testimony of Syed Nawaz Khan (PW. 11) and Marwat Khan (PW. 12) with a specific charge in the dying declaration and refuted the arguments advanced by the learned counsel for the appellants. It is not disputed that the deceased was met with unnatural death. No objection was raised to the place of occurrence and the time of death. The blood stained earth was secured by the Investigating Officer from the place of occurrence which establishes the venue of occurrence. No previous bloodfeud enmity of the deceased and the eye witnesses (PWs. 11 and 12) with the accused-appellants was pointed out by the learned counsel for the appellants. The prosecution has relied upon the evidence of Syed Nawaz Khan (PW. 11), Marwat Khan (PW. 12) and the dying declaration. The said two witnesses have corroborated in substance the prosecution version. In this case no previous enmity was noticed which could have prompted the deceased falsely charge the accused. Being co-villagers, the accused were known to the deceased. The recovery of empties from five different places of the accused-appellants further supports the prosecution version in establishing the presence of all the five accused-appellants at the scene of /A occurrence. This piece of the prosecution evidence has totally gone unrebutted. Dying declaration is so short and brief consisting of twelve lines only which speaks by itself that there was no exaggeration on the part of the police or the deceased and therefore it could not be said to have been tailered. Medical evidence furnished by three doctors which is in line with each other further corroborates the rest of the prosecution evidence. Syed Nawaz Khan (PW. 11) and Marwat Khan (PW. 12) left the house as per their statements 10-12 minutes before the occurrence and this Bfact was in the knowledge of the deceased that her sons, the said two witnesses are working in the fields adjacent to the house and therefore they 1999 were named by her as eye-witnesses to the occurrence in the F.I.R. cumdying declaration. Both these witnesses arrived to see her injured mother just after the occurrence when the deceased was quite conscious and in such a situation, she has rightly named the said persons as eye witnesses to the occurrence. We do not find even a single infirmity in the statements of the said two eye-witnesses which could be fatal to the prosecution case. Despite the detailed cross-examination both the eye-witnesses remained consistent. In order to counterblast the F.I.R. cum-dying declaration the accused-appellants also lodged a cross report (Ex. PW. 13/D-l) which was subsequently cancelled. The cancellation of the said cross report was challenged upto the august Supreme Court of Pakistan and under the orders of the honourable Supreme Court, the challan of the cross case was submitted to the learned trial Court but the Court refused to take the cognizance as per order dated 7.6.1997 (Ex. PY). The upshot of the above discussion is that this appeal being devoid of merits is hereby dismissed. (T.A.F.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 87 Present: RAJA MUHAMMAD KHURSHID, J. AZRA PARVEEN-Appellant versus SARDAR KHAN and another-Respondents Crl. A. 346 of 1995, heard un 23.9.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 342-Criminal Procedure Code (V of 1898), S. 154-Delay in lodging F.I.R.--Effect~Civil litigation relating to same subject-matter going on between parties-Delay in filing F.I.R. having not been explained therein and explanation given latter by complainant in her statement were not supported from any evidence by examining any of notables of area to show that complainant had been trying to get her grievance ventilated through "Punchqyat" of village—Possibility, therefore, could not be ruled out that case was cooked up as counter-blast to civil litigation between parties by examining interested witnesses who were also witnesses in civil suit-Prosecution story having remained un-supported by any independent witness from neighbourhood seemed to be fairly doubtful-Complainants version of her wrongful confinement in disputed Ihata (relating to which civil litigation was also going on) could not be believed for missing of essential ingredients of "wrongful confinement"—Finding of acquittal recorded by Court below, thus, did not suffer from any illegality, misreading of evidence nor the same was capricious or arbitrary so as to call for any interference. [P. 90] A Mr. S.M. Masood, Advocate for Appellant. Mr. Shahid Zaheer Syed, Advocate A.A.G. for Respondent. Rana Naeem Sarwar, for State. Date of hearing! 23.9.1998. judgment This is an appeal against the judgment dated 3.11.1994 passed by Mian Jalal-ud-Din Akbar, learned Addl. Sessions Judge, Faisalabad whereby, he accepted the appeal and set-aside the judgment dated 5.10.1994 passed by Ch. Abdul Ghafoor, M.I.C. (Judicial), Faisalabad, whereby, Sardar Khan Respondent No. 1 was convicted for an offence under Section 342 PPC and sentenced him to six months' R.I and a fine of Rs. 500/- or in default to undergo further S.I for one month. 2. The brief facts are that the appellant/complainant filed a report with police that she was in possession of 'Ihata' in Chak No. 188/RB, Tehsil Chak Jhumra, District Faisalabad which was given to her by her maternal uncle Barkat Ali during his life time. The aforesaid Barkat Ali died on 7.11.1988 and was buried in agricultural land belonging to him, whereas, his wife died on 11.3.1989 and was hurried in the 'Ihata' in question. The complainant further contended that her husband was serving in Saudi Arabia and she was residing in her house in Faisalabad and used to visit Chak No. 188/RB occasionally. She came in the Chak No. 15.11.91 and found that some persons were baking breads in the oven installed at the aforesaid 'Ihata'. She asked from the aforesaid persons as to from whom they had obtained the key of the 'Ihata' to which those persons replied that they had got it from Sardar Khan respondent. She asked them to call Sardar Khan respondent who came there at about 2:30 p.m. and started abusing her. He also took away the breads alongwith the persons who were baking them and confined her in the 'Ihata' by putting lock on its door. She started raising noise, whereupon, her tenant Mukhtar Ahmad PW and his son Manzoor Ahmad came there and released her from the illegal confinement at about 5:00 p.m. According to the FIR, the aforesaid Mukhtar Ahmad and Manzoor Ahmad had seen the alleged occurrence. She, however, lodged the report with the police on 20.11.1991 regarding the alleged occurrence. The police found Sardar Khan aforesaid guilty and sent him up for trial, whereupon, he was convicted by the learned trial Magistrate as aforesaid. He filed an appeal before the learned Addl. Sessions Judge who while settingaside the conviction and sentence passed upon the respondent Sardar Khan accepted the appeal and acquitted him. Against that acquittal, the present appeal has been filed. 3. It is contended by learned counsel for the appellant that the prosecution evidence clearly proved that the appellant was illegally confined in the 'Ihata' in question but the learned Addl. Sessions Judge mis- 4. construed the evidence to come to some different conclusion. In this connection, a reference was made to paragraph No. 12 of the impugned judgment passed by the learned Addl. Sessions Judge, wherein, it was said that according to the prosecution case, Mst. Azra Parveen was confined within the four-walls of the compound but it cannot be said with certainty that she was restrained to go out of the compound. While referring to this part of the impugned judgment, learned counsel for the appellant has submitted that since the respondent Sardar Khan had put lock on the door of the 'Ihata'', therefore, the complainant Mst. Azra Parveen was definitely restrained from proceeding towards any direction in which she had right to proceed and as such, it would amount to wrongful confinement as defined in Section 340 PPC and punishable under Section 342 PPC. Hence, it was contended that the judgment of the learned appellate Court was bad in the eyes of law and the conviction and sentence recorded by the learned Magistrate were rightly made. 4. Learned AAG assisted by learned counsel for the respondent/ accused contended that the FIR was delayed by about five days and no cause was shown for the delay in the FIR itself. Although the complainant Mst. Azra Parveen while appearing as PW. 1 during the trial offered an explanation that she protested against the conduct of the, accused and had brought it to the notice of elders of the village but since nobody helped her, therefore, she reported the matter to the police with some delay. However, there is nothing on record except the bald statement of the complainant that actually the delay had occurred as she was seeking ventilation of her grievance from the respectables of the village nor any evidence to that effect was brought on record. Secondly, it was submitted that there was admittedly a civil litigation in respect of right of possession of the disputed 'Ihata' between the complainant and the accused/respondent and others and as such, it was not clear as to who was actually in possession of 'Ihata'. Thirdly the respondent was involved in a case due to enmity on account of civil litigation and that the PWs were also the witnesses of that case against him. Lastly, it Was contended that the prosecution did not examine any independent witness to prove its case although it was in evidence that the place of occurrence was surrounded by populated houses but none came there during the alleged confinement of the complainant while she was rasing alarm. Hence it was submitted that the entire occurrence was concocted which took five days to prepare the case and thereafter, the FIR was got registered with the help of the police. While closing the arguments, learned counsel for the respondent pointed out that the prosecution witnesses were not given proper oath when they were cross-examined. In this respect, it was alleged that their statements were recorded on solemn affirmation instead of prescribed oath and as such, the conviction recorded by the trial Magistrate was bad in the eyes of law even on that ground. 5. I have considered the foregoing submissions and find that there is civil litigation between the parties in respect of 'Ihata' in dispute. It is the case of the respondent that due to burial of wife of maternal uncle of the complainant in the aforesaid 'Ihata', it had become a public place as it was being treated as a 'Mazaar'. This fact finds support from cross-examination of the complainant as PW. 1 where she admitted as correct that the Addl. District Judge had allowed to spend the profit money on the maintenance of aforesaid 'Mazaar', however, such permission was allegedly not given regarding 'Mela' to be held on that 'Mazaar'. This shows that grave of Mst. Bibi was being treated as tomb (Mazaar), and if it is so it would be treated as a public place. It is perhaps for that reason that some people were baking breads at the oven (Tanoor) installed in the premises of 'Ihata' and they had allegedly left alongwith Sardar respondent when the complainant arrived there and challenged their presence. 6. The delay in filing the FIR is material in this case because it was never explained in the FIR and the explanation given later by the complainant in her statement was not supported from any evidence by examining any of the notables of the village to show that the complainant had been trying to get her grievance ventilated through the Elders Body (Punchayet) of the village. The possibility, therefore, cannot be ruled out that the case was cooked up as a counter-blast to the civil litigation between the parties by examining the interested witnesses who were also witnesses in i civil suit. If any occurrence had actually taken place, it was not difficult for ! the complainant to site any independent witness from the Village Body and j particularly from the neighbours of the 'Ihata' who had inhabited houses around it. The complainant remained confined for about 2 \ hours and was crying but strangely enough no independent person from the neighbourhood j came there to see this sort of occurrence. This makes the whole prosecution J story fairly doubtful which remained unsupported by any independent 1 witness from the neighbourhood. The observation made by the learned Addl. : Sessions Judge regarding confinement is not without substance. The [ prosecution failed to produce any lock which was placed by the respondent I Sardar Khan on the door of the 'Ihata' nor any witness supported the ! prosecution version except the complainant herself that door of the 'Ihata' '• was locked by the respondent in his presence. This fact was also pointed out i by the learned Addl. Sessions Judge while making observation that there I may be confinement but there was no restraint if the complainant wanted to proceed to any direction of her choice. As such the ingredients of Section 340 PPC defining wrongful confinement appear to be missing so as to attract the punishment provided under Section 342 PPC for the aforesaid offence. The respondent Sardar was, therefore, rightly acquitted. The finding of acquittal recorded by the learned Court below does not suffer from any illegality, mis­ reading of evidence nor it is capricious or arbitrary so as to call for any interference in appeal. 7. In view of the foregoing discussion, the appeal is dismissed. (T.A.F.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 91 Present: ghulam sarwar skeikh, J. AURANGZEB-Appellant versus STATE-Respondent Crl. Appeal No. 264 of 1996, accepted on 10.9.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 154—Complainant deprived of cash by an ASI in the garh of raid-12 days delay in lodging F.I.R. by complainant-Effect-Very registration of case against employee was out come of naked and patent legal infirmity insomuch as complainant without knocking at the door of higher Departmental Authorities redressal of his grievances had ignored availing remedy, and prescribed procedure-If such practice was allowed to prevail, then, every employee would be prone to criminal action on flimsy allegations—Conviction and sentence of accused was, thus, not only laconic but also replete with legal infirmities-Conviction and sentence of accused were set aside in circumstances. [Pp. 93 & 94] C & D Qanun-e-Shahadat, 1984 (10 of 1984)— —Art. 2(l)(c)-Testimony of witness-Essentials-Testimony of person how highsoever his status, must be taken with grain of salt i.e., such testimony could not be treated as gospel truth unless corroborated by independent reliable evidence-Trial Court having traversed on periphery and having confined whole exercise to profile did not bother to dive deep to sift grain from chaff and kernal from husk, conviction based on such evidence was not warranted-Solitary statement of complainant, without independent corroboration, thus, could not afford valid basis for conviction. [P. 93] A & B Mr. Muhammad Akbar Tarar and Fawad Malik, Advocates for Appellant. Miss Tasneem Amin, Advocate for State. Date of hearing: 10.9.1998. judgment In case No. 50 of 1995, appellant namely, Aurangzeb, was tried by learned Special Judge, Anti-Corruption, Gujranwala, found and adjudged guilty of an offence under Section 5(2) of Prevention of Corruption Act, 1947 and accordingly convicted and sentenced to undergo R.I. for a period of two years with a fine of Rs. 10,000/- and in default of payment of fine to suffer R.I. for another term of six months. It was further directed that out of amount of fine, if recovered, and realised, a sum of Rs. 6,250/- shall be paid as compensation to the complainant namely, Muhammad Khalid Sheikh. 2. At the relevant time, appellant was admittedly an "ASI" of Police Station Saddar Mandi Baha-ud-Din. Allegedly, he impersonated himself as Asghar Ali, A.S.I. of C.I.A. Staff Kathiala Sheikhan and deprived the complainant of cash to the tune of Rs. 6,250/- and a Cartoon containing Ammonium Chloride Syrup worth Rs. l.OOO/- in the garb of raid for "spurious Medicine" and threats of launching criminal proceedings against him thereby. 3. Subsequent inquiries by complainant, however, revealed and surfaced the appellant as to afore-said "ASI" and responsible for ugly act. After confirmation of his identity omplaint Ex. PA was submitted to Director Anti-Corruption Establishment Punjab, Lahore . Same, alongwith letter Ex. PC was received by PW 3 Muhammad Rafiq Shah, CO/ACE Gujrat. Upon final report vide letter Ex. PD, registration of case was ordered on 25.8.1994 and formal FIR Ex. PE was drawn/recorded. Necessary sanction for prosecution was accorded in terms of Ex. PF. To substantiate the allegations and prove its case, as many as four witnesses, were examined by the prosecution. PW. 1, Muhammad Khalid Sheikh, reiterated the contents of complaint Ex. f A made on 12.6.1993, about 12 days after the incident alleged to have occurred on 31.5.1993. PW, 2 Muhammad Arshad, spoke in line of the complainant. PW. 3, Muhammad Rafiq Shah is C.O./ACE Gujrat who recorded formal FIR Ex. PE . PW4, Mozaffar Hussain, located the accused on the basis of features disclosed to him by the complainant. 4. In his statement under Section 342 Cr.P.C. the appellant denied ll the incriminating circumstances figuring against him in the prosecution evidence and raised the plea of false implication. In his defence, he examined a solitary witness namely Abdul Ghani. However, he opted, not to appear as his own witness in disproof of allegations as envisaged by the provisions embodied in Section 340(2) Cr.P.C. Terming the delay in reporting the matter as not to be fatal and believing statement of PW1, the complainant, the learned trial Court convicted and sentenced the appellant as indicated and stated above by judgment dated 1.4.1996. Learned Counsel for the appellant has lambasted the verdict with the assertions that the same is based on solitary statement of complainant Muhammad Khalid PW 1, no person in whose presence alleged incident had taken place was cited witness in the complaint and bare statement of complainant cannot be believed and given credence as Kashif was given up as having been won over. Delay of 12 days in reporting the matter has been ermed to be serious, inordinate and unexplained so as to impair the prosecution case beyond repair. 8. Conversely, learned Counsel representing the State has remarked hat the complainant had neither any enmity with the appellant nor any cause for his false implication: Also it has been maintained that the delay in making the complaint stands duly explained as accused was to be located and his identity, as such, was to be confirmed. 9. Seemingly fauxpas was committed while appreciating prosecution evidence. By now it is settled that the testimony of a person, how high so­ ever, he may be, must be taken with grain of salt so to say, that it cannot be treated as "gospel truth" unless corroborated by independent reliable evidence. Learned trial Judge traversed on the periphery, rather, confined the whole exercise to a profile and did not bother to dive deep to sift grain from chaff and kernal from husk, particularly when Muhammad Arshad PW 2 was found to have been introduced subsequently and no significance could be attached to his testimony. As pointed out by the learned Counsel for the appellant PW2 and PW4 were not even present when the appellant allegedly deprived the complainant of cash and drugs. Learned trial Judge seems to have fallen in ingoratio elenchi while treating the deposition of PW. 1 as apodictically as if he spoke as an oratcle. The accused also deserved the same solemnity in speech vis-a-vis the complainant, who, should have been taken at par with the accused and their versions should have been juxta­ posed in its true perspective. Learned Counsel for the appellant has rightly pointed out various discrepancies in the evidence of PW. 2 to PW. 4, which cut very root of prosecution case, as scrupulously conceded by learned counsel representing the State. 10. Be that as it may, these glaring discrepancies were sufficient to discard the veracity of PW. 1 Muhammad Khalid Sheikh (complainant) what to speak of borrowing "circumstantial corroboration". Saddle must be put on right horse, but, unfortunately, process of bringing home the guilty was evaluated with the help of those witnesses, who, prevaricated with impunity. In nut-shell, solitary statement of the complainant, without independent corroboration, could not afford valid basis for the conviction, now sought to be impeached and set at naught. Verdict dated 1.4.1996 is highly hypothetical and conjectural. 11. un-doubtedly it is not a raid case. Delay in reporting th matter is also of considerable effect and significance. Very happening of incident in a swarmed bazar in broad day light in such a crude fashion/manner is palpably open to grave doubts. Thus prosecution case is perfunctory on various counts. 12. Matter is liable to be analysed from entirely a different angle, which, however, has not been agitated. Very registration of the case is the out-come of naked and patent legal infirmity. Aggrieved could conveniently knock at the door of higher police hierarchy for redressal of his grievances Without availing remedy, and observance of prescribed procedure he chose to put the "Cart before Horse". As such registration of a criminal case bemoaned loudly over contrivance apparently devised. If such practice is allowed to prevail, then, every employee would be prone to criminal action on flimzy allegations. 13. As a necessary corollary, conviction and sentence of the appellant, by virtue of impugned judgment dated 1.4.1996 is not only laconic, but also, replete with legal infirmities. Hence, the same is un-sustainable. Resultantiy, appeal is accepted, conviction and sentence are set-aside and the appellant is acquitted of the charge levelled against him. Amount of fine, if ^realised, shall be refunded. Ol 14. Appellant is on bail and is accordingly absolved of all his jliabilities .0 the bail bonds submitted/furnished by him. '(T.A.F.) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 94 [Rawalpindi Bench] Present: mumtaz ali mirza, J. IJAZ MASIH alias Damo-Petitioner versus STATE-Respondent Crl. Misc. No. 704/B-1998, dismissed on 7.9.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 497--Pakistan Penal Code (XLV of I860), Ss. 302/34, 337-A»Bail after arrest was sought by accused on the ground that two other accused having been released on bail, he was also entitled to concession of bail on basis of principle of consistency-Cases of co-accused, however, stood entirely on different footing in so much as part assigned to co-accused was meagre as compared to part assigned to accused who was alleged to have over powered deceased with "japha" from behind and thereby facilitated his being hit by main accused with ehurri blow resulting in death of deceased-Role played by accused was, thus, veiy important and pertinent-Accused was, therefore, not entitled to bail. [P. 97] A Raja Imtiaz Ahmad Kiani, Advocate for Petitioner. Malik Muhammad Kabir, A.A.G, for State, Date of hearing: 7,9.1908. order Through the instant Crl. Misc. bail after arrest is sought for the petitioner in case FIR No, 168 dated 30.5.1997 registered at Police Station Banni District Rawalpindi under Sections 302/34, 337-A(i)(ii) PPC. 2. The facts as disclosed .^ the FIR by the complainant Sosan Bibi wife of the deceased Bashir Masih are that she is resident of Mohallah Raja Sultan and that in the upper storey of the house situated in that Mohallah lived one Khushi Masih with his family and in the ground-floor of the said house the complainant alongwith her husband and children were living and that she was employed in the Municipal Corporation; that on the night between 23/24.5.1997, the engagement of the son of Khushi Masih took place and his entire family had gathered on the occasion. The ceremony ended at about mid night. When the guests of Khushi Masih were leaving, there was so much of noise that it awakened complainant's family who were asleep at that time. The complainant further alleged that her husband Bashir Masih did not like being disturbed while asleep and otested to Khushi Masih against the noise. The protest of the complainant's husband offended Kushi Masih and his sons Ijaz Masih and Shahzad Anjum and they threatened the complainant's husband that nobody could stop them from using their house in the manner they thought fit; that Shahzad Anjum son of Khushi Masih got infuriated and took out churri from under-neath his clothes and Ijaz Masih petitioner caught hold of the complainant's husband Bashir Masih with a Japha from behind and Shahzad Masih gave a churri blow to Bashir Masih in his abdomen, whereby Bashir Masih was badly injured. Khushi Masih hit the son of the complainant with a brick which hit the boy on his head. The complainant goes on to allege that Asif Masih hit the complainant's daughter Khalida Bibi with a piece of brick which hit the complainant's daughter on her face and thereby she was injured. The occurrence attracted lot of people including Younajs Masih at the site. Baslur Masih succumbed to the injuries sustained by him at the hands of Shahzad Masih son of Khushi Masih and died on 28.5.1997. In this background of facts, the FIR was lodged. 3. The petitioner having been arrested pursuant to the FIR registered against him, applied for bail after arrest before the learned Sessions Judge, Rawalpindi, on 80.5.1998 which was entrusted to the Court of Ch, Muhammad Younas, learned Addl, Sessions Judge, Rawalpindi who rejected the same vide his order dated 22.6.1998. Hence this petition before this Court, 4. Raja Imtiaz Ahmad KJani, learned counsel for the petitioner appearing in support of the instant petition has urged the following grounds for the enlargement of the petitioner on bail:- (i) that the other co-accused Asif Masih and Khushi Masih have already been enlarged on bail by this Court against whom similar allegations were levelled in the F.I.R, The petitioner is entitled to the same treatment and his case also merits to be considered on the basis of principle of consistency; (ii) that the fatal blow which resulted in the death of the deceased Bashir Masih was attributed to Shahzad Masih and not to the present petitioner; (iii) that the only allegation against the petitioner was that he held the deceased with a Japha form behind and it was Shahzad Masih who dealt the churri blow to the deceased; (iv) that the case of the petitioner who held the deceased only with a Japha is a case of further inquiry. 5. Malik Muhammad Kabir, learned AAG Punjab appearing on behalf of the State has controverted the aforesaid submissions made on behalf of the learned counsel for the petitioner and has opposed strongly the grant of bail to the petitioner. Learned Law Officer submits that the petitioner is clearly named in the FIR; a definite role is assigned to him; that he held the deceased with a Japha and thereby facilitated his being given churri blow by and at the hands of Shahzad Masih resulting in the death of the deceased; that but for the Japha given by the petitioner to the deceased, it would not have been possible for Shahzad Masih to inflict the churri blow effectively on the person of the deceased, so as to cause his death; that the petitioner in the circumstances, was as much guilty of causing the death of the deceased and participating in the crime as was Shahzad Masih who gave the churri blow to the deceased. The learned Law Officer submitted by with some vehemence that the petitioner in this background of facts is not entitled to the concession of bail. The learned Law Officer very strongly refuted the contentions of the learned counsel for the petitioner that the petitioner was entitled to the concession of bail on the basis of principle of consistency keeping in view the fact that the other co-accused namely Khushi Masih and Asif Masih had already been enlarged on bail. Learned Law Officer submitted that the case of the said two co-accused stood entirely on different footing. Of the said two co-accused, Asif Masih was accused of having caused only a brick blow to Khalida Bibi complainant's daughter. He had not caused any blow to the deceased or in any manner facilitated his death. As regards Khushi Masih, he was only attributed a proverbial lalkara. Learned Law Officer submitted that the facts of the cases of the said coaccused were thus quite distinguishable from those of the present petitioner. He cannot, therefore, ask for a similar treatment. In support of his submissions that the present petitioner held the deceased with a Japha and thereby facilitated his being hit with churri blow by the other co-accused Shahzad Masih which ultimately resulted in his death, reliance was placed by the learned Law Officer on Hakum Ali and 3 others vs. The State (1979 SCMR page 114) and Mst. Barkat Bibi vs. Gulzar and others (1979 SCMR page 65). In both the reported cases the accused seeking bail were accused of giving Japha and were refused bail. In case reported as "1979 SCMR page 65", the bail already granted by the High Court on the basis of the allegation of Japha was directed by the Hon'ble Supreme Court to be cancelled. Further reliance was placed by the learned Law Officer on Munawar vs. The State (NLR 1981 Criminal (S.C.) page 85). In this case also the allegation against the petitioner was only of giving Japha to the deceased but he was refused bail on the ground that the petitioner was vicariously liable for the commission of the offence of murder. 6. I have considered and evaluated the respective submissions of the learned counsel for the parties and have perused the record. Learned counsel for the petitioner relied heavily on the orders passed by this Court whereby bail was granted to the co-accused Khushi Masih and Asif Masih and contended that the petitioner be also meted out the same treatment. I am afraid, the contention of the learned counsel for the petitioner in this behalf is not veiy well founded. The cases of the said co-accused Khushi Masih and Asif Masih stood entirely on different footing and were distinguishable. One of the two accused was attributed only a proverbial lalkara whereas the other co-accused Asif Masih was only alleged to have caused a brick blow to Khalida Bibi PW. Such, however, is not the case of the present petitioner. The allegation against him is that he held the deceased with a Japha from behind and thereby facilitated his being hit by Shahzad Anjum with churri --blow resulting in the death of the deceased. The role played by the present petitioner was thus not only distinguishable from that of the other co-accused Khushi Masih and Asif Masih but also was very important and pertinent. Had he not held the deceased with a Japha as alleged, perhaps it would not have been that easy for Shahzad Masih to have effectively dealt churri blow on the deceased. The role thus played by the petitioner in the present case is pivotal. Learned Law Officer in support of the submissions that in a case such as the one alleged against the present petitioner bail was declined by the Hon'ble Supreme Court referred to "1979 SCMR page 65" and "1979 SCMR page 114". In both these cases the allegations against the accused who was refused bail by the Hon'ble Supreme Court was that of giving Japha to the deceased. In the circumstances, therefore, I feel inclined to uphold the submissions made by the learned Law Officer and accordingly dismissed the instant Crl. Misc. (T.A.F.) Bail refused.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 98 Present: ghulam sarwar sheikh, J. GULL MUHAMMAD-Appellant versus NISAR AHMAD and another—Respondents Crl. A. No. 103 of 1996, dismissed on 9.9.1998. (i) Criminal Procedure Code, 1898 (V of 1898)- —Ss. 103 & 417~Glaring deviation of prescribed procedure in connection with recovery-Effect-Deviation and departure from prescribed and settled procedure would make whole exercise of recovery colourful, doubtful and replete with suspicions-Procedure laid down has to be followed in stricto-senso while deviation therefrom has to be taken otherwise-No plausible explanation was given to dispense with requirements of provision of Section 103 Cr.P.C.; language whereof is couchejd in mandatory form-Place of recovery, was not in exclusive possession of respondent (accused)--Recovery proceedings were rampant with legal infirmities, therefore, edifice erected thereon by prosecution was aptly and correctly dismantled by Appellate Court below. [Pp. 99 & 100] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 439 & 417-Locus standi to file revision/appeal-F.LR. was admittedly not registered at the instance of appellant-F.I.R. could be registered only at instance of Investigating Officer and was in fact registered upon his report-Appellant, thus, had no locus standi to assail conviction/acquittal in a case never registered at his instance-Appeal filed by appellant as also revision filed by him in Session Court were not maintainable in circumstances. [P. 100] B Malik MansafAwan, Advocate for the Appellant. Date of hearing: 9.9.1998. . order 2. During investigation of connected hurt case under Section 307/34 PPC registered at Police Station City Mianwali vide F.I.R. No. 199/90 lodged by Gul Muhammad, complainant, Accused/Respondent No. 1 made a disclosure and then led to the recovery of rifle 303 alongwith two live cartridges, for which, he had no licence. As a sequel thereto, a case under Section 13 of Arms Ordinance (XX 1965) was registered at the instance of Altaf Hussain, ASI, PW. 4 by virtue of FIR No. 212 dated 31.5.1990. 3. In order to prove its case, four witnesses, all police officials, were examined by the prosecution. In his statement under Section 342 Cr.P.C. the accused denied all incriminating circumstances figuring against him in prosecution evidence. However, he opted not to appear in dis-proof of allegations as envisaged by the provisions of law embodied in Section 340(2) Cr.P.C. No witness was produced in defence either. 4. Upon culmination of trial Respondent No. 1 was adjudged to be guilty by the learned trial Court and convicted and sentenced to under-go R.I. for a term of three years, in view of agony and ordeal faced by him in the process of lengthy trial. Benefit of provisions of Section 382-B Cr.P.C. was extended. 5. Such verdict was lambasted and assailed in an appeal, which, ultimately was accepted, conviction and sentence were set aside and Respondent No. 1 was acquitted of the charge levelled against him. 6. Thus acquittal of accused by virtue of an order dated 3.12.1995, passed by Mehr Mumtaz Hussain Lali, the then learned Additional Sessions -Judge, Mianwali, has been challenged in this appeal under Section 417(2) Cr.P.C. by Gul Muhammad, who, as indicated above, happens to be complainant of connected hurt case, which, too, is stated to have resulted/ended in acquittal. 7. Learned Counsel representing the appellant has reiterated the aspects, factors, points and grounds urged in the memorandum of appeal. Also it has been impressed that the acquittal, complained of, is neither warranted by data and material on record nor the same can be taken to be in consonance with law. 8. However, learned Additional Sessions Judge, seems to have rightly noticed glaring deviation of prescribed procedure in connection with the recovery, affording the basis of prosecution case. Needless to say that Investigating Officer was legally bound to associate and invite 'respectables of the locality, which, being a "Bazar" was swarmed with businessmen and even customers. There can be no cavil with the fact that he could conveniently join any available and independent person in the lot. It is trite law and proposition that deviation and departure from prescribed and settled procedure makes the whole exercise colourful, doubtful and replete with suspicions. In other words, procedure laid down has to be followed in strictosenso and deviation therefrom has to be taken otherwise. This belief finds support and fortification by the principle of law consistently expounded by august Superior Courts and by which, the proposition stands at rest and conclusively settled. So called recovery which provided the basis of conviction and sentence by learned trial Court was un-doubtedly claimed to have been effected in utter disregard of Section 103 Cr.P.C. by Investigating Officer, who, felt contented by joining merely police personnel. No plausible explanation was given to dispense with requirements of provisions of Section 103 Cr.P.C.; language whereof is seemingly couched in mandatory form. More-over the shop, place of recovery, was not in exclusive possession of Respondent No. 1. In short recovery proceedings were rampant with legal infirmities. Hence edifice erected there-on hy the prosecution was aptly dismantled by learned Additional Sessions Judge, while, accepting appeal and rejecting revision. 9. Another significant aspect which some-how escaped the notice of learned appellate Court cannot be lightly ignored and glossed over. Afore­ said revision petition was filed by the present, appellant, who, no doubt lodged FIR No. 199/90 in hurt case and during investigation whereof alleged recoveiy of weapon of offence was effected. At the same time, there can be no denial to the fact that FIR in instant case was registered upon report of Altaf Hussain, I.O. and not by the appellant in any way. Even other-wise, it could be registered only at instance of Investigating Officer i.e. State. As such question arises, if appellant has got locus-standi to assail the conviction/acquittal in a case never registered at his instance. Answer to the proposition is certainly in the negative, on the bare aspect that neither machinery of law was set into motion on behest of appellant nor matter of keeping of illicit arms by any person was his concern by any stretch of imagination and no gl'ievance could accrue to the appellant, who, thus had no locus standi to file revision petition or even instant, appeal, to flog the dead horse. 10. Viewed from any angle, same merits dismissal and is hereby dismissed in limine. (AAJS) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 100 Present: shaikh abdur razzaq, J. MUHAMMAD ASLAM-Petitioner versus STATE-Respondent Crl. Misc. No. 135-B of 1997-BWP, dismissed on 12.8.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 498-Bail pre-arrest-Offence u/S. 467/468/471/109 PPC read with S. 5(2) Prevention of Corruption Act, 1947-Petitioner slipped away when bail order was announced by lower Court-Delay in lodging FIR was explained properly-Case of petitioner is not at par with accused already granted bail as petitioner ft main ccused-Trial Court while passing order has taken into consideration each and every aspect of matter-Part assigned to petitioner has been high lighted in said order-­ He has been found rima facie connected with commission of offence charged against him—Petition dismissed. [Pp. 102] A & B Mian Abdul Khaliq, Advocate for Petitioner. Petition in person. Ch. Muhammad Siddique Virk, Advocate for Complainant. Mr. Muhammad Ilyas Malik, Advocate for State. Date of hearing: 12.8.1998. order The petitioner Muhammad Aslam alongwith Muhammad Asghar, Muhammad Amin, Abdul Ghafoor, Qamar-ud-Din, Abdul Aziz, Muhammad Yousaf, Munir Ahmad Chaudhry and Malik Sarfraz Hussain stand charged u/Ss. 467, 468, 471, 109 PPC read with Section 5(2) of the Prevention of . Corruption Act, 1947 vide FIR no. 92/95 dated 26.7.1995 registered at P.S. ACE, Multan Region, Multan . 2. The allegation against the present petitioner is that he being a stamp vendor fraudulently and with the connivance of the other persons got registered General Power of Attorney in his favour alleged to have been executed by one Muhammad Aslam son of Shamas Din. 3. The present petitioner as well as his co-accused moved pre-arrest petition which was decided by the learned Special Judge Anti Corruption, Bahawalpur, Camp at Rahimyarkhan vide order dated 18.2.1997 whereby he confirmed pre-arrest bail granted to Malik Sarfraz Hussain, Muhammad Asghar and Qamar ud Din, but declined the said relief in respect of present petitioner as well as Munir Ahmad, Abdul Ghafoor, Muhammad Amin, Muhammad Yousaf and Abdul Aziz. 4. The petitioner has felt aggrieved of the said order and has approached this Court for the same relief. 5. Contention of the learned counsel for the petitioner is that there is a delay of about 1 \ year in lodging the FIR, as alleged occurrence took place somewhere in 1994 whereas the FIR was lodged on 26.7.1995, that all co-accused of the petitioner have been released on bail and case of the petitioner is at per with them, that the petitioner has not obtained any benefit on the basis of alleged general power of attorney, that none of the offences falls within the prohibitory clause, that he has also not misused the

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 103 Present: raja muhammad khurshid, J. MUBARIK ALI AKHTAR-Petitioner versus STATE-Respondent Crl. Misc. No. 4534-B of 1998, dismissed on 8.10.1998. Pakistan Penal Code, 1860 (XLV of 18'60)-- —-Ss. 217, 409, 420, 468 & 471--Criminal Procedure Code (V of 1898), S. 497-Misappropriation of Government money—Criminal case registered against petitioner—Petitioner claimed bail on the ground that ther co-accused having been granted bail, he was also entitled to the same on ground of consistency-Petitioner was named in F.I.R., he was drawing and disbursing officer of amount in question, at the relevant time, therefore, he had played major role in said misappropriation and fraud of Government money of which he had become lawful guardian-­ Active participation and connivance of petitioner with law officials was prima facie established in getting bogus bill encashed at earlier date than genuine bill which was presented and paid at later date resulting into double payment of Government money from Bank-Prime facie there were reasonable ground to believe that petitioner was involved in offence punishable with imprisonment for life or for imprisonment which could extend to 10 years, thus, he had no case for bail at present stage—Bail was refused in circumstances. • [Pp. 104 & 105] A 1994 MLD 1095; PLJ 1998 SC 1356 and PLJ 1997 Cr.C. (Lah.) 295 ref. Mr. Zaka-ur-Rehman, Advocate for Petitioner. Rana Naeem Sarwar, A-A.G. alongwith Mr. Abdul Majeed Iftikhar Janjua, Advocate for State. Date of hearing: 8.10.1998. order A case under Section 217/409/420/468/471PPC read with Section 5 of the Prevention of Corruption Act, 1947 was registered against the petitioners and others vide FIR No. 107/98 dated 27.6.98 at P.S. Anti- Corruption Establishment, Faisalabad. 2. The petitioner had been serving as Assistant Education Office (Male), Sillanwali District Sargodha w.e.f. 4.5.95 to 23.5.98 and during that period, he used to draw salaries of 111 Primary Schools for its onward payment to the staff attached to these schools. In August, 1997, one Muhammad Haneef, Junior Clerk submitted a pay bill of the aforesaid schools to the District Accounts Officer, Sargodha on 30.8.97 on the basis of which the petitioner allegedly drew the amount of that bill amounting to Rs. 7,95,402/01 on 3.9.97. He allegedly disbursed the aforesaid amount to the concerned staff on the same date and got their signatures on acquaintance roll. It transpired at subsequent stage that the above mentioned amount was also drawn through allegedly a bogus bill on 1.9.97 which led to an enquiry at the order of the Commissioner, Sargodha Division which resulted into the registration of this case. 3 Learned counsel for the petitioner has submitted that the petitioner is an old person nearing the age of superannuation and has been falsely implicated in the case although he had nothing to do with the occurrence; that he had been exonerated in departmental enquiry held against him; that the alleged bogus bill was never signed by him and as such, he was not responsible for the alleged double payment of the amount in question; that the mis-appropriated amount was never entrusted to him, therefore, thee could be no breach of trust nor it would attract the provision contained in Section 409 PPC which had allegedly been added with mala fide intention to aggravate the offence; that infact that Bank Officials who had made the double payment were in league with the cheaters because the fraud could not be committed without their being privy to the mis­ appropriation; that Qazi Abdul Waheed and Muhammad Hussain co-accused of the petitioner in the District Accounts Office have already been admitted to bail by the learned trial Court which would call for the application of rule of consistency for the release of the petitioner on bail; that the bank officials namely Muhammad Asghar and Abdul Rehman are also on interim bail from Special Court Banking which would call for further enquiry as far as case against the petitioner is concerned. As such relying on 1994 MLD 1095 (Karachi) titled Sikandar Abdul Karim vs. The State through Inspector Faqir Muhammad, 1996 SCMR 1132 (Supreme Court of Pakistan) titled Saeed Ahmad vs. The State, 1997 P.Cr.LJ. 1827 (Lahore) titled Jaffar Muhammad vs. The State, it was contended that since there was no entrustment with the petitioner, therefore, the provisions of Section 409 PPC were not attracted; that the entire recording being in possession of the Investigating Agency and there being no fear of tampering with the same, the petitioner was entitled to bail. 4. Learned AAG assisted by learned counsel for the state, however, opposed the bail on the ground that the role of the petitioner in the embezzlement was primary as the was the drawing and disbursing officer of the amount in question. He had submitted the genuine bill for its passing to the D.A.O., Sargodha on 30.8.97 which was handed over to him after its passing on 1.9.97. The aforesaid bill carried token No. 3792 and scroll No. 688 dated 1.9.97 which were only known to the petitioner and none else, as such, the bogus bill could not be prepared and passed without his active connivance which resulted into the double payment which was entrusted to him as a custodian being a drawing and disbursing officer. As such, the petitioner has no case for bail. I have considered the foregoing submissions and find that the petitioner is named in the FIR, he was the drawing and disbursing officer of the amount in question at the relevant time and as such, there is no doubt that he played a major role in the aforesaid mis-appropriation and fraud of 5. the Government only of which he had become^ a lawful custodian. In may also be added that active participation and connivance of the petitioner with the bank officials isprima facie established in getting the bogus bill encashed at an earlier date than the genuine bill which was presented and paid at the later date resulting into the double payment of Government money from the bank. It can, therefore, be safely inferred that prima facie there are reasonable grounds to believe that the petitioner is involved in an offence punishable with imprisonment for life or for an imprisonment which may extend to 10 years and as such, he has no case for bail at this stage. The petition is accordingly dismissed. (AAJS) Bail refused.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 105 Present: zafar pasha chaudhry, J. SAKHAWAT ALI-Petitioner versus STATE-Respondent Crl. Misc. No. 4791-B of 1998, decided on 30.9.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Penal Code (XLV of 1860), Ss. 302, 337/34--Murder--Two coaccused were already on bail-Accused who had inflicted fatal blow to deceased was seeking bail on ground of statutory delay~Entitlement~ Amendment in S. 497 Cr.P.C. was incorporated to ensure speedy trial of accused person but that concession had been qualified with condition that where delay had been caused by accused person himself or any one on his ehalf than that person would not be entitled to concession of bail- Persual of record indicated that accused or their counsel had een seeking adjournments one after the other-Two years period had not been fixed as a matter of limitation rather that period had been prescribed so that trial was expedited but where trial was hampered or delayed especially when witnesses were present then such right accrued to accused under statute would not be available to him-Trial would have been concluded much earlier if accused had not sought adjournments unnecessarily-No one could be allowed approbate and reprobate-Accused was, thus, not entitled to bail. [P. 106] A, B Mr. Zafar Ullah Cheema, Advocate for Petitioner. Date of hearing : 30.9.1998. order The petitioner is required in case FIR No. 546/1995 registered with P.S. Saddar Samundari u/S. 302, 337-A(i) read with Section 34 PPC. In all there were three accused persons named in the FIR. Two of the co-accused namely Ibrar Hussain and Dilshad Hussain have been admitted to bail on merits. The allegation against the petitioner is that Sakhawat caught hold of Rasheed and inflicted a Churri blow on the front of his chest who succumbed to the injuries at the spot. Bail has been sought on the ground of statutory delay. It is therefore, argued that the occurrence took place on 12.12.1995 and challan was submitted in Court on 10.3.1996. The learned counsel admits that four adjournments have been obtained by the petitioner but if total time consumed on account of these adjournments is counted, the same conies to about seven months, and if that period of seven months is deducted from the total period even then there is delay of more than two years. I am not convinced with the argument. The amendment in Section 497 Cr.P.C. was incorporated to ensure speedy trial of accused person but the concession has been qualified with the conditions that in case delay has been caused by the accused person himself or any one on his behalf then that person would not be entitled to the concession. I have gone through the interim orders. On 24.3.1996 although the petitioner alongwith his co-accused appeared but they did not engage counsel and sought adjournment. Case was adjourned to 31.3.1996 but no counsel was engaged. Again on 26.5.1996 counsel was not engaged than on 28.7.1996, 10.10.1996 then 13.11.1996 then 19.1.1997 the learned trial Judge was on leave. Then on 26.2.1997 again an opportunity was sought to engage a counsel. On 7.4.1997 copies of documents were distributed to the accused. On 31.5.1997 for the first time the learned counsel appeared and submitted his power of attorney on behalf of two coaccused. On 24.6.1997 Sakhawat petitioner did not engage the counsel and sought another opportunity. On 17.7.1997 the petitioner engaged his counsel and the case was adjourned to 10.9.1997. On 10.9.1997 counsel for the petitioner submitted his power of attorney. On 6.10.1997 two prosecution witnesses namely Muhammad Sharif and Muhammad Saleem were present but the learned counsel for the petitioner sought an adjournment. Again on 28.10.1997 the prosecution witnesses were present but the learned counsel for defence raised objection which is unsustainable. It appears that objection was raised that witnesses should be examined together. The case was adjourned. Thereafter, a number of adjournments have been granted and at present the case has been adjourned to 19.10.1998 for recording of prosecution evidence. From the perusal of those adjournments it appears that the accused or their counsel have been seeking adjournments one after the other. Two years period has not been fixed as a matter of limitation rather the period has been prescribed so that trial is expedited but in case trial is hampered or delayed especially when the witnesses were present then this right accrued to the accused under the statute, would not be available to him, because had the learned counsel conducted the case, trial would have been concluded much earlier. No one can be allowed approbate and reprobate. I do not find any merits in this petition which is disposed of accordingly. However, the learned trial Court is directed to conclude the trial expeditiously. Disposed of. (T.A.F.) Bail application dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 107 Present: mian muhammad ajmal. REHMAT ULLAH-Petitioner versus STATE and another-Respondents Cr. M. No. 855 of 1998, dismissed on 11.9.1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/324/34-Criminal Procedure Code (V of 1898), S. 497~Bail after arrest-Petitioner being accused of murder case had absconded and remained fugitive from law for about 4 years when he was arrested in Police raid-Explosives and arms were recovered from petitioner at the time of his arrest-Abscondence of noticeable period of 4 years has not been explained by petitioner-Fugitive from law and Courts, loses some of normal rights granted by procedural as well as substantive law- Petitioner's un-explained noticeable abscondence therefore, disentitled him to concession of bail, notwithstanding merits of case. [Pp. 108 & 109] A (ii) Pakistan Penal Code, 1860 (XLV of I860) - —S. 302/109-Criminal Procedure Code (V of 1898), S. 497-Entitlement to concession of bail-Petitioner had commanded and instigated his brother to shoot at deceased whereupon be fired at deceased who in consequence thereof, died at the spot-Petitioner's case would thus, fall under S. 109 P.P.C. which is punishable with punishment provided for the main offence-Petitioner was, thus, prima facie believed to be guilty of offence punishable with death or imprisonment for life-Bail was declined in circumstances. [P. 109] B 1995 SCMR 343; 1991 SCMR 322 ref. Mr. Wali Khan Afridi, Advocate for Petitioner. Kh. Azhar Rashid, A.A.G. for State Mr. Salim Dil Khan, Advocate for Complainant. Date of hearing: 11.9.1998. ' judgment Rehmatullah accused-petitioner, having failed to secure bail from the lower Courts in a case under Sections 302/324/34 PPC registered against him through F.I.R. No. 144 dated 20.7.1994 of Police Station, Akbarpura, has approached this Court for the said relief. 2. The contents of the F.I.R. are that Ihsanullah complainant alongwith his brother Kifayatullah were going to the house of Rehmatullah to lodge protest over the cutting of branches of their trees. When they reached the place of occurrence, they met Rehmatullah, accused-petitioner and his brother Farmanullah who were asked as to why they have cut the branches and directed to refrain in future, upon this, they got infuriated and the accused-petitioner commanded his brother Kifayatullah to kill them. Farmanullah fired at them with his pistol with which Kifayatullah was hit whereas the complainant escaped unhurt. 3. Learned counsel for the petitioner contended that the petitioner who was unarmed has been attributed the role of proverbial Lalkara. Since no effective role has been assigned to him, therefore, in view of judgment of the apex Court reported in 1995 SCMR 343, he is entitled to the concession of bail. He further contended that the petitioner remained in abscondence but this fact by itself would not disentitle him to be released on bail. In this regard he relied on 1991 S.C.M.R. 322 wherein it has been held that the accused if otherwise is entitled to bail he cannot be denied bail merely on the plea of abscondence. He submitted that Farmanullah who was charged for effective firing has been killed and the petitioner is no more required for further investigation of the case, therefore, he may be released on bail. 4. Learned counsel for the complainant vehemently resisted the bail plea arguing that the petitioner is a desperado who after the commission of the crime absconded and remained in abscondence for a noticeable period of four years which has not been explained by him. He was arrested in a police raid vide F.I.R. No. 152 dated 15.6.1998 Police Station Urmarh registered under Section 13 Arms Ordinance 4 S.T.A. and 5 Explosive Act. He submitted that the role attributed to the petitioner is not that of prover bail 'lalkara' as the complainant party met the accused party on the way to whom protest was lodged as to why they had cut the branches of their trees whereupon Rehmatullah commanded Farmanullah to shoot as a result of which Kifayatullah was killed. Hence it is not a 'lalkara' simpliciter but a command which was duly obeyed, therefore, he abetted the crime which is punishable with the punishment provided for the offence. 5. Learned Assistant Advocate-General adopted the arguments of the learned counsel for the complainant and opposed the bail plea. After hearing the learned counsel for the parties and going through the record I do not find a fit case where the concession of bail be allowed. After the occurrence which took place on 20.7.1994 the petitioner absconded and remained fugitive from law till 15.6.1998 when he was arrested in police raid. On a tip off that a number of proclaimed offenders have assembled in the 'hujra' of Shakir Qasim, a police party raided the 'hujra' wherefrom ten armed proclaimed offenders including the petitioner were arrested and to this effect FIR No. 152 dated 15.6.1998 under Section 13 AO/4 STA/5 Explosive Act, Police Station, Urmarh was registered. The abscondence of a noticeable period of four years has not been explained by the petitioner. It is well settled law that ugitive from law and the Courts loses some of normal rights granted by the procedural as well as substantive law. The petitioner's unexplained noticeable abscondence, there­ fore, disentitles him to concession of bail notwithstanding merits of the case. 7. Even on merits the petitioner has no case for bail. He commanded and instigated his brother Farmanullah to shoot, whereupon he fired at Kifayatullah who as a result thereof died. Therefore, the petitioner's case falls under Section 109 PPC which is punishable with the punishment provided for the main offence. In the circumstances, there are reasonable grounds to believe that the petitioner is guilty of the offence punishable with death or imprisonment for life. Consequently, this bail application is rejected. (T.A.F.) Bail refused.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 109 [Circuit Bench] Present: sardar muhammad raza, J. RAJA MUHAMMAD ZAHID-Petitioner versus STATE-Respondent Crl. Misc. No. 165 of 1998, decided on 29.5.1998. Prevention of Corruption Act, 1947 (II of 1947)-- ~'"S. 5(2)-Pakistan Penal Code (XLV of 1860), S. 16.1-Criminal Procedure Code (V of 1898), S. 497-Recovery of alleged tainted money by "Khidmat Committee' '--Trap arranged by such Committee was not supervised by Magistrate 1st class, therefore, same was illegal and violative of principle laid down by Superior Courts—Prosecution however, could not produce any legislation, enactment, or ordinance whereby "Khidmat Committee" had lawful authority to conduct raid against any civil servant or organize trap like the one it organized against accused—Plea taken by accused that he had received specified amount towards payment of original loan advanced to complainant by society (of which he was employee and authorized to recover the same on behalf of society) until proved at trial, prima facie indications whereof were available on record, accused was entitled to be released on bail-Accused being Government servant was no more required to be detained for further investigation and there were no chances of his abscondance-Accused was directed to be released on bail provided bond of specified amount was furnished by him in accordance with direction of Court. [Pp. 110& 111] A, B & C PLD 1968 Lahore 101; 1996 P.Cr.LJ 1499 ref. Qazi Shams-ud-Din, Advocate for Appellant. Mz'ss Nighat Afsar, Advocate for Respondent. Date of hearing: 29.5.1998. judgment Raja Muhammad Zahid, a Sub-Inspector Cooperative Society Mansehra, having been charged under Section 161 PPC read with Section 5(2) PC Act vide FIR # 4 dated 27.4.1998 of Anti- Corruption Establishment Mansehra, and having been refused bail by the learned Special Judge Anti-Corruption NWFP Peshawar, has come up to this Court. 2. One Muhammad Khakan Kiani son of Abdus Samad, his brother Malak Aman and a few others being members of Cooperative Society Mansehra had received some loan the original amount whereof was Rs. 1,62,464/- which, after including the mark-up and expenditure of the Court had gone upto to Rs. 2,71,288/-. The petitioner Raja Muhammad Zahid was deputed to make various recoveries in which connection Khakan stood arrested and was detained in prison. The allegation brought about against the petitioner by Malak Aman is to the effect that in order to procue/arrange the release of Khakan, the Sub-Inspector demanded a bribe of a sum of Rs. 50,000/-. Malak Aman made a complaint to the airman District. Khidmat Committee who in turn arranged a raid as a result whereof the tainted money passed to the petitioner was recovered from him and hence the charge. 3. There is a Pronote on the judicial file according to which the Co­ operative Society of Baffa Doraha had received a sum of Rs. 1,39,000/- and executed a pronote in favour of the Bank. On behalf of the Co-operative Society the Pronote was executed by Abdus Samad, Malak Aman the present complainant, and Muhammad Yousaf. At two places the Pronote is signed by Malak Aman on 15.10.1985 whose signatures are substantially different from the one available on the present complaint dated 25.4.1998. The very tenor and style of the two signatures is absolutely different from each other. It remains yet to be determined by the prosecution at trial as to whether the present complaint was in fact lodged by Malak Aman. 4. The trap in the instant case is not supervised by a Magistrate 1 st Class and hence is materially illegal and violative of the principle laid down in PLD 1968 Lahore 101. It is not known as to what dialogue occurred between the accused-petitioner and the one who made the payment. This dialogue and the ascertainment thereof becomes necessary in the wake of the plea taken by the accused that no doubt he had received a sum of Rs. 50,000/- but it in fact was towards the payment of loan. What went between the two at the time of the passing of the tainted money was therefore necessary to be brought on record in view of the principle laid down in 1996 P.Cr.L.J 1499. 5. Learned State counsel Miss Nighat Afsar could not produce and could not lay hands upon any Legislation, Enactment or Ordinance whereby a 'Khidmat Committee' had the lawful authority to conduct raid against any I civil servant or to organize a trap like on in hand. 6. Learned counsel for the petitioner has produced and has relied upon a certificate from the Manager Frontier Provincial Co-operative Bank Ltd. Mansehra showing that in the past two years or so most of the recoveries were made through the field staff. In addition to such certificate there is a statement dated 18.5.1978 of one Mian Kama ! Shah Assistant Registrar Co-operative Societies (at pages 15, 16 and 17 of the Judicial file) who has given a few details about the manner and mode of recovery but the most relevant is the version which is given in the last about 6 lines of his statement. He says that Raja Zahid petitioner while receiving the recovery (of Rs. 50,000/- in question) had written an application in his own hand for Malak Aman complainant wherein a prayer was made to the Chief Minister and Registrar Co-operative Societies that as a few of his members of the Society had died, the amount of interest be remitted and the amount which he had been paying (Rs. 50,000/-) should be deposited towards the principal amount. Mian Muhammad Kama! Shah has given it in writing that such application written for Malak Aman by the accused at the time recovery was gone through by the Deputy Commissioner as well. If all these statements are taken together, one feels that the plea taken by the accused that he had received the amount towards the payment of original loan is not a plea taken as a solitary one. Till such plea is proved at trial, the prima facie indications whereof are available on record, the petitioner is entitled to be released on bail. He is a Government Servant, no more required to be detained for further investigation and there are no chances of his abscondence. The application is accepted and the petitioner is directed to be released on bail provided a bond in a sum of Rs. 1,00,000/- with two sureties in the like amount is furnished to the satisfaction of learned Senior Special Judge Anti-Corruption/Sessions Judge Mansehra. (T.A.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C . ( Peshawar ) 111 Present: jawaid nawaz khan gandapur, J. WALI SHAH-Petitioner versus STATE-Respondent Bail Petition No. 963 of 1998, decided on 6.10.1998. Prohibition (Enforcement of Hadd ) Order 1979 (4 of 1979)-- —Art. 3/4-Criminal Procedure Code (V of 1898), S. 497--Charge against accused under Article 3/4 of Prohibition (Enforcement of Hadd ) Order 1979-Accused was refused bail by Courts below-High Court, without touching merits of case, and taking into consideration the fact that laboratory report in respect of contraband Article, (liquor) had not been obtained so far by prosecuting agency, formed opinion that reasonable grounds did not exist for believing that accused was connected with commission of offence charged with--Accused was allowed bail (if ot required in any other case) provided he furnished bail bond in the sum of specified amount. [P. 112] A Kh . Muhammad Khan, Mardan All, Advocates for Petitioner. Kh . AzharRashid , A.A.G. for State. Date of hearing: 6.10.1998. judgment Arguments heard. Record of the case perused. 2. The petitioner who stands charged for having committed an offence punishable U/A. 3/4 of the Prohibition (Enforcement of Hadd ) Order, 1979, Vide: F.I.R. No. 530 dated 2.8.1998 lodged in Police Station, Hayat Abad, Peshawar , has been refused bail by the lower Courts. He has, therefore, approached this Court for the redress of his grievance saying that he is absolutely innocent, falsely charged and thus entitled to be released on bail not as a matter of grace but as a matter of right. 3. Without touching the merits of the case, at this stage, and taking into consideration the fact that the Laboratory report in respect of the contraband articles (Liquor) has not been obtained so far by the Prosecuting Agency, therefore, I am of the opinion that reasonable grounds do not exist for believing that the petitioner is connected with the commission of the ffence charged with. 4. This bail petition is accepted. The petitioner shall be released forthwith, if not required in any other case, provided he furnishes bail bonds in the sum of Rs . 50,000/- ( Rs . Fifty thousand) with two sureties each in the like amount to the satisfaction of the Addl. Registrar (Judicial) of his Court. 5. The Addl. Registrar (Judicial) shall see that the sureties are , respectable persons, bail from the settled areas of Distt . Peshawar and have 1 sufficient property in their names. Attested copies of the property documents ( and photo-copies of the identity cards of the sureties shall be obtained by the Addl. Registrar (Judicial) and placed on this file for record. ( (T.A.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 113 (DB) Present: mian nazir akhtar and faqir muhammad khokhar, JJ. AAMER IQBAL-Appellant versus STATE-Respondent Criminal Appeal No. 30 of 1997, dismissed on 9.9.1998. (i) Alibi- —Murder case-Conviction for-Challenge to- Alibi-Plea of—Accused raised plea of alibi but produce no' evidence in support of plea—Whether an inference adverse to him can be drawn due to failure to produce evidence in support of plea of alibi— Question of—True, burden of proving its case beyond any reasonable doubt is always on prosecution and failure of an accused to prove his plea of alibi does not necessarily lead to an inference of his guilt-However, a distinction may be drawn in a case in which a plea of alibi raised but no evidence produced and in a case in which evidence in support of plea is produced but not found to be reliable or satisfactory-In former case, it can be said that after having raised plea of alibi accused abandoned it but in latter he attempted to prove it—In former case, no adverse inference can be drawn against an accused person but in latter if it is found that accused had attempted to fabricate evidence and bring forward false witnesses then it may give rise an inference against him~Present case pertains to former category-­ Appellant appears to have abandoned his plea of alibi, hence no inference adverse to him can be drawn for his failure to produce evidence to substantiate same-Prosecution has to stand or fall on its own legs. [P. 125] B (ii> Motive- —Murder case~Motive~Not established satisfactorily-Whether sufficient to doubt the prosecution story-Question of-Motive stated in FIR is neither convincing nor satisfactorily established but this, per se, is not sufficient to doubt prosecution story. [P. 119] A Sardar Muhammad Ishaq Khan, Advocate for Appellant. Muhammad Ayyub Kiani, Advocate for State. Ch. Zamurrad Hussain, Advocate for Complainant. Date of hearing: 14.7.1998. judgment Mian Nazir Akhtar, J.-Aamir Iqbal, appellant alongwith two others namely Qurban Hussain and Anwar Hussain were tried in the Court of learned Addl. Sessions Judge for offences u/Ss. 302/34 of the PPC in a case registered against him and 3 others vide FIR No. 146 dated 29.11.1993 at P.S. Kallar Syedan District Rawalpindi. He was convicted u/S. 308 PPC and awarded R.I. for 14 years as Tazir with a fine of Rs. 50.000/- or in default of payment to undergo R.I. for 2 years vide judgment dated 16.2.1997. He was also ordered to pay the amount of Diyat for the value of 30600 grams of silver to the legal heirs of Muhammad Imran and Adalat Hussain, deceased. 2. The FIR was lodged by Sajjad Ahmad, PW7 through a written complaint Ex. PH which formed the basis of formal FIR Ex. PH/1. He stated in the report that on 29.11.1993 at about 5 p.m. a quarrel had taken place between Mst. Irshad alias Shado wife of Anwar Hussain, accused and Mst. Mubarak Jan, mother of the complainant, whereupon the appellant armed with a pistol, Iftikhar accused (absconder) armed with a pistol and Qurban Hussain and Anwar Hussain (since acquitted) empty handed came to the spot. Qurban Hussain and Anwar Hussain raised a Lalkara upon which the appellant fired two shots at Muhammad Imran, deceased while Iftikhar (absconder) fired at Adalat Hussain. The two injured persons fell down and died at the spot. 3. The occurrence was witnessed by five persons including the complainant PW 7, Mst. Mubarak Jan PW 8 and three other persons namely Muhammad Taj, Muhammad Safdar and Muhammad Arshad who were given up at the trial. The investigation was conducted by Rabnawaz S.I. PW 14 who reached the spot on the same day; prepared the inquest reports Ex. P.K. and P.N. in respect of Adalat Hussain and Muhammad Imran, deceaseds respectively; secured blood-stained earth on 30.11.1993 vide recovery memo Ex. PA & PB, two led bullets of 30 bore pistol on 30.11.1993 vide recovery memo Ex. PC, recorded the statements of the eye-witnesses u/S. 161 of the Cr.P.C.; secured the last worn blood stained clothes of Adalat Hussain, deceased Shalwar PI, one shirt P2, Bunyan P3 vide recovery memo Ex. PD and last worn clothes of Muhammad Imran, deceased, i.e. Shalwar P5, Kameez P4 and Bunyan P6 vide recovery memo Ex. PE. He sent the dead bodies of the deceased for post-mortem examination through Zareen and Muhammad Nazir, constables. The post-mortem reports in respect of Adalat Hussain and Muhammad Imran, deceased Ex. PI and PJ, respectively. He got the site plan prepared through Qamar-ud-Din PW5 and arrested Amir, Qurban Hussain and Anwar Hussain accused on 6.12.1993. Iftikhar accused had absconded and was declared to be a P.O. on a move made by the I.O. 4. Dr. Basharat Hussain Raja PW9 conducted the post-mortem on the dead bodies of the two deceased persons. He found the following injuries on the dead body of Imran deceased:- 1. In oval shape fire arm entry wound with blackening around it over the epigastriun measuring 1 x 3/4 c.m. irregular margin and inverted shape as shown in diagram. 2. Another oval shape fire arm entry wound with blackening measuring 1 x 3/4 cm inverted close to injury No. 1 as shown in diagram and was on the Epigastrium. 3. A fire arm exist wound 2 cm x 1 cm with overted margin with blackening over the right side of back of middle of chest. 4. A fire arm exit wound I/ \ cm x 1 cm over the back in its lower part as shown with irregular margin and leading through it. Corresponding fire arm marks over bunyan and Kameez were present. About 2 \ liters cc of blood was present in right chest cavity. Injury No. 3 was the exist wound of injury No. 1. Bullet had been passed through liver and right lung. Blood was present in abdominal cavity. Injury No. 4 was the exit wound of injury No. 2. Bullet has passed through stomach intestines to the muscle of back damaging the vessels close to kidneys and gone out. Stomach was damaged and every thing was leaked out. Right lung was damaged. Pancreas was damaged. In small intestines greasi material was present. Large intestine was empty. Liver was damaged. About 40 cc urine was present in the bladder. The doctor also found the following injuries on the deadbody of Adalat Hussain, deceased:- 1. "A fire arm entry wound 1 c.m. in diameter with blackening around it over the front of upper part of left side of chest, and inverted as shown in diagram. 2. Abrasion 1 c.m. into h c.m. over the lower part of right knee joint. 3. Abrasion l^xl e.m. over upper part of right knee joint. 4. Abrasion 5 c.m. x 3 c.m. over lower part of left knee joint. 5. Abrasion 3 x 2 c.m. over the upper part of left knee joint. 6. Abrasion 1 x \ c.m. on the back of left elbow joint. 7. Abrasion 1 c.m. x 1 \ c.m. over the outer side of upper part of left forearm. 8. Four fire arm wounds over the back of chest from right shoulder to left hip in direction. (a) Fire arm entry wound 2 x 1 c.m. as shown with blackening around it. (b) Fire arm exit wound of injury No. 1, 1 x 1 c.m. with a everted margin. (c) Exit wound of injury No. 88-a, \ 1 c.m. with blackening over it. (d) A fire arm friction with blackening 5 c.m. x 1 c.m. as shown in diagram due to 8-a, 8-c & 8-b. Due to injury No. 1 heart and left lung was damaged. Resulting in blood loss in the chest cavity where 3 litres of blood was present. Small intestines contained 2 m.l. of greasi material Stomach was empty and bladder was full of urine." 5. The appellant's learned counsel contends that the FIR was not recorded at the time and place given therein, in fact, it was recorded on the following day of the occurrence which had taken place at 8.00 or 8.30 p.m. and not at 5.00 p.m. on 29.11.1993; that if the occurrence had taken place at 5.00 p.m. then the FIR recorded by Rabnawaz, ASI at Kallar Bazar at 10.30 p.m. was clearly delayed by several hours; that the motive set up by the prosecution was not believed by the trial court, therefore, prosecution must suffer its consequences; that there is a background of previous enmity between the parties, therefore, the ocular evidence could not be relied upon without independent corroboration which is lacking in the present case; that the medical evidence completely belies the ocular evidence; that the post­ mortem report shows that Adalat Hussain, deceased had received more than 2 bullet injuries; that injury No. 8-c is also a wound of entry which was wrongly shown as would of exit; that in the inquest reports Ex. PK and Ex. PN in Column No. 4 originally the name of Muhammad Ejaz was written and subsequently changed into Sajjad; that the columns in the inquest report pertaining to two or more respectables of the area are lying vacant; that the I.O. was duly confronted with this who admitted the factum of interpolations but denied the suggestion that originally the name of Ejaz was written which was changed into Sajjad; that the 1.0. admitted that there were no initials on the above referred interpolations; that the I.O. had also admitted that there was an inerpolation qua the name of Sajjad, complainant in the statement of Mst. Mubarak Jan recorded u/S. 161 of the Cr.P.C.; that these interpolations demonstrate that Sajjad complainant had not witnessed the occurrence and was subsequently made an eye-witness; that immediately after his arrest the appellant had stated that he was not present at the place of occurrence at the relevant time; that he was present in village Daryal with his tutor Muhammad Shabbir; that the police did not conduct investigation to verify the correctness of the appellant's plea of alibi; that the statements made by PW1 Abdur Razzak, PW 3 Zarin Akhtar and PW 6 Mumtaz Hussain, constable on the one hand proved previous enmity between the parties and on the other showed that the FIR was lodged at the Police Station; that Rabnawaz, SI after leaving the police station had straight gone to the spot without staying anywhere in the way; that shots were fired at the two deceased by Iftikhar, absconder and not by the appellant who was falsely implicated in the case; that at any ate, there was no cogent material on the record to show that the appellant had attained sufficient maturity so as to realize the consequences of this act, therefore, he could not have been awarded sentence of imprisonment of payment of Diyat; that the judgment of the trial court is no judgment in the eye of law and that the trial court had not applied its independent mind to the facts of the case and illegally convicted the appellant. The above points are also incorporated in the written statement submitted by the appellant under Section 265-F of the Cr.P.C. which has also been considered. 6. On the other hand, the complainant's learned counsel contends that the FIR was lodged at Kallar Bazar which was situated at considerable distance from the place of occurrence; that even the police station is not far off from Kallar Bazar; that the complainant's statement was recorded by the I.O. at Kallar Bazar at 10.30 p.m. and thereafter he reached the spot; that mere failure to prove motive set up by the prosecution does not re-act on the prosecutions troy as held in the cases of "Manzoor Ahmad vs. The State" (PLD 1983 SC 197) and "Ghulam Nabi vs. Diam and another" (1986 SCMR 1424); that the concessional statements made by Zarin Akhtar, PW 3 and Mumtaz Hussain, PW6 cannot be given by weight; that their crossexamination should have been confined to the facts stated by them in examination-in-chief and that the concessional statements qua other facts were irrelevant, relies on the judgments in the cases of "Baguvs. The State" (PLD 1972 SC 77) and "Haider Zaman vs. The State" (1995 P.Cr.L.J. 217); that PW 9 Dr. Basharat Hussain Raja had explained that injury No. 8-b suffered by Adalat Hussain, deceased was exit wound of injury No. 1; that injury No. 8-c was exit wound of injury No. 8-a; that injury No. 8-b was caused due to injuries No. 8-a or 8-b; that injury No. 8-d was not caused due to any separate shot fired at the deceased; that injuries No. 2 to 7 were possible due to fall of the deceased on the hard surface or due to his rapid movements in a state of pain and agony after falling down on the ground; that Mst. Mubarik Jan and Sajjad Ahmad, complainant had witnessed the occurrence from points No. 4 & 8 shown in the site plan; that the gate of the Haveli was open from where both the eye-witnesses could conveniently see points No. 2, 5 and 6 where Imran and Adalat deceased were injured; that Mst. Mubarik Jan had not entered any room of the house so as to make it impossible for her to witness the occurrence; that by entering the house, she meant to convey her entry in the Haveli through the gate which was open; that the alleged interpolations were not proved to have been made by the Investigating Officer; that the same might have been made by the I.O.; that the same might have been made by some interested party after submission of the challan in order to create doubt in favour of the accused persons; that the appellant after having set up the plea of alibi was bound to prove it, failing which it could be presumed that he was present at the time of occurrence; that in his statement before the police the appellant had stated that he was present with his tutor named Master Shabbir but in crossexamination of the eye-witnesses the name of the tutor was given as Master Sultan; that neither Master habbir or Master Sultan was produced at the trial in support of the appellant's plea of alibi; that the appellant was aged about 17 years at the relevant time and had attained sufficient maturity to realise the consequences of his act and was rightly convicted by the court below. ' 7. In support of its case, the prosecution produced 14 witnesses. PW 1 Abdur Razzaq had accompanied dead-body of the deceased to the hospital on 30.11.1993 for post-mortem examination, had identified the same before the doctor and thereafter received the dead-body. PW2 Muhammad Babar had witnessed recovery of blood-stained earth from the spot on 30.11.1993 at 3.00 a.m. which was secured vide recovery memos Ex. PA and Ex. PB. PW3 Zarin Akhtar, constable had accompanied the deadbody of Adalat Hussain, deceased to the mortuary for post-mortem examination. He had handed over the last-worn clothes of the deceased (Shalwar PI, Shirt P2 and Bunyan P3) which were taken into possession vide recovery memo Ex. PD. PW 4 Muhammad Nazir had escorted the dead-body of Imran deceased to the mortuary for post-mortem examination. After the post-mortem examination, he received the last worn clothes (shirt P4, Shalwar P5 and Bunyan P6) and handed over the same to the I.O. who secured them vide recovery memo Ex. PE. PW 5 Qamar-ud-Din had prepared site plan Ex. PF and Ex. PF/1. PW6 Mumtaz Hussain was given warrants for arrest of Iftikhar Hussain, absconder on 19.3.1994. He went to this residence but could not trace him out. He appeared before the Magistrate and his statement was recorded on 26.3.1994. He was entrusted with the proclamation (Ex. PG) of the said accused which was pasted by him at his residence near mosque of the village. PW 7 is Sajjad Ahmad, complainant who stated that on 29.11.1993 he had come back from his duty at 5.00 p.m.; that Mst. Irshad alias Shado, his relative (aunt) had poured a bucket of water in front of door of his Haveli, whereupon his mother Mst. Mubarik Jan stopped her from doing so; that the women exchanged abuses and in the meanwhile, Aamir appellant armed with a 30 bore pistol, Iftikhar, absconder armed with a 30 bore pistol, Qurban and Anwar empty handed came there raising Lalkaras from their house that they be not allowed to go away alive; that the appellant fired 2 shots at his brother Imran who was standing in front of the gate of the Haveli in the street; that he received injuries at his belly, ran inside the Haveli, fell down on the ground and succumbed to his injuries; that his father Adalat Hussain was coming after attending a funeral ceremony and Iftikhar absconder fired a shot causing injuries on left side of his chest; that he returned towards his Baithak in a whirling condition; that Iftikhar absconder fired another "shot causing injuries on his back; that he fell down and died at the spot; that the occurrence was witnessed by Muhammad Safdar, Muhammad Irshad and Taj as well; that Anwar and Qurban continued raising Lalkaras in the steet; that a large number of persons gathered e spot; that gate of the Haveli was closed by Safdar and Irshad from inside; that he managed to reach .Kallar Syedan and reported the matter to the Police at Kallar Chowk through the complaint Ex. PH. PW. 8 Mst. Mubarak Jan mother of Sajjad Ahmad is the other eye­ witness who corroborated the statement made by PW. 7. PW. 9 is Dr. Basharat Hussain Raja who conducted post-mortem examination on the deadbody of Imran, deceased at 9.00 a.m. on 30.11.93 and on the deadbody of Adalat Hussain, deceased at 10.30 a.m. on the same day. PW. 10 Khan Muhammad ASI had obtained non-bailable warrants for arrest of Iftikhar accused on 19.3.94 but could not arrest him as he had absconded. PW. 11 Muhammad Ramzan constable was posted at Kallar Syedan on 11.12.93. He was given two sealed parcels containing bloodstained earth which were delivered by him in the office of the chemical examiner on the same day. PW. 12 is Muhammad Sarfraz ASI who had recorded the formal BR Ex. PH/1 on the basis of the complaint Ex. PH. PW. 13 Muhammad Ejaz had identified the deadbody of his father Adalat Hussain, deceased and brother Muhammad Imran, deceased before the doctor. PW. 14 Rab IjJawaz S.I. had conducted investigation in the case, arrested the appellant as well as Qurban and Anwar accused and submitted challan against them. The prosecution gave up Muhammad Taj, Muhammad Safdar, Muhammad Irshad and Abdur Rashid PWs as being unnecessary on 8.5.96, tendered in evidence report of the chemical examiner Ex. PR and that of the serologist Ex. PS and closed the prosecution evidence on 7.10.1996. 8. When examined u/S. 342 of the Cr.P.C. the appellant denied the llegation of firing at Imran, deceased, he denied that Iftikhar absconder had ired at Adalat Hussain, deceased. He claimed that he had voluntarily ppeared before the resident Magistrate, Kahuta on 6.12.93 and was rrested by the police. He added that the PWs had deposed against him due o relationship with the deceased and enmity against him. He tendered in vidence a copy of the order dated 21.9.94 passed by this Court in Cr. M. 92-B/94 (Ex. DC) and a copy of order dated 1.2.95 passed by the Supreme ourt of Pakistan in Cr. A. No. 372/94 (Ex. DD). He was questioned hether he would like to make a statement on oath U/S 340(2) of the r.P.C. to disprove the prosecution allegations against him to which he eplied in the negative. However, he filed written statement under Section 65-F of the Cr.P.C. which embodied the above stated arguments raised by the appellant's learned counsel. 9. In the tragic incident two persons i.e. Adalat Hussain and his oung son Imran had unfortunately lost their lives. True the motive stated in he FIR is neither convincing nor satisfactorily established but this per se, is ot sufficient to doubt the prosecution story. The occurrence appears to be he result of a trivial dispute about throwing of water in the street and subsequent exchange of abuses between Mst. Mubarik Jan PW 8 (mother of he complainant) and Mst. Irshad Begum alias Shado (mother of the ppellant). The complainant stated that the ladies continued to exchange buses for about 15 minutes but during this time nobody except himself had asked them to stop abusing each other. Probably at some juncture during the exchange of abuses, Imran deceased, a young boy of about 17/18 years, came out to side v/ith his mother. Simultaneously with his arrival, the appellant and Iftikh ar, absconder armed with 30 bore pistols and two other co-accused namely Anwar and Qurban came there. This can be gathered rom the statement of the complainant who stated in cross-examination, "Imran had gone out in the street during the exchange of causes between the two ladies. The accused had come to the spot after Imran had gone in the street. Imran had gone in the street on hearing abuses tween the ladies. The accused also came there on hearing the noise of abuses between the ladies." As long e\s the dispute remained confined between the ladies the accused showed restraint and did not intervene but the moment Imran ceased came out to side with his mother they lost patience, emerged out from their adjacent house and then the tragedy was enacted. e appellant suddenly flped al; Imran deceased who was present just in front of the gate of the Haveli.. He ran inside the Haveli and fell down near the stair-case and died after, somo time. In the meanwhile the complainant's father reached there ar.id was fired at by Iftikhar absconder. He also died at the spot. The assailants were already known to the complainant who made no mistake identifying them. After the incident the complainant and his family me\nbers were in a woeful condition. They also apprehended more harm at tb .e hands of the assailants and closed the door of the Haveli for safety. In .his situation the complainant took some time and then proceeded on foot to odge the FIR. By that time it had already become dark. He met Rab Nawaz ASI in Kallar Bazar and lodged the FIR Ex. PH/1. Under these circumstances, some delay in lodging the FIR was bound to occur. I am not prepared to doubt the veracity of the prosecution story due to the element of delay in lodging the FIR in the circumstances of the case. The complainant had stated in his examination in chief that he had lodged report Ex. PH to the police at Kallar Chowk and signed the same after it was read over to him. However, in cross-examination, he stated, "at the spot the police had been preparing papers and I had signed there only the FIR". From this the appellant's learned counsel has built his argument that the report was odged at the spot. It appears that the learned defence counsel with his ingenuinity had combined two questions in cross-examination, one relating to preparation of papers by the police at the spot and the second about signing of the FIR which confused the witness. The witness had already stated that he had lodged the report at Kallar Chowk which was read over to im and he had signed it there. To the same strain is the statement made by PW 14 Rab Nawaz, ASI. Therefore, I am not prepared to give any weight to he argument that the FIR was recorded at the place of occurrence. The complainant was subjected to lengthy cross-examination but he stood t test squarely and nothing really damaging to his veracity could be elicited. He denied the suggestion that information about the occurrence wa conveyed at the Police Station by some other person and that the police party had directly reached the village without staying anywhere in the way and that he was summoned from his Rawalpindi residence and the report Ex. PH was drafted on the following day after the post-mortem examination. This suggestion was made in view of the concessional statement made by Zareen Akhtar, PW. 3. As mentioned bove, they were merely formal witnesses and had to be cross-examined about what they had deposed in the examination in chief. It was laid down in the case of "Baggu vs. The State" (1972 SC 77) that there was a growing tendency and propensity of formal police witnesses to make obliging concessions in favour of defence with regard to matters wholly unconnected with their part in investigation of the case. Such concessions were strongly disapproved by the Supreme Court. The same view was expressed in the D.B. judgment from the jurisdiction of Peshawar High Court in the case of "Haider Zaman and other vs. The State" (1995 P.Cr.L.J. 217) (Peshawar). The appellant's learned counsel urged that the most crucial admission on the part of PW. 7 is in these words: "I did not mention before the police that I had seen the occurrence." After having narrated the entire occurrence as an eye-witness, it was hardly necessary for the witness to have specifically stated that he had seen the occurrence. The fact that he had seen the occurrence can be gathered from the statement made by him before the trial court. The statement made by the complainant is corroborated in all material respects by his mother PW. 8 Mst. Mubarak Jan who was admittedly present at the spot. Regarding her statement the learned defence counsel laid great stress that she had entered her house and was not in a position to witness the occurrence. The argument does not appear to be sound. Mst. Mubarak Jan had seen the appellant and Iftikhar accused armed with 30 bore pistols alongwith Anwar and Qurban accused coming at the spot. Due to fear she entered the Haveli through the open gate. There is nothing to show that she had gone inside any room of the house. She had just entered her Haveli when her son was fired at by the appellant/She was also in a position to see the shot being fired at her husband Adalat Hussain (from point No. 8 in the site plan Ex. PF). It is true that she was not fired at by the assailants. May be they had spared her due to her womanhood, old age and close relationship. It is in evidence that as long as the tussle remained confined to the ladies, the accused persons did not come out to intervene. The further fight had resulted due to arrival of Imran, deceased at the spot. Although, Mst. Mubarak Jan PW. 8 has stated that after coming out of the house her son Imran just stood in the street and did nothing whatsoever, this does not appear to be correct. Imran being a young boy aged about 17/18 years must have said something to Mst. Irshad Begum, whereupon the accused persons came forward to launch the attack. 10. It is true that there is some background of enmity between PW. 1 Abdur Razzak and the accused party but it appears to be fairly old. PW. 1 Abdur Razzaq aternal-uncle of Mst. Mubarak Jan, PW. 8) had identified the deadbody of the deceased in Civil Hospital, Kahuta and stated in cross-examination that about 20 years ago, he got a case registered against Malik Mardan Ali Riyasat, Shafique and Anwar Hussain accused who had injured him, his brother Muhammad Jee, his wife Mst. Maroof Jan and nephew Muhammad Safdar. He admitted that motive for the said case was a dispute about a path and added that there were cases between the parties which had gone up to Martial Law Authorities and the police. Sajjad Ahmad, complainant stated that Ms^. Maroof Jan wife of Abdul Razzaq was maternal cousin of Habib alias Habiba whose cousin Barkat was murdered in 1987 for which a case was registered against Muhammad Iftikhar, absconder and his cousin. On the other hand, Ibrar, a nephew of Anwar Hussain accused was murdered in which Habib alias Habiba and Wajid were challaned. Thereafter, Wajid was murdered and in the said case Qurban and Ajmal were challaned and that Ajmal was sister's son of Qurban accused. It will be seen that the old enmity is primarily between Abdul Razzaq and Habib alias Habiba on the one hand and the accused party on the other. Sajjad Ahmad, complainant and his family members have no direct enmity against the accused persons and were not shown to be concerned with the previous civil or criminal litigation either as a party or witnesses. The complainant party and the accused party are neighbours and closely related. Adalat Hussain, deceased was an uncle of the appellant and Imran, deceased was his cousin. There is nothing to show that the complainant party in the present case had been siding with Abdul Razzaq or Habib alias Habiba in their previous civil and criminal litigation against Anwar Hussain etc., the accused party. Therefore, the statements of Sajjad Ahmad, complainant and his mother Mst. Mubarak Jan cannot be discarded for the above stated enmity. 12. To shatter the veracity of the eye-witness account furnished by Sajjad Ahmad, PW. 7, the appellant's learned counsel vociferously urged that the witness was still on his way back from his place of duty, when the occurrence had taken place and that the exact point in the way from where he had seen the occurrence was not shown in the site plan. The argument is wholly misconceived. In the site plan, points No. 4 and 8 have been indicated from where PW. 7 & PW. 8 had seen the assailants firing at Imran and Adalat Hussain, deceased. In the FIR Ex. Pstate while appearing as a witness in the court he had made the same statement in the following words (I It clearly meant that he had already reached home. However, in the English rendering of his evidence, the following words were type-written: - "On 29.11.1993, 1 was on my way from my duty." This is obviously what the witnesses had not stated. From this error, the appellant's learned counsel tried to build the argument that Sajjad Ahmad, PW. 7 was still in his way back to the house when the occurrence had taken place and that the said point in the way was not shown in the site-plan. Since Sajjad Ahmad, PW. 7 had already reached his house. His presence alongwith his mother Mst. Mubarak Jan, PW. 8 was shown in the site plan Ex. PF at point No. 8 from where they had seen Iftikhar accused firing at Adalat Hussain and at point No. 4 from where they had seen the appellant firing at Imran, deceased. The witness had further clarified in crossexamination as under:- "I did not state in the FIR that while I was on my way from my duty, I saw the occurrence." In the Urdu version his statement was noted in these words:- Therefore, there is no substance in the argument raised by the appellant's learned counsel that Sajjad Ahmad, PW. 7 was still in the way when the occurrence had happened. 13. The argument raised by the appellant's learned counsel that the interpolations qua the name of Sajjad Ahmad in column No. 4 of the inquest report and the statement of Mst. Mubarak Jan recorded U/S 161 of the Cr.P.C. show that Sajjad Ahmad was not present at the spot and was subsequently made an eye-witness, does not carry much weight In column No. 4 of the inquest reports, the names of two witnesses who had identified the deadbody are mentioned. The first witness is Abdul Razzaq son of Akbar Ali. The name of the second witness shows some interpolations. It appears that originally the name of Muhammad Sajjad was written and then an attempt was made to change it into Ejaz. In the inquest report of Adalat Hussain, deceased after the word j3 letter / has been inserted touching the letter 3 of the word j7. Another letter | has been written over the letter £> . To me it appears that some interested party had made a crude attempt to change the name of Sajjad into Ejaz for creating doubt about his presence at the time of the occurrence. I have also noticed that even in the complaint Ex. PH an attempt was made to change the word <jf. I

or i_£\» regarding locale of fire-arm injury received by Adalat Hussain, deceased at the hands of Iftikhar, absconder. Anyhow, the alleged interpolations in the inquest report were not proved to have been made by the 1.0. Prior to preparation of the inquest report, the FIR had already been recorded on the statement of Sajjad Ahmad, PW. 7. So far as the interpolation in the statement of Mst. Mubarak Jan recorded u/S. 161 of Cr.P.C. is concerned, it is also another crude attempt to create doubt about correctness of the record. The word^jj^ appears to have been written over somewhat dim writing of the earlier word > ^f: This is also inconsequential because at three other places in the statement of Mst. Mubarak Jan, PW. 8, the name "Sajjad Ahmad" is clearly mentioned without any interpolation. Hence, I am not prepared to doubt the presence of Sajjad Ahmad, complainant at the time of the occurrence to the above-referred interpolations. 14. The oral evidence gets support from the medical evidence to the xtent of inflection of injuries to the deceased persons by fire-arms. The ppellant's learned counsel strenuously urged that the eye-witnesses had ttributed two shots to the appellant and two to Iftikhar, absconder but ccording to the post-mortem report, more than four fire-arm injuries were caused to the two deceased persons. So far as Imran, deceased is concerned, he post-mortem report clearly shows that he had received only two fire arm njuries (No. 1 & 2) and the other injuries (No. 3 & 4) were exit wounds. On he body of Adalat Hussain, deceased, the doctor had found injuries No. 1 to (d). Injury No. 1 is a fire-arm entiy wound over the front of upper part of left side of chest. Its exit wound is injury No. 8(b). The second wound of ntry is 8(a) having exit found 8(c). Another injury No. 8(d) is shown to be a ire-arm friction due to injury No. 8(a), 8(c) and 8(b). Thus, as per the post­ ortem report, injury No. 8(d) had not been caused due to an independent ire shot. The question in what manner injury No. 8(d) had been caused was ot got clarified in cross-examination of the doctor. The cross-examination of he doctor was limited to injury No. 1, 8(a), 8(b), 8(c) and 2 to 7. As regards he abrasions (injuries No. 2 to 7) found on the knee-joint, left elbow-joint and outer side of upper part of left forearm, these could have been caused as result of sudden fall of the deceased on hard surface and movements of his body in a state of pain and agony. Thus, there is no real contradiction etween the oral and the medical evidence. 15. The appellant as well as Iftikhar, accused had absconded mmediately after the occurrence. The appellant surrendered before the ourt on 6.12.93 and was formally arrested by the police while Iftikhar, coccused is still a fugitive from the law. Immediately after his arrest, the ppellant had set up the plea of alibi before the I.O. He had stated that at the ime of occurrence he was present with his tutor named Shabbir and had earnt about the occurrence in his house. After having set up the plea of alibi t was for the appellant to produce evidence to show that his plea was easonably possible. The appellant's learned counsel urged that the I.O. ught to have verified the correctness or otherwise of the appellant's plea of libi but he failed to do the needful. This argument is contraiy to the record. uring the course of investigation, Gul Abbas, DSP had recorded the tatement of Muhammad Shabbir, tutor on 19.12.93 (Zimni No. 15 dated 19.12.93). However, vide para 13 of the said Zimni, he opined that the plea of alibi was fabricated and an after-though, therefore, he did not agree with it. Thus, it is evident that after proper investigation, the appellant's plea of alibi was rejected by the I.O. During the trial, the appellant's defence of alibi was unfolded through cross-examination of the eye-witnesses but the name of the tutor was suggested to be Master Sultan instead of Master Shabbir. This might have been due to an error on the part of the learned defwoe counsel for which the appellant should not be penalized. However, the bet remains that the appellant neither specifically raised the plea of alibi in his statement under Section 342 of the Cr.P.C. nor produced any evidence in support of the same. It is settled law that an accused person after taking the defence of alibi had to produce some evidence to show that it was reasonably possible. The burden to call witnesses in support of the plea of alibi is on the accused person as held in the case of "Nem Singh and others vs. Emperor" (AIR 1934 Allahabad 908), "Emperor vs. Nirmal Jiban Ghose and others" (157 I.C. 387), "Muhammad Ayub vs. The State" (PLD 1964 (W.P.) Peshawar 288), "Aminullah vs. The State" (PLJ 1982 SC 592) and "Khushi Muhammad vs. The State" (1983 SCMR 697). In some cases it has been held that if the defence plea of alibi breaks down, it can give rise to an inference that in all probability the accused was present where the prosecution says he was. In this connection, reference may be made to the judgments in the cases of "Sarat Chandra Dhupi vs. Emperor" (AIR 1934 Calcutta 719) and "Sheo Shanker and another vs. The State" (AIR 1953 Allahabad 652). However, a contrary note was struck in the case of "Ilahi Bux and another vs. The State" (1969 SCMR 584) in which it was held that failure to prove the lea of alibi does not recoil on the accused and that the burden of proving guilt of an accused remained on the prosecution. True, the burden of proving its case beyond any reasonable doubt is always on the prosecution and failure of an accused to prove his plea of alibi does not necessarily lead to an inference of his guilt. However, a distinction may be drawn in a case in which a plea of alibi is raised but no evidence produced and in a case in which evidence in support of the plea is produced but not found to be reliable or satisfactory. In the former case, it can be said that after having raised the plea of alibi the accused abandoned it but in the latter he attempted to prove it. In the former case, no adverse inference can be drawn against an accused person but in the latter if it is found that the accused had attempted to fabricated evidence and bring forward false witnesses then it may give rise an inference against him. The present case, pertains to the former category. The appellant appears to have abandoned his plea of alibi, hence no inference adverse to him can be drawn for his failure to produce evidence to substantiate the same. The prosecution has to stand or fall on its own legs. 16. The trial court has recorded a finding that the appellant had attained sufficient maturity at the time of commission of the offence. As per the entires made in his school leaving certificate (referred to in the order dated 1.2.1995 Ex. DD passed by the Supreme Court of Pakistan refusing leave to appeal against appellant's bail order dated 21.9.94 Ex. DC passed by this Court) the appellant's date of birth is shown as 10.3.1977. Therefore, on the date of occurrence, i.e. 29.11.1993 the appellant's age was 16 years 8 months and 21 days. A boy of this age generally becomes fairly sensible and fully realizes the consequences of his acts. He could very well know that by firing two pistol shots at another human being he would cause his death and be guilty of murder. His conduct in the occurrence and replies given to the I.O. during the course of his interrogation fairly indicate that he had attained sufficient maturity. At the time of occurrence, he had taken a pistol from his house, loaded it and came out alongwith his co-accused, fired two shots in quick succession at Imran, deceased. He acted in a determined manner to cause death of Imran, deceased. Immediately after arrest, he was interrogated by the I.O. on 6.12.93. I have gone through the relevant Zimnies. The appellant set up the plea of alibi by saying that at the time of occurrence he had gone to the house of Hqji Shabbir.for tuition and that he got the news in the house of his tutor that his brother-in-law Iftikhar alias Biloo had murdered Adalat Hussain and Imran. He straight came to the house and saw that his uncle Adalat Hussain had died and Imran was in a seriously injured condition; that his family members sent him to Lahore where he stayed in the house of his uncle; that there he learnt that his brother-in-law Iftikhar alias Biloo had also come to Lahore and might have gone to Karachi where he was employed in the Pak Army. He added that there was unpleasantness between his family and that of his uncle Adalat Hussain; that the two families were not on speaking terms but personally he used to have talks with Muhammad Imran deceased. The manner in which he made his statement before the I.O. is indicative of his maturity. Therefore keeping in view the appellant's age, his conduct in the occurrence and manner of making a statement before the I.O., I uphold the finding of the trial court that the appellant had attained sufficient maturity to realize the consequences of his fact. Even otherwise, notwithstanding anything contained in sub-Section (1) of Section 308 of the PPC, the court, having regard to the facts and circumstances of the case, in addition to the punishment of Diyat, can award imprisonment of either description for a term which may extend to fourteen years, as Taazir. The facts and circumstances of the present case justify award of the sentence of imprisonment to the appellant by virtue of the provisions of Section 308(2) of the PPC. 17. For the foregoing discussion, I do not find any merit in this appeal which is dismissed. . • (K.A.B.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 127 (DB) Present: zafar pasha chaudhry and kh. muhammad sharif, JJ. NASAR IQBAL etc.--Appellant versus STATE-Respondent Criminal Appeal No. 722 of 1993, dismissed on 21.7.1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/34-Murder-Offence of-Conviction for-Incident took place at 6.00 .M. on 26.6.1989~During month of June sun rises quite early and by .00 A.M. there is almost a day light, therefore, there remains no ifficulty in identifying assailants-Defence has not been able to ontrovert assertion that complainant as well as other witnesses were resent at glace of occurrence to attend court proceedings-There is no ota of evidence that FIR was not lodged promptly-Wintesses have been ubjected to lengthy cross examination yet nothing material came out to amage prosecution version-Statements of eye witnesses are supported y medical evidence-Motive has got recorded in FIR which indicate nmity in between parties-Facts of case does not support the argument hat exonerating real culprits, innocent persons would have been nvolved-Appeal dismissed. [Pp. 138 & 140] A to F (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/34-Murder-Offence of-Co-accused acq tted, but appellants onvicted-Appreciation of evidence-Controversy of proposition of law hat once a witness is disbelieved qua one accused same cannot be relied pon qua other has been set at naught by Supreme Court by holding that alsus in uno, falsus in omnibus is not of universal application-Trial ourt assigned cogent reasons to differentiate case of appellants and cquitted accused-Acquitted co-accused, who have not been alleged to ave specifically fired at a particular person are entitled to benefit of oubt, hence, they have been rightly acquitted. [P. 141] G & H Mr. Ijaz Hussain Batalvi alongwith Af.A Zafar, Advocate and Akhtar Qureshi, Advocate for Appellant. Mr. S.D. Qureshi, Advocate for Respondent. Dates of hearing: 10.6.1998 and 11.6.1998. judgment Zafar Pasha Chaudhry, J.--Criminal Appeal No. 722/93 as well as Criminal Revision No. 137/94 and Criminal Revision No. 140/94 have been taken up together as they arise out of the me judgment dated 3.11.1993 passed by Ch. Zahoor Hussain, Judge Special Court (Suppression of Terrorist Activities) Gujranwala. 2. Through Criminal Appeal No. 722/93, Nasar Iqbal, Muzafar Iqbal, Amjad Mehmood, Imtiaz Ahmed and Ghulam Abbas have challenged their conviction and sentence. Whereas, Criminal Revision No. 137/94 filed by Muhammad Aslam complainant has assailed the order of acquittal passed in favour of Ansar Mahmood, Amjid, Mushtaq Ahmed, Muhammad Eyas, Muhammad Saleem, Zafar Iqbal and Feroze Khan. Muhammad Aslam complainant has filed an other Criminal Revision No. 140/94 against the five convicts who are appellants in Criminal Appeal No. 722/93 i.e. Nasar Iqbal and four others, praying that the amount of fine and compensation as ordered to be paid by them is inadequate, the same may be revised and enhanced. 2. The prosecution case as disclosed through FIR Ex. PO recorded at he instance of Muhammad Aslam PW-6 (complainant) is that on 26.6.1989 t 6.00 am he (complainant) alongwith Naviz Akhtar his cousin, Muhammad rif and Zafar residents of Pooch, Muhammad Rafi alias Warryam r/o alikpur, Waris r/o Rengrah and Syed Muhammad Shah r/o Madina were waiting to board a bus at bus stop of Malikpur to attend the court hearing, hen Imtiaz Ahmad armed with kalashnikov, Ghulam Abbas with alashnikov, Muhammad Iqbal (proclaimed offender) with alashinkov, nsar and Amjad sons of Fateh Muhammad, Feroz Khan, Amjad Khan s/o ai Khan, Saleem r/o Peero Shah all armed with rifles, Nasar, Muzafar, lyas (since dead), Zafar s/o Ahmed Khan, Muhammad Ilyas and Mushtaq ons of Nawab Khan also armed with rifles were sitting in ambush within he premises of Government Middle School, Malikpur. They suddenly merged from their hiding and opened attack, Ghulam Abbas fired from his alashnikov on Naviz Akhtar who fell flate on the ground; Imtiaz Ahmed ired from his klashinkov aiming Muhammad Arif o also fell flate on the round; Muhammad Iqbal fired his klashinkov at Muhammad Rafi who also ell flate on the ground; Nasar and Muzaffar fired three or four fires from heir respective rifles one after the other at Muhammad Waris who was njured and fell down. The remaining accused persons also fired from their espective weapons. A fire shot by Amjad s/o Fateh Muhammad hit Zafar PW-7), as a result of aforesaid firing Naviz Akhtar, Muhammad Waris, Rafi lias Waryam and Muhammad Arif succumbed to the injuries there at the pot. The motive as alleged by the complainant is that Muhammad Akram father of Naviz Akhtar deceased had been murdered by Imtiaz Ahmed (convict appellant in the State case) and others who were both acquitted but the enmity in between the parties continued, the accused persons, therefore, in prosecution of their common object committed the aforesaid murders. 3. After witnessing the occurrence Muhammad Aslam PW-6 complainant) proceeded towards the Police Station while on his way he met bdul Ghafoor SI PW-11 at Sobhitian near Jalalpur at a distance of about ne and a half miles from the place of occurrence, who was on patrol duty. e made the aforesaid statement which was recorded as Ex. PO at 8.00 am on the same day i.e. 26.6.1989. The complaint was sent to the Police Station on w,hich formal FIR was drafted. He (Abdul Ghafoor) reached the place of occurrence alongwith police officials located in Malikpur near metalled road, prepared injury statement Ex. PV and inquest report Ex. PW relating to the dead body of Naviz deceased, injury statement Ex. PX and inquest report Ex. PY relating to Arif deceased, injury statement Ex. PZ and inquest report Ex. PAA of Muhammad Rafi deceased and prepared injury statement Ex. PBB and inquest report Ex. PCC relating to the dead body of Waris deceased. All the dead bodies were despatched to mortuary for post mortem examination. Blood stained earth was collected from all the four spots. He prepared rough site plan of the place of occurrence. He also recorded the statement of the eye witnesses including Zafar Ali PW-7 who had been injured at the spot. After the post mortem examinations, he secured the last worn clothes of the deceased persons. On 10.7.1989 (about 14 days after the occurrence) he arrested Nasar, Zafar, Muzaffar, Ilyas s/o Rehmat Khan (since dead), Amjad s/o Lai Khan and Feroze, Ansar and Amjad sons of Fateh Muhammad. Five days thereafter, i.e. on 15.7.1989 he arrested Mushtaq and Days both sons of Nawab Din. N 4.8.1989 Munawar Hussain Inspector/SHO arrested Muhammad Saleem son of Nawab Khan who however, decamped from jail after his arrest. On 15.9.1990 he (PW-12) formally arrested Iftiaz and Ghulam Abbas who were in the judicial lock-up. 4. PW-11 Abdul Ghafoor (I.O.) got declared Iftiaz, Ghulam Abbas, aleem and Iqbal as proclaimed offenders on 31.7.1989 after completing the roceedings u/S. 87, Cr.P.C. After declaring those aforesaid co-accused as roclaimed offenders, incomplete challan was submitted in Court. On completion of the investigation four of the accused persons namely Iftiaz, Iqbal, Ghulam Abbas and Saleem were shown as proclaimed ffender. Subsequently anyhow Iftiaz Ahmed and Ghulam Abbas appeared nd challan was submitted against them on 18.9.1990. Out of the two emaining accused Iqbal and Saleem who were shown absconders in this hallan, Muhammad Saleem also appeared and he too was challaned on 20.12.1990 leaving behind Iqbal the only accused as proclaimed'offender, as uch 12 accused persons namely Nasar, Zafar, Muzaffar all three sons of hmed Khan, Muhammad Amjad S/o Lai Khan, Feroze Khan S/o Ahmed han, Ansar, Amjad S/o Fateh Muhammad, Mushtaq Ahmed and Ilyas son f Nawab Khan, Iftiaz S/o Ashraf, Ghulam Abbas S/o Kalu and Muhammad Saleem S/o GHulam Farid were sent-up to face trial in the Court of Ch. ahoor Hussain, learned Special Judge (Suppression of Terrorist Activities) ujranwala. 5. The prosecution in order to prove its case examined 12 witnesses. Out of them Dr. Muhammad Waqar PW-1 and Dr. Abbas Gondal PW-2 urnished the medical evidence. 7. Dr. Muhammad Waqar PW-1 conducted the post mortem examination of Rafi deceased on 26.6.1989 and found the following injuries on his persons:- 1-A. A fire arm wound of entry measuring 0.5 cm x 0.5 with inverted margins in front of lower aspect of right side of chest, 11 cm below the right nipple Blackening was present around the wound. B. A fire arm wound of exit measuring 1.5 x 1.5 cm everted margins on back lower aspect of right side of chest below the tip of riglit scapula. 2-A. A fire arm wound of entry measuring 3 x 2 cm in inverted margins on middle of lateral aspect of right upper arm blackening was present around and inside the wound. Right humorous was fractured. B. A fire arm wound of exit measuring 1x1 cm on medical aspect middle of right upper arm margins were everted. 3-A. A fire arm wound of entry measuring 4x4 cm inverted margins on the upper part of right side of neck just below the right ear Blackening was present around the wound and inside the wound. B. A fire arm wound of exit measuring 3 x 3 cm everted margins on right pertital region of scalp just above and behind the right ear. On the same day he conducted the post mortem examination of Muhammad Arif deceased and found the following injuries:- 1-A. A fire arm wound of entry measuring 6 x 3 cm inverted margins oval on right side of face at the right angle of mendible blackening was present around the wound and inside the wound. B-I. A fire arm wound of exit measuring 0.5 x 0.5 cm everted margins on left side of face just below the left ear. B-II. A fire arm wound of entry 4 x 3 cm inverted margins of face about one inch below the injury No. B-I. 2-A. A fire arm wound of entry 4 x 3 cm inverted margins oval infront of right side of chest below the lateral l/3rd of right clavical. B. A fire arm wound of exit 11x6 cm oval everted margins of lateral aspect of right lower chest. 3. A fire arm wound measuring 12 x 6 cm continuous on front of middle of right upper arm entering from medical side toewards laterally. 4-A. A fire arm wound of entry measuring 0.5 x 0.4 cm inverted margins on front of upper aspect of right side of chest about \ cm below the medical of right clavical. Blackening was present around the wound. B. A fire arm wound of exit measuring 1 cm x 1 cm everted margins on back of right side of chest about 2 inches below the tip of right scapula. 5-A. A fire arm wound of entry measuring 0.5 cm x 0.5 inverted margins infront of left lower chest 10 cm below the left nipple blackening was present around the wound B-I. A fire arm wound of exit 1 x 1 cm everted margins on posterior aspect of right lower chest about 6 inches below the tip of right scapula. B-II. A fire arm wound of exit 1 cm x 1 cm everted margin on lateral aspect of right upper abdomen. 6-A. A fire arm wound of entry measuring 0.5 x 0.5 cm inverted margins infront of left side of abdomen 5 cm lateral and 2 cm below the umbilicus blackening was present. B. A fire arm wound of exit measuring 1.5 x 1.5 cm everted margins on upper outer guardaned left glutial region. On the same day post mortem examination of Muhammad Waris deceased was conducted and the following injuries were found on his person:- 1. A fire arm wound continuous 10 x 3 cm on left side of face lateral to the left angle of mouth directing from medial to lateral side blackening was found around and inside the wound, left inedible was fractured. 2-A. A fire arm wound of entry 1.5 x 1.5 cm circular inverted margins infront of lower aspect of neck blackening was present around the wound. B. A fire arm wound of exit measuring 0.5 x 0.5 cm on back of mid of right side of chest medial to right scapula region. 3-A. A fire arm wound of entry measuring 2 x 1 cm vertically oval shaped in the middle of upper aspect of left shoulder inverted margins blackening was present around the wound. B. A fire arm wound of exit measuring 0.5 cm x 0.5 cm everted margins on the back of right side of chest 2 inches below and 2 inches later to the Injury No. 2-B. 4-A. A fire arm wound of entiy measuring 4 x 3 cm oval vertically infront of left side of chest 1 inch above and one inch medical of left nipple. Blackening was present. B. A fire arm wound of exit measuring 0.5 x 0.5 cm circular everted margins on the back of left side of chest medial to scapula region. 5-A. A fire arm wound of entry measuring 1 cm x 1 cm inverted margins circular in the mid sternal region infront of chest blackening was present. B. A fire arm wound of exit measuring 0.5 x 0.5 cm circular overted margins 4 inches below and slightly medial to Injury No. 2-B on the back of right side of chest. 6-A. A fire arm wound of entry measuring 1x1 cm inverted margins 1 cm below the left nipple blackening was present around the wound. B. A fire wound of exit, measuring 2 cm x 2 cm everted margine on lateral aspect of left lower chest. 7-A. A fire arm wound of entry 1 cm x 1 cm inverted margins 2 inches below and slightly medial to injury No. 6-A, blackening was present. B. A fire arm wound of exit measuring 2 x 2 cm everted margins on lateral aspect of left side of abdomen in the line of umbilicus large intestine was coming out. 8-A. A fire arm wound of entry 0.5 x 0.5 cm inverted margins of right side of abdomen 2 inches lateral and 2 inches above the umbilicus blackening was present around the wound. B. A fire arm wound of exit 2.5 x 2.5 cm oval vertically infront of left side of abdomen 3 inches pateral and one inch below umbilicus. 9-A. A fire arm wound of entry measuring 0.5 x 0.5 cm inverted margins infront off right side of abdomen one inch below the injury No. 8-A, blackening was present around the wound. B. A fire arm wound of exit measuring 1.5 x 1.5 cm everted margins on lateral aspect of left abdomen one inch below the injury No. 7-B. 10-A. A fire arm wound of entry measuring 0.5 x 0.5 cm inverted margins 2 inches lateral and 2 inches below the umbilicus on right side of front of abdomen, Blackening was present around the wound. B. A fire arm wound of exit measuring 2 x 2 cm everted margins on the back of right lower lumber region. 11-A. A fire arm wound of entry 1.5 x 1.5 cm inverted margins on medial aspect of back of distal end of left fore arm, blackening was present around the wound. B. A fire arm wound of exit 2 cm x 2 cm at the outes of middle finger of left hand on front part. 12-A. A fire arm wound of entry 1.5 x 1.5 cm on the back and middle of left hand inverted margins blackening was present. B. A fire arm wound of exit 2 x 2 cm everted margins infront of middle of left hand. All the injuries were found to have been caused by fire arm, were anti mortem and sufficient to cause death in the ordinary course of nature. 2. PW-2 Muhammad Abbas Gondal on 26.6.1989 medically examined Zafar PW-7 and found the following injuries on his person:- 1. A lacerated wound of entry with inverted margins and urrounding blackening measuring about 2.5 x 0.5 cm on he upper lateral part of the left fore-arm. 2. A lacerated wound of exi measuring about 2.5 x 0.5 cm on he lateral of the left elbow. The injuries were of fire arm. 9. He also conducted post mortem examination of Naviz Akhtar and found the following injuries on his dead body:- 1-A. A firearm wound of entry measuring about 2x2 cm below the right mendible. B. A fire arm wound of exit 3 x 3 cm on the left of head. An excavated furrowed wound of the lateral of the left and with fracture underline of the first metacarpal bone. 10 fire arms wounds of entry on the front of the chest on the lateral side. (ii) A lacerated wound of entry 1 x 1 cm on the front of left shoulder. (iii) A lacerated wound of entry 3 x 2 cm on the upper right chest front side. (iv) A lacerated wound of entry 1.5 x 1 cm on the upper right chest lateral to the above injury No. iii. (v) A lacerated wound of entry 3 x 105 cm on the middle of left chest. (vi) A lacerated wound of entry 4 x 2 cm on the lower middle of the chest. (vii) Fire arm wound of entry 5 x 2 cm on the right lateral chest. (viii) A lacerated wound of entry 1.5 x 1 cm on the lower of the front of chest. (ix) A fire arm wound of entry 3 cm x 1.5 cm on the right hypochondrion. (x) A fire arm wound of entry on the lower right lateral chest. 4. 8 fire arm wounds of exit on the back of the chest each easuring 5.5 x 5.5 cm on the lower side of back of chest in the right lumber region. 5. (i) A fire arm wound of entry .5 x .5 cm on the lower lateral side of right thigh. (ii) A fire arm wound of exit measuring about 6 x 3 cm on the inner of lower of right thigh. 6. (i) Fire arm wound of entry 2.5 x 2 cm on the inner of the part of left leg. (ii) An exit wound 2x2 cm on back of left leg. 7. Fire arm wound of entry .5 x .5 cm on the right buttock. Injuries were caused with fire arm and were sufficient to cause death in the ordinary course of nature. 10. PW-3 Muhammad Adalat identified the dead bodies at the time of Post Mortem Examination. PW-4 is the draftsman who prepared the site plan. PW-5 Nasar Abbas Constable obtained the warrants for the absconding accused, as such is a formal witness. PW-6 Muhammad Aslam is the complainant in this case. He deposed about the occurrence and also with regard to the motive. He reiterated the statement what he had made in his statement Ex. PO. PW-7 Zafar All is an injured PW. He is another eye witness. He made the statement in line with that of the complainant PW-6 and corroborated his statement on all material points. PW-8, PW-9 and PW-10 are police officials. They are formal witnesses and performed various functions assigned to them during the investigation. 11. PW-11 is Abdul Ghafoor SI. He is the Investigating Officer as ell. Various steps taken by him during the investigation and functions rformed as such have already been enumerated above. PW-12 Munawar Hussain Inspector only arrested three of the accused which has also been detailed supra. 12. The learned D.D.A. gave up the remaining witnesses as being unnecessary and tendered in evidence the report of Chemical Examiner Ex. PGG and undertook to submit the report of Serologist which was subsequently produced as Ex. PHH, and with that he closed the case of the prosecution. 13. After the close of the prosecution case the accused persons were examined u/S. 342 Cr.P.C. All of the them pleaded not guilty and stated that they have been implicated on account of enmity and party faction as they happened to be partymen of Aslam. Muhammad Saleem who stated that his real name was Ghulam Haider since Muhammad Saleem was not available, therefore, he was implicated as accused person. None of the accused opted to appear as their own witnesses as envisaged u/S. 340(2) Cr.P.C., to rebut the charges against them. They also opted not to produce any evidence in defence. 14. The learned Special Judge on the conclusion of the trial convicted Ghulam Abbas appellant u/S. 302/149 PPC and sentenced him to death for the murder of Naveez Akhtar with a fine of Rs. 25,000/-, in default thereof to undergo RI for two years.He was convicted for causing murder of Rafi alias Warryam and sentenced to imprisonment for life with a fine of Rs. 25.000/-, in default thereof to undergo RI for two years. He was also convicted for the murder of Arif and sentenced to imprisonment for life, with a fine of Rs. 25,000/-, in case of default to undergo RI for two years; convicted for the murder of Warris and sentenced to imprisonment for life with fine of Rs. 25,000/- in default thereof to undergo RI for two years; Ghulam Abbas was also convicted u/S. 307/149 PPC for causing injuries to Zafar and sentenced to RI for five years and to pay a fine of Rs. 5,000/-, in default thereof to undergo RI for six months. 14-A. Iftiaz Ahmed was convicted U/S 302/149 PPC and sentenced to death for the murder of Arif with a fine of Rs. 25,000/- in default thereof to undergo RI for two years; for the murder of Naveez sentenced to undergo imprisonment for life with a fine of Rs. 25,000/-; for the murder of Waris sentenced to imprisonment for life with fine of Rs. 25,000/-, in case of default to undergo RI for two years; for the murder of Rafi alias Warryam sentenced ^to imprisonment for life with fine of Rs. 25,000/-, in default thereof to undergo RI for two years. Iftiaz Ahmed was also convicted U/S 307 PPC read with Section 149 PPC for causing injuries to Zafar and sentenced to pay a fine of Rs. 5,000/-, in default thereof to undergo RI for six months. 15. Nasar Iqbal and Muzaffar Iqbal both were convicted U/S 02/149 PPC and sentenced to death for the murder of Warris and each one to pay a fine of Rs. 25,000/-, in default thereof each one to undergo RI for two years. Both were convicted for the murder of Naveez Akhtar and sentenced to imprisonment for life with a fine of Rs. 25,000/- in case of default to undergo two years RI; both were convicted for the murder of Arif and sentenced to imprisonment for life with a fine of Rs. 25,000/-, in default thereof to undergo RI for two years; both were convicted for the murder of Rafi and sentenced to imprisonment for life with a fine of Rs. 25,000/- in default thereof to undergo RI for two years; both were onvicted u/S. 307/149 PPC for causing injuries to Zafar and sentenced to RI for five years with a fine of Rs. 5,000/-, in default thereof to undergo RI for six months. 16. Amjad Ali (Amjad Mehmood) accused was convicted U/S 302 read with Section 149 PPC and sentenced to imprisonment for life on four counts for causing murders of Naveez Akhtar, Arif, Rafi and Warris and also to pay Rs. 25,000/- on each count, in default to undergo RI for two years on each count; he was also convicted U/S 307/149 PPC for causing injuries to Zafar Ali and sentenced to RI for five years and to pay a fine of Rs. 25,000/- in case of default to undergo RI for six RI for six months. The fine if realized, half of it to be paid to the legal heirs of all the aforesaid deceased persons and the amount of fine if realized for conviction u/S. 307 PPC to be paid to the injured PW Zafar. All the sentences were ordered to run concurrently. The benefit u/S, 392-B Cr.P.C. was extended to all the accused persons. The remaining co-accused against whom no specific allegations of causing injuries were made were acquitted of the charges by extending them the benefit of doubt. It is however, pertinent to point out that a page after 30 is missing from the judgment, the same could not be traced out from the original file as well. It appears that the same was misplaced and no body took note of it. Anyhow, the fact remains that Zafar, Feroze, Ansar, Amjad Mehmood, Mushtaq, Muhammad Ilyas S/o Fateh Muhammad and Muhammad Saleem have been acquitted of all the charges against them. 17. It has been argued on behalf of the appellants that admittedly there is enmity in between the complainant party and the deceased persons on one hand and the accused persons on the other, therefore, the testimony of witnesses cannot be accepted unless corroborated by some independent evidence; that there are discrepancies in between the statements of the PWs which go to very root of the case, as such their testimony is unworthy of credit; that the occurrence is an unwitnessed one but the complainant party after due deliberations and guess work implicated the accused persons. It was argued with vehemence and emphasis was laid on the point that Zafar PW did not suffer any injury at the time of the incident, rather, the injury was received from some friendly hand so as to show that he was present at the place of occurrence; that the eye witness account as furnished by the prosecution witnesses and the prosecution as whole is unbelievable for the reason that it is humanly impossible ; to retain and reproduce the injuries by each accused and thereafter describe the respective receipt of injuries. It was also urged that during the trial when Zafar was asked to pick-up Amjad accused who had fired at him he instead picked up Ansar accused the brother of Amjad. It was, therefore, argued ith vehemence that PW who could not identify his own assailant cannot be relied upon qua other accused and last of all that acquittal of the seven co-accused of the appellants adversely effects the whole of the prosecution case as the testimony of the witnesses has not been relied upon qua the acquitted co-accused, therefore, their testimony cannot be safely accepted against the accused who have been convicted by the learned trial Court. It is, therefore, argued that the prosecution has not been able to prove the guilt off the appellant beyond doubt, therefore, they are entitled to be acquitted. 18. As against that the learned counsel for the State as well as learned counsel for the complainant have supported the impugned judgment and submitted that the prosecution has proved the case beyond doubt against the accused persons. The presence of injured PW at the place of occurrence cannot be denied and the deposition made by him cannot be discarded. Zafar PW has received injuries with fire arm which has wound of entry as well as exit. It is impossible that the same would have been caused y friendly hands. His statement was recorded on the same day soon after the occurrence and he fully supported the prosecution version. Since he was present at the place of occurrence it is impossible to believe that he would have spared the real culprits and instead would have substituted the appellants who were innocent. It was further argued in support of their revision petition that the testimony of the witnesses should be relied upon against the acquitted co-accused as well and as such they are also liable to be convicted accordingly. However, no serious stress was laid to press the Criminal Revision No. 140/94 on the question of enhancement of fine and amount of compensation. 19. We have considered the arguments addressed by the parties at ength and have also gone through the relevant record. The unfortunate incident took-place on 26.6.1989 at 6.00 am. During the month of June sun rises quite early and by 6.00 am there is almost a day light, therefore, there remains no difficulty in identifying the assailants. As such there cannot be any mistaken identity by the PWs. Muhammad Aslam complainant from the very outset stated that they were proceeding to attend the Court of Magistrate Section 30, Gujrat therefore, there leaving for Gujrat together is quite natural. The PWs therefore, cannot be treated as chance witnesses. There presence at the place of occurrence as such has sufficiently been explained. The defence has not been able to controvert the assertion that the complainant as well as other witnesses were present at the place of occurrence to attend the Court proceedings. Had the statement been false or incorrect the same could very easily be rebutted by showing that there was no date of hearing fixed as alleged by the prosecution. The occurrence took place at 6.00 am whereas the matter was reported at 8.00 a-m-just two hours after the incident at a place which is located at a distance of one and a half kilometer form the spot. The complainant made detailed statement with regard to the presence of the witnesses and the various weapons carried by them. A vague and uncertain type of argument was advanced to indicate that it is a routine practice that on receipt of any information especially with regard to murder, Roznamcha is stopped and time of reporting is shown to be soon after the occurrence to lend credibility to the prosecution version. It cannot be denied that there may have been some instances where the Roznamcha is stopped and the reporting time is stated to be closer to time of occurrence but it cannot be accepted as universally true. There is not even an iota of evidence that the FIR was not lodged promptly and the same was anti-timed. No adverse inference can be drawn either against defence nor against the prosecution if the same is born out of the evidence. The fact that the injured was examined in the after noon on the same day and the post mortems were conducted also on the after noon on the same day leave no doubt to believe that the matter had been reported to the police promptly and without any loss of time. 20. The argument that, since the parties were inimical to each other, had Muhammad Aslam been present there he would also have been done to death, does not carry much weight. Assailants already committed four murders and caused fire arm injuries on the person of Zafar PW-7. A tremendous damage had been done to the complainant party, therefore, the argument that the complainant and other witnesses were not injured does not appear to be convincing. 21. The learned counsel has laid lot of stress to establish that Zafar PW-7 was not infact injured at the spot but subsequently the complainant be made as certain and acceptable. A good deal of emphasis has been laid on the conduct of Zafar that after receipt of injuries instead of running to the hospital he remained at the spot and kept on waiting for his brother who reached per chance at the place of occurrence and thereafter carried him to the hospital. It is supplemented with the argument that in his statement before the police he had not stated so and as such improvement has been made to explain as to why he did not straight away rushed to the hospital and kept on waiting at the place of incident. There is nothing unusual in his conduct. Quite obviously when a number of murders have been committed there must have been a lot of commotion and panic in the vicinity; also dead bodies were lying over there and complainant had proceeded to the police station to report the matter, to remain on the place of occurrence at such a circumstance does not indicate any him probability. Keeping in view the nature of injures although the same had been caused by fire arm yet it was not so severe that witness could not wait for some time especially when four of his companions have been brutally murdered and were lying at the spot. To evaluate whether the injuries could be caused by friendly hands, the injuries itself have to be examined and considered minutely. According to the Doctor he received lacerated wound of entry with inverted margins and surrounding blackening measuring about 2.5 x 0.5 cm on the super lateral part of the left fore-arm. The injury has also a corresponding wound of exit. Say for example a person with an attempt to create evidence causes an injury on the left side of the body, as the injury is on the left arm there is every possibility of missing the target and hitting the trunk. Had the injury been received on the body the same would have been proved fatal and witness could have even succumbed to the same. After considering the arguments from various angles we are not convinced to believe that injury on the person of Zafar was self suffered or had been caused with friendly hands. Another aspect of the case which has not been kept in mind by the learned counsel is that after such a damage there is loss of four lives the complainant and the PWs cannot keep normal and cannot possibly think of manoeuvering or fabrication. It is unbelievable that a person would have been called and the injury would have been received by fire arm merely to create the evidence. We, therefore, believe that Zafar was present and infact had witnessed the occurrence. If the witness has seen the actual assailants then the possibility of exonerating the real culprits and substituting them with innocent persons is almost non existent. 22. Although an attempt has been made to point out serious discrepancies in the statements of the PWs yet we think that there is no discrepancy material enough to discredit the testimony of the witnesses. Both the witnesses have supported each other on all material points artaining to the assailants, their respective weapons and commission of crime by them. Although they have been subjected to lengthy crossexamination yet nothing material came out of the same which could damage the prosecution version and render it unplausible. While pointing out the discrepancies it have been argued with vehemence that Zafar could not even pick up his now assailant when during the cross-examination he was asked to pick up Amjad he instead picked up his brother Ansar accused. The learned trial Judge has quite elaborately discussed this aspect and observed that the same has been done deliberately with a view to grant some concession to the accused person. According to him the trial was conducted after four years, during all those four years no body even though of getting the identification parade conducted. It appears that clever move was made to tornish the credibility of the witnesses because it was otherwise known to the accused person that Zafar being injured PW his statement has substantial evidentiary value. The observations made by the learned trial Judge are extremely significant because he had the privilege of seeing the witnesses and noting their demeanour. The incident was described as a drama under pre-arranged understanding. All the prosecution evidence has rightly been appraised by the learned trial Judge, we also endorse the views recorded by the learned trial Judge and place reliance on the testimony of Zafar PW. 23. The statements made by both the eye witnesses are supported by the medical evidence. Although it is said that the medical evidence only supports the factum of receipt of injuries by fire arm but the same cannot be treated as supporting evidence with regard to the identity of the assailants. The medical evidence especially in this case has immense importance because the statement made by a lay man with regard to receipt of injuries by a specific fire arm has been proved by the medical evidence and the description given by him is supported by the medical opinion. The medical evidence, therefore lends reasonable support to the prosecution version. 24. According to the prosecution the motive as got recorded in the FIR and specifically reiterated during the trial that father of Naveez Akhtar (deceased had earlier been rdered by Iftiaz Ahmed and others thus | indicate that enmity in between the parties subsists and the murders were committed to eliminate the deceased person who happened to be their 'enemies. Of course when the witnesses are inimical then the possibility that ! the accused person may not have been falsely implicated is always kept in view but considering the facts and circumstances of the present case and the damage caused to the deceased and the complainant party does not support 25. The argument that witnesses have been disbelieved qua seven acquitted co-accused and during the investigation also a number of accused persons were stated by the Investigating Officer to be innocent, therefore, the witnesses should not be believed against the accused persons who were convicted, cannot be accepted. The controversy of proposition of law that once a witness is disbelieved qua one accused the same cannot be relied upon qua the other has not been set at naught by the Hon'ble Supreme Court in "Tawab's case" by holding that falsus in uno, falsus in omnibus is not of universal application, so this principle is being followed persistently by all the courts. The learned trial Judge, therefore, assigned cogent reasons to differentiate the case of the appellant (convicted accused) and the acquitted accused. He has recorded the conviction of the accused persons against whom specific allegations of causing injuries on the deceased have been made whereas the accused persons against whom general allegations have been levelled were extended the benefit of doubt out of abundant precaution and were ordered to be acquitted. We also after appraising the relevant evidence come to the conclusion that safe administration of justice demand that the acquitted co-accused who have not been alleged to have specifically fired at a particular person are entitled to the benefit of doubt, therefore, the same has not caused any miscarriage of justice. Through Criminal Revision No. 137/94 the complainant has prayed that acquittal of the respondents be set-aside and acquitted accused be ordered to be retried, does not have much substance, the same therefore, cannot be accepted. Similarly Criminal Revision No. 140/94 that amount of fine imposed on the appellants i.e. convicted accused be enhanced and also amount of compensation be enhanced also does not appear to be convincing. The learned trial Judge has imposed fine on all the appellants on four counts and similarly the fin6 has been imposed for inflicting injuries to Zafar PW and each of the appellant has been fined Rs. 25,000/-. The aggregate of all the fines becomes quite substantial, especially when considered with the fact that four of the appellants have been sentenced to death and one to imprisonment for life. This revision as such has no merits and the same merits to be dismissed. 26. As a result of the above discussion, Criminal Appeal No. 722/93 is dismissed and the conviction and sentence of the appellants as recorded by the learned trial Judge as noted above in Para Nos. 14, 15 and 16 of the udgment, is up held and maintained. Both Criminal Revision No. 137/94 as well as Criminal Revision No. 140/94 fail and are as such dismissed. (AAJS) Appeals dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 142 Present: RlAZ kayani, J. MUHAMMAD IQBAL-Petitioner versus STATE-Respondent Criminal Revision No. 342 of 1997, dismissed on 30.6.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 32Q~Qatal-e-Khata by negligent driving-Offence of-Conviction for-Revision against—Witnesses have stated that petitioner was driving in a rash manner, keeping into consideration their experience as they themselves were driving a car and negligence described by them was driving in pitch darkness with only one head light-Statement of witnesses, conforms to test laid down to describe rash and negligent driving—Petitioner driving in negligent manner caused death of two young men-Stringent punishment has to be awarded in such like cases to serve as a deterrent-Prosecution has been able to prove beyond any shadow of doubt, culpability of accused/petitioner—Petition dismissed. [P. 148] A to D Mr, Nusrat Javed Bqjwa Ch. , Advocate for Petitioner. Mr. Imtiaz Ahmad Ch., Advocate for State. Date of hearing: 30.6.1998. judgment In this criminal revision, the petitioner has assailed the judgment of Civil Judge 1st Class/Magistrate Section 30 Shahpur dated 2.10.1995 whereby the petitioner was convicted under Section 320 PPC and sentenced to four years R.I. and to pay Diyat in the sum of Rs. 1,75,610/- each to the legal heirs of the deceased according to their respective shares of inheritance or in default to be kept in Jail in a manner as if he was sentenced to simple imprisonment till the amount of Diyat is paid or in the alternate to furnish security equal to the amount of Diyat imposed to the satisfaction of the Court, that Diyat would be paid, and that of the learned Addl. Sessions Judge, Sargodha dated 6.6.1997 whereby the judgment of Magistrate Section 30, Shahpur dated 2.10.1995 was affirmed in appeal. 2. The version of the prosecution as narrated in the case registered vide FIR No. 199/90 with Police Station, Sahiwal District Sargodha on 26.10.1990 at 8.55 p.m. by Raja Ghulam Habib-complainant (PW. 6), is that on the same day at 8 p.m. his cousin Abdul Baqi, who was Patwari in the Revenue Department, was working in Halqa Sikanderpur after serving meals to all the officials present for polling duty at Sikanderpur Polling Station, started journey alongwith his brother Muhammad Abdullah on his motor-cycle bearing No. 6450/SOB towards Sahiwal. They were followed by the complainant alongwith Atta Muhammad son of Sajawal and Muhammad Rafique son of Rana Muhammad in a Car bearing No. 4426-LHY. The motor-cycle and the car following them when reached pull Langarwal, they saw Bus No. 6524/SGE coming from the opposite direction driven by the driver-Muhammad Iqbal son of Atta Muhammad in a very rash and negligent manner and due to fast driving, the driver could not control the bus which went on the wrong side and hit Muhammad Abdullah and Abdul Baqi, who were riding on their motorcycle throwing them on the ground. Muhammad Iqbal driver ran away and left the bus at the spot. Muhammad Abdullah had injuries on his head and on his face on the right side whereas Abdul Baqi was hit on his head and left leg. Abdullah died at the spot whereas Abdul Baqi was being taken in Hiace to Sargodha when he died on the way. It was stated by the complainant that the accident took place due to rash and negligent driving of Muhammad Iqbal, driver. After leaving the dead bodies in the care of Atta Muhammad and Muhammad Rafique, the complainant went to the Police Station and got recorded the complaint marked as Ex. PF. 3. Dr. Qalab Hussain Sherazi, ADHO Tehsil Hospital Shahpur (PW. 2) on 26.10.1990 performed the postmortem examination on the dead bodies of Muhammad Abdullah and Abdul Baqi both sons of Muhammad Bashir and found the following injuries on their person. Injuries on the dead body of Muhammad Abdullah. 1. There was big lacerated wound 20 c.m. x 18 c.m. on the right side of the head cutting the right side of skull bone, the brain matter was distorted and exposed. 2. A big incised wound 15 c.m. x 10 c.m. on the right side of the face. Eye ball was fully lacerated and distorted and wound was deep to brain. In the opinion of the Doctor, Injuries No. 1 and 2 were sufficient to cause death in the ordinary course of nature, death had occurred due to haemorrhage and shock because of distortion of brain matter. All the injuries were ante-mortem and were accidental origin. Ex. PA was the original postmortem report. Similarly the injuries on the dead body of Abdul Baqi were found to be as under: - 1. There was a big lacerated wound 20 c.m. x 15 c.m. on whole side of left aspect of the head, crushing and cutting the whole skull and exposing the brain matter. 2. There was a big lacerated wound 15 c.m. x 10 c.m. on the left face and eyes going deep to brain cutting all the bones of face and eye bail. 3. There was a big cut wound 20 c.m. x 3 c.m. bone deep on the anterior right thigh. There was a big cut wound 10 c.m. x 10 c.m. on the outer In the opinion of the Doctor, Injuries No. 1 and 2 were sufficient to cause death in the ordinary course of nature, death had occurred due to haemorrhage, shock and distortion of brain matter. All the injuries s were ante-mortem and were of accidental origin. Ex. PB was the postmortem report. 4. At the trial, prosecution examined Kafayat Hussain Shah, Constable No. 28, Police Station, Sahiwal, who stated that on 1.11.1990 the petitioner produced his driving licence before Taj Muhammad, S.I. which was taken into possession vide recovery memo Ex. PC and was attested by him and Riaz. On 7.11.1990 Hakim, owner of the Bus No. 8524/SGD produced Route permit and the registration book before Taj Muhammad, S.I. which was taken into possession by him vide Ex. PD and the recovery memo was signed by this witness and one Habeeb Anwar, constable. 5. PW. 4 Sikander Hayat, stated tha he joined the investigation of the case, from the place of occurrence, S.H.O. took into possession the motor-cycle belonging to the deceased-Muhammad Abdullah and Abdul Baqi vide recovery memo Ex. PE which was signed by him and Abdur Rehman. He also stated that the Bus was standing at the place of occurrence on the side of jnettied road next to the motor-cycle. The bus was also taken into possession and both the vehicles were taken to the Police Station. 6. PW. 5 Atta Muhammad is the eye-witness to the occurrence. His examination-in-chief was more or less identical to narration of the complainant in his complaint (Ex. PF). In cross-examination, this witness stated that he Went to Sikanderpur to meet one person Sardar Yousaf by name alongwith Muhammad Rafique where they met Abdullah and Abdul Baqi-deceased. He alongwith Muhammad Rafique was coming with Rana Habeeb in his car towards Sahiwal, following Muhammad Abdullah and Abdul Baqi on their motorcycle; Rana Rafique had personal work with Sardar Yousaf. It was at sunset time when they left Sikandarpur towards Sahiwal. On the mettled road, Muhammad Abdullah and Abdul Baqi were riding the motorcycle at a distance of 5/6 karams ahead of them. The scooter was driven by Abdullah, who was a student and Abdul Baqi was a Government servant. They saw the bus coming from the opposite direction from a distance of about half mile. The bus left its side and went towards the side where Abdullah etc. were riding their motor-cycle. At that place, the road is about 5/6 karams wide. Due to impact of the accident, the deceased fell from their motor-cycle in Katcha lane adjoining the mettled road. Abdullah died at the spot whereas Abdul Baqi was breathing. Driver ran away when he alongwith other witnesses alighted from the car. This witness stated that he knew the driver because frequently he had travelled to Sargodha. He stated that he knows number of drivers, who ply their vehicles on this line. Bus was being driven in a very rash manner but he cannot tell its speed. There was only one head light of the bus. There was a driver and conductor in the bus and no passenger was traveling at that time in the said bus. He alongwith the other witnesses were at the spot guarding dead bodies when the police arrived at the spot and recorded his statement. He admitted that the witnesses were closely related to the deceased. However, he denied his relationship with the deceased but admitted that he had close relations with the complainant party. He vehemently denied that he has not seen the occurrence and the accident did not take place due to negligence of the driver/petitioner. He denied the suggestion put to him by the accused/petitioner that the bus was not being driven by the accused. 7. The other eye-witness examined was Ghulam Habeeb^PW. 6) also the complainant in the case. In his examination-in-chief, he reiterated the narrations in the complaint. In cross-examination, he stated that they went to Sikanderpur in the after-noon when he left Sahiwal he was at his Dera where Rana Rafique came, his dera being adjacent; admitted that Rana Rafique was related to him. Atta Muhammad PW came there to meet Rana Rafique. They had to meet Sardar Yousaf at Sikanderpur. The witness was cross-examined about his eye-witness account of he occurrence and he stated in reply that when they saw the bus at that time it was at a distance of about 30/35 Karams. The speed of their case was 30/35 K.M. per hour. Bus was being driven without one head light. It was fast in speed but he could not tell the exact speed. However, the speed was very fast. He had recorded in his statement Ex. PF before the police that the us did not have one head light. When confronted with Bx. PF, this fact was not incorporated. He along with othei witnesses alighted from their car and saw the driver who thereafter ran away in the direction of Sahiwal City . There was no passenger in the bus except the driver and cleaner. This witness stated that he knew the accused/petitioner and also his name. The bus was standing on the side of the mettled road whereas the motor-cycle was lying on the Katcha lane next to the Pacca road. He admitted that Abdul Baqi and Muhammad Abdullah were his nephews and denied that the accident took place due to negligence of the deceased. He farther denied that the accused/petitioner was not driving the bus and that the accident did not take place due to his negligence. This witness admitted that one Mazhar Khan was the Manager of Bus Coaches. He expressed lack of knowledge about the accused and the aid Mazhar Khan to be related to each other. He denied that they had enmity with Mazhar Khan and due to this reason they have involved the accused/petitioner. He denied the suggestion that the motor-cycle coiliuud with a tractor trolly and its driver ran away, therefore, tiny fulkU implicated the accused/petitioner. 8. Taj Muhammad (PW. 7), SI/SHO conducted the invebu f ;auun. He stated that on 1.11.1990, the accused/petitioner surrendered hnusd! At the Police Station and produced his driving licence which was taken Into possession vide recovery memo Ex. PC. 9. The accused/petitioner in his statement under Section 3-12 Cr.P.C. stated that some body else was driving the vehicle at the time of accident and that it took place due to the negligence of the deceased. 10. Magistrate Section 30 Shahpur vide his judgment dated 25.11.1991 convicted the petitioner under Section 320 PPC and sentenced him to four years imprisonment and to pay the Diyat amount in the sum of Rs. 1,75,610/- for each of the heirs of the deceased namely Abdul Baqi and Muhammad Abdullah. In default of payment of Diyat, the petitioner shall be kept in Jail and dealt in the manner as if he was sentenced to simple imprisonment unless the Diyat is paid. 11. Against the judgment of the Magistrate Section 30 Shahpur dated 25.11.1991 the appeal was filed before the learned Addl. Sessions Judge, Sargodha, who vide his judgment dated 13.8.1992 set aside the findings of the Magistrate Section 30 dated 25.1.1991 mainly on the ground that when PW. 5 Atta Muhammad and PW. 6 Ghulam Habeeb were recalled for cross-examination, no oath was administered to them. He remanded the case to the Magistrate to administer oath to PWs 5 and 6, and thereafter allow cross-examination and conclude the trial. 12. The cross-examination of PW. 5 and PW. 6 in post remand proceedings has been discussed in the early part of this judgment. However, one fact which is note worthy is the examination of the accused-petitioner under Section 342 Cr.P.C. where he took complete somer-sault and stated that the accident took place as a result of collision with a tractor trolly, whose driver ran away, and in the meantime, he alongwith one driver of Hiluxe bus reached the place of accident and took the injured to the hospital and informed the police about the accident. The police instead of arresting the driver of tractor trolly, arrested him since he was available. The accused/ petitioner did not produce Yasin-driver of the Hi-luxe in defence but produced one Abdul Razzaq, (DW. 1) who stated that he did not know about the accident, but stated that he took the injured to the hospital and did not go to the police to get his statement record. Magistrate Section 30 Shahpur vide his judgment dated 2.10.1995 convicted and sentenced the accused/ petitioner to the punishment mentioned in detail above. The appeal of the accused/petitioner was dismissed by the Addl. Sections Judge, Sargodha on 6.61997 maintaining his conviction and sentence. 13. Learned counsel for the petitioner assailing the findings of the two Courts below submitted the following points to establish that the prosecution version was doubtful and no credence can be given to it to sustain the conviction and sentence of the petitioner:- (i) that the prosecution version is based on surmises. The onus to prove the case against the accused/petitioner always lies on the prosecution and weakness of the defence cannot bolster prosecution narration. It has to stand on its own legs to prove beyond reasonable doubt. The culpability of the accused/petitioner in order to secure conviction. In support of his arguments, he relied on Abdul Subhan vs. Raheem Bakhsh and another (PLD 1994 SC 178) and Muhammad Ishaque Khan and others vs. The State (PLD 1994 SC 259) (ii) that the Courts below failed to appreciate that mere fast driving is not sufficient to secure conviction under Section 320 PPC. It should be shown through unimpeachable evidence that the accused was guilty of rash and negligent driving. Reliance was placed on Abdul Ghani vs. The State (1975 P.Cr.L.J. 515 and Mushtaq alias Niku v. The State (1998 P.Cr.L.J. 158). (iii) that failure to examine the Motor Vehicle Examiner by way of expert evidence has created dents in the prosecution version. (iv) that medical evidence is not in accord with the ocular testimony. Learned counsel argued that at the time of postmortem examination conducted on 26.10.1990 at 9.15 p.m. the Doctor opined that rigor mortis had developed on the dead body. Taking the arguments to its logical conclusion, learned counsel stated that, according to the eye-witnesses, accident took place at 8 p.m. whereas the rigor morits develops between 3/6 hours after the death which shows that the accident had taken place much earlier, than the time given by the eye-witnesses, therefore, the story of the eye-witnesses that they followed the deceased in their car is false and should be ruled out of consideration. Lastly it was contended that the eye­ witnesses are closely related to the deceased and no credence should be attached to their testimony. 14. I have carefully attended to the arguments and points raised by the learned counsel which appear attractive on the face of it but when probed deeply, there is no weight in it. Undoubtedly, there are some contradictions and discrepancies in the prosecution version but such minor infirmities do occur in every statement recorded after a long time and time and again it has been held by the superior Courts that such discrepancies and contradictions are there in every cases and present rather natural aspect of the occurrence. 15. There is no cavil with the proposition that the prosecution has to stand on its own legs and it is the bounden duty to prove beyond reasonable doubt the culpability of the accused/petitioner, the weak or false plea of the defence would not in no manner promote the prosecution narration. However, in this case the totally inconsistent defence adopted by the accused-petitioner amounting to a complete somer-sault, I must say so with consternation has boomeranged against the petitioner. Weak or false plea is totally different to an inconsident plea. The prosecution, as discussed above, has been able to prove beyond any shadow of doubt the culpability of the accused/petitioner which w.hen placed in juxta position to the inconsistent defence taken up by the accused/petitioner makes the narration of the prosecution insurmountable. 16. A rash act is defined as an over hasty act used in contra­ distinction to a deliberate act. Criminal rashness is defined as doing an act with undue haste knowing that such an act is likely to spell dangerous consequences to others but the accused persists in his act being totally in­ different to the consequences which might follow; negligence is defined as failure to take proper care arid caution which any other reasonable and prudent person would take. The criminality lies in doing the act without taking proper care and caution to guard against injury to others. 17. The witnesses have stated elaborately that the accused/petitioner was driving the bus in rash and negligent manner; to suggest that the witnesses did not specifically state the speed with which the vehicle was being driven is an argument which need not be adverted to and ion the face of it is not plausible. The witnesses have stated that the accused/petitioner was driving in a rash manner and this conclusion was arrived at by their observation with their naked eyes keeping into 'consideration their experience as they themselves were driving a car and the negligence described by the witnesses was the driving in pitch darkness with ionly one head light. The statements of two eye-witnesses, therefore, I conforms to test laid down to describe rash and negligent driving mentioned above. 18. No suggestion has been put to the prosecution witnesses to suggest false implication of the accused/petitioner. Mere relationship of the witnesses with the deceased is not ground to discard their confidence inspiring testimony. 19. The accused/petitioner driving the vehicle in a rash and negligent manner caused death of two young men, one of them, being a student in the prime of his youth. Stringent punishment has to be awarded in such like cases to serve as a deterrent. 20. I, therefore, agree with the findings of Magistrate-Section 30 Shahpur and the Addl. Sessions Judge, Sargodha in convicting the petitioner under Section 320 PPC and find no mitigating circumstances to interfere with the sentence awarded. 21. Resultantiy, this revision petition fails and is dismissed. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 149

Present: dr. munir ahmad mughal, J. MUKHTAR AHMED alias MOKHA etc.~Appellants versus STATE-Respondent Criminal Appeal No. 245 of 1994, dismissed on 16.7.1998. Pakistan Penal Code, 1860 (XLV 1860)- —S. 302/34-Murder--Offence of-Conviction for-Appeal against-Number, nature and place except discrepancy of front and back and recovery of weapons of offence from possession of appellants after their arrest tally with eye witness account-Occular evidence is not in conflict with medical evidence-Discrepancy as a result of natural confusion cannot be taken as a rendering prosecution evidence as doubtful-Parties are well known to each other-There is no question of substitution-Absconsion for long period of four years could not be explained which also speaks of guilty mind of accused and is a strong piece of corroborative evidence-Guilt of appellants is established beyond any doubt-Appeal dismissed. [Pp. 154 & 155] A to D 1986 SCMR 1027,1992 SCMR 1036 ref. Mr. Muhammad Ahsan Bhon and Advocate for Appellants. Mr. Bashir Baig, Advocate for Respondent. Malik Saeed Hassan, Advocate for Complainant. Date of hearing: 16.7.1998. judgment This judgment will dispose of Criminal Appeal No. 245 of 1994, Criminal Revision No. 457 of 1994 and Criminal Revision No. 11-A of 1995 as they arise out of the same judgment. 2. Mukhtar alias Mokha son of Murad and Mansha son of Sharif were tried by the learned Additional Sessions Judge, Sheikhupura for the murder of Nazir Ahmad and Muhammad Mansha who vide his judgment dated 17.4.1994 convicted Mukhtar alias Mokha accused under Section 302/34 PPG on two counts and sentenced him to imprisonment for life with a fine of Rs. 25.000/- and in default of payment of fine to undergo further IR for two years and also to pay an amount of Rs. 25,000/- to the legal heirs of each deceased and in default to undergo further RI for one year. Muhammad Mansha accused was also convicted under Section 302/34 PPC on two counts and sentenced to life imprisonment with a fine of Rs. 25,000/- and in default of payment of fine to suffer further RI for two years and also to pay an amount of Rs. 25,000/- to the legal heirs of the each deceased and in default to undergo further RI for one year. The benefit of Section 382-B, Cr.P.C. was also given to the appellants. 3. Brief facts of the prosecution case given in the FIR (Ex. P. 3) recorded on the statement of the complainant Ameer Ali PW. 3) are that the complainant is a landlord of village Mahandevi. A metalled road was under construction in his village and some Pullies were to be constructed for drainage, therefore, the complainant alongwith Muhammad Yousaf son of Ali Muhammad, Nazir Ahmad (deceased) son of Raja and Muhammad Mansha (deceased) son of Muhammad, residents of the same village visited one Ali Kamoka at Sheikhupura who was the Councillor of the village so that one additional Pulli could be constructed. Thereafter, at about 3 PM, the complainant alongwith his companions boarded a bus from Sheikhupura for his village!. Mukhtar Ahmad (deceased) and Mansha (deceased) also boarded the same bus on the roof. At 4 PM when the bus reached in the area of Chak No. 8, the bus stopped at Ahata Roori and all the passengers including the complainant alighted from the bus. After seeing them, Mukhtar and Mansha, both the above said accused also alighted from the roof of the bus and raised a lalkara. Immediately, Muhammad Mansha made blind firing aiming at Nazir Ahmad with his revolver and the fires hit said Nazir Ahmad on.his abdomen, chest and face. As a result of firing, he fell down on the metalled road. Mukhtar Ahmad accused chased Muhammad Mansha, companion of the complainant and made blind filing in wheat field of Ali Muhammad son of Noor Muhammad, resident of Chak No. 8 and the fires hit Muhammad Mansha on his chest, abdomen and face. He also fell down at the spot. They made a noise and tried to save the injured persons through intervention upon which both the accused also opened firing on the complainant party but they saved themselves after hiding behind the bushes. The accused persons fled away towards the village while firing. Injured were to be shifted to the hospital but both of them died at the spot due to the injuries. The motive behind tha occurrence as that about 12 years prior to he day of report, one Nazar, brother of Mukhtar accused and Muhammad Hussain Bhatti were murdered and Muhammad Mansha deceased alongwith others was named is accused but they were acquitted from the Court. Secondly, both the parties were supporting the rival groups during the election of 1988 and on 16.11.1998, Mukhtar Ahmad accused alongwith others sat ambush and opened firing on the complainant party whereupon case FIR No. 413 of 1988 was registered at Police Station Sharaqpur and was under investigation. Due to this ill-will, both the accused persons in furtherance of their common intention, murdered brother and son of sister of the complainant. Statedly, the occurrence was witnessed by Muhammad Yousaf and Muhammad Akram. 4. Abdul Ghafoor, S.I. (PW. 14) recorded the formal FIR Ex. PF on the statement of Ameer Ali. He reached the place of occurrence, prepared the inquest report Ex. PM and injuries statements Ex. PM/1 of dead body of Nazir Ahmad. He also prepared inquest report Ex. PN and injuries statement Ex. PN/1 of the dead body of Muhammad Mansha. He also inspected the place of occurrence, secured blood stained earth vide memo Ex. PC and Ex. PD and made it into sealed parcels and took into possession a shoe of Mukhtar Ahmad accused from the place of occurrence Ex. PO. The dead bodies were taken into possession and transmitted to the mortuary at Sheikhupura through Shaukat Ali Constable No. 120 and Muhammad Akram, Constable No. 417. On 31.1.1989, the last worn clothes of Nazir Ahmad deceased Chaddar PI, Shirt P2, Saluka P3, Bunyan P4, all blood stained, Chaddar woolen P5 and a plastic box was produced before him by Shaukat Ali Constable No. 120 which were taken into possession vide memo Ex. PA. On the same day, the last worn clothes of Muhammad Munsha deceased Chaddar P6, Kurta P7, Kameez P8, Saluka Woolen P9, Chaddar woolen P10, all blood stained and shoe Pll and Jarsi P12 were produced before him by Shaukat Ali, Constable No. 120 which were taken into possession vide memo Ex. PB. On 16.2.1989 the site plan of place of occurrence Ex. PLJ and Ex. PJ/1 in duplicate, was prepared by Mumtaz Hussain (PW. 6) who produced the same before Abdul Ghafoor SI. 5. Wazir Ali S.I. (PW. 12) arrested Munsha and Mukhtar accused from District Jail, Okara on 21.11.1992 and transferred them' to Sheikhupura. Mukhtar accused got recovered revolver P13 and the same was taken into possession vide memo Ex. PK. Munsha accused also led to the recovery of revolver P14 on 1.12.1992 which was taken into possession vide memo Ex. PL. 6. Dr. M hammad Rafi (PW. 5) conducted the postmortem examination on the dead bodies on 31.1.89. On the dead body of Nazir Ahmad, following injuries were found to be present: - 1. Abrasion 2 cm x 1 cm on right cheek, 1 cm outer to right ye. 2. A fire arm wound of entry 0.5 cm in diameter on right side of front of chest, 5^ cm above and medial to right nipple, passing into the chest, fracturing 3rd rib, right side, front damaging right lung and major blood vessels and' lodged there. A metallic body removed, seal and handed' over to Police. 3. A'fire arm wound of entry 0.5 cm in diameter, with p blackening of the margins, on right side of back of body, 8% cm above right posterior superior iliac spine. Passed through the abdomen and made wound exit right side of , front of abdomen. Size of exit wound was 0.7 cm x 0.7 cm. 4. A fire arm wound of entry 0.5 cm in diameter, with blackening of margin, on left side of back of chest, 6 cm below the tip of left scapula passing into the chest, damaging the left lung, disphragm, splean and lodged there. A . metalic body removed, sealed and handed over to Police. All the injuries were antimortem. Injury No. 1 was caused by blunt weapon and injuries 2, 3 and 4 by fire arm. The death occurred due to shock, haemo­ rrhage and injury to vital organs, that is, lungs and major blood vessels of heart. Injury Nos. 2 and 4 individually and all the injuries collectively were sufficient to cause the death of a person in ordinary course of nature. The probable time that elapsed between injuries and the death was within 15 minutes and between the death and the post mortem within one day. 7. On the same day, Dr. Muhammad Rafi (PW. 5) examined the dead body of Muhammad Munsha and found the following injuries on his person:- 1. A fire arm wound of entry 0.5 cm in diameter on right side of back of chest 13 cm below the tip of right scapula, passing through the chest damaging right lung and pleura and making wound of exit 1 cm x 0.7 cm on right side of front of chest. 5.5 cm medial to right nipple. Chest cavity contained two liters of blood. 2. A fire arm wound of entry 0.5 cm in diameter on left side of back of body 5 cm above the left posterior superior ilica spine passing through the soft tissues and making wound of exit, 0.7 cm x 0.7 cm on left side of front of abdomen 3 cm above the anterior superior iliac spine. Intervening distance between the two wounds was 13.5 cm. In the opinion of the doctor, both the injuries were antemortem and caused by fire arm. The death occurred due to shock, haemorrhage and injury to vital organ, that is, lung and Injury No. 1 individually and both the injuries collectively were sufficient to cause the death of a person of ordinary course of nature. The probable time that elapsed between the injuries and the death was within 15 to 30 minutes and between the death and the post mortem was within one day 4. Muhammad Easa (PW. 2) is the marginal witness of Ex. PC and PD by virtue of which blood-stained earth was taken into possession by the Investigating Officer in his presence. He was also the marginal witness of recovery memo Ex. PE by means of which the Investigating Officer had taken into possession the mocassion of Mukhtar Ahmad accused from the place of occurrence. Muhammad son of Ilyas (PW. 11) has stated that revolver P13 recovered from the residential room of Mukhtar accused and the revolver P14 recovered from the residential room of Munsha respectively vide memos Ex.PK and PL bear his thumb impression. 9. After the completion of the investigation the two accused/ appellants were challaned and were sent up to face the trial. The accused were charge sheeted under Sections 302/34 G hich they pleaded not guilty and at the trial the prosecution examined as any as 14 witnesses. Ghulam Ali (PW. 1) identified the dead bodies of azir Ahmad and Muhammad Munsha deceased e time of post mortem xamination. Muhammad Easa (PW. 2) is the marginal witness of the ecovery of weapons of offence. Ameer Ali (PW. 3) is the complainant who eiterated the ory narrated in the first information report. Muhammad kram (PW. 4) is an eye-witness of the occurrence who too reiterated the story. Dr. Muhammad Rafi (PW. 5) conducted the st mortem xamination on the dead bodies of Nazir Ahmad and Muhammad Munsha. umtaz Hussain (PW. 6) prepared the site plan of the place of occurrence x. PJ and Ex. PJ/1 in plicate on the pointation of the PWs and the irections of the Investigating Officer in scale 40 karams equal to one inch nd that the site plans bears his signatures and notes in black ink. Aukat li Constable (PW. 7) escorted the dead bodies of Nazir Ahmad and uhammad Munsha to the mortuary at Sheikhupura. Muhammad Ali Constable (PW. 8) was nded r the sealed parcels containing revolvers or onward transmission to the Forensic Science Laboratory, Lahore . Abdur ashid, Sub Inspector (PW. 9) received 2 sealed parcels containing blood tained earth and handed over the same to Muhammad Akram, Constable or onward transmission to the office of the Chemical Examiner. uhammad Anwar, Head Constable (PW. ) ceived two parcels allegedly ontaining revolver from the Investigating Officer and on 6.12.1992 handed ver both the parcels to Constable Muhammad Ali for onward transmission o S.P. chnical Services, Lahore . Muhammad son of flyas (PW. 11) was the itness of recovery of revolvers P13 and P14. Wazir Ali, Sub Inspector (PW. 2) arrested Munsha and Mukhtar accused om ara Jail and got them ransferred to Sheikhupura and also recovered revolver P13 from Mukhtar hmad and revolver P14 from the custody of Munsha and made them into aled parcels. hammad Yar, Sub Inspector (PW. 13) received non ailable warrants of arrest of accused Mansha and Mukhtar. Abdul Ghafoor PW. 14) recorded the FIR Ex. PF on the statement of the mplainant, eached the place of occurrence, prepared the inquest report Ex. PM, njuries statement Ex. PN/1, secured the blood stained earth vide memo Ex. C and Ex. PD, made em into sealed parcels and also took into possession shoe of Mukhtar accused from the place of occurrence vide memo Ex. PE. e also prepared the rough sketch of place of currence Ex. PO and ransmitted the dead bodies to the mortuary at Sheikhupura through haukat Ali and Muhammad Akram, Constables and also recorded the tatements of the s. The last worn clothes of Nazir Ahmad and uhammad Munsha deceased were also produced before him which were ken into possession. After the prosecution side closed its evidence, e statements of he accused were recorded under Section 342 Cr.P.C. in which they both tated that the prosecution story was incorrect and the case against them they veached the spot after running it in the village and then fabricated a false version against them. Both the accused did not produce any evidence in defence. 12. The learned Additional Sessions Judge held the testimony of h the eye witnesses to be consistent and confidence inspiring and also to be corroborated by the medical evidence to the extent that the weapons used during the occurrence were fire arms and the motive, as pleaded was admitted and that the abscondance of both the accused persons for a riod of four years was a corroborative piece of evidence against them. Regarding non mention of the exact location of the injuries by the PWs, the learned trial Court observed that it was natural during the occurrence specially when Mukhtar accused was also inimical to Ameer PW that Ameer PW could not see the exact location of the injuries and when getting the statement recorded before the Police, he could not narrate the exact location of the injuries on the dead bodies. 13. The main stress of the arguments of learned counsel for the appellant is that both the eye witnesses have stated that the fire arm injuries were caused on the face, chest and abdomen and as such the face was towards thegassailants while the medico legal examination has revealed that the injuries Were caused on the back and that had the eye witnesses seen the ccurrence, this contradiction would not have appeared and that it was a discrepancy which made the evidence doubtful. 14. On the other hand, learned counsel for the complainant and the State have taken the stand that the parties are related inter se and there is no question of substitution and that Ameer PW who is the owner of the land adjacent to the place of occurrence has got no enmity against the accused persons to falsely involve them and that the fact of abscondance for four long years is a strong corroborative piece of evidence against the accused. In answer to a question as to why the case was against the accused, it was stated that the PWs were not present at the spot and they reached the spot after running it in the village and then fabricated a false version against the accused shows that they had the knowledge that the PWs were not present at the spot. 15. I have given due consideration to the valuable arguments on both the sides and have also perused the record with their able assistance. 16. The number, the nature and the place except the discrepancy of front and back and the recovery of the weapons of offence from the possession of the accused/appellants after their arrest tally with the eye witness account. The incident was so quick that the death occurred within 15 minutes, what was the reaction of the two assailed victims as natural. They had not to go towards the assailants but to make an attempt to save themselves and a little turn can make the front view into back. The PWs have not stated that the assailants had aimed at a particular point of the body. In the case ofSaeedullah Khan versus The State (1986 S.C.M.R. 1027) where the medical evidence is to the effect that the deceased was hit in the back while the eye witnesses stated that the deceased was hit in front of chest, the Hon'ble Supreme Court of Pakistan held that the discrepancy was of no importance. The witnesses must have been confused in observation. 17. Further, in the present case the ocular evidence as to the umber of the injuries caused by the accused/appellants is not in conflict with the medical evidence. There is difference between discrepancy in occular account and inconsistency between the medical and occular evidence. In the present case, it was a discrepancy as a result of natural confusion which cannot be taken as rendering the prosecution evidence as doubtful. 18. The parties are well known to each other. Ther is no question of substitution in this case. The witnesses have explained their position in the cross examination. The absconsion for long period of four years, which was put to the accused and they could not explain also speaks of the guilty mind and in the circumstances of this case is a strong piece of corroborative evidence. In a similar circumstance, the Hon'ble Supreme Court of Pakistan in the case of Mst. Roheeda vtrsus Khan Bahadur and another (1992 S.C.M.R. 1036) observed:- "No doubt, abscondance by itself is not sufficient to" convict an accused person but is strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. In the instant case the accused/respondent No., 1 Jehanzeb accused (since murdered) and their brother Aurangzeb remained fugitive from justice for a very long time without any plausible and reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case." 19. In these circumstances, the guilt of Mukhtar alias Mokha and Mansha, appellants is established beyond any doubt. I would, therefore, dismiss their appeal and maintain their convictions and sentences awarded to them by the learned trial Court. 20. On re-appraisal of the evidence, I find no merit either in th Criminal Revision No. 11/A of 1995 filed by Ameer AH, complainant and Criminal Revision No. 457 of 1997 filed by the State for enhancement of the sentence awarded to the accused by the learned trial Court. (MYFK) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 162 Present: muhammad naseem chaudhri, J. MUHAMMAD ISHAQ-Petitioner versus STATE-Respondent Crl. Misc. No. 3123-B of 1998, accepted on 8.7.98. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Offence u/S. 161, 162, 163, 165, 109 PPC and Section 5 of Prevention of Corruption Act, 1947-Bail--Grant of--Prayer for--Case of further inquiry-Whether bail can be refused on the ground that complainant is a Presiding Officer of Civil/Criminal Court-Question of- It can safely be expressed that involvement of M is a question of further inquiry who even otherwise is entitled to be admitted to bail as offence under Section 5 of Prevention of Corruption Act, 1947 does not fall within prohibitory clause—It shall not be out of place to express that bail cannot be disallowed as a punishment only on ground that complainant is a learned Presiding Officer of a Civil/Criminal Court-Bail granted. [P. 164] A Mr. Muhammad Ramzan Chaudhri, Advocate for Petitioner. Mr. Muhammad Mudassar Bodlah, Advocate for State. Date of hearing: 8.7.1998. judgment Muhammad Ishaque petitioner is posted as Naib Qasid in the Court of Mr. Muhammad Ikram Civil Judge 1st Class/Magistrate Section 30, Faisalabad . Shaukat Ah', Muhammad Iqbal and Mu ammad Shahid accused of crime case No. 19 of 1998 registered under Sections 406/420 Pakistan Penal Code at Police Station Rail Bazar, Faisalabad made an application for ail after arrest. The said application was argued on 28.4.1998 which was also taken up on 29.4.1998 and thereafter was accepted on 30.4 1998. It v,-as on 2.5.1998 that Iqbal Mahmood, Ahlmad posted in the aforesaid le<<-:i Court intimated the learned Presiding Officer that Muhammad shaque Naib Qasid (petitioner-accused) had received an amount of Vs. 1,OOU/- as illegal gratification to secure the favour for the aforesaid accused persons from the Court. Muhammad Ilyas Stenographer and Abdul Rashid Stenographer posted in the Court of Mr. Sagheer Ahmad Qadri, Additional Sessions Judge, Faisalabad corroborated the aforesaid Iqbal Mahmood Ahlmad. The learned Presiding Officer gave a notice to Muhammad Ishaque Naib Qasid for 11.5.1998 who was heard when he stated that an amount of Rs. 1,000/- was paid by Zahid AM, a relative of the aforesaid accused persons of aforesaid criminal case, to meet the expenses of the bread and butter of the staff of the Court. Thereafter an inquiry was held. Zahid Ali who is said to have made payment of amount of Rs. 1,000/- also took up the similar stand as expressed by Muhammad Ishaque petitioner-accused. The statement of the Ahlmad and the Stenographers were also recorded. Mr. Muhammad Ikram Civil Judge 1st Class/Magistrate Section 30 Faisalabad expressed his opinion that it is a case of passing of the illegal gratification and referred the matter to the Anti-Corruption Establishment, Faisalabad where formal FIR No. 4 dated 26.5.1998 was registered under Section 161/162/163/165/109 Pakistan Penal Code and under Section 5 of the Prevention of Corruption Act, 1947. Zahid Ali has also been booked along with Muhammad Ishaque petitioner-accused. Muhammad Ishaque was arrested on 26.5.1998 whose bail plea has been rejected by the learned Special Judge, Anti-Corruption Faisalabad Division, Faisalabad and he has filed this petition before this Court to try his luck to be admitted to bail. 2. I have heard the learned counsel for the petitioner as well as the learned counsel for the State and gone through the record before me. The contentions of the learned counsel for Muhammad Ishaque petitioner are that Sections 161, 162, 163, 165, 109 Pakistan Penal Code are bailable and that the offence under Section 5 of the Prevention of Corruption Act, 1947 does not fall within the prohibitory clause. He added that the statement of Muhammad Zahid who has been treated as a co-accused has made out that the amount of Rs, 1,000/- was not passed as the illegal gratification. On the contrary learned State counsel laid the emphasis that in the circumstances of the matter projected above Muhammad Ishaque petitioner is not entitled to the discretion of this Court as being a Naib Qasid he has brought bad name to the Court and that such a working deserves to be curbed with iron hand. 3. Without prejudice and without being disrespectful to Mr. hammad Ikram Civil Judge 1st Class/Magistrate Section 30, Faisalabad I have to express that his working is responsible for the creation of the present siiuation. The bail application in a petty case of Section 406/420 Pakistan Penal Code was fixed before him which was heard on 28.4.1998, 9.4.1998 and 30.4.1998 and there cannot be any restraint on the impression of the litigant public which has to be controlled by the Presiding Officer through regular working and in such a manner which cannot be termed that of perfunctory nature. In case Iqbal Mahmood Ahlmad was aware of the episode he should have intimated the Presiding Officer immediately and not on 2.5.1998. Same is my view with respect to Muhammad Ilyas and Abdul Rashid Stenographers. The silence on their part has made me to express that there was some ickering between the staff of the Court. It is better to express that little brooks make the river and the trend of aforesaid type of working of the complainant/learned Presiding Officer shall play the part in routine even in future if not altered/charged by him. Keeping in view the statement of Muhammad Zahid it can safely be expressed that the A involvement of Muhammad Ishaque is a question of further inquiry who even otherwise is entitled to be admitted to bail as the offence under Section 5 of the Prevention of Corruption Act, 1947 does not fall within the prohibitory clause. It shall not be out of place to express that the bail cannot be disallowed as a punishment only on the ground that the complainant is a learned Presiding Officer of a Civil/Criminal Court about whose working I have made my observations with hesitation. 4. Mr. Muhammad Ikram, Civil Judge 1st Class/Magistrate Section 30 Faisalabad should streamline his working to avoid such a situation in future and obviously should show his control on his staff. 5. Finding it to be a fit case I accept this application and admit Muhammad Ishaque petitioner-accused to bail in the sum of Rs. 10,000/- (Rupees Ten Thousand only) with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court who after attestation of the bail bond etc. shall send the same to the learned pecial Judge Anti-Corruption Faisalabad for addition of the same to the file after the submission of the challan. 6. A copy of this order shall be sent to the learned District Judge Faisalabad to bring the same to the notice of all of his subordinate so that such an incident does not occur in future. 7. A copy of this order shall also be sent to Mr. Muhammad Ikram, Civil Judge 1st Class/Magistrate Section 30 Faisalabad so that he is able to go through the same and to streamline his working with regularity expected from a seasoned Judicial Officer of his rank. (K.A.B) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 165 Present: asif saeed khan khosa, J. MUHAMMAD RAFIQUE-Petitioner versus DAULAT KHAN and another-Respondents Criminal Misc. No. 106/Q of 1998 and Cr. Misc. No. 113-Q of 1998, accepted on 3.7.1998. (i) Constitution of Pakistan , 1973-- —Article 13 read with S. 403 Cr.P.C. and S. 26 of General Clauses Act, 1897~Criminal trial—Aquittal of accused on statement of complainant that complainant does not wish to prosecute case against accused-­ Revision filed by complainant against order of acquittal-Dismissed as withdrawn-Order of acquittal attained finality-Trial court becomes functus officio after recording order of acquittal-Judgment cannot be modified or altered subsequently—Order of fresh trial is Get-aside. [Pp. 171, 172 & 173] A & F (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 561-A-Quashment of F.I.R.-Inherent power of High Court-Dead person convicted by trial Court-Local Police found accused persons innocent-Court framed no charge-No summons issued-No trial hcid- Punishment of "Daman" u/S. 337/FUii) P.P.C.-Confession not before court is no confession-Such confession cannot be used against any person-Accuseds were never chalianed-Hcld-No person can be punished without notice, summons, framing of charge and trial- Conviction without trial held further, abuse of process of court-High Court has ample inherent power Lo prevent injustice by way of mis-use of process of Court-F.I.Il. quashed-Petition accepted. [Pp. 171, 172 & 173] B, C, D, E and G Mr, R.A. Awan, Advocate for Petitioner. Mr. Naivab Saecd-ullah Khan, Advocaee for Respondent No. 1. Mr. Maqsood Ahmad, Advocate for Slate. Date of hearing : 3.7.1998. judgment I propose to dispose of Crl. Misc. No. JO3~Q/PS and Crl. Misc. No. 113-Q/9S together through the present consolidated judgment. . A dead man has teen found guilty and punbi:ed and three other persons, who had never Leon charged or Ui-d, have also Lecn convicted and sentenced in this case. One would have thought that it would never happen in a court of law but, unfortunately, this has happened in the present case. The bizarre fashion in which it has happened is evidenced by the following facts: 3. At bout 7.30 p.m on 8.7.1994 one Daulat Khan was allegedly fired at by Masood Ahmed a/ias Kaka when the said Daulat Khan was present in his 'Pan Centre' in the area of Gurumangat within the jurisdiction of Police Station Ghalib Market, Lahore. Allegedly three other persons namely Muhammad Rafique, Muhammad Amin and Muhammad Safdar had abetted the said Masood Ahmed in that respect behind the scene. FIR No. 172 was lodged at Police Station Ghalib Market, Lahore on the same day by Daulat Khan complainant against the said four persons for an offence under Section 324, P.P.C. After due investigation the local police submitted a challan in that regard only against Masood Ahmed accused after finding the other three accused persons innocent. Resultantly, a charge was framed by the learned trial court against the said Masood Ahmed accused alone. On 1.11.94 the learned Judicial Magistrate Section 30, Model Town, Lahore was pleased to acquit the said Masood Ahmed accused and the operative part of that judgment is re-produced below for facility of reference : "On his appearance, copies u/S. 161 Cr.P.C. given, charge framed, on denial PWs called. Affidavit of Masood accused, Muhammad Amin attached. Daulat Khan complainant appeared in the court on 1.11.1994. He produced compromise/affidavit. His statement was recorded. He has forgiven all the accused. Offence u/S. 324 PPG is compoundable as complainant injured has forgiven all the accused, no cause of action is left behind, accused Masood Ahmad is acquitted u/S. 345 Cr.P.C." The record of the learned trial court shows that the said order had been passed by the learned trial court after affidavits had been filed by Muhammad Amin and Muhammad Safdar (accused persons in the FIR) to the effect that they had been forgiven by Daulat Khan complainant. Another affidavit had been filed by Muhammad Rafique (accused person in the FIR) to the effect that he had entered into a compromise with Daulat Khan complainant and the complainant had thus forgiven his right of Qisas in that respect but the amount of Diyat shall be payable by the said Muhammad Rafique to Daulat Khan complainant. The said judgment passed by the learned trial court also shows that a statement of Daulat Khan complainant had also been recorded by the learned trial court on that date to that effect although the judgment is completely silent about any understanding between Muhammad Rafique and Daulat Khan complainant regarding payment of Diyat. It is an admitted position between the parties that this judgment passed by the learned trial court assumed finality inasmuch as no appeal or revision petition was filed against that judgment in the next almost three years. It is also an admitted position between the parties that on 15.10.1996 Masood Ahmed a//as Kaka the acquitted accused person in that case, died. An off-shoot of that case FIR No. 172 mentioned earlier was that on 22.7.1995 FIR No. 169 was lodged by the same Daulat Khan complainant t Police Station Nasirabad, Lahore against Dr. Maqsood Ahmed and asood Ahmed alias Kaka (mentioned rlier) for having committed ffences under Sections 420, 468, 471 and 109, PPC. The allegation against he accused persons therein was that they had removed the original Medico egal port from the record of the case FIR No. 172/94 and had placed a hoto copy of the same on the record. Subsequently two other persons amely Dr. Mazhar and Dr. Shahzad were also plicated is case but hey had reportedly become fugitive from law. After investigation of that ase the local police had submitted a challan before the court of competent urisdiction. An application under ction 249-A, Cr.P.C. was then moved by . Maqsood Ahmed accused seeking his pre-mature acquittal in that case. It s note-worthy that by that time Masood Ahmed alias Kaka had already ied. On 26.10.1996 the learned Judicial Magistrate Section 30, Model Town, ahore was pleased to acquit the said Dr. Maqsood Ahmed accused by ccepting his application under section 249- .P.C. It was observed in the udgment of acquittal recorded by the learned trial court that the omplainant Daulat Khan had made a statement that he did not wish to rosecute the said Dr. Maqsood Ahmed accused. 4. Daulat Khan complainant underwent a change of heart in that respect subsequently and filed a revision petition before the learned Court of Session, Lahore whereby he challenged the acquittal of Dr. Maqsood Ahmad accused recorded by the learned trial court. It is interesting to point out that in that revision petition he not only impleaded Dr. Maqsood Ahmed accused as a respondent but he also went on to implead Masood Ahmed alias Kaka accused (already dead) and one Dr. Mubashar who was never involved in this case in any capacity. On 6.12.1997 the learned Additional Sessions Judge, Lahore recorded the statement of Daulat Khan complainant's learned counsel and dismissed the said revision petition as having been withdrawn. However, the said order went on to observe "learned counsel can move the learned trial court for modification of the order pertaining to Qisas and Diyat." It is surprising to notice that the said case FIR No. 169/95 was in respect of offences under Section 420/468/471/109, PPC to which Qisas and Diyat Law did not apply. Equipped with that order passed by the learned Revisional Court, Daulat Khan filed an application before the learned trial Magistrate seeking de novo trial of the case FIR No. 169/95 and on the same date the learned trial Magistrate was pleased to order that Dr. Shahzad and Dr. Mazhar accused persons were fugitives from law and Maqsood Ahmed accused had admittedly died by that time. Therefore, an order was passed summoning Dr. Maqsood Ahmed accused to face a trial in that case. This order of summoning has been challenged by Dr. Maqsood Ahmed accused before this court through Crl. Misc. 113-Q/98. 6. As regards the earlier case FIR No. 172/94 registered at Police Station Ghalib Market, Lahore, wherein Maqsood Ahmed alias Kaka had already been acquitted vide judgment dated 1.11.1994, Daulat Khan complainant filed an application before the learned Judicial Magistrate Section 30, Model Town, Lahore on 23.9.1997 praying therein that the trial of the accused persons in that case should be held for an offence under Section 337-F(iii), PPC. Through another application filed by him before the learned trial court on 18.12.1997 the said Daulat Khan complainant sought a direction to Muhammad Rafique (accused person in the FIR) to pay Diyat according to Qisas and Diyat Ordinance. It was alleged in that application that despite a commitment having been made by the said Muhammad Rafique regarding payment of Diyat to Daulat Khan complainant the former had failed to make that payment and to honour his commitment. On the receipt of those application filed by Daulat Khan complainant the learned trial court summoned the said Muhammad Rafique. Upon his appearance before the learned trial court the said Muhammad Rafique filed two successive applications before the learned trial court claiming therein that the said two applications filed by Daulat Khan could not be proceeded with and the same merited to be dismissed. On 1.4.1998 the learned Judicial Magistrate Section 30, Model Town , Lahore passed an order the operative part whereof reads as follows : "I have summoned the record from the record room/P.S. Ghalib Market but the record was not procured. From the perusal of the documents produced by the petitioner Daulat Khan a compromise was effected between the parties and by virtue of that compromise Maqsood Ahmad etc were acquitted u/S. 345 Cr.P.C. vide my order dated 1.11. '0'J4. At the time of compromise they had submitted their f;!;"j<lavits as desired by the applicants. From the Medico Log;!I H'.-'port the injuries were caused on the vital parts of t!<' body resulting 337-F(3). According to the compromise '.<..Uveen the parties Muhammad Rafique Patwari had subiu;.icd an affidavit dated 22.10.1994 in favour of Daulat Khan that he had made the payment of Diyat. As provided under Qisas £ Diyat Ord. they had to pay Daman as actual expenses occurred on the treatment of the victim. So the order dated 1.11.1994 is modified to this extent that Maqsood Ahmed etc. had to pay Rs. 15000/- to Daulat Khan complainant/victim as Daman, within the period of 1 month. The application is accepted. File be consigned to Record Room." This order has been challenged before this court by Muhammad Rafique petitioner through Crl. Misc. No. 106-Q/98. 7. I have heard the learned counsel for the petitioner in both the etitions and the learned counsel for the State as well as the complainant in both these matters and have also gone through the record of these cases with their assistance. 8. It has been contended by the learned counsel for the petitioner that in Crl. Misc. No. 113-Q/98 the impugned order passed by the learned Judicial Magistrate Section 30, Model Town, Lahore on 18.12.1997 is legally not sustainable and the same was in fact absolutely without jurisdiction inasmuch as the petitioner Dr. Maqsood Ahmed had already been acquitted by the same learned trial court vide judgment dated 26.10.1996 and the revision petition filed by Daulat Khan complainant against that judgment of acquittal, although not maintainable at all, had also been dismissed by the learned Additional Sessions Judge, Lahore vide order dated 6.12.1997. He has further maintained that the impugned order amounts to holding of a re­ trial of an accused person who has already been acquitted by the learned trial court and which judgment of acquittal has already attained finality. He s also emphasised that the earlier acquittal of the petitioner recorded by the learned trial court was based on the statement of the complainant himself that he did not want to prosecute the petitioner and, therefore, the complainant could not be allowed to turn around after more than a year of that statement and seek a re-trial of the petitioner in respect of that case. He has in this context referred to Article 13 of the Constitution of Pakistan, 1973, Section 403, Cr.P.C. and Section 26 of the General Clauses Act, 1897. 9. As regards Crl. Misc. No. 106-Q/98 the learned counsel for the petitioners has argued that at the time when the learned Judicial Magistrate Section 30, Model Town, Lahore had assed the impugned order dated 1.4.1998 Maqsood Ahmed alias Kaka accused person in case FIR No. 172 had already died and the three other accused persons mentioned in that FIR had either been challaned by the local police nor had they been summoned by the learned trial court to face a trial. He has also pointed out that in the absence of any charge having been framed against the said three persons the learned trial court could not have proceeded to straightaway record a conviction of "Muhammad Rafique etc." without holding any trial or recording any evidence against them. He has further pointed out that the said three persons had never become accused persons before the learned trial court in any formal sense and they could not be convicted or punished without going through the procedure prescribed by the Code of Criminal Procedure for holding a trial. He has further stressed that the earlier judgment of acquittal recorded by the learned trial court on 1.11.1994 regarding Maqsood Ahmed alias Kaka accused had already attained finality as no appeal or revision had been filed the reagainst by anybody. In this view of the matter, according to him, the impugned order dated 1.4.1998 had resulted in any order of conviction and sentence against a dead person who had already been acquitted and against three other persons who bed neither been challaned or charged nor tried by the learned trial court. He has gone on to argue that the impugned order passed by the learned trial court could in no way be considered to be one of modification of the earlier order of acquittal as neither any modification is permissible under Section 369, Cr.P.C. nor alteration of this nature is contemplated by any other provision of the Code of Criminal Procedure. 10. As against that the learned counsel for the State as well as the learned counsel for Daulat Khan complainant have maintained that these Crl. Misc. petitions filed under Section 561-A, Cr.P.C. are not maintainable as the orders impugned herein were appealable or revisable orders and due to the availability of those statutory remedies the provisions of Section 561- A, Cr.P.C. could not have been invoked in that regard. They have further submitted that the petitioners in these petitions have not approached this court with clean hands as a solemn commitment given to a court of law in respect of payment of Diyat had been violated in that regard. As regards the procedure which was followed by the learned trial court in both these petitions they have maintained that throughout the impugned proceedings the petitioners had been associated with the same and they got ample opportunity to submit their case and defend themselves before the learned trial court. It has also been pointed out that by virtue of Section 338-F, PPC while interpreting the provisions of Qisas and Diyat Laws in the ode of Criminal Procedure the courts are required to be guided by the Holy Quran and Sunnah. In this context they have referred to a concept of Islamic Jurisprudence that it is not just an accused person who may pay Diyat but the responsibility in that regard can also be shifted to somebody else under the concept of "Aqila". While relying on that concept the learned counsel have maintained that although Masood Ahmed alias Kaka accused, Muhammad Amin and Muhammad Safdar had neither been ordered to pay nor they had undertaken to pay any Diyat to Daulat Khan complainant yet uhammad Rafique (accused person in the FIR) had undertaken before the learned trial court to pay the requisite Diyat on his own behalf as ell as on behalf of his co-accused. Therefore, it is submitted that the said Muhammad Rafique had acted as an "Aqila" in this case and he could be forced to pay Diyat according to the undertaking given by him. With these submissions he learned counsel for the State and the complainant have forcefully argued hat the present petitions do not call for any interference by this cou-?t in the exercise of its inherent jurisdiction under Section 561-A, Cr.P.C. 11. After hearing the learned counsel for the parties and going through the record I have no hesitation in accepting both these petitions. As regards Crl. Misc. No. 113-Q/98 it is quite evident that Dr. Maqsood Ahmed petitioner herein had been acquitted by the learned trial court on 26.10.1996 after Daulat Khan complainant had made a statement before the learned rial cour that he did not wish to prosecute his case against Dr. Maqsood Ahmed. There being no other evidence available on the record incriminating the said Dr. Maqsood Ahmed the learned trial court was quite justified in ordering his acquittal in that case. It is also noticeable that a revision petition filed by Daulat Khan complainant against that judgment of acquittal had also been dismissed as withdrawn by the learned Additional Sessions Judge, Lahore on 6.12.1997. In this view of the matter the acquittal earned by Dr. Maqsood Ahmed petitioner herein had attained finality and the same could not be re-opened on a miscellaneous application filed by Daulat Khan complainant before the learned trial court. The learned counsel for the petitioner is quite right in placing reliance on Article 13 of the Constitution, Section 403, Cr.P.C. and Section 26 of the General Clauses Act in this regard. Therefore, the impugned order dated 18.12.1997 whereby the learned Judicial Magistrate Section 30, Model Town, Lahore had issued process against Dr. Maqsood Ahmed petitioner with a view to holding his fresh trial is, hereby, set aside. 12. As regards Crl. Misc. No. 106-Q/98 the impugned order passed therein by the same learned Judicial Magistrate Section 30, Model Town, Lahore on 1-4-1998 is, on the face of it, an order of conviction of all the four accused persons mentioned in FIR No. 172/94. It is noticeable that Masood Ahmed alias Kaka accused in that case had already been acquitted by the learned trial court on 1.11.1994 and subsequently he had died on 15.10.1996. During that period his acquittal had never been challenged through any appeal or revision petition before any court. Thus, through the impugned order dated 1.4.1998 the learned trial court has convicted a dead person, something which is inconceivable in criminal law. As regards the other three accused persons in that FIR namely Muhammad Rafique, Muhammad Amin and Muhammad Safdar it is quite clear that the local police had found them innocent during the investigation and they had not been challaned. The learned trial court had also not framed any charge against them. They had also neither been summoned at any stage of that case by the learned trial court nor had they ever been tried as accused persons by the learned trial court. Thus, upon filing of a miscellaneous application by Daulat Khan complainant on 23.9.1997 before the learned trial court these three persons could not possibly be convicted straightaway without framing of any charge or holding a trial. It has been argued by the learned counsel for Daulat Khan complainant that Muhammad Rafique, petitioner herein, had submitted an affidavit before the learned trial court wherein he had made a commitment to pay Diyat to Daulat Khan complainant and it was after the said development that the learned trial court had acquitted Masood Ahmed alias Kaka accused on 1.11.1994. He has maintained that upon failure of Muhammad Rafique to pay. Diyat to Daulat Khan a miscellaneous application had been filed by the said Daulat Khan complainant before the learned trial court on 23.9.1997 whereafter the learned trial court had passed the impugned order on 1.4.1998. He has further maintained that although Muhammad Rafique was not an accused person facing a trial before the learned trial court at the time when the order of acquittal was passed on 1.11.1994 yet the said Muhammad Rafique acted as an "Aqila" who, in Islamic Jurisprudence, is a person liable to pay Diyat on behalf of an accused person. It has, thus, been argued that upon the failure of "Aqila" to honour his commitment in respect of payment of Diyat the trial court was quite justified in ignoring the earlier order of acquittal and punishing the culprits for their criminal deed. I am unable to subscribe to this submission made by the learned counsel for the complainant. A bare reading of the judgment of acquittal recorded by the learned trial court on 1.11.1994 shows that the same had not proceeded on any such understanding between the said Muhammad Rafique and the complainant. It was only Masood Ahmed accused who was facing a trial before the learned trial court and his acquittal was recorded on the basis of a statement made by the complainant that he had forgiven the accused persons and that no cause of action was left in the matter. The said judgment of acquittal bears no mention of any commitment made by Muhammad Rafique or his acting as "Aqila" on behalf of the accused persons. 12. It is shocking to notice that although Muhammad Rafique, Muhammad Amin and Muhammad Safdar had neither been challaned by the police nor the learned trial court had summoned them to face a trial yet while deciding the miscellaneous applications filed by Daulat Khan complainant on 23.9.1997 and 18.12.1997 the learned Magistrate had proceeded to record their convictions. The learned trial court, vide its impugned order dated 1.4.1998, had proceeded to convict them for an offence under Section 337-F (iii), PPC sentencing them to pay Rs. 15.000/- to Daulat Khan complainant/victim as Daman. Daman is a punishment to be awarded against an accused person after he is found guilty for the said offence. In the present case a finding of guilt against the said three persons could not have been recorded without framing any charge and without holding a trial. It has been argued by the learned counsel for the complainant that the said persons had in fact confessed their guilt when they had submitted affidavits before the learned trial court on 1.11.1994. Without commenting upon the worth of those affidavits I have no hesitation in observing that even a confession by the said persons could not have been handled by the learned trial court in the manner it has been handled by it. A confession could have entailed the said persons' conviction only if they had been properly charged before a court of law or at any stage during their trial. An alleged confession by a person not before the court as an accused person is no confession in the eyes of law and the same could not have provided the learned trial court any jurisdiction to convict them straightaway. Therefore, on this score alone tiie impugnedorder dated 1.4.1998 was a result of an abuse of the process of law and an abuse of the process of court. 13. Even otherwise after recording the judgment of acquittal on .11.1994 the learned trial court had become functus officio and the said udgment could not have been modified or altered subsequently so as to substitute an order of conviction for a judgment of acquittal. No such jurisdiction was available to the learned trial court especially in view of the provisions of Section 369, Cr.P.C. 14. The contentions of the learned counsel for the complainant that instead of filing this petition under Section 561-A, Cr.P.C. the petitioner ought to have filed an appeal against the impugned order of conviction has not impressed me in the circumstances of this case. As observed above a dead person has been found guilty and punished through the impugned order and three other persons who had never been summoned, charged or tried by the learned trial court had been convicted in this case. I could not think of any worse case than this which could be termed as an abuse of the process of court or of the process of law so as to attract this court's inherent jurisdiction under Section 561-A Cr.P.C. Even otherwise Section 561-A, Cr.P.C. itself provides that "nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent an abuse of the process of any court or otherwise to secure the ends of justice." Thus, availability of any other remedy provided by the Code of Criminal Procedure does not take away the inherent jurisdiction of this Court where such a blatant abuse of the process of the court or of law is brought to the notice of this court or where this court deems it expedient to interfere in the matter in order to secure the ends of justice. I have no doubt in my mind that in the circumstances of the present petitions this court would be hirking its responsibility if it refuses to interfere in the matter only on the ground of availability of other remedies to the persons adversely affected by the orders impugned herein. 15. For all these reasons both Crl Misc. IVutions No. 106-Q/98 and Crl. Misc. No. 113-Q/98 are, thereby, accepted aud the impugned orders passed by the learned Judicial Magistrate Se:.uoa 30, Model Town, Lahore on 1.4.1998 and 18.12.1997 respectively are, Loroby, set aside. 16. Before parting with this jiidgment I am constrained to observe that the handling of these cases by Ch. Muhammad Ismail, Judicial Magistrate Section 30, Model Town, Lahoic, has shown on his part ignorance or disregard of the procedure for trying criminal cases which involve questions of liberty of citizens. Let & -'opy of in is judgment be placed on the personal life of the said Judicial Ivlj;ji.--:.raio and the matter may be placed before the Registrar of this court for appropriate action. ( S.A. ) Petition accepted.

PLJ 1999 Cr. C.( Lahore ) 181 (DB) Present: iftikahr hussain chaudhary and shaikh abdur razzaq JJ. NASIR-Appellant versus STATE--Respondent Crl. Appeal No. 699/93 accepted on 8.10.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/148/149~Murder~Offence of~0ut of 5 accused person 4 were acquitted at trial stage-Appellant/accused was convicted on the same evidence-Challenge to--Contradiction in oral evidence and medical evidence—Presence of complainant at the place of occurrence doubtful-­ Recovered rifle was never sent to chemical Examiner as no empties of 7- mm rifle were recovered from place of occurrence, thus recovery of rifle in no way connect appellant with commission of offence-No independent corroboration-Appeal accepted. [P. 186] A Mr. Rafiq Ahmad Bajwa, Advocate for Appellant. Mehr Muhammad Nawaz, Advocate for Complainant. Malik Suleman Awan, Advocate for State. Date of hearing : 8.10.1998. judgment Shaikh Abdur Razzaq, J.--This unfortunate incident resulting in the death of Khurshid Ahmad on 16.2.1992 at 8.00 p.m. occurred in the area of Chak No. 197-G B. Nelian Wala, situated at a distance of 13 miles from the Police Station Bhowana Tehsil Chiniot, District Jhang. It was reported Toy Stud Ahmad complainant (PW4) to Asadullah Khan Sl/SHO (PW 12) who recorded complaint Ex. P-G which was later on reduced into formal FIR Ex. P-G/1. 2. The prosecution case as narrated by Said Ahmad (PW4) was that on 16.2.1992 at about 8.00 p.m. he was going towards his Dera from his house. When he reached near the culvert adjoining to his Dcra, Nasir accused armed with a rifle, Abid armed with pistol, Ihsan armed with -hatchet, Sadiq armed with 12 bore gun, Nasir and Mumtaz armed with 7-mm rifles emerged there raising Lalkara that they would take the revenge of the murder of Ali Muhammad. Accused Mumtaz fired at him, but it missed, upon which he caught hold of his rifle and raised alarm which attracted Khurshid Ahmad, Muhammad Ishaq and Noor Hussain who were staying there as guests. Thereupon Nasir accused fired with his rifle which hit Khurshid Ahmad on the left side of his chest. Sadiq accused tried to fire at the complainant, but in the meanwhile Muhammad Ishaq PW reached there and caught hold the barrel of his gun so the fire was missed. Abid and Ehsanullah inflicted blows on his person and consequently the barrel of gun slipped from his hand. After the occurrence all accused fled away raising Lalkara, leaving two Cycles and one mare. The complainant removed Khurshid Ahmad in injured condition to Faisalabad where he was medically examined and died at 3.30 A.M. on the same night. 3. The motive behind this occurrence was stated to be that 18/20 years ago Ali Muhammad father of Nasir Ali accused-appellant was murdered by Mumraiz etc. but a compromise had taken place a year before the present occurrence. However Mumrai and others gave the impression that Ali Muhammad father of accused-appellant had been murdered at the instance of Huzoor Muhammad, father of the complainant. The accused- appellant nourished grudge on that account and launched this attack with the connivance of his co-accused resulting into death of his brother. Leaving e dead body under the supervision of Muhammad Ishaq and Noor Muhammad, the complainant made for lodging the report, which was recorded by Asadullah SI/'SHO (PW 12) who at the relevant time was posted at pp Ghugh Chowk. 4. After the registration of complaint Ex. PG, he sent the same through Shamasul Haq Constable at the Police Station for formal registration of FIR and made for Civil Hospital, Faisalabad. He examined dead body, prepared inquest report Ex. P-M and injury statement Ex. P-N, despatched the dead body for post mortem examination through Muhammad Saqib Constable. He then made for the place of occurrence and collected blood stained earth vide memo Ex. PC. He also collected two Cycles P-4 and P-5 vide memo Ex. PD. On the same day Muhammad Saqib Constable produced last worn clothes of deceased P-7 to P-9 which he secured vide memo Ex, P-J. He also prepared statement of injury of Said Ahmad complainant Ex. P-O. He also got the site plans prepared throu.;h Patwari which are Ex. P-K and Ex. P-K/1. The remaining investigation was also conducted by Ghulam Haider S.I. (PW 14) who was posted in March, 1992 at pp Ghugh. On 23.7.1992 he arrested accused, Abid, Sadiq, Munitaz and Ihsan. On 6.4.1992 Ihsan accused led to the recoveiy of hatchet I' 1 which he secured vide memo Ex. P-A. On 7.4.1992 Sadiq accused led to the recoveiy of gun P-2 & 2 Cartridges P3/1-2 and secured the same vide memo Ex. P-B. On 15.4.1992 he arrested accused Nasir Ali who on 24.4.1992 led to the recovery of 7-mm rifle P-6 which was secured vide memo Ex. P-E. He secured copies of Rapt No. 15 dated 18.2.1992 and Rapt No. 21 dated 15.2.1992 Ex. P-M and Ex. P-N respectively. After completing the investigation he got the accused challaned. • 5. A charge under Section 302/148/149 PPC was framed against the accused to which they pleaded not guilty and claimed trial. 6. In the instant case prosecution examined as many as 14 PWs, out of whom Zahoor Ahmad PW-1 is a witness of identification of dead body of Khurshid Ahmad deceased whereas Shaukat Hayat PW-2 is the witness of recovery of hatchet P-l at the instance of accused Ihsan which was secured vide memo Ex. P-A dated 6.4.1992. He also witnessed memo Ex. P-B pertaining to the recoveiy of 12 bore gun P-2 and cartridges P-3/1-2 at the instance of Sadiq accused on 7.4.1992. Nawazish Ali PW-3 is the witness of recoveiy of blood stained earth which was secured on 17.2.1992 vide memo Ex. P-C. He also attested memo of recoveiy Ex. P-D pertaining to Cycles P-4 and P-5. He also attested memo Ex. P-E whereby rifle P-6 recovered at the instance of Nasir Ali accused was secured. Said Ahmad PW-4 is the complainant of this case on whose statement complaint Ex. PJ was recorded on the basis of which FIR Ex. P-G/1 was reduced into writing. Muhammad Ishaq PW-5 is an eye witness of this occurrence who corroborated the version of Said Ahmad (PW4). Dr. Masud Iqbal Bukhari PW-6 examined Khurshid Ahmad injured on 16.2.1992 at 11.30 p.m. and issued MLR Ex. P- H. He found only one fire arm injury on the person of injured. He admitted that injured was brought to the hospital by Huzoor Muhammad his father. Ahmad Sher Constable PW-7 recorded formal FIR Ex. P-G/1 on the basis of complaint Ex. P-G on 17.2.1992. Mumtaz Hussain Moharrir/IIC, PVV-8 was given case property and sealed parcel containing blood stained earth on 17.2.1992. He delivered the same to Muhammad Saqib Constable on 1.4.1992 for onward transmission to the office of Chemical Examiner. PW-9 Muhammad Saqib Constable escorted the dead body on 17.2.1992 for post mortem examination. After the post mortem examination he was given last worn clothes of the deceased P-7 to P-9 which he handed over to the Investigating Officer, who secured it vide memo Ex. P-J. On 1.4.1992 he was handed over parcel consisting of blood stained earth by Mumtaz Hussain (PW8) for onward transmission to the office of Chemical Examiner. Ahmad Khan PW-10 visited the place of occurrence, prepared site plans Ex. P-K and Ex. P-K/1 and handed over the same to the Investigating Officer. Muhammad Abbas Constable PW-11 is a formal witness as he brought record pertaining to Nasir Ali Constable, regarding his leave. Asad Ullah ASI PW-12 is the Investigating Officer whose evidence has already been discussed above. Dr. Ejaz Haider PW-13 conducted post mortem examination of dead body of Khurshid Ahmad on 17.2.1992 at 2.10 p.m. He found the following injuries on his person :-- 1. A rounded wound of 1 cm dia-mcter x abdominal cavity deep on the upper margin of right abdomen. The margins were inverted and blackened. The wound was about 11 cm below the right nipple but towards inner side. This was the wound of entry caused by firearm weapon. There was another lacerated oval shaped wound 3 cm x 2 cm on the right side of the upper abdomen. The margins were lacerated and everted. It was about 24 cm. from the right nipple in a a oblique manner towards outer side. This was corresponding wound of exit caused by the firearm weapon. In his opinion the cause of death was haemorrhage, shock and injuries to the vital organs caused hy fire arm. Both the wounds of entiy and exit were ante-mortem, grievous in nature and caused by fire arm and were sufficient to cause death in the ordinary course of nature. He gave the probable time between injuries and death about 8 to 10 hours and between death and post mortem about 8 to 12 hours. He issued post mortem examination report Ex. P-Q and sketch of injuries Ex. P-Q/1. He also signed injury statement Ex. P- N and inquest report Ex. P-M. On the same day he also examined Said Ahmad complainant and found the following injuries on his person :— 1. An incised wound 2 cm x 1 cm x skin deep on the left wrist joint on its outer aspect. 2. An incised wound 1\ cm x 1 cm x skin deep on the front of the left wrist joint. 3. An incised wound \ cm x \ cm on the left ring finger near he bed of the nail. 4. An abrasion 1 cm x \ cm on the front of the right knee joint in its lower half. 5. A swelling 2 \ cm x 1 \ cm on the outer half of the right eye brow. He issued MLR Ex. P-R and sketch Ex. P-R/1. He deposed that all the injuries were simple in nature and injuries No. 1 to 3 were caused by a sharp edged weapon and rest by blunt edge weapon. PW-14 Ghulam Haider S.I. conducted partial investigation of case whose evidence has already "been discussed above. Learned DDA produced report of Chemical Examiner "'ul that of Serologist and thereby closed prosecution case vide his stati .. < nt dated 6.7.1993. 7. When examined under Section 342 Cr.P.C. accused ,V. id Hussain, Sadiq, Ihsan and Mumtaz admitted that accused are related . , /i.r se but denied other contentions of the prosecution. The accused Sadi .iiul Ihsan also denied the recovery of gun and hatchet respectively. The ar -u.-vd Mumtaz produced documents Ex. D-C and Ex. D-D in support uf h : .s contention. Similarly accused Nasir AH denied the prosecution version including the recovery of 7-mm rifle. He also produced a discharge certificate from hospital Ex. DE. None of the accused examined himself u/S. 340(2) Cr.P.C. 8. After going through the evidence produced by the parties, the trial Court convicted Nasir Ali accused-appellant and sentenced him to death and fine of Rs. 50,000/- to be paid as comensation under Section 544-A Cr.P.C. to the legal heirs of deceased. He acquitted the remaining accused Abid, Sadiq, Ihsan and Mumtaz. The accused-appellant Nasir Ali has filed Criminal Appeal No. 699/93 whereas the learned Court has also forwarded Murder Reference as required under Section 374 Cr. P.C. The complainant has also filed Criminal Revision No. 530/93 against the acquitted-above named accused. 9. This judgment shall dispose of Murder Reference No. 299/93, Crl. Appeal No. 699/93 as well as Criminal Revision No. 530/93 arising out of Judgment dated ,26.10.1993 passed by Rao Hamid Mukhtar Khan, Additional Sessions Judge, Chiniot whereby he convicted appellant Nasir All son of Ahmad Ali accused-appellant to death and fine of Rs. 50.000/- or in default thereof to undergo further period of 3 years R.I. He however acquitted Abid Hussain, Sadiq, Ihsan sons of Varyam and Mumtaz son of Allah Bux. 10. e have heard the learned counsel for the parties and have gone through the record with their assistance. 11. Contention of the learned counsel for the appellant is that as many as 5 persons were involved in the instant case out of whom 4 have been acquitted whereas appellant has been convicted on the basis of same evidence upon which his four co-accused have been acquitted, that this fact alone shows that trial Court has not believed their evidence to the extent of acquitted accused which fact makes the prosecution case doubtful, that witnesses are inimical towards accused and their statements lack any independent corroboration, that as per statement of Said Ahmad complainant (PW 4) the deceased was fired at in standing position, that his statement stands belied by the evidence of PW-13 Dr. Ijaz who issued post mortem examination report Ex. P-Q which shows that the said injury had been inflicted on the person of deceased when he was either sleeping or the assailant was standing at upper level from the deceased, that complainant PW-4 states that he had removed the dead body of Khurshid Ahmad to civil Hospital whereas MLR Ex. P-H reveals that he was brought by his father Huzoor Muhammad, that had the complainant been present at the spot, he would have removed the injured since deceased to civil hospital for his medical examination, that occurrence admittedly took place during night hours, as such the identification of the accused including the appellant is also not free from doubt. He further submitted that even the motive pertains to an occurrence which took place 18/20 years ago, as such it does not afford any immediate cause of grievance to the appellant for committing this offence. He thus submitted that prosecution has failed to connect the accused-appellant with the commission of this offence beyond any reasonable doubt and trial Court was not justified in passing the order of conviction against him. 12. Conversely the impugned judgment has been supported by the learned counsel for the. State as well s learned counsel for the complainant. Learned counsel for the complainant has submitted that on the basis of vidence brought on record prosecution has succeeded in establishing case against the acquitted accused, as such they be also convicted in accordance with law. 13. Now let's analyse the prosecution version and see if prosecution has been able to prove its case against the accused-appellant or not. According to first version of the complainant contained in complaint Ex. P-G the deceased was fired at by Nasir Ali in standing position. This contention of the complainant stands belied from the post mortem examination report Ex. P-Q and diagram Ex. P-Q/1 which have come on record through the statement of Dr. Ijaz (PW 13). The sketch of injury Ex. P-Q/1 shows that the said injury could not be caused to the deceased if he had been attacked while in standing position. It appears that either the deceased was sleeping at that time or the assailant was standing at higher level than that of deceased. Again prosecution has brought on record that 7-mm rifle P-6 was recovered at the instance of accused-appellant on 24.4.1992 which was secured vide memo Ex. P-E. Admittedly this rifle was never sent to the Chemical Examiner as no empties of 7-mm rifle were recovered from the place. Thus even evidence of recovery of 7-mm rifle from accused-appellant in no way connects him with the commission of this offence. Again as per statement of complainant-Said Ahmad (PW 4) he removed the injured Khurshid Ahmad to civil hospital after the occurrence where he got him admitted. This factum of removing the injured Khurshid Ahmad to hospital by Said Ahmadcomplainant is also not borne out from the record. The injured Khurshid Ahmad was examined by Dr. Masud Iqbal Bukhari PW-6 on 16.2.1992 vide MLR Ex. P-H. He has admitted that the injured was brought in hospital by Huzoor Muhammad father of the injured. Thus even the presence of the complainant at the relevant time is not free from doubt. It is also fact that complainant Said Ahmad and Muhammad Ishaq are related to Khurshid j Ahmad deceased, as such their independent corroboration was necessaiy which is lacking in the instant case. The evidence of recovery of rifle at the instance of accused-appellant in no way gives support to the prosecution version as there is nothing on the record to prove that the said weapon had been used in the commission of this offence. 13. In the light of facts stated above, it is clear that prosecution has failed to prove its case beyond reasonable doubt. Accordingly we accept the appeal and acquit the accused-appellant. The death sentence is not confirmed and Murder Reference is answered accordingly. With the acceptance of appeal, the Criminal Revision has become infructuous and is disposed of accordingly. (K.K.F.) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr. C. (Lahore) 187 (DB) Present: dr. munir ahmad mughal and asif saeed khan khosa, JJ. MUHAMMAD AFZAL DARZI-Petitioner versus STATE-Respondent Crl. Misc. No. 1178-B of 1998, dismissed on 29.9.1998. Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 497-Bail, grant of--Prayer for--0ffence under Article 3/4 of Prohibition Order Ordinance 1979 read with Ss. 9 & 51 of Control of Narcotic Substances Act, 1997-1500 grams heroin-Recovery of- Quantity of heroin recovered was 1500 grams which exceeds 1000 grams and case of petitioner falls under Section 9(c) of Control of Narcotic Substances Act, 1997, for which maximum punishment prescribed was death and minimum punishment life imprisonment—Both Code of Criminal Procedure, 1898 and Control of Narcotic Substances Act, 1997, were Federal Statutes and it could not be said that bar contained in Section 51 of Control of Narcotic Substances Act, 1997, was redundant-It is a special law and it shall override general law-So far as provisions of Section 103 Cr.P.C. are concerned, Section 25 of Control of Narcotic Substances Act, 1997, provides an exception-Constitutional guarantee contained in Article 9 of Constitution was subject to law, and Control of Narcotic Substances Act, 1997, was a validly enacted law by competent Legislature of Pakistan in accordance with Constitution—Case of petitioner within mischief of bar of Section 51 of Control of Narcotic Substances Act, 1997, as such application was dismissed. [Pp. 189 & 190] A & B Syed Murtaza All Zaidi, Advocate for Petitioner. Malik Mumtaz Hussain, Advocate for State. Date of hearing: 29.9.1998. judgment Dr. Munir Ahmad Mughal, J.--This is a Criminal Miscellaneous Application for bail after arrest invoking the jurisdiction of this Court under Section 497 Cr.P.C. The petitioner is involved in case FIR No. 382/97 dated 29.11.1997 under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, read with Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Seetal Mari Multan. Case against the petitioner is that 1500 grams of heroin was recovered from his possession. 2. Learned counsel for the petitioner has submitted that there is previous enmity of the petitioner with the police and more than one cases under different sections were registered against him and in all these cases he was granted bail by this Court and that the quantity recovered has not been got tested from the laboratory notified under Section 34 of the Control of Narcotic Substances Act, 1997, and that where the recovery is the basis of conviction the provisions of Section 103 Cr.P.C. were to be observed as mandatory provisions. When the learned counsel was confronted with the bar contained in Section 51 of the Control of Narcotic Substances Act, 1997, he submitted that it was a sub-constitutional enactment and it cannot come in the way of the powers of this Court available under the Constitution under Article 199 and the Code of Criminal Procedure under Section 497. 3. Learned counsel for the State has opposed the bail application on the ground that in Section 9(c) of the Control of Narcotic Substances Act, 1997, death sentence is provided as the quantity recovered is 1500 grams of heroin as the quantity exceeds the limit specified in clause (b) of Section 9, i.e. as it exceeds one kilogram. The Investigating Officer was called to explain as to why offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, was not mentioned in the challan and he has submitted that it has been mentioned. 4. We have given due consideration to the valuable arguments on both sides and have perused the record. Section 9 and Section 51 of the Control of Narcotic Substances Act, 1997, are relevant for the disposal of this application which are reproduced as under :— "9. Punishment for contravention of Sections 6, 7 and 8. Whoever contravenes the provisions of Sections 6, 7 or 8 shall be punishable with-- (a) imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is ten grams or less; (b) imprisonment w ich may extend to seven years but shall not be less than three years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds ten grams but does not exceed : (i) one hundred grams in the case of heroin cocaine, opium derivative or coca derivative, with whatever name or composition ; (ii) two hundred grams in the case of opium, coca leaf or psychotropic substance, with whatever name or composition; and £&$ .onp-kilQpxaiD ur ^epuivalent, in case of any other narcotic drug or controlled substance not specified in sub-clauses (i) and (ii); and (c) death or imprisonment for life, and shall also be liable to fine which not be less than one millions rupees, if the quantity; of narcotic drug psychotropic substance or controlled substance exceeds the limits specified in clause (b). H "51. No bail to be granted in respect of certain offences.-(l) Notwithstanding anything contained in Sections 496 and 497 of .the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death. (2) In case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount." A tentative assessment of the record shows that the quantity of heroin recovered was 1500 grams which exceeds 1000 grams and the case of the petitioner falls under Section 9(c) of he Control of Narcotic Substances Act, 1997, for which maximum punishment prescribed is death and the minimum punishment prescribed is life imprisonment. Both the Code of Criminal Procedure, 1898 and the Control of Narcotic Substances Act, 1997, are Federal Statutes and it cannot be said that the bar contained in Sec­ tion 51 of the Control of Narcotic Substances Act, 1997, is redundant. It is a special law and it shall override the general law. So far as provisions of Section 103 Cr.P.C. are concerned, Secticn 25 of the Control of Narcotic Substances Act, 1997, provides an exception which reads as under :-- "25. Mode of making searches and arrest.-The provisions of the Code of Criminal Procedure, 1898, except those of Section 103, shall, mulaLis mutandis, apply to all searches and arrests in so far us they are not inconsistent with the provisions of Sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections". The Constitutional guarantee contained in Article 9 of the onstitution reads as under :-- "9. Security of person, -No person shall be deprived of life or liberty save in accordance with law." This guarantee is subject to law, and the Control of Narcotic Substances Act, 1997, is a validly enacted law by the competent Legislature of Pakistan in accordance with the Constitution. We are of the considered opinion that the case of the petitioner comes within the mischief of the bar of Section 51 of the Control of Narcotic Substances Act 1997, as such this application is dismissed. (K.A.B.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 190 (DB) Present: IHSAN-UL-HAQ Cn. and raja muhammad khurshid, JJ. MOHTARMA BENAZIR BHUTTO-Petitioaer versus STATE-Respondent Crl. Misc. No. 81 of 1998 in ER No. 26 of 1998, dismissed on 30.10.1998. Criminal Procedure Code 1898 (V of 1898)-- —-Ss. 561-A, 233 and 239 read with Sections 3(l)(c), 12 and 15 of Ehtesab Act, 1997-Corrruption and corrupt practices--Ex-Prime Minister was in possession of properties disproportionate to her known sources-­ Allegation of—Framing of Charge—Properties mentioned in charge sheet were different entities acquired at different times-Misjoinder of charges- Charge framed withdrawn and proceedings may be dropped—Prayer for— Object of framing of charge was to enable an accused person to exactly know allegation, which one has to meet and for which one should be ready before recording of evidence-Legal pre-requisite in this regard would be to provide particulars of an offence with which accused person was to be charged with certainty and accuracy of facts as far was possible-Object of framing of charge stands satisfied if charge sheet states about substance and allegations which prosecution wants to prove against accused-A charge should not be prolix and rambling but at same time, it should not contain unnecessary details-Keeping above test in view, one has to read Sections 233 to 239 Cr.P.C. together and not in isolation to question of'joinder of charges-Those Sections were so framed as to minimize danger of prejudice to accused by joining together more than one offence in same trial-Substance given in Para No. 4 of charge was clear enough to put accused on alert as to what allegation was to be met at trial vis-a-vis offence of 'Corruption and Corrupt Practices' as defined in Section 3(l)(e) of Act of 1997-Since definition of 'offence' was given in Clause (j) of Section 2 of Act of 1997, therefore, there was no need to look for same in other statutes as contended by learned counsel or petitioner-It says that 'offence' means offenceof Corruption and Corrupt Practices-This definition was to be read with Clause (e) of sub­ section (1) of Section 3 of Act of 1997, which made it clear as to what charge, was to be faced by petitioner/accused at trial-Under Section 12 of Act of 1997, provisions of Code of Criminal Procedure shall apply mutatis mutandis to proceedings under Act of 1997 unless there was any thing inconsistent with its provisions~As such, provisions of Code of Criminal Procedure including Sections 233 to 239 Cr.P.C. were to be interpreted in conjunction with and in consonance of provisions contained in Act of 1997 and not in its contradiction. Since offence under Section 3(l)(ej of Act of 1997 was specifically related to owning aud possessing of properties disproportionate to known sources of income at relevant time, which could not be accounted for by accused, therefore, time of their acquisition would be prima facie immaterial and relevant time would be when proceedings under Act of 1997 were initiated-Petition dismissed. [Pp. 193 & 194] A, B & C Mian Abdus Sattar Nqjam, Advocate for Petitioner. M/s Ali Sibtain Fazli, Special Prosecutor with Rana Muhammad Arif, A.A.G., Mr. AG. Tariq Ch., Mian Abdul Khaliq and Mr. Azmat Saeed, Advocates for Respondents. Date of hearing: 20.10.1998. order Raja Muhammad Khurshid, J.--The accused has moved this application under Section 561-A read with Section 233 Cr.P.C. with the prayer that the charge framed against her be withdrawn and the proceedings dropped. 2. The facts leading to the petition are that the learned Chief Ehtesab Commissioner made a reference under Section 15 of the Ehtesab Act, 1997 (here-in-after to be referred as Act of 1997) against the petitioner. The prosecution alleged that the petitioner, an ex-P.M., was in possession of property disproportionate to her known sources, therefore, she was guilty of 'Corruption and Corrupt Practices' as defined in Section 3(l)(e) of the Act of 1997. The process was issued to the accused on 13.5.1998 for facing the trial. 3. The reference was fixed for framing of charge, which could not be framed on account of pendency of miscellaneous applications. The charge was, however, framed on 13.10.1998. 4. The learned counsel for the petitioner while referring to para No. 4 of the charge sheet contended that the charge was presumptuous; that all the properties mentioned therein were owned and in possession of the petitioner; that infact the head count of the properties mentioned therein came to almost 123 units which were allegedly acquired at different times; that out of the properties mentioned therein, the house at Islamabad and some of the agricultural land, were not owned by the petitioner; that the sugar mills mentioned in the charge were in the names of other persons as would be clear from the record itself; that the foreign assets were also not owned by the petitioner; that since all the properties were different entities acquired at different times, therefore, those constituted distinct offences and could not be clubbed together under a single charge in view of the provisions of Section 233 Cr.P.C.; that there being misjoinder of the charges, it was bound to prejudice the petitioner at the time of trial. It was alleged that the prosecution had come up with the false allegations that the petitioner was guilty of 'Corruption and Corrupt Practices' as defined in Section 3(l)(e) of the Act of 1997. Elaborating this point, it was contended that there was host of properties and each act of making such properties was a distinct offence and could not be tried under one charge as it would grossly infringe the provisions contained in Section 233 Cr.P.C. Reliance was placed on the judgment reported as Noor Zaman v. The State (1984 P.Cr.L.J. 2468 Karachi) to show that the order of conviction and sentence was set aside as 10 distinct offences under the West Pakistan Motor Vehicles Ordinance, 1965 were tried under a single charge. Likewise, a reference to Wazir Khan & another v. The State (1985 P.Cr.L.J. 1426 Lahore) was cited that the accused defrauding large number of persons at various places and at different times could not be charged and tried together. Similarly, in a case of misappropriation, joinder of different acts in one trial was held to be against law in the judgment reported as Hotchand v. The State (1985 P.Cr.L.J. 2318 Karachi ). Finally, reliance was placed on the judgments reported as Muhammad Ayub Qureshi v. The State (PLD 1987 Azad J & K 131) and Md. Mosaddar Hoque and Md. Abdul Roufv. The State (PLD 1958 SC (Pak) 131) to show that separate charge and separate trial for eveiy distinct offence was the primary rule recognized by Section 233 ibid and any exception to this rule was to be construed with strictness. In view of the above submission it was urged by the learned counsel for the petitioner that there was misjoinder of charges in the case under reference and, therefore, the charge ought to be withdrawn and proceedings dropped. 5. The learned Special Prosecutor resisted the application on the ground that the petitioner was charged under the Act of 1997, which was a special law to deal with the ill gotten property and pecuniary resources amassed by a holder of public office through 'Corruption and Corrupt Practices' which were disproportionate to her known sources of income and could not be reasonable accounted for. In the light of this proposition, it was contended that the petitioner had been charged for an offence mentioned in Section 3 (l)(e) of the Act of 1997 which was of course one offence relating to the properties mentioned in Paragraph No. 4 of the charge. It was, therefore, submitted that number of properties would only reflect the magnitude of 'Corruption and Corrupt Practices' and would not render them to be a distinct and separate offence qua any unit of such property. 6. Summing up the arguments, learned counsel for the petitioner contended that it was wrong to presume that all the properties could be considered as a single unit for the purpose of charge as each of those properties was a distinct and individual entity, acquired at different times and as such, could not be brought under one charge without causing serious prejudice to the accused at the trial. It was, however, contended that Sections 234 to 236 of the Cr.P.C. contained the exceptions to this rule but none of them was applicable to the instant case as according to Section 234 ibid, the trial of three offences of same kind committed within one year could be permitted under a single charge. Likewise, Section 235 mentioned about the offence completed during one transaction constituing series of acts arising out of the same occurrence. Section 236 was referred to show that it dealt with single act or series of acts of same nature where it was doubtful as to what offence has been committed. As such, it was urged that none of the exceptions to Section 233 Cr.P.C. were attracted in the case f the petitioner. A reference was also made to the definition of 'offence' gi en under Central General Clauses Act, Provincial General Clauses Act and Section 4(o) of Cr.P.C., which referred to an act of omission made punishable by any law. Reference was also made to the meanings of the word 'distinct' in the Black's Law Dictionary conveying the meaning of separate, individual, istinguish able. Rely ng on the above facts, it was urged by learned counsel for the petitioner that location of the properties, the question of title thereto and the Bank Accounts mentioned therein including the location of such properties abroad would clearly show that those were distinct offences calling for the framing of separate charges, to be tried separately. 7. We have considered the arguments addressed at the bar and have also gone through the record carefully. First of all, it was to be kept in mind that the Court had to take into consideration and tentatively evaluate the material produced before it by the prosecution while framing the charge. The object of framing of charge was to enable an accused person to exactly know the allegation, which one has to meet and for which one should be ready before recording of evidence. The legal pre-requisite in this regard would be to provide the particulars of an offence with which the accused person is to be charged with certainty and accuracy of facts as far was possible. The object of framing of charge stands satisfied if the charge sheet states about the substance and the allegations which the prosecution wants to prove against the accused. It was true that the charge should not be prolix and rambling but at the same time, it should not contain unnecessary details. Keeping the above test in view, one has to read Sections 233 to 239 Cr.P.C. together and not in isolation to the question of joinder of charges. Those Sections were so framed as to minimize the danger of prejudice to the accused by joining together more than one offence in the same trial. 8. In the instant case, the substance given in Para No. 4 of the charge was clear enough to put the accused on alert as to what allegation was to be met at the trial vis-a-vis offence of 'Corruption and Corrupt Practices' as defined in Section 3(l)(e) of the Act of 1997. Since the definition of 'offence' was given in Clause (j) of Section 2 of the Act of 1997, therefore, we have not to look for the same in other statutes as contended by learned counsel for the petitioner. It says that 'offence' means the offence of Corruption and Corrupt Practices. This definition was to be read with Clause (e) of sub-section (1) of Section 3 of the Act of 1997, which made it clear as to what charge, was to be faced by the petitioner/accused at the trial. 9. The above definition of 'offence' given in the Act supra, led to a prima facie impression that it dealt with a single offence of 'Corruption and Corrupt Practices' committed by holder of a public office and not different offences as argued on behalf of the petitioner. It was a single offence qua the accused vis-a-vis possessing, owning right or title in any movable or immovable property or pecuniary resources, disproportionate to her known sources of income. It could be illustrated by giving an example of an accused in a case for illegal possession of 100 weapons charge would be single because he could not be allowed to take up the plea that the offence be split up with reference to the time of acquisition of the individual weapons out of the lot. Similarly, a drug trafficker carrying 20 kg of Heroin could not turn around to agitate a plea for a separate charge with reference to the source and time of acquisition of the drug nor he could claim to be separately charged and tried for each kilogram of recovered Heroin. Even otherwise, under Section 12 of the Act of 1997, the provi ions of Code of Criminal Procedure shall apply mutatis mutandis to the proceedings under the Act of 1997 unless there was any thing inconsistent with its provisions. As such, the provisions of Code of Criminal Procedure including ections 233 to 239 Cr-.P.C. were to be interpreted in conjunction with and in consonance of the provisions contained in the Act of 1997 and not in its contradiction. Since the offence under Section 3(l)(e) of the Act of 1997 was specifically related to the owing and possessing of properties disproportionate to the known sources of income at the relevant time, which could not be accounted for by the accused, therefore, the time of their acquisition would be prima facie immaterial and the relevant time would be when proceedings under the Act of 1997 were initiated. 10. In view of the foregoing discussion, we come to an irresistible conclusion that the charge has rightly been framed upon the tentative evaluation of the material placed before us in the reference under discussion. Needless to say, whether or not the properties as alleged in the charge, infact belonged and owned by the petitioner, was a question of fact which could not be readily answered without recording evidence at trial. The judgments relied upon by learned counsel for the petitioner were clearly distinguishable vis-a-vis the offence under Clause (e) of sub-section (1) of Section 3 of the Act of 1997. The petition being meritJess is dismissed. (AAJS) Petition dismissed.

pLJ 1999 Cr pLJ 1999 Cr. C. ( Lahore ) 195 Present: ihsan-ul-haq chaudhary, J. KHALID MAHMOOD-Petitioner versus STATE-Respondent Crl. Misc. No. 167-Q of 1998, dismissed on 9.10.1998. Criminal Procedure Code 1898 (V of 1898)- —Ss. 561-A-156(1)8, 81, 82 of Customs Act, 1969 read with Section 5 f Prevention of Corruption Act, 1947~Smuggling of Pak Currency s. 50,00,000/~Registration of case by FIA-Submission port u/S. 73 Cr.P.C. which was forwarded for trial through Special Prosecutor ustoms—Officer of FIA was not competent to submit report u/S. 173 r.P.C. which could only be submitted by tified S.H.Cv-Contention ofuashment of FLR-Prayer for--Case was validly registered by Subnspector of FIA, Immigration Check Post Airport Lahore and if ssuming that its investigation s not strictly in accordance with law- uestion would arise whether in such circumstances when competent ourt vested with jurisdiction has taken cognizance, case could be ashed for alleged fects in investigation-Held: Such irregularities ould be covered under Section 537 of Cr.P.C.~Section 185-A of Customs ct, 1969 was para materia to Section 190 of Cr.P.C.—It was clear om lause (b) of sub-section (1) that Court could even proceed on an nformation received, therefore, once cognizance was taken alleged rregularities in investigation/inquiry and submission port under ection 173 Cr.P.C. were legally of no consequence-Whole scheme of odified Law including Cr.P.C. and Customs Act was that accused should ot escape liability of his criminal act rely on account of defect in nvestigation-This was rational behind making provision of Section 190 Cr.P.C. and 185-A of Customs Act~This has to be given effect therwise it would be ving icence to unscrupulous criminals to escape unishment-Petition dismissed. [Pp. 198 & 199] A & B Malik Waqar Saleem, Advocate for Petitioner. Rana Muhammad Arif, Addl.A.G. for State. Date of hearing: 7.9.1998. judgment This is an application under Section 561-A of the Cr.P.C. for quasliment of the case FIR No. 3/95 dated 13.4.1995 registered under (W.P.) 633). It was argued that the irregularity was not curable under Section 537 of Cr.P.C. In this behalf, reliance was placed on Mrs. Surayya Farman vs. The State (1998 P Cr. LJ 958). It was added that the powers under Section 6 of the Customs Act have not been given to the FIA. It was argued that S.I. is legally not incharge of Police Station. In this behalf, the learned counsel relied on Momin Talukdar vs. Emperor (AIR 1928 Calcutta 771). It was added that the FIA could exercise power of seizure and arrest in emergency but in the present case the complainant himself mentioned in the FIR that he had prior information, therefore, there was sufficient time at his disposal to inform, the Custom Authorities and the whole proceedings were illegal. In this behalf, reliance was placed on B.D. Cayford v. Masood Ahmad Skahid (2) State of Pakistan (PLD 1964 Karachi 69). It was argued that the matter was not referred to the Custom Authorities under Section 195 of the Customs Act and there was no possibility of the conviction of the petitioner, therefore, this petition may be accepted and the case quashed. 5. On the other hand, Mr. A. Karim Malik, Advocate argued that in e year 1962 Section 185-A was added but the same was omitted in the year 1963. This provision was par materia to Section 193 (c) of the Sea Customs Act, Ultimately the Customs Act was amended by Prevention of Smuggling Act, 1977 (XII of 1977). The same ispara materia to Section 190 of Cr.P.C. It was argued that FIA seized the currency being illegally taken abroad by the accused, arrested him, investigated the case and submitted the challan. It was added that side by side the matter was referred to the Custom Authorities for adjudication under the provisions of Customs Act. The same is subject matter of W.P. No. 16468/95. It was argued that FIA had jurisdiction and authority to deal with the matters in view of the notification. In this behalf, it was added that there was no merit in the argument that FIA was not covered by the police. It was argued that the cases relied by the learned counsel for the petitioner were not relevant because the same either dealt with the old provisions of Customs Act or about the immigration. The learned counsel argued that there was no merit in the arguments advanced on behalf of the petitioner in view of the judgments reported as Muhammad Hassan alias Cheema vs. The State (1992 P.Cr.LJ 1294), Raza A. Khan, Deputy Attorney-General, Peshawar vs. Reghzi Gul (1987 P.Cr.L.J. 1789) and Muhammad Nawaz Versus The State (1981 SCMR 479). It was argued that the accused admitted that he was taking the currency abroad. It was added that anxiety oi the accused is on\y to side track proceedings in order to avoid consequences of his crime. 6. have given my anxious consideration to the arguments, gone through the record and precedent cases. CBR issued notification under Section 6 of the Customs Act, 1969 whereby powers of Customs Officers under Customs Act were entrusted to officers of the police. This is to be read with Section 3(1) of FIA Act and Item 5 of the Schedule appended thereto. It is clear therefrom that the FIA is competent to register cases under Section 156 of the Customs Act. Besides this the FLA is Federal Police, therefore, notification under Section 6 by the CBR in respect of police covers the FLA. 1. The matter can be looked from another angle, namely that it is admitted that the case was validly registered by S.I. of FLA, Immigration Check Post Airport Lahore and assuming that its investigation was not strictly in accordance with law. The question would arise whether in such circumstances when the competent Court vested with jurisdiction has taken cognizance, the case could be quashed for alleged defects in the investigation? In my considered opinion such irregularities are covered under Section 537 of Cr.P.C. Section 185-A of the Customs Act, 1969 is para materiato Section 190 of Cr.P.C. It is clear from clause (b) of sub-section (1) that the Court can even proceed on an information received, therefore, once cognizance is taken the a alleged irregularities in the investigation/inquiry and submission of the report under Section 173 Cr.P.C. are legally of no consequence. The trial is to be concluded on merits. 8. The learned counsel for the respondent argued that the words in clause (a) of sub-Section (1) of Section 185-A 'by an officer incharge of police' are wide enough to cover the ubmission of report under Section 173 by the Incharge P.S. FLA. 9. I have not concluded this judgment when legal question of effect of irregularity, defect in investigation came for consideration in another matter. Rana Muhammad Arif Khan, learned Addl. Advocate General appeared for the State and he rendered valuable assistance. He referred the long chain of decided cases starting from H. N. Rishbud and another vs. State of Delhi (AIR 1955 SC 196). It was Anti-corruption case wherein it was held with reference to Sections 190, 193, 195 to 199 & 537 of Cr.P.C. that defect or illegality in investigation has no direct bearing on the competence or procedure relating to cognizance or trial. The appeal filed by the accused was dismissed. He in this behalf referred to Abdul Noor alias Nur Meah vs. The State (PLD 1958 Dacca 145), Walizar and another vs. The State (PLD 960 (W.P.) Karachi 204), Manzoor Elahi vs. The State (PLD 1960 (W.P.) Karachi 607) and Ghulam Haider and 7 others vs. S.H.O. City Police Station Quetta and 9 others (PLD 1989 SC 479) and then to the judgment in the case of The Crown vs. Mehar Mi (PLD 1956 FC 106), wherein investigation under Section 161 PPG committed by a Central Government employee was held by the Inspector of Sind Anti-corruption Police. It was held that even if the investigation is held irregular still it will not be sufficient to deprive the Special Magistrate of jurisdiction or otherwise affect the validity of the proceedings in the trial. There is no purpose to refer further precedents in view of the latest judgment of my learned brother Ch. Ijaz Ahmad, J. in the case of Muhammad Ramzan vs. Muhammad Iqbal, Sub-Inspector Police, District Kehari Mitroo and another (1998 P.Cr.LJ 828) where my learned brother after exhaustively examining the law on the point held 'that illegality committed in the course of investigation does not affect the competence and the jurisdiction of trial Court'. I may also refer judgment reported as M. Abdul Latifv. G.M. Paracha & others (1981 SCMR1101). 10. It is clear from the above precedents that irregularity or defect in investigation is of no legal consequence after the Court of competent jurisdiction has taken cognizance of the matter. This is for the following reasons that :-- (a) the Court is competent to take cognizance of an offence whether under Penal Code or Customs Act even on information. Now assuming that the report under Section 173 Cr.P.C. has been forwarded by a person not competent but that can serve as information, therefore, the Court was competent to take cognizance both under Section 190 of Cr.P.C. as well as provisions of Customs Act. The only requirement is that the Court must have jurisdiction to try the offence; (b) these precedural irregularities in the investigation are curable under Section 537 of Cr.P.C.; and (c) the procedure is merely directory in nature and not mandatory. 11. The whole scheme of Codified Law including Cr.P.C. and Customs Act is that the accused should not escape liability of his criminal act merely on account of defect in investigation. This is the rational behind making provision of Section 190 of Cr.P.C. and 185-A of the Customs Act. This has to be given effect otherwise it would be giving a licence to the unscrupulous criminals to escape the punishment. It is also necessary to keep the investigating agencies under control otherwise it is not difficult to conceive, with the moral fibre on lowest ebb, Investigating Officer intentionally committing irregularities here and there just to save the accused. 12. Lastly, resort to quashment is exception that too at preliminary stage in view of Kh. Nazir's case (AIR 1945 PC 18), Shehnaz Begum's case (PLD 1971 SC 671), 1997 P.Cr.LJ. 124, PLD 1993 SC 399 and PLD 1994 SC 281 as noted by my learned brother 13. The upshot of this discussion is that there is no merit in this petition. The same is dismissed. (AAJS) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 200 Present: ASIF SAEED KHAN KHOSA, J. KALU etc.—Petitioners versus STATE-Respondent Crl. Misc. Nos. 1363/B/1998 52/CB/1998 and 72/CB/1998, accepted on 21.9.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 498--Offence u/S. 302/324/452/148/149/Pakistan Penal Code, 1860-- ost arrest bail-Grant of-Prayer for-Findings of Investigating Officer re adverse to prosecution case-Contention ~(Petitioner No. 1 in Crl. isc. No. 1363/B/1998) was attributed injury on head of deceased during ncident in question but according to finding of Additional uperintendent of Police s not present at spot at time of inception f incident and that he had not caused any injury to anybody during ccurrence in question—This finding of Additional Superintendent of olice also nfirmed original finding of Station House Officer in thatregard which was recorded on 29.9.1997-As regards (Petitioner No. 2 in rl. Misc. No. 1363/B/1998) said Investigating Officers had ncurred hat Petitioner No. 2 had himself suffered two head injuries during said ncident but his injuries had been suppressed by complainant party in IR-He was got medically examined by lice after registration of case-­ s against head injuries sustained by him he had allegedly caused a imple injury on a non-viiai>part of deceased-Findings of Investigating fficers in this case re verse to prosecution case and benefit arising rom such findings could not be refused to accused persons at this stage-­ hus, finding their case to be also one of further inquiry, petitioners in rl. Misc. No. 1363/B/1998 are also admitted to bail in sum of s. 1,00,000/- (Rupees One lac) each with one surety each in like amount b satisfaction of trial court. [Pp. 201 & 203] A & B Malik Muhammad Saleem, Advocate for Petitioners. Mr. Irshad Hussain Jafferi, Advocate for Complainant. Sh. Gul Muhammad, Advocate for State. Date of hearing: 21-9-1998. order Through this consolidated order I propose to dispose of Criminal Miscellaneous No. 1363/B/1998, Crl. Misc. No. 52/CB of 1998 and Crl. Misc. No. 72/CB of 1998. 2. At about Maghribwela on 4.9.1997 Muhammad Sharif was allegedly done to death and Muhammad Iqbal PW was caused injuries by aloo, Ibrahim, Din Muhammad, Ghulam Yasin and Abdul Sattar accused in the area of Mouza Khakhi, Police Station Drahma, District Dera Ghazi Khan. FIR No. 108/97 was registered at the instance of Allah Ditta complainant at Police Station Drahma, District D.G. Khan at 6.30 P.M. on 4.9.1997 tor orfences under Sections 302/324/452/148/149, PPC in that regard. Upon the dismissal of their application for pre-arrest bail Kaloo, Din Muhammad and Abdul Sattar accused were arrested by the local police on 19.1.1998. Subsequently Ibrahim and Ghulam Yasin accused were arrested in that connection on 24.9.1997. Kaloo and Ibrahim applied for their postarrest bail before the learned court of Session, Dera Ghazi Khan but their separate bail applications were dismissed by the learned Additional Sessions Judge, Dera Ghazi Khan vide orders dated 25.4.08 and 19.6.98 respectively. They have now sought post-arrest bail from this Court through Criminal Misc. No. 1363/B/1998. 3. Din Muhammad accused's application for bail after arrest was allowed by the learned Additional Sessions Judge, Dera Ghazi Khan on 17.3.1998 and Abdul Sattar accused was admitted to post-arrest bail by the same learned court on 27.2.1998. Allah Ditta Complainant has sought cancellation of their bail from this Court through Crl. Misc. No. 52/CB/1998. Ghulam Yasin accused was admitted to post-arrest bail by the learned Additional Sessions Judge, Dera Ghazi Khan vide order dated 10.4.1998 Allah Ditta complainant has also sought cancellation of that bail through Crl. Misc. No. 72/CB/1998. 4. After hearing detailed submissions of the learned counsel for the parties and going through the record. I have noticed that Kaloo (Petitioner No. 1 in Crl Misc. No. 1363/B/1998) was attributed injury on the head of the deceased during the incident in question but according to the finding of the Additional Superintendent of Police he was not present at the spot at the time of inception of the incident and that he had not caused any injury to anybody during the occurrence in question. This finding of the Additional Superintendent of Police also confirmed the original finding of the Station ouse Officer in that regard which was recorded on 29.9.1997. As regards Ibrahim (Petitioner No. 2 in Crl. Misc. No. 1363/B/1998) the said Investigating Officers had concurred that he had himself suffered two head injuries during the said incident but his injuries had been suppressed by the complainant party in the FIR. He was got medically examined by the police after the registration of the case. As against the head injuries sustained by him he had allegedly caused a simple injury on a non-vital part of the deceased. It is not disputed before me that some of the Investigating Officers in this case had concluded that the occurrence in question was a result of a sudden fight which had erupted over a dispute between the children of the parties. It was further opined during the investigation that there was no premeditation on the part of Ibrahim accused and that he had not launched the initial aggression in this case and also that he had caused the solitary simple injury to the deceased only by way of retaliation of the injuries already suffered by him at the hands of the complainant party. 5. As regards Din Muhammad accused (Respondent No. 1 in Crl. Misc. No. 52/CB/1998) it has been noticed that it was found during the investigation that he was initially not present during the inception of the fight in question and that he was attracted to the spot subsequently. He was attributed a bruise on .the right shoulder of the deceased in a fight in which six serious injuries were sustained by the accused party which had been suppressed by the complainant party in the FIR. The learned trial court had found the case of Din Muhammad to be one of further inquiry for the purposes of his bail after arrest. As regards Abdul Sattar accused (Respondent No. 2 in Crl. Misc. No. 52/CB/199S) he was admittedly emptyhanded during the occun nee and it was found during the investigation of this case that the allegation of elapsing of the deceased levelled against him in the FIR was not correct and that he had come to the place of occurrence after the fight had already started. The learned trial court had also found his case to be of further inquiry and, resultantly, he was also admitted to bail after arrest. 6. As far as Crl. Misc. No. 72/CB/1998 is concerned Ghulam Yasin accused (Respondent No. 1 therein) was admittedly not attributed any injury to the deceased. The only allegation against him was that he had caused two simple injuries to Iqbal PW. It was found by the learned trial court that his case also attracted to provisions of sub-section (2) of Section 497, Cr.P.C. as the case against him called for further inquiry into his guilt. It was opined by the learned trial court while admitting him to bail after arrest that the question of his vicarious liability shall be gone into at the time of his trial. It is also noticed in this context that Ghulam Yasin accused was himself not present at the inception of the fight. He had received 4 injuries on his head but the said injuries had been completely suppressed in the FIR. It is also not disputed before me that during the investigation it had transpired that the occurrence in question had started when Ghulam Yasin accused was caused the said injuries. Thus, the question as to which party had launched the initial aggression is a question which shall be adverted to and decided by the learned trial court during the trial. 7. While deciding these matters I am not unmindful of the settled legal position that considerations for bail and those for cancellation of bail are entirely different. I have noticed that the orders of bail passed by the learned trial court in his case do not suffer from any jurisdictional defect or illegality of approach and the considerations weighing with the learned trial court for granting bail to the above-mentioned accused persons are based upon sound principles. The reasons advanced in those respects have not appeared to be either perverse or fanciful. 8. In this view of the matter Crl. Misc. No. 52/CB/98 and Crl. Misc. No. 72/CB/98 are hereby dismissed. 9. As far as Criminal Misc. No. 1363/B/1998 is concerned it has already been observed above that the findings of the Investigating Officers in this case were adverse to the prosecution case and the benefit arising from such/ findings cannot be refused to the accused persons at this stage. Thus, finding their case to be also one of further inquiry, the petitioners in Crl. Misc. No. 1363/B/1998 are also admitted to bail in the sum of Rs. 1,00,000/- (Rupees One lac) each with one surety each in the like amount to the satisfaction of the learned trial Court. 10. It is needless to observe that whatever has been observed in this order is purely tentative in nature and the same shall not prejudice the learned trial court in the trial. (K.A.B.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 203 (DB) Present: asif saeed khan khosa and mian muhammad najam-uz-zaman, JJ. MUHAMMAD QASIM and another-Appellants versus STATE-Respondent Criminal Appeal No. 300 of 1993, accepted on 17.9.1998. (i) Motive-- —Murder Case-Conviction-Challenge to~Motive~Not proved-Effect of~ As per F.I.R. deceased was suspected of carrying on illicit relations with one Mst. S which had prompted appellants to commit murder-It means appellants were not very closely related to said Mst. S and due to lack of close relationship with lady appellants were not expected to take such an offence to that alleged illicit relationship so as to be propelled to commit an offence of murder--M complainant (PW7) was only witness who had stated about alleged motive--His deposition in that regard was nothing but vague and sketchy-Even otherwise, complainant had himself disowned that motive before Investigating Officer after 22 days of occurrence-At trial he had gone on to set up some other motives, like a dispute with Muhammad Qasim appellant over a dog and also a dispute with said appellant over price of cotton-Even those motives remained absolutely un-established~It is proverbial that motive is a double edged weapon~In present case we have found to be cutting other way. [P. 211] A (ii) Medical Evidence- -—Murder Case-Medical evidence-Not corroborated with other reliable evidence—Value of-Medical evidence in case was not of much help to prosecution as same could not identify or locate perpetrators of offence in a case where presence of eye-witness itself was found to be doubtful-­ Even otherwise, medical evidence was only of supportive character and same loses all its value in a case like present one where there was no other reliable evidence available to give support to. [P. 211] B Sahibzada Farooq All Khan, Advocate for Appellant. Muhammad Bashir Khan, Advocate for Complainant. Ghulam Murtaza Malik, Advocate for State. Date of hearing: 17-9-1998. judgment Asif Saeed Khan Khosa, J.--Muhammad Qasim, Mulazim Hussain alias Manna and Muhammad Kala appellants were convicted by the learned Additional Sessions Judge, Multan vide judgment dated 28.10.1993 for an offence under Section 302(b)/34, P.P.C. Muhammad Qasim and Mulazim Hussain alias Manna were sentenced to Death each as T'azir and a fine of Rs. 20,000/- each or in default whereof 5 years' imprisonment each. Muhammad Kala was sentenced to imprisonment for life and fine of Rs. 10,000/- or in default whereof 3 years' imprisonment. It was also ordered that out of the recovered fine a sum of Rs. 30,000/- was to be paid to the heirs of Allah Ditta deceased as compensation under Section 544-A, Cr.P.C. All the convicts were also extended the benefit under Section 382-B, Cr.P.C.! Through the same judgment the convicts' co-accused Muhammad Wazir was acquitted by the learned trial court. Muhammad Qasim and Mulazim Hussain alias Manna convicts have challenged their convictions and sentences before this Court through Criminal" Appeal °No. 300 bf 1993. Muhammad Kala convict has challenged his conviction and sentence before this Court through Criminal Appeal No. 299 of 1993. Muhammad Shafi complaint has filed Criminal Revision No. 8 of 1994 before this Court challenging the acquittal of Muhammad Wazir accused recorded by the learned trial Court. Through an order passed by this Court on 12.2.1994 that revision petition was ordered to be heard alongwith the convicts' appeals. We have heard the convicts' appeals and the complainant's revision petition alongwith Murder Reference No. 133 of 1996 seeking confirmation of the sentences of Death passed against Muhammad Qasim and Mulazim Hussain alias Manna. We propose to decide all these matters together through the present consolidated judgment. 2. The prosecution story narrated in the F.I.R. was that Muhammad Shafi complainant was a resident of Jhok W&ins Pawli and was a hus-driver by profession. His brother Allah Ditta (deceased), an agriculturist, used to reside with him. During the night of 3.3.1991 Allah Ditta was watering his wheat crop and the complainant and Allah Ditta son of Ramzan were also with him at that time. At about 10.00 P.M. Muhammad Wazir accused came to them and invited Allah Ditta deceased to go with him to a Tamasha being held at the wedding of one Allah Wadhaya. Allah Ditta deceased asked him to proceed to the Tamasha and said that he would go there after watering his field. After some time the complainant returned to his house with his brother Allah Ditta deceased and Allah Ditta son of Ramzan. Subsequently Allah Ditta deceased left his house all alone at about 11.00 P.M. for going to the Tamasha. After about 10/15 minutes of his departure noise was heard from the side of the tube-well of one Allah Yar Wains of Chah Chobi Wala whereupon the complainant, Allah Ditta son of Ramzan and Nazar Muhammad, who was also present in the house, rushed towards the place of noise. When they reached near the tube-well of the said Allah Yar they heard the shrieks of Allah Ditta deceased. Upon reaching near a Pipal tree they saw in the moon-light that four persons had felled Allah Ditta deceased with his face downwards. Muhammad Wazir accused was holding the deceased's head, Muhammad Kala appellant was holding his feet and Muhammad Qasim and Mulazim Hussain alias Manna appellants were giving repeated lathi blows to the deceased on his buttocks and legs. When the complainant and his companions tried to go near the deceased they were threatened by the accused party not to come near or else they would be done to death. The deceased then became unconscious due the blows received by him whereupon all the four accused persons dragged him to their cattleshed. The hue and cry raised by the complainant party also attracted Allah Bakhsh and Ghulam Muhammad PWs to the spot. Upon a reprimand by Allah Bakhsh PW all the four accused persons left the place of occurrence with their lathis leaving the deceased unconscious at the spot. When the complainant party went near the deceased the latter was breathing slowly and had his left wrist broken and also had a bleeding injury on his right hand. The complainant party then brought the deceased to the complainant's house on a cot but the deceased breathed his last at about 1.00 A.M. when some transport was being arranged for taking him for medical treatment. The motive set up in the F.I.R. was that the accused party had suspected that Allah Ditta deceased was carrying on illicit relations with one Mst. Shamim Mai daughter of Haq Nawaz Sial and for that reason he had been done to death in a planned manner. The complainant then went to Police Station Alpa, District Multan and lodged F.I.R. No. 62 (Ex-PK) which was recorded by Muhammad Mumtaz, SI/SHO (PW11) at 4.00 A.M. on 4.3.1991 for an offence under Section 302/34, P.P.C. 3. After recording the statement of the complainant Muhammad taz, SI/SHO (PWll) took up the investigation of this case, went to the f place of occurrence, examined the deadbody of Allah Ditta deceased, prepared inquest report (Exh-PB) and injury statement (Exh-PC) and sent the deadbody to the mortuary for autopsy. He also collected blood-stained earth from the place of occurrence and secured the same vide memo Exh-PE. 4. Post-Mortem Examination (Exh-PA) of the deadbody of Allah Ditta was conducted by Dr. Abdul Aziz Shah Bukhari (PW1) on 4.3.1991. He found 9 'njuries on the deadbody which were all ante-mortem and caused by a blunt weapon. In the opinion of the doctor death had resulted due to shock caused collectively by all the injures which were sufficient to cause death in the ordinary course of nature. The approximate time elapsing between the injuries and death was stated by the doctor to be within two hours and that between the death and post-mortem examination was opined by the doctor to be between 12 to 24 hours. 5. After the Post-Mortem Examination of Allah Ditta deceased Muhammad Mumtaz, SI/SHO (PWll), the Investigating Officer, secured ] the last-worn clothes of the deceased vide memo. Exh-PF. He also got a formal Site-plan (Exh-PD) of the place of occurrence prepared from a Patwari. He arrested all the four accused persons on 25.3.1991 and them on 29.3.1991 he recovered sotas, etc. from Muhammad Qasim and Mulazim Hussain alias Manna appellants. Thereafter he fulfilled the other formalities, completed h'is investigation and submitted a Challan in respect of this case. 6. At the commencement of the trial the learned trial court framed a harge with one head under Section 302/34, P.P.C. against all the four accused persons to which they pleaded not guilty and claimed a trial. 7. During the trial the prosecution produced as many as 11 witnesses in support of its case against the accused persons. Muhammad Shafi complainant (PW7) and Nazar Muhammad (PW8) furnished the ocular account of the incident. The motive set up by the prosecution was also stated by Muhammad Shafi complainant (PW7). Allah Yar (PW4) deposed about the recoveries affected from the accused persons. Dr. Abdul Aziz Shah Bukhari (PW1) provided the medical evidence. Muhammad Mumtaz, SI/SHO (PWll) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. 8. In their statements recorded under Section 342, Cr.P.C. all the accused persons denied and controverted all the allegations of fact leveled against them by the prosecution and professed their innocence. They aintained that they had been falsely implicated in that un-witnessed murder. Whil^ answering a question as to why he had been involved in this case and as to why the witnesses had deposed against him Muhammad Qasim appellant had stated that: "I reside at a distance of 2 Km from the place of occurrence. My father is a cancer patient and in those days he was admitted in Nishtar Hospital. I was looking after my father whil4 my younger brother being 8 years of age that I was the only looking after my father. My father was operated upon due to leg cancer. The PWS are closely related with the deceased and they are not resident of the locality. Nazar is not known to me. It was a blind murder and in the morning people came to know that Allah Ditta has been killed by some one. The relatives of the deceased have been making inquiry from the resident of the surrounding abadi of the place of occurrence. Mst. Shamim is married with Nawaz due to suspicion that Shamim is having illicit relation with the deceased. I have been falsely involved." While answering a similar' question Mulazim Hussain alias Manna appellant • had stated that: "I am distantly related to Mst. Shamim, who is wife of Nawaz. I reside at a distance of about quarter of mile from the place of occurrence. It was a blind murder and in the morning, the relatives of the deceased have been making enquiry about unknown accused person. Allah Ditta PW is the first person who visited the place of occurrence in the morning and then he informed the police and the relatives of the deceased, about the above said blind murder. I had a slight quarrel with Muhammad Shaft PW long ago. I have been falsely involved in this case, due to suspicion being distant relation of Shamim." To the same question Muhammad Kala appellant replied as under: "The PWS are related inter se with the deceased. They are not resident of the locality. Nazar PW is not known to me. I reside one mile away from the spot. I was 13 years old at the time of alleged occurrence and was studying in 10th class. I am the only son of my parents. They never allow me to remain out side the house after Isha prayer. I have been falsely involved." All the accused persons opted not to make any statement on oath under Section 340(2), Cr.P.C. However, they produced three witnesses in their defence. Muhammad Pervaiz (DW1) proved the date of birth of Muhammad Kala appellant, Syed Qasim Jaafri (DW2) proved a newspaper report according to which the occurrence in question was an un-witnessed one and Allah Bakhsh (DW3) stated that he did not know anything about the occurrence although he had been mentioned as an eye-witness in the F.I.R. 9. At the conclusion of the trial, as mentioned above, the learned ditional Sessions Judge, Multan convicted and sentenced Muhammad Qasim, Mulazim Hussain alias Manna and Muhammad Kala appellants as noticed above while their co-accused Muhammad Wazir was acquitted. Hence, the present appeals, revision and the connected Murder Reference before this Court. 10. We have heard the learned counsel for the appellants as well as the learned counsel representing the State and the complainant and have also gone through the record of this case with their assistance. 11. It has bee argued by the learned counsel for the appellants that the prosecution had failed to prove its case beyond reasonable doubt. He has maintained that the statements made by the so-called eye-witnesses did not inspire confidence; Muhammad Shafi complainant (PW7) and Nazar Muhammad (PW8) had failed to bring anything on the record to ( substantiate their claim of being present in the village in question at the fateful time; the motive set up by the prosecution had not been satisfactorily proved; the recoveries allegedly affected from the appellants were sham; and he medical evidence did not provide any support to the ocular account. As against that the learned counsel representing the State and the complainant have argued that the prosecution had successfully proved the guilt of the appellants to the hilt as the witnesses produced by the prosecution had made consistent statements which had found ample corroboration and support from the other evidence produced by the prosecution. The learned counsel for the complainant has, however, stated that the complainant does not wish to press his revision petition filed against the acquittal of Muhammad Wazir accused. 12. After hearing the learned counsel for the parties and going through the record we have no hesitation in observing that the eye-witnesses produced by the prosecution have failed to inspire our confidence. The occurrence in question had admittedly taken place at the dead of night (around 11.00 P.M. in the month of March to be precise) when the deceased had admittedly gone all alone to watch a Tamasha! According to the prosecution's own case Muhammad Shafi complainant (PW7) or Nazar Muhammad (PW8) had not accompanied the deceased at that late hour. It is again the prosecution's own case that the deceased had a rendezvous with bis death at a place which was at least 10 acres away from his (and complainant's) house. Both the eye-witnesses produced by the prosecution had maintained that at the time of commencement of the proceedings at the place of occurrence they were still at the house of the complainant and that they were initially attracted only upon hearing a noise and that only after reaching near the place of occurrence they recognized that noise to be the shrieks of the deceased. It was also admitted by them that nobody else from that village was attracted to the spot upon the noise raised or shrieks made by the deceased. Attraction of only these witnesses to the spot upon what was just a noise for them till then and disregard of that noise by all the other residents of the village in question is something which has raised the initial doubts in our minds over the said witnesses' claim in this regard. 13. It has also been noticed by us that both the said eye-witnesses d maintained that it had taken them about 15 minutes to reach the place of occurrence from the complainant's house. It can well be imagined that the noise must have been raised and shrieks made by the deceased upon the commencement of the assault upon him by the culprits. Thus, in the next 15 minutes all the nine lathi blows must have been received by the deceased much before the arrival of the witnesses. Even if the assertion of the learned counsel for the complainant is accepted that, keeping in view the dimensions of the injuries sustained by the deceased, the injuries found on the deadbody were in fact a result of more than nine lathi blows still all such blows could have been received by the deceased much before the witnesses' arrival at the spot. Thus, the claim of the eye-witnesses to have seen the actual causing of injuries to the deceased by the culprits appears to be a claim which can be accepted only with a lump of salt. In this context we are also not unmindful of the usual human conduct that an offender choosing night-time for commission of an offence necessarily wants to keep his identity concealed. Thus, the culprits choosing the cover of night for giving a beating to the deceased would surely have decamped upon seeing the witnesses approaching the spot. Therefore, the claim of these witnesses that the culprits neither fled away upon arrival of the witnesses at the spot nor discontinued their thrashing of the deceased again appears to be not only a tall claim but tall enough to raise serious doubts about its genuineness. 14. Our doubts about the claim of the eye-witnesses to have witnessed the occurrence in question have been compounded by certain other very serious exceptions which can be taken to their claim in that regard. Muhammad Shafi complainant (PW7) had admitted that he was a bus-driver and that he used to perform his duty at night. Nazar Muhammad (PW8) had stated that Muhammad Shafi (PW7) used to come back home after one week's continuous duty. Muhammad Shafi (PW7) had claimed that he had returned home on leave from his duty on the evening before the day of occurrence but Nazar Muhammad (PW8) had claimed that Muhammad Shafi (PW7) had returned home 2/3 days earlier. Thus, in order to satisfy the judicial conscience of the court, it was incumbent upon Muhammad Shafi (PW7) to produce some evidence to establish that he was not on duty and was in fact on leave on the night of occurrence. He had completely failed to bring anything on the record to substantiate that fact. So much so that admittedly even the Investigating Officer (PW11) never bothered to inquire into the issue of his duty or leave! We have, thus, found it difficult to believe this witness's presence in the village in question on the night of occurrence when admittedly he used to perform night-duty but had failed to support his claim of being on leave that night through any evidence whatsoever. 15. As regards Nazar Muhammad (PW8) we have noticed that he was admittedly a resident of a different village (Jahania Mandi) than the village of occurrence. It was admitted by the prosecution itself that he had never resided in the village where the occurrence had taken place and that his visits to that village took place after considerably long gaps. He was surely a chance witness who had statedly come to that village only to inquire about the health of the ailing mother of .Muhammad Shafi complainant (PW7) who also happened to be PW 8's mother-in-law. Again the prosecution has completely failed to bring anything on the record of this case to prove the factum of ailment of the complainant's mother so as to establish the raison d'etre for PWs 8's visit to that village. A chance witness was fails to substantiate the stated reason for his presence at a place where he was ordinarily not expected to be present can hardly be relied upon on a capital charge. 16. It may not be out of place to mention here that Muhammad Afzal, Patwari (PW2), who had prepared the site-plan (Ex-PD) of the place of occurrence, had categorically stated that the site-plan prepared by him clearly recorded that the same had been prepared at the pointing out of the police (and not of the eye-witnesses)! A bare look at the said site-plan vouchsafes the correctness of that statement made by PW2. This factor also points towards a real possibility that the alleged eye-witnesses did not know much about the place of occurrence and that, in all probability, they were procured and planted by the police after the occurrence. It need not be ignored here that Muhammad Shafi complainant (PW7) was a brother of the deceased and Nazar Muhammad (PWS) was his brother-in-law. They were surely quite likely to have volunteered in that regard. We have also noticed it very significantly that the only independent eye-witness mentioned in the F.I.R., i.e. Allah Bakhsh son of Muhammad Nawaz was given up by the prosecution as un-necessary. He then appeared as DW3 and stated that as a matter of fact he had not witnessed the incident in question. This stand taken by DW3 confirms our doubts that the witnesses cited in the F.I.R. had actually not witnessed the occurrence. 17. We have also noticed that the eye-witnesses produced by the prosecution had claimed that the deceased had left for witnessing a Tamasha at a particular place. Muhammad Afzal, Patwari (PW2) had, however, categorically stated that the place where the deceased had been done to death was in the opposite direction to the place where the said Tamasha was supposed to be held. This shows that the said eye-witnesses were not with he deceased before his leaving his house just before the occurrence. If they were not with the deceased in his house before the left the house then their claim to have heard the noise and his shrieks and to have gone to-the place of occurrence from that house also crumbles to the ground. 18. The motive set up by the prosecution in this case has also engaged our serious attention. It was claimed in the F.I.R. that the deceased was suspended of carrying on illicit relations with one Mst. Shamim Mai which had prompted the appellants to commit his murder. In this context we have noticed that the appellants were not very closely related to the said Mst. Shamim Mai and due to the lack of close relationship with the lady the appellants were not expected to take such an offence to that alleged illicit relationship so as to be propelled to commit an offence of murder. Muhammad Shafi complainant (PW7) was the only witness who had stated about the alleged motive. His deposition in that regard is nothing but vague and sketchy. Even otherwise, the complainant had himself disowned that motive before the Investigating Officer after 22 days of the occurrence. At the trial he had gone on to set up some other motives, like a dispute with uhammad Qasim appellant over a dog and also a dispute with the said appellant over price of cotton. Even those motives remained absolutely unestablished. It is proverbial that motive is a double-edged weapon. In the present case we have found to be cutting the other way! 19. As regards the recoveries allegedly affected from the appellants during the investigation of this case suffice it to observe that the same had been affected after 26 days of the occurrence. We are not ready to believe that the appellants would be so naive as to keep their weapons and clothes stained with the blood of the deceased for so long so as to facilitate their recovery from them for subsequent use as corroboration against them! 20. The medical evidence in this case is not of much help to the prosecution as the same cannot identify or locate the perpetrators of the offence in a case where the presence of the eye-witness itself is found to be doubtful. Even otherwise, medical evidence is only of supportive character and the same loses all its value in a case like the present one where there is no other reliable evidence available to give support to. 21. For what has been observed above we are convinced that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. Criminal Appeals No. 300 & 299 of 1993 are, therefore, allowed and the appellants are hereby acquitted. They shall be released from jail forthwith, if not required in any other case. It has been noticed above that the learned counsel for the complainant had stated that the complainant did not wish to press his revision petition against the acquittal of Muhammad Wazir accused. Criminal Revision No. 8 of 1994 is, therefore, dismissed as having not been pressed. 22. As the sentences of death passed by the learned trial court against Muhammad Qasim and Mulazim Hussain alias Manna appellants .have been set aside and they have been acquitted by us, therefore, Murder Reference No. 133 of 1996 is hereby answered in the negative. (K.A.B.) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 212 (DB) Present: rao iqbal ahmad khan and tassaduq hussain jillani, JJ. SHER MUHAMMAD-Appellant versus STATE-Respondent Crl. Appeal No. 299/92 and Murder Reference No. 493 of 1992, dismissed on 1.4.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/377 read with Section 12 of Offence of Zina Enforcement of Hudood Ordinance, 1979-Murder and Sodomy-Offence of-Conviction and sentence for-Challange to~Appellant/accused 40 years of age whereas deceased was 15 years at the relevant time-Factum of deceased being his pupil having been admitted by appellant accused himself and venue of occurrence also eing his shop and testimony of Experts i.e. 3 doctors and chemical Examiners Reports about unnatural sexual intercourse having been committed on the person of deceased and "Shalwar" of accused having also been found stained with semen coupled with factum of his disappearance after occurrence—Appellant accused satisfied his unnatural last and while committing said act caused injuries to deceased whereby he became unconscious and which resulted in his death-Arguments of appellant were not convincing-Appeal failed hence dismissed. [P. 218] A r. Khuda Dad Khan Burki, Advocate for Appellant. Mr. S. D. Qureshi, Advocate for State. Date of hearing: 1.4.1998. judgment Rao Iqbal Ahmed Khan, J.-On the basis of FIR No. 71/91 (Exh. PA/1) dated 2.11.1991, recorded at Police Station Yakki Gate, Lahore for the bottle. Rectal swabs taken, sealed in bottle No. 2. No stains seen over 'Shalwar', 'Kamiz' and 'Bunyan'. Swabs sent for Chemical Examination. (7) as possessing was also suspected, blood and urine samples taken for Chemical Examination. He advised X-rays skull, A.P and Lat. In his opinion injuries Nos. 3 and 4 were simple, all the rest were kept under observation. The injuries were fresh. After the receipt of Chemical Examiner's Report Ext. PF injury No. 6 was due to sodomy as the rectal swabs were stained with semen and sperms were microscopically identified. Ext. PG is correct copy of medico legal report. 5. The doctor who conducted post-mortem examination appeared as PW. 9 i.e., Dr. Arif Rashid Malik, Demonstrator, K.E.M., College, Lahore . He found the following injuries on his person. (1) there was an abrasion reddish brown in colour 4 x 1.5 cm n size situated on left cheek, just below and outer to left eye. (2) an abrasion reddish brown in colour 1.5 x 1 cm in size showing vital reaction situated on left cheek just below and outer to left nostril. (3) an abrasion reddish brown in colour 5 x 2 cm in size situated on the left side of face just below and outer to left lower lip. (4) a bruise-bluish in colour 1.5 x 1.5 cm with laceration .5 x .3 cm, on the inner aspect of left part of lower lip. (5) an abrasion reddish in colour 2.5 x 1.5 cm, on the top of left and right shoulders. (6) an abraded area 20. x 6 cm vertically placed reddish brown in colour showing vital reaction on the left outer part of chest, 10 cm away from mid line, 11 cm below top of shoulder, 12.5 cm above left anterior superior iliac spine. (7) there was a laceration superficial 1 x .5 cm redish in colou on the anterior aspect of anal opening i.e., at 12 O'Clock position in lithotomy position going into anal canal. 3 anal swabs were taken and sent to Chemical Examiner for detection of semen. (8) there were injection marks on both cubital fossae and back f wrist of right side. (9) Muscles of neck namely sterno-cleido mastoid, scalenianterior of both sides were bruised. (a) Right side muscles bear bruise 5 x 7 cm and more marked. (b) Left side muscles bear bruise 4x3 cm. Hyoid bone was not fractured According to the doctor the cause of death was manual interference at the neck precipitating irreversible brain damage and according to him the deceased had been subjected to unnatural sexual intercourse. 6. The complainant/first informant-father of the deceased deposed • before the learned trial Judge that his son Muhammad Saleem was learning the art of gold-smith (jewellery making) from accused Sher Muhammad and at about 8.00 a.m., he went to the shop of said Sher Muhammad (on 2.11.1991) after taking breakfast; that at about 9.00 am., he (PW) passed by the shop of accused while going to his own shop and saw his own son enter the shop of the accused; that at about 9.40 a.m., accused Sher Muhammad came to him at his shop and told that his son was lying unconscious on the floor of his shop. He rushed to the shop of the accused and three other shopkeepers, Younas, Lai Din and Muhammad Ashraf also accompanied him. When he reached there, he saw his son lying on the ground his face downward. He picked him up. He was unconscious and blood was oozing out of his nose and mouth. He boarded a rickshaw and took him to Mayo Hospital, but he breathed his last there at about 6.15 p.m. The police official arrived in the hospital and recorded his statement (Exh. PA). f 8. In cross-examination he stated that his son was going to the accused for the last about 8 days. He further said that he had sent his son as a pupil to the accused in the belief that he would teach him how to make ornaments. 9. Sh. Muhammad Ashraf appeared as PW-5 and stated that he alongwith Akram and others went to the shop of the accused as the accused had told that son of the complainant was lying unconscious and saw that the son of the complainant Akram was lying on the floor his face downward; that he was lifted and taken in a rickshaw to the Mayo Hospital where he breathed his last at about 6.30 p.m. 10. PW-6, Prince Umar and PW-7 Farooq Ahmd deposed about the erturbance of the accused on the day of occurrence at about 9.30 a.m. PW-6, as a resident of Inside Dehli Gate and said that he had seen the accused going towards 'bazar' at about 9.30 a.m., in a perturbed condition when he (PW) was going to the "bazar" for purchase of household articles; that he asked him (about that) but he replied that nothing had happened. Meanwhile Farooq Ahmed, his friend also came there; that both of them saw Muhammad Saleem lying in the shop of the accused in unconscious condition; that they thought that they should inform the father of the boy but in the in/eantime he (father) arrived alongwith 4-5 persons. They removed Muhammad Saleem to hospital. 11. PW-7 Farooq Ahmad, stated that he knew the accused and he runs a shop in Chowk Masjid Wazir Khan and the shop of the accused is at a distance of two lanes from his shop; that about four months back (the witness appeared in the court on 1.3.1992 and this occurrence took place on 2.11.1991), he was coming from his house and proceeding towards his shop at about 9.30 a.m., and when he was passing through the street wherein the shop of the accused was, Prince Umar (PW-6) met him and Sher Muhammad was hastily passing; that he asked Prince Umar as to what was the matter, but he replied that he did not know; that then he and Prince Umar entered the shop of the accused and saw that a child was lying there his face downward whose name was Muhammad Saleem; that he asked Prince Umar that he should inform the father of the child but in the meanwhile the father of the child reached there with three of his neighbours. The child was removed to the hospital. The accused was arrested in this case on 23rd November, 1991 as per testimony of PW-12. The police official after arrest of the accused recovered the clothes of the accused from a box lying inside his shop vide shirt P. 1 and Sholwor P. 2, Memo., Exh. P.O., in the presence of two PWs Muhammad Ashraf and Lai Din. The on the shalwar, he sent the same to the Chemical Examiner by making it injjp a sealed parcel. 12. The accused in his statement under Section 342 Cr.P.C., admitted that he ran the shop of gold-smith in Haveli Mian Sultan, Dehli Gate, Lahore and Muhammad Saleem, deceased son of the complainant was his pupil since last seven days prior to the occurrence. He answered other questions in negative including the recovery of his clothes after his arrest and even did not admit that the clothes were his. He took up the plea that he was involved in this case due to suspicion but he declined to make statement on oath under Section 340(2) Cr.P.C. 13. Learned counsel for the appellant took up the plea that the accused was involved in this case due to suspicion. His plea was that none saw the accused commit sodomy with the deceased and the third argument taken up by him was that there was no witness who saw the accused kill the deceased. He, therefore, pleaded that the conviction of the accused either on the charge under Section 377 PPC or under Section 302 was not proved and, therefore, he was entitled to be acquitted. 14. As against it, learned counsel for the State supported the impugned judgment by saying that the case against the accused was proved and he was rightly convicted and sentenced. 15. We have minutely gone through the entire record and considered the contentions of the learned counsel for the appellant. 16. It is admitted by the accused himself that the deceased was working with him as his pupil. It is also proved by the prosecution evidence that the father of the deceased Muhammad Saleem was informed about his son lying unconscious in his shop by the accused. The statement about this fact is not only by the father of the deceased PW-4 rather he is supported by PW-5 Muhammad Ashraf. The factum of the victim lying in an injured and unconscious condition is also proved by PW-6 and PW-7. The said PWs Prince Umar and Farooq Ahmed have also deposed about the perturbed state of mind of the accused on the date of occurrence at about 9.30 a.m. All the three FWs other than the father oi the deceased are impartial itnesses aving no enmity whatsoever with the accused and their cross-examination has not led to the inference that they were not truthful. Another important factor was the disappearance of the accused after this incident. He was arrested on 23rd of November as he had left his residence at Lahore alongwith his family members. The examination of the deceased when he was still alive by Dr. Aftab Younas proved that he had as many as six injuries on his person and since the injuries also indicated that the was ubjected to unnatural sexual lust, swabs were taken from around the anus and left thigh of the deceased and the same were sent to Chemical Examiner for examination The doctor was categorical that the injured was subjected to sodomy and no poison was detected in his blood and urine. The testimony of the doctor who conducted post-mortem examination (PW-9) also proved that the victim had six injuries on his body and the seventh was laceration on the anal opening. The cause of death stated by the doctor was manual interference at the neck precipitating irreversible brain damage and the victim had been subjected to unnatural sexual intercourse. The reports of the Chemical Examiner (Exh. PN & Exh. PO) proved positively that not only semen was detected on the clothings of the deceased but the 'shalwar' of the accused also was stained with semen. Therefore, two facts have been clearly proved by the prosecution evidence (i) that victim was found unconscious in the shop of the accused at about 9.30 a.m., and was subjected to physical torture and unnatural sexual lust and secondly the cause of death was manual interference at the neck. Besides, as per testimony of the Doctor Saqib Nadeem, PW. 13, the accused was proved to be sexually potent and able to perform sexual intercourse as the doctor conducted the medical test of the accused which is Exh. PL. 17. We have on the basis of the prosecution evidence on record come to the conclusion that the factum of deceased being bis pupil having been admitted by the appellant-accused himself and the venue of occurrence also being his shop and the testimony of Experts above discussed, the three doctors and the Chemical Examiners Reports about the unnatural sexual intercourse having been committed on the person of the deceased and the 'shalwar' of the accused having also been found stained with semen coupled with the factum of his disappearance after the occurrence, it was he who first satisfied his unnatural lust against the deceased and while committing the A said act caused injuries to the deceased whereby he became unconscious and which resulted in his death. He was, therefore, rightly convicted and sentenced. We are not pursuaded to take exception to his conviction and sentence. The arguments of the learned counsel for the appellant-accused , have not convicted us of the innocence of the accused-appellant. The appeal, [therefore, fails and is hereby dismissed. Conviction and sentence maintained. u)eath confirmed. Murder Reference answered accordingly. (K.K.F.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 218 Present : KH. MUHAMMAD SHARIF, J. SHABBIR HUSSAIN SHAH-Petitioner versus STATE-Respondent Crl. Misc. Bail 1675 of 1998, accepted on 24.9.1998. Criminal Procedure Code 1898 (V of 1898)- —S. 497-Offence u/S. 457/380 PPC~Bail--Grant of T -Prayer for-Petitioner not named in FIR-Contention of-Petitioner is not named in the FIR- There was no eye witness of occurrence, who had seen petitioner while committing lurking house tress-pass--Further more, order of learned Additional Sessions Judge, clearly shows that nothing was recovered from the petitioner-Petitioner was not a previous convict and it will he seen at the time of trial, that whether Section 457 PPG will be applicable or not, therefore, case of petitioner covered by Sub-section (2) of Section 497 Cr.P.C.-In this view of the matter, this petition is allowed and petitioner was admitted to bail in the sum of Rs. 30,000/- with one surety in the like-amount to the satisfaction of trial Court. [P. 219] A Tariq Muhammad Iqbal Chaudhry, Advocate for Petitioner. Mr. Zafar Ullah, Advocate for State. Date of hearing: 24.9.1998. order Learned counsel for the petitioner submits that provision of Sec­ tion 457 Cr.P.C. are not attracted in this Case. Further submits that petitioner is not named in the FIR, that no recovery has been effected from him during physical remand, that he is not previous convict. 2. On the other hand, learned counsel for the State submits that petitioner belongs to the gang of thieves and he has made confession before the "Punchayat", therefore, he is not entitled to the grant of bail. Further submits that case of the petitioner falls within the prohibitory clause of Section 497(1), Cr.P.C. 3. I have heard the learned counsel for the parties and have also gone through the FIR and the order of learned Additional Sessions Judge, Sahiwal; that Petitioner is not named in the FIR. There is no eye witness in the occurrence, who has seen the petitioner while committing lurking house tress-pass. Further more, the order of learned Additional Sessions Judge , Sahiwal clearly shows that nothing was recovered from the petitioner in the instant case. Petitioner is not a previous convict and it will be seen at the time of trial, that whether Section 457 PPC is applicable or not, therefore, the case of the petitioner is covered by sub-section (2) of Section 497 Cr.P.C. 4. In this view of the matter, this petition is allowed and the petitioner is admitted to bail in the sum of Rs. 30,000/- with one surely in the like-amount to the satisfaction of trial Court (K.A.B.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 220 Present: KH. MUHAMMAD SHARIF, J. SHABBIR HUSSAIN-Petitioner versus STATE-Respondent Crl . Misc. No. 1734-B of 1998 accepted, on 15.10.1998. Criminal Procedure Code, 1898- —S. 497-Offence u/S. 457/380/41 l--Bail--Grant of--Prayer for—Petitioner not named in FIR-Contention-Petitioner was not named in FIR, only juicer machine was recovered from him -- arently , there is no evidence n record u/S. 457 PPC.~Case of petitioner is covered by sub-section (2) f Section 497 Cr.P.C .--Petition is accepted and petitioner is allowed bail n the sum of . .000/- with one surety in the like amount to the atisfaction of learned trial Court. fP . 220] A r. Tariq Muhammad Iqbal Chaudhry , Advocate for Petitioner. Mr. Mumtaz Jai, Advocate for tate . Date of hearing: 15.10.1998. order Learned counsel for the petitioner in support of this petition submits that the petitioner is not named in the FIR and he is not previous convict He further submits that only uicer machine has been recovered from the petitioner. 2. On the other hand, learned counsel for the state submits that the ffence alleged against the petitioner is u/S. 457 PPC which is punishable for 14 years R.I. He submits that he is involved in other case of similar nature. 3. I have heard the learned counsel for the parties and have also gone through the record. The petitioner is not named in the FIR, only juicer machine was recovered from him. Aberrantly, there is no evidence on record u/S. 457 PPC. Keeping in view the circumstances of the case, the case of the petitioner is covered by sub-section (2) of Section 497 Cr.P.C . This petition is accepted and the petitioner is allowed bail in the sum of Rs . 30,000/- with one surety in the like amount to the satisfaction of the learned trial Court. (K.A.B.) Bail allowed.

PLJ 1999 Cr PLJ 1999 Cr. C.( Lahore ) 221 Present: CH. ijaz AHMAD, J. Mrs. BASMA TABASSAM-Petitioner versus DEPUTY COMMISSIONER SHEIKHUPURA and 6 others-Respondents Criminal Misc. No. 833/H of 1998, dismissed on 15.7.1998. Criminal Procedure Code, (V of 1898)-- —S. 491--Electricity Act, 1910, S. 54-A-West Pakistan Land Revenue Act, 1967 Ss. 79 to 82 read with S. 24--Default in payment of arrears of Electricity-Arrest by "Recovery Tehsildar"~Habeas petition against— Respondents placed certificate issued by WAPDA verified by Revenue Officer and also certificate of recovery which was conclusive proof of demand of respondents-Petitioner had also alternate remedy under S. 82 of Act, 1967, which he did not avail, therefore, habeas corpus was not proper remedy-When warrant of arrest was issued in accordance with provisions of Act, 1967; even in violation of manner prescribed under that Act, same could not be declared illegal through collateral proceedings unless same was set aside by any competent court—Petitionier is a defaulter of heavy amount-Demands of WAPDA qua its arrears was part and parcel of public ex-cheqer-Petitioner/detenu was not entitled to any relief to avoid to pay heavy amount-It was in knowledge of petitioner qua arrears, but he approached High Court with malice/unclean hands to stop recovery process-Petition dismissed. [Pp. 227, 228 & 229] A to G NLR 1983 Cr.C. 215; PLD 1994 SC 738; PLJ 1982 Cr. C. 241 ref. Mr. Muhammad Ramzan Chaudhry, Advocate for Petitioner. Mr. Muhammad Ilyas Khan, Legal Advisor for WAPDA. Syed ZulfiqarAli Bokhari, Asstt. A.G. Date of hearing: 14.7.1998. order The petitioner has filed this Cr. Misc. with the following prayer:-, "Under the submissions, it is, therefore, most respectfully prayed that the petition may kindly be accepted and the husband of the petitioner namely Sh. Tabassam Shehzad may kindly be recovered from the illegal, unlawful mala fide and improper custody of the respondents and he may kindly be dealt with in accordance with law and be set at liberty." Vide order dated 13.7.1997 the Deputy Commissioner/Respondent No. 1 was directed to produce the detenu in Court on 14.7.1998. 2. The learned Legal Advisor of the WAPDA stated that WAPDA functionary sent list of defaulters to the Commissioner Lahore Division Lahore including the name of petitioner Zahoor Ahmad Bhatti, Mehran Paper Mill Muridke/Tabassam Shahzad LCCHS Lahore Cantt. Deputy Commissioner Sheikhupura vide his letter dated 22.6.1998 informed the Superintendent Engineer WAPDA in the following terms :-- "You are hereby informed that sanction u/S. 115 of the Land Revenue Act, 1967 has been accorded to recover the electricity arrears as arrears of land revenue through your Recovery Tehsildar amounting to Rs. 2,20,86,041/- and Rs. 4,41,721/- @ 2% as • recovery charges from the 9-defaulters numerated in the enclosed list " Vide letter dated 4.7.1998 alongwith certificate of recovery under Sec­ tion 3(1) No. 1 of 1890, the Deputy Commissioner, Sheikhpura requested the Deputy Commissioner Lahore in the following terms :-- "A list of ten big defaulters of District Sheikhpura, who are resident at Lahore, is enclosed herewith. It is, therefore requested that recovery proceeding under Land Revenue Act, may please be taken immediately." The Revenue Officer issued warrant of arrest on 10.7.1998 under Sec­ tion 82(1) of the Land Revenue Act, 1967 with the following remarks :~ Learned Legal Advisor of Respondents Nos. 6 and 7 contended that outstanding bill of the respondents is recoverable as arrears of Land Revenue by virtue of Section 54-A Electricity Act, 1910. He further contended that certificate was sent to the Collector Sheikhupura for recovery of the same as arrears of Land Revenue amounting to Rs. 36,72,529/-. He further contended that petitioner has alternate remedy under the West Pakistan Land Revenue Act before the Revenue officer by virtue of Sec­ tion 82(18), therefore, habeas corpus petition is not maintainable. He further contended that statement of account certified by Revenue officer is the conclusive proof of arrears of land revenue by virtue of Section 79 of the Land Revenue Act. He further contended that action of the respondents is in accordance with law. He further contended that Sections 80, 81 and 82 of the Land Revenue Act are independent of each other and Code in itself, therefore, by virtue of Section 80(b) respondents were justified to arrest the petitioner. He further contended that petitioner is in civil jail at the expense of Respondents Nos. 6 and 7, therefore, habeas corpus petition is liable to be dismissed. 3. The learned counsel of the petitioner contended that the petitioner has also filed Writ Petition No. 6419 of 1998 before this Court with the following prayer :-- "It is further prayed that during the pendency of the writ petition and during the period when the actual reading is taken and the actual bill is issued to the petitioner the respondents may kindly be restrained from removing the installations from the spot including the electric meter, electric poles, the transformer and the electric wires etc. in any manner whatsoever." He further contended that my learned brother Mian Nazir Akhtar, J. handed over copy of the writ petition to learned Legal Advisor of the WAPDA with th$ direction to submit report and parawise comments, vide order dated 15.4.1998 and the respondents did not file report and parawise comments as is evident by the order dated 22.4.1998 in the aforesaid writ petition. The respondents issued a list of defaulters published in Daily Jhang with the title that defaulters of WAPDA are liable to be fixed very soon and in the News Item the name of the previous owner of the Mill Mr. Zahoor Ahmad Bhatti also mentioned. The petitiono.v being aggrieved filed another Writ Petition No. 12493 of 1998 with the following prayers:-- "Under the submissions it is, therefore, most respectfully prayed that the writ petition may kindly be accepted and the list issued by respondent No. 1 to the extent of the petitioner's showing them the defaulters of a sum of Rs. 36,72,529/- published in Daily Jang dated 19.6.1998 my kindly be declared illegal, unlawful, ineffective and inoperative against the present petitioners and the Respondents Nos. 2 and 3 may kindly be directed to refrain from arresting and harassing the petitioners on the basis of this so-called list issued in the newspaper. This writ petition was fixed before my learned brother K.N. Bhandari, J. on 25.6.1998 who directed the office that this petition should be heard alongwith the earlier one and by the same Bench vide order dated 25.6.1998. The learned counsel of the petitioner on the basis of the aforesaid writ petitions contended that the matter has already been subjudice before this Court. It is in the knowledge of Respondents Nos. 6 and 7 who appeared in the aforesaid cases, therefore, Respondents Nos. 6 and 7 mala fidely sent the case of the petitioner as a defaulter to the Deputy Commissioner, Sheikhupura. He further contended that the action of the remaining respondents is in violation of the Provisions of Land Revenue Act as the respondents failed to issue any notice to the petitioner as is envisaged by Section 81 (Notice of Demand) and subsequently notice under Section 82(1) of the Land Revenue Act, therefore, detention of the petitioner is without lawful authority inter alia on the ground that when anything is to be done in a particular manner it must be done in that way and not otherwise. He further contended that respondents are bound to act in accordance with law as is envisaged by Article 4 of the Constitution, therefore, the action of the respondents is based on malice by law as well as malice in facts. He relied upon (1997 P.Cr.L.J 845) Raja Muhammad Ashraf s case and 1997 P.Cr.L.J 863 Muhammad Jamal Shahid's case. The learned counsel of the petitioner further contended that respondents failed to place on record any Notice as is envisaged by the aforesaid Provisions of the Land Revenue Act. The learned Assistant Advocate General contended that respondents are duty bound to act in accordance with law. 4. The learned Legal Advisor of Respondents Nos. 6 and 7 contended that no stay order was passed by this Court in the aforesaid writ petitions, therefore, mere filing of the writ petition by the petitioner did not restrain the respondents to demand outstanding arrears against the petitioner. He further contended that the aforesaid outstanding amount was duly certified by the Revenue Officer of the Department and Sections 80, 81 and 82 provided different mode of recovery of the said amount, therefore, respondents were justified to adopt any mode of recovery prescribed under the law as it is the discretion of the Competent Authority to choose any one of the modes prescribed in the aforesaid Sections. He further contended that in the given circumstances notice is not required to be issued to the petitioner as admittedly the aforesaid amount was certified by the Revenue Officer of the Department. He further contended that the habeas corpus petition is not maintainable as the petitioner has alternate remedy under the normal law. He further contended that the petitioner did not challenge the order dated 10.7.1998 passed by the Competent Authority under Ihe-Land Revenue Act. He further contended that the contents of the earlier writ petitions and the contents of this writ petition clearly reveal that the petitioner knew that he was a defaulter, therefore, he approached this Court with un-clean hands. 5. I have given my anxious consideration to the contention of learned counsel for the parties. It is better and appropriate to reproduce the relevant provisions of Electricity Act 1910, provisions of West Pakistan Land Revenue Act 1967 and Criminal Procedure Code. Electricity Act. Section 54-A. Charges for supply of energy recoverable as arrears of land revenue.-(I) Notwithstanding anything contained in this Act or in any other law for the time being in force or in any instrument or agreement, the charges for supply of energy or any other sum outstanding against consumer under this Act shall be recoverable as an arrear of land revenue. (2) A licensee, or any person duly authorised by the licensee, may apply, with a certificate showing the amount outstanding against a consumer, to the Collector of the district concerned for the recovery of the said amount, and the collector shall thereupon proceed to recover the same from such consumer, or his sureties, or from all of them, as an arrear of land revenue. Land Revenue Act 1967 Section 79 Certified account to be evidence as to arrear.—A. statement of account certified by a .Revenue Officer shall be conclusive proof of the existence of an arrear of land revenue of its amount and of the person who is defaulter. Section 80 Process for recovery of arrears.—Subject to the other provisions of this Act, an arrears of land revenue may be . recovered by any one or more of the following processes, namely :— (a)

'

(b) by arrest and detention of his person under Section 82. Section 81 Notice of demand.-A notice of demand may be issued by Revenue Officer on or after the day following that on which an arrear of land revenue accrues. Section 82 Arrest and detention of defaulter.-(l) If after lapse of fifteen days of the service of notice of demand under Section 81 on a defaulter the arrears of land revenue due from him, or any part thereof, remain unpaid, a Revenue Officer may issue a further notice to the defaulter requiring him to pay such amount, and if after lapse of t irty days of the service of such further notice, such amount or any part thereof still remains unpaid, the Revenue Officer may issue a warrant directing an officer named therein to arrest the defaulter and bring him before the Revenue Officer. (2) The further notice referred to in sub-section (1) shall be erved in the manner provided in sub-sections (1), (2) and of Section 24, and a copy thereof shall, wherever practicable, be also forwarded by registered post to the defaulter. (8) Any defaulter who, under sub-section (3) is being kept under personal restraint, or under sub-section (5) is being confined in the Civil Jail, shall forthwith be set at liberty-- (a) on the arrears due from such defaulter being paid; or (b) on the defaulter furnishing to Revenue Officer ordering his arrest, or the Collector security to the satisfaction of the Revenue Officer or the Collector, the case may be for the payment of the arrears due from him. Section 24. Mode of service of summons. ~(1) A summons issued by a Revenue Officer shall if practicable, be served, (a) personally on the person to whom it is addressed or, failing him, (b) on his authorized agent, or (c) an adult male member of his family usually residing with him. (2) If service cannot be effected in the manner provided in sub-section (1) or if acceptance of service is refused, the summons may be served by affixing a copy thereof at the usual or last known place of residence of the person to whom it is addressed, or, if that person does not reside in the District in which the Revenue Officer is employed and the case the which the summons relates has reference to land in that District, the summons may be served by-

PLJ 1999 Cr PLJ 1999 Cr. C. ( Peshawar ) 230 (DB) (D.I. Khan Bench) Present : muhammad azam khan and abdur rauf khan lughmani, JJ. MOEENUDDIN-Petitioner versus STATE and another-Respondents Crl. Misc. B.A. No. 154 of 1998, accepted on 17.11.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497—Bail-Grant of-Prayer for—Further inquiry-Double version- Offence u/S. 302/324/148/149 Pakistan Penal Code, 1860-How occurrence took place or who was aggression, was a matter for determina­ tion at the trial—Suffice to say that occurrence gave rise to two different versions and in the circumstances, case of petitioner was clearly of further inquiry within meaning of Section 497(2)-Bail granted. [P. 231] A PLJ 1996 SC 1704 rel. M/s. Zafar Abbas Zaidi and Dost Muhammad Khan, Advocates for Petitioner. S. Saeed Hussain Sherazi, Asstt. A.G. for State. Gohar Zaman Khan Kundi, Advocate for Complainant. Date of hearing: 17.11.1998. judgment Abdur Rauf Khan Lughmani, J.--Petitioner Moeenuddin, who alongwith several others, is involved in case FIR No. 108 under Section 302/324/148/149 P.P.C., registered at P.S. Domel, District Bannu, was refused hail by the learned Judge Special Court, Bannu, vide order, dated 29.7.1998, and now he has approached this Court for his release on bail. 2. Muhammad Alam Din, on 9.7.1998 at about 7.30 A.M., brought the dead body of Mst. Mir Dara and lodged report alleging therein that on the eventful morning, he was in the bath room of the house preparing himself for bath, when Moeenuddin and Muhammad Afsar Din, came duly armed with Kalashnikovs, raised 'Lalkara' and started firing. He was hit with the fire shot of Moeenuddin, while Mst. Mir Dera was hit and died on the spot with the fire shots of Muhammad Afsar Din. Muhammad Rehman, Muhammad Azeem and Aulia Din had also taken position behind the wall and fired at them. 3. Yet, another version of the occurrence was reflected earlier in case FIR No. 107, lodged on the same day at about 7.10 A.M. Petitioner Moeenuddin charged Jan Alam, Ismail Din and Iqbal Din armed with Kalashnikovs and shotguns for firing resulting in the death of Badshah Din. He also claimed to have been injured. 4. The time and scene of occurrence in both the cases are the same. dmittedly, the petitioner suffered fire armed injury and Badshah Din lost his life due to fire arm injuries while Muhammad Alam Din sustained fire arm injury and Mst. Mir Dara lost her life from the side of the complainant Mst. Mir Dara deceased sustained one fire arm wound, whereas Badshah Din deceased suffered several fire arm injuries. 5. Indeed, it is neither possible nor desirable to express an opinion at such an early stage as that of bail as to who is aggressor. Both the parties do not account for the loss or injuries suffered by the other. How the occurrence took place or who is aggressor, is a matter for determination at the trial. Suffice to say that the occurrence gave rise to two different versions and, in the circumstances, the case of petitioner is clearly of further enquiry within the meaning of Section 497(2) Cr.P.C. We are supported in our view by the judgment of Supreme Court in case of "Shoaib Mahmood Butt vs. Iftikhar-ul-Haq & 3 others" reported as PLJ 1996 SC 1704 = 1996 S.C.M.R. 1885, wherein it was held as under :-- "In case of counter-versions arising from the same incident, one given by the complainant in F.I.R. and the other given by the opposite party, case law is almost settled that such cases are covered for grant of bail on the ground of further enquiry as contemplated under Section 497(2) Cr.P.C." 6. We would, therefore, admit the petitioner to bail in the sum of Rs. 3 lacs, with two sureties, each in the like amount to the satisfaction of the trial Court, which is to ensure that the sureties are respectable, hail from the settled area of N.W.F.P. and of sufficient means. (K.K.F.) . Bail granted.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Peshawar ) 231 (D.I. Khan Bench) Present: MUHAMMAD AZAM KHAN, J. JAMALUDDIN-Petitioner versus STATE and anothers-Respondents Crl. Misc. No. 153 of 1998, heard on 16.11.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Bail-Grant of-Prayer for-Offence u/S. 324 Pakistan Penal Code, 1860-Learned counsel for complainant and State supported that it was a case of Qatl-e-Amd because intention of petitioner was to kill complainant n view of previous enmity which disentitle him to bail-Learned counsel or petitioner argued that complainant had ceived injuries on back of eck and back of right lumber area which doctor had described as hqjjah-i-Khafifah and Ghair-Jaifah Badihah entailing punishment of ess than ten year, erefore, se of petitioner did not fall under rohibitory clause and was entitled to bail-Held : Petitioner is charged romptly for inflicting fire-arm injuries on vitial parts of complainant, herefore, a ima cie case made out against which attracts provisions f Part I of Section 324 PPC-While relying on dictum laid down in case eported in 1996 S.C.M.R. 1270 High Court was not inclined to large etitioner on bail. [Pp. 232 & 233] A, B & C S. Zafar Abbas Zaidi, Advocate for Petitioner. S. Saeed Hassan Sherazi, Asstt. A.G. and Muhammad Karim Anjum Qusuria, Advocate for Complainant. Date of hearing: 16.11.1998. judgment Muhammad Azam Khan, J.--The petitioner, Jamaluddin son of Nasuruddin, caste Rajput, resident of Mohallah Dewan Sahib D.I. Khan, involved in case F.I.R. No. 166 dated 21.6.1998 registered at Police Station City D.I. Khan, under Section 324 PPC, has been refused bail by the forums below vide their orders dated 24.8.1998 and 28.9.1998 respectively, and has, therefore, now come up to this Court through the application in hand for the same relief. 2. The facts of the prosecution's case briefly are that Nasibuddin omplainant on 21.6.1998 at 21.00 hours had made a repoK in the Emergency Ward of Civil Hospital D.I. Khan to the effect that on that evening at 20.30 hours after taking a cup of tea in a hotel in 'Chota Bazar', he was proceeding to the Mosque for performing 'prayers' and when reached the shop of Dtramuddin, he was fired at by Jamaluddin son of Nasruddin with two shots hitting him on his neck and abdomen. The occurrence was stated to had been witnessed by said Ikramuddin besides others present on the spot Motive for the crime was given to be that five/six years ago, a relation of the petitioner was killed for which the complainant was charged but subsequently acquitted over which the petitioner was annoyed. 3. Learned counsel for the petitioner argued that since the complainant had received injuries on the back of neck and back of right lumber area which the Doctor had described as 'Shajjah-i-Khafifah' and Ghair -Jaifah-Badihah', entailing punishment of less than ten years, therefore, case of the petitioner did not fall under the prohibitory limb of Section 497 Cr.P.C. and he is entitled to the concession of bail. Learned counsel for the complainant and State supported the impugned orders and argued that it was a case of 'Qatl-e-Amd', because intention of the petitioner was to kill the complainant in view of the previous enmity which dis-entitie him to bail. 4. After considering the arguments advanced at the bar and going through record of the case and Medico-legal Report of the victim, I find that since the petitioner is promptly charged for inflicting fire-arm injuries on vital parts of the complainant, therefore, a prima facie case is made out against him which attracts the provisions of Part-I of Section 324 PPC. As such, while relying on the dictum laid down in the case reported in 1996 S.C.M.R. 1270, I am not inclined to enlarge the petitioner on bail and his prayer for bail is, therefore, declined. However, since the challan is complete, the trial Court is directed to conclude the trial within four months positively, failing which the petitioner shall be at liberty to agitate his plea of bail afresh. Record of the case shall be sent back to the Court concerned forthwith. (K.K.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Peshawar ) 233 (D.I. Khan Bench) Present: javaid nawaz khan gandapur, J. MUHAMMAD ZAMAN-Petitioner versus STATE and anothers-Respondents Crl. Misc. B.A. No. 124 of 1998, decided on 19.10.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497~Bail-Grant of-Prayer for-Offence u/S. 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 read with S. 9 of Control of Narcotic Substances Act-Petitioner stands charged for having committed an offence which falls within prohibitory clause of Section 497 Cr.P.C. as he was caught red-handed while he possessed contraband cftoros-This fact disentitle him to get concession of bail-Bail application rejected. [P. 235] A & B Mr. Fakhrud-Din-Shah, Advocate for Petitioner. Syed Saeed Hassan Sherazi, Asst. A.G. for State. Date of hearing: 19.10.1998. judgment The petitioner who stands charged for having committed an offence u/S. 3/4 read with Section 9 of Control of Narcotic Substances Act vide. F.I.R. No. 289 registered at Police Station Cantt. Bannu on 29-8-1998, was apprehended while carrying one Kgs of contraband charas. 2. When arrested he applied for bail but his bail was rejected by the Special Judge, Narcotic, Bannu (Syed Musadiq Hussain Gilani). Hence this petition. 3. Mr. Fakhruddin Shah, Advocate learned counsel for the petitioner and Syed Saeed Hassan Sherazi, learned Assistant Advocate General for the State present and heard. Record of the case/perused carefully. 4. The learned counsel of the petitioner, at the very outset, submitted that the Special Judge, Narcotic had not followed the judgment of this Court, recorded by his Lordship Mr. Justice Malik Hamid Saeed, in case Muhammad Afzal vs. The State reported as PLJ 1998 Cr.C. 973 = 1998 P.Cr.L. J. 955, wherein it was held :— (a) Criminal Procedure Code (V of 1998)-- —Ss. 497 & 103-Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3/4-Control of Narcotic Substances Ordinance (XXVII of 1997), S. 9-Baiil, grant of-Alleged recovery of Charas was effected from inside the coach which was carrying other passengers besides the driver and conductor of the vehicle, but none among the passengers, driver or conductor had been made witness to alleged recovery of Charas from accused-Police Officer, no doubt was a good witness as anyone from public, but when an accused was charged with an offence which involved capital punishment, it was incumbent upon police to associate public witnesses during investigation of the case-- Despite availability of public witnesses on the spot, they were ignored and were not made witnesses to the recovery so effected-Accused was charged under Prohibition (Enforcement of Hadd) Order, 1979 and Control of Narcotic Substances Ordinance, 1997, both statutes which were in field as a valid law, almost dealt with same subject and were enacted for the same purpose and object-Both Statutes were running parallel to each other and one could not substitute the other-Quantum of prescribed punishment in both the Statutes being different, it was to be seen that which of the two would prevail—Accused in case having been charged under two different statutes. having different punishment, statute carrying lesser punishment should be taken into consideration for the purpose of grant of bail to accused-Accused was granted bail, in circumstances. (b) Criminal Procedure Code (V of 1898)- —-S. 497~Bail, grant of--Two parallel statutes in field dealing with same subject and having same object-Punishment provided for the same offences different- Statute carrying lesser punishment should be taken into consideration for the purpose of grant of bail." (The underling is mine). 5. The counsel further stated that on this ground alone the petitioner is entitled to the grant of bail not as a matter of grace but as a matter of right. 6. I do not find myself in agreement with the findings of His Lordship Mr. Justice Hamid Saeed as mentioned above. In the case in hand the petitioner stands charged for having committed an offence which falls ithin the prohibitory clause of Section 497 Cr.P.C. as he was caught red- handed while he possessed the contraband Charas. This is quite clear from the recovery memo. 7. Accordingly, I am of the view that reasonable grounds do exist for elieving that he is connected with the commission of the offence which fact would dis-entitle him to get the concession of bail. This bail petition is, without any substance and is accordingly rejected. 8. Since the case in hand is of a simple nature, the prosecution is irected to submit complete challan against the petitioner in the trial Court on or before 1-11-1998 positively. The trial Court shall see that this case is disposed of within a period of three months failing which the petitioner shall be entitled to move the trial Court for bail on this very ground. (K.K.F.) Bail application rejected.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Peshawar ) 235 (D.I. Khan Bench) Present: jawaid nawaz khan gandapur, J. NIAMAT ULLAH-Petitioner versus ZULFIQAR ALI and 3 others-Respondents Crl. M.B-C. No. 99 of 1998, decided on 23.10.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(5)-Bail-Cancellation of-Offence u/S. 324/34 Pakistan Penal Code, 1860-Bail granted by Judicial Magistrate-Concurring with findings of Judicial Magistrate, il cancellation application rejected by he Addl. Sessions Judge—Held : Bail cancellation application may not be ccepted when challan is either complete or ripe for submission in trial-­ etition dismissed. [P. 237] A 1992 SCMR 1418 and 1989 SCMR 585 rel. Mr. Ghulam Hur Khan, Advocate for Petitioner. Mr. Sanaullah Khan Gandapur, Advocate and S. Saeed Hussain Sherazi, Asst. A.G. for State. Date of hearing: 16.10.1998. judgment Respondents Nos. 1 to 3 namely, Zulfiqar Ali S/o. Suba Khan, Suba Khan S/o. Muhammad Afzal and Zawar Hussain S/o. Mehrban, caste Baloch, Residents of Bhutesar Sharqi, Tehsil and District D.I. Khan, stand charged for having committed an offence punishable u/Ss. 324/34 P.P.C., vide : F.I.R. No. 38, dated 11.3.1998, registered at Police Station Paroa, Tehsil and District D.I. Khan, at the instance of petitioner/complainant Naimatullah S/o Nazar Hussain, who also belongs to the same Village. 2. When arrested the contesting respondents approached the Court of Civil Judge-II/Judicial Magistrate, D.I. Khan (Mr. Muhammad Aslam Khan) for the grant of bail. Respondent No. 1 was granted bail by the Civil Judge-II vide : his order dated 11.4.1998 whereas Respondents Nos. 2 and 3 were granted bail by the said Judicial Magistrate on 20.4.1998. 3. The petitioner, aggrieved by the said two orders dated 11.4.1998 and 20.4.1998, approached the Sessions Judge, D.I. Khan (Syed Rafique Hussain Shah) for the redress of his grievance and prayed before him that the bails granted to the respondents may be recalled. The Sessions Judge sent the said petition to the Additional Sessions Judge, D.I. Khan (Mr. Muhammad Iqbal Khan) for disposal, who vide: his single order dated 20.7.1998, while concurring with the findings of the Judicial Magistrate, rejected the bail cancellation application. 4. Hence the present petition, alleging that the orders of the lower forums being perverse/arbitrary, are liable to be set aside and the respondents be arrested sent to jail. 5. Mr. Ghulam Hurr Khan, Advocate for the petitioner, Accused/Respondents Nos. 1 to 3 in person, alongwith their counsel Mr. Sanaullah Khan Gandapur, and Syed Saeed Hassan Sherazi, learned Assistant Advocate General for the State p>resent and heard. Record of the case perused. 6. It was held in the following cases that the bail cancellation application may not be accepted when the challan is either complete or ripe for submission in the trial Court. The relevant parts of the said.judgments are reproduced :-- 1. 1985 Supreme Court (M.R.) 1691, Mst. Irshad Begum vs. Muhammad Afzal and another. "S. 302-Petition seeking cancellation of bail allowed by High Court to accused—Trial commencing shortly- Supreme Court declined to interfere—" 2. PLD 1989 Supreme Court 585, Muhammad Ismail vs. Muhammad Rafique and another. "—S. 302—Cancellation of bail-Trial was to commence within a fortnight—Cancellation of bail at such stage, held, would not be proper." 3. 1992 Supreme Court (M.R.) 1418, Mian Dad vs. The State & another. "S. 497-Penal Code (XLV of 1860), S. 302-Constitution of Pakistan (1973) Art. 185-Supreme Court, ordinarily would not interfere with the order of the High Court relating to bail, particularly in cases of murder, when the trial was going to commence so as to avoid discussion and remarks on the merits of the case." 7. Accordingly by following the dictum laid down by the Honourable Supreme Court of Pakistan, I would dismiss this petition. Order accordingly. 8. I may also remark here, before parting with the judgment, that I had also refused to cancel the bail in cases where the order of the Sessions Court for releasing the accused on bail was neither arbitrary nor perverse and therefore needed no interference. The said orders were recorded in the following cases :-- 1. 1996 P. Cr. L. J. 1371, Muhammad Yaqoob vs. AkbarAli. "S. 324/34-Cancellation of bail-Reasons given by Sessions Court for releasing the accused on bail being cogent and neither arbitrary nor perverse, needed no interference-­ Case of accused was one of further inquiry and they had been rightly allowed bail-Petition for cancellation of bail was dismissed accordingly." 2. 1998 P.Cr.L.J. 798, Diyar Khan vs. Said Khan "S. 302/324/34-Bail, cancellation of~Reasons adduced by Sessions Judge for granting bail to accused were justified as same were also supported even by the prosecution version, especially the version given in F.I.R.-Sessions Judge had given cogent/valid reasons for extending concession of bail to accused and bail granting order was neither arbitrary nor perverse-Such order could not be interfered with because when bail was granted by competent Court same could not be easily recalled as a matter of routine, in the absence of solid reasons showing that same was either obtained through misrepresentation/suppression of facts or that concession of bail was misused to hamper/obstruct course of fair investigation-Petition for cancellation of bail having no substance, was rejected in the circumstances." (K.K.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr. C. (Peshawar) 240 (D.I. Khan Bench) Present: jawaid nawaz khan gandapur, J. KALU KHAN-Petitioner versus INAYATUR REHMAN and 2 others-Respondents Crl. Misc Q. No. 31 of 1998, decided on 12.10.1998. Compromise-- —Criminal case-Compromise between parties-Prayer at bail stage of accused that the same compromise be declared void ab-initio being collusive, fraudulent, malicious and a result of misrepresentation-Held : Petitioner's statement in respect of compromise deed was recorded by Sessions Judge vide which ad-interim pre-arrest bail granted to accused/respondent was confirmed-Petition is not only frivolous but is without any substance and is accordingly dismissed in limine. [Pp. 241 & 242] A, B & C PLJ 1998 SCI 738 re/." Mr. Abdul Aziz Khan, Advocate assisted by Mr. Rustam Khan Kundi, Advocate for Petitioner. Date of hearing: 12.10.1998. order After hearing the learned counsel for the petitioner, for about an hour or so, I have come to the irresistible conclusion that, in the main, the intention of the petitioner is that the compromise entered into between him and the accused Respondents Nos. 1 and 2, at the bail stage, be declared as void ab-initio being collusive, fraudulent, malicious and a result of mis­ representation. 2. I am unable to agree with the contention of the learned counsel for the petitioner as there is nothing on the file to suggest, even remotely, that the compromise entered into between the petitioner and the accusedrespondents was either collusive or fraudulent In point of fact the petitioner's statement in respect of compromise deed was recorded by the Sessions Judge, Lakki Marwat (Mr. Abdul Sattar Khan) on 16-4-1998 which is reproduced hereunder :-- "Joint statement of parents ofWilayat Shah on Oath : Stated that we have patched the matter with the petitioners out of the Court, according to the Riwaj of the Illaqa. We have waived our right of Qisas and Diyyat and have got no objection on the confirmation of ad-interim pre-arrest bail already granted to them. The compromise deed Ex. PA bears our thumb impressions correctly." 3. In accordance with the statement of the petitioner/complainant, the father of the deceased, and his wife, the mother of the deceased, the Sessions Judge recorded the judgment on 16-4-1998 vide : which the adinterim pre-arrest bail granted to the accused/respondents was confirmed. The relevant portion of the said order is as under :-- "The parties have alleged compromise.-Parenatas of the deceased present and have confirmed the factum of compromise, so their statement recorded. According to them they have pardoned the accused in the name of Almighty Allah and have waived their right of Qisas and Diyyat both against the petitioners. Accordingly in view of compromise between the parties, the present petition is accepted and earlier order of ad-interim pre-arrest bail dated 3-3-1998 is hereby confirmed." 4. In the circumstances, this petition is not only frivolous but is without any substance and is accordingly, dismissed in limine. If any authority is needed I am supported by a case "Syed Iftikhar Hussain Shah vs. Syed Sabir Hussain Shah" reported as PLJ 1998 SC 1738 = 1998 Supreme Court (M.R) 466 wherein it was held :-- "S. 336/34-Constitution of Pakistan (1973) Art. 185(3)-- Complainant at the time of disposal of pre-arrest bail application of accused had made a statement before the Sessions Court that he had received a sum of Rs. 4000/- from the accused as compensation for settlement of the case, in consequence whereof interim pre-arrest bail already granted to accused was confirmed-Sessions Judge, however, on taking cognizance of the case refused to acquit the accused on the basis of said statement of the complainant and High Court in revision directed Sessions Court to acquit the accused in the case as and when hearing took place- Order of High Court was found to be just and proper in circumstances-Leave to appeal was refused accordingly." It was further held :-- "It may be true that while accepting revision application, the learned Judge in Chambers should have directed the learned Sessions Judge to dispose of the case in accordance with law but it is submitted before us that the learned Sessions Judge has already acquitted the accused in the case which has not been challenged by the petitioner. Be that as it may, after reading the statement of the petitioner recorded by the learned Additional Sessions Judge while disposing of the pre-arrest bail application of respondents, we are in no doubt that a sum of Rs. 4000/- was received by the petitioner as compensation for settlement of the case and as such it is not fit case in which leave should be granted. The order of the learned Judge in Chamber is a just and proper order in the circumstances of the case and no case is made out for interference with this order. Petition is accordingly dismissed and leave to appeal is refused." 'Rechh-di-Kalan' about two miles away from the house of the complainant by P.Ws. Miskin son of Ghulam Haider a relation of the complainant and Miskin son of Akbar All at the information and pointation ofMst. Munawar Jan. The Investigating Officer, namely, Jawaid Iqbal S.I. recovered the abductee on the same day from the residential 'Kotha' of the house of the complainant where she was also found in semi-conscious condition vide 'Naqsha-waqiati' and recovery memos available on the file in the presence of marginal witnesses, namely, Gohar Rehman who is stated to be the father of Shamrez accused, Zaheer son of Ghareeb Khan and Abdul Saeed complainant. The abductee was medically examined by lady doctor on 14.6.1998 at 11 a.m. who found the following on examination :-- P/v v/v healthy. Hymen ruptured. She was not found virgin. Dirty discharge from vagina and vagina was vulnerable for recent intercourse. Three vaginal swabs were taken and specimen of blood and semen were sealed in a bottle. Her whole body was scarred with bruises. Both legs and hands lacerated. She could not walk properly and her left breast was scratched. The doctor found that she was intoxicated for 3 to 4 days. After her examination she was admitted for necessary treatment. 5. On 17.6.1998 Investigating Officer produced her before the Judicial Magistrate/Civil Judge, IV, Mansehra and her statement under Section 164 Cr.P.C. was recorded wherein she charges Sagheer and two others, namely, Shamrez and Majeed for committing 'zina-bil-jabr' with her without her consent. The petitioners were arrested, who applied for bail before the Judicial Magistrate but could not succeed and their application was rejected on 25.7.1998. Thereafter they moved the Court of Sessions and vide order dated 24.8.1998 the learned Sessions Judge dismissed their petition. 6. Feeling aggrieved of the aforesaid orders of the two Courts below the petitioners have preferred the present petition. 7. I have heard the learned counsel for the parties and the learned Assistant Advocate General for the State. Learned counsel for the petitioners contended that from the F.I.R. it appears that Mst. Shahida Parveen had eloped with some one on her own will and that on account of enmity and previous litigation the petitioners have been implicated falsely. He contended that the present case had been registered after the recovery of the abductee on 14.6.1998, as such the charge was not free from prompting and the case has been registered by the local police after preliminary investigation. The learned counsel further argued that the abductee was a lady of easy virtues as almost 22 persons of the locality had given affidavits in support of the innocence of the petitioners which are available on the file. The learned counsel diverted my attention to the fact that the case was referred for reinvestigation by the relevant authorities to the CIA, Staff and that investigation was carried out by another Officer, namely, Muhrfmmad Maroof Inspector whose investigation also exonerated the petitioners from the charges brought against them. The learned counsel further contended that the abductee was also produced before S.P., Mansehra and that she disowned the earlier charge brought against the petitioner by her vide her statement recorded on 17.6.1998. Thereafter the local police had requested Daqa Judicial Magistrate for the discharge of the accused-petitioners under Section 169 Cr.P.C. but the Magistrate concerned refused the aforesaid request 8. I have myself examined the record in detail and have come to the conclusion that the contentions of the learned counsel for the petitioners which I have discussed above are correct to some extent but I am constrained to observe that the two Investigation Agencies, i.e. the local police and secondly the investigation carried out by Muhammad Maroof Khan Inspector CIA have tried to get the accused exonerated from the charges brought against them by Mst. Shahida Parveen the prosecutrix as long as she remained in their custody. The record suggests that the investigators aforesaid were supposed to be partial while conducting investigation, have tried to disturb the substance of the prosecution case on various occasion. It is an admitted fact that one of the marginal witnesses to the recovery of the abductee is an Ex-Chairman of the Local Council and is an influential person, namely, Gohar Rehman who happens to be the father of one of the accused, namely, Shamrez. In view of the addition of sub-section (4) in Section 10 of the offence of Zina (Enforcement of Hadood) Ordinance, 1979 the punishment has been enhanced to the penalty of death. 9. To my humble observation as long as the abductee remained in he custody of the two Investigation Agencies she could not remain firm. For instance Muhammad Maroof Inspector CIA repeatedly produced her before different authorities from 4.9.1998 to 8.7.1998 with an effort to get her statement recorded in favour of the accused and thereby altering the case to that of a case of no evidence. On 4.7.1998 she was produced before EAC, Mansehra for recording her subsequent statement under Section 164 Cr.P.C. This request was refused and thereafter on the same day she was produced before Said Kama ! Shah Judicial Magistrate, IV, Mansehra for the aforesaid purpose but the learned Magistrate was conscious of his duties and he accordingly observed that since he had already recorded her statement under Section 164 Cr.P.C. on 17.6.1998, therefore, the subsequent statement was not warranted by law. Lastly he produced the abductee before the Judicial Magistrate on 23.7.1998 with a request for the discharge of the accused under Section 169 Cr.P.C. yet once again his request was turned down by the Judicial Magistrate as the abductee in cleat terms had confirmed the charge earlier brought by her before the Judicial Magistrate. She further alleged that her previous deviation^ were on account of the official pressure and she categorically admitted the correctness of her statement dated 17.6.1998 recorded by this Officer, namely, Said Kama ! Shah. The learned counsel for the complainant and the learned Assistant Advocate General supported the impugned judgment. I have myself examined the record and have observed that in the instant case the solitary statement of the abductee Mst. Shahida Parveen recorded under Section 164 Cr. P. C. on 17.6.1998 remains in the field so far. It is supported by the circumstances and the medical report which suggest that she had been badly and cruelly subjected to sexual lust against her wishes. The statement of the prosecutrix is further supported by the statements of the witnesses to her recovery, Miskin son of Ghulam Haidar and Miskin son of Akbar Ali and Mst. Munawar corroborated by her medical report which suggest that a gang rape had been committed on her. It is now the duty of the trial Court to evaluate and appreciate the evidence at the stage of the trial. Granting bail to the accusedperson in such heinous crimes on technicalities would increase the crime rate in the society to a point of no return. In view of the changed circumstances and the trend of the superior courts in the light of the Islamic concept of law I feel that a prima facie case has been made out against the petitioners and I decline to enlarge the petitioners on bail. Their petition is, therefore, dismissed. My above mentioned observations shall not prejudice the mind of the trial Court. However, the trial court is directed to expedite the trial of the accused-petitioners and conclude the same within six months from the passing of this order failing which the petitioners shall be at liberty to bring a fresh bail application. (K.K.F.) . Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Peshawar ) 246 Present: MIAN MUHAMMAD AJMAL, J. ABDUL MANAN and another-Petitioners versus STATE-Respondent Crl . Appeal No. 20 of 1998, accepted on 30.11.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 514—Bail matter~Non appearance of accused—Imposition of penalty by ASJ—Non payment of penalty amount within specified time (3 days)-- Order to be detained in civil jail for two months and if they make payment, earlier they should be released-Challenge to~Bond was not forfeited, nor any order was recorded to that effect because issuance of show cause notices were violative of law and order is unsustainable- Subsequent proceedings carried out on the basis aforesaid illegal order has no foundation, therefore, same have also to fall to the ground. [Pp. 247 & 248] A & B Mr. Zafar Abbas Zaidi , Advocate for Petitioners. S. Saeed Hussan Sherazi , Asst. A.G. for State and Dost Muhammad Khan, Advocate for Complainant. Date of hearing: 30.11.1998. judgment By this order, I propose to dispose of Cr. Appeal Nos. 20 to 22 of 1998, Criminal Revision Nos. 4 to 6 of 1998 and Criminal Revision Nos. 7 to 9 of 1998, as all of them have arisen out of common orders dated 2.7.1998 and 18.7.1998 of the learned Additional Sessions Judge, Lakki Marwat . 2. Brief facts of the case are that Muhammad Rukhan charged Salim Khan, Afsar Khan and Ajab Khan for the murder of his brother Gul Rehman vide FIR No. 1 dated 4.1.1998 under ections 302/324/34 PPC of Police Station Dadiwala , Tehsil and District Lakki Marwat . On 2.2.1998, the accused were granted ad-interim pre-arrest bail in the sum of Rs . 1 ,00,000 /- with two sureties by Additional Sessions Judge, Lakki Marwat Muhammad Yar Khan, Abdul Manan and Khurshid All stood sureties for the accused and they undertook to produce them on every date, failing which they shall pay penalty of Rs . one lac . On 10.2.1998 and 17.2.1998 the accused attended the Court but did not appear on 24.2.1998, therefore, the ad-interim bail granted to them was recalled by Additional Sessions Judge Lakki Marwat and Moharrir was directed to open a separate file u/S. 514 Cr.P.C . against the sureties. The sureties were issued show-caused u/S. 514 Cr.P.C . which were replied by them. The replies were found unsatisfactory and were directed to pay l/4th of Rs . one lac as penalty, i.e. Rs . 25000/-, or Rs . 12500/- each and the same was ordered to be recovered by attachment and sale of their property vide order dated 2.7.1998. The sureties did not pay the penally amount in three days as directed, therefore, they were ordered, vide order dated 18.7.1998, to be detained in civil Jail for two months and if they make the payment earlier, they should be released. 3. In Criminal Appeals No. 20 to 22/98, Abdul Manan and Muhammad Yar Khan sureties have taken exception to order dated 18.7.1998 whereby they were ordered to be detained in civil prison for a term of two months each. The complainant Muhammad Rukhan in his revision Nos. 4 to 6 of 1998, has prayed for setting aside of the order dated 2.7.1998, whereby the sureties were ordered to pay 1/4 of Rs . one lac and sought enhancement of the amount of Rs . 12.500/- to Rs . one lac each. Muhammad Yar and Abdul Manan , the sureties, have also assailed the order dated 2.7.1998 through Cr. Revision Nos. 7 to 9, vide which the penalty of Rs . 12500/- each was imposed. 4. Learned counsel for the appellants/petitioners contended that the impugned order dated 2.7.1998 of the Court below is against law, as the same was passed without forfeiting the bond and recording reasons therefor . He urged that the order in question is against the provisions of Section 514 Cr.P.C ., therefore, the same is un-sustainable. 5. On the other hand, learned counsel for the complainant argued that the order dated 2.7.1998 impliedly contained the forfeiture, as the learned Court had ordered, vide order dated 24.2.1998, for .opening of a separate file u/S. 514 Cr.P.C . He submitted that the sureties were close associate of the accused, therefore, they cannot argue that they had stood sureties on humanitarian grounds. 6. The learned Assistant Advocate General arguing for the State, submitted that admittedly the order dated 2.7.1998 has not been passed after observing the procedure laid down under Section 514 Cr.P.C . but it can be inferred from the order dated 24.2.1998 that the Additional Sessions Judge impliedly forfeited the bond by directing the Moharrir that separate file be opened under Section 514 Cr.P.C . 7. After hearing the learned ounsel for the parties and going through record of the case, it is obvious that the learned Additional Sessions Judge in his order dated 2.7.1998 has neither said even a word about the forfeiture of the bail bond, nor has given any reason therefor . As far directions to the Moharrir for opening of a separate file u/S. 514 Cr.P.C . in order dated 24.2.1998 is concerned, there is nothing in it to suggest that the Court while recalling the ad-interim pre-arrest bail forfeited the bail bond- Under Section 514 Cr.P.C . when a bond has been given for appearance before a Court and the accused disappears on a given date while on bail, the . ourt has to first forfeit the bond and has to record reasons therefor and thereafter, to call upon the sureties t pay the penalty thereof, or to show cause why it should not be paid. In this ase , admittedly, the bond was not forfeited, nor any order was recorded to that effect before issuance of show cause notice to the sureties, hence show cause notices were violative of the 0 aforesaid provision of law and thus the order dated 2.7.1998 is unsustainable. The subsequent proceedings carried out on the basis of the aforesaid illegal order has no foundation, therefore, the same have also to fall to the ground. 8. Consequently, Cr. Appeals No. 20 to 22 and Criminal Revisions o. 7 to 9 of 1998 are accepted and impugned orders dated 2.7.1998 and 18.7.1998 are set aside, whereas the Criminal Revision Nos. 4 to 6 filed by the complainant are dismissed. (K.K.F.) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr. C. (Peshwar) 250 (DB) Present: qazi muhammad farooq and malik hamid saeed, JJ. BUNER GUL-Petitioner versus STATE-Respondent Crl. Bail Application No. 567/98 dismissed on 10.9.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 497(l)--Bail-Grant of-Prayer for--O£fence u/Ss. 6, 7, 8 & 9 of Control Narcotic Substances Act, 1997-The embargo is fully attracted in this ase and the bail application is not maintainable t all as in view of the aterial on record there exist reasonable grounds for believing that the titioner has been guilty of an offence punishable with death under ection 9(c) of the Control of rcotic Substance Act, 1997-It is scarcely ecessary to mention that the embargo being extremely stringent can be ressed into service only when the person charged with an offence unishable with death under the Control of Narcotic Substance Act, 1997 sprima facie and reasonably connected with the crime. [P. 252] A r. Fazli Rehman Khan, Advocate for Petitioner. Mr. Tariq Khan, Advocate for State. Date of hearing: 10.9.1998. judgment Qazi Muhammad Farooq, J.--On a prior tip-off with regard to smuggling of a huge quantity of heroin through Motor Car No. PRB-5500 a contingent of the Anti Narcotics Force headed by Ehsanul Haq FIO had laid a picket near Hayat Abad. In the meantime the said car appeared on the scene but the driver accelerated the speed when signalled to stop. The force chased the vehicle in the official Pick-up but in vain as it disappeared in the streets of Hayat Abad. However, the search continued and in due course the suspect car was found parked at the Taxi Stand in front of Karkhano Market. The driver, an Afghan Refugee, was interrogated and during the ensuing search a huge quantity of heroin wrapped in doth bags was found lying in the car. Keeping in view the gravity of the situation the raiding party took the car the A.N.F. Police Station where heroin weighing 43 kilo-grams was recovered therefrom and made into sealed parcels after obtaining the requisite samples. The driver of the car was booked for offences under Sections 6, 7, 8 and 9 of the Control of Narcotic Substance Act, 1997 vide F.I.R. No. 9 dated 28.4.1998. He moved a bail application at the lower Forum but without success and hence the bail application in hand. 2. It was contended by the learned counsel for the petitioner with vehemence that involvement of the petitioner in the crime required further enquiry as the recovery was made in a clandestine manner at the Police Station and not at the spot and it had also not been witnessed by any independent person. 3. The learned counsel appearing for the State, on the other hand, argued that there was no need to associate independent witnesses with the search and recovery in view of Section 25 of the Control of Narcotic Substance Act, 1997 which had specifically excluded application of the provisions of Section 103 Cr.P.C. to the searches made under the said Act He further argued that the offence committed by the petitioner was punishable with death, therefore, the bail application was not maintainable in view of the bar on grant of bail contained in Section 51(1) of the Control of Narcotic Substance Act, 1997. 4. After giving the contentions raised at the bar our anxious consideration we have come to the irresistible conclusion that bail plea of the petitioner cannot prevail as he is prima facie connected with the crime for which he has been charged in view of the evidence on record which includes the statements of the recovery witnesses and the positive report of the Chemical Examiner. No doubt the recovery was effected at the Police Station but the deviation cannot be blown out of proportion in view of the explanation contained in the F.l.R. that the car was driven to the Police Station owing to the gravity of the situation and exigency of circumstances. The explanation seems plausible in view of the prevailing law and order situation and the hot pursuit and hide and seek after which the petitioner was nabbed. The contention with regard to non-association of independent witnesses with the search and recovery cannot be raised in the face of Section 25 of the Control of Narcotic Substance Act, 1997 which has categorically excluded application of Section 103 Cr.P.C. to the searches made under the Act. It reads as under :-- "The provisions of the Code of Criminal Procedure, 1898, except those of Section 103, shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of Sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections." It is a settled principle of the construction of statutes that when in an enactment a special procedure has been laid down and a special provision has been made on a particular subject then a general provision does not apply to that subject 5. This brings us to the embargo-related contention based on sub- Section (1) of Section 51 of the Control of Narcotic Substance Act, 1997 which is worded thus:--"(1). Notwithstanding anything contained in Sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898) bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death." 6. The embargo is fully attracted in this case and the bail application is not maintainable at all as in view of the material on record there exist reasonable grounds for believing that the petitioner has been guilty of an offence punishable with death under Section 9(c) of the Control of Narcotic Substance Act, 1997. It is scarcely necessary to mention that the embargo being extremely stringent can be pressed into service only when the person charged with an offence punishable with death under the Control of Narcotic Substance Act, 1997 isprima facie and reasonably connected with the crime. 7. In the result the bail application is dismissed. (K.K.F.) Bail application dismissed.

PLJ 1999 PLJ 1999 Cr. C. ( Peshwar ) 250 (DB) Present: qazi muhammad farooq and malik hamid saeed, JJ. BUNER GUL-Petitioner versus STATE-Respondent Crl . Bail Application No. 567/98 dismissed on 10.9.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 497(l)--Bail-Grant of-Prayer for-- O£fence u/Ss. 6, 7, 8 & 9 of Control Narcotic Substances Act, 1997-The embargo is fully attracted in this ase and the bail application is not maintainable t all as in view of the aterial on record there exist reasonable grounds for believing that the titioner has been guilty of an offence punishable with death under ection 9(c) of the Control of rcotic Substance Act, 1997-It is scarcely ecessary to mention that the embargo being extremely stringent can be ressed into service only when the person charged with an offence unishable with death under the Control of Narcotic Substance Act, 1997 sprima facie and reasonably connected with the crime. [P. 252] A r . Fazli Rehman Khan, Advocate for Petitioner. Mr. Tariq Khan, Advocate for State. Date of hearing: 10.9.1998. judgment Qazi Muhammad Farooq , J.--On a prior tip-off with regard to smuggling of a huge quantity of heroin through Motor Car No. PRB-5500 a contingent of the Anti Narcotics Force headed by Ehsanul Haq FIO had laid a picket near Hayat Abad. In the meantime the said car appeared on the scene but the driver accelerated the speed when signalled to stop. The force chased the vehicle in the official Pick-up but in vain as it disappeared in the streets of Hayat Abad. However, the search continued and in due course the suspect car was found parked at the Taxi Stand in front of Karkhano Market. The driver, an Afghan Refugee, was interrogated and during the ensuing search a huge quantity of heroin wrapped in doth bags was found lying in the car. Keeping in view the gravity of the situation the raiding party took the car the A.N.F. Police Station where heroin weighing 43 kilo-grams was recovered therefrom and made into sealed parcels after obtaining the requisite samples. The driver of the car was booked for offences under Sections 6, 7, 8 and 9 of the Control of Narcotic Substance Act, 1997 vide F.I.R. No. 9 dated 28.4.1998. He moved a bail application at the lower Forum but without success and hence the bail application in hand. 2. It was contended by the learned counsel for the petitioner with vehemence that involvement of the petitioner in the crime required further enquiry as the recovery was made in a clandestine manner at the Police Station and not at the spot and it had also not been witnessed by any independent person. 3. The learned counsel appearing for the State, on the other hand, argued that there was no need to associate independent witnesses with the search and recovery in view of Section 25 of the Control of Narcotic Substance Act, 1997 which had specifically excluded application of the provisions of Section 103 Cr.P.C . to the searches made under the said Act He further argued that the offence committed by the petitioner was punishable with death, therefore, the bail application was not maintainable in view of the bar on grant of bail contained in Section 51(1) of the Control of Narcotic Substance Act, 1997. 4. After giving the contentions raised at the bar our anxious consideration we have come to the irresistible conclusion that bail plea of the petitioner cannot prevail as he is prima facie connected with the crime for which he has been charged in view of the evidence on record which includes the statements of the recovery witnesses and the positive report of the Chemical Examiner. No doubt the recovery was effected at the Police Station but the deviation cannot be blown out of proportion in view of the explanation contained in the F.l.R . that the car was driven to the Police Station owing to the gravity of the situation and exigency of circumstances. The explanation seems plausible in view of the prevailing law and order situation and the hot pursuit and hide and seek after which the petitioner was nabbed. The contention with regard to non-association of independent witnesses with the search and recovery cannot be raised in the face of Section 25 of the Control of Narcotic Substance Act, 1997 which has categorically excluded application of Section 103 Cr.P.C . to the searches made under the Act. It reads as under :-- "The provisions of the Code of Criminal Procedure, 1898, except those of Section 103, shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of Sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections." It is a settled principle of the construction of statutes that when in an enactment a special procedure has been laid down and a special provision has been made on a particular subject then a general provision does not apply to that subject 5. This brings us to the embargo-related contention based on sub- Section (1) of Section 51 of the Control of Narcotic Substance Act, 1997 which is worded thus:--"(1). Notwithstanding anything contained in Sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898) bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death." 6. The embargo is fully attracted in this case and the bail application is not maintainable at all as in view of the material on record there exist reasonable grounds for believing that the petitioner has been guilty of an offence punishable with death under Section 9(c) of the Control of Narcotic Substance Act, 1997. It is scarcely necessary to mention that the embargo being extremely stringent can be pressed into service only when the person charged with an offence punishable with death under the Control of Narcotic Substance Act, 1997 isprima facie and reasonably connected with the crime. 7. In the result the bail application is dismissed. (K.K.F.) Bail application dismissed

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 252 Present: RAJA MUHAMMAD KHURSHID, J. MUHAMMAD ASGHAR-Petitioner versus STATE-Respondent Crl. M. No. 2364/S of 1998, dismissed on 13.5.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 498~Offence u/Ss. 452/354/379/337-L(ii)/148/149 Penal Code, 1860-Bail--Pre-arrest--Rejection by ADJ applied to High Court for pre-arrest bail after a lapse of 1 \ month-Instead of surrendering or courting arrest, petitioner remained at large after dismissal of application--This conduct of petitioner hardly justify that he should be granted extra ordinary relief in the form of pre-arrest bail particularly when he was named in F.I.R. and had been attributed a specific role for causing injury to Mst. K after trespassing into her house alongwith other co-accused who had stripped her naked during scuffle ensuing attack upon her by assailants—No malafide on the part of police-Petitionier not entitled to extraordina emedy to avoid his arrest in a cognizable offence—Petition dismissed z'n limine. [P. 253] A Ch, Muhammad Hussain Virk, Advocate for Petitioner. Date of hearing: 13.5.1998. order A case under Sections 452/354/379/337- L( ii)/148/149 PPC is registered against the petitioner and others vide FIR No. 67/98 dated 19.2.198 at P.S. Saddar Farooqabad, District Sheikhupura. According to the s FIR, the petitioner alongwith others while armed with deadly weapons forcibly entered the house of the complainant The petitioner opened attack by giving a sola blow on the left arm of Mst. Khalida Bibi i.e.; wife of the complainant. The other accused also joined the petitioner and started beating her with their weapons. During the scuffle, the clothes of Mst. Khalida Bibi were torn and a golden ear ring from her left ear had fallen which was taken away by the assailants. The motive was some dispute of possession over the land. 2. The petitioner had applied for pre-arrest bail but his application was dismissed on merits vide detailed order recorded on 31.3.98 by a learned Addl. Sessions Judge, Sheikhupura. Instead of surrendering to the police custody, the petitioner appears to have remained at large and has now approached this Court through this application for pre-arrest bail after the "f lapse of about 1 month. It is contended that the petitioner has falsely been implicated in the case on account of previous civil litigation between the parties; that the injury attributed to the petitioner is minor and with a blunt weapon.

3. I have considered the foregoing facts and find that all these points have been discussed by the learned Addl. Sessions Judge, Sheikhupura while rejecting the pre-arrest bail petition of the petitioner. As pointed out above, instead of surrendering or courting arrest, the petitioner remained at large since after dismissal of his petition on 31.3.98. This conduct of the petitioner hardly justifies that he should be granted extra ordinary relief in the form of pre-arrest bail particularly when he is named in the FIR and has been attributed a specific role for causing injury to Mst. Khalida Bibi after ^ trespassing into her house alongwith other co-accused who had stripped her naked during scuffle ensuing the attack upon her by the assailants. In such a situation and since there is no mala fide on the part of the police, the petitioner is not entitled to the extra ordinary remedy to avoid his arrest in a cognizable offence. The petition is, therefore, dismissed in limine. "?"" (K.K.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 254 Present: raja muhammad khurshid, J. AJMAL KUSHAD-Petitioner versus STATE-Respondent Crl. Misc. No. 3333/B of 1998, accepted on 13.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Bail--Grant of-Prayer-Further inquiry-Case of-Offence u/S. 324/34 Pakistan Penal Code, 1860-Complainant side did not join investigation before police whereas in defence 37 persons were examined who supported defence version that petitioner was innocent and occurrence was fabricated on account of some civil litigation--In such a situation, opinion of police cannot be ignored because it comes into contact with parties from the very start of proceedings and was responsible for collection of evidence from both sides to come to a conclusion whether or not occurrence was true or false—Lastly, Offence was determined as Ghayr-jaifah-mutalahimah by Medical Expert which was punishable upto 3 years and daman-field : Case of further inquiry- Bail granted. [P. 255] A Malik Mushtaq Ahmad, Advocate and Ch. Muhammad Nawaz Sulehria, Advocate for Petitioner. Mian Muhammad Bashir, Advocate for State- Date of hearing: 13.7.1998. order A case under Sections 324/34 PPC was registered against the petitioner, his brother Ansar Iqbal and one unknown person. The petitioner alongwith his brother applied for pre-arrest bail which was dismissed by the learned Addl. Sessions Judge, Sialkot . Thereupon the petitioner and his aforesaid brother instituted Crl. Misc. No. 2691/B/98 for pre-arrest bail. It came up for hearing before my learned brother Sharif Hussain Bokhari, J, who admitted the petitioner and his brother to interim pre-arrest bail but vide order dated 4.6.98 while deciding the petition confirmed bail application of Ansar Iqbal on the ground that he did not cause any injury to the victim, and accused was a young boy and under 16 years of age and a student of 10th class. The petition to the extent of the present petitioner was dismissed on the ground that he was responsible for causing injury to victim Muhammad Latif with a fire arm. In the post arrest proceedings against the petitioner, the local police came to the conclusion that he was innocent and that the occurrence was manipulated as the complainant side wanted that a preemption suit filed by the petitioner's side be withdrawn. The investigation of the local police was confirmed by the DSP of the area vide his opinion recorded in the case diary on 10.6.98. It was held by both the Investigating Officers that the occurrence was doubtful as nobody turned up to join the investigation from the complainant's side although 37 respectable persons of the locality had appeared in defence of the petitioner. 2. Learned counsel for the petitioner has submitted that in view of findings of the police regarding innocence of the petitioner, it has become a case of further enquiry; that the occurrence took place on 1.5.98 at 7:45 p.m whereas the FIR was got registered on 5.5.98 at 2:45 p.m., as such the possibility of fabrication and mutual consultation cannot be ruled out before setting up the case. Lastly, it is contended that even according to the medicolegal report, the injury has been termed as Ghayr-jaifah mutalahimah which is punishable upto three years under Section 337- F( iii) PPG and the victim is also entitled to daman. As such, it is prayed that the offence does not fall within the prohibitoiy clause and the petitioner is entitled to bail. 3. Learned State counsel opposed the petition on the ground tha the eye-witnesses had supported the prosecution case and that the police opinion is not relevant at this stage. 4. In reply, learned counsel for the petitioner has submitted that the eye-witnesses are related inter-se and also to the complainant and as such, there being no independent witness, much reliance cannot be placed upon them; secondly, the weapon of offence has not been recovered so as to link the petitioner that he had caused fire arm injury. 5. I have taken into consideration the foregoing submissions and find that although the opinion of the police is not binding on the Courts but the attending circumstances have to be taken into consideration in each case. In this case, the complainant side did not join the investigation before the police whereas in defence 37 persons were examined who supported the defence version that the petitioner was innocent and the occurrence was fabricated on account of some civil litigation between the parties. In such a situation, the opinion of the police cannot be ignored because it comes into contact with the parties from the very start of the proceedings and is responsible for the collection of evidence from both the sides to come to a conclusion whether or not the occurrence is true or false. Lastly, the offence is determined as Ghayr-jaifah-mutalahimah by the Medical Expert which is punishable upto three years and daman as pointed out above. Hence finding it a case of further enquiry, the petitioner is admitted to bail in the sum of Rs. 30,000/- with a surety in the like amount to the satisfaction of the trial I Court. (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 256 ( Bahawalpur Bench) Present : raja muhammad khurshid, J. MUHAMMAD KASIM and another-Petitioners versus STATE-Respondent Crl. Misc. No. 168-B-1998/BWP, accepted on 17.7.1998. (i) Criminal Procedure Code, 1898 (V of 1898)- —Ss. 497 & 498--Pre-arrest bail-Rejection of--by ASJ-Petition of prearrest before High Court-Rejection of-Non-surrendered to court-Court summoned-Preferred revision petition to High Court—After dismissal of revision they surrendered to Police-Applied for post arrest bail-Rejected on the ground that petitioners were to avoid the process of court-Held : Petitioners availed their legal remedies to avoid their arrest and ultimately surrendered to the court after they were unsuccessful in other remedies-In such a situation it will be just and proper to consider thei r bail petition in the light of facts and part attributed to them durirg commission of offence irrespective of their conduct. [P. 257] A & B (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Bail-Grant of-Prayer-Further inquiry-Case of-Offence U/is- 302/34/109-None of petitioners were attributed any injury to decease! person and as such they have a case of further inquiry particularly when they have been declared innocent in three successive investigations and have been placed in column No. 2 of Challan—Although ipse dixit of police is not binding on the court but role assigned to petitioners in F.I.R. coupled with investigations conducted by police finding them consistently innocent would make it a case of further inquiry-Bail granted. [Pp. 257 & 258] C & D Syed Salman Haider Jaffery, Advocate for Petitioners. Mian Abdul Qayyum Anjum, Advocate for State. Date of hearing: 17.7.1998. order A case under Section 302/34/109 PPC was registered against the petitioners and two others vide FIR No. 106/96 dated 29.6.1996 at Police Station, Qaimpur District Bahawalpur for the murder of Ghulam Sarwar, a sister's son of the complainant Ahmad Yar. Both the petitioners applied for pre-arrest bail, which was dismissed by the learned Additional Sessions Judge, Bahawalpur vide his order dated 31.7.1996. Instead of surrendering to the custody of the court after dismissal of their bail petition, they filed a petition for pre-arrest bail in this court, which was dismissed in limine vide order dated 21.8.1996. After the dismissal of their pre-arrest bail petition by this court, the petitioners did not surrender to the trial Court whereupon they were summoned through warrants by the said Court. A revision petition was filed by the petitioners challenging the order of learned ^~ Additional Sessions Judge, Bahawalpur summoning them to face the trial. That revision petition was also dismissed by the High Court. It is thereafter, that the petitioners surrendered themselves for arrest on 24.10.1997. 2; The petitioners applied for post arrest bail, which was dismissed by a detailed order dated 8.11.1997 recorded by the learned Additional Sessions Judge, Bahawalpur on the ground that the conduct of the -' petitioners was to avoid the process of law. It was further held that although the petitioners have been held innocent by the police in three consecutive investigation and have been placed in column No. 2 of the challan, but the opinion of the police was not binding on the court and as such the petitioners had no case for bail. 3. I have considered the foregoing facts, and have also gone through the record. It is true that the petitioners did not surrender after the dismissal of their pre-arrest bail petition by the learned Additional Sessions Judge, Bahawalpur and also by this Court thereafter. They were summoned by the learned trial Court, but they preferred a revision petition to avoid their arrest. After dismissal of their revision petition by the High Court they voluntarily surrendered on the date mentioned above and are in continuous detention since then i.e. 24.10.1997. "r~' 4. True the petitioners availed their legal remedies to avoid their arrest and ultimately surrendered to the Court after they were unsuccessful in all those remedies. In such a situation it will be just and proper to consider their bail petition in the light of facts and the part attributed to them during the commission of the offence irrespective of their above conduct. 5. It is contended that the petitioner Muhammad Qasim was not available at the time of occurrence as he was at the Police Station Qaimpur at the relevant time to lodge FIR No. 105/96 in which he was a witness for a double murder. Apart from that a proverbial lalkara is attributed to Sher Khan petitioner whereas Muhammad Qasim had only pointed out the place where the deceased was present at the time of occurrence. The murder was /• committed by Fiaz Khan and Ghulam Haider their co-accused. The perusal of FIR shows that Qasim Khan petitioner had told his men to finish Ghulam Sarwar deceased, while he himself left for the house of Mst. Durran deceased. Likewise Sher Khan allegedly exhorted the principal accused namely Fiaz Khan, who fired at the deceased Ghulam Sarwar. Similarly Ghulam Haider co-accused fired second shot at the deceased. It is, therefore, t contended that none of the petitioners were attributed any injury to the deceased person and as such they have a case of further inquiry particularly when they have declared innocent in three successive investigations and have been placed in column No. 2 of the challan. order Heard. 2. Upon instigation/abetment of his father Muhammad Sadiq and his brother Mahmood Akhtar petitioner, Ghulam Mustafa, is alleged to have caused Qatl-e-Amd of his real uncle namely Muhammad Ibrahim, by inflicting four blows in his abdomen, chest and flank with iron Sua at about 10.30 A.M. on 4.9.1997. Accordingly a case under sections 302/109 PPC stands registered against them at Police Station Sadar Kamoke vide F.I.R. No. 636 dated 16.9.1997 lodged by Ijaz Ahmad son of deceased. 2. Refusal of deceased to give the hand of his daughter to Mahmood Akhtar petitioner is stated to have furnished motive for the occurrence. 3. Muhammad Sadiq father and co-accused of petitioner, with similar allegation of abetment was enlarged on bail on 19.12.1997 by learned Additional Sessions Judge, Gujranwala. 4. Accordingly concession, asked for, has been claimed on the 'rule of consistency' as also on various pleas enumerated in the petition. With reference to Federation of Pakistan and another vs. N.W.F.P. Government and others (PLD 1990 S.C. 1172) and Manzoor Ahmad and another vs. The State (1977 P.Cr.L.J. 850), learned Counsel representing the petitioner has remarked that the provisions of Section 109 PPC stand declared repugnant to the Injunctions of Islam. Also it has been impressed that the petitioner '"'-has no nexus or connection with the commission of crime; there is serious ' and inordinate delay of not less than 12 days in reporting the matter to police, F.I.R. is devoid and bereft of mention of vidence/material of hatching up of so-called conspiracy, statements under Section 161 Cr.P.C. of such witnesses namely, Muhammad Nazir and Sarwar sons of Fazal Din and - Shams Din were taken down/recorded more than one month after the occurrence; this aspect renders the so-called abetment as to be an after thought affair and figment of imagination of complainant, prosecution story is rendered to be highly improbable and doubtful thereby and that the petitioner is no more required in connection with investigation or otherwise by petitioner. 5. It has been opposed and resisted with the assertion that the petitioner is, not only, the cause of murder but also instrumental in the whole affair in-as-much as he is mainly concerned in the occurrence, as abettor. Reliance has been placed upon Abbas and 3 others vs. The State (1993 P.Cr.L.J. 2410) to contend, with vehemence that the circumstances warranted refusal of bail to petitioner, particularly, when the case, undoubtedly, falls within prohibitory clause of Section 497(2) Cr.P.C. "~~ 6. There can be no cavil with the settled proposition that even in case falling within the prohibitory clause an accused is entitle to the concession of bail, if his case comes within purview of 'further inquiry' as envisaged by relevant provisions of law. Shah Zaman vs. The State (PLD 1994 S.C. 65) enjoins :-- "Now what will constitute as sufficient ground for further inquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for the purpose. Every hypothetical question which can be imagined would not make it a case of further inquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of Section 497 Cr.P.C., is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged." 6. Admittedly, the petitioner was not present at the spot. Claim of such accused to bail as compared to a person present at the time of occurrence and raising lalkara is on better footing as expounded in plethora of authorities and galaxy of rulings on the point. In any event, rule of Bj consistency is attracted and entailed with full force in the light of 'illuminating observation made in Muhammad Afzal alias Bodi vs. The State ((1979S.C.M.R. 9). 8. Be that as it may, even commencement, what to speak of conclusion of trial, is not in sight. In these circumstances, incarceration of petitioner for an indefinite period, cannot be allowed under any canon of law. 9. Taking all these aspects into consideration and 'rule of nsistency' in particular, application is allowed and the petitioner is admitted to bail in the sum of Rs. 1,00,000/- with two sureties in the like amount to the satisfaction of learned trial Court. (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr. C. (Peshawar) 260 Present: MAHBUB Au KHAN, C.J. MUHAMMAD ASLAM-Appellant versus STATE-Respondent CrI. Appeal No. 28 of 1998, dismissed on 23.11.1998. Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)-- —Ait, 3 /4--CVzaras--Recovery of-Conviction for--Challenge to-All witnesses are unanimous on material particulars relating to recovery of one k.g. !•/,- ims from trouser-fold of appellant in his shop at relevant time-- N" !;n r; -e m the part of police is spelt out from evidence on record or that huge quantity of "charms" was falsely planted against appellant- Police official is as od witness as any person from public-Strict ompliance of requirement of Section 103 Cr.P.G. and Article 22 of rohibition Order could not be made in the circumstances as accused was earched in person on secret information and police had also no time to btain a search warrant—No witness from public was ready for evidence rosecution having been able to prove case ainst accused-Appeal dismissed. [Pp. 261 & 262] A, B & C Mr. Bashir Ahmad, Advocate for Appellant. Malik Manzoor Hussain, A.A.G. for State. Date of hearing: 23.11.1998. judgment The local police on 14.9.1996 at 11.45 a.m. apprehended Muhammad Aslam appellant while present in his shop situated at 'Pukhral-Chowk', Kalabat Township and on his personal search recovered one kilogram 'charras'. The accused was arrested and a case registered at P.S. Khalabat Township under Articles 3/4 of the Prohibition Order, 1979 on the report of IHC Abdur Rashid. He on the completion of investigation faced trial before Addl: Sessions Judge, Haripur and convicted under Article 4 of the Order ibid on the conclusion of trial to six months R.I. with a fine of Rs. 1000/- or 15 days S.I. in default. Hence this appeal by the convict-accused. 2. I have heard Mr. Bashir Ahmad, advocate on behalf of the ''f appellant and the Assistant Advocate General. The record shows that Abdur Rashid IHC alongwith F.Cs Aurangzefc No. 253 and Sher Afghan No. 20 were on 'gusht' in the Ilaqa on 14.9.1996 and received a secret information that the appellant was selling 'charras' in his grocery shop situated in "Pukhral-Chowk". On this the police party went to the shop and on his personal search recovered one k.g. 'charras' from the trouser-fold of the accused. He was arrested. Four grams from the seized 'charras' was separated, sealed in a parcel and sent to the laboratory for examination. The accused on the completion of investigation was tried before Addl: Sessions Judge, Haripur who on the conclusion of trial convicted and sentenced the appellant as stated before. The learned Counsel vehemently argued that there being contradictions in the statements of the police officials, the very recovery of substance from the person of the appellant has become doubtful by stating, that the witnesses are at variance about colour "of the plastic bag in which the 'charras' was wrapped or in which type of scale it was weighed. The recovery of the narcotic was made on 14.9.1996 whereas statements of the witnesses were recorded in Court on 10.10.1996 after the lapse of a period of more than one year and as such witnesses can be at variance on . minor particulars in evidence for which the prosecution case cannot be totally rolled down. Any how, all the witnesses are unanimous on material particulars relating to the recovery of one k.g. 'charras' from the trouser-fold of the appellant in his shop at the relevant time. 3. The learned counsel next argued that 'charras' was not produced in evidence before the Court. The argument does not succeed for the simple reason that the narcotic was not only produced in evidence of the case before the Court during trial but exhibited in presence of the learned counsel of the appellant. He stated further that no public witness was procured in support of search and recovery of the 'charras' which was made in violation of the mandatory provisions of Section 103 Cr.P.C. and that the police did not also take a search warrant from a magistrate under Article 22 of the Prohibition Order. No malice on the part of the police is spelt out from the evidence on record or that huge quantity of 'charras' was falsely planted against the " appellant. The police official is as good witness as any person from the public. Strict compliance of the requirement of Section 103 Cr.P.C. could not be made in the circumstances of the case as the accused was searched in person on secret information and the police had also no time to obtain a search warrant. The learned A.A.G. in support thereof rightly pressed into service the cases 1994 SCMR 1543 Muhammad "Khan-petitioner vs. The State-respondent" and 1995 SCMR 510 "Mushtaq Ahmad-petitioner vs. The State-respondent". We rather see from the writing of IHC Abdur Rashid on C the recovery memo that no witness from public was ready for evidence. We also see from the record that four grams 'charras' was sent to the chemical examiner on the same day, i.e., 14.9.1996 which was received in the laboratory on 16.9.1996. The last argument made by the learned Counsel that one k.g. 'charras' cannot be concealed in a trouser-fold is not acceptable for this simple reason that all the prosecution witnesses are unanimous on a point of fact that it was recovered from the trouser-fold of the appellant at the relevant time in his shop. 4. In the circumstances I see that the prosecution having been able to prove their case against the appellant beyond any reasonable doubt he was rightly convicted under Article 4 of the Prohibition Order, 1979 and sentenced as aforesaid. The appeal is dismissed and the appellant being on bail is taken into custody for undergoing the sentence. (K.K.F.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr. C. Lahore 262 ( Multan Bench) Present: dr. munir ahmad mughal, J. KHUSHI MUHAMMAD and another-Petitioners versus STATE-Respondent Crl. Misc. No. 873/B/98, accepted on 25:5.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497~Bail-Grant of-Prayer for-Further inquiry-Case of~Offence u/Ss. 302/201/324/337-A(i)/A(ii)/337-A(iii)/337/F(i)/337-F(iv)/148/149 Penal Code, 1860--Petitioner No. 1 was admittedly a very old person of 75 years of age and Petitioner No. 2 though armed with deadly weapon had not inflicted a single injury to any one-Non-infliction of injury by petitioner No. 2 who was armed with deadly weapon brings case within ambit of further inquiry-Whether accused in such circumstances shared common intention with co-accused who had caused death of deceased needed further inquiry-Petitioners granted bail. [Pp. 264 & 265] A & B Mr. Ghulam Murtaza Malik, Advocate for Petitioners. Mr. Muhammad Zahid, Advocate for State. Date of hearing: 25.5.1998. order The petitioners are involved in a case FIR No. 222/97 dated 22.10.1997 for offences under Sections 302/201/324/342/337-A(i)/A(ii)/337- A (iii)/337-F(i)/337-F(iv)/148/149 PPC registered at Police Station Sadar Muzaffargrah on the report of Muhammad Shabbir that his father Muhammad Ibrahim had made a contract to purchase a piece of land measuring 91 kanals and 10 marlas from his uncle Waliat Khan and taken money was paid and got the possession of land but said Waliat Khan sold this piece of land collusively to one Muhammad Asghar who had been demanding the possession of the land in question from the father of the complainant but his father refused to give the possession of land to him. On 22.10.1997 at 4.00 p.m. the complainant, his brothers Muhammad Wakeel, Munir Ahmad his father Muhammad Ibrahim and his brother-in-law Abdul Ghafoor were present at the spot to lookafter the rice crop when Sadar Din, Ghulam Mustafa, Petitioner No. 2, Khushi Muhammad, Petitioner No. 1, armed with hatchets, Muhammad Ashgar son of Munshi, Ghulam Mustafa son of Yamin armed with sotas and Nazir Ahmad armed with hatchet case there, threatened the complainant party that they would teach them lesson for non-delivering the possession of disputed land and at that moment they attacked the complainant party. Sadar Din inflicted hatchet blow on the head of Muhammad Ibrahim, father of the complainant, and inflicted second blow which hit on the head of Khurshid, Khushi Muhammad (Petitioner No. 1) inflicted hatchet blow on the head of Munir Ahmad, Nazir Ahmad gave hatchet blow on the head of Abdul Ghafoor, Sadar Din and Khurshid Ahmad inflicted hatchet blows on the head and jaw of Muhammad Wakeel who fell down and had become unconscious, Ghulam Mustafa son of Yamin inflicted Sota blow which hit the complainant on his right shoulder, Mumtaz Ahmad and Shamshad caused injury to Munir Ahmad Abdul Ghafoor with their hatchets. Ghulam Mustafa son of Yamin and Muhammad Asghar gave Sota blows to Mst. Akbari and Mst. Rukhsana, after that all the accused persons began to cause injuries to Muhammad Wakeel, Abdul Ghafoor, Muhammad Ibrahim and Munir Ahmad and on the resistance of the complainant and PWs accused Sadar Din and Khurshid started firing to threat the complainant party. During scuffle and free fight between the parties, accused Mustafa (Petitioner No. 2) Sadar Din sons of Khushi Muhammad sustained injuries in the hands of complainant party and Muhammad Wakeel brother of the complainant had died due to injuries. Motive for the occurrence as stated in the FIR was that Muhammad Asghar co-accused purchased the land in question from Waliat Khan uncle of the complainant but father of the complainant was in possession of disputed land. It is also alleged that a suit for declaration to the effect was also pending in the Civil Court and for that reasons they were attacked by the accused party. 2. Earlier the bail was refused by the learned Additional Sessions Judge, Muzaffargarh on 18.4.1998. 3. Now the petitioners have come before this Court for their bail on the grounds that they have been falsely involved in the case due to enmity and that the Petitioner No. 1 is an old man of 70/75 years of age and the only role attributed to him is inflicting a single hatchet blow on the head of Munir Ahmad PW while the medico legal certificate shows that he sustained three injuries all by blunt weapon and that no specific role is attributed to Petitioner No. 2 though allegedly he was armed with deadly weapon like hatchet and had caused no injury to any one and that actually the aggressor was the complainant party. A sudden free fight took place and that out of the five injuries sustained by Petitioner No. 2 one of them was grievous hich was on the head and that the Ilaqa police had refused to record the cross version of the petitioners due to political influence and that the charge against the petitioners is not hit by the prohibitory clause of Section 497 Cr.P.C. and that the investigation is complete and they are no more required for that purpose and they were arrested on 23.10.1997 and sent to judicial lock up on 1.11.1997 and that they are not previous convicts. Reliance has been placed on P.L.D. 1996 Karachi 382 & 1996 SCMR 1125. 4. The bail is opposed on the grounds that the petitioners are.named in the FIR, specific role is attributed to them and that the causing of injury to one of them also prove their presence on the spot and that the offences under Section 302/324 PPC are hit by the prohibitory clause of Section 497 Cr.P.C. 5. The Investigating Officer is present who has stated that the challan has been submitted to the Court. 6. Khushi Muhammad, Petitioner No. 1 is admittedly a very old person of 75 years of age and the other though armed with deadly weapon had not inflicted a single injury to any one. The non infliction of injury by Petitioner No. 2 who was armed with deadly weapon brings the case within the ambit of farther inquiry. For this view, reliance can safely be placed on the dictum of the Hon'ble Supreme Court of Pakistan laid down in the case ofMumtaz Hussain and 5 others versus The State (1996 S.C.M.R. 1125) wherein bail was granted on the ground that the accused though were armed with deadly weapons like rifle, gun and hatchet, only caused simple injuries to some of the prosecution witnesses using wrong side of the weapon and as uch whether the accused in such circumstances shared the common intention with the co-accused who had caused the death of the deceased needed further inquiry. In this view of the matter, both the petitioners are granted bail „ subject to their furnishing bail bonds in the sum of Rs. 50,000/- with one surety each in the like amount to the satisfaction of the learned trial Court. (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 265 Present: sh. abdur razzaq, J. STATE-AppeUant versus MUHAMMAD YOUNIS and another-Respondents Crl. Appeal No. 115/1987, dismissed on 1.10.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 249-A~Acquittal-Challenge to-Offence u/S. 307/34 Penal Code, 1860- Only point pressed into service at the time of filing appeal was that trial Court could not pass order u/S. 249-A Cr.P.C. without framing a formal charge under Section 242 Cr.P.C.-A perusal of Section 249-A Cr.P.C. does not impose any such restriction on the power of trial Court—Only precondition contained in the said section is that notice to State is mandatory and an opportunity of hearing is to be afforded-Both preconditions have been complied, as is evident from impugned order- Even otherwise it has been held in different authorities that there is no restriction on the power of trial Court to pass an order under Section 249- A Cr.P.C. and 265-K Cr.P.C. without framing any charge-Appeal dismissed. [P. 266] A Rana Naeem Sarwar, A.A.G. for State. Mr. R.A. Awan, Advocate for Respondents. Date of hearing: 1.10.1998. judgment Instant appeal is directed against the order dated 17.9.1986 passed by Ch. Muhammad Jehangir Khan Goraya, Magistrate Section 30 (Judicial), Kasur/Camp at Chunian whereby he acquitted the accused/respondents No. 1 and 2 in a case registered against them vide FIR No. 134/86 under Section 307/34 PPC. 2. Briefly stated the facts are that on the basis of complaint referred above a case under Section 307/34 PPC was registered against the ccused/respondents Nos. 1 and 2. The accused/respondents Nos. 1 & 2 moved an application u/S. 249-A Cr.P.C. The trial Court after giving notice to the State passed an order under Section 249-A Cr.P.C. dated 17.9.1986, and acquitted them i.e. Respondents Nos. 1 & 2. 3. The prosecution felt aggrieved of the said order and has filed the instant appeal. 4. The only point upon which the instant appeal has been admitted vide order dated 6.2.1988 is that the impugned order had been passed without framing charge under Section 242 Cr.P.C. However now during the arguments it is also asserted by the learned A.A.G. that trial Court could not pass the impugned order as the respondents have been specifically named in the FIR and a specific role has been attributed to each of them. 5. The contentions raised by the learned counsel for the appellant have been controverted by the learned counsel for the respondents. It is submitted by the learned counsel for respondents that trial Court was fully competent to pass an order under Section 249-A Cr.P.C., even without framing the charge. In support of his contention he has relied upon The State vs. Muhammad Rafiq & others (PLD 1983 Q-122) Muhammad Sadiq vs. Anwar Majeed etc. (1989 P Cr. LJ 1223), & Ch. M. Ashrafvs. The State (1990 P Cr. LJ 347). He further contends that occurrence took place on 30.3.1986 whereas FIR was lodged on 1.4.1986 and Respondent No. 3 acquitted them on 17.9.1986, that a period of more than 12 years has passed since the order of acquittal was passed and under these circumstances retrial is also not warranted and approved by the superior Courts and has relied upon Phulail Khan vs. The State (1972 SCMR 95). He hus submitted that impugned order do s not suffer from any illegality or misreading of evidence and prayed for the dismissal of the appeal. He also submitted that prior to the instant FIR, another FIR No. 132/86 u/S. 302/34 was registered at the same police station against 7 persons including complainant and injured of instant FIR No. 134/86. He further submits that as a result of compromise the accused named in FIR No. 132/86 stand acquitted. 6. Admittedly FIR No. 134/86 u/S. 307/34 PPC was registered on 1.4.1986 at the instance of Muhammad Malik, against Muhammad Younas and Abdul Rauf accused/respondents for committing murderous assault upon Muhammad Malik and Ehsanul Haq. During the pendency of that case Respondents Nos. 1 & 2 moved an application under Section 249-A Cr.P.C., upon which the lower Court issued notice to the State and after hearing the learned counsel for the State passed the impugned order on 17.9.1986. The only point pressed into service at the time of filing this appeal was that the trial Court could not pass the order u/S. 249-A Cr.P.C. without framing a formal charge under Section 242 Cr.P.C. A perusal of Section 249-A Cr.P.C. does not impose any such restriction on the power of trial Court. The only precondition contained in the said section is that notice to State is mandatory and an opportunity of hearing is to be afforded. Both the preconditions have been complied, as is evident from the impugned order. Even otherwise it has been held in the authorities referred above that there is no restriction on the power of trial Court to pass an order under Section 249-A Cr.P.C. and 265-K Cr.P.C. without framing any charge. This being the factual position the impugned order dated 17.9.1986 does not suffer from any illegality. Consequently appeal fails and is hereby dismissed. (K.K.F.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 267 (DB) Present: muhammad islam bhatti and ghulam sarwar sheikh, JJ. STATE-Appellant versus Syed TASAWAR HUSSAIN NAQVI-Respondent Crl. Appeal No. 955/91, dismissed on 30.9.1998. Explosive Substances Act, 1908 (VI of 1908)-- —-Ss. 3 & 4--Bomb exposion-Allegation of--Acquittal--Challenge to-Star witnesses did not sprout a single word to ensnare respondent/accused— There were inherent lacunas-Only piece of evidence, testimony of approvers stands shattered on bare fact that he was in police custody instead of judicial lock-up on relevant day-Statement of approver without an iota or scintilla of corroborative evidence cannot lead, to conviction under any canon of law-Meagre evidence, adduced by prosecution, can hardly afford valid basis for conviction of respondent- Re-appraisal of evidence, data and material on record, affirms conclusioneduced by learned trial court (acquittal)-Appeal dismissed. Pp. 271] A, B, C & D Mr. Iqbal Ahmd Khichi, A.A.G. for State. Kh. Sultan Ahmad, Advocate for Respondent. Date of hearing: 30.9.1998. judgment Ghulam Sarwar Sheikh, J.--On account of an explosion, at 9-15 P.M. on 2.5.1986, in Room No. 97 of Qasim Hall, a hostel of University of Engineering and Technology, Lahore, Raja Iqbal Hussain, a Student of Civil Engineering/President of Imamia Students Organization and Tanseer Hussain former President of Imamia Students Organization Sargodha and Faisalabad Divisions, were killed, while, respondent/accused, Abdul Hassan, 7 Safi-Ullah and Kokab sustained injuries due to said blast. On the report of PW3, Dr. Muhammad Mansha Professor and Director of Students Affairs FIR No. 173 dated 2.5.1986, which, set the law into motion, was registered at Mughalpura Police Station, Lahore. 2. Actually a conspiracy was allegedly hatched to cause an explosion in American Bank at Lahore. As a sequal thereto respondent/accused and is companions namely, Tanseer Hussain and Abul Hassan PW2 gathered in Room No. 97, in occupation of Raja Muhammad Iqbal, where, Tanseer Hussain, brought a brief-case containing a steel box about 6" x 3", one battery cell and a watch attached to botton of brief-case with a solution tape. Taking out 5/6 candle type articles from his pocket, he then fitted it in steel box. A map, wherein, building of American Bank was indicated and shown, was also prepared. Tanseer Hussain explained the plan of placing said briefw case in the target building. After taking out a hand-grenade from the pocket of his Shalwar, its working was demonstrated and then placed in said room. "^ A revolver was also handed over to the spondent/accused by Tanseer Hussain. Then ablution was performed by all three present in rcom, venue of incident, where-after Tanseer Hussain allegedly opened the brief-case. He was trying to connect the loose wire of steel box, with battery cell, when, all __ of a sudden, it exploded and caused/resulted the havoc as detailed above. Respondent/accused was booked there-in and ultimately tried on he charge under Sections 3/4 of Explosive Substances Act, 1908. Such trial ulminated into acquittal of respondent vide judgment dated 4.6.1991 passed and recorded by learned Judge, Special Court, constituted under the uppression of Terrorist Activities (Special Court) Act XV of 1975. Same has een assailed in instant appeal under Section 417 Cr.P.C. 3. During trial, as many as 14 witnesses, including two injured PWs, were examined by the prosecution. Abul Hassan PW2 testified as an approver where-as PW3 Doctor Muhammad Mansha is the complainant. So called eye-witness of the occurrence, Safi Ullah, PWS, did not support the prosecution case and was declared hostile. Like-wise PW10 Sohail Aftab Qureshi, a recovery witness, was declared hostile to prosecution as, he, too, opted not to support its case. Dr. Amer Ah' PW6 conducted autopsy on dead body of Raja Muhammad Iqbal and Tanseer Hussain. PW11 Dr. Munir Ahmad had examined an unknown atient. PW7 Aslam Hayat Kalyar, Magistrate 1st Class recorded confessional statement of PW2 Abul Hassan while PWS Sardar Sher Afghan, Assistant Commissioner granted pardon to approver Abul Hassan and directed PW7 Aslam Hayat Kalyar to record statement of approver as also of Safi Ullah under Section 164 Cr.P.C. PWs. 9, 13 and 14 enumerated various steps of investigation carried out by them. Remaining prosecution vidence, comprising testimony of PWs 1, 4, and 12 is more or less of formal nature. 5. All incriminating features figuring in prosecution case were denied by the respondent/accused who, chose not to appear in dis-proof of allegations as envisaged by the provisions of law embodied in Section 340(2) Cr.P.C. No witness in defence was produced either. Main consideration leading to the exoneration of the respondent is the conclusion that accused Tassawar Hussain Naqvi was, in no way, esponsible for causing the explosion and the prosecution had failed to bring home the guilt. Instant appeal has been resorted to, with the otion that the case did not reach its logical culmination in shape of conviction of respondent/accused. 6. Learned Assistant Advocate General has lambasted the verdict with the assertion that faux-pas was committed in appraisal of prosecution evidence and testimony of PW2 Abul Hassan in particular. Also it has been impressed that sufficient corroboration is rendered by Ex. PD and even answer to question No. 14 in the statement under Section 342 Cr.P.C. as explosion and even presence of respondent at the time of incident are not denied and disputed. Learned Assistant Advocate General has further canvassed that these aspects have irect nexus with the conspiracy designed to damage American interests. According to him, all the participants/ conspirators i.e. the respondent, approver as also deceased were present in room No. 97 in the offing of execution of the plan, when, all of a sudden, blast, took place. It has been pointed out by learned Assistant Advocate General that recovery Memos. Ex. PO, PY and statement under Section 164 Cr.P.C. of PW5 Safi Ullah lend due corroboration to testimony of PW2, who, gave details of the incident without any contradiction. It has, therefore, been maintained that the prosecution had brought on record sufficient data and material to bring home the guilt of the respondent, who, could not be exonerated and rather no other conclusion than that of his guilt could be inferred. Judgment has, therefore, been termed to be laconic and perfunc­ tory on various counts, and reversal of the same has, therefore, been urged. 7. Conversely, learned Counsel representing the respondent, has, inter-alia, contended that the testimony of PW2 was rightly discarded as the proceedings granting him pardon and confessional statement recorded by PW7 Aslam Hayat Kalyar are of little significance, because, he was in police custody on the relevant day despite having been remanded to judicial lock-up on 16.12.1987. According to him, Abul Hassan PW2 can neither be given the status of an approver nor his testimony is worth reliance and credence. Learned Counsel for the respondent has pointed out that there is absolutely no evidence to suggest tacit consent or concord of respondent to alleged conspiracy, if any. Further pointing out his illegal confinement and orders in this context during proceedings of "habeas corpus petition", Learned Counsel for the respondent, has remarked that rope was put around the neck of the respondent simply to indicate his detention under the law. Accordingly, dismissal of appeal has vigorously been demanded. 9. Following illuminating observations made in The State vs. Muhammad Sharif and 3 others (1995 SCMR 635) furnish guide-line on the subject :-- "There is marked difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal. In the appeal against acquittal, the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the Court or Court below after proper analysis of evidence made or done according to law. In the acquittal appeal, interference is made only when it appears that there has been gross mis­ reading of the evidence which amounts to miscarriage of justice. In an appeal against acquittal, Supreme Court could not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused. This approach is slightly different from that in an appeal against conviction in which leave granted only for appraisement of evidence, which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that acquittal carries with it two well-accepted presumption, firstly, initial presumption that till found guilty, accused is innocent, and secondly, that after the trial Court below has confirmed presumption of innocence. Supreme Court would not interfere with the acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible." 10. Similarly, well-settled principles for appreciation of appeal against acquittal as expounded and laid down in 1994 S.C.M.R. 1928 are as follows :-- (i) that with the acquittal, the presumption of innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the assumption of innocence; (ii) that unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record. Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to come to a different conclusion; (iii) that unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere; (iv) that unless the judgment of acquittal is perverse and the reasons therefor are artificial and ridiculous, the Supreme Court would not interfere; and (v) that the Supreme Court, however, would interfere, in exceptional cases on over-whelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose. 11. In the instant case, fabric woven by the prosecution before trial, went into tatters during trial and exposed every crude attempt to serious & sizzling infirmities. Star witnesses like PW2 and PW5 did not sprout a single word to ensnare the respondent. Even an exercise of serious ratiocination in this context, is bound to end in smoke, because of inherent lacunas. 12. Be that as it may, only piece of evidence, testimony of PW2 Abul ^. Hassan, so called approver, stands shattered on the bare fact that he was in police custody instead of judicial lock-up on relevant day. As a necessary corollary, whole edifice, erected on his confessional statement Ex. PD, is bound to crumble down like house of Cards. As a matter of fact, prosecution case stands impaired beyond repair and was rightly taken so by learned trial Judge, who, in no, way, seems to have fallen in ignoratio elenchi while treating the testimony of PW2 as to be of little value. As such contentions, advanced by learned Assistant Advocate General are palpably fallacious. 13. By no stretch of imagination, deposition of PW2 Abul Hassan can be taken to be apodictic as if he spoke as an oracle. Seemingly he prevaricated with impunity. Such statement and that too without an iota or scintilla of corroborative evidence cannot lead to, conviction of the respondent under any cation, of law. Meagre evidence^ adduced by the prosecution, can hardly afford valid basis for conviction of respondent. 14. When tested on the touch-stone, laid down by august apex Court, prosecution case has no legs to stand. Re-appraisal of evidence, data and material on record, affirms the conclusions deduced by learned trial Court, and rather no other view is possible in wake thereof. 15. Acquittal of respondent, accordingly, is neither exceptionable nor assailable. Appeal, concomitantly, merits dismissal and is hereby dismissed. (K.K.F.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Peshawar ) 271 Present: MUHAMMAD AZAM KHAN, J. NISAR AHMAD alias NISAR-Petitioner versus STATE-Respondent Crl. M. No. 1182 of 1998, accepted on 23.10.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Bail--Grant of-Prayer for-Offence u/S. 419/420/468/471/34- Penal Code, 1860-Recovery of some forged document was affected from house and press of accused but offences for which accused have been charged do not fall within prohibitory clause of Section 497 Cr.P.C.~ Punishment for all offences is less than 10 years and in such like cases grant of bail is a rule while refusal an exception-Bail granted. [P. 273] A Mr. Muhammad Jamil, Advocate for Petitioner. Qamrun Nisa, Advocate for State. Date of hearing: 23.10.1998. judgment Both the bail applications i.e. Cr. M. No. 1182 of 1998 (Nisar Ahmad alias Nisar v. The State) and Cr. M.No. 1145 of 1998 (BaharAli son ofFazal Gul and Khan Muhammad Son of Jan Muhammad v. The State), arise out of F.I.R. No. 13 dated 12.9.1998, Police Station CID, Peshawar under Sections 419/420/468/471/34 P.P.C. have been preferred by the aforesaid petitioners against the order of Additional Sessions Judge, Peshawar dated 26.9.1998, whereby their prayers for bail was not acceded to. As both the petitions arise out of the same F.l.R. and against the same order of the learned Additional Sessions Judge, therefore, I propose to dispose them of by this single judgment. 2. The prosecution case in brief is that on prior information Aziz Muhammad Khan, Inspector CID, Peshawar obtained seach warrants for conducting raid on the Printing Press as well as the house of Nisar Petitioner situate in Qissa Khawani Bazar, Peshawar on 12.9.1998 under Section 98 Cr.P.C. It was alleged that the Petitioner Nisar was dealing in the a{ printing of forged documents, certificates and stamp papers, Driving licenses fo etc., and after preparing the same were distributing through his agents in different parts of the ountry. The C.I.D. staff headed by Aziz Muhammad Khan accordingly on 12.9.1998 conducted the raid on the press of the Petitioner (Nisar) and his house respectively. The raiding party during the search recovered 93 forged items of various categories. This recovery was effected in the presence of Pio Noor S.I. C.I.D. and a local witness namely Muhammad Yaqopb. During the search Nisar Ahmad was arrested alongwith two petitioners namely, Bahar Ali and Khan Muhammad who were allegedly his employees in the aforesaid illegal trade. After the arrest case was registered and the petitioners were challaned. During the investigation Petitioner Bahar Ah' made a confessional statement before a Magistrate on 16.9.1998 which is not a detailed statement nd is exculpatory in nature. The prosecution case mainly rests on the evidence of the two marginal witnesses and the confessional statement of Bahar Ali, the offences for which the petitioners are charged entails punishment upto 7 years R.I. are almost bailable and do not attract the prohibitory clause of Section 497 Cr.P.C. 3. I have examined the record and have heard the learned counsel for the parties. 5. The learned counsel for the petitioners contended that the search conducted by the Investigating Officer was not in accordance with the ^ provisions of Section 103 Cr.P.C., as only one witness from the puhlic had been associated by the police as a witness to the search. Besides it is alleged that the two petitioners namely, Bahar Ali and Khan Muhammad were employees of the principal accused namely Nisar Ahmad and they have no involvement with the printing of the fake documents. Learned counsel for the petitioner, Nisar, contended that the recovery of forged documents had not been proved against his client by the Investigating Officer as the same was not in accordance -with the provisions of Section 103 Cr.P.C., therefore, x he was of the view that the case of his client was that of further enquiry and he was entitled to bail. 6. It is true that the recovery of some forged documents was effected from the house and press of the accd: (Nisar) but the offences for which Nisar and two others have been charged do not fall within the prohibitory ~_ clause of Section 497 Cr.P.C. The punishment for all the offences is less than 10 years and in such like cases the grant of bail is a rule while the refusal is exception. 7. In similar matters already this Court in Cr. M.No. 237/98 (Mujibur Rehman and Bahadur Rahim v. The State) and Cr. M. No. 945/ 1998 (Abdul Manan etc. v. The State) decided on 22.9.1998, bail was allowed to the petitioners of those cases. According these applications are accepted "7" and the petitioners are allowed bail on furnishing bail bonds in the sum of Rs. 3,00,000/- (three lacs) with three sureties each in the like amount to the satisfaction of the Judicial Magistrate, Peshawar who shall see that the sureties are local and men of means. — (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 279 Present : muhammad naseem chaudhri, J. GHULAM ABBAS-Petitioner versus STATE-Respondent Crl. Misc. No. 5667-B of 1998, accepted on 1.12.1998. ~~ Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Bail--Grant of--Prayer for--0ffence u/S. 395 Pakistan Penal Code, 1860-Further inquiry-No incriminating evidence against appellant/ accused-In challan indictment petitioner was placed in Column No. 2 after being declared as innocent-Even at charge sheet he was not mentioned as an accused-Although police attached material with judicial file that some cases were pending against co-accused but no list attached f regarding previous involvement of petitioner-Mere incorporation of name of accused in F.I.R. was not enough to withhold concession of bail- Bail granted. [Pp. 280 & 281] A Mehar Ahmad Bakhsh Bharwana, Advocate for Petitioner. "" Syed Zulfiqar Alt Bokhari, Asstt. A.G. for State. Mr. M.R. Raza, Advocate for Complainant. Date of hearing: 1.12.1998. judgment Muhammad Khan complainant got recorded FIR No. 193 dated 28.3.1998 at Police Station Saddar Jhang under Section 395 Pakistan Penal Code with the allegation that on the night falling between 20/21.3.1998 Ghulam Abbas petitioner-accused armed with sota alongwith his co-accused Mumtaz Hussain armed with .12-bore gun, Ashraf armed with revolver as well as Riaz Husain, Muhammad Nawaz, Zafar and Abdus Sattar armed with sotas trespassed his house at 1.00 A.M. while they were sleeping. Mumtaz Hussain imed the firearm who was objected to by his maternal uncle Sher Muhammad who was injured by all the accused persons. The ear rings were removed from the ears of Mst. Shamim. Sher Muhammad was medically examined and the Medical Officer found the injuries on his person. Ghulam Abbas was arrested on 4.5.1998 whose bail application has been dismissed by both the learned lower Courts and he has filed this petition before this Court for his admission to bail. I have heard the learned counsel for the parties as well as the learned Assistant Advocate General for the State and gone through the record before me. It is proper to record that on 18.5.1998 the police submitted the written request before the Duly agistrate for the discharge of Ghulam Abbas who passed the order under Section 167(2) of the Code of Criminal Procedure to place the matter before the learned Area Magistrate on 1.5.1998 and sent him to the judicial lock-up for three days. The police completed the investigation and submitted the challan by placing Ghulam Abbas Petitioner in Column No. 2 who was lared innocent and was placed at the mercy of the Court. The learned Area Magistrate charged the accused persons on 24.8.1998 under Section 395 Pakistan Penal Code. It is proper to xpress that in the charge Ghulam Abbas has not been named as the accused in terms of Section 242 of the Code of Criminal Procedure as he is not named as the accused. However, when the ccused were examined after the formulation of the charge, Ghulam Abbas was also examined when he pleaded not guilty. It is also proper to express that even though the accused are said to ave committed the lurking house trespass by night, no charge has been framed against them under the relevant penal section. 2. I have heard the learned counsel for the parties as well as the learned Assistant Advocate General and gone through the record before me. In my view, the matter is being taken up in a perfunctory manner by the learned Area Magistrate and both the learned lower Courts have disposed of the bail application in routine without going into the merits of the case of the prosecution against Ghulam Abbas petitioner-accused. I am tempted to express that a bail application has to be disposed of within the framework of Section 497 of the Code of Criminal Procedure. As expressed above, the police submitted the written request before the learned Duly Magistrate for the discharge of Ghulam Abbas accused as no incriminating evidence could be collected. The matter was sent to the Daqa Magistrate and was fixed for 21.5.1998 vide order dated 18.5.1998. Thereafter nothing happened. Even in the challan indictment Ghulam Abbas Petitioner has been placed in Column No. 2 after being declared as innocent and put at the mercy of the Court Even in the charge-sheet he is not mentioned as an accused at the appropriate place even though in the tile it is narrated that the case is pending against Ghulam Abbas and others. Keeping in view the aforesaid aspects of the matter, I am in full agreement with the learned counsel for Ghulam Abbas petitioner-accused who laid the emphasis before me that the involvement of Ghulam Abbas petitioner-accused is a question of further inquiry. An accused against whom the prosecution has not been able to collect any material who is desirous to get him discharged need not be retained in the judicial lock-up as his said retention would be simply punishment without trial and conviction. It is pertinent to mention that even though the police has attached the material with the judicial file that some cases are pending again st Mumtaz Hussain and Muhammad Nawaz coaccused, no list has been attached with respect to Ghulam Abbas petitioneraccused about his previous involvement in any other criminal case. I, therefore, do not agree with the learned Assistant Advocate General who canvassed that Ghulam Abbas is named in the FIR and he is not entitled to be admitted to bail. I would express that mere incorporation of the name of the accused in the FIR is not enough to withhold the concession of bail. 4. For what has been said above, I accept this application and admit Ghulam Abbas petitioner-accused to bail in the sum of Rs. 50,000/- (Rupees Fifty Thousand only) with one surety in the like amount to the satisfaction of the learned Area Magistrate with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr. C. (Karachi) 281 (DB) Present : SYED DEEDAR HUSSAIN SHAH AND ZAFAR HADI SHAH, JJ. SADAIN and another-Applicants versus STATE-Respondent Criminal Bail Nos. 670 and 2053 of 1997, allowed on 1-1-1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 497 (3rd proviso)-Bail after arrest-Offence u/Ss. 3 and 4 of Ordinance IV of 1979 read with Ss. 6/8 and 9 of Control of Narcotics Substances Ordinance, 1995 and Section 51 of Anti-Narcotic Substance Act, 1997-It is an unfortunate aspect of case that so many times bail applications on behalf of applicants were moved which were rejected by courts, even then after lapse of more than two years, prosecution did not take efforts to produce accused before trial Court so that trial could be concluded- Chemical Examiner's report even today is not available-Delay occasioned in conclusion of trial is not attributed to accused/applicants-Previous conviction is not alleged against petitioners-No other criminal case is pending against them-Provisions of S. 51 of A.N.S. Act, 1997 were not available in Anti Narcotics Ordinance 1995-Bail allowed. [P. 284 & 285] A & B 1997 SCMR 361 ref. Mr. Shuaib Shibli, Advocate for the Applicants. Shaikh Azizur Rehman, Advocate for the A.G. Date of hearing: 1.1.1998. order The facts of the prosecution case are that on 17.10.1995 complainant Pir Bashir Ahmed Sarhandi, Platoon Commander, University Force, Jamshoro, received wireless message from S.P. to arrive at L.M.C Octroi Post alongwith subordinate staff, Inspector Pir Bashir Ahmed Sarhandi alongwith ASI Rana Jangsher, PC Muhammad Saleem, PC Khursheed Ahmed, PC Ghulam Fareed, PC Ziauddin, PC Hoth Khan, PC Lai Zaib, PC Muhammad Ismail, PC Rahim Bux, PC Amir Hussain, PC Abdul Sattar, PC Majid Hussain, PC Driver Fazal-ur-Rehman proceeded there on Government vehicle after making usual entry in the police roznamcha. At about 1.00 P.M. Sikandar Ali Mangsi S.P. Kotri arrived there and told that v he has received spy information that narcotic dealer Zahir Shah alongwith his associates would take narcotics for sale on Suzuki No. U-0911 from Jamshoro Colony, as such complainant Inspector Pir Bashir Ahmed was ordered to observe Naka Bandi for their arrest, at about 1.30 p.m. they saw the above suzuki coming from Railway Crossing on Super High Way. Seeing police two persons got down from suzuki and ran away in jungle, to whom they identified as Zahir Shah and Muhammad Moosa Pathan. One person jumped down from suzuki and fell down and received injury on his left arm. He was caught hold, another person in the suzuki was also dragged out from the suzuki. The injured person disclosed his name as Sadian son of Muhammad Khan Pathan and another disclosed his name as Zahid son of Habibullah Pathan. Both were arrested and their person was searched, from the side pocket of the shirt of the applicant Sadain one bundle in plastic bag containing Charas was secured and from pocket of waistcoat of Zahid one , bundle of opium plastic bag was recovered, thereafter suzuki was searched and from its dash board two bundles of Charas in plastic bag were secured. Charas secured from Sadain weighed one kilogram whereas opium secured from Zahid weighed one kilogram. Police also secured two kilogram of charas from the dash board of the suzuki. From the above bundles of Charas and opium 50 grams were taken as sample for examination of Chemical Examiner. One National Identity Card and Rs. ISO/- were also secured from Sadain. Mashirnama for seizure of suzuki, Charas and opium was prepared on the spot by Inspector Pir Bashir Ahmed Sarhandi in presence of mashirs ASI Rana Jangsher and P.C. Muhammad Saleem. After usual investigation charge sheet against the applicants was submitted by the police for the offences under Sections 3 and 4 of Prohibition v (Enforcement of Hadd) Order 1979 read with Sections 6/8 and 9 of the Control of Narcotic Substances Ordinance 1995 before the ADM Kotri on 23.10.1995. Bail application on behalf of applicants/accused was moved before the Special Judge, Narcotics, Dadu which was rejected by the learned trial ^ Court vide order dated 23.12.1997. Hence applicants have approached this — Court for bail. Mr. Shuaib Shibli, learned counsel for the applicants contends that accused/applicants are in custody since 17.10.1995, since then even formal charge has not been framed by the learned trial Court, that not on a single day the accused/applicants were produced by the jail authorities before the trial Court, chemical analyser's report has not yet been obtained/submitted by the police before the trial Court, delay whatsoever is not attributed to the accused/applicants or anybody acting on their behalf. That in view of the provisions of Section 9 of the Anti-Narcotic Substances Act 1997 maximum punishment provided for the offences is upto seven years, accused/applicants are not required in any other case and they are not previous convict. The learned counsel refers (1) Zahid Hussain Shah Vs. The State (PLD 1995 S.C. 49) (2) Abdul Khalique vs. The State (PLD 1990 Karachi 448); (3) Gul Muhammad and 2 others vs. The State (1987 P.Cr.L.J. 737); (4) Shakil vs. The State (PLD 1997 Kar. 172); (5) Jaggat Ram vs. The State (1997 SCMR 361); and an un-reported judgment of a D.B. of this Court in Cr. Bail Application No. 602/97. Mr. Shaikh Azizur Rehman, the learned counsel for A.G. contends that in view of the provision of Section 51 of the Anti-Naroctic Substances Act 1997 accused/applicants are not entitled to be released on bail by this Court as the punishment provided is death. However so far the facts stated by the learned counsel for the applicants, the State counsel does not controvert the same. He raises objections for grant of bail only in view of the provisions of Section 51 of the Anti-Narcotic Substances Act 1997. We would like to discuss the case law citied by Mr. Shuaib Shibli, learned counsel for the applicants. (1) (PLD 1995 S.C. 49). Their Lordships have held that right of an accused person to be enlarged on bail under the 3rd proviso to Section 497 (1) Cr.P.C. is a statutory which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the third proviso of Section 497(1) is not left to the discretion of the Court but is controlled by that proviso. The bail under the third proviso to Section 497(1), Cr.P.C. can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf. (2) (PLD 1990 Kar. 448). In this case Full Bench of this Court while considering the provisions of Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) Sections 7, 561-A and 426 Cr.P.C. observed that while power of appeal is given to the High Court, power of grant of bail has been expressly taken away by mentioning in clear language that "no order can be passed under Section 426, Cr.P.C. Expression no Court in Section 7 includes High Court hearing appeal. High Court under Section 561-A Cr.P.C. however, has power to make such orders as may be necessary to give effect to any order under Criminal Procedure Code or to prevent abuse of process of any Court or otherwise to secure ends of Justice. (3) (1987 P.Cr.L.J. 737). Learned D.B. of this Court has observed that power of High Court under Section 497 Cr.P.C. to grant bail to an under-trial prisoner, facing trial before a Special Court constituted under Act of 1975, held remained unaffected and High Court could grant bail on any grounds available under S. 497, Cr.P.C. (4) (PLD 1997 Kar. 172). Learned D.B. of this Court in this matter held that where the case of accused clearly falls under the third proviso of Section 497(1), Cr.P.C. accused is entitled to bail as of right leaving no discretion with the Court. (5) (1997 SCMR 361). Their Lordships of the Supreme Court have observed that since accused was neither involved in any other case nor he had ever been prosecuted earlier in any case. Nothing was available on the record in support of any other criminal activity or criminal conduct of the accused which could lead to the conclusion that he fell within the category of hardened, desperate or dangerous criminals. Mere fact that at the time of the commission of the offence the accused was allegedly found transporting heroin during day time on a donkey cart was not sufficient to hold him as a hardened, desperate or dangerous criminal and bail was granted. It would be pertinent to mention here that prior to this bail application, bail application bearing No. 66 of 1996 was filed on behalf of the applicants which was dismissed by a D.B. of this Court vide order dated 6.3.1996. We are also conscious of the fact that offence of drug trafficking no doubt has created problems for the country and the society at large and this menace can only be curbed provided Government Functionaries assigned the job of investigation, complete the investigation in time and also obtain necessary circumstantial evidence like that of Chemical Examiner's Report, in this case it is unfortunate aspect of the case that so many time bail applications on behalf of the applicants were moved which were rejected by the Courts even then after lapse of more than two years the prosecution did not take efforts to produce the accused before the trial Court so that trial could be concluded. The applicants even were not produced before the trial Court so that charge could be framed, chemical examiner's report which is very necessary to substantiate the claim of the prosecution. That the substance so recovered actual falls under the provisions of the Anti Narcotic Substances Act 1997 which report even today is not available with the learned counsel for the State. The delay whatsoever occasioned in the conclusion of the trial in any case is not attributed to accused/applicants or anybody acting on their behalf and previous conviction even is not alleged against the accused/applicants. Moreover according to the prosecution even no other criminal case is pending against the applicants/accused. The provision of Section 51 of the Anti-Narcotic Substances Act 1997 were not available in the Anti-Narcotics Ordinance 1995 which was promulgated on 8.4.1995 whereas Anti-Narcotic Substances Act, 1997 has been promulgated on 12.4.1997. Advisedly we refrain to dilate upon the applicability of Section 51 of the Anti Narcotics Substances Act, 1997 at this stage which may prejudice case of either party before The case law cited by Mr. Shuaib Shibli Advocate on behalf of the plicants is relevant, helpful and applicable to the case of the present ., plicants. Under the circumstances mentioned hereinabove which we •x .jpectfully follow. For the foregoing reasons keeping in view the delay ccasioned in the conclusion of trial coupled with non-availability of Chemical Examiner's i.jport, non-pendency of any case against the applicants, even no previous t jnviction is alleged gainst the accused/appellants under the f rcumstances, prima facie case of the applicants at least requires nsideration for bail which accordingly is hereby granted and pplicants ay be released on bail on furnishing solvent surety in the sum of

. 7,00,000/- each with P.R. bond in the like amount to the satisfaction of e trial Court. Before parting with this order we would like to observe that in this cis«j gross negligence is attributed to Government functionaries viz P' iice/jail authorities and Chemical Examiner. A copy of this order be sent t the Secretary Home Department, Sindh so as to hold proper inquiry and i'ke suitable action against the responsible officers in this matter. The (• tcome of the inquiry and action so taken may be communicated to this C irt Order accordingly. (MYFK) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 285 Present: raja muhammad khurshid, J. ABDUL LATIF-Petitioner versus NASIR and 3 others-Respondents Crl. Misc. No. 4980/B of 1998, accepted on 5.11.1998. Criminal Procedure Code, 1898 (V of 1898)- —Ss. 497(5) & 498—Pre-arrest bail-Cancellation of-Prayer for—offence u/S. 10 of Offence of Zina (Enforcement of Hudood) Ordinane, 1979- Fornication/Zma-Allegation of- ornplaint upported by enquiry report of District Khidmat Committee and others close relatives—Held: Respondents were prima facie involved in an offence which fall within prohibitory lause of Section 497 Cr.P.C.-They had actually no case for bail before arrest-Pre-arrest bail is granted to be in exceptional cases, such as where there are allegations of mala fide f police or innocence of accused is manifestly palpable from bare reading of F.I.R. or from material placed before Court-In other cases, investigation should be allowed to take its sual course-Tentative assessment of material made it a case of bail cancellation-Bail cancelled. [P. 287] A Miss Shaista Kaiser, Advocate for Petitioner. Ch. Muhammad Ilyas Jhammat, Advocate for State assisted by Mr. Muhammad Azam Awan, Advocate for Respondents. Date of hearing: .11.1998. order A case under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against Respondents Nos. 1 to 3 at P.S. Jalalpur Bhattian, District Hafizabad vide FIR No. 241 dated 2.8.1998. The respondents aforesaid were admitted to pre-arrest bail which was later on confirmed by Mr. Muhammad Zahoor Abbasi, learned Sessions Judge, Hafizabad vide his order dated 12.8.1998. 2. The order of the learned Sessions Judge is assailed on the ground that the principle of pre-arrest bail was totally ignored; that the offence of Zina was made out from the evidence collected by the prosecution; and that the respondents, after earning the bail, were yet indulging in committing Zina with each other. It was, therefore, prayed that their bails be cancelled. 3. I have heard learned counsel for the parties and find that this case was registered at the application moved by the residents of the village Kotla Anandan through Abdul Latif son of Muhammad Siddique. It was alleged in the application that Mst. Bilqees respondent was running a brothel house; that persons of immoral character were on visiting terms with her; that she was asked to stop the visits of such persons but she managed to call the complainant to the Police Station through her influence and got him insulted. It was added in the petition that on the preceding night, some persons while deadly intoxicated were watching blue prints in a gay meeting. The whole village was cited to be a proof for such type of immorality. This petition was addressed to the member, 'Khidmat Committee' District Hafizabad who onward submitted it to the Chairman, 'Khidmat Committee' for further action. The 'Khidmat Committee' prepared an enquiry report (Annexure 'C') in which it was found that the respondents were having illicit relations and were committing Zina for which some witnesses were also cited. The enquiry report was signed by the Chairman and members of the 'Khidmat Committee which also included Rana Muhammad Suleman, Advocate (Chairman) and Ch. Akhtar Hussain DSP, Pindi Bhatian. In the meantime, some villagers also moved the District Magistrate by making an application regarding the aforesaid immoral activities. The enquiry was got conducted by the Deputy Commissioner, Hafizabad from Assistant Commissioner, Hafizabad who submitted the report vide No. PA/AC; 41 dated 2.7.1998 in which he concluded that though there was no tangible proof of illicit relations but Nasir respondent used to visit the house of Bilqees respondent to which the latter had permitted. However, he added that it can be safely termed that Bilqees and aforesaid Nasir Faqeer were committing adultery. The Assistant Commissioner also reported that the whole village had turned against the ways of Nasir and Bilqees due to which

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 288 Present: raja MUHAMMAD khuhshid, J. mSHAD-Petitioner versus STATE-Respondent Crl. Misc. No. 5604/B of 1998, accepted on 2.11.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Bail--Grant of--Offence u/S. 10/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979-There was no allegation of Zina against petitioner although he had been shown presence at the time of abduction of complainant-Rule laid down in 1982 P.Cr.L.J. 1165 (Lahore) will be attracted-Bail granted. [P. 289] A Ch. Mi Muhammad, Advocate for Petitioner. Ch. Nizam-ud-din Arif, Advocate for State. Date of hearing: 2.11.1998. order A case under Section 10/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is registered against the petitioner and others at Police Station, Khanqah Dogran, District Sheikhupura vide FIR No. 222/98 dated 28/6/98 on the ground that Mst. Kausar Bibi a sister of the main accused namely Nosher went to the house of the complainant a married woman and took her out on some pretext while her co-accused were present outside. Out of them Nosher accused caught hold of her and boarded her in a toyota wagon by showing her mouzer and latter on took her to his house in his village and committed zina-bil-jabr with her. This occurrence took place on 8.6.1998 whereas according to the complainant, she came out of the clutches of the accused on 28.6.1998 and on the same day she lodged report with the police without any delay. 2. The learned counsel for the petitioner has submitted that FIR was lodged with the delay of 20 days. In this respect he has contended that the complainant was abducted by the accused persons, but some body on her behalf i.e. her husband or relative should have lodged the report with the police. The absence of filing the report during the period of 20 days allegedly made the case of the prosecution doubtful. 3. Secondly it is contended that no active part is attributed to the petitioner for the commission of zina-bil-jabr with the complainant although he has been shown to be present at the time of abduction of the complainant. It is therefore, submitted that in such like cases, offence committed falls under Section 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which is only punishable with 7 years imprisonment As such the offence not 4. order A case under Section 10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against the petitioner on the ground that he committed zina-bil-jabr with Mst. Bashiran Bibi daughter of Mehr All complainant, while she had gone out to ease herself. 2. The petitioner was allegedly armed with a pistol and on pistol point he put off the shalwar of the victim and committed zina-bil-jabr with her. The noise raised by the victim attracted the complainant besides Allah Ditta and Ashraf PWs. On seeing them the accused ran away. 3. The learned counsel for the petitioner has submitted that occurrence had allegedly taken place at 6.00 PM on 16.3.1998 whereas the FIR in this case was lodged on 2.4.1998 i.e. after about 16 days; that medical report does not support the prosecution version in respect of commission of zina-bil-jabr. In this regard, it is contended that report of the Chemical Examiner was negative whereas according to Medico Legal Examination of the victim, the W.M.O had made the observation that she was used to sexual intercourse. Opinion about the fresh intercourse was to be given after the report of vaginal swabs and chemical analysis was received from the Chemical Examiner. On receipt of the report of Chemical Examiner, the W.M.O made the final opinion that the victim was not subjected to sexual intercourse. 4. Lastly it. was contended that recovery of pistol was not effected from the petitioner and that Investigating Officer also came to the conclusion that it was only an attempt of Zina and the story that she was subjected to sexual intercourse was not substantiated by the medical evidence. A report under Section 173 Cr.P.C. was submitted whereby the petitioner was challaned under Section 18, Offence of Zina (Enforcement of Hudood) Ordinance, 1979. 5. The learned counsel for the State opposed the bail petition on the ground that the delay per se was not relevant in such like cases as the people were reluctant to report such matters which touch the prestige of their women folk. Hence the delay in lodging the FIR was not crucial. 6. In reply the learned counsel for the petitioner relied on Khan Muhammad vs. State reported as PLD 1986 Federal Shariat Court 262, to contend that delay in filing the FIR in the given circumstances had rendered the case for further inquiry particularly when the medical evidence also did not support that the victim was subjected to sexual intercourse. Reliance was A also placed on Shabbir Ahmad Watto vs. The State reported as 1983 P.Cr.L.J. / ]2014 and Muhammad Siddique vs. The State reported as 1985 P.Cr.L.J. 658 (Lahore) to argue that vaginal swabs were not found stained with semen nor any mark of violence was present on the person of victim being habitual of sexual intercourse. 7. In view of the foregoing facts, if appears to be a case of further inquiry. Accordingly allowing this petition, the petitioner is admitted to bail in the sum of Rs. 20,000/- with one surety in the like amount to the satisfaction of learned trial Court. (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 291 Present: raja muhammad khurshid, J. MUHAMMAD AZAM, SUB-ENGINEER, IRRIGATION DEPTT. SARGODH A-Appellant versus STATE-Respondent Crl. Misc. No. 1 of 1998 in Crl. A. Nos. 682 & 683 of 1998, dismissed on 22.10.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 426(l)--Suspension of sentence (5 years)--0ffence U/S. 5(2) Prevention of Corruption Act, 1947—Sub-Engineer and S.D.O. in Irrigation Department after accepting heavy bribe from some zamindars supplied excessive water than allocated quota-Allegation of-Under Section 426(1) Cr.P.C. if sentence is exceeding 3 years but did not exceed 7 years and f appeal has not been decided within a period of one year of conviction appellant/convict, the latter would have statutory right to ask for bail, refusal of which would be an exception— Ex-facie judgment of learned trial Court was based on evidf^e consisting of witnesses who had apparently no malice or ill-will against appellant/convicts-Without entering into deeper appreciation of case on merits, there seems to be no good ground to be released petitioners on bail-Application dismissed. [Pp. 292 & 293] A & B Malik Muhammad Akram Khan Awan, Advocate for applicant (in Crl. A No. 682 of 1998). Mr. M.A Zafar, Advocate for Applicant (in Crl. A No. 683 of 1998). Mr. Ijaz Ahmad Bajwa, Advocate for State. .-/" Mr. AH. Masud, Advocate for State. Date of hearing: 22.10.1998. order Since both the petitions have arisen out of common judgment for which two separate appeals have been preferred raising similar questions of " ~~ law and facts, therefore, both the criminal miscellaneous applications are proposed to be disposed of by single order. 2. The applicant was working as Sub-Engineer in the Irrigation Department, Sargodha and his co-accused Muhammad Idrees and also a co-appellant was his S.D.O at the relevant time. A complaint was lodged against both of them that they after accepting heavy bribe from some zimindars were supplying them excessive water than their allocated quota which was allegedly causing loss to the other share holder. A case was accordingly registered by the Anti-Corruption Department. Both the applicants/ appellants/convicts were sent up for trial and convicted by the learned Special Judge Anti-Corruption, Sargodha vide his judgment dated 4.9.1998 and sentenced to 5 years R.I under Section 5(2) of the Prevention of Corruption Act, 1947. They were further sentenced to fine of Rs. 10,OOQ/-each and in default of payment thereof to undergo one year R.I. 3. Suspension of sentence is prayed for both the accused on the ground that the case was mala fide and that the conviction was based on insufficient evidence which did not inspire confidence being interested and inimical. The water was allegedly increased by setting up a device known as ghurloo (hole) in the mogas in question, which being a matter of technical nature was not proved through the evidence brought on record. 4. Lastly it was contended that none of the witnesses had ever seen the accused setting up the aforesaid ghurloo and therefore, the case against the applicants/appellants/convicts was extremely doubtful. The suspension of sentence is prayed while relying on Khalil-ur-Rehman vs. Muhammad Afzal and another reported as 1998 SCMR 523. 5. The learned counsel for the State opposed the suspension of sentence and grant of bails to the applicants/appellants. In this regard, it was contended that both of them were sentenced to 5 years R.I. on dis­ interested evidence which belonged to the Irrigation Department and was of technical nature. The site was raided in the presence of a Magistrate and the ghurloos were detected in the presence of PWs, when applicants/appellants ere also present. It was therefore, submitted that there was no case for suspension of sentence. Reliance was placed on 1997 SCMR 1521. B 6. I have considered the foregoing facts and the case law cited at the Bar. There is no cudgle with the proposition that the Appellate Court has jurisdiction to suspend the sentence and to release the applicants/ appellants/convicts on bails if the circumstances of the case so require. However, order of suspension of sentence is to be supported by reasons to be recorded in writing as required by Section 426(1) Cr.P.C. In case, the sentence is exceeding 3 years but did not exceed 7 years and the appeal has not been decided within a period of one year of the conviction of the jjappellant/eonvict, the latter would have statutory right to ask for bail, |refusal of which would be an exception. 7. Keeping in view the above facts, it would be clear from the case in hand that the deeper appreciation of the merits of the case cannot be undertaken at this stage. It is sufficient to say that ex-fade judgment of the ilearned trial Court is based on evidence consisting of the Executive Engineer lof the Department and the raiding Magistrate who had apparently no malice 8. or ill-will against the applicants/appellant/convicts. In such a situation and for the limited purpose of the disposal of these applications and without entering into deeper appreciation f the case on its merits, there seems to be no good ground to release the petitioners on bail at this stage. Both the applications are accordingly dismissed. (K.K.F.) Applications dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C . ( Lahore ) 293 Present: raja muhamamd khurshid, J. AMANUEL LATIF and 2 others-Petitioners versus STATE-Respondent Crl . M. No. 5676/B/98, dismissed on 20.10.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497/498~Bail-Pre-arrest-Prayer for-Offence u/S. 188 Penal Code, 1860--Addl. Sessions Judges dismissed bail application on the ground that F.I.R. was got registered by Assistant Commission during discharge of his official duties and that there being no mala fide—Instead of surrendering to police, petitioners approached High Court for pre-arrest bail on the ground that action of complainant was mala fide and was motivated by a minority M.P.A. with whom they had some sort of differences-Held: Mere allegation that case was got registered by rivals of petitioners at the instance of a minority M.P.A. has no force at this stage because case was got registered by a public functionary discharging his public duties-Petition dismissed. [Pp. 293 & 294] A, B & C Petitioners Nos. 1 & 2 in person with Ch. Abdul Malik , Advocate. Date of hearing: 20.10.1998. order A case under Section 188 PPC is registered against the petitioners at P.S. Tarkhani , District Faisalabad vide FIR No. 231/98 dated 25.8.98 on the ground that they had illegally occupied the State land in violation of Section 144 Cr.P.C . 2. The petitioners applied for pre-arrest bail in the Sessions Court, Faisalabad which came up for hearing before Mr. Ikram-ul-Haque Chaudhry , learned Addl. Sessions Judge, Samundri District Faisalabad, who vide his order dated 14.10.98 dismissed the same on the ground that the FIR was got registered by Assistant Commissioner, Samundri in discharge of his official duties and that there being no mala fides, the petitioners had no case for pre-arrest bail. 3. Instead of surrendering to the police, the petitioners have approached this Court for pre-arrest bail on the ground that action of the complainant was mala fides and was motivated by a minority M.P.A. with B whom they had some sort of differences. Learned counsel for the petitioners at the very outset did not press the petition to the extent of Amanuel Latif nor did he appear before the Court to pursue this matter. The petition to the extent of Amanuel Latif is dismissed having not been pressed: 4. So far as other two petitioners namely Sarfeen Suba and Murad are concerned , the allegation against them is that they violated the provisions contained in Section 144 Ci.P.C . and encroached upon the State land and remained in illegal possession for which a case was got registered by the Sub-Divisional Officer, Barnimdri , District Faisalabad in discharge of his official duties. Hence, thwu b^iag i

o mala fides in the matter, the petitioners have no case for prearresi bail. The mere allegation that the case was got registered by the rhais cf the petitioners at the instance of a minority M.P.A. has no force at this stage because as stated above, the case was got registered by a public functionary discharging his public duties. In view of the above situation, the petitioners have no case for pre-arrest bail particularly when they moved the Sessions Court concerned and their petition was dismissed on merit. The petition being meritless is dismissed in limine . (K.K.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 294 Present: RAJA MUHAMMAD KHUESHID, J. MANZOOR AIIMAD-Petitioner versus STATE- Respondent Crl. M. No. 518C/B/98, dismissed on 26.10.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Bail-Grant of-Prayer for-offence u/S. 302/337-A(i)/337-(I)/337- F(iv)/148/149 Penal Code, 1860--Petitioner specifically named in F.I.R.- He was heading party of assailants causing fatal injuries to deceased, while armed with a gun-He as also firing from gun so that nobody hould come near and was exhorting co-accused to commit occurrence after deboarding victim from bus—He was also raising lalkara while firing that if any body dared to come near, he would meet ame fate as deceased-He had also given butt blows to deceased on his leg-­ Contention that there was some contradiction in medico-legal report in respect of injuries, would call for deeper appreciation at the time of trial nd not a bail stage-Bail application rejected. [P. 296] B & C (ii) Criminal Trial- —Each criminal case has its own facts and no universal principle can be laid down for dealing with all cases based on different facts. [P. 296] A Syed Tayyab Mahmood Jaffery, Advocate for Petitioner. Mr. Ashfaq Ahmad Ghumman, Advocate for State with Raja Ejaz Azia Khan, Advocate for Complainant. Date of hearing: 26.10.1998. order A case under Section 302/337-A(i)/337-P(i)/337-F(iv)/148/149 PPC was registered against the petitioner and others vide FIR No. 37/98 dated 8.2.98 at P.S. Saddar Pattoke, District Kasur on the ground that he while armed with a gun continued firing during the transaction when his coaccused caused injuries to the deceased Qamar Din aged 45 years which resulted into his death. 2. Learned counsel for the petitioner has submitted that the petitioner is innocent and has been found so in two investigations conducted in the case; that he has been involved on account of local grouping in the village; that there is no motive regarding the commission of offence; that the petitioner has been assigned no specific injury nor the same is 1 borne out by the medico-legal report; that the deceased after receiving injuries was admitted in the local hospital instead of sending him to a Specialised hospital such as General Hospital or Mayo Hospital, Lahore which allegedly shows that the deceased was not seriously injured; that the injuries of butt blows were not found on the person of the deceased as alleged; hat the petitioner ad taken up the plea of alibi that he was not present at the spot and had falsely been implicated in the case on the basis of cooked up evidence. Lastly, it is contended that had he been armed with a gun as alleged by the prosecution, there was nothing in his way to shoot at the deceased which he never did showing that story of the prosecution was concocted falsely; that ven no empty was recovered from the spot in order to show that the gun was actually used. Reliance was placed on 1997 P.Cr.L.J. 767 (Karachi), 1998 P.Cr.L.J. 968 (Karachi) and 1994 P.Cr.L.J. 1411 (Lahore). 3. Learned counsel for the State assisted by learned counsel for the complainant submitted that the petitioner was named in the FIR and was assigned a specific role during the occurrence; he was allegedly a spear-head of his accomplices as he was carrying gun and was making firing scaring every one not to come near the place of occurrence. Due to the above role on the part of the petitioner, the other co-accused took advantage and caused fatal injuries to the deceased; that the weapon of offence i.e. the gun was recovered from the petitioner which further linked him with the occurrence; that there was no material delay in filing the FIR as the complainant party took care of the deceased to save his life as he was seriously injured. The judgment Muhammad Akram complainant got recorded FIR No. 36 dated 20.1.1998 under Article 11 of the Offence of Zina (Enforcement of Hadood) Ordinance 1979 and Under Section 380 of Pakistan Penal Code at Police Station South Cantt, Lahore with the allegation that on 15.1.1998 his Mohallah Dar Muhammad Munir enticed away his wife Mst. Hanifan Bibi and his minor daughter Mst. Iram who were seen by Sherin, Kaka and Nikka PWs alongwith Muhammad Munir accused and his mother Mst. Hamidan. He alleged that his wife took away gold ornaments weighing four tolas and cash amount of Rs. 10,000/-. The law was set in motion. The investigation was conducted. On 3.2.1998 Munir Ahmad petitioner-accused was arrested. On 4.2.1998 the abductee Mst. Hanifan Bibi alongwith minor daughter Mst. Iram was recovered. On 4.2.1998 Mst. Hanifan was examined by the Investigating Officer under Section 161 of the Criminal Procedure Code when she deposed that she was married to her cousin Muhammad Akram out of whom she gave birth to her daughter Mst Iram aged 2^ years, that there were frequent disputes between the spouses, that on 15.1.1998 Muhammad Munir took her to the Darbar of Hazrat Data Sahib Lahore to pay the regards, that on getting the chance she went to her parents house in Mauza Lalliani from where she was recovered, that she did not take away any ornament or cash amount with her and that Munir Ahmad did not commit Zina with her. 2. Munir Ahmad petitioner made the application for his admission to bail which has been dismissed by the learned Additional Sessions Judge Lahore with the reasoning that his name is mentioned in the FIR and that he has committed an immoral Offence. Munir Ahmad petitioner has filed this petition before this Court to try his luck to be admitted to bail. 3. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. The contentions of the learned counsel for the petitioner-accused are that the statement of Mst. Hanifan Bibi recorded on 4.2.1998 by the police has made out that she did not take away the ornaments and the cash amount and that Munir Ahmad did not commit fornication with her. He added that there were routine quarrels between the spouses and that Mst. Hanifan Bibi went to the Darbar of Hazrat Data Sahib Lahore alongwith Munir Ahmad to pay her regards. According to him it is not a case under Article 11 or under Article 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979. On the contrary learned State counsel could not meet the aforesaid assertions. 4. At the very out set I would express that it is not a caseprima facie attracting Article 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 as Mst. Hanifan Bibi is a married lady. At the best the police could insert Article 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 which means that the S.H.O., Police Station South Cantt . Lahore is not aware of the statutory law of the country in the matter. With this passing remark I would express that it is a case of admission of Munir Ahmad petitioner-accused to bail. In this regard suffice is to express that the statement of Mst. Hanifan Bibi alleged abductee has to steal the eminence. She went to the Darbar of Hazrat Data Sahib Lahore alongwith Munir Ahmad accused and from there she went to the house of her parents in Mauza Lalliani District Kasur from where she was recovered. It is matter of common knowledge that an un-happy wife has to seek protection in the house of her parents. According to her she did not remove the ornaments and the cash amount. She has not been treated as the accused of the case. Rather she has been examined under Section 161 of the Code of Criminal Procedure as a prosecution witness. I express that in the circumstances it would be instructive to express for the guidance of the learned Additional Sessions Judge Lahore that bail application has to be disposed of on the basis of the material collected during the investigation after the registration of the First Information Report which is lodged by the complainant before the police to set the law in motion. If the bail application is to be disposed of on the basis of the recitals of the FIR then I make bold in expressing that no person would be able to save his skin. The bail application has to be disposed of within the frame work of Section 497 of the Code of Criminal Procedure. Viewed from the aforesaid perspective it can safely be expressed that the involvement of Munir Ahmad petitioner-accused is a question of further D inquiry. As such it is a case of admission of Munir Ahmad petitioner-accused to bail than to retain him in jail. 5. For what has been said above, I accept this application and admit Munir Ahmad petitioner-accused to bail in the sum of Rs. 25.000/- (twenty five thousand only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Lahore with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. (MYFK) Bail allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Peshawar) 300 (DB) [D.I. Khan Bench] Present: qazi M. farooq and malik hamid saeed, J. SHER BAHADAR-Petitioner versus Haji GHAFFAR All KHAN and another-Respondents Criminal Misc. B.C.A No. 282 of 1997, accepted on 22.4.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 497(5)~0ffence under Section 302/34 PPC-Bail granted-Cancellation of-Prayer for-Accused were specifically charged with firing on 18. The trial Court has believed the ocular evidence, the Identification Parade and recovery of the crime weapon coupled with the positive report of the ballistic expert and has convicted the appellant. 19. Adverting to the arguments of Mr. Muhammad Aslam Chishti Advocate for the appellant that all the eye-witnesses are interested and chance witnesses and their statements cannot be taken into consideration without strong corroboration. It may be observed here 'interested witness is one who is related to the deceased and is also inimical to the accused'. The contention of Mr. Muhammad Aslam Chishti Advocate has no substance. Admittedly in the case in hand only PW-1 Amir Muhammad is related to the deceased and the other eye-witnesses have no relationship with either of the deceased persons and had no enmity with the appellant, in as much as that PW-1 Amir Muhammad too had no enmity with the appellant. As such they cannot be termed as interested witnesses Learned counsel for the appellant tried to argue that since a fight took-place between Pathans and Hazaras, thus the eye-witnesses being Pathans had strong motive to falsely implicate the appellant who belongs to Hazara Sect. The said argument advanced by the learned counsel being erroneous is repelled. Mr. Ehsan-ul-Haque Advocate for the complainant pointed out that all the eye-witnesses had been cross-examined at length but they were not shaken despite a lengthy cross- examination and nothing beneficial was brought on record in favour of the appellant nor any enmity of the witnesses against the appellant was brought on record. We have no reason to disbelieve the witnesses merely because they are Pakhtoons when they had no reason or motive to falsely implicate the accused in the commission of the offence, even ethnic fight between Hazaras & Pathans was not proved. 20. As far as the contention of Mr. Aslam Chishti Advocate that all the eye-witnesses are chance witnesses is concerned, the same is devoid of force. It may be observed that presence of the eye-witnesses at the time of occurrence could not be disputed as all of them had satisfactorily explained their presence at the place of incident. For example PW-1 Amir Muhammad stated that he had a shop at Chohar Mai Road but before going to shop he came to see his first cousin Muhammad Isa and his presence at the place of occurrence has not even been challenged by the defence. He was crossexamined at length but nothing was brought on record to show that he was not present at the scene of occurrence at the relevant time. PW-10 Hqji Muhammad Ayyub stated that on the date of incident he came to his shop at about 7:00 to 7:30 A.M. and he was present in Suraj Ganj Bazar when the incident took-place and he saw the appellant firing at the deceased Muhammad Isa. This witness was also cross-examined at length and in cross-examination it has been brought on record that the appellant had his own shop at Suraj Ganj Bazar Quetta and since the knew the appellant prior to the incident, thus he had rightly identified him and also got recorded his statement under Section 164 Cr.P.C. in presence of the appellant. The evidential value of Statement of PW-4 under Section 164 Cr.P.C. shall be discrepancies, dishonest improvements or any conflict between their statement and the medical evidence." 22. Mr. Muhammad Aslam Chishti Advocate further attempted to argue that since a fight had taken place between the pathans and the Hazaras, thus the appellant has been substituted for the real culprits. In our considered opinion the said contentions of Mr. Muhammad Aslam Chishti Advocate is misconceived. In the first place as we have already observed nothing was brought on record that an ethnic fight took-place between Hazaras and Pathans. The prosecution has proved that the initially a fight started between the appellant and PW-12, Syed Hazrat who by chance happened to be a Pathan, and lateron the said fight ended in the unfortunate death of deceased person. Had it been an ethnic fight the witnesses could have nominated as mai-y Hazara's as possible. As we have already expressed that the witnesses hav given plausible explanation about their presence at the scene of occurrence at the relevant time and further have no relationship with deceased persons and no enmity with the appellant, and further corroborated each other on material facts, thus the substitution of the appellant for the real culprits is ruled out. It may be mentioned here that it has been time and again held by the Superior Courts that substitution of the real culprit with an innocent person is a very rare phenomenon. In this regard reliance is placed on (PLJ 1996 SC 758 = PLD 1996 SC 138) wherein the following observations were made:- "Undoubtedly, the substitution is a phenomenon of the rare occurrence, because even the interested witnesses would not normally allow the real murders of their relations to escape by involving innocent persons. In these circumstances, the evidence of Mst. Bashiran Bibi cannot be discarded merely because show was the widow of the deceased and inimical towards the appellants." 23. Adverting to the next contention of the learned counsel that the Identification Parade by the defence cannot be relied upon as the witnesses have not given description of the appellant. It has come on record that during the Identification Parade PW-10 Hqji Muhammad Ayyub, PW-14 Amanullah, PW-15 Abdul Bari and PW-17 Namatullah participated in it and they fully identified the appellant. Only PW-12 Syed Hazrat could not identify the appellant. The witnesses though in their police statement have not given description of the appellant but during the Identification Parade the appellant was properly identified by the witnesses and it may be mentioned here that the incident took-place in broad day light and it has come on record that prior to the incident of firing the appellant had a scuffle with PW-12 Syed Hazrat at the crossing of Suraj Ganj Bazar and Circular Road and from there the appellant and his two companions dragged Syed Hazrat towards Dakkan Pansor Store where the appellant fired at the deceased persons. The eye-witnesses, who have otherwise explained their presence, had ample time to have properly seen the appellant; besides, it was stated that because of the peculiar features of the appellant as he was squint-eyed; therefore, he could he easily identified. Moreover the witnesses have stated in their statement that they can identify the appellant. It may be pointed out that the appellant was also known to one of the eye-witnesses namely PW-10 Haji Muhammad Ayub who stated that he knew the appellant prior to the incident as he (appellant) had a shop at Suraj Ganj Bazar, Quetta. Thus the possibility of false identity of the appellant is ruled out. Mr. M. Aslam Chishti, learned counsel for the appellant emphasized that as alleged by the prosecution, initially a fight started between PW-12 Syed Hazrat and the appellant but the appellant could not be identified by Syed Hazrat. The learned counsel stated that no other witness than PW-12 could have better identified the appellant; hence the possibility cannot be ruled out that the appellant was falsely implicated. It may be pointed out that Syed Hazrat has given explanation that at the time of Identification Parade his eyes were swollen and could not identify the appellant. His statement is also corroborated by the medical evidence. The explanation seems to be plausible. There is no cavil to the proposition that before the Identification Parade the witness must disclose the context in which he identified the accused i.e. the part played by the accused during the commission of the offence and as to how and under what circumstances he identified the accused. However, if identify of the accused persons is proved by other convincing evidence, non-identification or absence of identification test will be immaterial. In the instant case, the identity of the appellant was also proved through the other eye-witnesses, and the statement of PW Hqji Muhammad Ayyub who knew the appellant even before the incident cannot be discarded. Thus failure to identify the appellant by Syed Hazrat would be immaterial. Despite failure to identify the appellant, we have reason to believe the statement of Syed Hazrat as his statement was also recorded u/S. 164 Cr.P.C. by a Magistrate in presence of the appellant which will be discussed later. In this regard reliance is placed on Muhammad Afzal and another vs. The State 1982 SCMR 129 wherein the following observations were made:- "In practice, however, it is not safe to accept the statement of witness about complicity of an accused in a crime if he did not describe him by name or other particulars during the investigation and still was not made to identify him out of a group. If, however, the identity of the accused is proved by other convincing evidence direct or circumstantial, the absence of the identification test proceedings will be immaterial." 24. Besides the Identification Parade of the appellant, there is other strong and convincing evidence about the identification of the appellant which is discussed below; The appellant soon after the occurrence was arrested by PW-5 Sardar Ali Shah Head-constable with the help of a Traffic Sergeant and a pistol was also recovered from his possession. He was brought to the Police Station. The testimony of Sardar Ali Shah was also not shaken. He had no motive to have falsely implicated the appellant. The recovery of the pistol from the possession of the appellant has matched with the empties recovered from the place of occurrence. Reliance is placed on Akhtar Muhammad vs. The State, PLJ 1998 SC 1266 = 1998 SCMR 1011 wherein it was held as under:- "We, therefore, fail to understand as to why the arrest of a person by unbiased Police Officers just after the occurrence within a short distance of the sene of crime with a pistol in his hand giving fresh smell of discharge which according to laboratory report matched the empties recovered from the spot and ultimately supported at the trial by confidence inspiring testimony of those who arrested the accused, would not constitute substantive or direct evidence of the crime. We are satisfied that, the Police Officer who caught hold of the accused with a pistol had no axe of their own to grind or any malice of the type to go to the extent of involving the appellant in a capital offence." 25. Mr. Muhammad Aslam Chishti, learned counsel for the appellant further argued that the report of the ballistic expert cannot be believed as the empties were sent to Forensic Science Laboratory after a considerable delay. It may be noted that during cross-examination no such question was put to the I.O. about delay in sending of empties nor any allegation of tampering with the empties have been alleged against him. hus in absence of any allegation about tampering we are not inclined to accept the argument put forth by the learned counsel for the appellant. 26. Reverting to the contention that the statements of the eye­ witnesses recorded under Section 164 Cr.P.C. are of no significant value, it may be observed that the statement of PW-10 Haji Muhammad Ayyub, PW-12 Syed Hazrat were recorded under Section 164 Cr.P.C. before the Magistrate in presence of the appellant and the appellant was given opportunity to cross-examine both the witnesses. Even in his statement under Section 340(2) Cr.P.C. the appellant has not disputed his presence before the Magistrate. The statements of both the witnesses recorded under Section 164 Cr.P.C. further leads to the conclusion that both the witnesses were present at the place of incident. In his cross-examination before the Magistrate the appellant has not denied the incident nor taken plea of alibi. Thus from the statement of the witnesses recorded under Section 164 Cr.P.C., it can be safely held that the appellant fired at the deceased persons nd possibility of false implication is ruled out, as he himself has admitted his presence. 27. Reverting to the contention that there are contradictions in the statements of the witnesses, it may be observed here that while going through the evidence, the learned counsel for the appellant pointed out minor contradictions in the statements of the eye-witnesses. The statement of the eye-witnesses were recorded in he Court after a period of more than one year of the incident and such minor contradictions are but natural. It may be noted that the intrinsic value of the evidence has not been shaken despite a lengthy cross-examination by the accused for the appellant; thus the minor contradiction pointed out by the learned counsel for the appellant are not of such nature which can disprove the prosecution case in toto. Coming to the alternative prayer of the learne'l counsel for the appellant regarding conversion of death sentence into life imprisonment, " t p have considered this aspect of the matter but we do not feel persuaded to agree with the learned counsel on this point as well. There are no extenuating circumstances to take a lienient view. The appellant has committed murders of two innocent persons. The appellant made three fires at deceased Isa Khan and two fires at deceased Gul Muhammad. Thus the mode and manner in which the deceased persons were done to death would not warrant any leniency in favour of the appellant. 28. It may be noted here that the learned Special Judge STA Court has exonerated the appellant from the death of deceased Gul Muhammad. We do not agree with the findings of the learned Special Judge to this extent. As discussed hereinabove the appellant intentionally committed murder of both the deceased persons. As no appeal has been filed by the State regarding exoneration of the appellant from the death of deceased Gul Muhammad, thus we do not think it appropriate to dilate upon the findings of the learned Special Judge STA Court to this extent. 29. The upshot of the above discussion is that the prosecution has successfully proved its case against the appellant beyond any reasonable shadow of doubt. The appellant has been rightly convicted by the learned trial Court. The sentence of death imposed on the appellant is justified. Murder Reference No. 16/97 is answered in affirmative and Criminal Appeal No. 251/97 filed by the appellant is hereby dismissed. (K.K.F.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 303 Present: SHAIKH ABDUR RAZZAQ, J. MATA KHAN-Petitioner versus STATE-Respondent Crl. Misc. Se. No.l984-B of 1998, dismissed on 29.7.1998. Criminal Procedure Code, 1898 (V of 1898)- —-S. 497-Bail-Grant of-Offence under Section 302/148/149 PPC-Both eye witnesses have supported prosecution version which further stands corroborated from post-mortem examination report according to which death of deceased M has been caused by strangulation and others by fire arm injuries-Opinion of 1.0. regarding innocence of petitioner hardly carries any weight, which is not based on evidence brought on record in form of statements of eye witnesses-Challan has been submitted and case is fixed for recording of prosecution evidence-Petition dismissed. [P. 305] A Mr. Shamim Abbas Bukhari, Advocate for Petitioner. Mian Muzaffar Ahmad, Advocate for the Complainant. Mr. Ghulam Hussain Malik, Advocate for the State. Date of hearing: 29.7.1998 order The petitioner alongwith others stands charged under Sections 302/148/149 PPC vide FIR No. 221/96 dated 26.10.1996 registered at P.S. Barana, Tehsil and District Jhang. 2. Briefly stated the facts are that on 25.10.1996 at about evening time, the Complainant Ghulam Hur went to the residence of his brother Ghulam All Khan who was residing in the land of Hamidullah which was being cultivated by Ghulam AM Khan as tenant prior to his arrival, Mst. Nooran widow of Khan and Hameedullah were present there. The complainant, Hameedullah and Musawwar Abbas son of Ghulam Ah' Khan slept at the behak with the cattle whereas Ghulam Ah' Khan, Mst. Satbharai daughter of Ghulam Ali Khan and Mst. Nooran went to bed in the dhari. At about half past 12.00 in the midnight, the complainant and Hameedullah woke up on the sound of throttling. It was a moonlit night. They saw Mansha Khan armed with a pistol, Abdur Rehman armed with a pistol and Mata Khan armed with a .7 mm rifle throttling the neck of Musawwar Abbas with a rope. The accused Iqbal had caught Musawwar Abbas through his arms and Muhammad Amin was holding his legs. Hameedullah raised hue and cry, upon which the accused ran towards dhari leaving Musawwar Abbas and on reaching the dhari, Mansha Khan fired twice at Ghulam Ah' Khan with a pistol which hit on his head. Abdur Rehman fired upon Mst. Satbharai hitting her on right side of neck. Thereafter the accused ran away while firing. The motive behind this occurrence is stated to be that Ghulam Ali Khan and agreed to give the hand of Mst. Satbharai to Mansha Khan to which he later on resiled. It is further alleged that Mst. Nooran was also in league with the accused and she also fled away alongwith her co-accused. 3. The petitioner applied for bail which request has been declined by the learned Sessions Judge Jhang vide order dated 11.3.1998. Hence the instant petition. 4. Bail has been sought on the ground that the petitioner has been declared innocent by the Investigation Officer as well as by the DSP who has verified the investigation conducted by the initial Investigating Officer, that the petitioner has got no relationship with his co-accused and is not even a resident of the area, that he had been implicated in this case falsely as he had got some dispute over some land with the complainant, that though he is alleged to be armed with a .7 mm rifle, yet had not used the same in the commission of this offence, that both the eye-witnesses are chance witnesses, as such their evidence cannot be relied upon without any independent corroboration which is lacking in the instant case, that the petitioner was not present on the spot and allegation of mere throttling has been levelled against the petitioner, that though opinion of the Investigating Officer is not binding, yet it makes the case of the petitioner open for further inquiry entitling him to the concession of bail and relied upon Yaqoob Khan vs. Tahir Mehmood and 6 others (1996 P.Cr.LJ 1647) and Muhammad Rafique vs. The State (1996 P.Cr.LJ 1745). 5. Conversely, the petition has been opposed by learned counsel for the complainant assisted by learned counsel for the State. It is asserted by learned counsel for the complainant that death of deceaseds is alleged to have been caused as a result of strangulation as well as by causing fire arm injuries., that this contention of the complainant stands corroborated from the post-mortem examination report, that prosecution version stands corroborated from the statements of Hameedullah, upon whose land the alleged occurrence took place, as well as of complainant, that since both the eye-witnesses have supported the prosecution version, so the opinion of the Investigating Officer is of no value. He further submits that W.P. No. 10209/98 was filed by Ghulam Hur against police, in which report of DSP was called on 28.5.1998 and he was directed to submit the same within one week but the said report has not so far been submitted. He further contended that he is the same DSP who has declared the petitioner innocent. He further submits that opinion of the Investigating Officer is not binding upon the Court which can have its own opinion after examining the material on record and come to a different conclusion and relied upon Muhammad Boota vs. The State and 4 others (PLD 1995 Lahore 335), LiaqatAli vs. The State (PLD 1994 Supreme Court 172) and Nazar Muhammad vs. State etc. (PLJ 1996 Cr. C. (Lahore) 1505). He further submits that investigation is complete and challan has been submitted in Court and case is now fixed for 7.9.1998 for recording prosecution evidence. He thus submits that in the instant case as many as three murders have been committed and the petitioner having been specifically named and assigned a specific role, is not entitled to the relief sought by him. 6. In the instant case, bail has primarily been sought on the ground that the petitioner has been declared innocent by the Investigating Officer, whose investigation has further been verified by the DSP concerned. A perusal of the FIR shows that Hameeduallh and Ghulam Hur have been shown to be eye-witnesses of this case. Out of them, Hameedullah PW is the person, upon whose land occurrence has taken place. Both Hameedullah and Ghulam Hur have supported the prosecution version which further stands corroborated from the post-mortem examination reports. It is evident from the post-mortem examination reports that death of deceased Musawwar Abbas has been caused by strangulation and of others by fire arm injuries. This being the factual position, the opinion of the Investigating Officer hardly carries any weight. The authorities referred by learned counsel for the petitioner do not come to the rescue as the opinion of the Investigating Officers is not based on evidence brought on record in the form of statements of Hameedullah and Ghulam Hur who have been shown as eye-witnesses in the instant case. On the other hand, their statements stand further corroborated from the medical evidence which has been collected and is available on police file. It is also pertinent to point out that challan has been submitted and case is now fixed for recording prosecution evidence. 7. In the light of facts stated above, the petitioner is not entitled'tothe relief sought by him at this stage. Accordingly, the petition fails and is hereby dismissed. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 306 Present: mian NAZIR AKHTAR, J. EJAZ AHMED alias GANDHI and another-Appellants versus STATE-Respondent Criminal Appeal No. 590 of 1993, accepted on 25.6.1998. Pakistan Penal Code, 1860 (XLV of I860)-

S. 302/337-A/148/149-Criminal Procedure Code (V of 1898), S. 410- Murder-Plea of self defence by accused-One of accused had admittedly received injuries which fact was completely suppressed by prosecution in F.I.R.-Prosecution even during trial made no attempt to explain as to how injured accused bad received injuries, therefore, it could be presumed that version of accused that he was attacked by deceased and was given injuries first before other accused persons retaliated and caused injuries to deceased, was true-Accued need not prove his plea of self-defence beyond reasonable doubt—Accused merely has to show that version put forward by him was reasonably possible, for entitling him to get benefit of doubt-Plea of self defence raised by accused would, appear to be reasonably possible-Conviction of accused and sentence awarded to them under Section 302-B, P.P.C. including fine and amount of compensation were set aside and they were acquitted of charge. [Pp. 310 & 311] A, B C & D PLD 1959 Pesh 74; PLD 1954 Lah. 127; 1982 PCr. LJ 1107 ref. Mr. Muhammad Iqbal Cheema, Advocate for Appellants. Mr. Ashfaq Ahmad Chouhan, Advocate for State. Date of hearing: 25.6.1998 judgment The appellants alongwith three others namely Muhammad Nawaz alias Niaz alias Najja, Abdul Rehman and Shahzad were tried in the Court of learned Addl : Sessions Judge, Faisalabad for an offence under Sections 302/337-A/148/149 of the PPC for causing death of Saghir Ahmad and injuries to Bashir Ahmad, PW. 8. The occurrence took place on 29.7.1991 at 7.30 p.m. in the are of Police Station Jaranwala. The report lodged by Muhammad Rashid, PW. 7 formed the basis of the formal FIR Ex. PH/1. It was registered under Section 324/337-A/147/149 PPC but on the death of Saghir Ahmad, Section 302 PPC was added. The appellants were charged under Section 302/337-A/l 48/149 PPC. They did not plead guilty and claimed to be tried. 2. The prosecution story narrated by Muhammad Rashid, PW. 7 in the FIR is that on 29.7.1991 at about 7.30 p.m. Saghir Ahmad deceased, after -? taking his evening meal, was going to a shop to buy Pan. When he reached ! near the Water tank, five accused persons namely Ijaz alias Ghandi (Appellant No. 1), Ghulam Sabbir (Appellant No. 2), Abdur Rehman alias I Beri, Muhammad Nawaz alias Niaz alias Najja and Shahzad came from the front side. They raised Lalkara saying that they would teach a lesson to Saghir Ahmad for leaving their party. They picked up wooden pieces (Pharas) from a nearby woodstallAppellant No. 1 gave two blows with a wooden piece on the left side of head of Saghir Ahmad. Ghulam Shabbir Appellant No. 2 gave a below with a wooden piece on the right side of head of the deceased. Shahzad (since acquitted) gave a below with a wooden piece causing an injury on the left check of the deceased. Saghir Ahmad, deceased fell down on the ground whereupon Muhammad Nawaz, convict gave a blow with a wooden piece on his back. Bashir Ahmad, PW. 8 tried to rescue his i brother and gave a push to Ijaz Ahmad (Appellant No. 1). Then Abdur Rehman accused (since acquitted) gave a blow with a wooden piece causing an injury on back side of head of Bashir Ahmad. Muhammad Nawz inflicted an injury on the right eye of Bashir Ahmad PW. 8. Ghulam Shabbir gave a blow causing an injury on left shoulder of Bashir Ahmad, PW. 8. 3. The injured persons were removed to the Tehsil Headquarter Hospital. Jaranwala, where Dr. Muhammad Afzal, PW. 6 medically examined them. He found the following injuries on the person of Saghir Ahmad :-- 1. "A lacerated wound 2 cm x 2 cm depth not probed with swelling 15 cm x 9 cm on left side of head. 2. An abrasion with swelling 4 cm x 3 cm on left side of forehead. 3. An abrasion 2 cm X 1 cm on left cheek. 4. A contused swelling 19 cm X 17 cm on right side of head. 5. An abrasion 2 cm x 1 cm on back of left side of chest. The doctor also found the following injuries on the person of Bashir Ahmad, ' PW. 8:-- • « x 1. "A lacerated wound 6 cm x 2 cm x scalp deep on back side of head. 2. A lacerated wound 2 cm x 1 cm on right eye brow. 3. A contused selling 10 cm x 4 cm on right shoulder top." The injured persons were shifted to Allied Hospital, Faisalabad where Saghir Ahmad was operated upon, thereafter, he died in the said Hospital on 31.7.1991. His dead body was again taken to T.H.Q. Hospital Jaranwala, where Dr. Muhammad Afzal, PW. 6 performed post mortem on 1.8.91 at 6.00 a.m. He observed the following injuries :-- 1. "A lacerated wound 2 cm x 2 cm left side of head an extention of stiched operated (wound) line with the above wound was present which was 4 cm long. 2. An abrasion with swelling 4 cm X 3 cm on left aside of forehead. An abrasion 2 cm x 1 cm on left cheek. 3. A swelling which was deteciable with very careful examination in an area of 19 cm x 17 cm on right side of head was present with 2 stiched operated wounds (lines) one on right side of head 7 cm long, the other towards middle of head 4 cm long. 4. An abrasion 2 cm x 1 cm on back of left side of chest." 4. After recording the FIR, Abdur Rahim, ASI proceeded to the spot, inspected the place of occurrence, prepared the site plans (Ex. PA & Ex. PA/1), took into possession the blood-stained earth from the spot and recorded the statements of the PWs under Section 161 of the Cr.P.C. He arrested the appellants on 28.8.1991, recovered the Pharos from them, vide recovery memos Ex. PI and Ex. PK, completed the investigation and submitted the challan in the Court. 5. The appellants denied the charge and pleaded that, in fact, the complainant party had committed aggression and caused injuries to Nawaz alias Najja whereupon in self-defence, the appellants inflicted injuries to Saghir Ahmad, deceased and Bashir Ahmad PW. 8. 6. In support of its case, the prosecution produced 10 witnesses. PW. 1 Aurganzeb, Draftsman, prepared the site plan in duplicate Ex. PA and Ex. PA/1. PW. 2 Muhammad Aslam, Constable witnessed the recovery of last worn clothes of the deceased (Shalwar P. 1 and shirt P. 2) which were secured through recovery memo Ex. PB. PW. 3 Muhammad Riaz, Constable was entrusted the dead body of Saghir Ahmad, deceased. He took it to T.H.Q. Hospital, Jaranwala on 1.8.1991. He was given the last worn clothes of the deceased after the post-mortem which were produced by him before the I.O. PW. 4 Abdul Rahim H.C, kept the parcels in the Malkhana and handed over the same to Dost Muhammad, Constable for further transmission to the office of Chemical Examiner, Lahore . PW. 5 Dost Muhammad, Constable had delivered the parcel at the office of the Chemical Examiner on 19.8.1991. PW 6 Dr. Muhammad Afzal had medically examined Saghir Ahmad, deceased and Bashir Ahmad and after the death of Saghir Ahmad conducted post-mortem on his dead body. PW. 7 Muhammad Rashid is the complainant and an eye witness of the occurrence. He supported the prosecution story narrated in the FIR. PW. 8 Bashir Ahmad, real brother of the complainant is the injured PW. He also corroborated thestatement made by PW. 7. PW. 9 Muhammad Afzal, H.C. had recorded the formal FIR Ex. PH/1 on 30.7.1991 on the basis of the complaint Ex. PH,made by PW. 7. PW. 10 Abdul Rahim, ASI, conducted the investigation, arrested the accused persons and submitted the challan against the appellants and Muhammad Nawaz alias Najja. Two accused namely Abdur Rehman and Shahzad were found to be innocent and their names were placed under column No. 2 of the challan. They were summoned to face trialby the learned Addl : Sessions Judge. The accused persons produced DW. 1 Dr. Muhammad Imtiaz Rabbani, CMO, T.H.Q. Hospital, Jaranwala who had medically examined Muhammad Nawaz alias Najja on 30.7.1991 and found the following injuries on his person :— 1. "A lacerated wound 3 cm x 1 cm bone deep on the right side of head upper part. 2. A lacerated wound 2 cm x 1 cm skin deep on top of head middle part. 3. A swelling 8 cm x 5 cm on back of let forearms upper part and also with an abrasion 1 x \ cm. 4. Complaint of pain in the right chest outer and lower part. Injury Nos. 1 & 2 kept under observation and advised X-ray. Rest were simple." 7. After perusing the material on the record, the trial Court convicted the appellants under Section 302-B of the PPC and sentenced them to life imprisonment with a fine of Rs. 20,000/- each and in default to undergo 2 years R.I. Muhammad Nawaz accused was convicted under Section 324 PPC and sentenced to undergo R. I. for a period of 7 years with a fine of Rs. 10,000/- and in default of payment of fine, to undergo R.I. for one year vide judgment dated 28.6.1993. Ijaz alias Ghandi and Ghulam Shabbir were burdened to pay compensation amounting to Rs. 50.000/- each to the legal heirs of the deceased and Muhammad Nawaz alias Niaz alias Najja was also burdened to pay compensation amounting to Rs. 10,000/- to Bashir Ahmad, injured PW. The convicts were given benefit of Section 382-B of the 8. The appellants' learned counsel contends that the prosecution has suppressed the injuries suffered by Nawaz alias Najja accused who had received 3 injuries with blunt weapons out of which two were caused on his head; that the appellants had acted in defence of person of Nawaz who is their relative; that there was no pre-medication and the occurrence had taken place on the spur of the moment; that the trial Court did not believe the plea of the complainant about the prosecution story put forward by him and that the prosecution has failed to prove its case beyond a reasonable doubt against the appellants. 9. On the other hand, learned State counsel supports the judgmentof the trial Court and submits that the occurrence had taken place in broad day-light and there was no question of mistaken identity of the accused; that the prosecution story was supported by the complainant and an injured witness, Muhammad Bashir, P W. 8; that the appellants had acted with pre­ concert and caused death of Saghir Ahmad, therefore, they were rightly " convicted by the trial Court. 10. There is considerable weight in the arguments raised by the appellants' learned counsel. When the complainant alongwith Saghir Ahmad and Bashir Ahmad had reached near the water tank, the five accused persons, though standing together, were not armed with any weapon. It appears that after a chance encounter between the parties something transpired between them whereupon they initially exchanged hot words and then the complainant party caused injuries to Muhammad Nawaz alias Najja accused. Thereafter, the appellants and their co-accused managed to get hold of "Pharas" from the nearby woodstall and caused injuries to the deceased and Muhammad Bashir PW. 8 to defend their relative Muhammad Nawaz. The prosecution had completely suppressed the injuries sustained by Muhammad Nawaz alias Najja accused in the FIR. Even during the trial, no attempt was made to explain how Muhammad Nawaz accused had received' injuries during the occurrence. As mentioned above, Muhammad Nawaz had received a number of injuries including two injuries on his head, a vital part of the body and definitely had grave apprehension to his life at the hands of the assailants. When examined under Section 342 of the Cr.P.C. Ijaz Ahmad, Appellant No. 1 had stated in reply to question No. 13 "The prosecution has distorted the facts of the case. Actually at the time of occurrence, Saghir Ahmad deceased was present near a Pan shop which is situated near the wooden tall. He was accompanied by Bashir Ahmad PW. I passed that way on a Bicycle and demanded Rs. 200/- from Saghir deceased which he owed to me. Saghir started abusing me feeling disgraced. In the meantime, Nawaz alias Najja and Ghulam Shabbir co-accused also reached there. They checked Saghir deceased from abusing me and also Nawaz alias Najja, Nawaz also abused in exchange when Saghir and Bashir PW pickedup wooden pieces from nearby wooden tail and inflicted injuries on the head left arm and back of Nawaz alias Najja. I and Ghulam Shabbir in order to save Nawaz alias Najja also picked-up wooden pieces from the tall and caused them injuries in exercise of right of self defence. No other PW was present at the spot. Nawaz alias Najja was taken to the Hospital and he obtained MLR. Thereafter the complainant party in collusion with the police concocted this false case against me Since the prosecution had failed to furnish any explanation for his injuries, it could be presumed that he was attacked by the deceased and his brother Muhammad Bashir PW. 8 and was given the injuries first before the other accused persons retaliated and caused injuries to the deceased and his brother. This view finds support from the judgment in the case of "Abdul Rahman vs. The Pakistan State" (PLD 1959 (W.P.) Peshawar 74 in which it was held : "When an accused person is found to have been injured in a fight with the deceased, and witnesses claiming to have seen the occurrence tiy to suppress this fact, it will be reasonable to presume in the absence of any plausible explanation to the contrary, that the accused person was injured by the deceased, and further when it is doubtful as to which of them attacked the other first, the benefit of doubt will go to the accused person An accused person need not prove his plea of self defence beyond a reasonable doubt. He merely has to show that the version put forward by him is reasonably possible, for entitling him to get benefit of doubt In the case of "Muhammad Hussain Qureshi vs. The Crown" (PLD 1954 Lahore 127), it was held: "If after an examination of the whole evidence the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt not as a matter of grace but as of right because the prosecution has not proved its case beyond reasonable doubt. In the case of "Muhammad Akram vs. The State" (1982 P. Cr. L.J. 1107), a Division Bench of the Karachi High Court had held that although the burden of the plea of self-defence was on the accused, the onus on him was not to prove the plea beyond reasonable doubt but the question is to be decided whether on the basis of the evidence on record there was a reasonable possibility of the self-defence plea raised by the accused being true. 11. In the circumstances of the case, the plea of self-defence raised by the appellants appears to be reasonably possible. Therefore, the appeal is accepted, the appellants' conviction and sentence under Section 302-B of the PPC including fine and amount of compensation are set-aside and they are acquitted of the charge against them. They were ordered to be released from the jail vide my short order dated 25.6.1998. This judgment contains the reasons for the above-referred short order which shall be read as a part of the judgment (TA.F.) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 311 (DB) [D.I. Khan Bench] Present : jawaid nawaz khan gandapur and nasirul mulk, JJ. MOMEEN KHAN etc.»Petitioners. versus ZAIB ULLAH KHAN ete.-Respondents Crl. Misc. Bail Petition No. 15 of 1998 decided on 2.4.1998. Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975)-- —S. 5-A(8) read with Section 497/498 Cr.P.C.--Offence under Section 302/ 324/148/149 PPC and Section 13 Arms Ordinance-Bail-Grant of- Prayer for--Petitioners remained fugitive from law for two years-­ Allegation of—Without dilating upon merits of the case at bail stage and keeping in view dictum laid down by the Supreme Court of Pakistan, in case Khushi Muhammad v. Rab Nawaz and 3 others PLJ 1996 SC 377- High Court is of view that since petitioners are prima facie connected with commission of offence charged with, and had remained fugitive from law for more than two years, therefore, they do not deserve to be enlarged on bail-This petition is without any substance and is accordingly rejected. [P. 314] A PLJ 1996 SC 377 rel. Mr. Muhammad Karim Anjum, Advocate for Petitioners. S. Saeed Hassan Sherazi, A.A.G. for State. Mr. Dost Muhammad Khan, Advocate for Complainant. Date of hearing: 2.4.1998 judgment Jawaid Nawaz Khan Gandapur, J.-Briefly stated, the facts of the case are that on 10.11.1995 Zaibullah complainant reported to the Police that on that very day, at about 1630 hours, he alongwith his the two sons namely, Tareenullah and Mustafa and one Damsaz S/o. Mumtaz, was on his way to Village Kotka Said Ali when in the meantime accused Khanzada and Wazir Khan sons of Zaheer-ud-Din, Karam S/o. Khanzada (on bail) and the petitioners, duly armed with lethel weapons, started firing at them near the lands owned by Darey Shah. In the process the accused killed one of the sons of the complainant namely Tareenullah whereas P.W. Damsaz was seriously injured. 2. On the basis of the complainant's report F.I.R. No. 177 was registered in Police Station, Tajori, Tehsil and District Lakki Marwat, u/Ss. 302/324/148/149 PPC read with S. 13 Arms Ordinance, against the aforementioned assailants/accused on the same day at about 2030 hours. 3. After having failed to get bail from the Special Judge, Lakki (Shahid Naseem Khan), the petitioners have now come to this Court for the redress of their grievance and have prayed that they be granted bail as they are innocent and falsely charged. 4. Mr. Muhammad Karim Anjam Qasooria, Advocate learned counsel for the petitioners, Mr. Dost Muhammad Khan, Advocate learned counsel for the complainant and Syed Saeed Hassan Sherazi, learned Assistant Advocate General for the State present and heard. We have also gone through the record of the case carefully with their assistance. 5. The learned counsel for the petitioners submitted that in this case three co-accused have already been granted bail, therefore, keeping in view the golden principle of consistency in granting bail, the petitioners also deserved to be enlarged on bail not as a matter of grace but as a matter of right. He further contended that the occurrence had taken place at about 1630 hours whereas the report was lodged at about 2030 hours i.e., after a delay of four hours which has not been explained plausibly, that in thecircumstances, the prosecution case against the petitioners has become highly doubtful making the same as that of further enquiry. 6. On the other hand, the learned counsel for the complainant submitted that the case was registered on 10.11.1995 vide F.I.R. No. 177 and that the petitioners managed to get pre-arrest interim bail from the Special Court which was fixed for arguments on 27.1.1997. He further stated that itwas indeed quite strange that the petitioners chose not to appear on the date fixed. Resultantly the concession of pre-arrest interim bail had to be recalled. He further submitted that thereafter both the petitioners went into hiding and remained fugitives from law from a long period of two years. He statedthat Nawab petitioner was however arrested on 14.11.1997 when the police raised his house. An unlicensed Kalashnikov was also recovered from his possession. According to him the other accused/petitioner, Momin Khan, was arrested on 15.11.1997 during the course of "Nakabandi" which was held by Police Party of Post Gambila, at Adda Gambila. He submitted that it is an admitted fact that both the accused had remained fugitives from law for a considerable long time (two years) and that, therefore, they were not entitled to be released on bail even on this score. 7. In support of his contention he placed reliance on case "Khushi Muhammad vs. Rab Nawaz & three others" reported as 1996 Supreme Court (M.R.) 172 wherein it was held "Accused had escaped from the custody and was re-arrested after more than 1/1-2 years-Such act by itself was sufficient to refuse the exercise of discretion by Court in favour of accused-In such circumstances it was not necessary to enter into the merits of the case or to make any observation on it and, therefore, no prejudice could be caused during trial— Accused could not get the benefit of the third proviso of S. 497(1), Cr.P.C. by calculating the statutory period of two years by adding the intermittent periods caused by his illegal and unlawful act-Bail granted to accused by High Court was cancelled in circumstances " 8. The learned counsel further contended that a few days before his murder the deceased, a handsome boy of tender age, had also lodged a report against the petitioners and others in Police Station, Naurang, under Section 506 PPG, vide. F.I.R. No. 465 dated 7.11.1995 which fully establishes the motive for which he was killed by the petitioners. 9. The learned counsel further submitted that even on merits, the petitioners had no case in as much as six empties of .303 bore were recovered from Point No. 5, wherefrom accused Nawab had allegedly fired at the deceased. He, however, admitted that it was true that no empty of the Kalashnikov was recovered from Point No. 6, wherefrom accused Momin has been alleged to have fired at the deceased and the injured P.W. Damsaz Khan. Accordingly to him the petitioners were prima facie connected with the commission of the offence and, therefore, not entitled to be bailed out. 10. Without dilating upon the merits of the case at this stage and keeping in view the dictum laid down by the Supreme Court of Pakistan, in case mentioned in para-7 above, we are of the view that since the petitionersare prima fade connected with the commission of offence charged with, and had remained fugitive from law for more than two years therefore they do not deserve to be enlarged on bail. 11. This petition is without any substance and is accordingly rejected. (KA.B.) Bail rejected.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 314 Present: SHAIKH ABDUR RAZZAQ, J. MUHAMMAD AMIR alias KHAN-Petitioner versus STATE-Respondent Crl. Misc. No. 3565-B of 1998, dismissed on 27.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Offence u/S. 302/109/34~BaU-Ground of minority-Petitioner was armed with a 12 bore licenced gun of his father at the time of causing a fatal shot to deceased-Birth certificate and school leaving certificate of petitioner, contain two different dates of birth-No reliance, hence can be placed on these certificates-The only fatal shot is attributed to petitioner as a result of which deceased was done to death on spot-Held: In absence of any concrete and positive evidence regarding age of petitioner in form of ossification or other tests, no reliance can be placed on suchcontradictory certificates-Petition dismissed. [P. 316] A to C Malik Muhammad Akram Awan, Advocate for Petitioners. Mr. Rafaqat Ali, Advocate for State. Date of hearing: 27.7.1998. order The petitioner seeks post arrest bail in a case registered against him vide FIR No. 4/98 dated 9.1.1998 under Sections 302/109/34 PPG at P.S. Phularwan, Tehsil Bhalwal, District Sargodha. 2. Briefly stated the prosecution case is that on 8.1.1998, Mst. Ghulam Fatima had gone to water tap to fetch water. In the meanwhile, Muhammad Amir alias Khan son of Muhammad Khan armed with his father's licenced 12 bore gun came there and fired at the deceased hitting at her back. She fell down and succumbed to the injuries on the spot It is further alleged that Azam, Iqbal, Shabbir also instigated the accused/ petitioner to kill the complainant Mst. Nusrat as such she rushed towards her house and save her life. On her cries, it is alleged, Muhammad Inayat,Noor and Nazir were attracted who witnessed the incident. Motive behind this occurrence is stated to be the refusal on the part of deceased to given thehand of her daughter for Azam son of Fateh Muhammad. 3. The petitioner applied for bail, but he was not granted the said relief by the learned Additional Sessions Judge Sargodha vide order dated 27.6.1998, hence this petition. 4. Bail has been sought mainly on the ground that the petitioner is a minor, as such his case falls within the first proviso of sub-section (1) of Section 497 Cr.P.C. In support of his contention, he has relied upon birth certificate as well as school leaving certificate, where his date of birth has been recorded as 29.12.1983 and 25.1.1984 respectively. He further submitsthat as the petitioner is minor, so his case falls within the purview of Section 306 PPC, which is punishable under Section 308 PPG, wherein the maximum punishment provided is 14 years. He next urged that in similar case, the relief of bail has been allowed and relied upon Mazhar Abbas v The State (1997 P.O.LJ 1635) and Usman All vs. The State (1996 P.Cr.LJ 166). He thus submitted that petition may be accepted. 5. Conversely, these contentions have been repudiated by learned counsel for the State. He has submitted that as per I.O., the age of petitioner is 18 or 19 years as such he cannot be considered a minor, that both the certificates referred above contain different date of birth as such no reliance can be placed on such certificates, that the only fatal injury has been attributed to the petitioner. He thus submitted that all these facts disentitle him to the relief sought by him. 6. A perusal of the FIR shows that the petitioner was armed with a 12 bore licensed gun of his father at the time of causing a fatal shot to the deceased Mst. Ghulam Fatima, mother of the complainant Mst. Nusrat. Thebail has been sought mainly on the ground that the petitioner is less than 18years of age, as such his falls within first proviso to Section 497 (1) Cr.P.C. and consequently his case covers under Section 306 PPG which is punishable under Section 308 PPG, where the maximum punishment provided is 14 years. To support the plea of minority he has relied upon birth certificate as well as school leaving certificate of the petitioner. A perusal of these A certificates reveals that both these certificates contain two different dates of birth. Thus under these circumstances, no reliance can be placed on these certificates. Learned counsel for the petitioner has relied upon 1997 P.Cr.LJ 1635 wherein the authority reported as (1996 P.Cr.LJ 166) has been relied upon. In 1996 P.Cr.LJ 166, the part attributed to the so-called accused of tender age was a proverbial Lalkara and was shown to be armed with a soti B and had not caused any injury to any person. In the instant case, the only fatal shot is attributed to the present petitioner as a result of which deceased was done to death on the spot. Again in the said authority there was no discrepancy or contradiction in the certificates regarding the actual date of birth of said accused. Thus, the facts of that authority are not applicable to the facts of this case. In absence of any concrete and positive evidence regarding the age of petitioner in the form of ossification or other tests, no reliance can be placed on such contradictory certificates. 7. Keeping in view the facts stated above coupled with the fact thatpetitioner has been charged for causing fatal blow to the deceased, I am not inclined to extend the relief sought by him at this stage. Resultantly, petition fails and is hereby dismissed. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 317 Present: raja muhammad khurshid, J. HAMEEDULLAH KHAN etc.--Petitioners versus STATE-Respondent Criminal Misc. No. 3390/B of 1998, dismissed on 16.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Offence u/S. 324/337-A (vi)(vii)/452/34 PPC--FIR lodged promptly-Petitioners were armed with hatchets-There were six injuries on vital parts i.e. head of victim which prima facie showed clear cut intention of petitioners that they wanted to finish hinv-Mere fact that police had opined that petitioners were innocent would not be much relevant at bail stage because that is based on defence version of sudden provocation-Victim after gaining consciousness had clearly implicated petitioners for having assaulted him with hatchets-He is supported by other eye-witnesses-Even presence of petitioners is admitted by police-­ Petitioners have no case to be released on bail-Petition dismissed. [Pp. 318 & 319] A & B Mr. Rob Nawaz Khan Niazi, Advocate for the Petitioner. Mr. Noor Muhammad Qasir Kaliar, Advocate for the State. Date of hearing: 16.7.1998 order A case under Sections 337-A (vi)(ii)/34 PPC was initially registered against the petitioners and two others vide FIR No. 28 dated 13.3.98 at P.S. Pai Khel, District Mianwali at the complaint of Ghulam Abbas as his brother Muhammad Nawaz was injured during the occurrence. The offences under Section 324/452 PPC were also added on 13.3.1998. 2. The brief facts are that Ghulam Abbas, a brother of the victim Muhammad Nawaz reported to the police that he alongwith his family members were asleep in a room of the house. The victim was sleeping in the court-yard. At about 1:00 a,m., they heard the noise and got awoke. They saw that the petitioners alongwith two others while armed with hatchets were giving hatchet blows to the aforesaid Muhammad Nawaz. They were identified in the moonlit night. The bone of contention was dispute over some land which the accused party wanted to get vacated but the complainant side refused as they had built their houses thereon. 3. Learned counsel for the petitioners has submitted that the petitioners were found innocence by the police as according to investigation they had reached the spot empty handed after their father Noor Khan armed with hatchet had attacked the victim on the ground that the latter had come out of his house after their sister was found missing from her cot; it was suspected by the accused party that the aforesaid lady had some illicit liaison with the injured PW and as such their father had gone there in her pursuit However, the complainant side allegedly involved the petitioners falsely in this case in order to throw the net a little wider; this version of the petitioners allegedly found favour with the police, whereupon the SHO and the DSP held them innocent in view of defence taken by them; that the motive was not proved as the alleged land in dispute was with the complainant side who were refusing to vacate the same; that it was a case of further enquiry after the petitioners were held innocent on the basis of defence story, whereby Mst. Kausar Bibi sister of the petitioners having developed illicit relations, was found with the injured PW at his house and was surprised by their father namely Noor Khan, the principal accused. It was, therefore, submitted that the petitioners had a case of further enquiry and they were entitled to bail in view of principle laid down in Sher Muhammd and two others vs. The State and 4 others reported as 1994 SCMR 549 (Supreme Court of Pakistan). Secondly it is not the maximum punishment to be looked into at the time of bail but the fact is to be considered as to how much punishment is likely to be awarded. In this regard, reliance was placed on Mir Akhtar Khan Khattak vs. The State reported as PLD 1982 Peshawar 128. Lastly, reliance was placed on Ismail and 7 others vs. The State reported as 1992 P.Cr.L.J. 2182 (Karachi) and Mst. Baboo Jana vs. The State reported as 1990 P.Cr.L.J. 326 (Karachi). It was contended that Superior Courts expounded the basis rule that 'bail not jail' should be the general consideration while deciding the question of bail. 4. TKe bail petition is opposed by the prosecutor on the ground that the petitioners are named in the FIR and the assaulted the victim alongwith their father while armed with hatchets; all the assailants had chosen the vital part of body of the victim such as head of inflict the injuries; that there were six injuries of sharp edged weapon as per medicolegal report which manifested the intention of the petitioners to finish the victim. It was, therefore, submitted that infact the petitioners have no case for bail even if they were found innocent by the police on the basis of defence plea taken by the petitioners before it. In this regard, it was contended that ipse dixit of police is not binding on the Courts while deciding the bail matters. Reliance was placed on Muhammad Ashrafvs. The State reported as 1979 P.Cr.LJ 68 (Lahore), Mir Allahi Bux vs. The State reported as 1979 P.Cr.LJ 887 (Karachi), Imtiaz Ahmad and others vs. The State reported as 1986 SCMR 192 and Muhammad Mansha vs. The State reported as PLD 1996 Supreme Court 229. 5. I have considered the above submissions and find that according to promptly lodged FIR, both the petitioners were shown to be armed with hatchet and had assaulted the victim alongwith their father Noor Muhammad. There were six injuries on the person of the victim namely Muhammad Nawaz. The vital party like head was chosen to cause injuries to the victim which prima facie showed the clear cut intention of the petitioners that they wanted to finish him. The mere fact that the police had given its opinion that the petitioners were innocent would not be much relevant at this stage because that is based on the defence version inter alia pleading that the occurrence took place under grave and sudden provocation because sister of the petitioners was found with the deceased in his house at the mid-night. This defence plea has to be substantiated at trial, rather to be decided by the police in it% investigation. On the contrary, the victim after gaining consciousness had clearly implicated both the petitioners for having assaulted him with hatchets. He is supported by the other eye-witnesses that the petitioners while armed with hatchet had committed the occurrence. Even their presence is admitted by the police but they had been shown empty handed. It is improbable that they will accompany their father Noor Khan i.e. the principal accused empty handed when they had a suspicion that their sister had gone to the house of her paramour. Rather they would be armed while accompanying their father to meet to any anticipated resistance on such occasion. I would not like to enter into the deeper appreciation in respect of the foregoing facts but would hold for the limited purpose of this petition that the petitioners have no case to be released on bail at this stage. However, if any extenuating circumstance arises after the submission of challan to the Court, the petitioners may re-agitate the matter before the trial Court irrespective of the dismissal of this petition. The observations made above should only be taken for the limited purpose of disposal of this petition without influencing the course of trial or finding to be ultimately given on the merits of the case by the trial Court. 6. The petition is accordingly dismissed with the foregoing observation. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C . ( Lahore ) 319 Present: SAJJAD AHMAD SlPRA , J. MUHAMMAD BASHIR AHMAD-Petitioner versus STATE-Respondent Crl . Misc. No. 479/B of 1998, accepted on 16.4.1998. ( i ) Criminal Procedure Code, 1898 (V of 1898)- —S. 497--Bail»Grant of-Prayer--Offence u/Ss. 324/337-A( i )/337-F( i ) PPC- Established law in bail matters that while deciding cases under said provisions; only maximum sentence shall not be taken into consideration but taking entire circumstances of case into consideration. [P. 320] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497» Bail~Grant of--0ffence u/Ss. 324/337-A( i )/337-F( i ) P.P.C.-- Benefit of doubt-Any doubt arising even at bail stage should be resolvedin favour of accused and law should not be stretched in favour of prosecution --?Bail granted. [P. 320] BPLD 1972 SC 81 and PLD 1972 SC 277 rel. Syed Sardar Shah Bokhari , Advocate for Petitioner. Sh . Muhammad Rahim , Advocate for State. Syed Murtaza Alt Zaidi , Advocate for Complainant. Date of hearing: 16.4.1998 order The present petition contends for bail or the petitioner in the case registered vide FIR No. 363/97 dated 29.10.1997 under Sections 324/337- A( i )/337-( i ) PPC at Police Station Katcha Khooh , District Khanewal . 2. The learned counsel for the petitioner, the State and the complainant were heard at length in respect of the contentions stated herein. The learned counsel for the State and the complainant opposed the presentbail petition and pointed out that the petitioner, a single accused, had fired with his gun, duly recovered, and caused injuries to the complainant Muhammad Akram . Further submitted that the instant case is hit by the prohibitoiy clause, as the punishment for the same is 10 years R.I. 3. However , admittedly , as borne out from the record, the injured /complainant had only suffered simple injuries. Furthermore, it is an established principle of law in bail matters that while deciding the cases under the said provisions, only the maximum sentence shall not be taken ^ into consideration, and that, therefore, taking the entire circumstances of the case into consideration, the petitioner is likely to be tried and made answerable for the simple injuries caused by him to the complainant, and that, admittedly, as borne out by the perusal of the FIR, the alleged incident of firing at the complainant had taken place pursuant to exchange of abuses between him and the present petitioner. In addition thereto, it has been taken notice of that the Honourable Supreme Court has repeatedly held, specially in PLD 1972 S.C. 81 and PLD 1972 S.C. 277, that any doubt arising even at the bail stage should be resolved in favour of the accused and that the law should not be stretched in favour of the prosecution. It has been further confirmed on behalf of the State that the petitioner is neither a previous convict nor a hardened criminal and that he is no long required by the police. Therefore , under the facts and circumstances highlighted, it is hereby held that the order of the petitioner is one of further inquiry. 4. Consequently, the petitioner is hereby allowed bail in the sum of Rs . 30,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court. (A.S.) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 321 [DB] Present: MUHAMMAD NAWAZ ABBASI AND ZAFAR PASHA CHAUDHRY, JJ. FAYYAZ AHMAD alias BAGGO and 4 others-Petitioners versus STATE-Respondent Crl. Appeal No. 310/92 and Murder Reference No. 462/92, decided on 18.09.1997. (i) Interested witnesses-- —Interested witnesses-Evidence of-Relation of witnesses inter se and with deceased-Enmity between parties is admitted-Following rule of cbrroboration, a necessary requirement is that evidence of witnesses is tobe carefully scrutinized-Rule of independent corroboration is not aninflexible-If interested and inimical witness is confidence inspiring and fulfils required standard, it can safely be made basis for conviction without looking for any corroborative evidence. [Pp. 327 & 328] B (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302/149/148 and 109-Enmity between two parties is always a double edged weapon-Whether enmity is a source of motive or false implication should be judged in facts of individual case—Occurrence took place in broad-day light in village, possibility of substitution is not even thinkable. [P. 327] A (iii) Pakistan Penal Code, 1860 (XLV of 1860)- —-Ss. 302/149/148 and 109-Conviciton for-Appeal against-Rule of ; f independent corroboration-Quantum of sentence on individual role- Conflcit of eye-witnesses with medical evidence-Role of each appellant is i to be judged individually by applying rule of independent corroboration j even motive is a strong supporting evidence against all accused- Individual role relates to quantum of punishment—Parties being at daggers drawn committed murder-Parties belonging to same village and tribe could not tolerate each other-Death sentence is not maintained as exclusive responsibility was not detcrminable. [Pp. 328 & 329] C & D PLD 1967 185 rel. Sahibzada Farooq Mi Khan, Advocate, for Appellants. Mehr Muhammad Saleem, Advocate, for State. Sardar M. LatifKhan Khosa, Advocate for Complainant. Date of hearing: 18.9.1997 judgment Muhammad Nawaz Abbasi, J.-This judgment proposes the disposal of Murder Reference No. 462/92 sent by the Additional Sessions Judge, Vehari and Criminal Appeal No. 310/92 filed by the appellants, namely, Fayyaz Ahmad alias Baggu son of Dur Muhammad, Imtiaz son of Khair Muhammad, Sikandar son of Sajawal, Nasir son of Muhammad Bakhsh and Falak Sher son of Noor against their conviction and sentence awarded to them by the said learned Additional Sessions Judge vide Judgment dated 17.11.1992 upon the charges under Sections 302/148/149 PPC. The appellants have been sentenced in the following manner: (i) FAYYAZ AHMAD. SIKANDAR AND NASIR. Death sentence to each on two counts for committing the murder of Manzoor and Noor Muhammad with a fine of Rs. 15,000/- each and in default whereof 2 years' RI each. The appellants were also directed to pay Rs. 15,000/- as compensation each to the legal heirs of the deceased and in default of payment of compensation to undergo S.I. for 6 months. (ii) FALAK SHER AND IMTIAZ. Imprisonment for life to each on two counts for the murder of Manzoor and Noor Muhammad deceased with a fine of Rs. 50.000/- each and in default thereof to undergo R.I. for 2 years each. The appellants were further directed to pay compensation of Rs. 15,000/- each under Section 544-A Cr.P.C. to be paid to the legal heirs of the two deceased. The sentences on both counts were ordered to run concurrently. 2. The occurrence in the present case took place on 8.9.1988 in the area of Police Station Luddan, District, Vehari, in which Manzoor and Noor Muhammad deceased were murdered, the report of which was lodged by Falak Sher son of Sajawal with Police Station Luddan on the same day at 4.00 PM through FIR Ex. PH recorded by Abdul Majeed Chishti Inspector/SHO PW-13, 3. The facts in the background as supplied by the prosecution arethat on the fateful day at 2.00 PM Manzoor Ahmad and Noor Muhammad deceased, real brothers of Falak Sher complainant, while proceeding on tractor towards their land in village Khichi followed by complainant and Muhammad Afzal on foot at a short distance, when reached near the land owned by Salim Khan Khichi, the above named appellants armed with 12 bore guns alongwith the acquitted accused, namely, Niaz alias Majji and . Hakim armed with Solas raising Lalkara attached on the deceased. Fayyax Ahmad appellant allegedly fired two shots and Nasir one shot at Noor Ahmad hitting him on he had and shoulder. The shot fired by Falak Sher hit Manzoor Ahmed deceased at the back, whereas the shot fired by Imtiaz hit Manzoor Ahmad on his right flank. Sikandar appellant is assigned the role of causing fire arm injury on the head region of Manzoor Ahmad and upon receiving the firearm injuries by the deceased, namely, Noor Ahmad and Manzoor Ahmad, they lost their breath at the spot The motive behind the occurrence as stated was that about 3 years ago Noor Ahmad and Manzoor Ahmad deceased had murdered Sher Muhammad son of Sultan, a person from the family of the accused party. 4. Upon registration of the case Abdul Majeed Chishti Inspector/SHO PW-13 visiting the spot secured blood stained earth through memos Ex. PJ & PK from two places. He prepared injury statements Ex. PC and Ex. PF and inquest reports Ex. PB and Ex. PC of Manzoor Ahmad andNoor Ahmad deceased respectively and recovered the empty cartridges P-l to P-3 from the spot, which he took into possession through Memo Ex. PL. A Ford Tractor belonging to the deceased was taken into possession from theplace of occurrence through Memo Ex. PM. He after despatching the dead bodies to the Hospital for post mortem examination completed the <~ remaining investigation at the post. He effected the arrest of Fayyaz Ahmad^ and Sikandar accused on 18.9.1988 and the arrest of Falak Sher, Hakim and Nasir was caused on 21.9.1988, whereas Niaz and Imtiaz were taken into custody on 24.9.1988. Fayyaz Ahmad appellant led to the recovery of 12 bore gun P-4 on 28.9.1988, and Sikandar appellant got recovered rifle P-5 from his residential house these weapons were taken into possession through memos Ex. PN and Ex. PO respectively. 5. Dr. Muhammad Aslam PW-6 conducted the post mortem examination on the dead bodies of Manzoor Ahmad and Noor Muhammad on 9.9.1988. The Doctor has given the following detail of the injuries on the person of Manzoor Ahmad(1) A circular wound 1 cm x 1 cm with blackened and inverted margins going deep, brain matter coming out of the wound, 7 cm x behind and above right ear just lateral to the mid-line. (2) A circular wound 1 cm x 1 cm with blackened and inverted margins going deep. Brain matter was coming out Ik cm x behind injury No. 1. (3) A circular wound 1 cm x 1 cm with blackened and inverted edges going deep 15 cm above the sacrum in mid line. (4) A circular wound 1 cm x 1 cm with blackened inverted edges going deep just 2 cm below and lateral to injury No. 3. (5) A circular wound 1 cm x 1 cm with blackened and inverted edges going deep 6 cm above the sacrum in mid line on right side. (6) A circular wound 1 cm x 1 cm with blackened and invertededges going deep 2 cm lateral to injury No. 5 on right side.A circular wound 1 cm x 1 cm with blackened and invertededges going deep 8 cm lateral to injury No. 6 on right side. (7) A circular wound 1 cm x 1 cm with blackened and invertededges going deep 4 cm below and lateral to injury No. 7 onright side. (8) A circular wound 1 cm x 1 cm with blackened and inverted margins going deep 23 cm below right scapula 13 cm lateral to the verteperal column. (9) A circular wound 1 cm x 1 cm with blackened and inverted edges going deep 21 cm below right shoulder joint in mid exillary line. (10) An abrasion with charring 6 cm x 2 cm, 10 cm below and lateral to the right nippal. (11) An abrasion with charring 2 cm x 1 cm, 10 cm below the right nipple. The doctor recovered two matallic pieces from brain matter and six matallic pieces from the abdominal cavity of deceased, the fracture of skull extending from right frontal occipital bone involving right parietal bone was located and on opening the skull intractranial haemorrhage was found present. The corresponding holes in the meninges were found in injuries No. 1 and 2. In the opinion of the doctor the fire arm injuries No. 1 to 10 collectively caused death and that no exit wound was traceable on the dead body. 6. The examination of dead body of Noor Ahmad deceased revealed six fire arm injuries of the following description:- (1) A circular wound 1 cm x 1 cm with blackened and inverted edges going deep 2 cm above the outer side of right eye brow. (2) A circular wound 1 cm x 1 cm with blackened and inverted edges going deep 1 cm above and lateral to injury No. 1.A circular wound 1 cm x 1 cm with blackened and inverted ; t;oing deep 10 cm above the right ear on the right (4) A circular wound 1 cm x 1 cm with blackened and inverted edges going deep 2 cm below injury No. 3. (5) A circular wound 1 cm x 1 cm with blackened and invertededges going deep just medial to the top of right shoulder. (6) A circular wound 1 cm x 1 cm with blackened and inverted edges going deep 10 cm medial to the injury No. 5 at the root of neck The doctor observed no exit injury and on opening the skull he found multiple fracture of right frontal bone, right parietal bone and occipital ' bone. There was also fracture of base of skull and interactanial haemorrhage was present. He recovered three metallic pieces from brain matter and opined that death was the result of injuries Nos. 1 to 6 caused with fire arm. 7. The ocular account has been furnished by Falak Sher PW-7, the complainant of the case, and Muhammad Afzal PW-8, who was accompanying the complainant at the time of occurrence. They narrating the .^ prosecuting story as given in the FIR stated that the attack was made upon the deceased from a distance of about two karams and the shots fired by Fayyaz Ahmad and Falak Sher hit on the head and back of Manzoor Ahmad deceased, whereas the shots fired by Imtiaz and Sikandar hit him on right flank and skull. They further deposited that one shot each made by Nasir and Fayyaz hit on the skull and right shoulder of Noor Ahmad deceased respectively. They also repeating the motive part of the prosecution story as given in the FIR confirmed the same. 8. Sahibzada Farooq Ali Khan, the learned counsel for the appellants questioning the conviction and sentence of the appellants raised the following contentions:- ^,. (i) That the eye-witnesses having appeared at the scene by chance were not natural witnesses of the occurrence and further they being the first cousins of the deceased were interested and inimical towards the appellants due to the murder of Sher Muhammad their cousin in which one of the deceased was the accused. (ii) That there being no independent witness of the motive, the evidence of interested and inimical witnesses cannot be reliable source of motive. (iii) That the empties and gun recovered from Fayyaz Ahmad appellant were sent to the fire arm expert together and the same having lost their evidentiary value, could not be used as a confirmatory evidence against the appellants. He ~" " summing up argued that the rule of independent corroboration not only as abondent caution but being mandatory requirement of this case is to be necessarily followed in the interest of safe administration of justice. (iv) The learned counsel demonstrated the total number of fire—^> shots and the injuries as a result thereof contended that ocular account was seriously in conflict wAth the medical evidence. According to him injuries No. 1 and 2 of Manzoor Ahmad were the result of one shot, whereas the injuries No. 3 to 10 being independent were caused with an independent single shot and that only two shots were fired during the occurrence. He t~tdng us to tihe location of injuries on the person of Noor Ahmad di ^ased argued that the same were the result of single fire and thereby concluded that the injuries on the persons! of both the deceased were the result of three shots only with emphasize that the eye-witnesses through suppression of truth having described the same as a result of six independent shots have dislodged them to be relied upon without independent corroboration. (v) Lastly the learned counsel placing reliance an Ajun Shah versus The State (PLD 1976 Supreme Court 185) forcefully argued that in any case due to the blood fued, the parties being inimical to each other and murders of both sides having taken place, it was not a case of extreme penalty of death. 9. Conversely, Sardar Latif Khan Khosa, the learned counsel appearing on behalf of the complainant argued that the motive in the present case is not questionable. The deceased undisputably were facing murder charge for the allegation of committing the murder of Sher Muhammad a first cousin of the present appellants, and therefore, they had a strong motive to commit the crime. Commenting upon the pressence of the eye-witnesses he argued that they belonging to the family of the deceased have joint cultivation with him and under an arranged program alongwith deceased were going towards their land in the normal course and therefore, they being natural witnesses could not be called as chance witnesses merely by reason of location of their residence at some distance. He next argued that non-interference of the witnesses in the occurrence is quit understandable as all the five appellants armed with guns were firing at the deceased and it could not possibly be expected from them to interfere in the occurrence taking risk of their lives and that the marks of pellet having not traced on the tractor was not enough to doubt the prosecution story. While talking no exception to the allegations against the individual appellant forcefully contended that the injuries on the person of each deceased were caused with independent shots as described by the eye-witnesses and excluded even remote possibility of the same as a result of less than six shots. He emphasized that presence of blackening on the injuri.es would unambiguously show that shots were fired from close range and consequently there could be no chance of receiving these injuries through scattered pellets as contended by the defence and that the close scrutiny of. medical evidence unfolding the ambiguity beging created would provide strong corroboration to the ocular account in toto except the identity of the accused. He further contended that the injuries attributed to Sikandar, Fayyaz and Nasir have caused an extensive damage to the deceased in the nature of multiple fracture of parietal and occipital bones in the skull and therefore, the present case having distinguishable features the principle laid down in the case of Ajun Shah versus The State (PLD 1967 SC 185) cannot be made applicable to the this case. 10. The learned State counsel adopting the arguments of the learned counsel for the complainant has supported the conviction and sentence awarded to the appellants by the learned trial Court. 11. We with the help of learned counsel for the parties having gone through the record made a detail scrutiny of the evidence and heard the learned counsel for the appellants as well as for the complainant and State at considerable length. 12. The background of enmity between the parties is an admitted fact. Noor Ahmad and Manzoor Ahmad deceased were real brothers of Falak Sher complainant PW-7, whereas Muhammad Afzal PW-8 is their cousin and remaining witnesses are also closely related to the complainant party. Noor Ahmad and Manzoor Ahmad deceased were accused in the murder case of Sher Muhammad, who was real brother of Dur Muhammad, acquitted accused and paternal uncle of Fayyaz Ahmad appellant and Niaz acquitted accused. Nasir and Sikandar appellants and Hakim acquitted accused are first paternal cousins of said Sher Muhammad. The trial in the - said murder case against the deceased in the present case was pending at thetime of occurrence which subsequently ended in the acquittal of remaining accused. The appellants without denying the above facts and the enmity between the parties pleaded that they were substituted for un-known assailants due to the enmity. The involvement of a person in a false case is not uncommon and enmity undoubtedly equally can be a source of false implication but this test being confined to the facts of each case cannot be made a universal rule to disbelieve the prosecution. The enmity between the / two parties is always a double edge weapon to be used by either party. Therefore, the question whether enmity is a source of motive or fall implication is judged in the facts of individual case. The enmity of murder of Sher Muhammad could be a strong reason with the appellants for taking revenge from the murder and therefore they had a motive for commission of offence. The occurrence having taken place in the broad day light in village, the possibility of substitution is not even thinkable in the present case. 13. The relation of the witnesses inter se and with deceased and the „ enmity between the parties is not a deniable fact therefore, following the rule of corroboration, a necessary requirement of the present case, the evidence of the witnesses is to be carefully scrutinized. However, the rule of independent corroboration being not an inflexible rule the evidence of an interested and inimical witness if is confidence inspiring and fulfils the required standard, it can safely be made basis for conviction without looking for corroborative evidence. The eye-witnesses under normal course directing the deceased to reach at the land located in the nearby with tractor themselves proceeded on foot. There being no necessity of their going to the land alongwith the deceased on tractor, they choose to go independently which facts could not be taken as supportive circumstance to doubt their presence at the spot. The attack being unwarned the deceased and the witnesses having not visualized any possibility of the occurrence, were on the way empty handed to their I land when they were made to face theeventful occurrence not far of from the j residence of the parties, therefore, the presence of the PWs . is unquestionable. However, the presence of the PWs itself being not a guarantee of telling the truth by a witness, we were making a conscious scrutiny of the evidence proceed for determination of the liability of an individual accused through independent corroboration. The motive in the present case undoubtedly, is a strong supporting evidence against all the accused but there being some conflict of the eye-witnesses with the medical evidence quo the individual role of each appellant, the same is to be judged independently. The deep analysis of the medical evidence reveals that Injuries Nos. 1 and 2 on the person of Manzoor Ahmad deceased attributed to Sikandar are located at one and the same place in the diagram prepared by the doctor at the time of post mortem examination whereas the locale of pellets Injuries Nos. 3 to 10 as shown in the said diagram are close to each other, which could in all probabilities and possibilities be the result of one shot. The eye-witnesses have attributed the said injuries jointly to Falak Sher and Imtiaz Ahmad. Similarly six pellets injuries traced on the head, neck and shoulder on the same side on the person of Noor Ahmad deceased could undoubtedly be the result of one shot. As per distribution given by the eye-witnesses, the injuries on shoulder and neck are attributed to Fayyas Ahmad and injury located on the neck to Nasir appellant but the more possi­bility of all these injuries of the result of one shot being near to the truth, the injuries on neck of an independent shot is doubtful. The accused having used .12 bore guns fired at the deceased from a distance of about two karams and keeping in view the size of the injuries, the cartridge could not be of LG or SG as argued by the learned counsel. The pellet injuries located closely to each other on the person of Manzoor Ahmad deceased suggested not the result of more than two shots and similarly the injuries on the person of Noor Ahmad would be result of a single shot. The position of injuries being not reconcilable as per claim of the eye-witnesses the doubt arising regarding the number of shots fired must be resolved in favour of the appellants. 14. The next question for determination would be that who out of the five appellants was responsible for causing the injuries to the deceased persons. The role of causing fire arm injuries to Noor Ahmad deceased by Fayyaz Ahmad appellant and to Manzoor Ahmad by Sikandar and Imtiaz appellants seeks ample corroboration from the medical evidence and the motive, and consequently we maintaining the findings of guilt given by the trial Court to their extent upheld their conviction. The rule of making fire shot by Nasir and Falaksher being cloudy dust to the apparent conflict of medical evidence with the ocular account, it would not safe to convict them for capital charge, therefore, we do not consider the motive alone a sufficient corroboration which could also be made for the purpose of addition with the actual accused. Consequently, the conviction and sentence of Falak Sher and Nasir is set aside and their appeal is allowed. They are directed to be released from Jail forthwith if not required in any other case. 15. The next question for determination relates to the quantum of sentence. The parties being at daggers drawn committed murder of the persons to each side and the accused of murder of Sher Muhammad have been acquitted. The parties belonging to the same village and tribe could not tolerate each other, therefore, following the view taken by the Hon'ble Supreme Court of Pakistan in Ajun Shah versus The State (PLD 1967 SC185) we are not in favour of the maintaining the death sentence. There is another factor to be taken notice of that injuries on individual deceased were collectively declared the cause of death and the learned trial Court on the basis of extensive damage caused to the Manzoor Ahmad deceased without fixing the independent liability of each appellant, awarded death penally to Sikandar and Fayyaz appellants but looking into the medical evidence with ocular account, the exclusive responsibility was not determinable. We, therefore, taking into consideration the enmity on both sides and blood fued between the parties and it being not clear that which shot caused which injury, converting the sentence of Fayyaz Ahmad and Sikandar appellants from death to life imprisonment and maintaining the sentence of life imprisonment of Imtiaz appellant dismiss their appeal. The sentence of fine and amount of compensation awarded to them by the trial Court is maintained. 16. We having considered the prayer for the grant of benefit of Section 382-B Cr.P.C. are not inclined to allow the same in the given circumstances as the appellants have already been given the benefit of lesser penally. 17. In a nutshell, while accepting the appeal of Nasir and Falak Sher appellants and maintaining of the sentence of Imtiaz with reduction in sentence of Sikandar and Fayyaz their appeal is dismissed and the Murder Reference is answered in the Negative. (AAJS) Appeal dismissed and reference answered in the nagative.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 330 [ Multan Bench] Present: muhammad nawaz abbasi, J. Hafiz SHAH MUHAMMAD-Petitioner versus STATE and another-Respondents Crl. Misc. No. 889/CB of 1995, accepted on 11.3.1998. (i) Criminal Law- —Registration of case on direction passed in writ petition and same was upheld in Intra-court Appeal-Learned ASJ stretching facts in favour of bargain and concluded it as a dispute of civil nature-Record does notshow that parties entered into a contract-Gotten bales were given in custody of accused/respondent but same were sold-Non-payment of sale price is dishonest misappropriation-Pivotal point for determination is nature of initial transaction, whether entrustment or simple sale-­ Trustee cannot change its character or sell it without permission of owner-Civil remedy cannot convert criminal liability into a civil disputedebarring criminal trial. [Pp. 333 & 334] A, C & D (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 154~Delay in registration of F.I.R.-Non-registration of case with expectation on promise of respondent for making payment was no ground to dislodge allegation-Criminal liability not diminished. [P. 334] B (iii) Criminal Procedure Code, 1898 (V of 1898)- —S. 498-Bail before arrest-Principles of~Elements of "mala fide", "false involvement", "arrest with motive to humiliate and malicious "prosecution" are prime consideration for bail before arrest. [Pp. 334 & 335] G 1996 SCMR 984 & 1997 SCMR 915 distinguished. (iv) Precedents and Judicial Administratiou- —Registration of case on the order of High Court-Learned ASJ did not follow principles and rule laid down by Superior Courts-Tenor of bail order shows that ASJ intentionally and deliberately expressed view in aparticular fashion with the purpose to close case for trial-Intentional anddeliberate criticism by ASJ on High Court orders-ASJ was ordered to explain his position for expression of opinion in contumacious mannerwithin fortnight. [Pp. 334 & 335] E, F & H Mr. Muhammad Younas Bhatti, Advocate for Petitioner. Mehr Muhammad Saleem, Advocate with Ali Muhammad, ASI for State. Mian Muhammad Jamal, Advocate fot Respondent. Date of hearing: 11.3.1998. order This application under Section 497(5) Cr.P.C. has been moved for the cancellation of bail before arrest granted to Ghulam Rasool son of Mian Jumma, Respondent No. 2 herein, by the learned Additional Sessions Judge, Mailsi, vide order dated 17.5.1995 in a case registered against him through F.I.R. No. 82/95, dated 20.4.1995 at Police Station Mailsi containing the allegations that the complainant, namely, Hafiz Shah Muhammad entrusted 502 bales of cotton weighing about 2200 maunds of the value of Rs. 19,36,405/- to the respondent for ginning of the same in his Ginning Factory, but the respondent instead of returning the cotton in question to the complainant, without his permission and knowledge, sold it and mis­ appropriated the sale proceeds. The complainant has been making efforts for payment of the price of cotton, but the respondent kept the matter lingered on through different measures and ultimately, the complainant, who is petitioner herein, having no option filed a writ petition bearing No. 4429 of 1994 before this Court seeking direction for registration of a case against the respondent who instead of returning the cotton or its price as the case may be, extended him threats of life. Consequently, under direction of this Court, a case under Section 406/506 P.P.C. was registered against the respondent through above referred F.I.R. It is stated that prior to the filing of Writ Petition No. 4429/94 by the present petitioner of the registration of the case, the respondent filed two successive writ petitions bearing Nos. 20 and 3215 of 1994, wherein he admitting his liability opted for the appointment of an Arbitrator for decision of the case and one Ghulam Mustafa having appointed Arbitrator under the order of this Court found the respondent responsible for misappropriation of cotton and fixed his liability as such. The respondent having failed to settle the matter and discharge his liability amicably forced the petitioner to approach this Court for legal action and in consequence whereof, a case having registered, the criminal liability of respondent for commission of an offence of misappropriation was successively fixed by the S.H.O., the D.S.P. of the concerned Police Station and the S.P. of the District. However, the respondent was allowed pre-arrest bail by the learned Additional Sessions Judge, Mailsi through order dated 17.5.1995. The learned Judge putting the transaction under a detailed discussion concluded that the dispute pertaining to the sale of cotton and non-payment of sale price did not create any criminal liability and that the complainant mala fidely and with ulterior motive has gone for criminal action against the respondent to compel him to make the payment and allowed pre-arrest bail to the respondent. 2. This application under Section 497(5) Cr.P.C. is pending since June, 1995. The respondent while making statement before this Court on25.10.1995 sought one month's time for settlement of the matter with the petitioner, but this application remained pending with no progress for about two years. However, on 24.9.1997, learned counsel appearing on behalf of the respondent accepted the liability of the respondent to the extent of Rs. 5,67,437/- as determined by the Arbitrator appointed by this Court x during the proceedings of Writ IVution No. 20/94. The case was againadjourned on the request of the respondent to enable him to make payment to the petitioner. Subsequently, learned counsel through a written application sought permission for the withdrawal of the statement made by him before this Court regarding the liability of the respondent on the groundthat it was made by mistake through misunderstanding. Learned counsel for the respondent after making categorical statement before this Court that the cotton in the custody of respondent belonging to the petitioner was of the value of Rs. 19,33,405/-, out of which an amount of Rs. 12.51.405/- was paid to the petitioner and the remaining amount of Rs. 5,67,437/- was outstanding, requested for further time to enable the respondent to make the payment of the amount in question and the case was accordingly adjourned with the observation that the respondent having not denied the balance amount payable was denying his liability on technical grounds. In the meanwhile, the petitioner moved another application (Crl Org. No. 37 of 1997) under Section 3/4 of the Contempt of Court Act, 1976 on the ground that the respondent after admitting his liability before this Court subsequently denying the same turned to the stand that the claim of the petitioner was false. 4. Learned counsel for the petitioner making reference to the observation, that it being a case of civil liability was mala fidely registered against the respondent made by the learned Additional Sessions Judge while granting pre-arrest bail to the respondent, forcefully contended that the learned Judge actually criticising the order of this Court in Writ Petition No. 20/1994 and I.C.A. No. 26 of 1995, by virtue of which the case was registered against the respondent, reviewed the same. Secondly, he argued that the learned Additional Sessions Judge by making detailed appraisal of the evidence, yet to be brought on record, has concluded that it was a civil dispute, and thereby decided the case at this stage disbelieving the transaction of misappropriation of the cotton entrusted to the respondent as given in the F.I.R. Lastly, he emphasized that consideration for bail before arrest being different to that of bail after arrest, the essential elements of mala fide, irreparable loss and that no case is made out on the basis of given facts being missing in the present case, the grant of extraordinary concession of bail before arrest to the respondent was misuse of the discretionary powers under Section 498 Cr.P.C. 5. Learned counsel appearing on behalf of the respondent has argued that the alleged transaction pertained to the year 1991 and the case was registered with an unexplained delay of about five years without proof of entrustment and the allegations of misappropriation through mere sale of cotton, if any, by the respondent did not constitute a criminal offence. According to him, the appointment of arbitrator was made by this Court with a view to settle the dispute evidently involving civil liability and that actually the dispute between the parties pertaining to the rendition of accounts, the non-payment of balance amount, if any, did not chance the nature of transaction for the purpose of criminal prosecution. Learned counsel summing up his arguments stressed that instead of using machinery of criminal law for return of the amount in question, the petitioner should bring a civil suit for recovery of the money. 6. The allegations against the respondent are that he without the consent and knowledge of the petitioner selling the cotton entrusted to him for ginning, misappropriated the sale proceeds through dishonest conversionto his own use. The perusal of the F.I.R. and the circumstances under which cotton was delivered to the respondent conveniently suggests that it was not a transaction of sale or purchase to term it a dispute of civil nature. Thecotton was not given to the respondent for sale, but the same was in his custody only for ginning, therefore, unless, it is shown that there was someagreement of sale between the parties, the sale of cotton by respondent to a third party was not in good faith as the respondent possible did not take into confidence the petitioner and kept the matter lingered on and subsequently without making payment of sale proceeds took the stand that he was not responsible and one Bashir committed the mischief. The circumstances and the position taken by the respondent show that he knowingly and intentionally sell the cotton without the knowledge of the petitioner for his own benefit and use and thereby the essential element of criminal breach of trust is apparent. The view of the learned Additional Sessions Judge that it was a civil dispute and the civil liability was being enforced through the machinery of criminal law mala fidely, and was misuse of process of law, seemed due to the failure of making a proper distinction of the entrustment and bargain. The learned Judge stretching the facts in favour of bargain between the parties concluded it a dispute of civil nature. The general features of a transaction giving the impression of civil liability or also existence of civil remedy cannot convert the criminal liability into a civil dispute debarring criminal trial. The learned Judge should not be oblivious of the fact that case was registered against the respondent in consequence of the order passed by this Court in the writ petition and upheld in the Intra Court Appeal after considering the matter in detail. The non-registration of the case with the expectation on the promise of the respondent for making the payment of the amount involved is no ground to dislodge the allegation as the prime interest of the petitioner was the return of cotton or atieast the payment of the price, therefore, for said reasons neither the respondent could be benefitted for shifting his responsibility nor the criminal liability is diminished. The appointment of arbitrator on the request of respondent was again with the consideration to compensate the poor petitioner, who suffered at the hands of respondent for his misdeed. The respondent has not brought any material in support of his plea of sale of cotton with consent of the petitioner. The record does not show that the parties entered into a contract of sale or that respondent failed to make payment of the price of cotton under contract. The admitted position is that the cotton bales were given in the custody of the respondent as a trustee and in any case if the same were sold by him even without bad intention, the non-payment of sale-price to the owner made it a case of dishonest misappropriation. The respondent during the pendency of this petition before this Court, at one stage, admitting his liability was prepared to make the payment in order to avoid criminal prosecution but later he turning to a different stand pleaded that the relevant record of the ginning factory was misplaced by Bashir, an employee of the Factory, with connivance of the petitioner and that he did not incur any liability The delivery of cotton to the respondent is not denied but the controversy was raised in relation to the sale of cotton and the payment of sale price, therefore, the pivotal point for the determination would be the nature of initial transaction, whether entrustment or simple sale of cotton through the respondent. The cotton having given to the respondent for ginning purpose, he being a trustee of the property belonging to the petitioner could not change its character or sell it without the permission of the petitioner. Therefore, the disposal of cotton in question being in breach of the trust constituted an act of misappropriation falling within the ambit of Section 406 P.P.C. It is observed that the learned Additional Sessions Judge while disposing of the application for grant of bail before arrest did not follow the principles and the rule laid down by the superior Courts in such cases and he should have taken utmost care in taking a critical view of the matter undoing the effect of the order of this Court in the writ petition and I.C.A. The tenor of the order shows that the learned Additional Sessions Judge intentionally and deliberately expressed the view in a particular fashion with the purpose to close the case for trial. 7. Learned counsel appearing on behalf of the respondent with reference to Razi Khan v. Muhammad Mushtaq & another (1996 S.C.M.R. 984) and Mazhar Mahmood v. Basit & another (1997 SMCR 915) argued that once bail is granted, the same cannot be cancelled unless very strong and exceptional circumstances exist. While keeping in view the difference of bail before arrest and after arrest, the essential elements of mala fide, false involvement, arrest with the motive to humiliate and malicious prosecution must be present and the consideration for bail before arrest being different, the grant of same through appraisal of evidence was not proper exercise of jurisdiction. The mala fide and ulterior motive of petitioner or police is not traceable on the record as the case was registered on the direction of this Court. The mala fide in bail before arrest must be specifically stated with all conditions and unless the said conditions are fulfilled, the exercise of discretion in favour of a person, who does not believe in trust and also has no moral value of honesty and fairness with others is not proper. Judging the conduct of the respondent and the act of depriving the petitioner from his valuable property through dishonest sale of cotton on the basis of criteria for grant of bail before arrest and also the contumacious attitude shown by him before this Court, he was not entitled to the extra-ordinary concession of pre-arrest bail. 8. For the foregoing reasons, this application is allowed and the bail before arrest granted by the learned Additional Sessions Judge, Mails! to Ghulam Rasool respondent vide order dated 17.5.1995 is hereby recalled. Mr. Jahangir Ali Sheikh, learned Additional Sessions Judge, who dealt with this matter will explain his position for the expression of opinion in a contumacious manner to the order of this Court, within a fortnight through the Additional Registrar of Multan Bench of the Lahore High Court. (A.S.) Application allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 335 Present: KHALIDA RACHID, J. STATE through ASSISTANT DIRECTOR CUSTOMS INTELLIGENCE & INVESTIGATION, PESHAWAR-Appellant versus SAID QAMASH and another-Respondents Criminal Appeal No. 177 of 1996, decided on 20.04.1998. (i) Customs Act, 1969 (IV of 1969)-- —Ss. 2 (s) and 156(l)(8)--Seizure of goods-Goods of Pakistani origin could be seized by Customs Authorities but this could only be possible when an accused person is apprehended with notified goods of Pakistan origin in border belt or within premises of International Airport. [P. 339] B (ii) Customs Act, 1969 (IV of 1969)-- —Ss. 156(1X89) and 2(s)-Smuggling-Case of-Acquittal-Appeal against- S. 2(s) suggests that any prohibited or restricted goods, if brought into or taken out of country for purpose of evading duties fall within ambit of smuggling-Antiques which admittedly did not mention name of any country of origin were seized within country—Goods in question would not fall under definition of smuggling. [Pp. 338 & 339] A (iii) Customs Act, 1969 (IV of 1969)- —Ss. 156(1) (89) and 2(s)--Onus to prove-Onus to prove guilt of an accused person is always on prosecution-Departure from general rule-In custom cases it is for accused person to prove that goods in his possession were not smuggled goods-Antiques could not be proved to be smuggled goods-Mere charge of smuggling by itself was not sufficient to raise reasonable suspicion that goods in possession of respondents were'smuggled goods. [P. 339] C (v) Customs Act, 1969 (IV of 1969)-- —Ss. 162 and 163—Search warrants~S. 163 empowers certain agencies to search premises, but under the supervision of gazetted officer and arrest person involved in commission of offence without warrant-However, such right of search is available to the officer after fulfilling of following conditions:- (i) There is a danger that the goods might be removed before the search could be made under the provision of Section 162, (ii) That the officer must prepare a statement in writing of the grounds of his belief and of the goods, for which search is to be made; (iii) That such officer who made the search must leave asigned copy of such statement at a place searched and also to deliver a signed copy thereof to the occupant of the place. [Pp. 340] D & E Mr. Shehzad Akbar Khan, Advocate, for Appellant. Mr. Muhammad Tehmash Khan, Advocate, for Respondents.Date of hearing: 20.4.1998. judgment This appeal by the State is directed against the judgment of the learned Special Judge (Central) Customs, Taxation and Anti Smuggling NVVi-'P, Peshawar, Dated 20/03/96, whereby respondent Said Qamash and other were acquitted of the charges under Section 15GUX89) read with Section 2(s) of the Customs Act, 1969. 2. The prosecution story, in brief, is that on 07/03/93, on being tipped of, on a transaction of sale being carried out of some antiques by an antique smuggler, a raiding party consisting of senior staff of Customs Intelligence started surveillance. At 1400 hours, the suspected two persons carrying hand-bags reached the scene of occurrence. Thorough search of the bags in the office of Assistant Director, Customs Intelligence situated at 76 Jamrud Road, Peshawar led to the recovery of forty-eight pieces of antiques, artifcats/coins from the bags carried by both the respondents, namely, Said Qamash and Muhammad Nisar. 3. At the pointation of respondent Said Qamash, additional antiques/copper coins numbering 30 were recovered from his house at 20:00 hours during the raid. The respondents/accused were accordingly arrested and booked under Section 156(1)-(1) (8) (89) read with Section 2(s) vide FIR No. 11, Dated 07/03/93 registered in P.S. Investigation and Prosecution Branch, Custom House Peshawar (Exhibit PW 2/8). 4. After investigation the respondents were sent up for trial before Special Judge, Customs. The prosecution examined five witnesses in all Musa Khan (PW. 1) in-charge State Godown No. A, produced the case property in a tin box, (Exhibit PA) containing 78 antiques/artifacts items. Sardar AH (PW 2) Senior Intelligence Officer, complainant, was the member of the raiding party and also marginal witness to the recovery memo (ExhibitPW 2/1). He also served the respondents accused with notices under Section 158/159 (Ex PW2/13) and Section 17 (Ex PW 2/4) of the Customs Act. He supported the contents of FIR. Muhammad Fayaz Qureshi (PW 3), Intelligence Officer, was also a member of the raiding party and marginal witness to memos (Ex. PW 2/1, 2/3, 2/5 and 2/6). Saeed-ur-Rehman (PW 4), is Deputy Director, Department of archeology. He issued the certificate(Ex. PW 2/2) certifying the seized items to be classified as antiques. Abdul Latif, Customs Intelligence Officer (PW 5) was alr-o member of raiding party and marginal witness to recovery memos (Ex. 2/1, 2/5 and 2/6).The respondents were examined under Section 342 Cr.P.C. Theyrefuted the allegations made against them and claimed innocence. They also produced evidence in support of their defence. 6. The learned Trial Court, after assessing and evaluating the evidence, held the respondents innocent and thus acquitted them of the charges leveled against them. Hence the present appeal by the State. 7. Arguments of Barrister K.G. Sabir for appellant State and Mr. Tamash Khan for the respondents/accused heard and record of the case carefully gone through. 8. Assailing the impugned judgment, the learned Counsel for the appellant contended that 'Antiques' being notified item of the list issued under Section 2(s) of the Customs Act, the 'condition' for them to be of forging origin is not mandatory. Continuing his arguments learned counsel advanced, if it is reasonably believed that the goods were smuggled, they could be rightly seized under the provision of Customs Act. He further urged that the respondents had badly failed to prove their lawful possession of antiques in question, therefore the case stood proved against them. 9. Mr. Tamash Khan, on the other hand, not denying the possession of seized goods, insisted that the antiques in question were not of foreign origin, therefore, no offence under the provisions of Customs Act could be made out against his clients. It is further maintained that the raid on the house of the respondent Said Qamash conducted by the appellant, was in contravention of Sections 162 and 163 of Customs Act, thus the seizure of the goods recovered from the house was illegal and of no legal effect. 10. To properly appreciate the contention of the learned counsel for the appellant, it would he appropriate and convenient to reproduce the provisions of law under which the respondents stood charged:- Section 2(s): "Smuggle" means to bring into or take out of Pakistan, i.^ breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties or taxes leviable thereon:- (i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and psychotropic substances; or (ii) manufactures of gold or sliver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the Official Gazette, which, in each case, exceed five thousand rupees in value; or(iii) any goods by any route other than a route declared under Section 9 or 10 or from any place other than a customs station. and includes an attempt, abetment or connivance of so bringing in or taken out such goods, and cognate words and expressions shall be construed accordingly. Section 156 (1) (89): "If any goods be smuggled into or out of Pakistan." Section 156(1)(8): "If any person without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing, or in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods." 11. The plain reading of the language employed in clauses (i) & (ii) off Section 2(s) suggests that any prohibited or restricted goods, if brought into or taken out of the country for the purpose of evading duties etc. fall within the ambit of 'smuggling'. The antiques which, admittedly did not mention the name of any country of origin were seized within the country. It is in the statement of Saeed-ur-Rehman (PW 4), that the antiques in question are remnants of the Gandhara Civilization which exists, within the National boundaries. This witness further admitted that such antiques could 4» easily be found in District Swabi, Swat, and Bajaur Agency. It is also not the case of prosecution that the goods in question were transported out of or smuggled into Pakistan. The very contents of FIR alleged that artifacts in question were being carried for the purpose of sale. There was no explanation or evidence to the effect that the sale was meant out of the ' country. Thus the goods in question would not fall under the definition of I smuggling. 12. I also have no intention to grudge the view taken by Banister Sahib that even goods of Pak origin could be seized by the customs authorities under Section 2(s) of the Act, but this could only be possible when, an accused person is apprehended with the notified goods of Pakistan origin in the border belt. In such circumstance the offence would be committed under Section 156(1)(8) of the Customs Act. The respondents were arrested at the University Campus Chowk, which is at the distance of approximately 65 k.m. away from the Afghan border and also by no means the scene of occurrence is within the Peshawar International Airport Limit. 13. Reverting to the charge under Section 156-(1) (89) of the Act, it is admitted that this clause applies to the arrest of accused person with the smuggled goods in the interior of the country. Under the general principle of jurisprudence, the onus to prove the guilt of an accused person is always on f the prosecution, but under this provision of law a departure is made from the general rule and burden of proof of prosecution is limited to the extent that "the goods are seized under this Act in reasonable belief that they are smuggled". In other words it is for the accused person to prove that the goods r in his possession were not the smuggled goods. As observed earlier that the antiques in question could not be proved to be smuggled goods. The antiques in question did not show the country of origin, but belonged to Gandharah civilization, which was admittedly in the NWFP Province. Mere charge of smuggling by itself was not sufficient to raise reasonable suspicion that the goods in possession of respondents were smuggled goods. However the explanation given by respondent Said Qamash in his statement under Section 342, as well as in his defence qua his legal possession that he being a / goldsmith used some of the items in his professional capacity and some of the items were brought by his son, Kifayat Ali, who was studying archeology as a subject in his BA degree course for orientation purposes, may not be very convincing, but no adverse inference could be drawn in favour of prosecution. 14. I also see force in the contention of the learned counsel for the respondent that the search/raid of the respondents were not conducted in accordance with the statutory provisions of the law.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 341 [DB] [ Rawalpindi Bench] Present: IFTIKHAR HUSSAIN CHAUDHRY AND mumtaz ali mirza, J J. STATE-Respondent versus MAHRAM HAYAT-Appellant X Criminal Appeal No. 208/94 and Murder Reference No. 312 of 1993 heard on 2.3.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 154-Prompt lodging of F.I.R.-Narrative contained in F.I.R. is fairly detailed, manner in which incident took place, names of accused, roles played by them, names of witnesses have been catalogued F.I.R. can betreated as a credible document. [P. 345] A (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-Murder--Appreciation of evidence-Electoral rolls of another village and not of the village where occurrence took place is not indication of the fact that the person is resident of the of another village-Private document and its scribe did not appear at trial and was not admissible in evidence-Defence version does not have support of attending circumstances of the case and also belied by medical evidence-The path traversed by the missile was straight and it had not travelled from below to upper part of the head and was fired by somebody who was standing in front of the deceased-The angle of fire and path travelled by the projectile would have been altogether different if the deceased was holding the revolver in his hand—The defence version of accused is an after thought and same was rejected. [Pp. 345 & 346] B, C & D (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-Murder--Offence of--Conviction for~Appeal against-Mitigating circumstances-There was no enmity between the parties and occurrence was a sudden flare-up in which the deceased also contributed a little bit-Awarding of maximum penalty of death is not well warranted-Penalty of death imposed on accused is converted into sentence of life imprisonment. [P. 347] E Sardar Muhammad Ishaq Khan, Advocate for Appellant. ". Malik Kabir Ahmad, A.A.G. with Qazi Ahmad Naeem, Sh. Ijaz All Siddiqui and Sh. WaqarAzeem Siddiqui, Advocates for Respondent. Date of hearing: 2.3.1998 judgment Iftikhar Hussain Chaudhry, J.-Mahram Hayat Khan son of Sultan Mehmood Khan was convicted for offence under Section 30 PPC for causing Qatal-e-Amd of Ghulam Muhammad and was sentenced to death hy judgment dated 2.12.1993 passed by Sessions Judge, Attock. 2. The prosecution case as stated in FIR Ex. PE based on the statement of Gulzar Khan complainant PW 7 is in the following terms: "He was constructing a house in village Amir Khan at & distance of 50/55 yards towards south-east from the house of his father-in-law Gulab Khan. At about 9.00 A.M. on the same day he was collecting stones outside the house under construction, when he heard the alarm from eastern side in the land of his father-in-law Gulab Khan and rushed towards that side. He saw that his wife's brother, namely, Ghulam Muhammad (deceased) was pulling his she-donkey towards his land when Ghulam Mustafa alias Sahib and Mahram Khan (accused) belonging to his village wanted to take his she-donkey forcibly alongwith them. They had loaded a wheat bag on she-donkey. Ghulam Muhammad (deceased) threw down the bag containing wheat loaded on the she-donkey. On this Mahram Khan accused in anger, threw a challenge that he would take revenge of his insult from Ghulam Muhammad, because he was 'Khan' of the village. At the same time, he asked his co-accused Ghulam Mustafa to bring Ghulam Muhammad (deceased towards the land and the house and he was going to fetch the arm and he would not let alive Ghulam Muhammad. The complainant further added that on hearing this, be became up-set and ran towards the nearby fields to save Ghulam Muhammad and raised alarm on which Elahi Bukhsh (given up PW), Muhammad Safdar (PW 8) and Abdullah, resident of the village came running towards him. He narrated them the whole story and took them towards the place where Ghulam Muhammad was present They saw that Ghulam Mustafa alias Sahib (accused) had taken Ghulam Muhammad (deceased) in the land of Mehmood Khan etc. where there was no crop whereas Mahram Khan (accused) after bringing the pistol from his home had reached there and he fired at Ghulam Muhammad by his pistol by abusing him which hit him on his left eye-brow, as a result of which he fell down and succumbed to the injuries. All of them, raised alarm to apprehend them and followed them but the accused managed to run away towards village side by raising alarm The motive behind this occurrence is stated to be that Mahram Khan accused considered himself as "Khan" of the village and other as 'Kamin'. When the brother-in-aw of the complainant did not allow him to take his she-donkey, the accused felt insulted and they, in furtherance of their common intention committed his murder." 3. Ch. Nisar Ahmad, Inspector/SHO PW 9 after receivinginformation about the occurrence went to the spot, prepared inquest report 70s.. PF and injury statement 'Ex.. PJ, in spected the spot and collected blood stained earth vide memo Ex.. PF, and an empty cartridge Ex. PA which was secured vide memo Ex. PG. The witness also took into possession shedonkey vide memo Ex. PH and one bag of wheat Ex. P9 vide memo Ex. PI. He prepared site plan Ex. PK and sent the dead body to the mortuary at T.H.Q. Hospital, Fatehjang. The Inspector recorded the statements of witnesses under Section 161 Cr.P.C. He had arrested Mahram Hayat andGhulam Mustafa alias Sahib accused on 18.6.1993 and later recovered a pistol Ex. P5 alongwith four live cartridges Ex. P7/1-4 and its licence Ex. P6at the instance of Mahram Hayat accused and handed over the case property to Moharrir of Police Station for keeping the same in the store room of the Police Station. Both the accused were found guilty and sent up to face trial before the Court. 4. The prosecution examined as many as nine witnesses at the trial. 4. Dr. Muhammad Shujaat Khan PW 1, conducted the post-mortem on the dead body of Ghulam Muhammad on 10.6.1993. He noted the following injuries on his person: 1. A lacerated wound 4 cm x 1 cm on left eye brow middle into bone deep margins were inverted and blackening was present. The bone probed and traced on right side. Frontal bone was fractured from the wound of entry. In scalp and skull it was fractured on the said injury membranes and brain was rupturedThe injury was caused by fire arm weapon. The cause of death was shock and haemorrhage which was sufficient to cause death in ordinary course of nature. The probable time between injury and death was within half an hour, while between death and postmortem was about 4 to 6 hours. 6. Asmat Hayat Shah Constable PW 2 escorted the dead body of the deceased to the mortuary for post-mortem examination. After post-mortem examination he was handed over a sealed phial PI, blood stained earth P2, blood stained shalwar P3 which he handed over the same to the Investigating Officer. Noor Ahmad Patwari PW6 prepared site plan Ex. PC and Ex. PC/1. Inayat Ali PW 6 witnessed the recovery of pistol Ex. P5 and four live cartridges Ex. P7/1-4 its licence Ex. P6. 7. Gulzar Khan, complainant appeared as PW7. He re-affirmed thenarrative contained in the FIR. He wi-nessed blood stained earth which was secured vide memo Ex. PF and an ampty cartridge Ex. P8 which was taken into possession vide memo Ex. PG. The witness stated that in his presence she-donkey belonging to Ghulam Muhammad deceased was taken into possession vide memo Ex. PH and a bag Ex. P9 containing wheat Ex. PI. The complainant had also identified the dead body of the deceased at the time of post mortem examination. Muhammad Safdar PW 8 supported the version as advanced by Gulzar Khan PW 7. 8. Ch. Nisar Ahmad, Inspector appeared as PW 9. He testified about the various steps taken by him during investigation as stated above. 9. In their statements, recorded under Section 342 Cr.P.C. the accused professed innocence. Mahram Hayat, accused-appellant, took thestand that the witnesses were related to one another and they had deposed against him due to that. He further stated that the deceased had grappled with him when he was taking a bag of wheat on donkey belonging to the accused with permission of his father and the deceased took out anunlicensed revolver and during the scuffle the same went off and the deceased was hit by himself. 10. The trial Court believed the prosecution case to the extent of Mahram Hayat and convicted him for offence under Section 302 P.P.C. and sentenced him to death. Ghulam Mustafa, co-accused of Mahram Hayat was acquitted form the case. 11. Mahram Hayat submitted Criminal Appeal No. 208/1993 against the conviction and sentence awarded to him. The complainantsubmitted Criminal Revision Petition No. 58/1994 against acquittal of Ghulam Mustafa and for enhancement of compensation. The matter has also been referred to u/S. 374 Cr.P.C. for confirmation of sentence of death imposed on Mahram Hayat. Learned counsel for the parties have been heard today. 12. Learned counsel for the appellant submitted that the learned trial Court had misapprehended the evidence on record and had drawn wrong conclusions therefrom. It was argued that the defence had successfully shown that Gulzar Khan, complainant was not resident of village Amir Alam but was resident of village Shahpur as was evidenced by Exhibits DI to DK voters list and application seeking employment for Gulzar Khan and Gulzar Khan was not in position to have witnessed the occurrence. It was further contended that Safdar PW 5 had attended the Court of Asst. Collector at Fateh Jang which was manifested by Exhibits DE& DF and he could not have been present in the village when the occurrence took place and if the testimony of these witnesses was excluded there was nothing in the hands of the prosecution to bring home the guilt to the accused and the version advanced by the accused which was the correct version of the incident should take into consideration. Learned counsel, inthe alternate, pleaded that there was no background of enmity between the parties and it was a sudden and unpremeditated occurrence and maximum penalty of death was not called for in the circumstances. Learned counsel for the State assisted by learned counsel for the complainant supported the impugned judgment. It was argued by them that it was a day time occurrence and all the villager were up and around and incident would have been seen by people from miles around the place. It as argued that the deceased and the complainant party and witnesses were ordinary tenants and they could not have dared to have falsely involved the accused in the case. As regards the alternate plea raised by the learned counsel for the appellant, Learned counsel for the complainant, agreed to this extent that there was no background of enmity between the parties and submitted that in case the Court came to the conclusion that maximum penalty of death was unwarranted, he would stress that the bereaved family be compensated adequately and also in sure terms. 13. The occurrence, the time and place of occurrence, the manner in which the death was caused (by firearm) and the reason for the incident which related to use (un-authorized or otherwise) of donkey belonging to the deceased stand admitted. According to prosecution the appellant expropriated donkey belonging to deceased and was carrying a bag of wheat to the flour machine when the deceased snatched the donkey from the appellant, the bag of wheat fell of the animal and the appellant being landowner in the village felt insulted, asked his companion to bring the deceased towards his place, fetched a pistol from his home and fired with that at the deceased who died as a result of the injury received. The case of the appellant on the other hand is that he took away deceased's donkey withthe permission of his father and the deceased tried to snatch the animal and then took out an unlicensed revolver which went off fatally hitting the deceased and that this incident was not witnessed by anyone. We, as such, are required to examine the respective stands of the parties. 14. The occurrence in this case took place at about 9.00 A.M. on 10th June, 1993 in village Amir Khan located about 14 KM from the Police Station where first information report was recorded at 9.45 A.M. The post, mortem examination on the dead body was carried out on the same day at1.30 P.M. and according to the Medical Officer P.W. 1, the probable time which had elapsed between death and post-mortem examination was 4-6 hours. Therefore, the first information report appears to have been lodged quite promptly. The narrative contained in F.I.R. is fairly detailed, the manner in which incident took place, the names of accused, the roles played by them, the names of witnesses have been catalogued therein. In this situation, where the complainant does not consume much time in reflecting upon the whole affair the F.I.R.C can be treated as a credible document. 15. The mainstay of the defence is that Gulzar Khan, complainant PW. 7 and Muhammad Safdar - PW. 8 who were closely related to the deceased were not present at the spot and had deposed falsely against the accused. In this context, electoral rolls for village Shahpur-Exhibit DI, and an application given by one Sarfraz Khan Exhibit DJ were relied upon to press the argument that Gulzar Khan was resident of village Shahpur. People get themselves enrolled in difference villages keeping in view the local interest. Being enrolled as voter in any particular area is not an indication of the fact that the person is resident of that area only and could not have been resident of an other village. As far as document Ex. D J. was concerned, it was a private document and its scribe did not appear at the trial and was not admissible in evidence. Even otherwise it did not show that Gulzar Khan was not resident of village Amir Khan. Gulzar Khan had duly explained that he being issueless lived in village Amir Khan and was building his own house there as well and the Investigating Officer, PW. 9 had categorically stated that he had investigated into this aspect of the matter and had found Gulzar Khan to be resident of village Amir Khan. It may also be seen that the occurrence in this had taken place in open fields and the spot was visible from considerable distance. Even the Patwari, PW. 5 who had prepared site plan Exhibit PC had noted in the plan that no crop was growing in the fields surrounding the place of occurrence and nothing stood in between the place and different witnesses to block their view. Village Shahpur was only 1-1/2 KM away from village Amir Khan and no worthwhile evidence has been led by defence which would show that Gulzar Khan was not present in the village or he could not have been present in village Amir Khan. As far Safdar, PW-8 is concerned, it was argued that he was present in the Court of Asst. Collector, Fateh Jang on 10.6.1993 which was evidenced by Exh. DF and Exh. DG. As far as Exh. DG is concerned, this relates to dispute between Muhammad Hussain and Sarwar. Exh. F notes presence of two of the defendants in the Court of Assistant Collector Grade II. But such interim orders are mechanical orders. The interim order also notes presence of circle Patwari in the same Court. This circle patwari appeared at the trial as PW. 5 also as he had prepared site plan Ex. PC. but it was not even suggested to him that Safdar was present before Thesildar/AC-Grade II Fateh Jhang on 10.6.1993. The arguments advanced on behalf of the appellant are without force and we reject the same. The presence of the witnesses at the spot is believed and like wise their testimony is considered to be credible. 16. The defence version does not have the support of attending circumstances of the case and is also belied by the medical evidence. The bullet had hit the deceased on his left eyebrow at middle and had travelled to the right. The path traversed by the missile was straight and it had not travelled from below to upper part of the head and was fired by somebodywho was standing in front of the deceased. If the deceased was holding the p revolver in his hand, the angle of fire and the path travelled by the projectile would have altogether different. The defence version is an afterthought, it was not the first version of the accused and we reject the same. 17. After having gone through the entire material on record, the incident appears to have occurred in the manner that Mahram Hayat marshalled donkey belonging to the deceased and was carrying a bagful of wheat to the flour-machine when deceased, annoyed at the unauthorized use of bis animal tried to snatch the donkey from Mahram Hayat, in which process the bag of wheat fell off the back of the animal Mahram Hayat who belonged to family of land-owners being lincensed at the audacity of a tenant fired at Ghulam Muhammad who lost his life. The prosecution case to this extent has been proved beyond any reasonable doubt. 18. For the foregoing reasons, we maintain the conviction of Mahram Hayat for offence under Section 302 P.P.C. but keeping in view the fact the there was no enmity between the parties and occurrence was a sudden flare-up in which the deceased also contributed a little bit, we consider that awarding of maximum penalty of death on Mahram Hayat would not well warranted and therefore penalty of death imposed on him is converted into sentence of imprisonment for life under Section 30 (b) P.P.C. The deceased was a young man and had contracted marriage recently and his family, thus deserves to be compensated adequately. The conviction shall pay an amount of Rs. one place as compensation to legal heirs of deceased by 31st December, 1998. In the event of default in payment of compensation,the convict shall undergo simple imprisonment for five years, further. The convict shall not be entitled to benefit of provisions of Section 382-B. Cr.P.C. in case compensation is not paid by him to legal heirs of the deceased. The appeal filed by Mahram Hayat-convict is dismissed with above modification in sentence. 19. The criminal revision petition has been found to be without merit and is dismissed. 20. Murder reference is answered in the negative. (A.S.) Murder Reference answered in negative.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 347 [DB] Present: mahbub An khan, C. J. and mian muhammad ajmal, J. KHAIR NABI--Appellant versus STATE-Respondent Criminal Appeal No. 160 of 1995, decided on 16.4.1998. (i) Common Intention-- —Question of common intention and motive—Common intention of accused can be gathered from conduct of accused and attending circumstances of case-Accused armed with pistols entered house of complainant where both opened fire on complainant—In such circumstances commission of such an offence can be said to be in furtherance of their common intention [P. 350] D ii) Motive- —The motive is always in the mind of the accused who commit the crime for reasons best known to him. [P. 351] E 1997 SCMR 175 ref. (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-B~Murder-Offence of--Conviction of-Appeal against- Appreciation of evidence—Prosecution has charged accused personsdirectly in F.I.R. within half an hour of incident, such promptly lodgedreport eliminates the possibility of fabrication or false implication- Prosecution witness firm to stance-Inmate of house is natural witnessand also injured by firearm injury-Depositions of both P.Ws., who are closely related to accused and had no animus against appellants to involve them falsely, are unanimous on all material aspects-Minor discrepancies/improvements in the statement of the witnesses is insignificant. [Pp. 350 j A, B & C Mr. Ishtiaq Ibrahim, Advocate for Appellants. Mr. Abdur Rauf Gandapur, Advocate, for State. Date of hearing: 16.4.1998. judgment Mian Muhammad Ajmal, J.--By this judgment we also propose to dispose of J. Cr.A. No. 161/95, as both of them have been filed against one and the same judgment of the learned Additional Sessions Judge, Swabi dated 21.2.1995 whereby the appellants were convicted and sentenced as given below. 2. The appellant in J. Cr. A.No. 160/95, Khair Nabi has been convicted under Section 302-B PPG, and sentenced to life imprisonment as "Tazir", while Gul Nabi appellant in J.Cr.A. No. 161/95 has been convicted under Section 302-C PPG and sentenced to 14 years R.I. both of the appellants have also been convicted under Section 324 PPC for sharing common intention in attempting at the life ofMst. Said-Mardan by firing at her effectively and sentenced Khair Nabi appellant to 4 years R.I. with a fine of Rs. 5,000/- or to suffer further R.I. for one year and Gul Nabi was sentenced to 8 years R.I. with a fine of Rs. 10.000/- or in default to suffer further R.I. for 2 years. Gul Nabi appellant was also held liable to pay " Daman " to the extent of Rs. 10,000/~ for causing injuries to the complainant. The amount of fine, if recovered from both he accused, half of it was ordered to be paid to the complainant and PW Amir Shah as compensation under Section 544-A Cr.P.C. The sentences were ordered torun concurrently. 3. The prosecution machinery was set in motion when Mst. SaidMarjan complainant reported the matter to the police, stating therein that she alongwith her husband Amir Shah and Mst. Rifat Bibi, her grand­daughter were present in the house. In the meantime Gul Nabi and Khair Nabi sons of Fazal Rabi armed with pistols came and started firing at her and her grand daughter. Mst. Rifat Bibi, who was present inside the 'Kotha' was hit with the fire shot of Khair Nabi and expired on the spot, while fire shot of Gul Nabi, hit her on the left shoulder. Motive for the occurrence was stated to be quarrel between grand daughter of the complainant Fauzia and the sisters of the accused. The occurrence was witnessed by Amir Shah, husband of the complainant. 4. After completion of the investigation challan was submitted in Court. Both the accused were produced in custody on 21.8.1993. Provisions u/S. 265(c) Cr.P.C. were complied with. Formal charge was framed on 12.9.1993. The accused did not plead guilty and claimed trial. 5. In support of its case, the prosecution examined as many as eight witnesses. Mir Afsar (PW 1), Muhammad Anwar IHC (PW 2), Dr. Ibrarullah (PW 3), Azizur Rehman SHO (PW 4), Munawar Khan ASI (PW 5), Muhammad Iqbal FC (PW 6), Mst. Said Marjan (PW 6) (probablyinadvertently repeated) and Amir Shah (P.W. 7) were produced and the others were abandoned as being unnecessary. 6. Mst. Said Marjan complainant has deposed that Fazle Rabbi is the father of both the accused. Her daughter Mst. Hussan Pari is the second wife of Fazle Rabbi. Mst. Gulrisha, her other daughter was married to Taj Muhammad. She was pregnant, when Taj Muhammad divorced her. She gave birth to Mst. Riffat Bibi in complainant's house. After about one year, Mst. Gulrisha contracted second marriage in village Gujrat Distt: Mardan. Mst. Riffat Bibi was brought up by the complainant and was living with her. The father of the appellants Fazle Rabbi demanded the hands of Mst. Riffat Bibi, but since he was married to the real daughter of the complainant, therefore, he was refused the hands of Mst. Riffat Bibi, as it was against the 'Sharia'. This caused annoyance to Fazle Rabbi, who through his two sons, the appellants, murdered Mst. Riffat Bibi and injured Mst. Said Marjan. 7. Amir Shah, PW. 7, husband of Mst. Said Marjan complainant, supported the story as given by the complainant in her deposition. 8. Dr. Ibrarullah (PW. 3) examined Mst. Said Marjan and found the following: 1. A firearm wound of entry size 1/2" x 1/3" infront on the left fold of neck. 2. A firearm wound of exit size 1" x 1" on the back of the fold of the neck. Nature of injuries: Simple. The same Medical Officer conducted the autopsy on the dead body of the deceased Mst. Riffat Bibi and found the following: EXTERNAL EXAMINATION 1. A firearm wound of entry size 1/2" x 1/3" in front on the forehead. 2. A firearm wound of exit to No. 1 on the back of the skull, size 2" x 1". The brain matter is coming out of the wound. INTERNAL EXAMINATION Scalp, skull, membranes and brain were injured. The stomach was normal and contained semi-digested food and fluid. In the opinion of the doctor the death was due to haemorrhage and shock and injury to the brain, caused by firearm. Probable time between injury and death was instantaneous and between death and P.M. Examination was 2 to 3 hours. 9. We have heard learned counsel for the parties and gone through the record of the case with their assistance. 10. Mst. Said Marjan (PW. 6) mother-in-law of the father of the appellants has directly charged them in the FIR within half an hour of the incident, such promptly lodged report eliminates the possibility of fabrication or false implication of the accused/appellants in the case. She in her statement before the Court stood firm to her stance taken by her in her report She being the inmate of the house is a natural witness with the stamp of firearm injury on her body which further lend support to the fact of her presence at the scene of occurrence and whose testimony find support from the other evidence on the record. Amir Shah (PW. 7) husband of Mst. Said Marjan (PW. 6) is also an inmate of the house and a natural witness. The depositions of both the witnesses, who are closely related to the accused and had no animus against the appellants to involve them falsely, are unanimous on all material aspects and support each other in all respects. There may be some minor discrepancies/improvements in the statements of the witnesses which are insignificant and they rather lend more credibility to them as two persons are not respected to narrate the same facts in the same manner. The ocular account find complete corroboration from the medical evidence as both the deceased and the injured witness have received one firearm entry wound each with its exit. Common intention of the accused can begathered from the conduct of the accused and the attending circumstances of the case. Both the accused armed with pistol entered the house of the complainant where they both opened fire on the complainant and her grand daughter whereby former got injured while latter died on the spot, in such circumstances commission of such an offence can be said to be in furtherance of their common intention as it show that it was committed with pre­ arranged plan and prior meeting of mind. Therefore, both of them under Section 34 PPG are equally guilty for the commission of the crime. According to Fire Arms Expert report (Ex. PK/1) empty recovered from the spot matched with the pistol recovered from the house of the accused, which is another corroborative evidence. 11. In the first instance the motive as given in the report was that due to the quarrel between Fauzia (grand daughter of the complainant PW. 6 and the sister of the accused, the incident took place, but at the trial both the witnesses P.Ws. 6 and 7 stated that appellant's father was annoyed due to the refusal of the hand of Mst. Riffat Bibi to him, who persuaded his sons to kill the complainant and Mst. Riffat Bibi. The motive is always in the mind of the accused who commit the crime for the reasons best known to him. The apex Court of country about motive has observed in case of 'Ahmad Nisar v. The State' (1997 SCMR 175) as under:"Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truely motivates an accused person to commit a crime is best known to him and not to others. Absence of motive or failure on the part of the prosecution to prove it does, not therefore, adversely affect the testimony of the eye-witnesses if they be otherwise reliable". In view of the above, we concur with the trial Court that prosecution succeeded in bringing home the charge against the appellants and thus they have been rightly convicted and sentenced which does not warrant any interference. Consequently, both the Jail Criminal appeals are hereby dismissed. (A.S.) Appeal dismissed

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 351 [ Multan Bench] Present: muhammad nawaz abbasi, J. MUHAMMAD MUSA-Petitioner versus STATE and 2 others-Respondents Crl. Misc. No. 1487-CB of 1997, decided on 9.3.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(2)--Scope of "further inquiry-Provision of S. 497(2) Cr.P.C. are invokable only in cases in which reasonable grounds for believing that an accused has committed a non-bailable offence and sufficient grounds exist for further inquiry into his guilt-Unless a case comes out of purview of S. 497(1) Cr.P.C. provisions of S. 497(2) Cr.P.C. cannot be pressed into service. [Pp. 353 & 354] B (iii) Criminal Procedure Code, 1898 (V of 1898)- —S. 497(5)"Bail--Cancellation of--Offence u/S. 302/109/34 P.P.C.-Grant of bail u/S. 497(2) Cr.P.C. on the basis of opinion expressed by police as an Investigating Agency on the basis of giving artificial reasons and raising presumption of innocence in favour of accused-Distinction between opinion and judgment-Opinion is not formed through rejecting evidence but same must be based on some material independent to evaluation of prosecution evidence—A Police Officer is not supposed to assume role of Court and proceed on basis of his judgment through discarding evidence of guilt-Opinion of Investigating Officer decidingcredibility of eye-witnesses in investigation deplored-While granting bail ASJ remained out of consideration that accused were named in F.I.R. with role causing fire-arm injuries to deceased-They were identified by PWs. as assailants of occurrence-Case of capital punishment-Concession of bail on the basis of favourable opinion of police did not properly excise-­ Bail cancelled. [Pp. 353, 354 & 355] A, C & D Mian Bashir Ahmad Bhatti, Advocate for Petitioner. Mr. Tariq Sher Khan, Advocate for the Respondents. Mr. Ibrahim Farooq, Advocatefor the State. Date of hearing 9.3.1998. order The respondents, namely, Ashiq Hussain and Nazar Hussain are facing charge of murder as accused in a case under Section 302/109/34 PPC registered against them through F.I.R. No. 38/97, dated 9.4.1997 at Police Station Kala, Dera Ghazi Khan. They have been allowed bail by the Sessions Judge, Dera Ghazi Khan vide order dated 10.9.1997 with the observation that they having found innocent during the investigation were entitled to the concession of bail in terms of sub-section (2) of Section 497 Cr.P.C. 2. The petitioner being complainant of the case has moved this application under Section 497(5) Cr.P.C. before this Court for cancellation of bail of respondents. The occurrence is stated to have taken place during the night of 8/9.4.1997 in the courtyard of the house of petitioner. Ashiq Hussain and Nazar Hussain accused with .12 bore guns raising Lalkaras fired at Nazar Hussain deceased, son of the complainant. The shot fired by , Ashiq Hussain accused hit on the face and neck of the deceased and that of Nazar Hussain on right shoulder of the deceased. The respondents were also identified by Ghulam Sarwar and Ghulam Farid in torchlight, who while sleeping in the adjoining house reached at the spot The reason behind the occurrence was the suspicion of accused of illicit relations of wife of Ashiq Hussain with the deceased. 3. Learned counsel for the petitioner contended that the respondents are attributed specified role of causing fire-arm injuries to the ' deceased and they being known to the witnesses were identified as such and thus the opinion of police on the basis of presumption in favour of the respondents negating the direct evidence of natural witnesses did not furnish a valid ground for grant of bail. 4. Learned counsel for the respondents without pointing out any material on record in support of their innocence forcefully argued that except the eye witnesses, no other persons from the locality has attracted to the occurrence and that even wife of the deceased as an inmate of the house did not witness the occurrence, allegedly taken place in the house of the , deceased. He argued that possibility of the occurrence as unseen being not ruled out, the opinion of Police Officer must receive full weight and that the case being of doubtful nature, the bail granting order is not intcrferable at jpthis stage after the commencement of the trial. 5. Learned State counsel has supported the cancellation with the argument that the local police formed the opinion without any material controversy to the evidence available on record in support of the allegations. 6. Having heard the learned counsel for the parties and pursued the record, I regret my inability to subscribe to the view taken by the learned Additional Sessions Judge for grant of bail under Section 497(2) Cr.P.C. on the basis of opinion expressed by the police as an Investigating Agency on the basis of giving artificial reasons though appreciation of evidence and raising presumption of innocence in favour of accused. It may be observed that a distinction is to be made between an opinion and judgment. The opinion is not formed through rejecting the evidence but the same must be based on some material independent to the evaluation of prosecution evidence. The provisions of Section 497(2) Cr.P.C. undoubtedly are invokable in the cases in which the reasonable grounds for believing that an accused has committed a non-bailable offence, are not available and sufficient grounds for further inquiry into his guilt exist and if apparently there are reasonable grounds for believing that he has committed such an offence, will not be entitled to the concession of bail. The Courts must not be oblivious of the fact that unless a case comes out of the purview of Section 497(1) Cr.P.C., the provisions of sub-section (2) of said section cannot be pressed into service on the basis of unfounded presumptions and inferences at bail stage. The learned Judge while granting bail to the respondents failed to take into consideration that although the occurrence is of night time but the accused are specifically named with their role in the F.I.R. with the claim of identification by the witnesses, the presence of whom cannot be excluded for the purpose of extending benefit to the respondents. The learned Judge also failed to take into consideration the fact that the Investigating Officer has not collected any material in support of innocence of the respondents. The tentative assessment of evidence being permissible at bail stage, the Courts are not supposed to make a detailed appraisal o the same and undo the scheme of law on bail. 7. There is no cavil to the proposition that doubt, if any arising, should go to accused even at bail stage and opinion of Police Officer, if based on some material, will also receive weight but it is not binding to be followed. The relevant evidence for the purpose of considering the innocence or guilt of a person for the purpose of application of Section 497(2) Cr.P.C. is confined to the tentative evaluation of the evidence, namely, the allegations contained in the F.I.R., the statements of the witnesses under Section 161 Cr.P.C. and such other material collected by the Investigating Officer as evidence during the investigation. The inference of the Investigating Officer that no person from the locality except the witnesses have supported the prosecution case or that the wife of the deceased has not been able to identify the assailants cannot be a valid ground to doubt the credibility of the witnesses at this early stage. A Police Officer is not supposed to assume the role of Court and proceed on the basis of his judgment through discarding the evidence of guilt. The opinion of the Investigating Officer deciding the credibility of the eye-witnesses disbelieving their claim of presence at the spot is equal to make the decision of the case through misled or misguided the judgment on merits. The following important elements of the case tagging the respondents with commission of offence remained out of consideration by the learned Judge :-- (i) Both the respondents are named in the F.I.R. with role of causing fire-arm injuries to the deceased. (ii) They were identified by the P.Ws. as assailants of the occurrence Therefore, the reasons found favour to the learned Judge for grant of bail being perverse and contrary to law must be said not valid reasons for grant of bail. 8. After having gone through the record of the case and investigation file made available in the Court, I find that the grant of bail to the respondent in this case of capital punishment was violative of theprinciples of law governing the bail matters. The learned Judge while extending the concession of bail to the respondents only on the basis of a favourable opinion of a Police Officer did not properly exercise the jurisdiction. 9. Normally, the bail granted to a person is not interfered at the .stage when the trial is already under progress, but if the discretion was not exercised in a proper manner, the case would fall under exception to the above said rule and the provisions of Section 497(5) Cr.P.C. can be invokedin suitable cases unhesitatingly. 10. For the foregoing reasons, the bail allowed to the respondents by learned Additional Sessions Judge vide order dated 10.9.1997 is hereby recalled and this application is accordingly allowed. (A.S.) Bail cancelled.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 355 [ Multan Bench] Present: ahmad nawaz malik, J. MUHAMMAD IQBAL-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 655/B of 1998, accepted on 29.04.1998. Criminal Procedure Code, 1898 (V of 1898)- —-S. 497--Offence u/Ss. 394, 324 and 511 P.P.C.»Bail»Grant of--Offences u/Ss. 394, 395 and 324 were not constituted because actually no cash or ornaments were taken away-Offences at most u/S. 337-A (i) and 337-F(ii) PPC are attracted as petitioner having no other cause to murder-­ Offender shall be liable to be punishable with offence under second partof S. 324 PPC--Offence is not covered by prohibitory clause of S. 497-- / Petitioner is admitted to bail. [P. 356] A & B 1998 SCMR 500 rel. Mr. Abdul Aziz Khan Niazi, Advocate, for Petitioner. Mr. Rana Nazir Saeed, Advocate for the State. Date of hearing: 29.4.1998. ohder Muhammad Iqbal petitioner has moved this application for post arrest bail in case FIR No. 155/97 registered on 10.6.1997 under Sections 394 324, 511 PPC at Police Station City Mian Channu. 2. The prosecution case, as is evident from the FIR, is that when Sultan complainant alongwith his wife was sleeping in his house in Amirabad on 10.6.97 at 11.30 p.m. Muhammad Iqbal petitioner resident of Chak No. 112-15-L who was running a clinic in Chak No. 125/15-L knocked the door of the complainant and happened to be his guest over-night and stayed in bis Bhaithak therein. Suddenly at about 2.30 a.m. the petitioner attacked the complainant with a dagger and also demanded keys and injuredhis wife who intervened to save her husband. The complainant sustained 11 injuries and his wife three injuries. 3. The motive of this occurrence was that the petitioner being neighbour of the complainant happened to know that the complainant was keeping in his house cash of Rs. 2,00,000/- and ornaments for purchase of plot He-attacked to commit robbery. Accordingly the present case was registered. 4. I have heard the learned counsel for the parties and perused the record. 5. Learned counsel for the petitioner contends that offences under Sections 394, 395 and 324 PPC are not constituted because actually no cash or ornaments was taken away by the petitioner. The injuries caused on the person of both the injured constituted the offence at the most under Sections 337-AU) and 337-F(ii) PPC. In view of this circumstance, the cash or other articles having not been taken away by way of robbery and the petitionerhaving no other cause to murder both the injured, the offence falls under Section 337 PPC as above and the offence under Section 324 PPC could not be constituted according to provisions of law laid down in case Jan '\Muhammad vs. Haji Noor Jamal and another (1988 SCMR 500). The contention of the learned counsel for the petitioner in that case that hurt , having been caused to the victim of such act, the offender shall be liable to be | punishable with offence as provided for the hurt caused and as such the j offence falls under second part of Section 324 PPC and the same was not j covered by prohibitory clause of Section 497 Cr.P.C., was upheld with the

following observations by the Supreme in the above cited case as follows:- "In light of the provisions contained in Section 324 PPC read with Section 337 PPC, we agreed with the submission made by the learned counsel for the petitioner. We agree with him that present case is not converted by the prohibition contained in sub-section (1) of Section 497 Cr.P.C." 6. In the instant case the offence is identical and as such is not covered by prohibitory clause of Section 497 Cr.P.C. The petitioner was arrested on 11.6.1997 and since then has been in the judicial lock-up thougha period of 10^ months has passed. The challan was submitted on 17.6.1997 and the trial Court has not yet commenced the trial. For what has been stated above I hold that the petitioner is entitled to the grant of bail. 1999 Cr.C. 357 AURANGZEBv. STATE (Mian Muhammad Ajrnal) 7. Consequentially, this petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the thai Court . (A.S.) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 357 Present: mian muhammad ajmal, J. AURANGZEB-Petitioner versus STATE and another-Respondent Criminal Misc. No. 1187 of 1997, decided on 3.4.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 497-S. 324/34 P.P.C. read with S. 19 of Arms Act-Bail-Prayer for Complainant sustained injuries falls u/S. 337-F (ii) P.P.C. as per medicalreport entailing punishment of payment of "Daman" and imprisonmentfor three years-Bare reading of Ss. 324, 337-F (ii) and 337-N(2) of Act show that provisions thereof do not supplement each other rather they are at variance from each other-Provisions of sub-section (2) of Section 337-N of Act over-rides S. 324 P.P.C. and all other sections providingpunishment for offences of hurt-Accused is not a previous convict, habitual or hardened, desperate criminal and no more required for further investigation-Bail granted. [Pp. 358 & 359] A, B & C _ Mr. Muazullah Barkandi, Advocate for Appellant Mr. Muhammad Azam Khan, A.G., N.-W.F.P. Advocate for State. Date of hearing: 3.4.1998. judgment Aurangzeb accused-petitioner facing prosecution in case F.I.R. No. 49 dated 5.4.1997 registered in Police Station, Chitral under Section 324/34 PPC read with Section 19 Arms Act, has applied for his release on bail to this • / Court. After the arrest of the accused-petitioner, his bail application was rejected by the learned S.D.M. vide his order dated 22.4.1997 and also by thelearned Sessions Judge, Chitral on 13.5.1997 while co-accused were allowed bail by the same order. Thereafter he applied for bail to Aala Dlaqa Qazi/Senior Civil Judge, Chitral on fresh ground which was allowed to him ^_ on 17.7.1997. The complainant dis-satisfied with the order dated 17.7.1997, - applied to the Court of Zilla Qazi/Sessions Judge, Chitral for cancellation of the bail granted to the accused-petitioner, which was accepted and the bail was recalled on 24.9.1997. Hence the present bail application. 2. According to the F.I.R. lodged by Muhammad Nabi Khan complainant in an injured condition, on the day of occurrence at 1530 hours he was constructing boundary walls in his lands, in the meantime Aurangzeb and his sons Niyab, Rashid Iqbal, Shafiq and Ibadur Rehman came and started dismantling the boundary wall. The complainantrestrained them from doing so, whereupon petitioner asked his son Ibadur Rehman to bring the gun who brought the same and handed over to his father. The petitioner fired at the complainant, as a result of which he was hit on his both the legs. Rashid Iqbal, Shafiq and Ibadur Rehman started pelting stones on him. The occurrence was witnessed by Habib Ullah Khan,Lai Shah, Sharif and Nisar. They also brought about separation between the parties. Motive for the occurrence was stated to be the dispute over the boundary wall. 3. I have heard the learned counsel for the parties and have perusedthe record of the case with their assistance. 4. As per medical report the complainant sustained the injuries onthe lateral side of left leg and mid side of right leg, which according to thelearned counsel for the petitioner falls under the kind of 'badi'ah', which inturn falls under Section 337-F(ii) PPC, entailing punishment of payment of Daman and imprisonment which may extend to three years as tazir. 5. According to Section 324 of the Criminal Law (Amendment) Act, 1997, if hurt is not caused in an attempt to commit qatl-i-amd, the offender shall be punished with imprisonment which may extend to ten years and shall also be liable to fine and if hurt is caused, he shall in addition to the imprisonment and fine as aforesaid, be liable to the punishment provided for the hurt caused. 6. The punishment provided for the kind of hurt under Section 337-F(ii) of the Act ibid is payment of 'daman' which is mandatory and the imprisonment for a term which may extend to three years as tazir, is discretionary and may be awarded according to the facts and circumstances of each case. Word 'tazir' has been defined in clause (1) of Section 299 of the Act ibid which means punishment other than Qisas, diyat, arsh or daman. 7. Sub-section (2) of Section 337-N of the Act provides that notwithstanding contained in this chapter, in all cases of hurt, the Court may having regard to the kind of hurt, in addition to payment of arsh, award 'tazir' to an offender who is a previous convict, habitual or hardened desperate or dangerous criminal. 8. The bare reading of the above stated Sections Le. 324, 337-F (ii) and 337-NX2) of the Act would show that the provisions thereof do not supplement each other rather they arc at variance from each other. The j punishment provided u/S. 3? 1 of the Act is imprisonment with fine under JTozi'r' and word 'shall' has been u; a maki".; it mandatory in nature, jwhereas the punishment piovi,k: '.- • 'To:..', of the hurt are the payment of arsh and daman as the case may be, which are mandatory and the award of imprisonment of various terms without any fine has been left to the discretion of the Court. The provisions of sub-section (2) of Section 337-N of the Act over-rides Section 324 and all other sections providing punishment for offences of hurt contained in the chapter. Sub-section (2) of Section 337-N begins with non-abstante clause as 'Notwithstanding anything contained in this Chapter in all cases of hurt, the Court may", give it an overriding effect over all other sections providing punishment for hurt Under this sub-section the offender beside payment of arsh may be awarded punishment of 'tazir' who is previous convict, habitual or hardened desperate or dangerous criminal. There is nothing on the record to suggest that the petitioner is either a previous convict, habitual or hardened, desperate or dangerous criminal, therefore, in view of the above legal position, the petitioner who is no more required for further investigation is entitled to bail. Accordingly, this application is accepted, and the accusedpetitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs. One Lac with two sureties each in the Uke amount to the satisfaction of Elaqa/Duty Magistrate. Sureties must be local and men of means. (A.S.) Application accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 359 [Multan Bench] Present: DR. MUNIR AHMAD MUGHAL, J. BASHIR AHMAD and others-Petitioners versus STATE-Respondent Criminal Miscellaneous No. 533/B of 1998, accepted on 21.4.1998 . Criminal Procedure Code, 1898 (V of 1898)-- —S. 498-Pre-arrest bail-Offences u/S. 39-A of Electricity Act 1910 read with S. 379 P.P.C.-Confirmation of-Dictum laid down by Superior Courts that arrest for ulterior motives such as humiliation and unjustified harassment was a valid ground for grant of pre-arrest bail-­ Offences do not fall within prohibitory clause of 497 Cr.P.C.-Raid wasconducted but offence was not committed-Pre-arrest bail already granted to petitioners-confirmed. [P. 360] A & B 1985 P.Cr.LJ 156, PLD 1989 SC 347; 1997 SCMR 1234; 1989 SCMR 2071 and 1985 SCMR 1949 rel. ~ Syed Murtaza All Zaidi, Advocate for Petitioners. Remaining for petitioner in Person. Mr. Riaz Ahmad, Advocate for State. Date order The petitioners are involved in a case FIR No. 127/98 dated 19.3.1998 registered at P.S. Seetal Mari, Multan under Sections 39-A of Electricity Act read with Section 379 PPC on the complainant of Nasir Rashid SDO, WAPDA alleging that on 18.3.1998 at 11 p.m. the complainant along with Waqar Nadeem lien superintendent reached in the premises of the mills wherefrom a window they saw that the original wires which were leading to the meter were removed and in place of them from some new wires the electricity was being supplied to the mills and found that the wires of transformer were detected form the transformer, and separate wires were fixed with the transformer. They went to the Police Station wherefrom they got police force and raided the mills and found that meanwhile, they have removed the wires and even they could not recover any wire or any other device from the mill area. The bail is pressed on the ground that factual position of the case is that writ petition No. 2357/98 was filed by the son of the petitioner before this Court wherein it was specifically mentioned that on 18.3.1998 at 12.00 noon Nasir Rashid SDO WAPDA alongwith Waqar Nadeem line superintendent came to the mills of the petitioner and demanded Rs. 50,000/- as a loan on the pretext that they have purchased a car and they had to make the payment thereof. The petitioners refused to pay the amount both the officials threatened him to face dire consequences. On the following night between 18/19.3.1998 at 2.30 a.m. both the officials alongwith the police force raided the mills and thoroughly checked all the installations but nothing was found wrong. Having failed to achieve their mischievous and ulterior motive to pressurise the petitioner to get illegal gratification. They disconnected the supply of electricity of the mills from the main supply line without legal justification. From the contents of the FIR no case is made out and that only to humiliate the petitioner all this has been done. Learned counsel for the petitioner has relied upon 1985 P.Cr.LJ. 156, PLD 1989 SC 347; 1997 SCMR 1234; 1989 SCMR 2071 and 1985 SCMR 1949; where the dictum laid down was that arrest for ulterior motives such as humiliation and unjustified harassment was a valid consideration for grant of pre-arrest bail. It is also submitted that case does not fall within the prohibitory clause of Section 497 Cr.P.C. 2. The bail is opposed on the ground that the petitioners are specifically named in the FIR and specific roll has been attributed. 3. I have given due consideration to the valuable arguments of both sides. From the contents of the state that a raid was conducted but theoffence was not committed. In these circumstances the pre-arrest bail granted to the petitioners is confirmed. (A.S.) Bail Confirmed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 361 (DB) Present: raja muhammad khurshid and asif saeed khan khosa, J J. STATE-Appellant versus MUHAMMAD RIAZ and others-Respondents Criminal Appeal No. 369/85, decided on 10.6.1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302/34~Acquittial~Appeal against-Appreciation of evidence-Version of eye witnesses differ in material details and crucial facts-Blood stained earth was not collected—Improvement in statements of prosecution witnesses giving different version from statements u/S. 161 Cr.P.C. in order to meet medico-legal report-Eye witnesses also differed with each other regarding F.I.R. version-No previous enmity between two sides- This plea was raised by accused from very beginning before Investigating Officer-Contradiction between occular account of occurrence and medical evidence-Recoveries of weapons of offence "pawns" without being blood stained-Non-recovery of blood from place of occurrence-Prosecution case is not free from genuine doubt. [Pp. 363, 364 & 365] A, B, C, D & E (ii) Pakistan Penal Code, 1860 (XLV of I860)- —Ss. 302/34-Acquittal-Appeal against-Plea of right of self defence-Two things are very essential to prove right of private defence, it was otherparty who initiated fight and secondly party taking plea of self defencealso suffered injuries at the hands of that party first and then resorted to take measures to defend himself against aggressors-Accused's plea of selfdefence corroborated by medical evidence and should be given proper credibility-Statements of accused/respondents u/S. 342 Cr.P.C. taking plea of self-defence very relevant-Accused/Respondent acquitted-Appeal against acquittal dismissed. [P. 365] F & G Mr. Muhammad Iqbal Khichhy, A.A.G. assisted by Muhammad Inayat Ullah Cheema, Advocate for Appellant Mr. Muhammad Iqbal Sargana, Advocate for Respondents. Date of hearing: 10.6.1998. judgment Raja Muhammad Khurshid, J.-The respondents namely Muhammad Riaz and Muhammad Nawaz were acquitted on a charge under Sections 302/34 PPC by Mr. Manzoor Ahmad Kamboh, the then learned Addl. Sessions Judge, Jhang vide his judgment dated 19.11.1984. The brief facts are that the respondents alongwith one Maula Bakhsh were sent up fur trial for the murder of Ghulam Muhammad on 24.12.83 at about 'Peshiwala' in the area of village Kohrianwala Chak No. 7, P.S. 18-Hazari, District Jhang. The formal FIR (EX. PB/1) was recorded by Mukhtar Hussain Moharrar/Headconstable (PW. 2) on the basis of the complaint (Ex. PB) got recorded by Allah Ditta son of Ahmad Bakhsh (PW. 7). It was stated in the complaint that the complainant Allah Ditta was a cultivator in village Kohrianwala Chak No. 7. The deceased Ghulam Muhammad was his sister's husband. He was constructing a 'Kotha' in the village for which Mistari Allah Ditta (PW. 8) and Khan Muhammad (PW. 9) were engaged as mason and labourer respectively. At about 'Peshiwela' a trough (Pernala) was being affixed in the 'Kotha' but Maula Bakhsh; an uncle of the respondents came there and objected to its affixing towards their house. It led to an exchange of hot words resulting into a quarrel. On hearing noise, the deceased Ghulam Muhammad came at the spot In the meanwhile, Muhammad Riaz and Muhammad Nawaz respondents, carpenters by profession, came to the spot while raising lalkaras and holding 'Pawas' (cot's legs) in their hands. Muhammad Riaz gave a 'Pawa' blow on the left side of head of the deceased, whereupon, Muhammad Nawaz gave another 'Pawa' blow near the left eye of the deceased. The latter fell down unconscious. The commotiftn attracted Faiz Muhammad son of Allah Ditta and Muhammad Yar son of Salehoon to the place of occurrence who also witnessed the same and separated the parties. The accused thereafter ran towards their house. The deceased was being shifted to hospital for treatment that on way, he died. The bone of contention was affixing of trough (Pernala) by Ghulam Muhammad deceased in his 'Kotha' which was objected to by the respondents/acquitted accused. 2. On the conclusion of trial, the learned trial Judge acquitted all the three accused. The state has come up in appeal against acquittal of Muhammad Riaz and Muhammad Nawaz who are also real brothers. However, no grievance was felt against the acquittal of third accused namely Maula Bakhsh nor the same was challenged in this appeal. 3. It is cbntended by the learned AAG that the judgment of the learned trial Judge was against the facts and law; that the prosecution case stood proved beyond any reasonable doubt in view of evidence given by the eye-witnesses; that the learned trial Judge erred in law by disbelieving ocular account of occurrence given by the eye-witnesses who were not only natural but were also independent ones; that the medical evidence showed fracture of skull which linked both the assailants with the murder of the deceased; that the respondents absconded after the commission of offence on 24.12.83 and were arrested on 31.12.83; that they were medically examined and their medico-legal reports Ex. PJ and Ex. PK showed that they had suffered injuries during the occurrence which established their presence and participation at the spot; that the pail; assigned to the respondents by the eye-witnesses showed that they were aggressors although they had taken plea that they acted in the exercise of their right of self defence in order to save themselves from harm when the deceased allegedly gave them some simple injuries with through (Pernala). If their plea of right of self defence is taken into consideration, it would show that they had exceeded their right of private defence and as such, were not entitled to clean acquittal. 4. We have heard the learned counsel for the parties and have also carefully gone through the evidence examined at the trial which has been read out to us during the arguments. We have also taken into consideration the documentary evidence such as post-mortem report, recoveries memos and the medico-legal reports showing injuries on the person of the respondents/accused. 5. First of all, we have to see whether or not the prosecution has been successful to prove its case. The statements of the eye-witnesses in thisregard are very essential. Allah Ditta (PW. 7) i.e. complainant is brother-inlaw of the deceased. At the relevant time, he was present at the spot when Maula Bakhsh uncle of the respondents came to the spot and objected to the affixation of trough. This led to some sort of quarrel, whereupon, the deceased also came to the spot and from the other side, the respondents/ accused who were working on a nearby lathe machine came there as they were manufacturing cot's legs. This resulted into the unfortunate occurrence in which the deceased was done to death. The version is supported by theeye-witnesses though they had differed in some material details with each other. There is no doubt that Mistari Allah Ditta (PW. 8) and Khan Muhammad (PW. 9) are independent persons and their presence was also natural as they were engaged for construction of 'Kotha'. However, they materially differed with each other in respect of crucial facts. According to Allah Ditta complainant (PW. 7) and the Investigating Officer Talib Ali (PW. 10), no blood had fallen on the ground nor any blood stained earth was collected from there. However, according to Mistari Allah Ditta (PW. 8) and Khan Muhammad (PW. 9), some blood had fallen on the ground where the deceased was injured. Secondly, all the witnesses improved their statements at the trial to say that the right side of the head of the deceased was injured although the first version given by them in their statements under Section 161 Cr.P.C. was that the deceased had received injuries on his left side ofhead. This was deliberately done in order to meet the medical evidence as according to the postmortem report (Ex. PA), the deceased had suffered abrasions on the right side of fore-heard (injury No. 1), just above the right eye-brow and another abrasion on the right side of fore-head (injury No. 2). It is, thus, clear that according to medical evidence, both the injuries on headof the deceased were on the right side of fore-head whereas, according to the eye-witnesses those were on the left side of the head. A suggestion was put to the complainant i.e. PW. 7 that the deceased had opened attack and as such was aggressor. However it was denied that after the exchange of abuses, the deceased gave injuries with trough (Pernala) on the head of Muhammad Nawaz and Riaz accused who re-acted in the right of private defence and out of them Muhammad Nawaz gave a solitary blow near the eye of the deceased by picking up a piece of wood lying near the place of occurrence in order to save himself and to save his brother from further attack. It is also note worthy that those injuries were suppressed by the prosecution although the Investigating Officer had prepared the injury statements of both the accused at the time of their arrest and had got them medically examined from the Medical Officer, who was never produced at the trial which shows slackness on the part of the Prosecuting Agency to place all cards at the table. 6. From the evidence of the eye-witnesses, it becomes crystal clear that there was no previous enmity between the two sides who were living in each other's neighbourhood. The only cause for the trouble was affixing of trough (Pernala) in the 'Kotha' of the deceased towards the side of house of the respondents. The witnesses also differed with each other regarding the construction of the 'Kotha' of which the trough was to be affixed. According . to Allah Ditta complainant (PW. 7), the mason Allah Ditta (PW. 8) and labourer Khan Muhammad (PW. 9) were raising construction of the 'Kotha' of the deceased on the day of occurrence. However according to Khan Muhammad (PW. 9), the 'Kotha' had already been constructed at some previous occasion and on the day of occurrence, they had gone only to erect the roof and to affix trough (Pernala) there. Nobody from the accused side objected almost whole of the day till 'Peshiwela' while roof was being erected or plastered. The dispute broke out on affixing of trough (Pernala) at the place. It is, thus, obvious that the construction of the 'Kotha' was completed some time back but the roof was being erected and plastered when the dispute arose on affixing of trough. The statement of Khan Muhammad (PW. 9) therefore, contradicts the statements of the other two eye-witnesses that on the day of occurrence, the 'Kotha' was being constructed. It appears that the walls had already been raised and only roof was to be made and plastered on the day of occurrence when the occurrence took place over affixing of trough. According to the witnesses, the door of shop of Muhammad Nawaz accused is on the back-side of house of Ghulam Muhammad deceased. The residential house of both the respondents/ accused was on back of their shop and there was no lane in between the house of Ghulam Muhammad deceased and house of the accused. It becomes clear from the statements of the witnesses that there was no illwill between the parties prior to the occurrence except dispute over affixing of trough. This plea was also raised by the accused from the very beginning before the Investigating Officer when they were arrested. 7. From the above, it follows that though the parties were living in the past peacefully as neighbourers but all of a sudden, first some hot words were exchanged followed by a quarrel and then by the killing. It seems to be an abrupt, provoked an un-premeditated occurrence taking place in the heat of passion from both the sides. The suppression of injuries on the person of the accused/respondents by the eye-witnesses, the contradiction between the ocular account of occurrence and the medical evidence regarding the locale of injuries on the head of the deceased, the recoveries of weapons of offence i.e. 'Pawas' without being blood stained and non-recovery of blood from the place of occurrence although according to Allah Ditta (PW. 8) and Khan Muhammad (PW. 9), the blood had fallen on the place of occurrence but the same had not been taken into possession, will clearly show that the prosecution case was not free from genuine doubt in respect of the manner in which the occurrence had taken place. On the contrary, the suggestion to the PVVs from the very beginning and also the first version of the accused after their arrest and later on recorded in their statements under Section 342 Cr.P.C. would clearly indicate that the plea of right of self defence carried reasonable and logical force in the given situation. In this respect, it may be pointed out that two things are very essential to prove the right of private defence. Firstly, it was other party who initiated fight and secondly the party taking plea of self defence also suffered injuries at the hands of the other party first and then resorted to take measures to defend himself against the aggressors. The burden to prove the plea of self defence is not very heavy on the accused and they have simply to show from the evidence or the circumstances that there is a reasonable possibility of the existence of right of self defence. When a right of private defence was set up, the essence of case should be to ascertain as to who was the aggressor and whether the accused used more force than was necessary. The nature of defence plea is to be ascertain not only from the statements of the accused but from the trend of cross-examination and from arguments of the defence counsel at the conclusion of trial. The Court must place the version of prosecution and the defence in juxta position and see which one is more plausible of the evidence before it. Accused's plea of self defence corroborated by medical evidence and motive should be given proper credibility while deciding the fate of the case. 8. After discussing the plea of right of private defence in the preceding paragraph, we have to see whether the same is available to the accused/respondents in the present case. We have already pointed out above that it was the persistent plea of the accused before the trial Court as well as before the police that they were victims of aggressions and acted in self defence. This is also clear from the suggestions put to the complainant (PW. 7) during the cross-examination which though denied but have to be analysed in the light of other attending circumstances of the case. This is in evidence that the deceased the complainant were 'Zamindar' in the village, whereas, both the respondents/accused were the carpenters who are considered as menials (Mocen) of the village. In this regard, the statements of both respondents/accused under Section 342 Cr.P.C. appear to be very relevant. Muhammad Riaz stated in answer to question No. 11 in the following terms: "I am innocent. Our house is on the back side of Ghulam Muhammad deceased. Ghulam Muhammad deceased wanted to fix a parnala on the back side of his house into our court-yard. We were sitting near the place of occurrence. We requested the deceased not to fix parnala there as the rain water would damage our wood lying nearby and cause inconvenient to us. Ghulam Muhammad deceased abused us that being a Kamee, how did we dare to ask him not to fix parnala there. There was exchange of hot words and abuses between us. Ghulam Muhammad deceased attacked and injured me with the said parnala. I got aside and he attacked my brother Muhammad Nawaz and injured him on his head. Again he wanted to give him second blow, but in order to save his life, he gave a solitary blow which landed on his left eye. I have been falsely involved in this case." The same plea is taken by Muhammad Nawaz respondent/accused. Keeping in view the social set-up in our rural areas, the 'Zamindars' are considered as masters, whereas, menials like carpenters, shoe-makers, etc. are considered as 'Kammis'. It is customary that a 'Kammi' is not supposed to offer any affront to his master in any manner. In the instant case, the master i.e. the deceased 'Zamindar' wanted to affix trough towards his back on his 'Kotha' which was the court-yard of house of the respondents. It is not only likely but appears to be very logical that the respondents/accused being menials would have gone to the Zamindar' to lodge a request that the trough may not be affixed towards the court-yard of their shop and house as it would spoil their wood, etc. It is also equally probable that the 'Zamindar' deceased must have got offended as to why they had come to him to restrain him to affix the trough. There is a strong possibility that this incident must have led to some sort of quarrel proceeded by exchange of hot words or abuses as has come in evidence. It is also highly reasonable and probable that in the said back-ground, the deceased 'Zamindar' had opened attack and in his defence got injured himself at the hands of the respondents/accused. There is a strong and reasonable probability that the respondents/accused while acting in self defence would have acted to save themselves but unfortunately the deceased lost his life although the injuries were given to him with ordinary 'Pawa' without any preparation or premeditation in a sudden heat of passion by the respondents/accused. The re-actionary blow during self defence cannot be measured in golden scales. An unintended blow may cause extensive damage even though it might have not been premeditated or intended. In the instant case, the Medical Officer had not mentioned in the post-mortem report (Ex. PA) that injuries No. 2 and 3 were sufficient to cause death in the ordinary course of nature individually as well as collectively. It, therefore, follows that even according to the assessment of the Medical Officer, those injuries were not sufficient to cause death in the ordinary course of nature and therefore, cannot be evaluated in the golden scales so as to hold that the respondents/accused had acted in excess of their right of private defence. 9. The respondents/accused were rightly acquitted and as such, the appeal being meritlcss is dismissed. (A.S.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 367 (DB) [ Rawalpindi Bench] Present: muhammad nawaz abbasi and ch. liaz ahmad, J J. SHER MUHAMMAD-Appellant versus STATE-Respondent Criminal Appeal No. 49 of 1993 and Murder Reference No. 147 of 1993, decided on 12.8.1997. (i) Constitution of Pakistan , 1973- —Article 10(l)--Services of counsel of choice-Constitution provides that no person shall be denied right to be consulted and defended by legal practitioner of one's own choice-This being a Constitutional right cannot be denied to any person-Court is under Constitutional duty to provide reasonable opportunity to a person or an accused to engage a counsel of choice and counsel must be given opportunity to defend—Court is not supposed to appoint a counsel of accused on his behalf—Unnecessary delay and undue haste without providing full opportunity of defence is deplored. [Pp. 369 & 370] C & D (ii) Criminal Procedure Code, 1898 (V of 1898)- —-S. 410-Appeal against conviction of capital punishment u/S. 302 P.P.C.- Appointment of advocate without consent and desire of appellant/accused-Recording of statements of eye witnesses in absence of defence counsel with observation by trial court that appellant was informed that in case of non-availability of defence counsel engaged byappellant, counsel appointed by Court on state expenses will conduct case on behalf of accused-Appellant moved application for setting aside appointment order of state counsel and for permission to cross-examine witnesses through counsel of his own choice-Capital punishment awarded set asided in appeal. [Pp. 368 & 369] A & B Ch. Afrasiab Khan, Advocate and Malik Qamar Afzal, Advocate for Appellant Ch. Muhammad Iqbal, Advocate for Complainant Mr. Hussain Ahmad Bhatti, Advocate for State. Date of hearing: 12.8.1997. order Muhammad Nawaz Abbasi, J.-This judgment will dispose of the Murder Reference No. 147 of 1993 sent by the learned Sessions Judge, Chakwal, Criminal Appeal No. 49 of 1993 filed by Sher Muhammad appellant against his conviction and sentence under Section 302 P.P.C. alongwith Criminal Revision No. 148 of 1992 filed by him against the orders dated 14.9.1992, 10.10.1992 and 7.11.1992 of the trial Court on the subject of appointment of defence counsel and Criminal Revision No. 48 of 1993 filed by Eida Khan against Sher Muhammad appellant for enhancement of sentence of fine and compensation under Section 544-A Cr.P.C. 2. The appellant in consequence of the trial for the allegation ofcommitting the murder of Imdad Hussain upon the charge under Section 302 P.P.C. was convicted and sentenced to death with a fine of Rs. 1,00,000/- and in default of payment thereof to undergo R.I. for five years. The fine, if recovered, was ordered to be paid as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. fide judgment dated 22.2.1994, passed by the trial Court. 3. The criminal revision filed by Sher Muhammad against the order dated 14.9.1992 by virtue of which the trial Court appointed Mr Mazhar Hussain, Advocate as defence counsel of the appellant and order dated 7.11.1992 through which the application moved by the appellant for setting aside the order dated 14.9.1992 of the appointment of the defence counsel of the appellant by the Court was rejected. The prayer of the appellant for grant of permission to cross-examine the prosecution witnesses by the counsel engaged by him was also rejected. 4. Without discussing the merit of appeal and murder reference, we feel necessity of disposal of fundamental issue of conduct of trial by an Advocate on behalf of appellant without his consent and desire. 5. The perusal of the order sheet of the trial Court shows that after framing of the charge, the case was fixed for evidence on 20.7.1992 but due to the non-availability of defence counsel, namely, Ch. Afrasiab Khan, . Advocate, for his pre-occupation before the High Court at Rawalpindi , the , same was adjourned. On the next two dates i.e. on 1.8.1992 and 31.8.1992, no progress could take place either for the reason that the Court was busy in other matters or the evidence was not available. On 14.9.1992, the learned defence counsel was again not present and the learned trial Court with the observation that the defence counsel was deliberately avoiding to appear before the Court appointing Mr. Mazhar Hussain, Advocate as defence , counsel of the appellant at the State expenses, adjourned the case for J recording the evidence to 16.9.1992 and thereafter to 22.9.1992 without any progress, on which date again due to the engagement of the trial Court in other matters, the case was adjourned to 10.10.1992. The learned trial Judge proceeded with the case and recorded the statements of eight witnesses including the eye witnesses on this date in absence of the defence counsel with the observation that the appellant was informed that in case of non­ availability of defence counsel engaged by him, the counsel appointed on the State expenses will conduct the case on his behalf. Before recording the remaining evidence, the appellant on 14.10.1992 moved an application for setting aside the order dated'14.9.1992 of the appointment of defence counsel and for permission to cross-examine the witnesses through his counsel, which having rejected vide order dated 7.11.1992, the appellant preferred Criminal Revision No. 148 of 1992 before this Court. Pending disposal of the same, the trial was concluded and the appellant was convicted and sentenced to death vide judgment dated 22.2.1993. 6. Learned counsel appearing on behalf of the appellant contendedthat the appointment of the defence counsel on State expenses having madeby the learned trial Court without the consent and desire of the appellant, he was denied to be defended by the counsel of his choice in violation of fundamental right provided under Article 10 of the Constitution of Islamic Republic of Pakistan, 1973. The appellant having not allowed to crossexamine the witnesses by the counsel engaged by him, was caused a serious prejudice and virtually was disallowed to make his defence in proper manner. 7. Conversely, learned counsel for the complainant argued that intentional non-appearance of the defence counsel through the adjournments was with'the purpose to prolong the trial and, therefore, in such circumstances the trial Court was fully justified to appoint the defence counsel and proceed with the case in the interest of justice. He argued that the appellant was not restrained to bring his counsel after the appointment of the defence counsel and no explanation being available for non-appearance of the defence counsel on the subsequent dates on which the prosecution witnesses were examined, the contention that the appellant was not provided opportunity to cross-examine the P.Ws. has no substance. 8. We have heard the lengthy arguments of the learned counsel for the appellant and the complainant and thoroughly examined the record.Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973 provides that no person shall be denied the right to be consulted and defended by the legal practitioner of his choice. The services of a counsel ofthe choice being a Constitutional right, under no law or order such right can be denied to any person. The Court is under constitutional duty to provide the reasonable opportunity to a person or an accused to engage a counsel of his choice and the counsel who is engaged by an accused must be also given areasonable opportunity to defend such accused. Undoubtedly, a person facing capital charge can be provided a counsel at State expenses on his request but if the accused has not expressed the intention to avail the services of a counsel at State expenses or is not willing to be defended by the counsel other than the counsel engaged by him or to be engaged by him, the Court is not supposed to appoint a counsel on his behalf and proceed with the case. It is only possible when an accused is not able to engage the services of a counsel of his choice and he has to be satisfied with the counsel arranged by the Court. The constitutional provision giving the right to an accused to be defended by a counsel of his choice must be strictly observed and no person should be compelled to accept the services of a counsel not engaged by him. Generally, the arrangement of a counsel for an accused on State expenses is only made in cases in which the accused is not able to engage a counsel or he requests for such facility and in such cases the choice of a particular counsel is not available to an accused. 9. The counsel, who is engaged by an accused is under a legal duty to defend said accused and made himself available before the Court during theproceedings in the case, in which he has been engaged. The counselengaged by the appellant did not attend the case on more than one dates with the result the trial Court appointed a defence counsel to proceed with the case. According to learned counsel for the accused at the trial and also in this appeal that on 20.7.1992, he was busy before the High Court at Rawalpindi Bench, but he offered no reasonable explanation for his nonattendance of the case at the trial as defence counsel on subsequent dates. However, non-appearance of defence counsel on a date which is fixed for evidence or even on more than one occasion does not validly permit the Court to curtail the constitutional right of defending through a counsel of choice by making appointment of a defence counsel at State expenses by thetrial Court to defend the accused without his consent. The unnecessary delay in the disposal of cases must be avoided but at the same time, undue haste, in the disposal of murder case without providing full and proper opportunity n to the appellant to defend himself freely and through the counsel of choice was not justified. 10. The argument that no prejudice was caused to the appellant in concluding the case on his behalf by the counsel appointed by the Court isnot logical. The appellant was the best judge for making his defence and if the witnesses were not cross-examined as per his instructions and understanding, notwithstanding the fact whether some prejudice was caused or not, it would definitely be not to his satisfaction. The contention of the learned counsel for the appellant that eye witnesses were not cross-examined in the light of the defence plea and consequently a serious prejudice was caused to him, is not unfounded. The defence plea taken by the appellant under Section 342 Cr.P.C. was not put to the witnesses to substantiate the same. 11. Be that as it may, the basic question requiring determination isthat the learned trial Court without the request of the, accused or obtaining his consent appointed the defence counsel to defend him in violation of the fundamental right of the appellant available to him under Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973. There was no extra ordinary circumstance to deny this Constitutional right to the appellant and the order of appointment of defence counsel was not defendable on the ground that no prejudice was caused to the appellant or that the defence counsel appointed on the State expenses competently conducted the trial. 12. The defence counsel on State expenses was appointed on 14.9.1992 and the evidence of some of witnesses was recorded on 10.10.1992. The appellant shortly thereafter on 14.10.1992 moved an application for set'ing aside the order of appointment of the defence counsel and for "permission to cross-examine the witnesses by the counsel of the appellant but the said application was rejected through a subsequent order dated 7.11.1992. The contention that the appellant did not object to the appointment of the defence counsel ard that non-appearance of the counsel engaged by him on subsequent dates can be treated implied consent on the part of appellant to be defended by the counsel appointed by the Court having no force is repelled. The circumstance under which, without the request of appellant, a defence counsel on State expenses was appointed, and the application for permission to cross-examine the witnesses was rejected could not justifiably be considered proper for advancement of the cause of justice. 13. In the light of above discussion, we are of the considered view that the appellant was not provided fair opportunity to cross-examine the witnesses through a counsel of this choice and he having denied his Constitutional right provided under Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973, the conviction and sentence is not sustainable. We, therefore, accept this appeal, set aside the conviction and sentence of the appellant and remand the case to the learned Sessions Judge, Chakwal for retrial only for the purpose of cross-examining the witnesses, who were not allowed to be cross-examined by the defence counsel engaged by the appellant. The prosecution as well as the defence shall have no right of production of fresh evidence on record. Learned trial Court after providing fair opportunity to the appellant of cross-examining the witnesses through his own counsel will conclude the proceedings within two months. The parties shall appear before the learned Sessions Judge, Chakwal on 10.9.1997. Record of the case shall be sent back to the Court of Sessions before the said date. The appellant shall remain in jail as under-trial prisoner, in the meanwhile. 14. This appeal and revision petition having allowed, the murder reference is answered in the negative. (A.S.) Orders accordingly

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 372 [ Rawalpindi Bench] Present: MUHAMMAD NAWAZ ABBASI, J. NADEEM TAJ-Appellant versus STATE--Repsondent Crl. Misc. No. 327/B of 1998, in Criminal Appeal No. 62 of 1998, accepted on 21.5.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 426(l-A)--Offence u/S. 302/324/34 P.P.C.-Conviction of-Appeal against-Suspension of sentence-Prayer for--Admitted fact of plea of self defence by appellant and repeated u/S. 342 Cr.P.C.-Trial Court accepting plea of self defence and withholding benefit of S. 100--Right of self-defence is to be exercised subject to restrictions contained in S. 99 P.P.C.-There can be no golden scale for measuring necessary force to be used against aggression in such circumstances and to judge manner in which aggression to be defended-Prosecution evidence and defence pleas are self-contradictory for purpose of conviction--Co-accused of appellant acquitted on plea of self-defence taken by appellant-No appeal preferred against acquittal of co-accused which attained finality-Conviction u/S. 302(b) is matter of serious debate-Sentence suspended-Appellant released on bail. [Pp. 374 & 375] A, B, C & D Sardar Muhammad Ishaq Khan, Advocate for Petitioner. Mrs. Farhat Anwar, Advocate for State. Date of hearing: 21.5.1998. order The appellant namely Nadeem Taj was tried for the charge under Section 302/324/34 PPC upon the allegation of committing murder of Irfan Khan alias Moulvi, the real brother of the complainant Chan Zeb by the learned Additional Sessions Judge, Rawalpindi, and upon conviction was sentenced to imprisonment for life with the direction to pay compensation of Rs. 2,00,000/- to the legal heirs of the deceased under Section 544-A Cr.P.C. and in default of payment of compensation to undergo SI for six months. The appellant upon conviction under Section 324 PPC was awarded the sentence of seven years' RI with a fine of Rs. 20.000/- to be paid as compensation to Chan Zeb injured and in default of payment of fine to undergo SI for three months. The sentence under the two separate charges was ordered to run concurrently with benefit of Section 382-B Cr.P.C. through judgment dated 26.3.1998. 3. As per prosecution case, the appellant armed with revolver, and his co-accused namely Rahim Taj and Arshad since acquitted armed with pistol and danda respectively attacked on Man Khan alias Moulvi deceased on 19.2.1995 near his residence located in the area of Police Station Airport, Rawalpindi. 3. The medical evidence revealed 7 fire arm injuries on the person of the deceased, whereas Chan Zeb and Daud Khan sustained fire-arm and blunt weapon injuries during the occurrence. The medical examination of Nadeem Taj appellant revealed five injuries of the nature of incised wounds,swelling and abrison on his person. 4. The appellant raising plea of self-defence stated that the complainant party armed with deadly weapons trespassing into his house raising lalkara opened firing but he being out of the house remained out of the range and target of the assailants and while from outside of his house visualizing the danger to his life fired at the complainant party in exercise .of his right of private defence to protect himself and undo the aggression being committed by his opponents. 5. The learned trial Court unambiguously concluded that the complainant party was the aggressor and that appellant while exercising the right of his private defence caused murder of Irfan Khan deceased and thereby committed an offence under Section 302(b) P.P.C. and considering the defence plea as the sole basis of conviction for committing the qatal-iamd while withholding the full legal benefit treated the same only as mitigating circumstances for the purpose of quantum of sentence u/S. 302 (b) PPC and awarded life imprisonment to the appellant. 6. Learned counsel for the appellant contended that the plea of self defence having accepted, the learned trial Court was not justified in awarding the conviction for Qatl-e-Amd under Section 302 (b) PPC with sentence of life imprisonment. He claiming the benefit of Section 100 PPC contended that in the given circumstances and conclusion of the learned trial Court the appellant was entitled to the total acquittal and consequently, the conviction and the sentence awarded to the appellant ultimately being not sustainable, he can legitimately claim concession of suspension of sentence under Section 426 Cr.P.C. He in the alternative, argued that in any case, if the benefit of Section 100 PPC is not extended to the petitioner at the time of disposal of the appeal, he in view of the findings of the learned trial Court can only be saddled with the liability of nominal penalty under Section 302(c) PPC and as per practice in such cases of short sentences the concession of suspension of sentence is not withheld. 7. Learned State counsel unhesitatingly argued that in view of the finding of the learned trial Court, the case is not covered by the provision of Section 302(b) PPG but the same being definable as an exception to intentional murder being covered by Section 302(c) PPC the suspension of sentence and grant of bail on the question of quantum of sentence cannot be claimed. 8. I have heard the learned counsel for the parties at length andconsidered the matter thoroughly. According to the prosecution story as contained in the FIR and also disclosed at the trial, the appellant alongwithhis co-accused named therein in furtherance of common intention committing aggression upon the complainant party and causing injuries to the deceased and the PWs, committed the offence under Section 302/324/34P.P.C. The defence plea as born out from the written application Ex. P-14/1brought on record in the statement of the Investigating Officer disclosed theversion of the occurrence given by the appellant in detail. The Investigating Officer having confirmed the said version of the appellant stated the same was taken by the appellant before him at the time of arrest. The appellant repeating the contents of the said application in his statement under Section 342 Cr.P.C. pleaded self defence. The learned trial Court after making detailed scrutiny of the prosecution evidence and the defence version held that the complainant party was aggressor and consequently giving the benefit of self defence to the appellant concluded that it was not permissiblefor the appellant to exceed to the extent of taking the life of the deceased. 9. The pivotal question for determination for the purpose of Section 426(1) Cr.P.C. would be whether the trial Court after accepting the plea of self defence taken by the appellant in toto through giving favourable findings, was justified in with holding the total benefit of Section 100 PPC and whether with the exclusion of prosecution evidence, the conviction on the basis of defence plea as an exception to murder was possible under Section 302(b) P.P.C. The findings of the trial Court are to the effect that thecomplainant party being aggrieved armed with deadly weapons opened firing at the house of the appellant, who while resisting the aggression exchanged firing and during this process both sides sustained injuries and as a result thereof Irfan Khan lost his life. Section 100 P.P.C. provides that the right of private defence is available to a person subject to the restriction mentioned in Section 99 P.P.C. if the alleged offence is committed under the circumstances, which occasions the exercise of the right of any of the descriptions given therein. An assault if reasonably causes the apprehension of death or grievous hurt, the person so having the apprehension that death or grievous hurt will otherwise be the consequence of such assault, suchperson while making his defence can go to the extent of causing death of attacker. 10. It would be seen that as per findings of the trial Court, the deceased and injured P.Ws. armed with fire arm inviting trouble committedaggression upon the appellant and the appellant while acting in the exercise of right of self defence fired. Thus question would be whether appellant still incurred the responsibility of murder and could be convicted under Section 302(b) PPC on the basis of defence plea with the expression of opinion that he could still make defence without causing damage to bis opponents. There can be no golden scale for measuring the necessary force to be used against aggression in such circumstances and to judge the manner in which the aggression was to be defended and therefore, the findings of the learned trial Court vis-a-vis the prosecution evidence and the defence plea are self-contradictory for the purpose of conviction for Qatl-e-Amd under Section 302(b) PPC. 11. Keeping in view the finding of the learned trial Court of disbelieving the prosecution version and accepting the defence plea, the essential question regarding the nature of the offence committed by the appellant and the quantum of sentence needs, determination. There can be no departure from the principal that in case of conviction alone on the basis of defence plea, the same must be accepted in its entirety and given effect accordingly. If the defence plea is found plausible and acceptable and the prosecution story is shattered and discredited, then in such a case there are only two courses open for the Court (i). If defence plea is substantiated only to the extent of creating doubt about the credibility of the prosecution case, that would be enough for extending the benefit of doubt to the accused and (ii) If after exclusion of prosecution case the conviction is awarded on the basis of defence plea then rarely an exception in extending the full benefit ofself defence is created. Thus, as per findings of the trial Court, itself the caseagainst the appellant does not fall within the purview of Section 302(b) PPC and consequently, the question whether the conviction and sentence under the said provision of law is sustainable needs serious consideration. 12. It being a case of self defence as held by the learned trial Court, ostensibly the full benefit of Section 100 PPC can legitimately be claimed by the appellant. This is noticeable that the co-accused of the appellant namely Rahim Taj and Arshad in view of the defence plea of the appellant have been acquitted and no revision or appeal was preferred against their acquittal and the finding of acquittal to their extent having not challenged attained finality. According to the prosecution, Rahim Taj fired at the deceased, whereas the present appellant and his co-accused Arshad caused injuries to the PWs. The learned trial Court disbelieving the Prosecution version acquitted the co-accused of the appellant, therefore, the conviction of the appellant on the basis of his plea of self defence, under Section 302 (b) PPC is definitely a matter of debate. There is no rule that while convicting a person on the basis of plea of self defence, the same should be given effect only to the extent of quantum of sentence ignoring the fact that there was no evidence to be used to hold him guilty. The legal position emerged in the given facts and the findings of the learned trial Court is that (i) if full effectwould have been given to Section 100 PPC, as per claim of the appellant, it would be a case of acquittal and if (ii) the plea of self-defence was to be considered as an exception only, the case would be falling within the ambit of Section 302(c) PPG and in such cases the quantum of sentence must rest on different consideration, which may be for any term from 2 years to 25 years of imprisonment. 13. In the light of the foregoing discussion, I am of the view that in the circumstances of the present case, the conviction under Section 302(b) PPG on the basis of defence plea may not ultimately sustain and therefore, I considering it a fit case for suspension of sentence under Section 426(a) Cr.P.C. allow this application and suspend the sentence of the appellant. He is granted bail, subject to his tendering bail bonds in the sum of Rs. One Lac with two sureties each in the like amount to the satisfaction of the trial Court. (A.S.) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 376 Present: asif saeed khan khosa, J. LAL DIN-Petitioner versus STATE-Respondent Cr. Misc. No. 2727/B/98, accepted on 19.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 498--Pre-arrest bail-Prayer for-Offence u/Ss. 302/34 and 109- Tentative assessment-Five persons named in F.I.R.-Number of affidavits supporting plea of alibi but not investigated-Newspapers clippings cannot be relied at bail stage but not controverted-Difference of version between F.I.R. and Medico Legal Report--Non-recovery of alleged pistol by police for the last four months-Delay of four hours in registration of F.I.R. even incident took place in vicinity of District Courts-Investigation file is completely silent about guilt of accused- Presumption of innocence goes in favour of accused-Bail granted. [P. 378 & 379 ] A Ch. Muhammad Akbar Gill, Advocate for Petitioner. Mr. Masroor Ahmed, Advocate for State. Date of hearing: 19.6.1998 order One Dilshad was gunned down in the District Courts, Faisalabad at about 9.10 a.m. on 7.2.1998. Vide FIR No. 63 recorded on the same day at Police Station Kotwali, Faisalabad complainant Muhammad Gulzar had nominated five persons in connection with that murder. The role attributed to the petitioner, one of the five accused persons, was that he was armed with a pistol and he had fired at Dilshad deceased hitting his'left thigh. Tahir alias Babbi co-accused was alleged to have fired at left chest of the deceased whereas Jamal Din co-accused was attributed a fire-arm injury on the abdomen of the deceased. Nasir and Kama! Din co-accused were involved on the basis of an alleged conspiracy/abetment at their instance. Lai Din petitioner in this case was arrested on 7.2.1998. He applied for his bail after arrest but the same was dismissed by the learned Additional Sessions Judge, Faisalabad on 25.5.1998. Hence, the present petition before this Court. 2. It has been argued by the learned counsel for the petitioner that the FIR in this case had been lodged with a delay of four hours whereas the occurrence took place within the precincts of the District Courts, Faisalabad where generally a number of police officials are present. It has also been argued that the injury attributed to the petitioner is admittedly on a nonvital part of the deceased and according to the post-mortem examination report that injury did not contribute towards the death of the deceased. It has forcefully been argued by him that the allegation in the FIR was that the deceased had been fired at when he was face to face with the assailants but the medical evidence shows that all the injuries sustained by the deceased were received by him from the back side. It has been stressed by the learned counsel for the petitioner that no weapon has been recovered from the petitioner and, therefore, the role attributed to the petitioner does not find any independent corroboration. He has pointed out that during the entire investigation of this case so far not a word has been recorded in the police file about any opinion of the police regarding guilt or innocence of the petitioner. He has maintained that the petitioner's involvement in this case is a result of political pressure on the police and that the whole family of the petitioner has been falsely implicated on the basis of that pressure. Learned counsel has vehemently urged that some independent circumstances cast heavy clouds of doubt on the veracity of the prosecution case. In this respect he has referred to several cuttings from different newspapers of 8.2.1998 wherein the occurrence in question had been reported showing that it was only Tahir alias Babbi accused who had perpetrated this offence all alone and that he had been apprehended at the spot by a police official. In this context learned counsel for the petitioner has also placed on record a photo copy of the log­ book maintained at the police wireless station/post, Faisalabad for 7.2.1998 showing receipt of a wireless message disclosing that this offence had been committed by a single accused who had been apprehended by a police constable in plain clothes. The learned counsel has further supported this fact with the help of another document which is an application of a police constable submitted by him before the DIG/SSP Faisalabad claiming therein that he had apprehended the solitary culprit committing this offence and that on the basis of this act of bravado he should be rewarded. That application also carries endorsement on the same by the S.P City as well as the DSP City, Faisalabad. In this very connection the learned counsel for the petitioner has pointed out that about 50 affidavits of respectables of the locality had been produced before the Investigating Officer of this case wherein the plea of alibi advanced by the petitioner had been supported. It has lastly been submitted by the learned counsel for the petitioner that the petitioner is not involved in the motive incident alleged in the present FIR and, therefore, his alleged complicity with his co-accused is a matter of further inquiry. As against that the learned counsel for the State has submitted that the investigation in this case is still in progress and the local police is yet to form an opinion about the guilt or innocence of the petitioner as regards the present occurrence. 3. After hearing the learned counsel for the parties and going through the record I feel that certain aspects of this case stand out significantly. Upon my query regarding the wireless log-book and the application of a police constable claiming reward on the basis of his apprehension of the solitary accused in this case at the spot the learned counsel for the State as well as Muhammad Ikram ASI, who has brought the record today, have failed to rebut the same. They have only maintained that this aspect of the matter shall be looked into by the Superintendent of Police, City, Faisalabad when he will take up the investigation of this case qua the petitioner. It has also not been denied by the State that a number of affidavits were in fact submitted before the Investigating Officer of this case supporting the plea of alibi of the petitioner. As regards the newspaper cuttings referred to by the learned counsel for the petitioner suffice it to say that although whole-hearted reliance cannot be placed on such clippings and admissibility thereof shall be determined at the time of the trial yet the fact remains that such newspaper reports were never controverted subsequently by any quarter. It is also surprising to notice that the plea of alibi advanced by the petitioner has not even been investigated so far and it has been conceded before me that no step has been taken in respect of verification of the stand taken by the deponents of those affidavits. It has also not been controverted that the medical evidence shows that the deceased received all his injuries from his back side whereas the FIR shows those injuries to have been caused from his front. It has also not been contested that the Investigating Officer has failed to recover any pistol from the petitioner so as to provide corroboration to the ocular account in this case. The admitted delay of four hours in lodging the FIR also puts me on caution for the reason that although the incident in question admittedly took place within the premises of the District Courts and a police constable is already on record claiming to have apprehended a culprit at the spot yet, despite availability of police officials within those premises or near about, the FIR in this case was lodged after many hours of the incident. Therefore, prima-facie chances of deliberations before registration of the FIR cannot be ruled out at this stage. It has been conceded before me by the State that the police file is completely silent so far about any finding of guilt or otherwise of the petitioner. The occurrence in question took place on 7.2.1998 and the present petitioner was arrested in this connection on 27.2.1998. If in these four months the local police could not find time or opportunity to investigate about the culpability or otherwise of the petitioner then I am not ready toe extend to them any further latitude so as to keep the petitioner behind the bars till such time the local police finds it convenient to investigate in this respect The question of liberty of a citizen, who at this stage of the case is presumed to be innocent, cannot be allowed to be treated so lightly. It is stated at the Bar by the learned counsel for the State that the Superintendent of Police, City, Faisalabad is scheduled to investigate this case on 22.6.1998 and one cannot be sure as to when any definite finding will be arrived at by him in this respect. 4. For what has been stated above I find that the case of the petitioner squarely attracts the provisions of sub-section (2) of Section 497, Cr.P.C. and the same calls for further inquiry into the guilt of the petitioner. Therefore, this petition is accepted and the petitioner is admitted to bail in the sum of Rs. 50.000/- with one surety in the like amount to the satisfactionof the Ilaqa Magistrate. 5. It is, however, clarified that if on the basis of the investigation still to be conducted in this case by the local police a finding is ultimately arrived at holding the petitioner to be guilty in the eyes of the police the State shallbe at liberty to apply for cancellation of the bail granted to the petitioner by this Court today. (A.S.) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 379 [ Bahawalpur Bench] Present: MUHAMMAD NAWAZ ABBASI, J. SULEMAN SAEED QURESffl-Petitioner versus STATE-Respondent Crl. Misc. No. 278/B of 1998, dismissed on 15.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Bail--Grant of--Prayer for-Offence u/S. 5(2) of Prevention of Corruption Act (II of 1947) read with S. 161 of Pakistan Penal Code (XLV of 1860)--Maximum punishment of three years—Offence not falling within prohibitory clause, bail is not refused normally unless an exception is .created through some statutory provision or some other strong ground relatable to matter-Features of present case does not fall within general category of cases not falling within prohibitory clause-­ Petitioner was holding a very responsible office of Assistance Commissioner Income Tax-His case being an exceptional one-Refusal does not amount to curtailment of liberty-Bail refused. [Pp. 382 & 383] A PLD 1997 SC 545 rel; PLD 1985 SC 34 disting. Mr. Farooq Baidar, Advocate for Petitioner. Malik Muhammad Farrukh Mahmood, Advocate for Complainant. Mr. Tahir Haider Wastai, A.A.G. for State. Date of hearing: 15.6.1998. order The petitioner, an Assistant Commissioner Income Tax Circle, Rahimyar Khan, is under arrest in a case under Section 161 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947, registered against him on 15.3.1998 at Police Station F.I.A. Bahawalpur, in consequence of a complaint lodged by Muhammad Ibrahim s/o Taj Muhammad to the District Magistrate, Rahimyar Khan, under whose direction, Mukhtar Ahmad Inspector, F.I.A. Bahawalpur, recorded the statement of Muhammad Ibrahim to the effect that the complainant is the President of Cotton Ginners, Rahimyar Khan, and about two years ago Punjnad Cotton Industry was purchased by his cousin Muhammad Akmal from Punjnad Group. The matter relating to the scrutiny and payment of income tax was settled by the Commissioner, Income Tax, Bahawalpur . Muhammad Suleman Saeed Qureshi, the present Assistant Commissioner expressed for re-opening the case of said Muhammad Akmal and also issued notice for the current year. Muhammad Akmal with the consultation of the complainant approached their counsel namely Mahmood, who contacted Suleman Qureshi on telephone, whereupon the accused demanded Rs. 5,00,000/- as illegal gratification for dropping the propose action against Muhammad Akmal, however, he agreed to receive Rs. 2,00,000/-. According to the petitioner, he after making arrangement of rupees one lac met the accused and agreed him not to make further demand and instead of making payment to the petitioner reported the matter to the F.I.A. The currency-notes of the denomination of rupees one lac were produced by Muhammad Ibrahim before the Additional Deputy Commissioner (G) who was deputed by the District Magistrate to conduct the raid and got their number noted and thereafter a raiding party headed by the A.D.C. (G) was arranged. Muhammad Ibrahim complainant alongwith Muhammad Akmal went to the petitioner and after delivering the amount in question in his office signalled through mobile telephone whereupon the police party raided the office of Assistant Commissioner and recovered the tainted currency-notes of the value of rupees one lac kept by him in a file rag on left side of his table which having recovered were taken into possession. Additional Deputy Commissioner (G) completed necessary proceedings at the spot including recording the statements of the witnesses. The petitioner in his statement before the raiding Magistrate identifying his voice admitted his conversation on the subject with the complainant and his Advocate recorded on tap saying that he committed a mistake. The tap-recorder containing the conversation of the petitioner with the complainant party before the raid on the subject is available with the Investigating Officer. 3. Learned counsel for the petitioner contends that the complainant is the real brother of local M.P.A. namely Imtiaz Ahmad who having personal grudge against the petitioner for his non-cooperation with him involved him in this false case. According to him, the petitioner being not competent to re-open the case and make scrutiny of the income tax returns submitted by Muhammad Akmal, the owner of the Punjnad CottonIndustry, there could be no question of his demanding the bribe for extending any favour in the matter. He argued that the story on the face of it being not appealable, the mala fide and ulterior motive is apparent. He further argued that the petitioner is in the judicial lock-up for the last about three months without trial and the Challan has not been submitted for wantof sanction which is not excepted to be made available shortly. He placingreliance on PLD 1985 SC 34 contended that the offence under Section 161 PPC being punishable with maximum sentence of three years and the offence under Section 5(2) of the Prevention of Corruption Act, 1947, providing imprisonment for seven years do not fall within the prohibitory clause of Section 497 Cr.P.C. and, therefore, bail in such like cases is grantedas of rule and refused as an exception. 4. Learned counsel appearing on behalf of the complainant and the State contrarily argued that the whole conversation between the petitioner and the complainant regarding the settlement of the consideration for doing the needful having preserved through tape-recorded is available with the Investigating Agency and further the recovery of tainted currency-notes from the possession of the petitioner from his office presence of the witnesses is a strong proof of his guilt. He argued that there being reasonable ground to believe that the petitioner had committed the offence with which he is beingcharged, he is not entitled to the concession of bail. Learned counsel placing reliance on Imtiaz Ahmad and another vs. The State (PLD 1997 SC 545) wherein it has been held that the distinction between an offence committed by an individual in his private capacity and an offence committed by a public servant/functionary in respect of or in connection with his public office is to be made and the practice to allow bail in former cases not falling under the prohibitory clause in the absence of an exceptional circumstances may be followed but in the latter category of cases, the offenders belonging to a distinct class falling under exception to the general rule are to be dealt with accordingly. The observation made by the apex Court is as follows: - "The Courts should not be oblivious of the fact that at present country is confronted with many serious problems/ difficulties of National and International magnitude, which cannot be resolved unless the whole nation as a united entity makes efforts. The desire to amass wealth by illegal means has penetrated in all walks of life. The people commit offences detrimental to the society and the country for money. Some of the holders of the public office commit or facilitate commission of offences for monetary consideration. In the above scenario the Court's approach should be reformation-oriented with the desire to suppress the above mischieves. To achieve the above object, it is imperative that the Courts should be applied strictly the laws which are designed and intended to eradicate the above National Evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice. It should not be overlooked that Article 9 of our Constitution, which relaties to a fundamental rights, guarantees life and liberty of every person. Life, inter alia, includes the right to have access to a fair and independent judicial forum for redress. A balance is to be strucked between National and individual interest/right." 5. There is no cavil to the prosecution that a person who is an accused of non-bailable offence not falling within the prohibitory clause, the bail is granted following the principle referred above and normally is not refused unless an exception is created through some statutory provision or some other strong grounds relatable to the matter. The present case having distinguishable features does not fall within the general category of the cases not falling within the prohibitory clause and refusal of bail in such cases can be called curtailment of liberty as punishment. The petitioner was holding a very responsible office dealing with the collection of revenue through mis­use of his powers demanded bribe for showing favour not to re-open the income tax case of Punjnad Cotton Industry, therefore, the question what loss he has caused to the Treasury or what has gained by him is not material in the circumstances of the present case as the petitioner was not supposed to indulge in such nefarious activities. Therefore, the case against the petitioner being fully covered by the judgment in the case PLD 1997 SC 545 given by the apex Court, the same being an exceptional one, the petitioner cannot be extended the benefit of the general rule for the grant of bail in such like cases. 6. Mukhtar Ahmad, Inspector F.I.A. present in Court states that the Challan has not been submitted for want of sanction and the needful will be done as soon as the sanction is received expectedly within a short time. I, therefore, dispose of this application with direction that the Investigation Agency, after obtaining the sanction for prosecution, submit the final report within one month and the petitioner will be entitled to repeat his application after submission of the Challan. (A.S.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 383 Present: raja muhammad khurshid, J. AZHAR ALI-Petitioner versus THE STATE-Respondent Criminal Misc. No. 3583/B of 1998, dismissed on 10.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 498--Bail pre-arrest--Offence u/S. 420/468/406/471 PPC-FIR is clear enough to assign a role to petitioner who being an employee of complainant company had mis-appropriated a huge amount of rupees one million, out of which he had returned part payment and promised to return remaining amount but failed to do so—Defence that money was to be collected from customers for supply of goods and petitioner being cashier had no concern with said amount, nor it amounted to mis­ appropriation, cannot be readily take up while dealing with case of pre-arrest bail-Petition dismissed in limine. [P. 384] A Petitioner in Person with Syed Shakir Mi Rizvi, Advocate. Date of hearing: 10.7.1998 order A case under Sections 420/406/468/471 PPC was registered against the petitioner vide FIR No. 243 dated 13.6.98 at P.S. Ichhra, Lahore as he being an employee of Ah' Gohar & Company (Pvt) Ltd. i.e. complainant company had mis-appropriated an amount of rupees one million. However, through some negotiations, he returned Rs. 3,36,665/- and promised to return the remaining amount to liquidate his liability. However, he failed to do so, whereupon the present case was got registered by the complainant. The petitioner applied for pre-arrest bail which was dismissed vide order dated 6.7.98 passed by a learned Addl. Sessions Judge, Lahore for cogent reasons. The petitioner instead of surrendering to the custody of the Court has managed to escape to move a fresh petition for pre-arrest bail before this Court. 2. Learned counsel for the petitioner has submitted that the allegation regarding mis-appropriation of the amount in question is not only false but totally baseless. In this respect, it is contended that the money was to be collected from the customers to whom the firm had supplied goods and as such, being cashier, the petitioner had no concern with the aforesaid recovery. Secondly, it was contended that it was a dispute of civil nature and the offence of mis-appropriation was not attracted to the facts, narrated in the FIR. 3. I have considered the foregoing submissions and have alsogone through the material placed on record. The FIR is clear enough to assign a role to the petitioner who being an employee of the complainant company had mis-appropriated a huge amount of rupeesone million, out .of which he had returned the part payment as stated above and promised to return the remaining amount but on his failure to do so, the present case was lodged. The defence that the money represented the sale proceeds of the goods supplied to the customers, as such, the petitioner has no concern with the said amount nor it amounted to mis-appropriation, cannot be readily taken up while dealing with the case of pre-arrest bail. This type of defence can be given before the Investigating Agency if there is any substance In it. As such, the petitioner has no case for pre-arrest bail. His application was rightly dismissed by the learned Addl. Sessions Judge, Lahore . The petitioner is accordingly dismissed in limine. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 385 Present: raja muhammad khueshid, J. PARVEZ IQBAL-Petitioner versus STATE-Respondent Crl. Misc. No. 5554/B/98, dismissed on 27.10.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 498--Bail before arrest-Prayer for»Offence u/Ss. 420/468 and 471 Pakistan Penal Code, 1860-Petitioner named in FIR and a specific role attributed--No mala fides on the part of police-Neither at the time of dismissal of pre-arrest application before ASJ he surrendered to police nor he joined investigation-Recovery of disputed amount and forged documents yet to be effected-Investigtion in such like cases should be allowed to take its usual course-Petition dismissed. - [P. 386] A & B Mian Abdul Qayyum, Advocate for Petitioner Mrs. Siddiqa Altaf Khan, Advocate for State with Rana Abdul Jabbar Khan, Advocate for Complainant. Date of hearing: 27.10.1998. order A case under Sections 420/468/471 PPC was registered against the ~~ petitioner and others at P.S. Iqbal Town , Lahore vide FIR No. 328/98 dated 26.7.1998 on the ground that he alongwith his co-accused cheated the complainant. The brief facts are that the petitioner alongwith his co-accused namely Mumtaz Khan, Advocate and Lai Khan showed a plot measuring 16 Marias to the complainant situated in Allama Iqbal Town, Lahore and received approximately Rs. 266,000/- from him. They also gave an _ understanding to the complainant that the allotment of the plot was to be made by Ch. Muhammad Jamil, Civil Judge whose cause list was shown to the complainant, wherein, his name was listed in a case. Later on, it transpired that a fictitious record of some case was prepared and the name of the complainant in that case was shown in the cause list in order to perpetuate fraud and to receive the above said amount fraudulently. Later ~~ on, an enquiry was held against one of the accused Rana Mumtaz Advocate by the Punjab Bar Council in which it was found that the aforesaid person was not even an Advocate and was impersonating as such. 2. The petitioner applied for pre-arrest bail which was dismissed by Ch. Muhammad Riaz, learned Addl. Sessions Judge, Lahore vide his detailed order dated 10.10.1998. The petitioner instead of surrendering before the police managed to escape and filed the present petition for pre-arrest bail inthis Court on 14.10.1998. It was contended in the petition that the petitioner had nothing to do with the cheating or fabrication of any Court record and that he has been falsely implicated in the case. 3. Learned counsel for the complainant has, however, submitted that the petitioner being an AST in the police department trapped the complainant by holding a false promise that a plot would be allotted to him. The bail petition was opposed on the ground that the petitioner is a member of a gang perpetuating such types of frauds upon different persons. The petitioner allegedly never joined the investigation nor did he surrender to the police after his pre-arrest bail was dismissed by the learned Addl. Sessions Judge as aforesaid. He has been found guilty during the police investigation but is avoiding his arrest to defeat the ends of justice. 4. I have heard learned counsel for the parties and also the learnedcounsel for the State on the points raised above. The petitioner is named in the FIR and a specific role is attributed to him for cheating the complainant and also for fabricating some Court record in order to commit the fraud upon the complainant and to deprive him of heavy amount. He was also joined by his co-accused who were also stated to be at large. 5. The foregoing facts do not reveal any mala fides on the part of the police, rather an impression is gained that the police is also in league with him as it had failed to arrest him after him after the dismissal of his prearrest bail. In such a situation, the petitioner is not entitled to pre-arrest bail d particularly when there is an allegation that he did not join the investigation and the recovery of the disputed amount and the forged documents is yet to be effected. The investigation in such like cases should be allowed to take its" usual course. The petition is accordingly dismissed. 6. It was directed in the order dated 14.10.1998 during the hearing of this petition that the petitioner shall not be arrested in this case. The aforesaid order is withdrawn. The petitioner may be taken into custody by the police concerned. (K.K.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 387 [DB] Present: mian nazir akhtar and M. javed buttar, JJ. IHSANULLAH-Petitioner versus STATE-Respondent Crl. Misc. No. 32/B/1998-BWP, dismissed on 10.3.1998. Criminal Procedure Code, 1898 (V of 1898)- —-S. 497--Bail-Grant of--Offence u/Ss. 302/148/149/109/120-B/379 PPC- Plea of alibi--DSP (I.O.) held petitioner to be innocent on plea of alibi-He had joined some shop-keepers in investigation who stated before him that petitioner has not present at time of occurrence-Plea of alibi is oral- Shopkeepers were interrogated by I.O. after more than one year of occurrence which cannot be preferred at bail stage over eye witnessesaccount who fully implicated petitioner and supported prosecution story, narrated in FIR--Petitioner had absconded after occurrence-Oral plea of alibi cannot be accepted at bail stage, notwithstanding fact that it had weighed with I.O. as Police opinion regarding innocence of an accused is not binding on court particularly when it does not seem to be based on any sound material-Petition dismissed. [Pp. 388 & 389] A to C Sardar Ahmad Khan, Mr. Masood Ahmad Khan and Malik Ghulam Farid Pahaur, Advocates for Petitioner. Mr. Muhammad Akhtar Qureshi, Advocate for State. M/s. A.R. Tayyib and Asif Chohan, Advocates for Complainant. Date of hearing: 10.3.1998. order This order will dispose of Crl. Misc. No. 32-B/98, filed by Ihsanullah, accused and Crl. M. 132-B/1998 filed by Manzoor Hussain, accused for grant of post arrest bail in a case registered against them and others vide FIR No. 21, dated 4.3.1996 for offence under Sections 302/148,149/109,120-B/379 of the PPC at P.S. Head Rajkan, District Bahawalpur. 2. At the time of occurrence Ihsan, petitioner was armed with a .12 . bore gun and Manzoor Hussain with Klashnikov. They alongwith their co-accused Muhammad Tayyeb armed with repeater .12 bore gun and Zulfiqar and Muhammad Iqbal armed with .222 rifles fired at Asghar Ali, real brother of Akbar Ali, complainant who was critically wounded and then died at the spot. The occurrence was witnessed by Muhammad Arif, Abdur Rahman and Muhammad Siddiq, apart from Akbar Ali, complainant. After the occurrence Manzoor Hussain, petitioner and Muhammad Iqbal made good their escape alongwith Tariq Ayyub co-accused who was waiting in a car. Ihsan petitioner, Muhammad Tayyeb and Zulfiqar co-accused escaped on the motor-cycle of Asghar Ali, deceased while firing in the air. 3. We have heard learned counsel for the petitioner and the learned AAG for the State. The occurrence had taken place on 4.3.1996. Ihsanullah, petitioner was arrested on 16.5.1996 and Manzoor petitioner on 17.6.1997. The investigation was initially conducted by Sajjad Haider, SI till 15.5.1996 and thereafter by Liaqat Ali, Inspector till 9.12.1996. 3y that time Ihsanullah, petitioner had been arrested while Manzoor Hussain, petitioner remained an absconder. As mentioned above Manzoor Hussain, petitioner was arrested on 17.6.1997 and at that time the case was being investigated into by Muhammad Munawar, DSP, who held ihe petitioners to be innocent vide Zimni No. 81, dated 22.6.1997. He had joined some shop-keepers of the Adda in the investigation who stated before him that the petitioners were not present at the time of occurrence. Jamaat Ali, ASI also deposed before the I.O. that the petitioners had not participated in the occurrence. The I.O. came to the conclusion that Ishanullah, Manzoor Hussain, petitioners, Khalid Hussain, Mushtaq Raja, Ashfaq Raja and Tahir Anwar co-accused were innocent. We refrain from discussing deeper merits of the case including the finding of innocence recorded in favour of the above mentioned accused persons, lest it might cause prejudice to them at the trial. Suffice it to observe that the petitioners' plea of alibi is oral and was supported by some shop-keepers of the Adda who were interrogated by the I.O/DSP in May, 1997, more than one year after the occurrence. It cannot be preferred at this stage over the eye-witness account furnished by Akbar Ali, complainant, Muhammad Arif, Abdur Rahman and Muhammad Siddiq, who !in their statements recorded under Section 161 of the Cr.P.C. fully ! implicated the petitioners and supported the prosecution story narrated in I the FIR. It is time that the plea of alibi can be considered at the bail stage as held in the case of Ch. Muhammad Shaft vs. Ch. Muhammad Anwar Samma and another (1975 SCMR 219) and Muhammad Azam vs. Khalid Javed Gillan etc. (1981 SCMR 734). However, weight to be given to the plea of alibi at bail stage depends upon the quality of material brought on the record in each case. If the plea of alibi is promptly raised and is supported by reliable material then it can be safely made basis for grant of bail. In the case of Muhammad Roshan vs. Ahmad Khan etc. (PLJ 1974 Cr. Cases Lahore 185) bail was granted on the basis of a letter of Major of Pak. Army regarding presence of the accused on duty. In the case of Syed Hamid Raza and two others vs. The State (1974 P.Cr.L.J. Note 77 Karachi) bail was granted to two accused on their plea of alibi, one of whom was an officer in PIA who was shown not to be at the place of incident at the time of occurrence and the other, a Medical Officer who was in attendance in the hospital at the relevant time. Their presence at the places of the duty was supported by the documentary evidence and thus considered sufficient for their enlargement on bail. In the vase of Mnhavtirxid Hussain us, Muhammad Anwar Ahmad Khan and another (1975 SCMR 151) affidavits of 20 advocates were available to support the plea of alibi of an accused who was granted bail. In the case of Akram Khan vs. The State 1978 SCMR 242, certificate showing an accused person to be present on duty in his unit was given weight for granting bail on his plea of alibi. In this case it was held by the Hon'ble Supreme Court that it was not possible to lay down a rule of thumb in respect of grant of bail on the defence plea of alibi raised during the course of investigation. 4. In the presence case, as mentioned above, both the petitioners had absconded after the occurrence. Ihsanullah, petitioner was arrested after about two months and 12 days while Manzoor Hussain, petitioner after about one year and three months of the occurrence. We are not persuaded to accept their oral plea of alibi, at this stage, for allowing them bail notwithstanding the fact that it had weighed with the Investigation Officer. It is settled law that the police opinion regarding innocence of an accused is not binding on the Court particularly when it does not seem to be based on any sound material. not, find any merit in this 5. For the foregoing reasons, we do petition which is dismissed. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 389 [DB] Present: raja muhammad khurshid and khawaja muhammad sharif, JJ. AMIR KHAN-Petitioner versus SIRAJ DIN and 3 others-Respondents Crl. Misc. No. 3586/CB/98, dismissed on 14.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(5)-Bail--Cancellation of-Offence u/S. 324/34/109 PPC-- Respondents Nos. 2 & 3 were involved on statements of PWs-In view of delayed statements, allegation of conspiracy and abetment attributed to said respondents called for further inquiry particularly when they were not present at spot-According to investigation, respondent S was found empty handed and did not make any fire which makes his case also a case of further inquiry-No ground for cancellation of bails already granted by trial Court,—Petition dismissed in llmine. [P. 391] A & B Mr. Saif-ul-Haq Ziay, Advocate for Appellant. Date of hearing: 14.7.1998. order A case under Section 324/34/109 PPG was registered against the Respondents Nos. 1 to 3 and one of their co-accused namely Khushhal Din on the ground that they demanded Rs. 50.000/- from Gul Khan PW allegedly as Gunda Tax. On refusal Khushhal Din while armed with 30 bore pistol confronted Gul Khan PW whereupon Siraj Din respondent shouted lalkara that the victim he taught lesson for refusing to pay the aforesaid amount Khushhal Din fired 6/7 shots causing injuries on the leg of the victim. Siraj Din Respondent No. 1 also made 6/7 fires from 30 bore pistol but missed the victim. The occurrence had allegedly taken place on the instigation and abetment of Jamal Din i.e. father of Khushhal Din and his son Bismillah Din. As such injuries were caused to the victim by Khushhal Din whereas ineffective firing was made by Siraj Din and conspiracy was allegedly attributed to Jamal Din and Bismillah Din. 2. The bail petition to the extent of Khushhal Din was dismissed whereas the remaining respondents namely Siraj Din, Jamal Din and Bismillah Din were admitted to bail vide the impugned order on the ground that according to the investigation it was not proved that Siraj Din was armed with 30 bore pistol or he had made firing. Likewise the story about the conspiracy and abetment in respect of Jamal Din and Bismillah Din was also considered to be doubtful because of delay in examining the witnesses against them. 3. The learned counsel for the petitioner has submitted that the respondents bails are liable to be cancelled because there was sufficient proof on the file that two of them were guilty of conspiracy whereas Siraj Din was having 30 bore pistol and had made firing while raising lalkara. In such a situation the vicarious liability of respondents co-existed with the principal accused namely Khushhal Din who had caused injuries to the victim. Reliance was placed on Amir Khan vs. The State reported as 1970 SCMR 789, Ghulam Nabi and another vs. The State reported as 1989 P.Cr.LJ. 126 and Chiragh Din and others vs. The State reported as PLD 1967 Supreme Court 340. 4. Further elaborating the facts it was contended that according to the principle laid down in the above authorities, the accused raising lalkara were declined bail. Similarly the accused guilty of abetment and conspiracywere also not entitled to bail, in view of sharing common intention with the principle accused. 5. We have considered the foregoing submissions and find that thereis no cavil with the principle laid down in the above authorities but each case has to be decided on its own merits. In the instant case Respondents Nos. 2 & 3 were involved on the statements of PWs, which were obtained on 10.5.1998. In view of these delayed statements, the allegation of conspiracy and abetment attributed to the aforesaid respondents called for further inquiry particularly when they were not present at the spot. It has rightly been observed by the learned trial Court that if the aforesaid witnesses had gained previous knowledge about the conspiracy prior to the occurrence, then in pursuance of the ordinary course of nature, they should have reported the matter to the police. As such the question of conspiracy andabetment remain wide open for inquiry during the trial. According to the investigation, respondent Siraj Din was found empty handed and did not make any fire which makes his case also a case of further inquiry. 6. In view of the above situation, the learned trial Court had rightly released all the three respondents on bail. We find no ground for cancellation of-the bails already granted to the respondents by the learned trial Court. This petition is dismissed in limine (MYFK) Petition dismissed

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 391 [DB] Present: sheikh abdur razzaq and dr. munir ahmad mughal, JJ. MUHAMMAD NAWAZ-Petitioner versus STATE-Respondent Crl. Misc. No. 3892/B/1998, allowed on 13.8.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Bail-Grant of-Offence u/S. 302/34/109 PPC--Petitioner has beenassigned role of causing injuries on back as well as on head of deceased- As per post mortem examination report fatal injury is attributed to coaccused-There is discrepancy between ocular account and medical version—Petitioner is in jail for more than \ years and trial has not started-Bail allowed. [Pp. 392 & 393] A ---. Mr. Muhammad Ahsan Bhoon, Advocate for Petitioner. Sh. Munawar Hussain, Advocate for State. Date of hearing: 13.8.1998 order Petitioner seeks post arrest bail in a case FIR No. 128 dated 7.11.1996 for offences under Sections 302/34/109 PPC registered at Police Station Kot Ladha District Gujranwala. 2. Briefly stated the prosecution case is that on 6.11.1996 at about Ishawela Muhammad Yousaf husband of the complainant went to his Dera for sleeping. At about 11.00 p.m. complainant was informed that accused Saif Ullah alias Kalu, Ijaz Ahmad, Riaz Ahmad and Muhammad Nawaz all sons of Noor Muhammad, at the behest of Noor Muhammad and Rehmat had murdered Muhammad Yousaf after taking him in the field of sugarcanebelonging to one Muhammad Abbas situated within the area of Nokhar. The incident is alleged to have been witnessed by Ghulam Muhammad and Nasar PWs. Motive behind the occurrence is stated to be that one Muhammad Nawaz, real brother of the complainant, had been residing with the deceased and had developed illicit relations with Mst. Shabana sister of the accused and to take revenge of that the instant incident has taken place. 3. Contention of the learned counsel for the petitioner is that complainant is not an eye witness of this occurrence, that, no specific role has been attributed to the present petitioner, that there are contradictions in the medical evidence vis-a-vis the ocular account given by the eye witnesses, that the petitioner was arrested on 9.12.1996 and is in jail for the last one year and seven months, that trial has not yet started, that fatal Injury No. 2on the person of deceased is not attributed to the petitioner, that in case of contradiction between the ocular account and medical evidence, benefit has to be extended to the accused and relied upon Waroo vs. The State (1980 P.Cr.L. J. 789). He further submitted that mere allegation of murder against an accused is not sufficient evidence to disentitle him to the relief of bail and relied upon Muhammad Abbas and another vs. The State (PLD 1988 S.C. (AJK) 14). He thus submitted that petitioner may be enlarged on bail. 4. Conversely the petition has been opposed by the learned counsel for the State. He contended that appraisal of medical evidence with ocular account amounts to deeper appreciation of evidence which is not warranted by law at bail stage and petitioner cannot claim any benefit on that score. He submitted that petitioner has been assigned the role of causing fire arm injury to the deceased which stands corroborated from post mortem examination report. He thus submitted that all these facts disentitle him to the relief sought by him. 5. Petitioner alongwith Saif Ullah alias Kalu, Ijaz Ahmad and Muhammad Riaz stands charged for committing the murder of deceased. Accused Saif Ullah alias Kalu is absconder, whereas Muhammad Riaz accused has been declared innocent and Ijaz Ahmad accused has been Jgranted bail by the learned trial Court. The petitioner has been assigned the Aj role of causing injuries on the back as well as on the head of the deceased. As per post mortem examination report the fatal injury is No. 2 which is attributed to Saif Ullah alias Kalu since absconder. As per post mortem examination report Injuries Nos. 4, 5 and 7 are exit wounds and others are wounds of entry. This factual position creates discrepancy between the ocular account and medical version. Although deeper appreciation of evidence at this stage is not warranted by Jaw, yet tentative assessment is not precluded. It is also admitted position that petitioner is in jail for more than 1 h years and trial has not started. Keeping all these facts in view, we allow the petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs. one lac with one surety in the like amount to the satisfaction of trial Court. (MYFK) Bail allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 393 Present: DR. MUNIR AHMAD MUGHAL, J. ANWAR BIBI-Appellant versus STATE-Respondent Criminal Appeal No. 686 of 1993, accepted on 22.7.1998. Pakistan Penal Code, 1860 (XLV of 1860)- —Ss. 420/466/468/471--Appeal against conviction-Complainant and PW. 4exonerated appellant when they appeared in witness box—They were declared hostile and were allowed to be cross-examined but nothingincriminating could come from their mouth against appellant-Complaint and whole super-structure raised on it was without a basis-Prosecution has miserably failed to bring home guilt against appellant-Trial court was not justified to imagine a situation which did not arise out of evidence and circumstances of case-Appeal allowed-Conviction and sentence set aside. [Pp. 394 & 395] A AIR 1946 P.C. 38 and 1969 P.Cr.L.J. 1213 ref. Mr. Mahmood ul Hassan Khan, Advocate and Mian Abdul Qayyum Anjam, Advocate at State. Mr. Muhammad Aslam Malik, Advocate for State. Date of hearing: 22.7.1998. judgment The appellant and two others, namely, Bashir Ahmad and Ishtiaq Hussain were tried in the Court of learned Special Judge Anti Corruption, Lahore under Sections 420/466/468/471 and 34 PPC and Section 5(2) of the Prevention of Corruption Act, 1947 on the allegations that Bashir Ahmad, co-accused who was posted as a Revenue Patwari Halqa Jia Bugga, Tehsil and District Lahore in the year 1986 abused his official position as a public servant, issued forged Fard Malkiyat in respect of the land measuring three kanals 10 marlas in the name ofMst. Khurshid Bibi and by deceiving Sardar Ali etc. the complainant party and in furtherance of common intention with Mst. Anwar, the present appellant, Ishtiaq and Muhammad Khalid dis­ honestly and fraudently caused wrongful loss of Rs. 15,000/- by registering sale deed in favour of Sardar Ali etc., on behalf of Mst. Khurshid Bibi while actually produced Mst. Anwar Bibi, the present appellant, at the time of registration of sale deed and has also committed criminal mis­ conduct. 2. The appellant and other co-accused were convicted under Sections 420/34 PPC and sentenced to R.I. for six months with a fine of Rs. 5,000/- each and in default of payment of fine to undergo further R.I. for one month. They were acquitted on the charge under Sections 468/471 PPC and Section 5(2) of the Prevention of Corruption Act, 1947. 3. After formal inquiry, the appellant and co-accused were charge sheeted where they pleaded not guilty. The prosecution examined 14 witnesses at the trial and the accused denied the allegations in their statements under Section 342 Cr.P.C. She alleged that she was got involved falsely by accused Bashir Ahmad and that she wanted to sell her own land ivhen her thumb impressions were obtained on some papers. 4. The learned trial Court found the appellant and the co-accused juilty under Sections 420/34 PPC and passed the impugned sentence whiletcquitted them of the other charges. 5. Arguments have been heard at length and record perused. 6. The short point involved in this appeal is as to whether on the lasis of evidence that has come on the record the impugned order of onviction could be legally passed when the charge against the appellant is hat she impersonated her as Khurshid Bibi in connection with an alienation f piece of land. The complainants Muhammad Siddique appeared as PW. 3 nd Sardar Ali, PW. 4 did appear in person and exonerated the appellant, 'hey were declared hostile and were allowed to be cross-examined but othing incriminating could come from their mouth against the appellantMuhammad Siddique Halqa Patwari (PW. 6) had deposed that Khurshid Bibi had alienated her entire land in 1984 and did not own any land. It means that at the relevant time the complaint and the whole super-structure raised on it was without a basis. The prosecution has, thus, miserably failed to brin^, home the guilt against the appellant. The learned Special Judge Anti-Corruption was not justified to imagine a situation which did not arise out of evidence and circumstances of the case or to arrive at a conclusion not supported by evidence. In the case of Bry Bhushan Singh versus The King-Emperor (A.I.R. 1946 P.C. 38) their lordships of the Privy Council observed:- "Where the Court discusses in great detail the statements made by the witnesses under S. 164 and gives reasons for accepting the facts, or most of the facts deposed to in those "statements" in preference to the evidence given by the witnesses in Court, which is no way helped the prosecution, this is an improper use of such statements." Similarly, in the case of Akram Khan and another versus The Crown (1969 P.Cr.L.J. 1213) their lordships of the Hon'ble Supreme Court observed that decision should be given on judicial evidence and not on personal beliefs. For what has been discussed above, the appeal is allowed and the impugned conviction and sentence are set aside. The appellant is already on bail and she is discharged of her bail bonds. (MYFK) Bail allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 395 [ Bahawalpur Bench] Present: SH. ABDUR RAZZAQ, J. GHULAM SHABBIR-Petitioner versus TEHSILDAR RECOVERY etc.-Respondents Criminal Misc. No. 206-H/1998, allowed on 10.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- ^—S. 491-West Pakistan Land Revenue Act, 1968, Ss. 36, and 113 read with Rule 56 of Rules, 1968--Appointment as temporary Lambardar for recovery of land revenue—Detained for non-payment of land revenue from certain land owners-Hofeeos petition against-Initially duty of collecting land revenue u/S. 113 of Act, 1968 vests with Lambardar and in case he satisfies Revenue Officer that certain defaulters are not makingpayment to him, he has to bring this fact into notice of R.O. whose duty is to collect same from defaulters-Detenu/Lambardar has been recovering land revenue and depositing same-He has also been moving applications to R.O. with a list of defaulters as stipulated by Rule 56 of Punjab Land Revenue Rules, 1968-Ilespondent has proceeded under an erroneous assumption that irrespective of fact whether alleged detenu submitted list required under Rule 56 or not, proceedings could be taken against him-- Such a view of law is not correct-Detenu ordered to be released forthwith-Petition allowed with cost. [Pp. 398 & 399 ] A & B Malik Muhammad Sadiq Channar, Advocate for the Petitioner. Sycd Muhammad Haroon Hassan Bukhari, Tehsildar Respondent No. 1 in person. Date of hearing: 10.6.1998. order Heard. Comments of Respondent No. 1 have been filed and perused. 2. Instant petition has been filed by the petitioner for recovery and production of his father Jindwadda son of Khair Muhammad from the illegal custody of respondents. 4. Briefly stated the facts are that the detenu Jindwadda son ofKhair Muhammad, father of the petitioner, was appointed as temporary lambardar in 1995 of Mauza Bindra Tehsil Bahawalpur for the recovery of land revenue for the crops of Rabi 1992 to Kharif 1994. He started collecting arrear of land revenue for the crops of Rabi 1992, Kharif, 1992, Rabi 1993,Kharif 1993, Rabi 1995, Khairf 1995 and Rabi 1996 and deposited a sum of Rs. 26529.00 Rs. 25208.00, Rs. 19,000.00, Rs. 22312.00, Rs. 26,000.00, Rs. 38,106.00 and Rs. 32,000.00 vide challans annexures A to G respectively. He also moved an application Annexure H for the collection of arrears of land revenue alongwith list of defaulter Annexure H/l with the Revenue Officer as required by Section 56 of Land Revenue Rules, 1968. He also moved a similar application Annexure K for the recovery of Rs. 33000.00from the defaulters and requested for appropriate action against them. It isasserted that Respondent No. 1 without initiating any penal action against the defaulters arrested his father and has sent him to Central Jail Bahawalpur. It is argued that this coercive order of Respondent No. 1 is in direct conflict with the provisions of Section 113 of Land Revenue Act read with Section 56 of the Rules framed thereunder, as such be declared illegal and detenue be set at liberty. 5. Conversely, comments of Respondent No.. 1 reveal that as per statement of detenu dated 27.2.1997, a sum of Rs. 80166.13 was outstanding against him. And even if he has deposited a sum of Rs. 28000.00 on 1.3.1997, yet a sum of Rs. 52166.13 is outstanding against him. He has denied that alleged detenu moved applications alongwith list of defaulters for the recovery of arrears of land revenue. He asserted that detention is legal and petition merits dismissal. 6. According to Section 36 of the West Pakistan Land Revenue Act, "the Board of Revenue may, with the previous approval of Government, make rules to regulate the appointment, duties, emoluments, punishments, suspension and removal of village officers." It is according to this provision of the Land Revenue Act that headman, also known as lambardar, is appointed. According to Section 113 of West Pakistan Land Revenue Act, land revenue is collected either by the Revenue Officer or by village officer/headman/Zambardar. 7. The question involved in the instant petition is very simple. The stand of the petitioner is that his father has been appointed temporary lambardar and has been collecting and depositing the arrears of land revenue and his father has been detained for non-payment of land revenue from certain land owners. 8. Recovery of arrears of land revenue is governed by Section 113 of the Land Revenue Act 1968, which provides two eventualities and it is the first one, with which we are concerned in this case, Section 113, ibid reads as follows: "Recovery of certain arrears through Revenue Officer instead of by suff.-When a village officer required by rules under Section 36 to collect any land revenue or sum recoverable as an arrear of land revenue— (a) satisfies a Revenue Officer that the revenue or the sum has fallen due and has not been paid to him, or (b) has collected such revenue or sum, but has not credited the same to Government in the manner provided in the rules, the Revenue Officer may, subject to rules which the Board of Revenue may make in this behalf, recover such revenue or sum, from the person from whom it is due, or the village officer by whom it was collected, as the case may be, as arrears of land revenue." A perusal of this Section 113 shows that initially the duty of collecting land revenue vests with the he&dmsLa/Lambardar and in case he satisfies the Revenue Officer that certain defaulters are not making payment to him, he has to bring this fact into the notice of Revenue Officer, whose duty is to collect the same from defaulters subject to the Rules framed by the Board of Revenue. In the instant case the determ/Lambardar has been recovering-" land revenue and depositing the same vide receipts referred above. He has also been moving applications to the Revenue Officer with a list of defaulters, as stipulated by Rule 56 of the Rules framed thereunder which reads as follows— RULE 56 OF PUNJAB LAND REVENUE RULES. 1968. "Application of Headmen for recovery of arrears from defaulters.-(l) When headman wants to make recovery of land revenue or any sum recoverable as an arrear of land revenue under Section 113, he shall make an application to the Revenue Officer stating herein:- (a) the name and description of the defaulter; (b) the arrear of which recovery is desired; (c) the circumstances which have made the application necessary. 2) Any number of defaulters residing in the same estate may, at the discretion of the Revenue Officer, to whom the application is made, be included in the same application, but the arrear due from each defaulter shall be separately specified." 9. In view of such legal provisions, it appears that Respondent No. 1 has proceeded under an erroneous assumption that irrespective of the fact whether the alleged detenu submitted the list as required under Rule 56 or a not, proceedings could be taken against him. Such a view of the law is not correct. Therefore, this petition is allowed with costs and coercive action taken against the alleged detenu, without satisfying the requirements of law, abdul qayyum v. state (Muhammad Naseem Chaudhari, J.) 1999 Cr.C. 399 is declared to be without lawful authority and of no legal effect. Consequently, detenu is ordered to be released forthwith if not required in any other case. (MYFK) Petition allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 399 Present: MUHAMMAD NASEEM CHAUDHARY, J. ABDUL QAYYUM--Petitioner versus STATE-Respondent Criminal Misc. No. 4822/B of 1998, dismissed on 4.11.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 420, 468 & 471-Criminal Procedure Code (V of 1898), S. 497--Accused having issued forged cheque to complainant was proceeded against and his bail application was refused-Conduct of accused who is principal of Educational Institution being exceptional case, bail was refused to him— Accused being public servant was legally bound as such public servantnot to engage in trade-Accused having defrauded complainant and other person was not entitled to bail. [P. 400] A, B 1995 P.Cr.L.J. 946 ref. Mr. Qadeer Ahmad Rana, Advocate for Petitioner. Mr. Naeem Sadiq, Advocate for the State. Mr. Azam Nazir Tarar, Advocate for the Complainant. Date of hearing: 4.11.1998. judgment Ikram Ullah complainant got recorded FIR No. 576 dated 14.10.1997 at Police Station Alipur Chatha, District Gujranwala under Sections 420, 468, 471 Pakistan Penal Code wherein he alleged that he supplied rice valuing Rs. 4,41,559/- to Abdul Qayyum petitioner-accused during the month of April, 1997. Abdul Qayyum is said to have issued cheque dated 10.5.1997 for United Bank Limited Branch Hafizabad to the extent of the aforesaid amount which was dishonoured as no amount was available in his account No. 2217. The law was set in motion. The evidence was procured and Abdul Qayyum was arrested on 6.8.1998 in this case who was earlier arrested in an other case and was lodged in District Jail, Mandi Baha-ud-Din. The bail application of this petitioner has been rejected by the learned lower Courts who have filed this petition before this Court with the same desire. 2. I have heard the learned counsel for the parties as well as thelearned State Counsel and gone through the record before me. The main contention of the learned counsel for the petitioner-accused is that the offences with which the petitioner-accused has been charged do not fall within the prohibitory clause and for that matter he is entitled to be . admitted to bail. I express my inability to agree with him. As rightly pointed out by the learned counsel for the complainant the petitioner, who is the a Principal of a Government College, has defrauded the complainant of this case and two other persons by issuing the forged documents/cheques prepared by him as valuable security. The ruling printed as Lai Hussain vs. Muhammad Akbar and two others (1995 P.Cr.L.J. 946 Lahore) is applicable to the facts of this case wherein it has been held that fraud is serious offence only a degree less serious than 'Haraba' and the bail allowed to the accused of the case by the Court of Session was cancelled on the ground that the evidence apparently was available to connect the accused with the commission of the offence. In the said case cheque valuing Rs. 2,50,000/- was dishonoured by Habib Bank Limited Branch Chakwal. This accused is also involved in two cases of the same nature registered at FIR No. 369 dated 8.7.1998 at Police Station Phalia, District Mandi Baha-ud-Din under Sections 420, 461, 471 Pakistan Penal Code and Crime Case No. 258 dated 15.6.1997 registered at Police Station Saddar Hafizabad under Sections 420, 406, 379 Pakistan Penal Code. The rice is said to have been supplied by the complainant in Alipur Chatha and the cheque is said to have been scribed by the accused-petitioner in Alipur Chatha. In the circumstances of the matter the conduct of the petitioner, who is the Principal of an Educational Institution, has made me to hold that it is an exceptional case wherein the bail is refused to him. Even according to Section 168 Pakistan Penal Code a public servant, being legally bound as such public servant not to engage in trade, engages in trade shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both. Section 168 Pakistan Penal Code is bailable. However, in view of what has been expressed above, the petitioner is not entitled to be admitted to bail. 3. For what has been said above, I see no merit in this petition and dismiss the same. (T.A.F.) Bail refused

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 401 Present: muhammad nawaz abbasi, J. Syed SHAUKAT AMIR-Petitioner versus THE STATE-Respondent Crl. Misc. No. 311-B-1998, heard on 1.7.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Pakistan Penal Code (XLV of 1860), S. 302/109--Murder-Entitlement to bail on basis of police report wherein accused were found not guilty and were challaned in Column No. 2-Opinion of Police in matter of bail-Opinion of police officials although not legal evidence yet could be considered for grant or refusal of bail-Where Police officials finding was that there were reasonable grounds to believe that accused was not guilty of offence being charged, accused in such case would be given bail as of right despite the fact that he had been named in F.I.R. with some role-Existence of grounds of further inquiry would thus, create right in favour of accused for bail-Opinion of Investigating Officer about innocence of accused was although not binding on Court and also not legal evidence, yet, if supported by attending circumstances, same would make prosecution case needing further inquiry about guilt or innocence of accused-Accused having been found innocent by Police and having been placed in Column No. 2 of Challan, serious doubt was created in favour of accused and unless same was removed through evidence at trial benefit thereof would be given to them even for purpose of grant of bail—Case against accused requiring further inquiry entitled them to bail which was granted in circumstances. [Pp. 405 & 407] A to D (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Pakistan Penal Code (XLV of 1860) S. 302/109-Grant of bail on medical grounds—Petitioner as per medical report was suffering from serious disease and even if he could receive treatment as per his need in jail hospital, yet bail to such person on medical ground could be allowed- Petitioner was, thus, allowed bail even on medical ground. [P. 407, 408] E 1998 P.Cr.LJ 96; 1989 SCMR 899; 1985 SCMR 195; 1985 SCMR 382; PLD 1976 Lah. 190; 1992 SCMR 1857; 1982 SCMR 440; PLD 1972 SC 277; ' PLD 1996 SC 241; PLD 1972 SC 81; 1982 P.S.C. 580 and PLD 1985 SC 58 ref. Sardar Muhammad Ishaq Khan, Advocate for Petitioner. Mr. Z, BaharAwan, Advocate for Complainant. Qazi Ahmad Naeem Qureshi, Advocate for State. Date of hearing: 1.7.1998. order I propose to dispose of the two connected bail applications, Crl. Misc. No. 311/B of 1998 titled 'Syed ShaukatAmir v. The State' and Crl. Misc. No. this single order. 2. The petitioners, namely, Syed Shaukat Amir and Syed Aizaz Jafri, in these petitions alongwith one Abrar Shah, their co-accused, are facing charge under Sections 302/109 P.P.C. in a case registered against them through F.I.R. No. 30, dated 30.1.1998 at Police Station Margala, Islamabad for the allegation of committing the murder of Malik Athar and Atif Raza, the two young boys. 2. The prosecution case as narrated in the F.I.R. registered on the report lodged by Malik Aftab Ahmad, real brother of Malik Athar deceased, is that on the eventful night, he alongwith his deceased brother Malik Athar and another brother, namely, Malik Mahboob with the friend, Kashif Raza and his real brother Atif Raza (deceased) with a view to enjoy Moon Nightwent to Hot Shot Club situated in a park located in Sector F/9, Islamabad at 12.45 (night). The petitioners, who are the owners of the Club, while pointing the two deceased as the same boys, who a few days earlier had offered flowers to the girls of their family, directed Abrar Shah, the Gunman armed with a Repeater Gun, to fire at Malik Athar and Atif Raza, who in obeyance of the order fired and in consequence thereof, two boys receiving injuries succumbed to the same at the spot. Abrar Shah while raising Lalkara warned the persons present nearby that nobody should come to that side. The petitioners allegedly having abetting the offence, were named asaccused in the F.I.R. registered at 1.15 a.m. during the same night with the Police Station Margala at a distance of two kilometers. During the initial investigation conducted by the S.H.O. Police Station Margala, the petitioners were found not present at the spot. The Investigating Officer also recorded the statements of the employees of Club. According to him, a number of persons have given affidavits in support of innocence of the petitioners and that as per his opinion, they were not involved in the occurrence. This opinion of S.H.O. was further confirmed by A.S.P. in his investigation. According to the two Investigating Officers except the statements of the complainant and the eye witnesses, no other material was made available insupport of the allegations against the petitioners. 3. The petitioners, namely, Syed Shaukat Amir and Syed Aizaz Jafri have been refused bail by the learned Sessions Judge, Rawalpindi throughseparate orders dated 1.4.1998 and 14.5.1998, respectively, with the following observations:- (i) That the role attributed to the petitioners is not that of simple proverbial Lalkara; (ii) that Abrar Shah, the Gunman and co-accused of the petitioners, while under the command of petitioners had no reason to act independently and commit the murder, (iii) that the plea of aggressive entry of the deceased in the Club leading confrontation with Abrar Shah, an employee of the Club, which allegedly resulted in this fateful incident, was not borne out from record; K (iv) that the presence of the petitioners at the spot and the role assigned to them stands established through the evidence of complainant and the eye witnesses; and (v) that the ailment of Syed Shaukat Amir was not of the nature to be considered a sufficient ground for the grant of bail. 4. Learned counsel for the petitioners has raised the following contentions for the grant of bail:- (i) That the occurrence took place at midnight in the Club exclusively owned by Syed Aizaz Jafri and that Syed Shaukat Amir is not concerned with the ownership or business of the Club in any manner. .. (ii) That during the investigation, the factum of non-presence of the petitioners at the spot has been proved through material in the nature of affidavits and the oral statements of a number of persons including the inmates of the house of the petitioners. (iii) That except proverbial Lalkara, no overt act is attributed to the petitioners and the motive as suggested is /' unfounded as it is not known that at what date and time and in what manner the incident of offering flowers to the girls of the family of the petitioners had happened and that except bare statement of the complainant and witnesses, there is no proof of previous animous of the petitioners "- . with the deceased boys, stranger to them.(iv) That the police during the successive investigations found the petitioners not present at the spot at the relevant time and having found them not involved in the case declared them innocent and consequently have been placed in column No. 2 of the challan. The plea of innocence raised during the investigation having found correct was wrongly excluded from consideration by the learned Sessions Judge. (v) That the prosecution version given in the F.I.R. creating a serious doubt about the alleged role played by the petitioners leaves much for further inquiry into the guilt of '9 the petitioners and, therefore, the petitioners are entitled to the concession of bail (vi) That Syed Shaukat Amir petitioner is suffering from serious heart ailment. The report of his medical examination conducted under the orders of this Court in the Punjab Institute of Cardiology, Lahore, submitted by a famous doctor, namely, Prof. Dr. Shahryar A. Sheikh, Executive Director of said Institute, confirmed that said petitioner is suffering from ischaemic heart disease and requires constant care and treatment by the Cardiologist locally, which fairly being not available in the jail, the petitioner may facing a serious situation at any time in jail, loose his life. 5. Learned counsel appearing on behalf of the complainant opposed the grant of bail with the following arguments:- (i) That the two employees of the Club, namely, Ahmad Shamail Durrani and Muhammad Ajmal Abbasi, were examined by the police immediately after the occurrence and according to their statements, the presence of the petitioners shortly before the occurrence in the Club is established, therefore, the plea of alibi being taken on the basis of affidavits of inmates of their house including the ladies is not entertainable. (ii) That the occurrence having taken place in the Club, a public place in presence of number of independent persons including the employees of the Club, but none was examined in support of the plea of innocence. The residence of the petitioners being located at a close distance to the place of occurrence, the plea is negated by the fact that the petitioner immediately after the occurrence could reach at their home. (iii) That opinion of the police regarding innocence of the petitioner being not based on any material is of no consequence to be given any weight and being not binding on the Court, cannot be used as a valid ground for grant of bail. He placed reliance on Mst. Masood Begum vs. Muhammad Maroof & 2 others (1998 P.Cr.L.J. 56) in support thereof. (iv) That the murder of two innocent boys having taken place on the instigation of petitioners as per version of the F.I.R. duly supported by the eye witnesses, their exclusion from the spot has been wrongly concluded by police and they having abetted the offence by virtue of Section 109 PPC are equally responsible for the crime. Learned counsel finally argued that the nature of ailment of Syed Shaukat Amir petitioner mentioned in the report in question is not of the nature requiring a special treatment out of jail and the same does not provide a valid ground for grant of bail. 6. I have heard the learned counsel for the parties and perused the record with their help. According to the Investigating Officer, present in Court, the initial stand of the petitioners that they have been falsely involved in the occurrence was found correct and the same was further confirmed in the subsequent investigation conducted by the A.S.P., and as a result thereof, they have been placed in column No. 2 of the challan. The occurrence admittedly took place at midnight time in Hot Shot Club, a public place, where apart from the parties, other person were also present, but ' none from such persons has been examined by the police to ascertain the truth of the matter and bring on record the actual state of affairs and the circumstances under which the fateful occurrence took place. The police official, who initially investigated the case instead of making efforts to trace out the reasons leading to the occurrence and the factual position at the spot through independent source, confined himself only to the extent of prosecution version give in the F.I.R. and after recording the statements of the witnesses named therein did not bother to dig out the origin of the matter and the correctness of the role assigned to the petitioners. The possibility of some sudden unfortunate incident in the Club during the Moon Night to be enjoyed by a large number of young boys and girls, being not ruled out, the question whether the occurrence took place in the manner as narrated by the complainant or it was as a result of re-action on the part of Abrar Shah to some objectionable act of the young deceased boys would ^' require a detailed scrutiny. The mere presence of the petitioners as owner of the Club at the spot in such circumstances would not by itself enough to determine their guilt and conclude that Abrar Shah performing the duty of Security Guard at Club acted under direction of the petitioners. The pivotal ^ question whether the occurrence was an independent act of said accused or the same happened as a result of instigation of the petitioners, yet ascertainable, it is difficult to fix responsibility of the petitioners of committing the murder and hold them guilty at this stage. There is no cavil —4o the proposition that the opinion of police without any material in support thereof is of no value, but under the given circumstances the concurrent opinion of innocence given by the two Police Officials in the independent investigations while putting in juxta-position with the role assigned to the / petitioners in the F.I.R., their participation in the occurrence as such appeared to be doubtful. The opinion of Police Officials is not a legal evidence but to judge the matter, it can be considered for grant or refusal of bail. Notwithstanding the favourable opinion of police, the onus is always on the prosecution even at bail stage to disclose reasonable grounds of believing that a person has committed the offence and the Court after examination of ^ — the data available in the nature of report of police, the credential of evidence, which is proposed to be led in the case and the attending circumstances including the plea of accused, if any, if finds that there are reasonable grounds to believe that the accused is not guilty of the offence being charged, the accused in such a case is given bail as of right despite the fact that he has been named in F.I.R. with some role. Thus, the existence of grounds of further inquiry creates a right in favour of person for bail. Reference may be made to Nqjeeb Gul v. Khalid Khan and another (1989 S.C.M.R. 899), Arbab Ali vs. Khamiso and others (1985 SCMR 195) and Ibrahim vs. Hayat Gul and others (1985 SCMR 382). 7. The receiving of opinion of Investigation Officer regarding the guilt or innocence of an accused depends on the soundness of the circumstances and while visualizing the matter the benefit of doubt arisingfrom police investigation conducted by an Inspector and then by an A.S.P.,who found the petitioners not present at the spot at the relevant time cannot be withheld only for the reason that generally plea of alibi is not entertained at bail stage. This Court in a case Muhammad Naqi Butt v. The State (P.L.D. 1976 Lahore 190) upon the charge of murder allowed bail on the ground that the plea of alibi was raised during the investigation and same was found reasonable. 8. The petitioners in the present case having not found guilty by police, have been declared innocent and placed in Column No. 2 of the challan. It was held in Muhammad Ilyas v. Ijaz Ahmad Butt and another (1992 S.C.M.R. 1857) that "the question whether order of bail granted by High Court was valid or not would arise only when steps were taken by the prosecution to treat him as accused person and that a person in Column No. 2 of the challan is not an accused unless he is considered as such by the prosecution". However, such person may for the purpose of trial be an accused but the same is subject to the summoning by the Court and, therefore, his position is not at par to that of the accused challaned to face the trial. The apex Court in case Ghulam Rasul v. The State and 4 others (1982 S.C.M.R. 440), dismissed the application for cancellation of bail with the observation that sufficient weight is to be attached to the result of the Investigating Officer in respect of the accused placed in Column No. 2 of the challan. 9. The opinion of the Investigating Officer about innocence of the accused is not binding on the Court and also not legal evidence, yet, if supported by attending circumstances makes the prosecution case needing further inquiry about the guilt of innocence. The petitioners, who have been assigned the role of Lalkara in the present case have been declared innocent by two Police Officers and placed in Column No. 2 of the challan, thus, the opinion of police created a reasonable doubt in the prosecution story qua the participation of the petitioners and they being entitled to get the benefit of the favourable report can take advantage of the same even at bail stage. The benefit of doubt arising from police investigation conducted by an A.S.P., who found the petitioners innocent must be weighed in their favour, who are attributed the role of instigation and Lalkara and no physical act in anymanner is assigned to them. Thus, the question whether the alleged role assigned to them was a sufficient overt-act and that the cloudy features of the same did not suggest a strong possibility that it was an independent act of Abrar Shah and while judging the allegation through tentative assessment of material and considering the relevancy of the police opinion of the innocence of the petitioners, a serious doubt is created in favour of the petitioner and unless the same is removed through the evidence at the trial, the benefit thereof is to be given to them even for the purpose of grant of bail. The apex Court in case of Amir v. The State (P.L.D. 1972 S.C. 277), held as under:- "It may also be observed that even for purposes of bail, law is not to be stretched in favour of the prosecution. If any benefit of doubt arises, it must go. to the accused." This view was again expressed in Syed Amanullah Shah v. The State and another (P.L.D. 1996 S.C. 241). It was also held by the Supreme Court in case Manzoor and 4 others v. The State (P.L.D. 1972 S.C. 81) as under: - "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistake relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run." 10. In the light of the foregoing reasons and circumstances discussed, the case against the petitioners being of doubtful character, the reasonable grounds to believe that they have not committed the offence with which they are being charged, are exist and consequently, the same requiring further inquiry entitled them to the concession of bail by virtue of sub-section (2) of Section 497 Cr.P.C. 11. Syed Shaukat Amir petitioner also sought bail on medical ground. As per report of a famous specialist in Pakistan , he is suffering from heart disease of the following description: "ischaemic heart disease, angina pectoris. He has been advised appropriate medical thereapy and medical follow up by the cardiologist locally." The contention of the learned counsel that the treatment and care required for the disease cannot be made available in jail and in consequence thereof "any unfortunate incident can happen with the petitioner at any time, is not without force. The petitioner undoubtedly is suffering from serious disease and even if he can receive treatment as per his need in the jail hospital, yet, bail to such person on medical ground can be allowed. Reference is made to case Sadiq Mi Shah v. Sardar Khalid Umar etc. (1982 P.S.C. 580). This may be observed that disease from which the petitioner is suffering requiring the specialist treatment which being not available in jail as per choice of the petitioner and further cannot be properly looked after by the jail authorities may be dangerous to life any time. The trouble is of the nature which can bring a serious result without warning and, therefore, a constant effective treatment needed being not possible in jail, the petitioner is also entitled to the concession of bail on the ground of ailment. Reference may be made to the case rT Malik Muhammad Yousafullah Khan v. The State (P.L.D. 1995 S.C. 58). 12. In view of the above discussion, the petitioners, namely, Syed Shaukat Amir and Syed Aizaz Jafri being entitled to the grant of bail are allowed bail subject to their furnishing bail bonds in the sum of Rs. 1,00,000/- (Rupees one lac only) each with one surety each in the like amount to the satisfaction of the trial Court. These applications stands disposed of accordingly. (A.A.) Bail allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 408 Present: muhammad nawaz abbasi, J. LAL ZAMURRAD and 2 others-Petitioners versus STATE-Respondent Crl. A. No. 184/T-1997 and M.R. No. 252/T of 1997, heard on 11.5.1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/34--Criminal Procedure Code (V of 1898), S. 342-Murder- Sentence of death was awarded to one accused while co-accused was awarded life imprisonment-Validity-Defence without denying occurrence pleaded false implication with introduction of specific version- Defence however did not bother to advance their version either during investigation or before trial Court through counter case or filing private complaint-Accused taking specific plea of grave and sudden provocation admitted causing of firearm injuries to deceased persons when they were making attempt to commit zina-bil-jabr with his daughter-Accused, however, failed to substantiate such plea through evidence-Accused having pleaded specific plea had admitted occurrence as also motive of dispute of land but failed to substantiate his plea of grave and sudden provocation-Crime empties recovered from spot were found matched^? with weapon recovered from accused-Medical evidence further supported nature and location of injuries and kind of weapon used by accused as narrated by eye-witnesses-Prosecution case against accused found ample corroboration from admission by accused of occurrence and thus, stood proved against him beyond reasonable doubt, therefore, conviction under S. 302 (b) Penal Code was un-exceptional. [Pp. 413 & 414] A, B, C & D (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302 & 304--Qanun-e-Shahadat (10 of 1984), Art. 17--Quantum of sentence-No extenuating or mitigating circumstance in favour of accused for lesser punishment was pointed out-Defence plea that there being no male witness of occurrence, capital punishment on basis of statement offemale witnesses under Islamic Law was not possible was without forceinsomuch as accused had been sentenced under S. 302 PPG as Tazir for which standard of evidence was different to that of Qisas-Covrt was not persuaded to disbelieve motive part of prosecution story and withhold normal penalty of death awarded to accused-Death penalty awarded to accused was confirmed in circumstances. [P. 415] E & F (ill) Pakistan Penal Code, 1860 (XLV of I860)- —S. 302-Murder--Sentence of life imprisonment awarded to co-accused was not warranted on account of the fact that motive of crime was attributed to main accused and empties recovered from spot were matched with weapon recovered from him—Role attributed to co-accused having not been proved beyond reasonable doubt, his conviction and sentence on basis of sole un-corroborated testimony of eye-witnesses was not safe in giving circumstances-Sentence of life imprisonment awarded to co-accused was set aside and he was directed to be released from jail forth with if not required in any other case. [Pp. 415 & 416] G Mr. Z. BabarAwan, Advocate for Appellant. Malik Muhammad Kabir, AA.G. for the State. Date of hearing: 11.5.1998. judgment The appellants, namely Lai Zamurrad, Ghulam Sarwar sons of Phaja Khan and Nasar Mahmood son of Lai Zamurrad having tried for the charge of committing murder of Muhammad Iqbal and Muhammad Miskeen deceased by the Special Court, Rawalpindi Division and Islamabad Territory established under Anti Terrorism Act, 1997, were convicted under Section 302/34 PPC and sentenced as under:- (i) Lai Zamurrad and Ghulam Sarwar appellants. Sentenced to death on two counts with a fine of Rs. 75,000/- each and in default of payment thereof to further undergo RI for five years each.(ii) Nasar Mahmood appellant. Awarded imprisonment for life on two counts under Section 302(b) PPC with a fine of Rs. 75.000/- or in default thereof to undergo RI for five years. It was also directed that the amount of fine if realized from all the three appellants, was ordered to be paid to the legal heirs of both the deceased as compensation in equal share under Section 544-A Cr.P.C. 2. The appellants have challenged their conviction and sentence through Criminal Appeal No. 184/T of 1997, whereas the Special Court has sent a reference bearing Murder Reference No. 252/1 of 1997 under Section 25 of the Anti Terrorism Act, 1997. Both the matters are proposed to be disposed of through this single judgment 3. The prosecution case in brief as contained in the statement (Ex. PF) of Mst. Sandal Bibi (PW-6) on the basis of which formal FIR (Ex.PF/1) was registered under Section 302/34 PPC against the appellants, is to the following effect- That the complainant on 20.7.1993 at about 8.30 AM went towards her land located at Platar with her buffaloes, whereas Muhammad Miskeen, her husband, had already gone with cattle to that side. Muhammad Iqbal brother of Muhammad Miskeen and Mst. Walayat Jan, his wife, having also gone to the said land were making hedges with bushes and Lehrasap Khan son of Muhammad Ashraf (given up) was cutting wood in the nearby. At about 9.00 AM, Lai Zamurrad, Ghulam Sarwar appellants armed with .7 MM rifles and Nasar Mahmood (acquitted accused) withzzzatchet appeared at the scene raising Lalkara to teach a lesson for taking the land. Lai Zamurrad fired at Muhammad Iqbal hitting on his belly, whereas shot fired by Ghulam Sarwarhit Muhammad Miskeen and upon receiving injuries both expired at the spot. The appellants with the weapons of offence decamped from the place of occurrence. The motive behind the occurrence was that Lai Zamurrad and others were in un-authorised possession of the land belonging to the complainant side and being under litigation with Muhammad Iqbal and Muhammad Miskeen before the Civil Court were causing damage to the trees in the land. The occurrence was witnessed by Mst. Sandal Mst. Walayat Jan, widows of both the deceased." 4. After registration of the case, Muhammad Yar Gondal, SHO (PW-1) reaching at the place of occurrence prepared injury statements and inquest reports of the two deceased, namely Muhammad Iqbal and Muhammad Miskeen and dispatched their dead bodies for post mortem examination through Khalid Saleem constable. The SHO after preparing injury statement of Mst. Walayat Jan also sent her for medical examination. She was examined by Dr. Munawar Hussain Gondal (PW-1), who found the following injury on her person: - "Contused swelling 4 x 6 cm on left side of chest, on interior axillary line tenderness present over the area." 5. The Investigating Officer apart from the blood stained earth taken from the two points of the place of occurrence also secured two crime empties of .7 MM rifle (Ex. P-3 and P-4). He arrested the accused on 25.7.1993 and thereafter handed-over the investigation to Muhammad Afzal, SI, on 28.7.1993, which was later entrusted to Ch. Nisar Ahmad (PW-13), SHO of the Police Station. Lai Zamurrad appellant, while in police custody led to the recovery of .7 MM licensed rifle from his residential house on 6.8.1997, which was taken into possession through memo Ex.PG. GhulamSarwar appellant also led to the recovery of .7 MM rifle from his house on 8.8.1993, which was taken into possession vide memo Exh. PH and a separate case under the West Pakistan Arms Ordinance, 1965, was registered against him. After completing the investigation, the SHO (PW-13) finding all the three accused involved in the case challaned them to face thetro^for the charge under Section 302/34 PPG for committing Qatl-e-Amd ofMuhammad Iqbal and Muhammad Miskeen. 6. Dr. Muhammad Saeed (PW-2) conducted the post mortem examination of the dead bodies of Muhammad Miskeen and Muhammad Iqbal deceased on 21.7.1993 and found the following injuries on their persons:- INJURIES ON THE PERSON OF MUHAMMAD MISKEEN A lacerated gun shot wound of entry measuring 1 cm x 1.25 cm on right hypoehondriun with slight blackening ofedges inverted 17 cm below the right nipple 13 cm above and right to the unbilicus. A lacerated gun shot wound of exit with everted edges measuring 1.5 cm x 1 cm on right lower back of chest 8 cm below to the inferior angle of scapula and 15 cm right to the vertebral column. Sealp and skull healthy. Vertebaral not open. Membrains brain and spinal cord healthy. Brain healthy. Spinal cord not open. INJURIES ON THE PERSON OF MUHAMMAD IQBAL. A lacerated gun shot wound of entry measuring 1.5 cm x 1 cm with slight blackening of edges on right anterior shoulder 19 cm above right nipple. A lacerated wound of exit with overted edges 1.5 cm on back of chest in centre on vertebral column 24 cm below the base of neck. 7. Mst. Sandal Bibi (PW-9) widow of Muhammad Miskeen and Mst. Walayat Jan (PW-7) widow of Muhammad Iqbal have furnished the ocular account of the occurrence. Allah Dad (PW-9) has witnessed the recovery ofthe licensed rifle (Ex. P. 1) from Lai Zamurrad appellant and rifle (Ex. P-2) belonging to Ghulam Sarwar appellant. The remaining witnesses apart from Muhammad Yar Gondal, Inspector (PW-11) and Ch. Nisar Ahmad, Inspector (PW-13) being of formal nature need not to be discussed. Lehrasap Khan, PW was given up as won over and Muhammad Nawaz as unnecessary. The reports of the Chemical Examiner (Ex-PW) and Serologist (Ex. PO) and that of Forensic Science Laboratory (Ex-PP) pertaining to the fire arms recovered from Lai Zamurrad appellant and the empties from the spot, have been part of the record as evidence. 8. Lai Zamurrad appellant making statement under Section 342 Cr.P.C. took the specific defence plea, whereas the remaining two appellants having denied their presence and participation in the occurrence pleaded innocence and false implication. 9. The trial Court relying upon the testimony of eye witnesses, namely, Mst. Sandal Bibi and Mst. Walayat Jan, rejected the defence version and believing the prosecution case in toto finding all three appellants guilty of the charge convicted and sentenced them in the manner, referred to above. 10. Learned counsel for the appellants contended that the eye witnesses are unreliable as their deposition relating to the motive part of the prosecution story is not Supported by evidence and instead the factum of possession of Lai Zamurrad over the land in question a year ago through the decree of the Civil Court, being established, the complainant party knowingly through concealment of material fact and the actual story hold the appellants responsible for the fateful incident. He contended that involvement of Ghulam Sarwar and Nasar Mahmood appellants on the basis of special oath given to the parties is a strong circumstance to suggest the exclusion of the presence of the PWs at the spot and the occurrence being of unwitnessed. He next contended that the defence plea of grave and sudden provocation raised by Lai Zamurrad appellant containing the story of making an attempt by Muhammad Iqbal deceased with the help of Muhammad Nawaz to commit Zina with his duaghter, Mst. Nasrin was more plausible to be accepted in the given circumstances. Learned counsel argued that the motive having not proved beyond doubt and there being no other reason for causing injuries to the deceased by the appellants, the defence plea advanced by Lai Zamurrad has been wrongly ignored. He next contended that Nasar Mahmood appellant is not assigned any describable role or overt act and rather PW-7 in her statement has excluded his presence and participation in the occurrence. Taking the case of Ghulam Sarwar, learned counsel argued that the same is not free from doubt as except the statement of the two interested and inimical ladies, there is no evidence direct or circumstantial to connect him with the commission of offence and consequently, the sole evidence of ocular account in the circumstances of the present case is not enough to make basis of the conviction. The two crime empties recovered from the place of occurrence were matched with the rifle recovered from Lai Zamurred. The medical evidence as such has no corroborative value against him without the proof of use of fire arm by him. He taking us to the statement of Ch. Nisar Ahmad (PW-13), the Investigating Officer, argued that in fact Nasar Mahmood and Ghulam Sarwar appellants were challaned not on the basis of material but on the special oath taken by the persons, named therein and contended that this method of determining the guilt of an accused on the basis of special oath being foreign to the criminal administration of justice is not approvable. He summing up his arguments submitted that Ghulam Sarwar and Nasar Mahmood appellants deserve acquittal, whereas the case against Lai Zamurrad in view of the defence plea taken by him is covered by the exception falling within the ambit of Section 302(c) PPC and the maximum sentence in such cases in any case is not more than ten years. 11. Learned Assistant Advocate General appearing on behalf of the State conversely argued that the case of Ghulam Sarwar and Lai Zumarrad appellants is different to that of Nasar Mahmood appellant as they have been attributed role of causing injury to Muhammad Miskeen and Muhammad Iqbal deceased and .7 MM rifles the weapons were also recovered from them. He contended that notwithstanding the fact that the crime empties recovered from the spot matched with the rifle of Lai Zamurrad, the case of Ghulam Sarwar is not distinguishable to that of Lai Zamurrad and they being equally responsible for committing murder of the two deceased, namely, Muhammad Miskeen and Muhammad Iqbal did not deserve any leniency even in the matter of sentence. 12. We heard the learned counsel for both the sides and perused the record. The defence without denying the occurrence in the present case pleaded false implication with introduction of specific version. The prosecution version is supported by the evidence of Mst. Sandal Bibi and Mst. Walayat Jan, injured (PW-7), who being the wives of the deceased were present with the deceased in the land. They were the natural witnesses of the occurrence, which took place in the land situated nearby the residential houses of the parties, therefore, the presence of the ladies at the spot inPlatar land with cattle is not questionable. The deposition made by the women, eye-witnesses of the occurrence, fully seeks support from the medical evidence and the recovery of the crime weapons in addition to themotive part of the story. The statements of the eye-witnesses are free from any major discrepancy. Whereas the minor discrepancies and contradictions here and there have no material effect and consequences to create describable doubt or dent in the prosecution case. Lai Zamurrad appellant taking specific plea of grave and sudden provocation admitted the causing of fire arm injuries to the two deceased when they were making attempt to commit Zina-bil-Jabr with his daughter Mst. Nasreen. The suggestion put by the witnesses during the cross-examination regarding the correctness ofthe version advanced by Lai Zamurrad appellant was categorically denied, except that Muhammad Nawaz, brother of Mst. Walayat Jan was involved in a case under Hadood Ordinance for committing excess upon Mst. Nasreen daughter of Lai Zamurrad appellant about 8/10 months ago. However, except having put the suggestion in question to the witnesses and making a statement under Section 342 Cr.P.C. by Lai Zamurrad appellant, the defence did not produce any evidence in support of this version. The defence even has not bothered to bring the daughter of Lai Zamurrad in the witness-box to substantiate the defence plea. The defence further did not examine any person as witness among the people, who immediately after the occurrencegathered at the spot and were in the knowledge of the occurrence includingthe defence version. Lehrasap Khan statedly was present at the spot during the course of occurrence and was given up as won over, but the defence did not even bother to bring this witness in the witness-box. There is also no material on record to suggest that any effort was made on behalf of the appellants to advance their version either during the investigation or before the trial Court through counter case or filing a private complaint, as the case may be. The defence version while putting in juxta position with the prosecution story does not appeal to mind and the same being not convincing was rightiy reject by the trial Court 13. The analysis of the prosecution evidence viz-a-viz the defenceplea and the examination of the circumstances under which the occurrence took place and following the rule of corroboration, it is essential to ascertainthe question of common intention as per role played by each appellant in the occurrence. There was no other enmity between the parties except the dispute over the land and the grudge of Lai Zamurrad appellant against Muhammad Nawaz, brother ofMst. Walayat Jan. Thus, there being elementof ill-will and grudge inter-se the parties, it would not be proper to believe the eye-witnesses account as such against all the appellants without independent corroboration. Lai Zamurrad appellant having pleaded a specific plea has admitted the occurrence but failed to substantiate the same through any material evidence direct or circumstantial. The motive of the dispute of land is attributed to him and he while putting suggestion to the PWs regarding his possession over the land since the time of bis fore-fathers has supported the prosecution version that the dispute of possession was in existence between the parties. 14. The crime empties recovered from the spot have been found matched with the rifle recovered from Lai Zamurrad appellant. These empties were dispatched to the Forensic Science Laboratory on 26.7.1993 whereas the rifle upon recovery from Lai Zummarad on 6.8.1998 was v dispatched on 12.8.1993. Therefore, positive report of the Forensic Science Laboratory provided an independent source regarding the use of recovered rifle as weapon of offence by Lai Zamurrad in the occurrence. The medical evidence further supported the nature and location of the injuries and the kid of weapon used by the appellants as narrated by the eye-witnesses. The injuries on the persons of both the deceased being of similar nature could be caused with the same weapon. The story of the FIR lodged without loss of time is fully corroborated with the evidence of eye-witnesses on each material point. From perusal of defence plea raised by Lai Zamurrad, the prosecution case against him seeking ample corroboration from his own admission stood proved against him beyond reasonable doubt and consequently his conviction under Section 3020)) PPC is conviction under Section 3020)) PPG is unexceptional. 15. Considering the quantum of sentence, we find that there is no extenuating or mitigating circumstance in favour of Lai Zamurrad for the lesser punishment and the contention of the learned counsel that there being no male witness of the occurrence, the capital punishment on the basis of the statement of the female under Islamic Law was not possible. The contention has no force for the simple reason that Lai Zamurrad has been sentenced under Section 302 (b) PPC as Tazir for which the standard of evidence is different to that of the Qisas as envisaged under Section 304 PPC read withArticle 17 of the Qanoon-e-Shahadat Order, 1984. It is noticeable that even on the basis of circumstantial evidence conviction under Section 3020)) and 302 (c) PPC for Qatl-e-Amad can sustain as provided under the above provisions of law. 16. The next contention of the learned counsel is that the possession of the land in question being already with Lai Zamurrad, the motive of possession set up by the prosecution was not proved and the same being shrouded in mystery, the capital punishment was not warranted. The perusal oT the FIR and the statements of the witnesses unambiguously makes it dear that the parties were carrying animus against each other due to the dispute over the land in question. The decision of the suit in favour ofthe appellants and the failure of appeal would not be a proof of the fact that the tension between the parties regarding the dispute of possession of the land came to an end and there being no other reason traceable behind the occurrence, the dispute of possession of land as disclosed in the prosecution and also admitted by the defence through putting suggestion to the witnesses appeared to be the real bone of contention, which led to this fateful occurrence. We, therefore, are not persuaded to disbelieve the motive part of the prosecution story and withheld the normal penalty of death awarded to the appellant Lai Zamurrad. Consequently, dismissing the appeal of Lai Zumarrad, we confirm the death sentence awarded to him by the trial Court. 17. Judging the case of Ghulam Sarwar and Nasar Mahmood appellants on the basis of role of corroboration, we find that the statements of the two witnesses contained material contradictions creating doubt aboutthe presence and participation of Nasar Mahmood in the occurrence. We do not find any corroborative evidence available on record to connect him with the commission of offence. The occurrence having taken place in the vicinity of the residential houses of the parties, therefore, mere presence at the spot with no overt act was not an enough circumstance to attract the provisions of Section 34 PPC against Nasar Mahmood appellant Undoubtedly, both the eye-witnesses attributed to him the role of causing fire-arm injury to Muhammad Iqbal deceased by Ghulam Sarwar but this bare statement is not seeking support from any other independent source. The motive is attributed to Lai Zamurrad, who allegedly was interested in possession of the land and two crime empties recovered from the spot were also found matched with the rile recovered from Lai Zamurrad. The assailant being not identifiable through the medical evidence with the result the role attributed to this appellant having not proved beyond reasonable doubt his conviction and sentence on the basis of sole uncorroborated testimony of eye-witnesses is not safe in the given circumstances. 18. We, therefore, are not satisfied with the view of the evidence taken by the learned trial Court quo Ghulam Sarwar and Nasar Mahmood, as the case against them being full of clouds is of doubtful character and consequently, we extending benefit of doubt to them set aside their conviction and sentence and acquit them from the charge. The criminal appeal to their extent is allowed and they are directed to be released from Jail forthwith if not required in any other case, whereas the appeal to the extent of Lai Zamurrad appellant is dismissed and Murder Reference to his extent is answered in affirmative. The sentence of fine being not impossible under Section 302(b) PPC, the same is converted into compensation under Section 544-A Cr.P.C. to be paid to the legal heirs of the deceased. (T.A.F.) Orders accordingly

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 416 Present: raja muhammad khurshid, J. Mst. GULLAN-Appellant versus STATE-Respondent Crl. Appeal No. 48-J of 1996, dismissed on 29.9.1998. (i) Confession-Extra-judicial- —Essentials for a valid extra-judicial confession-Extra judicial confession is considered to be a weak evidence, but if it inspires confidence that story revealed during confession by a culprit is supported by attending circumstances, it can be safely accepted otherwise offenders confessing an unseen occurrence will go scot-free. [P. 420] A (ii) Criminal Trial- —Evidence—Appraisal of-Court's approach while appraising evidence should be dynamic and not static-It should keep in mind all facts and circumstances of case and it be satisfied that factually person charged with offence had committed the same, it should record conviction though there might have been some technical lapse on the part of Investigating trial-Cumulative effect appears to be that it excludes any reasonable hypothesis of appellant's innocence. [P. 420] B (iii) Pakistan Penal Code, I860 (XLV of 1860)-- —S. 302(B)--Murder~Offence of-Conviction and sentence-Challenge to Appellant/accused made extra-judicial confession before complainant andt PW 3--PW 3 a dis-interested, natural and reliable witness being Chairman, Anjuman-e-Dokandaran-Dead-body of deceased (a 7 years girl) was recovered in the presence of two witnesses and I.O. on pointation of appellant from a room of her house lying in a box-Recovery of dead-body from appellant's house was a strong corroborative factor-False implication or substitution repelled-Medical evidence also supports version given in extra-judicial confession—Witness who identified putrefied dead-body was never cross examined which showed that statement was accepted as true-I.O. also stated that dead-body though partially putrefied, yet it could be identified by its face—Motive shrouded in the mystery sentence of life imprisonment and compensation maintained-Benefit of Section 382-B Cr.P.C. extended-Appeal dismissed Sardar Mohabbat All Dogar, Advocate on State Expenses. Mr. Muhammad Saleem Shad, Advocate for State. Mian Muhammad Sikander Hayat, Advocate for Complainant. Date of hearing: 29.9.1998. judgment This Criminal Appeal against judgment dated 18.12.1995 passed by Mr. Sagheer Ahmed Qadri, learned Additional Sessions Judge, Chiniot has —' been filed by Mst. Gullan appellant to challenge her conviction under Section 302-B PPG whereby she was sentenced to imprisonment for life for the murder of a baby girl named Atia aged about 7 years and to pay compensation of Rs. 50,000/- under Section 544-A Cr.P.C. to the legal heirs of the deceased or in default to undergo further R.I for two years. 2. The brief facts are that Muhammad Wans complainant reported to the police vide FIR Ex. PA that he was residing in a house adjc<\ent to the house of appellant Gullan. The husband oiMst. Gullan was in Saudi Arabia at the relevant time. The persons with dubious character used to visit the house of Mst. Gullan as she was allegedly of easy virtues. Being a neighbour the complainant Muhammad Waris PW-2 asked appellant Mst. Gullan on several occasions that she should not entertain persons of immoral character. This led to a quarrel between the complainant and Mst. Gullan -•" "~ about 15/20 days prior to the occurrence. At that time the appellant/convict threatened the complainant that she would teach such a lesson to the complainant for the aforesaid accusation of which he shall feel burning throughout his life. The complainant went to Karachi on the following day of the aforesaid quarrel and received a telephone from his brother Muhammad Tariq on 10.5.1994, whereby he was informed that his daughter Ms?. Atia aged about 7 years was missing from the house. The complainant reached his house from Karachi on 12.5.1994 and came to know through his wife Ms?. Razia that deceased Ms?. Atia had gone out of the house at about noon time on 9.5.1994 and did not return since then. A hectic search was allegedly made but without any result. The complainant entertained a suspicion against Ms?. Gullan on account of the aforementioned quarrel and threat she had given to him. The complainant alongwith other mokalladars and respectables inquired from Ms?. Gullan in respect of the deceased of which she expressed her ignorance. On 16.5.1994 at about 12.00 clock Ms?. Gullan was present at the door of her house, when the complainant also passed from there. He found that foul smell was coming from the house of appellant Ms?. Gullan, whereupon he contacted his brother Muhammad Tariq, Shahid Ahmad and Mushtaq Ahmad. He told them about the nasty smell. All of them went to Ms?. Gullan in her house and inquired about the deceased upon which she hesitantly told them that she had no knowledge of any incident. All of them asked Ms?. Gullan about the smell coming from her house whereupon she told the complainant that the latter was accusing her, therefore, she had murdered his daughter. She also said to the complainant that he may do whatever he likes. After such an Extra Judicial Confession, the FIR was lodged. 3. During the investigation the appellant/convict Ms?. Gullan led to the recovery of dead body of the deceased from a room of her house. It was in putrefaction stage being wrapped in polythene cover and then inserted into a gunny bag. She got it recovered from an iron box which was opened at the time of recovery of dead body. Recovery of the dead body was seen by Muhammad Waris PW-2, Mushtaq Ahmad PW-3 and the Investigating Officer PW-7. This recovery was effected at 3.00 PM on the same day whenthe case was registered. The box P-l in which dead body was lying was taken into possession vide recovery memo Ex. P-B. 4. The prosecution examined the witnesses namely Muhammad Waris and Mushtaq Ahmad in respect of Extra Judicial confession made by the appellant before them and also in respect of recovery of the dead body effected on the pointation of the appellant. The motive version was given during trial by Muhammad Waris PW i.e. the father of the deceased. Medical evidence was brought on record by examining Dr. Faiz Ahmad Faiz PW-6, who prepared Post Mortem report Ex. P-D. 5. Appellant/convict was examined after conclusion of the prosecution evidence. She set up a total denial and deposed that she was falsely implicated in this case on account of enmity. 6. The learned trial Judge recorded the conviction vide impugned judgment as stated above. 7. The complainant also instituted Criminal Revision No. 52/96 whereby he prayed that since the murder committed by Mst Gullan appellant/convict was cruel and heartless, therefore, she may be awarded + the normal penalty of death upon her conviction under Section 302 PPG. A prayer was made that the amount of compensation be also enhanced. 8. Since both the matters arise out of the common judgment, therefore, the appeal as well as the revision petition are proposed to be disposed of through this single judgment. 9. It is clear from the above facts that the prosecution relied upon the motive, the evidence relating to extra-judicial confession made by the appellant/convict, the recovery of dead body on her pointation from her house and the medical evidence to support its version. 10. The learned counsel for the appellant has submitted that motive in this case could not be proved as no other witness was examined to corroborate Muhammad Waris i.e. the complainant P.W. It is for that reason that the same was also dis-believed by the learned trial Court. It was also contended that the prosecution relied upon the extra-judicial confession, which has repeatedly been held to be a very weak type of evidence until and unless materially supported by circumstantial evidence of un-impeachablecharacter. The fact that the dead body of deceased was allegedly recovered has been denied by the appellant/convict by deposing in her statement under Section 342 Cr.P.C. that a dead body of an unidentified deceased child was recovered from a deserted house near her house and she was falsely implicated in this case on account of her enmity with the complainant, who was pressing her to deliver back the children which she had got from her previous husband Ghulam Shabbir after getting divorce from him through _ the Court and on winning the case for custody of children. Since she had refused to give back the custody of her children to her previous husband i against the wishes of the complainant, therefore, he turned hostile to her and on finding a dead body of some unidentified deceased child from a nearby house as aforesaid, she was implicated falsely in this case. It - was, therefore, submitted that the case of the prosecution was highly doubtful and the learned trial Court fell in error to believe the evidence brought on record, and ultimately to record the impugned conviction and sentence. 11. The learned counsel for the state assisted by the-learned counsel for the complainant vehemently urged that since the occurrence remained unseen, therefore, extra judicial confession made by the appellant was rightly considered as it was corroborated by recovery of dead body at the instance' of appellant/convict and also by the medical evidence examined at the trial. 12. Lastly it was contended that the appellant/convict though a lady had committed brutal murder by taking the life of an innocent baby girl agedabout 7 years only because she was restrained to be of immoral character by her father/complainant, therefore, she was liable to be awarded capital punishment and also heavier fine. 12. I have considered the foregoing submissions. It is true that extra judicial confession is considered to be a weak evidence, but if it inspires confidence that the story revealed during the confession by a culprit is supported by the attending circumstances, it can be safely accepted otherwise the offenders confessing an unseen occurrences will go scot-free. The Court's approach while appraising the evidence should be dynamic and not static. It should keep in mind all facts and circumstances of the case and if be satisfied that factually the person charged with, the offence had committed the same, it should record the conviction though there might have been some technical lapse on the part of the investigating agency/ prosecution provided the same had not prejudiced the accused in the fair {J trial. The cumulative effect appears to be that it excludes any reasonable hypothesis of the appellant's innocence. Looking at the facts of the case in hand from that angle it should be borne in mind that the complainant is the father of the deceased and there is no long lasting enmity between him and the appellant except the aforementioned quarrel. In such a situation the complainant being the father of the deceased would not like that he should spare the actual killer of his daughter and may involve the appellant if she was actually innocent. Since the motive story was revealed only by Muhammad Waris PW Le. the complainant and was not corroborated by any other witness, as according to the complainant, there was none when that incident had taken place, therefore, as a matter of abundant caution, the trial Court had rightly come to the conclusion that the motive could not be proved beyond any reasonable doubt against the appellant Mst. Gullan. However, that aspect of the case will not de-merit the whole prosecution story which otherwise stands on strong footings. In addition to Muhammad Waris, the father of the deceased, another respectable and independent person from the area namely Mushtaq Ahmad PW-3 supported the story in respect of extra judicial confession made by the appellant/convict before him and the complainant. The aforesaid Mushtaq Ahmad is the Chairman, Anjaman-e- Dokandaran in the area and as such would not only be a dis-interested witness, but would be considered as a reliable person in the matter. He and the complainant had clearly stated that when they inquired from the appellant about the foul smell coming from her house, she clearly told that she had murdered the deceased for the reasons that Muhammad Waris PW had attacked her chastity by dubbing her to be an immoral woman having connections with persons of loose character. Since the murder was speaking by itself by emitting foul and stinking smell from appellant's house due to the putrefaction of the dead body, the truth perforated from her tightly closed lips and she voluntarily admitted that she had killed the deceased. There is also in evidence that there was hectic search for the deceased not only by her kith and kin but also by the rest of the residents and in that situation, and after the dead body had started putrefying, the appellant/convict had no option but to speak out the truth as it had become difficult for her to hide the murder of an innocent baby girl. The dead body of the deceased was recovered in presence of the aforesaid two witnesses and the Investigating Officer on the pointation of the appellant from a room of her house lying in a box. A question would arise as to why the appellant had kept the dead body in her house after killing the deceased. There is no difficulty in understanding her problem in respect of the disposal of the dead body. Being a small place and due to hectic search for the deceased, it would have not been possible for the appellant to secretly dispose of the dead body for which she had made all possible arrangements by wrapping the dead body in polythene cover and inserting it in a gunny bag, but could not do so due to the fear of her being caught red handed. However, the fact remains that the dead body was recovered from her house on her pointation which is a strong corroborative factor to her extra judicial confession made before Muhammad Waris and Mushtaq Ahmad PWs. Though Muhammad Waris is father of the deceased, but it is not likely that he would falsely implicate the appellant by substituting her for the real culprit. However, if any independent evidence is required, the same is provided by Mushtaq Ahmad who is not only a respectable person of the locality but is disinterested and natural witness. He can, therefore, be safely relied upon about the extra judicial confession. 13. The medical evidence also supports the version given in the extra judicial confession. Dr. Faiz Ahmad Faiz, Medical Officer, Tehsil Headquarters Hospital , Chiniot while appearing as PW-6 stated that the dead body was identified by Haji Muhammad Umar PW and it was in the process of putrefaction giving foul smell with total disfiguration of features. The cause of death was asphyxsia resulting from air ways obstruction possible due to throttling. The body was found to have been partially burnt in an attempt for its destruction after death. This part of the medical evidence shows that the story revealed in the extra judicial confession is not only probable but surely truthful as it stood corroborated so far as emission of foul smell from the dead body and also because of the cause of death and an attempt to set the dead body at fire to conceal the murder. This also up­ sets the story of the defence that in fact an un-claimed burnt dead body was traced by the appellant in a near by building and after collecting the same, the complainant involved the appellant falsely in this case. There remains no doubt about the identity of the deadbody because it was identified by PW-1 Muhammad Umar to whom the deceased was closely related being a grand daughter of his brother Muhammad Gulzar i.e. the father of the complainant. The witness was never cross-examined which showed that his statement was accepted as correct regarding identification of the dead body. In addition to that the Investigating Officer also stated that the dead body though partially putrefied, yet it could be identified by its face. 14. In view of my above discussion, I come to an irresistible conclusion that it has rightly been held by the learned trial Court that the prosecution had proved its case beyond any reasonable doubt against the appellant/convict for the murder of the deceased Mst. Atia. 15. Now a question would arise whether the sentence of imprisonment for life awarded in this case satisfies that the ends of justice. The motive in this case was not proved, which would show that the origin of murder remains shrouded in mystery. In such a situation though it was a callous murder, but the sentence of imprisonment for life would meet the ends of justice in the given situation. Likewise, the amount of compensation of Rs. 50.000/- appears to be adequate and there seems to be no ground for enhancing the same. The appeal being meritiess is dismissed and the sentence awarded to the appellant Mst. Gullan alongwith compensation of Rs. 50,000/- is maintained. The benefit of Section 382-B, Cr.P.C. shall remain available to the appellant as directed in the impugned judgment. 15. As a result of may above finding, the Revision Petition is also dismissed. (K.K.F.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 431 (DB) Present: sheikh abdur razzaq and muhammad chaudhri, JJ. MUHAMMAD ILYAS-Appellant versus STATE-Respondent Criminal Appeal No. 594 of 1993, dismissed on 10.3.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/34--Murder-Offence of--Conviction for-Appeal against-- Admission of accused that he had enmity with PWs lends support to prosecution version regarding motive-Mere fact that PWS did not receive any injury in no way makes his presence on spot doubtful—Occurrence took place at 12.00 noon in an open bazar, so question of mistaken identity of accused appellant does not arise~PW4 who is an injured eye­ witness is an independent witness having no animus to depose against accused or any vested interest to favour complaint-Oral account of eye witnesses stands fully corroborated with medical evidence-Eye witnesses have been subjected to lengthy cross examination and defence counsel failed to create any dent in their statements-Prosecution has succeeded in establishing its case against appellant beyond any shadow of doubt-­ Appeal dismissed. [P. 435] A to E Mr. M. Saleem Sahgal, Advocate for Petitioner. Mr. A.H. Masood, Advocate for Respondent. Date of hearing: 10.3.1998. judgment Instant appeal is directed against the judgment dated 7.2.1993 passed by Ch. Zahoor Hussain Judge Special Court (Suppression of Terrorist Activities Gujranwala Division Gujranwala whereby he convicted Muhammad Ilyas s/o Muhammad Boota caste Jat r/o Marrhi P.S. Sara-e- Alamgir u/S. 302/34 PPC and sentenced him to death and to pay a sum of Rs. 25,000/- as compensation to the legal heirs of the deceased and in default there of to further undergo R.I. for two years. He further convicted Muhammad Ilyas s/o Muhammad Boota u/S. 324/34 PPC for causing hurt to Rahmat Ali and sentenced him to undergo R.I. for five years and to pay a sum of Rs. 10,000/- as compensation to the injured PW or in default thereof to further undergo R.I for six months. He further ordered that both the sentences shall run concurrently and accused/appellant shall also be entitled to the benefit of Section 382-B Cr.P.C. 2. Briefly stated the facts are that Hq/i Muhammad Sadiq complainant has got two sons, one Mushtaq Hussain and the other Altaf Hussain serving in Navi Force. Mushtaq Hussain deceased used to cultivate jointly with the complainant. The said Mushtaq Hussain had constructed a . Dera and sown Bajra crop in an area of 6 kanals out of Shamlaat Deh. Muhammad Eyas s/o Muhammad Boota accused/appellant had also constructed his house on the other side of the said piece of land and wanted to take forcible possession of land occupied by the deceased Mushtaq Hussain, but failed. On 2.8.1991 at about 12.00 noon, Haji Muhammad Sadiq complainant alongwith his son Mushtaq Hussain and Rehmat Khan s/o Jalal Din came to Qasba Market for making purchases. While the complainant was making purchases on the shop of Haji Reham Ali andMushtaq Hussain alongwith Rehmat Khan were standing in the Deurhi adjacent to the said shop, Muhammad Eyas s/o Boota armed with Klashnikov, Bashir alias Bashira s/o Muhammad Yousaf armed with Mouzer 30 bore (since acquitted due to promise) and Muhammad Eyas s/o Ghulam Hussain (P.O.) armed with 7 MM rifle came there. Muhammad Eyas s/o Boota accused/appellant fired with his Klashnikov which hit Mushtaq Hussain on the back of his neck. Bashir alias Bashira caused a brust of Mouzer which hit on the right upper arms of Mushtaq Hussain as a result of which he fell down. Muhammad Eyas s/o Ghulam Hussain then fired with his 7 MM rifle hitting Rehmat Ali on his right knee. Muhammad Eyas s/o Ghulam Hussain again fired with his 7 MM rifle which hit Mushtaq Hussain on his left thigh. Muhammad Eyas s/o Boota then .fired with his Klashnikov which hit Mushtaq Hussain deceased on his left upper arms The incident was also witnessed by Muhammad Shafi and Muhammad Farooq (given up PWs). 3. The motive behind this occurrence is that Muhammad Eyas s/o Boota wanted to take forcible possession of land occupied by Mushtaq Hussain out of Shamlaat Deh but could not succeed due to resistance of the deceased Mushtaq Hussain. He left the dead body of his son MushtaqHussain under the supervision of Busharat Hussain and made for the - Police Station to set the law in motion. 4. Muhammad Abbas ASI (PW 11) recorded FIR Exh. PC on the statement of complainant (PW 3). He thereafter made for the lace of occurrence situated in Qasba Market, prepared injury statement Exh. PH, inquest report Exh. PH/1. He handed over the dead body to Allah Yar Constable (PW 7) for postmortem examination and recorded the statements of eye witnesses. He inspected the post and prepared statement of injuries of Rehmat Ali Exh. P/I and despatched him through Riaz Constable for his medical examination. He secured blood stained vide memo Exh. PG, fourempties of Klashnikov vide memo Exh. PF which were attested by Zahid Iqbal (PW13) and Muhammad Aslam (PW10). He handed over the parcel to the Muharrar for keeping the same in safe custody. On the same day, Allah Yar Constable produced last worn clothes P-l and P-2 of the deceased which he secured vide memo Exh. PE. On 8.8.1991 he secured site plans Exh. PD, PD/1 produced by Akhtar Naqqas (PW6). Lateron the investigation was taken up by the SO, Sultan Ahmad Inspector (PW16) who verified the investigation conducted by Muhammad Abbas ASI (PW11) and also recorded the statement of witnesses on 13.8.1991. He obtained non-bailable warrants in respect of Muhammad Hyas s/o Boota and Muhammad Ilyas s/o Ghulam : Hussain etc. On 1.9.1992 he submitted incomplete challan in the Court. 5. On 29.3.1992 Javaid Iqbal Inspector (PW 14) arrested the accused Muhammad Ilyas s/o Muhammad Boota. On 12.4.1992 the accused led to the recovery of Klashnikov P-3 which he secured vide memo Exh. PJ. As theaccused could not produce any valid licence for the same so he also odged a complaint against him U/S. 13 of the Arms Ordinance 1965. He also prepared site plan of place of recovery Exh. PJ/1. 6. The accused Muhammad Hyas s/o Muhammad Boota and Bashir alias Bashira were charged U/Ss. 302/324/34 PPC on 8.2.1993 to which theypleaded not guilty and claimed to be tried. 7. To bring home guilt to the accused, the prosecution examined PW A 1 Dr. Ijaz Ahmad who on 2.8.1991 examined Rehmat Khan injured and found one fire arm injury on his person. He issued medico-legal report Exh. ' PA which bears his signatures. He thereafter referred the injured to the DHQ Hospital Jehlam. PW2 Dr. Zafar Iqbal Gondal conducted postmortem examination of Mushtaq Hussain s/o Haji Muhammad Sadiq deceased on 2.8.1991 at 5.00 p.m. He found four injuries on his person and issued postmortem examination report Exh. PB. Haji Muhammad Sadiq complainant is PW 3 who corroborated his version appearing in the FIR Exh. PC which bears his thumb impression. Rehmat Ali PW 4 is an injured eye witness who has fully corroborated the prosecution version as deposed by the complainant Haji Muhammad Sadiq PW 3. Muhammad Farooq PW 5 identified the dead body of Mushtaq Hussain at the time of post-mortem examination whereas PW 6 Akhtar Na,qqas visited the place of occurrence on 4.8.1991 as per direction of police and handed over site plan Exh. PD and Exh. PD/1 to the 1.0 on 8.8.1991. Allah Yar PW 7 deposed that he had escorted the dead body of Mushtaq Hussain on 2.8.1991 to Civil Hospital for postmortem examination. After the postmortem examination, he was given the last worn clothes of deceased consisting of P-l and P-2 which he handed over to the I.O. who secured the same vide memo Exh. PE. Qalab-i-Abbas Head-constable PW 8 was given two sealed parcels of blood stained earthand empties for keeping the same mMalkhana. On 5.8.1991 he handed over the said parcel to Hassan Askari Constable (PW 9) for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory Lahore.PW 10 Muhammad Aslam is a witness of recovery of four empties secured vide memo Exh. PF and of blood stained earth Exh. P/G. PW 11 Muhammad Iqbal ASI is the I.O whose evidence has already been discussed above. PW 12 Muhammad Abbas is the witness of recovery of Klashnikov P- 3 and Magazine P-4 effected at the instance of accused Ilyas s/o Boota on 12.4.1992 and secured vide memo Exh. PJ. Zahid Iqbal PW 13 alongwith Muhammad Aslam (PW 10) are itnesses of memos Exh. PF Ex referred above. PW 14 Javaid Iqbal Inspector arrested the accused on 29.3.1992. On 12.4.1992 recovered Klashnikov P-3 and Magazine P-4 at the instance of accused and prepared memo Exh. PJ. PW 15 deposed that he obtained non-bailable warrants of accused/appellant and Muhammad Ilyas s/o Ghulam Hussain (P.O.) and returned with his reports. 8. Learned D.D.A. produced report of chemical examiner Exh. PK as well as of serologist Exh: PL and closed the prosecution evidence vide statement dated 9.6.1993. 9. When examined U/S. 342 Cr.P.C., the accused Muhammad Ilyass/o Boota controverted the prosecution contentions and denied the factum ofrecovery of Klashnikov as well as cartridges on 12.4.1992. He stated that he had never absconded and police deliberately avoided his arrest in order toshow him as an absconder. He neither produced any defence evidence nor chose to record his own statement U/S. 340(2) Cr.P.C. During the trial, the complainant party effected compromise with Bashir Ahmad alias Bashira s/o Muhammad Yousaf. As such he was acquitted by the trial Court. However, the case proceeded against Muhammad Ilyas s/o Boota/appellant and Muhammad Ilyas s/o Ghulam Hussain (P 0.). 10. The evidence produced by the prosecution found favour with the trial Court and as such culminated into the convictions of Muhammad Ilyas s/o Boota/appellant as well as Muhammad Ilyas s/o Ghulam Hussain (P.O.). Instant appeal has been filed only by Muhammad Eyas s/o Bootaaccused/appellant. 11. We have heard the arguments of the learned counsel for the parties as well as the State counsel. 12. The learned counsel for the appellant has vehemently argued that the prosecution has failed to prove the motive as set up in the FIR Exh. PC as it has failed to bring on record any documentary evidence to show if Mushtaq Hussain deceased had been in illegal occupation of land pertaining to Shamlaat. He further argued that Hqji Muhammad Sadiq complainant (PW3) has deposed that two years prior to this occurrence the accused/appellant managed firing upon them and at the same time arranged the registration of a false case against them. He asserted that there is no mention of second motive in the FIR, as such it is nothing but an afterthought effort on the part of prosecution. He further argued that no question regarding second motive was put to the accused/appellant while recording his statement U/S. 342 Cr.P.C., as such it looses its evidentiary value. On the other hand, it is asserted that motive as set up in the FIR Exh. PC stands proved from the statement of complainant (PW 3) as well as from the statement of accused admitting his (accused) enmity with PWs I 13. Admittedly, there is no mention of second motive in the FIR Exh. PC lodged just after the incident, as such motive to that extent remains I unproved. However, it is stated by Hqji Muhammad Sadiq (PW 3) that 't accused/appellant had an eye over the land which was illegally occupied by I the deceased and having failed in his efforts, launched attack upon the deceased as well as Rehamt Ali (PW 4). The admission of accused that he : had enmity with PWs also lends support to the prosecution version j regarding the motive. Thus it is held that prosecution has succeeded in i establishing motive as set up in this case. ! 14. Learned counsel for the accused/appellant has also challengedthe presence of Hqji Muhammad Sadiq (PW 3) on the ground that had he been present on the spot, he must have received some injury on his person, that absence of any injury makes his presence doubtful. This reasoning is absolutely devoid of any logic. The mere fact that PW 3 did not receive any injury in no way makes his presence on the spot doubtful. As per prosecution version, Hqji Muhammad Sadiq (PW 3) alongwith Rehmat Ali (PW 4) and + his son Mushtaq Hussain deceased came to Qasba Market for making . purchases. At the relevant time, PW 3 was present in the shop of Reham Ali, while the deceased and Rehamt ALi (PW 4) were standing in the Deuhri, as such he could not be caused any damage. The occurrence took place at 12.00 noon in an open bazar, so the question of mistaken identity of accused/appellant does not arise Again PW 3 being father of deceased would not like to leave the real culprit of his son and to substitute some other person for the same. Besides the statement of PW 3, prosecution version stands corroborated by the statement of Rehamt Ali (PW 4) who is an injured eye witness, as such his presence can not be doubtful in any manner. This (PW 4) is an independent witness having no animus to depose against the accused or any vested interest to favour the complainant. The oral account of PWs 3 & 4 stands fully corroborated even from the statement of Dr. Zafar Iqbal Gondal (PW 2) who conducted the postmortem examination and found fire arms injuries on the person of deceased, which were sufficient to cause his death. The statement of Rehmat Ali (PW 4) further gets support from the statement of Dr. Ijaz Ahmad tPW 1) who examined him and issued Medico legal examination report Exh. P/A in respect of one fire arm injury on his person. Both PW 3 and PW 4 have been subjected to lengthy cross examination and defence counsel failed to create any dent in their statements. 15. In the light of our fore going discussion, we hold that prosecution has succeeded in establishing its case against the accused/appellant beyond any shadow of doubt We accordingly uphold the judgment and dismiss the'ippeal (MYFK) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 436 Present: MUHAMMAD NASEEM CHAUDHARI, J. FAIZ MUHAMMAD-Petitioner versus STATE-Respondent Crl. Misc. No. 5312-B of 1998, allowed on 22.12.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Murder--Offence of--Bail petition against-Considerable lapse of time between recording of statements of PWs on 13.7.1998 and date of death of deceased i.e. 13.9.1997 and that of post-mortem examination i.e. 19.9.1997, shall have to be viewed with caution even at bail stage--With respect to alleged motive i.e. existence of dispute about construction of any wall, no independent evidence has been collected by police and even no site plan has been got drafted thereof-Delay in matter of registration of FIR after complete collection of medical evidence is also a circumstance in favour of petitioner-No specific role has individually been attributed to petitioner hence, his case is that of further inquiry~Co-accused of petitioner has been admitted to bail, so he has also to sail with him in some boat through attraction of rule of consistency-Petition accepted. [P. 439] A to C Ch. Nazir Muhammad, Advocate for Petitioner. Malik Muhammad Ilyas, Advocate for the State Mr. Muhammad Naeem Ullah Khan Sherwani, Advocate for the Complainant. Mr. Khalid Mahmood, ASI Police Station Agooki, District Sialkot alongwith Police file.Date of hearing: 22.12.1998. judgment Mst. Kaneez Akhtar alias Bano, sister of Safdar Ali complainant son of Muhammad Shafi, was married to Muhammad Tufail son of Muhammad Alam, a real brother of Muhammad Fayyaz petitioner-accused. Her husband Muhammad Tufail had gone to Saudi Arabia to earn his livelihood. On 13.9.1997 Mst. Kaneez Akhtar died who was buried. Safdar Ah' complainant was not satisfied and had the impression that she did not die a natural death. He submitted an application before the District Magistrate, Sialkot for the disinternment of her deadbody and postmortem examination. The District Magistrate, Sialkot passed the order for holding the inquiry in the matter. Mr. Sikandar Hayat Executive Magistrate 1st Class, Sialkot conducted the iqnuiry who recorded the statements of Safdar Ali, Muzaffar Hussain and Muhammad Sadiq who deposed about her unnatural death. Tanvir Hussain alias Shani, a son of the deceased from Muhammad Tufail, Muhammad Alam co-accused, Sagheer Ahmad Ghumman and Muhammad Tufail stated about her death through electric shock. Muhammad Tufail husband of Mst. Kaneez Akhtar also appeared and stated that he was informed that his wife had died who arrived in Pakistan where he was intimated that she died due to electric shock. The Executive Magistrate submitted the report and expressed the opinion that Mst. Kaneez Akhtar died of electric shock. However, he recommended for exhumation of the deadbody. The District Magistrate passed the order on 19.9.1997 in this regard. 2. The deadbody of Mst. Kaneez Akhtar was exhumed and the post­ mortem examination was conducted on 24.9.1997. The material was sent to the Chemical Examiner as well as the Bacteriologist. According to the report of the Chemical Examiner dated 18.11.1997 poison was not detected in the articles of the deadbody sent to him and examined by him. In his report dated 7.1.1998 the Bacteriologist, Government of the Punjab, expressed that no evidence of ante-mortem injury or fracture was seen. On the application of Safdar Ali complainant the District Magistrate passed the order on 9.6.1998 directing the Superintendent of Police, Sialkot to register the FIR and in this regard he sent covering letter No. 4557 dated 11.6.1998. It was thereafter that FIR No. 337 dated 22.6.1998 was registered at Police Station Uggoki, District Sialkot under Sections 302/34 Pakistan Penal Code. 3. Both Fiaz Ahmad petitioner-accused and his father MuhammaJ Alam co-accused were arrested who moved the learned Sessions Judge, Sialkot for their admission to bail. Vide order dated 26.9.1998 Muhammad Alam co-accused was admitted to bail with the reasoning that "keeping inview the overt act attributed to this petitioner and his age and weak health which would also make this case a matter of further inquiry, if on account of his age he could have done so". However, the plea of alibi raised by Faiz Ahmad petitioner was not given the weight. Whole of the material collected by the prosecution was taken into account and the bail application of Faiz Ahmad was dismissed who has filed this petition before this Court to try his luck to be admitted to bail. 4. The police has recorded the statements of Mst. Sheeba and her brother Tanvir alias Shani on 13.7.1998 to the effect that due to the dispute of the raising of a partition wall in the house their paternal grand father Muhammad Alam and paternal uncle Faiz Ahmad threatened their motherand that at night her mother was taken away by Faiz Ahmad whose shriekwas heard after some time when they were informed that in the court-yard their mother Mst. Kaneez Akhtar had died due to electric shock. Mst. Ghulam Fatima, Mst. Ruqia Bibi and Mst. Sheda Bibi were also examined on 13.7.1998 by the police who stated that at the time of the last bath of Mst. Kaneez Akhtar deceased which was performed by them they had seen the marks of violence on her throat, right arm and back. Amjad Hussain, Nazir Ahmad and Shabbir Ahmad stated that Muhammad Alam came to them alongwith Muhammad Afzal and Nawaz Ghumman and made the extra judicial confession. The medical evidence comprising the post-mortem report as well as the reports of the Bacteriologist and the Chemical Examiner have also been collected by the police. 5. I have heard the learned counsel for the parties as well as learned State Counsel and gone through the record before me. The contentions of the learned counsel for Faiz Ahmad petitioner are that Tanvir Hussain alias Shani aged 14 years, son of the deceased, appeared before the Executive Magistrate 1st Class on 189.1997 who did not implicate Faiz Ahmad petitioner. He added that the female PWs did not raise any hue and cry at the time of last bath of the deceased and that the statements of all the aforesaid PWs recorded under Section 161 of the Code of Criminal Procedure on 13.7.1998 shall have to be viewed with caution especially when Mst. Kaneez Akhtar died on 13 9.1997 whose autopsy was conducted on 24.9.1997 after exhumation of the deadbody. He maintained that the statement of Mst. Sheeba daughter of Mst. Kaneez Akhtar deceased recorded on 13.7.1998 as well as the statement of Tanvir Hussain alias Shani recorded on 13.7.1998 by the police stand contradicted by the statement of Tanvir Hussain alias Shani recorded on 18.9.1997 by the Executive Magistrate 1st Class and that is enough to make the case of the prosecution against this petitioner that offurther inquiry. He continued that the report of the Bacteriologist has made out that there was no fracture on the neck of Mst. Kaneez Akhtar. He also referred to the delay in the matter of registration of the case on 22.6.1998 and canvassed that the parlays were initiated by Safdar Ali complainant withrespect to the property left by Mst. Kaneez Akhtar deceased which could not materialize who moved the application before the District Magistrate eventhough the last evidence was prepared on 7.1.1998 in the form of report of the Bacteriologist, Government of the Punjab, Lahore. 6. On the contrary learned State Counsel and the learned counsel for the complainant laid the emphasis that the accused has not been able toproduce any evidence to the effect that Mst. Kaneez Akhtar died of electric shock and that the statements of the PWs recorded by the police as well as the post-mortem report have prima-facie connected him with the present occurrence which falls within the prohibitory clause. 7. In my view the reasoning adopted by the learned counsel for FaizAhmad petitioner-accused has to prevail. The report of the Bacteriologist has to be considered at this stage to make out that the deeper merits of the case shall have to be analysed and dissected during the trial and that the post­ mortem report is not enough to make me withhold the concession of bail Legally the prosecution has to bank upon the strength of its case and the accused have to face the trial. The fact of the matter is that even though whole of the evidence was collected till 11.1.1998 the petition was filed by Safdar Ali complainant before the District Magistrate, Sialkot on 9.6.1998 for the registration of the case which was registered at FIR No. 337 dated 22.6.1998 at Police Station Uggoki, District Sialkot under Sections 302/34 Pakistan Penal Code. It was thereafter that the statements of the aforesaid PWs were recorded. The considerable lapse of time between the recording of the statements of the PWs on 13.7.1998 by the police, and the date of death of Mst. Kanzeez Akhtar i.e. 13.9.1997 and that of the post-mortem examination i.e. 19.9.1997 has made me to hold that the statements of the PWs shall have to be viewed with caution even at this stage. The female PWs who washed the deadbody before the funeral kept mum and did not inform any body except the police after autopsy when examined on 13.7.1998. With respect to the alleged motive i.e. the existence of the dispute about the construction of any wall no independent evidence has been collected by the police and even no site-plan has been got drafted thereof. The delay in the matter of registration of FIR after the complete collection of the medical evidence is also a circumstance in favour of Faiz Ahmad petitioner-accused. The cumulative effect of the aforesaid analysis of the matter at this initial stage and discussion is that the assertions of the learned State Counsel and the learned counsel for the complainant need not be given the weight. The learned Sessions Judge has held that the case of Muhammad Alam is that of further inquiry. No specific role has individually been attributed to Faiz Ahmad petitioner and his father Muhammad Alam. As such I hold that the case of the prosecution against Faiz Ahmad is also that of further inquiry. It shall not be out of place to express that in view of the recitals of the FIR and the fact that Muhammad Alam co-accused has been admitted to bail by the learned Sessions Judge, it can safely be held that the petitioner has also to sail with his co-accused Muhammad Alam in the same boat for the purpose of his admission to bail through the attraction of rule of consistency. 8. For what has been said above, I accept this petition and admit Faiz Ahmad petitioner-accused to bail in the sum of Rs. 50,000/- (rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Sialkot with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. (MYFK) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 440 Present: DR. MUNIR AHMAD mughal, J. MUHAMMAD HUSSAIN and 3 others-Appellants versus STATE-Respondent Criminal Appeal No. 380 of 1993, heard on 13.7.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/34 read with S. 100-Murder--Offence of--Conviction for--Appeal against-Nature, number and seat of injuries to deceased, date, place and time of occurrence are all admitted on both sides-But statements of eye witnesses leave no doubt that version as put by H. accused/appellant regarding his acting in his self-defence stands fully proved~Non mention of production of revolver and gun of deceased which was produced by accused as admitted by eye witnesses in their deposition clearly shows that I.O. did not conduct investigation honestiy-Trial Court has also not taken note of report of Fire Arm Expert-Law does not place any limitation on person exercising defence plea that he should first receive an injury-Appellant H. was, therefore, fully justified in killing deceased who was not only armed with gun but also with pistol and made every attempt to take life of appellant-Way, he has acted was a natural way and there is no reason to disbelieve it-Appeal allowed. [Pp. 449 & 450] A to E 1976 P.Cr.L.J. 329 ref. Major Waheed-ud-Din Virk, Advocate for Appellant. Mr. S.D. Qureshi, Advocate the State. Pirzada Mamoon-ur-Rashid, Advocate the Complainant. Date of hearing: 13.7.1998 judgment This judgment will dispose of Criminal Appeal No. 380/93 and Criminal Revision No. 317/93 both arising out of the one and the same judgment passed in Sessions Case No. 93/92 and Sessions Trial No. 65/92 on 2.5.1993 by learned Sessions Judge, Sheikhupura whereby the Appellants Nos. 1 and 2 (Muhammad Hussain and Muhammad Hasan) were convicted under Section 302/34 PPC and sentenced to life imprisonment and a fine of Rs. 5.000/- each and in default of payment of fine to suffer further two years R.I. and fine of Rs. 10,000/- under Section 544-A Cr.P.C. and in default of payment of fine to undergo six months R.I. Benefit under Section 382-B Cr.P.C. was allowed. Appellants Nos. 3 and 4 (Mouj Khan and Muhammad Tufail) were convicted under Section 337 PPC to suffer five months imprisonment already .undergone and to pay fine of Rs. 2,000/- each under Section 544-A O.P.C. and in default to suffer two months R.I. (Fine has already been paid by the two appellants Mouj Din and Muhammad Tufail). 2. Briefly stated the facts of the case are that on 9.11.1991 at about 7.00 a.m. while Muhammad Hussain accused was armed with a .12 bore gun, Muhammad Hasan accused was armed with an iron pipe, Mouj Khan and Muhammad Tufail armed with Dangs, in furtherance of their common intention attacked Abdul Majid, Abdul Aziz and Mst. Fajri Bibi in the area of village Chakrali, Police Station Narang, District Sheikhupura and inflicted them injuries with said weapons. Abdul Majid succumbed to the injuries on 10.11.1991 at 1.15 a.m. at General Hospital, Lahore. Complainant Ex. PA was lodged by PW. 1 Abdul Aziz on 9.11.1991 at 9.00 a.m. Formal FIR Ex. PA/1 was drawn same day 9.15 a.m. Originally the case was registered under Section 324/148/149 PPC and after the death of Abdul Majid offence under Section 302 PPC was also added. Sufaid Khan father of all the accused was cited as one of the accused in the initial report but was found innocent in the police investigation and was got discharged from the Competent Magistrate on 4.12J991.. Parties originally were of Chak No. 49 Tehsil Chunian District Kasur, Sufaid Khan and Dalil Khan are real brothers. Accused are sons of Sufaid Khan while Abdul Majid deceased and Abdul Aziz complainant and the given up PWs Shamas Din and Nasar Ullah are sons of Dalil Khan and Mst. Fajri Bibi (PW. 8) is wife of Dalil Khan. Both the parties owned land in District Kasur and after disposing it they purchased land jointly in village Chakrali District Sheikhupura and their houses are contiguous to each other and they are closely related inter-se. The prosecution case is that Mst. Bashiran Bibi and Mst. Razia Bibi are daughters of Suleman Khan alias Sulky Khan. The third daughter of Sullay Khan is Mst. Nusrat Bibi. Mst. Bashiran Bibi is wife of Muhammad Hasan accused while Mst Razia Bibi is wife of Muhammad Hussain accused. The third daughter Mst Nusrat Bibi is unmarried. Sullay Khan engaged Mst Nusrat Bibi to Mouj Khan and took a sum of Rs. 10,700/- from Muhammad Hussain accused. Thereafter, Mouj Khan married some where else and did not marry the daughter of Sullay Khan with whom he was earlier engaged. Sullay Khan than engaged his daughter with PW. 1 Abdul Aziz complainant and Muhammad Hussain accused demanded back the amount of Rs. 10,700/- from Sullay Khan. Sullay Khan and his wife Mst Rahima Bibi came to the house of Muhammad Hussain accused about fifteen days prior to the fateful occurrence of murder from their village Bagiarmar District Kasur and when Sullay Khan told him that he was not in a position to pay back the said amount immediately hot words were exchanged between him and Muhammad Hussain accused. Abdul Majid intervened and asked Muhammad Hussain accused not to quarrel with Sullay Khan and took upon himself the responsibility of paying back the amount of Rs. 10,700/-. About 4/5 days before the incident Abdul Majid paid Rs. 10,000/- to Muhammad Hussain and promised to pay the balance in next few days. On 9.11.1991 Muhammad Hussain again 'demanded the remaining sum of Rs. 700/- from Abdul Majid who wanted some more time to which Muhammad Hussain did not agree on which abuses were exchanged and Muhammad Hussain left Abdul Majid after throwing him a challenge of dire consequences. After some time Abdul Majid, Abdul Aziz and Mst. Fajri Bibi left their Dera and proceeded towards village Chakrali for making some purchases and when they reached near a heap of 'Parali', which they had raised near their Dera in their field, at about 7.00 a.m. on 9.11.1991 Muhammad Hussain accused armed with .12 bore gun, Muhammad Hassan armed with an iron pipe, Muhammad Khan and Muhammad Tufail armed with Dangs emerged at the spot and launched an attack on the complainant party. A Lalkara was also raised at that time that Abdul Majid and others be taught a lesson for taking side with their relatives. Muhammad Hussain fired a shot with his gun which hit Abdul Majid on his left leg and he fell on the ground. While he was lying on the ground Muhammad Hasan dealt him injuries on his forehead and left leg with his iron pipe Mst. Fajri Bibi step forward to rescue his son when Muhammad Tufail gave her a Dang blow on her right hand. Mouj Khan influted Dang blow to Abdul Aziz on his head and shoulders. Meanwhile. Shamas Din and Nasaruilah 'given up P\Vs) the brothers of Abdul Majid who were woiking in the nearby field were attracted to the spot and on seeing them the assailants made good their escape from the scene of occurrence. Abdul Majid, Mst. Fajri Bibi and Abdul Aziz were being taken to Hospital by their brothers Shamas Din and Nasaruilah. They met Maqbool Ahmad ASI (PW. 11) of Police Station Narang near the Railway Crossing being on patrol duty and Abdul Aziz got recorded his statement Ex. PA. 3. After recording the complaint Ex.PA, Maqbool Ahmad ASI (PW 11) forwarded the same to the Police Station Narang, where formal FIR as indicated above was recorded on the same day. The ASI sent Abdul Majid, Abdul Aziz and Mst. Fajri Bibi, the injured, to the hospital for medical treatment and examination. The ASI then inspected the spot and took into possession blood stained earth vide recovery memo Ex. PG. He also prepared the rough sketch of the place of occurrence which is Ex. PM. Then he recorded the statement of PW. 8 Mst. Fajri Bibi, the copy of which is Ex.DA, at Civil Hospital , Narang. As Abdul Majid was in serious condition he was sent to General Hospital, Lahore. The ASI moved an application Ex. PN before the Medical Officer, General Hospital, Lahore for recording the statement of Abdul Majid on the same day but the opinion of the doctor was that Abdul Majid was not able to make statement. This opinion of the doctor is Ex.PN/1. On the night between 9/10.11.1991 while the ASI was present in village Chakrali, he was informed about the death of Abdul Majid deceased. The ASI again proceeded to General Hospital, Lahore where he prepared inquest report regarding the dead body of Abdul Majid and the same is Ex.PP. The dead body of Abdul majid was entrusted to Constables for post mortem examination to be held at Civil Hospital Sheikhupura. After the ASI returned to village Chakrali, PW. 13 Ali Akbar, Inspector/SHO, Police Station Narang took over the charge of investigation. On 11.11.1991 the ASI delivered the sealed parcel containing blood-stained earth to the Moharrir of Police Station Narang for safe custody in the Malkhana. After autopsy last worn blood stained Shalwar (Ex. P. 1) and a phial containing pellets were produced before the ASI and he took them into possession vide recovery memo Ex. PF. On 1411.1991 the ASI got prepared site-plans from the patwari. The notes in red ink recorded by the ASI in the site-plans are Ex. PQ and Ex.PQ/1 respectively. 4 Ali Akbar Inspector/SHO (PW. 13) arrested Mouj Khan, Muhammad Hussain and Muhammad Tufail accused on 22.11 1991. Muhammad Hussain accused got recovered gun Ex.P.2 and the same was taken into possession by the SHO vide recovery memo Ex.PH. Ex.PH/1 is the sketch of the place of recovery of gun Mouj Khan accused got recovery Dang Ex. P. 3 and the same was taken into possession by the SHO vide recoveiy memo Ex.PJ. The rough sketch of the place of recovery of this weapon which was prepared by the SHO is Ex. PJ/1. Muhammad Tufail accused led to the recoveiy of Dang Ex P. 4 and the same was taken into possession vide recoveiy memo Ex. PK. . The rough sketch of place of recoveiy of Dan Ex. P4 was prepared by the SHO which is Ex.PK/1. On 27.11.1991, the SIIO arrested Muhammad Hasan accused and he led to the recoveiy of an iron pipe Exh. P. 5 and the same was taken into possession vide recoveiy memo Ex PL. The rough sketch of the place of the recoveiy of this weapon is Ex. PL/1. 5. Ijaz Ahmad Constable (PW. 5), who was accompanying the ASIMaqbool Ahmad (PW. 11), when the complaint was recorded was given the said complaint by the ASI for taking the same to the Police Station for the registration of formal FIR. The formal FIR was recorded by Muhammad Iqbal (PW. 9), then Moharrir Head Constable and the same is Ex.PA/1. He has stated that it was correctly recorded by him. It was further stated that on 11.11.1991 a sealed parcel containing blood stained earth in this case was given to him by the ASI and the same was delivered at the office of ChemicalExaminer, Lahore by Muhammad Abbas Constable intact, on 17.11.1991. He has further stated that on 22.11.1991 another sealed parcel said to contain gun was given to him by Ali Akbar SHO (PW. 13) and he had delivered the same intact to Muhammad Anwar Constable who in his turn gave the same at the office of Forensic Science Laboratory, Lahore on 10.12.1991. 6. Muhammad Abbas Constable (PW. 4) has stated that on 10.11.1991 dead body of Abdul Majid was entrusted to him at GeneralHospital, Lahore for taking the same to the mortuary at Civil Hospital , Sheikhupura and after the post mortem examination was conducted, the doctor gave him last worn blood stained Shalwar Ex.P. 1 and a sealed phial which he had produced before the Investigating Officer and he took the same into possession vide recoveiy memo Ex. PF. He has further stated that on 17.11.1991 he had deposited the parcel containing blood stained earth intactat the office of Chemical Examiner, Lahore. Abdul Majid (PW. 7) identified the dead body of Abdul Majid deceased at the time of autopsy. Niaz Hussain Patwari (PW. 12) prepared the site-plans Ex.PT and Ex.PT/1 on the direction of the police at the pointation of the PWs. He has stated that the site plans prepared by him were correct and duly signed by him. 7. Dr. Muhammad Afzaal Khawaja, (PW. 2) Medical Officer, R.H.C., Narang Mandi, District Sheikhupura medically examined Abdul Majid on 9.11.1991 at 9.15 a.m. and found the following injuries on his person: 1. A swelling in redended area measuring 15 cm x 15 cm over the right side of forehead including the right eye and upper part of tlie right cheek. Both the Pupils weie fixed and dilated and were non-reacting to light. Clotted blood was present in the left nostril. 2. A lacerated wound rounded in shape inverted margins measuring .9 cm x .9 cm about 4 cm above the medial to the left knee joint. 3. Another lacerated wound rounded in shape everted margins measuring .5 cm x .5 cm on the outer and posterior aspect of the left knee. This laid, about 4 cm below the Injury No. 2 in an horizontal plane. 4. An abraided wound measuring .5 cm x .5 cm on the inner aspect of left lower leg 4 cm above the left medial melleolus. The injured was referred to General Hospital , Lahore due to his critical condition. The medico legal report is Ex.PB whereas the diagram of injuries Ex. PB/1. On the same day and at the same time PW. 2, Dr. Muhammad Afzaal Khawaja , Medical Officer medically examined Abdul Aziz (PW. 1) complainant and found the following injuries on his person:- 1. A lacerated wound 4 cm x .5 cm x scalp deep on the top leftside of the head 9 cm above the left ear. 2. A contused swelling o.5 cm x 1 cm on the top of right shoulder. 3. A contused swelling 4 cm x 1 cm on the top of the left shoulder. 4. The patient complained of pain on the outer lower left leg tendered to touch but no swelling was present. 5. An abrasion on the left cheek measuring 2 cm x 2 cm. Injury No. 1 was kept under observation and was declared simple later on. Ex.PC is the medico legal report whereas Ex. PC/1 is the diagram showing the seat of injuries On the same day at about same time, Dr. Muhammad Afzal Khawaja, Medical Officer (PW. 2) examined Mst. Fajri Bibi (PW. 8) and found the following injuries on the person of her:- 1. Swelling rounded in shape 7 cm x 6 cm on the dorsun of the right hand very tendered to touch. Fingers movements were markly decreased. The injury was kept under observation and was declared grievous later on. Ex.PD is the medico legal report whereas Ex. PD/1 is the skigram showing the location of the injury. After the medical examination, the doctor handed over the carbon copies of the Medico-Legal Reports to the police. Duration of all the injuries was within four hoursW. 3, Dr. Abdul Bari, then Medical Officer, District Headquarter Hospital, Sheikhupura performed post mortem examination on the dead body of Abdul Majid on 10.11.1991 at 3.00 p.m. and he found the following injuries on the dead body:- 1. A contused swelling 17 x 16 cm over the right side of head and forehead. 2. Contused swelling 11 x 10 on top of head left. On internal examination, a large blood clot was seen present outside the skull. Under Injuries Nos. 1 and 2. There were fractures of both right and left parietal bones (top of head). A large blood clot was also present under the skull. Brain was congested. 3. Contused swelling 4 x 4 cm of right eye. 4. Fire arm wound of entrance .8 x .8 cm on inner and upper part of left knee joint, making exit would .9 x .9 cm on the back side of left knee joint outer part. The lower end of femur was seen fractured. 5. Fire arm wound of entrance .8 x .8 cm on inner part of left leg lower part. One pellete was removed from muscle which was damaged. All the injuries were ante mortem. Injury No. 4 and Injury No. 5 were caused by fire arm whereas the rest of the injuries were caused by blunt weapon. In the opinion of the doctor, death had occurred due to sever shock and haemorrhage due to Injuries Nos. 1 and 2 which were each individually and all injuries collectively sufficient to cause death in the ordinary course of nature. The probable time between the injuries and death was within two to four hours and the time between death and post-mortem examination was without 18 to 24 hours. Ex. PE is the carbon copy of the post mortem examination report whereas Ex.PE/1 is the diagram showing the locale of injuries. 8. Dalil Khan (PW. 6) is the marginal witness of the recovery memo Ex. PG by virtue of which hlood-stained earth was taken into possession by the ASI in his presence. He is also the marginal witness of recovery memo Ex. PF by means of which the Investigating Officer, had taken into possession the last worn Shalwar Ex. P 1 of the deceased when the same was produced before him by the constable after the post mortem examination. Sufaid Khan (PW 10) has stated that gun Ex P. 2, Dang Ex. P. 3, Dang Ex. P. 4 and iron pipe Ex. P. 5 were got recovered by Muhammad Hussain, Mouj Khan, Muhammad Tufail and Muhammad Hasan accused respectively vide recovery memos Ex.PH, Ex.PJ, Ex.PK and Ex PL which were also thumb marked by him. 9. After the completion of investigation all the four accused/ appellants were challaned and were sent up to face trial. 10. All the accused were charged under Section 302/34 PPC to which they pleaded not guilty and at the trial the prosecution examined Abdul Aziz (PW. 1), who reported the matter to ASI Maqbool Ahmad Ex PA, Dr. Muhammad Afzaal Khawaja (PW 2) who examined the injured Abdul Majid and produced medico-legal report ExPB and diagram Ex. PB/1, he also examined injured Abdul Aziz and produced his medicolegal report Ex.PC and diagram of injuries Ex.PC/1 and examined Mst. Fajri Bibi and produced medicolegal report Ex.PD and sikgram of injuries Ex.PD/1, Dr. Abdul Ban (PW. 3) who conducted the post mortem examination of dead body of Abdul Majid and produced the post mortem examination report Ex.PE and the diagram Ex.PE/1, Muhammad Abbas Constable (PW. 4) who brought blood-stained Shalwar after post mortem examination Ex.P. 1 and one sealed phial containing a pellet which were taken into possession by theInvestigating Officer vide memo Ex.PF, Constable Ijaz Ahmad (PW. 5) who took the statement of the complainant to Police Station Narang for registration of formal FIR and delivered it to Moharrir of the Police Station, Dalil Khan (PW. 6) in whose presence Investigating Officer recover the blood stained earth Ex PG, Abdul Hamid (PW 7) identified the dead body, Mst. Fajri Bibi (PW. 8) who gave the eye witnesses account, Muhammad Iqbal Moharrir Head Constable (PW 9) who formally recorded FIR Ex.PA/1, Sufaid Khan (PW. 10) in whose presence gun Ex. P. 2 was got recovered by Muhammad Hussain accused which was taken into possession by the Investigating Officer vide recovery memo Exh. PH and accused Mouj Khan got recovered Dang Ex.P. 3 which was recovered vide recovery memo Ex.PJ, accused Tufail got recovered Dang Ex. P. 4 which was taken into possession vide memo Ex. PK and Muhammad Hasan got recovered iron pipe Ex. P. 5 which was taken into possession vide recovery memo Ex. PL, ASI Maqbool Ahmad (PW. 11) conducted the investigation and prepared rough sketch of the place of occurrence Ex.PM, the application made by him to Medical Officer, General Hospital, Lahore for recording statement of Abdul Majid on 9.11.1998 Ex.PN, opinion of the Doctor that he was unable to make statement is Ex,PN/l, report about the death of Abdul Majid Ex.PO, the site plan prepared by the Patwari Ex.PQ and notes of the Investigating Officer Ex.PQ/1 with red ink The death certificate collected by the Investigating Officer on the death certificate Ex, PS/1 PWs Shamas Din, Nasrullah Khan and Mazhar Mahmood were given up by the District Attorney being unnecessary Niaz Hussain Patwari Halqa (PW. 12) prepared the site plan Ex.PT and Ex.PT/1, Akbar Ali, Traffic Inspector (PW. 13) prepared rough sketch of place of recoveiy of gun Ex.P 2 which is Ex. PH/1 who also conducted partial investigation of the case. The District Attorney tendered in evidence report of Chemical Examiner Ex PU. report of Serologist Ex. PV and report of Forensic Science Laboratory Ex PW and closed the case of prosecution. 11 Statements of the accused were recorded under Section 342 Cr.P.C. in which they stated the prosecution story being incorrect and to question No. 10 Muhammad Hussain accused replied as under - "I and my brothers, challaned alongwith me jointly own a tractor, which was under my management and I used to give it on rent to other cultivators for ploughing their land. Abdul majid and his brother had no tractor They used to hire my tractor for cultivating their land and they owed us a rent Rs. 7,500/- A day prior to the occurrence Abdul Majid came to me and asked for the tractor but I refused to give him tractor unless the outstanding amount was paid, whereupon a quarrel ensued and I gave him fist blows. On the day of occurrence I was going towards my land. Abdul Majid was armed with a licensed gun and revolver, came out and coming close to me aimed his gun at me saying that he would not spare me for insulting him. I succeeded in snatching his gun from him and started running towards south. It was a single barrel gun which was loaded. Nevertheless he took out his revolver and fired two shots at me but fortunately I escaped. He had aimed the third fire at me that I gave him three butt blows of the said gun which fell on his head and face. He fell down. The revolver was still in his hand and aimed at me which I snatched from him. Thereafter, Abdul Aziz and Mst Fajri PWs came running from the house who attempted to snatch the gun and the revolver from me and during the scuffle that ensued, both of them received injuries at my hands. I fired and gave injuries to Abdul Majid in self defence I appeared at the police tation and produced the gun and revolver of the deceased before the I O The entire of the episode has been suppressed by the police in collusion with the complainant party. Had I not filed at the deceased and given butt blows, I would have lost my life at the hands of the deceased. None of my brothers who are my co-accused was present at the spot. They have been implicated falsely being my real brothers. I am innocent." 12. In their defence the accused produced Suleman alias Sullay Khan. Accused Mouj Khan tendered in evidence his Nikahnama Ex.DB and closed his defence evidence. 13. The learned Sessions Judge dis-believed the motive version of defence and also the plea of self defence and came to the conclusion that themedical evidence was in line with the ocular evidence, it confirmed the time of occurrence, the types of weapons and the seats of injuries sustained by the deceased and the injured PWs and that the recoveries of the weapons of offence were made at the pointation of the accused themselves and that, as such, the participation and guilt of all the four accused was proved. The learned Sessions Judge opined that originally it were Muhammad Hussain and Muhammad Hasan accused who were present at the place of occurrence and had launched attack on Abdul Majid deceased who according to the isclosure made by PW. 8 was going ahead of Abdul Aziz and Mst. Fajri Bibi and that Mouj Khan and Muhammad Tufail joined thereafter though in the same transaction. Mouj Khan did not inflict any injury to Mst. Fajri Bibi and Muhammad Tufail did not cause any injury to Abdul Aziz and thus all the four accused did not act during occurrence of common intention of them all. In his view Muhammad Hussain and Muhammad Hasan accused acted in furtherance of their common intention in taking the life of Abdul Majid and thus held them guilty and convicted them under Section 302/34 PPC.Regarding the quantum of sentence the circumstances of Muhammad Hussain and Muhammad Hasan being sons in law of Sullay Khan weighed with the learned Sessions Judge and he imposed lesser sentence than the capital punishment. Mouj Khan and Muhammad Tufail were held by him individually responsible and they were convicted under Section 337 PPC. 14. The learned counsel for the appellants has submitted that the conviction and sentence of the appellants are not justified in law and on facts and that the occurrence was admitted by appellant Muhammad Hussain and his defence version was quite plausible and reasonable and plausible defence has been put up by him and that the prosecution has failed to prove its casebeyond reasonable doubt and that the prosecution has cast his net too wide and father, Sufaid Khan and his four sons have been involved and that the four persons are not required to injure three persons and that the investigation only partly believed the prosecution and they found Sufaid Khan innocent and got him discharged from the case and that in such circumstances independent corroboration was necessary to support the tainted evidence of interested and inimical witnesses who are closely related inter se and that even the medical evidence supported the defence version. 15. On the other hand learned counsel for the complainant has submitted that the learned Sessions Judge was wrong in not awarding death sentenpe to Muhammad Hussain and Muhammad Hasan after believing the whole prosecution story and that the reason given for lesser sentence was not recognized by law or by the Superior Courts and that all the accused should have been convicted under Section 302 PPC and that in the present case there was no previous enmity between the parties and the parties were so closely related that they were real cousins inter se, so the question of false implication or deliberations or consultations on the part of the complainant to falsely implicate the accused did not arise and that the evidence produced by the prosecution was independent and not of partial nature and that the sentence be enhanced. 16. I have given due consideration to the valuable arguments on both the sides at length and have also perused the record with their able assistance. 17. At the very out set the learned counsel for the appellants did not press the appeal to the extent of Mouj Khan and Muhammad Tufail, as such, to their extent the appeal stands dismissed and the arguments have been advanced to the extent of Muhammad Hussain and Muhammad Hasan. 18. The incident of murder, the nature, number and seat of injuries to the deceased, the date, place and time of occurrence are all admitted on both sides. They only thing to be determined in this case was the stand taken by Muhammad Hussain accused that it was the deceased who made an attempt to take his life and jssued fires from his rifle which missed and theaccused became successful to snatch the gun from the deceased and issued only one fire on the leg of the deceased and thereafter butt blows to the deceased. The complainant, injured Abdul Aziz (PW. 1) has admitted in hiscross examination that it was correct that while leaving the place Muhammad Hussain accused had taken with him the licenced gun and the revolver of deceased Abdul Majid. He also admitted that he did not state that fact before the police. He also could not deny the fact that Muhammad Hussain accused had appeared before the police after five days of the occurrence. He also admitted it correct that the gun and revolver were returned to them by the po 1 ^ -56. He also admitted that it was correct that the gun and the revolver were handed over by Muhammad Hussain to the police and then the same were returned to them. He also admitted that the gun of deceased was a single barrel gun. Further in the cross examination Mst. Fajri Bibi (PW. 8) who was also an injured witness was confronted with her statement Ex.DA that Muhammad Hussain accused had giveu blows toMajid deceased on his forehead and left leg. She also admitted that the deceased had licence of 12-bore gun and a revolver. She'also stated in the cross examination that as Majid deceased was firing at Muhammad Hussain accused with his revolver inspite of having received injury he was given three successive injuries on his head by Muhammad Hussain accused with butt of the gun. 19. These statements of the eye witnesses leave no doubt that the version as put by Muhammad Hussain accused regarding his acting in his self defence stands fully proved. Section 100 PPC is fully applicable in the circumstances of this case which reads as under: "100. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the \ assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:- First Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly Thirdly Fourthly Fifthly Sixthly 20. Further the SBBL shotgun of 12 bore bearing No. 257578 in working order was allegedly recovered by the Police vide memo Exh, PH on 22.11.1991 at the pointation of Muhammad Hussain from his residential house from Jisti Peti from inside the room below the beds which was a licenced weapon and the opinion of the Examiner of fire arms was that no foulings were recovered from the barrel of the shotgun of 12 bore "butt signed", hence nothing could be said as to when it was last fired. The nonmention of the production of the revolver and the gun of the deceased which was produced by the accused Muhammad Hussain as admitted by the eye witnesses in their deposition clearly shows that the Investigating Officer did not conduct the investigation honestly. The learned trial Court has also not taken note of the report of the Fire Arm Expert. 21. The argument of learned counsel for the State that the accused did not receive any injury before the apprehension could have been entertained as has been stated by the accused is not legally sound because the law does not place any such limitation on the person exercising such defence that he should first receive an injury. Reference can be made to the case of Aludo alias Ali Bux versus The State (1976 P.Cr.L.J. 329). 22. The appellant Muhammad Hussain was, therefore, fully justified in killing the deceased who was not only armed with gun but also with pistol and made every attempt to take the life of the appellant. The way he has acted was a natural way and there is no reason or circumstance to disbelieve it. (MYFK) 23. For the above reasons, this appeal is allowed to the extent of Muhammad Hussain and Muhammad Hassan, appellants and they are acquitted of the charge. The revision petition having no merit is dismissed. Both the appellants Muhammad Hussain and Muhammad Hasan are on bail and they are discharged of their bail bonds. Appeal allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 451 (DB) Present: MIAN NAZIR AKHTAR, J. SHAH SAWAR-Appellant versus STATE-Respondent Criminal Appeal No. 1 of 1998/BWP, heard on 18.3.1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/394/353/186/324-Anti-Terrorism Act, 1997 Ss. 12 & 38--MurderOffence of--Conviction for-Appeal against-Whether special court, Anti Terrorism has jurisdiction to try a case which occurred prior to enactment of Anti-terrorism Act, 1997-Question of-Under para 2 of Schedule of A.T.A., 1997, Offence U/S. 302 if committed with a cannon, grenade, bomb or recket or if victim is a member of police, armed forcesor civil armed forces or is a public servant can be tried by a special court even if offences had taken place before enforcement of Act, 1997~In this case a constable was murdered, hence, special court had jurisdiction to try case. [P. 455] A (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302/394/353/186/324--Anti-Terrorism Act, 1997, Ss. 6, 7, 12, 19 & 38 read with S. 340(1) Cr.P.C.-Murder-Offence of--Conviction for-Appeal against-Case was fixed for 19.12.1997, whereas two defence lawyers for four accused at state expense were appointed by Court on 17.12.1997- Appellants had no occasion to meet them and hand order copies of necessary documents for preparing their defence till 19.12.1997~Each one of four accused had an independent right of being defended by a counsel—Trial Court recorded statements of 17 PWs including 3 eye witnesses when appellants were not properly defended through a counsel-In this way appellants were seriously prejudiced in their defence--In their statements recorded u/S. 342 Cr.P.C.; appellants had voiced their grievance that they were not given an opportunity to engage counsel of their choice-Court had failed to discharge its legal duty of providing a defence counsel to each accused separately and to give a reasonable opportunity to defence counsel to prepare case-Special Courts must take care in conducting trial in accordance with prescribed legal procedure and principles governing administration of criminal justice so as to inspire public confidence-They must not sacrifice interests of justice and fair play at the alter of speedy trial-Having failed to act in consonance with letter and spirit of rule laid down under Section 340(1) Cr.P.C. Special Court has committed a gross illegality which vitiates trial- -Conviction set aside-Appeal accepted-Case remanded to other Special Court for holding fresh trial in accordance with law. [Pp. 457, 458 & 460] B to F Malik Sajid Feroze, Advocate for Appellant. Mr. Hussain Aziz Bhatti, A.A.G. for Respondent. Date of hearing: 18.3.1998. judgment This judgment will dispose of Cr.C. A.SC (Tribunal) No. 1-98/BWP. (Shah Sarwar vs. State), Murder Reference-SC (Tribunal) No. 1-98/BWP. (State vs. Shahsawar etc.), Cr.A. -SC (Tribunal) No. 2-98/BWP. (Abdul Jabbar vs. The State) and Cr. A.SC (Tribunal) No. 3-98/BWP. (Muhammad Shafi vs. The State ) in which common questions of law and fact are involved. 2. The appellants alongwith Abdul Sattar (since acquitted) were tried in the Special Court-II, Anti Terrorism, Bahawalpur for offences U/Ss. 302, 394, 353, 186 and 324 of the PPC for having caused the murder of Muhammad Aslam, Constable and launched murderous assault on Muhammad Ashraf, gun-man. The trial court found them guilty U/S. 302- B/34 of the PPC as well as U/S. 324/34 and 394/34 of the PPC. 2. Shah Sawar and Abdul Jabbar appellants were awarded sentence of death U/S. 302-B/34 of the PPC for causing murder of Muhammad Aslam, deceased. They were ordered to pay compensation amounting to Rs. 40,000/- each to be paid to the legal heirs of the deceased U/S. 544-A of the Cr.P.C. and in default of payment to undergo further R.I. for one year each. Muhammad Shafi appellant was awarded life imprisonment u/S. 302- B/34 of the PPC. He was als.o ordered to pay compensation amounting to Rs. 40,000/- to the legal heirs of the deceased. Under Section 324/34 PPC, the appellants were sentenced to R.I. for 10 years with a fine of Rs. 10.000/- each and in default of payment to undergo further R.I. for six months. u/S. 394/34 PPC, they were sentenced to R.I for 5 years each with a fine of Rs. 5,000/- each and in default of payment to undergo further R.I. for three months each. They were given the benefit of Section 382-B of the Cr.P.C. 3. In the very outset, learned counsel for the appellants raised two preliminary arguments. First, that the occurrence had taken place on 12.3.1997 while the Anti-Terrorism Act, 1997 was enforced on 20.8.1997, hence the Court lacked jurisdiction to try the appellants; that under para 2-A of the Schedule offence U/S. 302 PPC is triable by a Special Court if committed after the commencement of the Act as specially mentioned under para 2(a)(iii) of the Schedule; that the Act cannot be given retrospective effect because it adversely affects the appellants' rights qua legal remedies of the appeal, revision, review before the High Court and the Supreme Court of Pakistan. He explained that the Act was applicable prospectively as was evident from the reading of the provisions of paras 2-A and 2-C of the Schedule as well as Section 38 of the Act. Second, the appellants were not given a fair opportunity to defend themselves which caused serious prejudice to them. He urged that the two defence counsel provided at the State expense were not given reasonable time to prepare the defence which caused serious prejudice to the appellants who were convicted on a capital charge in undue haste. He submitted that the Presiding Officer of Special Courts ought to conduct the proceedings with special care and caution so as to inspire public confidence and must not deviate from the prescribed procedure and settled norms of conducting a criminal trial in a fair and impartial manner. His precise objection is that the appellants were given copies of necessary documents including statements of witnesses U/S. 161 of the Cr.P.C. on 5.12.1997 and the case was adjourned for 19.12.1997 for framing of charge. They were told to engage a counsel till the said date failing which, it was noted that they would be provided defence counsel at the State expense; that the appellants were not able to engage any counsel that in the interim order dated 19.12.1997 it was mentioned that the Court had provided two Advocatevies at the State expense on 17.12.1997, although 17.12.97 was not a date of hearing; that the names of the two defence counsel said to have been appointed at the State expense were not mentioned in interim order dated 19.12.1997; that they had no contact with the appellants and the court illegally framed charge on 19.12.1997 and then recorded evidence of five witnesses on 20.12.1997 when the appellants were not properly defended; that the prosecution evidence was recorded on 22.12.1997 and 23.12.1997 and the judgment was announced on 10.1.1998 that the Court had recorded statements of about 17 witnesses when the appellants were not properly defended by any counsel; that thereafter Shah Sarwar appellant engaged a private counsel named Mr. Mumtaz Hussain Bazmi, Advocate on 23.12.97 who cross-examined the remaining witnesses and that in this manner the appellants were seriously pre-judiced in their defence. 4. On the other hand, learned AAG urged that by virtue of the provisions of the schedule, offence U/S. 302 PPG, even if committed prior to enforcement of the Act, was triable by the Special Court; that the provisions of Section 38 of the Act have the limited purpose of making it clear that for an offence amounting to a Terrorist Act, as defined in the Act, even if committed prior to the enforcement of the Act, the sentence would be the same as provided under the law existing at the time of commission of the offence. He further urged that the Special Court was bound under the law to conclude the trial expeditiously and had allowed time for about a fortnight to the appellants to engage a counsel; that on their failure to do the needful the Special Court provided two Advocates to the accused persons who properly performed their duty; that the prosecution had proved its case against the appellants to the hilt and that a few procedural errors pointed out by the appellants' learned counsel were not sufficient to vitiate the trial. 5. We are not impressed by the first argument raised by the appellants' learned counsel regarding his challenge to the retrospective operation of the Act. Section 38 of the Act referred to by the appellants' learned counsel is re-produced below for ready reference:- "Where a person has committed an offence before the commencement of this Act which if committed after the date on which this Act comes into force would constitute a terrorist act here under he shall be tried under this Act but shall be liable to punishment as authorised by law at the time the offence was committed." Section 38 provides that trial of a scheduled offence which had taken place before the commencement of the Act can take place before the Special Court but the punishment for the offence, though constituting a terrorist act as defined under the Act, shall be the same as authorised by law at the time of commission of the offence. This Section is not meant to provide that a schedule offence if committed before the commencement of the Act would be triable by the Special Court only if the same amounted to a terrorist act as defined under the Act. In fact, the Act contemplates two categories of offences (i) terrorist acts defined U/S. 6 and punishable U/S. 7 of the Act and (ii) scheduled offences punishable under the penal laws of the land. By virtue of Section 12 of the Act, the Special Court has been vested with exclusive jurisdiction to try the scheduled offences, notwithstanding anything contained in the Code of Criminal Procedure or in any other law in force. Sub-section 1 of Section 12 is relevant which reads as under:- "(1) Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in a area in a Province shall be triable only by the Special Court exercising territorial jurisdiction in relation to such area." Under the schedule to the Act following offences are triable by a Special Court : - "SCHEDULE (See Section 2(e)) 1. Any offence punishable under this Act. 2. Any offence punishable under any of the following sections of the Pakistan Penal Code (Act XLV of 1860), namely:- (a) Section 302:- (i) if committed with a cannon, grenade, bomb, rocket; or (ii) if the victim is a member of police, armed forces or civil armed forces or is a public servant; or (iii) if committed during or while committing the offence of robbery or dacoity and committed after the commencement of this Act; or (b) Sections 295-A, 365, 365-A; and (c) Sections 392 to 395, 397 or 398, if in committing theoffence, the offender or any of the offenders commits the offence of murder or- Zina-bil-jabr punishable under Sections 6, 7, 8 or 10 or the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) and committed after the commencement of this Act. 2-A. Any offence punishable under Sections 6, 7, 8 or 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), if committed in committing any of the offences punishable under Sections 392 to 398 of the Pakistan Penal Code (Act XLV of 1860) and committed after the commencement of this Act.An offence punishable under sub-section (4) of Section 10of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), if committed after the enforcement of this Act. Any attempt or conspiracy to commit or, any abetment of any of the aforesaid offences." Evidently certain offences were made triable by the Special Court only if committed after the commencement of the Act. For example, offence u/Ss. 392 to 395, 397 or 398 of the PPC if in committing the offence the accused commits the offence of murder or Zina-bil-Jabr, punishable u/Ss. 6, 7, 8 or 10 of Ordinance VII of 1979 and Offences u/Ss. 6, 7, 8 or 10 of Ordinance VII of 1979 involving commission of offences u/Ss. 392 to 398 of the PPC. The condition "if committed after the commencement of the Act" is not relevant in respect of some offences mentioned in the schedule and the said .offences are triable by a Special Court even if committed prior to enforcement of the Act. Under para-2 of the Schedule, the offence u/S. 302 if committed with a cannon, grenade, bomb or rocket or if the victim is a member of police, armed forces or civil armed forces or is a public servant can be tried by a Special Court even if the offences had taken place before enforcement of the Act. The condition "and committed after the commencement of this Act" is relevant only under para 2(a)(iii) of the schedule regarding the offence of murder, if committing during or while committing the offence of robbery or Schedule, separates the said paras from para 2(a)(iii) and the expression "after the commencement of the Act" cannot be imported into paras 2(a)(i) and 2(a)(ii) of the Schedule. Similarly, offences U/Ss. 295-A, 365 and 365-A under para 2(b) and other offences under para 4 can be tried by a Special Court notwithstanding the fact that the same were committed before the enforcement of the Act. It is significant that offence U/Ss. 295-A, 365 and 365-A do not involve commission of murder or Zina-bil-jabr. Therefore, the conditions regarding commission of murder or Zina-bil-jabr and commission of the offence after the commencement of the Act mentioned under para 2(c) of the Schedule are relevant only qua Sections 392 to 395 and 397 and 398 of the PPG. As regards offence of murder covered under para 2(a)(i) aH (ii) of the Schedule, the Special Court has exclusive jurisdiction to try tiie same even if the offence was committed before the enforcement of the Act. The argument that by giving retrospective effect to the provisions of the Act qua the offence of murder under para 2(a)(i) & (ii) of the Schedule, the substantive rights of the appellants are adversely affected cannot be agitated before this Tribunal which has limited jurisdiction to decide the appeal and does not enjoy the plenary powers under the Constitution of Pakistan to strike down any provision of the Act on the touch-stone of fundamental rights secured to the citizens under the Constitution of Pakistan. Therefore, the first argument riased by the appellants' learned counsel is repelled. 6. The second argument raised by the appellants' learned counsel regarding mode of trial and lack of a fair opportunity of defence appears to have considerable weight. We find from the record that the appellants were provided copies of the documents including statements of the PWs recorded u/S. 161 of the Cr.P.C. on 5.12.97 with a specific order that the appellants should engage a counsel till then. Thus initially the Court had provided a reasonable opportunity to the appellants to engage a counsel. However, thereafter the Court committed a number of errors which caused serious prejudice to the appellants in their defence. After distributing the copies on 5.12.97 the case was adjourned for 19.12.97 for framing of charge but the words," /I t^Pffii^ZsJ^^ JJ ( j f~"'\JJI " appear to have been added subsequently in different ink. On 19.12.1997 the Court passed the following order: It appears that the words," and" e j £> (f f £t^0ie q I/ ($y'& I " were also added subsequently ink. Admittedly, 17.12.97 was not a date of hearing and it is not understandable as to how the defence counsel" were appointed by the Court in the absence of the appellants. Even if it is presumed that two defence lawyers at the State expense were appointed by the Court on 17.12.1997, the appellants had no occasion to meet them and handover copies of necessaiy documents for preparing their defence till 19.12.1997. The names of the two defence counsel appointed at the State expense are not mentioned in the interim order. There is yet another serious infirmity which, per se, is sufficient to vitiate the trial. The Court was conducting joint trial of four accused persons and each one of them had an independent right of being defended by a counsel. Therefore, the Court was under legal obligation to provide a defence co ansel to each accused at the State expense. There is nothing to show that the accused persons had opted to be defended by only two Advocates said to have been provided by the Court at the State expense. Moreover, as mentioned above, the two defence counsel were able to meet the appellants only on 19.12.97 and needed reasonable time to prepare defence in consultation with the appellants. Ordinarily in a case of this nature involving a large number of PWs (about 33) we would have considered time between one week to two weeks to be necessaiy to enable the defence counsel to prepare the case. However, since the Special Court, after taking cognizance had to conduct proceedings day to day u/S. 19 of the Act, it could not grant an adjournment for more than two working days as provided u/S. 19(8) of the Act. The Court ought to have granted adjournment for two days in the interest of justice on 19.12.97. The discretion granted to the Special Court in the matter of adjournment ought to be exercised reasonably and fairly t? c f>cnre the interest of justice. In the present case, the Court granted adjournment for one day which was not adequate, in the circumstances of the case. The Court recorded statements of 17 prosecution witnesses including three eye­ witnesses namely Muhammad Ashraf PW. 3, Nazir Ahmad, PW. 4 and Muhammad Ismail, PW. 10 when the appellants were not properly defended through a counsel. Shah Sarwar appellant engaged a private counsel who took part in the proceedings on 23.12.97 but the other accused had not engaged any counsel. In this manner, the appellants were seriously prejudiced in their defence. 7. In their statements recorded U/S. 342 of the Cr.P.C. the appellants had voiced their grievance that they were not given an opportunity to engage a counsel of their choice. In reply to Question No. 1 U/S. 342 of the Cr.P.C. Shah Sarwar appellant stated "It was not given the opportunity to engage my counsel. I am unaware of the evidence recorded to the extent of PW. 17 when I engaged my counsel myself. Abdul Jabbar, appellant stated:- "I was not given the opportunity to engage my counsel of my choice inspite of my application submitted."Muhammad Shan 1 appellant stated:- "I have not been given the opportunity to engage counsel of my choice. Two State counsel have been engaged by the Court to defend me. The evidence has been recorded in my presence and in the presence of the said counsel." Likewise the acquitted co-accused Abdul Sattar stated:- "I was not given the opportunity to engage my counsel of my choice." It is significant that Shah Sarwar, Abdul Jabbar appellants and Abdul Sattar acquitted co-accused did not refer to appointment of any defence counsel on their behalf at the State expense. However, Muhammad Shafi, appellant stated that two State counsel had been engaged by the Court to defend him. Prima facie, it indicates that the two States counsel had probably come in contact with Muhammad Shafi who gave some instructions to the learned counsel and felt that they were appointed to defend him. Whatever the correct position, one thing is evident that the Court had failed to discharge its legal duty of providing a defence counsel to each accused separately and to give a reasonable opportunity to the defence counsel to prepare the case. The Special Courts must take care in conducting the trial in accordance with the prescribed legal procedure and principles governing administration of criminal justice so as to inspire public confidence. They must not sacrifice the interest of justice and fair play at the alter of speedy trial. 8. The Special Court constituted under the Anti Terrorism Act, 1997 has to conduct the trial in accordance with the procedure provided u/S. 19 of the Act. The provisions of the Code of Criminal Procedure, so far asthey are not inconsistent with the provisions of the Act also apply to the proceedings before a Special Court, as laid down under Section 32 of the Act. U/S. 342(1) of the Cr.P.C. an accused person has a'right to be defended by a pleader in his trial before any criminal court. This right is of paramount importance and has to be jealously guarded in order to protect life and liberty of the citizens. If adequate opportunity of defence through a pleader is not provided to an accused person it will also be violative of the fundamental right regarding security of person enshrined under Article 9 of the Constitution of Pakistan which provides, "No person shall be deprived of life or liberty save in accordance with the law." In the absence of proper opportunity of defence through a counsel, an accused person may be deprived of his life or liberty in violation of the law. To enjoy the protection of law and to be treated in accordance with the law is inalienable right of every citizen as laid down under Article 4 of the Constitution of Pakistan . The opportunity of defence through a counsel must be reasonable and fair keeping in view the nature of each case. In some cases time for a few hours to prepare the defence may be adequate but in others, particularly those involving capital charge time for one week or more may be needed. In the case of "Khadim vs. The Crown" (PLD 1954 Lahore 69) it was held: ".... When the accused is brought for trial, Sessions Judge, who finding that it is necessary to appoint counsel at Government expense for the prisoner, nominates a counsel merely to stand and watch the trial without giving him an opportunity to study the necessary documents and think over the case, makes a farce of the rule which entitles a prisoner charged with a capital offence to free legal assistance. It is true that where it is discovered on the date fixed for the trial that the accused is without counsel postponement of the trial becomes necessary, causing delay and expense. But the rule is intended to be observed and, if such adjournment becomes necessary, it must be granted irrespective of all considerations of expense and delay, unless the case is perfectly simple and the Judge is conscientiously of the view that a few hours' time would be sufficient to enable counsel to take instructions from the prisoner and study the necessary documents in order satisfactorily to prepare himself for the defence of the prisoner." In the case of "Baisakur Ghara vs. The State" (1971 P.Cr.L.J. 1047) the conviction recorded by the Court was set aside and the case remanded for retrial because the defence counsel engaged by the State was afforded a short time of two and a half hours to prepare the case. While refusing to confirm the sentence of death and allowing the appeal the Court was pleased to hold, ",.... We are, therefore, of opinion that the defence lawyer could not do proper justice in the matter for want of time and there has been a miscarriage of justice in the case and the case should go back to the Court of Session for retrial of the accused after giving him proper opportunity to defend himself and sufficient time to the defence Advocate to take proper defence on behalf of the condemned prisoner." The Court was further pleased to observe as under, ".... It is unfortunate that the accused has been given extreme penalty of law without affording proper opportunity to defend himself In the case of "Muhammad Sharif vs. The State" (PLD 1973 Lahore 365), a Division Bench of the Lahore High Court was pleased to hold, "There is no indication that the lawyer had any consultation with the accused and took instructions from him. Under Section 340, Cr.P.C. an accused had a statutory right to be defended by a counsel. The rule of the High Court, quoted above, says that the counsel is to be appointed "in time to enable him to study necessary documents". The time to be allowed in each case would vary but we feel that in a case entailing capital sentence atieast a week's time has to be allowed to the counsel concerned. The statutory right of an accused, particularly in a charge entailing capital punishment cannot be abridged by appointment of counsel a day or two before the trial." In the case of "Yahya Bakhtiar, Advocate vs. The State" (PLD 1983 S.C. 291), the Supreme Court was pleased to hold that a defence counsel appointed by the Court on the same day (in the absence of the accused) ought to be given time to prepare the case after obtaining proper instructions from the accused. The relevant part from the judgment reads as under:- "Another illegality committed was that the Special Court did not give the counsel so appointed by it, time to prepare the case and seek instructions from the appellant, because the Court had asked him to conduct the cross-examination of Manzoor Hussain (P.W. 23) the same day of his appointment and had proceeded with further recording of evidence from the next day." 9. In the present case, it appears that the learned Special Judge was oblivious of his legal obligation to provide defence counsel to each accusedseparately. Even the two Advocates said to have been appointed at the State expense on 17.12.97 had no occasion to come into contact with the appellants before 19.12.1997. 10. As discussed above keeping in view the facts and circumstances of the case, the defence counsel ought to have been given time for two days to prepare the cause. Having failed to act in consonance with the letter and spirit of the rule laid down under Section 340(1) of the Cr.P.C. the Special Court has committed a gross illegality which vitiates the trial. For the foregoing discussion, we accept the appeal, set aside the appellants' conviction and remand -the case to Special Court No. 1 presided over by Mr. Bakhtiar Ali Sial, Judge Special Court-I, Anti Terrorism, BWP. for holding fresh trial in accordance with the law. It is clarified that the trial Court shall proceed afresh from the stage of framing the charge and conclude it in accordance with the law and subject to the observations made in this judgment. (MYFK) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 461 Present: muhammad naseem chaudhri, J. SARWAR-Petitioner versus STATE-Respondent Criminal Misc. No. 290-B of 1999, allowed on 29.1.1999. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Offence u/S. 380/411 PPC-Bail grant of--Bail application has to be disposed of within frame-work of S. 497 Cr.P.C. keeping in viewmaximum punishment of three years u/S. 411 PPG, same does not come within prohibitory clause—According to dictum enunciated in ruling, PLD 1995 SC 34, bail will be declined only in extra-ordinary cases which do not fall within prohibitory clause of following nature: (a) Where there is likelihood of abscondence of accused; (b) Where there is apprehension of accused tampering with prosecution evidence; (c) Where there is danger of offence being repeated if accused is released on bail; and where accused is a previous convict-No circumstance of aforesaid nature has been brought by State counsel, therefore, it is a fit case for admission of petitioner to bail-Bail granted. [Pp. 462 & 463] A to C Mr. Makhsoos Hussain Malik, Advocate for Petitioner. Malik Amin Ullah, Advocate for the State. Date of hearing: 29.1.1999.' judgment Ahmad Ali complainant got recorded FIR No. 802 dated 1.9.1998 at Police Station Saddar Sheikhupura under Section 380 Pakistan Penal Code about the theft of one head of buffalo eight days before. The trackers followed the foot-steps of three persons. Raising the suspicion against Sarwar petitioner-accused as well as Liaquat and Nazir co-accused, Ahmad Ali complainant reported the matter before the police. 2. Sarwar petitioner-accused was arrested who is said to have led to the recovery of one head of buffalo which was taken into possession vide memo attested by the witnesses. Section 411 Pakistan Penal Code has been added by the police. The bail application of Sarwar petitioner was dismissed by the learned Area Magistrate as well as by Rana Zahoor-ul-Haque,, Additional Sessions Judge, Sheikhupura. Sarwar petitioner-accused moved this Court for his admission to bail. The atter was taken up on 15.1.1999 and the notice was issued to the State for 29.1.1999 (today). In view of the recovery of the buffalo and offing of the Eid Festival falling on 19.1.1999, Sarwar petitioner-accused was admitted to interim bail. 3. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. The main contention of the learned counsel for the petitioner is that the recovery is doubtful and that even otherwise due to the recovery of the stolen property the petitioner is entitled to be admitted to bail as the offences under Sections 380/411 Pakistan Penal Code do not fall within the prohibitory clause. He maintained that the proposed relief of bail cannot be denied and the petitioner cannot be detained in the judicial lock-un as a punishment. He referred to the ruling printed as Tariq Bashir and five others us. The State (PLD 1995 Supreme Court 34) wherein it has been enunciated that in nonbailable offences not falling in the prohibitory clause the grant of bail is a rule and refusal, an exception. On the contrary learned State Counsel laid the emphasis that due to the recovery of the buffalo at the instance of Sarwar petitioner-accused both the learned lower Courts have rightly dismissed the bail applications and that he is not entitled to enjoy the concession of bail, , 4. At the very outset I would reproduce as under whole of the order passed by Rana Zahoor-ul-Haque, Additional Sessions Judge, Sheikhupura:- "Present: Counsel for the petitioner. ADA for the State.Recovery has been effected from the petitioner which is sufficient proof to connect the petitioner with the commission of crime. The application of Section 411 PPG is made out which is non-bailable. As such, he is not entitled to the concession of bail which is accordingly declined. Sd/- Announced: Addl. Sessions Judge, 5.1.99. Sheikhupura. 5. I would express the view that a bail application has to be disposed of within the framework of Section 497 of the Code of Criminal Procedure. Keeping in view the maximum punishment of three years under Section 411 Pakistan Penal Code it can safely be held that the same does not fall within the prohibitory clause. On the query made by this Court the Police Officer intimated that no case of cattle lifting was already registered or pending against Sarwar petitioner-accused. This being the position the dictum enunciated in the ruling, PLD 1995 Supreme Court 34, has to be followed by all the subordinate Courts. It is proper to express that it is specifically held by the Supreme Court in the aforesaid ruling that the bail will be declined only in extra-ordinary cases which do not fall within the prohibitory clause of the following nature:- (a) Where there is likelihood of abscondence of the accused; Where there is apprehension of the accused tampering with the prosecution evidence; (b) Where there is danger of the offence being repeated if the accused is released on bail; and (c) Where the accused is a previous convict. 6. No circumstance of the aforesaid nature has been brought to the notice of this Court by the learned State Counsel. In the circumstances I would hold that the very reasoning adopted by the learned Additional Sessions Judge can form the basis of the admission of Sarwar petitioneraccused to bail who has been denied the concession of bail without any legal and factual justification and considerations. In my view the orders passed against him by both the learned lower Courts are devoid of judicial propriety. I, therefore, hold that it is a fit case for the admission of Sarwar petitioneraccused to bail. 7. At this stage, without being disrespectful to Rana Zahoor-ul- Haque, Additional Sessions Judge, Sheikhupura, I have to express my surprise about his perfunctory working. It would be instructive to record that a bail application has to be disposed of within the framework of Section 497 of the Code of Criminal Procedure. There is nothing on record as to howthe learned lower Courts ignored the provisions of sub-section (1) of Section 497 of the Code of Criminal Procedure according to which an accused of an offence not falling within the prohibitory clause is entitled to the discretion of the Court for the purpose of his admission to bail. The working of the learned Additional Sessions Judge ignoring the statutory law and rulings of the superior Courts in such like case, which should be within his knowledge, cannot be approved and it is hoped that in future such a lapse shall not beshown. I am tempted to express that the law has to take its course and the Courts have to keep in mind the shape of scale of justice. 8. Consequently I accept this application, confirm the interim bail allowed to Sarwar petitioner-accused and admit him to bail in the sum of Rs. 10,000/- (rupees ten thousand only) with one surety in the like amount to the satisfaction of the learned Area Magistrate Police Station Saddar, Sheikhupura. This order shall be got executed afresh by Sarwar petitioneraccused within a period of fifteen days from today failing which the same shall become infructuous. (MYFK) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 466 Present: jawaid nawaz khan gandapur, J. ISHTIAQ etc.-Appellants versus STATE-Respondent Cr. M.B.A. No. 821 of 1998, decided on 10,9.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497~Bail~Prayer for~Complainant has stated that death of deceased was caused because of fire-arm injury whereas medico-legal report shows that death was caused by sharp edged weapon i.e., stab wound-Bail granted but Secretary Health is directed to get the matter enquired into and submit requisite report to High Court w Nawabzada Saleem Dil Khan, Advocate for Appellants. Mr. Azhar Rashid, A.A.G. for State. Date of hearing: 10.9.1998 judgment The petitioners alongwith with their co-accused had moved joint application for bail in the Court of the Sessions Judge, Bannu which was marked to the Addl : Sessions Judge, Bannu (Sahibzada Khurshid Ahmad) for disposal. 2. The Addl : Sessions Judge was pleased to grant bail to accused Abdul Ghafar and accused Muhammad Subhan while he refused to release the petitioners on bail by his order dated 16.7.1998 recorded in B.A., No. 275/4 of 1998 (Abdul Ghafar and others vs. The State). Hence this petition for bail. 3. Nawabzada Saleem Dil Khan Advocate learned counsel for the petitioners and Kh. Azhar Rashid Learned Asstt. : Advocate General for theState present and heard at length. Record of the case also perused carefully. The learned counsel for the petitioners submitted, at the out set, that a perusal of the F.I.R. would show that only Ishtiaq has been assigned the effective role because the complainant had categorically stated in the F.I.R. that Muhammad Asghar was fired upon by Ishtiaq accused with which he was hit, got injured, and removed to the house where he expired/died. 4. He further stated that as far as the other petitioner is concerned he has been assigned the role of taking out the pistol and trying to fire at the deceased but the pistol mis fired. This action has been specifically mentioned by the complainant in the F.I.R. He, therefore, stated that he was entitled to be enlarged on bail not as a matter of grace but as a matter of right. 5. The next contention of the learned counsel for the petitioners is that the medico-legal-report does not support the ocular testimony of the prosecution case. On the other hand, it totally negates the prosecution case thereby making the case of the petitioners as that of further inquiry. According to the learned counsel for the petitioners the complainant has stated that the death of the deceased was caused because of fire-arm injurywhereas the medico-legal-report shows that the death and caused by sharp edged weapon Le., the stabe wound. 6. For the sake convenience the opinion of the Doctor is reproduced as under :-- "In may opinion the decease died due to (F.A. injury) stab wound (sharp weapon) causing injuries to the vital organs such as left lung and associated stood vessels leading to excessive bleeding, shock and death. Sd/- DR. BASfflR HUSSAIN SHAH Medical Officer 8. In the circumstances, I am of the view that reasonable grounds to do exist for helieving that the petitioners are connected with the commission of the offence with which they have been charged and that their case is thatof further inquiry. 9. Their bail petition is accordingly accepted. They shall be released forthwith, if not required in any other case, provided they furnish bail bonds in the sum of Rs. 100,000/- (Rs. One lac) with two sureties, each in the like amount to the satisfaction of the Addl: Registrar (Judicial) Peshawar High Court, Circuit Bench at D.I. Khan. 10. The Addl : Registrar (Judicial) shall see that the sureties are respectable persons and hail from the settled areas of Distt : Bannu having sufficient property in their names. The property documents as well as the Identity Cards of the sureties shall be obtained by Addl: Registrar (Judicial) for record. 11. Before parting with the case, I would like to bring it on record that the report of the Doctor (Bashir Hussain Shah) seems to have beenmanipulated in that, in the first instance it was written/mentioned in the said report as under :-- "In my opinion the deceased died due to fire-arm injuries". 12. A copy, alongwith the relevant part of the medical report of the Doctor, be sent to the Secretary to the Government of N.W.F.P. Health Department, Peshawar with the direction to get the matter enquired into and submit the requisite report to this Court within a period of one month positively. (K.K.F.) Bail granted.

4 PLJ 1999 Cr 4 PLJ 1999 Cr.C. (Lahore) 468 Present: tanvir ahmad khan, J. ABDULLAH alias MALLJ-Petitioner versus STATE-Respondent Crl. Misc. No. 1245-B of 1998, decided on 6.8.1998. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 497~Bail~Prayer for--Allegation against petitioners that they were accompanied main culprit-No recovery whatsoever has been effected from them and they were in jail for the last 8 months—Dead body of s - deceased Mst. S was recovered at pointation of main accused and co-accused—It was an unseen murder-Motive is mainly attributed to co accused-They have simply been implicated for the reason that they were seen by witnesses with deceased alongwith co-accused Shehbaz to whom motive has been attributed-In these circumstances keeping in view the role of petitioner bail granted. [P. 469] A Mr. Altaf Ibrahim Qureshi, Advocate for Petitioner. Mehr Muhammad Saleem, Advocate for State. Date of hearing: 6.8.1998. order Petitioner through this application has sought post arrest bail in a case registered vide FIR No. 211/97 under Section 302/364/34 PPC at Police Station Kameer District Sahiwal on 28.8.1997. It is the case of the prosecution that the co-accused Shehbaz took Mst. Sakina Bibi mother of the complainant in a clandestine manner by telling that her services were required to resolve a family dispute. On the same day the complainant was informed by Mithu and Manzoor Hussain P.Ws. that her mother was seen in the company of aforesaid Shehbaz and Shaukat alongwith present petitioner. Subsequently it came to notice that there was no family dispute and the complainant's mother was taken by Shehbaz co-accused for some ulterior motive The motive behind this occurrence was that sister of Shehbaz was married to the complainant and latter's sister Maryam was married to the maternal uncle of Shehbaz in exchange. Said Maryam was abducted and hence Shehbaz insisted that the complainant be given the hand of his younger daughter to him. Mst. Sakina resisted this proposal.Bail is sought on the ground that petitioner has been implicated in a mala fide manner simply on the allegation that they accompanied main culprit i.e. their co-accused Shehbaz. No recovery whatsoever has been effected from them and they are in jail for the last about 8 months. Learned State counsel has simply stated that petitioner was last seen with the deceased Mst. Sakina by the witnesses. I have considered the contentions. I have noticed that the dead body of the deceased Mst. Sakina was recovered at the pointation of Shehbaz and Shaukat co-accused. It was an unseen murder. The motive in this case is mainly attributed to Shehbaz co-accused. They have simply been implicated A for the reason that they were seen by the witnesses with the deceased along with co-accused Shehbaz to whom motive has been attributed. In these circumstances keeping in view the role of the petitioner I admit to bail provided he furnishes bail bond in the sum of Rs. 2 lacs with two sureties each in the like amount to the satisfaction of Judicial Magistrate. (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 470 Present: muhammad naseem chaudhri, J. RAFAQAT ALI-Petitioner ' versus STATE-Respondent Crl. Misc. No. 6432-B/1998, aUowed on 11.12.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Offence U/S 3/4 of Prohibition (Enforcement ot Hadd) Order,1979-Bail petition against-Article 4 of Order 1979 is bailable whereas Article 3(1) does not fall within prohibitory clause, hence bail is rule and its rejection is exception-However if matter is taken up U/S. 6/9 of Control of Narcotic Substances Act, 1997, the ASI was not competent to seize in public the liquor and had no authority to search and arrest petitioner u/Ss. 21 and 22 of Act, 1997-Bail granted. [P. 471] A&B (ii) Words and Phrases- —"A communi observantia non est recedendum" where a thing was provided to be done in a particular manner it had to be done in that manner and if no so done same would not be lawful. [P. 471] C Mr. Zia-ur-Rehman, Advocate for Petitioner. Syed ZulfiqarAli, AAG and Mr. Maqsood Ahmed Khan, Advocate for the State Date of hearing: 11.12.1998 judgment Arif Hussain ASI CIA, Sheikhupura was on Gusht of the area on 25.10.1998 alongwith police party who received a secret information that Rifaqat Ali was present on Sem-Naal Bridge, near Jamia Farooqia while in \ possession of liquor for sale. The police party reached there and apprehended Rifaqat Ali. One Cane containing Desi liquor equal to about 100 bottles was taken into possession vide memo attested by the police constables. He sent the complaint at Police Station A-Division, Sheikhupura where formal FIR No. 795 dated 25.10.1998 was registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The complainant ASI prepared the site plan and also recorded the statements of the PWs. Rifaqat Ali petitioner was arrested. His bail application was dismissed by the learned Additional Sessions Judge, Sheikhupura with the reasoning that he is in the judicial lockup for the last one and half month and that the report of the Chemical Examiner has connected him with the occurrence. The petitioner has filed this petition before this Court for his admission to bail. 2. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. The contentions of the learned counsel for the petitioner are that the offences do not fall within the prohibitory clause, the recovery stands affected and the petitioner is in the judicial lock up. Learned counsel for the State stressed that the petitioner is involved in a case of recovery of liquor and thus is not entitled to be admitted to bail who was arrested on 25.10.1998. 3. At the very outset I would express that a bail application has to be disposed of within the frame work of Section 497 of the Code of Criminal Procedure. If the matter is taken up under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, suffice it to express that Article 4 is bailable and to the extent of this alleged offence this petitioner is entitled to be admitted to bail as of right as contemplated under Section 496 of the Code of Criminal Procedure. With respect to the prima facie attraction of Article 3(1) of the Prohibition (Enforcement of Hadd) Order, 1979 about the transport or sale of the intoxicants/liquor I have to express the view that the said offence does not fall within the prohibitory clause as the maximum punishment is rigorous imprisonment for a period of 5 years and with whipping not exceeding 30 strips and to fine. According to the law of the land as contemplated under Section 497(1) of the Code of Criminal Procedure if an offence does not fall within the prohibitory clause the acceptance of bail is a rule and its rejection, exception. In this regard the reliance can safely be placed on the ruling published as Tariq Bashir and five others vs. The State (PLD 1995 S.C. 34). For the exercise of the discretion in favour of the petitioner in this respect I am tempted to express that on my query the Police Officer as well as the learned State counsel intimated that no case of instant nature is. already registered or pending against this petitioner. 4. If the matter is taken up under Sections 6/9 of the Control of Narcotic Substances Act, 1997 about the possession of the narcotic drug/liquor I have to express the view that Arif Hussain ASI CIA was not competent to seize in public place the liquor and had no authority to search and arrest the petitioner-accused. A perusal of Section 22 of the Control of Narcotic Substances Act, 1997 read in the light of Section 21 of the same Act has made me to hold that Arif Hussain ASI was not competent and having the jurisdiction to detain, search and arrest Rifaqat All petitioner-accused for the recovery of liquor. I must express that the power and authority to set the law in motion is linked with the substantive jurisdiction without which the proceedings could not be initiated and consequently, processed with by Arif Hussain ASI. It would be proper to refer to the ruling Khalid Nawaz vs. The State (1998 P.Cr.L.J. 2008 Lahore D.B.), of which I am the author, in this respect. It shall not be out of place to refer to the maxim "A communi observantia non est recedendum": where a thing was provided to be done in a particular manner it had to be done in that manner and if no so done the same could not be lawful. Considering this matter in this perspective also I hold that Rifaqat All petitioner is entitled to be admitted to bail than to be retained in jail. 5. For what has been said above, I accept this bail application and admit Rifaqat Ali petitioner-accused to bail in the sum of Rs. 25.000/- (Rupees twenty five thousand only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Sheikhupura with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. 6. Arif Hussain ASI CIA proceeded under Rule 25.3 of the Punjab Police Rules, 1934 and got registered the case under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. However, after the registration of the criminal case at Police Station A-Division, Sheikhupura he was bound to hand over the papers to the SHO Police Station A- Division, Sheikhupura. He cannot investigate the case. No order has beenpassed by the Superintendent of Police, Sheikhupura that the case shall be investigated by the CIA. As such Arif Hussain ASI has been directed to handover the police file to the SHO Police Station A-Division, Sheikhupura today i.e. 11.12.1998 on his return to Sheikhupura, failing which he shall be liable to face the legal consequences. The SHO Police Station A-Division Sheikhupura is directed to submit the challan before the Court of competent jurisdiction in terms of Section 173 of the Code of Criminal Procedure within a period of 14 days. (MYFK) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 472 Present: muhammad naseem chaudhri, J. Mst. SHAGUFTA NAUREEN-Petitioner versus STATE-Respondent Criminal Misc. No. 7056-B of 1998, allowed on 2.2.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Offence u/S. 500/506/382/342 PPC--Addition of S. 337-K PPC thereafter-Bail petition against~Bail application has to be disposed of within framework of S. 497 Cr.P.C.-There is nothing on record as to how Sessions Judge ignored proviso (1) to Sec. 497(1) of Cr.P.C. according to which a female is entitled to admission to bail-Addition of S. 337K PPC was held to be malafide Act of I.O. to make case of sensational as well as heinous nature-Therefore, said section was ordered to be deleted— Sections 500/506/342 PPC are bailable, whereas S. 382 is not attributed to petitioner as has no role about forcible removal of Rs. 6,000/- fromcomplainant-Petitioner being female granted bail. [P. 474] A & B Ch. Ghulam Mustafa Bandesha, Advocate for Petitioner. Ch, Rahim-ud-Din, Advocate for the State. Date of hearing: 2.2.1999. judgment Muhammad Ramzan complainant got recorded crime case No. 177 dated 18.6.1998 under Section 500/506/382/342 Pakistan Penal Code, to which Section 337-K has been added, at Police Station Naikapura District Sialkot. It is alleged in the FIR that Muhammad Ramzan complainant had to recover an amount of Rs. 2 lac from Arshad co-accused, husband of Mst. Shagufta Naureen petitioner-accused, who issued the cheque which was dishonoured. According to the complainant, from a street Arshad co-accused alongwith another person took him to his own house where he gave him a kick blow, brought some lady, made him to drink liquor, removed his clothes and got the nude snaps. Mst. Shagufta Naureen petitioner entered the room and asked him to keep quiet and to forget all what has happened as enough was enough. His (complainant's) son Shaukat arrived there who saw him in the aforesaid condition and raised the protest. Thereafter Arshad forcibly removed an amount of Rs. 6,000/- from his person and asked him to leave to the place. Mst. Shagufta Naureen was arrested on 18.6.1998 whose bail plea was rejected by the learned Area Magistrate as well as by the learned Sessions Judge, Sialkot. She filed this petition before this Court for her admission to bail who was allowed the interim relief on 22.12.1998. 2. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the FIR. Learned counsel for the petitioner has canvassed that even according to the recitals of the FIR no role has been attributed to Mst. Shagufta Naureen with respect to all what happened with Muhammad Ramzan complainant, that her presence in her own house is expected and that she being a female is entitled to be admitted to bail under proviso (1) to sub-section 1 of Section 497 of the Code of Criminal Procedure. At the first instance learned State counsel expressed that Mst. Shagufta Naureen is prima facie liable in the matter as her husband committed the nefarious offence who made the complainant naked and got the photographs of the complainant alongwith some other woman. However, when confronted with the situation that would a wife be a party in the aforesaid type of episode when the character of the female is not objectionable and the male accused is a business man; learned State counsel scrupulously conceded that according to the recitals of the FIR Mst. Shagufta Naureen is not prima facie connected with the occurrence. I would express that a bail application has to be disposed of within the framework of Section 497 of the Code of Criminal Procedure according to which a female is entitled to be admitted to bail even in those cases which fall within the prohibitory clause. The police has added Section 337-K Pakistan Penal Code, but it is not a case for the restoration of some property as nothing was handed over to the complainant by Arhsad co-accused and Arshad coaccused did not want to get back any security or amount. The addition of Section 337-K Pakistan Penal Code is held to be a malafide act of the Investigating Officer to make the case that of sensational nature as well as heinous. Under my supervisory constitutional jurisdiction I pass the order for deletion of Section 337-K Pakistan Penal Code as this type of free hand cannot be granted to the police keeping in view the shape of scale of justice. Section 500/506/342 Pakistan Penal Code are bailable and an accused involved in bailable offence(s) is entitled to be admitted to bail as of right as contemplated under Section 496 of the Code of Criminal Procedure. Then remains Section 382 Pakistan Penal Code. In the FIR no role about the aforesaid forcible removal of Es. 6,000/- is attributed to Mst. Shagufta Naureen petitioner-accused. Keeping in view the recitals of the FIR it can safely be held that Mst. Shagufta Naureen petitioner, who is a female, is entitled to be admitted to bail. 3. It shall not be out of place to express that Arshad co-accused husband of Mst. Shagufta Naureen petitioner is stated to be a fugitive from law. Mst. Shagufta Naureen petitioner is expected to live in the house of her husband. It is surprising that she was not granted the bail even though she is a female. In the circumstances of the matter she cannot be detained in jail as that would be punishment without trial. Even otherwise the criminal liability of one member of the family for an alleged act of another member of the family has not been approved in the larger interest of the society. This aspect stands settled in view of the kind words contained in the "Khutba-tul- Hajja-tul-Widah" wherein our Holy Prophet Muhammad (peace be upon him) has very kindly expressed that "hence forth the offender himself will beresponsible for the offence; no son will be charged for the father's crime and no father will be punished for the crime committed by the son". The aforesaid kind words project that only the offender himself is responsible for his misdeed, if any. In the circumstances I hold that the petitioner was entitled to be admitted to bail at the end of the learned Court of Session keeping in view the proviso (1) to sub-section 1 of Section 497 of the Code ofCriminal Procedure especially when she was arrested on 18.6.1998. 4. At this stage it would be instructive to refer that a bail application has to be disposed of within the framework of Section 497 of the Code of Criminal Procedure. There is nothing on record as to how the learned Sessions Judge ignored the proviso(l) to sub-section 1 of Section 497 of the " Code of Criminal Procedure according to which a female is entitled to the discretion of the Court for the purpose of her admission to bail keeping in view the role ascribed to her. The working of the learned Sessions Judge ignoring the statutory provisions of law in such Uke cases, which should be within his knowledge, cannot be approved. I am tempted to express that the law has to take its course and courts have to keep in mind the shape of scale of justice. 5. In view of what has been expressed above, I hold that Mst. Shagufta Naureen is entitled to be admitted to bail than to be retained in jail. I, therefore, accept this petition, confirm the interim bail allowed to her on 22.12.1998 during the holy month of "Ramadhan" and admit her to bail in the sum of Rs. 30.000/- (Rupees Thirty Thousand only) with one surety in the like amount to the satisfaction of the learned trial Court with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel her bail. 6. This order shall be got executed within a period of fifteen days by the petitioner failing which this order shall stand recalled and the petitioner shall be liable to face the legal consequences. (MYFK) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 475 (DB) Present: raja muhammad khurshid and kh. muhammad sharif, JJ. RAB NAWAZ-AppeUant versus STATE-Respondent Criminal Appeal No. 627/1992 and M.R. No. 253/92, dismissed on 13.7.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302~Murder~Offence of~Conviction for~Appeal against—Both eye­ witnesses are related to deceased but they had no enmity with accused/appellant-They were residents of same locality~As such theywere natural witnesses and their presence cannot be doubted-Appellant was related to complainant side, hence, there was not even remotest possibility of his false implication—There is no discrepancy in medical evidence, as far as location of injuries is concerned—Moreover ocular account of occurrence is to be given more weight over expert opinion- Medical evidence goes in support of ocular account of occurrence—Prompt registration of case further corroborate truthfulness of prosecution story narrated by PWs and story narrated in FIR looks to be quite natural and plausible-Prosecution had been able to prove its case beyond any reasonable doubt-Any how, occurrence had taken place in heat of passion, suddenly and without pre-meditation, therefore, sentence of death was altered into imprisonment for life-Appeal dismissed, sentence modified. [Pp. 478,479 & ] A to F Mr. Muhammad Raza Farooq, Advocate for Petitioner. Mr. Muhammad Iqbal, A.A.G. for Respondent. Date of hearing: 13.7.1998 judgment The appellant has challenged the judgment dated 1.7.1992 passed by Rao Muhammad Hayat Khan, the then learned Sessions Judge, Toba Tek Singh, whereby, he had convicted the appellant under Section 302 PPC and sentenced him to suffer dc;ath subject to confirmation by this Court with a direction that the appellant shall pay Rs. 50,000/- as compensation to the heirs of the deceased or in default to undergo six months R.I. 2. The brief facts are that a goat of the deceased namely Ahmad son of Tharaaj strayed into the wheat crop of the appellant. This infuriated the appellant who came out of his house armed with a dagger at about 11:00 a.m. on 24.3.91 and attacked the deceased while abusing him. The deceased also returned the abuses whereupon, the appellant plunged dagger into the neck of the deceased and also caused injury on his left upper arm. The deceased succumbed to the injuries aforesaid. The occurrence was seen by Muhammad Iqbal complainant (PW. 7) and one Ameer son of Basara (PW. S). The third eye-witness namely Behawal was, however, given up at the time of trial. The complainant is brother of the deceased, whereas, Amir is father-in-law of brother of the deceased. The appellant led to the recovery of dagger (P. 3) while in custody on 5.4.91 from his house hidden in a bed lying an a cot in his house. The recovery was secured vide memo Ex. PF and was attested by Rashid (PW. 6) and Tanveer (given-up PW). The aforesaid dagger was sent to the Chemical Examiner and the Serologist who gave their reports vide Ex.PL and Ex.PM respectively that it was stained with human 3lood. The autopsy was conducted by Dr. Muhammad Ajmal Khan (PW. 1) Arho had given his opinion that the cause of death was haemorrhage and shock due to Injury No. 1 which proved fataJ and was sufficient to cause leath in the ordinary course of nature. All the injuries were ante mortem, vhereas, Injury No. 1 was dangerous and Injury No. 2 was simple. The Drobable duration between injuries and death was 5 to 10 minutes while Between death and post mortem was about seven hours. The post mortem report was brought on record as Ex.PA, v/hereas, diagram of injuries was Drought as Ex.PA/1. Both the eye-witne,'sses examined at the trial had supported the prosecution version. The recovery witness also proved that the lagger (P. 3) was recovered at the instance of the accused while in police justody. The motive about the occurrence was also proved by the eyevitnesses that a goat had strayed into the wheat crop which proved to be a

one of contention. 3. The learned trial Court believing the prosecution case passed the iforesaid conviction and sentence upon the appellant for which the present ippeal was preferred by him. The leairned trial Judge has made Murder Reference N. 253/1992 for confirmation of the death sentence as required by Section 374 Cr.P.C. Both the matters are being disposed of through this common judgment. 4. Learned counsel for the appellant contended that the prosecution case was highly doubtful as the reliance was placed on interested and inimical witnesses. In this context, it was alleged that all the witnesses were related inter se and also to the deceased; that the other eye-witness namely Bahawal was, however, given up which allegedly shows the weakness of the prosecution case; that there was some contradictions between the statementsgiven by the witnesses examined at the trial in respect of launching of attack by the appellant upon the deceased; the medical evidence was also stated to be at variance with the ocular account of occurrence as according to the eye­ witnesses there were two injuries, whereas, the Medical Officer was not in a position to say whether both the injuries were result of one blow or two blows. It was contended the recovery in this case was also doubtful because of violation of Section 103 Cr.P.C. as nobody was associated at the time oi recovery from the neighbourhood. Finally, it was contended that the appellant had acted in self defence of his property and person because the deceased armed with 'Phaurha' attacked the appellant while the latter was taking the stray-goat to the cattle pond. 5. Learned public prosecutor contended that the prosecution had been successful to prove its case through ocular account of occurrence given by the most natural witnesses, that the mere fact that they happened to be related to the deceased would not discredit their testimony particularly when they had no animus towards the appellant/accused to rope him in the case falsely; that the eye-witnesses were also corroborated by the recovery oi dagger (P. 3) which was blood stained and recovered at the instance of the accused/appellant; the mere fact that there were some slight discrepancies ol insignificant nature in the statements of the PWs would not render theii testimony incredible; all the witnesses hailed from the same locality and lived in neighbourhood of the accused/appellant and as such, it cannot be said that they were either strangers or chance witnesses. On the contrary their presence at the spot was not only natural but also highly probable as they were living in the neighbourhood of the place of occurrence within th< radius of one to two squares of land. It is true that there were some 'Deras close to the place of occurrence but according to the eye-witnesses, nobodj had turned up-from those 'Deras' at the time of murder but had reachec later; that even according to the Investigating Officer, residents of those 'Deras' were related to both the parties and as such, it could be understooc that they might have not preferred to became witness at the risk of annoying the other side; that the medical evidence also allegedly supported the oculaiaccount of occurrence as far as the weapon used and the injuries caused t( the deceased were concerned; the prompt lodging of the FIR would lead t< irresistible conclusion that the prosecution version took its natural course as there was no chance for deliberation or after through to cook up a false story the site plan (Ex.PD) showed that the land of the accused/appellant and that of the deceased were close to each other and there was a common wall between their houses. The parties lived peaceful life before the straying of goat into wheat field. This showed that there was no enmity between the two sides prior to the unfortunate occurrence. Hence there was no chance of false implication of the appellant in this case. Likewise, the defence version had allegedly no credibility because had the deceased been aggressor, the appellant/accused would have also suffered some injury, may be the slights one, but he remained scratch free which showed that the story of self defence of person and property was vainly invented by the appellant in order to save his skin which otherwise had no merit. 6. We have considered the arguments addressed at the Bar and have also gone through the record with the able assistance of learned counsel for the parties. It is true that both the eye-witnesses are related to the deceased but they had no enmity with the accused/appellant nor had any animus to implicate him falsely in this case. The mere relationship of eye-witnesses with the deceased would not, therefore, render their testimony incredible particularly when they were the residents of the same locality, having their houses at the distance of one to two squares of land. As such, they were the natural witnesses because one of them namely Muhammad Iqbal was returning to his house after ploughing his land, whereas the other was also present in connection with some revenue business. As such, presence of these eye-witnesses cannot be doubted rather it would become natural as they lived in the same locality and were not strangers in the area. It has also come in evidence that the appellant/accused was related to the complainant side. In such a situation, there was not even the remotest possibility of his false implication. Likewise, the recovery was effected in presence of Rashid (PW. 6) who is residing in the neighborhood of the house of the appellant/accused. The mere fact that no other respectable was called from the area would not matter much because the aforesaid witness also hailed from the same locality. The dagger (PW. 3) further linked the appellant with the occurrence because the injuries found on the body of the deceased during the post mortem examination showed that those were inflicted with a sharp edged weapon and the location of injuries supported the eye-witnesses as the same location was given by them. The dagger (P. 3) was found to be stained with human blood in view of the expert opinion referred to above give by the Chemical Examiner and the Serologist. As such, recovery of dagger (P. 3) supported the ocular account of occurrence given by the PWs. There is no discrepancy even in the medical evidence as far as the location of injuries is concerned. The mere fact that the Medical Officer was unable to say whether both the injuries were the result of one blow or two blows would not make any difference because on this aspect, the ocular account of the occurrence is to be given more weight over the expert opinion which cannot be placed at better footing than the witnesses who had actually seen the occurrence. Both the eye-witnesses have stated without any contradiction that the appellant/accused while armed with dagger had given two injuries, one on the neck which proved fatal and other on upper portion of left shoulder. As such the medical evidence goes in support of ocular account of occurrence. The unfortunate occurrence had taken place at 11:00 a.m. whereas, the FIR was registered at 12:45 p.m. on the same day i.e. 24.3.91. The distance between the police station and the place of occurrence was about '10 miles which shows that the occurrence was promptly reported and got recorded without any consultation or pre-meditation, thereby suggesting that the complainant side had no time of fabrication or to distort the facts of the case. On the contrary, prompt registration of the case would further corroborate the truthfulness of the prosecution story narrated by the PWs. Even the documentary evidence such as site plan (Ex.PD) shows that land of the accused/appellant and that of the deceased were adjacent to the 'Deras' which had a common wall. This further shows that the prosecution story as narrated in the FIR looks to be quite natural and plausible. As such, it is correct to say that the prosecution had been able to prove its case against the appellant/accused beyond any reasonable doubt. 7. Now coming to the defence version, it very clear that the appellant/accused did not receive any injury. If at all, he was attacked with a 'Phaura' by the deceased then he should have suffered some sort of injury or harm though to a slights degree. But his scratch free body would show thatthere was no occasion for him to take the extreme step even if the deceased allegedly interposed to prevent him to proceed to the cattle pond with the stray-goat of the deceased. In fact the defence version has no truth nor it appears to be probable under the given situation. On the contrary, as stated above, the prosecution case is free from doubt and as such, the conviction of the appellant/accused under Section 302 PPC has been rightly recorded bythe learned trial Court. 8. The question of sentence being not difficult in this case would call for our consideration. It is clear from the FIR and also from the statements of the eye-witnesses that there was exchange of abuses over straying of goat of the deceased in the wheat crop of the appellant/convict. Hence the possibility couldnot be ruled out that the occurrence had taken place in heat of passion, suddenly and without pre-meditation. This conclusion can be drawn from the fact that even PW. 7 Muhammad Iqbal complainant i.e. brother of the deceased stated that theoccurrence lasted for about half a minute. It is also in evidence that the deceased was still arising from his cot that he was given dagger blows by the appellant. This further shows that there was no pre-meditation and being a sudden affair, the origin of attack appears to be shrouded in myster. As such, it would not become a case of capital sentence and the alternate sentence of imprisonment for life will be suitable hi the interest of justice. We, therefore, while maintaining the convic­ tion of the appellant under Section 302(b), PPC, set-aside the sentence of death imposed upon the appellant/convict by the learned trial Court and the same is altered to the sentence of imprisonment for life. The compensation of Rs. 50,000 as awarded by the learned trial Court is up-held. The appeal is accordingly dismissed with the above modification in the sentence. The appellant shall get benefit under Section 382-B, Cr.P.C. I 9. In view of our above findings, Murder Reference No. 253/92 is answered in negative and death sentence passed upon the appellant/convict is Not Confirmed. (MYFK) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 480 Present: RAJA MUHAMMAD KHURSHID, J. WARYAM and another-Appellants versus STATE-Respondent Criminal Appeal No. 17-95, heard on 17.3.1998. Pakistan Penal Code, 1860 (XLV of I860)-- —S. 302-B/34~Conviction and sentences-Plea of false implication-Both appellant/convicts had attacked their real brother after some altercation and on exchange of abuses at the spur of moment and probably without any pre-meditation on seeing slashing of 'Watt'-There is nothing on record to point out any exercise or venture on part of PWs so as to implicate appellants/convicts falsely-Hence, in absence of any defence, plea raised by appellants/convicts would be devoid of merit-Held: Prosecution having proved its case beyond any reasonable doubt, appellants/convicts were rightly convicted—Appeal dismissed. [Pp. 485 & 486] A, B & C Ch. Muhammad Anwar Bhindor, Advocate for Appellant. Mrs. Siddiqua Altaf, Advocate for A.G. for State. Ch. Nusrat Javed Bajwa Advocate for Complainant. Date of hearing: 17.3.1998. judgment The appellants namely Waryam and Sultan were convicted under Sections 302-B/34 PPC and sentenced to suffer imprisonment for life and a fine of Rs. 15,000/- each or in default to further undergo R.I. for one yeaf" each vide judgment dated 18.12.1994 passed by Ch. Muhammad Saeed, learned Sessions Judge, Okara. 2. The brief facts are that the appellants alongwith their father Muhammad Din (now dead) were sent-up to face their trial under Section 302/34 PPC for the murder of Imam Din. The complaint (Ex. PA) was lodged by Mst. Bilqees Bibi, widow of the deceased in which she stated that on 26.9.1993 at about evening time, she alongwith Abdullah PW were present in their field alongwith the deceased Imam Din. In the meantime, Waryam appellant armed with 'Kassi', Sultan appellant armed with hatchet and Muhammad Din empty handed arrived there. Out of them, Waryam appellant/convict asked the deceased as to why he had slashed the 'Watt' thereby making it narrow. He also shouted that he would be taught a lesson for cutting the 'Watt'. This led to the exchange of abuses between the two sides, whereupon, Muhammad Din (acquitted accused) asked the appellants/convicts to catch hold and finish the deceased. Waryam gave 'Kassi' blows hitting on the right cheek and chin of the deceased. It was followed by Sultan appellant/convict who wielded a blow with the hatchet on the head of the deceased whereupon, the latter fell down. Waryam gaveanother blow with his 'Kassi' hitting the right side of the forehead of the deceased. Sultan appellant/convict repeated hatchet blow injuring the backside of the ear of the deceased. Waryam gave another blow hitting the right upper arm and knees of the deceased. Then another blow was given by Sultan thereby causing injury to the left arm-pit of the deceased. During the transaction, Muhammad Din (acquitted accused) exhorted the appellants/ convicts that the deceased should not be spared. The alarm raised by Mst. Bilqees Bibi and Abdullah PWs attracted a number of villagers to the spot,whereupon, all the three accused took to their heels and escaped alongwiththeir weapons. The deceased succumbed to the injuries suffered during the occurrence. The trial ended into the conviction of the appellants as aforementioned which has been challenged in this appeal. 3. Revision Petition No. 210/95 was filed the complainant, whereby it was prayed that the sentence of imprisonment for life awarded to the appellants be enhanced to sentence of death. The revision petition is also being disposed of alongwith this appeal. 4. It was contended by the learned counsel for the appellants that the deceased was the real brother of the appellants and a son of the acquitted accused Muhammad Din (since dead). As such, it was contended that the FIR on its face appears to be concocted because no father would exhort his. sons to finish his other real son; that the complainant and the other eye­ witness namely Abdullah were only chance witnesses and were not present at the time of occurrence to see the murder of the deceased which was allegedly committed during the darkness of night by some unknownassailants; that both the eye-witnesses were allegedly inimical to the appellants on account of some sort of dispute regarding the ancestral land; that since the eye-witnesses were not only interested but inimical, therefore,there being no corroborative evidence, the case of the prosecution remained highly doubtful and unproved; that the recovery witnesses were dis-believed and as such, the recovery of blood stained hatchet and 'Rossi' from the appellants would not link them with the occurrence; that the motive was also not proved which made the prosecution story highly doubtful and as such, the conviction of the appellants was not sustainable, particularly when the eye-witnesses had made the improvements to bring the medical evidence in accordance with their statements recorded during the trial. In this respect, it was submitted that the witnesses had added during their statements that the blows from hatchet and 'Kassi' by Sultan and Waryam respectively were given from their wrong sides and as such, a conscious effort was made to cover up the lacuna in their statements made before the police in respect of the seats of injuries and their nature as determined by the medical evidence. It was, therefore, contended that since the medical evidence had contradicted the ocular account of occurrence and the eye-witnesses were not corroborated by any other evidence, therefore, they being inimical, interested and chance witnesses should have not been believed to record the conviction against the appellants/convicts. Reliance was placed on Jiand vs. The State 1991 SCMR 1268, Muhammad Usman and two others vs. The State 1992 SCMR 489 (Supreme Court of Pakistan) and Zafar Hayat vs. The State 1995 SCMR 896 (Supreme Court of Pakistan). 5. Learned counsel for the state, assisted by learned counsel for the complainant contended that the prosecution has successfully proved its case against both the appellants. In this regard, it was contended that the FIR was lodged promptly as the occurrence had taken place at about evening time and the FIR was lodged at 11:40 p.m during the same night although the distance between the place of occurrence and the Police Station Cantt. Okara was 22 Kms. Keeping in view the distance and the nature of the area, the FIR was lodged without any delay which showed that there was no chance of concoction for the complainant side to twist the actual facts. Even otherwise, the deceased was the real brother of the appellants and as such, there was no occasion that they will be substituted for some other offenders by the widow of the deceased. It was further contended that though there was some sort of dispute regarding the ancestral property between the brothers but that was only a family affair. As such no one would believe that the appellants/convicts would be falsely implicated for the murder of their brother if they were not the actual killers. It might be an unfortunate occurrence but it was alleged that the same was true that the appellants/convicts were the killers of their real brother. Learned counsel for the state contended that there was no contradiction between the medical evidence or the statements of the PWs because they had stated what they had been during the occurrence. In this regard, it was alleged that the FIR was neither an encyclopaedia nor an exhaustive document to carry the minutest details of the attack. In the FIR, the witnesses had stated that the appellant Sultan had caused injuries with hatchet, whereas, his co-appellant Waryam had wielded 'Kassi' to give injuries to the deceased. The mere fact that the witnesses missed to state in the FIR as to what side of weapons of offence was used and that they had stated so during the statements before the Court would not amount to such an improvement so as to adversely effect their testimony which otherwise looked to be forceful and trust­ worthy; that there was no reason with the widow of the deceased or Abdullah PW to falsely implicate the appellants for the murder of their real brother; that though the motive and the recovery of weapons of offence were not proved but there was no need of corroboration because the eye-witnesses were not only natural but truthful keeping in view the circumstances of the case; that the eye-witnesses had no motive to implicate the appellants falsely in this case or to substitute them for any other offender. The natural urge on the part of the widow Mst. Bilqees Bibi would be to bring the real culprits to book instead of roping in some substituted persons. It was, therefore, contended that if the eye-witnesses were otherwise natural and trust­ worthy, there was no need for their corroboration; that if any corroboration was required, the prompt lodging of the FIR would provide the same because it was unlikely that in a short span of time there would have been any padding or cooking up of a false story by a woman like Mst. Bilqees Bibi who was admittedly the widow of the deceased. The eye-witnesses being straightforward and truthful, infact there was no need of corroboration. Reliance was placed on Abdul Ghafoor and another vs. The State 1994 P.Cr.L.J. 2182 ( Lahore ). 6. I have considered the foregoing submissions made at the bar from both the sides. It is to be seen if the prosecution has been successful to prove its case against the appellants/convicts. In this regard, the main reliance of the prosecution is on the eye-witnesses namely Mst. Bilqees Bibi (PW. 6) a widow of the deceased and Abdullah (PW. 7), a common relative of the parties. Learned counsel for the appellants assailed the testimony of these witnesses on the ground that they were chance witnesses, were interested and inimical to the accused persons. In this respect, it was alleged that the presence of Mst. Bilqees Bibi at the evening time at the place of occurrence looked to be unusual because she was mother of five children and normally she should be with her children at home at such a time of the day; that she nursed grudge against the appellants under the impression that her husband was not given due share from the inheritance of his ancestral property; that she involved the accused/appellants merely on suspicion although the murder was committed during the darkness of night by some unknown persons. The testimony of Abdullah (PW. 7) was assailed on the ground that although he was related to both the sides but his wife Mst. Riaz Bibi D/O. Muhammad Din (dead accused) and sister of the appellants had died and he wanted to have the hand of daughter of Waryam accused with the help of Imam Din deceased and Mst. Bilqees Bibi PW but on refusal all of them got inimical to the appellants/convicts; that Abdullah was a chance witness because he never resided at the place of occurrence nor his presence at the spot looked to be creditable because he lived at a distance of about 2 to 5 squares of land from the spot of occurrence; that the witness had told lie although he had not seen the occurrence nor was present at the spot. 7. I have given my considered opinion to the objections raised against the evidence of the eye-witnesses named above. Mst. Bilqees Bibi is admittedly a widow of the deceased and her presence with her husband was very natural. She must have gone there to see her husband who was _working there since morning. Unfortunately at evening time, the assault took place as described by her, whereby, she specifically named the appellants/convicts and attributed them the hatchet and 'Kassi' blows ' mentioned in the FIR and detailed in her statement. The mere fact that theFIR was silent regarding the use of 'Kassi' or hatchet either from the sharpside or from the blunt side would make no difference as the same was explained during the evidence at the trial. This cannot be considered as an improvement nor it would damage the evidentiary value of the statements ofthe eye-witnesses at the trial. Admittedly, it was evening time and the attack was made on the deceased suddenly by the appellants/convicts with their respective weapons thereby causing blows on his different parts. It could not be possible to tell with exactitude regarding the side of the 'Kassi' or the hatchet used for causing injuries during the transaction. The mere fact that the eye-witnesses explained that position during the trial would not constitute deliberate improvement nor it would effect the merit of their statements, particularly when the weapon of offence used by each of the appellants has been stated to be the same which were mentioned in the FIR. A little bit variation may be possible due to the observation made by a naked eye, particularly when the occurrence had taken place near about the sun­ set. The medical evidence cannot be stated to be contradictory because theuse of hatchet and 'Kassi' could be inferred from the injuries found on thebody of the victim. The witnesses also stated that those injuries were causedby 'Kassi' and hatchet respectively by the appellants/convicts. In such a situation, it cannot be said that there was any material discrepancy between the medical evidence and the ocular account 01 occurrence. Even otherwise a minor variation in the nature of injury is not necessarily to lead to a conclusion that they eye-witnesses had wrongly deposed. On the contrary, weight should be given to the evidence of the eye-witnesses as compared to the expert evidence because the latter only gives an opinion, whereas, the eye-witnesses renders the account of occurrence what he or she had actually seen. It is well said that 'seeing is believing'. Hence the eye-witnesses have to be given preference regarding the ocular account of occurrence given by them if they are otherwise trustworthy and creditable. In the instant case, there is nothing on record to show that either Mst. Bilqees Bibi or Abdullah P.Ws., had any such animus against the appellants/convicts so as to involve them in the case falsely. It is particularly so about Abdullah P.W. because he is related to both the sides and would not like to depose falsely against the appellants/convicts if they were not the actual culprits. Even otherwise, their evidence is supported by the prompt lodging of the F.I.R. because the occurrence had taken place at about evening time, whereas, the case was registered with the police at 11.40 p.m. on the same night although being a rural side, the distance of place of occurrence from the police station being 22 Kms. would not leave any scope for the padding or concoction of the F.I.R. by the complainant side. The presence of Abdullah P.W. cannot be rendered as per chance because he also owns land near to the place of occurrence at the distance of between 2 to 5 sqares. although the exact distance could not be pin pointed but according to the witnesses, the distance was about 2 squares of land. This distance is not too much in the rural side and would be considered close enough to attract the witness to the tube-well of Allah Ditta (given-up PW) for the purpose of smoking of 'Huqqa'. This conduct of the witness is also not unusual because in the village side, people come to share smoking of 'Huqqa' if it is available in the nearby place. The presence of Abdullah PW, therefore, cannot be considered exceptional or unusual but would be rather natural. As such, both the eye-witnesses had no special reason to implicate both the appellants/convicts falsely in this case. On the contrary, the natural urge on the part of Mst. Bilqees Bibi, widow of the deceased being an Eastern lady would be to name the actual culprits instead of substituting some innocent persons for the murder of her husband. As such, the evidence given by both the eye-witnesses is not only trust-worthy but also appears to be convincing and highly creditable being truthful and straightforward. The learned trial Court has, therefore, correctly relied upon the ocular account of occurrence although the motive and recovery were discarded. The mere fact that the complainant was unable to state in the FIR whether or not the weapons of offence were used from the sharp or wrong side would make no difference keeping in view the evening time and also because the FIR is not an exhaustive document so as to contain the minutest details of the assault by giving the photographic version of the infliction of injuries. It should be kept in mind that the occurrence is to be seen by a naked eye and every witness has a different power of observation, therefore, non-mentioning of minor details as pointed out above would not render their testimony defective provided the same is straightforward and trust-worthy otherwise. As already held above, both the eye-witnesses appeared to be truthful and straightforward, therefore, the variation in respect of the use of weapons from its sharp or wrong side would not make any difference nor would it create any genuine doubt regarding the culpability of the offenders. Since the eye-witnesses have been found to be truthful witnesses, therefore, they would not require any material corroboration from the circumstantial evidence and if any is needed, the lodging of the prompt FIR can be used as a corroborative piece of evidence. 8. The defence taken up by the appellants/convicts is of no avail to them because the eye-witnesses have no animus against them to implicate them falsely in this case. Their alternative plea also falls to the ground that somebody else had killed the deceased during the darkness of night and being a blind murder, they had been involved in this case falsely by the PWs. There is nothing on the record to point out any exercise or venture on the part of the PWs so as to implicate the appellants/convicts falsely in this cas«:v ' Hence, in the absence of any defence evidence, the plea raised v t appellants/convicts would be devoid of merit. The prosecution having provet j its case beyond any reasonable doubt, the appellants/convicts were rightly convicted by the learned trial Court. 9. The question of sentence is not difficult in this case. Both the appellants/convicts had attacked their real brother after some altercation and on exchange of abuses at a spur of the moment and probably without any pre-meditation on seeing the slashing of the 'Watt'. Therefore, the sentence awarded by the learned trial Court does not call for any interference. It will not be a case of capital sentence even on that ground apart from the ground given by the learned trial Court. Resultantly, the appeal is dismissed. The conviction and sentence for imprisonment for lifeunder Sections 302-B/34 PPC is maintained. Since there is no provision of sentence of fine under Section 302-B, PPC, therefore, the aforesaid sentence is set-aside and is converted into amount of compensation of Rs. 25,000/- each to be paid by the appellants/convicts to the heirs of the deceased under Section 544-A, Cr.P.C. failing which they shall suffer further S.I for three months each. The benefit of Section 382-B, Cr.P.C. is maintained. 10. This will also dispose of the connected revision petition which stands dismissed. (B.T.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 486 Present: SARDAR MUHAMMAD raza, J. Syed AZMAT ALI SHAH and another-Petitioners versus if STATE and another-Respondents Crl. Misc. No. 148 of 1998, decided on 26.10.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 344-Pakistan Penal Code (XLV of 1860), S. 324/34-Remand of accused without production before Magistrate--Validity-It is necessary that accused be physically produced before Magistrate so that he is in a position every time to appreciate plight of a detenu-It becomes all the more necessary when submission of challan does not take place within time specified by general as well as special laws-Grant of remand in routine and on "robkars" without accused being physically produced before Magistrate would amount to violating very object behind enactment of Section 344 Cr.P.C.-Held: Physical production of accused before Magistrate at time of remand is mandatory unless prevented by any act of God beyond reach and power of any one concerned. [P. 491] A <ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 344-Pakistan Penal Code (XLV of 1860), S. 324/34-Detention of accused and taking of remand at belated stage—Whether regularise all previous illegalities-Question of-One lawful remand at much belated stage operates to regularise all previous illegality, would amount to putting judicial implimator on a statutory violation committed by a Police Officer or by a Magistrate qua Sections 167 and 344 Cr.P.C.—Regularisation by Court of such detention would tantamount to compromising liberties of citizens at altar of expediency—It would tantamount to giving premium to submission of challan with any quantum of delay enjoyed by Law Enforcement Agencies and would ultimately be a total negtation of statutes contained in Sections 167 and344 Cr.P.C.-Held: No illegality in this behalf could be legalised or regularised by any subsequent order passed at belated stage even by Court of competent jurisdiction. [Pp. 492 & 494] B & C Mr. Mushtaq All Tahirkhele, Advocate for Appellants. Malik Manzoor, A.A.G. and Saeed Akhtar, Advocates for Complainant. Date of hearing: 7.10.1998. judgment This is a petition filed by Syed Azmat Ah' Shah S/O. Syed Niamat Shah and Aurangzeb S/O Ghulam Rasool residents of Ghazi Hamlet and Pipliala respectively for their release on bail U/S. 497 Cr.P.C. r/w. Section 344 Cr.P.C. 2. The background of the case, in the light of FIR # 153 dated 30.8.1997 of P.S. Ghazi District Haripur, is to the effect that Pir Sabir Shah MPA in his vehicle # BLN 1848 alongwith his companions on 30.8.1997 was returning from a marriage ceremony in village Pipliala to Ghazi. When at 2110 hours he reached near the gate of Intermediate College located on Pipliala road, the vehicle was fired at from behind. Some inmates including Pir Sabir Shah are stated to have been injured and a case U/Ss. 324/34 PPC was registered against unknown assailants.b. Numerous persons like Malik Muhammad Younis, Malik Abdur Razzaq and the present petitioners were arrested. First two were released on bail by this Court on 15.1.1998 while the application of Syed Azmat Shah and Aurangzeb, the petitioners was rejected. The present petitioners filed another bail application # 2/98 before this Court on 25.3.1998 claiming that their detention was unlawful within the contemplation of Section 344 Cr.P.C. Such application was also dismissed by this Court on 1.4.1998 holding that as the challan stood submitted before the trial Court, the matter be agitated before such Court. The learned Special Judge/Sessions Judge Haripur vide his order dated 22.4.1998 has rejected the application on the main ground that the detention even if illegal for sometime had stood regularized when the accused were produced before the Court of competent jurisdiction at a subsequent stage and when such Court passed orders u/S. 344 Cr.P.C. The petitioners have again approached this Court. 4. A reference to the record would indicate that the FIR having been registered on 30.8.1997, the present petitioners Azmat Shah and Aurangzeb were arrested on 12.9.1997 and 8.9.1997 respectively. Incomplete challan was prepared on 8.10.1997 while complete challan on 31.10.1997. On 20.1.1998 the petitioners were shifted to Central Jail D.I. Khan. From and 8.9.1997 upto 20.1.1998 the judicial custody of the accused was obtained from the jduicial/Ilaqa Magistrate and the last remand was obtained on 15.1.1998. During the stay of the petitioners in Central PrisonD.I. Khan, three remands were obtained on 28.1.1998, 10.2.1998 and 24.2.1997 from the Judicial Magistrate at Haripur when such accused were never produced before such Magistrate. 5. In the above background, the questions to be determined in the present petition are, as to whether the petitioners had been produced before the Court of competent jurisdiction, as to whether the remands were granted by the Court of competent jurisdiction, as to which is the Court of competent jurisdiction and as to whether the prolonged unlawful detention of the petitioners stood regularized at a subsequent stage when they were produced before the Special Judge/Sessions Judge Haripur who, thereafter granted remand to the petitioners. 6. Mr. Mushtaq Ah' Tahirkhele, learned counsel for the petitioners placed reliance upon Muhammad All versus The State Q985 P.Cr.LJ 603) ( Lahore ) where accused in murder case was kept in detention without orders from a Court of competent jurisdiction. It was held that the detention wasillegal and the accused was directed to be released on bail. The Court had even gone to the extent of observing that prima facie it was a case of wrongful confinement punishable U/S. 343 PPC. Next he sought support from another case Allah Ditta vs. The State (1991 P.Cr.LJ 408) where, at the time of remand the accused was not produced before the Court and was directed to be produced on the next day simply on a "robkar". The Lahore High Court, once again relying upon the previous authority of Muhammad Ali declared the detention of the accused as without lawful authority and the accused was granted bail. 7. Similar question was taken up and dealt with accordingly in Ram Narayan Singh vs. The State (AIR 1953 SC 277). This view was followed byKarachi High Court in Darshan Singh vs. The State (PLD 1957 Karachi 212) which was upheld by a Full Bench of the same Court in State vs. Samiullah Khan (PLD 1959 Karachi 157). All the aforesaid cases were once again taken guidance from by Karachi High Court in Kanwar Khalid Younus vs. The State (1993 P.Cr.L. J. 437). It was observed that powers U/S. 344 Cr.P.C. can only be exercised by a trial Court. It presupposes the placing of material before the Court so that the remand could be granted or refused in the 1' rht of such material or in case of refusal, the Court may commence the enquiry. 8. All the above questions tend to create confusion only when the investigation is not completed by the Investigating Agency and challan is not submitted," within the mandatory period of fifteen days. The law contemplates a perfectly smooth sailing and the confusion arises only when the legal formalities are ignored and the efficiency of completing the enquiry within 15 days and the submission of challan accordingly, is not shown. Obviously, when an accused person is arrested, he is bound to be produced before the Magistrate within a period of 24 hours with reference to Section 61 of the Cr.P.C. Beyond such period the police cannot detain a person on its own authority and hence has to seek permission from aMagistrate u/S. 167 Cr.P.C. Such remand u/S. 167 Cr.P.C. cannot be obtained for a period of more than 15 days. If after 15 days the investigation is not complete, the material is bound to be produced before the trial Court u/S. 344 Cr.P.C. to enable the Court to commence the enquiry. At this stagethe Court has the discretion to allow remand on any reasonable or sufficient grounds. This principle of giving adjournments is required to be followed to strictly and so sparingly that even the sine die adjournment was considered illegal in Tariq Javed Butt versus The State (1997 MLD 2101). It carries logic because once a case is adjourned sine die, the accused is never produced before the Court thereafter and no remand is obtained to justify his detention. It must be appreciated that grant of adjournment and remand is never to be taken in routine and it must be granted or refused by positive application of mind to the facts and circumstances of each case. It is sobecause it involves the liberty of a citizen whose each and every day of detention must be accounted for. 9. The case of Mehr Khan vs. Yaqoob Khan (1981 SCMR 267) is another important authority on the subject. It was in fact relied upon by both the parties. It dilated upon the provisions of Section 190(1) and Section 190(3) of the Cr.P.C. as it stood after the deletion of commitment proceedings. A difficulty was felt to visualise as to how a Magistrate could postpone, commence or adjourn an enquiry after the doing away of commitment proceedings. The Hon'ble Supreme Court held that such difficulty is eliminated when it is comprehended that the Magistrate taking cognizance of an offence is still required to apply his mind to ascertain if case in question is one he is required to send for trial to Court of sessions or if he could try it himself. Application of mind in such way was interpreted to be an "enquiry" with reference to Section 344 Cr.P.C.. 10. The difficulty does not arise when a case is triable by the same Magistrate before whom an accused is required to be produced within 24 hours. In that case all the orders required to be passed either u/S. 61 or u/S. 167 or u/S. 344 Cr.P.C., are passed by one and the same Court. It also created no confusion when the committal proceedings were in tact and the Court authorised to take cognizance of the offence used to be the same which could hold a regular enquiry as well. It became a little bit confusing now wheit the Court authorised to take cognizance U/S. 190(1) Cr.P.C. had no authority to hold trial and to send the case upto the Court of sessions which has the authority to hold trial. Now a Magistrate is not required to hold an enquiry but that does not mean that he is to act, in the words of the Supreme Court, merely as a Post Office and automatically send the case for trial to a Court of sessions simply because a section relating to an offence exclusively triable by a Court sessions has been mentioned by the police in the challan or any private complaint, as the case may be. He is required to apply his mind to the genuineness of charge and such application of mind is an enquiry now with reference to Section 344 Cr.P.C. 11. The Hon'ble Supreme Court further went on to observe that the difficulty has arisen in the interpretation of Section 344(1) Cr.P.C. because it has not been suitably amended by the Law Reforms Ordinance and its wording remained the same as it were before the omission of Chapter XVIII. A careful perusal of the section would indicate that the power of remand under sub-section (1) of Section 344 Cr.P.C. has been conferred on magistrate as well as the Presiding Judges of other Courts like Courts of sessions. A Court of sessions also cannot pass an order u/S. 344 Cr.P.C. unless a case has been sent to it by a Magistrate u/Ss. 190(3) Cr.P.C. The ruling before us has given a guide line as to what are the courts which are competent to take cognizance and at what occasion. We understand and holdthat in cases triable by Magistrate, the Court competent to take cognizance is that of a Magistrate who can pass all the orders u/Ss. 61, 167 and 344 Cr.P.C. In cases in which the cognizance can be taken by the Magistrates ofthe 1st Class but such Magistrates are not competent to child trial, they canpass orders u/Ss. 107 and 344 Cr.P.C. upto the time the challan is not sentup to the higher Court or the Court of sessions which is competent to hold the trial. Once the case is sent up for trial to the Court of sessions, all the orders passed thereafter U/S. 344 Cr.P.C. shall be passed by the trial Court. 12. Mr. Saeed Akhtar Khan learned counsel for the complainant though had no cavil with the above proposition of law yet had reservations about the production of the accused before the Court at the time of the passing of order U/S. 344 Cr.P.C. and also that any irregularity done by the police or by the Magistrate in granting remand to the accused at one stage or stages can be regularised ultimately if the accused is produced before the Court of competent jurisdiction. He placed reliance on a Single Bench case of this Court in Haftzur Rehman vs. The State (PLD 1993 Peshawar 252). Itwas held therein that the production of accused before the Magistrate for obtaining remand was not mandatory. The Court relied upon a case of Raj Narain vs. Superintendents Jail New Delhi reported in (AIR 1971 SC 178), which was further followed completely in M. Sambasiva Rao Versus Union of India (AIR 1973 SC 850); the basic authority being (AIR 1971 SC 178). 13. The close study of the case of Raj Narain (AIR 1971 SC 178) would reveal that in that case the accused had stood transferred to the custody of the Supreme Court but when the Magistrate was resorted to for the purposes of obtaining the remand of the accused, the Magistrate attempted to call the accused to be produced before him, practically from the Supreme Court. In such circumstances the Supreme Court of India observedthat the object of production of the prisoner before the Magistrate was more than answered by his production before the Supreme Court because the prisoner had the protection of his interest transferred from the Magistrate tothe Supreme Court. It was further observed that sufficinet compliance with the requirement of law would have been if information to accused, to Jail Authorities and to the Supreme Court had been furnished by the Magistrate with reference to Section 344 Cr.P.C. We believe that had the custody of theprisoner been not transferred to the Supreme Court in connection witn some hearing, the Supreme Court of India would not have had made such observations. The very findings of the Court would indicate that there was some object of production of the prisoner before the Magistrate but such object was considered to have been more than answered by his production before the Supreme Court. Meaning thereby that there is some object in producing the accused before the Magistrate at the time of remand. From such observations it is further indicated that in production before the Magistrate, the accused has some protection of his interest involved, which, in the circumstances was considered to have been transferred to the Supreme Court which held that the object of such production stood more than answered when the accused had already been transferred to the Supreme Court and was before it. We believe and hold that had the accusedbeen not physically transferred before the Supreme Court, it would not have objected to the production of the accused before the Magistrate at the time when the latter granted the remand. 14. In the state of affairs that prevails in our country, we observe quite frequently that laws are ignored and flouted in general and all the more flouted in certain specific cases. The liberties of citizens are now given secondary importance and at times the least importance. In such circumstances, it is necessary that the accused be physically produced before the Magistrate so that he is in a position every time to appreciate the plight of a detenu. It becomes all the more necessary when the submission of challan does not take place within the time specified by the general as well as special laws. The grant of remand in routine and on "robkars" without theaccused being physically produced before the Magistrate would amount toviolating the very object behind the enactment of Section 344 Cr.P.C.. It is held that the physical production of accused before the Magistrate at the time of remand is mandatory unless prevented by any act of God beyond the reach and power of any one concerned. 15. The next case relied upon by the learned counsel for the complainant was that of Ghulam Abbas vs. The State (1993 P.Cr.LJ. 43), another Single Bench judgment from Lahore High Court. This was in support of the argument that the previous irregularities regarding remand or remands could be regularised by subsequent order passed in accordance with law. In this case the accused was not produced before any Court for almost a period of one year with effect from 29.7.1990 to 30.6.1991. His lawful remand subsequently in the year 1992 was considered to be legal and further considered to have had regularised the previous irregularities. 16. We would not subscribe to the aforesaid view taken by the learned Single Bench of Lahore High Court because the liberties of citizens require always to be protected and any irregularity committed regarding the liberty of a citizen should not be taken as a routine matter to be regularised u/S. 537 Cr.P.C. We observe that the Hon'ble Judge was also shocked to notice the contention of the learned counsel that the prisoner had been in judicial lock-up for the above given period without any remand order having been passed by any Competent Court. The District Magistrate was directed to hold an enquiry. We believe that when such a serious notice was taken bythe Court of such a serious irregularity, it ought not to have been regularised at the same time. 17. To say that one lawful remand at a much belated stage or at a subsequent stage operates to regularise all previous illegality, would amountto putting judicial implimator on a statutory violation committed by a Police Officer or by a Magistrate qua Sections 167 and 344 Cr.P.C. Regularisationby Court of such detention would tantamount to compromising the liberties of citizens at the altar of expediency. It would tantamount to giving premium to the submission of the challan with any quantum of delay enjoyed by the Law Enforcement Agencies and would ultimately be a total negtation of statutes contained in Sections 167 and 344 Cr.P.C. - 18. (1998 P.Cr.L.J. 1455) (Lahore) relied upon by the learned counsel for the complainant was a case where it was held that at the time of arguments the detention of the accused stood regularised and hence an order to be passed u/S. 491 Cr.P.C, was declined. It is to be noticed that the accused was not released because there was no bail application before the Court but in the light of our observations if the illegality was drastic, the Hon'ble Judge could have converted the petition U/S. 491 Cr.P.C. into a bail application. 19. (1998 NLR (Criminal 321)) Mst. Rambail Bibi Versus MirAlam was a case where the question involved was not with reference to Section 344 Cr.P.C. but was with reference to late submission of challan u/S. 173 Cr.P.C. Learned counsel for the complainant developed the argument that in the above case, it was directed that for late submission of challan the SHO concerned be taken to task. The learned counsel wanted us to make a similar order against those who had committed illegalities and irregularities in the present case because, according to him the benefit of someone's illegality should not be given to the accused. We totally disagree with such analogical deductions because taking action against a faultering official might be right at its place but it does not at all compensate the accused who had been kept in detention unlawfully. The benefit of such unlawful detentions must always go to the accused ur to the detenu who otherwise has a right to be dealt with in accordance with law. 20. Learned counsel for the petitioners made another very important submission which is taken up last though it was alleged in the foremost. The learned counsel claimed that the instant one was a case registered under the provisions of Suppression of Terroist Activities (SpecialCourts) Act, 1975 and that u/Ss. 4 & 5 of the Act, the one and the only Court which was competent to take cognizance was the Special Court under the Act and that no magistrate of the 1st Class had any jurisdiction either to act u/S. 167 Cr.P.C. or u/S. 344 Cr.P.C. and that no Magistrate could exercise any powers u/S. 190 (1) Cr.P.C. or U/S. 190(3) Cr.P.C. 21. It is to be appreciated with great concern that the instant case is one registered under a special law which gives exclusive jurisdiction to a Special Court for the trial of scheduled offences. The jurisdiction of normalCourts of law is totally ousted by Section 4 of the Act, regardless of what is contained in the Code of Criminal Procedure. We further adveit to Section 5 of the Act that defines the taking of cognizance. It provides that the officerin-charge of a Police Station shall complete the investigation and forward directly to the Special Court a report u/S. 173 of Cr.P.C. within 14 days inrespect of a case triable by such court. It is to be specifically noted that the provisions of submission of challan before a Magistrate of the 1st Class or before Ilaqa Magistrate of the 1st Class or before Ilaqa Magistrate is completely ousted, meaning thereby that for the purposes of scheduled offences, the Court of a Special Judge constituted under the Act, is a Court of original jurisdiction as a Magistrate would have been for a case registered under normal law and triable by such Magistrate. 22. In view of the provisions of Sections 4 and 5 of the Suppression of Terrorist Activities Act, we hold that the Court of a Special Judge under the Act has got the exclusive jurisdiction to deal with the matters involving scheduled offences and is a Court of original jurisdiction. All the remandsetc., therefore, must be obtained from the special Court and from no otherCourt at all. An example of other special courts can be given like that of a Special Judge Customs, Taxation and Anti-Smuggling which is Court of original jurisdiction and before whom the first information report is directly placed and before whom the complete challan is directly submitted and before whom an accused is produced within 24 hours of his arrest, directly. 23. In the light of what we have observed above, it is held that in the instant case the Court of competent jurisdiction is the Court of original jurisdiction which is exclusively the special Judge under Suppression of Terrorist Activities Act. We further hold that from the date of arrest on 12.9.1997 and on 8.9.1997 the petitioners were never produced before the Special Judge untill 24.2.1998. Their detention was, therefore, without lawful authority. We further hold that from 28.1.1998 to 24.2.1998 during their stay at D.I. Khan Jail, they were never produced before the Court which was violative of the very object of Section 344 Cr.P.C. and lastly, that no illegality in this behalf could be legalised or regularised by any subsequent order passed at a belated stage even by a Court of competent jurisdiction. 24. The detention of the petitioners being unlawful, in the circumstances, both are directed to be released on bail provided a bond in a sum of Rs. 80,000/- with two local, reliable and resourceful sureties is furnished to the satisfaction of the trial Court/Special Court Haripur. (B.T.) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 494 Present: MUMTAZ ALI MlRZA, J. TARIQ MEHMOOD alias JAWA and 2 others-Petitioners versus STATE and another-Respondents Writ Petition No. 1836 of 1998, decided on 7.9.1998. Constitution of Pakistan, 1973-- —- Art. 199-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 16-Constitutional petition-Quashing of F.I.R.-Factual allegations made in petition could not be gone into by High Court in exercise of its Constitutional jurisdiction and veracity of same could not be established without recording evidence-Accused in order to seek required relief were obliged to approach trial Court in first instance and they could not file Constitutional petition straightaway in High Court which was misconceived and legally incompetent-Petition was dismissed accordingly. [P. 495] A Syed Zahoor Ahmad Bokhari, Advocate for Petitioner. Date of hearing: 7.9.1998. order Through the instant petition made under Article 199 of the Consti­ tution of the Islamic Republic of Pakistan, 1973 read with Section 561-A Cr. P.C., the petitioners seek the quashment of FIR No. 55 dated 15.4.1997 registered at P.S. Jatli Tehsil Gujjar Khan District Rawalpindi under Section 10 read with Section 16 of Zina (Enforcement of Hudood) Ordinance, 1979. 2. The petition as made is founded on the ground that the case against the petitioners is ulteriorly motivated and actuated by bad faith and that the allegations forming the basis of the FIR are wholly false and fabricated and that no case whatever is made out against the petitioners from the contents of the FIR. A perusal of various contentions/assertions made in the petition would show that the same essentially are based upon factual allegations, the veracity whereof cannot be determined without recording evidence. It is plain that this Court cannot embark upon an exercise of this nature in its Constitutional jurisdiction. Viewed in this perspective, the petition as framed is incompetent and the relief sought by the petitioners cannot be granted. 3. The petitioners seek quashment of the FIR registered against them on the ground that the case as alleged in the FIR is not made out. Assuming for the sake of arguments that the assertions of the petitioners are correct, even then no interference is called for by this Court as the relief being asked for the petitioners ought in the first instance be sought from the learned trial Court. This view of the matter which I take, I am fortified by the enunciation of the law on the point by a reponderance of judicial pronouncements of various Courts. Reliance in this behalf can be placed on 1998 P.Cr. L.J 1423 (Abdul Jabbar vs. The State), 1998 P.Cr. LJ 1323 (Muhammad Ali vs. The State). 1990 P.Cr. L.J. 1209 (Zahid Hussain vs. The (State and 8 others), PLD 1986 Karachi 390 (F. Brumuel and 3 others vs. The State), 1985 SCMR 257 (Mian Munir Ahmed v. The State and 1979 SCMR 94 (Khushi Muhammad and 4 others Vs. The State). 4. It shall thus, be seen that the instant petition as framed and warded is wholly misconceived. The factual allegations made in the petition cannot be gone into and their veracity established one way or the other without recording evidence. In any event, in view of the settled position of the law, the reliefs sought for by the petitioners are such as oblige the petitioners to first approach the learned trial Court. They cannot file this petition straight-away in the High Court. The petitioners were themselves mindful of the legal position as to this and have for that very reason averred in para 11 of the petition that the reason why they could not approach the learned trial Court was that the said Court was closed on account of summer vacation. The learned trial Court having re-opened after summer vacation, the plea as raised in para 11 aforementioned of the petition is no longer open to them. This petition is accordingly dismissed as being wholly misconceived and legally incompetent before this Court. (K.K.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 495 (DB) Present: muhammad azam khan (second judge's name is not decipherable) JJ. FAZAL KARIM-Petitioner versus STATE and another-Respondents Criminal Bail Appeal No. 169 of 1998, decided on 26.11.1999. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Prayer for-Offence under Section 324/34 PPC-Further inquiry-Perusal of record makes it crystal clear that two inquires were held in matter where under petitioner and his co-accused were exonerated of charge and placed in Column No. 2 of challan-Three persons have been charged for indiscriminate firing at complainant and his brother with which only coplainant has sustained injuries, who was also a proclaimed offender at relevant time-Besides, co-accused assigned identical role, had been enlarged on bail and rule of consistency also demands that petitioner be treated accordingly-All aforesaid facts and circumstances of case when taken together brings case within ambit of further inquiry' entitling petitioner to concession of bail-Bail granted. [Pp. 496 & 497] A Mr. Dost Muhammad Khan, Advocate for Petitioner. S. Saeed Hassan Sherazi, AAG. and Muhammad Iqbal Khan Kundi, Advocate for Complainant. Date of hearing : 26.1.1999. JUDEMENT Having refused the concession of bail by the learned Special Judge Lakki, vide his order dated 31.8.1998, passed in case F.I.R. No. 61 dated 22.1.1998 of Police Station Lakki, registered under Section 324/34 PPC, the petitioner Fazal Karim has now come upto this Court through the application in hand for the same relief. 2. The prosecution's case, in brief is, that on the eventful day at 2230 hours, Hameedullah complainant had lodged a report to the effect thaton that day at 6.45 P.M. has after "Asar Prayers', he alongwith his Brothersnamed Muhammad Ayub and Hidayatullah were proceeding towards Police Station Lakki for surrendering himself being charged in a murder case. They were awaiting for a datsun at Adda Nawar Khel when meanwhile Abdul Rahim and Fazal Karim (petitioner herein) together with Abdul Hameed, all duly armed with Kalashnikovs, emerged at the scene and under the command of Abdur Rahim, the petitioner Fazal Karim and his brother Abdur Rahim opened fire at them with which the complainant was hit, while his brothers Muhammad Ayub and Hidayatullah escaped unhurt. Motive for the offence was given to be a land-dispute. 3. Perusal of the record makes it crystal clear that two inquirieswere held in the matter where under the petitioner and his coaccused/brother Abdul Rahim were exonerated of the charge and placed in Column No. 2 of the challan. Three persons have been charged for indiscriminate firing at the complainant and his brother with which only the complainant has sustained injuries, who was also a proclaimed offender at the relevant time. Besides, co-accused Adbur Rahim assigned identical role, had been enlarged on bail and the rule of consistency also demands that the petitioner be treated accordingly. 4. All the aforesaid facts and circumstances of the case when taken together brings the case within the ambit of further inquiry' entitling the petitioner to the concession of bail. Therefore, this application is accepted and the petitioner is admitted to bail in the sum of Rs. One lac with two sureties each in the like amount to the satisfaction of the trial Court. (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 497 (DB) Present: KHALIL-UR-REHMAN RAMDAY AND zafar pasha chaudhry, JJ. AMANAT ALI-Appellant versus STATE-Respondent Criminal Appeal No. 517 of 1993, M.R. No. 260 of 1993, heard on 24.9.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-Murder-Offence of-Conviction for-Appeal against-Statements of witnesses are supported by medical evidence and also found corroboration from recovery of blood stained hatchet on pointation of appellant—Their version is also supported by admission of appellant himself during statements U/S. 342 Cr.P.C.-Had deceased been armed with revolver, (as per plea of appellant) he would not have permitted appellant to inflict injuries one after other on his head, hence, defence version cannot be accepted being unplausible and unreasonable-No defence of grave and sudden provocation is available to appellant-Prosecution has proved its case beyond doubt-Appeal dismissed but sentence of death converted into life imprisonment- [Pp. 500, 501, 502] A to D Mr. Muhammad Hanif Khatana, Advocate for Appellant. Mr. Khalid Naveed Dar, Advocate for Respondent. Date of hearing: 24.9.1998. judgment Zafar Pasha Chaudhry, J.--Amanat Ali appellant has filed Criminal Appeal No. 517/1993 being aggrieved of the judgment dated 4.7.1993 passed by Mr. Saif ur Rehman Khan, Additional Sessions Judge, Faisalabad, campt at Samundri, whereby he was convicted U/S. 302 PPC for committing the Qatl-e-Amnd of Muhammad Sultan and sentenced to death as Ta'zir, and also to pay a compensation of Rs. 10.000/- to the heirs of the deceased. 2. The prosecution case in brief is that on 16.9.1991 at 'Zohar Vaila' ppellant Amanat All visited the house of the complainant Muhammad hufran PW-1 and asked Muhammad Sultan to accompany him to their aira situated in Square No. 56 Killa No. 13. The complainant also ccompanied him and after reaching the Daira, they were sitting near its gate on cots. Appellant Amanat Ali took a hatchet from inside the Daira and uddenly inflicted a hatchet blow on Muhammad Sultan on the left side of his head. He repeated the blow which also landed at the left side of the head. On alarm, Muhammad Yousaf and Muhammad Arshad who were passing by he Daira were attracted to the site. Amanat Ali fled away alongwith his atchet. Muhammad Sultan was removed to hospital but he scummed to the njuries over there. 3. The motive was stated to be that one Alia Jhaidu was residing at he Daira of Amanat Ali appellant. Amanat Ali had illicit relations with daughters of Alia Jhaidu. Amanat Ali suspected that Muhammad Sultan visited the Daira in order to accomplish his illicit liaison with the daughter of lia Jhaidu. On the statement of Ghufran, FIR Ex. PA was recorded at 7.00 PM with P.S. Samundri located at a distance of ten miles from the place of ccurrence. Farooq Ahmed Inspector PW-8 identified that EX.PA had been ecorded by Ghazanfar Abbas SI. He conducted the investigation, got ecovered hatchet P-l at the instance of the appellant. He also performed ther formalities necessary to complete the investigation. 4. The prosecution in order to prove its case examined eight itnesses. Dr. Hafeez Ullah PW-7 initially examined Muhammad Sultan and repared the medical legal report and found the following two injuries on his erson:- 1. An incised wound 8 cm x 1/2 cm x going deep into brain avity. Brain membrain and brain matter were coming out. ut was through and through. This wound was on left side f the head. X-Ray was advised. 2. An incised wound 3 cm x 1.2 cm x going deep into brain avity at head on left side. It was 2 cm posterior from njury No. 1. Occipital bone was also cut through and hrough. Patient was pulseless. There was laboured reathing. Patient was unconscious. The condition was very very serious Unfortunately, the victum expired at 6.45 PM on the same day i.e. 16.9.1991 and he conducted the post-mortem examination. The same injuries were again noted in the post-mortem examination. The injuries were found to be anti-mortem and sufficient to cause death in the ordinary course of nature. 5. PW-1 Ghufran complainant and Muhammad Rashid PW-2 urnished the eye-witness account. Both the witnesses made consistent tatements and reiterated the statement made by PW-1 in the FIR EX.PA. W-2 Muhammad Rashid made statement similar and identical to that of W-1. PW-1 also attested the recovery of blood stained hatchet P-l which as taken into possession vide memo EX.PB. on 22.9.1991 at the instance of he appellant from the corner room of his Daira. The remaining witnesses re of formal nature and all of them supported the prosecution case and eposed about their respective functions performed by them during the nvestigation. The prosecution also tendered in evidence the report of Chemical Examiner EX.PL and that of Serologist EX.PM and with that losed the case for the prosecution. 6. After the close of the prosecution evidence, the appellant was xamined u/S. 342 Cr.P.C. In answer to Question No. 7, he made the following reply:- "The case is false. The PWs had deposed falsely. Actual facts are that on the day of occurrence at about noon time, Sultan deceased came to the Derah of Haji Wali Muhammad and that I used to live with Wali Muhammad, who was my maternal grand-father, temporarily. Actually I used to reside at Chak No. 476/GB. Alia Jhaidu used to reside at the Derah of Haji Wali Muhammad, who was residing there alongwith his family members including his grown up daughters. Sultan deceased who had developed illicit relations with Mst. Bakht Bibi daughter of said Alia and started dragging her in order to abduct her and commit zina-bil-jabr with her. On her cry, I came to the Deorhi of the said Derah from the cattle shed where I was serving fodder to the cattle and I intervened to save the honour of Mst. Bakht Bibi, whereupon, Sultan Ahmed deceased aimed his revolver at me, I picked-up a small hatchet from the Deorhi which was already lying there and injuried the deceased in order to save myself and to save the honour of Mst. Bakht Bibi in exercise of right of my self-defence and to save the honour of said lady. Mst. Bakht Bibi was to be married after few days after the occurrence. Hurmat Ali Chokidar and Alia Jhaidu also reached the place of occurrence after the occurrence was over. I appeared before the police on the day of occurrence and produced the small hatchet before the I.O. Ghazanfar Abbas and made the statement which I am making today but the said Ghazanfar Abbas had connived with the complainant and he falsely got me challaned." On conclusion of the trial, the learned trial Court, convicted the ppellant and passed the sentence as noted above. The learned counsel appearing on behalf of the appellant argued hat the prosecution has not been able to establish the guilt of the appellant; that the prosecution version is not plausible; that the PW-1 Muhammad Ghufran could not have accompanied the deceased at the instance of the appellant; that Muhammad Rashid PW-2 is a chance witness being a passer­ by. When confronted with the statement of the appellant, that he has admitted the occurrence and has come forward with the defence plea, therefore, killing of the deceased by the appellant is admitted, although he has urged his own explanation. The learned counsel, therefore, took-up the plea that the case is of two versions and if both the versions are placed in juxta position, the defence version has taken-up by the appellant is more plausible as compared with the prosecution version. 9. The learned counsel appearing for the prosecution has however, controverted the submissions and argued that the prosecution has produced truthful and reliable witnesses and neither of the eye-witnesses has any nmity against the appellant and had no motive to falsely implicate him. here statements are supported by the medical evidence and with the fact of recovery of blood stained hatchet at the instance of the appellant. Moreover, the appellant himself admits the killing of the deceased, therefore, the argument that the prosecution has not proved its case has no substance. Further submits that the defence version on the face of it is not acceptable and has been rightly discarded by the learned trial Court. 10. After going through the prosecution evidence, we feel that the rosecution witnesses have made consistent statements and the fact that ultan deceased was done to death by Amanat All appellant has been proved eyond doubt. The statements of witnesses are supported by the medical evidence and also found corroboration from the recovery of blood tained hatchet on the pointation of the appellant. Their version is also supported by he admission of the appellant himself uring the statement U/S. 342 Cr.P.C. to the extent that Muhammad ultan deceased was done to death by him. However, th iew to consider and appreciate the defence version we have xamined in detail the version put forward by the appellant. 11. The perusal of his statement reveals that he has come forward ith two defence pleas. Firstly, that Muhammad Sultan deceased came to 'the Daira of Haji Wali Muhammad where the appellant was also putting up ing is grand son. Alia Jhaidu also resided in the Daira alongwith his daughters. Muhammad Sultan developed illicit elations ith Mst. Bakht Bibi daughter of Alia Jhaidu and she was being dragged in order to abduct her and commit zina-bil-abr, the appellant intervened with a view to rescue her. The second part of the version is that when the appellant tervened Muhammad Sultan deceased took out his revolver and aimed at him, therefore, the appellant picked up mall hatchet lying in Deorhi and inflicted injuries on the deceased to safe his life and also the honour of Mst. Bakht Bibi. 12. As regards the question that he appellant caused injury to save his life as the deceased intended to fire at him with his revolver, is not acceptable. If uhammad ultan deceased was armed with revolver and intended to fire at the appellant then it is inconceivable that he would have permitted he appellant to pick-up the hatchet and thereafter to cause injury on his head. The version is rendered still more unacceptable hen fter inflicting one injury the appellant tried to repeat the injury on his head but the deceased did not fire any shot at him. Had the eceased been armed withthe revolver, he would not have permitted the appellant to inflict the injuries one after the other on his ead. This part of the defence version cannot be accepted being unplausible and unreasonable. 13. The second part of the ersion that Amanat Ali appellant committed the murder in order save the honour of Mst. Bakht Bibi who wasbeing forcibly ragged by the deceased in order to commit Zina-bil-jabr, he intervened and to prevent the deceased caused injuries to him, is qually unconvincing and self-contradictory. It is inconsistent for the reason that on one hand it is alleged by the appellant hat deceased developed illicit relations with Mst. Bakht Bibi and at the same time she was being dragged as if she was not a onsenting party. If Mst. Bakht Bibi had an illicit liaison with the deceased she would have willingly accompanied him and there as not need of dragging her forcibly. This version is not acceptable because at the alleged time and place it is inconceivable that ny ne would have made an attempt to forcibly drag a girl in order to commit Zina-bil-jabr. Daira of Haji Wali Muhammad is in an nhabited place where inmates of the family ncluding male and female resided. Alia Jhaidu had also his family. During the month of pril at Zohar Vaila a number of people go round about in the streets, if the appellant at all had to abduct Mst. Bakht Bibi or to lope ith her, the same does not appear to be possible at that time and place. Thelearned counsel however, argued with vehemence that he appellant has taken up this version before the police and PW-8 during his crossexamination admitted that the ersion as been taken during the investigation as well. Further submits that it is admitted by the Investigating Officer that deceased sed to visit the Daira of Alia Jhaidu frequently andhad young daughters with whom deceased had developed illicit relations. The eceased did not stop even on the intervention of Alia Jhaidu. He, therefore, argues that, the appellant therefore, acted out of rovocation and as such cannot be held guilty of offence U/S. 302(a) or 302(B) PPG. Being a case of grave and sudden rovocation e is entitled to get benefit of the same. 14. As already observed, we are of the view that the appellant may have taken this efence before the Investigating Officer and it seems to be true that the deceased might have been making indecent accesses owards the daughters of Alia Jhaidu, a worker or servant of his grand father Haji Wali Muhammad but it is not acceptable that a irl who statedly has illicitrelations with the deceased would have been forcibly dragged and as such provided an of occasion for he ppellant to intervene or to come to rescue her. No defence of grave and sudden provocation is as such available to the appellant, owever, at the best these facts and circumstances may provide mitigating or extenuating circumstance in favour of the appellant, s a result of which lesser penalty may be imposed. It has also come on record through the evidence of prosecution that the ppellant had also been taking steps to develop illicit relations with the girls. 15. The upshot of the above discussion is that although the prosecution has proved its case beyond doubt and it is admitted fact that the deceased was done to death by the appellant, but he is not entitled to the benefit of grave and sudden provocation or self-defence. The facts and circumstances that the deceased was suspected to develop illicit relations Q thus furnish a valid ground for award of lesser penalty, we accordingly, hold the same. As a result thereof, the appeal is dismissed. However, the sentence of death is converted to that of imprisonment for life U/S. 302(b) PPC. The benefit of Section 382-B Cr.P.C. is also extended. The order relating to award of compensation of Rs. 10,000/- and in default thereof to suffer six months HI is maintained. (MYFK) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Quetta) 502 (DB) Present: AMIR-UL-MULK MENGAL, C. J., Mm MUHAMMAD NAWAZ MARRI, J. ABDUL QUDOOS-Appellant versus STATE-Respondent Criminal Appeal No. 372 of 1998, dismissed on 15.7.1998. ^ , Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)-- . ...-S. 5-Pakistan Penal Code (XLV of 1860), Ss. 302/324/109/34-Murder- Offence of~Conviction for-Investigation conducted by Tehsildar instead of police-Challenge to-Whether cognizance by Special Court illegally taken-Question of-Sub-section (2) of Section 5 of Act clearly lays down that any default on part of officer-in-charge of Police Station, Investigating Officer or any other person required by law to perform any function in connection with investigation which results in or has effect of delaying investigation or submission of report under sub-section (1), shall be deemed to be wilful disobedience of order of Special Court and dealt witfifunder law accordingly—In Province of Balochistan there are two fields known as 'A' Area and 'B' Area for purpose of investigation of case--In 'A' Area, police conducts investigation, whereas in 'B' Area, Tehisldar, Naib Tehsildar is person required under law to perform functions in connection with investigation--In this regard, necessary amendment has already been made in relevant provision of Code of Criminal Procedure Code by Government of Balochistan vide Notification No. SO(Judl) 4(5)/94-456-93, dated 9th January, 1997-Held: Tehsildar is very much incharge of Police Station/Leives Station for purpose of Section 5 of Act. [Pp. 508, 509] A, B & C Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)-- —S. 7-Pakistan Penal Code (XLV of 1860) S. 302/324/109/34-Murder» ffence of-Conviction for-Challenge to-Ocular testimony is strong and onfidence inspiring-It is otherwise natural and statements of two njured persons fully corroborate each other about manner in which ncident had taken place as well as about persons who were nvolved-Their testimony is further corroborated by P.W-3~Medical vidence fully supports ocular version-Thus it is reliable piece of corroboration-Beisdes, three empties of kalashnikov have been recovered ccording to Tehsildar from place of incident which further substantiates prosecution version-Held: Accused/appellant has been rightly convicted y trial Court-Appeal dismissed. [Pp. 511 & 514] D, E & F Mr. Basharatullah, Advocate and Syed Azhar Zahoor, for Appellant. Mr. Malik Sikandar Khan, Advocate for State. Mr. Ehsanul Haq, Advocate for Complainant. Date of hearing: 29.4.1998 judgment Amir-ul-Mulk Mengal, C.J.--The appellant alongwith co-accused persons including absconders was tried under Section 302/324/109/34 PPC by learned Special Judge Suppression of Terrorist Activities (Special Courts) Act, 1975. Learned trial Court found the appellant guilty, thus convicted and sentenced him to death sentence under Section 302(b() PPC and awarded R.I. for 7 years under Section 324 PPC. He was also find Rs. 50,000/- in default whereof to further undergo R.I. for two years by means of judgment dated 30.12.1997. Besides the appellant, the other accused persons were awarded different sentences but we are only concerned with the appeal filed by the appellant elevant facts for filing of the appeal are that one Haji Sheikh uhammad lodged a complaint on 16.5.1994 with the Assistant Commissioner Chaman. It was alleged that few days rior o the main incident an altercation took-place between his son Abdul Zahir and one accused Abdul Razzaq on money matter hich, owever, was subsided by interference of Noteables. he further alleged that on 9.5.1994 while his son alongwith some other ersons was coming towards Chaman at Pak Afghan Border at about 11.30 a.m. the present appellant alongwith co-accused rsons had way-laid the road. They started firing at the deceased through Kalashnikoves as a result of which Abdul Zahir and Muhammad Ewaz received bullet injuries alongwith two other persons. The injured persons were given first treatment at Chaman and then shifted to Quetta Civil Hospital. Abdul Zahir and Muhammad Ewaz succumbed to the injuries on the spot Learned Assistant Commissioner Chaman took cognizance on the information received from complainant and directed Tehsildar for investigation who arrested the appellant and two others and declared the remaining accused as proclaimed offenders. After formal investigation challan was submitted to the learned Special Court, Suppression of Terrorist Activities, Pishin The trial Court frame charge and the accused persons pleaded NOT GUILT. The prosecution in order to supplement the accusations examined the following witnesses: P.W. 1 Naimatullah - injured eye-witness. P.W. 2 Jan Muhammad - injured eye-witness. P.W. 3 Barat P.W. 4 Dr. Akhtar Muhammad P.W. 5 Haji Sheikh Muhammad - complainant P.W. 6 Ghousuddin - recovery witness P.W. 7 Matiullah - Tehsildar/I Thereafter the accused was examined under Section 342 Cr.P.C. owever, e did not lead any evidence in defence. After hearing arguments, the learned Judge found the appellant guilty and assed the sentence as mentioned in para 1 of this judgment.Heard Mr. Basharatullah, Advocate for appellant earned dvocate General for State and Mr. Ehsanul Haque Khan for complainant. Before proceeding further would like to ive brief background of the incident as stated by the prosecution and to assess the evidence reproduced by rosecution. The case of the prosecution is that on 9.5.1994 at about 11.30 a.m. accused Abdul Qadoos (convict) lohgwith absconding accused Khano Maman, Abdul Razzaq and Qadir way-laid the road and on seeing deceased arty started firing upon them with kalashnikov when they were near Pak Afghan Border proceeding towards haman n a Land Cruiser. As a result of firing 4 persons received injuries namely Abdul Zahir, Ewiz, Naimatullah and Jan uhammad. Zahir and Ewiz were killed and Jan Muhammad and Naimatullah received grievous injuries. In support of his prosecution version, P.W. 1 Naimatullah (injured) who deposed that on 9.5.1994 at about a.m. he alongwith Zahir, Ewaz, Jan Muhammad were going towards Pak Afghan Border in a Land Cruiser. They saw Abdul Qudoos, Khano, Razak, Moman and Qadir, There was altercation between them but they were separated peacefully. At about 11.00 or 11.30 a.m. while he alongwith Zahir, Ewaz, Jan Muhammad were coming back to Chaman in the same Land Cruiser, and when they reached in Nala on the back side of Militia Killa, they saw three motor-cycles and Qudoos, Razak, Khano, Ghulam Qadir and Manan were standing, who signalled them to stop. The witness saw Qudoos, Khano and Razak armed with kalashnikoves. Zahir and Ewaz got down from the vehicle first and the accused started firing upon them. They were hit and then this P.W. Naimatullah and Jan Muhammad got down and received injuries. The witness remained in the hospital for 12/13 days. P.W. 2 Jan Muhammad deposed in the trial Court that on 9.5.1994 he alongwith Niamat, Zahir and Ewaz went towards border in a land cruiser at 8.30 a.m. At border Zahir had some money dispute with Razzak. There was some altercation between Zahir and Razzak but the people separated them. At about 11 or 11.15 he alongwith Ewaz, Zahir and Niamat proceeded towards Chaman. When they reached in the Nala near Militia Killa there were five persons standing with three motor-cycles. They were Razzak, Manan, Qudoos, Khano and Ghulam Qadir. Razzak, Qudoos and Khano were armed with kalashnikoves. Razzak signalled to stop and when they stopped the accused persons started firing. First Zahir and Awaz were hit and then the witness was also injured and became unconscious. Zahir and Ewaz died and this witness and P.W. Niamat got injuries. He came to senses after 3 days of incident in the Civil Hospital at Quetta. He remained in the hospital for 14/15 days. He identified Qudoos present in the Court P.W. 3 is Barat Khan. According to him on 9.5.1994 at about 11.30 a.m. he was coming from Pak Afghan Border towards Chaman on a motor­ cycle. A land Cruiser crossed him in the way in which about 5 persons were sitting. This vehicle was stopped by 5 persons standing at the road. Three of them had kalashnikoves. No sooner the said four persons came out of the vehicle, they were fired at by the three persons having kalashnikoves. The burst of kalashnikoves continued for a while when he reached close to the place of occurrence. All the five persons ran away from the place of occurrence on three motor-bikes towards Killi Muhammad Umar Khan. When the witness reached the place of occurrence two persons namely Zahir and Ewaz had already died due to firing whereas Jan Muhammad and Niamatullah were lying injured. The persons who were killed and injured were previously known to him. He also identified the accused persons as Abdul Razzak, Abdul Qudoos, Manan Khan and Abdul Qadir. According to him Abdul Qudoos had a kalashnikov. Similarly Abdul Razzak and Khano had kalashnikoves in their hands P.W 1 is Doctor Akhtar Muhammad who examined the dead bodies of Ewa/, and Zahir and issued the ertificates showing the injuries as under: - MUHAMMAD EWAZ Entrance wound of gun shot on left chest exit ound n right chest (Posteriorly). Cause of earth due to excessive haemorrhage Weapon was used gun shot. ZAHIR JAN Entrance wound of gun shot on anterior abdomen. Exit wound on back side. Entrance wound of gun shot on ack side of right thigh. Exit wound of gun shot on anterior side of right thigh. Cause of death excessive aemorrhage. he weapon used gun shot." He also examined the injured persons namely Niamat and Jan Muhammad and issued edical Certificates showing following injuries: NAIMATULLAH. Entrance wound of gun shot on anterior side of left thigh. Exit wound of gunshot on posterior side of left thigh. Entrance wound of gunshot on pelvic region. Exit wound on posterior side of pelvic region. JAN MUHAMMAD. Entrance wound of gun shot on left lumber region. Exit wound on right lumber region. The weapon used was gunshot P.W. 5 Htyi Sheikh Muhammad is the complainant who deposedthat there was monetary transaction between Razzaq, Manan, Khano, Qudoos and Qadir alongwith his sons namely Zahir, Muhammad Ewaz, Jan and Niamatullah. Muhammad Ewaz was his nephew. When he received information about the incident at his home he rushed to hospital. However, before going to hospital he informed Assistant Commissioner Chaman. The injured Jan Muhammad was removed to Quetta while Naimatullah remained admitted in Civil Hospital Chaman. He submitted complaint to Assistant Commissioner after 4/5 days of the occurrence which is Ex. P/5-A which was identified by the witness in the Court P.W. 6 is housuddin who is Hawaldar Levies, Headquarters Chaman. He stated that he was posted at Levies eadquarters Chaman on 9.5.1994. He alongwith officials and Tehsildar reached the place of occurrence. In his presence two small rocks of blood stained earth were taken into possession. Seizure memo was prepared at office which is Ex.P/6- A. He stated that except this nothing was recovered and taken into possession. This witness was declared hostile and was cross examined by Assistant District Attorney P.W. 7 Matiullah was Tehsildar Chaman at the relevant time. He was directed by Assistant Commissioner to proceed on the spot where two persons had been murdered. He alongwith levies men reached the spot and after site inspection prepared a site-plan Ex. P/7-A. He found three empties of kalashnikov which were taken into possession through seizure memo. He also identified the same as Article-2. He obtained blood stained earth and conducted investigation. He arrested Khuda-i-Rahim and Abdul Qudoos from their houses. About absconding accused persons he took action under Section 87 Cr.P.C. He went to Civil Hospital Chaman and conducted remaining inquiries.In his statement under Section 342 Cr.P.C. the charges were denied by the accused person Learned trial Court passed death sentence against present appellant Abdul Qudoos as well as absconders namely Abdul Razzaq and Khanoo. However, he convicted and sentenced Manan and Qadir to suffer life imprisonment and acquitted the remaining accused. Mr. Basharatullah firstly contended that the proceedings were initiated on the basis of complaint submitted to Assistant Commissioner Chaman who marked it to Tehsildar for inquiry. The first legal objection was that it was not lawful enquiiy and on the basis of such enquiry, cognizance could not have been taken by Special Judge, Suppression of Terrorist Activities, Pishin under the Suppression of Terroist Activities (Special Courts) Act, 1975 (hereinafter referred to as the "Act"). The second limb of the argument was that Tehsildar being a Magistrate II Class can conduct inquiry and not an investigation, therefore, cognizance was illegally taken on such enquiry, and trial Court could not proceed with the matter. In this regard our attention was invited to Section 5 of the Act which reads as under "5. Taking of Cognizance.~(l) The officer in charge of a Police Station shall complete the investigation and forward directly to the Special Court a report under Section 173 of the Code within fourteen days in respect of a case triable by such Court: Provided that, the Special Court may extend the time within which such reports is to be forwarded in a case where good reasons are shown for not doing so within the time specified in this sub-section (2) Any default on the part of an officer in charge of a Police Station, an Investigating Officer or any other erson required by law to perform any functions in connection with the investigation, which results in or has the effect of, delaying the investigation or the submission of the report under sub-section (1), shall be deemed to be a wilful disobedience of the order of the Special Court and dealt withunder the law accordingly. (3) The Special Court may directly ake cognizance take cognizance of a case triable by such Court without the case being sent to it under Section 190 of the Code." We do not find any force in the contention so raised by the appellant's counsel. The reason being that sub-section (2) of ection 5 clearly lays down that any default on the part of an officer in charge of Police Station, an Investigating Officer or any ther person required by law to perform any functions in connection with'the investigation (underlining is ours) which results in, or as the effect of delaying the investigation or the submission of report under sub-section (1) shall be deemed to be a wilful isobedience of the order of the Special Court and dealt with under the law accordingly. The legislature, therefore, was conscious f the fact that it is not only the incharge of a Police Station but any other person required by law to perform any functions in onnection with the investigation who is held responsible for submitting report/challan. In the instant case it is worth to mention ere hat in the Province of Balochistan there are two fields known as "A" area and B Area for the purposes of investigation of a case. n areas the police conducts investigation, whereas in B Area the Tehsildar, Naib Tehsildar and Levies conduct investigation, herefore, Thesildar is the person required under law to perform functions in connection with the investigation. In this regard ecessary amendment has already been made in the relevant provision of Code of Criminal Procedure Code by the Government of alochistan vide Notification No. SO (Judl) 4(5)/94/456-93 dated 9th January, 1997 and the relevant amendment for the sake of onvenience is reproduced hereunder"In exercise of the powers conferred by clause(s) of sub­ section (1) of Section 4 of the Code f Criminal Procedure, 1898 (Act V of 1898), the Government of Balochistan is pleased to declare all Levies Thanas eadquarters t ehsil/Sub-Tehsil to be Police Stations for their respective areas of jurisdiction and for the purposes of registration and investigation f cases. The Officer incharge of the said Police Station will exercise all powers vested in the officer incharge of a Police Station s rovided in the Cr.P.C. and under any other law for the time being in force The Tehsildar/Naib Tehsildar or any other person so ppointed will act as the officer incharge of such Police Stations within the limits of their territorial jurisdictions. They will continue o perform such other duties as may be assigned to them under any other law: provided that such officers will not have uthority/jurisdiction to sit in trial of cases which they have inquired into, or investigated." Therefore, Tehsildar is very much ncharge of Police Station/Levies Station for the purposes of Section 5 of the Act, hence the argument that Tehsildar can conduct nly inquiry and not investigation is devoid of any force.Besides sub-section (3) of Section 1 of the Act clearly lays down that the pecial Court may directly take cognizance of a case triable by such Court without the case being sent to it under Section 190 of the Code. This means that under the Act the cognizance of an offence can be taken directly by the Special Court on any material which comes to its knowledge. It is not necessary that such case should be sent under Section 190 of the Code. This appears to be a deviation from normal course as the legislature empowered Special Court under the Act to take directly cognizance provided material exists that a schedule offence has been committed. Mr. Basharatullah then challenged the jurisdiction of the trial Court by saying that in fact no schedule offence has been committed, therefore, trial is without jurisdiction. According to Mr. Basharatullah neither nay kalashnikov has been recovered nor empties, therefore, the offence is not a scheduled offence, as such the entire trial is without jurisdiction. It is an admitted position that in the schedule Section 302 is committed with kalashnikov is a scheduled offence. All the eye-witnesses have stated that the accused persons fired at the deceased with kalashnikoves. The Tehsildar who was Investigating Officer categorically stated he found 3 empties of kalashnikov which were taken into possession through seizure memo Ex. P/7-B. The defence has not challenged that deceased persons had not been killed by kalashnikoves. No question was asked from the Investigating Officer or from any of the three eye-witnesses during the trial. However, a vague question was asked from Investigating Officer that empties are available in Chaman. Thus it is not at all the case of the defence that the deceased persons had not been killed with firing of kalashnikoves. On the other hand ample evidence has been brought on record that two deceased persons were killed with firing of burst of kalashnikove. There is ocular version of the same including two persons who got several injuries as well as statement of Investigating Officer that three empties of kalashnikove were recovered from the place of occurrence. The Hon'ble Supreme Court has already held that it is not necessary that the kalashnikove should be recovered. Reliance if any may be placed on 1994 S.C.M.R. 717. Another point raised by Mr. Basharatullah was that complaint was lodged after 2/3 days of the incident. The complaint is Ex. P/5-A. In fact in his statement Haji Sheikh Muhammad the complainant clearly mentioned that when he was informed in his house that his sons had been killed he immediately rushed to the hospital but before going to hospital he informed the Assistant Commissioner Chaman. However, formal complaint has been filed after Fatehia ceremonies as is prevalent in the areas. After receiving such verbal information Assistant Commissioner directed Tehsildar to proceed on the spot and start investigation. We do not find any illegality nor any mala fide. As for as merits of the case are concerned according to Mr. Basharatullah statement f P.W. Barat was recorded on 26.5.1994 and statements of remaining injured persons on 30.5.1994, thus such statements are un-eliable.As for as injured are concerned since they were seriously wounded, hence they were shifted to Quetta and their tatements were recorded after when they recovered from the injuries, no question has been asked by the defence from the nvestigating Officer about the reasons why statement of P.W. Barat was recorded after such a delay. However, in cross-xamination he stated that statement of Barat was recorded on 26.5.1994. It may be mentioned here that investigation in B area is onducted slightly in a different manner as initially security arrangements and preventive measures are taken so that further urders are avoided. Even the statement of injured persons had been recorded on 30.5.1994 after they were recovered. It does ot an that they were not injured nor such fact was ever challenged. Yet another objection to the statements of eye-witnesses was hat they were near relatives. But this argument is also equally devoid of force for the reason that complainant party and accused arty are inter se related. P.W. 3 stated that it is correct to suggest that complainant party is his relative, voluntarily stated, that ccused Abdul Qudoos is also his cousin. So P.W. 3 Barat deposed against, his own cousin Abdul Qudoos. There was no reason or him to have implicated his own cousin if he had not witnessed the occurrence. As for as the admissibility of statements of .W. arat as well as injured is concerned we have come to the conclusion that the same is confidence inspiring and rightly relied upon y the trial Court.Another objection raised was that name of Barat was not mentioned in the complaint, therefore, his statement be iscarded. In fact complainant is the father of deceased Zahir. Admittedly he was not present on the scene of occurrence, hence e did not know about the witnesses. How could he mention the name of Barat when he was unaware about the same. All the hree eye witnesses stood the test of cross-examination.As for as motive is concerned, according to Mr. Basharatullah there are ontradictions in the statements of two witnesses namely statements of two injured P.W. Niamatullah and P.W. Jan Muhammad ith his father the complainant. The father stated that monetary transaction and dispute was three year old whereas witnesses tated that there was scuffle over the same , on the day of incident. We do not find any contradiction in these two statements for the simple reason that it is possible that the oney dispute was an old one but on the day of incident Zahir demanded money from the accused persons when he saw them tanding. There was suffcle between Zahir and accused when people intervened. However, when the deceased party was coming back the accused persons way-laid them and started indiscriminate firing, killing two persons and injuring Niamatullah and Jan Muhammad. Thus there is no contradiction in so for as motive is concerned The ocular testimony in this case is strong and confidence inspiring. It is otherwise natural and the statements of two injured persons fully corroborate each other about the manner in which the incident had taken place as well as about the accused persons who were involved. Their testimony is further corroborated by P.W. 3 Barat Khan. The medical evidence fully supports the ocular version. Thus it is a reliable piece of corroboration. Besides three empties of kalashnikov have been recovered according to Tehsildar from place of incident which further substantiates the prosecution version. We are, therefore, inclined to hold that the accused/appellant has been rightly convicted by the trial Court. We did not find any plausible reason whatsoever to interfere in the said judgment After having hold that appellant has been rightly convicted by the trial Court the next pertinent question is about quantum of sentence. According to Mr. Basharatullah it is not known as to whose bullet hit the deceased persons, therefore, lesser punishment for life imprisonment in the circumstances would meet the ends of justice. In order to support this contention Mr. Basharatullah relied on the case of Mukhtar Hussain and another vs. The State reported in 1985 S.C.M.R. 479. The relevant observations are reproduced as urider "However, we find substance in the contention of the learned counsel that in the circumstances of this case, inasmuch as there is no direct evidence of the commission of the crime, it cannot with any amount of certainty be said as to 'who fired the fatal shot at the deceased. As we have taken the extra judicial confession out of consideration, the situation relied upon by the learned counsel does appear to be tenable. And the sentence awarded to appellant Mukhtar Hussairi, in our opinion, requires to be re-examined. We find that the gun with which the deceased was shot was produced by acquitted accused Mushtaq Hussain and the empty secured along with the deceased body was found matching with it. As already stated MnGiitaq Hussain who was about twenty years of age at the time of occurrence. Although Mushtaq Hussain has been acquitted as there was no sufficient evidence to convict him, possibility cannot be ruled out that appellant Mukhtar Hussain was acting under the influence of his father. Having regard to these circumstances we think hat the extreme penalty f eath is not called for in this case and the said appellant is entitled to the benefit of the lesser penalty provided by aw." Before commenting upon whether such observations would be relevant in the instant case we are inclined to eproduce the observations made in PLJ 1978 S.C. 200 which has been relied upon by Mr. Ehsanul Haq learned ounsel for the complainant for confirming the death sentence. The relevant paras of said, judgment are eproduced as under:- "5. The Legislature has conferred very wide discretion on the Courts in the matter of entences under the Penal Code, but as the discretion has to be exercised judicially, the Court would be entitled to ake into account the law and order situation, if the objects of punishment or one of the objects of punishment be o eter the commission of further crimes. Now, I do not see how there can be any doubt about this question. almorid bserves in his book on Jurisprudence (Tenth Edition) at page 111; "Punishment is before all things deterrent, and he chief end of the law of crime is to make the evil doer an example and a warning to all that are like minded ith im". I would agree with this passage, and the learned Single Judge was justified in holding that a severer sentence as necessary on account of the increase of crime provided of course culpable homicides of the type under onsideration have increased as held by the learned Single Judge. 6. Mr. Saleemi's next submission was that there as no material whatever to support the finding of the learned Single Judge that murders had been increasing, and e relied on the fact that the learned Assistant Advocate General was not able refer us to any statistics to show hat murders were increasing at a faster rate than the increase in population. Further, the question is not only of he increase of crime or the increase of murders generally, but of the increase of the type of offence committed y he appellant. Is there any evidence to show that more and more people are taking the law into their hands and xceeding their right of self-defence? I must confess I am very disturbed by this aspect of the case, which ppears o have escaped the attention of the learned Single Judge. However we can take judicial notice of the fact that he trength of the High Courts have been increased since 1947, but despite this increase the arrears of criminal itigation have increased and it would not be unreasonable from these circumstances to infer that the tendency for eople to take the law into their own hands had increased also. However, in the absence of statistics it would be hazardous to make a more precise generalisation as, for example, that crime has increased in the last decade. And, as no such statistics appears to be available, I have drawn a comparison between the period before and after 1974. Sentences for convictions under the First Part of Section 304 P.P.C. before 1947 were on the low side, therefore, the High Court was entitled to pass a severer sentence than, for example, that passed by Abdul Rashid, J., in Farida's case. But the prosecution cannot put its case higher than that, I may also point out here that in Akhtar Hussain vs. The State (PLD 1958 S.C. (Pak) 251) this Court altered a conviction form Section 302 PPG to one under Section 304, Part I, P.P.C. and passed a sentence often years R.I. only." Perusal of above mentioned two matters would show that discretion has to be exercised judicially by the Court regarding quantum of sentence. In the former case reproduced hereinabove sentence of death penalty was converted into imprisonment for life and in the latter case too, judicial notice of the fact was taken as regards increase in the crime rates as well as strength of the High Courts and after thorough discussion while concluding reliance was placed on PLD 1958 S.C. (Pak) 251 and Court altered conviction from Section 302 PPC to one u'nder Section 304 Part-I, P.P.C In the first instance it appeared to us that the bsconding ccused and the appellant started firing upon the complainant party as there was dispute of money transaction between the bsconding accused Abdul Razzaq and deceased Abdul Zahir.It has never been argued by Mr. Ehsanul Haq nor Advocate eneral hat conviction of accused Abdul Qudoos should have been passed under Section 302(a) PPC instead of 302(b) PPC, therefore, e re not inclined to further dilate upon the same. Admitted position being that present appellant has been convicted under Section 02(b) PPC which is reproduced as under 302 . Punishment of qatl-i-amd.~Who ever commits qatl-i-amd shall, subject to the provisions of this Chapter be: (a) ....................................... .': ................................................. (b) punished with death for imprisonment for life as ta'zir having regard to the acts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or (c) This clearly rovides for death sentence or sentence for imprisonment for life as ta'zir. We have already mentioned that the motive to kill as ome money ransaction between Abdul Razzaq absconding accused and Abdul Zahir deceased. This fact has been confirmed by all the P.Ws cluding P.W, 5 Haji Sheikh Muhammad (complainant) father of deceased in his statement as well as in the complaint. According .W. 2 Jan Muhammad (injured) when they reached near the place of incident they were signalled to stop by accused bdul Razzaq. e further deposed that as soon as they got down from the vehicle, again absconding accused Abdul Razzaq who as armed ^with alashnikov had opened fire upon them. Thereafter the appellant Abdul Qudoos also fired at them.The case gainst appellant has been fuHy established. The conviction of appellant under Section 302(b) PPC is maintained. We have also mentioned that it was Abdul Razzaq who firstly started firing withkalashnikov upon the complainant party. Thereafter ppellant Abdul Qudoos also fired at them. The present appellant, therefore, has committedthe offence at the behest and with onnivance of Abdul Razzaq, after when he started firing as a result, of which Abdul Zahir and Muhammad Ewaz received bullet njuries. Both of them were then fired by Abdul Qadoos, "£'_ therefore, in the circumstances in our calculated view the apital punishment is not called for. Thus the appellant is awarded imprisonment for life under Section 302(b) P.P.C. We are, herefore, inclined to convert the sentence from death penalty into imprisonment for life under Section 302(b) PPC. The appellant hall also suffer rigorous imprisonment under Section324 PPC for 7 years and to pay fine of Rs. 50,000/-, in default whereof to -' undergo two years R.I. The sentence of 324 PPC shall be consecutive to i sentence awarded under Section 302(b) PPC ecause, Naimat Ullah and Jan Muhammad have received bullet injuries separately. '.. The appeal is dismissed with above entioned modification in the sentence awarded under Section 302(b) P.P.C. B.T.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 514 Present: raja muhammad khurshid, J. LIAQAT ALI-Petitioner versus STATE-Respondent Crl. Misc. No. 4468/B of 1998, dismissed on 2.11.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Murder-Offence of-Bail petition against-Delay in lodging FIR is not relevant at this stage as case was registered after a judicial enquiry Contention that medical evidence is in contradiction to ocular account of occurrence mentioned in FIR would require deeper appreciation at time of trial—Petitioner is named in FIR; he had actively participated in causing injuries to deceased alongwith his brother who had also recieved injuires during occurrence-Mere fact that nothing was recovered from petitioner would not be relevant at bail stage, because there were serious allegations against I.O.-Petition dismissed. [P. 517] A Rqja Ejaz Aziz Khan, Advocate for Petitioner. Ch. Zafar Iqbal Sulehri, Advocate for State. Reg a Abdul Rehman, Advocate forComplainant. Date of hearing: 2.11.1998. order A case under Sections 302/34 PPG was registered against the petitioner and five others for the murder of Rasheed Masih on 26.3.1996 vide FIR No. 84/98 registered on 26.3.1998. According to the FIR lodged by mother of the deceased namely Sardaran Bibi, on the fateful night, Rasheed Masih deceased was called from his house by Raja Naveed and Muhammad Tanveer for watching V.C.R. On the night between 25th and 26th of March, 1996 Rasheed Masih in the company of the aforesaid persons proceeded to purchase vegetables from vegetable market while having a cash of Rs. 2,000/- with him. When all three of them reached near the grave-yard 'Darbaar Khawaja Bari', they were confronted by Muhammad Aslam and the petitioner Liaquat Ali, both of them being brother and asked them as to why they were standing in front of their house. They also abused all the above named three persons including the deceased, whereupon, Raja Naveed and Tanveer ran away but Rasheed Masih returned the abuses to the petitioner and his brother which led to a scuffle/fight between them, whereupon, petitioner and his brother Muhammad Aslam started beating Rasheed masih with 'sotas' and hurled bricks and 'rorhas' (pebbles) upon him. He raised alarm which attracted the complainant and her husband who reached the spot. The aforesaid Muhammad Aslam i.e. brother of the petitioner was also injured during the scuffle. The complainant and her husband intervened to save their son but all in vain. The deceased had gone extremely "weak and out of weakness, he was almost unable to speak. However, the petitioner and his brother forcibly lefted Rasheed Masih in a vehicle and took him to P.S. Race Course, Lahore where he was further thrashed by Muhammad Shafi SI (since dead) who after planting not-bolts worth of Rs. 500/- invovled the deceased in a false case of theft of railway property. The complainant i.e. mother of the deceased allegedly being a poor lady ran from pillars to post to report about the occurrence to the authroities concerned but due to the influence of the petitioner and his brother, she remained unsuccessful as they were in league with the Police Officials, Medical Officer and the Jail Superintendent. Upon her hue and cry, a judicial enquiry was held and according to the report given by the enquiry Magistrate on 5.11.1998, it was found that the deceased was murdered, before which he was given severe beating by the petitioner and his brother Aslam accused. The police also allegedy connived with the accused persons and the officials in the health and jail departments, who also acted negligently which ultimately resulted into death of Rasheed Masih. 2. In view of the judicial enquiry, the present case was registered on 26.3.1998. 3. Learned counsel for the petitioner has submitted that four out of six accused have been found innocent including the Police Officials, medicalOfficer and the Superintendent of the jail concerned. However, the petitioner and his brother Muhammad Aplam have been sent-up to face the trial. Further contends that infact the deceased was a desperate criminal and wasinvolved in a numbher of criminal cases, on the night of occurrence, he had stolen the railway material from the railway track for which he was reported upon by the petitioner upon which a case of theft was registered against him; that the petitioner and his brother have been implicated in the case falselywith the delay of two years on account of registration of theft case against the deceased although they had nothing to do with his murder; that the FIR was registered with the delay of two years and the delay remained unexplained which made the case of the prosecution for further enquiry. The post-mortem was allegedly held after the death of the deceased in which it was found that there were no signs of violence and that the death was caused due to the heart and resperatory failure; that a Medical Board of Specialists was constituted for re-examination an post-mortem of the dead body of the deceased after the same was disinterred from the grave by the order of the District Magistrate. The Board had come to the opinion that since the dead body was in advance stage of putrifcation, therefore, no bony trauma could be observed from the available skeleton. The cause of death could not be commented from the available material. It was, therefore, submitted by learned counsel for the petitioner that the medical evidence was not in accord with the contentions raised in the FIR that the deceased was stoned to death or that he was beaten by the petitioner and his co-accused Aslam thereby, injurying his ribs, etc.; that the weapon of offence was never recovered which showed that the case against the petitioner was allegedly highly doubtful. Reliance was placed on Wall Muhammad vs. The State reported as 1995 P.Cr.L.J. 310 ( Lahore ), Nadir and 2 others vs. The State cited as 1985 P.Cr.L.J. 247 ( Karachi ) Walayat Khan, etc. vs. The State reported as N.L.R. 1982 Cr.L. J. 622 and Muhammad Akram and another vs. The State cited as 1985 P.Cr.L.J. 390 (Lahore). It was, therefore, prayed that the petitioner was entitled to bail in the case. 3. The petition was resisted by learned counsel for the state-assisted by learned counsel for the complainant on the ground that the petitioner is named in the FIR and a specific role is attributed to him for causing injuries to the deceased. The delay is explained as the complainant being a poor lady was trying to seek justice from the departments concerned which ultimately resulted into the initiation of the judicial enquiry in which it was found that the deceased was murdered. The mere fact that some of the accused had been found innocent during the investigation would not allegedly exonerate the petitioner for role attributed to him during the transaction. Likewise,the alleged involvement of the deceased in some criminal cases would not be relevant at the stage of bail particularly when there is evidence against the petitioner prima facie linking him with the offence punishable with death or imprisonment for life. 4. I have considered the submissions made at the Bar and find that delay in lodging the FIR is prima facie not relevant at this stage as the case was registered after a judicial enquiry. The contention that the medical evidence is in contradiction to the ocular account of occurrence mentioned inthe FIR would require deeper appreciation at the time of trial. It is enough to say that the petitioner is named in the FIR; he had actively participated in causing injuries to the deceased along with his brother Muhammad Aslam who had also received injuries during the occurrence. The mere fact that nothing was recovered from the petitioner would not be relevant at this stage because there were serious allegations against the Investigating Agency as accoridng to the complainant, it also joined hands with the accused in doing away with the deceased by torturing him after involing him in a false case of theft. These things require evidence and deeper appreciation at the time of trial. Any observation at this stage is likely to cause prejudice to the trial which is in progress and the next date of hearing according to the learned counsel for the state has been fixed as 10.11.98 for recording the evidence of prosecution. 5. In the light of the foregoing facts, there is no good ground to admit the petitioner to bail at this stage. The petition is accordingly dismissed. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 517 Present: shaikh abdur razzaq, J. MEHMOOD KHAN alias MOODA-Petitioner versus STATE and another-Respondents Criminal Revision No. 327 of 1998, dismissed on 16.9.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 514-Forefieture of Surety-Offence u/S. 302/148/149 PPC-- Absconding of accused after grant of bail-Cancellation of bail bond and issuance of notice u/S. 514 Cr.P.C.—Order for deposit of Surety amount of Rs. 50,000/—Revision against-Petitioner stood surety for accused who absented himself, hence, he was issued notice u/S. 514 Cr.P.C. which was ; served upon him and even then he did not bother to attend Court and explain his position regarding absence of accused-He also did not render any help to police to trace out accused-This attitude of petitioner tells upon his bona fides—Moreover, accused for whom petitioner stood surety, has again committed murder and is absconding-Trial Court passed impugned order in accordance with law-Petition dismissed. [P. 519] A Mr. Muhammad Ahsan Bhoon, Advocate for Petitioners. Date of hearing: 16.9.1998. order This revision petition is directed against order dated 24.11.1997 passed by learned Sessions Judge Hafizabad imposing penalty of Rs. 50,000/- on the petitioner and forfeiture of this surety bond on failure to produce the accused in the Court. 2. Briefly stated the facts are that the petitioner stood surety for Shaukat All accused who was involved in a case vide FIR No. 244/94 under Section 302/148/ 149 PPG registered at P.S. Kassoki Hafizabad . Since Shaukat Ali absented on 10.10.1997, so his bail bond was cancelled and notice under Section 514 Cr.P.C. was issued to the surety i.e. petitioner. The surety was personally served for 23.10.1997 but he did not turn up in Court. The statement of process server was recorded on 20.11.1997 to the effect that notice was personally served upon the petitioner. Consequently vide order dated 24.11.1997 petitioner was directed to deposit the surety amount of Rs. 50,000/- within one month. 3. The only grievance of learned counsel for the petitioner is that the trial Court while passing order dated 24.11.1997 has taken a very harsh view. His contention is that Courts have always been taking a lenient viewand reducing the amounts and relied upon Dildar and another v. The State ( PLD 1963 SC 47), Ghulam Rasool v. The State (1989 P.Cr.L.J 1891 ( Lahore ) and Zulfqar etc. vs. The State (NLR 1990 Criminal 324). He further urged that accused Shaukat Ali was not related to the petitioner, he was merely known to him and had furnished surety in heavy amount on merelyhumanitarian grounds. 4. A perusal of the authorities referred above clearly shows that the facts of the said authorities are not identical to the facts in hand. It is evident from NLR 1990 Criminal 324 that petitioners in that case made hectic efforts but failed. They prayed for further adjournment which request was not acceded. However, it is also evident that just after 18 days of the rejection of the prayer of the petitioners for more time to produce the ccused, the accused was arrested and it was established from the police report that the petitioners had also rendered considerable help for securing arrest of the accused person. Similarly the facts discussed in 1989 P Cr.L J 1891 (Lahore) reveal that upon order under Section 514 Cr.P.C. the surety did appear and was directed to show cause as to why the amount of surety bond be not realised as he failed to produce the accused and case had to be adjourned to 27.10.1987. On that date accused entered appearance, but petitioner failed to appear nor any explanation was submitted and consequently the trial Court confiscated the entire amount and directed that the same be realised from him. However, it is evident from this authority that accused did appear in the Court later on. So far as PLD 1963 SC 47 is concerned, it also reveals that efforts were also made by the surety to produce the accused. 5. A discourse of facts narrated above clearly reveals that petitioner stood surety for the accused Shaukat AH who absented on 10.10.1997. He was issued a notice under Section 514 Cr.P.C., which was served upon him and even then he did not bother to attend the Court and explain his position regarding absence of accused. He also did not render any help to police to trace out the accused. This attitude of the petitioner tells upon his bona fides. It is pertinent to point out that Shaukat All accused has again committed murder and is absconding. 6. In the light of facts stated above, it is clear that trial Court haspassed the impugned order in accordance with law. Accordingly, revision petition fails and is dismissed in limine. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 519 Present: RAJA MUHAMMAD KHUBSHID, J. MUHAMMAD EJAZ alias JAJI-Petitioner versus STATE-Respondent Criminal Misc. No. 5189/B of 1998, dismissed on 4.11.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(3)—Murder—Offence of—Bail petition against—On statutory ground-Order sheet of case shows that case has not been firmly dealt with according to instructions given by High Court from time to time for disposal of murder cases-In this case long dates have been given withoutany proper justification, whereas session case should be tried .on day-today basis arid any longer date should be given for well supported reasons-­ Petitioner is a principal accused and trial is already in progress- Petitioner has no case for bail-Petition dismissed with a direction to trial Court to conclude trial within three months. [P. 521] A Ch. Babar Waheed, Advocate for Petitioner. Mr. Muhammad Awais Malik, Advocate for State. Date of hearing: 4.11.1998. order The petitioner is involved in a case under Section 302/148/149 PPC vide FIR No. 7/95 dated 9.1.1995 registered at P.S. Garh, District Faisalabad for the murder of one Asad Masood, a brother of the complainant. The petitioner was arrested in the aforesaid case on 14.2.1995 and since then, he is in continuous detention and the trial has not yet been concluded. This petition is moved under Section 497(3) Cr.P.C. for grant of post arrest bail on statutory ground vis-a-vis that a period of two years has passed but the trial has not yet been concluded nor there is any possibility of its conclusion in the near future and as such, the petitioner is entitled to bail under the law. 2. The petitioner had earlier applied twice for bail before the learned trial Court but his applications were rejected with the remarks that his case would fall under proviso 4 of Section 497 Cr.P.C. as he was hardened, desperate and dangerous criminal. 3. Learned counsel for the petitioner has submitted that the learnedtrial Court fell in error to hold that the petitioner is hardened, desperate and dangerous criminal although there was no material before it to support the aforesaid view. It was also contended that though the petitioner was attributed a shot on the person of the deceased but another co-accused with similar role was discharge at the request of the police by the fflaqa Magistrate alongwith two others although all three of them have been summoned to face the trial by the learned trial Court. It was contended that case of the petitioner was not distinguishable from Khizar Hayat co-accused whose fire had also hit the deceased on his chest. It was, therefore, submitted that even on that ground, the petitioner was entitled to bail. 4. Learned counsel for the state has submitted that there is nothing on record to show that the petitioner was either involved in any criminal case in the past nor there was any substance with the prosecution to show that infact he was hardend criminal. However, bail was opposed on the ground that the trial is in progress and is likely to be concluded in the near future. 5. I have considered the foregoing contentions and had also called for the report of the learned trial Judge, the learned trial Judge has submitted in his report that there are 139 cases pending in his Court. The charge has been framed in 31 cases and 30 cases are awaiting trial which are older than this case. The total pendency in his Court in the terms of units in 2310. As such, it was submitted by the learned trial Judge (learned Addl. Sessions Judge, Faisalabad) that the trial of this case is likely to be concluded within a period of 11 months if no hurdle is caused on behalf of the accused. He has, however, assured that if any direction is issued for early desposal of case, it shall be complied with in letter and spirit 6. Apart from going through the aforesaid report of the learned Addl. Sessions Judge, Faisalabad I have also gone through the order sheet of the trial Court, the copies of which have already been placed on record by the petitioner. The order sheet shows that the case has not been firmly dealt with according to the instructions given by the High Court from time-to-time for the disposal of murder cases. It is true that there is heavy pendency of cases in t he Court of the learned Addl. Sessions Judge, Faisalabad but the fact remains that the case was not properly dealt with. There is a clear instruction from the High Court that murder cases should be proceeded dayto-day till the trial is concluded. However, in this case long dates have been given without any proper justification. It may be emphasized that whenever a sessions case is taken up for trial, it should be tried on day-to-day basis and any longer date should be given for the well supported reasons. In the instant case, the instructions issued by the High Court have not been followed which has resulted into prolongation of its trial. The petitioner is a principal accused in this case and the trial is already in progress. The petitioner has, therefore, no case for bail at this stage but it will suffice theends of justice if it is directed to the trial Court to conclude the trial within three months after the receipt of this order. 7. The office shall see that this order is communicated to the trialCourt at the earliest date and the same be got acknowledged. The learned trial Judge after concluding the trial as directed above, shall send a report to this Court. The petition is accordingly dismissed with the above orders. (MYFK) Petition dismissed

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 521 Present: RAJA MUHAMMAD KHUESHID, J. MUHAMMAD IMRAN-Petitioner versus STATE-Respondent Crl. Misc. No. 6046/3 of 1998, dismissed on 4.11.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 498-Bail pre-arrest-Offence U/S. 465/468/471 PPC-Petitioner is named in FIR-Serious allegations are levelled against him for committing offence for forging and preparing bogus Motor Registration certificates and connected papers purported to be issued by post office He was selling these forged certificates to public-Raid was conducted but he managed to escape leaving behind a hand bag-Petitioner is prima facie linked with offence mentioned in FIR—No mala fides on part of police-Question of innocence on basis of plea of alibi can only be agitated during investigation before police or at trial-Pre-arrest bail is not to begranted until and unless there is strong evidence that a person is being implicated maliciously or due to mala fides of police-There is no such element-Petition dismissed. [Pp. 522 & 523] A Roshan Ara, Advocate for Petitioners. Date of hearing: 4.11.1998. order A case under Section 465, 468, 471 PPC is registered against the petitioner at Police Station, Mozang, lahore vide FIR No. 179/98 dated 28.7.1998 that he prepared bogus and fictitious documents pertaining to the Motor Registration Authorities and the Post Office Department, he used to sell the bogus registration certificates after committing forgery. Raid was conducted upon a secret information. The petitioner on seeing the police party ran away leaving behind a hand bag, which was thrown in the street. The police took into possession the hand hag and recovered the documents and articles used for forging and preparing the bogus registration certificates. 2. The petitioner applied for pre-arrest bail, which was dismissed on its merits by the learned Additional Sessions Judge, Lahore vide his order dated 31.10.1998. Instead of surrendering to the court or to the-police, the petitioner has instituted this petition for pre-arrest bail on the ground thathe was not present in Lahore on the date of occurrence as he had gone to Gujranwala. 3. Secondly it is contended that the petitioner has falsely been implicated in this case. 4. I have considered the foregoing facts and find that these things were taken into consideration by the learned Additional Sessions Judge, lahore while refusing the pre-arrest bail. Suffice to say that the petitioner isnamed in the FIR. Serious allegations are levelled against him for ^ committing the offence for forging and preparing bogus Motor Registration Certificates and connected papers purportedly issued by the Post Office. He was selling these forged certificates to the public. Raid was conducted but he managed to escape leaving behind a hand bag as stated above. In such a situation, the petitioner is prima facie linked with the offence mentioned in the FIR. There appears to be no mala fide on the part of the police. The question of innocence on the basis plea of aftfcz can only be agitated during the investigation before the police or at the time of trial. The pre-arrest bail in such like cases is not to be granted as a matter of routine until and unless there is strong evidence that a person is being implicated maliciously or due to mala fide of the police. In the instant case there is no such element so as to invoke the extraordinary jurisdiction in favour of the petitioner by admitting him to pre-arrest bail particularly when his bail petition stands rejected by a court of competent jurisdiction. 5. This petition being meritiess is dismissed. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 525 Present: RAJA MUHAMMAD KHURSHID, J. MUHAMMAD RAMZAN-Petitioner versus STATE-Respondent Criminal Misc. No. 7026-B of 1998, heard on 10.2.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497/498--Bail~Prayer for-Offence under Section 302/109 PPC According to FIR, petitioner was not present when principal accused had fired at deceased, which proved fatal-Names of witnesses relating to conspiracy were not mentioned in FIR itself nor it was explained as to how and where had conspiracy had taken place—Evidentiary value of witnesses of conspiracy can be taken-In view of the foregoing facts, it has become a case of further inquiry into consideration at time of trial-­ Deeper appreciation of merit of case cannot be undertaken at bail stage lest it may prejudice trial altogether-Bail granted. [P. 526] A & B Mr. M.D. Tahir, Advocate for Petitioner. Sh. Asghar Mi, Advocate for State. Date of hearing : 10.2.1999. order A case under Section 302/109 PPC is registered against the petitioner and his brother Ghulam Abbas alias Sindhi for an occurrence, which took-place on 14.8.1998 at about 6.00 p.m. in which Ghulam Haider a brother of the complainant was done to death. 2. It is submitted that principal accused in this case is alleged to be Ghulam Abbas alias Sindhi, brother of the present petitioner, who according to the FIR fired at the deceased with his rifle which proved fatal. However,the name of the petitioner was mentioned in the FIR on the ground that the murder was done by the principal accused on his instigation. 3. The bail is opposed on the ground that the main accused has since absconded and is not so far arrested although the challan has been sent to the Court for trial. It is further submitted that the petitioner is linked with the occurrence as he had conspired with the principal accused to murder the deceased. In this respect reference was made to the statement of Falik Sher and Muhammad Ramzan PWs recorded on 10.9.1998 in which both of them contended that they had heard the petitioner talking to his brother Ghulam Abbas i.e. absconding accused hatching a conspiracy to killthe deceased. In pursuance of that conspiracy the principal accused Ghulam Abbas allegedly fatally fired at the deceased on the next following day. 4. The learned counsel for the petitioner has submitted that names of the aforesaid witnesses are not mentioned in the FIR and that their statements have been allegedly concocted after about one month of the occurrence. It was the result of due deliberations on the part of complainant's side in order to rope the petitioner falsely in this case. 5. I have considered the foregoing facts and have also gone through the record. Even according to the FIR, the petitioner was not present when the principal accused had fired at the deceased, which proved fatal. The names of the witnesses relating to conspiracy were not mentioned in the FIR itself nor it was explained as to how and where the conspiracy had taken place. The evidentiary value of witnesses of conspiracy can be taken into consideration at the time of trial. The deeper appreciation of the merit of the case cannot be undertaken at this stage lest it may prejudice the trial altogether. 6. In view of the foregoing facts, it has become a case of further inquiry. Accordingly this petition is allowed and the petitioner is admitted to bail in the sum of Rs. 1,00,000/- (one lac) with two sureties each in the likeamount to the satisfaction of learned trial Court. (T.A.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 526 Present: raja muhammad KHUESH1D, J. MUHAMMAD ALI a/ias MUMAND-Petitioner versus STATE-Respondent Criminal Misc. No. 5214/B/1998, dismissed on 5.11.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497/498~Bail-Offence u/S. 302/324/148/149 PPC-Petitioner is named in FIR-He is also involved in three other cases of murder within span of two years which shows bis aggressive and desperate temperament~A specific role is attributed to him in causing injury to injured PW--His vicarious liability is not distinguishable from his coaccused who caused death of deceased as he was present at spot alongwith other co-accused duly armed with a 12 bore gun-Mere fact that gun was not recovered or that police failed to bring on record medico legal report of injured PW being circumstantial evidence, would not heavily weight against ocular evidence which is persistent to link petitioner with occurrence-Petitioner is guilty of an offence punishable with death or imprisonment for life-He has no case for bail-Petition dismissed. [Pp. 527 & 528] A Mian Liaqat Ali, Advocate for Petitioner. Mian Abdul Qayyum Anjum, Advocate for State. Date of hearing: 5.11.1998 order The petitioner alongwith five others is involved in a case under Sections 302/324/148/149 PPG vide FIR No. 129/96 dated 13.4.96 registered at P.S. Saddar Samundri, District Faisalabad. According to the FIR, the petitioner and his co-accused while armed opened the attack upon the deceased after raising lalakara that they had come to take the revenge of murder of their brother namely Mirza. Simultaneously, Jaffer fired at Mst. Sughran, wife of Atta deceased hitting her on the abdomen. The second fire with .12 bore gun was made by the petitioner upon another woman namely Mst. Sughran wife of Saeed which hit her on left buttock. Ahmad alias Ahmi, co-accused also participated in the occurrence by making fire upon the deceased. 2. Learned counsel for the petitioner has submitted that the weapon of offence i.e. .12 bore gun has not been recovered from the petitioner nor the medicolegal report of the injured PW Mst. Sughran wife of Saeed is placed on record by the prosecution to link the petitioner with the occurrence. It was, therefore, submitted that it had become a case of further enquiry and the petitioner was entitled to bail. Reliance was placed on Muhammad Hanif vs. State cited as PLJ 1997 Cr.C. (Lahore) 531 (Multan Bench). 3. Learned counsel for the State has, however, opposed the bail onthe ground that there is a motive for killing the deceased Mst. Sughran Bibiwhereas, causing injury to the injured PW aforementioned; that all the eye­witnesses have clearly stated that the petitioner was present at the spot and had opened fire thereby causing injury to the injured PW; that the circumstantial evidence such as recovery of gun or non-availability of medicolegal report would be immaterial at this stage particularly when the eye-witnesses are persistent to name the petitioner for committing the occurrence; that the vicarious liability of the petitioner from the principal accused namely Jaffer is not distinguishable as he had gone to the spot duly armed in pursuance of a common motive of all the assailants; and lastly, it was urged that the petitioner is involved in three murder cases registered against him vide FIR No. 377 dated 13.8.95, FIR No. 161 dated 4.5.96 and FIR No. 410 dated 26.9.96, all registered at P.S. Saddar Samundri, and as such being of desperate and criminal nature, should not be allowed bail at the risk of repetition of another offence of similar nature. Finally, the petitioner has allegedly been found guilty and challan has already been -submitted to the Court. 4. I have considered the foregoing contentions and find that the petitioner is named in the FIR' He is also involved in three other cases of murder within the span of two years which shows his aggressive and -desperate temperament. A specific role is attributed to him in causing injury to the injured PW Mst. Sughran. His vicarious liability is no]b distinguishable from his co-accused Jaffer who cause death of the deceased while firing at her as he was present at the spot alongwitb other accused duly armed with a .12 bore gun. The mere fact that the gun was not recovered or that the police failed to bring on record the medicolegal report of the injured PW being circumstantial evidence would not heavily weight against the ocular evidence which is persistent to link the petitioner with the occurrence. 5. In the situation, it can be said that there are reasonable grounds for believing that the petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, he has, therefore, no case for bail at this stage. The petition is dismissed. (T.A.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 530 Present: AsiF SAEED KHAN KHOSA, J. Mst. MUSARRAT PARVEEN another-Petitioners versus STATE-Respondent. Criminal Misc. No. 212-B of 1999, decided on 17.2.1999. Criminal Procedure Code, 1898 (V of 1898) -- —-S. 497--Bail--Prayer for--Offence under Section 13 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 read with Sections 419, 420, 494, 495, 496, and 109 PPC-Both petitioners are females and law has envisaged a concession in respect of such accused persons by adding first proviso to sub-section (1) to Section 497, Cr. P.C.-Concession of bail is normally available to female accused even in most heinous offences—This concession made available by law to female accused is in accord with social policy as well-Learned counsel for State has failed to refer to any material incriminating petitioners in any offence whatsoever—In this view of matter case against petitioners surely calls for further inquiry into their guilt within purview of sub-section (2) of Section 497, Cr.P.C-- Petition allowed. [P. 531] A & B Mr. Arshad All Chohan, Advocate for the Petitioners. Mr. Zawar Russian Qureshi, Advocate for the State. Date of hearing : 17.2.1999 order Mst. Musarrat Parveen and Mst. Anwar Bibi petitioners are accused persons in case FIR No. 1031 registered at Police Station Saddar Arifwala, District Pakpattan Sharif on 29.11.1998 for an offence under Section 13 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Sections 419/420/494/495/496 and 109, PPC. 2. The petitioners were arrested by the local police in connection with this case on 4.1.1999. Their application for post-arrest bail was dismissed by the learned Additional Sessions Judge-I, Pakpattan Sharif vide order dated 14.1.1999. Hence, the present petition before this Court. 3. After hearing the learned counsel for the parties and going through the documents annexed with this petition it has been noticed that Petitioner No. 1 was initially the complainant in this case who had lodged the present FIR but subsequently she had been implicated as an accused person by the local police. After going through the order passed by thelearned Additional Sessions Judge refusing bail to the petitioners it has significantly been noticed that the learned Additional Sessions Judge had failed to refer to any evidence whatsoever available against the petitioners implicating them in the case set-up by the prosecution. Today the record of the case has not been produced by the local police. It is unfortunate that the local police has taken no interest in opposing the petitioners' bail before this Court despite a notice having been served upon it for today's date of hearing. I am not minded to adjourn the hearing of this petition merely because the State has failed to diligently do its duty. A question involving liberty of a citizen cannot be deferred or postponed only on account of an unexplained lapse on the part of the prosecution/State. It has further been noticed that both the petitioners are females and the law has envisaged a concession in respect of such accused persons by adding the first proviso to sub-section (1) to S. 497, Cr. P.C. The concession of bail is normally available to female accused even in the most heinous of offences. This concession made available by the law to the female accused is in accord with social policy as well. 4. The learned counsel for the State has failed to refer to any material incriminating the petitioners in any offence whatsoever. 5. It this view of the matter the case against the petitioners surely calls for further inquiry into their guilt within the purview of sub-section (2 ) of Section 497, Cr.P.C. This petition is, therefore, allowed and the petitioners are admitted to bail in the sum of Rs. 30,000/- (Rupees thirty thousand only ) each with two sureties each in the like amount to the satisfaction of the learned trail Court/Duty Judge. 6. It is, however, clarified that if the prosecution/State is serious in prosecuting the petitioners and in challenging their admission to bail it may apply for cancellation of their bail by producing the relevant incriminating evidence available against the petitioners. (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 531 Present: dr. MUNIR AHMAD MUGHAL, J. NAZAR MUHAMMAD-Petitioner versus STATE-Respondent Criminal Misc. No. 2504-B of 1998, decided on 14.1.1999. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Prayer for-Offence under Section 10(2) Offence of Zina (Enforcement of Hudood), Ordinance of 1979-Tentative assessment of material on record shows that no recovery of pistol used for threatening abductee has been made from petitioner—Chemical Examiner's Report has come negative which makes this case that of further inquiiy entitling petition concession of bail-Petition, is, therefore, allowed and petitioner is directed to be released on bail provided he furnishes bail bond in sum of Rs. 25,000/- (Rupees twenty five thousand) with one surety in like amount to the satisfaction of trail Court/Judicial Magistrate. [P. 533] A Mr. Arshad Mi Chohan, Advocate for the Petitioner. Mr. Tariq Usman Joiya, Advocate for the State. Date of hearing: 13.1.1999. order The petitioner is involved in case FIR No. 750/98 dated 17.8.1998 for offence under Section 10(2) of the Offence ofZina (Enforcement of Hudood) Ordinance 1979, (VII of 1979) registered at Police Station Saddar Pakpattan Sharif, on the statement of Muhammad Yar Complainant, alleging that he is Labourer by profession and is resident of Chak No. 12/SP, Tehsil and District Pakpattan Sharif. His daughter was married with Riaz Ahmad who was residing with his family at Tubewell of Abdul Hafeez, the head man and that between the night of 16/17.8.1998, the complainant's daughter was a sleeping at Tubewell alone. At the mid-night about 12.30 the accusedpetitioner armed with pistol came there and took her in the field of Chilli by dragging her breaking the string and committed zina-bil-jabar with her. On her hue and cry Muhammad Zulfiqar, Riaz Ahmad (husband of the victim) reached at the spot and the occurrence in the light of electric bulb was seen by them. 2. Earlier pre-arrest bail application was withdrew by the petitioner on 2.11.1998 from the Court of learned Addl. Sessions Judge, Pakpattan Sharif and then be moved post arrest bail which was also dismissed on 16.12.1998 by the learned Addl. Sessions Judge, Arifwala Camp-at-Pakpattan Sharif. 3. Learned counsel for the petitioner submits that the report of Chemical Examiner is negative and case of the petitioner is that of further inquiry and that the case against the petitioner is false, baseless and concocted and the petitioner has been falsely involved in this case due to previous enmity and that the petitioner is in judicial lock-up since his arrest by the police. He further submitted that no alleged pistol has been recovered from the possession of the petitioner. He also submitted that there is no likelihood of absconding the petitioner and tempering with the evidence and that the petitioner is ready to furnish sound bail bound and surety bond to the entire satisfaction of this Court as the petitioner is previously nonconvict. 4. On the other hand, learned counsel for the State has vehementlyopposed the petition and submitted that the petitioner has been involved inthe case ofzina on the statement of the complainant. 5. I have given my due consideration to the valuable arguments on both the sides. 6. The tentative assessment of the material on record shows that no recovery of the pistol has been made from the petitioner. The Chemical Examiner's Report has come negative which makes this case that of further inquiry entitling the Petitioner the concession of bail. The petition, is, therefore, allowed and the petitioner is directed to be released on bail provided he furnishes bail bond in the sum of Rs. 25,000/- (Rupees twenty five thousand) with one surety in the like amount to the satisfaction of the trial Court/Judicial Magistrate, Pakpattan Sharif. (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C . ( Lahore ) 533 Present: dr. munir ahmad mughal, J. GHULAM MUSTAFA and other-Petitioners versus STATE-Respondent Criminal Misc. No. 1932-B of 1998, heard on 23.12.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Bail-Prayer for-Offence Under Section 302/148/149 PPC- Tentative appraisal of record shows that no injuries are attributed to petitioners having been caused to deceased or to PWs . and that weaponswith which they were alleged to have been armed have also not been recovered during investigation and that one co-accused has been grantedbail by High Court and one co-accused has been declared innocent by police -Question of vicarious liability will be seen at trial of case-In this view of matter, petitioners are allowed bail. [P. 535] A & B Mr. Arshad All Chohan , Advocate for the Petitioners. Mr. Kanwar Riaz Ahmad, Advocate for the Complainant. Sayed Shahid Hussain , dvocate for the State. Date of hearing: 23.12.1998 order The petitioners are involved in a case FIR No. 176/98 dated 26.5.1998 under Sections 302/148 and 149 PPC registered at Police Station Machiwal District Vehari on the complainant of Nazeer Ahmad that when he and his brother Faqir Hussain were goining to their fields on a tanga and when they reached near square No. 45 Killa No. 16, suddenly Jamil alias Jeela armed with riffle, Sarwar armed with .12-bore gun Mustafa armed with pistol and Qurban Ali armed with pistol came out of the bushes and Sarwar raised the lalkara that they should be taught a lesson for restrainingthem from playing the tape-recorder. Faqir Hussain ran away to sage his life but Jamil , Qurban and Ghulam Mustafa chased him and at a distance of20/25 karams , Jamil opened fire with his riffle at Faqir Hussain which crossing his left arm hit left side of his body. He fell down and died. The Qurban Ali fired which did not hit any person. On the noise of the complainant , the PWs attracted. I 2. Earlier, the bail of the Petitioner No. 1 was refused by the learnedAdditional Sessions Judge, Vehari on 2.10.1998 and earlier to that Petitioner No. 2 had filed an application for bail which was dismissed by the learned Additional Sessions Judge, Vehari , vide order dated 26.8.1998. 3. The bail is now pressed on the grounds that both the petitioners did not cause any injury to the deceased and to the prosecution and the allegation against the Petitioner No. 2 is only that of proverbial lalkara and that petitioners had not been attributed any injury by the prosecution and that co-accused Qurban Ali has been granted bail by this Court vide order dated 23.9.1998 passed in Criminal Misc. No. 1710-B/98 and that rule of consistency demand that same concessions be given to the present petitioners and that no recovery have been effected from the petitioners during the investigation and that one nominated accused Niaz has been declared innocent and that petitioners are in judicial lock-up for the last six months and are not required for further investigation. They are not previous convicted and that there is no likeli -hood of their absconsin . Learned counsel for the petitioners has placed "Muhammad us. The State" (1998 SCMR 454 ) where there was ineffective firing and no injury was attributed to him during the occurrence. The bail was granted. In the case of " Muhammad Sadiq and others us. The State" (1996 SCMR 1654) where accused were armed with pistol but they raised only lalkara and had not caused any injury to the complainant, bail»was granted. In the case of " Rafiq Khan us. The State " (1995 SCMR 343) where also the active role is attributed to the accused and petitioner/accused also raised lalkara , the bail was granted. 4. The bail is opposed on the grounds that the petitioners are specifically named in the FIR and skeptic role have been attributed to them, and if Sarwar not raised lalkara to his son namely Muhammad Jamil , he would not have committed the offence and that petitioner Ghulam Mustafa is attributed not only lalkara but also chasing the deceased and his brother Nazir Ahmad and that it was a brought day light murder and there was no question of identification and that the murder has been committed in a very desperate manner and that recovery of ring lock of Ghulam Mustafa has been recovered and that offence is hit by Section 497 Cr. P.C. at this early stage and that the trial is about to commence. 5. I have given due consideration to the valuable arguments on both the sides. 6. The tentative appraisal of the record shows that admittedly no injuries are attributed to the petitioners having been caused to the deceased or to the PWs . and that the weapons with which they were alleged to have been armed have also not been recovered during the investigation and that co-accused Qurban Ali has been granted bail by this Court on 23.9.1998 vide Crl . Misc. No. 1710-B-1998 and one of the co-accused Niaz has been declared innocent by the police. The question of vicarious liability will be seen at the trial of the case. 57. In this view of the matter, petitioners are allowed bail subject to furnishing his bail bonds in the sum of Rs . 50,000/- each with one surety each in the like amount to the satisfaction of the trial Court/Duty Judge. (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 535 Present: asif saeed khan khosa, J. KAURA--Petitioner versus STATE-Respondent Criminal Revision No. 79 of 1998, heard on 10.12.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- ----S. 354--Outrage of modesty-Allegation of-Sentence of-2 years R.I. and a fine of Rs. 5,000/- -Challenge to-Petitioner is not only closely related to victim but is also himself a married man having five children to support-­ Before High Court petitioner has shown remorse and has assured Courtto behave like gentleman in future-He has already spent about ten and a half months in jail-Therefore, in circumstances it is felt that sentence already undergone is sufficient to meet ends of justice-For reasonsmentioned above revision petition is partly accepted, conviction of petitioner under Section 454, PPC is upheld but petitioner's sentence is reduced to one already undergone by him-Petitioner is already on bail- His bail bond/sureties hereby stand discharged. [Pp. 536 & 537] A Rana Khalid Mahmood, Advocate with petitioner in person. Sheikh Nasim Rashid, Advocate for the State. Date of hearing: 10.12.1998. judgment Kaura petitioner has filed this revision petition challenging the judgment dated 4.4.1998 passed by the learned Additional Sessions Judge-I, Muzaffargarh whereby the conviction and sentence of the petitioner under Section 354, PPC recorded by the learned Judicial Magistrate, Sections 30 Muzaffargarh on 18.2.1998 was upheld. 2. The facts giving rise to this petition are that on 21.4.1996 modesty of Mst. Zarina Mai, daughter of Noor Muhammad complainant, wasoutraged by the petitioner and subsequently FIR No. 121 was lodged by Noor Muhammad complainant in that regard at Police Station Qureshi, -' District Muzaffargarh on 25.5.1996 for offences under Section 452/354, PPC. The petitioner was tried for the said offences and vide judgment dated 18.2.1998 the learned Judicial Magistrate Section 30, Muzaffargarh convicted the petitioner for an offence under Section 354, PPC and sentenced him to two years R.I and a fine of Rs. 5000/- or is default of payment thereofto suffer further R.I of six months. The petitioner was also convicted for an offence under Section 457, PPC whereunder he was sentenced to four years R.I and a fine of Rs. 5000/- or in default of payment thereof to suffer further R.I for six months. Both the sentences of imprisonment were ordered to run concurrently. The petitioner filed an appeal in that regard which was partly -=-. allowed by the learned Additional Sessions Judge-I, Muzaffargarh vide judgment dated 4.4.1998. Through that judgment the petitioner's conviction and sentence under Section 457, PPC was set aside whereas his conviction / and sentence recorded by the learned trial Court for an offence under Section 354, PPC was upheld and maintained. Hence, the present revision petition before this Court. 3. At the very outset of his submissions the learned counsel for the petitioner has stated that he does not challenge the conviction of the petitioner for the offence under Section 354, PPC recorded by the learned trial Court and upheld by the learned Appellate Court. He has, however, prayed for reduction of the petitioner's sentence in view of the peculiar _ circumstances of this case. In that regard the learned counsel for the petitioner has pointed out that the petitioner is an uncle of Mst. Zarina, the victim in this case. He has further pointed out that the petitioner is aged about 30/32 years, he is a married man and has five children of his own. The learned counsel for the petitioner has stated with reference to the record of this case that the petitioner has already spent about ten and a half months in jail in connection with this case. The learned counsel for the State has maintained that as long as the conviction of the petitioner is not assailed he does not have much to say on the question of sentence as the same lies within the discretion of the Court. 4. After hearing the learned counsel for the parties and going through the record it has been noticed that this case is about two and a half years old during which period the petitioner has already suffered the agony of a trial and an appeal. He has been in and out of the jail repeatedly in connection with this case. He is not only closely related to the victim of this case but is also himself a married man having five children to support. Before this Court the petitioner has shown remorse and has assured the Court to be have in future. He has already spent about ten and a half months in jail in connection with this case. Therefore, in the circumstances of this case, it is felt that the sentence already undergone by him in this case is sufficient to meet the ends of justice. 5. For the reasons mentioned have this revision petition is partly accepted, the conviction of the petitioner under Section 354, PPG is upheld but the petitioner's sentence is reduced to one already undergone by him. The petitioner is already on bail. His bail bond/sureties hereby stand discharged. (K.K.F.) Petition partly accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 537 Present: ASIF SAEED KHAN KHOSA, J. Mst. NASREEN BIBI-Petitioner versus MUHAMMAD AYUB and another-Respondents Criminal Misc. No. 54/H of 1999, decided on 18.12.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 491--Minor-Snatching away from one parent to another-Writ against Detenue is aged about 13 years-It does not appear to be a case of forcible snatching away of a minor child by one parent from other-Allegations levelled by petitioner and counter allegations levelled by Respondent No. 1 are such that High Court has felt unsafe to decide matter of custodyof detenue between them in proceedings under Section 491, Cr.P.C.-- Question of welfare and custody of minor detenue requires elaborate sifting of facts between parties which exercise can adequately and satisfactorily be undertaken only by a Guardian Judge and not by High Court in proceedings under Section 491, Cr.P.C.-Petitioner may approach learned Guardian Judge in respect of custody of her minor daughter detenue. [P. 538] A Mr. Ghulam Kazim Bhutto, Advocate for Petitioner. Rana Khalid Mehmood, Advocate for Respondent No. 1. Date of hearing: 18.2.1999. order In compliance with this Court's order dated 11.2.1999 Respondent No. 2 has caused production of Respondent No. 1 as well as Mst. Naheeda Bibi detenue before this Court today. 2. The detenue is aged about 13 years. It does not appear to be acase of forcible snatching away of a minor child by one parent from the other. The allegations levelled by the petitioner and the counter allegations levelled by Respondent No. 1 are such that this Court has felt unsafe todecide the matter of custody of the detenue between them in the present proceedings under Section 491, Cr. P.C. The question of welfare and custody of the minor detenue requires elaborate sifting of facts between the parties which exercise can adequately and satisfactorily be undertaken only by a Guardian Judge and not by this Court in proceedings under Section 491, Cr.P.C. The petitioner may approach the learned Guardian Judge in respect of custody of the minor detenue Mst. Naheeda Bibi, if so advised. 3. I have not been persuaded to interfere in the matter at such a premature stage. This petition is, therefore, dismissed. (K.K.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 538 Present: SH. AMJAD ali, J. MUHAMMAD YAQUB BABAR-Petitioner versus ALI ASGHAR and 2 others-Respondents Criminal Misc. No. 70-Q of 1998, decided on 11.1.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 381 read with Offences Against Property (Enforcement of Hudood) Ordinance 1979--Superdan'--Case of-Petitioner mainly asserts his claim for superdari of car on principle that it was recovered from his possession—This criteria cannot be considered only basis for grant of temporary custody of case property-Such principle if applied strictly in every case, it would even entitle eveiy thief or holder of stolen property toclaim superdari of case property in exclusion to all others, including real owner thereof-Hon'ble Supreme Court had held that in law, property should be restored to party from whom it is taken but under special circumstances this rule can be departed from-Titie of disputed property is yet to be determined-In this respect, petitioner has himself moved Civil Court for such determination-In view thereof, any interference by High Court in discretion exercised by Courts below is not called for as itmight prejudice case of parties because of factual controversies involved therein, particularly when there is no legal infirmity in orders of bothlearned Illaqa Magistrate and Additional Sessions Judge-Consequently, instant petition is dismissed. [P. 541] A 1991 MLD 2590 and 1980 SCMR 954 ref. Malik Waheed Anjum, Advocate for Petitioner. Sardar Muhammad Ishaque Khan, Advocate for Respondent No. 1 Malik Muhammad Kabir A.A.G. with Sajjad Hussain Zahid, Advocate for the State. Date of hearing: 11.1.1999. judgment On the complaint of Respondent No. 1 to the effect that on the night of 25th April, 1998, five youngmen took away his Toyota Corrolla 2.D, Diesel Car, numbering RIW-218, Black coloured, 1996 Model, while he was entering his house, a case under Section 381 of the Pakistan Penal Code and Section 14 of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979, was registered vide FIR No. 174 dated 25.4.1998, at Police Station Sadiqabad, Rawalpindi. Subsequently, on 19.6.1998, while on patrol duty, the New Town Police nabbed the petitioner and his companions and took black-coloured Toyota Corrolla numbering AJKD 3031 from his possession and accordingly a case under Sections 399 and 402 of the Pakistan Penal Code were registered vide FIR No. 217, dated 19.6.1998, at Police Station New Town, Rawalpindi. It was alleged therein that the car taken from possession of the petitioner was the same car which was snatched away from Respondent No. 1 on 25.4.1998. In consequence thereof, the petitioner was apprehended. 2. On his release on bail, the petitioner moved to the Illaqa Magistrate for superdari of the car taken by the police from his possession on the ground that he had purchased the same from one Karam Ellahi for Rs. 5,90, OOO/-. At that time, it transpired that in the meanwhile, superdari of the car had already been given to Respondent No. 1 under the orders of Magistrate, First Class, Rawalpindi , dated 23.6.1998. The petitioner thereupon moved an application for cancellation of superdari of the car to Respondent No. 1 and prayed for entrustment of the same to him. In consequence thereof, under the orders of the learned Illaqa Magistrate, dated 28.8.1998, the car was taken back from Respondent No. 1 but later on, the learned Magistrate by his order of 15.9.1998, dismissed the application moved by the petitioner and accordingly vehicle was again handed over to Respondent No. 1. The petitioner thereupon assailed both the orders, dated 23.6.1998 as well as 15.9.1998 in revision. The said revision petition was, however, dismissed by order of the learned Additional Sessions Judge, Rawalpindi , dated 27.10.1998. The petitioner has, therefore, approached this Court under Section 561-A of the Code of Criminal Procedure for quashment of the aforesaid orders of the learned Illaqa Magistrate and that of the learned Additional District Judge. 3. Malik Waheed Anjum, Advocate, the learned counsel representing the petitioner, contended that the very delivery of the car by the personnel of New Town Police Station to Sadiqabad Police Station was bad in the eye of law and on this very ground the order of superdari of the car to Respondent No. 1 was liable to be quashed. In this respect learned counsel referred to Muhammad Yaqoob vs. The State (1991 P.Cr.L.J) to urge that only the petitioner was entitled to the custody of the car. Learned counsel next contended that Respondent No. 1 had initially not given the chasis number and engine number of the car taken from him, while the petitioner was in possession of complete documentary proof of the car taken from his possession. It was contended that the petitioner was the lawful owner of the car having purchased the same from Karam Ellahi for a consideration of Rs. 5,90,000/- through an open letter. He was in possession of the registration book and other necessary documents. Further, the chasis number and engine number of Respondent No. 1's car were altogether different from the car taken from his possession. It was also claimed that it was a settled principle of law that primarily superdari of the property read to be given to the person from whom possession such property, including a vehicle is taken into custody. A suit filed by the petitioner for title of the disputed car was also pending adjudication in the Civil Court which has also issued order for maintenance of status quo. 4. The present petition was opposed on behalf of Respondent No. 1 as well as the State. It was contended that the seized car was in fact, the car numbering RIW-21S whirh was snatched away from Respondent No. 1, butfraudulently its cha^is number and engine number were tempered with. The Chemical Expert, FIA Heart quarters. Islamabad , Vi.iH repnrtpH that the chasis number plate had been t'ounJ cut and welded and thereby the existing chasis number on Car No. RIW-218 was a fake number. It was also contended that the seized car was got examined by he Toyota Motors from whom Respondent No. 1 had originally purchased the same. The Company had certified it to be RIW-218 which was sold to Respondent No. 1. Further, in the record of the registration authority car numbering AJKD-3031 was in - the name of one Amjad Mahmood who had also applied for superdari of the vehicle. The open letter statedly issued by Karam Ellahi, neither proves his ownership nor that of the petitioner. The said vehicle had also been damaged in an accident while according to report of Toyota Motors, the disputed car had not met with any accident. 5. From the divergent claims of the parties, it is clear that the case requires resolution of factual controversies. In the first place, it has to be determined whether the disputed car is actually the car snatched from Respondent No. 1 or it was car numbering AJKD-3031 taken by the police from the possession of the petitioner. In this respect, because of report of expert that its chasis number and engine number were tempered with, further probe will be required to determine the actual chasis and enginenumbers of the car. In this regard, prima facie, the certificate of Toyota Motors that the disputed car was the same vehicle which was sold by them to Respondent No. 1 titles the case in his favour. In view thereof, there seems no legal infirmity in the orders of learned Magistrate, in exercising hisdiscretion is giving superdari of the disputed car to Respondent No. 1. 6. The petitioner mainly asserts his claim for superdari of the car on the principle that it was recovered from his possession. This criteria cannot be considered the only basis for grant of temporary custody of the case property. Such principle if applied strictly in every case, it would even entitleevery thief or holder of stolen property to claim superdari of case property in exclusion to all others, including the real owner thereof. In this respectsupport is drawn from Qaisar Shafeeq Vohra us. The State and another (1991 MLD 2590), wherein it was held that the real owner cannot be deprived of the custody as against a purchaser from the thief and in this respect open transfer letter of a car is not a valid document of title. In Republic Motors Ltd. vs. M. Anwar and others (1980 SCMR 954), the Hon'ble Supreme Court had held that in law, the property should be restored to the party from whom it is taken but under special circumstancesthis rule can be departed from. 7. In the instant case, the title of the disputed car is yet to be determined. In this respect, the petitioner has himself moved the Civil Court for such determination. In view thereof, any interference by this Court in the discretion exercised by the Courts below is not called for as it might prejudice the case of the parties because of the factual controversies involved therein, particularly when there is no legal infirmity in the orders of both the learned Illaqa Magistrate and Additional Sessions Judge. Consequently, theinstant petition is dismissed. (K.K.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 541 Present: DR. MUNIR AHMAD MUGHAL, J. MUKHTAR AHMAD alias MAKHA and another-Petitioners versus STATE-Respondent Criminal Misc. No. 1433-M of 1998, heard on 2.2.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 561-A-Petitioner praying for rectification to the effect that sentences of life imprisonment of petitioners each on two Courts be ordered to be run concurrently and benefit of Section 382-B Cr.P.C. be also made in the interest of justice-Held: Case on all counts is covered by judicial pronouncements of Hon'ble Supreme Court-As such Cr. M. is accepted and sentence of life imprisonment of petitioners each on two counts is directed to run concurrently-Benefit of S. 382-B Cr. P.C. shall also be given to them, as it was an inadvertence that same was not maintained in order-Petitioner praying for rectification to the effect that sentences of life imprisonment of petitioners each oh two counts be ordered to be runconcurrently and benefit of S. 382-B Cr. P.C. be also made in interest of Justice. [Pp. 542 & 545] A & B Mr. Muhammad Ehsan Bhoon, Advocate for Petitioners. Mr. Imtiaz Kaifi, Assistant Advocate General for State. Date of hearing: 2.2.1999. order This order will dispose of Crl. M. No. 1433-M-98 in Crl. Appeal No. 245 of 1994 made under Section 561-A Cr.P.C. praying for rectification to the effect that sentences of life imprisonment of the petitioners each on two counts be ordered to be run concurrently and benefit of Section 382-B Cr. P.C. be also made in the interest of Justice. 2. Admittedly, both the petitioners were sentenced to life imprisonment each on two counts for double murder. They were also ordered to pay fine of Rs. 25,000/- each, in default thereof to undergo further two years R.I. each. They were also ordered to pay Rs. 25,000/- as compensation to the legal heirs of each deceased and in default thereof each of them was ordered to further undergo one year R.I. Benefit of Section 382- B Cr.P.C. was also granted. 3. Both the petitioners preferred a Crl. Appeal No. 245 of 1994before this Court which was decided on 16.7.1998 and the two Criminal Revision No. 457 of 1994 and Criminal Revision No. 11-A of 1995 filed by the State and the complainant were also dismissed by this Court. 4. The judgment of the trial Court was silent whether the sentences were to run concurrently or consecutively so the jail authority treated thesame to run consecutively. Even in the judgment passed by this Court on 16.7.1998 there was no mention of the benefit of Section 382-B Cr. P.C. which was granted by the trial Court and similarly there was no mention of the sentence as to whether it will run concurrently or consecutively. "" 5. Notice in Crl. M. No. 1433-M/98 was given to the State and alsoto the complainant. The learned State counsel has appeared and arguments have been heard on both the sides. 6. Learned counsel for the petitioners has submitted that it is a settled principle of law that in case of a consecutive sentence the aggregate punishment cannot be in excess of the punishment which any Court is competent to inflict on conviction of a single offence but in the instant case if the sentences are not ordered to be run concurrently it would be in excess ofthe punishment which is provided for the offence committed. He has placed reliance on 1985 SCMR 153, 1986 SCMR 1573, 1986 SCMR 1627 and 1987 SCMR 1382. It is further stated that benefit of Section 382-B Cr. P.C. was granted by the trial Court regarding which nothing has been mentioned in the appellate Judgment and that the same be rectified. 8. Learned counsel for the State on the other hand submitted that as the judgment has been passed in appeal the rectification cannot be ordered. 9. I have given due consideration to the valuable arguments on boththe sides. 10. Section 35 of the Criminal Procedure Code, 1898 (V of 1898) is relevant for the disposal of this Crl. Miscellaneous which is reproduced for ready reference :35. Sentence in case of conviction of several offences at one trial.--(I) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Pakistan Penal Code sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishment when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. (2) Maximum term of Punishment.-In the case of consecutive sentences, it shall not be necessary for the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, tosend the offender for trial before a higher Court :- Provided as follows :-- in no case shall such person be sentenced toimprisonment for a longer period than 14 years if the case is tried by a Magistrate the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary jurisdiction, competent to inflict. (3) For the purpose of appeal aggregate of consecutive sentences passed under this Section in case of conviction for several offences at one trial shall be deemed tobe a single sentence." 11. The Hon'ble Supreme Court in case of Javed Shaikh vs. TheState (1985 SCMR 153) observed with respect to the above provision as under :-- "Life imprisonment is, according to Section 57 of the P.P.C., to be reckoned as equivalent to 25 years' R.I. This is one of the punishments which can be imposed on an offender, on account of the substitution of the puactiment for transportation for life-which was one of the punishments that could be imposed on an offender under Section 53 of the P.P.C. and was reckoned as equivalent to fourteen years before its amendment by the Law Reforms Ordinance, 1972. No objection can, therefore, be taken to the imposition of the sentence of life imprisonment, after the promulgation of the Law Reforms Ordinance, 1972. However, the question is whether the appellant can also be sentenced to undergo further sentence of seven years under Section 307 P.P.C. for his having attempted to murder Manzoor Hussain, P.W. 5. A perusal of proviso (a) to subsection (2) of Section 35, Cr.P.C. indicates that it prohibits the giving of consecutive sentence in one trial beyond the period of fourteen years, the maximum sentence, short of the death sentence which could be imposed on an offender before the promulgation of the Law Reforms Ordinance, 1972. The saidprovision of Section 35 Cr. P.C. appears to be in consonance with the scheme and intendment of the Pakistan Penal Code that an offender should only suffer the maximum sentence of imprisonment for any heinous crime (as it stood until 1972) which should not exceed fourteen years. Therefore, the imposition of the sentence of life imprisonment (which means 25 years' R.I.) plus seven years' R.I. under Section 307 P.P.C. would be inconsistent with the intendment of theprovisions of proviso (a) to sub-section (2) of Section 35 Cr.P.C. inasmuch as the maximum punishment prescribed for heinous offences shall be exceeded. The difficulty in this case be overcome if the sentences awarded to the appellant in respect of the two convictions under Section 302 P.P.C. and under Section 307 P.P.C. in one and the same rial are directed to run concurrently instead of running consecutively. This appeal succeeds to the extent that the sentence of life imprisonment imposed upon the appellant under Section 302 P.P.C. and the sentence of seven years' rigorous imprisonment awarded to him under Section 307 P.P.C. are ordered to run concurrently and not consecutively." 12. In the case of Juma Khan and another vs. The State (1986 SCMR 1573) where two persons were tried for the double murder and were sentenced to death, on each count, by the learned trial Judge and on the appeal, the High Court maintained their conviction out reduced the sentence of death to imprisonment for life on each count. However, it was not specified whether the sentence of life imprisonment would run consecutively or concurrently. The petitioners preferred leave to appeal to the Hon'ble Supreme Court of Pakistan but the same was dismissed and the order of theHigh Court was maintained. Nothing was said in this judgment either about whether the sentences were to run consecutively or concurrently. Thereafter, the petitioners were informed by the jail authorities that they would have to undergo the life imprisonment twice i.e. for the terms of 25 years each. The petitioners moved a petition before the Lahore High Court under Section 561-A Cr.P.C. for a clarification to the effect that the sentence imposed upon them were to run concurrently but the same was dismissed with the observation that it would amount to reviewing the High Court judgment which has already been upheld by the Hon'ble Supreme Court and the proper course for the petitioners was to move the Hon'ble Supreme Court for that objection. The petitioners then filed an application under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980 for passing an appropriate order in regard to the nature of the sentence passed in the case. The Hon'ble Supreme Court accepted the prayer of the petitioners and clarified that the sentences of imprisonment for life on each count imposed upon them under Section 302 P.P.C. to run concurrently and not consecutively. 13. Similarly, in the case of Muhammad Ittefaq Vs. The State (1986 SCMR 1627) and in the case of Khan Zaman and others Vs. The State (1987 SCMR 1382) reliance was placed on the case of Javed Shaikh Vs. The State (1985 SCMR 153) and direction was issued by the Hon'ble Supreme Courtthat all sentences of imprisonment should run concurrently. 14. The present case on all counts is covered by the above judicial pronouncements of the Hon'ble Supreme Court. As such Cr. M. No. 1433- M/98 is also accepted and the sentence of life imprisonment of the petitioners each on two counts is directed to run concurrently. The benefit ofSection 382-B Cr. P.C. shall also be given to them, as it was an inadvertence that the same was not maintained in the order. (K.K.F.) Orders accordingly.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 545 Present: raja muhammad khurshid, J. MUHAMMAD HAYAT and another-Petitioners versus STATE-Respondent Criminal Misc. No. 718-B of 1999, heard on 22.2.1999. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Bail--Prayer for--Principle of Consistency-Offence under Section 320/34 PPC--One of assailants namely U having similar role in occurrence to that of petitioner M who has been admitted to bail by learned trial Court--In that situation, principle of consistency will demand that petitioner be also admitted to bail-As far as, F etitioner is concerned, he has given only fatal blow on head of deceased and as such eing principal accused would have no ase or bail at this stage-Petition to extent of F petitioner is, therefore, dismissed. [P. 547] A h. Ghulam Hussain, Advocate for etitioners. Mr. Muhammad Yaqoob Qureshi, Advocate for State, assisted by Ch. Haider Bakhsh, Advocate for omplainant. Date of hearing: 22.2.1999. order A case under Sections 302/34 PPC is registered against the petitioners and one Umar Hayat for the murder of Ghulam Muhammad at the report of his father Muhammad Ali vide FIR No. 281 dated 20.8.1997. According to the FIR, the deceased was sleeping in the house that at about 12 : OO'O Clock in the night, Muhammad Hayat and Umar Hayat empty handed while Fayyaz petitioner armed with a 'Mungali' entered his house. The aforesaid Muhammad Hayat and Umar Hayat over powered the deceased, whereas, Fayyaz Petitioner gave a 'Mungali' blow on his head which resulted into his death. The FIR was registered at P.S. Jhaal Chakkian, District Sargodha during the same night at 2:30 a.m. The motive about the occurrence was stated that Muhammad Hayat petitioner had taken 2 Kanals of land of the deceased under illegal occupation. The deceased allegedly asked for return of the possession of the aforesaid land which infuriated the petitioner, who with his co-accused in furtherance of their common intention killed him. 2. Learned counsel for the petitioners has submitted that Umar Hayat one of the accused who had over-powered the deceased alongwith Muhammad Hayat has been admitted to bail on the ground that he was found innocent during the police investigation Secondly, it is contended that the last investigation was conducted by Muhammad Akram, DSP Sillanwali who came to the conclusion that the occurrence had taken place during the night and remained to be unwitnessed. According to him also, the case of the prosecution appeared to be doubtful but ultimately, he recommended that the petitioners Muhammad Hayat and Fayyaz be challaned and left to the judicial verdict of the Court. Lastly, it was submitted that the weapon of offence was never recovered at the instance of Fayyaz petitioner and that the same was produced by the complainant before the police and as such, there was no corroborating evidence to link him with the occurrence. As far as Muhammad Hayat petitioner is concerned, he being empty handed, his case was not distinguishable from that of Umar Hayat, his co-accused who has been admitted to bail by the learned trial Court. It was, therefore, submitted that it was a case of further enquiry and that no body had seen the occurrence as admittedly, the deceased was done to death during the night. 3. Learned state counsel assisted hy learned counsel for the complainant has, however, opposed the hail application on he ground that both the petitioners are named'in the FIR and a specific role has been assigned to each of them in killing the eceased. The motive is allegedly attributed to one of them i.e. Muhammad Hayat and as such, through he was shown empty anded uring the occurrence but was not entitled to bail at this stage. Lastly, it was contended that the investigation conducted by the DSP iaalanwali was merely an ipse dixit of police and was not liable to be taken into account at this stage particularly when the DSP forementioned ad not conducted and fresh investigation but had relied upon the investigation, already conducted in the case. In the aforesaid situation, learned counsel for the petitioners has submitted that the DSP had conducted the investigation ndependently of the previous investigation as he had examined a number of witnesses before coming to the conclusion. I have onsidered the foregoing submissions and find that one of the assailants namely Umar Hayat having similar role in the occurrence o that of the petitioner Muhammad Hayat, has been admitted to bail by the learned trial Court. In that situation, the principle of onsistency will demand that Muhammad Hayat petitioner be also admitted to bail. Hence ,the petition to his extent is allowed and e s admitted to bail in the sum of Rs. 50,000/- with two sureties each in the like amount each to the satisfaction of the trial ourt. 56. As far as, Fayyaz petitioner is concerned, he has given the only fatal blow on the head of the deceased and as such being the principal accused would have no case for bail at this stage. The petition to the extent of Fayyaz petitioner is, therefore, dismissed. (K.K.F.) Orders accordingly.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 547 Present: RAJA MUHAMMAD KHURSHID, J. MUHAMMAD ABDULLAH-Petitioner versus STATE-Respondent Criminal Misc. No. 346-B of 1999, heard on 22.2.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Bail~Prayer for--Zina-6J/-Ja&r-Offence of-Allegation against petitioner is that he subjected to Zina-bil-jar his ownsister-in-law i.e. complainant who was hardly about 16 or 17 years of age and student of 10th class-Not only that, but he ontinued raping her for continuously 18 days after locking her in a room ith her sister-Since 'Nikah' acclaimed has been found o be bogus during police investigation, therefore, ima facie, petitioner has no case for bail at this stage-Petition is accordingly dismissed. [P. 549] A Ch. nzoor Hussain, Basra , Advocate for Petitioner. Mr. Ashtar Abbas, Advocate for the State, assisted by r. Ijaz -" Ahmad Chaudhry, Advocate for mplainant. Date of hearing: 22.2.1999. order case under Section 10 of the Offence of Zina Enforcement f Hudood) Ordinance 1979 read with Section 343 PPC is registered against the petitioner at P.S. undianwala, District Faisalabad on the ground that he committed Zina-bil-Jabar with his sister-in-law st. hahida while she was taken to this house on the pretext that her sister i.e. wife of the presentpetitioner s ll. According to the FIR, she was taken by the petitioner to is house on the pretext that his wife Mst. irdous was ill. However, on reaching home at about 12:00 in the night on 5.5.1998, the petitioner took the ictim Mst. Shahida to a nearby room alongwith his wife Mst. Firdous.The latter was tied on a cot with he tring and after holding out a pistol, he _ committed zina-bil-jabr with aforesaid st. Shahida. He also got executed t two stamp papers from Mst. Firdous on istol point and after locking thedoor from outside went out. For about 18 days, the petitioner had been persistently subjecting the victim to zina-bil-jabr. On 21.5.1998, another sister of the victim Mst. ukhsana Bibi came to the house of the petitioner to enquire about the complainant and her sister but in her resence also, the victim was subjected to zina-bil-jabr bythe petitioner. Anyhow all the three sisters naged to escape on 22.5.1998 and reachedtheirmother'shouse. 2. Learned counsel for the petitioner has submitted that though the ccurrence had taken place on 5.5.1998 and all the three sisters including the omplainant Mst. Shahida had escaped from the house of the petitioner and had reached their mother's house on 22.5.1998 but the FIR was lodged on 10.6.1998 with the delay of about three weeks. It was, therefore, ontendedthat the case has been concocted to trap the petitioner falsely. It was further contended that sister of the omplainant namely Mst. Firdous was married ith the petitioner but she obtained divorce from him and thereafter, Mst. hahida married with the petitioner on 5.5.1998 vide 'Nikah' deed E (Annexure 'A') It was, therefore, contended hat a false story was concocted to involve the petitioner as in fact there was some dispute regarding custody of some hild. It was accordingly prayed that the petitioner be admitted to bail as there is a 'Nikah' between the petitioner and the omplainant. _ 3. Learned counsel for the state, assisted by learned counsel for thecomplainant contended that delay in the egistration of case is not material because the police did not register the case except when the wife of the petitioner namely Mst. Firdous had filed Writ Petition o. 10225/98 upon which an order was made on 5.6.1998 directing the police concerned to register the case. In was in pursuance of the order of the High Court that the case was registered and as such, the delay in lodging the FIR would not effect the merits of the case. It was further contended that during the investigation, it was found that the 'Nikah' relied upon by the petitioner was bogus one and was prepared as a result of foregery for which offence under Section 420/467/468/471 PPC were added by the last Investigating Officer i.e. DSP; that the challan has already been sent to the Court after completion of investigation in which the petitioner was found guilty. 3. I have considered the foregoing submissions and find that the allegation against the petitioner is that he subjected to Zina-bil-jar his own sister-in-law Mst. Shahida i.e. the complainant who was hardly about 16 or 17 years of age and student of 10th Class. Not only that, but he continued raping her for continuously 18 days after locking her in a room with her sister. Since the 'Nikah' acclaimed has been found to be bogus during the police investigation, therefore, prima facie, the petitioner has no case for bail at this stage. The petition is accordingly dismissed. (K.K.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 549 Present: raja muhammad khurshid, J. MUHAMMAD SHAHBAZ-Petitioner versus STATE-Respondent Criminal Misc. No. 6751-B of 1998, heard on 17.2.1999. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Bail~Prayer for--0ffence Under Section 381-A-Petitioner, who is unning a workshop for repairing motor-cycles is involved in 3 cases of imilar nature in which petitioner and one other were involved for tealing motor-cycles~It therefore, appears that petitioner and his coccused were working as a gang for stealing motor-cycles on different ccasions and as such being habitual offender should not be released on ail for time being in public interest-This petition is accordingly dismissed. [P. 51] A & B Mian Shah Abbas Iqbal, Advocate for Petitioner. Mr. Mumtaz Hussain, Advocate for State with Munir hmad, SI and Muhammad Anwar ASI. Date of hearing: 17.2.1999. order A case under Section 381-A PPG is registered against the petitioner on the ground that a stolen motor-cycle was recovered at his instance. 2. The learned counsel for the petitioner has submitted that investigation in this case was conducted by Munir Ahmad, SI, CIA, Gulberg, Lahore was not competent to conduct the same in violation of the principle laid down in State through dvocate-eneral, Sindh Vs. Bashir and others reported as PLD 1997 Supreme Court 408. As such it was alleged thatinvestigation in this ase is void ab initio. 3. Secondly it was contended that recovery was not evidenced by independent persons as such it was effected in iolation f the provisions contained in Section 103 Cr. P.C. 4. Lastly it was contended that provisions of Section 381-A PPC were not attracted to the facts of this case as the same ould fall within the ambit of Section 411 PPC, which offence is not within the prohibitory clause, and that the mere fact that the titioner is involved in a number of such cases should not be sufficient to deprive him of his right of bail. Reliance was placed on uhammad Mumtaz and 2 others vs. The State reported as 1996 SCMR 512 (Supreme Court of Pakistan). 5. Bail was opposed on the ground that the instant case was registered at the report of the owner of the stolen mother-ycle namely Muhammad Ramzan at Police Station, Misri Shah, Lahore which was, thereafter, sent for investigation to the CIA, lberg, Lahore with the order of Competent Authority i.e. SSP, Lahore vide his order dated 9.9.1998. As such it was contended hat he principle laid down in PLD 1997 Supreme Court 408 was not attracted to the facts of the instant case. Secondly it was contended that there are a number of cases against the petitioner in which he has been involved for committing similarly type f ccurrences, such as stealing of motor-cycles. It was contended that the principle laid down in 1996 SCMR 512 was not applicable o the facts of this case as during a short span of period atieast 4 occurrences of similar nature were committed by the petitioner. 4. I have considered the foregoing fact and find that the present case vjas registered at the report of the owner of the tolen motor-cycle namely Muhammad Ramzan and was later on sent for investigation to the CIA, Gulberg, Lahore by the mpetent uthority as pointed out above. As such investigation in this case was not defective nor it contravened the principle laid down in LD 997 Supreme Court 408 as even according to that authority the transfer of investigation to CIA could be made by the Competent Authority and in the instant case the same was done by the SSP, Lahore, who was un-disputedly competent to ransfer such investigation. Likewise the mere fact that recovery was effected in presence of police employees would not become orthless at bail stage. Needless to say that police employees are also competent witnesses under the law if they have evidenced the recovery. Their credibility like other witnesses can be evaluated at the time of trial. The sequence of the present occurrence would show that the petitioner, who is running a workshop for repairing motor­cycles is involved in 3 cases of similar nature vide FIR No. 292 dated 19.8.1998 registered at Police Station, Misri Shah, Lahore, FIR No. 349 dated 2.9.1998 and FIR No. 355 dated 10.9.1998 both registered at Police Station, Shad Bagh, Lahore in which the petitioner and one other were involved for stealing motor-cycles. It therefore, appears that the petitioner and his co-accused were working as a gang for stealing motor-cycles on different occasions and as such being habitual offender should not be released on bail for the time being in the public interest. This petition is accordingly dismissed. (K.K.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 551 Present: 0 MUHAMMAD NASEEM CHAUDHRI, J. MAHMOOD AHMAD-Petitioner versus STATE-Respondent Criminal Misc. No. 586-B of 1999, heard on 19.2.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497~Bail-Prayer for-Offence u/Ss. 381, 411 PPC-Bail application has to be disposed of within framework of S. 497 of Code of Criminal Procedure-There is nothing on record to project as to how learned lower Courts ignored provisions of sub-section (1) of S. 497 of Code of Criminal Procedure according to which an accused of an offence not falling within prohibitory clause is entitled to discretion of Court for purpose of his admission to bail-Working of learned Additional Sessions Judge ignoring statutory law and rulings of superior Courts in such like cases, which should be within his knowledge, cannot be approved—Law has to take it course and Courts have to keep in mind shape of scale of justice whiledisposing of bail applications-Petitioner is entitled to be admitted to bail than to be retained in jail-Application accepted and petitioner to admitted bail in sum of Rs. 5,000/- (Rupees Five Thousand only) with one surety in like amount to satisfaction of learned Illaqa Magistrate with direction to appear before learned trial Court on every date of hearing failing which learned trial Court may cancel his bail. [P. 553] A Syed Zafar Abbas Gillani, Advocate for Petitioner. Miss. Rukhsana Tabassam, Advocate for State. Date of hearing: 19.2.1999 judgment Amirzada Security Officer Zembis Knitwear Factory Raiwind Road, Lahore appeared before Nazakat Ali ASI Police Station Chung while he was on 'gasht' of the area and submitted the written complaint to the effect that Mahmood Ahmad petitioner-accused came to water-tape to fetch the water who threw some garments which he had stolen from the factory. He apprehend Mahmood Ahmad and took into his possession the garments. At the time of the submission of the complaint he produced Mahmood Ahmad alongwith nine garments before Nazakat Ali ASI. The garments were taken into possession vide memo attested by Sardar Ali and Laiq Shah Security Guards of the factory. Formal FIR No. 9 dated 9.1.1999 was registered at Police Station Chung under Section 381/411 Pakistan Penal Code. 2. Mahmood Ahmad was arrested whose bail plea has been rejected by the learned Area Magistrate as well as by Mr. Khalid Rashid, Additional Sessions Judge Lahore. He has filed this petition before this Court with the same desire. 3. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. Relying on the ruling published as Abdul Haye Siddiqui and two others Versus The State (1993 P. Cr. LJ 446 Karachi) and the command of the Supreme Court of Pakistan published as Tariq Bashir and five others Versus The State (PLD 1995 Supreme Court 34) learned counsel for the petitioner laid the emphasis that the offences under Section 381/411 Pakistan Penal Code do not fall within the prohibitory clause and that the petitioner is entitled to be admitted to bail especially when the recovery was effected before the registration of the FIR, the investigation stands concluded and the petitioner is in the judicial lock up. On the contrary learned State counsel argued that the petitioner is involved in a case of theft which is non-bailable and for that reason he is not entitled to be admitted to bail. I would express that the reasoning adopted by the learned counsel for Mahmood Ahmad petitionerhas to prevail. On my query Nazakat Ali ASI intimated that no case of the instant nature stands registered or is pending against Mahmood Ahmad petitioner-accused. I would express that a bail application has to be disposed of within the framework of Section 497 of the Code of Criminal Procedure and that the subordinate courts are bound to follow the dictum enunciated by the Supreme Court. Keeping in view the maximum punishment of three years under Section 411 Pakistan Penal Code and the maximum punishment of seven years under Section 379 Pakistan Penal Code, it can safely be held that the offences for which Mahmood Ahmad petitioner has been booked do not fall within the prohibitory clause. No other criminal case has been registered against the petitioner. The alleged recovery of the stolen garments was effected before the registration of the FIR by the compiaaiant who is the security guard and sometimes such matters are reported to the police to put the pressure upon the labour working in the factory. The investigation has been completed and the petitioner is in the judicial look-up. Keeping in view the aforesaid aspects I have to express that the dictum enunciated in the ruling, PLD 1995 Supreme Court 34, has to be followed by all the subordinate Courts. It is proper to express that it is specifically held by the Supreme Court in the aforesaid ruling that the bail will be declined only in extra-ordinary cases which do not fall within the prohibitory clause of the following nature :-- (a) Where there is likelihood of abscondence of the accused; (b) Where there is apprehension of the accused tampering with the prosecution evidence; (c) Where there is danger of the offence being repeated if the accused is released on bail; and (d) Where the accused is a previous convict. 4. No circumstances of the aforesaid nature has been brought to the notice of this Court by the learned State counsel. In the aforesaid ruling ofthe Supreme Court and in Abdul Haye Siddiqui and 2 others vs. The State (1993 P. Cr. LJ 446) it has specifically been held that the grant of bail in acase where the offence does not fall within the prohibitory clause is a rule while its refusal, an exception. It is simply surprising that Mr. Khalid Rashid, Additional Sessions Judge referred to the aforesaid ruling, PLD 1995 Supreme Court 34, and did not follow the same which in the circumstancesof the matter is clearly attracted thereto. It can safely be held that the ordersabout the refusal of bail passed by both the learned lower Courts are devoid of judicial propriety. 5. It would be instructive to express that a bail application has to be disposed of within the framework of Section 497 of the Code of Criminal Procedure. There is nothing on record to project as to how the learned lower Courts ignored the provisions of sub-section (1) of Section 497 of the Code of Criminal Procedure according to which an accused of an offence not falling within the prohibitory clause is entitled to the discretion of the Court for the purpose of his admission to bail. The working of the learned Additional Sessions Judge ignoring the statutory law and rulings of the superior Courts in such like cases, which should be within his knowledge, cannot be approved. The law has to take it course and the courts have to keep in mind the shape of scale of justice while disposing of the bail applications. 56. For what has been said above, I hold that Mahmood Ahmad petitioner is entitled to be admitted to bail than to be retained in jail. 1. I, therefore, accept this application and admit Mahmood Ahmad petitioner to bail in the sum of Rs. 5,000/- (Rupees Five Thousand only) with one surety in the like amount to the satisfaction of learned Illaqa Magistrate with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. 8. This order shall he got executed by the petitioner within a period of fifteen (15) days failing which the same shall become infructuous and Mahmood Ahmad petitioner shall be liable to be arrested. (K.K.F.) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 554 Present: raja MUHAMMAD KHURSHID, J. MUHAMMAD AKHTAR HUSSAIN alias AKHTARI and others-Petitioners Versus STATE-Respondent Criminal Misc. No. 280-B of 1999, heard on 15.1.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 498-Bail before arrest-Petitioners while armed with pistols, entered house of complainant at dead hours of night and made an attempt to forcibly taken away daughter of complainant-Brothers of victim tried to intervene, whereupon, out of them one M was shot dead-Held: Petitioners, therefore, prima-facie appear to have acted desperately and heartlessly-Mere fact that they had tendered affidavits before Court of learned Addl. Sessions Judge during hearing of pre-arrest bail would in no way create any extenating circumstances at bail stage particularly when none of heirs had personally appeared before Court to affirms that a genuine compromise had taken place-Even learned Addl. Sessions Judge doubted bona-fide of compromise as petitioners were declared Proclaimed Offenders and were also desperate and influential persons qua complainant party-In such a situation, learned Addl. Sessions Judgewas justified to take view that petitioners have had no case for pre-arrest bail-No exception can be taken to order passed by learned Addl. Sessions Judge nor there seems to be any good ground or extenuating circumstance for admitting petitioners to pre-arrest bail by High Court- Petition is accordingly dismissed in limine-Since petitioners are shown to be absconders, therefore, they be taken into custody. [P. 556] A Petitioner in person with Ch. Muhammad Hussain Naqshbandi, Advocate. Date of hearing: 15.1.1999. order A case under Section 302/34 PPC is registered against the petitioners vide FIR No. 630/98 dated 20.9.1998 at P.S. Phool Nagar, District Kasur on the report of Mehanga son of Muhammad Eisa. It was contended in the report that all the petitioners while armed with .30 bore pistol each, knocked at the door of house of the complainant at about 1 :00 a.m. in the night. One of the sons of the complainant namely Zulfiqar Ahmad opened the door, whereupon all the three petitioners forcibly entered the house and went to the 'Chobara' where the complainant and his family members were asleep. The petitioner namely Muhammad Jamil alias Jeela and his copetitioners made an effort to forcibly take away the daughter of the complainant namely Shabana. They also shouted that if any body tired to intervence, he shall be shot dead. The brothers of the aforesaid Shabana and sons of the complainant namely Zulfiqar Ahmad and Maqsood Ahmed tried to intervene in order to save their sister, whereupon, one of the intruders namely Muhammad Jamil alias Jeela fired with his pistol at one out of them i.e. Maqsoob Ahmad. The fire injury proved fatal. 2. The petitioners applied for pre-arrest bail in which it was contended that the heirs of the deceased had forgiven them for which they placed on record the affidavits of parents of the deceased. The learned Addl. Sessions Judge while dismissing the bail before arrest moved by the petitioners vide his order dated 7.1.1999 made an observation that challan against all the petitioners had been prepared under Sections 512 Cr.P.C. showing the petitioners as Proclaimed Offenders. The weapons of offence were yet to be recovered and that the petitioners being influential persons and the complainant being a potter (Kumhar), the free consent of the complainant i.e. above said heirs was also considered to be doubtful. 3. After the dismissal of the petition for pre-arrest bail by the learned Addl. Sessions Judge, the petitioners have moved this application on the same grounds. It is contended that the mere fact that the petitioners had been declared Proclaimed Offenders would not dis-entitie them to pre-arrestbail. However, it does not appear to be a sound contention. A fugitive from law cannot ask for extraordinary relies. It was further contended that the affidavits sworn and tendered before the Court of the learned Addl. Sessions Judge were good enough for admitting the petitioners to pre-arrest bail and since the learned Addl. Sessions Judge failed to exercise that power in favour of the petitioners, therefore, the impugned order was bad in the eyes of law. Reliance was placed on PLD 1989 Karachi 281 Jagan and others vs. The State. 4. Lastly, it was contended by the learned counsel for the petitioners that since parents of the deceased have forgiven the petitioners, therefore, they are entitled to pre-arrest bail as there would be no evidence calling for consideration even if the trial is held. 5. I have taken into consideration the foregoing facts and find that the petitioners while armed with pistols, as aforesaid, entered the house of the complainant at the dead hours of the night and made an attempt to forcibly take away the daughter of the complainant. The brothers of the victim tried to intervene, whereupon, out of them one Maqsood Ahmad was shot dead. The petitioners, therefore, prima-facie appear to have acted desperately and heartlessly. The mere fact that they had tendered affidavits before the Court of learned Addl. Sessions Judge during the hearing of the pre-arrest bail would in no way create any extenuating circumstance at this stage particularly when none of heirs had personally appeared before the Court to affirms that a genuine compromise had take place. Even the learned Addl. Sessions Judge doubted the bona-ftde of the compromise as the petitioners were declared Proclaimed Offenders and were also desperate and influential persons qua the complainant part}'. In such a situation, thelearned Addl. Sessions Judge was justified to take the view that the petitioners had no case for pre-arrest bail. No exception can be taken to theorder passed by the learned Addl. Sessions Judge nor there seems to be any good ground or extenuating circumstance for admitting the petitioners to pre-arrest bail by this Court. 6. The petition is accordingly dismissed in limine. Since the petitioners are shown to be absconders, therefore, they may be taken into custody. C.M. No. 1/99. 7. Disposed of with the disposal of the main petition. (K.K.F.) Petition dismissed

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 556 (DB) Present: mian muhammad najum-uz-zaman and asif saeed khan khosa, JJ. SHER MUHAMMAD-Appellant versus STATE-Respondent Crl. Appeal No. 19 of 1996 and M.R. No. 8 of 1996, heard on 26.1.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/324/34-Murder--Offence of-Conviction for-Challenge to~Eye witnesses produced by prosecution had failed to receive material corroboration from any independent source-It was admitted by complainant himself that there was no previous background of enmity, ill-will or bitterness between parties-It had also come on record that a sister of appellant was married to a brother of S deceased-Thus, there as absolutely no reason why appellant would be propelled into aggression of this nature against S deceased or even against N deceased-­ Even immediate motive, Le. an altercation over sprinkling of water by appellant in street, had not been proved by prosecution through any independent evidence-Recovery is legally inconsequential-It was admitted by Investigating Officer that no crime-empty had been recovered from place of occurrence after incident-Same evidence has already been held by learned trial court to be unreliable qua N accused who has since been acquitted-State as well as complainant has not challenged acquittal of N accused-It was a day-light occurrence and a case of double murder-However, court is equally alive to this reality that false implication of innocent persons or planting of false witnesses against actual murderers is not a malady referable exclusively to night-time occurrences or single murders-Court is also of the considered opinion that whenever genuine and serious doubts arise qua prosecution's evidence against accused persons benefit of such doubts must go to accused persons irrespective of time of occurrence or number of victims-Rising or setting of sun or plurality of victims has hardly any relevance to standard of proof required in a criminal case-Held : Prosecution had failed to prove its case against appellant beyond reasonable doubt and, therefore, extending benefit of doubt to appellant, appeal is allowed. [Pp. 562 & 563] A to E Ch. Muhammad Yaqub Kung, Advocate for Appellant. Mehr Muhammad Saleem Akhtar, Advocate for Respondent. Date of hearing: 26.1.1999. judgment Asif Saeed Khan Khosa, J.--Sher Muhammad appellant was convicted by the learned Additional Sessions Judge, Sahiwal vide judgment dated 23.11.1995 on two counts of an offence under Sections 302(b), P.P.C. 'and was sentenced to death on both the counts. He has challenged his convictions and sentences before this Court through Criminal Appeal No. 19 of 1996. We have heard the convict's appeal alongwith Murder Reference No. 8 of 1996 seeking confirmation of the sentences of death passed against him. We propose to decide both these matters together through the present consolidated judgment. 2. The prosecution story narrated in the F.I.R. was that Nazir Ahmad complainant and his elder brother Naubahar were residents of the same house in village Baghela situated about 9 kilometers towards the West of Police Station Harrapa, District Sahiwal. At about 5.30 p.m. on 9.7.1993 Sher Muhammad appellant had sprinkled water in the street and had made the street muddy. The complainant's brother Naubahar forbade him from sprinkling water in the street which led to an exchange of abuses between them. In the meanwhile Hqji Sadan also came there and in support of Naubahar he also strictly forbade the appcllani from sprinkling water in the street. Threatening the two of them the appellant went to his house and after a little while emerged therefrom armed with a double barrel .12 bore gun alongwith his brother Nawab who was carrying a single barrel .12 bore gun. Sher Muhammad appellant fired his first shot a Naubahar who fell down after getting injured. The second shot was fired by the appellant at Hqji Sadan who also fell down after being hit. One Shahamanad, who was standing dose to Hqji Sadan at that time, also got injured when stray pellets of the appellant's fire at Hqji Sadan hit him. The complainant's brother Naubahar and Hqji Sadan succumbed to their injuries at the spot. During that incident Nawab accused also indulged in firing in the air. Apart from Nazir Ahmad complainant the incident had been witnessed by Nazir Ahmad son of Haq Nawaz and Shaukat Ali PWs. 3. Leaving the deadbodies of his brother Naubahar and Haji Sadan at the place of occurrence in the case of Nazir Ahmad and Nausher PWs Nazir Ahmad complainant went to Police Station Harrapa, District Sahiwal and lodged F.I.R. No. 160 in that regard at 6.45 p.m. in the same evening. The F.I.R. was recorded by Muhammad Alam, Inspector (PW-9) for offences under Section 302/324/34, P.P.C. 4. After recording the F.I.R. Muhammad Alam, Inspector (PW-9)took up the investigation of his case, proceeded to the place of occurrence, prepared injury statements and inquest reports qua the two deadbodies, collected blood-stained earth from two places of murder, inspected the spot and prepared a rough site-plan of the place of occurrence and then sent the deadbodies to the mortuary for autopsy. 5. The post-mortem examination of the deadbody of Naubahar was conducted by Dr. Salamat Ali Chaudhry (PW 11) at 8.00 A.M. on 10.7.1993. He had found 3 injuries on the deadbody which were all ante-mortem and caused by firearm. Injury No. 2 was declared to be dangerous and fatal. The cause of death, in his opinion, was Injuries No. 1 & 2 which were individually and collectively sufficient to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was stated by the doctor to be immediate while the duration between the death and post-mortem examination was opined by the doctor to be 14 hours. 6. On the same day the same doctor had conducted the psot-mortem examination of the deadbody of Haji Sadan at about 10.00 a.m. He had found 3 injuries on the deabdody which were all ante-mortem and caused by firearm. Injury No. 2 was declared to be dangerous to life. The cause of death, in his opinion, was Injury No. 2 which was sufficient to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was stated by the doctor to be immediate while the duration between the death and post-mortem examination was opined by the doctor to be 16/17 hours. 7. The same doctor had earlier on medically examined Shahamand PW on 9.7.1993. He had found 4 injuries on his person which had all been caused by firearm within a duration of 3 to 5 hours. The injuries had been kept under observation. 8. After the post-mortem examinations of the two deadbodies Muhammad Alam, Inspector (PW 9), the Investigating Officer, took into possession the blood-stained last-worn clothes of the two deceased. He then got a site-plan of the place of occurrence prepared by a draftsman. Subsequently he arrested the appellant on 23.7.1993 and on 28.7.1993 recovered a double barrel gun alongwith its licence and a bandoleer containing 12 live cartridges from him appellant. Thereafter he completed the other formalities, finalized his investigation and submitted a Challan in respect of this case. 9. At the commencement of the trial the learned trial Court framed a Charge with three heads under Sections 302/34 & 324/34, P.P.C. against the appellant and his co-accused Nawab to which they pleaded not guilty andclaimed a trial. 10. During the trial the prosecution produced as many as twelvewitnesses in support of its case against the appellant and his co-accused. Nazir Ahmad complainant (PW-1) and Shahamand (PW-2) furnished the ocular account of the incident. Both of them also deposed about the immediate motive for the offences in question. Dr. Salamat Ali Chaudhry (PW-11) provided the medical evidence. Muhammad Latif (PW-10) deposed about the recovery of gun affected from the appellant. Muhammad Alam, Inspector (PW-9) and Ahmad Latif, Additional S.P. (PW-12) stated about various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. 11. In their statements recorded under Section 342, Cr.P.C. the appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence.While answering a question as to why they had been implicated in this case and as to why the prosecution witnesses had deposed against them the appellant and his co-accused had stated in unsion that:"It is a false case against me. The PWs are inimical towards me and as such they deposed against me falsely." However, the appellant and his co-accused opted not to make any statement on oath under Section 340(2), Cr.P.C. They also did not produce any witness in their defence. 12. At the conclusion of the trial the learned Additional Sessions Judge, Sahiwal convicted and sentenced the appellant as noticed and detailed above but acquitted the appellant's co-accused Nawab of all thecharge against him. The appellant was also acquitted of the charge under Section 324/34, P.P.C. for causing injuries to Shahamand PW. Hence, the present appeal and the connected Murder Reference before this Court. 13. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have also gone through the record of this case with their assistance. 14. The learned counsel for the appellant has argued that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. According to him the witnesses produced by the prosecution did not inspire confidence and they had also failed to find material corroboration from any independent source. As against that the learned counsel for the State has argued that the prosecution had successfully proved the guilt of the appellant to the hilt through convincing, cogent and reliable evidence. He has also maintained that the appellant did not deserve any concession in the matter of sentence. 15. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had failed to prove its case against the appellant beyond reasonable doubt.The ocular account of the incident in question had been furnished by Nazir Ahmad complainant (PW-1) and Shahamand (PW-2). Both of them have failed to inspire our confidence. Nazir Ahmad complainant (PW-l)'s claim for presence at the place of occurrence at the relevant time was based upon his assertion that he lived with his brother Naubahar deceased in the same house which was situated just 10/12 karams away from the place of , occurrence. An impression was created by him that he and his deceased brother lived in the same street with the appellant and, thus, sprinkling of water in the street by the appellant and thereby making the street muddy by him had caused annoyance to them. This impression about their proximityof living somewhere near the house of the appellant or at least in that very street is clearly dispelled by the site-plan (Exh-PD) which does not show the house of the complainant or Naubahar deceased anywhere near the street in question or even in the vicinity of the place of occurrence! Thus, the complainant was not a natural witness of the occurrence. The complainant had also failed to specify the seats of injuries received by the two deceasedand Shahamand (PW-2) in the F.I.R. That surely was unusual. Apart from that the complainant had all along maintained that the two eceased and he n himself had remained in the street till the return of the appellant to that street from his own house and that the appellant had fired at both the deceased when they were both present in the street. The site-plan (Exh-PD), however, shows a completely different picture. It shows that Naubahar deceased was hit in the street whereas Haji Sadan deceased and Shahamand (PW-2) were hit while present inside the compound of the house of Haji Sadan deceased. Thus, the complainant really did not know the actual scene of the crime. The locations of the assailant and his different victims given by the complainant were seriously contradicted not just by the site-plar (Exh-PD) but also by Mirza Ashfaq Baig, Draftsman (PW-8) and t) Investigating Officer Muhammad Alam, Inspector (PW-9). We have aif found it to be unusual that it was Haji Sadan deceased and not er® tno complainant who had come to the support of Naubahar deceased in his alleged altercation with the appellant. Hqji Sadan was just a collateral of Naubahar whereas the complainant was Naubahar's real brother. Had the complainant been present during that altercation he would certainly have taken much more interest on the side of his brother than a collateral of his. The complainant was also not injured or even fired at by the appellant during the alleged occurrence whereas a collateral of his was allegedly shot dead by him. All these factors, and many more to follow, have created serious doubts in our minds about the claimed presence of the complainant at the place of occurrence at the time of the incident. 16. Credibility of Shahamand (PW-2) as an eye-witness is also not free from serious doubts. Admittedly he made his first statement before the police in respect of the occurrence in question as many as 14 days after the incident! His explanation for such an inordinate delay has not been found by us to be satisfactory or reliable. The prosecution has heralded him as an injured witness but his getting injured in the incident in question is not free from blemish or doubt. He was allegedly taken to the hospital by his son Riaz who was not present at the spot during the occurrence and had not been produced as a witness. He bjad failed to produce the original medicolegal certificate in respect of his medical examination before the police despite his long libernation. The two pellet injuries allegedly suffered by him were not of serious nature. The Doctor (PW-11) had stated that Shahamand (PW-2) had been admitted to the hospital after his initial examination. No bed-head ticket or any other record was produced in that respect. Shahamand (PW-2) had denied being admitted to the hospital! Thus, even the Doctor's statement qua him was not above board. Shahamand (PW-2) had admitted to be moeen of the village and an immediate neighbour of Hqji Sadan deceased. Thus, a real possibility of his subsequent procurement and planting as an eye-witness with fabricated injuries or a forged medico-legal certificate could not be safely ruled out. Apart from all that Shahamand (PW-2) had also maintained that the two deceased and he himself had remained in the street till the return of the appellant to that street from his own house and that the appellant had fired at both the deceased when they were both present in the street. He had further maintained that he was himself hit by the appellant's stray pellets in the street. However, as pointed out above, the site-plan (Exh-PD) depicted a completely different picture. It showed that Naubahar deceased was hit in the street whereas Hqji Sadan deceased and Shahamand (PW-2) were hit wh" j present inside the compound of the house of Hqji Sadan deceased! Tl us, there was conflict within the prosecution's own evidence regarding the place where Shahamand (PW-2) had received his injuries. The locations of the assailant and his different victims given by Shahamand (PW-2) were seriously contradicted not just by the site-plan (Exh-PD) but also by Mirza Ashfaq Baig, Draftsman (PW-8) and the Investigating Officer Muhammad Alam, Inspector (PW-9). 17. As if this were not enough to render the statements of the eye witnesses doubtful and unreliable, the medical evidence had also given a big lie to Nazir Ahmad complainant (PW-1) and Shahamand (PW-2) on a material aspect of the case. The Doctor (PW-11) had found blackening on one injury of each deceased. As against that the Draftsman (PW-8) and the Investigating Officer (PW-9), who had been shown the locations of the assailant and the victims at the place of the occurrence by the eye-witnesses, had categorically maintained that the distance between the appellant and Naubahar deceased and between the appellant and Haji Sadan deceased was47 and 90 feet respectively at the time of firing. Blackening surely could not be caused on an injury by a fire from either of those distances! The learned counsel for the State had absolutely no explanation for such a glaring contradiction between the medical evidence and the other evidence based upon information supplied by the alleged eye-witnesses. Even the spread of pellets on the two deadbodies showed fires at them from a long distance and the same also contradicted the ocular account. 18. The eye-witnesses produced by the prosecution- had also failed to receive material corroboration from any independent source. It was admitted by the complainant himself that there was no previous background of enmity, ill-will or bitterness between the parties. It had also come on the record that a sister of the appellant was married to a brother of Haji Sadan deceased. Thus, there was absolutely no reason why the appellant would be propelled into aggression of this nature against Haji Sadan deceased or even against Naubahar deceased. Even the immediate motive, i.e. an altercationover sprinkling of water by the appellant in the street, had not been proved by the prosecution through any independent evidence. 19. As regards the alleged recovery of a licensed gun from the appellant suffice it to observe that the said recovery is legally inconsequential. It was admitted by the Investigating Officer that no crimeempty had been recovered from the place of occurrence after the incident. Thus, the said recovery of gun could not in any manner connect that gun or the appellant with the offence in question. 20. While finding the prosecution's evidence to be doubtful and unreliable on a capital charge against the appellant we are also not unmindful of the fact that the same evidence has already been held by the learned trial Court to be unreliable qua Nawab accused who has since been acquitted. The State as well as the complainant has not challenged the acquittal of Nawab accused. 21. In this context we are also conscious of the fact that it was a day­ light occurrence and a case of double murder. However we are equally alive to the reality that false implication of innocent persons or planting of falsewitnesses against actual murderers is not a malady referable exclusively to night-time occurrences or single murders. We are of the considered opinion that whenever genuine and serious doubts arise qua the prosecution's evidence against the accused persons the benefit of such doubts must go to the accused persons irrespective of the time of occurrence or the number of victims. The rising or setting of the sun or plurality of the victims has hardly any relevance to the standard of proof required in a criminal case. 22. The upshot of the above discussion is that the prosecution hadfailed to prove its case against the appellant beyond reasonable doubt and, therefore, extending the benefit of doubt to the appellant, his appeal is hereby allowed, the impugned judgment passed by the learned Additional Sessions Judge, Sahiwal on 23.11.1995 is set aside and the appellant is acquitted of the charge against him. The appellant shall be released from jail forthwith, if not required in any other case. 23. As the appeal filed by the appellant has been accepted, with a .resultant setting aside of his convictions and sentences recorded by the learned trial Court, and he has been acquitted by us, therefore, Murder Reference No. 8 of 1996 is hereby answered in the negative. (K.K.F.) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 563 Present: asif SAEED KHAN KHOSA, J. SHAH NAWAZ alias SHADU-Appellant versus THE STATE-Respondent Criminal Appeal No. 277 of 1996, decided on 27.1.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302(b)--Murder--Offence of--Conviction for--Dying declaration-Basis of sentence-Dying declaration relied upon heavily by prosecution against appellant does not even qualify to be called res gestae inasmuch as declaration .nade by deceased was neither contemporary nor same unmistakably pointed towards guilt of appellant-It had come on record that after receipt of injury on his throat deceased had travelled for 232 karams in darkness of night before uttering stated words (dying declaration)-Even words uttered by him do not unmistably point towards appellant-Dimension of wound received by deceased and also fact that all relevant parts of throat had been cut were sufficient to infer that doctor was not wrong in stating that deceased was in no condition to speak or utter coherent words-Such a categorical statement coming from a witness (doctor) produced by prosecution itself seriously damages worth of alleged dying declaration—Witnesses have not only made contradictory statements in that regard but some of them have made significant and material improvements in their statements made before police 1 regarding which they were confronted with their earlier statements-- Necessary formalities regarding recording of a dying declaration were not complied with by Inspector-Dying declaration was not even reduced into writing nor any other effort was made to preserve declaration in a written form- In such a situation High Court would be extremely reluctant to rely exclusively upon such a dying declaration for recording a conviction for a capital charge-Held : Unescapable conclusion is that prosecution has failed to prove its case against appellant beyond any reasonable doubt---This appeal is, therefore, accepted and appellant is hereby acquitted of charge. [Pp. 566 & 567] A to 13 Malik Muhammad Salim, Advocate for Appellant. Mian Kamran-bin-Latif, Advocate for State. Date of hearing: 27.1.1999 judgment Vide judgment dated 19.8.1996 the learned Additional Sessions Judge, Dera Ghazi Khan, Camp at Taunsa Sharif convicted Shah Nawaz alias Shadu appellant for an offence under Section 302(b), P.P.C. and sentenced him to imprisonment for life and a fine of Rs. 50,000/- or in default of payment thereof to suffer R.I. for two years. It was ordered that half of the fine, if recovered, shall be paid to the heirs of Ayyaz deceased. The benefit under Section 382-B, Cr.P.C. was, however, extended to the appellant. The appellant has challenged his conviction and sentence before this Court through the present appeal. It has been pointed out that the appellant had also filed an appeal from the jail (Crl. Appeal No. 30/97) in this regard. Both these appeals are being disposed of by this Court through the present consolidated judgment. 2. The necessary facts relevant for the disposal of this appeal arethat during the night between 3/4.5.1994 Ayyaz son of Allah Bakhsh was caused an injury on his throat at an open place at a sand dune called "Tibba Danner", Vehoa" Tehsil Taunsa Sharif, District Dera Ghazi Khan. FIR No. 46 was lodged in that regard by Nasir Ahmad complainant (PW. 3) at 1 a.m. on 5.4.1994 at Police Station Vehoa, District Dera Ghazi Khan for an offenceunder Section 324, P.P.C. During the same night Ayyaz deceased succumbed to his injury and thereafter Section 302, P.P.C. was added to the FIR. The present appellant was arrested by the local police in connection with that FIR on 11.5.1994 when he was produced before the police by his maternal uncle. After completion of investigation a challan was submitted before the learned trial Court which subsequently framed a charge under Section 302, P.P.C. against the appellant to which he pleaded not guilty and claimed a trial. 3. At the trial the prosecution produced as many as 8 witnesses in support of its case against the appellant. Dr. Musa Kaleem (PW. 1) conducted the post-mo, vtem examination on the dead body of Ayyaz deceased. Dr. Muhammad Ehsan (PW. 2) and medically examined the deceased before his death. Naseer Ahmad complainant (PW. 3) stated about the dying declaration all eg'edly made by the deceased before him as well as about the lodging of the FI.R by him. Nazar Muhammad (PW. 4) also stated about the dying declarat ior. \ having been made by the deceased before the complainant and him. Ghukun Akbar, constable (PW. 5) deposed about the recovery of a knife (P. 6) fror n the appellant during the investigation of this _.case. Ijaz Ahmad Head Const able (PW.. 6) stated about taking of the parcel containing blood-stained earth to the office of the Chemical Examiner. Haq Nawaz Patwari appeared as PV^ 7 . 7 and stated about preparation of a formal site-plan of the place of occurrer. \ce by him at the pointing out of the police. Malik Ijaz Ahmad, Inspector (PV\ T - 8) deposed about various steps taken by him during the investigation of thi s case. 4. In his statement rec orded under Section 342, Cr.P.C. the appellant denied and controverted a U the allegations of fact levelled against him by the prosecution and maintak 'ed that he had been falsely implicatedin this case due to suspicion. He, hov r ever, did not make any statement on oath under Section 340(2), Cr.P.C. a:m 1 also did not produce any witness in his defence. As mentioned above, the' 1 earned trial Court, at the end of the trial, convicted and sentenced the app'elJant as noticed in the earlier part of this judgment. Hence, the present appeal. ? before this Court. 5. It has been argued by the le; inu ^d counsel for the appellant that it was admittedly an un-witnessed occurrence and, therefore, no ocular account of the incident is available on the record so & 's to implicate the appellant. He has also maintained that the prosecution has completely failed to allege any motive against the appellant for commission i ^ the offence in question. He has gone on to argue that the alleged recovery of a blood-stained knife from the possession of the appellant during tho invest igation of this case is legallyinconsequential as the said knife was never prove to stained with human blood. The learned counsel has based this argui nent on the fect that no report of the Serologist is available on the record of tnis case - The learned counsel for the appellant has further contended that the medical evidence, byits very nature, cannot identify or directly connect an accused person with an offence allegedly committed by him. According to him the medical evidence even otherwise does not provide any corroboration as the same is accepted only as a supporting evidence. According to the It Darned counsel any supporting evidence pales into significance if there is not n i R g available to be supported by it. The learned counsel for the appell, ant has seriously challenged the admissibility, reliability as well as relevant ' e °f tne so called dying declaration relied upon heavily by the prosecution in , '-hi s case. He has lastly argued that it is a case of no evidence against the ap v" 16 ^ 11

an( ^ ^ e conviction of the appellant is not sustainable. As against .th '^

ne learned counsel for the State has argued that the dying declaration in x ''•his case hadbeen amply proved through witnesses who had no motive or L 11- ^H against the appellant so as to implicate him falsely in this case. He has, thus, canvassed for dismissal of this appeal and sustaining of the conviction as well as the sentence of the appellant, 6. After hearing the learned counsel for the parties and going through the record of this case with their assistance I have no hesitation in concluding that this appeal must succeed. Admittedly nobody had witnessed the occurrence in question so as to positively or directly incriminate the appellant for perpetrating the same. It is again not disputed that the appellant had no motive what-so-ever to commit the offence in question. The prosecution has failed even to allege any background of ill-will or bitterness between the parties so as to propel the appellant into aggression against the deceased. The alleged recovery of a blood-stained knife from the possession of the appellant during the investigation of this case is surely legally inconsequential as the said knife was never proved to be stained with human blood. The knife in question is an ordinary knife which is ordinarily available in the houses in rural areas. The learned counsel for the appellant is quitejustified in saying that the medical evidence in this case could not provide any support in this case because there was nothing much with the prosecution to be supported. 7. This brings me to the only piece of evidence worth any consideration in this case i.e. the alleged dying declaration made by the appellant before Nasir Ahmad complainant (PW-3), Nazar Muhammad (PW-4) and Malik Ijaz Ahmad, Inspector (PW-8). After a careful scrutiny of the evidence available on the record the said dying declaration is found to be totally insufficient to incriminate the appellant in this case for various reasons. First of all it has been noticed that the dying declaration allegedly made by the deceased was "Shada" and "Dada". No proof had been brought on the record by the prosecution that the appellant was never known as either Shada or Dada. The Investigating Officer (PW. 8) had stated that thenick-name of the appellant as Shada was told to him by PW. 4 whereas thesaid PW. 4 had categorically maintained that he did not know the appellantpreviously at all. Thus, any question of knowing his name or even his nick­ name could not arise. 8. The alleged dying declaration relied upon heavily by the prosecution against the appellant does not even qualify to be called res gestae inasmuch as the declaration made by the deceased was neither contemporaneous nor the same unmistakably pointed towards the guilt of A the appellant. It had come on the record that after receipt of the injury on his throat the deceased had travelled for 232 karams in the darkness of the night before uttering the stated words. Even the words uttered by him do not unmistakably point towards the appellant, as observed above. I 9. Another serious blow to the said dying declaration was handedI down by Dr. Muhammad Ehsan (PW. 2) when he unmincingly stated that [the deceased could not speak in the condition that he was in. The dimension f the wound received hy the deceased and also the fact that all the relevant parts of the throat had been cut were sufficient to infer that the doctor (PW. 2) was not wrong in stating that the deceased was in no condition to speak or utter coherent words. Such a categorical statement coming from a witness produced by the prosecution itself seriously damages the worth of the alleged dying declaration. 10. It may not be out of place to mention here that there are seriouscontradictions to be found in the statements made by PW. 3, PW. 4 and PW. 8 in respect of the stated dying declaration. The said witnesses have not only made contradictory statements in that regard but some of them have madesignificant and material improvements in their statements made before the police regarding which they were confronted with their earlier statements. 11. Apart from all the above-mentioned considerations it is important to notice that the necessaiy formalities regarding recording of a dying declaration were not complied with by Malik Ijaz Ahmad, Inspector (PW-8). The alleged dying declaration was not even reduced into writing nor any other effort was made to preserve the said declaration in a written form. In such a situation this Court would be extremely reluctant to rely exclusively upon such a dying declaration for recording a conviction on a capital charge. 12. For what has been observed above a conclusion is inscapable that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. This appeal is, therefore, accepted and the appellant is hereby acquitted of the charge against him. He shall released from jail forthwith if not required in any other case. 13. This also disposes of Crl. Appeal No. 30/97. (K.K.F.) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 567 Present: kh. muhammad sharif, J. MUNAWAR HUSSAIN and others-Petitioners versus STATE-Respondent Crl. Appeal 297-J of 1993, heard on 25.1.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 364/302/201/34-Abduction and murder-Conviction for-Challenge to-Occurrence took place on 8.6.1992 but FIR was lodged on 2.8.1992 without any plausible or reasonable explanation whatsoever-There is no eve witness of occurrence and there is no direct and circumstantial evidence against appellants-One of co-accused of appellants namely R has been acquitted by learned trial Court and case of appellants is on similar footing to that of R—Evidence of extra judicial confession is joint one which is not admissible in the eye of law-Learned trial Court has already disbelieved evidence of abduction of deceased and also disappearing dead body of deceased-Held : Appellants are extending benefit of doubt and they are acquitted from charge-Conviction sentence awarded to appellant by learned trial Court is set-aside. [P. 570] A & B Syed Murtaza Mi Zaidi, Advocate for Appellant. Mr. Ibrahim Farooq, Advocate for State. Date of hearing: 26.1.1999. judgment This judgment will dispose of Criminal Appeal No. 297 of 1993 and Criminal Appeal No. 297-J of 1993 filed by Munawar Hussain and Muhammad Ashraf appellants. They were convicted and sentenced by learned Additional Sessions Judge, Layyah on 22.9.1993 to undergo life imprisonment U/S. 302(b) PPC for the murder of Abdul Kareem deceased son of the complainant. They were directed to pay Rs. 25,000/- each as compensation under Section 544-A, Cr.P.C., in default six months' R.I. 2. The occurrence in this case took place on 18.6.1992 at 8.00 a.m. while the matter was reported to the Police on 2.8.1992 by the father of deceased Abdul Kareem PW. 3 through FIR Ex. P.D. 3. Briefly stated the case of the prosecution as set-up in the FIR registered on the statement of one Muhammad son of Khuda Bakhsh aged 65/66 years, caste Aram r/o. Chak No. 217/TDA, P.S. Fatehpur that on 18.6.1992 at about 8.00 a.m. Muhammad Ashraf one of the accused who is related to him as the son of his neice in the company of his co-accused Manawar Hussain who is related to Muhammad Ashraf accused as hissister's husband, came to his house and in the presence of Muhammad Idrees and Maqbool Ahmad PWs got Abdul Karim accompanied on the pretext of making purchases of Tobacco at cheap rates from Mandi Faizabad. Abdul Kareem at that time was having Rs. 15,000/- in a purse of black colour having an engraving of Faisal Mosque. He at that time was having a - handkerchief on the corner of which his name has been engraved. Abdul Kareem also took 20 empty bags with him. It was further alleged that Abdul Kareem did not come back. He went to Mandi Faizabad and made inquires from the accused Manawar and Muhammad Ashraf but they did not give any satisfactory response. As such he suspected murder of Abdul Kareem and got the case registered vide FIR Ex. P.D. 4. During the course of investigation Muhammad Ashraf accused led to the recovery of two empty bags P-l/1-2, ring P. 2 and a spectacles P. 3 taken into possession vide memo Ex. P.A. attested by Mureed Abbas and Muhammad Ibrahim PWs. Muhammad Ashraf accused also led to the recovery of dagger P. 11, taken into possession vide memo Ex. P.G. attested by Muhammad Yosuaf, Muhammad Sharif and Sarwaf Sajid PWs. Muhammad Ashraf accused also pointed out the place of murder of Abdul Kareem. : 5. Munawar Hussain accused led to the recovery of wrist watch P. 4, Identity Card of Haji Muhammad P. 5 and a purse P. 6 vide memo Ex. P.B. attested by Mureed Abbas and Muhammad Ibrahim PWs. Munawar Hussain accused also led to the recovery of dagger P. 9, taken into possession vide memo Ex. P.F attested by Muhammad Yousaf, Muhammad Sharif and Sarwar Sajid PWs. Munawar Hussain accused led to the recovery of a cycle. 6. Muhammad Rafiq accused led to the recovery of handkerchief P. 7 and a leads P. 8, taken into possession vide memo Ex. P.C. attested by Mureed Abbas and Muhammad Ibrahim PWs. Muhammad Rafiq accused also led to the recovery of dagger P. 10, taken into possession vide memo Ex. P.F attested by Muhammad Yousaf, Muhammad Sharif and Sarwar Sajid PWs. 7. On completion of investigation report U/S. 173, Cr.P.C. was submitted against all the accused and then after supply of copies etc., charge against all the accused was framed U.Ss. 364, 302, 201 & 34 PPC to which they did not plead guilty and claimed trial. 8. It may also be noted here that with the present appellants one Muhammad Rafiq was also tried alongwith present appellants but he was acquitted by the learned trial Court. 9. Prosecution in order to prove its case produced nine witnesses in all. Thereafter, the statement of the appellants recorded U/S. 342, Cr.P.C., in which they pleaded not guilty and claimed innocence. 10. Learned counsels for the appellants has read before me the prosecution evidence and the statements of the appellants recorded U/S.342, Cr.P.C. After reading the same, they submits that there is a delay of about one month and 15 days in lodging the FIR without any plausible explanation. They further submit that on the same evidence one co-accused of the appellants has been acquitted by the learned trial Court. They alsofurther submit that there is no direct and circumstantial evidence against the appellants. They also submit that the witnesses produced by the prosecution in the instant case are near relations of the deceased. They further submit that extra judicial confession in the instant case is joint one which is not admissible in evidence. Learned counsels for the appellants also submit that learned trial Court has acquitted the appellants on the charged under Section 364 PPC and Section 201 PPC, so no case is made out againstthe appellants, U/S. 302 PPC. 11. On the other hand, learned counsel for the State submits that recoveries were effected from the appellants, that there is a evidence of last seen, that the witnesses produced by the prosecution are inimical towards theappellants, although, they are close relative of the deceased Abdul Kareem. 12. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court with their assistance. In the instance case, occurrence took-place on 8.6.1992 but the FIR was lodged on 2.8.1992 without any plausible or reasonable explanation whatsoever. In the instant case, there is no eye-witness of the occurrence andI there is no direct and circumstantial evidence against the appellants. One of the co-accused of the appellants namely Muhammad Rafiq has been acquitted by the learned trial Court and case of the present appellants is on similar footing to that of Muhammad Rafiq. The evidence of extra judicial confession is joint one which is not admissible in the eye of law. Learned trial Court has already disbelieved the evidence of abduction of the deceased Abdul Kareem and also disappearing the dead body of deceased. 13. In this view of the matter, appellants are extending the benefit of doubt and they are acquitted from the charge. The conviction and sentence awarded to the appellant by the learned trial Court is set-aside. They are on bail. They are discharged from their bail bonds. (K.K.F.) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 570 (D.B.) Present: mian muhammad najum-uz-zaman and asif saeed khan khosa, JJ. MANZOOR AHMAD and others-Petitioners versus STATE-Respondent Crl. Misc. No. 89/B/1999, heard on 27.1.1999. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Prayer for-Offence u/S. 365/337-A(i), 337-F(i), (v), 148/149-Rule of consistency~Pn'wza-/acze, case of petitioners seems to be at par with that of co-accused-Thus, keeping in view principle of consistency, petitioners are entitled to concession of bail-Even otherwise, injuries allegedly caused by petitioners are not punishable with sentence of ten years, hence, their case does not fall within prohibitory clause of Section 497 Cr.P.C. and in such like cases, grant of bail is a rule and refusal is exception. [P. 571] A Syed Murtaza All Zaidi, Advocate for Petitioner. Date of hearing: 27.1.1999. order Petitioners seek their post arrest bail in case FIR No. 76/1998 dated 6.2.1998 registered under Sections 365/337-A(i)/337-F(i)(v)/148/149 PPC at Police Station Saddar Pakpattan Sharif. 2. Story narrated in the FIR is that on 5.2.1998 at about 8:00 P.M., when the complainant, his father alongwith three others were returning to the village, they were intercepted by eleven persons including the petitioners about 3/4 squares from their village. All the persons were armed with sotas and they forcibly over powered father of the complainant and threatened hiscompanions with dire consequences if they interfere. Allegedly father of the complainant was taken to the house of one Manzoor Ahmad, one of the present petitioners, where he was confined in a room. During this period,father of the complainant was forced to return Mst. Safooran who had left her father's house and contracted marriage with one Muhammad Yousaf. Father of the complainant was then removed to the house of Bashir Ahmad where he was allegedly given severe beating and in the morning, he was thrown in a Khaal. 3. Learned Counsel for the petitioners submits that two co-accused namely Muhammad Sarwar and Bashir Ahmad have already been grantedbail by the learned trial Court and that case of the present petitioners is at par with them and they are also entitled to the concession of bail while keeping in view the principle of consistency. Further submits that offence ofcausing injuries by the petitioners does not fall within the prohibitory clause of Section 497 Cr.P.C., hence, the petitioners are also entitled to the concession of bail. 4. Learned State Counsel has vehemently opposed the contentions raised by learned counsel for the petitioners. 5. We have heard both the counsel for the parties and have gone through the record of this case minutely In the FIR, no specific role of causing injuries to Niaz Ahmad (father of the complainant) has been attributed to any of the petitioners. Coaccused of the petitioners namely Muhammad Sarwar who was also present with the petitioners at the time of alleged offence has already been granted bail by the learned trial court vide order dated 11.11.1998. Prima-facie, case of the petitioners seems to be at part with that of Muhammad Sarwar, coaccused. Thus, keeping in view the principle of consistency, petitioners areentitled to the concession of bail. Even otherwise, injuries allegedly caused by the petitioners are not punishable with sentence of ten years, hence, their case does not fall within the prohibitory clause of Section 497 Cr.P.C. and is such like cases, grant of bail is a rule and refusal is exception. Accordingly, petitioners are admitted to bail subject to furnishing their bail bonds to the tune of Rs. 50,000/- (fifty thousand) each with two sureties each in the like amount 10 the satisfaction of learned trial court. (,K K.I'; Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 572 (DB) Present: iftikhar hussain chaudhry and shaikh abdur razzaq, JJ. MUHAMMAD ASLAM etc.--Petitioner versus STATE-Respondent Crl. A. No. 388 of 1992. M.R. No. 204 of 1992, heard on 1.10.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302/148/149 and 109--Section 13 of Arms Ordinance, 1965-Murder-- Offence of~Conviction and sentence for-Challenge to—Identificationparade not proper, thus very involvement of accused/appellant A is not above-board-Presence of (PW-13) at the time of incident also not free from doubt-Prosecution has failed to prove very presence of both accused at the time of occurrence, as such appeal is accepted, impugned order is set aside and they are hereby acquitted. [Pp. 578 & 579] A, B & C Mr. R.A. Awan, Advocate and Q.M. Saleem, Advocate for Petitioners. Mr. Shaukat Rafique Bajwa, Advocate for Complainant. Mr. S.D. Qureshi, Advocate for State. Date of hearing: 1.10.1998. judgment Shaikh Abdur Razzaq., J.—Resume and episode of woe as set-up in FIR Ex. PJ is that on 22.7.1990, an eventful and fateful day, Muhammad Rauf Anwar complainant (PW-12) left his house alongwith his father Muhammad Akhtar Anwar Advocate (deceased) and uncle Muhammad Younas on foot for District Courts Toba Tek Singh. They reached near an open plot of Ch. Abdul Majeed Kahloon, at 7.15 A.M. When Javed Aslam Kahloon, Advocate, happened to come there on his motorcycle. He stopped his motorcycle and after embarking the deceased on the rear seat of motorcycle proceeded to Katchery. They had hardly covered a few paces, when 5 persons namely Akhta j @ Siana son of Abdul Khaliq, Nasrullah son of Muhammad Ismail armed with carbines and three other unknown persons emerged from the said open plot. Accused Akhtar @ Siana Shouted Lalkara that Muhammad Akhtar Anwar deceased be taught a lesson for pursuing cases against them. He (Akhtar @ Siana) simultaneously opened fire with his Carbine hitting the deceased on his left shoulder. Accused Nasrullah fired which hit the deceased on the back of left shoulder. The other three upon persons alsoi fired hitting the deceased on the outer side of his left shoulder. Their third £ihot hit the back light of motorcycle as a result of which the deceased fell on the ground. The assailants then fled way from there. The incident was witnessed by Javid Aslam and Muhammad Younas The injured (Muhammad Akhtar Anwar) was removed to D.H.Q. Hospital T.T. Singh, hut he sucramed to the injuries before any medical aid could be provided to him. 2. After the incident, the complainant was told by Muhammad Anwar S/O. Muhammad Akbar and Khalid Sher son of Fateh Muhammad that on 17.7.1990 at 6.00 p.m. they had heard Muhammad Idrees and Muhammad Hanif conspiring at Railway Station T.T. Singh that their brother Akhter Siana was arriving by train and they would get MuhammadAkhtar Anwar, Advocate, killed, and get themselves involved in some fake case to save their skin. 3. The motive for the occurrence as alleged by the complainant in the FIR was that his father had been appearing in the cases against AkhtarSiana and others and due to that grievance the accused had committed the murder of his father in privy with Muhammad Idrees and Muhammad Hanif. He left the dead body under the supervision of Muhammad Nasruallhand Muhammad Aslam and made for police station for lodging report. 4. Tariq Mehmood Inspector (PW-15) recorded FIR Ex. PJ and made for hospital, he prepared statement of injuries EX.PO, inquest report Ex. PP and despatched dead body through Sikandar Hayat (PW-5). He then proceeded to the place of occurrence, prepared its rough site-plan Ex. PQ andsecured blood stained earth vide memo Ex. PK, motorcycle p8, broken pieces of back light Ex. P10/1-10 vide memo Ex. PN, two empties of cartridges Pll/1-2, two empties of bullets P12/1-2- vide memo Ex. PL, one pair of Chappal P-9/1-2 vide memo Ex. P-M. On 22.7.1990 DSP verified his investigation. On the same day Sikandar Hayat Constable (PW-5) producedlast worn clothes of the deceased P-l to P-3 alongwith pellets which he took into possession vide memo Ex. P-D. He delivered all parcels to Moharrir. On 23.7.1990 arrested accused Muhammad Hanif. On 24.7.1990 he secured site plans Ex. P-C and P-C/1 produced by Syed Kazim Hussain Gilani (PW-3). On 17.8.1990 arrested accused Nasrullah who led to the recovery of Carbine P-4 and six live cartridges Ex. P-5/1-6 and prepared its sealed parcel vide memo Ex. P-G. On 20.8.1990, arrested Muhammad Aslam accused who led to the recovery of Pistol Ex. P-6 and 6 live bullets Ex.P-7/1-6 vide memo Ex. P-H./ He recorded the statements of witnesses. He also registered case under Section 13/20/65 Arms Ordinance against Muhammad Idrees and Muhammad Hanif. After completing investigation, got the accused challaned. 5. A charge under Sections 302, 148, 149 and 109 PPC was framedagainst the accused to which they pleaded not guilty and claimed trail. 6. To prove its case, prosecution examined PW-1 Nemat Ali ArshadSI who produced application Ex.PA before A.C. Toba Tek Singh for holding Identification Parade of accused Muhammad Aslam. The application wasmarked to Duty Magistrate and was presented before Muhammad Shahid Javed MIC (PW-2) on 26.8.1990 and who ordered for holding said Identification Parade on 28.8.1,990. During the said parade, the a accused-appellant Muhammad Aslam was identified by the complainant (PW-12), Javed Aslam (PW-13) and Muhammad Younas PW (not produced). He tendered his report Ex. PB and Certificates Ex. PB/1-2. Syed Kazim Hussain Gilani (PW-3) draftsman visited the place of occurrence on 24.7.1990 and prepared site-plans Ex. PC and PC/1 and handed over the same to the Investigating Officer on 26.7.1990. Muhammad Ashraf Head constable (PW-4) deposed about securing of certain parcels for keeping the same in Mulkhana and thereafter its delivery to Sikandar Hayat Constable (PW-5) for its owners delivery in the office of Chemical Examiner and Forensic Science Laboratory Lahore. Sikandar Hayat (PW-5) deposed that he escorted the dead body and was given last worn clothes and other documents by the Medical Officer and he produced the same before the Investigating Officer who secured the same vide memo Ex. PD. He also corroborated the version of PW4 regarding entrustment of parcels and its delivery in the said offices. Mushtaq Ahmad ASI (PW-6) and Abdul Ghaffar F.C. (PW-7) are formal witnesses as they were handed over warrants and proclamation in respect of Muhammad Aslam alias Siana and Nasrullah accused. Maulana Muhammad Abdullah (PW-8) deposed about the identification of the dead body at the time of post-mortem examination. Dr. Muhammad Khalid (PW-9) deposed that on 22.7.1990 at 9.30 a.m. he conducted post-mortem examination of Muhammad Akhtar Anwar deceased and found the following injuries on his person : 1. A wound of entry 1 x 1 c.m. on the outer side of the upper part of the left shoulder. The area around the wound was slightly blackened and tatooting was present. Corresponding cut was present on the qamiz. 2. A wound of entiy 1x1 cm. on the outer side of the upper part of the left shoulder 1 c.m. below Injury No. 1. The area around the wound was slightly blackened and tatooting was present. Corresponding cut was present on the qamiz. 3. A wound of entiy 1 cm x 1/2 cm on the outer side of the left shoulder just below Injury No. 2. The area around the wound was slightly blackened and tatooting present, corresponding cut was present on the qamiz. 4. A wound of entiy 1 cm x \ cm on the outer side of the left shoulder 1 inch left side of Injury No. 1. The area around the wound was slightly blackened and tatooting was present. Corresponding cut was present on the qamiz. 5 A wound of entiy 1 c.m. x \ cm on the outer side of the left shoulder. This wound was 2 cm below and to the right to Injury No. 4. The area around the wound was slightly blackened and tatooting was present. Corresponding cut was present on the qamiz. 6. An abrasion on 3 cm x 6 cm on the outer side of the left shoulder. This injury was 2 cm below Injury No. 5. An abrasion 2.5 cm x 0.6 cm on the outer side of the-left shoulder. This injury was 2 cm below and parallel to Injury No. 6. 7. A wound of entry 1 cm X 1 cm on the back of the left shoulder blade, upper part. The area around the wound has slightly blackened and tatooting was present. Corresponding cut was present on the qamiz. 8. A wound of entry 1 x 1 cm on the back of the left shoulder blade 1 inch below and left to the Injury No. 8. The area around the wound was "slightly blackened and tatooting was present. Corresponding cut was present on the cloths. 9. A wound of entry 1 cm x 1 cm on the back of the left shoulder blade 1 inch towards the right of the Injury No. 9 The area around the wound was slightly blackened and tatooting was present. Corresponding cut was present on the qamiz. 10. A wound of exit 2 cm x 1 cm on the back of the mid of the chest just towards the right side of the mid line. Corresponding cut was present on the clothes. 11. A wound of exit 1.5 cm X 1 cm on the back of the mid of the chest 2 inches below and right to the Injury No. 11. Corresponding cut was present on the qamiz. 12. A wound of exit 1.5. cm x 1.2 cm on the back of the mid of the chest 2 cm towards the right side of Injury No. 12. Corresponding cut was present on the qamiz. 13. A wound of exit 2 cm x 1 cm in the left axilla. Corresponding cut was present on the qamiz. A wound of exit 1.5 cm X 1.5 cm in the left exilla I.e. cm below Injury No. 14. In his opinion, cause of death was shock and haemorrhage due to injuries mentioned above, which were ante-mortem in nature and had been caused by fire-arms and were sufficient to cause death in the ordinary course of nature. He removed three pellets, sealed in a phial and handed over to the police. He gave the time between injuries and death as instantaneous whereas between death and post-mortem examination two to three hours. After the post-mortem examination, he handed over the last worn clothes of the deceased as well as said documents to constable. Javed Akhtar (PW-10) deposed that on 17.8.1990 accused Nasrullah led to the recovery of .12 bore carbine and 6 cartridges, which were secured and made into separate parcels vide memo Ex. PG. That on 20.8.1990 accused Muhammad Aslam led to the recovery of pistol p6 and six live bullets p7/l-6 which were made into separate parcels vide memo Ex.PH. Khalid Shaheed (PW-11) deposed about killing of the deceased at the hands of Muhammad Aslam alias Sina at the instance of Muhammad Idrees and Hanif. Muhammad Rauf Anwar (PW-12) is the complainant of this case and corroborated his version appearing in FIR EX. PJ. He stated that other witnesses had also identified Muhammad Aslam accused in the Identification Parade supervised by MIC. He also deposed about conspiracy between Idrees and Hanif regarding committing of murder of the deceased at the hands of Muhammad Akhtar alias Siana. Javed Aslam Kahloon (PW-13) is an eye-witness of this occurrence and corroborated prosecution version which has come on record through the statement of complainant Muhammad Rauf Anwar (PW-12). He deposited that on 28.8.1990 he identified Muhammad Aslam accused in the Identification Parade, that he joined the investigation and in his presence police secured blood-stained earth vide memo Ex-PK, two empties of cartridges and two empties of pistol vide memo Ex. PL, a pair of chappel of the deceased P9/1-1-2 vide memo Ex. PM. motorcycle Ex.P8 and pieces of back light Ex. P10 vide memo Ex. PN. Ahmad Javed Chaudhry Inspector Highway (PW-14) deposed about investigation of case pertaining to FIR No. 98/90 under Sections 13/20-65 Arms Ordinance against accused Idrees. Tariq Mehmood Chaudhry (PW-15) is the Investigating Officer whose evidence has already been discussed above. The learned DBA produced copies of FIRs No. 259 and 98/90 Ex. PS and Ex.PT, copies of orders of discharge Ex. PU and PV, report of Chemical Examiner Ex.PW, report of Serologist Ex. PX, report of Forensic Science Laboratory Lahore Ex. PY and closed the case for prosecution vide statement dated 1.3.1992. 7. When examined under Section 342 Cr. P.C. accused Muhammad Idrees, Muhammad Aslam, Lai Khan, Muhammad Hanif, Nasrullah and Wall Muhammad denied the prosecution version and stated that they have been involved in this case falsely. The examined DW-1 Khadim Hussain, DW-2 Muhammad Nawaz Head constable, DW-3 Ijaz Hussain InchargeJudicial lock-up Toba Tek Singh, DW4 Ghulam Askari Head constable, DW-5 Muhammad Hanif, DW-6 Muhammad Munir Head constable, DW-7 Dr. Muhammad Iqbal and DW-8 Muhammad Iqbal and thereafter closed their evidence. 8. Upon culmination of trial, the appellants were found and adjudged guilty of the offences, with which they were charged, convicted and sentenced to death with a fine of Rs. 50.000/- each and in default thereof to suffer R.I. for two years each. They were further directed to pay compensation in the sum of Rs. 50,000/- each to the legal heirs of deceased. The trial Court however acquitted Muhammad Idrees, Muhammad Hanif, Lai Khan and Wali Muhammad by extending benefit of doubt. 9. Such conviction and sentence awarded to the appellants stands challenged in the instant Appeal No. 388/92. Reference under Section 374 Cr.P.C. (Murder Reference No. 204/92) for the confirmation of death sentence is also before us and so also Criminal Revision No. 551/92 against the acquittal of accused and we propose to dispose of all these by this single judgment. 10. Learned counsel for the appellants, the state and the complainant have been heard and record of the case perused with their assistance. 11. Learned counsel for the appellants has argued that case againstthe present accused-appellants rests upon ocular statements of Muhammad Rauf Anwar complainant (PW-12) and Javed Aslam Kahloon (PW-13), that name of Nasrulah accused-appellant appears in FIR Ex. PJ lodged at the instance of complainant Muhammad Rauf Anwar (PW-12) whereas name of Muhammad Aslam accused-appellant does not figure in the said FIR; that Muhammad Aslam accused-appellant has been involved as he was subsequently identified in the Identification Parde held on 28.8.1990 under the supervision of Muhammad Shahid Javed MIC (PW-2). He next argued that evidence against the accused-appellants also consists of recovery of carbine p4 which was taken into possession at the instance of Nasrullah on 17.8.1990 vide memo Ex. PG and of pisotal p6 taken into possession at the instance of Muhammad Aslam on 20.8.1990 vide memo Ex. PH. He next argued that prosecution has also tried to corroborate ocular evidence by producing motorcycle p8 and pieces of back light of motorcycle P-10. 12. While analysing the ocular account given by PW-12 Muhammad Rauf Anwar and PW13 Javed Aslam Kahloon, he contended, that according to their statements the deceased was fired at by Muhammad Akhtar @ Siana accused (since dead) and Nasrullah accused-appellant, that statements of PWs-12 and 13 stand contradicted by the statement of Dr. Muhammad Khalid (PW-9), who found 15 injuries on the person of deceased, out of which injuries No. 1 to 5 and 8 to 10 were wounds of entry whereas Injuries Nos. 11 to 15 were wounds of exit and the remaining Injuries Nos. 6 and 7 were abrasions, that nature of injuries on the person of deceased clearly shows that these have been caused by one and the same fire arm which fact makes the presence of other accused doubtful. He next urged that even thepresence of Javed Aslam Kahloon (PW-13) is not from free doubt. That as per statement of Javed Aslam Kahloon (PW-13), he was carrying the deceased on the rear seat of his motorcycle at the time of alleged occurrence and the distance between him and the deceased was only 3/4 inches and lower part of his (deceased) body was touching his body. He argued that if the lower portion of the body'of the deceased was touching the body of Javed Aslam Kahloon, how he escaped from receiving any injury at that time, that • absence of any injury on the person of Javed Aslam Kahloon (PW13) clearly shows that either the deceased was not travelling on his motorcycle orPW-13 was not driving that motorcycle. He further argued that as per j prosecution version, one shot hit the back light of motorcycle resulting into I breakage of rear light. That prosecution has brought on record pieces ofbroken light as Ex.P-10/1 as well as the light Ex. P-10. That it has been admitted by PW-13, that piece of broken light Ex. P-10/1 is not of the samematerial of which light Ex. P-10 is made of. This contradiction also raises a genuine doubt about the use of motorcycle on the part of deceased as well as the presence of PW-13. The presence of PW-13 also becomes doubtful, he further argued, when his statement under Section 161 Cr.P.C. is perused, where he has not even given the marks of identification of MuhammadAslam accused, that it has been admitted by Tariq Mahmood Inspector (PW-15) that no evidence was available on record, when Muhammad Aslam _ accused was arrested. He thus concluded that all these facts clearly prove that prosecution has failed to connect the accused with the commission of this offence and impugned judgment is not sustainable. He thus prayed that appeal may be accepted and accused-appellant be acquitted. j 13. On the other hand, judgment under appeal has been supported by learned counsel for the State as well as the complainant. 14. The instant case FIR EX. PJ has been registered on the statement of complainant Muhammad Rauf Anwar (PW-12). A perusal ofFIR shows that names of Akhtar alias Siana and Nasrulah appear therein, whereas name of Muhammad Aslam accused does not figure therein. Even ; his maiks of identification are not given by the complainant, as he (Muhammad Aslam accused) was not known to him previously and this fact is admitted by him while appearing in the witness-box. This accused ',vas arrested by Tariq Mahmood Inspector (PW-15) on 20.8.1990 and was put to identification test on 28.8.1990. It has come on record that since the day of his arrest, no prosecutionary measures were adopted to conceal his identity. This being the position, no value can be attached to Identification Parade conducted under the supervision of Muhammad Shahid Javed (PW-2) and his report Ex. PB. Thus the very involvement of Muhammad Aslam accused is not above-board. 15. So far as presence of Javed Aslam Kahloon (PW-13) at the time of occurrence is concerned, that is also not free from doubt. As per admission of PW-13, the deceased was sitting at a distance of 3/4 inches from him and whose body was touching his body. It is very strange that the deceased was sitting at a distance of 3/4 inches from PW-13 but neither any pellet nor any - — bullet hit him (PW-13). The only logical inference is that either Javed Aslam Kahloon (PW-13) was not driving the motorcycle or the deceased was not sitting with him at the relevant time. Even the use of motorcycle by PW-13 is not free from doubt As per his statement one of the shots hit the back light as a result of which it broke. Prosecution has produced the broken back light Ex. PlO and piece of the same Ex. PlO/1. It is admitted by PW-13 that piece of broken light Ex. PlO/1 does not tally with the broken light plO. This admission on his part also raises suspicion about the presence of PW-13 as well as the use of motorcycle. It appears that motorcycle has been introduced just to make the presence of Javed Aslam Kahloon (PW-13) on the spot and to make him an eye-witness. It is also admitted by PW-13 in his statement Ex.DA recorded tinder Section 161 Cr.P.C. that he did not state therein that back light of his motorcycle was broken. 16. The upshot of the above discussion is that prosecution has failed to prove the very presence of both the accused-appellants at the time of occurrence, as such the appeal is accepted, impugned judgment is set aside and they are hereby a acquitted. They shall be released forthwith if no required in any other case. Accordingly, Murder Reference is answered in negative and Criminal Revision No. 551/92 is also dismissed. (AAJS) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 579 (DB) Present: sardar muhammad raza and mian muhammad ajmal, JJ. MUHAMMAD ARIF-Appellant versus STATE and another-Respondents Crl. Misc. No. 59 of 1996, heard on 24.9.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-Murder-Conviction for-Challenge to—It was an unwitnessed occurrence-It is a matter of common observation that one hour before sun-rise time is always pitch dark-Said time was chosen by assailant only and only in order to conceal his identity-That is why he fired from behind causing all three inlet wounds at back side of body which also contained charring marks—No doubt, statement given by a person about cause of his death is admissible in evidence but sanctity attached to it as dying declaration cannot be attributed when statement does not ring true and is glaringly controverted by physical/scientific phenomena on record-­ Court is apprehensive about truth of dying declaration and is fully convinced of fact that truth did not dwell upon lips of dying man-It is a settled principle of law that a dying declaration made in presence of relatives be always taken with a pinch of salt-Thus presence of relatives around, is another circumstance that renders dying declaration doubtful- Prosecution has miserably failed to prove Shakeel PW as an eye-witness and when prosecution has miserably failed to prove veracity as well as sanctity of statement of deceased, made .before police disclosing cause of his death, no conviction at all could be or could have been based on such destitute evidence-Consequently, appeal is accepted. [Pp. 583 & 584] A to E Mufti Muhammad Anis, Advocate for Appellant. Malik Manzoor, A.A.G. and Saeed Akhtar, Advocate for Complainant. Date of hearing: 24.9.1998. judgment Sardar Muhammad Raza, J.-This is an appeal filed by Muhammad Arif who is convicted under Section 302 PPG and sentenced to imprisonment for life, payment of fine of Rs. 50,000/- and compensation of Rs. 50,000/- under Section 544-A Cr.P.C. by the learned Sessions Judge Haripur vide his judgment dated 9.12.1996. Complainant Shakeel Ahmed has also filed criminal revision # 1/97 for the enhancement of sentence. Both shall be decided through this single order. 1. Muhammad Aslam son of Fazal Khan aged 48/49 was an employee of Telephone Industries of Pakistan Haripur. Not far away from the industries is Mohallah Raja Abad where he resided. On 21.12.1994 his shift was to start early in the morning and hence he started for the Telephone Industries. There is a tube-well near the Industry. At 0600 hours when he reached near that tube-well, some body opened fire at him from behind. He stopped to look behind and saw Muhammad Arif son of ShahWall Khan of Mohallah Afzal Abad standing infront of him armed with a pistol of .30 bore. 2. Muhammad Aslam made an effort to snatch the pistol from Muhammad Arif where upon the later fired still another shot which, obviously, hit Muhammad Aslam in the front on his belly. The victim fell down to the ground. His son Shakeel Ahmed who was accompanying the father, also going to join the duty, saw the occurrence. The injured was managed to be conveyed to Civil Hospital Haripur where in the emergency ward at 0700 hours the injured himself lodged the report before Abdul Aziz Khan ASI Police Post Telephone Industries of Pakistan who had happened to reach the hospital after hearing about the occurrence. 3. The report is reduced into murasila Ex.PA/1 which bears simple attestation by Dr. Muhammad Humayun Khan also who treated the injuredat the first instance. This version is relied upon by the prosecution as dying declaration because the injured subsequently on 23.12.1994 at 1750 hours succumbed to his injuries and the case FIR # 926 registered at Police Station City Haripur under Section 324 PPC was converted to Section 302 PPC. Abdul Aziz ASI after recording the declaration made by the deceased, theninjured, prepared his injury-sheet which was verified by the doctor. As the nature of injuries is material with reference to the merits of the case in hand, therefore, the injuries are reproduced as follows :-- 1. A fire-arm entry wound right upper buttock of size \ X \ x "3 deep charring present. 2. A fire-arm entry wound left side buttock in middle of size \" x \" x 3" deep charring present. 3. A fire-arm entry wound on coxygeal region of size \" x \" x 2" deep charring present. 4. A fire-arm exit wound right upper thigh of size \" X \ " x 3 "deep. 6. A fire-arm exit wound hypogastrium 3" above base of penis of size \" \" x 2". 4. The injured Muhammad Aslam on 23.12.1994, as stated earlier, had died and on the same day accused Muhammad Arif was arrested. On 26.9.1994 accused Muhammad Arif while in police custody led the ASI/Investigating Officer to his house and produced a pistol of .30 bore Ex. P4 which was taken into possession, packed and sealed into parcel vide memo. Ex. PW 7/2. There was no licence in the name of the accused. This is relied upon by the prosecution as discovery under Section 40 of Qanoon-e- Shahadat. 5. During trial the importance witnesses examined by the Courtwere Shakeel Ahmed, the son of the deceased who claimed to be an eye­ witness, Dr. Muhammad Humayun who at the first instance examined the injured and Abdul Aziz ASI Police Station City who investigated the case. Rest of the witnesses examined were not as important while other important witnesses namely Amjad and Akhtar who were immediately attracted to the spot had been abandoned by the prosecution as having been won over. 6. During investigation and even during formation of the case before the trial Court the prosecution relied upon three important aspects of the case; one being the ocular testimony provided by Shakeel Ahmed the son of the deceased, the other being the daying declaration of Muhammad Aslam deceased in the shape of murasila Ex. PA/1 and the third.being the discovery of .30 bore pistol made at the pointation of the accused. When the case wasargued before us, the third piece of evidence i.e. the discovery of pistol wasabandoned by the prosecution because according to the report of Fire Arms Expert Ex. PW 7/6 the empty recovered from the spot was not fired from the pistol recovered from the house of the accused. We are now left only with two facets of the case; one depending upon the ocular testimony of Shakeel Ahmad the other, the dying declaration made before Abdul Aziz Khan ASI. Taking the ocular testimony of Shakeel Ahmed, the only witness produced as eye-witness, his presence with his father at the very outset is not natural unless it is proved that he also is an employee of the factory. There is no evidence on record that Shakeel Ahmed is an employee of Telephone Industries. Even if it is presumed that he is an employee, it was incumbent upon the prosecution to have proved the fact that his shift also was to start alongwith his/father at 0600 hours in the morning. This was a matter which was capable of being proved not only through oral but positively through documentary evidence to be procured from the offices of the Telephone Industry. No such evidence at all was examined to that effect either and hence we consider his presence alongwith his father as doubtful. 8. Had he been present with his father he would not have wasted full one hour in taking his father to the hospital which was hardly 3/4 kilometers from the spot where the conveyance was comfortably available. His house was also close to the spot and he admits in his Court statement that he took his father to the hospital alongwith one of the witnesses namely Amjad and Akhtar while one of them was sent home to convey the information of occurrence. Despite this promptitude, he wasted full one hour. This also throws doubt on his presence. 9. The most glaring factor telling upon his presence at the spot is the undisputed medical report. It may be recalled that the deceased in his statement (Ex. PA/1) before Abdul Aziz Khan ASI had stated that he after receiving two fire shorts had turned around and had grappled with the assailant whereupon the latter fired a third shot at his abdomen. The sameversion is given by Shakeel Ahmed his son in his statement under Section 161 Cr.P.C. It subsequently dawned at every one after examining the medical report that the injury on the abdomen was not entry wound but indisputedly an exit wound. Confronted with this physical phenomena PW Shakeel Ahmed changed his version at the trial and confined himself to grappling alone, omitted altogether the fact as to where the third shot landed. Had PW Shakeel Ahmed been present with his father, he would not have needed to follow the track of the dying declaration and to have straight away mentioned as to where the third shot landed. As he was not present on the spot, he followed the version of his father upto the stage of the recording of his statement under Section 161 Cr. P.C. Subsequently when the glaring contradiction came to the notice of every one, the made improvements in the Court statement. This also indicates his absence from the spot. 10. Police Post Telephone Industries of Pakistan is located few paces away from the spot and it is admitted on record that while going to the hospital, the police post fell on their way. No report was lodged at the police post despite the fact that the ASI who subsequently recorded the report belonged to the same police post. Had Shakeel Ahmad been present on the spot, he would have first resorted to the Police Post Telephone Industries of Pakistan. His not resorting to the post in also indicative of the fact that he was not present at all and it also is indicative of the fact that the report was lodged after consultations and deliberations. The occasion to consult and deliberate had arisen only because it was an un-witnessed occurrence. The abandonment of Amjad and Akhtar who had immediately reached the spot, is another circumstance indicative of the fact that disinterested witnesses were withheld. Had they been produced in Court, the presumption is, that they would have deposed against the prosecution and against the presence of PW Shakeel Ahmed. We have no doubt in oar minds that PW Shakeel Ahmed was not present on the spot. It was an uriftvitnessed occurrence. 11. Next is'still more important evidence;,of dying declaration which requires to be thoroughly scrutinized. The occurrence had taken place on the 21st of December 1994. According to the; diaries, the sun-rise time on the eventfully day was 0700 hours, the report being lodged also at the same time. The occurrence had taken place at 0600 hours i.e. one hour before the sun­ rise time. It is a matter of common observation that one hour before sun-rise time is always pitch dark. The said time was chosen by the assailant only and only in order to conceal his identity. That is why he fired from behind causing all the three inlet wounds at the back side of the body which also contained charring marks. 12. As the injured Muhammad Aslam was not in a position to identify the assailant in that pitch dark hours of the morning, he introduced the factum of turning around and grappling with the assailant. In order togive perfection to his story, he categorically claimed that he received the third shot on his abdomen. This factum is completely negated by the medical report, re-produced earlier which clearly indicate that the injury caused in the abdomen was an exit wound of course corresponding to an entrance wound at the back. This major contradiction brought about by physical phenomena is a proof of the fact that the declaration made by the injured did not ring true. No doubt, the statement given by a person about the cause of his death is admissible in evidence but the sanctity attached to it as dying declaration cannot be attributed when the statement does not ring true andis glaringly controverted by physical/scientific phenomena on record. We have become apprehensive about the truth of the dying declaration and are fully convinced of the fact that the truth did not dwell upon the lips of the dying man in question. 13. It is admitted by Abdul Aziz Khan ASI who recorded the FIR that many relatives of the deceased were present at the time when his report was being recorded. It is a settled principle of law that a dying declaration made in presence of the relatives be always taken with a pinch of salt. Thus the presence of the relatives around, is another circumstance that renders the dying declaration doubtful. 14. The present one is not the case where there was mere presence of the relatives around but it is provenly a case where such relatives had been actively prompting the injured to name certain accused. As stated earlier Abdul Aziz ASI has admitted the presence of relatives. Dr. Humayun Khan who also was present at the time of the recording of report is another witness of the prosecution who has been examined as PW 4. During his cross examination the doctor admitted that due to excessive loss of blood though the patient was still in senses but he was not talking coherently. Another doctor Jaafar Iqbal trainee Medical Officer while appearing as PW-8 has reiterated the above fact to the effect that the injured was though conscious yet he was in a shock. In this state of affairs, Dr. Humayun Khan further admits that large number of persons were present with the deceased at the time of his statement to tlie police and that the relatives were suggesting names of 2/3 persons for nominating them as accused. He further admitted that the relatives of the deceased were suggesting names of Irshad and other brother of the accused and they also suggested that Arif, the present accused be also charged. What else could be needed to shattar the veracity of present dying declaration Ex. PA/I, in the wake of the settled principle of appreciation of evidence that no sanctity can be attached to a dying declaration where the relatives are present around and where the names of accused are prompted by such relatives. In the instant case the relatives were not only present around but provenly been interrupting from time to time to ask the declarant to nominate as many as two to three different persons as accused. We are of the confirmed view that the present dying declaration is worthy of no credence at all because it was not true at the first instance and because it was wholly prompted, at the second. 15. When the prosecution has miserably failed to prove Shakeel Ahmed as an eye-witness and when the prosecution has miserably failed to prove the veracity as well as the sanctity of the statement of the deceased made before the police disclosing the cause of his death, no conviction at all could be or could have been based on such destitute evidence. Consequently, the appeal is accepted, the impugned conviction recorded and the sentence imposed by the learned Sessions Judge Haripur through his judgment dated 9.12.1996 is set aside and the appellant Muhammad Arif son of Shah Wali Khan is hereby acquitted of the charge under Section 302 PPC. The counter Cr. Revision # 1/97 for the enhancement of sentence etc. is hereby dismissed. If not required to be detained in any other cause, Muhammad Arif appellant is directed to be released forthwith. (AAJS) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 584 Present: shaikh abdur razzaq, J. AKBAR and another-Appellants versus STATE-tfespondent Crl. A. No. 970 of 1992, heard on 14.1,1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/34~Murder~Offence of~Conviction for--As per prosecution version contained in FIR deceased was assaulted by A and F accused when he visited said Dhari for drinking water-Conversely, stand of defence is that deceased had tried to commit zina-bil-jabar with Mst. M sister of accused A and it was only A who caused injuries to deceased out of sudden and grave provocation seeing him committing zina-bil-jabar with his sister- Thus there are two versions of occurrence attd it is to be seen as to which of versions stand proved from evidence on record or appears reasonable, plausible and appeals to mind of a prudent man-If both pleas are examined in juxta position, then defence version seems more plausible as it stand corroborated from statement of Sub-Inspector PW8 who visited place of occurrence just after incident and found that dead body was lying wearing only loin cloth around its waist and was without shirt-Thus defence version further stands corroborated from statement of doctor who has admitted in his cross-examination that when dead body was brought for post-mortem examination it was lying naked and only chaddar was lying on it-If stand of prosecution, that deceased was attacked when he visited Dhari for drinking water, is accepted as correct, then question arises as to why dead beyond of deceased was lying naked with only loin cloth around his waist-Only logical inference which can be deduced from condition of dead body on spot, is that deceased had tried to commit zina-bil-jabar with sister of accused A as asserted by him and who out of Gharirat i.e. sudden and grave provocation caused injuries with weapon which he found on spot-Defence version appears more plausible then prosecution contention-Held: Learned trial Court was not justified in discarding and disbelieving defence version and awarding life imprisonment to accused A as in case involving Ghairat, lesser punishment has always been awarded-Held further: Conviction of appellant A under Section 302(b) PPG is altered to that under Section 302(c) PPC and sentence of imprisonment for life is reduced to one which he has already undergone, as he is in jail for about 8 years-However, sentence of fine is maintained-Appeal partly accpeted. [Pp. 590 & 591] A & B Mian Muhammad Sikandar Hayat, Advocate for Appellants. Mr. Masood Sadiq Mirza, Advocate for State. Date of hearing: 14.1.1999. judgment This appeal is directed against the judgment dated 15.10.1992 passed by Mr. Muhammad Saleem Qureshi, Additional Sessions Judge, Chiniot, whereby he convicted the appellant under Section 302/34 PPC and sentenced each of them to life imprisonment with a fine of Rs. 10,000/- each or in default thereof to undergo further R.I. for 3 years each. 2. Briefly stated the facts are that Sardol complinant (PW-1) and Mali father of accused/appellants own land adjacent to each other. They have got a joint tube-well. On 24.4.1991, complainant alongwith his son Zulfaqar aged 14/15 years were cutting fodder in their fields wheres Noora son of Amir and Hyder son of Mutalli were also present in their fields. At about 10.00 a.m., his son Zulfiqar went to the water-tap of Mali situated in his Dhari for drinking water. While he was drinking water, Akbar and Ashraf alias Hashoo son of Mali armed with a hatchet and Danda respectively emerged and Akbar raised Lalkaras that he (deceased) could not be allowed to go alive. On his (Akbar) Lalkara and hue and cry of Zulfqar, the complainant as well as Noora and Hyder were attracted on the spot. The accused Akbar inflicted successive hatchet blows on the left and right side of head of Zulfqar who consequently fell on the ground. Thereupon Ashraf alias Hashoo accused inflicted Danda blows on the neck, back and other parts of his body. The complainant and others tried to catch hold of the assailants but they succeeded in decamping from there with their weapons. The motive behind this occurrence is that on the previous night, their wheat crop was damaged by the accused and his son Zulfqar had abused the accused, who in order to take revenge of their disgrace, murdered his son Zulfqar. Leaving the dead body on the spot, he made for the Police Station to lodge FIR. 3. Muhammad Akram SI (PW-8) recorded FIR Ex. PA and then made for the place of occurrence. He prepared injury statement Ex. PH, inquest report Ex. PJ, rough site-plan Ex. PK and secured blood-stained earth vide memo Ex. PC. On 25.4.1991, he secured blood-stained chadar which was produced before him by Naseer Ahmad constable PW4 and prepared memo Ex. PB. On 26.4.1991, he got the place of occurrence visited and got the site-plans Ex. PF and PF/1 prepared from Zulfqar Ali Patwari (PW-6) which bears his notes in red ink. On 10.5.1991, he arrested both the accused Akbar and Ashraf alias Hashoo. On 13.5.1991, accused Akbar led to the recovery of hatchet P2 which he secured vide memo Ex. PD. On the same day, accused Ashraf alias Hashoo led to the recovery of Danda P3 which he secured vide memo Ex. PE. After completing investigation he got the accused challaned. 4. A charge under Section 302/34 PPG was framed against the accused to which they pleaded not guilty and claimed trial. 5. In order to bring home guilt to the accused, prosecution examined Sardol complainant as PW1 who corroborated his version appearing in FIR Ex. PA. Prosecution also examined Noora PW2 who is an eye-witness of this occurrence and who also attested the memos Ex. PC, PD and PE regarding securing of blood-stained earth and recovery of hatchet P2 and Danda P3 respectively. Khan Muhammad Head constable PW3 deposed that on 18.5.1991, he was given three parcels containing hatchet, Danda and blood­ stained earth for own-wards transmission to the office of Chemical Examiner which he delivered there intact. Nasir Ahmad constable PW4 stated that he escorted the dead-body of the deceased on 24.4.1991 and after the post mortem examination, was handed over one chaddar PI which he produced before the Investigating Officer who secured the same vide memo Ex. PBGhulam Murtaza Head constable PW5 deposed that he was given parcels containing blood-stained earth, blood-stained chaddar, hatchet and Danda for keeping in safe custody, that on 18,5.1991, he handed over three parcels containing blood-stained earth, hatchet and Danda to Khan Muhammad constable PW3 for onwards transmission to the office of Chemical Examiner Lahore. Zulfqar Ali Patwa"ri PW6 deposed about visiting place of occurrence and preparing site-plans Ex. PF and PF/1. Dr. Liaqat Ali PW 7 conducted the post-mortem examination of Zulfqar deceased on 25.4.1991 and found the following injuries on his person :- A lacerated wound 6 cm x 2 cm bone deep slightly on back of right side of head. A lacerated wound 7 cm x 2 cm x bone deep slightly on right side of head above right ear.A lacerated wound 6 cm x 2 cm bone deep slightly on rightside of head above right ear. A lacerated wound 3 cm x 1 cm x bone deep on left side of head 8 cm above left ear. A contused swelling 8 cm x 6 cm on left side of neck upper part, just on back of left ear, with a lacerated wound 3 cm x 2 cm bone deep in the centre. The neck was freely mobile and rolling about in all direction at this point. An abrasion 5 cm x 1 cm on outer side of left eye brow. An abrasion 5 cm x 3 cm on the left checks upper part. A contusion 10 cm x 2 cm on back of right side of neck lower part and back of right shoulder. A contusion 12 cm X 3 cm on back of left upper chest in upper part of left scapula.A contusion 12 cm x 3 cm on back of left chest middle and lower part. In his opinion, death had occurred due to Injury No. 5 which was fatal in nature and was sufficient to cause death in the ordinary course of nature. All other injuries were simple and caused by blunt-weapon. Probable time between injuries and death was within a few minutes or so while between death and post-mortem examination was within 6 to 18 hours. He produced correct carbon copy of the post-mortem examination Ex. PG and diagram of injuries Ex.PG/1 which bear his signature. He also signed the injury statement Ex. PH and inquest report Ex. PJ., PW 8 Muhammad Akram SI is the Investigating Officer whose evidence has already been discussed above. On 14.9.1992, the learned DDA produced report of Chemical Examiner Ex.PL and of Serologist Ex.PM and then closed the case for prosecution. 6. On 15.9.1992, statement of accuse Akbar was recorded under Section 342 Cr.P.C. wherein he denied the rosecution version and in reply to Question No. 7 as to why this case against him, he replied as follows : "The PWs are inter se related. They have falsely involved me and my brother in this case. In fact on the day of occurrence at Noon time my sister Mst. Mumtaz Bibi was washing the clothes alone on our Dhari near water pump. On account of summer season, none was present around. Zulfqar deceased suddenly went there and caught hold of my sister, tried to drag her inside the Dhari. She resisted. Zulfqar deceased removed his loin cloth and also removed the loin cloth of my sister, threw her on the ground and attempted to commit zina-bil-jabbar with her. My sister resisted and struck her head on the face of the deceased, raised alarm. I was grazing cattle at some distance. On hearing the alarm of my sister reached there and finding the deceased and my sister in naked condition I became hightly provoked. I picked up a sota from the water pump which was being used by my sister for washing the clothes and started giving blows on the back of the deceased while his face was down wards and he was lying on my sister under grave and sudden provocation. During this process Zulfqar deceased moved his head and his left side of neck struck against the stone lying at the water pump which was used for washing the clothes and thus he received injuries on the left side of his neck. I informed my father who accordingly informed the Complainant Party. There was no quarrel or no damage of wheat crop of the complainant and a false motive has been set up. The complainant or the PWs were not present at the time of occurrence. The case was registered after sun set on the men overing of Shaukat alias Nasseb Gill who has friendly relations with the 1.0. My brother Ashraf accused was not present at the spot"He also recorded his own statement on 17.9.1992 and produced his school leaving certificate Ex. D.A. Statement of Ashraf alias Hashoo accused was also recorded under Section 342 Cr.P.C. wherein he denied the prosecution version and also adopted the reply to question No. 7 as given by his coaccused Akbar. On 17.9.1992, his statement was also recorded without oath wherein he produced his school leaving certificate Ex. DB. The trial Court examined Nasir Ahmed Secretary Union Council as CW1 who produced birth certificates of the accused Ex. Cl and C2. Thereafter statement of Akbar accused under Section 342 Cr.P.C. was again recorded on 28.9.1992. 7. After going through the record and hearing arguments of learned counsel for the parties, the trial Court convicted the accused/appellants vide judgment under appeal. 8. Arguments have been heard and record perused. 9. It is submitted by learned counsel for the appellants that according to prosecution version the deceased was done to death by the accused/appellants when the former visited the Dhari of the latter for drinking water and was attacked by them, that actually occurrence has not taken place in the manner as disclosed in FIR Ex. PA but it occurred in the manner as disclosed in the statement of accused Akbar while replying to question No. 7, that contention of the accused stands corroborated even from the evidence of prosecution which has come on record through the statements of PW-1 Sardol complainant, PW-2 Noora, PW-7 Dr. Liaqat Ali and Muhammad Akram SI PW-8. He further argued that when Muhammad Akram SI PW-8 visited the place of occurrence, he found that the dead-body was lying on the spot with its back upward. He further found that the dead body was wearing a loin cloth around his waist but was without shirt and was not covered with any cloth at that time. He untied the loin cloth of thedeceased and covered the dead body with the same. He submitted that this condition of the dead body clearly shows that the deceased had tried to commit zina-bil-jabar with the sister of the accused as asserted by accused/appellant Akbar who out of sudden and grave provocation gave severe beating to the deceased. This contention of accused/appellant Akbar stands corroborated from cross-examination of Dr. Liaqat Ali PW-7 who admits that the dead body was naked when the same was produced for post­ mortem examination and was covered with a chaddar. He (PW-7) further admits that there is probability that injuries on the back side of the deceased had been caused which he was lying on the ground with his back upward. He further admits that injures which are on the back side could not be caused from front side. This admission on the part of Medical Officer, he further argued, supports the defence version that the deceased was done to death when he tried to commit zina-bil-jabar with the sister of accused Akbar. He further submitted that so far as motive ascribed to the accused/appellants is concerned, that is also not proved from the record.According to the prosecution version the present incident is the result of occurrence which had taken place a day earlier when the crop of the complainant was damaged by the accused party. Admittedly, no such damaged crop was shown to the Patwari who visited the place of occurrence on 26.4.1991. Similarly there is not mention of this fact in the inspection note which was prepared by Muhammad Akram SI (PW-8) who visited the spot just after the alleged occurrence. Had the wheat crop been damaged on the previous day of the occurrence, it must have been shown to the Investigating Officer who prepared the site-plans on 24.4.1991 as well as to the Patwari who specifically visited the place of occurrence on 26.4.1991. The non-mentioning of this fact either in the inspection note or in the site-plans Ex. PF and Ex.PF/1 clearly belies the motive part of the prosecution version. He further argued that the accused/appellants were arrested on 10.5.1991 and since then are in jail. He submitted that it was only accused Akbar who caused injuries to the deceased out of sudden and grave provocation when he saw the deceased in objectionable condition with his sister, and accused/appellant Ashraf has been falsely involved. He submitted that under similar circumstances, the punishment awarded ranges from 3 to 5 years and the appellant Akbar has been in jail for about 8 years as such the sentence awarded to the accused Akbar be modified to one which he has already undergone and accused/appellant Ashraf alias Hashoo be acquitted by giving benefit of doubt. 10. Conversely, impugned judgment has been supported by the learned State counsel. However, he candidly admitted that from the facts stated above, it appears that the defence plea has got force viz-a-viz the prosecution version. 11. As per prosecution version contained in FIR Ex. PA, the deceased was assaulted by Akbar and Ashraf accused when he visited the said Dhari for drinking water. Conversely, the stand of the defence is that the deceased had tried to commit zina-bil-jabar with Mst. Mumtaz Bibi, sister of accused Akbar, and it was only Akbar who caused injuries to the deceased out of sudden and grave provocation seeing him committing zinabil-jabar with his sister. Thus there are two versions of the occurrence and it is to be seen as to which of the versions stands proved from the evidence on record or appears reasonable, plausible and appeals to the mind of a prudent man. If both the pleas are examined in juxta position, then the defence version seems more plausible as it stands corroborated from the statement of Muhammad Akram SI PW8 who visited the place of occurrence just after the incident and found that the dead body was lying wearing only loin cloth around its waist and was without shirt. This defence version further stands corroborated from the statement of PW-7 Dr. Liaqat Ali who has admitted in his cross-examination that when the dead body was brought for post­ mortem examination it was lying naked and only chaddar was lying on it. If the stand of the prosecution, that deceased was attacked when he visited the Dhari for drinking water, is accepted as correct, then the question arises asto why the dead body of the deceased was lying naked with only loin cloth around his waist. The only logical inference which can be deduced from the condition of the dead body on the spot, is that the deceased had tried to commit zina-bil-jabar with the sister of the accused Akbar as asserted by him and who out of Gharirat i.e. sudden and grave provocation caused injuries with the weapon which he found on the spot. The defence version appears more plausible then the prosecution contention. This being the factual position, the learned trial Court was not justified in discarding and disbelieving the defence version and awarding life imprisonment to the accused Akbar as in cases involving Ghairat, lesser punishment has always been awarded. Reliance is placed on Ali Muhammad vs. Ali Muhammad and another (PLD 1996 SC 274) and Muhammad Ishaque alias Baig vs. The State (1998 P Cr. LJ 1110 Lahore ), wherein sentence of life,imprisonment was reduced to two years and 5 years respectively. 12. In view of the above discussion, the conviction of appellant Akbar under Section 302(b) PPC is altered to that under Section 302(c) PPC and sentence of imprisonment for life is reduced to one which he has already undergone as he is in jail for about 8 years. However, sentence of fine is maintained. So far as the question of involvement of Ashraf alias Hashoo is concerned, his involvement is not proved from the evidence which has come on record. The accused Ashraf alias Hashoo has been attributed Danda blows on the person of deceased. However, it has come on record through the statement of Dr. Liaqat Ali PW7 that injuries which are on the back side p. could not be caused from front side. He has further stated thatinjuries which are on the back side of the dead body might have been caused while it was lying on the ground with his back upward. The admission clearly rules out possibility of infliction of injuries on the part of Ashraf alias Hashoo accused/appellant. Thus rosecution has failed to prove his presence on the spot at the time of occurrence beyond doubt. Accordingly, appeal to the extent of Ashraf appellant is accepted. His conviction and sentence is set aside and he is ordered to be released forthwith if not required in any other case. 13. With this modification in the sentence of accused/appellant Akbar, the appeal stands disposed of. (AAJS) Appeal partly accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 591 Present: MUHAMMAD azam KHAN, J. MOHABAT KHAN etc.-Petitioners versus SAHIB GUL etc.--Respondents Cr. Misc. No. 136 of 1994, decided on 9.9.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A-Offence u/S 302 P.P.C. Compromised by parties-Directions to Ulaqa Magistrate by Addl. Sessions Judge to deliver possession of land belonging to accused to respondent party for completion of terms of compromise-Quashment of order on ground of litigation pending in Civil Court with regard to title of property-Prayer for-Bare reading of compromise would show that respondent was a party to compromise and that he had transferred 3 Jaribs of land to heirs of deceased through a mutation-Description of boundaries of land belonging to respondent have not been mentioned in compromise-Effect of civil litigation was not mentioned in grounds of petition but there is a reference to same in admitting note of High Court dated 17.11.1994-According to learned counsel for parties proceedings before Civil Court are in progress and final decision is awaited-Matter therefore, relates to question of fact which would require recording of evidence and its proper appraisal~In present petition a correct adjudication cannot be arrived at, as matter is already agitated before competent Court of civil jurisdiction--!! is CivilCourt which can give a decision with regard to rights and obligations of parties in relation to disputed property-Held: Without commenting upon rights and title of parties to disputed land it would only be just and fair not to interfere with matter leaving same to be determined by Civil Court-Petition stands dismissed. [P. 593] A, B, C & D Maazullah Barkandi, Advocate for Petitioners. Khalid Khan, Advocate for Respondent. Mr. Imtiaz All, .A.G. for the State. Date of hearing: 9.9.1998. judgment Mohabat Khan and 4 others have preferred petition under Section 561-A Cr.P.C. against Sahib Gul and 11 others. The matter under dispute is that a murder case was registered at the instance of Muhammad Riaz vide F.I.R. No. 81, dated 30.3.1982 of Police Station Lund Khawar. The Respondents Nos. 1 to 3 of the present petition were charged in the said report. After the registration of the case Respondents Nos. 1 to 3 were absconding and their property was attached under Section 88 Cr.P.C. after the arrest of the respondents somewhere in 1994 the Illaqa Magistrate released the attached property belonging to Sahib Gul etc. on 28.7.1994. 2. During the attachment of the aforesaid property, it was purchased by Mohabat Khan and his brother Abdul Ghafoor (now dead), the predecessor-in-interest of Petitioners Nos. 2 to 6 through a registered deed dated 23.9.1988. On the basis of this registered sale-deed Mutation No. 1717/1 was attested on 15.6.1988. Jambandi for the year 1980-81 Ex.G 1 would show that besides Amir Gul, Sahib Gul respondent was the owner of land to the extent of l/4th share. 3. The aforementioned murder case was compromised between the parties before the Additional Sessions Judge, Mardan at Takht Bhai and accordingly passed the impugned order on 13.10.1994 whereby the acquitted the accused and directed the Illaqa Magistrate to deliver possession of 20 kanals 5 marlas of land belonging to the accused to Sahib Gul enabling him to complete the terms of compromise. The learned Additional Sessions Judge before passing the impugned order had satisfied himself by recording the evidence of the Patwari Halqa in respect of the title of land which is the subject matter of the present dispute. Feeling aggrieved of the aforesaid order the petitioners Mohabat Khan and others have preferred the present petition. 4. I have heard the learned counsel for the petitioners, learned counsel for the respondents and the learned Assistant Advocate-General for Respondent No. 12. 5. The learned counsel for the petitioners argued that the impugned order was without jurisdiction and through illegal rder the property owned by the petitioners was directed to be delivered to the respondents for the satisfaction of the compromise. A perusal of the petition would suggest that the petitioners had challenged the compromise as a whole with a request to release the property in dispute as the same was in the ownership of the petitioners by virtue of their title created by the registered sale-deed dated23.2.1988. It is important to mention here that during the execution of the aforesaid deed the property under dispute was attached under Section 88 Cr.P.C. and the same was released on 28.7.1994. A bare reading of the compromise would show that Sahib Gul respondent was a party to the compromise and that he had indeed transferred 3 Jaribs of land to the heirs of the deceased through a mutation. The description of the boundaries of the land belonging to Sahib Gul have not been mentioned in the compromise. The learned counsel for the respondents produced certified copies of the plaint brought by Mohabat Khan and others in which Sahib Gul and others are defendants. It is Ex. C.3. The written statement in the aforesaid proceedings is supported by its production in this Court which is Ex. C. 4, The effect of civil litigation was not mentioned in the grounds of this petition but there is a reference to the same in the admitting note of this Court dated 17.11.1994. According to the learned counsel for the parties the proceedings before the Civil Court are in progress and final decision is awaited. 6. This matter, therefore, relates to question of fact which would require recording of evidence and its proper appraisal. In the present petition a correct adjudication cannot be arrived at. As the matter is alread/agitatedbefore the competent Court of civil jurisdiction. It is the Civil Court which can give a decision with regard to the rights and obligations of the parties in relation to the disputed property. 7. I am, therefore, of the considered view that without commenting upon the rights and title of the parties to the disputed land it would only be just and fair not to interfere with the matter leaving to same to be determined by the Civil Court . With these observations the petition stands dismissed. The above mentioned observations of mine and the observations made by the learned Additional Sessions Judge in his order dated 13.10.1994 in respect of the land in dispute shall have on effect on the merits of the case pending before the Senior Civil Judge, Mardan. (AAJS) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Quetta ) 594 (DB) Present: iFTiKHAR muhammad choudhary and amanullah khan yasinzai, JJ. ABDUL AZIZ-Appellant versus STATE and other-Respondents Murder Reference No. 16 of 1997 and Crl. App. 251 of 1997, decided on 21.10.1998. (i) Interested Witness- —An interested witness is one who is related to deceased and is also inimical to accused. [P. 601] A (ii) Qisas & Diyat Ordinance, 1990- —S. 302 & 324—Murder—Offence of—All eye-witnesses had been crossexamined at length but they were not shaken despite a lengthy crossexamination and nothing beneficial was brought on record in favour of appellant nor any enmity of witnesses against appellant was brought on record-Court has no reason to disbelieve witnesses merely because they are Pakhtoons when they had no reason or motive to falsely implicate accused in commission of offence even ethnic fight between Hazaras & Pathans was not proved-Injurned witness's statement was further corroborated by medical evidence-Presence of injurned witness's was also admitted by other eye-witnesses-All eye-witnesses have satisfactorily explained their presence at place of occurrence and have fully corroborated each other on material points, and despite a lengthy cross-examination intrinsic value of evidence has not been shaken-They were not inimical towards appellant, and their testimony cannot be descarded merely because they were Pathanas and appellant was a Hazara, thus they cannot be termed as chance witnesses-Witnesses though in their police statement have not given description of appellant but during Identification Parade appellant was properly identified by witnesses and it may be mentioned here that incident took-place in broad day light and it has come on record that prior to incident of firing appellant had a scuffle with injurned at crossing of Suraj Gan Bazar and Circular Road and from there appellant his two companions dragged injurned witness's towards Dakkan Pansar Store where appellant fired at deceased persons—Eye-witnesses, who have otherwise explained their presence, had ample time to have properly seen appellant; besides, it was stated that because of peciluar features of appellant as he was squinteyed; therefore, he could be easily identified-Even in his statement under Section 340(2) Cr.P.C. appellant has not disputed his presence before Magistrate-Statements of both witnesses recorded under Section 164 Cr.P.C. further leads to conclusion that both witnesses were present at the time of incident-Contention that there are contradictions in statements of witnesses, it may be observed that while going through ~ evidence, learned counsel for appellant pointed out minor contradictions in statements of eye-witnesses—Statement of eye-witnesses were recorded in Court after a period of more than one year of incident and such minor contradictions are but natural-It may be noted that intrinsic value of evidence has not been shaken despite a lengthy cross-examination by accused for appellant; thus minor contradiction pointed out by learned counsel for appellant are not of such nature which can disprove prosecution case in toto--Coming to alternative prayer of learned counsel for appellant regarding conversion of death sentence into life imprisonment, but Court do not feel persuaded to agree with learned counsel on this point-There are no extenuating circumstances to take a lenient view-Appellant has committed murders of two innocent persons-­ Appellant made three fires at one deceased and two fires at other deceased—Thus mode and manner in which deceased persons were done to death would not warrant any leniency in favour of appellant-Appeal dismissed. [Pp. 601, 602, 603, 605 & 606] B to G Mr. Muhammad Aslam Chishti, Haji Akhtar Zaman, Mr. Mumtaz Hussain Baqri, Advocates for Appellant. i Mr. Noor Muhammad Achakzai, Addl. A.G. & Mr. Nasrullah Khan Achakzai, Advocate complainant by Mr. Ensanulhaque Advocates for Respondents. Date of hearing: 18.8.98, 8.10.98,12.10.98. judgment ~" Amanullah Khan Yasinzai, J.-Appellant Abdul Aziz was tried by learned Special Judge, Suppression of Terrorist Activities Act (STA), Quetta under Sections 302 & 324 Qisas & Diyat Ordinance for committing murder of Haji Muhammad Isa and Gul Muhammad and injuring Hazrat. Vide I / judgment dated 15.9.97 the learned Sessions Judge/Special Judge STA, T Quetta convicted the appellant under Section 302 PPC for committing J murder of Haji Muhammad Isa; However, exonerated him from the murder of Gul Muhammad and sentenced him to death and a fine of Rs. 100,000/- after recovery to be paid to the legal heirs of the deceased. The appellant has Ichallenged his conviction by preferring the instant appeal and the learned Special Judge, STA has also referred to us this Murder Reference No. 1 6/97 under Section 374 Cr.P.C. This judgment shall dispose of both the appeal and the reference. 2. The unfortunate incident took place at Suraj Ganj Bazar, Quetta in front of Dakkan Pansar Store at about 7:30 A.M. on 29.6.1954, PW-12 Syed Hazrat was taking his cart ( <£% J ) f° r repairs. While crossing Suraj Ganj Bazar, the appellant and another person coming on a bicycle hit the cart on which a scuffle took place between the appellant and Syed Hazrat. Deceased Hqji Muhammad Isa intervened to separate them. Appellant fired at him and in the meanwhile Gul Muhammad tried to save Hqji Muhammad Isa but he was also fired at by the appellant. Both the deceased persons were shifted to hospital; later on they succumbed to injuries. After completion of investigation, challan was submitted before the Special Judge, STA, Quetta. Charge was framed on 3.4.95 which was denied by the appellant. To substantiate its case the prosecution produced 18 witnesses. A summary of the evidence is reproduced as follows: 3. PW-1 Amir Muhammad lodged report Ex. P/l-A with City Police Station alleging therein that he is doing business of dry fruit at Chohar MaiRoad, Quetta. His cousin Hqji Muhammad Isa had a shop on the crossing of Suraj Ganj Bazar and Circular Road, Quetta. Today at about 7:30 A.M. he was sitting with his cousin Hqji Muhammad Isa in his shop. In the meanwhile three persons who appeared to be Hazara from their appearance were beating a bearded person who was apparently a Pathan, with fists and kicks and the Pathan was dragged towards Dakan Pansar Store. In the meanwhile Muhammad Isa went to intervene and he heard fire-arm shotsand people started running hither and thither. When he went there he saw Hqji Muhammad Isa and another person lying on the ground. From the accused person he identified one (the appellant) who was apprehended the Traffic Sergeant alongwith a pistol. It is further alleged that the incident was seen by many people and that he shifted Hqji Muhammad Isa to the hospital. ! . 4. PW-2 Rafiullah Shah SI who was informed by the Moharrar of City Police Station about the said incident, came to the place of incident. He preserved the place of occurrence through Jan Muhammad SI and other police personnels and want back to the Police Station where Fard-e-Bayan Ex. P/l-A was brought to the hospital by Muhammad Tariq SI. During this period the appellant was brought to the Police Station by Sardar Ali Khan Head-constable and Faheem Akhtar, Traffic Sergeant. Sardar Ali, Headconstable produced a pistol to Muhammad Tafiq SI (PW-18). On unloading the same the pistol contained two bullets. The pistol was taken into possession vide recovery memo Ex. P/2-A and from there he proceeded to the place of occurrence alongwith Muhammad Tariq SI and took blood stained earth of deceased Muhammad Isa vide memo Ex. P/2-B and Ex. P/2-C. Four empty cartridges of 30 bore pistol were also taken into possession vide memo Ex. P/2-D and from the place of occurrence he accompanied the I.O. to Civil Hospital, Quetta where clothes of deceased Gul Muhammad was taken into possession vide inventory memo Ex. P/2-E; thereafter on 4.7.1994, the appellant disclosed that the pistol was a licensed one and the licence was lying in the shop. On the pointation of the appellant, the licence of the pistol was also taken into possession vide Ex. P/2-F. He also signed the site inspection of the place of occurrence prepared by the 1.0. vide memo Ex. P/2-G. PW-3 Pir Muhammad handed over the clothes of deceased Haji Muhammad Isa and taken into possession vide Ex, P/3-A. PW-4 Faiz Muhammad Patwari prepared scaled sketch of the place of occurrence on the pointation of the police, vide Ex. P/4-A. PW-5 Sardar All Shah apprehended the appellant with pistol when he was crossing from Masjid Road to Qandhari Bazar, while he was going on & bicycle soon after the occurrence and took him alongwith the pistol to the Police Station with the help of Fahim Akhtar, Traffic Sergeant. 5. PW-6 Dr. Umar Baloch examined Hqji Muhammad Isa in the Casualty Department, Civil ospital, Quetta and issued certificate Ex. P/6-E and found the following injuries on his person:- "(1) Gun-shot wound entrance left laterally in anterior chest circular 1^x1% c.m. Entrance gun-shot wound parabolic region of abdomen circular \ x 1%, c.m. Lacerated wound anterior aspect of left arm. Entrance gun-shot wound supra sternal region \ x \ c.m. with bleeding After emergency treatment shifted to emergency operation theatre. Deceased died during operation at about 12:00 noon in the Operation Theatre. The probable cause of death was injury on thorex an abdominal contents, excessive haemorrhage, shock and death. Kind of weapon fire arm." The body of the deceased was handed over to the heirs without post-mortem on the Order of SDM, Quetta. He also examined deceased Gul Muhammad on the same day and issued certificate Ex. P/6-B and found the following injuries:- "(1) Entrance gun-shot wound \ x h c.m. circular in shape with bleeding of the right side of back of the chest of the (scapular region). I (2) Entrance gun-shot wound on the anterior aspect of neck below the chin circular 1x1 c.m, with bleeding. After emergency shifted to Male Surgical Um't-I. The deceased expired on 3:55 a.m. on 20.6.94. The probable cause of death was injury on upper respiratory tract, internal bleeding, synosis, asphyia and death." 6. W-7 Muhammad Iqbal Inspector Fire-Arm Expert carried out _ microscopical examination of the pistol and the four empty cartridges andissued certificate Ex. P/7-A, opined that the four empty cartridges had been fired from the said pistol. PW-8 Dr. Manzoor Hussain examined Syed Hazrat and found the following injuries:- "(1) confused swelling above the right eye-brow 5x2 cm. (2) blunt injury on left side of mandible region. (3) Scratching on right wrist joint. and issued certificate Ex. P/8-A. 7. PW-9 Hadran Zarkoon EAC/MFC-1, Quetta supervised the Identification Parade of the appellant on 3.7.94 in City Police Station at the request of Muhammad Tariq SI. In his presence PWs Syed Hazrat, Haji Muhammad Ayyub, Namatullah and Abdul Ban were called to identify the appellant wherein Syed Hazrat could not identify the appellant. However, the other PWs identified the appellant He issued Identification Parade memos Ex. P/9-A, Ex. P/9-B, Ex. P/9-C and Ex. P/9-D. 8. PW-10 Hqji Muhammad Ayyub is an eye-witness and saw theappellant Abdul Aziz firing upon deceased uhammad Isa and had taken deceased Muhammad Isa to Civil Hospital, Quetta and he was called by the police to identify the appellant during the Identification Parade in presence of PW-9. He also recorded his statement u/S. 164 Cr.P.C. before the EAC in presence of the appellant. PW-11 Pvahim Shah Abdullahzai EAC/MFC-VHI, Quetta recorded statement of PW Syed Hazrat under Section 164 Cr.P.C., on the letter ot wOM/MFC, Quetta vide Ex. P/ll-B in presence of the appellant vidt Ex. P/ll-C and appended his certificate Ex. P/ll-D and sealed the said statement in an envelope vide Ex. P/ll-A. PW-12 Syed Hazrat who was taking his cart to Circular Road Quetta on the day of incident for repair when his cart was hit by the appellant alongwith another person coming on a cycle and a scuffle started between them and while scuffling, they reached Dakan Pansar Store where Haji Muhammad Isa intervened and the appellant fired at him and Gul Muhammad. PW-13 Arbab Abdul Zahir, EAC/MFC, Quetta on the letter of AC/SDM, Quetta Ex. P/13-B, recorded the confessional statement of PW Ayyub vide Ex. P/13-C and appended his certificate Ex. P/13-B and sealed the same in envelope vide Ex. P/13-A. PW-14 Amanullah is an eye-witness and saw the appellant firing at the deceased person and identified the appellant in the Court. PW-15 Abdul Bari is also an eye-witness and at the relevant time was passing near Dakan Pansar Store at Suraj Gary Bazar, Quetta where he saw that the appellantfired two/three shots at Hqji Muhammad Isa and during this period whenGul Muhammad came near Hqji Muhammad Isa, he was also injured. He also identified the appellant during Identification Parade vide Ex. P/9-D. PW-16 Syed Abdul Jabbar, Chemical Expert FSL Crimes Branch, Quetta carried out chemical analysis of the blood-stained shirt, Shalwar, vest (o) and issued certificate Ex. P/16-A. PW-17 Namatullah is an eye-witness. He at the relevant time was crushing ice-cream in the shop situated at Qndhari Bazar, Quetta where he saw the appellant and other persons beating the Rehri Wala. In the meanwhile when deceased Muhammad Isa and othersalso reached near Dakan Pansar Store, the appellant fired at the deceased and another person and after the firing made their escape good from the place of occurrence. He also identified the appellant in Identification Parade held in City Police Station. 9. PW-18 Muhammad Tariq SI was entrusted with the investigation of the case. He recorded statement of the witnesses, made recovery of the licence at the instance of the appellant, visited the place of occurrence and prepared sketch of the pistol Ex. P/18-A, inquest report Ex. P/18-C, siteplan Ex. P/18-B and handed over body of the deceased Muhammad Isa to his heirs vide receipt Ex. P/18-D, prepared inquest report of the deceased Gul Muhammad, Ex. P/18-E and handed over his body to his heirs vide receipt Ex. P/18-F, conducted Identification Parade of the appellant in City Police Station and the pistol was sent to Fire-arm Expert and the blood stained clothes of the deceased persons to analyst and prepared interim challan Ex, P/18-G and thereafter submitted challan Ex. P/18-H. 10 The appellant was examined under Section 342 Cr.P.C. in which he denied the prosecution case and also recorded his statement under — Section 340(2) Cr.P.C. and produced DW Sajjad Hussain. 11. The learned Special Judge STA, Quetta after assessing the evidence on record convicted the appellant as mentioned hereinabove. 12. We have heard M/s. Muhammad Aslam Chishti arid Akhtar ' Zaman Advocates for the appellant, Mr. Ehsan-ul-Haque Advocate for the complainant party and Mr. Noor Muhammad Achakzai, learned Additional Advocate General for the State. | 13. Mr. Muhammad Aslam Chishti Advocate contended as follows:- (i) That the trial Court has misread the evidence and the eye witnesses who claim to have witnessed the incident were actually interested and chance witnesses and without corroboration, their statements cannot be relied upon. (ii) That the Identification Parade by the eye-witnesses cannot be relied upon as none of the witnesses has given any description of the appellant in their statements before thej police. (iii) Reliance on the statements of witnesses under Section 164 Cr.P.C. was not proper. (iv) Recovery of pistol is defective, thus it has been wrongly relied upon. (v) Report of ballistic expert has been wrongly relied upon as prosecution failed to give any explanation for sending the empties and pistol to the expert after a considerable delay. (vi) There is no motive for the commission of the offence. (vii) The learned counsel in the alternative prayed for if the Court does not consider his contentions raised above, then the death sentence be converted into life 14. Mr. Ehsan-ul-Haq Advocate for the complainant argued: - (i) That the eye-witnesses have explained their presence at the place of occurrence and had no motive to falsely implicate the appellant in the commission of the offence. (ii) That the witnesses have stated before the police that they can identify the appellant. (iii) That the statements of the eye-witnesses under Section 164 Cr.P.C. cannot be discarded because the appellant was given gull opportunity to cross-examine the witnesses. (iv) That the appellant had killed two innocent persons, thus no lenient view can be taken. 15. Mr. Nasrullah Khan Achakzai, Advocate for the State supported the judgment of the trial Court and adopted the arguments of Mr. Ehsan-ul- Haque Advocate. 16. With the assistance of the learned counsel for the parties we have gone through the record of the trial Court, perused the impugned judgment and have considered the arguments advanced by the learned counsel for the parties. 17. It may be pointed out that the prosecution case hinges upon the following pieces of evidence:- (i) The ocular evidence furnished by PW-1 Amir Muhammad, PW-10 Haji Muhammad Ayyub, PW-12 Syed Hazrat PW-14 Amanullah, PW-15 Abdul Bari and PW-17 Namatullah.(ii) The identification of the appellant by PWs Nos. 10 14, 15 and 17. (iii) The arrest of the appellant by PW-5 Sardar Ali Shah Head-constable soon after the occurrence at a short distance from the scene of occurrence, and recovery of crime weapon from his possession. (iv) Report of the ballistic expert regarding empties recovered from the place of occurrence to have been fired from the pistol recovered from the possession of the appellant. (v) Statements of the prosecution witnesses recorded under Section 164 Cr.P.C. in presence of the appellant.

PLJ 1999 Cr PLJ 1999 Cr.C. (Peshawar) 606 Present: MUHAMMAD AZAM KHAN, J. FAKHAR-UZ-ZAMAN and 2 others-Appellants versus STATE and another-Respondents Cr. A. No. 1 of 1997, decided on 1.10.1998. Pakistan Penal Code, 1860- S. 302/109/120-B/34-Murder--Conviction for»Challenge to-At time of occurrence witness's age could not be above 7 years, therefore, no implicit reliance can be placed on his testimony alongwith further corroboration— o independent corroboration is forthcoming on record to connect accused with crime who are four in numtei while occurrence seems to be act of one man and that also in uarkness in early hours of morning- Alleged weapon of offence i.e. .30 bore pistol recovered at instance and pointation of H accused would also be of no avail to prosecution as empty recovered from spot was not found to have been fired from same in view of report of fire-arm expert-Vaginal Swab obtained from deadbody of deceased did not reflect semens on it—Evidence produced by prosecution ould not corroborate ocular account in any manner-Prosecution besides introduced motive for offence that deceased had seen daughter of F in an objectionable position with H accused and that deceased had once informed Mst. A accused that her daughter was following an immoral life and that she should arrange her marriage as early as possible-No such motive or reason was mentioned in mzzrasz'/a-Introduction of motive at a belated stage looses its credibility also as it does not find support from any other independent source-Yet another piece of evidence on which prosecution relies is identification of accused H by child witness-­ Identification is of no avail to prosecution as accused H was already known to child witness being his close neighbour, therefore, it has no probative force-Charge, therefore, of prosecution brought against accused-appellant is on L-sis of solitary statement of child witness whose statement is based on suspicion and is full of improvements which has no credence-It is a case which seems to be act of one person whereas four persons were charged, convicted and sentenced by trial Court on extremely weak evidence-No individual role has been attributed to each of accused-appellants nor there is evidence to connect them with abetment or conspiracy-Appeals accepted. [Pp. 610 & 611] A, B & C Saud Akhtar Khan, Advocate for Appellant. Rashidul Haq Razvi, Advocate and Complainant Present in Person. Date of hearing: 1.10.1998. judgment Fakhar-uz-Zaman son of Haider Zaman, Mst. Ansar Jan wife of Fakharuz Zaman, Muhammad Arif son o f Fakharuz Zaman and Hassan Gul alias Hussaina son of Nemat, Gul, residents of Mohallah Qazian, Sector No. 4 Kalabat Township, Tehsil and District Haripur, were charged in F.I.R. No. 1156 dated 10.10.1993 of Police Station Haripur for offences under Sections 302/109/120-B/34 P.P.C. for having committed the murder of Mst. Kishraf wife of Abdur Rashid inside her residential Kotha at about 0.30 hours on 10.10.1993. The accused were tried by the Additional Sessions Judge, Haripur and vide his judgment dated 14.12.1996 they were convicted under the aforesaid sections of law and sentenced to undergo 10 years R.I. each and also to pay Diyat amount of Rs. 2,20,OOO/- i.e. Rs. 55.000/- each. In case of non-payment' of Diyat amount they will undergo simple imprisonment till Diyat amount is paid on their behalf. The Diyat amount on realization was ordered to be paid to the legal heirs of the deed: and that this amount is to be recovered as land revenue. The benefit of Section 382-B Cr.P.C. was also extended to the appellants. Aggrieved from the aforesaid conviction and sentences the accused-appellants have preferred two separate appeals (1) Cr. A. No. i of 1997 by Fakhr-uz-Zaman and two others and (2) Cr.A. No. 3/1997 by Hassan Gul alias Hnssina. We propose to dispose of both these appeals by this single judgment. 2. The facts of the prosecution case are that Fakhr-uz-Zaman sou cf Haider Zaman one of the present appellants who was accompanied by Haji Afzalul Haq reported the present incident before Muhammad Nazir A.S.I. of P.P. K.T.S. at 02.40 hours in the Hlaqa where the police party was on petrol duty to the effect that his brother namely, Abdur Pvashid a driver by profession was away from his house for about 6 days while his wife Mst. Kishraf alongwith 4 children were living in the house and that on the night of occurrence he alongwith his wife was asleep in another Kotha besides ] their cattle when his son Muhammad Arif who was present in another 1 Kotha informed him that Mst. Kishraf had been murdered by someone. 2 Upon this information he went to the kotha of the deceased where he found j her killed on a cot. According to him there were some blood stains near the j cot longwith an empty shall and broken pieces of bangles. He stated that I blood was oozing out from the injuries of the dead: from near her nose. He c accordingly went out and nformed Haji Afzalul Haq and narrated the occurrence to him. They were yet to proceed to the Police Station when the police arrived and he reported the matter. Since they had no nmity with s anyone, therefore, he did not charge anybody. The murasila was sent to the s Police Station for registration of the case where it was correctly incorporated t; in the .I.R. Ex. P.A. I K 3. After recording the report Muhammad Nazir Khan A.S.I. (P.W. 11) proceeded to the spot where he prepared the injury sheet Ex. P.W. 11/1, nquest report Ex. P.W. 4/2 of the deed:. He sent the deadbody for P.M. examination under the escort of Abdul Shakoor No. 108. He picked up blood stained earth from underneath the cot, ne empty of .30 bore pistol freshly discharged Ex. P. 12. He also took into his possession few pieces of bangles of green colour Ex. P. 13 and a piece of matress blood stained. All the rticles were recovered from the spot in presence of the witnesses. He prepared the site-plan Ex. P.W. 11/3 at the instance and pointation of the P.Ws. The site-plan was correct with all its oot notes, drawing and sketches and bears his signature correctly. He then recorded the statements under Section 161 Cr.P.C. of the P.Ws. He sent the empty shell and the blood stained arth to the laboratory for Chemical Examination. He also took into Pi bis possession the P.M. report and the blood stained clothes of the deceased which were brought from the mortuary ide memo Ex. P. 2/1. During the course of investigation the same morning he arrested Fakhr-uz-Zaman accused who had made the report in the instant case. On the following day accused Hassan Gul was arrested on the basis of investigation and interrogation. On 12.10.1993 Hassan Gul accused while in hand cuffs led the police party to a water channel from where the I.O. recovered one pistol Ex. P. 1 with a holster black Ex. P. 5, 8 filled cartridges Ex. P. 2, one magazine Ex. P. 3, two cartridges of .30 bore all wrapped in black shopping bag Ex. P. 14. The recovery memo of the same is Ex. P.W. 1/1. He also took into possession a pair of clothes consisting of shalwar Ex. P. 10 and shirt Ex. P. 11 of Hassan Gul accused vide memo Ex. P.W. 3/1. After completion of the investigation the I.O. handed over the investigation to the S.H.O. for submission of the challan in Court. 4. Dr. Farhat Yasmin Women Medical Officer(P.W. 4) conducted autopsy on the deadbody of Kishraf Khanum wife of Abdul Rashid and found the following injuries on her person on external examination:- 1N JURIES: A young woman of about 35 years old wearing blue colour clothes. No hole or tears seen in the clothes. Rigor mortris developed. No mark of ligature seen on neck. No mark of violence on the rest of the body. 1. An entrance wound on right side of the nose in size of 1 CM x \ C.M. oval in shape, edges burnt and inverted. 2. An exit wound behind right ear in size of 2 C.C. x 2 C.M circular in shape and edges everted. On internal examination the doctor found right side maxillary bo.ne fractured, brain stem damaged, right temporal bone fractured and blood was oozing from exit wound. The doctor opined that death occurred due direct injury to brain by fire-arm inclose contact .to the right side of nose. Time between injury and death was recorded to be immediate and time between death and post-mortem examination was about 5 to 6 hours. The P.M. report is Ex. P.W. 4/1 and the inquest report is Ex. PW. 4/2. The P.M. report including pictorial is in the handwriting of the doctor. 5. After receipt of complete challan by the trial Court the accused ere formally charge sheeted to which they did not plead guilty and claimed trial. On denial of the accused from the charges levelled against them, the prosecution was directed to produce its evidence. 6. The prosecution in support of its case, examined as many as 11 Witnesses. The important witnesses in this case are Mukhtar Azam (P.W. 8) son of the deceased and Dildar (P.W. 10) brother of the deceased, besides the recoveries of the crime empty from the spot broken bangles of the deceased, .30 bore pistol on the pointation of Hassan Gul accused, blood stained earth from the kotha of the deceased and the identification of Hassan Gul accused by Mukhtar Azam (P.W. 8) before Muhammad Sadiq Tehsildar Haripur (P.W. 5). 7. We have heard Mr. Saeed Akhtar Khan, Advocate for the appellants in Cr. A. No. 1 of 1997, Mr. Abdullah Jan Mirza, Advocate for the appellant in Cr.A. No. 3 of 1997 and Mr. Rashidul Haq Qazi, Advocate for the State in both the appeals. Record of the case perused. 8. The learned counsel for the appellants contended that it was an unwitnessed occurrence without any motive and the circumstantial evidence in support of the alleged eye-witness Mukhtar Azam lacks credibility and as such the accused were entitled to acquittal. On the other hand, the learned State counsel supported the impugned judgment by re-iterating the reasons contained therein. He vehemently contended that the ocular testimony of Mukhtar Azam (P.W. 8) may be given due weight as he was an independent and natural witness being inmate of the kotha where the occurrence took-place. 9. We have evaluated the entire evidence on which the prosecution case rests. It is important to observe that no one was charged in the F.I.R. yet on the following morning the Investigating Officer recorded the tatement of Mukhtar Azam (P.W. 8) under Section 1 61 Cr.P.C. in which he had suspected Fakhr-uz-Zaman accused for the offence. This statement, however, was recorded by the 1.0. after the witness had informed his maternal uncle Dildar (P.W. 10) at Kot Najibullah who also came to the village of occurrence and got his statement recorded under Section 161 Cr.P.C. We further observed some over-writing in the original murasila Ex. P.A/1 wherein the time of occurrence appears to have been tampered at two places which are underlined in red pencil, from 9.20 hours to 2.40 hours. It can, therefore, safely be inferred that P.W. Mukhtar Azam who was of tender age at the time of occurrence could easily be influenced by his maternal uncle P.W. Dildar or someone else or could easily be tutored. We had the opportunity of examining Mukhtar Azam in Court and according to our observations he was hardly 10 years of age, while the occurrence had taken place in the year 1993. The calculation of time would suggest that at the time of occurrence his age could not be above 7 years, therefore, no implicit reliance can be placed on his testimony alone without further corroboration. In the instant case no independent corroboration is g forthcoming on the record to connect the accused with the crime who are four in number while the occurrence seems to be the act of one man and that also in darkness in the early hours of the morning. The alleged weapon of offence Le. .30 bore pistol Ex. P. 1 recovered at the instance and pointation of Hassan Gul accused would also be of no avail to the prosecution as the empty recovered from the spot was not found to have been fired from the same in view of the report of the fire-arm expert Ex. P.W. 11/8 available on the file. The viginal swab obtained from the deadbody of the deceased did not reflect semens on it vide report Ex. P.W. 11/7. In the circumstances, the evidence produced by the prosecution as narrated above could not corroborate the ocular account in any manner. The prosecution besides introduced the motive for the offenee that the deceased had seen the daughter of Fakhr-uz-Zaman namely Ms?. Rukhsana in an objectionable position with Hassan Gul accused and that the deceased had once informed Mst. Ansar Jan accused that her daughter was following an immoral life and that she should arrange her marriage as early as possible. Interestingly no such motive or reason was mentioned in the murasila Ex. P-A/1. This introduction of the motive at a belated stage looses its credibility also as it does not find support from any other independent source. Yet another piece of evidence on which the prosecution relies is the identification of Hassan Gul accused by P.W. Mukhtar Azam. To our mind this identification is of no avail to the prosecution as Hassan Gul was already known to P.W. Mukhtar Azam being his close neighbour, therefore, it has no probative force. The charge, therefore of the prosecution brought against the accused-appellants is on the basis of the solitary statement of Mukhtar Azam P.W. whose statement is based on suspicion and is full of improvements which has no credence. To our mind it is a case which seems to be the act of one person whereas four persons were charged, convicted and sentenced by the trial Court on extremely weak evidence. No individual role has been attributed to each of the accused-appellants nor there is evidence to connect them with abetment or conspiracy. 11. For the aforementioned reasons both the appeals are accepted and the conviction and sentences of all the appellants are set aside. They are acquitted of the charge levelled against them. They be set at liberty forthwith if not wanted in any other case. (K.K.F.) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 611 (FB) Present: rashid Aziz khan, C. J.; mian allah nawaz, tanvir ahmad khan, khalil-ur-rehman ramday and karamat nazir bhanadari, JJ. STATE-Appellant versus SAMI ULLAH etc.-Respondents Crl. Org. No. 72-M of 1997, decided on 29.10.1998. Contempt of Courts Act, 1976 (LXIV of 1976)-- —-S. 4-Contempt of Court-Case of~No doubt, respondents/contemners have. admitted their guilt and have tendered their unconditional apologies-Neverthless, it is crystal clear that Court was maligned and contempt committed was well planned and of grossest willful misdemeanour-Respondents even did use God Almighty for their nefarious purpose-Not even that, one of respondents addressed a Press Conference-Respondents had committed vilest contempt-They had tried to mobilize public opinion against Judges of High Court-They have even tried to use house of God Almighty-Their unconditional apologies are not adequate to meet damage which they had done—Road to mobocracy leads to violence and then after substitution of private vengeance in place of an organized administration of justice-This ultimately results into anarchy- However, Court inclined to accept their unconditional apologies-Plea of respondents, however, can be legitimately considered in matter of inflicting punishment upon them-Appellants tendered their unconditional apologies on 23.9.1998, and have reiterated same through Advocate-Taking aforesaid circumstances into consideration, Court is inclined to impose lesser sentence-Each of respondents is accordingly convicted under ection 4 of Contempt of Courts Act 1976 and is sentenced to suffer imprisonment till rising of Court and to pay fine of Rs. 2,0007- each, or to undergo 7 days' imprisonment in default of payment of fine-Each convict was allowed seven days time to pay said amount of fine, and if said fine was not paid within said period, then each defaulting shall be taken into custody to suffer imprisonment directed to be undergoing in default of payment of said fine. [P. 620] A Mr. Ashtar AusafAli, Advocate General alongwith Mr. Iqbal Ahmad Khichi, A.A.G. for Petitioner. Mr. Muhammad Shahzad Shaukat, Advocate for Respondents. Date of hearing: 29.10.1998. judgment Mian Allah Nawaz, J.--The sole question, that falls for adjudication in this Criminal Original No. 72-M of 1997, is whether the circumstance of submission of unconditional apology by respondents/ accused totally purges them from the consequence of their misdemeanour and entitles them to discharge as a matter of right. 2. The unfortunate events, which are not in dispute and which happened on 29.8.1997 are these : On that day, a procession, consisting of 100/150 led by two Members of Provincial Assembly Punjab namely, Sami Ullah Chaudhri and Ch. Afzal Gil, went to the High Court premises at Bahawalpur Bench and shouted abusive slogans against the Judges of the High Court as well as the Court. Confronted with this situation, our brother Sh. Amjad Ali J. immediately brought that matter to the notice of the Chief Justice. Pursuant to that, the Honourable Chief Justice directed that notices be issued to Sami Ullah Chaudhri and Ch. Afzal Gill MPAs to show cause as to why they should not be committed for contempt of this Court. The Commissioner Bahawalpur Division was also directed to make a probe and report the names of other participants of procession. On 1,9.1997, a copy of daily Siadat Bahawalpur was placed before the Honourable Chief Justice from where it was gathered that apart from aforesaid two legislators, three other persons namely, Muhammad Iqbal Mehr, Divisional President of Muslim league Youth Wing, Mr. Qayyum Mazhar Khan, President City Muslim League Youth Wing and Mr. Tahir Janbaz had also participated in the said procession, which had thereafter gone to Jamia Masjid Bahawalpur where Sami Ullah Chaudhri, Muhammad Iqbal Mehr and Qayyum Mazhar Khan delivered disparaging speeches against the learned Judges of this Court. Resultantly, Notices were issued to the aforesaid persons under Section 3 of the Contempt of Court Act 1976. Mr. Sami Ullah Chaudhri, Ch. Afzal Gill, Muhammad Iqbal Mehr, Qayyum Mazhar Khan and Tahir Janbaz entered appearance alongwith Mr. Shaukat Shehzad, Advocate. Meanwhile, Commissioner Bahawalpur Division made a report that 13 other persons, namely, Chacha Rasul, Rana Muhammad Sarwar, Qayyum Azam, Muhammad Akram Javed, Aapa Feroz, Syed Fargham alias Farri, Abdul Khaliq Qureshi, A.D. Raza, Gulzar Ahmad Ghauri, Muhammad Akram Bhatto, Javed Ahmad Advocate and Tahir Bashir were also the participants of that procession of 29.8.1997. Accordingly, Notices were issued to the aforesaid persons too. All of these persons finally entered appearance and filed affidavits wherein they submitted unconditional apologies and put themselves at the mercy of this Court. It is to be noted that Aapa Feroz was not in attendance on that date of hearing due to her ailment. The hearing of the Criminal Original was postponed from one date to another on account of variety of reasons. Suffice it to note that instant suo moto matter came before this Bench on 22.10.1998 as a consequence of order of my lord the Chief Justice dated 30.8.1997. On that date of hearing Mr. Sami Ullah Chaudhri and Muhammad Afzal Gill appeared alongwith Mr. Shehzad Shaukat Advocate. As the remaining accused were not present due to absence of service, hearing was postponed to 29.10.1998. On this date of hearing, all the respondents/ contemners entered appearance. Learned counsel for accused/respondents relied upon Syed Masroor Ahsan & others vs. Ardeshire Cowasjee and others PLD 1998 SC 823 to contend that all of respondents had submitted their uncondition apology on 29.10.1998; that their apology was wholly sincere and be accepted as such. On the strength of rule laid down in Masroor Ahsan's case it was canvassed that all the contemners be condoned and be discharged. Learned Advocate General adopted the same line of arguments. At the fag end, Mr. Mumtaz Hussain Bazmi, Advocate learned Member of the High Court Bar Association came forward and stated that he had authority to say that apology tendered by respondents be accepted; that all of them were highly repetent and beseeched forgiveness with folded hands. We have heard the learned counsel for the parties at length, and examined the contents of affidavits submitted by respondents/contemners. Historically, the States and Courts of law are as ancient as olderly States. An organized State thrives on the civilized behaviour of its citizens and laws which are just and benevolent. In the scheme of organized State, Courts are the arbiters of dispute between citizens inter se and citizens and State. So the fundamental obligation of Court is to keep scales of justice even. The powers of the Courts to punish their contempt emanates from the above sacred obligation. Majesty of Courts and supremacy of Rule of Law are synonymous olderly State regardless of their form. Hazrat Imam Ghazali in a famous work "fV 1 ^ 1 " said 'A state can exist on ' j&f ' but not on in justice". So is the paramount necessity of wholly independent and effective judiciary. Two passages from two celebrated works in this context are pertinent; these are famous 'Badaye' Volume VII by Allama Abu Bakar Alaud-Din Alkasani and Law of Contempt by Oswald. The relevant passage from 'Badaye' is reproduced asunder:- There occurs a passage in Law of Contempt by Oswald who has taken it from the book authored by Sir Thomas Elyot. The same is as under: - "The most renowned prince King Henry the fifth, late King of England, during the life of his father was noted to be fierce and of wanton courage. It happened that one of his servants, whom he favoured very much, was arraigned before the Kings Bench for felony committed by him and the prince learning of this in furious rage came hastily to the bar where his servant stood as a prisoner and commanded that he be set at liberty, whereat all men were abashed, except the Chief Justice, who humbly exhorted the prince to be contended that his servant might be ordered according to the ancient laws of the realm or if he would have him saved from the rigours of the laws, that he should if he liked appeal to the King, his father, to grant him his gracious pardon. By this answer the prince was not appeased, but rather more inflamed, and made an attempt to take away his servant. The Judge considering the perilous example and inconvenience that might thereby ensue with a valiant spirit and courage commanded the prince upon his allegiance to leave the prisoner and depart his way. As the prince was still in fury, he in a terrible manner came up to the place of judgment and the men present in Court thought that he would slay the Judge or cause him some injury. The Judge, however, sitting still, without moving, declaring the Majesty of the King's place of judgment, and with an assured and bold continuance, addressed the price with "Sir, remember yourself, I keep here the place of the King, your sovereign lord and father, to whom, you owe double obedience. In his name, I charge you desist from your wilfulness and unlawful enterprise and thereby give good example to those who hereafter shall be your subjects. And now for your contempt and disobedience I send you to the prison of the King's Beach where I commit you and direct that you shall remain there until the pleasure of your father, the King, be further known." Upon these words the prince was abashed and laying Ms weapon apart and doing reverence, dapearted and went to the King's Bench as he was commanded. His servants felt disdainful at this and came and told the King of what had happened, whereupon, in all gladness the King holding his hand upward said in a loud: '0 merciful God, how much am I above all other men bound to your infinite goodness, especially because you have given me a Judge who fears hot to administer justice and also a son who can suffer and obey justice." The abovesaid passage though pertaining to different jurisprudential cultures highlights the importance of Judiciary, the position of 'Qazi' and decorum of Courts. These were incorporated by our founding fathers in the Constitution of Islamic Republic of Pakistan, 1973. Article 204 embodies these rules. In the context of above, we now proceed to consider the effect of unconditional apologies of respondents/condemners. This was examined by the Apex Court as back as 1954 in a case reported as Israr Hussain vs. The Crown PLD 1954 SC 313, and it was held asunder: - "Any allegation which undermines the confidence of the public in a Court of Justice is a complete of that Court. And public confidence in a Court is undermined as much by attributing dishonesty and corruption as partiality or incompetency to it. 'The arraignment of justice of the Judges, said Mr. Justice Wilmot, is arraigning the King's justice; it is an impeachment of his wisdom and goodness in the choice of his Judges and excites in the finds of the people a general dis-satisfaction with all judicial determination and indisposes their minds to obey them; and whenever men's allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice. It does not make the slightest difference whether the contempt of a Court is committed in that Court, or in a sub-ordinate Court or in a Superior Court or on the roadside, or in a club room in Pakistan or outside Pakistan, and it has never been doubted that a Contempt of Court by a member of the legal profession is a 'reasonable cause' for taking disciplinary proceedings against him, the reason being that any such conduct on the part of an Advocate reveals a mental defect which, so long as it lasts renders him unfit to remain a part of the system which he seems to damage by bringing it into contempt". I adhere to that opinion still and with greater conviction, and nothing has come to my notice since to make me entertain any doubt as to the correctness of that principle." The rule enunciated in PLD 1954 SC 313 was reiterated in another case reported as Yusuf All Khan, Barrister at Law vs. The State and Arif Nizami's case PLD 1971 SC 72. Speaking for the Bench, his Lordship Mr. Justice Hamoodur Rehman, the then Chief Justice of Pakistan said: "I have now to consider as to what is the effect of the unqualified apology tendered on behalf of the contemners. An apology does not provide the contemner with an absolute excuse for the offending publication nor does it entitle him to a discharge as of right, for, it cannot remedy the evil caused or the harm done to the administration of justice by shaking the confidence of the public in the Court or a particular Judge of the Court. It is only a mitigating circumstance and no more, but even in this respect an apology in order to dilute the gravity of the offence must evidence a real contriteness and an earnest desire to make amends or as has been said in some cases must be a "manful confession of conscious wrong doing". Let no one be under the impression that the press enjoys any special privilege of traducing the Judges nor should there be any impression that after one has grievously slandered and scandalized a Judge of a superior court he can come to the Court and get away with it by merely tendering an apology. Such a tendency must be curbed in the public interest itself. If Judges are exposed to such slanderous attacks, their independence is bound to be shaken and it might well result in destroying the independence which the Judges have hitherto so creditably maintained. It is the duty of the Court, therefore, to protect its Judges and to see that the confidence of the public in their administration of justice is not undermined. There can be no question, therefore, of treating the apology as a full amend for the grave harm that has been caused to the reputation good name and honour of one of the Judges of this Court." The aforesaid rule was followed by a Full Bench of the Lahore High Court in a case reported as Habibul Wahab Elkheri vs. Sh. Shaukat All, Advocate PLD 1976 Lahore 373. We have come across a precedent of the Apex Court of our neighbouring although hostile country India (AIR 1970 SC 2015). In this case, Mr. E.M.S. Namboodripad appellant/former Chief Minister of Kerala State held a press occurrence in which he said that Marx and Engels considered the Judiciary as an instrument of oppression and even today when the State set-up has not undergone any change, it continues to be so; that the Judges were/are swayed by class hatred, class interests and class prejudices. On these utterance, the High Court of Kerala initiated action against him under the law of contempt. Accordingly, the appellant appeared before the Court and stated that utterance attributed to him did not offend the majesty of law, undermine the dignity of Courts or obstruct the administration of justice; that his statement was in line with the philosophy of his political party; that if it was not so felt, he offered his unconditional regret. The Full Bench of Kerala High Court held that he was guilty of contempt and sentenced him to pay an amount of Rs. 1,000/- or one month's simple imprisonment in default of the payment of fine. Feeling aggrieved, the appellant filed an appeal which was dismissed by the Apex Court. The plea raised by contemner was not accepted and his conviction was upheld. We are persuaded to quota Paras 29, 30 and 34 from the aforesaid judgment. Mr. Justice Hiadyat Ullah speaking for the Bench examined the duties and functions of the Court and held:- (29) The Courts in India are not sui generis. They owe their existence, form, powers and jurisdictions to the Constitution and the laws. The Constitution is the supreme law and the other laws are made by Parliament. It is they that give the Courts their obligatory duties, one such being the settlement of disputes in which the state (by which we mean those in authority) are ranged against citizens. Again they decided disputes in which class interests are apparent. The action of the Courts when exercised against the State proves irksome to the State and equally when it is between two classes, to the class which loses. It is not easily realized that one of the main functions of Courts under Constitution is to declare actions, repugnant to the Constitution or the laws (as the case may be), to be invalid. The Courts as well as all the other organs and institutions are equally bound by the Constitution and the laws. Although the Courts in such cases imply the widest powers in the other jurisdictions and also give credit where it belongs they cannot always decide either in favour of the State or any particular class. There are innumerable cases in which the decisions have gone against what may be described in the language of communism as the exploiting classes. Continuing the learned Judge dwelt upon the infirmities in law and suggested the manner in which they were to be cured. It was observed: (30) For those who think that laws are defective, the path of reform is open, but in a democracy such as ours weaken the Judiciary itself. Where the law is silent, the Courts have discretion. The existence of law containing its own guiding principles, reduces the discretion of the Courts to minimum. The Courts must do their duty according to their own understanding of laws and the obligations of the Constitution. They cannot take their cue from the sentiments of politicians nor even indirectly given support to something which they consider to be wrong or against the Constitution and the laws. The good faith of the Judges is the firm bed-rock on which any system of administration securely rests and an attempt to shake the peoples' confidence in the Courts is to strike at the very root of our system of democracy. The oft-quoted anger of the executive in the United States at the time of New Deal and the threat to the Supreme Court (which the United States had the good sense not to pursue) should really point the other way and it should be noted that today the security of the United States rests upon its dependence on Constitution for nearly 200 years and that is mainly due to the Supreme Court." Rejecting the plea of unconditional apology, it was held as under:- (34) As regards sentence we think that it was hardly necessary to impose a heavy sentence. The ends of justice in this case are amply served by exposing the appellant's error about the true teachings of Marx and Engels (behind whom he shelters) and by sentencing him to a nominal fine. We accordingly reduce the sentence of fine to Rs. 50/-. In efault of payment of fine, he will undergo simple imprisonment for one week. With this modification, the appeal will be dismissed." Applying these touchstones, to the facts and circumstances of the case in hand, it is quite clear that Sami Ullah Chaudhri and Ch. Afzal Gill on 2 9.9.1997 led the procession comprising 100/150 persons to the gate of the Lahore High Court, Bahawalpur Bench where they shouted vociferous slogans against the Judges of the High Court; the Judges were termed as 'Jialas' and their decisions were proclaimed as perverse. Thereafter, they went to Jamia Masjid and made disparaging speeches. This was not the end of it,, Sami Ullah Chaudhri addressed a Press Conference wherein he casted serious allegations against Mr. Justice Sh. Amjad Ali and Mr. Justice Sharif Hussain Bokhari. No doubt, the respondents/contemners have admitted their guilt and have tendered their unconditional apologies on 23.9.1998. Nevertheless, it is crystal clear that this Court was maligned, and the contempt committed by respondents was/is well planned and of grossest wilful misdemeanour. Respondents even did use the God Almighty for their nefarious purpose. Not even that, one of the respondents addressed a Press Conference. On the above strength, we have no difficulty in concluding that respondents had committed the vilest contempt. They had tried to mobilize the public opinion against the Judges of the High Court. They have even tried to use the house of God Almighty. Their unconditional apologies are not adequate to meet the damage which they had done. Road to mobocracy leads to violence and • quashed-Learned Civil Judge seized of civil suit regarding specific performance of contract and application for restoration of disputed property moved by Respondent No. 2 ip Greeted to dispose of applications in one month even if he has to ry matter by holding day to day hearings- Application is allowed accordingly. [P. 625] A Mr. Abdul Shakoor Parodn and Raja Khalid Ismail Abbasi, Advocate for Appellant. Mr. Muhammad Ilyas Siddiqui, Advocate for Respondent No. 2. MaZife Muhammad Kabir, A.A.G. forHespondents'Nos. } and 3. Date of hearing: 21.8.1998. judgment Raja Tallat Mehmood, the petitioner, has brought this petition under Section 561 of the Code of Criminal Procedure for quashment of the proceedings being carried out by the Assistant Commissioner, City, Rawalpindi, under Section 145 of the said Code and in particular the order, dated 8.8.1998 passed by him in pursuance thereto. 2. The facts leading to this petition are that House No. 1034-F, Satellite Town Scheme, Rawalpindi, which is the cause of the dispute originally belonged to one Syed Laeeq Ahmed Shah son of Wajid Ali Shah. He sold the said house to the present petitioner and in consequence thereof, the same was transferred in his name by the Housing & Physical Planning Department as intimated to the petitioner by the Deputy Director Secretary, District Housing Committee, -Rawalpindi, through his letter, dated 10.6.1995. The said house was in occupation of Respondent No. 2 as a tenant of Syed Laeeq Ahmed arid was running a school therein under the title of Happy Land School. 3. On 4.3.1997, Respondent No. 2 instituted a suit for permanent injunction against Syed Laeeq Ahmed and the present petitioner for permanently restraining the respondents in the suit from interfering in his possession of the said house. This suit culminated into an exparte decree passed by the learned Civil Judge, Rawalpindi , on 5.6.1997. In the meanwhile, on the basis of an agreement to sell, dated 13.9.1997, another suit was filed by Respondent No. 2 on 9.4.1998 against Syed Laeeq Ahmed, the present petitioner and District Housing Committee, for transfer of the said house in his favour claiming that Syed Laeeq Ahmed had agreed to sell the said house to him for a sum of Rs. 18,00,OOO/- out of which a sum of Rs. 1,00,OOO/- was given to him as earnest money. By its order, dated 10.4.1998, the learned Civil Judge, Rawalpindi, directed for maintenance of status quo restraining the respondents from interfering in possession of the present Respondent No. 2 in the suit premises. The petitioner, on the other hand, filed an ejectment application before the Rent Controller, Rawalpindi , for eviction of Respondent No. 2 from the disputed house. It is the claim of the petitioner that during the proceedings pending before the Rent Controller, the parties reached to a settlement and accordingly an application was moved to the learned Rent Controller for withdrawal of the ejectment petition and the same was accordingly withdrawn on 23.7.1998 with the assurance of Respondent No. 2 that he will allegedly handover the possession of the land to the petitioner. After withdrawal of the ejectment petition, the petitioner filed a suit for permanent injunction on 24.7.1988 for restraining Respondent No. 2 and others in his possession of the disputed properly which was allegedly handed over to him after the aforesaid settlement in the ejectment proceedings. Temporary injunction for maintenance of status quo was also issued. 5. The Respondent No. 2 denies that he ever parted with the ossession of the disputed premises or delivered its possession to the petitioner. It was claimed that, in fact, on the night of 27th July, 1998, the petitioner allegedly forcibly entered in the disputed house with the help of 30-40 persons the sign-board of the School was thrown away, while other equipment lying in the School premises, such as computer, photo-stat machine, TV, VCR, Printer and other furniture, were taken away by the petitioner in a truck and thereby forcibly occupied the house. This matter was also reported to the police upon which a case under Sections 452, 427, 380, 147, 148 and 149 of the Pakistan Penal Code was registered vide FIR No. 268, dated 27.7.1998, at Police Station New Town, Rawalpindi, at 11.40 p.m. Pursuant to the said FIR, the petitioner and two of his companions were arrested. The police thereupon submitted a report before the Assistant Commissioner, Rawalpindi, on 28.7.1998, for initiating proceedings under Section 145 of the Code of Criminal Procedure against the petitioner and others. A similar report under Section 107/150 was submitted by the police on 31.7.1998. In the meanwhile, Mst. Faozia Naheed, the wife of petitioner, moved a Constitutional petition (Writ Petition No. 1607/98) claiming that she and her family members were being harassed. 6. In pursuance of the said Constitutional petition, this Court summoned the Superintendent of Police, CIA, Rawalpindi, who on 10.8.1998 stated in the Court that no action contrary to law would be taken against the petitioner and that efforts for restoration of the disputed property shall be made strictly in accordance with law. He also intimated that in this connection, the proceedings under Section 145 Cr.P.C. have also been initiated against the petitioner. In view of the said statement of the Superintendent of Police, the petitioner did not press the Constitutional petition and the same was disposed of accordingly. Respondent No. 2 also moved an application under Order 39 Rule 2(3) read with Section 94 of the Code of Civil Procedure for initiating contempt proceedings against the petitioner and for restoration of the possession of the disputed premises to him which was allegedly occupied by the petitioner by tresspassing the same Wali ki bare main bta raha hai? 10. Mr. Muhammad Ilyas Siddiqui, Advocate, the learned counsel for the Respondent No. 2, very vehemently claimed that the petitioner had not only taken the law in his own hand, but had also abused the process of the court by fraud and misrepresentation. The learned counsel very categorically stated that there had been no ettlement between the parties, nor Respondent No. 2 had eve r voluntarily delivered the possession of the disputed premises to the petitioner. In this context, he contended that the decree, dated 5.6.1997, for permanent injunction passed in favour Respondent No. 2 was still in tact as the petitioner had not even aside. Further, the issued temporary injunction on 10.4.1998 which was still in force whereby the petitioner and others were restrained from interfering in possession of the disputed premises by espondent No. 2. In this respect, he relied upon Abdul Aziz and others vs. Mian Rafiuddin through legal heirs (1983 SCMR 928), wherein it was held that the dispute relating to possession is likely to cause a breach of the peace, but that jurisdiction will cease if a decree declaring the rights of the parties in the property has been passed or an order regulating its possession had been made. In the presen proceedings, however, no such decree or order is shown to have been passed by the Civil Court, therefore, criminal proceedings can continue. He also referred to Mrs. Betty Alice Giras vs. The State and others (1982 Law Notes (Lahore) (616), Hafiz Muhammad Hussain vs. The State and others (PLD 1982 Karachi 967) and Muhammad Abid vs. The Sub-Divisional Magistrate, Jamshed Quarters (East), Karachi and another (1992 P.Cr.L.J. 2363), wherein it was held that the procedure under Section 145 Cr.P.C. was in fa a stop gap arrangement. The Magistrate is required to maintain status quo under the provisions of Section 145 Cr.P.C. till the right of the concerned parties are decided by a competent civil court. Learned counsel for Respondent No. 2 also contended that suit for permanent injunction filed by the petitioner was not only mala fide but was based on concoction and misrepresentation. This suit was filed by the petitioner on the 24th July 1998, claiming that since he was in possession of the disputed house Respondent No. 2 be restrained from interfering in his possession. Temporary injunction was also obtained on the same basis although on the said date he was not in occupation of the disputed premises. This fact stands proved from the written statement filed by him in the suit for specific performance of contract on 27th/28th July, 1998. In para 3 thereof, he claimed that he had never interfered in possession of Respondent No. 2 who was in occupation of the house as a tenant. He also admitted therein the existence of a decree in favour of Respondent No. 2. : 11. It is admitted between the parties that the ex parte decree for permanent injunction passed in favour of Respondent No. 2 to the effect that he was in occupation of disputed premises as a tenant is still in the field. In the second suit filed by him for specific performance of agreement in respect of disputed house is pending adjudication in which stay order restraining the petitioner from interfering in possession of the disputed house had also been issued. In another suit filed by the present petitioner, an injunction had been 18. The trial Court has believed the ocular evidence, the Identification Parade and recovery of the crime weapon coupled with the positive report of the ballistic expert and has convicted the appellant. 19. Adverting to the arguments of Mr. Muhammad Aslam Chishti Advocate for the appellant that all the eye-witnesses are interested and chance witnesses and their statements cannot be taken into consideration without strong corroboration. It may be observed here 'interested witness is one who is related to the deceased and is also inimical to the accused'. The contention of Mr. Muhammad Aslam Chishti Advocate has no substance. Admittedly in the case in hand only PW-1 Amir Muhammad is related to the deceased and the other eye-witnesses have no relationship with either of the deceased persons and had no enmity with the appellant, in as much as that PW-1 Amir Muhammad too had no enmity with the appellant. As such they cannot be termed as interested witnesses Learned counsel for the appellant tried to argue that since a fight took-place between Pathans and Hazaras, thus the eye-witnesses being Pathans had strong motive to falsely implicate the appellant who belongs to Hazara Sect. The said argument advanced by the learned counsel being erroneous is repelled. Mr. Ehsan-ul-Haque Advocate for the complainant pointed out that all the eye-witnesses had been cross-examined at length but they were not shaken despite a lengthy cross- examination and nothing beneficial was brought on record in favour of the appellant nor any enmity of the witnesses against the appellant was brought on record. We have no reason to disbelieve the witnesses merely because they are Pakhtoons when they had no reason or motive to falsely implicate the accused in the commission of the offence, even ethnic fight between Hazaras & Pathans was not proved. As far as the contention of Mr. Aslam Chishti Advocate that all the eye-witnesses are chance witnesses is concerned, the same is devoid of force. It may be observed that presence of the eye-witnesses at the time of occurrence could not be disputed as all of them had satisfactorily explained their presence at the place of incident. For e xample PW-1 Amir uhammad stated that he had a shop at Chohar Mai Road but before going to shop he came to see his first cousin Muhammad Isa and his presence at the place of occurrence has not even been challenged by the defence. He was crossexamined at length but nothing was brought on record to show that he was not present at the scene of occurrence at the relevant time. PW-10 Haj Muhammad Ayyub stated that on the date of incident he came to his shop at about 7:00 to 7:30 A.M. and he was present in Suraj Ganj Bazar when the incident took-place and he saw the appellant firing at the deceased Muhammad Isa. This witness was also cross-examined at length and in cross-examination it has been brought on record that the appellant had his own shop at Suraj Ganj Bazar Quetta and since the knew the appellant prior to the incident, thus he had rightly identified him and also got recorded his statement under Section 164 Cr.P.C. in presence of the appellant. The evidential value of Statement of PW-4 under Section 164 Cr.P.C. shall be taken up at a later stage alongwith other witnesses who had recorded their statement. PW. 12 Syed Hazrat stated that before the incident of firing the appellant had a scuffle with him and his presence cannot be disputed. Syed Hazrat further stated that he was injured by the appellant and his statement was further corroborated by the medical evidence. Presence of Syed Hazrat was also admitted by the other eye-witnesses who stated that prior to the incident of firing the appellant alongwith two other persons had a scuffle with Syed Hazrat. 21. PW-14, Amanullah stated that he was working in a hotel and at the time of incident he was serving tea to a chapal wala and at that time he saw the appellant firing at deceased Haji sa and Gul Muhammad and also identified the appellant during the Identification Parade. This witness was also cross-examined at length but his testimony could not be shaken and nothing as brought on record to show that he had any enmity with the appellant. PW-15, Abdul Ban stated that he was employed in Insaf Hotel situated at Munsafi Road and at the time of incident he as passing near uraj Ganj Bazar when he saw the accused firing at deceased Muhammad Isa and other deceased Gul Muhammad who came to save him. This witness was also ross-examined at length but his testimony could not be shaken. Similarly PW-17, Namatullah also satisfactorily explained his presence as he was working in an ice-cream shop and was rushing ice at the relevant time when the incident took and he saw the appellant firing at both the deceased persons and also identified the appellant during the Identification Parade. All he eye-witnesses have satisfactorily explained their presence at the place of occurrence and have fully corroborated each other on material points, and despite a lengthy cross-examination he intrinsic value of evidence has not been shaken. They were not inimical towards the appellant, and their testimony cannot be descarded merely because they were Pathans and the appellant was a Hazara, thus they cannot be termed as chance witnesses. The learned trial Court has rightly believed their testimony. In this regard reliance is placed on:- Muhammad Akbar vs. The State (PLJ 1995 SC 277 = 1995 SCMR 693) wherein the following observations were made:- "We have considered the submissions made by the learned counsel with care and do not feel persuaded to agree with him. Rindo Khan (PW-2) and Amir Bakhsh (PW-3) although related to the deceased, yet had no motive to involve the petitioner falsely in the case. They live close to the place of occurrence have given plausible cause of their attraction to the post at the time of occurrence. The statements made by them are in consonance with the probabilities and materially fit in with other evidence and circumstances appearing in the case. The powerful engine invented for the discovery of truth z.e. cross-examination has not been able to elicit material contradictions, major issued by the Civil Court for restraining Respondent No. 2 from interfering in possession of the petitioner. Meaning thereby that the issues which now require determination are as to who was in actual possession of the disputed premises on the night of 27.7.1998, whether Respondent No. 2 delivered the possession thereof on the said date or earlier voluntarily and whether the petitioner had entered the disputed properly forcibly without aving any lawful authority. Evidently, these questions can be determined by the Civil Court and for that purpose finding of a criminal court is no required. In particular Respondent No. 2 has also moved an application for initiating contempt proceedings against the petitioner for allegedly violating the injunction order issued by the Civil Court and for restoration of the disputed premises to him. 12. There is no cavil to the proposition that the proceedings under Section 145 of the Cr.P.C. are of temporary nature and are subservient to the findings of the Civil Court. There is also nothing on the record that at present there is any apprehension of breach of peace. The present position is that the petitioner is in occupation of the disputed premises, whether as a trespasser or otherwise. Likewise nothing has been brought on the record to show that Respondent No. 2 has taken law in his hand for eviction of the petitioner. He has already reported to the police about the alleged forcible occupation of the premises which was in his possession as a tenant upon which a case was duly registered against thepetitioner and is under investigation. The police has also reported to the Magistrate for initiating proceedings under the provisions of Section 107/151 of the Code of Criminal Procedure. If now any situation arises where breach of peace is disturbed criminal court can certainly proceed under the provisions of Section 107/151 Cr.P.C. ibid. 13. In view of the above, there seems no justification in continuance of the proceedings under the provisions of Section 145 Cr.P.C., as Civil Court has already taken cognizance of the matter and the issue whether the petitioner has violated the terms of the temporary injunction issued by the Civil Court and thereby has allegedly dispossessed Respondent No. 2 is also pending adjudication in pursuance of the application moved by Respondent No. 2 under the provisions of Order 39 Rule 2(3) read with Section 94 of the Code of Civil Procedure. In the said application, Respondent No. 2 has also prayed for restoration of the possession of the disputed property. In other words, the temporary relief which can be provided under the provisions of Section 145 Cr.P.C. can be granted on permanent basis by the Civil Court . In consequence thereof, the proceedings initiated before the Assistant Commissioner, Rawalpindi , under Section 145 Cr.P.C. are quashed and orders, dated 8.8.1998 and 18.8.1998 passed by him are set aside. The learned Civil Judge seized of the civil suit regarding specific performance of the contract and application for restoration of the disputed property moved by Respondent No. 2 as are stated to be fixed for 2.9.1998, is directed to dispose of the said applications by the 20th September, 1998, even if he has to try the matter by holding day to day hearings. The learned District and Sessions Judge, Rawalpindi , is also directed that the civil suits pending between the parties be entrusted to one court to avoid conflicting decisions. The present application is allowed accordingly. (K.K.F.) Application allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 626 (DB) Present: ghulam sarwar shaikh and asif saeed khan khosa, JJ. NOOR MUHAMMAD-Appellant versus STATE-Respondent Criminal Appeal No. 14-J of 1994 and Murder Reference No. 31 of 1994, decided on 27.8.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S, 302—Murder—Offence of—Conviction for—Challenge to—Not only convincing account of incident, in detail, has been deposed by witnesses, but also, they have successfully withstood ard test of cross-examination- No rancour towards appellant stands ascribed to any one of them-As such mere relationship of PWs and deceased with each other is, by itself, not sufficient o discredit or discard their testimony-Complainant is rather benefactor of convict, as, he had provided him shelter is his own house-He is also closely related to him, being his cousin-So here is noting on record to support the idea of substitution of accused with real culprit, if any-Even otherwise, it is a rare phenomenon in as much as screening out of real culprit by usband of deceased or his close relative without any deep-rooted cause cannot even be dreamt of—Sprouting of appellant that deceased fell victim to her own husband otherwise, looks bereft of any veracity & mere figment of his imagination-There is not an iota or scintilla of evidence to make head or tail of his counter version/allegation as neither matrimonial ivergence, omestic acrimony or slightest altercation between spouses prior to incident is, in any way, spelt out-Ocular account by P.Ws derives full fortification from Medical Evidence and attending ircumstances--As a necessary corollary, there is nothing to create any crevice in edifice erected by adducing over­ whelming evidence—Irresistible conclusion is that the appellant was rightly adjudged to be guilty of Qatl-i-Amd of deceased lady and convicted under provisions of law, with which he was charged-To that extent, findings of learned trial Court are un- xceptionable and un-assailable—No blow was repeated and only single blow proved to be fatal-Death sentence converted and altered into life imprisonment-Appeal partly accepted. [Pp. 629 & 630] A Khawaja Shaukat All, Advocate for Appellant. Ch. Mujahid Ahmad, Advocate for Respondent. Date of hearing : 27.8.1998. judgment Ghulam Sarwar Sheikh, J.--Story of woe, as narrated, unfolded in, and reflected by statement/F.I.R. Ex. PD, which, of course, set the law into motion, made/lodged by Sher Muhammad (PW. 7), the complainant, and recorded by PW. 9 Altaf Ahmad Gondal, Inspector/SHO, Police Station Katha Saghral District Khushab, succinctly stated, is, that, the complainant, a cultivator, is a resident of village Nari within the limits of said Police Station. His house comprises three rooms, besides, a thatched hut, and is surrounded by a boundary wall. One of the rooms fell to the lot of Muhammad Hayat, a son, of the complainant, serving in the Army and residing with his family at Lahore. This room was licensed to appellant, Noor Muhammad, who, is related to the complainant as his first cousin. 2. On eventful and fateful day i.e. 12.7.1993, at about 6.30 A.M: the complainant, was present on roof-top of his house, when, his wife Mst. Badshahi (since deceased) was kneading clay to plaster roof of the house. Accused Noor Muhammad not only remonstrated her for removing earth from his demolished house, despite having been forbidden by him but also, picked up a "Pickaxe (Kassi)" lying there and inflicted an incised wound on her head, to which, she, succumbed on the spot, after few minutes. The complainant came down/alighted from roof-top and witnessed the occurrence, which, was seen by Dost Muhammad PW8 and Nawaz (given up) as well. The appellant fled/decamped from the scene with weapon of offence. 3. Motive as disclosed and claimed in FIR Ex. PD was an earlier incident, in which, Noor Muhammad, the accused, had warned Mst. Badshahi not to use earth of his dilapidated house for plastering her own house or she would bear the consequences. 4. After registration of the case, PW. 9 Altaf Ahmad Gondal, Inspector/SHO inspected the place of occurrence, prepared its rough sketch Ex. PI, examined the dead body, prepared injury statement Ex. PG, inquest report Ex. PH, secured blood-stained earth therefrom vide memo. Ex. PE, after making it into sealed parcel, and sent/despatched the deadbody to morgue for autopsy. PW. 6 Ahmad Hussain Constable, who, escorted the dead body on the same day, produced last worn clothes of deceased before him and same i.e. Chaddar P-l and Shirt P-2 were taken into possession by means of memo. Ex. PC. On 16.7.1993 accused was arrested from village Bus-stand. He led to the recovery of pickaxe P. 3 from his residential room and the same was taken into possession through memo. Ex. PF. Statements under Section 161 Cr.P.C, of witnesses were also taken down/recorded by the Investigating Officer. PW. 4, Muhammad Saleem a Draftsman, prepared site plan of place of occurrence Ex. PA and Ex. PA/l.Upon conclusion of investigation, final report, under Section 173 Cr.P.C. was submitted in Court against the accused, who, pleaded not guilty to the charge under one head and claimed trial. 5. As many as nine witnesses, in all, were examined by the prosecution. Sher Muhammad, the complainant PW. 7 and Dost Muhammad PW. 8 furnished ocular account of gory incident as set up in FIR Ex. PD. They also testified about motive and recoveries, to have been effected in their presence. Various steps taken during investigation were enumerated by PW. 9 Altaf Ahmad Gondal, Inspector/SHO. PW. 5 Dr. Muhammad Sarfraz proved post-mortem report Ex. PB, in which, he had found/noticed following ante-mortem injury on the dead body:- "Longitudinal wound measuring 5 cm x 1 cm on the top of the skull, 2 cm left from the centre of the skull, 8 cm from the left ear, 12 cm from the forehead, underlying bone was fractured. Haematoma was present on the brain. Skull bone was fractured. Rest of the organs were found normal." 6. In the opinion of the doctor, death, was due to concussion of brain shock, as result of Injury No. 1, which, was sufficient to cause death in ordinary course of nature. Probable and approximate time, which elapsed, between injury and death was immediate, while, between death and post­ mortem examination was stated to be 6 to 12 hours. Remaining prosecution evidence is more or less of formal nature. While examined under Section 342 Cr.P.C. appellant denied all incriminating material and circumstances, figuring against him and professed innocence. Question No. 7 was answered as follows: - "Due to enmity. The witnesses are inimical towards me and have implicated me falsely. In fact, complainant with the help of PW Dost Muhammad committed the murder of deceased and involved me in the case on account of enmity." However, he opted not to appear as his own witness in disproof of allegations against him as envisaged by the provisions of law embodied in Section 340(2) Cr.P.C. No witness in defence was produced either. 8. On culmination of trial, appellant/accused was found to be guilty of the offence, and awarded capital punishment under Section 302 PPC as "Tazir". He was ordered to be hanged by his neck till he be dead. Fine to the tune of Rs. 15,000/- was imposed upon him. Besides compensation of Rs. 20,000/- as provided by Section 544-A Cr.P.C. was directed to be paid to legal heirs of deceased. In default of payment of fine and, compensation he was ordered to undergo and suffer R.I. for one year and six months respectively. Seeking confirmation of "Death", reference under Section 374 Cr.P.C. has been made. 9. Convict has also challenged and assailed Ms conviction and sentence through jail appeal and this judgment shall dispose of, both of it, together. 10. Learned Counsel appearing on behalf of convict has lambasted the verdict and convict with the assertions that ocular account as furnished by Sher Muhammad PW. 7 and Dost Muhammad PW.8 neither inspires confidence nor sounds probable and no credence can be attached to it According to him, three able-bodied eye-witnesses, could not allow the accused to flee from the scene of occurrence and recovery of pickaxe(Kassi) is not believable, because, it is against the human nature that accused, after, murdering the mistress of house would return to a room of the same house just to hide pickaxe, the weapon of offence. Motive has been branded to be too weak and conveniently tailored to put the rope around the neck of appellant. It has, therefore, been impressed that whole of prosecution case is rendered doubtful. Accordingly acquittal of appellant has been urged and emphasized. 11. On behalf of State, learned Counsel has inter-alia, contended that ocular account has come out of mouth of natural witnesses, no animosity against the accused to substitute him for a real culprit has even been suggested; appellant is closely related to deceased and her family as being first cousin of her husband family had no reason to falsely implicate him. He has, whoever, scrupulously conceded that the incident cannot be taken to be pre-meditated affair and might be the result of a situation developed at the spur of moment. 12. Arguments have been thrashed in the light of the record, which, too has been scanned. Occurrence took place in the house of Sher Muhammad PW. 7. Dost Muhammad PW. 8 is his neighbourer. None-else than both of them could have ample opportunity and occasion to witness such an occurrence so closely. Not only convincing account of the incident, in detail, has been deposed by them, but also, they have successfully withstood hard test of cross examination. No rancour towards appellant stands ascribed to any one of them. As such mere relationship of PWs and deceased with each other is, by itself, not sufficient to discredit or discard their testimony. The complainant is rather benefactor of onvict, as, he had provided him shelte in his own house. He is also closely related to him, being his cousin. So there is nothing on record to support the idea of substitution of accused with real culprit, if any. Even otherwise, it is a rare henomenon in-asmuch as screening out of the real culprit by the husband of the deceased or his close relative without any deep-rooted cause cannot even be dreamt of. Sprouting of the appellant that the deceased fell victim to her own husband otherwise, looks bereft of any veracity & mere figment of his imagination. There is not an iota or scintilla of evidence to make head or tail of this counter version/allegation as neither matrimonial divergence, domestic acrimony or the slightest altercation between the spouses prior to incident is, in any way, spelt out. Ocular account by these P.Ws derives full fortification from Medical Evidence and attending circumstances. As a necessary corollary, there is nothing to create any crevice in edifice erected by adducing over-whelming evidence. Irresistible conclusion is that the appellant was rightly adjudged to be guilty of Qatl-i-Amd of Mst. Badshahi and convicted under the provisions of law, with, which he was charged. To that extent, findings of learned trial Court are un-exceptionable and un­ assailable. 13. Never-the-less," quantum of sentence, awarded to appellant is palpably fallacious and does not commensurate with the act of the appellant, who, seemingly, resorted to this measure on account of impulsive re-action nd, any way, without any pre-meditation. It goes without saying that no blow was repeated by him and only single blow proved to be fatal. Unfortunate incident appears to have occurred in peculiar circumstances, which, caused the appellant to act on indignation. Salient features, enumerated above, sufficiently provide mitigating circumstances in his favour. Same appear to have escaped the notice of learned trial Court and concomitantiy were neither taken into account nor adverted to. It rather lend support to-the belief that extreme penalty could not be visited and awarding thereof to appellant by learned trial Court cannot be taken to be just under any canon of law. Lesser penalty in wake thereof and trivial motive, misty nature of recovery and relationship of parties, in particular, is not only apt, but also, in terms of principle of safe administration of justice as expounded in Mam Khan us. The State (1989 P.Cr.L.J. 729) and Basharat Ahmad vs. The State (1993 P.Cr.L.J. 2036), plethora of authorities and galaxy of rulings on the point/subject. 14. As a sequel thereto, "Death Sentence" is NOT confirmed and the same is converted and altered into imprisonment for life. Sentence of fine imposed upon the appellant is not sustainable having not been provided in relevant provisions of law, and is accordingly set aside. However, compensation awarded to legal heirs of deceased is up-held and maintained. But sentence, in default, thereof can only be Simple and not Rigorous Imprisonment. Benefit of provisions of Section 382-B Cr.P.C. shall also be extended to the convict, while, computing the period of his sentence. Appeal is disposed of with above modifications and Reference is answered in the negative. deceased. When the witnesses in order to save their lives ran towards the rooms of the college all the accused persons fired at them but none of the witnesses were injured. The complainant removed both the injured to the hospital where they succumbed to the injuries. The motive for the offence claimed was that the accused party is not the students of the college but often came to the college and indulged in vendalizm and on many an occasion the complainant party had objected to this conduct of the accused party. Even two days before the occurrence the accused party had fired at the house of Shahzad deceased. Although the occurrence took place on 10.12.1996 petitioner was arrested on 7.5.1997 while his co-accused Shahzad Mahmood Zafar was arrested on 23.2.1997. Seven accused persons are still absconding and proceedings,under Sections 87/88 Cr.P.C. have already been initiated against them. 3. Earlier the bail application of the petitioner was rejected by the learned Special Judge/Sessions Judge, Sialkot vide order dated 14.3.1998. 4. Bail is pressed on the grounds that the FIR has been lodged after due delebrations and that no specific role has been attributed to the petitioner and that the presence and participation of the petitioner has been belied in the course of investigation and that no crime empty of any bore has been recovered from the spot and that the petitioner is in jail since his arrest and that no recovery has been effected from the petitioner and that during the investigation by two agencies the petitioner has been declared innocent and that the petitioner has been falsely involved in the case due to party faction. 5. Learned counsel for the State has opposed the petition on the grounds that the petitioner is specifically named in the FIR with specific role and that the offences complained against provides capital punishment bringing the case within the prohibitory clause of Section 497 Cr.P.C. and that it was a double murder case, as such, the petitioner is not entitled to the concession of bail. I have given due consideration to the valuable arguments of both the sides and perused the record. 6. The petitioner has been found innocent by the Inspector CIA, D.S.P. CIA and the Crimes Branch. Without going deep into the merits of the case lest it may prejudice the case of either party following the dictum laid down in Rehmat Ullah alias Rehman vs. The State (1970 S.C.M.R. 299) where their Lordships of the Hon'ble Supreme Court granted -bail to the accused on the ground that the accused was declared innocent by the police. As such, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court. (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 649 Present: dr. munir ahmad mughal, J. SHAHID MAHMUD ZAFAR-Petitioner versus STATE-Respondent Crl. Misc. No. 4306/B of 98, heard of 25.8.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497~Bail-Prayer for-Petitioner has been found innocent by Inspector CIA, D.S.P. CIA and Crimes Branch-Without going deep into merits of case lest it may prejudice case of either party following dictum laid down in Rehmat Ullah alias Rehman us. State (1970 S.C.M.R. 299) where their Lordships of Hon'ble Supreme Court granted bail to accused on ground that accused was declared innocent by the police-Bail granted. [P. 651] A Mr. Mansoor Alamgir Qazi, Advocate for Petitioner. Mr. Maqsood Ahmad Khan, Advocate for the State. Mr. Masood Khan, ASI with Record. Mr. Irshad Akhtar, Complainant in Person. Date of hearing: 25.8.1998. order The petitioner is involved in a case FIR No. 315/96 dated 10.12.1996 for offences under Sections 302/148/149 PPC registered at Police Station Rangpura, District Sialkot . 2. According to the FIR lodged by Irshad Akhtar M.A. student of Murrey College, Sialkot is that at 10.00 a.m. he alongwith the deceased Shahzad, the deceased Man Warraich and 5 other witnesses Shabbir, Ayyaz, Muhammad Nawaz, Rashid and Munawar etc. were standing in the hockey ground of the college when from the eastern door of the college, five accused persons armed with tripple two rifles and 30 bore pistols entered the hockey ground while from the western door of the college petitioner Shahid Mahmood alongwith Hafiz Faisal armed with 222 rifles alongwith four named and four unnamed accused persons variously armed came there. Coaccused Arif fired at Shahzad deceased while Tahir Mahmood Hundli and Farooq Ghumman accused also fired at Shahzad deceased who fell down as a esult of these injuries while Hafiz Faisal and co-accused Ghulam Murtaza fired at Man Warriach deceased who also fell down. The fire shot by Hafiz Faisal had injured the arm of Man Warraich deceased. When the witnesses in order to save their lives ran towards the rooms of the college all the accused persons fired at them but none of the witnesses were injured. The complainant removed both the injured to the hospital where they succumbed to the injuries. The motive for the offence claimed was that the accused party is not the students of the college but often came to the college and indulged in vendalizm and on many an occasion the complainant party had objected to this conduct of the accused party. Even two days before the occurrence the accused party had fired at the house of Shahzad deceased. Although the occurrence took place on 10.12.1996 petitioner was arrested on 23.2.1997 while his co-accused Hafiz Faisal Qamar was arrested on 7.5.1997. Seven accused persons are still absconding and proceedings under Sections 87/88 Cr.P.C. have already been initiated against them. 3. Earlier the bail application of the petitioner was rejected by the learned Special Judge/Sessions Judge, Sialkot vide order dated 14.3.1998. 4. Bail is pressed on the grounds that the FIR has been lodged after due deliberations and that no specific role has been attributed to the petitioner and that the presence and participation of the petitioner has been belied in the course of investigation and that no crime empty of any bore has been recovered from the spot and that the petitioner is in jail since his arrest and that no recovery has been effected from the petitioner and that during the investigation by two agencies the petitioner has been declared innocent and that the petitioner has been falsely involved in the case due to party faction. 5. Learned counsel for the State has opposed the petition on the grounds that the petitioner is specifically named in the FIR with specific role and that the offences complaint against provides capital punishment ringing the case within the prohibitory clause of Section 497 Cr.P.C. and that it was a double murder cause, as such, the petitioner is not entitled to the concessions of bail. 6. I have given due consideration to the valuable arguments of both the sides and perused the record. 7. The petitioner has been found innocent by the Inspector CIA, D.S.P. CIA and the Crimes Branch. Without going deep into the merits of the case lest it may prejudice the case of either party following the dictum id down in Rehmat Ullah alias Rehman vs. The State (1970 S.C.M.R. 299) where their Lordships of the Hon'ble Supreme Court granted bail to the accused on the ground that the accused was declared innocent by the police. As such, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs. 1 ,00,000 /- with one surety in the like amount to the satisfaction of the learned trial Court. (T.A.F.) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 651 Present: muhammad asif jan, J. MUHAMMAD NADEEM-Appellant versus STATE-Repsondent Crl. Misc. No. 6179-B of 98, heard on 17.12.1998. Criminal Procedure Code, 1898-- —S. 497-Bail-Prayer for-Bail application-Offence u/S. 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Read conjunctively it becomes crystal clear that a person being a male who has not attained age of 18 years will not be punished if found guilty under Section 10 subsection (3) of Ordinance but under Section 7 of Ordinance where punishment is 5 years imprisonment-Thus case of such a person would not fall within prohibition contained in sub-section (1) of Section 497 of Code of Criminal Procedure-Bail granted. [P. 653] A Sh. Tariq Amin Khalid, Advocate for the Petitioner. M/s. Masood Sadiq Mirza and Irshad Mahmood Sheikh, Advocates for the State with Banaras Khan, S.I. Date of hearing: 17.12.1998. order Muhammad Nadeem a youngster of about 17 years age was arrested on the 21st of August, 1998 in pursuance of a case registered against him vide first information Report No. 313/98 dated the 10th of August, 1998 at Police Station Saddar Wazirabad, District Gujranwala, recorded under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance of 1979 (Ordinance No. VII of 1979) (hereinafter referred to as Ordinance), regarding an occurrence which took place on the 9th of August, 1998 at noon time in an area known as Mohallah Qudrat Abad which is about 2 miles from Police Station Saddar Wazirabad, District Gujranwala where the first information report was lodged on the next day at 10.00 A.M. by Muhammad Mahmood, brother of Mst. Imrana who was alleged by rapped by Muhammad Nadeem petitioner. 2. The offence allegedly comitted by the petitioner prima facie would fall under sub-section (3) of Section 10 of the Ordinance which is punishable with imprisonment for a term which may extend to 25 years and would thus fall within the prohibition contained in sub-section (1) of Section 497 of the Code of Criminal Procedure which provides that bail shall not be granted where the are reasonable grounds for believing that an offence punishable with death or imprisonment for life or imprisonment for 10 years has been committed. It was for this reason that bail was declined to the petitioner by the learned Additional Sessions Judge of Wazirabad. 3. According to the birth certificate of the petitioner which has been placed on the record, the petitioner was 17 years and 7 months old at the time of occurrence. Section 7 of the Ordinance provides the punishment for Zina or Zina-bil-jabr where the offender is not an adult and lays down that:- "A person guilty of zina or zina-bil-jabr shall, if he is not an adult, be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both, and may also be awarded the punishment of whipping not exceeding thirty stripes: petitioner and that the presence and participation of the petitioner has been belied in the course of investigation and that no crime empty of any bore has been recovered from the spot and that the petitioner is in jail since his arrest and that no recovery has been effected from the petitioner and that during the investigation by two agencies the petitioner has been declared innocent and that the petitioner has been falsely involved in the case due to party faction. 5. Learned counsel for the State has opposed the petition on the grounds that the petitioner is specifically named in the FIR with specific role and that the offences complaint against provides capital punishment bringing the case within the prohibitory clause of Section 497 Cr.P.C. and that it was a double murder cause, as such, the petitioner is not entitled to the concessions of bail. 6. I have given due consideration to the valuable arguments of both the sides and perused the record. 7. The petitioner has been found innocent by the Inspector CIA, D.S.P. CIA and the Crimes Branch. Without going deep into the merits of the case lest it may prejudice the case of either party following the dictum laid down in Rehmat Ullah alias Rehman vs. The State (1970 S.C.M.R. 299) here their Lordships of the Hon'ble Supreme Court granted bail to the accused on the ground that the accused was declared innocent by the police. As such, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs. 1 ,00,000 /- with one surety in the like amount to the satisfaction of the learned trial Court. (T.A.F.) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C . ( Peshawar ) 653 Present: MUHAMMAD AZAM KHAN, J. QADEEM SHAH and another-Petitioners versus GUL SHER and other-Respondents Cr. M. No. 62 of 1998, heard on 23.10.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 561-A-Quashment~Prayer for-It is a murder case in which adjudication can only be made after examine ocular witnesses—Since two ocular witnesses (at present proclaimed offenders in another case) are not available at the moment, therefore, learned Special Judge could not pass any order under section 249-A Cr.P.C . which entails acquittal of accused- Only safest remedy available to Special Judge was to pass impugned rder (Keeping proceedings in abeyance)~No merit in petition and same is dismissed in limine . [P. 655] A Mr. Khawaja Muhamamd Khan, Advocate for the Petitioners. Date of hearing: 23.10.1998. order Petitioners, Qadeem Shah and Naushad , have preferred the present petition under Section 561-A Cr.P.C . against the order of the learned Judge, Special Court, Mardan whereby the prayer of the accused-petitioners under Section 249-A Cr.P.C . was turned down and instead proceedings against them in case F.I.R. No. 578 dated 9.6.1994 for offences under Sections 302/ 324/34 P.P.C. of Police Station B-Division Mardan were stopped under Section 249 Cr.P.C . 2. The aforementioned case was pending trial in the Court of Sessions Judge, Mardan . Challan in the case was submitted, formal charge was framed to which the accused did not plead guilty and claimed trial. The trial Court examined 8 prosecution witnesses in the case but the testimonies of the ocular witnesses namely, Gul Sher and Hazrat Hussain could not be recorded as they were declared as proclaimed offenders in another murder case registered against them vide F.I.R. No. 1694 dated 30.12.1996. Since the aforementioned witnesses could not be made available by the prosecution, therefore, the petitioners moved an application under Section 249-A Cr.P.C . The State resisted the aforementioned petition, the learned Special Judge/Sessions Judge Mardan was of the opinion that the case before him was a murder case in which a correct decision can only be arrived, on the basis of the testimonies of the complainant and the eye-witnesses mentioned in the report. The learned Judge was of the view that upon the evidence of the formal witnesses he cannot exercise jurisdiction under Section 249-A Cr.P.C . as he could not appreciate the evidence with regard to the guilt or innocence of the accused. He, therefore, passed the impugned order by keeping the proceedings in abeyance and directed that Qadeem Shah petitioner shall remain on bail on the same bail bonds executed already by him while Naushad accused was directed to furnish bail bonds in the sum of Els . 2 ,00,000 /- with two sureties each in the like amount to the satisfaction of Qlaqa /Judicial Magistrate with a direction that both the petitioners were bound to appear in Court whenever summoned. The case property and record were directed to be kept in safe custody till the final decision. (K.K.F.) Bail granted

PLJ 1999 Cr PLJ 1999 Cr.C. Lahore 655 (DB) Present : IFTIKHAR HUSSAIN CHAUDHRY AND shaikh abdur razzaq, JJ. KHAN MUHAMMAD-Appellant Versus STATE-Respondent Criminal Appeal No. 573 of 1993, M.R. 264 of 1993, heard on 24.9.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-Conviction and Sentence-Appeal against-Son of complainant was murdered at the hands of his own son-in-law-Under peculiar circumstances of was case it could not be said that a father would implicate his son-in-law falsely for murder of his son and thereby would deprive his daughter of love and affection of her husband-Thus contention of learned counsel for appellant/accused regarding false involvement of appellant/accused hardly carries any weight-Similalry contention regarding substitution of PW-6 also does not ring true and is devoid of any force—Appellant/accused has committed murder of deceased by inflicting two hatchet blows on his head resulting into his death—Appellant/accused is responsible for pre-planned callous murder of deceased and has rightly been convicted and sentenced vide judgment under appeal-No force in arguments advanced by learned counsel for appellant/accused and consequently dismiss appeal. [Pp. 659 & 660] A & B Mr. Maqbool Elahi Malik, and Mr. Rabnawaz Niazi, Advocates for Petitioner. Mr. Iqbal Hussain, Advocate, for State. Date of hearing : 24.9.1998. judgment Criminal Appal No. 573 of 1993 stands preferred against judgment dated 13.7.1993 passed by Main Abdul Haleeni Sadiq, Sessions Judge, Khushab whereby the convicted and sentenced Khan Muhammad son of Yar Muhammad Caste Awan, resident of Nidhu Dakhli Warrchha, Tehsil and District Khushab to face death penalty under Section 302(b) Pakistan Penal Code. The Court of Session at Sargodha has sent Murder Reference No. 264/93 as contemplated under Section 374 of the Code of Criminal Procedure for the confirmation of the death sentence awarded to Khan Muhammad Both the aforesaid appeal and aforesaid Murder Reference are being disposed of through this consolidated 2. FIR Ex. P/E was registered on the statement of Ghulam Ahmad (PW-5) on 26.2.1993 at 6.15 p.m. at Police Station Gujrat District Khushab. 3. Briefly stated the facts are that Ghulam Ahmad-complainant (PW-5) resides with his family in village Nidhu Dakhi Warrachha. On 26.2.1993 he alongwith his son uhammad Khan deceased who is an army personnel and had come on leave, were on their way to their Dera after offering their Jumma prayer at Quaidabad. At about 3.00 p.m. hey reached near the Tubewel of Allah Bux Shahbazi situated within the area of Utra When accused Khan Muhammad son of Yar Muhammad, his son in-law, emerged on the ence armed with hatchet. He (accused) shouted at Muhammad Khan deceased that he would teach him a lesson for not allowing his wife to live with him and inflicted a atchet below which lauded on his head as a result of which he fell down. In that position, the accused inflicted another below which hit him on the back of his head. On the hue nd ry of complainant, Sultan Muhammad son of Sher Muhammad, Mst. Kama! Khatoon and Mst. Nazir Khatoon daughter and daughter-in-law rushed to the pale and witnessed he occurrence. Seeing them coming Khan Muhammad accused succeeded in decamping from there. There complainant, Sultan Muhammad, Mst. Kama! Khatoon, and Mst. Azir Khatoon then removed the injured to Civil Hospital Quaidabad who succumbed to the injuries before any medial aid could be provided to The motive behind this ccurrence is that Mst. Rehman Bibi daughter of complainant is married with Khan Muhammad accused. She re had deserted her husband for the last 3 months and was residing with he omplainant. Khan Muhammad accused suspected Muhammad Khan deceased to be responsible for desertion of his. wife and nourished gradue against him. 5. Allah Bux S.I. (PW-8) recorded FIR Ex. PE on the statement of Ghulam Ahmad (PW-5). He proceeded to hospital where the deadbody of Muhammad Khan was lying. He prepared his injury statement Ex. PG, inquest report Ex.PH and despatched the deadbody through Manzoor Husain Constable (PW-2) for post mortem examination. On 27.2.1993 he visited the paled of occurrence, secured blood stained earth vide Memo Ex. PC. he arrested the accused who led to the recovery of blood stained hatchet P-4 from his Dera which he secured vide Memo Ex. PD and prepared site plan of place of recovery Ex. PD/1. On the same day Manzoor Hussain Constable (PW-2) produced before him blood stained last worn clothes of deceased P-l to P-3 which he secured vide Memo PB. On the sam day he got the site-plan inspected from Patwari who on 2.3.1993 handed over to him ite-plans Ex. PA and Ex. PA/1. After completing investigation he submitted the challan in the Court. 6. A charge under Section 302 PPC was framed against the accused to which he pleaded not guilty and claimed trial. 7. In order to bring home guilty to the accused prosecution examination PW-1 Abdul Rehman Patwari who prepared site-plans Ex. PA & PA/1. Manzoor Hussain constable PW-2 esorted the deadbody of Muhammad Khan deceased on 26.2.1993 for post-mortem examination. He produced blood stained clothes P-l to P-3 before the Investigation Officer on 27.2.1993 who secured the same vide Memo Ex. PB. ON 28.2.1993 Qutab Sher PW-3 handed over to him two sealed parcels containing blood stained earth and hatchet for onward transmission to the office of Chemical Examiner Lahore which he delivered there intact on 1.3.1993. On 2.3.1993 he returned alongwith parcels and results and handed ver the same to Moharrir on 3.3.1993 PW-3 Qutab Sher Moharrir was given two sealed parcels of blood stained earth as well as hatchet by the I.O. on 27.2.1993 for keeping in Malkhana which he delivered to Manzoor Hussain PW-2 on 28.2.1993 for on ward transmission to the office of Chemical Examiner, Lahore. PW-4 Ata Muhammad is a marginal witness of Memo Ex. PC whereby blood stained earth at two places was secured and was made into a sealed parcel. He further deposed that on the same day accused led to the recovery of blood stained hatchet P-4 which was secured vide Memo Ex. PD. PW-5 Ghulam Ahmad is the complainant and the supported his version appearing in complainant Ex. PE. PW-6 Sultan Muhammad is an eye witnesses of the occurrence and has supported the prosecution version as given by Ghulam Ahmad complainant PW-5. He further stated that he had identified the deadbody at the time of post-mortem examination. PW-7 Dr. Muhammad Ishfaq deposed that on 27.2.1993 at 7.00 a.m. he conducted the post-mortem examination of Muhammad Khan and found following injuries on his person :-- 1. An incised wound 1-1/2" x 1-1/2" on the right side of the skull with obvious fracture of the right parietal bone, 5" above the right ear. 2. A lacerated wound 3-1/2" x 2" on the back of the right side of the right side of the skull with obvious fracture of the occipital bone, with menmgies denuded. It was two inches away from the right ear. In his opinion the cause of death was due to shock, haemorrhage, and damage to the skull, brain, and membrains, i.e. the vital organs of the body as a result of Injury No. 2 He further stated that Injuries Nos. 1 and 2 were grievous while Injury No. 2 was dangerous to life and was sufficient to cause death in the ordinary course of nature. He stated that after the post-mortem examination he handed over the dead body to Maznoor Hussain Constable (PW-2) alongwith last worn clothes of the deceased. He produced post mortem examination report Ex. PF and sketch of injuries Ex. PF/1. PW-8 Allah Bux S.I. is the Investigating Officer whose evidence has already been discussed above. Learned A.D.A. Produced the report of Chemical Examiner Ex. PI and that of Serologist Ex. PK and closed the case of Prosecution vide his statement dated 28.6.1993. 8. While examined under Section 342 Cr.P.C. accused denied all the incriminating circumstances appearing against him in prosecution evidence and stated the deceased was murdered when he was all alone and no body w him being murdered and he had been implicated due to enmity and suspicion. He neither chose to produce any defence evidence nor examined himself under Section 340(2) Cr.P.C. 9. After going through the evidence produced by the parties, the trial Court convicted and sentenced the appellant/accused vide judgment under appeal. 10. We have heard the learned counsel for the parties and have gone through the record with their assistance. 11. Learned counsel for the appellant/accused has laid much stress on the factum of going of complainant as well as of deceased for offering their Jumma prayer at Quaidabad. His contention is that when various mosques were available in village Warrchha, there was no reason of going of complainant and of deceased to Quaidabad for offering, their Jumma prayer. He next, argued that as per admission of Ghulam Ahmad (PW-5) they had gone by foot and had also returned by foot. His contention is that when busses were plying in between village Warrchha and Quaidabad situated at a distance of about 8 miles the question of going by foot does not appeal to reason. He thus submitted that the very going and returning of complainant as well as Muhammad Khan deceased is not free from doubt. He next contended that as per FIR Ex. PE the presence of one Sultan Ahmad son of Sher Muhammad has been shown at the place of occurrence. However Sultan Ahmad son of Sher Muhammad has not been examined whereas Sultan Muhammad son of Sher Muhammad has been examined as PW-6. His contention is that Sultan Ahmad son of Sher Muhammad disclosed in FIR Ex. PE is another person whereas Sultan Muhammad son of Sher Muhammad examined as PW-6 is son in-law of complainant. That Sultan Muhammad son of Sher Muhammad (PW-6) has been substituted in place of Sultan Ahmad son of Sher Muhammad who had refused to depose in favour of prosecution. He further contended that had Sultan Muhammad son of Sher Muhammad son in-law of complainant been present on the spot along with Mst. Kama! Khatton and Mst. Nazir Khatton daughter and daughter in-law of the complainant, he must have specifically disclosed his relationship with Sultan Ahmad son of Sher Muhammad as his son in-law. That non mentioning of relationship with Sultan Ahmad son of Sher Muhammad clearly shows that it ws some other Sultan Ahmad son of Sher Muhammad than Sultan Muhammad son of Sher Muhammad who has been examined as PW-6. He thus submitted that if the statement of Sultan Muhammad PW-6 is excluded from consideration there remains the solitary statement of Ghulam Ahmad PW-5 which in absence of any independent corroboration cannot be made base for passing an order of conviction. He next argued that as per contents of FIR Ex. PE the appellant/accused suspected the deceased to be responsible for the desertion of his wife so it afforded a reasonable cause and that can be considered a mitigating circumstance for at lest awarding lesser punishment. He thus submitted that prosecution has failed to establish its case against the appellant beyond any reasonable doubt and in the alternative appellant/accused is entitled to lesser punishment and prayed that sentence awarded be altered to imprisonment for life. 12. Conversely the judgment under appeal has been supported by the learned counsel for the State. It is argued that a specific pat has been attributed to the appellant/accused and the question of substitution does not arise as the appellant/accused is son-in-law of the complainant and the question of his mistaken identification also does not arise. It is further argued that no father-in-law would involve his son-in-law falsely in a case of this nature as it will definitely effect the future life of his daughter. It is further argued that prosecution evidence has been thoroughly discussed by the lower Court and there is nothing on the record to discredit the same. 13. According to the contents of FIR Ex. PE the complainant alongwith his son Muhammad Khan were returning from Quaidabad after offering their Jumma prayer. They were way-laid by Khan Muhammad son of Yar Muhammad appellant/accused who being armed with hatchet raised Lalkara that Muhammad Khan will not be allowed to go live for disallowing his wife to live with him. The occurrence is stated to have taken place at abut 3.00., so the question of substitution and mistaken identification does not arise. The statement of Ghulam Ahmad PW-5 stands fully corroborated by the statement of Sultan Muhammad PW-6. Learned counsel for the appellant/accused has laid much stress on the statement of Sultan uhammad PW-6 and has tired to show that he was not present at the spot. His contention is that it was some other Sultan Ahmad son of Sher Muhammad who was present at the spot and as he refused to support the i prosecution, so he was replaced by Sultan Muhammad PW-6, a son in-law of the complainant. The mere fact that name of Sultan Ahmad son of Sher Muhammad has been mentioned in the FIR Ex. PE does not mean that it was not Sultan Muhammad son of Sher Muhammad who has been examined as PW-6. If Sultan Ahmad son of Sher uhammad ws another person than Sultan Muhammad son of Sher Muhammad (PW6), what prevented the defence to produce that man in his defence. Admittedly neither the appellant/accused produced any defence evidence nor even recorded his own statement under Section 340(2) Cr.P.C. This fact alone is j sufficient to discard the stand of the defence that Sultan Muhammad PW-6 was not the person who was present at the time of occurrence. Again it does not appeal to reason that father of deceased would lave the real culprit and would substitute a person who is no less than his own son in-law. False substituted and implication is not rare commodity. But facts of each case have its own importance. In the instant case the son of complainant has been murdered at the hands of his own son-in-law. Under peculiar circumstances of this case it cannot be said that a father would implicate his son in-law j falsely for the murder of his son and thereby would deprive his daughter of the love and affection of her husband. Thus the contention of the learned counsel for the appellant/accused regarding false involvement of the appellant/accused hardly carries any weight. Similarly the contention regarding substitution of Sultan Muhammad PW-6 in place of Sultan Ahmad son of Sher Muhammad also does not ring true and is devoid of any force. 14. The appellant/accused has committed the murder of Muhammad Khan by inflicting two hatchet blows on his head resulting into his death. The appellant/accused is responsible for this pre-planned callous murder of the deceased and has rightly been convicted and sentenced vide judgment under appeal. We do not find any force in the arguments advanced by the learned counsel for the appellant/accused and consequently dismiss the appeal. 15. Death sentence is confirmed. (AAJS) Appeal dismissed

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 661 Present: zafar pasha chaudhry, J. MALIK ABBAS-Appellant versus STATE-Respondent Criminal Appeal No. 309 of 1995, accepted on 24.12.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302/324/148/149/PPC-Murder--Offence of--Conviction (Life imprisonment) for-Appeal against-Prosecution evidence was disbelieved against co-accused of appellant against whom dentical allegations have been made and appellant had no direct motive to commit crime-No recovery was effected from appellant and statement made by PW. 2 was not found confidence nspiring-Appellants name was not specifically/ correctly mentioned in FIR in first instance-There was contradiction in between ocular account and medical evidence and PWs being chance witnesses and being inimical to accused persons-Conviction set aside-­ Appellant acquitted-Appeal accepted. [Pp. 666 & 667] A Mr. Nasrullah Warraich, Advocate Assisted by Mr. asim Sabir Advocate for Appellant. Mr. Mansoor Ahmad Mian, Advocate for State. Mr. Naveed Shaharyar, Advocate for Complainant Date of hearing: 11.12.1998. judgment This appeal is directed against the judgment dated 30.4.1995 passed by Mr. Ghulam Rasool Ranjha, Additional Sessions Judge, Gujrat whereby Malik Abbas alias Aslam appellant was convicted under Section 302 PPG and sentenced to undergo imprisonment for life as Tazir. He was also ordered to pay Rs. 50,000/- as compensation to the heirs of Sarfraz deceased. He was however, given benefit of Section 382-B Cr.P.C. 2. Five persons namely Ch. Ahmad Khan, Khurshid Ahmad, Farrukh Mahmood, Abbas s/o Abdullah and Malik Abbas a//as Muhammad Aslam s/o Rehmat were sent up to face trial in the Court of learned Additional Sessions Judge, Gujrat, under Section 302/324/148/149 PPC. On conclusion of the trial, Ch. Ahmad Khan, Khurshid Ahmad and Abbas s/o Abdullah were acquitted of the charges against them. Farrukh Mahmood being a proclaimed offender, it was ordered that his case be put up when he would be arrested. The appellant was however, convicted and sentenced as noted above. All the accused were acquitted of the charge against all of them under Section 324 PPC. 3. The prosecution case as revealed from the statement of Walayat Khan (PW. 5) is that on 30.7.1992 at about noon time, his maternal nephew Ishtiaq alias Shaki alongwith Abbas and Sarfraz were proceeding towards Jandiala from their village Gandra Khurd as one Muhammad Tufail had expired in Saudi Arabia and his dead body had been brought to his village. Sarfraz was driving the motorcycle whereas Ishtiaq alias Shaki and Abbas were riding the pillion. When all the three reached within the vicinity of Qadir Colony, Farrukh Mahmood, Ch. Ahmad Khan, Khurshid, Abbas s/o Abdullah and Malik Abbas (who subsequently was described as'iHa'iik Xrjbas alias Muhammad Aslam during the trial) who is body-guard of Farrukh Mahmood were sitting one the roofs of the shop. They were all armed with various fire-arms. Ahmad Khan raised a Lalkara that all the three should not be spared on which Khurshid, Abbas and Malik Abbas opened fire which hit Sarfraz on his chest, back and left thigh. Thereafter Farrukh Mahmood fired a shot from his weapon hitting Ishtiaq alias Shaki on the right loin, left thigh and leg. Khurshid fired shot hitting Abbas on the right leg. Sarfraz succumbed to the injuries received by him at the spot while Abbas and Ishtiaq, injured persons were removed to the hospital. 4. The motive was alleged to be that Ishtiaq alias Shaki had forcibly occupied the land of Farrukh Mahmood by ploughing the same. A day prior to the occurrence, the parties exchanged abuses and the accused persons extended threat that if in future the rent was demanded, he will not spare them. Consequently, after hatching a conspiracy, all the accused persons in prosecution of the common object have committed the murder of Sarfraz and inflicted injuries on the person of Abbas and Ishtiaq alias Shaki. 5. On the statement Ex. PF of Walayat Khan recorded by Muhammad Ayyub S.I. (PW. 12), a formal FIR was registered with Police Station Sadar Gujrat. During the course of investigation, two of the accused persons namely Ch. Ahmad Khan and Khurshid Ahmad were got discharged from the case after declaring them as innocent. The complainant thereafter filed a private complaint on 2.10.1992. Since the complaint was under Section 302 PPC, therefore, the same was sent up to the learned Additional Sessions Judge. After recording preliminary evidence all the accused persons were summoned to face trial who were tried by Mr. Ghulam Rasool Ranjha, Additional Sessions Judge. 6. The prosecution in order to prove its case examined 12 witnesses. PW. 1 Dr. Allah Bakhsh conducted the Post Mortem Examination of Sarfraz deceased on 30.7.1992 and observed the following injuries on his person:- A fire-arm wound of entry 1 cm x 3/4 cm with lacerated margins on left front of chest 5 cm below the left mid clavical area. A fire-arm ound of exit I/ \ cm x 1 cm on the left back of chest 24 cm below the upper border of left scapular and 3 cm left to the thorax spine. 1. A fire-arm wound of entry 1/2 x cm x 1/2 cm on the front left thigh 13 cm above left knee joint. A fire-arm wound of exit 1 cm x 1/2 cm on the postero lateral aspect of the left thigh 14 cm above left knee joint. The injuries were ante-mortem and had been caused with fire-arm weapon. They were sufficient to cause death in ordinary course of nature. On the same day he medically examined Muhammad Abbas s/o Akbar Ali and noted the following injuries:- 1. A fire-arm wound of entry 1/2 cm x 1/2 cm on the right leg 8 cm below right knee joint on the medial aspect. 2. A fire-arm wound of entry 1/2 cm x 1/2 cm on the right leg 5 cm apart laterally from Injury No. 1. 3. A fire-arm wound of exit 1/2 cm Xi3/4 cm on the lateral aspect of right leg. The injuries were kept under observation and had been caused with a fire­ arm. Again on the same day he medically examined Ishtiaq and found the following injuries on his person:- 1. A fire-arm wound of entry 1 cm x 1 cm on the right hip joint 4 cm below right iliac crest. 2. A fire-arm wound of entry 1/2 cm x 1/2 cm on the lateral aspect of middle part of left thigh. 3. A fire-arm wound of exit 1 cm x 1 cm on the left thigh on antereo medial aspect. They were kept under observation and had been caused by fire-arm. 4. 7. The eye-witness account was furnished by Ghulam Abbas (PW. 2) and Walayat Khan (PW. 5). Walayat Khan (PW/5) reiterated the same statement what he had already made in his statement Ex.PF. PW. 2 Ghulam Abbas also made a statement in line with the statement given by the complainant. Both the witnesses also stated about the motive as a result of which the murder was committed and injuries were caused to the two PWs namely Muhammad Abbas and Ishtiaq. Muhammad Abbas injured was examined as PW. 2 but Ishtiaq Mahmood was not examined by the prosecution. 8. Muhammad Ayyub S.I. (PW. 12) conducted the investigation. After close of the prosecution case, the same was put to the accused persons and their statements were recorded under Section 342 Cr.P.C. Malik Abbas alias Muhammad Aslam appellant stated that he had been implicated in the case falsely being friend of Farrukh Mahmood. He was also interrogated that after the occurrence, he alongwith his co-accused had filed away, which he answered in the negative. The case of the appellant in his statement was of mere denial. However, his acquitted co-accused Ch. Ahmad Khan made a detailed statement in the following words:- "I am Lambardar of village. I am owner of the shops in Qadir Colony. The deceased was a desperate person and he alongwith his companions used to demand "Jagga Tax" and collected from the shop keepers. On the day of occurrence, the deceased and his companions went to Qadir Colony and demanded the "Jagga Tax" and the shopkeepers resisted. The deceased and his companions were armed with deadly fire-arm weapons. They started firing at the shop-keepers, who in self-defence fired. It could not be scertained as to whose fire had hit the deceased and the PWs. Sarfraz died and the complainant party in connivance with the police got this case registered against me, my son, my son-in-law Khurshid and Abbas and other friends of my son." The accused persons examined Ijaz Ahmad Warraich ASI as DW. 1 who testified the plea of alibi of Muhammad Aslam son of Rehmatullah. Ahmad Khan co-accused produced various documents comprising of an affidavit sworn by Ishtiaq Ahmad PW (Ex.DB), statement of Ishtiaq Ahmad PW recorded by Ch. Sabbir Hussain ASJ different FIRs (Ex.DC to DG) allegedly registered against Ashfaq alias Shaki. With that the defence evidence was closed by him. 9. Learned counsel for the appellant has argued that all the witnesses are chance witnesses being residents of far off places; that the defence version put forward by Ahmad Khan is true and trust-worthy; that the ocular account is contradicted by the medical evidence; that all the coaccused of the appellant against whom identical evidence was produced were disbelieved by the learned trial Judge, therefore, the same evidence cannot be relied upon for recording conviction of the appellant; that no recovery was effected from him; and lastly that the name of the appellant was not even mentioned in the FIR as name of one Malik Abbas was mentioned but in fact the name of the appellant is Muhammad Aslam son of Rehmatullah who subsequently was roped in with mala fide intention. He took up the plea of alibi that at the alleged time of occurrence he was present in village Bagrianwala and he produced a large number of witnesses (about 65) in his defence. They all testified the version of the accused. His plea of alibi was, therefore, accepted by the 1.0. and he was placed in Col. No. 2. The plea was also verified, according to DW. 1 Ijaz Ahmad Warraich ASI by Muhammad Islam, SI/SHO and thereafter by Ch. Muhammad Nazir DSP. 10. The learned trial Judge however, disbelieved his plea of alib observing that according to the appellant he was present in village Bagrianwala in connection with some partnership but no partnership deed was produced, therefore, the same was treated to be an after-thought. It was supplemented that the appellant absconded from the place of occurrence. Had he been innocent, he should have appeared before the police soon after the occurrence. Therefore, he was convicted and sentenced as noted above. 11. The case against the appellant is based on the strength of ocular evidence alone. As far as the medical evidence is concerned, that may be a supporting evidence but cannot be treated as corroborative with regard to implication of the appellant. As already observed that no recovery was effected from him. Although the grain has to be sifted from the chaff and the principle that "falsus in uno falsus in omnibus" is not of universal application yet the fact remains that if a witness is disbelieved against the co-accused, his testimony is to be accepted with care and caution. PW. 2 Abbas has admitted during the cross-examination that the accused persons were not known to him earlier. He did not visit Qadir Colony prior to the incident. He also stated that he did not see various arms held by the accused persons. According to him, the names of the accused persons were given to him by Walayat Khan (PW. 5). His evidence, therefore, is dependent on the evidence of Walayat Khan (PW. 2) so far as specific nomination of the accused persons is concerned. Although the names are given by Walayat Khan who supposedly was known to the accused persons yet the name of the appellant was given as Malik Abbas whereas his actual name is Muhammad Aslam. There is wide different in "Muhammad Aslam" and "Malik Abbas". Learned counsel for the complainant has tried to explain that in fact the appellant was known as "Malik", therefore, the significant part of the name is "Malik" and any error if committed in giving the name as "Abbas" instead of "Aslam" cannot be treated as fatal to the prosecution. The argument is not very convincing. If somebody is called "Malik" then the prosecution witnesses should not have given the name of the appellant as "Malik Abbas". They could have given the name as accused person called as "Malik". If subsequently the name transpired to be Malik Muhammad Aslam then the same perhaps would not have been considered so damaging to the prosecution. But if specific name is given and subsequently he is found to be a different person, then it is necessary that he should have been subjected to some identification. No identification whatsoever was carried out prior to the initiation of the trial. The benefit any how in the present case especially when the evidence has been disbelieved against the co-accused against whom identifical allegations have been made has to be extended to the appellant. 12. The statement of Walayat Khan (PW. 5) also does not inspire full confidence. He admitted that during the investigation which was conducted by a DSP, Khurshid Ahmad and Abbas were found to be innocent. Similar and identical allegations have been made against them. He admitted that a number of persons had appeared before the police during the investigation and they controverted the version of the prosecution, therefore, they were declared innocent. The complainant did not take any step by moving any application to the higher authorities that fair investigation was not conducted and erroneous conclusions were arrived at. Inspite of finding of innocence in favour of the accused persons, he avoided to get the case investigated by any other officer lest the same conclusion may not be arrived at. Although opinion of the Investigating Officer is not binding on the Court and the judgment has to be delivered on the basis of the evidence produced by the prosecution during the trial, yet the fact remains that if during the investigation, the conduct of the witnesses was such that they avoided to confront the accused persons or did not take any step to get the conclusions arrived at by the police nullified, a suspicion does arise that the version put forward by the complainant could not be established before the Investigating Officer who was authorised by law to perform his functions and thereafter to submit the report. Even the learned trial Judge during the course of trial observed that it was not the solitary 1.0. but various Police Officers in the hierarchy such as S.I., Inspector and two DSPs successively held the prosecution version as not true. Therefore, the conclusion may not be accepted because the Court has to arrive at its own independent conclusion bu^^he same does put the Court on caution that the evidence of the witnesses sought to be relied upon by the prosecution should be examined and analysed critically. The statement of Walayat Khan complainant (PW. 5) and Ghulam Abbas (PW. 2) who was an injured witness when read together contain contradictions which have been noted by the learned trial Judge as well. On account of that score as well the statements of these two witnesses were not relied upon. It is true that the presence of the injured PW at the spot cannot be denied but it remains to be determined whether he made a correct statement in Court or he was not in a position to identify the accused persons. In the present case the accused persons wers stated to be present on the roof and they suddenly resorted to firing. It was not explained satisfactorily as to how they could identify the accused persons and also the weapons held by them. When the witness has not been relied upon by the learned trial Court, the observation deserves a due weight because the learned trial Judge had the advantage of observing the demanour of the witness. 13. Learned counsel for the appellant has also tried to point out some contradictions in the ocular account and that of the medical evidence as according to him the locale of injuries indicates that the same had not been fired from an altitude rather they are suggestive of the fact that they were fried from the same level. Although the argument is not very sound but the doctor has conceded that the injuries could have been caused by the assailant who was also on the same level. The opinion of the doctor in this behalf may not be readily acceptable, yet the fact remains that an opinion given in favour of the accused should not be ignored so conveniently. It appears that the possibility cannot be ruled out that the assailant and the accused if not on the same level were not placed in two different levels such as a roof and ground. The benefit anyhow should go to the accused person. 14. The appellant has no motive to commit the murder or commit the assault as alleged against him. However, the fact that he was arrested on 30.11.1994 is a stance which does militate against him. The abscondence of an accused person ordinarily affects adversely the version of innocence by an accused. But in the present case the name of the accused was not given in the FIR. Even according to the prosecution evidence his actual name is Muhammad Aslam whereas Malik Abbas was recorded in the FIR. If an accused person is innocent and his name is also not mentioned in the FIR correctly, then his abscondence as such would not be treated as a corroborative piece of evidence. Learned counsel has also quoted some case law on this point wherein abscondence per se was not held sufficient for conviction. Reliance is placed on Basharat vs. The State (1996 SCJ 265), Haroon alias Harooni vs. The State (1995 SCMR 1627) and Munawar All us. The State (PLD 1993 S.C. 251). In the afore-mentioned authorities the abscondence per se was not treated as sufficient to record conviction. 15. As a consequence of the above discussion, I am of the view that the prosecution evidence was disbelieved against the co-accused of the 2. He further alleged that in the process, Mst. Minhaja, the wife of one of the.accused namely Shamsur Rehman, was grievously injured by the four accused. 3. The motive as stated by the complainant, for the commission of the offence was the "bad relations" between the deceased and his wife namely Mst. Dilshad Begum who is the sister of accused Shamsur Rehman (2) Gul Rehman and (3) Khaista Rehman (real brothers interse). 4. Because of the said report F.I.R No. 4 was duly registered on 16.8.1993 at 13.30 hours at Police Station, Qaidabad, Tehsil and District Dargai, Malakand. 5. The contents of the said FIR were then read over and explained to the complainant who, after admitting the same to be correct, signed the same in English. 6. Immediately after the registration of the case Post Commander, Fazal Karim, P.W. 1 went to the house of the deceased where the dead body was lying. He prepared the injury sheet of the deceased and proceeded to the house of accused Shamsur Rehman. There he found his wife, Mst. Minhaja, lying grievously injured. Her injury sheet was accordingly prepared. He then sent her to the Hospital for immediate medical aid/treatment. 7. The Investigating Officer inspected the spot, prepared the siteplan, on his own, since there was no eye-witness available because the sole injured P.W. Mst. Minhaja, had been sent to the Hospital and was not in a position to despose before the Investigating Officer. Vide: various recovery memos; the Investigating Officer took into his possession three empties of .30 bore pistol, one empty of 8 M.M. Rifle, blood stained earth, a pair of black chappels as well as a pair of "Zanana" chappals etc. from the spot. 8. Since the legal heirs of the deceased had refused to get the autopsy done on the dead body of the deceased, therefore, the dead body was handed over to them for burial. However, the Investigating Officer, had obtained a certificate in this respect from them. 9. The accused, who had allegedly absconded, immediately after the occurrence, were arrested later on. It was during the course of investigation that the father of the accused 3 in number (brothers interse) namely, Shamsur Rehman, Gul Rehman and Khaista Rehman, handed over both the weapons of offence i.e., .30 bore pistol and 8 M.M. Rifle to the Investigating fficer, who took the same in his presence Vide: recovery memo, in the presence of its marginal witnesses. 10. One of the accused namely Shamsur Rehman admitted his guilt before the Investigating Officer, and was accordingly produced before the Asstt: Political Agent so that his confessional statement could be recorded. The A.P.A. in turn referred him to the Extra Asstt: Commissioner who then recorded his confessional statement on 25.8.1993. 11. After the completion of the investigation complete challan against the accused was submitted in the trial Court. 12. In order to prove its case the Prosecution produced as many as 11 witnesses. These are:- P.W. 1 Fazal Karim, Commander. P.W. 2 Rozi Muhammad. P.W. 3 Salahuddin Khan, E.A.C. P.W. 4 Umar Hassan, S.I. P.W. 5 Said Qayum, Complainant. P.W. 6 Mst. Dilshad Begum, Widow. P.W. 7 Ghani Khan. P.W. 8 Gul Faqir and P.W. 9 Dr. Sher Muhammad, M.O. 13. Statements of the accused were recorded u/S. 342 Cr.P.C. by the trial Court. All of them submitted that they were innocent and falsely charged with ulterior motive. They however refused to appear as their own witnesses and get their statements recorded on oath u/S. 340(2) Cr.P.C. They also refused to produce any evidence in their defence. 14. After hearing the learned counsel for the parties, the trial Judge Mr. Hayat Ali Shah, Addl. Sessions Judge, Malakand at Dargai, by his judgment recorded on 21.11.1995, convicted one of the accused namely Shamsur Rehman but sentenced him to pay "Diyyat" because the wife of deceased, who is the sister of the three accused-brothers, had orgiven/pardoned them. Rest of the accused were acquitted as they were given the benefit of doubt. 15. Aggrieved, Mst. Taj Mahala, the mother of the deceased, filed two petitions u/S. 345 Cr.P.C. One against the acquittal of the three accused wherein she submitted that the accused were wrongly/illegally acquitted, without any justification and that therefore the judgment announced by the trial Judge be set aside, the said accused be convicted u/Ss. 302/307/34 PPC and sentenced to death. 16. The other, against the conviction of accused Shamsur Rehman wherein she submitted that since the trial Court, after having held the accused guilty of the crime charged with had failed to appreciate the relevant law by not awarding the normal penalty of death to the convict accused, therefore, the judgment of the trial Court is not correct, needs to be modified and the punishment awarded to him (accused) be enhanced to death under the "Tazir". 17. Since both the appeals have been filed against the same judgment, therefore, these are being disposed of jointly through this single judgment. 18. Mr. Bashir Ahmad Khan, Advocate learned counsel for the petitioners. Barrister KG. Sabir Advocate learned counsel for the respondents and Kh. Azhar Rashid learned Asstt: Advocate General for the State present and heard. Record of the case perused carefully. 19. The only point which has been agitated before me and requires o be determined in the case in hand is as to whether or not the trial Court was bound to award punishment of imprisonment as "Tazir" in spite of the fact the accused were pardoned/forgiven by Mst. Dilshad Begum. The learned counsel for the petitioner submitted that the trial Court had held the accused gailty of having committed "Qatal-e-Amad" and, therefore, although one of the legal heirs of the deceased had forgiven accused Shamsur Rehman but he was liable to be sentenced to imprisonment for life under "Tazir". In this respect he placed reliance on case Ghulam Hussain and another us. The State (P.L.J. 1993 Cr.C. (Lahore) 60 (D.B.) decided by an Hon'ble Division Bench of the Lahore High Court, Lahore, consisting of His Lordship Mr. Justice Sardar Muhammad Dogar and Khalil-ur-Rehman Ramday, wherein it was held as under:- "(III) Qisas and Diyyat- —-Ss. 302/34 and 307/34 PPC~Murder«Offence of-Conviction for challenge to-Whether an offender can be acquitted only by paying share of Diyyat to Walis who had not compounded offence with him, if any one of Walias had waived his right of Qisas against him- Question of-Held: Where an offender was not liable to Qisas and was thus liable to payment of Divyat ^e could not be let off but could be punished with imprisonment by way of Tazir. 21. The learned counsel for the petitioner thus contended that the trial Court had illegally acquitted the other accused against whom Cr. Revision No. 11/96 has been field and that the trial Court had also failed to award the punishment of imprisonment under Tazir to the main culprit. According to him, the revision petitions in the circumstances was to be accepted and all the culprits were to be sentenced to death in accordance with law. 22. Confronted with this situation, the learned counsel for accused Shamsur Rehman submitted that once the accused (Shamsur Rehman) after being held guilty for "Qatal-e-Amad" was directed to pay Diyyat amount to he heirs of the deceased, on the basis of compromise, then in that case he could not be sentenced to imprisonment under Tazir because Hadd and Tazir could not be awarded at one and the same time for an offence. He further stated that because of the forgiveness of the heirs of the victim. Shamsur Rehman accused was entitled to be acquitted. In this respect he placed reliance on case Muhammad Ashraf vs. The State, decided by a Full Bench of the Lahore High Court Lahore consisting of His Lordship Mr. Justice Sardar Muhammad Dogar, Khalil-ur-Rehman and Khalil-ur- Rehman Ramday and reported as P.L.D. 1991 Lahore 347 wherein it was held:- "(i) Criminal Procedure Code (V of 1898) —S. 345 (as amended by Criminal Law (Amendment) Ordinance (IV of 1990) S. 4 and Criminal Law (Second Amendment) Ordinance (I of 1991), S. 10-Crime and punishment in Islam-Q/sas-Right to demand Qisas or forgiveness is given to Wali alone and none else can exercise this right including the Government or the Kazi--Court is not vested with an imguided anJ unlimited power to award punishment of imprisonment by way of tazir after grant of forgiveness ( Jjj^) or receipt of ( •r af ~ ) by the victim or the heirs of the victim as the case may be-Principles deduced from various opinions of Jurists stated-High Court, however, desired that Legislature should prescribed the acts of commission and omission or the attending circumstances of the offences due to which the offender will render himself liable to be punished with the additional punishment by way of tazir otherwise the very purpose of enforcing the law of Qur'an and Sunnah relating to Qatal and Jurh (hurt) will stand frustrated and the existing offences of murder and hurt will remain operative and in force for_all practical purposes-Crime and punishment—Qisas). The question was whether power to award tazir vests in a Kazi under Shariah in case where the offender has been granted forgiveness or pardon by they victim or his Wali or has received Sulah-i-Badl requires to be gone into. Bani Israil Sura XVII Verse 33 reads: (g) Criminal Proceduic Code (V of 1898). —S. 345 [as amended by Criminal Law (Amendment) Ordinance (IV of 1990), S. 4]-Penal Code (XLV of 1860), S. 338-E, proviso-­ Scope and application of S. 345, Cr.P.C. (as amended)-In case High Court Bench hearing the appeals comes to the conclusion that the heirs of the victim in each case have, acting voluntarily and freely, granted pardon or forgiveness (^! LC )and in acknowledgement thereof have executed the compromise deed brought on record, accused in such circumstances would be entitled to acquittal-Court, however was duty bound to comply with the requirement of and duty cast by S. 338-E, proviso, PPG—Where in case of a convict no case is pending challenging his conviction and sentence in any Court he can not avail the provision of S. 345, Cr.P.C. SafdarAli and others v. The State and another PLD 1991 SC 202 ref." 23. I have gone through the record of the case carefully with the able assistance of the learned counsel for the parties and have also gone through the elaborate judgment of the FulljSench of the Lahore High Court. Lahore referred to above and I am convinced in my mind that once accused Shamsur Rehman was forgiven and directed by the trial Court to pay Diyyat amount to the hires of the deceased then in that case he could not be sentenced to imprisonment under tazir because that would amount to additional punishment for the same offence. 24. This Cr. Revision, in the circumstances, has no substance and is accordingly dismissed. 25. As far as Cr. Revision No. 11 of 1996 is concerned, it would be sufficient to say that the learned counsel for the petitioner has failed to convince me or to suggest, even remotely, that there is an iota of evidence in the prosecution case against the respondents-accused. It may be remarked that it was for this reason that the trial Court found them "not guilty" and had, therefore, acquitted them. Valid reasons have been given by the trial Judge which are quite sufficient for his conc/usion. This revision petition is also without any substance and is accordingly dismissed. (T.A.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 672 (DB) Present: jawaid nawaz khan gandapur and nasir-ul-mulk, JJ. ABDUL LATIF and others-Petitioners versus STATE and another-P'^pondents Cr. Misc. Bail Application No. 240 of 1998, decided on 3.2.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497 read with Suppression of Terrorists Activities Act, 1975~No doubt opinion of Investigating Agency is not only not binding on Court but it themselves cannot be made basis for granting bail-Nevertheless it can be taken into consideration if support for it can be found from other material t on record-Opinions of S.H.O. of Police Station, who was Investigating Officer, D.S.P. and later on D.S.P., Crimes get some support from report of Fire Arms Expert that three empties were fired from same weapon- Further more murder was ommitted as retaliation against deceased for not giving his daughter in marriage to absconding accused-Additionally learned Assistant Advocate General had also not posed grant of bail to petitioners-Petitionsallowed. [P. 673] A Syed Zafar Abbas Zaidi, Advocate for Petitioners. Syed Saeed Hassan Shirazi, Assistant Advocate General for State. Dost Muhammad Khan, Advocate for Respondents. Date of hearing: 3.2.1999. judgment Nasir-ul-Mulk, J.-On the information furnished by Islam Nawaz, resident of Kotka Shaista Khan Dakhli Fatima Khel, Bannu a case registered under Sections 302/324/34 PPC at Police Station City, Bannu, it was alleged that Abdul Razzaq, Abdul Latif brothers into and Tariq Khan son of Abdul Latif had come, armed with Kalashnikov, to his cloth shop where he, his two brothers Laiq Nawaz and Hqji Muhammad Imran were percent for conducting their business. That the said three persons fired at the informant and his two brothers as a result of which Muhammad Imran, who at that time was sitting, on the chair behind the counter, was hit and died instantly. The informant and Laiq Nawaz escaped unhurt. The motive for the offence is stated to be refusal by Muhammad Imran to give the hand of his daughter to accused petition Tariq Khan. Tariq Khan is still at large whereas Abdul Latif and Abdul Razzaq after their arrest had applied for bail to the lower Courts. Bail was declined and, therefore, they have applied to this Court. 2. The learned counsel appearing for the petitioner argued that the two petitioners were falsely roped into the case being close relatives of the absconder accused, who alone had the motive to commit the murder. In this context the learned counsel referred to the over hundred affidavits given by the people of the locality regarding the innocence of the petitioner and the opinion, to the same effect, of the Investigating Officer, the Deputy Superintendent of Police as well as the Deputy Superintendent of Polic of the Crime Branch. The learned counsel ubmitted that corroboration for these opinions can be found from the report of the fire Arms Expert which states that the three empties recovered that too not from the spot but for inside the shop were all fired from the same weapon. 3. Learned counsel appearing for the complainant on the other hand, argued that Court cannot make detailed scrutiny of the prosecution case while disposing of bail application and that the petitioners alongwith bsconding accused were directly charged for the murder. The opinion of the Investigating Officer, it was argued, is biased and of no relevance. The learned Assistant Advocate General, however, did not oppose the bail applications and submitted that the investigation reveals that the petitioners were apparently innocent. 4. No doubt the opinion of the Investigating Agency is not only not binding on the Court but in themselves cannot be made basis for granting bail. Nevertheless it can be taken into consideration if support for it can be found from other material on record. The opinion of the S.H.O. of the Police Station, who was the Investigating Officer, the D.S.P and lateron the D.S.P V Crimes get some support from the report of Fire Arms Expert that three empties were fired from the same weapon. Furthermore the murder was committed as realiation against the deceased for not giving his daughter in marriage to the absconding accused. Additionally the learned Assistant Advocate General had also not opposed the grant of bail to the petitioners. 5. For these reasons, these two applications are allowed and the petitioners are admitted to bail by furnishing bail bonds in the sum of Rs. 5,00,000/- (Rupees five lacs) with two sureties each in the like amount to the satisfaction of the Additional Registrar of this Court. (AAJS) Petition allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. Lahore 674 Present: shaikh abdur razzaq, J. Sh. SAEED-Appellant versus STATE-Respondent Criminal Misc. No. 5400-B of 1998, decided on 22.10.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Pakistan Penal Code, 1860 (XLV of 1860), S. 302/34-Bail- Lalkara, nature of--Deterrnination-Only part attributed to petitioner was that he was present with his-co-accused at the time of first occurrence as well as at the time of subsequent incident which resulted into death of the deceased-He has been shown to be armed with pistol and is attributed role of raising Lalkara, thereby instigating his co-accused to commit murder of deceased-Neither alleged pistol has been recovered from petitioner nor any empty has been recovered from place of occurrence-All PWs examined by prosecution in support of its stand are inter-related and none from Bazar has been either cited as a witness or examined in this case, though occurrence has taken place in Bazar-No previous history regarding any enmity exists between petitioner and deceased-Keeping in view facts and role attributed to present petitioner, his case squarely falls within ambit of Section 497(2) Cr.P.C.-Accordingly petition is accepted and he is admitted to bail in sum of Rs. 1-lac with two sureties each in like amount to satisfaction of trial Court-Petition accepted and petitioner admitted to bail. [P. 677] A & B Mr. Nazir Ahmad Qureshi, Advocate for petitioner. Syed Muhammad Kaleem Ahmad Khurshid, Advocate for Complainant. Mr. Nazir Ahmad Chaudhry, Advocate for State. Date of hearing: 22.10.1998. order The petitioner alongwith Waheed Butt son of Mehmood Butt stands charged under Sections 302/34 PPG vide FIR No. 96 dated 5.6.1998 registered at Police Station City Farooqabad District Sheikhupura for committing the intentional murder of Asif Mehmood son of complainant Muhammad Mehmood. 2. Briefly stated the facts are that on 5.6.1998 at about 9.00 a.m. Muhammad Mehmood complainant alongwith his son Asif Mehmood were proceeding to their house, when Waheed Butt son of Mehmood Butt and Sh. Saeed son of Sh. Rashid (petitioner) met them while going on motor cycle. They were stopped by Asif Mehmood who requested Waheed Butt to return the amount outstanding against him. This demand on the part of Asif Mehmood resulted into exchange of hot words between Asif Mehmood and Waheed Butt and other. The matter was, however, patched up by Anjum Javed son of Nazir Ahmad Sheikh. Waheed Butt and other left the place issuing threats of dire consequences. On the same day at about 12.00 noon the complainant alongwith his brother Muhammad Ishaque went to Moon Hair Dressers for hair cut. Shahzada Saleem son of Fazal was also present in the said Hair Saloon. In the meanwhile Asif Mehmood son of the complainant also arrived there and kept on waiting for his turn. At 12.30 noon Waheed Butt and Sh. Saeed (petitioner) armed with pistols entered in the said Hair Saloon. Sh. Saeed (Petitioner) raised Lalkara that Asif Mehmood be taught a lesson for insulting them in the morning. Simultaneously Waheed Butt fired with his pistol which hit Asif Mehmood on the front of his chest, as a result of which he fell down and succumbed to the injuries. Both the accused are said to have decamped from the place waving their respective arms and firing in the air. The incident was also witnessed by Muhammad Ishaque and, Shahzada Saleem. Leaving the dead body in the custody of Muhammad Ishaque and Shahzada Saleem the complainant made for the Police Station and lodged report. The petitioner applied for bail which relief was declined to him vide order dated 20.8.1998 by the Addl. Sessions Judge, Sheikhpura. Hence the instant petition. 3. Bail has been sought inter alia on the ground that petitioner had got no concern regarding the return of any debt which was outstanding against his co-accused, that only part attributed to the present petitioner is that of raising Lalkara, that no recovery of pistol has been effected from him though he remained on physical remand for 14 days, that no recovery of empties has been made from the place of occurrence, that no other motive is ttributed to the present petitioner, that it also does not stand to reason that father, uncle, paternal uncle will all assemble in the shop of hair cutting saloon at the time of alleged occurrence, that no independent witness of the locality has been associated although occurrence admittedly took-place in Bazar. 4. Learned counsel for the petitioner further contends that in case n which only proverbial Lalkara is attributed to the accused-the concession of bail has been allowed and relied upon Amanat Ali vs. The State (1993 SCMR 1992), Rafique Khan vs. The State (1995 SCMR 343), Khan Badsha vs. The State (1978 SCMR 77) and Abdul Aziz vs. Shabbir Ahmad and others (PLD 1996 S.C. 658). 5. Conversely the contentions raised by the learned counsel for the petitioner have been controverted/repudiated by the learned counsel for the complainant assisted by learned counsel for the State. 7. The stand of the learned counsel for the complainant is that the presence of the petitioner at the time of first episode shows his active participation and connivance with his co-accused in the commission of this offence, that petitioner is alleged to be armed with pistol and has been attributed the role of Lalkara culminating into the death of deceased Asif Mehmood, that petitioner has a history of previous involvement as case vide FIR No. 231/95 U/S. 457, 411, 380 PPC stands registered against him on 17.11.1995 in which he is still an absconder, that occurrence has taken place as a result of pre-meditation and consultation between the petitioner and his co-accused, he further contended that no enmity is alleged to be existing between the petitioner and the complainant as such question of his false involvement in this case does not arise. He vehemently argued that instant case is not a case of proverbial Lalkara, but it is a case in which the coaccused of the petitioner committed the murder of the deceased at his instigation, as such he is equally responsible for the death of the deceased and is not entitled to the relief of bail and relied upon Mubarik Shah vs. The State 1986 SCMR 1681, Chiragh Din and others vs. The State (PLD 1996 SC 340), Amir Khan.vs. The State (PLD 1970 SC 789), Noora vs. The State (1994 P.Cr.LJ 1311-Lhr.) and Allah Din and two others vs. The State (1997 .O.LJ 101). 8. He further contended that provisions of Section 302/34 PPC stand fully attracted in the instant case as the petitioner accompanied his coaccused on both the incidents as a result of which the deceased Asif Mehmood was done to death and has relied upon Khair Muhammad alias Khairoo vs. The State (PLJ 1975 S.C. 219), Rasool Bakhsh vs. The State (PLD 1970 S.C. 316). He lastly argued that since the challan has been submitted in the Court and case is fixed for 31.10.1998, so the petitioner is not entitled to the relief and relied upon Syed Akbar and another vs. Gul Akbar (1996 SCMR 931). 9. A perusal of the contentions enumerated above, clearly show that the only part attributed to the present petitioner is that he was present with his co-accused at the time of first occurrence as well as at the time of subsequent incident which resulted into death of the deceased. He has been shown to be armed with pistol and is attributed the role of raising Lalkara, thereby instigating his co-accused to commit the murder of deceased Asif Mehmood. Admittedly neither the alleged pistol has been recovered from the petitioner nor any empty has been recovered from the place of occurrence. It is also fact that all the PWs examined by the prosecution in support of its stand are inter-related and none from the Bazar has been either cited as a witness or examined in this case, though the occurrence has taken place in the Bazar. 10. Learned counsel for the petitioner has relied upon the authorities wherein under similar circumstances the relief of bail has been granted. On the other hand authorities relied upon by learned counsel for the complainant, a similar relief has been refused. The main authority relied by the learned counsel for the complainant pertains to 1986 SCMR 1681. The facts of the said facts are entirely different to the facts in hand as the petitioner in that case stood charged for trafficking narcotics and his three other co-accused were working as his servants and agents. It was under these circumstances that the fatal alkara attributed to the petitioner of that case led to indiscriminate use of fire-arms by other three co-accused. In the instant case the main grievance is between the deceased as well as Waheed Butt who has been assigned a fatal role culminating into death of deceased. No previous history regarding any enmity exists between the petitioner and the deceased. Keeping in view the facts and the role attributed to the present petitioner, his case squarely falls within the ambit of Section 497(2) Cr.P.C. Accordingly petition is accepted and he is admitted to bail in the sum of Rs. 1-lac with two sureties each in the like amount to the satisfaction of the trial Court. (AAJS) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 677 Present: zafar pasha chaudhry, J. Mst. LUBNA-Petitioner versus STATE-Respondent Crl. Misc. No. 951/B of 1998, decided on 4.8.1998. Criminal Procedure Code, 1860- —S. 497~Case covered by proviso~Bail~Prayer for-Offence u/S. 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Allegation against petitioner (a female) is that she kept on committing zina and gave birth to an ill gotten child-Petitioner is a women and her case is covered by proviso to Section 497 Cr.P.C. and the contention that case against her is open to further inquiry, prima facie does not appear to be without force—Petitioner is not required in any other criminal case—Petition is, therefore, accepted and petitioner is admitted to bail subject to her furnishing bail bond in the sum of Rs. 30,000/- with one surety in the like amount to the satisfaction of the trial Court-Bail granted. [P. 678] A & B Mr. Ijaz Muhammad Bhatti, Advocate for Petitioner. Mr. Kamran bin Latif, Advocate for State. Date of hearing: 4.8.1998. order The petitioner is required as accused person in case FIR No. 195/98 dated 20.4.1998, under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, registered with Police Station Seetal Mari , Multan . Allegation against the petitioner is that she kept on committing zina with one Abdur Rehman and also gave birth to an ill gotten child. 2. Bail is sought on the ground that the petitioner is a woman, therefore, her case is covered by proviso to Section 497 Cr.P.C; that she was not named as accused in the FIR but was roped in during the investigation; that there is no evidence with the prosecution to establish that it was the petitioner who deserted the new born infant; and that there is no direct evidence against her and the presumption however strong may be cannot be treated as substitute of evidence, therefore, case against her requires further inquiry. 3. Without making any comments on the merits of th case considering that the petitioner is a women and her case is covered proviso to Section 497 Cr.P.C. and the contention that the case against her is open to further inquiry, prima facie does not appear to be without force. The B petitioner is not required in any other criminal case. This petition is, therefore, accepted and the petitioner is admitted to bail subject to her furnishing bail bond in the sum of Rs. 30,000/- with one surety in the like amount to the satisfaction of the trial Court. (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C . ( Lahore ) 678 Present: MUHAMMAD NASEEM CHAUDHRI, J. KHADIM HUSSAIN and another-Petitioners versus STATE-Respondent Criminal Misc. No. 6901-B/1998, heard on 13.1.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Offence u/S. 379/411 PPC--Bail petition against--Bail application has to be disposed within frame work of S. 497 Cr.P.C .--Both Sections 379 and 411 PPG do not fall within prohibitory clause, hence bail of accused is a rule and its rejection, an exception-Fact that case property to owned by Government is not enough for rejection of bail plea-Stolen property has been recovered, police investigation is complete and petitioners are in judicial lock up-It is a fit case to admit petitioner to bail than to be retained in jail-Bail granted. [P. 679] A & B Mr. Aazar Latif Khan, Advocate for Petitioners. Mareena Chaudhari , Advocate for State. Date of hearing: 13.1.1998.

PLJ 1999 Cr PLJ 1999 Cr.C. (Karachi) 680 Present: syed deedar hussain shah and anwar zaheer jamali, JJ. MUHAMMAD AYUB--Appellant versus -Respondent Cr. Rev. Appln. No. 67 of 1998, decided on 3.12.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 435, 439 & 561-Revision-Applicant has called in question an order passed by Sessions Judge (Special Judge), thereby allowing an application filed by District Attorney Special Prosecutor, with prayer for sending Narcotics Substance recovered from applicant to some. Government chemical examiner for its examination and report as a special case because of interpolation-Trial Court was fully justified in passing such order for sending remaining whole substance to another chemical examiner for his report-Held: Learned Counsel for applicant failed to show any provisions of law debarring trial Court from exercising such powers—It is settled legal position that rules of procedure, are meant for purpose of proper and effective administration of justice and unless Court is debarred, under some specific provision of law, from exercising such powers, which may be necessary in peculiar facts and circumstances of some case, exercise of such power cannot be termed as illegal or without jurisdiction-For other arguments of learned counsel that application under Section 516-A Cr.P.C. was not maintainable-It may be observed that it is substance of an application, rather then its caption, which is relevant for purpose of deciding such application--For foregoing reasons this criminal revision application is without merits and is accordingly dismissed. [Pp. 680 & 682] A & B Mr. Abdul Fattah Malik, Advocate for Petitioner. M/s. Shaikh Abdul Ghani, DAG and Sher Muhammad Shar, AAG. for State. Date of hearing: 25.11.1998. judgment Anwar Zaheer Jamali, J.--By this criminal revision application under Sections 435, 439 and 561-A Cr.P.C., the applicant Muhammad Ayub son of Shahzado Khan has called in question an order dated 13.4.1998 passed by the Sessions Judge (Special Judge), Shikarpur, in Special Case No. 37 of 1997, thereby allowing an application filed by the District Attorney Special Prosecutor, with the prayer for sending the Narcotics Substance recovered from the applicant to some Government chemical examiner for its examination and report as a special case. Succinctly, the relevant facts of the case are that on 27.11.1997 at 11.30 hours, SIP Khalid Hussain Dreho, lodged a complaint at P.S, Staurt Ganj, Shikarpur that he alongwith his sub-ordinate constabulary consisting of P.Cs. Inayatullah, Muhammad Chuttal and Gulzar Ahmed, after making necessary entry in the roznamcha, left for patrolling. During Patrolling Law Enforcing Agency informed them near Goal Market, that one Muhammad Ayub son of Shahzado Khan Pathan had last night gone for purchasing opium and will come back to his house in the morning. On the basis of such information when they reached near the house of Muhammad Ayub they saw a person in the street having a plastic bag in his hand coming from southern side, who on seeing them tried to avoid, but was encircled and caught-hold of alongwith plastic bag. On enquiry he disclosed his name as Muhammad Ayub son of Shahzado Khan Pathan. When the plastic bag was opened, lumps of opium, 36 bullets of G-3, 20 bullets of 303 and 2 bullets of LMG were found in it. Accused failed to show any licence for the bullets and he was taken into custody in presence of PC Inayatullah and PC Gulzar as mashir. His body search was made but nothing was found. The opium secured was weighed and found 3.5. KLGs in weight, out of which 100 grams were separated for the purpose of sample and rest was separately sealed and such complaint under Section 13-A Arms Ordinance and Section 6/9(c) Control of Narcotics Substance Act was lodged. When the case was challaned before the Sessions Judge (Special Judge), Shikarpur being Special Case No. 37 of 1997, a bail application was moved by the applicant. Arguments on the bail application were heard on 19.3.1998, however on 2.4.98 the learned Special Prosecutor moved an application under Section 516-A Cr.P.C., wherein he prayed for sending the whole Narcotics Substance recovered from the accused for chemical examination, to some Government Chemical examiner on the ground that the report of the chemical examiner earlier received by the Court contained interpolation. A notice of this application was given to the learned counsel for the accused and thereafter arguments of both the learned counsel were heard by the trial Court and the impugned order dated 13.4.1998 was passed. The operative part of which reads as under: "Since there is interpolation in the Chemical Examiner's report, its manipulation cannot be ruled out. It is, therefore, in the interest of justice that whole substance may be sent for examination. Accordingly I grant the application of the Prosecutor and direct that the whole substance, recovered from the accused, may be re-sealed in presence of the Court and referred for analysis to the Chemical Examiner at Islamabad through the S.H.O. of Police Station concerned. Hearing of the bail application is deferred till the receipt of the report." Mr. Abdul Fattah Malik the learned counsel for the applicant, has contended that the impugned order of the trial Court is alleged as after the receipt of the chemical examiner's report, which was in negative, the trial Court was not competent to entertain an application from the prosecution side for sending the alleged Narcotic Substance recovered from the applicant to another chemical examiner for another report, and such exercise of power by the trial Court resulted in filling up the lacunas in the prosecution case and reflected a partial approach of the trial Court. Learned counsel further contended that there is no provision of law under which trial Court could exercise such power and therefore the order of the trial Court dated 13.4.1998 is liable to be set aside. Mr. Sher Muhammad Shar AAG controverting these arguments, has submitted that mere mentioning of a wrong section in an application will not take away the jurisdiction of the trial Court for the purpose of sending the Narcotics Substance recovered from the applicant for a second report of a chemical examiner, specially in the circumstances, when the earlier report was relating to a nominal quantity of Narcotic Substance recovered from the applicant and there was a specific allegation about some interpolation in the earlier report of the Chemical Examiner, and the trial Court had reached to a conclusion that such interpolation cannot be ruled out. We have carefully considered the arguments advanced before us and have also perused the relevant record. A perusal of the application dated 2.4.1998, moved by the Special Prosecutor before the trial Court, reveals that a prayer for sending the Narcotic Substance for a second report from some Government chemical examiner was mainly made by the prosecution on the allegation of interpolation in the earlier report of the chemical examiner received by the Court. The trial Court while passing the impugned order has also taken into the consideration this aspect of the matter and observed that possibility of such manipulation cannot be ruled out. In the given facts and circumstances we are of the view that, to meet the ends of justice, the trial Court was fully justified in passing such order for sending the remaining whole substance to another chemical examiner for his report. The learned Counsel for the applicant failed to show any provisions of law debarring the trial Court from exercising such powers. It is settled legal position that the rules of procedure, are meant for the purpose of proper and effective administration of justice and unless the Court is debarred, under some specific provision of law, from exercising such powers, which may be necessary in the peculiar facts and circumstances of some case, exercise of such power cannot be termed as illegal or without jurisdiction. For the other arguments of the learned counsel that the application under Section 516-A Cr.P.C. was not maintainable. It may be observed that it is the substance of an application, rather then its caption, which is relevant for the purpose of deciding such application. Reference may be made to the case of Abdul Khalil v. The State (1997 Pak. Cr.L. J. 198). For the foregoing reasons this criminal revision application is without merits and is accordingly dismissed. (T.A.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 683 (DB) Present: muhammad nawaz abbasi and ch. ljaz ahmed, JJ. » MUHAMMAD IBRAHIM HALEEMI alias ABU ABDULLAH MOHTASffi-Petitioner versus STATE-Respondent Criminal Appeal No. 9 of 1991, heard on 27.8.1998. (i) Accomplice An accomplice is a person who is guilty associate in crime or who sustains such a relation to criminal act that he can be jointly charged with principle accused, but a person who assisted another in good faith or . under compulsion or threat is not an accomplice. [P. 698] E —Circumstantial evidence-Legal status-This is true that a person is deemed innocent unless he is proved to be guilty through strong and ' admissible evidence and generally in criminal law, charge is proved either through direct or circumstantial evidence—In case of direct evidence, reliability depends upon probative value of evidence through settle principles whereas in cases of circumstantial evidence, basic consideration is that offence allegedly committed by a person must be incompatible with any reasonable hypothesis of innocence of that person- -Thus, in cases of circumstantial evidence, basic consideration is that offence allegedly committed by a person must be incompatible with any reasonable hypothesis of innocence of that person-Thus, in cases of circumstantial evidence, standard inference of guilt~In a case in which there are indications of designs in J preparation of a case resting on circumstantial evidence, Court must be } on its guard against possibility of being misled into a false inference- J Therefore, essential principles applicable to scrutiny of proof adduced if not followed in drawing an inference in such cases, same would result in failure of justice-Circumstances of an individual case may or may not; lead to an inference of guilt but for purpose of conviction considering such f circumstances cumulatively if it can be concluded that none else but; judgment Making the allegation about the theft of seven number of trees from Burji No. 179-L by Khadim Hussain and Ali Sher petitioners-accused which were recovered from the saw machine of Ah' Sher petitioner-accused; Muhammad Nawaz, Forest Guard, Canal Jhang Branch got recorded FIR No. 251 on 23.11.1998 under Sections 379/411 Pakistan Penal Code at Police Station Nawan Lahore District Toba Tek Singh. Both of them were arrested on 24.11.1998 whose bail plea has been rejected by the learned lower Courts. They have filed this petition before this Court to try their luck to be admitted to bail. 2. I have heard the learned counsel for the petitioners as well as the learned State counsel and gone through the record before me. The contentions of the learned counsel for the petitioners are that discriminatory treatment cannot be afforded to the petitioners on the ground that they are involved in a case of theft of Government property as expressed by the learned Additional Sessions Judge and that the offences do not fall within the prohibitory clause and thus the grant of bail in this case is a rule. On the contrary learned State counsel laid the emphasis that the stolen property owned by the Government was taken into possession from the saw machine of Sher Ali petitioner-accused where Khadim Hussain worked and that they are not entitled to be admitted to bail. I would express that the reasoning adopted by the learned counsel for the petitioners has to prevail. According to the law of the land the bail application has to be disposed within the framework of Section 497 Code of Criminal Procedure. Both Sections 379 and 411 Pakistan.Penal Code do not fall within the prohibitory clause and according to the ruling printed as Tariq Bashir and five others vs. The Stat (PLD 1995 SC 34) if the offence does not fall within the prohibitory clause the acceptance of the bail of the accused is a rule and its rejection, an exception. The fact that the case property is owned by the Government is not enough for the rejection of the bail plea of the petitioners. It has been held in Sarfraz and two others vs. Ttie State (PLD 1974 Lahore 196) that the fact that the Government property or the national interest is involved in a case is no ground by itself for the refusal of bail and that such considerations rdinarily are not the bar to grant the bail as there is no such prohibition in sub-section 1 of Section 497 Code of Criminal Procedure. The aforesaid ruling was relied upon in Noor Khan vs. The State (1995 PCr.L.J 1179 Lahore ) of which I am the author. 3. It is the admitted position that the stolen property has been recovered, the police investigation is complete and the petitioners are in the judicial lock-up. In the circumstances it is held that it is a fit case to admit both the petitioners to bail than to be retained in jail articularly when the 'Bid' festival is just in the offing. 4. For what has been said above, I accept this application and admit both Khadim Hussain and Ali Sher petitioners-accused to bail in the sum of Rs. 10,000/- (Rs. ten thousand) each with one surety each in the like amount to the satisfaction of the learned Area Magistrate with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel the bail of the absentee accused person(s). (K.K.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 711 Present: mian nazir AKHTAR, J. MANDHA-Petitioner versus STATE-Respondent Crl. Misc. No. 4926-B of 1998, allowed on 24.3.1999. Criminal Procedure Code, 1898 (V of 1898)- —-S. 497--Offence U/Ss. 324/334/337-A(i), 337-F(iv)/148/149 PPC—Bail etition against-Petitioner was arrested on 29.1.1998 and trial ommenced on 20.3.1998~So far, (in a period of one ar) ial Court has ecorded statements of two witnesses-Petitioner is not shown to have aused any delay in conclusion of trial-Moreover, he is a weak and infirm erson as is evident from report jail doctor according to which his reatment is not possible in jail hospital-Bail allowed. [P. 711] A Mr. M. Yaseen Farrukh Kamboh, Advocate for Petitioner. Miss. Najma Parveen, Advocate for State Ch. Jamil Ahmad, Advocate for Complainant. Date of hearing: 24.3,1999. order The petitioner has applied for grant of bail in a case registered against him and others vide FIR No. 32 dated 14.1.1998 for an offence U/Ss. 324/334/337-A(i), 337-F(iv)/148/149 of the PPC at P.S. Sadar Kasur. 2. Bail is claimed primarily on the ground of delay in conclusion of he trial and the petitioner's ailment/infirmity. 3. I have heard the learned counsel for the parties. The petitioner as arrested on 29.1.1998 and the trial commenced on 20.3.1998. So far, the rial Court has recorded statements of two witnesses. The petitioner is not hown to have caused any delay in conclusion of the trial. Moreover, he is a eak and infirm person as is evident from the report of the Jail doctor. The relevant part of the report reads as under:- "He is an old man of about sixty years (60 years) weak and infirm person. He is suffering from peptic ulcer disease with c/o. severe pain epigastrium off and on and bleeding at times that comes out with vomit. He needs detailed investigation and management which is not possible in the jail Hospital." 4. For the foregoing reasons, the petition is accepted and the petitioner is allowed bail, subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- (rupees one lac) with two sureties each in the like amount to the satisfaction of the trial Court. (MYFK) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 712 Present: shaikh abdur razzaq, J. MUHAMMAD ASHRAF etc.--Appellants versus STATE-Respondent Criminal Appeal No. 664 of 1994, decided on 6.11.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- ----Ss. 302, 324, 148, 149~Double murder-Offence of-Conviction for-Appeal against-It was accused party who was aggressor and not the complainant party-Wounds on persons of deceased as well as injured clearly shows that accused party had come fully prepared for attack and launched attack and caused injuries to complainant party-It is not proved that accused were in danger of life at hands of complainant party—Accused party transgressed right of their self-defence and committed double murder-Trial Court convicted appellants in accordance with law- Impugned judgment does not call for any interference—Appeal dismissed. [Pp. 720 & 721] A to B Mr. Munir Ahmad Bhatti, Advocate for Appellants. Pirzada Mamaon-ur-Rashid, Advocate for State. Mr. Khalid Mehmood Farooqi, Advocate on behalf of Respondent. Mr. Nazir Ahmad Ghazi, Advocate for Complainant. Date of hearing: 26.10.1998. judgment This appeal is directed against the judgment dated 24.11.1994 passed by the learned Additional Sessions Judge, Faisalabad whereby he convicted the appellants to different sentences. 2. Briefly stated the facts are that Muhammad Akram complainant (PW.8) was resident of Partab Nagar, Faisalabad and had come to Chak No. 261-RB to see his uncle Bashir Ahmad. When he reached his house, he found that his uncle Bashir Ahmad alongwith his sons Muhammad Ashfaq and Muhammad Asghar and gone to his fields. Accordingly at about 2.00 p.m. he alongwith Muhammad Arshad son of Bashir Ahmad and Muhammad Ali son of Feroze Din made for the said fields. When they reached near Square No. 61 Killa No. 5, Muhammad Ashraf and Muhammad Akbar armed with daggers, Muhammad Asghar armed with Toka, Muhammad Akhtar armed with hatchet and Inayat Ali empty handed passed by their side, Just at that time his uncle Bashir Ahmad alongwith his sons was on their way to their house. Seeing them coming, Inayat Ali raised Lalkara that they be taught a lesson for causing injuries to Muhammad Ashraf. Thereupon Muhammad Ashraf accused gave a dagger below which hit Muhammad Ashfaq at his abdomen at right side, Muhammad Asghar gave a Toka blow which hit Bashir Ahmad deceased on his right hip joint, Muhammad Akbar accused gave a dagger blow which hit Bashir Ahmad deceased at his ribbs' left side. Muhammad Akhtar accused gave blow with hatchet hitting Bashir Ahmad deceased on his right arm. Muhammad Asghar gave Toka blow which hit Bashir Ahmad at his head. Muhammad Ashraf gave a dagger blow landing upon Muhammad Asghar PW at his left buttock. Muhammad Akhtar accused gave hatchet blow which hit Muhammad Ashgar PW at the left side of his abdomen. Thereafter Muhammad Ashraf accused started giving blows with dagger to Muhammad Ashgar PW. The complainant Muhammad Akram alongwith Muhammad Ah' and Muhammad Arshad witnessed the occurrence and tried to rescue the injured from the hands of accused who raised Lalkara that if any one of them tried to intervene he would face the same consequences. The assailants then fled away from there. While the injured were being removed to District Head Quarter Hospital Faisalabad Muhammad Ashfaq succumbed to the injuries and Bashir Ahmad deceased expired in the hospital. Muhammad Ashgar PW was however admitted in hospital for treatment. 3. The motive behind this occurrence was a quarrel which took ce between Muhammad Ashfaq deceased and Muhammad Ashraf accused n 19.11.1993 at noon time, when a bullock of accused party damaged the aze crop of complainant party and was turned out of the field by uhammad Ashfaq deceased Both Muhammad Ashraf and Muhammad shfaq exchanged hot words and Muhammad Ashfaq gave beating to uhammad Ashraf, who left the place extending threats of dire onsequences. Consequently Muhammad Ashfaq alongwith his mpanions aunched attack on the complainant, resulting into death of Bashir Ahmad, uhammad Ashfaq and causing injuries to Muhammad Asghar. uhammad Akram (PW8) them made for the Police Station to lodge the eport However, Anwar Khan S.I. (PW-11) met him at Dijkot bus-stop and ecorded complaint Ex.P-A on the basis of his statement. 4. Anwar Khan S.I. (PW-11) then made for DHQ Hospital aisalabad. He prepared injury statement of Muhammad Ashfaq Ex. PL, nquest report Ex. PM, handed over the dead body of Muhammad Ashfaq to iaqat Ah constable for P.M. examination. He moved applications Ex. PN nd Ex. PO to Medical Officer to enquire if Bashir Ahmad and Muhammad shgar injured were fit to make statement or nor, upon which the report was in negative. He was informed that Bashir Ahmad had died as such he prepared his statement of injury Ex. PP, inquests report Ex. PQ and handed over the dead body to Liaqat Ali Constable for post mortem examination. On 20.11.1993 he visited the place of occurrence, secured blood stained earth from three different places pertaining to Muhammad Ashfaq deceased, Bashir Ahmad deceased and Muhammad Asghar injured and made sealed parcels of the same vide memos Ex. P-K, Ex. P-J and Ex. P-L respectively. On 21.11.1993 he prepared a rough site plan of place of occurrence Ex. P-R. Liaqat Ali Constable produced last worn clothes of Bashir Ahmad and Muhammad Ashfaq deceased which he secured vide memo Ex. PB and Ex. P-C respectively. On 23.11.1993 he got the site plan Ex. P-G and Ex. P-G/1 prepared from Bashir Ahmad Patwari (PW5). On 28.11.1993 he arrested the accused. On 8.12.1993 the accused Muhammad Ashgar, Muhammad Akbar and Muhammad Akhtar led to the recovery of dagger P5, Dagger P6 and hatchet P7 respectively which he secured vide memos Ex. P-D, Ex. P-E and Ex. P-F respectively. After completing the investigation he submitted the 5. A charge under Sections 302, 324, 148, 149 PPC was framed gainst the accused to which they pleaded not guilty and claimed trial. 6. To prove its case prosecution examined PW1 Muhammad Rashid C. who on 19.11.1993 on the basis of complaint Ex. P-A, drafted a formal IR Ex. P-A/1. He further deposed that on 20.11.1993 the I.O. handed over wo parcels of blood stained earth which he delivered to Liaqat Ali Constable n 7.12.1993 for onward transmission to the office of Chemical Examiner, Lahore, that on 9.12.1993 he was given parcels of blood stained earth, blood tained dagger and of blood stained hatchet which he delivered to Liaqat Ali onstable on 13.12.1993 for delivering the same in the office of Chemical xaminer, Lahore. PW-2 Liaqat Ali Constable deposed that on 19.11.1993 he as given the dead bodies of Muhammad Ashfaq and Bashir Ahmad for post mortem examination which was conducted on 20.11.1993. He was given the ast worn clothes of deceased Bashir Ahmad and Muhammad Ashfaq eceased which he delivered to the nvestigating Officer, who secured the ame vide memos Ex. P-B and Ex. P-C respectively. He also corroborated the ersion of Muhammad Rashid H.C. (PW1) regarding delivering of parcels for nward transmission to the office of Chemical Examiner, Lahore. uhammad Arshad PW-3 deposed about identifying the dead bodies of eceased at the time of their post mortem examination on 20.11.1993. PW-4 bdul Rashid deposed about recovery of weapon of offence at the hands of ccused Muhammad Ashraf, Muhammad Akbar and Muhammad Akhtar nd attesting of Ex. P-D, Ex. P-E and Ex. PF respectively. He stated that all he said articles were blood stained and were secured in the presence of aved Iqbal PW. Bashir Ahmed Patwari PW5 is the scriber of site plans x.PG and Ex. PG/1 which he handed over to the Investigating Officer. PW6 r. Capt. Maqbool Ahmad Bandisha deposed that on 20.11.1993 he conducted the post mortem examination of Bashir Ahmad and found the following three injuries on his person :- 1. A stabbed wound 4 x 1 cm (into left atrium of heart) on front of eft side of chest 26 cm out and below from the top of left houlder and 14^ cm from the midline. 2. A stabbed wound 3x1 cm bone deep on right side front of bdomen 14 cm away from umblicus above rightilliac crest. 3. An incised wound 2 x 3/4 cm x bone deep on lower and outer art of right arm, 3 cm above from right elbow. In his opinion the cause of death was haemorrhage and shock due to injury No. 1 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem in nature and were caused by sharp edge weapon. Injuries Nos. 1 and 2 were grievous and injury No. 3 was simple in nature. The time between injury and death was about 3 hours and between death and post mortem examination was about 16 hours. He produced the correct corbon copy of post mortem examination report Ex. PH and sketch of injuries Ex. PH/1. On the same day he conducted the post mortem examination of Muhammad Ashfaq deceased and found the following injury on his person :-- 1. A stabbed wound 3^ cm x 1^ cm x abdominal cavity on the right side of front of abdomen 16^ cm below from right nipple Bh cm right to midline. In his opinion the cause of death was haemorrhage and shock due to injury No. 1 which was sufficient to cause death in the ordinary course of nature and was ante mortem in nature. Probable time between injury and death was 1 hour and between death and post mortem examination was about 20 hours. He produced corbon copy of post mortem examination report Ex. PI and sketch of injures Ex. PI/1. He further deposed that on 30.11.1993 he examined Muhammad Ashraf son of Inayat All accused and found the following injuries on his person :- 1. A healed wound 4 x .08 cm on the left top of head 10 cm above rom left tragus of ear. 2. Abrasion healed 6 x 1 cm on back of fore arm. 3. Abrasion healed 2 x ^ cm on outer side of lower and left arm. He issued MLR Ex. DA and sketch of injuries Ex. DA/1. On the same day he also examined Akbar Ah son of Muhammad Ashraf accused and found the following injuries on his person :-- 1. Complaints of pain at head. 2. Abrasion healed 2 x 1 cm on the back of left forearm with omplaint of pain left fore arm at the abrasion side. 3. Complaints of pain back of right shoulder. 4. Healed abrasion 4 x .7 cm front of upper part of right leg. He issued MLR Ex. DB and sketch of injuries Ex. DB/1. PW-7 Muhammad Asghar is an eye witness of this occurrence and has corroborated the prosecution version given by Muhammad Akram complainant (PW8). He further deposed that he was medically examined and was also admitted in the hospital. Muhammad Akram complainant PW-8 has corroborated his version appearing in complaint Ex. PA. He further deposed that he met Anwar Khan S.I. (PW11) at Dijkot Bus stop who recorded complaint on the basis of his statement. Muhammad Ashraf PW-9 is another eye witness of this occurrence who also supported the prosecution version and further stated that on the same day police had secured blood stained earth from the place of occurrence of Bashir Ahmad and Muhammad Ashfaq deceased as well as Muhammad Asghar injured vide memos Ex. PJ, Ex. PK and Ex. PL respectively. Dr. Abdur Rehman PW-10 deposed that on 19.11.1993 he examined Asghar Ah injured and found 8 injuries on his person which are as follows :- 1. An incised wound 4% x \ cm into muscle deep on right buttock. 2. Stab wound 3% cm x 1 cm D.N.P. on right chest front lower art outer side. 3. Stab wound 2 cm x \ cm D.N.P. on back right chest lower part. 4. Lacerated wound 2 cm x \ cm bone deep right side front of 5. Incised wound 2 cm x \ cm scalp deep right side back of head. 6. Contused swelling 4 cm x 4 cm back of right elbow. 7. Stab wound 4 cm x 4-3/4 cm D.N.P back of left chest middle part. 8. Incised wound 1 \ cm. x \ cm muscle deep on back of left fore arm upper part. He also issued MLR Ex. PJ. On the same day he examined Bashir Ahmad son of Sher Muhammad injured and found the following injuries on his person :- 1. Stab wound 4 x 1 cm D.N.P. left side front of chest lower part outer side. 2. Stab wound 3 x 1 cm D.N.P. right side front of abdomen lower part 14 cm from umblicus. 3. Incised wound 2 x 3/4 cm right arm of lower part outer side. He also issued MLR Ex. PK which bears bis signature. Anwar Khan S.I. PW-11 is the Investigating Officer of this case whose evidence has already and started giving blows to me and my father Ashraf. I was having a knife in my pocket which I took out. My co-accused Ashraf was having a sota with him and after receiving injuries at the hands of Muhammad Asghar PW, Bashir Ahmad and Muhammad Ishfaq both deceased I and my co-accused Ashraf gave some injuries to them in the right of self defence in order to save ourselves from their aggression. The case is false. The PWs have deposed falsely because of their relationship with both the deceased and because of enmity with us. Muhammad Ashgar PW, Bashir Ahmad and Muhammad Ishfaq nourished a grudge against us for the quarrel which took place between me and Muhammad Ashfaq a day prior to the present occurrence while we were playing football in killa No. 20 of Sq. No. 61 Chak No. 261 KB. Myself and my co-accused Muhammad Ashraf appeared before police and informed about the occurrence but because the death of Muhammad Ishfaq and Bashir Ahmad police did not register the case against the complainant party for the aggression committed upon me and my father. On the contrary the police intentionally delayed our arrest and the medical examination in order to strengthen the prosecution case. The accused Akhtar Ali when examined he stated that he was not present at the spot and relied upon the further statement of his co-accused Muhammad Ashraf. He stated that he would lead defence evidence and accordingly produced documents Ex. DF and Ex. DG on 14.11.1993 and closed his defence evidence. The accused Inayat Ali also stated that he was not present at the spot and relied upon the detained statement of his co-accused Muhammad Ashraf. He stated that he would not lead any defence evidence. The accused Muhammad Asghar also claimed his innocence and refused to adduce any defence evidence. 8. After hearing the learned counsel for the parties and going through the record, the trial Court convicted Muhammad Ashraf and Muhammad Akbar Ah' accused/appellants under Section 302 Part n PPC and sentenced each of them to Me imprisonment and compensation amounting to Rs. 50,000/- to the legal heirs of Muhammad Ashfaq and Bashir Ahmad deceased. They were also ordered to pay compensation of Rs. 10,000/- each to Asghar Ali PW. Both the said appellants were also sentenced to pay a fine of Rs. 10,OOQ/- each or in default thereof to further undergo R.I. for 2 years each. Both of them were further convicted under Section 324 PPC and were sentenced to 7 years R.I. for launching attack on Asghar Ali PW. The accused appellant Akhtar Ali was convicted under Section 302 Part IH PPC and was sentenced to R.I. for 7 years. All the accused appellants were extended benefit of Section 382-B Cr. P.C. The accused Inayat Ali was extended benefit of doubt and was accordingly acquitted. The accused/appellants have felt aggrieved and filed this appeal. Alongwith this appeal Criminal Revision No. 21/95 has also been filed by Muhammad Akram for the enhancement of sentence awarded to accused/appellants. As both the instant appeal and Criminal Revision No. 21/95 arise out of the same judgment, so the same are being disposed of by this single judgment. 9. Arguments have been heard and record perused with the ssistance of the learned counsel for the appellants, for the State and for the omplainant. 10. Learned counsel for the appellants has assailed the prosecution vidence from three different angles. His first contention is that as FIR has een lodged at an other place than the Police Station, so it is presumed to ave been lodged after due consultation and preliminary investigation and as uch no implicit reliance can be placed upon its contents and relied upon Muhammad Ashrafand another vs. The State (PLJ 1989 Cr. C. (Lhr) 429). is next contention is that ocular account of which has come on record hrough the statements of Muhammad Asghar (PW-7), Muhammad Akram omplainant (PW8) and Muhammad Arshad (PW9) is in conflict with the edical evidence of Dr. Capt. Maqbool Ahmad (PW6), who conducted the ost mortem examination of Bashir Ahmad and Muhammad Ashfaq eceased and also examined Muhammad Ashraf and Akbar Ali ccused/appellants. He contended that complaint Ex. P-A is silent about the njuries on the person of accused/appellants, as such no reliance can be laced on such ocular account and relief upon Naik Muhammad alias Noata s. The State (1996 SCMR 317). He next argued that occurrence in the nstant case stands admitted and it is evident that accused while inflecting njuries on the person of deceased Bashir Ahmad and Muhammad hfaq as ell as Muhammad Asghar injured had not exceeded the right of theirself efence. He argued that at the time of alleged occurrence, the accused were n imminent danger and had they not acted in theirself defence they ould have been killed by the complainant party. He canvassed that case of he accused/appellants was covered by Section 106 PPC and ccused/appellants were entitled to acquittal in the peculiar circumstances of his case and relied upon Liaqat vs. The State (1994 SCMR 1161). He thus submitted that the impugned judgment s not been passed in accordance ith law as such appeal may be accepted and the accused/appellants be cquitted. ' 11. Conversely the learned counsel for the State assisted by learned counsel for the complainant have supported the impugned judgment. Learned counsel for the complainant further submitted that all the accused/ appellants have not been awarded the prescribed punishment and further prayed for the enhancement of the same. In support of their contention they relied upon (1992 SCMR 309 and 1625). 12. As per prosecution stand, incident took place at about 2.00 p.m. and the statement of complainant was recorded at 5.00 p.m. when he met Anwar Khan S.I. (PW 11) at Bus Stop Dykot while on his way to the Police Station for lodging the FIR. The mere fact that FIR has been lodged at a place other than the Police Station does not mean that instant FIR is the result of due consultation and preliminary investigation. As the incident is admitted so the contention of the learned counsel for the appellants that FIR has been lodged after due consultation and preliminary investigation, is devoid of any force. 13. Much stress has been laid on the point that as the complainant party attacked the accused party so it was in retaliation that accused party inflicted injuries in the exercise of right of self defence. There are two versions of the incident. The stand of complainant is that while the deceased Bashir Ahmad alongwith Muhammad Ashfaq and Muhammad Asghar were returning from their fields, they were way-laid and attacked by the accused party. On the other hand, the stand of accused/appellants is that they had not initiated the attack but were the victim of attack on the part of complainant party. Now it is to be seen which of the versions is nearer the truth. A perusal of record shows that as a result of attack of the accused party, Bashir Ahmed deceased received three injuries out of which injury Nos. 1 and 2 are stab wounds whereas injury No. 3 is an incised wound. Similarly the other deceased Muhammad Ashfaq also received one injury on his person which has been declared a stab wound. The injured Asghar Ali was also examined on the same day and as many as 8 wounds have been found on his person. Out of the said wounds, injuries Nos. 1, 5 and 8 are incised wounds whereas injuries Nos. 2, 3 and 7 are stab wounds. On the other hand Inayat Ali accused was examined on 30.11.1993 and three injuries were found on his person, out of which injury No. 1 was a healed wound whereas injuries Nos. 2 and 3 were simple abrasions. Akbar Ah' accused/appellant was also examined on 30.11.1993 and four injuries were found on his person, out of which injuries Nos. 2 and 4 are healed abrasions whereas injuries Nos. 1 and 2 pertained to complaints of pain. Now if the injuries on the person of complainant party are compared with the injuries received by the accused party, it becomes clearly that it was the accused party who was aggressor and not the complainant party. Incised wounds and stab wounds on the persons of the deceased as well as injured clearly shows that accused party had come fully prepared for attack and it was they who launched the attack and caused injuries to the complainant party. There is no doubt that right of private defence is available to a person when he is put in danger of life. But in the instant case it is not proved from record that they were in danager of life at the hands of complainant party. It proves from record that accused party had come fully prepared for launching an attack and had caused the injuries to the deceased as well as to the injured. The presence of injuries on the person of accused in no way proves that they have caused the injuries to the deceased as well as injured in the exercise of their right of self defence. On the other hand it clearly evinces that they exceeded the right of self defence in causing injuries culminating into the death of Bashir Ahmad and Muhammad Ashfaq as well as causing injuries to Muhammad Asghar PW. 14. It may also be mentioned here that it has been argued by the earned counsel for the accused/appellants that complainant Muhammad kram (PW8) has suppressed the injuries on the person of Muhammad shraf and Akbar Ali accused/appellants. There is no doubt that complaint x. P-A is silent about the injuries on the person of accused named above. owever, a perusal of injuries on the person of Muhammad Ashraf and kbar Ali accused/appellants clearly reveal that the said injuries are of egligible nature. Thus it cannot be held that the said injuries have been ntentionally suppressed by Muhammad Akram complainant (PW8). 15. The up shot of above discussion is that when the prosecution ersion is kept in juxta position with the defence version, it proves beyond nd shadow of doubt that accused party transgressed the right of their self efence and committed the murder of deceased Bashir Ahmad and uhammad Ashfaq and caused injuries to Muhammad Ashgar PW. Accordingly the trial Court has convicted and sentenced the accused/ ppellants in accordance with law. The impugned judgment does not call for ny interference as such the appeal fails and is hereby dismissed. The ccused/appellant Muhammad Akbar @ Akbar Ah' is on bail. His bail bonds re cancelled. He is ordered to be taken into custody and sent to jail to serve ut the sentence awarded to him. 16. With the disposal of appeal Criminal Revision No. 21/95 ecomes infructuous and Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 721 Present: khawaja muhammad sharif, J. NABI BAKHSH etc.-Petitioners versus REHMAN ALI etc.-Respondents Crl. Misc. No. 20-Q-1998, dismissed on 5.11.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A-Confirmation of bail upon sworning affidavits by complainant nd injured PWs~Cognizance of case thereafter for trial-Revision gainst-Dismissal of~Quashment petition against- mpromise of omplainant was only up to confirmation of bail application of petitionero illegality has been committed by Additional Sessions Judge-No merit petition, hence, dismissed. P. 2] A Mr. Abdul Aziz Khan Niazi, and Malik Muhammad Shabbir Langrial, Advocates for Petitioners. Mr. Sikandar Tariq Insari, Advocate for State. Date of hearing: 5.11.1998. order Learned counsel for the petitioners through this petition has challenged the order of learned Additional Sessions Judge, Muzaffargarh Camp at Alipur dated 10.12.1997, whereby he dismissed the revision petition of the petitioners. He submits that during the course of the confirmation of bail application of the petitioners all the injured PWs including the complainant have sworn affidavits that they have pardoned the petitioners and if they are acquitted they would have no objection. Learned counsel for the petitioners has also read before me the affidavits which has been placed on this file. He submits that now that ulterior motive the respondent/complainant and the victims are backing out from the said affidavits. 2. On the other hand, learned counsel for the respondents submits hat bare perusal of the order of learned Additional Sessions Judge, would how that compromise was only upto the confirmation of the bail application f the petitioner. He has read before me the order of learned Additional essions Judge. 3. On the other hand, learned counsel for the State also opposed this etition vehemently. 4. I have heard the learned counsel for the parties. According to the rder of learned Additional Sessions Judge, impugned in thus petition, it has een categorically stated at the time of filing the affidavits and hearing of the ail application, when it was inquried from the injured PWs and the a complainant they stated as under:- o illegality has been committed by the learned Additional Sessions Judge, Muzaffargarh capt at Alipur. There is no merit in this petition, the same is dismissed. (MYFK) , Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 722 Present: riaz kayani, J. WALI MUHAMMAD-Petitioner versus STATE-Respondent Crl. Misc. No. 2284/B of 1998, allowed on 23.12.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Murder-Offnece of-Bail petition against-Role attributed to petitioner is that of iMlkara and thereafter Japha to A who was injured by his co-accused~Role of petitioner whether it amounts to helping other accused is yet to be determined by trial Court-Case of petitioner falls within ambit of further inquiry-Bail granted. [P. 724] A Malik Muhammad Shabbir Langrial, Advocate for Petitioner. Mian Kamran Bin Latif, Advocate for the State. Date of hearing : 23.12.1998. order Wali Muhammad petitioner seeks bail in case FIR No. 150/98 dated 11.4.1998 under Sections 302/324/34 P.P.C, registered with Police Station Gaggo, Tehsil Burewala District Vehari lodged at the instance of one Muhammad Rafiq. 2. The prosecution version as narrated in the FIR is that uhammad Rafique has three brothers namely Muhammad Rasheed, uhammad Latif and Muhammad Siddique who live in one house. On 1.4.1998 Muhammad Latif went out of the house when he was encountered y the petitioner and his three sons, the petitioner was empty handed while is sons Abdul Ghaffar was armed with Barccha, Muhammad Javaid with ulhara and Muhammad Sabir with Kulhari. Wali Muhammad shouted a alkara towards Muhammad Latif that he would not be spared whereupon n the hue and cry of Muhammad Latif and Muhammad Siddique his rother and Javaid Ahmad nephew also reached the spot. Muhammad Javaid opened the attack with the blow of Kulhara which hit Muhammad atif on his head followed by Abdul Qadir who gave Barchi blow on the neck nd shoulder of Latif. Javaid 'Ahmad nephew of the first informant tried to escue Muhammad Latif whereupon Wali Muhammad held him in Japha facilitating Abdul Ghaffar to stab Javaid in his abdomen. Ghulam Sabir also ave a Kulkhari blow which caused injuries to Javaid on his shoulder. uhammad Siddique also wanted to rescue the injured whereupon Ghulam abir gave him a Kulhari blow, Muhammad Javaid injured Muhammad iddique with his weapon on his head. The witnesses arrived and thereafter he accused alongwith the petitioner dispersed taking their weapons along ith them. Motive for the occurrence is stated to be the illicit connections of bdul Ghaffar accused with Mst. Kausar Parveen daughter of Rasheed rother of the complainant which was known to them about a year back pon which beating was given to Abdul Ghaffar. 3. Learned Additional Sessions Judge Vehari dismissed the post rrest bail of the petitioner on 14.11.1998. 4. Learned counsel contends that the role attributed to the etitioner is that of Lalkara and Japha to Javaid Ahmad who was seriously injured. It is yet to be determined whether his case fells under Section 34 PPC. The petitioner is behind the bars since 22.4.1998. 5. Learned counsel for the State has stoutly opposed the bail pplication and has stated that'the trial has commenced and further the etitioner facilitated the attack upon Javaid Ahmad. 6. I have attended to the arguments of the learned counsel for the arties. The role attributed to the petitioner is that of Lalkara and hereafter Japha to Javaid Ahmad who was injured by his co-accused. The ole of the petitioner whether it amounts to helping the other accused is yet o be determined by the trial Court Suffice it to say that at present I am atisfied tha the case of the petitioner falls within the ambit of further nquiry. Consequently the petitioner is enlarged on bail, provided he urnishes security in the sum of Rs. 20,000/- with one surety in the like mount to the satisfaction of the trial Court. (MYFK) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 724 Present: raja muhammad khurshid, J. SANA ULLAH-Petitioner versus STATE-Respondent Crl. Misc. No. 756-B of 1999, dismissed on 18.3.1999. Criminal Procedure Code, 1898 (V of 1898)- —S. 497-Offence under Section 324/452 PPC and 10(3) of (Offence of Zina) II of 1979-Bail petition against-Victim is a young girl of 14 to 18 year of ge and is un-married~She was over- wered titioner and his co- ccused, when she was alone in the house-When she resisted attempt of ina, petitioner sprinkled kerosene oil and set her on fire thereby causing erious burns which re ld dangerous to her life in medico legal eport-Act of petitioner is quite cruel and inhumane so as to call for his elease on bail-Petition dismissed. [P. 726] A Mr. Muhammad Sana Ullah an, Advocate for Petitioner. Sh. Jamal-ud-Din, Advocate for State. Date of hearing: 18.3.1999. order The Inspector Legal present in Court has submitted that there is no PDSP working at District Headquarters Mianwali and that he is the Incharge of prosecution branch. He has further submitted that since the trial was to be conducted in the Sessions Court, therefore, the file was sent to the office of District Attorney for scrutiny. 2. The ASI has allegedly mis-stated that the file was with the PDSP. hen confronted with this situation the ASI has submitted that he had ade the statement because according to him ere was a case under Section 52 PPC and normally such cases are examined by the office of PDSP. This is-apprehension of the ASI is mis-conceived although Section 452 PPC is ne of the ections of the present case alongwith other sections i.e. Section 24 PPC read with Section 10(3) Offence of Zina (Enforcement of Hudood) rdinance, 1979. The ASI is, therefore, warned to be reful in further. A opy of this order shall be sent to the SP, Mianwali for placing this warning n his service record. Coming back to the merits of this case, a perusal of FIR would how that the titioner entered the house of the complainant at about 6.00 M while his young sister Mst. Shahnaz Bibi was alone. The petitioner was ccompanied by Muhammad Riaz. The latter stood at the or steps of the ouse whereas the petitioner trespassed into the house. He wanted to ommit rape with her, but was sternly resisted by her, whereupon the etitioner put the victim on fire by rinkling kersone oil, which caused urns all over her body as would be clearly from the medico legal report laced on record. The victim was examined under Section 164 Cr. P.C. and n her tement she implicated the present petitioner to have committed ina with her. 4. The learned counsel for the petitioner has submitted that ccording to the FIR lodged by the brother the victim, the petitioner anted to commit rape with her, b on fusal she was set ablaze whereas ccording to the statement given by the victim under Section 164 Cr. P.C, he was actually raped. However, the story of the rape is not supported by the medico legal report as the vaginal swabs of the victim were not found tained with semen as per medico legal report It is, therefore, contended hat it is a case of further inquiry particularly when there is delay of 3 days n lodging the FIR. Apart from that it is contended that the FIR was rompted by one Ghulam Muhammad Suinbal against the petitioner through the complainant who is working with him. As such it is alleged that here is no merit in the prosecution case and that the petitioner is entitled to ail. 5. The bail petition was opposed by the learned counsel for the state n the ground that burns f und on the body of the victim prima facie upports her contention that she was set at fire by sprinkling kerosene oil on body by the petitioner. This fact remained un-belied. Secondly that she Muhammad Asghar PW-5 had witnessed the occurrence. It was submitted that incident took place shortly before "//tori" and the time of occurrence really did not admit of presence of PWs or other persons living in that locality to have seen the same. It was submitted that according to prosecution the accused and Asif Butt deceased had quarreled with one another on account of business rivalry but no evidence worth the name was led at the trial to show that Asif Butt, deceased, was doing anything for living or had any business premises or did any business at all. It was argued that the deceased had considerable criminal record and that pointed to his vocation and he could have done to death by any of his disgruntled enemies. It was argued that neither the complainant nor Asghar were residents of that street in which the occurrence had taken place and by no stretch of imagination they could have been present at the spot which was located considerably away from their houses at the time of "Iftari" when the occurrence had taken place. It was also argued that medical evidence clearly showed that deceased was fired at by weapons of different calibre and that showed that number of assailants was larger and different types of weapons were used in the incident and this fact went a long way in smashing the prosecution version. It was argued that the evidence on record was too deficient qualitatively and quantitatively to have connected the appellant with the commission of offence. 16. Learned counsel for the State supported the impugned judgment 17. Learned counsel for the complainant submitted that ubstitution was a rare phenomenon and the contentions being raised on ehalf of the defence were hollow and did not merit any consideration. It was rgued that motive incident was proved by Iftikhar Din PW-4 while the ctual incident was proved by Iqbal Javed PW-7 and Muhammad Asghar PW-5 who had absolutely no enmity with the appellant and it has not been hown as to why they would have deposed against him in a serious case nvolving capital punishment. It was argued that the accused had taken a pecific plea of alibi which was to the effect that he was present at a religious eremony arranged by one of his relatives but this plea was not proved and adverse inference had to follow against the accused-convict. It was submitted hat case against the convict was proved to the hilt by the prosecution and onviction and sentence awarded to him by the learned trial Court deserved o be maintained. It was submitted that trial Court had not prescribed the entence which the convict was to undergo in the event of default in payment of fine and that the judgment of the trial Court needed to be revised n this regard. 18. Substitution in criminal law means replacement of the real ffender by another person who might be wholly unconnected with the rime or might have played a role different than the one assigned to him. ubstitution of the real offender by another person is said to be a rare henomenon. This concept is essentially based on human psychology that retributive instinct of the victim or aggrieved person would prompt him to go nly for the blood of the actual perpetrator and not the innocent The rule as no empirical foundations and the question whether there has been ubstitution or not has to be determined on case to case basis because in ctual practice substitution has not been found to as rare as one would have ou believe. Substitution is of two land : Conscious, calculated and well hought-of; and the other kind is non-deliberate. Where parties are not at oggerheads prior to an incident which takes place suddenly or due to an solated cause or motive, and the complainant party has no time to reflect on he issue and the registration of case is free from extraneous or external nfluences, there would be little likelihood of substitution. But where deepooted enmity exists between the parties and internecine feud is going on etween the two for sometime, the complainant party would have every esire to see the heads of the mighty roll. In such a situation, persons of the pposite camp who are more influential, more important or more dangerous re likely to face the brunt of vendetta of the wily and scheming omplainant. Considerable substitution in such situations is likely to occur. nother case scenario admitting of such a possibility is where hired ssassins are employed to commit a crime. Real culprits or the mafioso are sometimes let off and instead actual enemies who hire the assassins are assigned the effective roles or roles played by accused are swapped. A large cale substitution is resorted to by the complainant in such cases. This henomenon is noticeable in North Western part of the Punjab. Nondeliberate substitution on the other hand occurs where the incident is unwitnessed one or is not witnessed by the concerned people and there is no apparent motive for the incident The accused in such cases is picked out or nvolved on suspicion, guesswork or information provided by others. Choice f the accused being suspicion-based, can be equally wrong or fallacious. The substitution or more correctly, false involvement in such a case, might not be l motivated but nonetheless is a real possibility but surprising aspect of the jyj matter is that the complainant party would stick with dogmatic rigidity to aj the ill-conceived story pieced together by it The reasons might be various or aj divers but hard fact and unpalatable reality is that role-swapping and g substitution in criminal cases does take place. May be crime culture of the r society has undergone a change or the moral fibre of Society has decayed, sc The case in hand appears to fall in the last category of cases where U] substitution is result of guesswork. . 19. The "triggering event" or "initiating circumstances" for the o occurrence, according to prosecution, was a arrel having taken place two ays before the incident between Asif Butt deceased and Boota, appellant nd others having occurred due to business rivalry. It has not been shown by the prosecution as to what business Asif Butt was engaged in or at he had , any shop or business premises out of which he operated any particular sort ,. of business. Iftikhar Din PW-4 was produced at the trial to testify about the motive incident. His testimony was to the effect that two days fore the murder, Asif Butt and Boota etc. quarreled over "some business matter" near accused/appellants. As both the instant appeal and Criminal Revision No. 21/95 arise out of the same judgment, so the same are being disposed of by this single judgment. 9. Arguments have been heard and record perused with the ssistance of the learned counsel for the appellants, for the State and for the omplainant. 10. Learned counsel for the appellants has assailed the prosecution vidence from three different angles. His first contention is that as FIR has een lodged at an other place than the Police Station, so it is presumed to ave been lodged after due consultation and preliminary investigation and as uch no implicit reliance can be placed upon its contents and relied upon Muhammad Ashraf and another vs. The State (PLJ 1989 Cr. C. (Lhr) 429). is next contention is that ocular account of which has come on record hrough the statements of Muhammad Asghar (PW-7), Muhammad Akram omplainant (PW8) and Muhammad Arshad (PW9) is in conflict with the edical evidence of Dr. Capt. Maqbool Ahmad (PW6), who conducted the ost mortem examination of Basbir Ahmad and Muhammad Ashfaq eceased and also examined Muhammad Ashraf and Akbar All ccused/appellants. He contended that complaint Ex. P-A is silent about the njuries on the person of accused/appellants, as such no reliance can be laced on such ocular account and relief upon Naik Muhammad alias Noata s. The State (1996 SCMR 317). He next argued that occurrence in the nstant case stands admitted and it is evident that accused while inflecting njuries on the person of deceased Bashir Ahmad and Muhammad hfaq s ell as Muhammad Asghar injured had not exceeded the right of theirself efence. He argued that at the time of alleged occurrence, the accused were n imminent danger and had they not acted in theirself defence they ould have been killed by the complainant party. He canvassed that case of he accused/appellants was covered by Section 106 PPC and ccused/appellants were entitled to acquittal in the peculiar circumstances of his case and relied upon Liaqat vs. The State (1994 SCMR 1161). He thus ubmitted that the impugned judgment has not been passed in accordance ith law as such appeal may be accepted and the accused/appellants be cquitted. • 11. Conversely the learned counsel for the State assisted by learned counsel for the complainant have supported the impugned judgment. Learned counsel for the complainant further submitted that all the accused/ appellants have not been awarded the prescribed punishment and further prayed for the enhancement of the same. In support of their contention they relied upon (1992 SCMR 309 and 1625). 12. As per prosecution stand, incident took place at about 2.00 p.m. and the statement of complainant was recorded at 5.00 p.m. when he met Anwar Khan S.I. (PW 11) at Bus Stop Dykot while on his way to the Police Station for lodging the FIR. The mere fact that FIR has been lodged at a place other than the Police Station does not mean that instant FIR is the result of due consultation and preliminary investigation. As the incident is admitted so the contention of the learned counsel for the appellants that FIR has been lodged after due consultation and preliminary investigation, is devoid of any force. 13. Much stress has been laid on the point that as the complainant party attacked the accused party so it was in retaliation that accused party inflicted injuries in the exercise of right of self defence. There are two versions of the incident. The stand of complainant is that while the deceased Bashir Ahmad alongwith Muhammad Ashfaq and Muhammad Asghar were returning from their fields, they were way-laid and attacked by the accused party. On the other hand, the stand of accused/appellants is that they had not initiated the attack but were the victim of attack on the part of complainant party. Now it is to be seen which of the versions is nearer the truth. A perusal of record shows that as a result of attack of the accused party, Bashir Ahmed deceased received three injuries out of which injury Nos. 1 and 2 are stab wounds whereas injury No. 3 is an incised wound. Similarly the other deceased Muhammad Ashfaq also received one injury on his person which has been declared a stab wound. The injured Asghar Ali was also examined on the same day and as many as 8 wounds have been found on his person. Out of the said wounds, injuries Nos. 1, 5 and 8 are incised wounds whereas injuries Nos. 2, 3 and 7 are stab wounds. On the other hand Inayat Ali accused was examined on 30.11.1993 and three injuries were found on his person, out of which injury No. 1 was a healed wound whereas injuries Nos. 2 and 3 were simple abrasions. Akbar Ali accused/appellant was also examined on 30.11.1993 and four injuries were found on his person, out of which injuries Nos. 2 and 4 are healed abrasions whereas injuries Nos. 1 and 2 pertained to complaints of pain. Now if the injuries on the person of complainant party are compared with the injuries received by the accused party, it becomes clearly that it was the accused party who was aggressor and not the complainant party. Incised wounds and stab wounds on the persons of the deceased as well as injured clearly shows that accused party had come fully prepared for attack and it was they who launched the attack and caused injuries to the complainant party. There is no doubt that right of private defence is available to a person when he is put in danger of life. But in the instant case it is not proved from record that they were in danager of life at the hands of complainant party. It proves from record that accused party had come fully prepared for launching an attack and had caused the injuries to the deceased as well as to the injured. The presence of injuries on the person of accused in no way proves that they have caused the injuries to the deceased as well as injured in the exercise of their right of self defence. On the other hand it clearly evinces that they exceeded the right of self defence in causing injuries culminating into the death of Bashir Ahmad and Muhammad Ashfaq as well as causing injuries to Muhammad Asghar PW. 'Dera Mowaishian' in street 5-B. This witness no where elaborated as to what that "some business matter" was over which Asif Butt and Boota fell out with one another. He had not elaborated as to who were the persons r other than Boota who had sided with Boota. In cross-examination he stated that he was just passing by the street and had seen the incident The witness had not given the background or nature of dispute over which quarrel took "" place. He was not resident of that locality in which the occurrence took place and obviously was a chance witness and was introduced only to create evidence against the accused that they had a motive to commit the murder of Asif Butt. No doubt it is not the requirement of law that prosecution must show that accused had a motive to commit the offence but where a particular motive is set up, the prosecution is under an obligation to prove happening of the triggering event'. Muhammad Ramzan or his brother were junkmen and plied their trade by cycling around the City. What kind of business rivalry they could have with deceased is hard to imagine. The motive incident appears to have been introduced in order to show that the accused had some grouse to attack the deceased but prosecution had failed to lead —"• effective, reliable and believable evidence qua "triggering event" having _ happened and this aspect of the case is bound to react on the prosecution case. 20. The case against the appellant was sought to be proved through eye-witness-account provided by Iqbal Javed PW-7 and Muhammad Ashgar. PW-5. Muhammad Asghar PW-5 was resident of Abdul Hameed Colony and according to him he had gone to meet his friend in street No. 7 and that at about 6/6. 15 P.M. he was returning to his house when he saw the accused-Boota pick up a pistol and fire the same at Asif Butt. The occurrence had taken place in the month of "Ramzan". The sun-set on the day of occurrence had taken place at 6.19 p.m. The occurrence according to prosecution had • taken place at about 6.15 P.M. meaning thereby that the same had taken place just before "Iftari". Muhammad Asghar claims that he had gone to meet a friend but if he actually had a friend in the vicinity he would not have been allowed to go away by the friend without taking Iftari. This we do not say as of Notional thinking but by keeping in view the normal and natural conduct of people in such matters. It has not been shown by Ashgar PW-5 as to what emergent nature of work he had which promoted to see his friend in another locality at the time of "Iftari" or to leave his place at that time. It is a matter of common knowledge and of common observation and for that no evidence is needed to be led at the time of trial that at the time of "Iftari" few people remain away from their homes and considerably before time of "Iftari." members of the family converge on their homes and then intently wait for the "Azaan" or the municipal sirens. Asghar PW-5 by all contents and measures is a chance witness and his testimony being that of a chance witness cannot form the basis for conviction of the accused. There is another determined-Weapon allegedly recovered from petitioner is licensed arm f petitioner's father-Case of petitioner is covered under S. 497(2) Cr.P.C.~Bail granted. [P. 710] A Malik Muhammad Shabbir Langrial, Advocate for Petitioner. Mr. ArshadAli Chuhan, Advocate for Complainant. Mr. Qamarul Hassan Thaheem, Advocate for State. Date of hearing: 10.11.1998. order Petitioner is arrested in case FIR No. 429/97 dated 24.7.1998 under Sections 302/34, P.P.C. registered at Police Station Saddar Arifwala, District Pakpattan Sharif. 2. The allegation against the petitioner is that he being armed with le 8 M.M. alongwith Muhammad Rafiq son of Muhammad Siddique being rmed with .12 bore gun made a murderous assault upon Asghar. etitioner's fire did not hit Asghar deceased whereas the fire of Muhammad afiq hit the left shoulder of Asghar deceased, who fell down on the ground and succumbed to the injuries at the spot. 3. Learned counsel for the petitioner submits that the firing made y the petitioner was ineffective, that no empty was recovered from the spot hat the rifle recovered was also licensed one and lastly contends that the etitioner is behind the bars for the last about 1 \ years but the trial has not et concluded. Learned counsel for the complainant as well as learned counsel for the State have opposed on the grounds that the challan has been ubmitted in Court and the trial has already commenced. Further that it is a ay light occurrence and that the offence fall within the prohibitory clause of ection 497, Cr.P.C. 4. I have heard the learned counsel for the parties and perused the ecord. Admittedly petitioner did not cause any injury to the deceased and he only role attributed to the petitioner if of ineffective firing. The question f vicarious liability of the petitioner is yet to be determined. The weapon llegedly recovered from petitioner is licensed arm of the petitioner's father. A 5. In the above circumstances the case of the petitioner is covered under Section 497(2), Cr.P.C. Accordingly the petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs. 50,000/- (Rupees fifty thousand only) with two sureties in the like amount to the satisfaction of the learned Judicial Magistrate. (MYFK) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 726 Present: raja muhammad khubshid, J. SOHAIL AHMED-Petitioner Versus STATE-Respondent , Crl. Misc. No. 1737-B of 1999, dismissed on 31.3.1999. Criminal Procedure Code, 1898 (V of 1898)- —S. 498-Offence under Section 324/34 PPC~Bail pre-arrest-It is hardly a ufficient reason to prevent petitioner to appear in Court below, when he as admittedly granted pre-arrest bail and ch, he could invoke aid of ourt for his appearance even if somebody had surrounded Court remises—Perusal of FIR clearly showed that petitioner was named herein and had fired twice tting complainant on his both ankles-There eing no mala fide on part of police or complainant—Petitioner has no se for pre-arrest bail-Investigation in such like cases should be allowed o take its usual course-Weapon of offence is yet to be recovered from etitioner-Petition dismissed in limine. [P. 727] A Syed Mumtaz All Shah Hamdani, Advocate for Petitioners. Date of hearing: 31.3.1999. order A case under Section 324/34 PPC is registered against the petitioner and others at P.S.A-Division, Kasur vide FIR No. 113/99 dated 6.3.1999 for an occurrence which took place on the same day. According to the FIR, the petitioner while armed with a mauzer fired at the complainant twice, first on the right ankle and second on the left ankle which went through and through. The petitioner applied for bail before arrest in the Court of the learned Addl. Sessions Judge, Kasur, but did not appear when the case was called out for hearing on 25.3.1999. As such, the petition was dismissed for non-prosecution. 2. It is contended by the learned counsel for the petitioner that the etitioner could not appear in the Court of the learned Addl. Sessions Judge, asur because the Court was surrounded by the complainant and his Goondas', whereby, he apprehended danger to bis life for which he was unable to attend the Court. 3. I have considered the above grounds and find that it is hardly a ufficient reason to prevent the petitioner to appear in the Court below when e was admittedly granted pre-arrest bail and as such, he could invoke the id of the Court for his appearance even if somebody had surrounded the ourt premises. Apart from the above, 1 have considered the merits of the etition to find out whether or not, the petitioner has a case fit for grant of re-arrest bail. In this connection, the perusal of the FIR clearly showed that e was named therein and had fired twice hitting the complainant on his oth ankles. As such, there being no mala fide on the part of the police or the omplainant, the petitioner has no case for pre-arrest bail and the nvestigation in such like cases should be allowed to take its usual urse. eedless to say that weapon of offence is yet to be recovered from the etitioner, who has not so far appeared before the police. This petition is ccordingly dismissed in limine. C.M. No. 1/99 4. Disposed of with the disposal of the main petition. (MY7K) Petition dismissed. .

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 727 Present: dr. munis ahmed mughal, J. MUHAMMAD RAFIQUE etc.-Petitioners versus STATE-Respondent Crt. Misc. No. 1148/B of 1998, aUcwed on 2.9.1998. C iminal Procedure Code, 1898 (V of 1898)- —S. 497--Murder--Offence of—Bail petition against—Petitioners are not named in FIR-They have been roped in on basis of extra judicial confession which is a weak type of evidence-One of alleged witness of extra judicial confession has sworn an affidavit negating prosecution story—Petitioner's case appears to he one of further inquiry—Bail granted. [P.729]A&B 1996 SCMR 188 ,1991 SCMR 111 ref. Malik Muhammad Shabbir Langrial, Advocate for Petitioners. Mr. Muhammad Masood, Advocate for Complainant. State by Mehr Muhammad Saleem, Advocate. Date of hearing: 2.9.1998. order The two petitioners are involved in case FIR No. 253/97 dated 17.9.1997 for offences under Sections 302/109 PPC registered at Police Station Mailsi, District Vehari on the statement of Manzoor Ahmad alleging that on the night of occurrence Mushtaq Ahmad woke up, his father Khuda Bakhsh at 12.00 in the night on account of lunar eclipse and after giving Rs. 10/- for charily Khuda Bakhsh again slept and when at about 5.00 a.m. Irshad Ahmad brother of the complainant when to went up his father for offering Fajar prayer and found him dead having injury on his eye. 2. Earlier the hail application of the petitioners by the learned essions Judge, Lodhran vide order dated 6.4.1998. 3. It is submitted on behalf of the petitioners that they have been alsely implicated in the case and that they were not nominated in the FIR nd that the extra judicial confession is a very weak type of evidence and that he so called recovery of gun was inconsequential and the same did not atch with the crime empty and that the so called witness Khadim Hussain before whom the petitioner had made extra judicial confession has sworn an ffidavit connecting the prosecution version and that Ghulam Sarwar the rother of the deceased before whom alleged extra judicial confession is said o have been has instituted a complaint against Manzoor Ahmad and three thers for the murder of his father Khuda Bakhsh and that the investigation is complete and the petitioners are no more required for that purpose. On the other hand learned counsel for the State has opposed the etition has submitted that the petitioners had a motive against the deceased s one year prior to the occurrence Ahmad Yar had abducted the daughter of huda Bakhsh for which a case of abduction was registered against him and is nephew Jind Wadda and that the police had raided at the house of hmad Yar whereupon Ahmad Yar had fired at the complainant and Khuda akhsh and as such Ahmad Yar nurshed grudge. I have given due consideration to the valuable arguments on both he sides. 6. The petitioners have been roped in on the basis of extra judicial onfession which is a weak type of evidence as held by their Lordship of the on'ble Supreme Court in Sarfraz Khan vs. The State & 2 others (1996 .C.M.R. 188). One of the alleged witness of the extra judicial confession has worn an affidavit negating the prosecution story. In Muhammad Nawaz alias Najja versus The State (1991 SCMR 111) the Hon'ble Supreme Court f Pakistan granted bail to the accused on the ground that the prosecution itness appeared in the Court and supported the averments made in the ffidavit 7. Without commenting any further lest it may prejudice the case of ither party the petitioners' case appears to be one of further inquiry. As „ uch, the petition is allowed and the petitioners are admitted to bail subject their furnishing bail bonds in the sum of Rs. one lac each with one surety each in the like amount to the satisfaction of learned trial Court (MYFK) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 729 Present: TASSADUQ HUSSAIN JlLANl, J. MUHAMMAD ASLAM-Petitioner versus STATE-Respondent Criminal Misc. No. 512/B of 1999, allowed on 22.2.1999. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence under Section 18 of Offence of Zina (Enforcement of adood) Ordinance VII of 1979-Petition for bail after arrest-It is not enied that suit for dissolution of marriage was filed before registration of ase has already been decreed and petitioner was a witness in said suit-­ here is no evidence that petitioner and co-accused were found in ompromising position-Question of petitioner's guilt requires further nquiry-Bail granted. [P. 730] A Mr. M. Yasin Farrakh Kamboh, Advocate for Petitioner. Mr. Ghidam Hussain Mailk, Advocate for State. Date of hearing: 22.2.1999. ORDER Seeks bail in a case registered vide FIR No. 676 dated 25.12.1998 under Section 18 Oflfence ofZiha (Enforcement of Hadood) Ordinance, VH of 1979 Police Station, Raiwind, Kasur. 2. The prosecution story as given in the FIR briefly stated is that plainant's wife Mst. Irshad Bibi developed illicit relations with etitioner, pursuant to which she filed a suit for dissolution of marriage and left complainant's house; that he went to her parent's house and it was told that she had already left that house and on search made, he went to petitioner's house and found petitioner and his wife Mst. Irshad on one cot preparing for zina. 3. Bail is sought on the ground that the case is false and product of mala fides; that petitioner has been involved as he was a witness in the suit for dissolution of marriage filed by Mst. Irshad Bibi complainant's wife; that the said suit has since been decreed and that the co-accused Mst. Irshad has already been released on bail. 4. Learned counsel for the State has vehemently opposed the petiion for bail. 5. Heard. 6. It is not denied that the suit for dissolution of marriage which was filed before the registration of case has already been decreed and that petitioner was a witness in the said suit. There is no evidence that petitioner and Mst. Irshad Bibi were found in compromising position. In the aforereferred circumstances, the question of petitioner's guilt would require further inquiry. This application is therefore, allowed and petitioner is release on bail provided he furnishes bail bonds in the sum of Rs. 20,000/- (Rupees twenty thousands only) with one surety in the like amount to the satisfaction of Magistrate Section 30 concerned. (MYFK) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 730 Present: raja MUHAMMAD KHURSHTO, J. AFTAB AHMAD and another-Petitioners versus STATE-Respondent Criminal Misc. No. 1098/B of 1999, dismissed on 18.3.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497—Murder-Offence of-Bail petition against-Deeper appreciation of merits of case cannot be undertaken at bail stage—It is true that extrajudicial confession is a weak type of evidence but still, if it inspires confidence at trial, it n ken into consideration to bring home guilt f offenders--At bail stage it will not be possible to enter into culpability r non-culpability of petitioners particularly when they have been linked ith rder of deceased by two witnesses who have no enmity with etitioners-Even otherwise, FIR was registered against one of petitioners amely A that he had taken away the deceased to ore d thereafter, hereabouts of deceased were not known till his murder—Petitioner have o case of bail-Petition dismissed. [P. 732] A Mr . Wall Muhammad Chaudhry, Advocate for Petitioners. Sh. Jamal-ud-Din, Advocate for State. Date of hearing: 18.3.1999. order A case under Section 302/34 PPC was registered against the petitioners and others at the report of Aas Muhammad Lamberdar of the area from where the dead body of the deceased namely Muhammad Nadeem was recovered. It was a blind murder. It however, transpired during investigation that the murder was committed by the present petitioners and their two brothers namely IJaz Ahmad and Irshad Ahmad. Earlier to that the father of the deceased namely Muhammad Aslam had filed a report under Section 366 PPC vide FIR No. 37/98 at Police Station, Sadar Sangla Hills, District Sheikhupura that his son Muhammad Nadeem was abducted by Aftab Ahmad i.e. the petitioner and was taken to Lahore and since then he was not traceable. Later on the aforesaid Aftab Ahmad and his brothers Jjaz Ahmad, Iftikhar Ahmad and Irshad Ahmad appeared before Muhammad Salim and disclosed that they had murdered the deceased. On the basis of that extra-judicial confession investigation proceeded in which conclusion was drawn by the Investigating Officer that accused namely Ijaz Ahmad and Irshad Ahmad were innocent and as such they were placed in Column No. 2 of the challan. Hence their bail petitions were accepted by this Court vide order dated 29.9.1998 recorded in Crl. Misc. No. 4576-B/98. 2. The present petitioners have filed this petition on the ground that their case is not distinguishable from their co-accused, who have been admitted to bail. In this respect, it is contended that it was a blind murder and the petitioner have been involved on the basis of extra-judicial confession before Muhammad Aslam, who is father of the deceased and one Muhammad Salim, who is a brother of the aforesaid Muhammad Aslam. Since the extra-judicial confession is a weak type of evidence, therefore, it could not be relied upon without corroboration of intrinsic nature. It was also contended that extra-judicial confession in this case appears to be un­natural and was illegal and infirm because it was made jointly by all the accused. Hence it was inadmissible and the petitioners were entitled to bail. Reliance was placed on Jan Muhammad and 6 others vs. The State reported as 1997 MLD 81 (Lahore), Nisar hmad and others vs. The State reported as 1997 MLD 2575" (Lahore) and Sheraz Ahmad vs. The State reported as 1997 P.Cr.L.J 709 (Lahore) to say that the petitioners have a case of further inquiry so as to be entitled to bail. 3. The bail petition was opposed by the learned counsel for the state n the ground that there is sufficient evidence with the prosecution to bring ome the guilt in respect of the murder of the deceased against the present etitioners and that the deeper appreciation of the merits of the case cannot e made at this stage. It is urged that facts in the reported cases are different than the-facts of the present case in which investigation was thoroughly and onestly conducted whereby two of the accused were found innocent and ere placed in Column No. 2 whereas there was sufficient evidence with the rosecution to show that the present petitioners were guilty and as such they ave been placed in Column No. 3 of the challan and sent up for trial to the Court concerned. Hence their case was distinguishable from their coccused, who were admitted to bail. 4. I have considered the foregoing submissions and find that deeper ppreciation of the merits of the case cannot be undertaken at this stage. It is rue that extra-judicial confession is a weak type of evidence but still if it nspires confidence at the trial, it can be taken into consideration to bring ome the guilt of the offenders. That stage would only come, when the etitioners face the trial and at this stage it will not be possible to enter into he culpability or non-culpability of the present petitioners particularly when hey have been linked with the murder of the deceased by two witnesses amely Muhammad Aslam and Muhammad Salim, who have no enmity ith the petitioners. Even otherwise the FIR was registered against one of he petitioner namely Aftab Ahmad that he had taken away the deceased to ahore and thereafter, whereabouts of the deceased were not know till his urder. In such a situation the petitioners have no case for bail at this stage. his petition is accordingly dismissed. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 732 Present: raja muhammad khurshid, J. RASHID AHMAD-Petitioner versus STATE-Respondent Criminal Misc. No. 1017-B of 1999, allowed on 31.3.1999. Criminal Procedure Code, 1898 (V of 1898)- —S. 497--Offence under Section 365/324/337-A/337-F/148/149 PPC-Efeil- Grant of-Injury attributed to petitioner has been held by medical expert as "Ghair Jaipha" Mutlahma and "Ghair Jaipha Badiah", which is unishable up to three years R.I and Daman-Since, petitioner is already ehind bars for the last six months and is no more required as nvestigation has already been completed-Bail granted. [P. 733] A Mr. G. Farced Ahmad, Advocate for Petitioner. Mr. Shahid Zaheer Syed, Advocate for Complainant Nqjma Parveen, Advocate for State Date of hearing: .3.1999 order A case under Sections 365, 324, 337-A, 337-F, 148, 149 PPC is registered against the petitioner and others on the ground that they while differently armed caused abduction of complainant Shaukat Ali and caused him injuries. Apart form that father of the complainant namely Noor Muhammad was also injured during the transaction. 2. The learned counsel for the petitioner has submitted that out of 0 accused two namely Allah Ditta and Muhammad Hanif have been found nnocent during investigation and that they have been got discharged from he Court of learned niaqa Magistrate. Secondly it is submitted that present etitioner Rashid Ahmad was allegedly armed with a hatchet with which he caused one injury on the head of Noor Muhammad injured PW. The said njury has been held Ghair Jaipha Mutlahma and Ghair Jaipha Badiah, hich is punishable upto maximum sentence of three years, and Daman . stly it is contended by the learned counsel for the petitioner hat petitioner was arrested on 30.9.1998 and since then he is behind the ars; that challan has already been submitted to the Court concerned for rial and his person is no more required. 3. The learned counsel for the state assisted by the learned counsel or the complainant has opposed the bail petition on the ground that the etitioner had chosen the vital part of the body of the injured PW i.e. his ead which showed his intention that he wanted to finish him; that hatchet as since been recovered from the petitioner which further corroborated his participation in the occurrence. It is, therefore, contended that the petitioner no case for bail at this stage. 4. I have considered the foregoing submissions and find that even ccording to the observation made by the learned Court below the injury ttributed to the petitioner has been held by the medical export as Ghair aipha Mutlahma and Ghair Jaipha Badiah, which is punishable upto three ears R.I. and Daman. Since the petitioner is already behind the bars for the ast six onths and his persons is no more required as the investigation has lready been completed, therefore, allowing this petition, the petitioner is admitted to bail in the sum of Rs. 30,000/- with one surety in the like amount to the satisfaction of learned trial Court (MYFK) Bail granted.

PLJ 1990 Cr PLJ 1990 Cr.C. ( Lahore ) 734 Present: raja muhammad khurshid, J. ISMATULLAH-Petitioner versus STATE-Respondent Criminal Misc. No. 844/B of 1999, allowed on 1.4.1999. Criminal Procedure Code, 1898 (V of 1898)- —S. 497-Offence under Section 337-F(3)/149 PPC-Bail-Grant of-Offence attributed to petitioner does not fall within prohibitory clause-He is already behind bars for last about 7 months-Investigation is complete and challan is being sent to Court for trial-I.O. was also in doubt as to which of assailant had caused injury to injured PW particularly when according to his finding, petitioner had reached spot after injured person had already sustained injury-It is a case of further inquiry-Bail granted. [P. 735] A Ch. Ghulam Hussain, Advocate for Petitioner. Mr. Sarfraz Hussain, Gondal, Advocate for State. Date of hearing: 1.4.1999. order A case under Sections 337-F-3, 149 PPC is registered against the petitioner and others for an occurrence, which took place on 29.7.1998 at about 6.30 P.M. The FIR was lodged on the same day at 10.00 PM. 2. According to the FIR Ismat Ullah while armed with a fire-arm ade a shot at Sher Khan injuring his left elbow. The aforesaid injury was hown as Ghayr Jafiah mutalakimah. 3. The learned counsel for the petitioner has submitted that lthough the fire-arm Was not specified in the FIR, but a .12 bore gun was ecovered from the petitioner to implicate him falsely in this case; that ccording to the police investigation conducted by the SHO/Inspector, etitioner had reached the spot after the aforesaid Sher Khan had already been injured that the Investigating Officer was in doubt as to which of the ssailant caused injury to the injured person. 4. In the light of above, it was prayed that the petitioner was ntitled to bail particularly when he was behind the bars since after bis rrest on 31.8.1998, and challan has already been prepared for sending it to the learned trial Court. 5. Lastly it is contended that injury attributed to the petitioner is unishable upto 5 years and as such the offence does not flail within the prohibitory clause. 6. The learned counsel for the state has opposed the bail petition on he ground that fire-arm injury was attributed to the petitioner and the eapon of offence i.e. .12 bore gun was recovered from the petitioner and ince he had caused actual fire-arm injury to the injured PW, therefore, he as the principal accused in this case and as such he had no ground to be released on bail. 7. I have considered the foregoing submissions and find that the ffence attributed to the petitioner does not fell within the prohibitory lause. He is already behind the bars for the last about 7 months. The nvestigation is complete and the challan is being sent to the Court for trial. he Investigating Officer was also in doubt as to which of the assailant had aused injury to the injured PW particularly when according to his finding, etitioner had reached the spot after the injured person had already ustained injury. 8. In view of the above facts it is a case of further inquiry. ccordingly allowing this petitioner, petitioner is admitted to bail in the sum f Rs. 20,000/- with one surety in the like amount to the satisfaction of earned trial Court. (MYFKi Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 735 Present: raja MUHAMMAD KHURSHID, J. KARAM ELAffl ete.~Petitioners versus STATE-Respondent Crl. Misc. No. 264/B of 1999, dismissed on 26.3.1999. Criminal Procedure Code, 1898 (V of 1898)- —S. 497--Offence under Section 302/324/148/149 PPC~Bail petition against-Cross-version-There was loss of life from both sides-All participants of gruesome killing acted like desperados to make indiscriminate firing in a broad day light showing that they had scant respect for human life-Mere existence of cross cases against each other cannot be a ground of bail nor opinion on merits in favour of petitioners can be given at a bail stage-It would be a premium to criminals to release them on bail particularly when there was un-restrained use of truth power and naked ego at a public place-All petitioners are named in FIR and a specific role to each of them has been attributed—Although they are already in continuous detention for more than two years, but theyprima facie appear to be desperate and heartless criminals—Petition dismissed. [Pp. 737, 738] A to D 1992 SCMR 501, PLD 1993 Peah. 175 re/. Ch. Muhammad AsrhafWahla, Advocate for Petitioners. Mr. Khurram LatifKhan Khosa, Advocate for Complainant Mrs. Salam Tassaduq Hussain, Advocate for State. Date of hearing: 26.3.1999. order This petition was entrusted to this Bench by the HonHble Chief Justice on 23.2.1999 upon a reference made for its transfer by my learned brother Asif Saeed Khan Khosa, J. who had disposed of the bail petition of the co-accused of the petitioners namely Ghulam Qadir vide his detailed order dated 18.6.1998. 2. The brief facts are that a case under Sections 302/324/148/149 PC was registered against the petitioners and others vide FIR No. 21/97 ated 9.2.1997 at Police Station, Kotli Loharan District Sialkot for the lawful der of Muhammad Dyas, Muhammad Akram, Mst. Ghulam Fatima and st. Naureen whereas causing injuries to the injured PWs Mst. Yasmin and Mst. Khurshid Bibi by the free and indiscriminate use of fire-arms. The omplainant in this case was Sarfraz Ahmad. For the same occurrence a cross-version was also registered vide FIR No. 22/97 filed by Fazal Hussain at the same Police Station wherein it as reported that the present petitioners and others had committed the urder of Ghulam Hussain and had caused injuries to Mst. Surraya and st. Arshad Bibi Pws. 3. It was the day of Eid-ul-Fitr, when the unfortunate occurrence ad taken place resulting into killing of 5 aforenamed persons leaving 4 njured PWs to survive. Each party took up the stand that other party was he aggressor. The learned counsel for the petitioners has submitted that in fact he complainant side was the aggressor as they had killed the father of the etitioners namely Ghulam Hussain while attacking at their house after well hought out plan of killing; that the death of Ghulam Hussain and injuries to PWs were suppressed which showed that hands of complainant side were soiled; that the accused in the cross-version i.e. from the complainant side are already on bail, therefore, the rule of parity would demand that the present petitioners be also admitted to bails. 6. Lastly it was contended that one of the co-accused of the etitioners namely Ghulam Qadir has already been admitted to bail and that he case of the present petitioners is not distinguishable from him and as uch rule of consistency would require that petitioners be admitted to bails. Finally it was contended that since therewere two versions about the same occurrence, involving cross cases, therefore, it would become a uestion of further inquiry. 7. The bail petition was opposed on the ground that petitioners and ir co-accused acted in heartless manner to commit the murder of 4 ersons and causing injuries to 2 PWs by using fire-arms and resorting to ndiscriminate heavy firing. They allegedly acted as desperado and in cruel anner and therefore, would not be entitled to bail as the question of aggression is yet to be gone into at the trial for which onus is heavily on theoffenders who claim the exception. However, at this stage, it cannot be said at actually the complainant side was aggressor because if they had come to mmit the aggression then they would have not left 4 dead bodies at the pot and 2 injured PWs to survive them. The quantum of loss of life and injury on the side of complainant would conversely show that in fact they ere the victim of aggression, and not the petitioners side. I have considered the foregoing facts and find that there was loss of life from both sides. All the participants of the gruesome killing acted like desperados to make the indiscriminate firing in a broad day light thereby showing that they had scant respect for human life and safety. 8. 10. The question of cross-version came under discussion in Nasir Muhammad Wassan and another vs. The State reported as 1992 SCMR 501 wherein it was observed that mere existence of cross FIR's or cross-cases against each other cannot be a ground of bail nor opinion on merits in favour of the petitioners can be given at a bail stage. Similarly it was observed in Muhammad Akram Vs. The State reported as PLD 1993 Peshawar 175 that most of such cases fall under the category of free fight' in which both the parties enter into and engage in, of their free violation thus excluding the possibility of pleading self-defence later. It was however, observed that in the context of the present law and order situation and emergence of Kalashnikov culture, the plea of bail raised in cross-cases is not to be taken lightly. 11. In the light of above authorities and after examining the facts of the present case and also not being oblivious of the present day crime scenario it would be a premium to the criminals to release them on bail at this stage particularly when there was un-restrained use of brute power and naked ago at a public place in the broad day light of killing and injuring the human beings like sitting ducks, with indiscriminate and unwonted use of fire-arms. All the petitioners are named in the FIR and a specific role to each of them has been attributed in killing the aforesaid persons and causing injuries to the PWs, They would have, therefore, no case for bail at this stage although they are already in continuous detention for more than two years as they prima facie appear to be desperate and heartless criminals. The bail petition is dismissed. 12. Needlees to say that the above observations are purely for the limited purpose of disposal of this bail petition having no bearing on the merits of this case which has be decided on the basis of evidence brought on record. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 738 Present: shaikh abdur razzaq, J. MUHAMMAD SALEEM-Petitioner versus ABDUL SATTAR etc.-Respondents Crl. P.S.L.A. No. 13 of 1998, dismissed on 24.2.1999. Criminal Procedure Code, 1898 (V of 1898)- —S. 417(2)-Murder-Offenceof~Acquittalofaccused/respondents~Petition for special leave to appeal against-It was not nominated FIR—As a result " f investigation, respondents were initially arrayed as accused but later n they were substituted by three other persons~PWs Nos. 3 & 4 made isclosure of guilt of respondents after 5/6 months of occurrence-No xplanation has been given by them for this delay—Their statements have een thoroughly discussed by trial Court while passing impugned order hich does not suffer from mis-reading, non-reading or any illegalityetition dismissed. [P. 739] A&B Ch, Muhammad Abdus Saleem, Advocate. Date of hearing: 24.2.1999. order Instant petition for special leave to appeal has been filed against the judgment of acquittal dated 12.3.1998 passed by the learned Additional Sessions Judge, Toba Tek Singh. 2. Briefly stated the facts are that initially the case was registered ith police at the instance of Muhammad Saleem. The case was investigated y the Investigating Agency. However, the complainant was not satisfied ith the said investigation and consequently filed a direct compliant against he Accused/Respondents Nos. 1 to 3. As a result of inquiry into the said complaint, the matter was consolidated with the police case. The proceedings e conducted in the complaint case. A charge under Section 302/34 PPC as framed against the Accused/Respondents Nos. 1 to 3, to which they leaded not guilty and claimed trial. 3. In order to bring home guilt to the Accused/Respondents Nos. 1 o 3, the complainant examined PW-1 Mst. Sabiran Bibi, Muhammad Akram W-2, Riaz Hussain PW-3, Muhammad Zahid PW-4 and recorded his own tatement as PW-5. He thereafter gave up the remaining PW-s being nnecessary. The learned trial Court then recorded statements of prosecution witnesses as CW-1 to CW-32. 4. When examined under Section 342 Cr. P.C., the ccused/Respondents Nos. 1 to 3 denied the prosecution version and ecorded the statement of DW1 in their defence. After going through the evidence brought on record, the learned rial Court acquitted the Accused/Respondents Nos. 1 to 3. 5. Being aggrieved of order of acquittal, the complainant/petitioner as field the instant petition for special leave to appeal. 6. Arguments have been heard and record perused. 7. A perusal of the FIR clearly shows that it was not the nominated IR and as a result of investigation, the Accused/Respondents Nos. 1 to 3 ere initially arrayed as accused but later on they were substituted by three ther persons, namely, Khalid alias Khala, Jan Masih and Haider Ali. 8. The main case of the complainant rests upon the statements of W-3 Riaz Hussain and PW-4 Muhammad Zahid, who are stated to have isclosed to the complainant that actually the accused/respondents were esponsible for the murder of his brother. A perusal of their statements learly shows that they made the said disclosure after about 5/6 months of he occurrence. No explanation whatsoever has been given by them for not isclosing the said fact either at the time of registration of case or even prior o the arrest of the accused/respondents. The entire case rests upon their tatements which have been thoroughly discussed by the learned Additional essions Judge while passing the impugned order. No mis-reading or noneading of the evidence has been highlighted by learned counsel for the etitioner while addressing the arguments. The impugned order does not uffer from mis-reading, non-reading or any illegality, as such, there is orce in the petition and the same is hereby dismissed. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 740 Present: asif saeed khan khosa, J. ALLAH WASAYA alias BHATTI-Petitioner versus STATE-Respondent Criminal Misc. No. 1698-B of 1998, accepted on 6.10.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Offence under Section 302/34~BaD on statutory groundetitioner was arrested on 3.7.1995 and charge has not yet been framed after 3 years)-Delay in conclusion of trial is in no way attributable to etitioner, who is languishing in jail for last more than three years with o prospects of early conclusion of trial-petitioner is not a previous onvict nor has he got any history of criminality to his discredit-Condcut epicted by petitioner during occurrence, does not prima facie show any nusual or brutal on his part-Thus it is difficult to brand him as a hardened, desperate or dangerous criminal so as to refuse his statutory ight of bail earned by him on ground of delay in conclusion of trial—Bail granted. [P. 741] A Malik Muhammad Shabbir Langrial, Advocate for Petitioner. Mr. Riaz Ahamd, Advocate for State. Date of hearing: 6.10.1998. order Allah Wasaya petitioner is an accused person in case FIR No. 205 registered at the instance of Irshad Ahmad complainant at Police Station Mitro, District Vehari on 30.6.1995 for an offence under Section 302/34, PPC. the allegation against the petitioner and his absconding co-accused namely Saeed is that on 29.6.1995 they had committed the murders of Zahoor Ahmad and Mst. Nazir Mai deceased, the petitioner was arrested by the local police in connection with this case on 3.7.1995. His application for post-arrest bail was dismissed by the learned Additional Sessions Judge, Vehari on 21.8.1998. Hence, the present petition before this Court. 2. After hearing the learned counsel for the parties and going through the record it is noticed that the petitioner was arrested in connection with this case on 3.7.1995 and his trial has not even commenced till date. I am informed that even the charge has not been framed by the learned trial Court in the case of the petitioner so far. The learned counsel for the petitioner has urged for bail for the petitioner mainly on the statutory ground of delay in conclusion of the petitioner's trial. In additional to the statutory ground it has been maintained by the learned counsel for the petitioner that Irshad Ahmad complainant, a brother of Zahoor Ahmad deceased, has sworn an affidavit exonerating the present petitioner from the offence in question. He has also brought to my notice an affidavit sworn by Mst. Nazir Mai deceased's husband Umar Bakhsh who has also exonerated the present petitioner. It has been noticed that delay in the conclusion of the trial is in no way attributable to the present petitioner who is languishing in jail for last more than three years with no prospects of early commencement or conclusion of his trial. The petitioner is not a previous convict nor has he got any history of criminality to his discredit The conduct depicted by the petitioner during the occurrence in question, even if accepted to be true, does notprima facie show any unusual or brutal conduct on his part inasmuch as he fired one shot at Mst. Nazir Mai deceased and did not repeated the same. Thus, with this kind of allegation against him it is difficult to brand him as a hardened, desperate or dangerous criminal so as to refuse bis statutory right of bail earned by him on the ground of delay in conclusion of his trial. 3. For what has been observed above this petition is hereby accepted and the petitioner is admitted to bail in the sum of Rs. 1,00,000/- with two sureties in the like amount to the satisfaction of the learned trial Court. (MYFK) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 741 Present: dr. munir ahmed mughal, J. ILYAS etc.»Petitioners versus STATE-Respondent Crl. Misc. No. 681-B of 1998, allowed on 5.11.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Offence under Section 302/324/337/354/148/149 PPC-Bail petition on statutory ground-Petitioners were arrested on 22.10.1995 and a period of three years has been elapsed-Challan was submitted on 10.10.1995 and since then case was adjourned for 60 times and only three witnesses have been examined out of calendar of 18 witnesses—Only three adjournments consuming 45 days were due to defence out of 60 adjournments-Right of an accused to be enlarged on bail under 3rd proviso to Section 497(1) Cr. P.C. is a statutory right which cannot be denied under discretionary power of Court to grant bail—Bail granted. [P. 744] A&B PLD1995SC49re/! Malik Muhammad Shabbir Langrial, Advocate and Mr. Altaf Ibrahim Qureshi, Advocate for Petitioners. Mr. Muhammad Rafique Rajput, Advocate and Mr. Riaz Ahmad, Advocate for State. Mian Fazal RaufJoya, Advocate for Complainant. Date of hearing: 5.11.1998. order This order shall disposed of Crl. Misc. No. 681-B/98 and Cri. Misc. No. 616-B/98. The petitioners are involved in Case F.I.R. No. 447/95 dated 19.9.1995 Under Sections, 302/324/337-F-IV, 337-F-H, 337-A-H. 337. L, n, 354, 148/149 P.P.C. registered at Police Station Saddar, Pakpattan, District Pakpattan Sharif, on the complaint of Rashid Ahmad alleging that he is resident of Chak No. 12/S.P. and that his material uncle Muhammad Boota had kept earth in the street for the construction of his old house. A day before the occurrence i.e. 18.9.1995, their had been exchanged of harsh words between the maternal uncle of the complainant namely Muhammad Boota with Muhammad Ramzan, Illyas, Raqoob and Qasim AM etc. and that the dispute entered into scuffle. The objection was as to why Muhammad Boota had put the earth in the street. However, the same was sub-sided by the intervention of the respectable of the village temporarily. Muhammad Ramzan felt aggrieved and he should threat that Muhammad Boota and his son Muhammad Afzal soon dealt with. On the day of occurrence, at about 6.00 a.m., the complainant got information that Muhammad Ramzan etc. had made a programe to fight with Muhammad Boota and to kill Muhammad Boota and his Muhammad Afzal. The complainant received this information proceeded to the house of his maternal uncle Muhammad Boota to inform him in time, so that he may remain careful. But when he reached the house of Muhammad Boota, he came to know that Muhammad Boota and his son Muhammad Afzal had gone out for the call of nature. The complainant disclosed that information to Muhammad Akhtar son of Muhammad Boota and Niaz Ahmad son of Nawab (brother-in-law of Muhammad Boota) who had come to the house of Muhammad Boota from Mustafabad, Kasur, in connection with the construction of the house and proceeded with them towards Muhammad Boota and his son Muhammad Afzal towards the Tubewell of Muhammad Boota. While they were a little awary Tubewell on Katcha Road, Muhammad Boota and Muhammad Afzal were going a little ahead. The complainant issued a call to inform that suddenly from the cotton crops Muhammad Ramzan, Ghafar, Manzoor, Ah Muhammad and Illyas armed with hatchet, Ismail and Jan Muhammad armed with Sota, Yaqoob armed with hatchet, Sarwar armed with Sota, Hakkim All armed with hatchet, Muhawar and Pannu armed with Sofa and Ayub and Shakoor armed with Sofa came out with an ambush. Muhammad Ramzan and Ilayas raised lalkara to kill Muhammad Boota and his son Muhammad Afzal there and then and teach them a lesson of yesterday insult. Muhammad Ramzan attacked on Muhammad Afzal from blunt side of his hatchet which hit on the back side of the head. Muhammad Days also gave a hatchet blow from the blunt side to Muhammad Afzal which also hit on the back side of his head and he fell down. Manzoor gave hatchet blow to Muhammad Afzal which hit of his left arm, Yaqoob also gave hatchet blow from blunt side which hit on the back side of the left ear. The remaining accused also caused injuries on various parts of his body. Sarwar gave Sota blow which hit Muhammad Boota on the head and Manzoor gave hatchet blow from blunt side which hit on his left leg. Muhammad Boota fell down and all the accused caused injuries with their respective weapons on.various parts of the body of Muhammd Boota. Seeing the occurrence with their own eyes, Niaz Ahmad and Muhammad Aslam came forward to get them released. On that Jan Muhammad gave a sota blow to Muhammad Akhtar on the right side of his face and Muhammad Ismail gave sota blow on the left arm of Muhammad Akhtar. Hakim Ah' gave sota blow on the right leg of Muhammad Akhtar and he fell down and all the accused with their respective weapons caused Injuries to him and issued threat to them that in case they came forward they will also to be dealt with in the same coins. They did not go near due to fear. Meanwhile, Muhammad Anwar son of Muhammad Boota, Bashiran wife of Muhammad Boota and Shahina daughter of Muhammad Boota came on the spot and hearing of the fight and saw the incident with their own eyes and came forwarded to get the injured released. At that time Shakoor gave a sota blow which hit Shahina on his right arm. Ghafar gave hatchet blow from the sharp side which hit on the left hand of her while she raised her hand up to defend her. All the three accused gave sota blow to Mst. Bashiran which hits on her left thigh. Muhammad Hayas and Muhammad Ramzan drag Mst. Bashiran and Shahina by holding them from their hears and insulted them. At the time of occurrence, many people of the village gathered at the spot The complainant Niaz Ahmad, Anwar and other people of the village becheached the accused and get the injured released from the accused. The injured were brought to Hospital Pakpattan Sharif on a Tractor TroDy. The Medical Officer gave medico legal report The condition of Muhammad Afzal was very precarious, he was sent to Lahore . While the remaining injured were admitted in Pakpattan Sharif Hospital. All the accused in furtherance of their common object intentionally killed Muhammad Boota and his on Muhammad Afzal. 2. The petitioners Muhammad Ramzan and fllayas have moved this pplication for the grant of bail on the statutory ground that a period of over wo years has passed and yet the trial in the said case has not been oncluded. 3. The learned counsel for the State has opposed the bail application n the ground that it is a broad day light murder and petitioners have been pecifically named in the F.I.R. and recovery have been effected from them. 4. I have given due consideration to the valuable arguments of both ides. The tentative appraisal of the record shows that the petitioners ere-arrested on 22.10.1995, which means a period of three years has been lapsed. The position of the trial is that challan was submitted on 10.10.1995 nd since then case was adjourned for 60 times and only three witnesses ave been examined out of the calender of 18 witnesses. Only there djournments consuming 45 days were due to the offence out of 60 djournments. The remaining 57 adjournments have been made without ny fault of the accused/petitioners. The relevant provision of law on the point is contained in 3 rd roviso of Section 497(1) Cr. P.C. which reproduced as under: "Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bill." (a) (b) who being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded. In the case of "Zahid Hussain vs. The State" (P.L.D. 1995 SC 49) the HonTole Supreme Court has observed as under :-- "The right of an accused to be enlarged on bail under the 3rd proviso to Section 497(1), Cr.P.C. is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the 3rd proviso of Section 497(1) Cr. P.C. is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso to Section 497(1), Cr. P.C. can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any other person acting on his behalf. The bail under the 3rd proviso to Section 497(1) Cr. P.C. can also be refused by the Court if the case of the accused fell under the 4th proviso to Section 497(1), Cr. P.C. In all other cases the Court must grant bail". 7. For the abovesaid reasons, the petition for bail merits to be allowed subject to furnishing bail bonds in the sum of Rs. 50,000/- with one surety each in the like amount to the satisfaction of the trial Court. (MYFK) Bail allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 745 (DB) Present: KH. MUHAMMAD SHARIF AND RlAZ KAYANI, JJ. MUHAMMAD ISHAQUE etc.--Petitioners versus STATE-Respondent Crl. Misc. No. 1238-B of 1999, accepted on 22.4.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Abduction and Zzna-Offence of-Petition for bail after arresthere is a delay of 30 hours in lodging FIR without plausible explanationhere is a nikahnama on record between petitioner M. and abducteehere is also an arbitration decision in which allegation of abduction is enied-Petitioner No. 1 has also filed suit for restitution of conjugal ights-All these factors make this case of further inquiry-Petition ccepted. [P. 746] A Rana Abdul Majeed, Advocate for Petitioners. Mr. Naeem Sadiq, Advocate for State. Date of hearing: 22.4.1999. order This is an application for bail after arrest on behalf of Muhammad Ishaq and Muhammad Sadiq. According to the FIR, on 7.9.1998 the complainant's daughter namely Mst. Rahat Bano aged 15/16 years left the house in order to inform her neighbourers about 'Meelad' ceremony at her house. Later on, when she did not turn up the complainant tried to locate her. The complainant was told that Mst. Rahat Bano was seen in the company of Muhammad Ishaq petitioner and her sister Mst. Jameela. It was also stated in the FIR that Muhammad Ishaq used to visit the house of the complainant and it came to the knowledge of the complainant that Muhammad Ishaq had developed illicit relations with Mst. Rahat Bano. 2. After having failed to get bail after arrest from the Special Court o. 2, Lahore, both the petitioners have moved this Court. Learned counsel appearing on behalf of the petitioners submits hat infact Rahat Bano had entered into marriage with Muhammad Ishaq etitioner according to her own free will, copy of the Nikahanama is also ttached with this file. He submits that Nikah Registrar had also appeared ore the I.O and had verified the genuineness of Nikah-nama by ubmitting an affidavit. He submits that only allegation against Muhammad Sadiq is of abduction. He also submits that suit for restitution of conjugal rights filed by Muhammad Ishaq petitioner in the civil court is still pending. Adds that there is a delay of 30 hours in lodging the FIR. He also submits that although, it was alleged that Rabat Bano was recovered on 10.9.1998 but her statement U/S. 164 Cr.P.C. was recorded on 27.11.1998 without any plausible explanation. He adds that there was no mark of violence on the body of Rabat Bano when she was medically examined on 27.11.1998. He has referred Annexure 'C' an Arbitration decision in which it was written by one Haji Sh. Irshad Ullah, Chairman Ushr & Zakat Committee, Ward No. 78, that Mst. Rabat Bano had categorically stated before him that she had entered into nikah with her own wishes and Muhammad Ishaq had never abducted her. 4. On the other hand learned counsel for the State had vehemently pposed the grant of bail to the petitioners/and submits that the offence lleged against the petitioners falls within the prohibitory clause of Section 97 (1) Cr.P.C. 5. We have heard the learned counsel for the parties. In the instant ase there is delay of 30 hours in lodging the FIR without any plausible xplanation. There is a nikahnama on the record between Muhammad Ishaq etitioner and Rabat Bano, there is also an Arbitration decision given by one aji Sh. Irshad Ullah, Chairman Ushar & Zakat Committee, which is also on the file. In arbitration proceedings 4 Advocates had also taken part and in heir presence Mst. Rabat Bano had admitted to have entered into nikah ith Muhammad Ishaq and denied the allegation of abduction against uhammad Ishaq. Muhammad Ishaq has also filed a suit for restitution of onjugal rights which is also pending before the Judge Family Court. There is one Javaid against whom the allegation ofzina was levelled by Rabat Bano ut after her return to the house of her parents she did not identify the said avaid in the Court and stated that there was some other Javaid who has not een arrested in this case till today. All these factors make this case of urther inquiry as regards to Muhammad Ishaq. As far as Muhammad Sadiq etitioner is concerned there is no allegation of zina against him. In this view f the matter a case of further inquiry is made out in favour of both the etitioners. We accept this bail petition and allow the petitioners on bail rovided they furnish bail bonds in the sum of Rs. 50,000/- (fifty thousand) ach with one surety each in the like amount to the satisfaction of A.C/Duty Magistrate, Lahore . (MYFK) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 747 (DB) [ Multan Bench] Present: mian muhammad najam-uz-zaman and asif saeed khan khosa, JJ. JAFFAR and another-Appellants versus STATE-Respondent Crl. Appeal No. 152/1995 and M.R. No. 164 of 1995, decided on 14.10.1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/324/34-Murder and murderous assault-Offence of-Conviction and sentence-Challenge to-A day-light occurrence and 3 eye-witnesses had deposed against appellant quite consistently—Fire-arm injuries sustained by (PW 4) by no stretch of imagination, be termed as selfinflicted-Incident at 2 P.M. and F.I.R. was lodged at 4 P.M. at the Police Station about 10 kilometer away from place of occurrence-No possibility of deliberations for the purpose of false implication of appellants-PW 4 & 5 to be quite natural witnesses-Occurrence had taken place in the second week of November when people usually sit outside and work in the sun-Same had been claimed by witnesses-Witnesses had made consistent and straight forward statements which inspired full confidence-PW 6 was an independent as well as natural witness of occurrence but due to his history of involvement in criminal cases and having remained in jail twice, court felt a bit hesitant and show in placing whole-hearted reliance on his testimony-Prosecution was quite justified in giving up CW1 and CW2 as having been won over-Won over not be greed or gain but by considerations of affinity-Motive (failed exchange-marriages) set up by prosecution had provided ample corroboration to ocular account-Medical evidence produced by prosecution has also furnished full support to ocular account as the same has confirmed eye-witnesses statements about time of occurrence, weapons used, seats of injuries and distances from which those injuries had been caused-Appellant J had committed a cold­ blooded murder of his mother-in-law and had launched a murderous assault on his wife without any immediate provocation—He acted cruelly and brutally and targeted helpless ladies—Death sentence confirmed— However, appellants Z's nexus with motive was slightly remoter then that of appellant J-Pistol recovered from appellant Z had not matched with any crime-empty recovered from place of occurrence-By abundant caution and deeming it to be in the interest of safe administration of criminal justice, set aside sentence passed against him-Benefit of Section 382-B Cr.P.C. also extended-Appeals partly accepted. P. 752 to 756] A, B & D to H ii) tness- Eye-witness-Criminal cases against and remained in jail twice-Statusourt should be a bit hesitant and show in placing whole-hearted reliance n his testimony. [P. 754] C Sahibzada Farooq Mi Khan, Advocate for Appellants. Syed Tahir Haider Wasti, AAG for State. Sh. Muhammad Rakim, Advocate and Mr. Muhammad Saleem Akhtar, Advocate for Petitioner. Date of hearing: 14.10.1998. judgment Asif Saeed Khan Khosa, J.-Jafar son of Fareed, aged 40 years, and Zulfiqar son of Sher Muhammad, aged 24 years, were convicted by the learned Additional Sessions Judge, Chichawatani vide judgment dated 13.6.1995 for an offence under Section 302(b)/34, P.P.C. and were sentenced to death each as Ta'zir. They were also ordered to pay a sum of Rs. 50,000/-each to the heirs ofMst. Daulat Bibi deceased by way of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to undergo R.I. for six months each. Both of them were also convicted for an offence under Section 324/34, P.P.C. and were sentenced thereunder to R.I. for ten years each and to pay a fine of Rs. 10,000/- each or in default of payment thereof to undergo further R.I. for two years each. For the said offence they were also ordered to pay a sum of Rs. 10,000/- each to Mst. Sughran Bibi PW by way of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to undergo further R.I. for six months each. It was further ordered that in case the sentences of death passed against the convicts were not confirmed by the Lahore High Court and the same were converted to some other punishments then all the sentences of imprisonment passed against them would run concurrently. The benefit under Section 382-B, Cr.P.C. was extended to the convicts. Through the same judgment the learned trial Court had acquitted the convicts' co-accused Muhammad Ameen. Jaafar and Zulfiqar convicts have challenged their convictions and sentences before this Court through Criminal Appeal No. 152 of 1995. Mst. Sughran Bibi, the injured witness as well as daughter of the deceased, has filed Criminal Revision No. 162 of 1995 before this Court seeking enhancement of compensation and fine orderd against the convicts. We have heard the convicts' appeal and the witness's revision petition alongwith Murder Reference No. 164 of 1995 seeking confirmation of the sentences of death passed against the convicts and we propose to decide all these matters together through the present consolidated judgment. 2. The prosecution story narrated in the F.I.R. was that Muhammad Anwar complainant and Mst. Daulat Bibi, his widowed Chachi as well as Khala, were residing near Bangla Parri in Chak No. 44/12-L situated within the area of Police Station Sadar, Chichawatni, District Sahiwal. They had adjoining houses and they used to cultivate the agricultural land of one Muhammad Yousuf. At about 2.00 P.M. on 10.11.1993 Muhammad Anwar complainant and his brother Muhammad Akram were sitting on the katcha road in front of their house whereas their Chachi and Khala Mst. Dault Bibi and his daughters Mst. Sughran Bibi and Mst. Taslim Akhtar were sitting on that katcha road in front of their own house while peeling off Sarkanda ticks. Suddenly Jaafar, armed with a .12 bore gun, Zulfiqar, armed with a .12 bore pistol, and another unknown young man, armed with a .12 bore gun, came there. Jaafar and the unknown person were riding on a mare whereas Zulfiqar was walking with them. Upon reaching there Jaafar alighted from the mare and raised a lalkara that Mst. Daulat Bibi would be taught a lesson for not letting her daughter Mst. Sugran Bibi go back to her matrimonial home. Upon that Mst. Daulat Bibi and Mst. Sughran Bibi stood up and, putting their hands together, beseeched the assailants. Zulfiqar then fired a shot from his pistol which hit Mst. Surghan Bibi on the right side of her face. Jaafar fired from his gun which also hit Mst. Surghan Bibi on the right side of her face. Jaafar then fired a.tMst. Daualt Bibi hitting her at her left cheek. Upon receipt of those injuries both the ladies ran from there but they were followed and felled by Jaafar and Zulfiqar in the nearby field of Barseem. Jaafar then fired at the fallen Mst. Sughran Bibi which hit her on her front chest. Thereafter Zulfiqar fired at the fallen Mst. Daulat Bibi which also hit her on her front chest. Upon hearing the noise and the fire-reports Abdul Razzaq, who was feeding his cattle nearby, also came there and saw the whole incident. When the witnesses tried to go near they were threatened and warded off by the unknown companion of Jaafar and Zulfiqar riding on the mare. Thus, the witnesses could not go near the victims or the assailants. Thereafter Jaafar and Zulfiqar went away from the scene of the crime with their unknown companion on the galloping mare. After the assailant's departure the witnesses found out that Mst. Daulat Bibi had already succumbed to her injuries at the spot and Mst. Sughran Bibi was seriously injured. The complainant's brother Muhammad Akram immediately took Mst. Sughran Bibi to Civil Hospital, Chichawatni for medical treatment and the complainant, leaving Abdul Razzaq, Mst. Taslim Akhtar and others to guard the deadbody of Mst. Daulat Bibi at the spot, proceeded to lodge a report with the police. The motive set up in the F.I.R. was that about 16/17 years ago Mst. Sughran Bibi was given in marriage to Jaafar but due to family and domestic disputes she came back and started living with her mother Mst. Daulat Bibi and despite Jaafar's insistence refused to live with him. According to the F.I.R. it was due to that grievance the accused party had committed the murder of Mst. Daulat Bibi and launched a murderous assault on Mst. Sughran Bibi. 3. Upon the statement of Muhammad Anwar complainant F.I.R. No. 280 (Exh-PR) was recorded at Police Station Chichawatni by Rab Nawaz ariq, Inspector/SHO (PW 10) at 4.00 P.M. on the same day for offences under Section 302/324/34, P.P.C. 4. After recording the F.I.R. Rab Nawaz Tariq, Inspector/SHO PW 10) took up the investigation of this case and proceeded to the place of ccurrence. At the place of occurrence he recorded his inspection notes, repared injury statement (Exh-PB/3) and inquest report (Exh-PB/4) in espect of Mst. Daulat Bibi deceased. He then sent the deadbody to the mortuary for autopsy. He secured blood-stained earth from the places of injuries of Mst. Daulat Bibi deceased and Mst. Sughran Bibi vide recovery menios. Exh-PJ and Ex-PK respectively. secured four crime-empties from the spot vide recovery memo. Exh-PL and also prepared a rough siteplan (Exh-PS) of the place of occurrence. 5. Dr. Muhammad Saleem (PW 1) medically examined Mst. Sughran Bibi at 4.00 P.M. on 10.11.1993 and found three injuries on her _ ,, person which had been caused within a duration of 1 to 4 hours of examination. Injuries Nos. 1 and 2 were caused by fire-arm whereas Injury No. 3 was caused by a blunt weapon. He issued the medico-legal examination report (Exh-PA) in that respect. 6. Post-Mortem Examination (Exh-PB) of the deadbody of Mst. aulat Bibi deceased was conducted by the same doctor at 8.00 A.M. on 1.11.1993. He found five injuries on the deadbody which were all anteortem and caused by fire-arm. In his opinion the cause of death was shock nd haemorrhage due to Injuries Nos. 1, 3 and 4 which were individually collectively fatal and sufficient to cause death in the ordinary course of nature. Probable time elapsing between injuries and earth was immediate and that between death and post-mortem examination was between 16 to 24 hours. 7. After the Post-Mortem Examination of Mst. Daulat Bibi deceased ab Nawaz Tariq, Inspector/SHO (PW 10), the Investigating Officer, secured the last-worn clothes of the deceased on 11.11.1993 vide memo. Exh- C. On 12.11.1993 he went to Nishtar Hospital, Multan and recorded the statement of injured Mst. Sughran Bibi. He then got a rmal site-plan (Exh- I PQ) of the place of occurrence prepared from a revenue Patwari. On 7.12.1993 he arrested Jaafar and Zulfiqar accused and recovered a .12 bor begun (P6) alongwith a licence (P7) and six live cartridges (P.9A/1-6) from Jaafar accused's residential house vide recovery memo. Exh-PM. On ame day Jaafar accused also led to the recovery of a mare from near his ouse which was taken into possession vide recovery memo. Exh-PN. On hat very day Zulfiqar accused led to the recovery of a .12 bore pistol (P 8) alongwith four live cartridges (P 9/1-4) from a deserted place near a small graveyard of that village which were secured vide recovery Memo. Exh-PO. On 10.12.1993 the said Investigating Officer arrested Muhammad Ameen accused and subsequently got a test identification parade held on 8.1.1994 for the purposes of his identification by the eye-witnesses. Thereafter he completed the other formalities, finalized his investigation and submitted a Challan in respect of this case. 8. At the commencement of the trial the learned trial court framed a charge with two heads under Sections 302/34 and 324/34, P.P.C. against the hree accused persons to which they pleaded not guilty and claimed a trial. 9. During the trial the prosecution produced as many as 11 itnesses in support of its case against the accused persons. Mst. Sughran ibi (PW 4), Mst. Taslim Akhtar (PW 5) and Abdul Razzaq (PW 6) furnished the ocular account of the incident. Muhammad Anwar complainant and his brother Muhammad Akram, who were eye-witnesses of the occurrence according to the F.I.R., were given up by the prosecution as having been won over by the accused party. They were, however, examined by the learned trial court as CW1 and CW2 respectively. Mst. Sughran Bibi (PW 4) and Mst. Taslim Akhtar (PW 5) also deposed about the motive. Dr. Muhammad Saleem (PW 1) provided the medical evidence. Ghulam (PW 7) deposed about the recoveries of weapons of offence affected from Jaafar and Zulfiqar accused. Rab Nawaz Tariq, Inspector (PW 10) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. 10. In their statements recorded under Section 342, Cr.P.C. all the accused persons denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. Jaafar accused, however, admitted that Zulfiqar accused was his cousin and that 15/16 years before the occurrence Mst. Sughran Bibi PW was married to Jaafar accused in exchange of Mst. Amiran Bibi, sister of Zulfiqar accused, who was given in marriage to an uncle of Mst. Sughran Bibi PW and that both the ladies remained in the houses of their respective husbands for about one year after their marriages but returned to the houses of their parents thereafter having strained relations with their husbands and also that ever since none of those two ladies had gone back to their respective husbands. Jaafar accused claimed that gun (P 6) was his licensed gun which had been taken possession of by the police from his house soon after the registration of the case. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Jaafar accused stated as follows: "The PWs have made false statements due to enmity. I and my coaccused have been falsely implicated in this case at the instance of Abdul Razzaq PW who was carrying on with my wife. My mother-inlaw Mst. Daulat Bibi deceased and my wife Sughran Bibi were putting up with Abdul Razzaq PW. All the relatives of the deceased and Sughran Bibi were fed up with them because of their immoral character. Mst. Daulat Bibi deceased was living on ill-gotten money undown on account of illicit relations. Mst. Sughran Bibi with Abdul Razzaq PW. Mst. Sughran Bibi wanted to get divorce from the me but I refused to divorce her. She wanted to marry Abdul Razzaq PW who had already divorced his wife. The PWs were not present at the spot at the time of occurrence. It was an unwitnessed occurrence, which took place after sun-set. Many relatives of Sughran and Daulat Bibi were joined as suspects. They however, let off and the police investigated the case dishonestly and falsely challaned I and my co-accused in this case in connivance with the complainant party. I am innocent. I was not present at the time of occurrence at the spot." Zulfiqar accused also admitted the factum of the exchange marriages and the strained relations due to their breakdown. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Zulfiqar accused adopted the answer to that question given by Jaafar accused. All the three accused persons, however, opted not to make any statement on oath under Section 340(2), Cr.P.C. and also did not produce any witness in their defence. 11. At the conclusion of the trial, as mentioned above, the learned dditional Sessions Judge, Chichawatni convicted and sentenced Jaafar and ulfiqar accused as noticed above and acquitted Muhammad Ameen accused. ence, the present appeal, revision petition and the connected Murder eference before this Court. 12. We have heard the learned counsel for the appellants, the earned Assistant Advocate-General for the State and the learned counsel for st. Sughran Bibi PW and have also gone through the record of this case ith their assistance. 13. The learned counsel for the appellants has argued that the rosecution had failed to prove its case against the appellants beyond easonable doubt. He has tained that Muhammad Anwar complainant CW 1) and Muhammad Akram (CW 2) had not supported the prosecution's ase and that the eye-witnesses produced by the prosecution did not inspire onfidence. He has also argued that the eye-witnesses produced by the rosecution had also failed to receive material corroboration from any ndependent source. In the alternative he has submitted that, at any rate, the eculiar circumstances of this case did not warrant a sentence of death gainst the appellants. As against that the learned Assistant Advocateeneral appearing for the State and the learned counsel for Mst. Sughran ibi PW have argued that the prosecution had successfully proved the guilt f the appellants to the hilt and that there was no mitigating circumstance vailable on the record so as to warrant reduction of the sentence of death assed against the appellants. The learned counsel for Mst. Sughran Bibi W as, however, stated that he has instructions not to press Mst. Sughran ibi's revision petition seeking enhancement of compensation and fine rdered by the learned trial court against the appellants. 14. After hearing the learned counsel for the parties and going hrough the record we have no hesitation in concluding that the prosecution ad succeeded in proving its case against the appellants beyond reasonable oubt. It was a case of a day-light occurrence and three ye-witnesses had eposed against the appellants quite consistently. Mst. Sughran Bibi (PW 4) ad the stamp of injuries on her person to vouchsafe her presence at the lace of occurrence during the incident. The fire-arm injuries sustained by er at her chest and face are such that they could, by no stretch of magination, be termed as self-inflicted. It is true that Mst. Sughran Bibi PW4) was not enjoying the best of relations with Jaafar and Zulfiqar However, due to his history of involvement in criminal cases and having remained in jail twice, we have felt ourselves a bit hesitant and slow in placing whole-hearted reliance on his testimony. 17. Adverting to Muhammad Anwar complainant (CW 1) and uhammad Akram (CW 2) we have noticed a deliberate attempt on their art to suppress the truth. Without in any manner condoning their conduct e have found the same to be understandable in the circumstances of this ase. Soon after the occurrence Muhammad Anwar complainant (CW 1) proceeded to lodge a report in that respect with the police and that was a ood thing that he did. Immediately after the occurrence Muhammad Akram CW 2) took the injured Mst. Sughran Bibi (PW 4) to the hospital and that as truly good of him. Dr. Muhammad Saleem (PW 1) had confirmed the act that Mst. Suhgran Bibi was brought to the hospital by CW 2. After all this was the least that these CWs could do at that time for their murdered la/Chachi and their seriously injured first cousin. But subsequently that ilk of human kindness appears to have dried up in the CWs and onsiderations for truth and justice where then overtaken by considerations o save the skins of their other close relatives, i.e. the appellants. It had come on the record that both the said CWs were not just the cousins of Mst Sughran Bibi but they were also the cousins of Jaafar appellant. Apart from hat they had some other relationship with Jaafar and Zulfiqar appellants lso. Thus, their subsequent denials before the learned trial court in respect f witnessing the occurrence or to have lodged the F.I.R. are understandable, ut surely not acceptable. It had been admitted by them that they had never plained before any authority qua a false F.I.R. having been registered howing them as the complainant and eye-witnesses of the occurrence or egarding false implication of the appellants in the offence in question. Thus, e have found that the prosecution as quite justified in giving up these CWs as having been won over — won over not by greed or gain but by onsiderations of affinity and, if we may say so, injustice. 18. The motive set up by the prosecution had provided ample orroboration to the ocular account in this case. The background of strained elations between the complainant party and the appellants on account of ailed exchange-marriages between Jaafar appellant and Mst. Sughran Bibi n the one hand and between Mst. Amiran Bibi (Zulfiqar appellant's sister) and an uncle of Mst. Sughran Bibi on the other hand was something which was admitted by both the parties to the case. Jaafar appellant and Zulfiqar appellant were not only cousins inter se but a sister of Jaafar appellant was also married to a brother of Zulfiqar appellant. Thus, community of interest and motivation between the two appellants was beyond doubt. 19. The recoveiy of a licensed gun from Jaafar appellant and its subsequent matching with a crime-empty recovered from the spot soon after the occurrence had also gone a long way in providing corroboration to the ocular account. The pistol recovered from Zulfiqar appellant during the investigation of this case had, however, remained unmatched with any crime-empty. We have also noticed that Jaafar appellant had taken a stand that his licensed gun had in fact been recovered from him by the police soon after registration of the F.I.R. but the same had been shown to have been recovered on a later date. That stand taken by Jaafar appellant further confirms that the complainant party knew from the beginning that Jaafar was one of the culprits who had perpetrated that offence, the recovered gun indeed belonged to him and that its subsequent matching with a crimeempty duly connected Jaafar appellant with the offence in question. In this context we have noticed that the crime-empties recovered from the spot soon after the occurrence had in fact been sent to the Forensic Science Laboratory much before the recovery of that gun from Jaafar appellant and the defence had completely failed to disprove that assertion by the prosecution. We have, therefore, found the said recovery from Jaafar appellant to be of substantial corroborative value. 20. The medical evidence produced by the prosecution has also furnished full support to the ocular account as the same has confirmed the eye-witnesses' statements about the time of occurrence, the weapons used, the seats of injuries and the distances from which those injuries had been caused. 21. For the reasons mentioned above we are convicted that the prosecution had succeeded in proving its case against the appellants beyond reasonable doubt. Thus, we are minded to uphold their convictions recorded by the learned trial court for offences under Sections 302(b)/34 and 324/34, P.P.C. 22. We have also given our anxious consideration to the question of sentences to be passed against the appellants for the offences committed by them. In this context we have looked ar and wide but could not find any factor or circumstance serving as a ground for mitigation of sentence under Section 302(b)/34, P.P.C. as far as Jaafar appellant is concerned. He had ommitted a cold-blooded murder of his mother-in-law and had launched a murderous assault on his wife without any immediate provocation. He acted cruelly and brutally and targeted helpless ladies. Thus, in our view the wages of his crime of murder ought not to be anything less than death. The sentence of death passed against him by the learned trial court is, therefore, upheld and confirmed. The order of the learned trial court regarding payment of compensation by him is also maintained with the modification that in case of default of payment of the same he shall suffer six months' S.I. instead of R.I. Jaafar appellant's conviction, sentence and order regarding payment of compensation under Section 324/34, P.P.C. are also upheld with the modification that in case of default of payment of compensation he shall uffer six months' S.I. instead of R.I. 23. However, as regards Zulfiqar appellant's sentence under Section 302(b)/34, P.P.C. we have noticed that although he also shared the motive with his co-convict Jaafar appellant yet his nexus with tho motive was slightly remoter than that of Jaafar appellant. We have also found that the pistol recovered from his possession during the investigation of this case had not matched with any crime-empty recovered from the place of occurrence. Thus, despite being convinced of his participation in the offence in question, we, by way of abundant caution and deeming it to be in the interest of safe administration of criminal justice, set aside the sentence of death passed -_ against him by the learned trial court and substitute the same with a sentence of imprisonment for life. The order of the learned trial court regarding payment of compensation by him is also maintained with the modification that in case of default of payment of the same he shall suffer six months' S.I. instead of R.I. Zulfiqar appellant's conviction, sentence and order regarding payment of compensation under Section 324/34, P.P.C. are also upheld with the modification that in case of default of payment of compensation he shall suffer six months' S.I. instead of R.I. His sentences of imprisonment shall run concurrently. He shall also be extended the benefit under Section 382-B, Cr.P.C. 24. For what has been observed above Criminal Appeal No. 152 of 1995 is hereby dismissed to the extent of the appellants' convictions under Sections 302/(b)/34 and 324/34, P.P.C. and partly allowed to the extent of their sentences in the terms mentioned above. The learned counsel for Mst. Sughran Bibi PW has not pressed her Criminal Revision No. 162 of 1995 and the same is, therefore, dismissed as having not been pressed. 25. As the sentence of death passed by the leaned trial court gainst Jaafar appellant has been upheld and confirmed by us, therefore, Murder Reference No. 164 of 1995 is hereby answered in the affirmative to his extent. However, as the sentence of death passed by the learned trial court against Zulfiqar appellant has not been confirmed by us, therefore, ; Murder Reference No. 164 of 1995 is hereby answered in the negative to his extent. (K.K.F.) Appeals partly accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 756 [ Multan Bench] Present: MUHAMMAD NASEEM CHAUDHRI, J. Mst. FAKHAR-UN-NISA--Petitioner versus SHAUKAT HUSSAIN SI/S.H.O. P.S. JATOI etc.-Respondents Criminal Misc. No. 155-H of 1999, accepted on 11.3.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 491—Removal of minors from custody of mother/petitioner—Petition for recovery of-No police officer of any rank is competent to hand over custody of minor issue from one spouse to her without intervention of ourt-Only Presiding Officer, have been made competent to recover any erson from custody of other to proceed further in accordance with law /Ss. 100, 2 and 491 Cr.P.C. and Article 199(l)(b)(i) of Constitution, 73--A police officer after registration of criminal case can recover bductee-He has also to execute orders of P.O. and igh Court-But police officers have become fond of transgression of authority-Petitioner is entitled to obtain custody of her three minors who have been handed over to her—Compensation was also awarded to her to be paid by police- Petition accepted. [Pp. 758 & 759] A to D Mr. Muhammad Ramzan Khalid, Advocate for Appellant. Mr. Khadim Nadeem Malik, Addl. A.G. for State. Sardar Tariq Sher Khan, Advocate for Respondent No. 2. Date of hearing: 11.3.1999. judgment Mst. Fakhar-un-Nisa petitioner was married to Masood Shah Respondent No. 2. Unfortunately the relations between the spouses became strained and both of them are living separate from each other. Mst. Fakhar-un-Nisa is living with her parents who filed this petition under Section 491 of the Code of Criminal Procedure for the recovery of her daughter Rida Zahra aged 8 years and her sons Mudassir aged 5 years and Muzammil aged 3 years from the custody of her husband Masood Shah Respondent No. 2. 2. The assertion of the petitioner is that with the help of one Imdad Shah ASI posted in Police Station Jatoi as well as Pir Bakhsh Constable posted in Police Station Jatoi her inor issues were removed from her ustody and were handed over to Masood Shah Respondent No. 2. She has made the allegation that she was forcibly removed from her house and was let off afterwards when she was deprived of the custody of the minors. 3. Taking it to be a serious matter as the police officer is not competent to remove the minors from the custody of the mother in this manner, I passed the order directing the Superintendent of Police Muzaffargarh to convey the direction of this Court to the S.H.O. Police Station Jatoi for the recovery of the aforesaid minors from the custody of Masood Shah Respondent No. 2 and to direct the S.H.O. Police Station Jatoi as well as Imdad Shah ASI posted in Police Station Jatoi to appear personally before this Court on 11.3.1999 (today) alongwith the aforesaid three minors. 4. Today Masood Shah respondent is present. Both Shaukat Hayat SI/SHO and Imdad Shah ASI Police Station Jatoi, District Muzaffargarh are present. Imdad Shah ASI has conceded that he was moved by the requests made by Masood Shah Respondent No. 2 to obtain the custody of the minors and thereafter he proceeded out of sympathy who went to Mst. Fakhar-un- Nisa, obtained the custody of the minors from her and handed over them to their father Masood Shah Respondent No. 2. He expressed regrets as he has admitted that he had no jurisdiction in the matter. The learned Additional Advocate-General has scrupulously conceded that police has no power to act in the aforesaid manner by recovering the minors from their father or mother and to hand over to the adverse party i.e. mother or father as the case may be. 5. Since Imdad Hussain ASI illegally proceeded in the matter I would express that it is a matter of alarming nature. No police officer of any rank is competent to hand over the custody of any minor issue from one spouse to the other without the intervention of the Court. These days the police is proceeding with speed in negation of the rule of law. I would express A that the following are the provisions whereby the Presiding Officers have been made competent to recover any person from the custody of the other to proceed further in accordance with law;- (i) According to Section 100, Cr.P.C. if any Magistrate of the First Class or Sub-Divisional Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a searchwarrant and after recovery of that person he shall be immediately taken before him (Magistrate), who shall make such order as in the circumstances of the case seen proper; (ii) A Guardian Judge/Judge Family Court can also proceed under Section 100, Cr.P.C. for the execution of his order for the transfer of custody of the minor from the spouse to the other;, (iii) Under Section 552, Cr.P.C. upon complaint made to a District Magistrate on oath of the abduction or unlawful detention of a woman, or of a female child under the age of sixteen years for any unlawful purpose, he may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary; (iv) Under Section 491, Cr.P.C. the High Court has the power to issue direction of the nature of a habeas corpus for the release of a person illegally and improperly detained by any person including the police or public; (v) Under Article 199(l)(b)(i) of the Constitution of our beloved country the High Court is competent to set at liberty a person who has been detained without lawful authority or in unlawful manner. 6. It is quite relevant to express that a police officer after the registration of a criminal case can recover the abductee. He has also to execute the orders of the Presiding Officers and that of the High Court in the aforesaid matters. Without prejudice I am tempted to express that the police officers have become fond of transgression of authority. It is an open secret that police would act illegally and thereafter would regret as in the instant matter Imdad Hussain ASI is apologizing constantly from the Court as well as from Mst. Fakhar-un-Nisa petitioner by putting him at the mercy of the Court and expressing that he had no jurisdiction to take the custody of the three minors from the mother and to hand them over to their father. I would rather express that such like proceedings conducted by the police officers are not only violative of law, the same are also devoid of any legal ethics and human rights. 7. In view of the aforesaid aspect of the matter I hold that Mst Fakhar-un-Nisa petitioner is entitled to obtain the custody of her aforesaid hree minor issues who have been brought by the S.H.O. Police Station atoi, District Muzaffargarh and the same have been handed over to her in he presence of Masood Shah Respondent No. 2 who may file the petition efore the Guardian Judge/Judge, Family Court to obtain their custody and f any suit is instituted thereof the same shall be disposed of keeping in view he welfare of the minors without feeling prejudice by this order. 8. I would record and hold that in this case of transgression of authority on the part of Imdad Hussain ASI Police Station Jatoi, District uzaffargarh the appropriate and fair compensation must be awarded to st. Fakhar-un-Nisa petitioner after burdening Imdad Hussain ASI thereof. onsequently, I direct Imdad Hussain ASI Police Station Jatoi, District Muzaffargarh to pay an amount of Rs. 2,000/~ as compensation to Mst. akhar-un-Nisa petitioner tomorrow (12.3.1999) for which date this criminal miscellaneous shall be listed. (AAJS) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 759 (DB) Present: RlAZ kayani and khawaja muhammad sharif, JJ. KHADIM HUSSAIN-Appellant versus STATE-Respondent Crl. Appeal No. 49 of 1998/BWP and M.R. No. 15 of 1998, decided on 5.5.1999. Anti-Terrorism Act, 1997-- —-Schedule-Offence U/S. 364-A/302 read with Offence of Zina . (Enforcement of Hudood) Ordinance, 1979-Jurisdiction-Question of- Contention that learned trial Court had no jurisdiction to try case U/S. 364-A, PPC read with Section 302 and Section 10(3) Offence of Zina (Enforcement of Hudood) .Ordinance, 1979-Further contended that in riginal schedule of Anti-Terrorism Act, 1997, Section 364-A, PPC was re but vide notification S.R.O. No. 1237/97 which was issued on 13.12.1997 Section 364-A, PPC was deleted from its schedule-Held: — Section 364-A, PPC was not a scheduled offence on 13.6.1998 when ccurrence alleged to have taken place, even non of offences committed by appellants were scheduled offences on the day of occurrence-Facts of ase also does not fall within definition of Terrorist Act-Question of urisdiction is very important and fundamental in nature-Case emanded to appropriate forum. [Pp. 761 & 762] A, B & C Mr. Farrukh Mehmood, Advocate for Appellant. Mr. P.A, Farooq, Advocate with Mr. Niaz Ahmad Khan, AAG for State. Date of hearing: 5.5.1999. judgment Kh. Muhammad Sharif, J.-This judgment will dispose of Murder eference No. 15 of 1998 and Criminal Appeal No. 49 of 1998, which has been filed by Khadim Hussain s/o Nazeer Ahmad, aged 19/20 years, who was convicted and sentenced by Special Judge, Special Court-I, Anti Terrorism, Bahawalpur for kidnapping/abducting Mst. Tayyaba Urooj daughter of the complainant namely Imam Din as under: - (i) Under Section 364-A, PPC he was sentenced to death. (ii) Under Section 10(3) Offence of Zina (Enforcement of Hadood) Ordinance, VII of 1979, he was sentenced to undergo 25 years R.I with 30 stripes. (iii) Under Section 302 PPC, he was sentenced to death. He was further directed to pay compensation to the parents of the deceased U/S. 544-A, Cr.P.C. amounting to Rs. 50,000/- and in default thereof he shall undergo for further six months, S.I. (iv) All the sentences were ordered to run concurrently. 2. The occurrence in this case took place on 13.6.1998 at 6.15 P.M while the matter was reported to the police by Haji Imam Din father of Mst. Tayyaba Urooj a minor girl aged about 5/6 years through F.I.R. Ex. P.C. bearing No. 232/98 dated 15.6.1998 at 6.30 P.M. 3. Brief facts of the case are that on 13.6.98 at evening time daughter of Haji Imam Din, complainant of this case stepped out from her house. When she did not come to her house, her parents started her search. In the meanwhile, PWs told them that Khadim Hussain accused and minor Tayyaba Urooj were seen on a bicycle. Thereafter, complainant and PWs went to the house of Khadim Hussain but he did not meet them. When accused met them he admitted that he had brought Mst. Tayyaba Urooj but left her at her house. On the next day, Punchayat was held at the Dera of Ch. Munir Ahmad and accused Khadim Hussain admitted that he had abducted Mst. Tayyaba Urooj & after committing Zina-bil-Jabar he killed her. The participants of the 'Punchayat' came at P.S and complainant got recorded his statement, vide Ex. P.C. on 15.6.1998 at 6.30 P.M. 4. Appellant was arrested in this case, he was challenged, tried by Special Judge, Special Court, Anti Terrorism, Bahawalpur and was sentenced as mentioned above. 5. Learned counsel for the appellant has raised preliminary objection before us about the jurisdiction of trial court. He submits that the learned trial court had no jurisdiction to try the case U/S. 364-A, PPC read ith Section 302 PPC and Section 10(3) Offence of Zina (Enforcement of Hadood) Ordinance, VII, 1979. He submits that Anti Terrorism Act, 1997 came into an existence after getting the assent from the President of Pakistan on 16.8.1997. He submits that in the original schedule of the Act, Section 364-A, PPC was there but vide notification S.R.O. No. 1237/97 which was issued on 13.12.1997, Section 364-A, PPC was deleted from its Schedule. He further submits that in fact, the Investigating Officer did not know this fact, that Section 364-A, PPC has already been deleted from its chedule so he submitted the challan before the Special Judge, Anti Terrorism. He further submits that an application, challenging the jurisdiction of Special Judge, to hear this case, was made before him on 24.11.1998 and in this regard, notice was given to the State for 27.11.1998 and on 27.11.1998, the learned Special Judge dismissed the said application of the appellant and tried the case which is illegal in the eyes of law and be declared as null and void and without jurisdiction. He has relied upon PLD 1995 S.C. 66 (title as Pir Sabir Shah vs. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P and another), head-note B & C at page 68. He has also relied upon N.L.R. 1998 Criminal Cases 409, titled as Asghar Ali alias Bhola vs. Special Judge, Anti Terrorism, (Punjab), Faisalabad . 6. On the other hand, learned counsel for the State submits that after the dismissal of application about the jurisdiction of the learned trial court, appellant neither approached this court nor any application was made in this behalf. 7. We have heard the learned counsel for the parties and have also gone through the relevant provision of law. Learned State counsel is unable to rebut the submissions made by earned counsel for the appellant. We may observe here, that at the time of inception of the Anti Terrorism Act, 1997, which came into force on 16.8,1997, Section 364-A, PPC was therein as a scheduled offence and could have been tried by the learned Special Court but due to an amendment in the schedule which came on 13.12.1997, Section 364-A, PPC was deleted. It was held in N.L.R. 1998 Criminal Cases 409, the judgment cited by learned counsel for the appellant, the Section 364, PPC did not fall within the Schedule of Act, as amended by Government of Pakistan vide Notification dated 13.12.1997. Through this judgment Learned D.B of this court had held that an accused were not prima facie guilty of schedule offence U/S. 365/365-A but were prima facie guilty of nonscheduled offence U/S. 364, PPC, their trial by Special Court under Anti Terrorism Act was without lawful authority, and accepted accused's writ petition with this declaration, and transferred the case to the court of competent jurisdiction for trial. . Full Bench of Hon'ble Supreme Court of Pakistan consisting of twelve Hon'ble Judges while deciding the case of Pir Sabir Shah, titled as Pir Sabir Shah vs. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P. and another, reported in PLD 1995 S.C. 66 in head-note-B, "that question of jurisdiction is very important and fundamental in nature and if a forum has no jurisdiction, the same cannot be conferred upon it by consent of the parties, that court has to consider the question of jurisdiction even though not raised by the parties". Details have been given in this regard at page 102 of this esteemed judgment. 9. We have gone through, both the judgments very minutely and we are of the considered opinion, that Section 364-A, PPC was not a scheduled offence on 13.6.1998 when this occurrence alleged to have taken place, even none of the offences committed by the appellants were scheduled offences on the day of occurrence. The facts of the case also does not fall within the definition of Terrorist Act. 10. We have no other option ut to accept this appeal on the ground that learned Special Judge, Special Court-I, Anti Terrorism, Bahawalpur had no jurisdiction to try the case against the appellant as none of the offences with which appellant was charged was a scheduled offence on the day of occurrence. 11. In this view of the matter, we accept this appeal, set-aside the conviction and sentence, as ordered by the learned trial court, appellant will be taken out from the death cell by the Jail Authorities but will remain in judicial custody in New Central Jail, Bahawalpur and we remand this case to the learned Sessions Judge, Bahawalpur for afresh trial and direct him to hear this case himself and to conclude the trial of this case on day to day basis within one month on the receipt of order of this court. We also direct, Deputy Registrar (Judl), Lahore High Court, Bahawalpur Bench, Bahawalpur to send the Lower Court records of this case alongwith copy of today's judgment to the learned Sessions Judge, Bahawalpur within seven days from today without fail. With these observations, this appeal and murder reference filed by the appellant is disposed of. (AAJS) Case remanded

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 763 (DB) Present: riaz kayak: and kh. muhammad sharif, JJ. GHULAM RASOOL etc.-Appellants versus STATE-Respondent Crl. Appeal No. 144 of 1996/BWP and M.R. No. 24 of 1996, heard on 14.5.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/460/394/337-F(i) (iii)/34-Murder and dacoity-Offence of- Conviction for-Challenge to-Statements of witnesses cannot be disbelieved because same has come from an unimpeachable source-­ Court has to see quality of evidence and not quantity of evidence—There was no previous background in order to falsely implicate appellants-They have even no motive to falsely implicate appellants-Ocualr account is corroborated by medical evidence-It is correct that they have not specified role of each of appellants in F.I.R. and also before learned trial Court, for reasons, the statement which they have given were natural one-It is impossible in such like occurrences to specify injuries attributed to every accused persons, where two persons have died and there are four injured PWs and appellants are six in numbers and where indiscriminating firing is made no specific role can be specified- Recoveries were also effected from appellants-Appellants in furtherance of their common intention while armed fire-arms and "sotas" criminally trespassed into house of complainant killed, his two innocent sons and caused injuries on persons of four of PWs-They had come there with fire arms and sotas with an intention to commit "Robbery" and also that if anybody tried to resist their act of committing "Dacoity" or committing occurrence, then they were ready to kill and to cause injuries to inmates of house and this was a premeditated act, committed by appellants- Appeals dismissed. [Pp. 768, 772 & 773] A to C Mr. A.R. Tayyab, Mr. M. Akram Wattoo, and Mr. Khalique Ahmad Chauhan, Advocate for Appellants. Ch. Riaz Ahmad, Advocate for State. Date of hearing: 14.5.1999. judgment Kh. Muhammad Sharif, J.--This judgment will dispose of M.R. No. 24 of 1996, Crl. Appeal No. 144/1996 filed by Ghulam Rasool, Akbar and Nazir alias Dhari and Crl. Appeal No. 148/1996 filed by Muhammad Sadiq only. There is a Crl. Appeal bearing No. 149-J/1996 which was filed from Jail by all the appellants namely, Ghulam Rasool, Akbar, Muhammad Sadiq and Nazir alias Dhari. They were convicted and sentenced by the learned Sessions Judge, Bahawalnagar on 14.12.1996 for causing the murder of Riaz Ahmad aged 25 years and Mumtaz aged 14/15 years and also for causing injuries on the persons of Noor Ahmad and Niaz Ahmad. Although, there were two other injuried PWs namely Hussna Bibi and Mst. Majeedan Bibi but they were not examined by the prosecution. The sentences were as under:- U/S. 460 PPC all the accused namely, Ghulam Rasool, Muhammad Akbar, Muhammad Sadiq, and Nazir alias Dhari, were convicted and sentenced to imprisonment for life and fine of Rs. 20,000/- (twenty thousand) and in default of payment of fine they shall further undergo for one year. U/S. 302/34 PPC for committing the murder of Riaz Ahmad deceased all the above said accused were convicted and sentenced to death and fine of Rs. 20,000/- (twenty thousand). In default of payment of fine they shall further undergo one year R.I. U/S. 302/34 PPC for committing the murder of Mumtaz Ahmad deceased all the accused were convicted and sentenced to death with a fine of Rs. 20,000 (twenty thousand) each. In default of payment of fine, they shall further undergo one year R.I. U/S. 394/34 PPC all the above said accused were convicted and sentenced for causing injuries to Noor Ahmad PW to undergo imprisonment for life with a fine of Rs. 20,000/- (twenty thousand) each, or in default to undergo further R.I for one year. U/S. 337-F (l)/34 PPC all the accused were convicted for causing injuries to Noor Ahmad PW and were sentenced to one year R.I. and daman of Rs. 10,000/- (ten thousand) each. After recovery of said amount the same shall be paid to the injured PW. U/S. 337-F (iii)/34 PPC, the above said accused were convicted for causing injuries to Niaz Ali PW, as Ghayar Jaifah Mutalahimah and sentenced to three years R.I. and daman of Rs. 10,000/- (ten thousand). This amount if recovered shall be paid to the injured PW. All the sentences shall be run concurrently and fine if recovered shall be paid to the legal heirs of the deceased as compensation U/S. 544-ACr.P.C. 2. The occurrence in this case took place on 27.10.1992 at 1 2.30 midnight, A.M in the house of Noor Ahmad, complainant, situated in Mauza Kharajpura, Tehsil and District Bahawalnagar, 5^ k.m away form the Police Station Dunga Bunga, District and matter was reported to the police on the same day i.e. 27.10.1992 at 1.45 a.m. 3. Briefly stated the facts of the prosecution case as narrated in the FIR, by the complainant are that the complainant was resident of Mauza Kharajpura, he was cultivator by profession. He had constructed a dera in his lands where he was residing alongwith his three sons. The eldest son was Riaz Ahmad and also a married one. Mumtaz Ahmad and Niaz Ahmad were younger to Riaz Ahmad. At the time of occurrence wife of complainant namely Mst. Husna Bibi alongwith her daughter in law Mst. Majeedan wife of Riaz deceased were sleeping in the residential Kotha while the complainant was sleeping near to them in order to look after his catties while Riaz Ahmad, Mumtaz Ahmad and Niaz Ahmad sons of the complainant were sleeping in the courtyard of the house which had no fore-walls. 4. At about 12.30 (midnight) a.m., Mst. Majeedan called her husband namely Riaz Ahmad from inside her Kotha to the effect that some persons had bolted the outer gate of the Kotha (residential room) on which Raiz Ahmad woke up and called Bashir Ahmad son of Qamar Din and then after unbolting the 'kunda' of the kotha went inside. After some time shrieks were heard from inside the 'Kotha' and then the noise became loud to the effect that 'murdered, murdered and 'looted', 'looted', on which complainant alongwith Mumtaz Ahmad, Niaz Ahmad and Bashir Ahmad woke up. All of them saw in the light of lantern which was lit six accused persons. Two of them were armed with .12-bore pistol, one was armed with .32-bore revolver and three were armed with sotas. They were wearing black shalwar and Qameez and were talking in 'Punjabi' and were young people. The person who was holding a revolver asked for the keys of the iron box from Riaz Ahmad who resisted on which the accused armed with revolver alongwith two others armed with pistols started indiscriminating firing. Due to the firing of the accused Riaz Ahmad died at the spot. Mst. Husna Bibi wife of the complainant tried to save Riaz Ahmad and stepped forward when the accused armed with sota gave her injury with sota. All the accused persons threatened that if any body came near them, he or she would also be killed. Due to fear no body stepped forward. Thereafter the accused persons broke up the lock of the iron box and started searching and thereafter took away the articles lying there and when they were coming out of the said room, on the intervention of the complainant, Mumtaz Ahmad and Niaz Ahmad his sons, three accused persons armed with fire arms started firing. One of the fire hit on the fore-head of Mumtaz Ahmad while Niaz Ahmad received a fire arm injury on the thumb of his left hand. He was also given sota blows. Riaz Ahmad son of the complainant died at the spot while Mumtaz Ahmad became unconscious. It was further stated by the complainant that two of the assailants amongst six of them were having torch lights in their hands. They forcibly took away golden ornaments, cash, identity card of the complainant and his wife. Complainant also stated in Ex.P.R which was registered at the P.S in his statement that he would produce the list of the stolen articles lateron and he and his witnesses can identify the accused persons if they are produced before them. Thereafter he went to Police Station and lodged FIR, Ex.P.R. Feroze Ahmad Inspector examined as PW. 15 after recording the FIR prepared the injury statement of Noor Ahmad and sent him to Hospital for medical examination. Thereafter he proceeded to the place of occurrence, there he prepared injury statement of Mumtaz Ahmad and Mst. Husna Bibi and Niaz Ahmad and sent them for medical examination. Mumtaz Ahmad was unconscious at that time. 5. The Investigating Officer, inspected the place of occurrence and prepared the inquest report of Riaz Ahmad deceased and sent his dead body for Post Mortem Examination. He also took into possession the blood stained earth from under-neath the dead body of Riaz Ahmad and sealed it into a ! parcel vide memo Ex. P.V. \ 6. The I.O also took into possession three crime empties of .12 bore weapon and made them into a parcel vide memo Ex. PW/P. 11 to P. 13. He also recovered four pellets lying inside the kotha of Riaz Ahmad deceased P. 14 P. 17 and made them into sealed parcel vide memo Ex. P.X. He also secured one lantern P. 18 which was burning at the time of occurrence vide memo Ex. P.Y. He also secured two locks P. 19 and P. 20 lying inside the kotha of deceased Riaz Ahmad and took also the iron boxes into possession vide memo Ex. P.Z. He also secured 8 moulds from the distance of two acres from the place of occurrence vide memo Ex. PAA. He also secured 3 live cartridges of .30 bore weapon vide memo P. 19 and P. 21, one missed cartridge of .30 bore weapon P. 22 and 3 empties of .30 bore weapon P. 23 to P. 25. One piece of lead was also taken into possession from the place of occurrence and all were sealed into different parcels vide memo Ex. P.BB. Noor Muhammad complainant also gave the details of stolen propert and he prepared the list vide memo Ex. P.R./1. On 2.2.1993 the I.O. arrested Ghulam Rasool accused. He was earing citizen wrist watch P. 27, one torch P. 28 having two live cells P. 29 and P. 30 and Rs. 115. The same were taken into possession vide memo Ex. P.I. He sent Ghulam Rasool to judicial lock-up for Identification Parade. 7. On 4.2.1993, the I.O arrested Sadiq and Akbar accused. At the time of arrest Akbar accused was having .12 bore pistol P. 4 alongwith two live cartridges P. 5/1-2, which were taken into possession vide memo Ex.P.N. The I.O. also secured motorcycle No. 5051, Honda C.D-70 on which oth these accused were travelling at the time of their arrest from Akbar accused vide memo. Ex.P.M. He also took into possession currency notes of Rs. 54 from the possession of Akbar accused vide memo Ex.P.L. He also recovered one wrist watch Saiko-5 and rupees 70/-, one torch with two live cells from the possession of Sadiq accused vide memo P.M attested by the witnesses. He sent both the accused persons on the same day to the judicial lock up and he recorded the statement of the recovery witnesses. 9. On 8.2.1993 Identification Parade was held in the District Jail Bahawalnagar supervised by PW. 17 Mr. Ahmad Masood Tariq Bhatti, the Magistrate 1st Class Bahawalnagar and Ghulam Rasool, Muhammad Sadiq and Akbar accused were correctly identified by the PW Noor Ahmad and Niaz Ahmad while Mst. Husna Bibi identified Sadiq and Akbar while Mst. Majeedan identified Ghulam Rasool and Akbar. 10. On 11.2.1993 Sadiq accused while in police custody led to the recovery of one lady suit P. 6, 5 bangles P. 7/1-5, Kunda P. 8 from his residential kotha which were taken into possession vide memo Ex. PO. On the same day Sadiq accused also got recovered hatchet P. 9 from his kotha which was taken into possession vide memo Ex. P.P. On the same day Akbar accused led to the recovery of Pattari P. 10 from his residential house from inside a pillow which was taken into possession vide memo Ex.P.Q. 11. On 12.2.1993 Ghulam Rasool appellant led to the recovery of .30-bore pistol P. 10 which was unlicenced, from near the Railway line lying hurried in the 'sarkanda' and the same was taken into possession vide memo Ex. P.S. On the same day Ghulam Rasool while in the custody of police got recovered Pattari silver and a cloth of shalwar from the house of his coaccused Nazir from village Maleeka, P.S Pakpattan Sharif vide memo Ex.P.T. On the same day, during the search of the house of Nazir accused one piece of shirt P. 4, silver bangles, sangla and one identity card were secured into possessioii vide memo Ex.P.U. All the recovered articles were deposited by him in the 'Malkhana, which were later on identified by the witnesses. There after he was transferred. 12. On 19.1.1994, Abdul Rehman ASI (PW. 16) who while investigating this case arrested Nazir alias Dhari accused from Judicial Lock up at Depalpur and on the same day he was sent to P.S. Dunga Bunga and then was sent to Judicial-Lock up in Bahawalnagar on 21.1.1994 for his identification. His Identification Parade was held on 2.2.1994 and thereafter his physical remand was taken. During the physical remand he led to the recovery of Pistol .12 bore, which was taken into possession on 15.2.1994. In the Identification Parade which was held by Ahmad Masood Tariq Bhatti, Magistrate 1st class, PW. 17 held on 20.2.1994. This accused was identified by Niaz Ahmad PW. Noor Ahmad PW and Mst. Husna Bibi PW. 13. The prosecution in order to prove its case produced 18 witnesses in all. There is report of Chemical Examiner Ex.P.GG and that of Serologist Ex.P.FF. Thereafter the statement of the appellants U/S. 342 Cr.P.C. were recorded in which they stated that they have been falsely implicated in this case by their enmies. No body appeared in defence as required under Section 340(2) Cr.P.C. 14. Learned counsel for the appellant has read before us, the prosecution evidence, statements of the appellants recorded U/S. 342, Cr.P.C. and makes the following submissions. They submit that according to the FIR, no description of any of the accused in any regard was given, that on the day of occurrence, night was dark. They further submit that Identification Parade took place 3^ months after the occurrence and the appellants were already shown to the PWs, therefore, benefit of doubt should be granted to the appellants. They further submit that Identification Parade was not held in accordance with High Court, rules and orders and also in accordance to the judgments given by the Superior Courts. They further submit that neither in the FIR nor the witnesses before the trial Court have mentioned the specific role of each of the appellants. They further submit that from Sadiq appellant a hatchet was recovered. They" further submit that no conviction U/S. 460 PPC can be awarded to the appellants. They further submit that police in order to show their efficiency has falsely implicated the RHORAX All the organs in the thorax were found healthy. ABDOMEN. Stomach was empty. Small and large intestines were full of faecal matter. All the organs were found healthy. sr-ser— OPINION In his opinion, the case of death was due to Injuries Nos. 1 & 2 which fractured the skull, damaged the brain matter and intracranial blood vessels and led to intracranial haemorrhage and ultimately to death. Injuries Nos. 1 & 2 were sufficient to cause death in the ordinary course of nature. Both the injuries were antemortem and caused by fire arms. One deformed pellet was recovered from the skull cavity and sealed in a phial and handed over to the police. The time between injuries and death was within 6 hours while between death and post-mortem examination, it was also within 6 hours. Ex.P.C. is the correct carbon copy of the post-mortem examination report while Ex.P.C/1 is diagram showing the location of injuries which are in his hand and bears his signatures and seal. The inquest report and the injury statement of the deceased Mumtaz Ahmad prepared by the police bears his signatures and seal. On the same day, the above said doctor found the following injuries on the person of Riaz Ahmad which is reproduced below. INJURIES 1. A circular lacerated wound 1/2 x 1/2 cm on the front of chest on right side, beside the sternum in 5th intercostal space with contused and inverted margins. 2. A circular lacerated wound 1/2 x 1/2 cm on the front of chest on right side, slightly at lower level to Injury No. 1 with inverted margins. 3. A grooved elongated wound 2 x 1/2 cm with lacerated margins on the lateral wall of the chest on right side in the middle portion. 4. A circular lacerated wound 1/4 x 1/4 cm with everted margins on the back of right shoulder exit of Injury No. 4. INTERNAL EXAMINATION Skull was fractured posteriorly during the post-mortem procedure otherwise NAD. THORAX Walls pleuras, right lung, left lung and heart were perforated. Rest of the organs were healthy. ABDOMEN Stomach was empty. Small and large intestines were full of faecal matter. All the organs were found healthy. OPINION In his opinion, the cause of death in this case was due to Injury No. 1 which punctured the heart and lungs and caused successive haemorrhage in the thorax and hypovolumic shock and ultimately lead to death. Injury No. 1 was sufficient to cause death in the ordinary course of nature. All the injuries were antemortem and were caused by fire-arms. One deformed pellet was recovered from the thorax, sealed in a phial and handed over to the police. The time between injuries and death was within one hour while between death and post-mortem examination, it was about 12 hours. ex.p.d. is the correct copy of the post-mortem examination report while Ex. P.D/1 is diagram showing the location of injuries which are in his hand and bears his signatures and seal. The injury statement and the inquest report of Riaz Ahmad deceased prepared by the police also bears his signatures and seal. He handed over the dead bodies after the post-mortem examination, last worn clothes of both the deceased, post-mortem reports, two sealed phials containing pellets and other police papers to Nazir- Ahmad FC 298. XXXXXMian Muhammad Akram Wattoo Advocate on behalf of Akber accused. The possibility of infliction of Injuries Nos. 1 & 2 on the dead body of Mumtaz Ahmad and Riaz Ahmad deceased, with the same type of weapon cannot be ruled out. The distance of the assailant from the person of Mumtaz Ahmad deceased at the time of infliction of Injuries Nos. 1 & 2 might be at more than' 10/12 yards. Same is the case of Injuries Nos. 1 & 2 of Riaz Ahmad deceased. Mumtaz and Riaz Ahmad deceased might had taken their last meals about 6 hours prior to their death. In his opinion, there was no chance of any speach/conversation by both the deceased after the infliction of injuries on their person. XXXXXBy Defence learned counsel Mian Muhammad Tayyeb Wattoo, Advocate on behalf of Ghulam Rasool accused. Since the pellets were recovered from the dead bodies of both the deceased, I am of the opinion that the crime weapon were .12 bore short guns. Then there is statement of Dr. Muhammad Salim, M.O., PW. 6, who has medically examined Noor Ahmad complainant, Mst. Hussna wife of Noor Ahmad complainant Niaz Ahmad PW and Mumtaz Ahmad deceased, who were brought in an injured condition to the hospital, which is reproduced below. "On 27.10.1992, I was posted as M.O at the Rural Health Center, Dunga Bunga. On the same day, Zulfiqar FC No. 424 produced before me Noor Ahmad s/o. Suleman caste Panwar Rajput r/o. Mauza Kharajpura for medical examination, therefore, I medically examined him on the same day at 2.30 AM and found the following injuries on his person:- 4. Upper half of righr fore-arm swollen. On exploration there was een fracture, displacement of right radious filled with serious luid, each measuring about 1 cm x 1 cm present in an area of 14 cm x 7 cm on medical aspect of right upper arm and medical side of anterior aspect of right fore-arm. Some were ruptured and louter layer of skin peeled of due to rupture of blisters. 5. An abrasion measuring 18 cm x 14 cm on back of right side of chest on scapula and lateral aspect of right shoulder joint and lateral side of right upper arm. There was bruise measuring 3 cm x 4 cm 2 cm below the abrasion. 6. An abrasion measuring 14 cm x 8 cm on back of right side of chest below lower boarder of right scapula. 7. An abrasion measuring 52 cm x 14 cm extending from right buttock to lasteral side and back of right thigh below right knee joint and ending at upper l/3rd of right calf. 8. A bruise measuring 6 cm x 5 cm on lateral aspect of middle of right upper arm. No bony fracture seen. INTERNAL EXAMINATION. Cranium & Spinal Cord. Already described. THORAX Heart healthy containing 10 cc liquid blood. All the other viscera healthy. ABDOMEN Stomach empty containing 50 cc gestic juices. Small intestine healthy, discended with gases. Large intestine containing semi-slid faecal matter. Urinary bladder containing about 200 cc urine. All the other visceras normal. OPINION After thorough external internal post-mortem examination, I am of the opinion that the Injuries Nos. 1, 2 & 3 collectively were the cause of death. Injuries Nos. 2 & 3 leading to damage to brain matter. Cardiorespiratory failure and death. These injuries were sufficient in ordinary course of nature to cause death. Injury No. 1 was Shajjah-e- Hashmia in nature,' injuries No. 2 & 3 Shajjah-e-Damiaha, Injury Nos. 4 Ghair Jaifah Munaqallah, Injuries No. 5, 6 & 7 Ghair Jaifah Damiyah in nature. All the injuries were ante mortem in nature and caused by blunt weapon within a duration of 5 to 10 minutes. Duration between death and postmortem within 8 hours. After conducting the postmortem examination, I handed over the deadbody, postmortem report, last worn clothes of the deceased to Abdul Majeed 480/C. Ex.PP is the correct carbon copy of post mortem report which is in my hand and signed by me. Ex.PP/1 & Ex.PP/2 are the diagrams showing the location of injuries. Ex. PP/3 is the injury' statement while Ex. PP/4 is the inquest report, both signed by me. On the same day, at 7.30 P.M I medically examined Muhammad Sharif son of Allah Yar aged 40 years r/o Chak No. 3/Fordwah Basti Azeem Wali, brought by police and noted the following injuries :— 1. Complaint of pain on the middle of lateral aspect of left fore arm. Area is tender to touch. Patient fully conscious. Advised Xray of left fore-arm. Injury kept under observation. Vide X-ray report No. 2228 dated 1.9.95, no fracture was seen so the injury was declared as simple. The injury was caused by blunt weapon within a duration of 12 hours. Ex. PQ is the correct carbon copy my MLR which is signed by me. Ex.PQ/1 is the X-ray file. Ex.P.Q/2 is the injury statement which bears my signature and seal. the same day, I medically examined Muhammad Hanif s/o Allah Yar aged 40 years r/o Chak No. 3/Fordwah of Basti Azim Wali, Chishtian, brought by the police. I noted the following injuries on his body. 1. A lacerated wound measuring 5 cm x 25 cm x skin deep on left ide of perital region of scalp posteriorly. Patient fully conscious. Advised X-ray of skull. Injury kept under observation. 2. A bruise measuring 8 x 3 cm oblique in direction on anterior aspect of right side of chest in third, fourth and fifth intercostals space. Area is tender to touch. Colour of bruise red. Advised Xray of chest. Injury kept under observation. Vide X-ray reports No. 2224 & 2225, dated 1.9.95 X-ray of scalp, no fracture seen vide X-ray report No. 2226 dated 1.9.95 X-ray of chest, no fracture seen. Injury No. 1 Shajjah-e-Khafifah. Injury No. 2 simple. Both the injuries were caused by blunt weapon within a duration of 12 hours. Ex. PR is the correct carbon copy of my MLR which is in my hand and signed by me. Ex. PR/1, Ex,PR/2 and Ex. PR/3 are X-ray films and Ex. PR/4 is the injury statement, signed by me. On the same day I medically examined Noor Hassan s/o Muhammad Ramzan aged 45 years r/o Chak No. 3/fordwah brought by police and found the following injuries on his body. 1. A lacerated wound measuring 2 cm x 1 cm x skin deep on right side of upper lip. Patient fully conscious. 2. A bruise measuring 7 cm x 3 cm on back of index, middle and ing fingers of left hand Ring finger is very much swollen. olour of bruise red. Advised X-ray of left hand. Injury kept under observation. Vide X-ray report No. 2227 dated 1.9.95 X-ray of left hand there is seen fracture of middle phalyn of ring finger of left hand. Injury No. 1 is Shajjah-e-Khafifah while Injury No. 2 Ghair Jaifah Hashimah. Both the injuries were caused by blunt weapon within a duration of 12 hours. Ex. P.S. is the correct carbon copy of my MLR which is in my hand and signed by me. Ex. PS/1 X-ray film and Ex. PS/2 injury statements, signed by me. XXX By Mian Muhammad Afzal Wattoo (NIL opportunity given) XXXX By the learned Defence counsel Mian Muhammad Tayyeb Wattoo, Advocate. It is correct that the shirt of the deceased was torn from chest and abdomen and there was no clothes on chest and abdomen. However, the Shalwar was not torn. It is correct that Injury No. 1 could be caused if the deceased strikes towards the ground with force and strikes against some/hard substance like bricks and stone. It is correct that if victim falls on ground by tractor there will be injury and if the person is dragged, then there will be abrasion. It is correct that Injury No. 1, an abrasion could be the result of falling on the ground and dragging. It is correct that this injury could not be the result of a common sota. It is correct that the pieces of head can be the result of heavy blow with force. If anything strikes against the deceased with pressure, the injury is possible. Injury No. 3 on the person of the deceased is also result of heavy blow with full force. If one strikes with the iron rod of any vehicle, there is possibility of Injury No. 3. Injury No. 4 is the result of burning. It may also be caused by boiling water. Injury No. 4 cannot be result of heavy vehicle having been passed over it. However, in case of light vehicle, it is possible. Injury Nos. 5,6, & 7 could be the result of dragging or slaining over through the wheel of any vehicle. It is correct that there was no sharp edged injury. 10. Prosecution in order to prove its case produced 10 witnesses in ll. Thereafter, the statements of the appellants were recorded u/S. 342, Cr.P.C. One Syed Kifayat Hussain Shah Inspector/SHO was also examined by the appellants as BW. 1. 11. Learned counsels for the appellants have read before us, the prosecution evidence and other material recorded by the learned trial court. They submit that witnesses produced by the prosecution are interested and inimical one that their statements are in conflict with medical evidence, that it was not humanly possible that after receiving the injuries, deceased Abdul Malik could have walk for 20 karams. They also submit that recoveries were effected from both the appellants were not stained with human blood. They submit that Mst. Janat Bibi is a liar witness because although she was medically examined at 10.40 A.M by Dr. Abdul Ghaffar PW. 6 but during her statement recorded before the learned trial court in her crossexamination stated that she was medically examined in the evening by lady doctor. Learned counsels also submit that Muhammad Hanif s/o Noor Elahi W, an eye witness is r/o a place, which is 1 k miles away from the place of occurrence. They submit that all the PWs produced by the prosecution belongs to Aram brother-hood. They further submit that according to the doctor, who conducted the postmortem examination on the deadbody of the deceased and found all the injuries ante mortem and this fact belies the version of prosecution witnesses, that after the death of Abdul Malik tractor was over run on the body of Abdul Malik deceased. They submit, that in fact, Abdul Malik deceased tried to catch hold Muhammad Khan, who was going on tractor alongwith Muhammad Ishaque and there Abdul Malik tried to gave injury to Muhammad Khan then he had over-run the deceased under his tractor in order to save his life. Lastly, they submit that it was a sudden flare up without any premeditation and all the near relations of the appellants have been falsely implicated in this case, so much so that Muhammad Tayyeb Hussain father of Muhammad Anwar and Muhammad Khan appellants was aged about 85 years at the time of occurrence and it was unnatural, that he would have accompanied Muhammad Khan appellant and would share common intention to kill the deceased Abdul Malik. 12. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submit that it was a broad day light occurrence, that matter was reported to the police promptly that specific roles were attributed to the appellants, that hatchet is a blunt weapon, that in all 18 injuries were caused to the deceased and the PWs. Lastly, they both submit that prosecution has proved its case against the appellants beyond any shadow of doubt and they pray that conviction and sentence awarded to the appellants by the learned trial court be maintained. 13. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial court. It has not been denied by the prosecution, that there was long standing litigation going on between the parties and possibility of false implication is such like cases cannot be rules out. Mst. Janat Bibi, complainant is mother of Abdul Malik, deceased while other PWs produced by the prosecution are either related to the complainant or from her brothery. All the Pws produced by the prosecution belongs to Arian Brothery. Not a single witness has been produced by the prosecution who belongs to another Brothery besides the Arain Brothery. Statements of Mst. Janat Bibi and other PWs are exaggerated one. In the instant case, Muhammad Tayyeb Hussain and Muhammad Anwar were armed with hatchet and "Sabbal" (a sharp edged weapon used for digging the earth). Postmortem report reveals that there is no sharp edged weapon injury on the person of Abdul Malik deceased. It is a big conflict between ocular and medical evidence. According to the prosecution case both these appellants alongwith Muhammad Afzal were apprehended at the spot but the weapons of none of them was stained with human blood, which is most un-natural and improbable. Muhammad Tayyeb Hussain appellant is aged about 85 years and he is father of Muhammad Anwar and Muhammad Khan appellants. Muhammad Tayyeb Hussain was alleged to have caused injuries with hatchet on the person of Abdul Malik deceased from its right side on the back of his head but there is no injury with sharp edged weapon on that place. The other injury was caused by Muhammad Tayyeb Hussain also on the back of his head but there is no such injury with sharp edged weapon on the person of Abdul Malik deceased. Muhammad Anwar appellant was armed with "Sabbal" ( ch )• He was alleged to have caused an injury on the fore-head of Abdul Malik deceased. According to the post-mortem report, no sharp edged weapon injury was found on the said place on the person of deceased Abdul Malik. Muhammad Ishaque, appellant was allegedly armed with "Sota" and gave a injury on the right wrist of Abdul Malik deceased but there is no injury whatsoever at the said place but there are blisters ( i-U? ) and those were also not on right wrist but on right arm and these were on lateral side of upper part of arm, this fact also shows a conflict between ocular account and medical evidence. 14. Muhammad Umar appellant was alleged to have caused an injury with sota on the left arm of the deceased but there is an abrasion and that can be result of dragging or falling on the ground according to the doctor. As far as, allegation against Tanveer Ahmad, Muhammad Saeed and Abdul Waheed are concerned, there are general allegations of giving sota blows but the same is also falsified by the medical evidence about Abdul Malik deceased because these injuries cannot be caused with "Sotas". Dr. Abdul Ghafoor PW. 6 had stated during cross-examination that Injuries Nos. 5, 6 & 7 could be the result of dragging or slaining over through the wheel of any vehicle. 15. According to the F.I.R., occurrence had taken place at three different places but no blood stained earth was taken except from the place _ where ultimately the dead body of the deceased was found and the I.O had admitted this fact, that he did not collect the blood stained earth from the two other places i.e. point No. 2 & 3 in the site plan. It also looks improbable that after receiving so many injuries, the deceased could walk 20 karams, this is also lot of exaggeration on the part of complainant and on the part of her witnesses. That version put forward by Muhammad Tayyeb Hussain, Muhammad Anwar and Muhammad Afzal seems to fee more plausible and natural one, that after hearing about the occurrence they came at the spot when they were apprehended by the P.Ws. None of the recoveries effected from the appellants were found to be stained with human blood. Muhammad Hanif s/o Noor Elahi PW. 3 is real nephew of the complainant and lives lh miles away from the place of occurrence. He was also not injured in this case. No reliance can be placed on his testimony. Although, Muhammad Hanif s/o Allah Yar is an injury witness, though not related to the deceased but belong to Arain Brother as the other witnesses. Mst. Janant Bibi was medically examined by Dr. Abdul Ghafoor PW. 6 at 10.40 A.M but during cross-examination she stated that she was medically examined by a women Medical Officer in the evening. She was not telling the whole truth and did not approach the trial Court with clean hands. In our view, both the parties did not approach the trial Court with clean hands and have suppressed the actual facts from the trial Court. As far as, appellants Tanveer Ahmad, Muhammad Saeed and Abdul Waheed are concerned, general allegation of causing injuries are attributed to them towards the deceased and the complainant, as stated above, there was no injury on the person of Abdul Malik, deceased with "Sota". The other allegation against them was that they had caused injuries to the PWs and they have been convicted u/S. 337-F(V) PPC to undergo two years R.I. In our view, although, the occurrence had taken place but not in the manner as stated by the PWs. They have exaggerated the same in order to falsely implicate the near relation of appellant's party. In our view, Muhammad Khan was going on a tractor when he met Abdul Malik and an altercation took place without any premeditation. Tanveer Ahmad, Muhammad Saeed and Abdul Waheed also came there and they caused injuries on the person of PWs namely Mst. Janat Bibi and Muhammad Hanif s/o Noor Elahi while the two injured PWs Noor Hassan and Muhammad Sharif were not produced by the prosecution during the trial before the learned trial court. In order to save his life Muhammad Khan over run Abdul Malik, deceased in such a manner and having such intention & knowledge to kill Abdul Malik deceased. The postmortem report given above also shows that the deceased received the injuries while he was being over run by the ractor being driven by Muhammad Khan appellant. 16. The upshot of the above discussion, that Muhammad Tayyeb Hussain, Muhammad Anwar, Muhammad Ishaque, Muhammad Umar, Tanveer Ahmad, Muhammad Saeed and Abdul Waheed are acquitted from the charge u/S. 302-B/149 PPC. Death sentence of Muhammad Tayyeb Hussain and Muhammad Anwar is not confirmed and they are acquitted. Murder Reference to their extent is replied in negative. Sentence awarded to them u/S. 148 PPC is also set-aside. Sentence awarded to them u/S. 337- F(V) PPC is also set-aside. Muhammad Tayyeb Hussain and Muhammad Anwar be released forthwith if not required in any other case, while Muhammad Ishaque and Muhammad Umar are on bail and are discharged of their bail bonds. However, sentence of imprisonment & fine of Tanveer Ahmad, Muhammad Saeed and Abdul Waheed is maintained u/S. 337-F(V) PPC. They are also given the benefit of Section 382-B, Cr. P.C. However, sentence of Muhammad Khan appellant under Section 302-B, PPC is maintained. Death sentence awarded to him is also maintained. Murder reference to his extent is replied in affirmative. Other sentences u/S. 148 PPC & u/S. 337-F(V) PPC against him are also set-aside. With the above said modification and alteration, the above said murder reference and Criminal Appeal filed by the appellants are disposed of. DEATH SENTENCE AWARDED TO MUHAMMAD KHAN APPELLANT IS CONFIRMED. DEATH SENTENCE AWARDED TO MUHAMMAD TAYYEB HUSSAIN AND MUHAMMAD ANWAR IS NOT CONFIRMED. (AAJS) Appeal partly accepted

PLJ 1999 Cr PLJ 1999 Cr. C. (Lahore) 791 Present: kh. muhammad sharif, J. NAZIR AHMED-Appellant versus STATE-Respondent Criminal Appeal No. 184 of 1997, decided on 23-4-1999. Pakistan Penal Code, 1860 (XLV of 1860)-- -—Ss. 302-B & 302-C-Murder~Offence of-Conviction for-Appeal against- Both parties (Complainant and appellant) did not approach trial Court with clean hands-Both of them have suppressed their actual roles- Opinion of doctor shows that injury received hy deceased proved fatal- Whereas, prosecution has suppressed injuries on person ofMst. K. wife of appellant and acquittal accused-Conviction of appellant altered from S. 302-B PPC to S. 302-C PPC and sentence of life imprisonment reduced to 10 years R. I. as appellant has exceeded from his right of self-defence. [P. 794 & 796] A & B Ch. Muhammad Afzal Wahla, Advocate of Appellant. Ch. Nizam-ud-din Arif, Advocate of Respondent. Date of hearing: 23.4.1999. judgment This judgment will dispose of Criminal Appeal No. 184 of 1997 filed by Nazir Ahmad appellant, who was convicted and sentenced by learned Additional Sessions Judge, Samundri on 7.4.1997 for the murder of Mst. Inayatan Bibi to undergo life imprisonment u/S. 302-B, PPC with the further direction to pay Rs. 10,000/- as compensation to the legal heirs of the deceased, in default six months S.I. Benefit of Section 382-B, Cr.P.C. was also granted to the appellant. The complainant Sardar Muhammad has also filed a Criminal Revision No. 134 of 1997 for the enhancement of sentence of the appellant Nazir Ahmad. 2. It may be noted here, that co-accused of the appellant Nazir Ahmad namely Mst. Khurshidan Bibi wife of Nazir Ahmad appellant was also convicted by the learned trial Court u/S. 337-A, II PPC to undergo one month S.I for causing injuries on the person of Mst. Manzooran Bibi. 3. The occurrence in this case took place on 9.6.1994 at 12.30 P.M. n village Abadi situated in Chak No. 225-GB, Tehsil Samundri, District Faisalabad in the lands belonging to the Government as tender land. Complaint Ex. P.I was lodged by -Sardar Muhammad husband of Mst. Inayatan Bibi deceased at Civil Hospital , Samundri on the same day at .30 P. and the same was recorded by Muhammad Zafar Ullah Khan, Inspector PW. 15 while the formal FIR Ex. PI/1 was recorded by Ghulam Mustafa MHC, CIA PW. 10 on the same day at 5.45 P.M. 4. Briefly stated the facts are that Sardar Muhammad PW. 8 made a statement Ex. P.I. before Muhammad Zafar Ullah Khan Inspector Police Post, Tarkhani (PW. 15) on 9.6.1994 at bout 5.30 P.M. in Civil Hospital, Samundri that today near village Abadi of Chak No. 225/GB Nazir Ahmad and his wife Khurshidan Bibi were clearing the foundations and wanted to construct wall in his share of possession over tender land. At about 12.30 P,M. complainant Sardar Muhammad alongwith his wife Inayatan Bibi and Manzooran Bibi daughter-in-law reached there and forbade Nazir Ahmad and Mst. Khurshidan Bibi from doing so. A brawl ensued between them. Nazir Ahmad picking up hatchet from nearby Dera inflicted the same on the back of left knee of Mst. Inayatan Bibi who fell on the ground. Mst. Khurshidan Bibi after picking a brick from nearby hit the same which landed on the head of Mst. anzooran Bibi. On hue and cry Ghulam Hussain, Muhammad Ali attracted to the spot and witnessed the occurrence. They separated the injured from the accused. After the occurrence Mst. Manzooran Bibi and Inayatan Bibi were removed to Hospital where Inayatan Bibi succumbed to the injuries and Mst. Manzooran Bibi was admitted for treatment. The motive for the occurrence is stated to be a dispute over construction of wall on tender land. 5. The Investigating Officer after reaching at the spot took into possession blood stained earth video memo Ex. P.E. Appellant and his coaccused were arrested on 15.6.1994. Appellant got recovered hatchet P.I, which was taken into possession vide memo Ex.P.G. Mst. Khurshidan Bibi acquitted co-accused also got recovered brick P.2, which was taken into possession vide memo Ex. P.H. The report of Chemical Examiner regarding the blood stained earth is Ex.P.O and that of Serologist is Ex. P.P. 6. Prosecution in order to prove its case produced 15 witnesses in all. Thereafter, statements of the appellant and his co-accused were recorded u/S. 342, Cr.P.C. One lady Doctor Qaisra Nazli was also examined was DW.l, who had medically examined by Mst. Khurshidan Bibi acquitted coaccused. Learned counsel for the appellant has read before me the prosecution evidence, statements of the appellant and of DW.l and makes the following submissions. He submits that occurrence had taken place where dera of the appellant was situated, that the complainant was not present there, that it was the complainant party, who was aggressor, that the appellant had acted in his right of self-defence in order to save his wife Mst. Khurshidan Bibi, who was on her family way and having a pregnancy of 24 eeks. He submits that recovery of hatchet is planted one and the same is not blood stained. He also submits that appellant has not committed any offence. Lastly, he submits that appellant has already undergone four years, 7 ten months and 22 days of sentence. 1. On the other hand, learned counsel for the State submits that prosecution has proved its case against the appellant beyond any shadow of doubt, that appellant while armed with hatchet caused injury on the person of Mst. Inayatan Bibi which proved fatal. He supports the judgment of learned trial Court. 8. I have heard the learned counsel for the parties and have also gone through the prosecution evidence recorded by the learned trial Court with their assistance. In the instant case, Mst. Khurshidan Bibi wife of the appellant was also injured and she was medically examined by Lady Doctor Qaisra Nazli, DW.l, her statement is reproduced below : "On 12.6.1994 at 9.30 a.m I examined medically Mst. Khurshidan Bibi wife of Nazir Ahmad aged 22/23 years caste Jat occupation house-wife, r/o. Chak No. 225/GB, Tehsil Samundri District Faisalabad and observed the following injuries :— 1. Abrasion with swelling on left pariatal region sized 3 cm X 3 cm. 2. Abrasion with swelling on outer side of right thigh covering the area 5 cm x 6 cm. 3. She was 24 weeks pregnant on examination Fundal height was 24 weeks. She was referred to District Headquarter Hospital for Ultra sono graphy as for foetal well eing. It was kept under observation. No marks of violence were seen on abdomen but she only complained of pain in lower abdomen. Injuries Nos. 1 & 2 were simple while Injury No. 3 was kept under observation. All injuries were blunt weapons probable duration of injuries was 3-4 days. I have brought the original register with me Ex. DD is correct photostat copy attested, by me today. It bears my signatures and seal. Ex.DD/1 is the sketch of the injuries. It is also the correct attested copy of the original. It bears my signatures and seal. XXXX By learned DDA. Today I have signed and sealed Ex.DD and Ex.DD/1 as true copy. I did not record the statement of Mst. Khurshidan Bibi volunteered statement of the husband was recorded by me. It is mandatory to affix the thumb impresion of the injured in case he is in senses. Identification marks of Mst. Khurshidan Bibi however, I have not mentioned the name under these Identification marks. She was not admitted in hospital. In strict sense Injury No. 3 is not an injury. Injuries Nos. 1 & 2 may be the result of friendly hand. Mst. Khurshidan Bibi was not personally known to me. I did not demand her identity card at the time of her examination. I cannot say any other women was produced instead of Mst. Khurshidan Bibi accused. However, the possibility is there. On court question. XXX Mst. Khurshidan Bibi was accompanied by her husband accused Nazir Ahmad. Marks of Identification are mentioned about the injured or and examine. 9. The statement of lady Doctor Qaisra Nazli DW.l shows that one njury is on the head of Mst. Khurshidan Bibi and the other is on her thigh. hese two injuries were suppressed by the prosecution. Moreover, she was n her family way. Appellant while replying to question No. 7 had answered n the following terms which I mention below : Q. No. 7. Why the PWs have deposed against you and why this case against you and your co-accused. Ans. The case is false. The complainant fabricated a case against me and my wife Khurshidan Bibi in connivance with the police and got us falsely challaned. The PWs have deposed falsely because of enmity. "The actual facts are that on the day of occurrence I was digging the foundation with a Kasi some time before 12.00 NOON, in my Ihata, My wife Mst. Khurshidan Bibi was helping me in the digging of the foundation of wall in my ihata which was in my possession and in the mean time Mst. Inayatan deceased and Manzooran PW while armed with sotas criminally trespassed into our Ihata and asked me and my wife that we should not dig the foundation and on our refusal Mst. Inayatan and Manzooran mentioned above injured my wife Khurshidan Bibi by giving sota blows on her person. I tried to save my wife Khurshidan Bibi upon which a struggle took place between me Inayatan deceased and Manzooran PW. I gave pushes to Mst. Inayatan deceased and Manzooran PW in order to save the life of my wife and as a result of which Mst. Inayatan fell on the Kasi which was lying there with its blade upwards and Mst. Manzooran PW fell on a brick which was lying there. The ihata was in our possession. None else was present there. 10. The defence taken by the appellant in his statement u/S. 342, r.P.C. mentioned above is also not plausible to reason and is an absurd one. n fact, both the parties did not approach the learned trial Court with clean ands. Both of them have suppressed their actual roles. The occurrence had aken place in the land where "Dera" of Nazir Ahmad appellant was present. On the other hand, the blow which was on thigh of the deceased given by the appellant also proved fatal. In this regard, statement of Dr. Hafeez Ullah, M.O, who conducted the post-mortem examination on the body of Mst. Inayatan Bibi deceased on 10.6.1994 and found the following injuries on her person, which is reproduced below: I. A stiched wound 6 cm on poplitial foosa of the left leg (left knee oint) on dissection. It was seen all the under lying blood vessels ere cut on left poplitial fossa. No fracture of any bone was seen. Note : Shalwar was also out according to Injury No. 1. THORAX: All the viscras were healthy and the heart was found empty. ABDOMEN : All the abdominal contents were found healthy, stomach and its contents were containing semi digested food which were not identified. Bladder was containing 100 CC Urine. While doing external as well as internal post-mortem I was of the opinion that Injury No. 1 was sufficient to cause death in ordinary course of nature. Cause of death was due to haemorrhage and shock. This injury was antemortem and caused with sharp edged weapon. The probable time between injuries and death was about 2 to 3 hours and that between death and post-mortem was about 18 to 20 hours. After the post-mortem examination, I handed over a well stiched dead body, last worn clothes of the deceased police paper and carbon copy of post-mortem report to Nazir Ahmad constable 375. Ex. P:J is the correct carbon copy of my P.M report which is in my hand and signed by me. Ex.P:J/l is the skiagram showing the seat of injury which is alsoin my hand signed and bear my seal. Injury statement Ex. P.K was also signed and sealed by me. Inquest report Ex. P.L was also sealed and signed by me. XXX By the learned defence counsel. t is correct, in Ex. PJ, in the column of death, the time of death is given by me as 12.30 noon and the date is 9.6.1994. (Volunteer it was according to police papers). It is correct that seat of Injury No. 1 is on fleshy part of the body. It is correct that there was no cut of any bone. It is possible that if any body falls on a kassi having its sharp side upward then such like injury may be caused. It is possible that the deceased might have received Injury No. 1 in such like manner (volunteer that the cut of the Shalwar should also be considered). II. The opinion of the doctor shows that the injury received by the eceased proved fatal. I have to put both the versions in juxta position. As I ave held earlier that both of them have not approached the learned trial Court with clean hands. Furthermore, prosecution has suppressed the injuries on the person of Mst. Khurshidan Bibi wife of the appellant and acquitted co-accused. Therefore, the conviction of the appellants is altered from Section 302-B, PPC to Section 302-C, PPC and the sentence of life imprisonment is reduced to 10 years R.I as the appellant has exceeded from his right of self-defence so compensation u/S. 544-A, Cr.P.C. of Rs. 10,000/- is maintained. Benefit of Section 382-B, Cr.P.C. is also maintained. The revision petition filed by complainant Sardar Muhammad for the enhancement of sentence of the appellant is dismissed. With these observations, this appeal stands disposed of. (MYFK) Orders accordingly.

PLJ 1999 Cr PLJ 1999 Cr. C. (Lahore) 796 Present: KH. MUHAMMAD SHARIF, J. AZHAR MEHMOOD-Appellant versus STATE-Respondent Criminal Appeal No. 1BO of 1994, heard on 23-4-1999. Pakistan Penal Code, 1860 (XLV of 1860)- —Ss. 302/320~Murder~Offence of--Conviction u/S. 320 PPC-Appeal gainst-Defence plea and statement u/S. 342 Cr.P.C. of appellant are not onvincing-There is no injury on person of pellant th hatchet, either any hatchet was recovered from spot-Both versions as stated by omplainant party and appellant are not true-Both of them had not pproached trial Court with clean nds-Complainant has not come forward for enhancement of sentence—Sentence already undergone was treated to be sufficient-However, amount of "Diyat" was maintained- Order accordingly. [P. 799] A & B Mr. Muhammad Ahsan Bhone, Advocate of Appellant. Mr, Muhammad Jakangir, Advocate of Respondent. Date of hearing: 23.4.1999. judgment This judgment will dispose of Criminal Appeal No. 160 of 1994 filed by Azhar Mahmood appellant, who was convicted and sentenced by learned Additional Sessions Judge, ranwala on 29.1.1994 for the murder of Nizam Din, to undergo seven years R.I u/S. 320 PPC. He was further directed to pay Rs. 1,72,000/- as "Diyat" to be paid to the legal heirs of the deceased either in lump sum or in three installments. In case he fails to pay the same, he will have to undergo simple imprisonment till be pays the same. Benefit of Section. 382-B, Cr.P.C. was also granted to the appellant. 2. The occurrence in this case took place on 20.9.1991 at 10.30 p.m within the area of Sahran Chatha fields of the appellant. Complaint Ex. P.H. was lodged on 21.9.1991 at 12.30 p.m at bridge of Canal Alipur Chatha by Ghulam Muhammad PW. 10 and the same was recorded by Muhammad Hussain SI PW. 13 while the formal FIR Ex. P.H/1 was recorded Muhammad Amir, Moharrir Head-constable PW.9 on 21.9.1991 at 12.45 midnight. 3. It may be noted here, that two co-accused of the appellant namely Mumtaz Ahmad and Muhammad Aslam were acquitted by the learned trial Court 4. The prosecution case as per the statement of complainant who appeared as PW. 10 was that Nizam Din (deceased) was his real brother. They were six brothers, and had been cultivators in the village for the last 17/18 years. Muhammad Aslam and Mumtaz refrained them from digging the earth as they were laying foundation and the objection of the accused was that it was not in straight line. The accused nominated an arbitrator and as per his award 5 feet of land was given to the complainant party out of the field belonging to the accused. Two years back three accused came to the spot on a tractor. The complainant refrained them to plough the portion of land which was given to the complainant party as per award. The PWs Younas, Sardar, Rashid and brother of complainant Nizam Din deceased were present. Nizam Din clearly told the accused that the complainant party would, not permit the accused party to plough the portion of land which had been given to them by the Arbitrator. 5. Accused Muhammad Aslam and Mumtaz exhorted their coaccused Azhar to start tractor and to run over any one coming in front of it. Accused A/har started the tractor and its plough was aloft. PW Rashid was hit by the side of tractor. He fell down after sustaining injuries. Complainant further stated that his deceased brother Nizam Din was standing by the side of their (complainant) wall. Accused Azhar struck the right front wheel with the brother of the complainant, who fell down. Accused lowered the plough which struck Nizam Din and the ccused dragged Nizam Din upto 32 arams . The complainant and PWs raised hue and cry. Thereafter, coaccused Muhammad Aslam and Mumtaz disentangled Nizam Din from the plough of the tractor. The accused fled away raising lalkaras. Blade of the plough of tractor caused injuries on the back and flank of Nizam Din who succumbed at the spot. PWs Sardar and Rashid witnessed the occurrence besides the complainant. The latter proceeded to inform the Police after leaving Sardar and Younas to guard the dead body and when he reached the bank of canal, he met the Police. He narrated the facts which were taken down and read over to him (Ex. P.H) On the basis of said statement formal FIR Ex. PH/1 was recorded. 6. One day after the occurrence,, the I.O proceeded to the spot and took into possession blood stained earth vide memo Ex. P.G. Appellant was arrested in this case on 5.10.1991. Tractor bearing No. 3610 P. 3 alongwith its articles which are used in-the fields P.4 were taken into possession vide memo Ex. P.C. 7. Prosecution in order to prove its case produced 13 witnesses in all. Amongst them, there were three eye-witnesses, two were examined by the prosecution namely Sardar Ahmad PW. 8 and Ghulam Muhammad PW. 10 while Rashid Ahmad injured PW was given up by the prosecution as unnecessary. Thereafter, the statements of the appellant and his co-accused were recorded u/S. 342, Cr.P.C. and one DW. namely Zamurred Khan DSP, CIA, who stated about the innocence of the two co-accused of the appellant namely Muhammad Aslam and Mumtaz. Learned counsel for the appellant has read before me the prosecution evidence, statements of the appellant, his co-accused, DW.l namely Zamurred Khan DSP/CIA and some portion of the judgment of the learned trial Court. After going- through this exercise he submits that it was an unwitnessed occurrence, which took place at dark hours of night. He further submits that the learned trial Court has disbelived the prosecution evidence and has convicted the appellant on his own statement recorded u/S. 342, Cr.P.C. where he had taken the plea, that deceased Nizam Din tried to cause him injury with hatchet and he in order to save his life tried to turn the tractor and the deceased was killed in that process. He submits that no case is made out against the appellant. 8. On the other hand, Learned counsel for the State submits that already a lenient view has been taken by the learned trial Court, that appellant has also admitted the illing of the deceased. 9. I have heard the learned counsel for the parties and have alsp gone through the evidence recorded by the learned trial Court and the judgment of the learned trial Court with their assistance. It is true, that the learned trial Court has disbelieved the prosecution evidence and has also disbelived the motive part of the occurrence, but he has not even think it proper to discuss the same. He has convicted the appellant on his own plea. Section 320 PPC is a Penal Section while Section 318 PPC is definition of "QataUe-Khata". Section 318 PPC alongwith his two Illustrations are reproduced as below: SECTION 318: Qatl-e-Khata. Whoever, without any intention to cause the death or cause harm to, a person causes death of such person, either by mistake of act or by mistake of fact, is said to commit Qatl-e-Khata. ILLUSTRATION (a) A aims at a deer but misses the target and kills Z who is standing by A is guilty of qatl-e-khata. (b) A shoots at an object to be a boar but it turns out to be a human being. A is guilty of Qatl-e-Khata. 10. I may also refer here, the answer of question No. 8 put to the appellant in his statement u/S. 342, Cr.P.C., in which the appellant has described the death of deceased being accidently. The defence plea of the appellant and the statement of the appellant recorded u/S. 342, Cr.P.C. in the reply to question No. 8 is also not convincing one. There is no injury on the person of the appellant with hatchet, neither any hatchet was recovered from the spot. Appellant is a young man of ,25 years of age while the deceased was an aged person i.e. of 55 years of age. In my opinion, both the versions as stated by the complainant party and the appellant are not true. Both of them had not approached the learned trial Court with clean hands. Under Section 320 PPC the maximum sentence is 10 .years alongwith "Diyat", but seven years have been awarded to the appellant. Appellant has already undergone sentence of two years, nine months and seven days. This is an old matter relating to year 1991. Complainant has also not come forward for the enhancement of sentence in shape of Crl. Revision. Appellant has also suffered rigors of protracted trial since 1991. 11. Keeping in view all the above situation of the present case, the sentence which the appellant has already undergo is treated to be sufficient in the circumstances of the case and also in the interest of justice. However, the amount of "Diyat" is maintained. Appellant is directed to pay the "Diyat" amount either in lump sum or in three equal installments and the first installment he would pay on 24.5.1999 before the learned trial Court and the other two installments would be paid after three months each. In case he fails to pay the first installment, he will be taken into custody and would undergo simple imprisonment in the Jail till he pays the same. With these observations, this appeal stands disposed of. (MYFK) Orders accordingly.

PLJ 1999 Cr PLJ 1999 Cr. C. ( Lahore ) 799 Present: kh. muhammad sharif, J. SURAT KHAN-Appellant versus STATE-Respondent Criminal Appeal No. 50-J of 1998, heard on 21-4-1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302/308/309-Murder-Offence of-Conviction for-Appeal against-- There is no reason to disbelieve witnesses of occurrence-Occurrence took place in broad day light-Appellant was specifically named in FIR, he was rmed with rifle 303 and caused three injuries on person of deceased-­ Prosecution evidence was believed but conviction and sentence of appellant was converted from S. 309 to S. 308 PPC and he was awarded 14 years R.I. as tazir' instead of life imprisonment-Orders accordingly. [P. 802 & 803] A & B Mr. Khalid Naveed Dar, Advocate of At State expense. Mr. Masood Sadiq Mirza, Advocate for State. Date of hearing: 21.4.1999. judgment This judgment will dispose of Criminal Appeal No. 50-J of 1998 filed by Surat Khan from Jail, who was convicted and sentenced by learned Additional Sessions Judge-I, Mianwali for the murder of his real brother Sardar Khan on 3.9.1998 to undergo life imprisonment u/S. 309 PPC with a further direction to pay Rs. 25,000/- as compensation. Benefit of Section 382-B, Cr.P.C. was also granted to the appellant. 2. This is a Jail appeal. I appoint Mr. Khalid Naveed Dar, Advocate to defend the appellant at State expense. 3. The occurrence in this case took place on 15.7.1996 at 9.30 a.m near the dera of Abdul Ghafoor complainant father of the appellant and also the decease Sardar Khan situated in village Ganda, which falls within the area of Police Station, Kamar Mashani, while the matter was reported to the police on the same day by Abdul Ghafoor complainant at 12.00 noon. The distance of place of occurrence from the Police Station is 20 K.Ms away. 4. One Sardar Khan S/o. Abdul Ghafoor Khan was murdered in the area of Village Ganda, P.S. Kamar Mashani, on 15.7.1996, at about 9.30 a.m. Abdul Ghafoor Khan the father of the deceased made a report at P.S. Kamarmashani on the same day regarding this occurrence at 2.00 p.m. According to the complainant, he had five sons namely Surat Khan, Sattar Khan, Zulfiqar Khan, Sardar Khan and Mushtaq Khan. Out of these five sons, Surat Khan Sattar Khan and Zulfiqar Khan were married and were living in separate houses. Mushtaq Khan and Sardar Khan his sons were living with him. On 15.7.1996, the complainant, his wife Mst. Ayesha Bibi and his son Sardar Khan were present in his house, when in the morning time, Surat Khan his son come there and he demanded his share of landed property owned by the complainant. This resulted into exchange of abuses. Sardar Khan intervened and also asked Surat Khan not to insult his father, but Surat Khan did not desist, as a result of which Sardar Khan inflicted fist and kick blows to Surat Khan. Thereafter, Surat Khan left the house of the complainant by passing threats that he would teach a lesson to Sardar Khan for his insult. At about 9.30 a.m. on the same day, the complainant alongwith his son Sardar Khan, Abaid Ullah and Ahmad Khan were grazing their animals towards East of their dera at a distance of about 100 karams on the lands of Muhammad Sadiq S/o. Mehr Khan, when suddenly Surat Khan, while armed with rifle emerged there and raised lalkara and fired three rifle shots one after the other on Sardaf Khan, which hit Sardar Khan i "• ' ~~ on his right buttock and right fore-arm and he fell down and the accused ran away. The occurrence was also witnessed by Abaid Ullah and Ahmad Khan alongwith the complainant. The cause of grievance as disclosed in the FIR is '• w ~ - the previous quarrel between the deceased and the accused in the morning time in the house of the complainant. On the basis of this report, formal FIR Ex.P.B was drafted by Muhammad Aslam, SI/SHO, P.S. Kamarmashani. The accused was then arrested. The police during investigation concluded Surat Khan accused to be guilty of the offence and was challaned and was sent up to the trial Court to face trial. 5. The Investigating Officer, thereafter proceeded to the spot, took into possession blood stained earth vide memo Ex.P.C and after completing other formalities, he arrested the appellant on 3.8.1996. Appellant got recovered rifle 303, P.S from his house alongwith four alive bullets P.4/1-4, which were taken into possession vide memo Ex.P.H. - . «•__ • 6. Prosecution inprder to prove its case produced 11 witnesses in all. Thereafter, the statement of the appellant was recorded under Section 342, Cr.P.C. Two eye-witnesses were produced by the prosecution namely Abdul Ghafoor PW.2 father of the deceased and the appellant and Abaid Ullah. PW.3 maternal uncle of the deceased and the appellant, while Ahmad Khan was given up as unnecessary. Learned counsel for the appellant after oing through the prosecution evidence submits that appellant has been alsely implicated in this case, that in fact, it was an unwitnessed occurrence. He further submits that murder of the deceased was committed by Ahmad Khan and after concocting a false story implicating the appellant in this case. "- » He also submits that father of the appellant had waived his right of "Qisas" and forgiven him in the name of God Almighty but her mother Mst. Ayesha Bibi did not waive her right of "Qisas". Lastly, he submits that appellant could not have been convicted u/S. 309 PPC but u/S. 308 PPC and this is an illegality which has been committed by the learned trial Court. 7. On the other hand, learned counsel for the State submits that appellant is the only accused in this case, that there is no question of substitution, that eye-witnesses produced by the prosecution are close relation of the deceased and the appellant, that ocular account is corroborated by medical evidence, motive and recovery of rifle .303 from the appellant. He supports the judgment of learned trial Court. 8. I have heard the learned counsel for the parties and have also gone through the prosecution recorded by the learned trial Court with their assistance. The two eye-witnesses namely Abdul Ghafoor and Abaid Ullah are father and maternal uncle of the appellant and the deceased examined as PW. 2 and PW. 3 respectively. Mst. Ayesha Bibi mother of the appellant was examined as PW.4 and she had narrated the motive part of the occurrence. There is no reason to disbelieve these witnesses. The occurrence took place in broad day light. Appellant was specifically named in the FIR, he was armed with rifle .303 and caused three injuries on the person of the deceased Sardar Khan. Learned trial Court was wrong in convicting the appellant u/S. 309 PPC because the case of the appellant falls u/S. 306-C, PPC and Section 307-B, PPC which are reproduced below : SECTION 306: Qati-i-Amd not liable to Qisas :—Qatl-i-amd shall not be liable to qisas in the following cases namely : (a) When an offender is a minor or insane: Provided that, where a person liable to qisas associates self in the commission of the offence with a person not iable to qisas with the intention of saving himself from qisas, e l not be exempted from qisas. (b) When an offender causes death of his child or grandchild, how low-so-over: and (c) When any wali of the victim is a direct descendant, how low-so ever of the offender. SECTION 307: (1) Cases in which qisas for qatl-i-amd shall not be enforced Qisas for qatl-i-amd shall .not be enforced in the following cases namely :— (a) When the offender dies before the enforcement of qisas (b) When, any vfali, voluntarily and \ritho"ut duress, to the atisfaction of the Court, waives the right of qisas under Section 309 or compounds under Section 310: and (c) When the right of qisas develoves on the offender as a result of the death of the wali of the victim, or on the person who has no right of qisas against the offender; (2) To satisfy itself that the wali has waived the right of qisas under Section 309 or compounded the right of qisas u/S. 310 voluntarily and without duress the Court shall take down the statement of the wali and such other persons as it may deem necessary on oath and record an opinion that it is satisfied that the waiver or, as the case may be, the composition, was voluntary and not the result of any duress. 9. The perusal of these sections of Penal Code shows that no conviction u/S. 309 PPC could have been awarded to the appellant and the conviction if could have been awarded u/S. 308 PPC which reads as under : SECTION 308. Punishment in qatl-e-amd not liable to qisas etc: Where an offender guilty of Qatl-e-amd is not liable to qisas u/S. 306 or the qisas is not enforceable under clause (c) of Section 307, he shall be liable to diyat: Provided that, where the offender is minor or insect; diyat shall be payable either from his property or by such person as may be determined by the Court: Provided further that where at the time of committing qatl-e-amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realise the consequences of his act, he may also be punished with imprisonment or either description for a term which may extend to fourteen years as "Ta'zir": Provided further that where the qisas is not enforceable under clause (c) of Section 307 the offender shall be liable to diyat only if there is any wali other than offender and if there is no wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years s "ta'zir" (2) Notwithstanding anything contained in sub-section (1), the Court having regard to the facts and circumstances of the case in addition to the punishment of diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years as ta'zir. 10. The bare perusal of Section 308 PPC would shows that the maximum sentence which can be awarded to the appellant is 14 years as "ta'zir" alongwith "Diyat". In these circumstances, I believe the prosecution evidence but set-aside the conviction and sentence of the appellant u/S. 309 PPC and convert the same u/S. 308 PPC and appellant is awarded 14 years R.I as "ta'zir" instead of life imprisonment. He is also directed to pay Pis. 2,30,000/- (two lac & thirty thousands) as "Diyat" amount to the legal heirs of the deceased except his father, who has waived his right of "Qisas". Benefit of Section 382-B, Cr.P.C. is also maintained. The amount of cbmpensation awarded to the appellant by the learned trial Court is set-aside or there is no such provision u/S. 308 PPC. With these observations, this appeal stands disposed of. (MYFK) Orders accordingly.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 804 Present: kh. muhammad sharif, J. SADDI AHMED-Appellant versus STATE-Respondent Criminal Appeal No. 59-J of 1998, accepted on 16.4.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302-B~Murder--Offence of--Conviction for-Appeal against--No motive whatsoever was attributed to appellant in FIR-He had no quarrel with deceased-There was no reason for appellant to join hands with coaccused (since dead)-Motive has already been disbelieved by trial Court-­ Hatchet recovered from appellant was not stained with blood and same was not sent to Chemical Examiner for its analysis-Both eye witnesses are father and uncle of deceased-Both are not resident of nearby place of occurrence-Their presence at spot is oubtful-There is delay of three hours in lodging FIR witho t plausible explanation-No independent witness has been produced by prosecution in order to prove its case from nearby place although, place of occurrence is thickly populated one- Statement of eye witnesses are also not truthful-Prosecutio has not been able to prove case against appellant beyond doubt-Appellant acquitted. [Pp. 806 & 807] A to E Mr. Khalid Naveed Dar, Advocate at state expenses Khawaja Muhammad Iqbal Butt, Advocate for State. Date of hearing: 16.4.1999 judgment This judgment will dispose of Crl. Appeal No. 59-J/1998 filed by Saadi Ahmad aged 16/17 years, who was convicted U/S. 302-B PPC for the murder of Amanat Ali by the learned Addl. Sessions Judge, Faisalabad, on 16.12.1997 and was sentenced to undergo life imprisonment as 'Tazeer' with a further direction to pay Rs. 20,000/- as compensation, in default 3 months S.I. Benefit of Section 382-B Cr.P.C. was also granted to the appellant. It may be mentioned here that the appellant was named in the FIR alongwith Mulazam Hussain co-accused of this case but Mulazam Hussain died on 27.5.1996 before commencement of the trial. V 2. The occurrence in this case took place on 23.4.1995 at 2.00 p.m in front of the house of Allah Ditta situated on Jarranwala Lahore Road, within the jurisdiction of Police Station Lundianwala which is at a distance of 3 miles from the place of occurrence. The matter was reported to the police by Mubarak All, father of the deceased Amanat Ali and his statement Ex.P.E. was recorded by Muhammad Nawaz S.I (PW. 13) at Chakku Mor at 5.00 p.m. while the formal FIR Ex. P.E/1 was recorded on the same day at 5.20 p.m at the Police Station. 3. The brief facts, as narrated by the complainant in his complaint Ex. P.E, are that on 23.4.1995 at about 2 p.m, he alongwith Bashir Ahmad his brother and Muhammad Amin s/o Bashir Ahmad nephew were busy in conversation while in the Verandah of Bashir Ahmad, his brother and his son Amanat Ali came out of his house and proceeded on metalled road leading from Jaranwala to Lahore. When he reached in front of the house of Allah Ditta s/o Raja caste Baluch, from behind, Saadi Ahmad accused alongwith Mulazam Hussain (since dead) armed with hatchet raising 'lalkara' reached there. Mulazam Hussain raised 'lalkara' that Amanat Ali be not left alive and lesson for their insult be taught to him. The complainant alongwith aforesaid persons also proceeded fastiy towards that direction. Within their view, Mulazam Hussain inflicted hatchet blow which hit Amanat Ali on back side of his head who fell down. While he was lying, Saadi Ahmad accused also inflicted a hatchet blow which hit on deceased's head cutting the skull. Then Mulazam Hussain inflicted hatchet blows one after the other which hit Amanat Ali on the back side of neck. The accused upon seeing the PWs while waiving hatchet went towards north. The complainant alongwith his companions took care of Amanat Ali who had scummed to the injuries. 3. The motive as set up was that on the previous night Arif Ali s/o Ranjha resident of the same village had a musical show in his house over the birth of his son where Amanat Ali deceased and Mulazam Hussain accused (since dead) had quarreled with each other and the matter reached upto abuses, but the respectables patched up the same. Mulazam Hussain taking it his insult had developed grudge and on the day of occurrence. He alongwith Saadi Ahmad present accused committed the Qatl-e-Amd of Amanat Ali deceased. 4. The Investigating Officer after recording the statement of the complainant send the same to the Police Station for registration and he himself came to the spot and prepared inquest report and also took into possession the blood stained earth vide memo Ex. P.F. The appellant was arrested on 3.5.1995 alongwith his co-accused. He got recovered hatchet P. 1 which was taken into possession vide memo Ex. P.G. Mulazam Hussain (since dead) accused also recovered hatchet P. 2 which was taken into possession vide memo Ex. P.H. The report of Chemical Examiner and that of Serologist regarding blood stained earth are Ex. P.K. and Ex. P.L. 5. The prosecution in order to prove its case produced 9 witnesses in all. Amongst them three eye witnesses were cited. Two of them namely Mubarak Ali (PW. 7) father of the eceased and Bashir Ahmad (PW. 8) real brother of the complainant were examined by the prosecution but third eye witness namely Muhammad Amin son of Bashir Ahmad was given up as being unnecessary. 6. Mr. Khalid Naveed Dar, Advocate has been appointed as counsel for the appellant to defend .him at state expenses, by this Court. 7. Learned counsel for the appellant has read before me the prosecution evidence and the statement of the appellant in which he had claimed innocence and false implication due to suspicion. Learned counsel for the appellant submits that there is delay of three hours in lodging the FIR although, the Police Station was at a distance of 3 miles from the place of occurrence. Elaborating his arguments he submits that infact the eye witnesses were not present at the spot but were summoned from their houses and later on after consultation and due deliberation in connivance with the police the appellant was also implicated in this case alongwith Mulazam Hussain. He further submits that both he eye witnesses are close relatives of the deceased o e is father of the deceased and the other is uncle of the deceased. No independent person has been produced by the rosecution, although, the occurrence had taken place in thickly populated _ lace. He also submits that no motive whatsoever is attributed to the ppellant in the FIR and the same has so been disbelieved by the trial ourt. Adds that as far as recovery of hatchet is concerned, it is planted one ecause it was not stained with blood and same has also been disbelieved by he trial Court. He submits that only one injury, according to the rosecution, was attributed to the appellant caused on the head of the eceased. According to the PWs the me was caused by the appellant when e deceased had already fallen on the ground, but according to the Doctor he possibility of the same being caused while deceased was fallen on e round, is not possible. He also submits that there is conflict between ocular _ account and medical evidence. He submits that no reason what-so-ever has been given by the prosecution that why the appellant had joined hands with his co-accused Mulazim Hussain (since dead). Lastly, he submits that deceased alongwith the appellant and his co-accused Mulazim Hussain (since dead) were involved in a theft case and they had appeared before the court on the day of occurrence. Learned counsel submits that the appellant has been falsely implicated !n this case due to suspicion. 8. On the other hand learned State counsel submits that the ppellant is named in the FIR, specific role of causing injury on the head of the deceased is attributed to him, that ocular account is corroborated by the medical evidence and the appellant is not entitled to acquittal. 9. I have heard the learned counsel for the parties and have also one through the evidence recorded by the trial Court. First of all I will take p motive part of the prosecution story. No motive whatsoever was attributed to the appellant in the FIR. He had no quarrel with the deceased there was no reason for the appellant to have join hands with co-accused Mulazim Hussain (since dead). Prosecution witnesses have tried to improve the motive before the trial Court but this improvement was duly confronted by the learned defence counsel. Motive has already been disbelieved by the learned trial Court. Even both the eye witnesses have admitted that they were not present at the time of quarrel between Mulazim Hussain and the deceased. I also disbelieve the motive of this case with regard to the appellant Now I take the case of recovery of hatchet which was allegedly recovered from the appellant the same was not stained with blood and the B same was not sent to the Chemical Examiner for its analysis, so no corroboration can be sought either from motive or from recovery of weapon allegedly recovered from the appellant. Even the trial Court has also disbelieved the recovery. I also disbelieve the same Now I take up the question of ocular account, there are two eye witnesses namely Mubarak Ali and Bashir Ahmad. Mubarak Ali is father of the deceased while Bashir Ahmad is real uncle of the deceased. Both are not resident of nearby place of occurrence. Their presence at the spot is doubtful. There is delay of three hours in lodging the FIR and no plausible explanation for delay in lodging the FIR was given by the prosecution. No independent witness has been produced by the prosecution in order to prove its case from the nearby place, although, the place of occurrence is thickly populated one. I see no reason on the pan of the appellant to join hands with his co-accused Mulazim Hussain (since dead). The appellant alongwith deceased and Mulazim Hussain coaccused (since dead) was involved in a theft case and they have been appearing in the court of Haqa Magistrate. Even on the day of occurrence they had attended the said court. The statement of eye witnesses are also not truthful regarding injuries on the person of the deceased because in the Court they have stated that the deceased also received injuries on his back but there was none. The Injury No. 2 is allegedly attributed to the appellant which is on the right side of his head, according to the Doctor, who had conducted the postmortem examination, had stated before the trial Court while replying the question of learned Defence Counsel that the possibility was there that the same cannot be caused when the deceased was lying on the ground. In my view prosecution has not been able to prove the case E against the appellant beyond any shadow of doubt. While extending the benefit of doubt to the appellant I accept the appeal of the appellant and acquit him from the charge. He is behind the bars. He shall be released forthwith if not required in any other case. (MYFK) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 808 (DB) Present: riaz kayani, and kh. muhammad sharif, JJ. SHAHID alias SHADA-Appellant versus STATE-Respondent Criminal Appeal No. 606 of 1994, accepted on 21.4.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302-Offence of Zina (Enforcement of Hudood) Ordinance, 1979, S. 0(2)-Zina and murder-Offence of~Conviction for--Appeal against-No ody was named in FIR lodged after delay of one y-No body had seen eceased with appellant, neither any body saw appellant while ommitting zina with deceased-There is no eye witness who could state t was appellant who had put opatta" around her neck and killed hervidence of extra-judicial confession has always been considered as a very eak type of evidence-It is a case of circumstantial evidence—Taking of oulds into possession and blood grouping is not of such type evidence herein conviction can be maintained against appellant-Prosecution has iserably failed to prove its case against pellant-Conviction set aside-­ ppeal accepted. [P. 810] A Mr Abdul Hameed Rana, Advocate for Petitioner. Mr. S.D. Qureshi, Advocate for Respondent. Date of hearing: 21.4.1999. judgment Kb. Muhammad Sharif, J.--This judgment will dispose of Crl. Appeal No. 606/1994 filed by Shahid alias Shadoo, who was convicted and sentenced by Judge Special Court for speedy trial on 26.9.1993 for the murder of Razia Bibi to undergo death sentence U/S. 302-B PPC. He was further convicted U/S. 10(2) Offence of Zina (Enforcement of Hadood) Ordinance, 1979 to undergo 10 years R.I. He was also sentenced to 30 stripes with a fine of Rs. 10.000/- (ten thousand), in default of payment of fine to undergo R.I for one year. The amount of compensation U/S. 302-B, PPC was ordered to be paid to the legal heirs of the deceased. 2. The occurrence in this case took place on 8.2.1993 at 7-15 p.m in Mohallah Noorpura, near Fish Farm .situated at Jandiala Road, Sheikhupura. The complaint Ex.P.E was lodged on 9.2.1993 near Railway Station at 7.15 p.m. Formal FIR Ex. P.E/1 was recorded on 9.2.1993 at 7.25 p.m by Muhammad Sajjad real brother of Mst. Razia Bibi deceased, examined as PW. 2. that no case is made out against the appellant. Lastly he submits that the appellant is entitled to the acquittal. 7. On the other hand, learned counsel for the State submits that the ppellant had made extra judicial confession voluntarily, that there was no uestion of false implication of the appellant. He submits that the prosecu­ ion has proved its case against the appellant beyond any shadow of doubt. We have heard the learned counsel for the parties very carefully and have also gone through the evidence minutely with the assistance of the earned counsel for the parties. Mst. Razia Bibi deceased left her house on .2.1993 but the matter was reported to the police on 9.2.1993, wherein no y was named nor any suspicion was made against any body. No body had een Mst. Razia Bibi going with the appellant, even no body had seen the ppellant while committing zina with Mst. Razia Bibi. Moreover, there is no ye witness, who could state it was the appellant, who had put the 'Dopatta' round her neck and killed her. The evidence of extra judicial confession has lways been considered as a very weak type of evidence. It is a case of ircumstantial evidence. Moreover, death sentence has been awarded to the ppellant. We have to see whether on this evidence both the sentences warded to the appellant can be maintained. The evidence in this case is not f such type that death sentence awarded to the appellant by the learned rial Court should be maintained. The evidence of extra judicial confession, aking of moulds into possession and the blood grouping is not of such typewherein the conviction can be maintained against the appellant. In our view he prosecution has miserably failed to prove its case against the appellant. eeping in view the above circumstances, we accept this appeal and set aside he conviction and sentence awarded to the appellant by the learned trial ourt. The appellant, if not required in any other case, shall be released forthwith. Death sentence not confirmed. (MYFK) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 810 Present: KH. MUHAMMAD SHARIF0 J. QUTAB SHER etc.--Appellants versus STAT,E--Respondent Crl. Appeal No. 627 of 1988, accepted on 19.3.1999. Pakistan Penal Code, 1860 (XLV1860)-- —Ss. 302 & 201-Murder-Offence of-Conviction for-It was appellant who had lodged FIR against other accused persons-Nothing against appellants is mentioned in inquest report—During investigation it also came to light that there was suspicion against Mst. B earlier wife of deceased-There are three sets of accused-It is very difficult to maintain conviction on such like evidence-Defence has been able to create doubts in prosecution story-Gun recovered from appellant is a licenced gun and no corroboration of ocular account can be sought from this recovery- Although appellants were available with police on day of occurrence, but they were arrested after 1 \ months of occurrence-It also cast doubt on veracity of prosecution case-Appellants acquitted and appeal accepted. [P. 813 & 814] A to D Mr. Shamim Abbas Bukhari, Advocate for Appellants. Mr. A.H. Masood, Advocate for Respondent. Date of hearing: 19.3.1999. judgment This judgment will dispose of Crl. Appeal No. 627/1988 filed by Qutabsher and Allah Warzi. They were sentenced by learned Sessions Judge Khushab on 29.5.1988 for murder of Muhammad Ihsan, a paternal cousin of the appellants. They were sentenced as under: - Qutabsher appellant was awarded life imprisonment U/S. 302 PPC with a fine of Rs. 2,000/- and in default to undergo for two years R.I. He was fourth directed to pay Rs. 30,000/- as compensation to the legal heirs of the deceased or in default one year R.I. Allah Warzi appellant was convicted U/S. 201 PPC and was sentenced to undergo 5 years R.I. with a fine of Rs. 2,000/-, in default six months R.I. Occurrence in this case took place on 10.9.1986 at about morning prayer time (Fajjarwela) at the dera of deceased situated in the area of Police Station Noorpur Thai in village Dhamak, District Khushab. The distance between village Dhamak and Police Station Noorpur Thai is 5 miles. FIR was lodged on the same day at 6.30 a.m by Allah Warzi appellant. 2. Brief facts of the case are that Muhammad Ihsan now deceased was first cousin of Allah Warzi and was residing at his dera situated in his lands in the revenue limits of village Dhamak whereas Allah Warzi was residing at his dera in his own lands at a distance of 1 \ miles from the dera of Ihsan. On the evening proceeding to night of occurrence he was slept on a cot in the courtyard of the dera of Ihsan, where Ihsan was also sleeping on a separate cot and a hericane lamp was on when he got up for offering morning prayer and saw Alam Khan, Muhammad Hayat armed with twelve bore guns, Amir Muhammad son of Yara armed with hatchet and Zulifqar son of Gulsher armed with hatchet r/o Dhamak emerged at the spot and then Alam Khan fired an effective shot at Ishan who was still sleeping on his cot which hit on the back of his chest which roved fatal. The occurrence was itnessed by his father Abdul Ghani and brother Ziadal Sher and thereafter aforementioned four culprits left the spot. As far the motive is concerned, his case was that Muhammad Ihsan had agreed to give a hand of his niece Mst. Sahiban in marriage to aforementioned Alam Khan but thereafter had resiled and so had himself married Mst. Maqsoodan sister of Muhammad Yousaf in return for the hand of his niece Mst. Sahiban to Muhammad Yousaf aforementioned and that there was also a land dispute between them. Leaving the deadbody of Ihsan at the spot Allah Warzi left for the police station and so stated above lodged FIR Ex. P.M there which was recorded at his dictation by Amir Muhammad ASI at the Police Station. 3. During the course of investigation it came to light that actually both the present appellants were involved in this occurrence. They were arrested on 18.11.1986. Qutabsher also got recovered his licensed gun Ex.P. 9 which was taken into possession vide memo Ex.P.K. The I.O also took into possession three pellets Ex.P. 6/1-3, Sleeper of the deceased (shoes) P. 7/1-2, cot of the deceased P. 8. All these articles were taken into possession vide emo P. F/l, lantern P. 5 was also taken into possession vide memo P.F. 4. Prosecution in order to prove its case produced 12 witnesses gainst the appellants. Amongst them two eye witnesses were produced. Rustam Khan father of the deceased (PW. 6) and Mst. Maqsoodan Bibi wife f the deceased (PW. 8), thereafter the statement of the appellants U/S. 342 Cr.P.C. was recorded. They pleaded false implication and claimed innocence. 5. Learned counsel for the appellants has read before me the prosecution evidence, statement of the appellants and submits that it was an unwitnessed occurrence. He also submits that none of the PWs produced by the prosecution were present at the spot, that the motive in this case is not believable. He also submits that had Rustam Khan, as stated by him, told against the present appellants to the I.O when he first reached at the post after registering the FIR, alongwith Allah Warzi appellant then the names of the appellants and the role which they played during the occurrence must have been mentioned in the brief facts of the inquest report Ex.P.O. Learned counsel for the appellants further submits that Rustam Khan has dmitted that he had also suspected against Mst. Bakhtan Bibi first wife of Muhammad Ehsan deceased and his brother Ghulam Muhammad. The I.O has also admitted during the cross-examination that Mst. Bakhtan and Ghulam Muhammad were also suspected in this case and beside that Alam Khan who was also named in the FIR was also suspected in this case but after getting the oath on Holy Qur'an and satisfying himself PW. Rustam Khan choose to state against the present appellants. Learned counsel further submits that \ months after the occurrence both the appellants were arrested. He submits that in fact for first \ month there was no evidence against them and it was on 18.11.1986 when the statements of Rustam Khan, Mst. Maqsoodan second wife of the deceased and Muhammad Yousaf the brother of Mst. Maqsoodan Bibi were recorded U/S. 164 Cr.P.C. then the present appellants were arrested. He also submits that there is no independent corroboration to the ocular testimony furnished by the prosecution. As far as recovery of gun is concerned, he submits that it was a licenced gun of Qutabsher appellant. No crime empty was recovered from the spot so it has got no bearing on the prosecution case. He submits that in cosecution has failed to prove its case against the appellants beyond shadow of doubt. On the other hand learned counsel for the state submits that ppellants are the real nephew of stam Khan PW, that there was o question of false implication of the appellants, that both of the eye itnesses are independent witnesses and there is no need for their roboration. 7. I have heard the learned counsel for the parties and have also one through the evidence recorded by the trial Court with the assistance of he learned counsel for the parties. In e instant case it was Allah Warzi ppellant who had lodged the F.I.R. in which Alam Khan and three others ere named as accused persons. A specific motive was given therein. It is the ase of stam Khan PW father of the deceased that he had sent Allah arzi appellant to lodge the FIR in the P.S after giving him his horse. He lso admitted than when the police came at the spot he ld e 1.0 that it as the appellant and his co-accused Qutabsher who had committed the urder of his son. Had this story been there on the day of occurrence. This tory must have been mentioned e I.O in the inquest report which is lways recorded after the registration of the FIR. Nothing in this regard gainst the appellants is mentioned in the inquest report. Inquest report and he FIR e those documents which are sent alongwith the dead body to the octor for the post-mortem examination and the same cannot be changed. urther more during the course of investigation it so came to light that here was suspicion against Mst. Bakhtan the earlier wife of Ishan deceased nd his brother Ghulam Muhammad. They were also interrogated. oreover, Alam an d others were also suspected for the murder of hsan deceased. They were,also interrogated by the police but after getting Nian' on Holy Qur'an in the instant case and also after satisfying mself ustam Khan PW. There are three sets of accused suspected by the mplainant one the present appellants and the other two mentioned by me bove. It is very difficult to intain the conviction on such like evidence. efence has to create doubt in the prosecution case and in my view defence as been able to create doubts in the prosecution story. As far as covery of un is concerned that is licensed gun of Qutabsher appellant. No orroboration of ocular account can be sought from this recovery. For \ onths appellants were not rested and were arrested ultimately on 8.11.1986, although, they were available on the day of occurrence to the olice. It also cast doubt on the veracity of the prosecution case. In the nstant case no corroboration can be sought from any source of evidence ther from motive or recovery of gun. 8. Keeping in view all the circumstances of the case I accept this appeal and extend benefit of doubt to the appellants. They are acquitted, the judgment of the learned Sessions Judge, Khushab, is set aside. Allah Warzi, appellant is on bail, he is discharged from his bail bonds. Qutabsher is behind the bars. He shall be released forthwith, if he is not required in any other case. (MYFK) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 814 Present: KH. MUHAMMAD SHARIF, J. FAROOQ AHMED-Appellant versus STATE-Respondent Criminal Appeal No. 369 of 1994, disposed of on 28.4.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-Murder-Offence of-Conviction for-Appeal against-It is admitted in FIR that appellant committed murder of deceased on ground that he ad suspicion that deceased used to state rrogatory remarks against Holy Prophet (P.B.U.H)-Eye witnesses have no business to be present -place of occurrence-Number of injuries also shows that appellant committed murder this account also-This is sufficient provocation for Muslim if he hears these types of derrogatory remarks-State counsel as also submitted that sentence which appellant had already dergone e treated sufficient-Sentence already undergone treated sufficientppeal disposed of. [Pp. 816 & 817] A to D emo for Appellant. Mr. Naeem Shakir, Advocate for Complainant. Mr. CM. Latif, Advocate for Respondent. Date of hearing: 28.4,1999. judgment This judgment will dispose of Criminal Appeal No. 369 of 1994 and Criminal Revision No. 429 of 1994. Criminal Appeal has been filed by Farooq Ahmad, who was convicted and sentenced by learned Additional Sessions Judge, Faisalabad on 31.5.1994 to undergo fourteen years R.I U/S. 302(c), PPC. Benefit of Section 382-B, Cr.P.C. was also granted to the appellant. There is a Criminal Revision filed by the complainant Waqar Ahmad praying therein that sentence awarded to the appellant U/S. 302(c), PPC may be enhanced to its maximum sentence as provided therein. f D.E.O, Faisalabad on the complaint of teachers of that school. Appellant had taken and pleaded the plea of right of self defence. Nobody appeared on behalf of the appellant. I have waited for him for the whole of the day and I am going to decide both these matters with the assistance of learned counsel for the complainant and learned counsel or the State. 5. Learned counsel for the complainant submits that the learned trial Court has not believed the version of the appellant. As far as, right of self defence is concerned, he submits that the learned trial Court has convicted the appellant by giving his own theory and i.e. of grave and sudden provocation. He farther submits that question of grave and sudden rovocation does not arise because this plea was never taken by the appellant nor there is any evidence on record and appellant has failed to prove the same as required under Article 121 of "Qanun-e-Shahadat" Ordinance, 1984. 6. Learned counsel for the State submits that the learned trial Court has disbelieved the ocular account in this case, the motive part of the occurrence and has relied upon the statement of the appellant. Learned State counsel also very candidly submitted that in the instant case, the sentence which the appellant has already undergone be treated to be sufficient to meet the ends of justice. 7. I have heard the learned counsel for the complainant as well as he State and have also gone through the evidence recorded by the learned trial Court. The eye witnesses produced by the prosecution have no business to be present at the place of occurrence neither they are employee in the office of D.E.O nor they are resident of the place of ccurrence. The learned trial Court has rightly disbelieved their presence at the spot and has not given any credit to their statements. The learned trial Court has believed the statement of the appellant although he had not pleaded the plea of grave and sudden provocation, therein, the appellant had taken the plea of right of self defence, which has not been believed by the learned trial Court. 8. I have also gone through the F.I.R. of this case, it has been admitted by the complainant himself in the last line of F.I.R., that the appellant had ommitted the murder of the deceased on the ground that appellant had suspicion that while posting in Chak No. 242/RB deceased used to state derrogatory remarks against Holy Prophet Hazrat Muhammad (P.B.U.H). This fact also proves that the deceased used to state derogatory remarks against Holy Prophet Hazrat Muhammad (P.B.U.H). The number of injuries also shows that the appellant had committed the murder of deceased on this account also. Moreover, Ex.P.K to Ex.P.K/5 shows that th deceased had been making derrogatory remarks against Holy Prophet Hazrat Muhammad (P.B.U.H) and the complaints were being made against the deceased by the teachers of the school and other persons. I have gone through these exhibits, this is a sufficient provocation for a Muslim if he hears these types of derrogatory remai'ks against Holy Prophet Hazrat Muhammad (P.B.U.H). Moreover, learned State counsel has also very candidly submitted before this Court that in the instant case the sentence which the appellant had already undergone be treated sufficient to meet the ends of justice. 9. Keeping in view all the circumstances of the case and the submissions made by learned counsel for the State I think, that the sentence which the appellant has already undergone is treated to be sufficient to meet the ends of justice. I order accordingly. With this modification, this appeal stands disposed of. He be released forthwith if not required in any other case. 'MYFKi Appeal disposed of.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 817 Present: KH. MUHAMMAD SHARIF, J. ZAHOOR AKRAM-Appellant versus STATE-Respondent Criminal Appeal No. 617 of 1993, dismissed on 22.4.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- — S. 161 read with S. 5(2) PCA, 1947--There is no deliberate delay in lodging of FIR-None of PWs was inimical towards appellant-They had o enmity whatsoever with appellant-Mere relationship or friendship of a witness with complainant is no criteria to discard his evidence-All prosecution witnesses have fully supported prosecution case before trial Court-Prosecution has proved its case against appellant beyond any shadow of doubt- Appellant belongs to law enforcing Agency-He was to protect life and liberty of citizen but misusing his official capacity he forced complainant to. give him bribe, no leniency can be shown to him- Appeal dismissed. [P. 821] A Mr. Muzammil Ali Akram, Advocate for Appellant. Abdus Salam Malik, Advocate for State. Date of hearing: 22.4.1999. judgment This judgment will dispose of Criminal Appeal No. 617 of 1993 filed by Zahoor Akram appellant, who was convicted and sentenced by Learned Senior Special Judge, Anti-Corruption, Punjab, Lahore on 20.9.1993 to undergo two years R.I, with a fine of Rs. 10.000/-, in default of payment of fine to undergo six months RI U/S. 161 PPG. Appellant was further convicted and sentenced U/S. 5(2) of the Prevention of Corruption Act, 1947 to undergo two years R.I. It was also directed that fine if realized a sum of Rs. 5,000/- be paid to the complainant. Both the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C was also granted to the appellant. 2. The occurrence in this case took place on 9.6.1991 and the matter was reported by Muhammad Isa cmplainant through Ex.P.A. to Additional Director Anti-Corruption, Choburji Circle , Lahore on 5.1.1992 and after the inquiry FIR was lodged on 24.3.92. 3. The prosecution case as disclosed by the record is that Muhammad Isa complainant, the then student of LL.B University Law College, Lahore, proceeded to Gilgit on.a trip with other students on 31.5.1991 and returned with his colleagues on 9.6.1991 by means of Punjab University Bus and alighted the bus near Minar-e-Pakistan as he appened to be resident of a nearby area. He boarded a Rickshaw and left for Misri Shah. At about 6.15 a.m he was stopped by Shaheen Force near Ik Moria Pull on the allegation that he was in possession of un-customed goods of foreign origin and illicit arms and ammunitions. 4. The Shaheen Force took him to P.S. Misri Shah where Zahoor Akram S.I. (accused) registered a case under the Customs Act and so also U/S. 13 of the Arms Ordinance 1965 and obtained his physical remand for a day on 10.6.1991. In the evening the S.I. demanded a sum of Rs. 5,000/- as bribe from the complainant and undertook to return all the goods seized from him and not to administer physical beating. Being frightened the complainant requested the Sub-Inspector to send a message to his brother Muhammad Musa to arrange for the demanded amount. According to the version set out in the complaint Ex.P.A, the accused went to the house of the complainant and asked his brother to manage the aforesaid amount. His brother Muhammad Musa collected the amount and delivered the same to the complainant in the Police Station. Muhammad Asif Sheikh and Muhammad Naeem Khan PWs went to see him in the Police Station on coming to know of the registration of the case. The demanded amount was paid by the complainant to the accused in presence of these two witnesses. The goods seized from him were lying with the S.I. who undertook to return to him. On the following day he was produced before the Court and was bailed out. Lateron he applied for the return of Rs. 6,000/- which were recovered from hispersonal search at the time of his arrest. In pursuance of the order of the Court the S.I. returned him this amount. He had to face two cases, one in the Custom's Court and the other in the ordinary Court U/S. 13 of the Arms Ordinance. 5. On 5.12.1991 he was acquitted by the Customs Judge and the Court ordered that all articles except the arms and ammunition be returned to the complainant. 6. According to the complainant's version following articles were misappropriated by the accused; 1. Rs. 5,000/- (Bribe money). 2. A blanket made in Italy. 3. A leather jacket. 4. One pair of joggers (Italian). 5. On piece of emerald. 6. One Man Show Perfume one bottle. 7. TDK cassettes six pieces. 8. Almonds of superior quality-5 KG. 9. Ponds Cream one big bottle. 10. One vial of Salajeet (Tonic for Rheumatic Pain). 11. Hair brush one. , 12. One small torch. 13. A dinner set. 14. Eight thermos jugs. (Japan Make) 7. Out of this list the accused returned only dinner set and the jugs and failed to return the remaining articles despite his repeated requests. 8. It was on the basis of these allegation that the Additional Director, ACE, Lahore ordered for an inquiry by Malik Muhammad Afzal, Assistant Director, (Legal), ACE, Lahore . The Assistant Director despite has best efforts failed to procure the attendance of the accused who, in the first instance, was under training at Sihala and then came back to Lahore. The Inquiry Officer addressed various letters-Ex.PW. 4/1, Ex.P.W. 4/2 and Ex.P.W. 4/3 to the Commandant, Police Training College, Sihala but the officer remained reluctant to appear and finally the Inquiry Officer received letter Ex.PW. 4/4 from the Commandant, PTC, Sihala that the accused had joined the institution for training on 25.10.1991 but was absent since 27.1.1992 and could not report back till 15.2.1992, as such the College authorities were obliged to revert him back to his parent District Lahore vide their letter No. 1246-47/PC, dated 17.2.1992. The Inquiry Officer was then advised that necessary proceedings be taken against him through his present district administration. 9. Consequently, the Inquiry Officer wrote a letter Ex. PW. 4/5 to Superintendent of Police, Lahore, but even then the accused failed to appear before him and the Inquiry Officer was left with no alternative but to proceed against him ex-parte on account of the adamance of the accused to appear before him. 10. On the basis of the report of the Inquiry Officer the case FIR No. 10/92 was registered at P.S, ACE, Lahore . 11. Prosecution in order to prove its case produced six witnesses in all. Muhammad Isa complainant appeared as PW. 1 and verify his statement/complaint Ex.P.A. Muhammad Musa PW. 2 is real brother of Muhammad Isa and supported the prosecution case and stated before the trial Court that appellant demanded bribe from his brother and he after arranging money handed over the same to his brother Muhammad Isa, who was in police lock-up. Muhammad Asif was examined as PW. 3, he owns a printing press in Urdu Bazar, Lahore . He was friend of complainant Muhammad Isa and stated before the trial Court that the complainant paid Rs. 5,000/- to the appellant in his presence. Muhammad Afzal, Assistant Director (Legal) Anti-Corruption, Department was examined as PW. 4 and tated before the trial Court that he was ordered by his Superior to hold the inquiry on the complaint Ex.P.A submitted by uhammad Isa complainant. According to Muhamm d Afzal, PW. 4 he did his best to procure the attendance of the appellant but appellant deliberately avoided to appear before him and Director Legal was forced to examine the witnesses of the omplainant ex-parte and finally on the basis of his report, formal FIR Ex.P.A/1 was recorded, lateron, the investigation was transferred to him. Another eye-witnesses namely Muhammad Naeem Khan about whom it was reported by the process server that Muhammad Naeem Khan was away to Korea so he was given up by the prosecution. The proceedings were still pending when Muhammad Naeem came to Pakistan he gave an application through the P.P.. to be examined as a witness. Appellant's ounsel before the trial Court did not object to this so Muhammad Naeem Khan was also examined as P.W. 6. He also supported the prosecution case to the effect that Muhammad Isa complainant paid Rs. 5,000/- as bribe to the accused in his presence in the Police Station. Appellant was examined U/S. 342, Cr.P.C., where he had defined the allegation levelled by the prosecution and stated that complainant was apprehended by Emergency Squard on 10.6.1991 and entire recovery was effected by Saeed Ahmad ASI, Emergency Squard and the recovery memo was also prepared by him and all these articles were duly returned to him. Appellant has also examined one Rashid Ahmad DW. 1 constable No. 10511. Maqbool Ahmad Head Constable Naib Moharrir P.S. Misri Shah was examined as DW. 2. Saeed Ahmad ASI Emergency Squard appeared as DW. 3. Appellant also appeared as his own witness U/S. 340, Cr.P.C. 12. Learned counsel for the appellant has read before me the prosecution evidence and the other evidence recorded by the learned trial Court and makes the following submissions. He submits that there is a delay of seven months in lodging the FIR without any plausible explanation and whole of the prosecution story becomes doubtful. He further submits that in shall be taken into custody and sent to judicial lock-up to serve out his remaining sentence. The judgment of the learned trial Court is upheld. (T.A.F.) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 822 Present: kh. muhammad sharif, J. ZAHEER-UD-DIN BABAR-Appellant versus STATE-Respondent Criminal Appeal No. 67-J of 1998, heard on 28.4.1999. Pakistan Penal Code, 1860 (XLV of I860)-- —-S. 302-B-Murder--Offence of--Conviction for~Appeal against-Appellant is real nephew of deceased and there was no question of false-implication of appellant-Occurrence took place in road day light and there was no question of mistaken identity-Appellant is only accused in this case-­ There is no question of substitution-Matter was reported to police within one hour by omplainant so there is no question of deliberation-- Although both eye witnesses are real sons of deceased but they are natural witnesses-Their statements are corroborated by medical evidence-Prosecution has proved its case against appellant beyond any shadow of doubt-However, age of appellant at the time of occurrence was 16 years, 8 months and 10 days, so onviction and sentence was converted from. S. 302-B to S. 306 PPC i.e. 14 years imprisonment-Appeal disposed of. [P. 824] A Kh. Muhammad Iqbal Butt, Advocate (At State Expense). Mr. halid Naveed Dar, Advocate for State. Date of hearing: 28.4.1999. judgment This judgment will dispose of Criminal Appeal No. 67-J of 1998 filed by Zaheer-ud-Din Babar, who was onvicted and sentenced by learned Additional Sessions Judge, Faisalabad on 14.2.1998 to undergo life imprisonment U/S. 302-B, PPC for the murder of Haji Nawab Din, who was real ncle f the appellant. He was further directed to pay Rs. 25,000/- as compensation, U/S. 544-A, Cr.P.C. to the legal heirs of the deceased, in default six months R.I. Benefit of Section 382-B, r.P.C was also granted to the appellant. 2. This is a Jail appeal. I appoint Kh. Muhammad Iqbal Butt, Advocate to defend the appellant at state expense. The occurrence in this case took place on 24.6.1995 at 10.30 a.m V>><1 " -- in the clinic of the deceased situated in hak No. 583/GB, Tehsil Jaranwala, f District Faisalabad, falh'ng within the area of Police Station, Lundianwala, District Faisalabad while formal FIR Ex.PW. 5/A was lodged in the Police Station by Abu Saeed son of Haji Nawab Din, deceased on the same day at 11.30 a.m and the said FIR was recorded by Altai Hussain Inspector PW. 7. 4. The FIR Ex.PW. 5/A was recorded on 24.6.1995 at 10.30 a.m at Police Station, Lundianwala on the statement of Abu Saeed son of Haji Nawaz Din, caste Chadhar, r/o. Chak No. 583/GB, Tehsil Jaranwala, District Faisalabad PW. 5. The complainant mentioned in the FIR that he was undergoing a Homoeopathic course and after his examination was assisting his father in the village in his clinic named Ahsan Dawakhana. On 4.6.1995 as usual, his father was sitting in a chair in the courtyard of his ~— Dawakhana when complainant alongwith Qazi ibghat-UUah his brother PW and Ali Sher son of Basir Ahmad, caste Dogar r/o. Muhammad Bibi Colony, Jaranwala PW were present in the room inside the clinic. At about 10.30 a.m Zaheer- d-Din son of Muhammad, caste Chadhar resident of the village who was TAYA ZAD" of the complainant armed with pistol came at Dawakhana. He while reaching near Nawab Din, complainant's father made ialkura that he would not spare him and would teach him lesson for his disgrace. On hearing this shout complainant alongwith Qazi Sibghat Ullah and Ali Sher PWs came out of the room and in their sight Zaheer fired with pistol hitting Haji Nawab Din, complainant's father on his right arm and bullet further entered in the abdomen. Complainant's father died at the spot due to the injury while Zaheer accused made Lalkara that nobody should come to him, otherwise, he would be killed and was able to fled away. The motive for the occurrence is mentioned that Zaheer accused wanted to get illegal possession of the land owned by the complainant's father and few days prior to the occurrence, complainant's father reprimanded him and due to that grievance the accused committed the murder of complainant's father. The occurrence was witnessed by Sibghat Ullah and Ali Sher and complainant. On this report FIR Ex.PW. 5/A was registered U/S. 302 5. The Investigating Officer after registering the FIR went to the spot collected blood stained earth vide memo Ex. P.W. 7/D. No empty of bullet was recovered from the pot Appellant was arrested in this case on 1.8.1995, he led to the recovery of pistol .30 bore P. 4 alongwith 10 live cartridges Ex. P. 5/1-10, which were taken into possession vide memo Ex.PW. 7/E. The report of Chemical Examiner regarding the blood stained earth is Ex.P.C. and that of Serologist is Ex.P.D respectively. ""~ 6. Prosecution in order to prove its case produced 8 witnesses in all. Amongst them there were three eye-witnesses, two were examined by the prosecution namely Abu aeed PW. 5, Sibghat Ullah PW. 6 sons of the deceased while Ali Sher brother-in-law of the complainant was given up as unnecessary- 1. Learned counsel for the appellant has read before me the prosecution evidence, statement of the appellant recorded U/S. 342, Cr.P.C. and makes the following submissions. He submits that occurrence was an ' kj unwitnessed one, that both the eye-witnesses produced by the prosecution are real sons of the deceased, that no empty of bullet has been recovered from the spot, that the motive has been disbelieved by the learned trial Court, that there is conflict between ocular account and medical evidence for the reasons that there is a blackening on the wound of the deceased but according to the eye-witnesses appellant was fired from five feets. He also submits that recovery of pistol js of no consequence or help to the prosecution because no empty bullet was recovered from the spot. He submits that no case is made out against the appellant. Lastly, he submits that conviction U/S. 302-B, PPC cannot be maintained as according to him at the time of occurrence appellant was 16 years, 8 months and 10 days of age and his case is covered U/S. 306 PPC and the sentence can only be imposed U/S. 308 PPC. 8. On the other hand, learned counsel for the State supports the judgment of learned trial Court in all respect. 9. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court. It may be noted here, that appellant is the real nephew of the deceased Haji Nawab Din, and there was no question of false implication of the appellant. The occurrence in this case took place in broad day light and there was no question of mistaken identity. Appellant is the only accused in this case. There is no question of substitution and the same is a rare phenomena. Matter was reported to the police within one hour by the complainant so there is no question of deliberation and consideration on the part of the V complainant party. As far as motive is concerned, motive is always in the _s-—- mind of the appellant. In my view, prosecution has proved its case against the appellant beyond any shadow of doubt through ocular account which has come from nimpeachable source although both the eye-witnesses are real sons of the deceased but the occurrence had taken place in the shop of the deceased which is also situated in the house of the eceased, so both these witnesses are natural witnesses. Their statements are corroborated by medical evidence. There is no conflict between ocular account and medical evidence. However, s the age of the appellant at the time of occurrence was 16 years, 8 months and 10 days, so the conviction and sentence awarded to him under Section 302-B, PPC is set-aside and the same is onverted U/S. 308 PPC, as the case of the appellant is covered by Section 306 PPC, so sentence which is awarded to the appellant is 14 years alongwith "Diyat" which comes to an amount of s. 2,30,000/-. Appellant is directed to pay the =^ said amount either in lump sum or in three equal installments within a period of three years. In case he fails to pay the same then after ndergoing the sentence of 14 years he will remain in jail to undergo Simple Imprisonment till he pays the same and the said amount can also be recovered from the appellant as arrears of land revenue. Benefit of Section 382-B, Cr.P.C. granted to the appellant by the learned trial Court is maintained. With this modification, this appeal is disposed of. (MYFK) Orders accordingly.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 825 Present: kh. muhammad sharif, J. MUHAMMAD JAMEEL-Appellant versus STATE-Respondent Criminal Appeal No. 295 of 1993, heard on 28.4.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 161 read with S. 5(2) PCA, 1947-Appeal against conviction- Complainant had not identified appellant in trial Court during examination-in-chief neither public prosecutor tried to get identified appellant from complainant in trial Court-In cross examination, Complainant had categorically stated on oath that person who had taken bribe from him was not present in Court-Witness was not declared hostile by prosecution-Complainant was an aggrieved person who did not recognized appellant before trial Court-Though PW-2 and PW-3 support prosecution case but complainant has not supported prosecution case-Conviction and sentence set aside-Appeal accepted. [P. 827] A & B Mian Waheed, Advocate for Petitioner. M/s. Tasneem Amin, Advocate for Respondent. Date of hearing: 28.4.1999. judgment This judgment will dispose of Criminal Appeal No. 295 of 1993 filed by Muhammad Jameel, who was convicted and sentenced by Senior Special Judge, Anti-Corruption Punjab, Lahore on 3.5.1993 to undergo two years R.I U/S. 161 PPC and a fine of Rs. 5,000/- and to undergo one year R.I under Section 5(2) 47 P.C.A. Both the sentences were ordered to run concurrently. Out of fine, if realized Rs. 2,000/- was ordered to be paid to the complainant as compensation. In default of payment of fine six months R.I. 2. The facts which led to the prosecution of the accused, briefly ar that one Pehlwan brother-in-law of Rehmat a cousin of Muhammad Your complainant came from Karachi to Muridke to visit his relations. On a se intelligence that aforesaid Pehlwan trafficks in drugs, Muhammad Jameel accused alongwith his colleague Tariq Constable came to the house of the cousin of the complainant in order to apprehend Pehlwan. They could not find Pehlwan and in his place took away Mst. Seeman the sister of aforesaid Rehmat to the Police Station. Her release was, however, secured through the intervention of respectables of the area. On the following day the accused and his friend Tariq apprehended Rehmat and demanded the production of Pehlwan and in order to hush up the matter demanded a sum of Rs. 700/-. The complainant intervened and assured the accused and his friend that the money would be paid by him. The accused was good enough to release Rehmat on the assurance that the money would be paid to him on the following day i.e. 19.4.1992 at 7.00 p.m. They, however, warned him that in case the money, as promised was not paid Rehmat would again be hauled up. 3. The complainant never Wanted to make the payment of the bribe and approached the ACE. The Inspector, ACE procured the order of ADM, Sheikhupura whereby Mr. Najamul assan Naqvi MIC (PW. 2) was deputed to supervise the raid. After taking .the necessary steps and noting the numbers of currency notes produced by the complainant the raiding party set out for Muridke. The raiding Magistrate and the Inspector ACE stood near the Rehri of the complainant and waited for the arrival of the accused. The accused appeared there at the appointed time, demanded the amount which was paid to him by the complainant in view of the raiding Magistrate and the Inspector ACE. The also over-heard the talk between the two as they were standing quite nearby. After completion of the necessary proceedings the accused was arrested and was challaned on the completion of investigation. 4. When confronted with the aforesaid charge the accused pleaded not guilty and claimed trial. 5. Prosecution in order to prove its case produced three witnesses namely Muhammad Younis complainant PW. 1, Najamul Hassan Naqvi, MIC, Sheikhupura PW. 2 and Muhammad Afzal Co, ACE as PW. 3. 6. Learned counsel for the appellant after reading the evidence submits that complainant Muhammad Younis had completely failed to identify the appellant in the trial Court. He submits that moreover the public prosecutor also did not ask the complainant to identify the appellant in the trial Court. He submits that complainant is the star witness of the prosecution and he has not supported the prosecution case. He also submits that prosecution has failed to prove its case against the appellant beyond any shadow of doubt. 7. On the other hand, learned counsel for the State submits that 'ajamul Hassan Naqvi PW. 2 has implicated the appellant in his statement Corded on oath. He also submits that Sheikhupura has also implicated the appellant. She supports the judgment of the learned trial Court. I have heard the learned counsel for the parties and have also one through the evidence recorded by the learned trial Court. In the examination-in-chief, Muhammad Younis complainant PW. 1 had not identified the appellant in the trial Court, that he as the same person who had received the bribe from him neither the public prosecutor tried to get identified the appellant from the complainant in the trial Court. In crossexamination, the omplainant Muhammad Younis had categorically stated on oath, that the person who had taken bribe from him was not present in Court. The witness was not declared hostile by the rosecution. The complainant was an aggrieved person who did not recognized the appellant before the learned trial Court. The case was registered in 1992. Seven years have already passed. s far as, Najamul Hassan Naqvi, MIC, Sheikhupura and Muhammad Afeal Co, X5CE, PW. 2 and PW. 3 are concerned, although they support the prosecution case but as I have tated above, the complainant has not supported the prosecution case. Moreover, Pehlwan was not produced either before the police r before the learned trial Court to support the ersion of the complainant. Taking all these facts into consideration I extend the benefit of doubt to the appellant. Conviction and sentence awarded to the appellant by the learned trial Court s set-aside. Appellant is on bail and he is discharged from his bail bonds. iMYFK) Appeal accepted

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 827 (DB) Present: riaz kayani and kh. muhammad sharif, JJ. MUHAMMAD AKHTAR-Appellant versus STATE-Respondent Criminal Appeal No. 27-J of 1998, M.R.No. 51-T of 1998, heard on 28.4.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302-C & 311-Double murder-Offence of-Conviction for-Appeal against-Delay in lodging of FIR has been sufficiently explained-Nadia a minor was a natural and star witness who fully implicated appellant who was her father-She cannot be disbeh'eved-Number of injuries show that both deceased persons were killed brutally in a cold blooded manner- Ocular account is furnished by independent persons having no enmity with appellant-Their account is corroborated by medical evidence, motive and recovery of blood stained Takwa and Knife-This is not a case of mistaken identity-Appellant is only accused in this case-There is no question of substitution and false implication-Conviction and sentence of ^ appellant being legal one was maintained. [P. 829 & 832] A to C Roshan Ara, Advocate for Appellant. Ch. M. Bashir, A.A.G. for State. Date of hearing: 28.4.1999. judgment Kh. Muhammad Sharif, J.-This judgment will dispose of Murder Reference No. 51-T/1998 and Crl. Appeal No. 27-J/1997 filed by Muhammad Akhtar, appellant who was onvicted U/S. 302-C PPG to undergo death sentence for the murder of Fazal Karim with a fine of Rs. 1,00,000/- (one lac), in default to undergo 10 years R.I. He was also convicted U/S. 302-C PPC to undergo 14 years R.I as 'Ta'zi'r for the murder of Mst. Kausar Parveen, wife of the appellant, vide order dated 6.12.1997. 2. The occurrence in this case took place on 15.11.1995 at 11.30 p.m in the house of the deceased situated in Chak No. 34 Shomali, 11 k.m away from Police Station Sadar Sargodha, while the FIR was lodged by Nazar Muhammad the real brother of Fazal Karim deceased in the Police Station on 16.11.1995 at 7.00 a.m, vide memo Ex.PK. recorded by Maula Bakhsh, S.I/S.H.O (PW. 11). 3. Brief facts as narrated in the FIR, are that on the night between 15/16.11.1995, at about 11.30 p.m the appellant while armed with 'chhurri' and Takwa (Toka inflicted injuries to Fazal Karim and Mst. Kausar Parveen in the area of Chak No. 34. As a result of injuries caused by the appellant both the deceased died at the spot. 4. The motive as alleged in the FIR was that Mst. Kausar Parveen was the wife of Muhammad Akhtar accused/appellant and was residing with her father on account of strained relations with the appellant. On the day of occurrence, Fazal Karim deceased (father of Mst. Kausar Parveen deceased) had flatly refused to send Mst. Kausar Parveen, with the appellant who had gone to Chak No. 34/SB. 5. The I.O after reaching the spot collected the blood stained earth vide memo P.L. The reports of the Chemical Examiner and Serologist are positive in this regard. The appellant was arrested on 17.11.1995, and he got recovered 'Takwa' (Toka) P. 1 and knife (chhurri) P. 2 on 21.11.1995 vide memo P.J. The report of the Chemical Examiner is Ex.P.N and that of Serologist is P.O. According to these reports both these weapons were stained with human blood . 6. The prosecution in order to prove its case has produced 11 witnesses in all. Amongst them Nazar Muhammad, complainant (PW. 7) was brother of the deceased Fazal Karim, Nadia a minor girl (PW. 9) was daughter of the appellant and Mazhar Khan (PW. 10) was first cousin of the deceased Fazal Karim. 7. Learned counsel for the appellant has read before us the prosecution evidence, statement of the appellant and submits that there is an unexplained delay in lodging the FIR, that Nazar Muhammad and Mazhar Khan PWs are not the resident of place of occurrence. That Nadia was a tutored witness. She further submits that it was an unwitnessed occurrence and the witnesses produced by the prosecution are close relatives of the deceased. She also submits that the occurrence had taken place in a thickly populated area but not a single person from adjacent houses had been produced by the prosecution. She lastly submits that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. 8. On the other hand learned AAG representing the State supports the judgment of trial Court vehemently. 9. We have heard the learned counsel for the parties and have also gone through the evidence recorded by trial Court. In the instant case delay has been explained by the prosecution during the trial stating therein that the occurrence had taken place in the mid night, there was no conveyance and due to the fear of the appellant no body left the house until the sun rose and the matter was reported to the police station. We think this is sufficient explanation to condone the delay of 7 hours in lodging the FIR. In the instant case for the sake of arguments, if we exclude the presence of Nazar Muhammad and Mazhar Khan, then there remains Nadia, a minor student of first class at the time of her statement in Court. She was a natural and start-witness of the prosecution. She has fully implicated the appellant who was her father. She cannot be disbelieved, even otherwise Nazar Muhammad during cross-examination has given reasonable explanation of his presence at the spot. Appellant had caused 13 injuries each with sharp edged weapons on both the deceased persons. In this regard the injuries found by the Doctor Muhammad Aslam examined as PW. 4 are also given below:- In.juries on the person of Kausar Parveen (deceased) 1. An incised wound 2 cm x 1/4 cm x skin deep on the back of lect fore-arm 5 cm below from the left elbow joint. 2. An incised wound 6 cm x \ cm x muscle deep across the right index and middle finger on profimal phalyox. 3. An incised wound 3 x 2 cm x muscle deep on the interior part of right axilla. 4. An incised wound 6 cm x 1 \ cm starting from middle of left eye brow and going upward and back ward. The bone under it was partially cut. 5. An incised wound 5 cm x 1 cm present on the middle of head starting from 1 cm above from hair line going upwards. It was bone deep. 6. An incised wound 11 cm x 3 cm across the front of neck. Trachea was cut completely, Muscles around and blood vessels were also cut. The spine under was spare. It was by light sharp edged weapon. 7. An incised wound 1 ^ x \ cm on front of right lower chest 2 cm lateral from the middle exillary line 7 cm below and medial from right nipple. Dissection under Injury No. 7. It entered the right chest through 8th Intercast space and injured the lower pole of right lung and right lobe of liver. 8. An incised wound 1 cm x 1 cm on the left side of left upper chest 3 cm below from the mid exillary line. It entered the plural cavity and injured the left lung. Left plural cavity was full of blood. 9. An incised wound 1 cm x \ cm on the left lower chest in line of left nipple. It passed through llth intercastle space and punctured the spleen. 10. 3 incised wound each 1 \ x to \ cm in an area of 10 cm 9 cm on front of abdomen onits left side. These wounds entered the paritonial cavity and injured the small intestine at three places. The paritonial cavity was full of blood. An incised wound 3 cm x 1 cm x muscle deep on the outer side of right upper thing. 11. Four incised wound in an area of 15 x 11 cm on the front and lateral side of left middle thing 7 cm above from the left knee joint. These were muscle deep. 12. An incised wound 6 cm x 3 cm muscle deep on the inner side of left lower leg 8 cm below from the left knee joint. Vagina admits two fingers easily that i.e. habitual to inter-course. Uterus was empty. In his opinion the death was caused due to Injuries Nos. 6 to 10 which led to haemorrhage and shock. All the injuries were caused by sharp edged weapon and were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Time between injuries and death was immediate and between death and post-mortem was about 24 hours. 5. An incised wound 5 cm x 1 cm present on the middle of head starting from 1 cm above from hair line going upwards. It was bone deep. 6. An incised wound 11 cm x 3 cm across the front of neck. Trachea was cut completely. Muscles around and blood vessels were also cut. The spine under was spare. It was by light sharp edged weapon. 7. An incised wound \~x.\ cm on front of right lower chest 2 cm lateral from the middle exillary line 7 cm below and medial from right nipple. Dissection under Injury No. 7. It entered the right chest through 8th Intercast space and injured the lower pole of right lung and right lobe of liver. 8. An incised wound 1 cm x 1 cm on the left side of left upper chest 3 cm below from the mid exillary line. It entered the plural cavity and injured the left lung. Left plural cavity was full of blood. 9. An incised wound 1 cmx h cm on the left lower chest in line of left nipple. It passed through llth intercastle space and punctured the spleen. 10. 3 incised wound each 1 \ x to \ cm in an area of 10 cm 9 cm on front of abdomen onits left side. These wounds entered the paritonial cavity and injured the small intestine at three places. The paritonial cavity was full of blood. 11. An incised wound 3 cm x 1 cm x muscle deep on the outer side of right upper thing. 12. Four incised wound in an area of 15 x 11 cm on the front and lateral side of left middle thing 7 cm above from the left knee joint. These were muscle deep. 13. An incised wound 6 cm x 3 cm muscle deep on the inner side of left lower leg 8 cm below from the left knee joint. Vagina admits two fingers easily that i.e. habitual to inter-course. Uterus was empty. In his opinion the death was caused due to Injuries Nos. 6 to 10 which led to haemorrhage and shock. All the injuries were caused by sharp edged weapon and were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Time between injuries and death was immediate and between death and post-mortem was about 24 hours. 11. An incised wound 3^ cm x 1 cm on the right side of chest on its lower and outer part. Dissection under Injury No. 11: It remained bone deep. 12. An incised wound 2\ cm x 1 cm x muscle deep on front of right upper thigh. 13. Two abrasions 1 x 1 cm each just below the right knee joint. In his opinion, death in this case occurred due to cumulative effect of Injuries Nos. 2, 6, 9 and 10 which led to haemorrhage, shock and death. All the injuries were ante-mortem and were sufficient in ordinary course of nature to cause death. All the injuries were caused by sharp edged weapon. Time between injuries and death was immediate and between death and post-mortem was about 24 hours. The number of injuries show that both the deceased persons were killed brutally in a cold blooded manner. Although the sister of the appellant who was second wife of Fazal Karim deceased had forgiven the appellant and had waived her right of Qisas and Diyat and for that reason the appellant was convicted U/S. 302-C PPC by the trial Court for the murder of Mst. Kausar Parveen. The ocular account is furnished by independent persons having no enmity with the appellant. Their account is corroborated by medical evidence, motive and the recovery of blood stained Takwa (Toka) and also blood stained knife (Chhurri). This is not a case of mistaken " identity. Appellant is the only accused in this case. There is no question of substitution so there is no question of false-implication. We may also mention here that the eye-witnesses did not come forward to rescue the deceased as the appellant was armed with Takwa (Toka) and knife (chhurri) and due to fear they did not try to save the deceased. Had they tried to save the deceased they would have also met the same fate. In our view the conviction and sentence of the appellant a for the murder of Fa/al Karim U/S. 302 PPC is legal one and we maintain the same. Murder reference is replied in affirmative and death sentence awarded to the appellant is confirmed. However, the sentence of fine is set aside because there is no such provision in Section 302 PPC. In this view of the matter, we direct that appellant would pay Rs. 50,000/- (fifth thousand) as compensation to the legal heirs of the deceased which is mandatory provision as required U/S. 544-A Cr.P.C. However, the sentence of appellant U/S. 302-C PPC for the murder of Mst. Kasuar Parveen is converted into Section 311 PPC and he is awarded 14 years of sentence as 'Ta'zir' which is a legal sentence. With the above said alteration and modification the murder reference and appeal filed by the appellant are disposed of. Death sentence awarded to the appellant by the trial court is confirmed. (MYFK) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1124 Present: ABDUL GHANI SHAIKH, J. GHULAM SHABIR SOLANGI-Petitioner versus STATE-Respondent Criminal Revision No. 7 of 1998, heard on 17.4.1998. Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 514--West Pakistan Arms Ordinance (XX of 1965), S. 13-D—Surety Bond-Forfeiture of--Without prior notice-Status-Sessions Court before forfeiting surety bond had not served petitioner with notice and had directed him straightaway to deposit surety amount-Held : Such order of Sessions Court was not lawful and consequently, set aside-Revision petition accepted. [P. 1125] A Ahmed Alt Shaikh, Advocate for Petitioner. Mian Khan Malik, Addl. A.G. for the State. Date of hearing: 17.4.1998. judgment Through this revision applicant has challenged the order, dated 30.3.1998 whereby applicant has been ordered to deposit Rs. 30,000. The facts forming the background of this case are that the applicant had stood surety in a criminal appeal filed by the appellant Mirgul against his conviction and sentence under Section 13(d), Arms Ordinance recorded by Judicial Magistrate, Larkana. In the appeal the said appellant was allowed bail the Court of Sessions Judge, Larkana in the sum of Rs. 30,000 on 15.12.1996. The appellant was appearing before the Appellate Court but he kept absenting from 22.7.1997 and hence a notice was served upon the applicant on 15.3.1998 and on 30.3.1998 when he appeared before the Court of Sessions Judge, Larkana, he requested for time to offer reply to the notice but bis prayer was turned down and ordered to pay full bond amount i.e. Rs. 30,000. In these circumstances the applicant has approached this Court. ~" At the very outset the learned counsel urged a legal plea that the impugned order cannot be maintained as the condition precedent to issuance of notice under Section 514, Cr.P.C. viz. forfeiture of bond, has not been complied with by the learned Sessions Judge. His second contention was that the applicant was not afforded proper opportunity of showing ause against the action taken against him as on the very first date of hearing, the order of imposition of penalty was passed. I find force in both the contentions of the applicant's counsel. A perusal of Section 514, Cr.P.C. reveals that notice to a surety would follow the forfeiture of the bond. I have also gone through the diaries produced on record and find that the bond was forfeited and straightaway the applicant has been directed to deposit the amount. Learned A.A.G. has contested this revision and supported the impugned order but he was unable to supplement his contention with any reported decision on the point. Having been persuaded with the legal position stated above, I had allowed the revision vide short order, dated 17.4.1998 and above are the reasons in support of said order. (AAJS) Revision petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Karachi) 1125 (DB) Present: muhammad roshan essani and SAsmuoDiN ahmed, JJ. NOORUDDIN alias HAJI MEMON-Applicant versus STATE-Respodnent Criminal Revision Application No. 18 of 1998, decided on 14.5.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 514-Surety Bond-Forfeiture of--Challenge to~0ffence under Control of Narcotic Substances Ordinance (XLA/H of 1995), S. 9--Accused disappeared, his bail bond was forfeited and notice was issued under S. 514, Cr.P.C.--More than two years time was given to surety, but he failed to produce accused-Court ordered surety to pay amount of surety bond within specified period-Bail was nothing, but change of custody because accused was placed in custody of surety and he was responsible for production of accused in Court, if and when so ordered or required-In case of non-appearance or non-production of accused before Court, surety - would be liable to penalty under law-Accused, who was facing charge under Narcotics trafficking, belonged to upcountry whereas petitioner/surety was resident of city and was of different caste and community and nothing was on record which could suggest that surety stood surety out of benevolence or on humanitarian grounds as claimed by surety-Surety himself had stated in his application that nonappearance of accused was beyond his control-Order of Trial Court which was neither harsh nor illegal but was just and proper, would not call for any interference. [Pp. 1127 & 1128] B (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 514--Bail"Surety--Status--Bail is nothing but change of'custody as after grant of bail and release from custody, accused is placed in custody of surety and he is responsible to produce him in court if and when so ordered or required. [P. 1127] A Mr. Nisar Ahmed Durrani, Advocate for Applicant Mr. Ghulam Nabi Soomro, Addl. A.G. for the State. Date of hearing: 14.5.1998. judgment Muhammad Roshan Essani, J.--The facts leading to the present criminal revision application are that applicant Nooruddin alias Haji by caste Memon stood surety in the sum of Rs. 50,000 and executed such bond on 8.12.1995 for accused Zahir Shah, who was sent up under Section 9 of Control of Narcotics Substance Ordinance, 1995 in the Court of Special Judge, Control of Narcotic Substance, Hyderabad, vide Crime No. 56 of 1995 of Police Station Bhitai Nagar, Hyderabad. The accused Zahir Shah later on disappeared and his bail bond was forfeited by the trial Court on 21.5.1996 and a, notice under Section 514, Cr.P.C. was issued to the applicant. In response to the said notice the applicant/surety appeared before the trial Court and sought time for producing the accused and for submitting reply to the said notice. He sought various adjournments on this ground and ultimately on 28.4.1998, when the matter came up for the same purposes, before the trial Court, he did not appear and sent an application whereby he repeated the same request which was declined by the trial Court and no further time was allowed to him and he was ordered to pay Rs. 50,000 of the surety bond executed by him within 15 days of the service of order. The learned counsel for the applicant/surety has contended that impugned order whereby it is ordered that the applicant should pay the entire amount of bond i.e. Rs. 50,000 is harsh, illegal and against the principles of natural justice and equity; that the applicant stood surety for absconding accused out of benevolence and upon humanitarian grounds and not for monetary gain or personal benefit; that the applicant/surety made hectic effort to locate the absconding accused and he went upto Peshawar in order to find him out his efforts failed and he was unable to find out his whereabouts; that the non-appearance of accused is beyond the control of applicant/surety; that the action under Section 514, Cr.P.C. would not be initiated against the surety when notice issued to accused, is served upon him and in response to it he appears before the trial Court. It is contended that the impugned order is, therefore, liable to be set aside. We regret, we cannot agree with the contentions of the learned counsel. The absconder accused Zahir Shah was sent up in a case of drug trafficking in which applicant stood surety before the trial Court. It has become a general practice that persons involved in drug trafficking usually abscond after grant of bail. Bail is nothing but change of custody, as after the grant of bail and consequent release from custody, accused is placed in the custody of the surely and he is responsible to produce him (accused) in the Court if and when so ordered or required. In case of non-appearance or nonproduction of the accused before the Court, the surety is liable to penally , under law. In the case in hand, admittedly, the accused Zahir Shah, who was facing charge under Narcotics Act belongs to up-country. The surely is resident of Hyderabad and is of different caste and community. There is nothing on the record which may suggest that applicant stood surety out of benevolence or on account of humanitarian grounds. It is the duty o the surety to trace out the accused and produce him before the Court and if in that regard he went to Peshawar in search of the accused is no ground for discharge from penalty provided by law. Moreover, no proof in this respect has been placed on record. The bare word of applicant is not sufficient and there is no documentary or other proof. This contention has, therefore, no force. There is no provision of law nor any citation has been quoted by the learned Advocate wherefrom it could be deducted that action under Section 514, Cr.P.C. could only be initiated against the surety, when notice issued against the accused is served upon him in response thereof he appears before the Court. This contention is patently misconceived. Obviously the question of proceeding against a surely would arise only when the accused evades legal process and does not appear in Court. Moreover, the trial Court provided ample opportunity to surety for producing the accused in the Court and for filing the reply of notice under Section 514, Cr.P.C. Admittedly, more than two years time was given to the surety but he failed to produce the accused. The applicant himself has stated in his application that nonappearance of accused is beyond his control, therefore, the order of the trial Court cannot be termed to have been passed in haste or that it was passed without proper opportunity having been provided to him. Under the law a surety under takes a solemn obligation. As held by the Honourable Supreme Court in Mehmood Alt Qasoori v. The State PLD 1963 SC 478 when a person is admitted to bail he is released from the custody of the official" of the Court and is entrusted to that of persons known as his surety. He undertake to produce him in Court whenever required. When a person chooses to act as surety for another accused of such heinous offence as drug trafficking he does so at his own risk. There is little humanitarian involved such person in our view does not deserve any sympathy. The order of forfeiture bond and payment of the entire amount of Rs. 50,000 in the peculiar facts of this case is neither illegal nor unjust. For reaching the above conclusion we are forfeited by the decision in the case of Iftikhar Ahmed v. The State reported in 1989 PCr.LJ 1918 and Jamroz Khan v. The State reported in 1990 SCMR 1313. The impugned order is neither harsh nor illegal but it is just and proper order which does not call for any interference. By short order, dated 14.5.1998, we dismissed this revision application in limine and these are the detailed reasons therefor. (AAJS) Revision application dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 1128 Present sardar muhammad raza khan, J. MUHAMMAD SALIM-Applicant versus STATE-Respondent Criminal Misc. Application No. 290 of 1998, decided on 10.9.1998. (i) Criminal Procedure Code, 1898 (V of 1898)- —-S. 497--Bail--Grant of--Prayer for--Offence of Zina (Enforcement of Hudood) Ordinance (VH of 1979), S. 5/10 read with Pakistan Penal Code, 1860 (XLV of 1860), S. 329-Lady co-accused had made a confession before Magistrate to the effect that about 8/9 months back she was subjected to rape by accused and gave birth a baby but she kept quiet under threat to her life and serious damage to the family honour-Girl had, with utmost promptitude, involved accused in the matter without any apparent motive for false charge and her medical report had not controverted her stand-Accused was, prima facie, linked with commission of offence which fell within prohibitory clause of S. 497(1), Cr.P.C.-Bail refused. [Pp. 1130& 1131] A&C (ii) MedicalJurisprudence- —Important discussion about delivery and baby birth-See page [P. 1130] B Saeed Akhtar, Advocate for Applicant. Manzoor Ahmad, A.A.G. for the State. Date of hearing: 10.9.1998. judgment This is a bail application filed by Muhammad Saleem alias Seema who is charged under Section 5/10 of Ordinance VII of 1979 read with Section 329, P.P.C., vide F.I.R. No. 150 dated 12.4.1998 of Police Station Khalabat Township Haripur. He is refused bail by the forums below. 2. Masood All, A.S.I. Police post Swabi Maira, on 12.4.1998 at 7.00 hours was on round of the area when at Gandaf one Akram postman of Swabi Maira informed him that a newly born baby girl is found abandoned in lands known as Nikiban within the limits of village Kalingar. The A.S.I. reached the spot and found the baby suspended between life and death. A young girl named Mst. Shamim Bibi was standing nearby but seeing the police she started running towards the village. She was apprehended and medically examined, wherefrom she gave the indications of having given birth to a child. 3. Apprehended on 12.4.1998, she was produced before the Magistrate on 13.4.1998 where she is said to have had confessed her guilt and stated that about 8/9 months back she was subjected to rape by the present petitioner Muhammad Saleem alias Seema. That she kept quiet under the threat to her life and serious damage to the family honour. 4. Learned counsel for the petitioner assailed the confessional statement on the ground firstly that it was not inculpatory and secondly that it had been backed out by the girl through a subsequent similar statement before the Magistrate on 21.5.1998; changing her version and charging three different persons namely Malak Daud, Haji Riaz and Gul Shehzad for the commission of rape. It is a novel situation where confessional statements under Section 164, Cr.P.C. are recorded whenever it is convenient to any one. This procedure remains yet to be justified at trial. For the present stage, I believe that the immediate version after arrest and the first confessional statement, dated 13.4.1998 should be considered to be one under Section 364, Cr.P.C. and also to be one which is genuine for the present stage. Let the remaining controversies be settled at trial. 5. The learned counsel further alleged on the strength of my own judgment in 1998 MLD page 1195, PLD 1996 Lah. 295, 1987 PCr.LJ page 980 and 1992 PCr.LJ page 242 that the confessional statement in hand, of as the petitioner is concerned, is a statement of the co-accused which might be likely to be used against the co-accused under Article 43 of Qanoon-e- Shahadat Order, only, when it is proved at trial and that as the trial stage has not yet come, the petitioner in view of the aforesaid rulings be released on bail. The argument appears to be logical at the first expression but I really feel confronted in my mind with altogether different approach to the present case. It may be kept in mind that the present confession, dated 13.4.1998, as such, is an exculpatory confession where the girl Mst. Shamim Bibi claimed to be a victim of rape. Such exculpatory statement does not amount to a confession in the legal sense of the term at the first place but remains at the same time a statement of a person before a Magistrate. Let it be left to be decided at the trial as to how the prosecution would wriggle out of this statement which at the face of it and from the day one js and has been exculpatory. 6. The second dynamic aspect is that in normal crimes if it is held that a certain confessional statement is exculpatory, it can be thrown out of consideration as being no confessional statement at all but in the instant case it cannot be ignored in the above manner because in a crime of sex the deponent happens to be a victim as well. If it cannot be dubbed as a confessional statement, what is the harm in treating it as a statement of victim and that too for the present stage. I would, therefore, take such statement of Mst. Shamim Bibi to be statement of victim for the present stage and would observe that it was delayed not because of any calculation but because of threat and also of the involvement of family honour. There is nothing on record to give an indication that the girl had motive to falsely implicate the present petitioner. To appreciate the matter in the light of subsequent statement dated 21.5.1998 would not at all be proper because many things can happen during the prolonged period of 38 days. 7. The learned counsel for the petitioner assailed the confessional statement of Mst. Shamim Bibi from another angle as well, to the effect, that in the statement she alleged that the rape was committed upon her 8 or 9 months prior to the statement whereas from the medical examination of the girl it transpired that the baby given birth to was only of 20 weeks i.e. 5 nths and hence the possibility cannot be excluded that about 8/9 months before she must have been subjected to sexual intercourse by someone else. I am afraid, this argument is not at all genuine. In the medical examination the lady Doctor has given the fund height of the uterus to be of about 20 weeks. This was but obvious because the girl was being examined after the 3 delivery and hence the fund height of uterus had subsided to become equal to 20 weeks instead of matured .height of 36 weeks. The expression of 20 weeks in the medical report does not at all mean that the baby delivered was of 5 months. The babies of 5 months are not normally delivered unless there is a case of abortion or miscarriage whereas from the post-mortem examination of the baby it stand finally determined that it was a still born baby. The F.I.R., in view of post-mortem, gives a contrary impression that the baby was alive at the time of recovery. Still babies are never alive and if at all alive, it be considered of mature age. 8. What I want to bring home is that the expression fund height being of 20 weeks during examination after delivery does never mean that the baby was of 20 weeks. How could the age of a delivered baby be determined from the fund height measured about one days after delivery. I hold that at least for the present stage the expression about commission of ina 8/9 months before the statement does not stand controverted by the medical report of the girl. She has with utmost romptitude involved the present petitioner without any apparent motive for false charge and, hence, e is, prima facie, linked with the commission of offence that falls within the prohibitory clause of Section 497, Cr.P.C. The rulings relied upon by the earned counsel pertain mostly to cases not involving the co-accused which was likely to be the victim as well. Only 1987 PCr.LJ page 980 involved the circumstances where Zina was committed but from the plain reading of the short ruling aforesaid it appears that the girl therein had made an inculpatory confession about Zina whereas the one before me is exculpatory, the bail application is rejected. (AAJS) Bail refused.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 1131 Present: jawaid nawaz khan gandapur, J. AZIZULLAH-Petitioner versus STATE-Respondent Cr. Misc. Bail Application No. 623 of 1998, decided on 24.8.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail~Grant of~Prayer for-Pakistan Penal Code, 1860 (XLV of 1860), S. 409 read with Prevention of Corruption Act (II of 1947), S. 5(2)-- Tentative assessment of available record did not reveal that reasonable grounds existed to believe that accused had not committed offence he was charged with-Order of Special Court being neither perverse nor arbitrary was not liable to be interfered with-Bail refused. [P. 1133] A Mr. Muhammad Jamshed Khan and Abdul Qayyum Sarwar, Advocate for Petitioner. ., Mr. Tasleem Hussain and Kh. Azhar Rasheed, Asstt. A.G. for the State. Mr. Muhammad Saddiq Haider Qureshi, Advocate for the Complainant/Respondent No. 2. Date of hearing: 24.8.1998. order Vide F.I.R. No. 30, dated 11.10.1992 in Police Station, Crime Branch, F.I.A., Peshawar the petitioner has been charged for having committed an offence punishable under Section 409, P.P.C. read with Section 5(2), Prevention of Corruption Act. 2. After having failed to pocure bail from Mr. Muhammad Irshad Khan, the Special Judge (Central) Anti-Corruption and Immigration, N.W.F.P., Peshawar , the petitioner has now come to this Court for the redress of his grievance. 3. Mr. Abdul Qayum Sarwar, Advocate and Mr. Muhammad Jamshed Khan, Advocate, learned counsel for the petitioner, Mr Muhammad Saddiq Haider Qureshi, Advocate learned counsel for the complainant/Respondent No. 2 and Kh. Azhar Rashid learned Assistant Advocate-General for State/Respondent No. 1 present and heard. Record of the case perused. 4. It would be necessary to reproduce the relevant portion of the impugned order here, vide which the Special Judge had refused to enlarge the petitioner on bail, in order to find out as to whether or not the Special Judge had taken into his consideration the conditions laid down in section 497, Cr.P.C.. for refusing bail. The relevant portion of the said order is:- "I have given may anxious thoughts to the arguments advanced for and against the bail petition in the light of the material placed on record. The accused petitioner named above is directly charged in the first information report. The matter regarding misappropriation of a huge amount was reported by the Head of his department. The accused petitioner remained posted as Incharge of C.S.D. Shop at P.A.F. Base Risalpur during February, 1991 to July, 1991 as is evident from the handing/taking over certificate dated 26.7.1991. The accused petitioner vide said certificate placed on record handed over the charge of his duty as Incharge of C.S.D. Shop P.A.F. Risalpur on 24th July, 1991 to his successor Said Ghani. As such the arguments of the learned defence counsel that the accused petitioner did not remain posted as Incharge of C.S.D. Shop P.A-F. Base Risalpur during February, 1991 to July, 1991 is without any force and substance. The record further reveals that a Court of enquiry consisting Major Anwar Hussain, Deputy Zonal Manager North C.S.D. as President and Safdar Hussain Shah and Muhammad Tahir Manager C.S.D. Shop Nowshera and Risalpur was also conducted. The said three officers after thorough scrutiny into matter fixed the responsibility of the misappropriated amount on the accused petitioner and it was recommended that the said amount be recovered from him. In such state of affairs the arguments of the learned defence counsel that no specific misappropriated amount was shown by the prosecution also holds no ground. The accused petitioner is charged for misappropriation of huge amount while abusing his official position as public servant. The offence under Section 409 falls within the restrictive provision of Section 497, Cr.P.C.. The accused petitioner remained fugitive from law for a considerable period and he was declared as proclaimed offender by my learned predecessor in Court." 5. From a plain reading of the impugned order as well as from the perusal of the relevant record, I am convinced, in my mind, that the Special Judge has duly taken into consideration all the material facts of the case and after having done so has recorded a speaking order which of course is the result of proper application of mind. 6. Since the impugned order is neither perverse nor arbitrary, therefore, it is not liable to be interfered with. 7. Secondly, on a tentative assessment of the available record it is not at all possible from me to come to the conclusion that reasonable grounds to exist for believing that the petitioner has not committed the offence charge with. Accordingly, I hold that the discretion exercise by the Special Judge, in refusing bail, has been exercised legally/judicously and is not liable to be set aside. 8. Thirdly, the reason given by the Judge for not granting bail to the petitioner are quite, sufficient/convincing and I do not want to upset the impugned judgment. 9. If an authority is needed reliance can be placed on the case mentioned below:-- "Ijaz All Khan v. The State 1968 SCMR 1168 (1). The petitioner who is charged with the offence of murder has been refused bail by the Courts below from which he now seeks leave to appeal. On examining the facts appearing in the order of the learned Judge in the High Court, we are inclined to the view that the conditions laid down in Section 497, Cr.P.C. for refusing bail to the petitioner were amply fulfilled in this case. The petition is dismissed." 10. Accordingly, I am of the view that this bail petition is without any substance and is, therefore, dismissed. (AAJS) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1133 Present: ghulam nabi soomro, J. ALI JAN-Appellant versus versus STATE-Respondent Misc. Application No. 498 in Cr. Appeal No. 66 of 1998, decided on 28.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 426(l)"Sentence--Suspension of-Prayer for-Pakistan Penal Code (XLV of 1860), Ss. 452/34, 307 & 326-Two relatives of accused were already in jail-Question whether accused had absconded on account of his guilt or innocence could be determined in main appeal-Keeping in view of old age of accused, identification in dark ight and quantum of sentence awarded to co-accused, sentence of accused was suspended-Bail allowed. [P. 1135] A Mr. Qurban Mi H. Chohan, Advocate for Appellant. Mr. Mukhtar Khanzada, Advocate for State. Date of hearing: 28.7.1988. ' order Appellant Ali Jan seeks suspension of sentence and his release on bail in a case of attempt to life in which he has been convicted by the Court of learned Additional Sessions Judge as follows:-- (a) Under Section 452/34, P.P.C. sentenced to suffer R.I. for 3 years and fine of Rs. 3,000. (b) Under Section 307, P.P.C. sentenced to suffer R.I. for 5 years and fine of Rs. 5,000. (c) Under Section 326, P.P.C, sentenced to suffer R.I. for 3 years and fine of Rs. 3,000 , All sentences passed against the appellant are to run concurrently. Mr. Qurban Ali Chohan learned Advocate for the appellant has argued that the appellant is an old man between 75 and 80 years of age and he is also infirm and that this was the main ground before the trial Court for released the appellant on bail during the trial. Appellant's N.I.C. shows his age as 75 years. The learned trial Court has stated the appellant in para. 45 of the judgment, to be above the age of 70 years. The learned counsel has further urged that the appellant has also got a good case on merits. He has stated that besides grounds of age and infirmity, there are other lacunae in the prosecution case viz. the incident took place during the dark hours of the night but no source of light has been disclosed by the complainant. It is urged that maximum sentence awarded to the appellant being 5 years only. It is not known when the appeal will be taken up for regular hearing and till then the appellant shall suffer hardships inside jail. The learned counsel has relied upon PLD 1997 SC 1, 1997 Crl.LJ 220 and two unreported decisions of this Court, dated 27.7.1995 and 3.10.1997 in Criminal Appeal No. 35 of 1995 (Hyderabad) re: Wahid Bux v. The State and Criminal Appeal No. 54 of 1997 re: Peru and others v. The State respectively; wherein the sentences were suspended and the appellants were released on bail after considering important points of evidence. Grounds of old age and infirmity, identification during the night hours and role of the appellant can be assessed and evaluated at the time of deciding the question of suspension of sentence. Learned counsel appearing for the State has stated that earlier appellant's two sons namely Achar and Amir All and nephew Ahmed were tried and convicted to imprisonment for a period which they remained in jail and that period of sentence was not beyond six months, he has stated that the appellant at that time was absconding and was put to trial after his arrest after about five years. The learned counsel has however not been able to controvert any of the assertions made by the learned counsel for the appellant. Mr. Khanzada does not deny that the appellant has been harshly treated inasmuch as the period of sentence in case of the appellant would not have exceeded the sentence passed against the co-accused of the appellant. I have considered the arguments advanced by the learned counsel for the parties and have also referred to the relevant pieces of evidence on the record. The complainant Shah Nawaz in his evidence before the trial Court recorded on 29.1.1990 has categorically stated that "we have compromised and forgotten our differences. It was dark night." Complainant in his evidence referred above does not disclose any source of light. Viewed in the light of aforesaid facts and circumstances that appellant's two sons namely Achar and Amir Ali and a nephew Ahmed were already in jail, whether the absconded being a guilty person is a question which may be determined in the main appeal. Abscondence may be equally consistent with guilt or innocence of the accused. Reference may be made to PLD 1976 SC 629. Keeping in view the old age of the appellant, identification in dark night and the quantum of sentence passed against the co-accused; the sentence passed against the appellant vide impugned judgment, dated 25.5.1998 was suspended and he was ordered to be released on bail by a short order, dated 10.7.1998. These are the reasons for the same. Miscellaneous Application No. 498 of 1998 in this Criminal Appeal No. 66 of 1998 stands allowed. (AAJS) Application allowed.

PL J 1999 Cr PL J 1999 Cr.C. ( Peshawar ) 1135 Present: jawaid NAWAZ KHAN GANDAPUR, J. SHER MUHAMMAD-Appellant versus STATE-Respondent Criminal Appeal No. 267 of 1997, decided on 15.6.1998. Pakistan Penal Code, 1860 (XLV of 1860)— —-Ss. 377 & 506-Appreciation of evidence-Complainant a 12/13 years boy had no motive to charge accused a 24 year young man falsely or to substitute him for real culprit-Occurrence having taken place in broad day, question of mistaken identity of accused did not arise-F.I.R. was promptly lodged-Accused had been apprehended soon after occurrence after giving a chase-Site plan had supported ocular version which was also corroborated by medical evidence-Sessions Court's judgment did not suffer from any illegality or material irregularity-Conviction and sentence of accused was upheld in circumstances-Appeal rejected. [P. 1137] A, B&C Mr. Muhammad Tehmash Khan, Advocate for Appellant. Mr. Kh. Azhar Rashid, Asstt. A.G. for the State. Date of hearing: 4.5.1998. judgment Appellant, namely, Sher Muhammad, stands charged for having committed sodomy with Gulistan a minor boy of about 13 years, at dagger point, an offence punishable under Section 377/506, P.P.C. In this respect F.I.R. No. 161 was duly registered at Police Station, Saddar, Kohat on 19.3.1995. 2. There is hardly any need to give the facts of the case in hand, in detail, because the same have been quite elaborately recorded by the Additional Sessions Judge, Kohat (Mr. Shakeel Azam Awan) in his judgment, dated 9.9.1997 and impugned before this Court. 3. The Additional Sessions Judge, Kohat after framing the charge against the appellant, recorded the statements of the prosecution witnesses on oath. The following were examined as P.Ws:- P.W. 1 Bashir Hussain, L.H.C. No. 852, P.W. 2 Javed, L.H.C. No. 1407, P.W. 3 Khurshid Khan, S.H.O. Saddar, P.W. 4 Qaisar Khan, A.S.I. P.W. 5 Gulishtan/complainant, P.W. 6 Dr. Rafiur Rehman. 4. When examined under Section 342, Cr.P.C. the appellant/ accused refuted all the allegations contained in the prosecution evidence and claimed innocence and false implication. He alleged that this father was on inimical terms with one Malik Abdullah Noor and that it was he who managed to involve/implicate him (appellant) in this case falsely so as to avenge himself. The appellant, however, did hot produce any evidence in his defence. He also refused to appear as his own witness and give statement on oath under Section 340(2), Cr.P.C. 5. Mr. Tehmash Khan, Advocate learned counsel for the appellant and Kh. Azhar Rashid, Assistant Advocate-General for the State present and heard. I have also gone through the record of the case carefully. 6. Admittedly, there is nothing on the file to suggest, even remotely, that there is/was any enmity or ill-will between the complainant (a. minor boy of 12/13 years) and that the appellant who happens to be a young man of 4 years of age. In the circumstances, no reason exists and none indeed has been pointed out by the learned counsel for the appellant that the complainant has either charged the appellant falsely or to have substituted him for the real culprit, if any. Similarly, the occurrence took place in broad day i.e. at 15.00 hours, therefore, the question of mistaken identity also does not arise. Then the matter was reported promptly to the Police with the 'result the appellant was chased and apprehended soon after the occurrence i.e., within a short span of time. 7. During the course of Police investigation, the site plan was drawn up by the Investigating Officer at the pointation of the complainant which supports the ocular version of the P.Ws. Similarly, the Shalwar of the accused along with swabs taken from the anus of the complainant were sent to the laboratory for chemical analysis. 8. • It would not look nice to give the details of the examination result given by Dr. Rafiur Rehman (P.W. 6) here. However, it would be sufficient to observe that according to him (PW. 6) sodomy was factually committed with the complainant by the appellant. 9. The Additional Sessions Judge, Kohat after having discussed the evidence produced before him at the trial, in detail, has given valid reasons for his conclusions and has recorded a speaking order. His judgment is neither arbitrary nor perverse and since no illegality or material irregularity has been committed by him, therefore, I see no justification to interfere with the same. 10. This appeal is without any substance and is accordingly rejected. (AAJS) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1137 Present: muhammad roshan essani, J. ACHAR and 6 others-Applicants versus STATE-Respondent Criminal Revision Application No. 4 of 1997, decided on 5.6.1998. i) Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 265-A & 403 read with Constitution of Pakistan (1973), Art. 13- Offence u/S. 302 of Pakistan Penal Code, 1860-Double jeopardy- Complainant being atisfied with investigation of Police, filed a direct complaint in Court-Court first took complaint case which ended in acquittal of all accused-Court after acquittal of accused in complaint case started trial against accused under registered F.I.R.-Accused moved application under S. 265-K, Cr.P.C. on ground that proceedings of prosecution case, after their acquittal in complainant case, were violative of provisions of S. 403, Cr.P.C. and Art. 13 of Constitution of Pakistan (1973), but application of accused, was dismissed by Court—Complainant, prosecution witnesses and accused were same in lodged F.I.R. and Private complaint-Prosecution evidence was fully assessed by Trial Court-Case was covered by Rule that "no man should be vexed twice for same offence"-Maxim 'Nemo bis punitur out vexatur proeodum delicto" was attracted in case—Fresh trial of accused for same offence, thus, would be violative of S. 403, Cr.P.C. and prosecution case could not end in conviction-High Court, accepted revision against judgment of Court below and quashed proceedings in prosecution case pending in Court- [Pp. 1139 & 1140] A PLD 1966 SC 708 re/: (ii) Maxim -—Nemo bis puniture out vexature proeodum delicto-No man shall be vaxed twice for the same offence or no one should be subjected to peril twice for the same offence. [P. 1140] A Mr. Ghulam Rasool Qureshi, Advocate for Applicant. Mr. Mukhtar A. Khanzada, Advocate for the State. Date of hearing: 28.5.1998. judgment This revision application is directed against the order, dated 31.10.1996, passed by Additional Session Judge, Tando Adam, whereby he has dismissed an application under Section 265-K, Cr.P.C., moved by the applicants/accused (hereinafter referred to as the "accused"). 2. Briefly stated the facts of the case are that on 16.7.1989, complainant Muhammad Umar lodged F.I.R. at Police Station Tando Adam, lleging therein that on the day of incident, they had a water rotation and his rother Mohabat had gone there. At 11.30 a.m. he alongwith his cousin uhammad Hassan and All Nawaz were also going to their lands. They saw all accused coming, who were duly armed with hatchets and T.«this They started causing hatchet and Lathi blows to his brother Mohabat, cousin Muhammad Hassan and Ali Nawaz. They raised cries, which attracted so many villagers and the accused made their escape good. Injured Muhammad Hassan later on died in the hospital and the F.I.R. was converted to Section 302,P.P.C. 3. The police after recording the F.I.R., started conducting investigation but the complainant being dissatisfied with the investigation, filed a direct complaint in the Court. 4. The direct complaint was entertained and the statement of complainant Muhammad Umar was recorded in the first instance by learned' Additional Sessions Judge, Shahdadpur on 17.8.1989. Later on, P.E. was held and ultimately, the direct complaint was registered and process was issued against the accused. The case was registered being Sessions Case No. 17 of 1990 (Muhammad Umar v. Achar and others). 5. The learned Trial Court keeping in view the principle laid down in the case ofNoorllahi v. The State PLD 1966 SC 708, wherein it was held that, the direct complaint was to proceed first As such, the direct complaint case was taken first and the same ended in acquittal on 5.10.1996. By the judgment all the seven accused were acquitted. The accused, namely Wahid Bux had expired during pendency of trial and the proceedings were abated against him. 6. Thereafter, the same Court started trial against accused in State case. The accused then moved an application under Section 265-K, Cr.P.C. on the ground that the proceedings of State case are violative of the provisions of Section 403, Cr.P.C. and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. The application under Section 265-K, Cr.P.C. was dismissed by the learned Additional Sessions Judge, Tando Adam, on 7.10.1996. The said order is impugned here in this revision application. 7. I have heard Mr. Ghulam Rasool Qureshi, learned counsel for accused and Mr. Mukhtar Ahmed Khanzada, appearing for the State. The latter does not support the impugned order. 8. The learned counsel for accused contended that the accused have faced the agony of trial of direct complaint case for about 8 years and they cannot be tried twice for same offence. The facts of Noor Illahi's case (supra) were quite different from the instant case and this would be a case of double jeopardy which is not allowed under Section 403(1), Cr.P.C. and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973; that the accused have been tried in a same murder case, the trial Court had examined all the "prosecution witnesses and ultimately acquitted all the accused in direct complaint case; that the instant case falls directly under the dictum of double jeopardy and Section 403, Cr.P.C. is attracted in this regard. 9. I will now turn up to Section 403, Cr;P.C. as the question is whether the accused can be placed in double jeopardy for the same offence. Subsection (1) of Section 403, Cr.P.C. is relevant and it reads as under:-- "403(1). A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence, shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which might have been convicted under Section 237." 10. I have carefully examined the F.I.R., direct complaint and judgment of acquittal, passed by learned trial Court. The complainant, prosecution witnesses and the accused are same in both the cases. The judgment of acquittal has come from competent Court and prosecution evidence is fully assessed by the Trial Court. 11. The instant case is covered by rule, the no man shall be vexed twice for the same offence and has its roots in the ancient maxim "Nemo bis puniture out vexature proeodum delicto" which means that no one should be subjected to peril twice for the same offence. It is a fundamental rule of criminal law that no one should be exposed to hazards of punishment and convicted twice for one and the same offence. This doctrine is enshrined deeply in the legal system of the countries. 12. In this context I am also fortified by the decision in the case of the State v. Hadi Bux and others 1981 SCMR 1008 and Bashir v. The State 1997 PCr.LJ 1771. 13. In view of the aforesaid legal position and the case-law cited above, I am of the considered view that the fresh trial of an accused for the same offence would be violative of Section 403(1), Cr.P.C. and the State case would not end in conviction. The counsel for State, therefore, has very rightly not supported the impugned order. 14. For the foregoing reasons, the revision application is accepted and State case being Sessions Case No. 311 of 1989 (State v. Din muhammad and others), pending the Court of Additional Sessions Judge, Tando Adam is hereby quashed. . Revision application allowed. (AAJS) Revision application accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1140 (DB) Present: abdul ghani shaikh and abul inam, J«I. ABDUL KARIM and others-Appellants versus STATE-Respondent Criminal Appeal No. 45 of 1995, heard on 26.2.1998. Pakistan Penal Code, 1860 (XLV of 1860)- —S. 307/353--West Pakistan Arms Ordinance (XX of 1965), S. 13-D-- Appreciation of evidence-Accused requested for leniency and reduction in sentence instead of pressing appeal on merits—Prosecution also conceded that it had no objection-None from prosecution side having sustained any injury, accused were entitled to lesser sentence—Accused who were in custody had served considerable period of sentence—Ends of' justice demanded that sentence of accused were reduced to one already undergone by them-Apellants shall be released forthwith if not required in any other case. [P. 1142] A Muhammad Afzal Soomro, Advocate for Appellants. Rashid Alt Shaikh, Advocate for Addl. A.G., Sindh for the State. Date of hearing: 26.2.1998. judgment Abdul Ghani Shaikh, J.--We had disposed of this appeal by a short order, dated 26.2.1998 and reduced the sentence to that already undergone by the appellants. Now we proceed to record the reasons for said' order. The three appellants have called in question judgment, dated 11.12.1995 passed by Special Judge, S.T.A., Larkana whereby the appellants were convicted under Section 307, P.P.C. and sentenced to suffer R.I. for ten years and fine of Rs. 10,000. each and in default to suffer R.I. for one year more. Appellant Abdul Karim was also convicted and sentenced under Section 13-D, Arms Ordinance to suffer R.I. for five years and to pay a fine of Rs. 5,000 in default further R.I. for six months. The prosecution case is based on the report lodged by S.H.O. Ghulam Kabir Dal on 30.4.1989 at Police Station Taluka Larkana. It is stated by the complainant that he alongwith subordinate staff reached the scene of offence in Crime No. 83 of 1989 where S.P. Larkana , D.S.P. C.I.A., S.I.P. Muhammad Moosa came as well and foot prints were tracked through tracker Kandal Khan. It also alleged that private persons, namely, Muhammad Chhutal, Roshan Ali, Haji Raza Muhammad, Imdad All also accompanied the police party. On the way S.H.O. Rafiuddin Khoso alongwith staff joined the tracking party. The police went on tracking the prints of the abductee and six abductors. However, at 11.30 a.m. in the forest firing started where the police party and the private persons saw six persons dragging the abductee and were firing at the police party. One of the dacoit was armed with klashnikov and two with rifles while two were armed with guns and one had a hatchet. The firing continued between the police and the abductors and it is stated that the abductee got released himself jind one culprit by name Abdul Karim was apprehended while the other fled away. A rifle and bullets were secured from Abdul Karim being without licence. One of the accused was identified to be Rafique. Coming back to the police station, the two F.I.Rs. were lodged, one for offence under Sections 307 and 353 and the other for offence under Section 13(d), Arms Ordinance. After completing the investigation, the police chaUaned the case showing Miral as absconder. The appellants pleaded not guilty to the charge and claimed trial. The prosecution adduced the evidence of P.Ws. Muhammad Yousif, Roshan Ali, Muhammad Chhutal, tracker Kandal, H.C. Bashir Ahmed, P.C. Ghulam Rasool, complainant S.H.O. Ghulam Kabir, Rafiuddin Khoso, Mashir Muhammad Usman and Magistrate Allahdino and A.S.I. Haji Hizbullah. The appellants in their statements have denied the allegations levelled against them and professed innocence. However, they did not examine any witness nor offered themselves to he examined under Section 340(2), Cr.P.C. After arguing at some length, the learned counsel for the appellants did not press the appeal on merits and requested for leniency and reduction in the sentence. Learned State Counsel also conceded that he had no objection if the sentence of the appellants was reduced and modified. Learned counsel further submitted that the jail roll of the appellants was called from the Superintendent, Central, Jail, Sukkur to look into the period of sentence served out by the appellants. The report is received which s as under:- Name Sentence served excluding remission Remission earned Unexpired portion of sentence. Abdul Karim Asghar Rafique 4 years 6 months Iday 5 years 5 months 14 day 5 years 9 months 8 day 3 years 3 months 18 days. 3 years 2 months 12 days. 3 years 2 months 12 days. 3 years 8 months. 11 days. 2 years 4 months. 4 days. 2 years 0 months. 10 days. This report is received on 15.9.1997 and to day it is 26.2.1998, thus, the period of 5 months is yet to be added to the period of sentence served out. It is the case in which the none front the prosecution side has sustained any injury and, in such circumstances, the appellants were entitled to lesser sentence. We have considered the submissions of the learned counsel for the appellants and feel that his request deserves consideration. The appellants are in custody and have served the sentence as stated above. We, therefore, feel that it will meet the end of justice if the sentences of the appellants are reduced to the one already undergone. The appellants shall be released^ forthwith if not required in any other case. (AAJS) Order accordingly.

PLJ 1999 Cr PLJ 1999 Cr.C . ( Karachi ) 1143 Present: all muhammad baloch, J. MUHAMMAD SHAHEED-Applicant versus STATE-Respondent Criminal Bail Application No. 447 of 1997, decided on 27.5.1997. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 497-- Bail~Grant ofr -Prayer for--Offence of Zina (Enforcement of Hudood ) Ordinance (VII of 1979), S. IQ- Nikah was performed but on objection of Mohllah people with regard to said Nikah , accused pronounced divorce-Subsequently on obtaining a Fatwa, accused remarried same woman—Allegations against accused were that said remarriage without intervening marriage was invalid and that spouses were guilty of offence under S. 16 of Offence of Zina (Enforcement of Hudood ) Ordinance, 1979-Status-Contention of accused was that first arriage having not been consummated, intervening marriage was not necessary-Two different Fatwas were in respect of said contention and it was to be ascertained as to which of two Fatwas were correct-Case of further inquiry, accused was released on bail. [P. 1144] A Shaikh Ghulam Sabir Niazi , Advocate for Applicant. S.M. Sayedain Zaidi , A.A.G. for the State. order The applicant Muhammad Shaheed is facing trial for offence under Section 16, Offence of Zina (Enforcement of Hudood ) Ordinance, 1979 in the Court of Sessions Judge, Karachi East. In short, the facts of the case are that applicant Muhammad Shaheed is a " Muazin " in a mosque .- He used to visit the house of the complainant to recite Verses from Holy Qur'an for the purpose of treatment and, thereafter, he developed intimacy with Mst . Asma , the daughter of the complainant lady. It is alleged that a Nikah was performed between the applicant and Mst . Asma but the Mohallah people raised objection on account of which the applicant pronounced divorce. Subsequently, on obtaining a Fatwa, the applicant remarried Mst . Asma . The allegations are that the said Nikah with Mst . Asma without the intervening marriage was. invalid and hence, they are guilty of offence under Section 16 of the Offence of Zina (E.O.H.) Ordinance, 1979. The learned counsel for the applicant has contended that the first marriage was not consummated, hence, the intervening marriage was not necessary. The learned counsel has relied on the Book. "The Code of Muslim Personal Law" (Vol. I) by Dr. Tanzeel-ur-Rehman and cited Section 121 of the said Code at page 464 which provides that in case the first marriage "" remains unconsummated, the second marriage with the same lady without the intervening marriage could be valid. Even otherwise, there are two Fatwas and the learned A.A.-G. has rightly contended that till it is ascertained as to which of the Fatwas is correct, the case of the applicant requires further inquiry. In these circumstances, I hold that the applicant is entitled to be released on bail as his case is of further enquiry. This application is, therefore, allowed and the applicant is ordered to be released on bail on his furnishing one solvent surety in the sum of Rs . 1 lac (Rupees one lac only) and P.R. Bond in the like amount to the satisfaction of the trial Court (AAJS) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Karachi) 1144 Present: muhammad roshan essani, J. GULZAR AHMED SHAIKH-Applicant versus M.N. SALAR and another-Respondents Cr. Misc. App. No. 181 of 1998, decided on 19.10.1998 . (i) Criminal Procedure Code, 1898 (V of 1898)- —-S. 561-A-Inherent jurisdiction u/S. 561-A Cr.P.C.--Scope--Powers under S. 561-A, Cr.P.C. being extraordinary in nature are -to be exercised sparingly with utmost caution and not as a matter of routine-­ Interference under such inherent jurisdiction is only justified when, on face of it, gross injustice was done to a party and no other efficacious remedy is provided under law-Inherent jurisdiction vested in High Court is neither additional nor alternative. [P. 1146] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 249-A, 265-K & 561-A-Quashing of proceedings-Remedy provided at different levels-Powers under Ss. 249-A, 265-K & 561-A, Cr. P.C. being co-extensive ordinary remedy has to be sought at lower level in first place. [P. 1146] B (iii) Criminal Procedure Code, 1898 (V of 1898)- . - S. 561-A~Quashing of private complaint-Prayer for-Trial Court after recording statement of complainant and holding preliminary inquiry found a prima facie case having been made out against accused and issued process to him-Evaluation of evidence was function of Trial Court and High Court in exercise of its inherent powers under S. 561-A, Cr.P.C. could not do so at such stage-Question of delay in filing complaint and its consequent effect on prosecution case could only be considered and determined by trial Court after recording evidence-Trial Court could also summon police men if their complicity in commission of offence was, prima facie, made out after recording evidence, [Pp. 1146 & 1147] C, D, E & F Mr. Zahid Hamid, Advocate for Applicant. Mr. Jawed Akhtar, Advocate for State. Date of hearing: 19.10.1998. order By this application under section 561-A, Cr.P.C. applicant/petitioner seeks following relief :-- "It is respectfully prayed in facts and circumstances that this Honorable Court may be pleased to admit this petition and after hearing the parties to quash the Criminal Complaint No. 899 of 1997, pending before learned IXth Additional Sessions Judge, Karachi (East), and pass such order as may be deemed just in order to secure the ends of justice and to acquit the applicant. 2. The brief facts of the prosecution case are that complainant is settled in England. He and his family members are British Nationals. They are living in Karachi as well as in England. Complainant and accused Tahir Amin were close friends and complainant used to look after his interest in" London. Subsequently, relations between them became strained and they parted their ways. In connivance with co-accused the accused Tahir Amin started harassing the complainant in order to extort money from him. Complainant is also running a concern know as "Overseas Education Service" at Karachi . Accused Tahir Amin managed with C.I.A. Police and got him arrested and implicated in a false case under Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979, relating to a car theft which was registered as Crime No. 341 of 1991 at Police Station North Nazimabad, Karachi . During his custody with C.I.A. Police a cheque of Rs. 35,000 was extorted from the complainant in the name of accused Tahir Amin which was encashed and his signatures are also obtained on plain papers. Subsequently, the complainant was let off under Section 169, Cr.P.C. The accused Tahir Amin, however, continued threatening the complaint and his family on phone and through letters, with the result that complainant developed heart ailment due to shock and tension and he was admitted in Agha Khan University Hospital, Karachi, where a pace-maker was fixed in his heart. The complainant was also treated at London and he is still on medication. 3. The learned IXth Additional Sessions Judge, Karachi (East) held preliminary enquiry brought the direct complainant on file and issued process against the applicant/accuse and co-accused. 4. I have heard Mr. Zahid Hamid, the learned counsel for the applicant/accused and Mr. Jawed Akhtar, learned counsel for the State. The latter has opposed the quashment of proceedings and stated that direction may be issued to the trial Court for early disposal of the case. I have perused the material placed on record. 5. The powers under Section 561-A, Cr.P.C. are extraordinary in nature and are to be exercised sparingly with utmost caution and not as a matter of routine. Interference under extraordinary jurisdiction is only justified when on the face of it gross injustice was done to a party and no other efficacious remedy is provided under law. The inherent jurisdiction vested in this Court is neither additional nor alternative. 6. The powers under Sections 265-K, 249-A and 561-A, Cr.P.C. are co-extensive. Therefore, ordinary remedy has to be sought at lower level in the first place. It appears that application under Section 265-K, Cr.P.C. was moved before the trial Court and it was dismissed but a copy of such order is not filed alongwith the present criminal miscellaneous application and it was not subsequently placed on record. 7. The contention of the learned counsel for the applicant that the case is false and concocted one; that the whole story is absurd and it cannot be believed; that the policemen are accomplice in the case but they did not figure as accused in the case and that the complaint was filed after long delay. It was thus, submitted the proceedings are liable to be quashed. These contentions are misconceived. 8. On receipt of complaint the trial Court recorded statement of the complainant under Section 200, Cr.P.C. and after holding preliminary enquiry as contemplated under Section 202, Cr.P.C. came to the conclusion that prime facie case was made out and issued process under Section 204, Cr.P.G. 9. It is not the function of this Court to weight, assessee or evaluate the evidence of prosecution or defence under its extraordinary jurisdiction at this stage. The evaluation of evidence is function of the trial Court. However, if on the face of it transpired that the case was filed with an ulterior motive to drag the accused and to cause harassment to him, the Court can quash the said proceedings in order to secure the ends of justice. The delay in filing a direct complaint cannot be held to be valid ground for the quashment of proceedings in every case. The question of delay and its consequent effect on prosecution case could only be considered and etermined by the trial Court at the time after the prosecution witnesses are examined and crossexamined. As regards the police men, who were not joined as accused by complainant, they can be summoned by trial Court and after recording evidence if it comes to the conclusion that prima facie complicity of the police men in commission of this offence was made out. Thus, these are hardly the grounds for quashment of proceedings at this stage. 10. The upshot of the above discussion is that the prayer for quashment of proceedings made under Section 561-A, Cr.P.C. is premature D and the application is, therefore, dismissed. 11. The trial Court is, however, directed to complete the trials within a period of six (6) months. It is open to the apph'cant if he so advised to file application under Section 265-K, Cr.P.C. after material evidence is recorded by the trial Court. 12. The observation made in this order are tentative in nature and the trial Court will proceed with the trial of this case uninfluenced by what has been observed herein above. (AAJS) Petition dismissed.

PL J 1999 Cr PL J 1999 Cr.C. (Karachi) 1147 Present; sabihuddin ahmed, J. MUHAMMAD ASIF MUMTAZ-Applicant versus STATE-Respondent Criminal Bail Application No. 415 of 1998, decided on 17.6.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 497-Bail--Grant of--Prayer for--0ffence u/S. 392/34 of Pakistan Penal Code, 1860-Offence though was alleged to have been committed in Main Bazir at 4.50 p.m., but no independent witness of locality had been cited as Mashir and no explanation for non-compliance with provision of S. 103, Cr.P.C. had been furnished by prosecution-In absence of recovery of any weapon from possession of accused and due to fact that alleged coaccused was never arrested, it could be safely assumed that matter required further inquiry-Bail granted. [P. 1148] A Mr. Muhammad Ikram Siddiqui, Advocate for Applicant Mr. Sharafat All Khan, Advocate for State. Date of hearing: 17.6.1998. judgment The applicant is charged with an offence under Section 392/34, P.P.C. on the allegation of snatching a motorcycle. According to the F.I.R. the informant Muhammad Siddiq came out on Main Road Bazar on motorcycle when two young boys stopped him and snatched away motorcycle by force on the point of arms, a Police Mobile was moving in the area and on cries and pointation of the informant the applicant and coaccused started riding on snatched motor-cycle were chased. The motor-cycle slipped and the applicant got injured and was arrested. His co-accused ran away. An application for bail was rejected by the Judicial magistrate and Illrd Additional Sessions Judge, hence this bail application has been preferred. Mr. Muhammad Ikram Siddiqui, learned counsel for the applicant contended that no identification parade was held, no weapons were recovered and that the requirement of Section 103, Cr.P.C. were not complied with. On the other hand, Mr. Sharafat Ali Khan, learned counsel for the State argued that the applicant was arrested red-handed at the pointation of the informant who also signed Mashirnama of arrest. In the circumstances, there was an adequate evidence against the applicant and he was not entitled to the concession of bail. I am not impressed by first contention of Mr. Muhammad Ikram Siddiqui and Mr. Sharafat Ali Khan appears right in contending that when the arrest itself was caused on the spot at the pointation of the informant no subsequent identification test was necessary. However, there appears substance in the contention that in the absence of recovery of an weapon from the applicant and the fact that the alleged co-accused was never arrested it could be safely assumed that the matter required further inquiry. Moreover, though the offence is alleged to have been committed in the Main Bazar at 4.50 p.m. no independent witness of the locality has been acted as Mashir and no explanation for non-compliance with the provision of Section 103, Cr.P.C. has been furnished. Mr. Sharafat Khan submitted that the Mashirnama is signed by the informant himself, but I do not think that this, would be sufficient compliance with the requirement of Section 103, which postulates independent evidence so as to exclude the possibility of false involvement. For the foregoing reasons, I would grant bail to the applicant upon furnishing solvent surety in the sum of Rs. 1,00,000 (Rupees one hundred thousand only) with P.R. Bond in the like amount to .the satisfaction of the trial Court. He will be released from custody if not required in any other case. All observations made above are tentative and will not prejudice the trial. (AAJS) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Karachi) 1148 Present ali muhammad baloch, J. RAFI DANISH-Applicant versus STATE-Respondent Criminal Miscellaneous Application No. 434 of 1996, heard on 10.11.1997. Criminal Procedure Code, 1898 (V of 1898)-- —S. 561-A~Proceeding--Quashment of-Prayer for-Offence u/S. 188 of Pakistan Penal Code, 1860-Allegations against accused were similar ones as were levelled against co-accused-Proceedings against co-accused having earlier been ordered to be quashed, rule of consistency required that application of accused for quashing of P.I.R. should also be allowed- Application allowed and proceedings were quashed. [P. 1149] A Sardar Muhammad Ishaque, Advocate for Applicant. Nemo for State. Date of hearing: 10.11.1997. judgment This is criminal miscellaneous application moved under Section 561- A, Cr.P.C. by applicant Rafi Danish, who is facing trial for an offence punishable under Section 188, P.P.C. The F.I.R. in which the applicant was challaned was registered on 23.4.1993 at Police Station Joharabad, Karachi Central (F.I.R. No. 202 of 1993) by A.S.I. Adil Naqvi of Police Station Joharabad. It was stated that r ™V, A.S.I. Adil Naqvi alongwith Police Constables Muhammad Asghar, Rao Akhtar, Nooruddin and others were performing their duties in the area when they found that 300 to 400 people had gathered near the House No. 494/8 of Altaf Hussain. They had gathered there as the M.Q.M. Chief Altaf Hussain was addressing the workers on telephone from London at about 10.11 p.m. The persons who had assembled there consisted of the activists of M.Q.M. comprising of Kanwar Khalid Younis, M.A. Jalil, Rashid, Akram, Muhammad Abid, Khawar, Anis, Amir and Rafiq Danish. The A.S.I. Adil Naqvi, in his F.I.R. further stated that the District Magistrate Central, Karachi had enforced provisions of Section 144, Cr.P.C. prohibiting the assembly of persons at one place and that these persons had assembled in violation of that order and thereby had committed an offence punishable ~? under Section 188, P.P.C. After registering such F.I.R. the present applicant amongst other accused were challaned to stand their trial in the Court of Sub-Divisional Magistrate, Liaquatabad, Karachi . This application has been moved by the learned counsel for the applicant contended that since the A.S.I., was not competent to register the F.I.R. for an offence punishable under Section 188, P.P.C. the police had no power to investigate the case and consequently the applicant cannot be legally convicted and the proceedings if allowed to continue before the trial Court will amount to abuse of the process of the Court. The learned counsel relied on an earlier judgment of this Court in Criminal Miscellaneous Application No. 251 of 1996, in which judgment a co-accused in the same case had moved this Court for quashment of the proceeding against him and the same were quashed on 29.10.1996. The copy of such judgment is on the record of this case. After considerings the arguments of the learned counsel I find that the allegations against the present applicant are the similar allegations as levelled against the co-accused Muhammad Inamul Haque (applicant in Criminal Miscellaneous Application No. 251 of 1996). Since the proceedings against the co-accused M. Inamul Hauqe, have earlier been ordered to be quashed for the detailed reasons given in the judgment, dated 29.10.1996,1 find that the rule of consistency requires that the present application be also allowed. Consequently, this criminal miscellaneous application is allowed and the proceedings against the application Rafi Danish, in the F.I.R. No. 202 of 1993 for an offence under Section 188, P.P.C. are quashed. It is worthwhile to mention here that it has been pointed out that so far no amendment in Section 195, Cr.P.C. had been brought and on that account the complaint had to be lodged by the District Magistrate or his superior officer to whom he was subordinate as provided in Section 195 Cr.P.C. (AAJS)

Application allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Karachi) 1150 (DB) Present: NAZIM HUSSAIN SIDDIQUI AND RAJA QURESHI, JJ. TAHIRUDDIN-Appellant versus STATE-Respondent Criminal Appeal No. 174 of 1995, decided on 2nd April, 1998. West Pakistan Arms Ordinance, 1965 (XX of 1965)-- —-S. 13-D--Kalashnikovs-Recovery of--Evidence--Appreciation of--Prosecution witness who had not supported prosecution case had not been declared hostile by prosecution-Mos/z/r of recovery had exonerated accused and no genuine- effort was made to secure attendance of other Mashir— Evidence of Investigating-Officer, also did not inspire confidence- -Recovery was not effected in way it was alleged-Case against accused being extremely doubtful, no conviction could be based upon and accused was entitled to acquittal. [Pp. 1151 & 1152] A & B 'Mr. Shahadat Awan, Advocate for Appellant. Sheikh Azizur Rehman, Advocate for State. Date of hearing: 2.4.1998. judgment Nazim Hussain Siddiqui, J.--This appeal is directed against the judgment, dated 14th September, 1995 of Mr. Kazi Muhammad Akbar, the then learned Judge, Special Court No. 1 (S.T.A.), Karachi, whereby the appellant was convicted under Section 13(d), Arms Ordinance, 1965, and was sentenced to suffer R.I. for seven years and to pay a fine of Rs. 50,000 or in default thereof to suffer R.I. for one year. The case of the prosecution, in brief, is that on 18th February, 1995 at about 10.50 a.m. opposite House No. 4/1107, Liaquatabad, Karachi, the appellant was found carrying two unlicensed kalashnikovs bearing Nos. 17039976 and 15106084, fourteen magazines with 1103 cartridges, open unlicensed 7 mm rifle bearing No. SAG-25670 alongwith 3029 cartridges and one unlicensed T.T. Pistol with 3 live bullets and the same were recovered from his possession by Investigating Officer Pervaiz Akhtar in the present of Mashirs Badar .Iqbal and Jan Muhammad. On completion of investigation, the charge-sheet was submitted before the concerned Court. Necessary charge under Section 13(d), Arms Ordinance was framed against the appellant. At trial, the prosecution examined Mashir Jan Muhammad and Investigating Officer Parvaiz Akhtar. The appellant in his statement, recorded under Section 342, Cr.P.C., has denied the prosecution's allegations and claimed to be innocent. He has claimed that he was involved in this case due to his political affiliation with M.Q.M. in the year 1989. Neither he examined himself on oath nor produced any witness in defence. On assessment of the evidence brought on record, learned trial Judge convicted the appellant and sentenced him as mentioned earlier. It is contended on behalf of the appellant that learned trial Judge has failed to appreciate the evidence of the witnesses particularly of Mashir Jan Muhammad, who has not implicated the appellant in the commission of this offence. Learned counsel also argued that the trial Court based the conviction of the appellant on the evidence of the Investigating Officer, who is also the complainant of this case. Mashir Jan Muhammad in his deposition, stated that on 18.2.1995 at about 8.30 a.m. while he was going towards Liaquatabad No. 4 he had seen two boys, who were arrested by the police and the Rangers. According to him, one of them disclosed his name as Tahiruddin. He stated that since long period has passed, therefore, he could not identify the boy, who had disclosed his name as Tahiruddin. He deposed that he was informed by Rangers and the police personnel that they had recovered said arms and ammunitions from the possession of said Tahiruddin. He had seen said arms and ammunitions there. He stated that he could not say if the arms and ammunitions shown to him in Court were the same or not, which he had seen at the scene of offence. He also stated that said arms and ammunitions could not be carried by a person in a bag on his shoulder. He was not declared hostile by the prosecution. His evidence is part and parcel of the prosecution case. He has not supported the prosecution. He did not say that said arms and ammunitions were recovered from possession of the appellant. The other Mashir namely, Badar Iqbal was not examined by the prosecution, as his whereabouts were not known. Investigating Officer Parvaiz Akhtar, in his cross-examination, impliedly admitted that said arms and ammunitions could not be carried by one person. We have examined the prosecution evidence and are of the view that it is extremely doubtful and no conviction can be based upon it. Mashir of recovery has exonerated the appellant and no genuine effort was made to secure the attendance of other Mashir. The evidence of the Investigating Officer also does not inspire confidence. He handled the case in a casual manner. It appears that recovery was not effected in the way it was alleged. Under the circumstances, the appellant is entitled to acquittal. Accordingly, we allow this appeal, set aside the impugned judgment and acquit the appellant. He is on bail and his bail bond stands discharged. (AAJS) Appeal allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1152 Present: abdul hameed dogar, J. ABDUL RAZZAQ alias BABOO-Applicant versus STATE and 2 others-Respondents Criminal Misc. Application no. 417 of 1997 and Misc. Application No. 8401 of 1998, decided on 20.8.1998. Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 561-A, 107, 112 & 117"Proceedings--Quashment-Prayer for» Contention that dispute between him and respondent was basically of civil nature and that taking criminal proceedings against him, was not justified-Parties had already compromised-Order under S. 112, Cr.P.C. was passed after two days of arrest of accused and no reason had been shown for such delay-Proceedings, of quashment were not resisted by prosecution-Proceedings quashed. [P. 1153] A Ch. A. Rashid, Advocate for Applicant. Mr. Ghulam Mustafa Lakho, Advocate for State. Date of hearing: 20.8.1998. order Applicant seek quashment of proceedings under Sections 107 and 117, Cr.P.C. initiated against applicant in the Court of learned S.D.M., Arambagh Karachi South. The brief facts of the case of prosecution are that report was lodged by S.I. Shaukat Awan of Police Station Kharadar, Karachi , to the effect that applicant and one Yousuf son of Haji Muhammad were on disputed terms over the matter of shop and usually quarrel and abuse each other. They also gave an application in writing as such proceedings under Sections 107 and 117, Cr.P.C. were initiated against both of them finding an apprehension of breach of peace. The same were challaned before the Court of Respondent No. 2. Thereafter, an order under Section 112, Cr.P.C. was passed on 17th of November, 1997 and the applicant was remanded to judicial custody. It is contended .by Mr. Ch. A. Rashid, learned counsel for the applicant, that in fact there happens a dispute over the purchase of shop in between the applicant and the above Yousuf and basically it is a case of civil nature and taking of these proceedings against the applicant is not justified. According to him the applicant was arrested on 15.11.1997, whereas order under Section 112, Cr.P.C. was passed on 17.11.1997 and no reason has been shown as to why it was delayed for two days as such his remand to judicial ""Vcustody is illegal. He next contended that even otherwise the parties have compromised and there exists no dispute in between them. Mr. Ghulam Mustafa Lakho, learned counsel for the State, concedes and raised no objection to the quashment of proceedings. According, the proceedings pending against the applicant before the Court of learned S.D.M., Arambagh, Karachi South are quashed and Criminal Miscellaneous Application No. 417 of 1997 is allowed. (AAJS) Application allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Karachi) 1153 Present abul inam, J. MOHAN MOTILAL and. another--Applicants versus STATE and 2 others-Respondents Criminal Misce. Application No. 410 of 1994 and Misc. Applications Nos. 3339 and 3481 of 1997, decided on 17.2.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 145, 146 & 561-A-Property (Shree Guru Nanak Darbar)--Disputed-- Attachment and sealing-Quashment-Prayer for-Assistant Commissioner and Sub-Divisional Magistrate after recording evidence of parties ordered that premises in dispute (place for prayers) would continue remain attached and sealed under S. 146, Cr.P.C. till such time contesting parties got their respective title decided from a Civil Court of competent jurisdiction-Such order was set aside.by Additional Sessions Judge and Trial Court was directed to deseal premises—Such order of Additional Sessions Judge had been sought to be quashed by petitioners-Evidence on record had shown that proceedings under Ss. 107 and 117, Cr.P.C. were instituted against both groups by Police and it was also difficult to form opinion from evidence on record as to which of two rival parties was in possession of premises in dispute two months prior to its sealing under order of Assistant Commissioner or Sub-Divisional Magistrate-Parties were already litigating to establish their respective title before Civil Court-Duty was cast upon Magistrate under S. 146, Cr.P.C. to attach property until a Competent Court had determined rights of parties in case-Magistrate was unable to satisfy as to which of party was in ' possession of premises in dispute at time of passing order under S. 145, Cr.P.C. or two months prior to that-None of parties having been successful in proving its possession on date of passing of order under S. 145 Cr.P.C. for sealing premises in dispute or two months prior to passing of same, only order which could be passed, was to let premises in dispute remain sealed under S. 146, Cr.P.C.~Order Additional Sessions Judge, was quashed, in circumstances. [P-1157] A Mr. MM. Pirzada and S.A Ghaffar, Advocate for Applicants. Mr. arain Das C. Motiani, Addl. A.G. for State. Sardar M. Ishaque, Advocate for Respondents Nos. 2 and 3. Date of hearing: 17.2.1998. order By this order I propose to dispose of Criminal Miscellaneous Application No. 410 of 1994 which has been filed by Mohan Moti Lai and another under Section 561-A, Cr.P.C. for quashment of the order, dated 27.6.1994 passed by the learned 1st Additional Sessions Judge, Karachi South. , Brief facts of the case, as per the applicants, are that Shree Guru •Nanak Darbar situated at Aram Bagh, Karachi (hereinafter referred to as "the 'Darbar"), was established in the years 1915 and Hindus of Karachi and other parts of the country used to offer their prayers (Piyapat) and celebrate their religious ceremonies at the Darbar. According to the applicants, Hindus of Sindh believed in the teachings of Bab Guru Nanak Saheb and holy book of Sikhs Shree Guru Granth Saheb also. The Hindus, for the management and administration of the Darbar, formed a Shewa Mandli (Panchayat) and the applicants are its office-bearers and they alongwitir other Hindu families are residing permanently in the premises of the Darbar whereas not a single Sikh Family is residing therein. According to the applicants, in January, 1993, the Respondents Nos. 2 and 3 who originally were Hindus and later on converted to Sikh religion, started visiting the Darbar and started disturbing the religious functions and prayers of Hindu community with mala fide intention to usurp the property of the Darbar which, according to the applicants, is a Hindu Mandir. In the month of June, 1993, the Respondents Nos. 2 and 3 took law in their hands and assaulted the members of Hindu community including the applicants, as a result whereof the applicants and Respondent No. 2, on report being lodged with the police, were challaned under Sections 107 and 117, Cr.P.C. in the Court of area Magistrate. The Respondents Nos. 2 and 3 thereafter, all of a sudden, put lock on the door of worship hall of the Darbar and stopped Hindus from performing their prayers. The applicants, apprehending danger to their lives and their place of worship, lodged a report with the police whereupon the S.H.O., Arambagh Police Station submitted a report under Section 145, Cr.P.C. before the Assistant Commissioner and S.D.M. City, Karachi South who, after observance of due legal formalities on 21.7.1993, passed an order for sealing the Darbar and the parties were directed to file their respective written statements. After recording evidence of the parties the Assistant Commissioner and S.D.M. City, Karachi South, vide his order, dated 7.2.1994, held that "the Darbar Saheb premises shall continue to remain attached and sealed under Section 146, Cr.P.C. till such time the contesting parties get their title decided from a Civil Court of competent jurisdiction". The said order was challenged by Respondents Nos. 2 and 3 by way of Criminal Revision Application No. 15 of 1994 before the Sessions Judge, Karachi South and the same was ultimately decide by the 1st Additional Sessions Judge, Karachi South vide his order, dated 27.6.1994 wherein the order passed by Assistant Commissioner and S.D.M. City, Karachi South, was set aside and the trial Court was directed to deseal the Darbar to enable the Respondents Nos 2 and 3 and. other Sikhs to offer their prayers. It is this order, in revision, of the learned 1st Additional Sessions Judge, Karachi South, which has been challenged by the applicants under the present criminal miscellaneous applications. I have heard the learned counsel appearing for the applicants, Respondents Nos. 2 and 3 and Mr. Narain Das C. Motiani, learned Additional Advocate-General, Sindh, who has appeared for the State. Contention of the learned counsel for the applicants is that the Darbar, right from its inception, has been a place of worship for Hindus and its management has always remained vested with the members of Hindu community. It was only after conversion of Respondents Nos. 2 and 3 from Hindu faith to Sikh faith that they, with the intentions of grabbing the properties attached with the Darbar, started creating undue harassment to Hindu community and in furtherance of achieving this objective, the Respondents Nos. 2 and 3 forcibly dispossessed the applicants from the Darbar. Further contention of the learned counsel for the applicants is that oral as well as documentary evidence produced by the applicants before the Assistant Commissioner and S.D.M. City, Karachi South, sufficiently demonstrate that the applicants and members of their community were in possession of the disputed premises ever since its inception and have been offering their prayers and celebrating their religious festivities in he Darbar whereas the respondents have failed to produce any oral as well as documentary evidence except the statement of Respondent No. 2 to prove that the Darbar was ever a Gurdwara meant for performing prayers by Sikh community. In this background contention of the learned counsel for the applicants is that the possession of the Darbar should have been restored to the applicants or in the alternative the order passed by the Assistant Commissioner and S.D.M. City, Karachi South, should have been maintained in the impugned order. On the other hand learned counsel appearing for Respondents Nos. 2 and 3 has contended that the order passed by the trial Court was not challenged by the applicants, no F.I.R. and/or complaint in respect of dispossession, as alleged by the applicants, was lodged/filed by the applicants and as such the impugned order cannot be challenged by the applicants by way of this criminal miscellaneous application. In this regard, reliance has been placed by the learned counsel on the case of Mirza Abdul Razzak v. . BarkatAli and others 1985 SCMR 1235. I have carefully examined the judgment cited by the learned counsel for the Respondents Nos. 2 and 3. In the cited case it has been held by,the Honourable Supreme Court of Pakistan that the Magistrate on satisfaction jurisdictional requirements is required to decide "any and which of the parties was at date of order" in possession of the property and the magistrate is expressly precluded from examining "merits of claims of any such parties to a right to possess subject of dispute". It has further been held by the Honourable Supreme Court in the cited case that words "may restore to possession the party forcibly and wrongfully dispossessed" used in Section 145(6), Cr.P.C. are, prima facie, enabling and permissive in nature empowering the Magistrate to pass an order restoring possession and word "may" can never mean "must". In my opinion, in the judgment cited by the learned counsel for the Respondents Nos. 2 and 3, the Honourable Supreme Court of Pakistan had laid down perimeters of .powers of a Magistrate which are exercisable by him under Section 145(4)(6) of Cr.P.C., and I am unable to persuade myself to understand as to how the cited judgment in the given set of circumstances of this case is helpful to the contentions raised by the learned counsel. Mr. Narain Das C. Motiani, learned Additional Advocate-General - has taken me through the evidence of the parties recorded by the Assistant Commissioner and S.D.M. City, Karachi South, and has contended that the oral and documentary evidence led by the applicants goes to demonstrate that the applicants were in possession of the Darbar and were forcibly dispossessed by Respondents Nos. 2 and 3 on 18.7.1993. The learned Additional Advocate-General has, however, contended that in view of imminent breach of peace the order passed by the Assistant Commissioner and S.D.M. City, Karachi South, for remaining the Darbar under seal till such time that the parties get their title decided from a Civil Court is a proper order and the learned 1st Additional Sessions Judge, Karachi South, fell in error in setting aside the same and desealing the Darbar for offering prayers by Respondents Nos. 2 and 3 and other members of Sikh community. I have given my careful consideration to the arguments advanced by the learned counsel appearing for the parties and the State and have persuade the oral as well as documentary evidence brought on record by the contesting parties. From the evidence on record it is evident that there has been dispute, scuffles and fights between the two sect of religious groups in the past over the possession and right to offer prayers in the Darbar and proceedings under Sections 107 and 117, Cr.P.C. were instituted against both the groups by the Police. Furthermore, from the evidence brought on record, it is difficult to form an opinion as to which of the party was in possession of the Darbar two months prior to its sealing under the order of the Assistant Commissioner and S.D.M. City, Karachi South, from the record it is also established that the parties are already litigating to establish their respective title before a Civil Court. Under Section 146, Cr.P.C. a duty is cast upon the Magistrate to attach the property until a competent Court has determined the rights of the parties in case the Magistrate is unable to satisfy as to which of the party was in possession of the disputed property at the time of passing the order under Section 145, Cr.P.C. or two months prior to that. In my opinion none of the parties have been successful in proving its possession on the date of passing of the order under Section 145, Cr.P.C. for sealing the Darbar or two months prior to the passing of the same and, as such, the only order which could be passed, is to let the Darbar remain sealed under Section 146, Cr.P.C. The upshot of the above discussion is that the impugned order dated 27.6.1994 passed by the learned 1st Additional Sessions Judge, Karachi South is set aside/quashed and the order, dated 7.2.1994 passed by the Assistant Commissioner and S.D.M. City, Karachi South, is maintained. Accordingly, this criminal miscellaneous application is allowed. Since by this order I have held that the premises, the Darbar, shall remain sealed till such time the parties get their title decided by a Court of competent civil jurisdiction. M.A. No. 3339 of 1997 which is for return of articles lying sealed m the Darbar cannot be allowed and, as such, the same stands dismissed. In so far as M.A. No. 3481 of 1987 is concerned, the same has served its purpose and is hereby dismissed as infructuous. (AAJS) Application allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. (Karachi) 1158 Present: RANA BHAGWAN DAS, J. ALI AKBAR-Applicant versus STATE and 2 others-Respondents Cr. Misc. Applications Nos. 320 of 1995 and 103 of 1998, decided on 17.7.1998. (i) Criminal Procedure Code, 1898 (V of 1898)- —S. 561-A--Inherent powers of High Court-Scope-In law it is a jurisdiction of limited scope and cannot be utilized where there is other express remedy provided by Cr. P.C.--It is well settled that in exercise of inherent jurisdiction under this section High Court can neither exercise powers of a Court of appeal nor can interfere with process of investigation in relation to a cognizable offence-Power vested in High Court could be involved to give effect to any order under code or to prevent abuse of process of any Court or otherwise to secure ends of justice-Ends of justice necessarily means not justice abstract sense or justice administered by agencies other than Courts- [P. 1159] A & C (ii) Criminal Procedure Code, 1898 (V of 1898)- —-S. 561-A»Proceeding"Quashment--Prayer for-Pakistan Penal Code (XLV of 1860), S. 409-Prevention of Corruption Act (II of 1947), S. 5(2)— FJ.Rs. had been lodged against accused which were yet to be investigated according to law and procedure provided thereunder—Case was neither one of abuse of process of Court nor a case where High Court should intervene to secure ends of justice—Interference with process of investigation at such stage might itself amount to abuse of rocess of Court which must be avoided at all costs-Petitions for quashing of F.I.Rs. were consequently dismissed. [P. 1160] B Mr. Rasool Bux Umar, Advocate for Petitioner. Mr. Naimatullah, J. Qureshi, Advocate for District Agricultural Supply Officer, Hyderabad (in Cr.M.A. No. 320 of 1995). Agha Khuda Bux, Advocate for A.A.G. for the State. Date of hearing: 17.7.1998. order This order shall dispose of aforesaid two criminal miscellaneous applications filed under the provisions of Section 561-A, Cr.P.C. seeking quashment of F.I.R. in Crime No. 1 of 1995 registered by Anti-Corruption Establishment Hyderabad and .F.I.R. No. 33 of 1997 registered by Anticorruption Establishment Dadu against the applicants on a charge under Section 409, P.P.C. read with Section 5(2) Act II of 1947. 2. Applicants are employed at Sub-Sale Centre Saeedabad and j«- Piyaro Goth respectively in the Organization established as Sindh Agriculture Supplies Organisation under the provisions of SASO Act X of 1973. 3. In fact only F.I.Rs. have been registered against the applicants employed in SASO and deemed to be public servants within the meaning of Section 21 of the Pakistan Penal Code, by reason of Section 20 of SASO Act, 1973. In F.I.R. No. 1 of 1995 applicant AM Akbar was arrested by Anti- Corruption stablishment and released by the Court of Special Judge Antirruption Hyderabad with regard to applicant Muhammad Azam, it is averred that Anti-Corruption police Dadu was making efforts for his arrest on the charge of criminal misappropriation and defalcation. Indeed prayer in both the applications is for quashment of proceedings arising out of above said F.I.Rs. but the learned counsel at the hearing consumed lot of valuable Court time on the premises that cases had been sent up before the Special Court which has no jurisdiction to proceed against the applicants for the reasons inter alia that the applicants are employed in an organization set up administered and controlled by the Provincial Government and not by Central Government It is equally a matter of great regret that even the learned counsel for SASO as well as the State did not point out this fact during the course of hearing and the arguments proceeded on the misconceived notion that the prayers were directed against the proceedings pending before a Court having no jurisdiction to proceed against the applicants. 4. After having examined the R & Ps and the prayer clause in both the applications I have arrived at a conclusion that in fact the applicants desire nterference of this Court in the exercise of inherent jurisdiction with the investigation of the crime allegedly committed by them. Jurisdiction under Section 561-A of the Criminal Procedure Code is of an extraordinary nature intended to be used only in extraordinary cases where there is no other remedy. In law it is a jurisdiction f limited scope and cannot be utilised where there is other express remedy provided by the Code of Criminal Procedure. It is well-settled that in the exercise of inherent jurisdiction under this section, the High Court can neither exercise the powers of a Court of appeal nor can it nterfere with the process of investigation in relation to a cognizable offence committed by an accused. View expressed in Malik Salman Khalid v. Shabbir Ahmed 1993 SCMR 1873 is that inherent power under Section 561-A should be rarely and sparingly invoked only in interest of justice so as to redress grievances for which no other procedure or remedy is available. Jurisdiction under Section 561-A is an extraordinary jurisdiction which cannot override the provisions of the Code but cases may arise where demand of justice requires immediate, real and substantial justice. Only in such circumstances the Court would be justified to exercise this jurisdiction to save a party from harassment and abuse of the process of Court. 5. In the present case only F.I.Rs. have been lodged against the applicants which would be duly investigated strictly according to law and the procedure provided in the Code of Criminal Procedure read with the provisions of Act II of 1947. In case there is no evidence against the applicants connecting them with the commission of the crime alleged against them or Investigating Agency comes to a conclusion that it is not a fit case for prosecution against the applicants under the special law the things shall come to an end. This is neither a case of abuse of process of Court nor a case where the High Court should intervene to secure the ends of justice. Any interference with the process of investigation at this stage may itself amount to abuse of process of Court which must be avoided at all costs. There is a direct case on the point i.e. Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 in which a Full Bench of the apex Court deprecated the action of this Court interfering with the process of investigation undertaken by the police. Referring to earlier decisions in the case of Sher Khan and others v. The State 1968 SCMR 62 and Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 Supreme Court reiterated the principle of law that the power given by Section 561-A, Cr.P.C. can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. Indeed the power vested in the High Court can be invoked to give effect to any order under the Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The ends of justice necessarily means justice as administered by the Courts and not justice in the abstract sense or justice administered by agencies other than Courts. 6. Ordinarily every case should be allowed to proceed according to law and resort to inherent powers of High Court should not be lightly made as this Would also circumvent due process of law. It is not the intention of law that in exercise of power under Section 561-A the normal course of trial before a Court of law should be diverted or the process of investigation hampered which would defeat the spirit of law. I do not think, there is necessity to refer to precedent cases yet for the sake of guidance, reference may be made to the cases reported as State v. AsifAli Zardari 1994 SCMR 798; Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275; Irshad Elahi v. Bashir Ahmed PLD 1997 Lah. 554; Yasin Wattoo v. Government of Punjab 1997 PCr.LJ 836; Abida Parveen v. State 1997 PCr.LJ 880 and Murid Hussain v. State 1997 PCr.LJ 124. 7. For the aforesaid facts and reason, I see no merit in both the iscellaneous applications which are devoid of any for and liable to dismissal. In view of misconception of facts as observed in the narrative of this judgment I do not feel inclined to refer to the cases cited by the learned counsel for the applicants. Accordingly both the applications are dismissed. (AAJS) Applications dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1161 Present: MRS. MAJIDA RAZVI, J. MUHAMMAD AZEEM--Applicant versus STATE-Respondent Criminal Bail Application No. 160 of 1998, decided on 18.5.1998. (i) Criminal Procedure Code, 1898 (V of 1898)- —S. 497~Bail~Grant of~Prayer for-Offences Against Properly (Enforcement of Hudood) Ordinance (VI of 1979), S. 17-No harm injury was caused to any one and it was merely an attempt of robbery which did not fall within prohibitory clause of S. 497, Cr.P.C.—Accused, in circumstances, was entitled to concession of bail. [P. 1163] C (ii) Words and Phrases-- —Black's Law Dictionary, page 1473 as under :-- "Terror-Alarm; fright; dread, the state of mind induced by the apprehension of hurt from some hostile or threatening event or manifestation; fear caused by the ppearance of danger-In an indictment for riot at common law, it must been charged that the acts done were 'to the terror of the people'." [P. 1162] A (Hi) Words and Phrases- -—Chamber's 20th Century Dictionary page 1335:-- "Terror, extreme fear, a time of, or Government by, terrorism; a - object of dread; one who makes himself a nuisance." [P. 1162] B Miss Mubina Suleman, Advocate for Applicant. Mr. Habib Ahmad, A.A.G. for State. Date of hearing: 18.5.1998. order This bail application has been filed on behalf of Muhammad Azeem/ accused who was arrested on 5.1.1997, in Crime No. 5 of 1997. The incident took place on 5.1.1997 at about 6.30 p.m. and the report was lodged on the same day at about 19-15 hours with Police Station New Town, Karachi (East), under Section 17(2), Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The brief facts as per F.I.R. are that on 5.1.1997, the complainant who is a taxi driver was in his taxi near Hasan Square when three young boys hired him and directed him to go to Bahadurabad. On the way when the taxi was slowed down one of the three boys took out his pistol and forced the taxi driver to go through and not to stop anywhere. However, he saw a police mobile of New Town Police Station and gave an indication with head lights that he is under trouble and as such the said mobile chased the taxi and encircled it. All the three passengers were arrested and a T.T. Pistol was recovered from the applicant and thereafter on the complaint of the taxi driver the F.I.R. 5 of 1997 was registered. However, the challan was submitted under Section 17(1) and not under Section 17(2) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The contention of the learned counsel for the applicant/accused is that the word "terrorism" has not been defined anywhere in the statute cept in Anti-Terrorism Act where the word "Terrorist act" has been defined and as such for the definition of the word terrorism one has to fall ack to the ordinary dictionary meaning. She relied on the meaning given in the Black's Law Dictionary, page 1473 as under:-- "Terror. Alarm; fright; dread, the state of mind induced by the apprehension of hurt from some hostile or threatening event or manifestation; fear caused by the appearance of danger. In an indictment for riot at common law, it must been charged that the acts done were 'to the terror of the people'." An element of offence of aggravated kidnapping, is any act which is done to fill with intense fear or to obarce by threat or force. Regers State Tex Cr. App.; 687 S.W. 2d337, 341." She also relied in Chamber's 20th Century Dictionary page 1335 for the meaning of the word "terror" as:-- "Terror, extreme fear, a time of, or Government by, terrorism; an object of dread; one who makes himself a nuisance." The next contention of the learned counsel for the applicant/accused is that under Section 17(1) minimum punishment has been provided as three years and without prejudice to her case since only an attempt was made to snatch the taxi and no harm was caused to the taxi driver/ complainant the accused is entitled to bail. It was further submitted that even if it is considered as an attempt of committing robbery under Section 393, P.P.C., the maximum sentence provided is of 7 years and, since, it was only an attempt, the maximum penalty cannot be awarded to the accused/ applicant. She relied on the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34, wherein it was observed as under:- "It is crystal clear that in bailable offences the grant of bail is right and not favour, whereas in right but concession non-bailable offences the grant of bail is ot grace. Section 497, Cr.P.C. divided non-bailable offences into'two categories i.e. (i) offences punishable with death, imprisonment of life or mprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in nonbailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception." The learned counsel further submitted that the accused/applicant is in jail since 5.1.1997 and has already passed more than one year in jail and even on statutory ground he is entitled to bail. Mr. Habib Ahmed, the learned A.A.G., concedes that it is a case of attempt to commit robbery which does not fall within the prohibitory clause of Section 497, Cr.P.C. I have heard both the counsel and have pursed the law and case-law relied upon by Miss Mubina Suleman, counsel for the applicant Admittedly, no harm/injury was caused to any one and as the learned A.A.G. has conceded it is an attempt of robbery and does not fall within the prohibitory clause. According to the accused/applicant he is innocencent and has been falsely implicated. Relying on the judgment of the Supreme Court and on the facts, I admit the accused to bail on furnishing security of Rs. 2,00,000 (Rupees two lacs only and P.R. Bond of the like amount to the satisfaction of the trial Court. (AAJS) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1163 Present: sh. abdur razzaq, J. GULABA JEE and another-Petitioners versus STATE-Respondent Criminal Misc. No. 176/B of 1997, decided on 29.5.1997. – Criminal Procedure of Code, 1898 (V of 1898)- —S. 497»Bail~Grant of-Prayer for-Offence u/S. 302/34 of Pakistan Penal Code, 1860-Only evidence against accused person was of extra-judicial confession, which had also been resiled later on-Accused was in judicial lock-up for more than one year and trial had also not so far started- Accused admitted to bail. ' [P. 1164] A Rqja M. Sohail Ifitkhar, Advocate for Petitioners. Ch. Javed Iqbal, Advocate for State. Date of hearing: 29.5.1997. judgment The petitioners stand charged under Section 302/34, P.P.C. vide F.I.R. No. 98, dated 24.4.1996 registered at Police Station Kot Sabzal, Rahimyar Khan, for committing murder ofMst. Sundari. 2. It is submitted by the learned counsel for the petitioners that the nly allegation against the present petitioners is based on extrajudicial onfession which also tands belied as a result of subsequent investigation, he report of which has been submitted on 1.1.1997. That the petitioners ere arrested on 19.6.1996 and since then are in judicial lock-up. That report regarding the cancellation of this case has been submitted on 1.1.1997 and this fact alone makes the case of the petitioners open for further inquiry. 3. On the other hand, bail application has been opposed by the learned counsel for the State on the ground that F.I.R. has been lodged promptly and the petitioners are nominated in the said F.I.R. 4. It is evident from the record that only evidence against the present petitioners is of extra-judicial confession which has also been resiled later on, as is evident from report, dated 1.1.1997. The petitioners are in judicial lock-up since 19.6.1996 and trial has also not so far started. 5. In the light of facts stated above, the petition is accepted and the petitioners are admitted to bail in the sum of Rs. 50000 each with two sureties each in the like amount to the satisfaction of the trial Court. (AAJS) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C . ( Karachi ) 1164 (DB) Present; kamal mansur alam and sabihuddin ahmed; JJ. MUNSIB KHAN-Applicant versus STATE-Respondent Special Bail Application No. 876 of 1997, decided on 27.8.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of~Prayer for-Suppression of Terrorist Activities (Special Courts) _Act (XV of 1975), Sched .-West Pakistan Arms Ordinance (XII of"1965), S. 13-A~Recovery of T.T. pistol with bullets- Allegation of~Neither any number of weapon was mentioned in F.I.R. nor in Mashirnama of recovery-Weapon, despite being unnumbered, was not sealed-- Mos/u'rnama having shown that weapon was Pakistan made, merely by describing it a T.T. Pistol would not make it an automatic or semi-automatic weapon-Weapon allegedly recovered from accused neither being automatic nor semi-automatic, same could not be covered by Schedule to uppression of Terrorist Activities (Special Courts) Act, 1975-Case of further inquiry-Bail granted. [P. 1165] A Mr. Mahmood A. Qureshi , Advocate for Applicant. Mr. Muhammad Saleem Samo , A.A.G. for State. Date of hearing: 27.8.1997. order Kamal Mansoor Alam , J.--According to the F.I.R. No. 85 of 1997, one unlicensed T.T. Pistol loaded with a magazine having four live bullets was recovered from the applicant on 13.3.1997. Neither any number of the weapon as mentioned in the F.I.R. nor in the Mashirnama of recovery. The learned A.A.G. admits that the weapon inspite of being unnumbered was not sealed. The Mashirmana shows that the weapon is Pakistan made, as such, merely by describing it as a T.T. Pistol would not make it an automatic or semi-automatic weapon. As such, for the present there seems no reason to accept that the weapon was automatic or semi-automatic therefore, to be covered under the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975. We, in these circumstances, consider this to be a case of further inquiry and accordingly allow this application and grant bail to applicant on his furnishing surety in the sum of Rs . 1,00,000 (Rupees one lac ) and P.R. Bond in the like amount to the satisfaction of the trial Court. (AAJS) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 1165 (DB) Present: rashid Aziz khan, C.J. and M. javed buttar, J. Mst. NASREEN BIBI-Petitioner versus STATE-Respondent Cr. Misc. No. I29/B of 1998, decided on 11.2.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Bail-Grant of-Prayer for-Prohibition (Enforcement of Hadd) Order (4 of 1979) Art. 3/4 read with Control of Narcotic Substances Act, 1997 (XXV of 1997), S. 9-A~Accused through was named in F.I.R., but was not arrested at spot-No evidence was available indicating that accused was owner of recovered heroin-It was yet to determine whether heroin so recovered belonged to accused or to somebody else-Case of further inquiry-Bail allowed. [P. 1166] A Mr. Riaz Hussain Malik, Advocate for Petitioner. Ch. Ashgar All Hinjra, Advocate for the State. Date of hearing: 11.2.1998. order Rashid Aziz Khan, C^.-Mst. Nasreen Bibi petitioner seeks bail | a case registered at District Sheikhupura for offences under Article 3/4 of . Prohibition (Enforcement of Hadd) Order (4 of 1979) read with Section 9-A, Control of Narcotics Substance Act, 1997 vide F.I.R. No. 737, dated 27.9.1997. Allegation against the petitioner is that first informant received secret information on 27.4.1997 that petitioner involved in the sale of narcotics in her house. In pursuance of the said information a raiding party was constituted. Before raiding Party could reach the house of the petitioner, she while throwing the plastic bag containing 550 grams heroine managed to escape from the other door of the house. 2. It was contended by the learned counsel for the petition that it has been more than 8 months yet the trial has not commenced. States that there is no evidence which could connect the petitioner with the recovery of alleged heroin. It is also asserted that petitioner is in jail with a sucking baby. Contentions were opposed. 3. We have heard learned counsel for the parties and gone through he file. Though petitioner is named in the F.I.R. but was not arrested at the pot. There is no evidence so far available on the file indicates that the petitioner was owner of the heroin recovered. According to the polic official , present with record, her husband is also involved in similar cases. In such circumstances, it becomes a case of further inquiry to determine whether the heroin so recovered belongs to the petitioner or somebody else. Therefore, application is accepted. The petitioner is allowed bail provided she furnishe bail bonds in the sum of Rs. 1,00,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of trial Court. (AAJS) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1166 Present: sabihuddin ahmed, J. SHAFIQUDDIN-Applicant versus STATE-Respondent Crl. Bail Application No. 2058 of 1997, decided on 5.1.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 497(1) 3rd proviso-Bail-Grant of--Prayer--Statutory delay-Ground of- Offences Against Property (Enforcement of Hudood) Ordinance (VI of 979), S. 17(3)--Accused was not named in F.I.R.-More than one year had passed and even charge had not been framed--Delay caused in trial was ot on account of accused-Accused was either acquitted or was granted bail in other cases registered against him-Contention that applicant was harged with 15 other offences and as such was desperate, dangerous and hardened criminal--In this regard nothing had been placed on record-Contention repelled-Bail granted. [P. 1168] A PLD 1990 SC 934 ref. S. Mahmood Mam Rizvi and Ms. Akhtar Return, Advocate for Applicant. Ashiq Hussain Mehar, Advocate for State. Date of hearing: 5.1.1998. order The applicant is charged with an .offence under Section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. According to the f.LR. lodged by one Major Irian Ahmad Khan on 12.8.1996 at about 4.30 a.m., four unknown youngsters entered into this house locked him and his family members in one room and robbed them of substantial amount of cash (local and foreign currency), substantial quantity of jewellery, household goods and other expensive things. The applicants were arrested on 26.11.1996 under F.LR. No. 100 of 1996 of Police Station Shahrah-e-Faisal, Karachi East. Learned counsel for the applicant has pressed this application on the ground of statutory delay alone and has contended that having remained in custody for more than a year the applicant is entitled to grant of bail as of right in terms of third proviso to subsection (1) of Section 497, Cr.P.C., and the law declared by the Honourable Supreme Court in the case of Moundar and others v. The State (PLD 1990 SC 934) and subsequent cases. The principles 'relating to grant of bail under the third proviso to Section 497, Cr.P.C. appear to be clearly settled through several precedents. After the expiry of one year in the case of offences not punishable with death and two years in those so punishable, an accused person is entitled to grant of bail as of right on the ground of delay in the trial of the case against him. Such bail, however, can be refused only if it is shown that the delay has been caused by the conduct of the accused himself or somebody acting on his behalf or that he is a hardened, desperate or dangerous criminal or involved in acts of terrorism. Learned counsel for the application contended, on the basis of the diary sheet of the trial Court, that but for a few adjournments for very short intervals obtained by the applicants for arguing his application for bail, delay in the prosecution of the case has been occasioned by the prosecution itself. He stated that despite the expiry of more than one year even charge has not been framed by the trial Court. Learned counsel for the State has not seriously disputed this position. He has, however, contended that the applicant is charged with 15 other offences and is as such a desperate, dangerous or hardened criminal. I am afraid the mere fact of the applicant's involvement in other cases would not render him to be treated as a desperate, dangerous or a hardened criminal. It is no doubt correct that if is could be shown by the prosecution that the allegations against him in the other cases are of such nature, which may prima facie show that he is a desperate, dangerous and a hardened criminal, the Court might be inclined to refuse him bail. However, neither that F.I.R., in those 15 cases nor any other material indicating that there are reasonable grounds to infer that the accused is a desperate, dangerous or a hardened Criminal have been placed on record. In the absence of any such material it is not possible to hold that the applicant falls within those exceptional categories of persons to might not be entitled to grant of bail by way of statutory rights. Leaned counsel for applicant has also contended that in none of the F.I.Rs. in the other cases he has been named personally and has in fact been granted bail or acquitted in most of these cases. However, in he circumstances I would direct that the applicant be released on bail subject to furnishing security in the sum of Rs. 2,00,000 (Rupees two lacs) with one surety and P.R. Bond in the like amount to the satisfaction of the trail Court unless required in any other case. (AAJS) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C . ( Peshawar ) 1168 Present: muhammad azam khan, J. FAQIR KHAN-Petitioner versus MUHAMMAD SAFEER and another-Respondents Criminal Revision No. 9 of 1998, decided on 30.10.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 514--Bail bond-Forfeiture of--Challenge to--Offence u/S. 302/34 of Pakistan Penal Code, 1860-Forfeiture of full amount of bond-­ Respondent stood surety for his uncle who was charged with effective firing at deceased-During proceedings of pre-arrest bail, accused jumped bail and abconded~One month's time was given to respondent to produce accused but he failed to do so-Magistrate ordered for deposit of full amount of Rs . 1,00,000-Amount was, however, reduced to Rs . 20,000 by Additional Sessions Judge--Status-No legal .embargo exists that the amount of bail bonds in full cannot be forfeited-Where an accused person had jumped bail, entire surety amount became liable to confiscation-­ Order of Appellate Court was set aside and order of judicial Magistrate restored. [Pp. 1171 & 1172] A Mr. Thair Jalil Usmani , Advocate for Petitioner. Mr. Saud Akhtar Khan, Advocate for Respondent. Malik Manzoor Hussain , Asstt . A.G. for State. Dates of hearing: 26 and 30.10.1998. judgment Faqir Khan son of Ghafar Khan caste Pathan , resident of Pind Jamal Khan, Tehsil and District Haripur brought the present revision petition against the order of the learned Additional Sessions Judge, Haripur who by his order, dated 4.3.1998 reduced the amount of Rs . 1 ,00,000 to Rs . 20,000 as surety amount executed by Muhammad Safeer son of Matioob Khan respondent in case F.I.R. No. 378, dated 24.11.1997 for offence under Section 302/34, P.P.C. of Police Station, Kotnajibullah . 2. The facts of the case are that Muhammad Safeer respondents alongwith one Kala Khan stood sureties for Muhammad Rafique his uncle who was an accused in the aforementioned case wherein he was directly charged for effective firing at the deceased. After the registration of the aforesaid case Muhammad Rafique accused applied for bail before arrest before the Additional Sessions Judge, Haripur and he was allowed pre-arrest bail. In that proceedings respondent Muhammad Safeer and Kala Khan stood sureties for Muhammad Rafique accused and executed bail bonds in the sum of Rs . 1 ,00,000 with two sureties. The case when came up for the confirmation of the bail, Muhammad Rafique accused jumped the bail and absconded by failing to appear before the Court. Upon the absence of the said accused the learned Additional Sessions Judge, Haripur vide his order, dated 3.10.1997 withdraw the orders of interim bail, forfeited the bail bond and directed the Judicial Magistrate. Haripur to proceed against the sureties in accordance with law. The learned Judicial proceed against the sureties in accordance with law. The learned Judicial Magistrate initiated proceedings Tinder Section 514, Cr.P.C . against the sureties, namely, Muhammad Safeer and Kala Khan. They were given time to produce the accused but they failed to do so. In the aforesaid proceedings Muhammad Safeer had requested the Judicial Magistrate that he may be given one month's time to produce the accused but he could not do so. Consequently, on 14.2.1998 in his statement before the Judicial Magistrate, Muhammad Safeer showed his inability in finality to produce the accused upon which the Judicial Magistrate was constrained to direct that he should deposit the bail amount of Rs . 1 ,00,000 or in default of which he was sentenced to six months 8.1. The other surety, namely, Kala Khan did not appear before the learned Judicial Magistrate, therefore, notice of his attendance was issued for 13.3.1998. Dissatisfied with the orders of the Judicial Magistrate, Muhammad Safeer preferred an appeal before the learned Additional Sessions Judge, Haripur wherein the challenged the propriety and validity of the judgment which he had impugned. The learned Additional Sessions Judge while passing the impugned order, dated 4.3.1998 has observed that there is no material on the record that Muhammad Safeer had stood surety for the accused for any monetary gain or that he had any hands or interest in the abscondence of the accused. Therefore, while taking a lenient view of the forfeiture of the order in respect of the amount of Rs , 1 ,00,000 he reduced the same to Rs . 20,000 or in default to undergo S.I. for two months. It is stated at the Bar that Muhammad Safeer could not deposit the reduced amount of Rs . 20,000 and he preferred to undergo months' S.I. which he has already exhausted. Feeling aggrieved of the orders of the learned Additional Sessions Judge Faqir petitioner has preferred the present revision petition. 3. I have heard the learned counsel for both the parties and the learned Assistant Advocate-General for State. The learned counsel for the petitioner argued that since Muhammad Rafique was the paternal-uncle of Respondent Muhammad Safeer who was charged for effective firing at the deceased had to face the consequences of murder, therefore, Muhammad Safeer was instrumental in providing a chance for the abscondence of the accused after they realized that there was aprima facie case available against him and his bail would not be confirmed. Learned counsel further contended that sufficient opportunity was given to the respondent to produce the accused but he failed to do so. The learned counsel for the petitioner also submitted that the learned Sessions Judge had taken a very lenient view of the matter as according to him the law in respect of the confiscation of bail . bond has now been changed by the superior Courts of the country. He, therefore, relied on Zeeshan Kazmi v. The State PLD 1997 SC page 267 wherein it has been observed : -- "Once an accused person jumps bail bond, the entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances. Courts in view of bleak scenario which has emerged, with the passage of time on account of the lack of respect of the rule of law, and because of the unprecedent continuous step inflationary tendency resulting in the loss of money value, should not show any leniency while forfeiting bail bond amount. Approach of Courts should by dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bond. The Court further observed in the aforesaid case, that; Surely was father-in-Law of the accused and, therefore, he was in a better position to produce the accused than a stranger. Surety was provided opportunities to secure attendance of accused but he failed. Supreme Court, in view of such legal and factual position, was pleased to order the forfeiture of the full amount of the bail bond ( Rs . 2 ,00,000 ). The learned Assistant Advocate-General also was of the view that in view of the changed circumstances and trend adopted by the Honourable Supreme Court leniency should not be adopted in cases of bail. He, therefore, relied on Abdul Bari v. Malik Amir Jan and others NLR 1998 ( sicj 344 in which there was a conflicting decision with regard to the same matter pending before the apex Court but after the matter was referred to the Referee Judge the majority decision was of the view that in cases of forfeiture of bond lenient view should be discourage and full amount shall be forfeited. The relevant portion of the judgment from page 345 is reproduced as follows : -- "Again the discretion in reduction of the amount of bail bonds to the extent of l/4th or l/5th is being taken in routine, although the power of determining the extent to which the penalty should be exacted should be reasonably exercised. In the context of deteriorating law and order situation prevalent in the country, the Courts should be conscious of the hazards of release of accused who are dare-devils like those in the present case to the knowledge of the sureties and then let them off at their own behest on forfeiture of mere 25% of the amount of bound. To our surprise, the learned Advocate-General who represented the interest of the State has also not looked into the background of the case in its proper perspective and had supported the impugned orders of the Court also in routine exhibiting dismaying indifference." 4. In he case in hand there are reason for Muhammad Safeer respondent to come to the rescue of his uncle, namely, Muhammad Rafique to facilitate his abscondence in a case wherein he was directly charged and which entails conviction on a capital charge through he was in a better position to produce him before the Court in lieu of his undertaking as surety. There is no legal embargo that the amount of bail bonds in full cannot be forfeited. In a case where an, accused person jumps bail bond ,, the entire surety amount becomes liable to confiscation. 5. As such I am inclined to determine that in the instant case the learned Additional Sessions Judge should not have taken a lenient view, Therefore, while accepting the revision petition I set aside the orders of the learned Additional Sessions Judge, dated 4.3.1998 in connection with the , reduction of the bail amount and restore the orders of the learned Judicial Magistrate, dated 14.2.1998. (AAJS) Revision accepted

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1172 Present: abdul hameed dogar, J. MUHAMMAD AFZAL and others-Applicants <• versus STATE-Respondent Crl. Misc. App. No. 49 of 1997, decided on 3.12.1997. Criminal Procedure Code, 1898 (V of 1898)- -—Ss. 195(l)(a) 144 & 561-A Pakistan Penal Code, 1860 (XLV of 1860), S. 188--F.I.R. regarding violation of order of District Magistrate passed under S. 144, Cr.P.C. was lodged by Deputy Controller of Buildings at Police Station concerned and no complaint was lodged under Section 195 (l)(a) Cr.P.C. either by District Magistrate himself or by person to whom he was subordinate-Status-Entire exercise was illegal and continuation of proceedings were abuse of process of Court because in view of provisions laid down in S. 195(l)(a), Cr.P.Ccomplaint in writing was to be lodged before Court of competent jurisdiction by District Magistrate whose order was violated or by some other public servant to whom he was subordinate-F.I.R. having been lodged by incompetent person, entire proceedings decked illegal, and quashed. [P. 1173] A Mr. Sardar Muhammad Ishaq, Advocate for Applicant. Mr. Habib Rashid, Advocate for State. Date of hearing: 3.12.1997. order Applicant seeks quashment of proceedings initiated on the basis of F.I.R. No. 184 of 1996 of Preedy Police Station under Section 188, P.P.C. pending in the Court of A.C. and S.D.M., Preedy, Karachi (South). The facts leading to the filing of this application are that on 6.8.1996 one Ayaz Khan, Deputy Controller of Buildings, Zone XVI, Karachi lodged the above case at the above police station stating therein that shop on Plot -^ No. 6/10-PR-2, Preedy were sealed on 11.6.1996 on the orders of the Prime Minister. On 4.8.1996 site was visited by the Assistant Controller of Buildings who found few of the seals broken and lodged the above case that the same has been done by violating the order under Section 144, Cr.P.C. imposed by District Magistrate. It also said that Mst. Sameena is the owner of the said shops. Mr. Sardar Muhammad Ishaq, counsel for the applicant attacked these proceedings on legal grounds and stated that in view of provisions laid down in Section 195, Cr.P.C. a Complaint in writing is to be lodged before the Court having jurisdiction by public servant concerned whose orders are violated under Section 144, Cr.P.C. or of some other public servant to whom he is subordinate. In this case according to the learned counsel an incompetent person has lodged F.I.R. as such the entire proceedings are illegal. In support he relief upon the case of Shah Muhammad Khan v. The State 1993 PCr. LJ 2306 and submitted that the proceedings may be quashed. Mr. Habibur Rashid counsel appearing for the State conceded with the arguments advanced by applicant's counsel and submitted that in view of the above legal position he has no objection to the quashment of the proceedings. F.I.R. regarding violation of the order of learned District Magistrate passed under Section 144, Cr.P.C. has been lodged by Aijaz Khan, Deputy Controller of Buildings, Zone XVI at Police Station Preedy and no complaint "^. is lodged either by District Magistrate himself of by person to whom he is subordinate. In sub circumstances in view of provisions laid down under Section 195(l)(a), Cr.P.C. the entire exercise is illegal and continuation of the proceedings are abuse of the process of Court. Consequently, this application is allowed and the proceedings are quashed. • (AAJS) Proceedings

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1173 Present: dr. ghous muhammad, J. KHALID TAQI--Applicant versus STATE-Respondent Criminal Bail Application No. 501 of 1998, decided on 3.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Bail--Grant of-Prayer for-Offence of u/S. 302/34 of Pakistan Penal Code, 1860-Bail rejected that accused was involved in 7 criminal cases and that alleged offences being of heinous nature, accused was habitual, desperate and hardened criminal-View taken by Trial Court was erroneous, because mere pendency of cases was no ground to treat him as habitual, hardened and desperate criminal-Bail granted. [P. 1174] A Sardar M. Ishaque, Advocate for Applicant. Agha Zafir, Advocate for State. Date of hearing: 3.6.1998. order The applicant/accused is involved in Crime No. 37 of 1992 registered at Police Station Jamshed Quaters, Karachi for the offences under Section 302/34, P.P.C. It is alleged that alongwith three other culprits they murdered deceased Shujaat All son of the complainant as alleged by her in the F.I.R. recorded on 13.2.1992. Neither the complainant nor anybody else saw the alleged incident. It is pointed out by the learned State Counsel that two culprits namely Naeem Sharri and Ayaz Ahmed have been murdered and Javed Langra has been shown as absconder in the challan. The applicant/accused was arrested on 15.5.1996 after lapse of more than 4 years. His bail application was rejected on merits by this Court on 16.3.1998. Thereafter, he repeated his bail application only on the ground of statutory delay as two years have passed and the trial has not concluded as yet. According to the learned defence counsel only the charge has been framed and no witness has been examined. The report obtained from the jail authorities indicate that the applicant/accused is involved in 7 criminal cases. His bail application was rejected by the learned trial Court solely on the ground that since he is involved in 7 criminal cases and the alleged offences are of heinous nature, therefore, he is habitual, desperate and hardened criminal. The view taken by the learned trial Court is erroneous and against the well-settled law. Mere pendency of cases is no ground to treat an accused as habitual, hardened and desperate criminal. Therefore, respectfully following the law laid down by the Honourable Supreme Court in Maunder and others v. The State PLD 1994 SC 934, Muhammad Rafiq v. The State 1997 SCMR 412, Ghulam Abbas v. The State 1997 MLD 1743 and Muhammad Ashraf alias Achoo v. The State 1990 ALD 635(1) the applicant/accused is admitted to bail in the sum of Rs. 1,00,000 (Rupees one lac) with P.R. Bond in the like amount to the satisfaction of the learned trial Court. J (AAJS) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1175 Present: abdul ghani shaikh, J. HAQ NAWAZ BHUTTO-Applicant versus STATE-Respondent Criminal Bail Application No. 101 of 1998, decided on 23.4.1998. Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 497 & 499—Bail bond-Cancellation of~Re-arrest of accused—Accused was granted bail on merits, but accused having failed to attend Court on one date of hearing, his bail bond was cancelled and he was remanded to custody, he voluntarily appeared in Court on adjourned date of hearing- Accused remained in custody for more than one month-Accused who had sufficiently been punished deserved concession of bail-Counsel appearing for prosecution had also no objection to grant of bail to accused-Accused was released on bail in circumstances. [P. 1176] A 1983 PCr.LJ 2600 ref. Muhammad Ayaz Soomro, Advocate for Applicant. Muhammad Ismail Bhutto, Advocate for State. Date of hearing: 23.4.1998. order Muhammad Ayaz Soomro, Advocate for Applicant has filed this application for grant of bail to applicant Haq Nawaz whose bail bond was cancelled on 14.2.1998 on account of his failure to attend the Court and was remanded to custody on adjournment date of hearing viz. 10.3.1998 and since then his is in custody. The learned counsel appearing for the applicant has argued that the Applicant was granted bail on merits and on 14.2.1998 he had failed to attend the Court on account of his illness and for that he had submitted application but that application was rejected and when he voluntarily appeared in Court on 10.3.1998 he was taken into custody and was remanded to jail. The learned counsel has urged that non-appearance of the Applicant on the date of hearing was neither intentional nor deliberate and further that he has remained in custody for a period of more than one month for absence of one date of hearing and thus he has been sufficiently punished. The learned counsel has also placed reliance on the case ofZaheer Ahmed v. The State in 1983 PCr.LJ 2600. Mr. Muhammad Ismail Bhutto, learned counsel appearing for the State has no objection to the grant of bail to the Applicant. As the applicant has remained in custody for more than one month and it appears that he has been sufficiently punished for his absence on one date of hearing viz. 14.2.1998. The Applicant now deserves the concession of bail. In view of the above circumstances and no objection by the State Counsel, it is ordered that the Applicant shall be released on bail subject to his furnishing one surety in the sum of Rs. 100,000 and P.R. Bond in the like amount to the satisfaction of Trial Court. This Criminal Bail Application No. 101 of 1998 stands disposed of. (AAJS) , Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1176 Present: muhammad roshan essani, J. MANZOOR ALJ-Applicant versus STATE-Respondent Criminal Transfer Application No. 9 of 1998 decided on 28.5.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 526-Transfer of case-Prayer for--Offence u/S. 302 of Pakistan Penal Code, 1860-Trial Court expressed that parties being closely related to each other, had patched up and were intentionally giving false evidence to save their relatives-Complainant/apph'cant in light of such expression of Trial Court apprehended that he had no hope of justice and he would not have fair or impartial trial by Trial Court and had filed application for transfer of case to other Court-Trial Judge, in his comments had not controverted nor denied his complaint/applicant had given false evidence by changing his version of F.I.R.-Trial Judge, in circumstances, had pre­ determined guilt of complainant/applicant without bis trial under S. 193, P.P.C. which created sufficient and genuine apprehension in mind of complainant/applicant that he would not have a fair and impartial trial in Court of Trial Judge-Case was fit one for transfer from file of Trial Judge concerned and to be transferred to another Court in circumstances. [P. 1178] B (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 193-It is well setteld that action under S. 193, P.P.C. (false evidence) is not to be taken against a party during proceedings of trial, but is to be taken after onclusion of trial so that case of either party may not be prejudiced. [P, 1178] A Mr. Allah Bachay Soomro, Advocate for Applicant. Mr. AliAzhar Tun io, Asstt. A.G. for State. Date of hearing: 28.5.1998. order By this application under Section 526, O.P.C. the applicant Manzoor Ali son of Muhammad Jagirian has sought transfer of Sessions Case No. 136 of 1997, State v. Ghai from the Court of Additional Sessions Judge, Sanghar to any other Court of competent jurisdiction. 2. The applicant is the complainant in the case F.I.R. No. 7 of 1997 lodged at Police Station Khadro, District Sanghar on 14.6.1997 against his brother Ghai Khan under Section 302, P.P.C. for having murdered the wife of the applicant/complainant. The trial of the said case in the Court of Additional Sessions Judge, Sanghar has commenced and it appears that the evidence of the applicant/complainant and one mashir Karam Ali has been recorded. The applicant is said to have resiled from the facts stated in the F.I.R. and has stated some other facts, while mashir Karam Ali is said to have not supported the moshirnama and he has stated that he was called at Police Station and his signatures were obtained at Police Station. The learned trial Court had issued notices under Section 193, P.P.C. to the pplicant as well as to the mashir Karam Ali and the trial Court is alleged to have expressed that they being related to each other have patched up and they are intentionally giving false evidence to save their relative. This has given apprehension in the mind of the applicant that he has no hope of justice and he will not have fair or impartial trial in the said trial Court. 3. This Court on 20.4.1998 called for the comments from the trial Court, which have been received on 8.5.1998. 4. In the comments, the learned trial Court has not denied to have uttered the above words, which have given apprehension in the mind of the applicant that he will not have a fair trial in his Court. The comments show that the learned trial Judge has assumed that the applicant/complainant has compromised with his brother and wants to save him. The learned trial Judge has stated: "Applicant/complainant has changed his version as stated in the F.I.R. by giving false evidence for which notice under Section 193, P.P.G. is issued against applicant/complainant Manzoor Ali and apprehending him for life for action has filed present transfer application." 5. In other words the learned Judge has pre-determined before the trial under Section 193, P.P.C. that the applicant has given false evidence and apprehending for life to action has filed present transfer application: 6. I have heard Mr. Allah Bachayo Soomro, learned Advocate for the applicant who has reiterated the same contentions as stated above and Mr. Ali Azhar Tunio, learned A.A.G. has raised no objection and conceded to the transfer of the case. 7. In the case of Muhammad Nawaz v. Ghulam Qadir and 3 others reported in PLD 1973 SC 327 the Honourable Supreme Court has observed: " It is of paramount that parties arraigned before Courts should have confidence in their impartiality. It is one of the important duties of a High Court to create and maintain such confidence, and this can be done only by ensuring that, so far as practicable, a party will not be forced to undergo a trial by a Judge or Magistrate whom he reasonable regards as being prejudiced him." 8. It is well settled that action under Section 193, P.P.C. is not to be taken against a party during proceedings of trial but is to be taken after j conclusion of the trial so that case of either party may not be prejudiced. 9. In the case of Mian Muhammad Rasheed v. The State reported in 970 SCMR 694 the Honourable Supreme Court transferred the case where tatement of witnesses provoked the Magistrate who remarked that "I should arrest him now" intending thereby to proceed against the accused under Section 476, Cr.P.C. The Honourable Supreme Court has observed that the Magistrate could have taken action under Section 476, Cr.P.C. at the conclusion of trial but was not justified in giving positive indication of his inclination during pendency of trial. 10. In the present case, the situation is almost similar as in the case of Mian Muhammad Rasheed (supra). The learned trial Judge in his comments has not controverted nor denied that he had not uttered the words attributed to him quoted above but, on the contrary, he has almost given his finding that the pplicant/complainant has given false evidence by changing his version of F.I.R. This means that the learned Judge has pre­ determined the guilt of the applicant without the trial of the applicant under Section 193, P.P.C. In my view this is the sufficient and genuine apprehension in the mind of the applicant that he will not have a fair and impartial trial in the Court of learned Additional Sessions Judge, Sanghar. 11. For all the reasons stated supra and considering the facts and the case law referred to above, I am of the considered view that it is a fit case for transfer from the file of the learned Additional Sessions Judge, Sanghar. 12. The upshot of the above discussion is that Criminal Transfer Application No. 9 of 1998 is allowed and Sessions Case No. 136 of 197 (State v. Ghai Khan) is withdrawn from the file of learned Additional Sessions Judge, Sanghar and the same is transferred to the Court of the learned Sessions Judge, Sanghar for disposal according to law. (AAJS) Application allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1179 (DB) Present: nazim hussain siddiqui and abdul hameed dogar, JJ. MUHAMMAD ALI-Applicant versus ABDUL JABBAR alias JABBAR LANGRA and another-Respondents Criminal Misc. Application No. 12 of 1998, decided on 9.3.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(1), 3rd & 4th provisos--Bail-Grant of-Prayer for—Statuotry period-Provision of S. 497(1), fourth proviso, Cr.P.C. controls third proviso of said section-Undertrial prisoner as a matter of right is entitled to bail if trial is not concluded within period prescribed in third proviso to S. 497, Cr.P.C. [P. 1180] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- -—Ss. 497(1), fourth proviso & 497(5)--Bail-Cancellation of--Prayer for- Contention that accused a hardened, desperate or dangerous criminal-­ Held : Opinion of Trial Court mattered and not report of Police Officer- Trial Court after having taken into consideration all circumstances, reached conclusion that accused was not a hardened, desperate or dangerous criminal-Application for cancellation of bail rejected. [P. 1180] B S. Mahmood Mam Rizvi, Advocate for Applicant. Mr. Sarfraz Khan Tanoli, Advocate for Respondent No. 1. Mr. Habib Ahmed, A.A.G. for State. Date of hearing: 9.3.1998. order The applicant under Section 497(5), Cr.P.C. has applied for cancellation of bail granted to Respondent No. 1 on 12.11.1997, by learned Sessions Jude/Special Judge, Karachi , South. The facts of the prosecution case, in -brief, are that on 27.5.1997 at about 6.30 a.m. complainant Muhammad Ali and bis maternal-uncle Imam Bux, after selling the milk were returning in a vehicle and when they reached near Chakiwara, opposite Mirza Adam Tea Company, Bus Stop, four boys duly armed with weapons tried to stop the vehicle. Imam Bux, who was driving said vehicle, did not stop it. Thereupon, one of those culprits fired a shot which hit Imam Bux, who died on the spot. The vehicle stopped after violently striking the-footpath. All culprits succeeded in running away. The respondent No. 1 was in custody since 7.8.1995 and on 12.11.1997 bail was granted to him on the ground of statutory delay. Mr. S. Mahmood Alam Rizvi, learned counsel for the applicant contends that alleged firing by the respondent upon the deceased was by itself an act of terrorism, as such, the respondent should not have been granted bail by the trial Court. Learned counsel also argued that S.H.O., Chakiwara in his report had stated that the respondent was hardened, desperate or dangerous criminal and was involved in four criminal cases viz. F.I.Rs Nos. 45 of 1995, 132 of 1995, 160 of 1995 and 194 of 1995 of said police station. As against above, Mr. Sarfraz Khan Tanoli, learned counsel for the respondent submitted that the respondent in Case No. 45 of 1995 was already acquitted by trial Court and the report of S.H.O. to that effect was wrong. He also submitted that in the. cases registered on the basis of F.I.Rs. Nos. 160 of 1995 and 190 of 1995 the respondent was already released on bail by the Court. He also pointed out that the Superintendent of Youthful Offenders Industrial School, Karachi , by a letter, dated 17.9.1997, had informed the trial Court that, during the period of confinement of the respondent in jail his conduct was satisfactory. 4th proviso of subsection (1) of Section 497, Cr.P.C. controls 3rd proviso of said section. According to 3rd proviso, an under trial prisoner as a matter of right is entitled to bail if the trial is not concluded within the period prescribed in said proviso. In the instant case, admittedly the trial was not concluded within the prescribed time and for the delay the respondent was not responsible. For the applicability of the 4th proviso, it is essential that the accused in the opinion of the Court, shall be hardened, desperate or dangerous criminal. In this case the trial Court, after having taken into consideration all the circumstances, reached the conclusion that the respondent was not a hardened, desperate or dangerous criminal. It is the opinion of the Court that matters and not the report of a Police Officer. Under the circumstances, we are of the view that the bail was rightly granted to the respondent by the trial Court. According, the application is dismissed and the respondent would continue to remain on bail as before. (AAJS) Bail not cancelled.

PLJ 1999 Cr PLJ 1999 Cr.C. (Karachi) 1180 (DB) Present: SABiHUDDiN ahmed and muhammad roshan essani, JJ. MUKHTAR AHMED alias MUHAMMAD MUKHTAR-Appellant versus STATE-Respondent Criminal Appeal No. 269 of 1996, heard on 13.5.1998. West Pakistan Arms Ordinance, 1965 (XX of 1965)-- —S. 13-E--Criminal Procedure Code (V of 1898), S. 103-Pistol--Recovery of--Broad day light 4 p.m. time-Thickly populated area-Mashirs of alleged recovery were two Policemen and no reasons were given for not rocuring any private person, when recovery was made in a residential rea where respectables of locality were upposed to be present who ught to have been associated with such recovery-Recovery of crime weapon/pistol, in circumstances, was made in violation of mandatory provisions of S. 103, Cr.P.C.-Pistol allegedly recovered at instance of ccused was neither sealed at spot nor it was sent to Ballistic Expert for examination and ammunition so recovered were not even exhibited in evidence--Mos/urnama of recovery and F.I.R. did not show that pistol recovered from accused was automatic or semi-automatic—Prosecution evidence doubtful-Appeal allowed. [P. 1182 & 1183] A Mr. Basharat Ahmed Jatt, Advocate for Appellant. Mr. Ghulam Nabi Soomro, Addl. A.G. for State. Date of hearing: 13.5.1998. judgment Muhammad Roshan Essani, J.--The appellant was tried for offence under Section 13-E of the Arms Ordinance, by the Special Judge Court No. II Suppression of Terrorist Activities Hyderabad and by judgment, dated 2.10.1996 he was convicted and sentenced to suffer rigorous imprisonment for four years and fine Rs. 5,000. .In default of payment of fine he was ordered to suffer rigorous imprisonment for six months more. 2. The facts in brief are that on 5.8.1996, S.I.P. Muhammad Mushtaque of Police Station, Mirpurkhas interrogated the appellant/accused in Crime No. 42 of 1996 when appellant volunteered to produce the robbed properly and crime weapon i.e. pistol, concealed by him in the house of his maternal uncle Muhammad Yousif. The appellant led the police party headed by S.I.P. Muhammad Mushtauqe and produced golden ornaments and pistol alongwith magazine containing two live bullets from a bag lying in the room of the house of his maternal uncle. Appellant failed to produce any licence for the said pistol which was secured under mashirnama and appellant was brought at Police Station, Mirpurkhas, where S.I.P. Muhammad Mushtaque lodged F.I.R. under Section 13-E of the Arms Ordinance and after usual investigation on 13.8.1996 the appellant was sent up to stand trial. 3. On 25.$. 1996 charge under Section 13-E of the Arms Ordinance was framed against the appellant to which he pleaded not guilty and claimed to be tried. 4. The prosecution in support of its case examined P.W. 1 Muhammad Mushtauqe S.I.P. Town Police Station, Mirpurkhas and P.W. II Bashir Ahmed police constable of Police Station Mirpurkhas and closed their side vide statement Exh. 6. Statement of appellant was recorded under Section 342, Cr.P.C. as Exh. 7 wherein, he has denied the prosecution allegations. He stated that he had come to Mirpurkhas Town for the treatment of his foot and thereafter, he went back to his house. There was quarrel between him and his cousin, whereupon his father got him confined in police lock-up at Dokri, where from he was brought by Town Police Mirpurkhas and implicated in this case. 5. Mr. Basharat Ahmed Jatt, learned counsel for appellant has contended that neither any independent witness was examined in this case nor any independent person was procured to witness the search or recovery. The recovery was, thus, made in violation of Section 103, Cr.P.C. and that, therefore, appellant is entitled to acquittal. 6. Mr. Ghulam Nabi Soomro, learned Additional Advocate-General has frankly conceded to the arguments of learned defence counsel and he has further contended that no proper opportunity of cross-examination was given to the appellant; that the pistol allegedly recovered was not exhibited; that only policeman have acted as mashirs, although recovery was effected at 4.00 p.m. that it is also not shown in mashirmana whether weapon was automatic or semi-automatic. He, herefore, submitted that Suppression of Terroris Activities Court had taken cognizance illegally. 7. We have heard the learned counsel for the parties and also gone through the evidence and impugned judgment. 8. It is the case of the prosecution that during the course of interrogation in Crime No. 42 of 1996 appellant led the police party to the house of his maternal-uncle where from he produced the alleged pistol and ammunition. This clearly shows that complainant. S.I.P. Muhammad Mushtauqe knew about the recovery of pistol before proceeding to the place of recovery. Surprisingly enough he did not pick any private person to witness the recovery. The alleged recovery w.as made during broad day time at about 4.00 p.m. from the house of Muhammad Yousif situated in Ahmedani Colony Mirpurkhas which is a thickly populated area. The house was jointly occupied. No inmate or occupant of the house was associated with the said search and recovery nor any private respectable inhabitant of the locality was picked up to witness the said recovery. Even no effort was made in this regard as is evident from the evidence of both the Police Officers i.e. P.W.I, S.I.P. Muhammad Mushtaque and P.W. II, P.C. Bashir Ahmed. The mashirs of recovery are to policemen viz. P.C. Bashir Ahmed and P.C. Munawar Hussain. No reasons are given for not pocuring any private persons, when recovery is made from a house in a residential area where the respectables of the locality are supposed to be present and they should have been associated with such recovery. Thus, the recovery of crime weapon in case in hand is in violation of mandatory provision of Section 103, Cr.P.C. The crime weapon allegedly recovered at the instance of appellant/ accused was neither sealed at the spot nor it was sent to Ballistic Expert for examination. The pistol and ammunition so recovered were not even exhibited in evidence. P.W. 1 S.I.P. Muhammad Mushtaque and P.W. 11 P.C. bashir Ahmed both have stated in their recorded evidence as under:- "The accused present in Court and the property lying in Court are same." On comparison of the depositions of both the witnesses it transpired that there is no change in language, comma or full stop in the para, reproduced hereinabove. The pistol and ammunition allegedly recovered from the appellant was not shown to him when his statement under Section 342, Cr.P.C. was recorded nor any question was put to him as to whether the property i.e. subject-matter of case in Court was the same which was recovered from him. The mashirnama of recovery and F.I.R. does not show that the pistol which was recovered was Automatic or semi-Automatic. For the foregoing reasons, we consider the prosecution evidence as doubtful and, onsequently in these circumstances, conviction cannot be sustained. By our short order dated 6.5.1997 we allowed the appeal of appellant and acquitted him. These are the detailed reasons for the said short order. (AAJS) Appeal allowed.

PL J 1999 Cr PL J 1999 Cr.C. ( Karachi ) 1183 Present: abdul ghani shaikh, J. MOHABAT-Applicant versus STATE-Respondent Criminal Transfer Application No. 4 of 1998, heard on 2.4.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 526--Transfer of case-Prayer for»Offence u/S. 302/34 of Pakistan Penal Code, 1860--Contention that accused had brought Nekmard of community to pressurise complainant and, on refusal, he was told that Judge before whom case was pending adjudication, was on good terms with accused—Further allegation was that Nekmard was also seen coming out from retiring room of trial Judge—Complainant, in support of such allegations, had filed his personal affidavit-Trial Judge, in his comments, had denied allegations of complainant and had stated that complainant had levelled false allegation as a device to harass Trial Judge so that complainant could have a result of his choice—Inspite of this in order to restore confidence in mind of complainant, though apprehension regarding bias in mind of Trial Judge could not be actually well-f transfer application of complainant deserved to be allowed-Caae transferred. [P. 1185] A Mr. Muhammad Nawaz Chandio, Advocate for Applicant Mian Khan Malik, Addl. A.G., Sindh for State. Mr. Mi Nawaz Ghanghro and Mr. Asif Ali Abdul Razab Soomro, Advocate for Respondent. Date of hearing; 2.4.1998. judgment The applicant who is complainant in Sessions case Re: State v. Abdul Sorter Chandio and others (arising from Crime No. 76 of 1995 Police station Drigh Taluka Kambar) under Sections 302 and 34, P.P.C., has moved this transfer application praying for transfer of Sessions case pending trial before the learned Additional Sessions Judge, Kambar to any other Court of the District. Mr. Muhammad Nawaz Chandio, learned counsel for the applicant has argued that the Judge has developed ill will against the complainant as he had moved an application objecting the grant of bail to the Respondent No. 2 and copy of such application was sent to the Honourable Chief Justice of High Court of Sindh. He has further argued that the accused had brought the Nekmard of the community to pressurize the complainant and, on refusal, he was told that the said Judge is on good terms with them and it is ^L further alleged that Nekmard was also found coming from the retiring room of the trial Judge. In support of these allegations, the Applicant has, filed his personal affidavit. Messrs Ali Nawaz Ghanghro and Asif Ali Abdul Razaq Soomro appearing for the accused/respondent have submitted that the allegations re totally false and fabricated and appeared to be unbelievable. They further argued that the complainant has filed the transfer application because the learned Additional Sessions Judge had granted bail to the accused and that order was never challenged by the applicant and he; therefore, pray for dismissal of the transfer application. Mr. Mian Khan Malik, Additional Advocate-General appearing for State has also opposed the transfer of the case from the Court of Additional essions Judge, Kambar to any other Court. I have considered the arguments advanced by the learned counsel for the parties and have gone through the comments. The Additional Sessions Judge, Kambar in his comments has denied the allegations and has stated that the Applicant has levelled false allegations as a device to harass the Trial Court so that the Applicant may have a result of his choice. He has admitted moving of application to the Honourable Chief Justice praying therein that the accused may not be granted bail. The Advocates for the parties, on question, have informed that the bail was granted by the Additional Sessions Judge on 3.5.1997 whereas present application has been moved on 6.3.1998 viz. after about ten months of the grant of bail and, therefore, in my humble view, this argument of the learned counsel for the respondent cannot be accepted that the transfer application had been moved on account of grant of bail. The learned Judge in his comments has stated that the Applicant had levelled false allegations as a device to harass the trial Court so that he may have the result of his choice in this case. These words of the presiding Judge can create-in the mind of complainant an apprehension that he may not get the proper justice. From all the above circumstances, it can be said that apprehension in the mind of the complainant my be ill-founded and not supported by any clear indication because the applicant has not disclosed the name of Nekmard who approached him for settlement but yet apprehension in the mind of complainant is there particularly when, in the comments, the trial Judge has said that the applicant has moved this application as a device to gel the decision of his choice then the mind of the Judge can also be affected L> such impression. Therefore, in order to restore the confidence in the mind of the applicant, though the apprehension regarding bias in the mind of Judge may not be actually well-founded, this transfer application deserves to be allowed. Keeping in view all these circumstances, I feel that th6 qase may be transferred and be sent for trial to some other Additional Sessions Judge at Larkana. Accordingly, this Transfer Application No. 4 of 1998 is allowed and the Sessions case re; State v. Abdul Sattar Chadio and others pending on the file of Additional Sessions Judge, Kambar is transferred to the file of IVth Additional Sessions Judge, Larkana who shall proceed with this case expeditiously. , (AAJS) Application allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1185 Present: muhammad roshan essani, J. Mst. ZAINAB-Applicant versus STATE-Respondent Criminal Bail Application No. 142 of 1998, decide don 3.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 497(2) & 497(1), first proviso-Bail-Grant of~Prayer for-Offence u/S. 302/109/34 of Pakistan Penal Code, 1860-F.I.R. was delayed by 29 hours-No overt act was assigned to accused, nor she had caused any injury to deceased-Only allegation against accused was of having helped co-accused in dragging gunny bag containing dead body of deceased- Vicarious liability of accused in commission of offence could be determined at trial after recording of evidence-Case further probe as envisaged by S. 497(2), Cr.P.C.-Accused being a woman was entitled to bail even under first proviso to S. 497(1), Cr.P.C. who was in jail for last 10 months-Bail allowed. [Pp. 1188 & 1189] A & B Mr. Muhammad Ashraf Leghari, Advocate for Applicant. Mr. Ghulam Shabbir Memon, A.A.G. for State. Date of hearing: 3.6.1998. order The applicant Mst. Zainab has prayed for bail in Crime No. 24 of 1997 registered against her an co-accused Kamil Shah at Police Station Saeedabad on 7.6.1997 at 1990 hours under Sections 302, 109 and 34, P.P.C. The F.I.R. of the incident has been lodged by the complainant Parwaiz Ali son of Khamiso at Police Station Saeedabad on 7.6.1997. The contents of the F.I.R. are reproduced hereinbelow: "The report is that, I am residing on aforesaid address, alongwith my father in law Haider Sahitho and my sisters. I am cultivating the lands of Meer Shah on harap. My brother Manzoor Ali si residing in village Mehar Shah, alongwith his wife Mst. Noor Jehan and a mother in law Mst. Zainab. On 5.6.1997 I went to meet my brother manzoor Ali at his house, situated in village Mehar Shah, at evening time, as the wife of my brother had given birth to a baby by way of operation and I had gone to see her. At night time I and my brother had consulted with each other that our relatives and community people are residing in village Siddique whereas he was residing alone in this village, therefore, we both the brothers should live together in village Siddique Sahito alongwith our brotherly people. This proposal was agreed by my brother Manzoor Ali, whereas the mother in law of my brother, who was our paternal aunt had opposed this proposal, that he should migrate and said that they would not migrate from this village. In spite of her opposition, my brother Manzoor Ali had said that they would migrate from this village early in the morning and that he would reside with us. After saying so, my brother Manzoor Ali went to sleep in his room, at about 10/11.00 hours. In another room our paternal aunt Mst. Zainab and the wife of my brother were sleeping whereas I was sleeping in the 'Baramdah'. The electric bulbs were oh, inside the house. On 6.6.1997 at about 4.00 a.m. there was commotion in the room and Mst. Noor Jehan wife of my brother also came there, in the room. We saw that Syed Kamil Shah son of Syed Mehar Shah by caste Syed resident of village Mehar Shah was armed with revolver and was over powering my brother. My paternal aunt Mst. Zainab was asking him that kill him. Then Syed Kamil Shah in presence of me and Mst. Noor Jehan, the wife of my brother, fired from the revolver, which he was carrying in his hand, 'which hit my brother, below the right ear. After sustaining revolver shot, my brother started struggling for the life and started bleeding and he died in our presence. Syed Kamil Shah told me and wife of my brother to keep quiet and if we raised commotion, we shall be killed. Then Syed Kamil Shah confined me and wife of my brother in another room. Then Syed Kamil Shah and my paternal aunt Mst. Zainab remained inside the room. I and Mst. Noor Jehan wife of my brother, were seeing from the net of window of the room and found that Kamil Shah after putting the dead body of my brother in a gunny bag, was dragging it from 'Baramdah' and that my paternal aunt Mst. Zainab was also helping him in dragging the same. Syed Kamil Shah was laying that he was going to keep the dead body in his godown and that thereafter he will get it disappeared. After saying so, he took the dead body with the help of my paternal aunt Mst. Zainab and shifted it over the wall to southern side towards godown and my paternal aunt Ms?. Zainab also went outside the house from the entrance. At day time, I and the life of my brother untied ourselves and opened the door and came out. Then I left Mst. Noor Jehan wife of my brother in the house of our relative Haji Nabi Bux and I myself went to inform our relative Yameen Sahito to village Mithoo Khoso, where I could not met my relative Muhammad Yameen and I stayed that night there, for meeting my relative Muhammad Yameen, but he did not come. Today morning I had gone to my village and narrated the aforesaid facts to my maternal cousin Baud Sahito and Uris Sahito. My maternal cousin Daud Sahito advised me to lodge the report with police. I have come to lodge the report that my paternal aunt Mst. Zainab, is divorcee and was residing alongwith my brother Manzoor AIL My paternal aunt Mst. Zainab had illicit connections with accused Syed Kamil Shah since long and my paternal aunt was not prepared to migrate form village Mehar Shah. Due to the aforesaid reason my paternal aunt Mst. Zainab and accused Syed Kamil Shah in conspiracy to each other, accused Kamil Shah had fired from his revolver at my brother Manzoor All and had committed his murder. I have suspicion that in the said conspiracy Haji Muhammad Ramzan is also involved. I am complainant. Investigation be made." The applicant submitted her bail application before the Sessions Court, Hyderabad which was dismissed by the learned Sessions Judge, Hyderabad by the impugned order dated 28.1.1998. Mr. Muhammad Ashraf Leghari, learned counsel for the applicant has contended that the applicant is a woman and she is entitled to bail under proviso to Section 497(1), Cr.P.C., that no overt act has been assigned to her and she has not caused any injury to the deceased. The learned counsel further contended that the F.I.R. is delayed by 29 hours and only allegation against her is that she had helped the co-accused Kamil Shah in dragging the gunny bag containing the dead body of the deceased Manzoor Ali and that this fact is belied by the medical certificate as the deceased had no scratch nor there was any blood track so as to show that the gunny bag had been dragged as alleged by the prosecution. The learned counsel argued that vicarious liability of the applicant/accused under Section 34, P.P.C. is yet to be determined till then she is entitled to bail as he is in custody for the last 10 months. No recovery of any weapon etc. has been made from the applicant/accused and that the case of the applicant/accused requires further enquiry and she is entitled to bail under Section 4972(2), Cr.P.C. Mr. Ghulam Shabbir Memon, learned State counsel has not opposed the bail application of the applicant/accused and has very frankly conceded to the grant of bail to her. I have heard the learned counsel for the applicant/accused and the learned State counsel. I have perused the F.I.R. ad also the order of the learned Sessions Judge, Hyderabad. Admittedly, the F.I.R. is delayed by 29 hours and not over act has been assigned to the applicant/accused nor there is any allegation against her of causing any injury to the deceased. The only allegation against her is that she helped the co-accused in dragging the gunny bag containing the dead body of the deceased. The applicant/accused is a woman and she is,, entitled to bail under proviso to subsection (1) to Section 497, Cr.P.C. The vicarious liability of sharing the common intention of the applicant/accused with the co-accused Kamil Shah ahd application of Section 34, P.P.C. requires determination at the trial after evaluation of prosecution evidence. The applicant/accused is in custody for the last 10 months. Under the peculiar facts and circumstances, case of the applicant/accused requires further enquiry as contemplated under Section 497(2), Cr.P.C. In the case of Ms?. Baboo Jana v. The State, reported in 1990 PCr.LJ 326 late Mr. Justice Qaiser Ahmed Hamidi granted bail to the lady accused who was involved in a case under Customs Act. The relevant observation in reproduced hereinabelow:-- "6. Admittedly the applicant is a woman and her case falls within the first proviso to subsection (1) of Section 497, Cr.P.C. The grant of bail to a woman although discretionary, the Courts have leaned towards granting of bail even where the accused was found involved in a murder case inviting capital punishment." In the case of Liaquat All v. Mst. Bashiran Bibi and another reported in 1994 SCMR 1729 bail of a woman who was accused in a case under Section 10/16 Zina (Enforcement of Hudood) Ordinance was not cancelled by the Honourable Supreme Court on the ground that accused was a woman and her case was covered by first proviso to Section 497(1), Cr.P.C. For all the reasons stated supra I am of the considered view that vicarious liability of the applicant to be determined at the trial and she being a woman is entitled to bail under Section 4970, Cr.P.C. and her case requires further enquiry under clause (2) of Section 497, Cr.P.C. On 25.5.1998 I granted bail to the applicant/accused by short order and above are the reasons of the said short order. The above observations are of tentative nature and the learned trial Court will not be influenced by these observations. The trial Court will be at liberty to reach at is own conclusion on merits after recording the evidence. (AAJS) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1189 Present: muhammad roshan essani, J. JAN MUHAMMAD alias JAN-Applicant versus STATE-Respondent Criminal Bail Application no. 237 of 1998, decided on 22.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(2)--Bail--Grant of--Prayer for--Offence u/S. 302/34 of Pakistan Penal Code, 1860--Case based only on suspicion-No blood was found at scene of offence-Licensed gun of accused recovered in case was not sealed and same was not recovered from his exclusive possession-Brother of deceased after 15 days of ccurrence had implicated accused in statement under S. 164, Cr.P.C. claiming to have identified him in moonlight-­ Identification in moonlight and footprint test were very weak pieces of evidence-No reason for holding belated indentification parade or foot print test was furnished by prosecution-No private independent witness was examined or cited by prosecution in case-Accused had no motive to -"" committ offence-Reasonable grounds existed to believe that accused was not guilty of offence charged against im and his case need further inquiry as contemplated under S. 497(2), Cr.P.C.-Accused admitted to bail. [Pp. 1191 & 1192] A to D Mr. Ghulam Shabbir Memon, Advocate for Applicant. Mr. Bahadur Mi Baloch, Advocate for State. Date of hearing: 22.7.1998. order The facts leading to the present application for bail are that applicant/accused Jan Muhammad alias Jan Khakheli is facing trial in Sessions Case No. 59 of 1997 before Additional Sessions Judge, Shewan, arising out of F.I.R. No. 670 of 1997, dated 11.11.1997 of Police Station Bhan, District Dadu, under Sections 302 and 34, P.P.C. The contents of F.I.R., lodged by informant Muhammad Saleh Khaskheli, are reproduced hereinbelow:-- "Complaint is that 1 am labourer, since last 30 years. I am residing at Dadu. My cousin Rakhial is matrimonially connected with Edien Panhwar. They were residing in village Chakar Khan Khushik. About one year back due to some dispute over domestic affairs Eiden Panhwar shifted bag and baggage from village of Chakkar Khan Khushik to his land adjoining village Mono Panhwar. Due to the dispute over domestic affairs Edien Panhwar had issued threats of death to my cousin Rakhial alias Mircho and they were also not on talking terms. Yesterday, on 11.11.1997 I went to my cousin Rakhial alias Mircho in connection with a personal work. After talking with each other, we slept. At about 12.00 in the night firing was made on us, simultaneously we heard cries. I and Khadim Hussain got-up and saw four persons scaling the hedge of the house from westernsouthern corner. We challenged them and saw that Mircho was lying on the ground by the side of cot and he was raising cries. We rushed towards Rakhial and noticed fire-arm injuries on his left occipital region and left shoulder. Blood was oozing out from his injuries. He went unconscious. Thereafter, Khadim Hussain informed me that today in the evening Eiden (2) Jummon both sons of Khuda Bux, (3) Ramzan son of Ahmed Panhwar, all the three residents of adjacent village Rorio Panhwar, (4) Jan Muhammad alias Jano son of Sher Khan Khaskheli, resident of village Azam Zardari, Taluka Sakrand were seen roaming outside their house. We arranged a vehicle and brought injured Rakhial alias Mircho at Bhan Hospital looking towards the serious condition of injured Rakhial alias Mircho I went to Police, Station Bhan, where from I obtained the letter for treatment and delivered the same to Bhan Hospital Authorities. They referred the injured to Civil Hospital Authorities. They after giving first aid to injured Rakhial alias Mircho referred him to Jamshoro. Khadim has taken away his brother to Jamshoro and now I have come for report. There is dispute between my cousin Rakhial alias Mircho and Edien Panhwar over domestic affairs. Eiden Panhwar had issued him threats of death. We suspect that Edien, (2) Jammon both sons of Khuda Bux Panhwar, (3) Ramzan son of Ahmed Panhwar all the three resident of Morio Panhwar, (4)Jan Muhammad alias Jano son of Sher Khan Khaskheli, resident of village Azam Zardari, Taluka Sakrand with common intention due to domestic dispute, may have caused fire-arm injuries to my cousin Rakhial alias Mircho in order to kill him. Complaint is lodged. Investigation be made." 2. The injured Rakhial alias Mircho subsequently succumbed due to injuries, therefore, police added Section 302, P.P.C. 3. Applicant/accused applied for bail before the trial Court but the same was refused by impugned order, dated 2.4.1998. 4. I have heard Mr. Ghulam Shabbir Memon, learned counsel for the applicant/accused and Mr. Bahadur Ali Baloch, learned counsel for the State. Latter very candidly conceded to the grant of bail. I have also perused the material placed on record as well as police papers with the assistance of learned counsel for the parties. 5. The bare perusal of F.I.R. shows that only suspicion was shown against the applicant/accused and three other persons, whose names also transpire in the F.I.R. The Mashirnama of vardat reveals that no blood was found on the cot on which deceased was keeping at the time of incident, or at the scene of offence. On 13.11.1997 after the arrest of applicant/accused his licensed gun was recovery. The gun was not sealed and Mashirnama of recovery does not disclose that any smell of gun powder was coming out from the barrel of gun. Moreover, it was not recovered from the exclusive 7 possession of the applicant/accused. The alleged incident took place on 11.11.1997 at about ll'O clock in the night and in the after noon of 12.11.1997 F.I.R. was lodged by one Muhammad Saleh, cousin of the deceased and alleged eye-witness of the occurrence but no role whatsoever has been ascribed to the applicant/accused nor it is stated therein that he was identified. After about 15 days of the alleged incident i.e. 26.11.1997 statement of P.W. Khadim Hussain (brother of deceased) under Section 164, Cr.P.C. was recorded wherein applicant/accused was implicated by him. He has stated therein that he identified the applicant/accused in the moonlight. On the very same day identification test as well as foot print test of applicant/accused alongwith three other persons, named in the F.I.R., was held wherein applicant/accused was picked-up. 6. It is well settled that identification on moonlight and foot print test are very weak pieces of evidence. No reason whatsoever for belated identification parade or foot print test has been assigned. Learned counsel for the State has also pointed out that statement of foot tracker under Section 161 or 164, Cr.P.C. was not recorded neither the Mashirnama of foot print test is available in the police record nor there is any note by the Investigating Officer to the effect that any such ashirnama was prepared. He has also supported the learned counsel for the applicant/accused that in the case in hand not a single private independent witness was examined or cited by the prosecution and there was no motive for the applicant/accused to commit the present crime. According to him, the motive disclosed in the. F.I.R. is that there was enmity between deceased and Eiden Panhwar and Eiden panhwar used to issued threats of dire consequences to the deceased and not the applicant/accused. 7. Considering all aspects of the case, I am of the view that, prima facie, there are reasonable grounds to believe that applicant/accused is not guilty of the offence and case necessitate further inquiry as contemplated under Section 497(2), Cr.P.C. 8. On 4.6.1998 I had granted bail to the applicant/accused by my short order. Above are the detailed reasons of the same. 9. Observations made hereinabove are of tentative in nature and the trial Court shall not be influenced thereby in may manner whatsoever at the time of, final adjudication of the matter and it will be free to conclude and arrive at its own findings on merit after evidence is recorded in the case. (AAJS) Bail allowed.

PLJ 1999 Cr PLJ 1999 Cr.C . ( Karachi ) 1192 Present: abdul ghani shaikh, J. MUHAMMAD ASHIQUE-Applicant versus STATE-Respondent Criminal Bail Application No. 90 of 1998, decided on 23.4.1998. Criminal Procedure Code, 1898 (V of 1898)- . —S. 497--Bail--Cancellation of-Non-appearance on date of hearing - Contention of accused was that he had gone abroad and could not send any intimation-Reason assigned by accused for his non-appearance as his going abroad, was no ground for grant of bail, but as accused earlier was granted bail on merits and he had remained in custody for more than a period of one month, a lenient view was taken and bail was granted to accused. [P. 1193] A Mr. Abdul Rasool Abbasi , Advocate for Applicant. Mian Khan Malik , Addl. A.G. for State. Date of hearing: 23.4.1998. order By this application Mr. Abdul Rasool Abbasi has prayed for bail to applicant Muhammad Ashique facing trial before the Court of Additional Sessions Judge, Mehar . The applicant was granted bail on merits but his bail was cancelled on 13.6.1997 on account of his absence on the date of hearing without any intimation and he remained absent till 17.3.1998 on which date he was remanded to custody on his appearance before the Court. The learned counsel has argued that the applicant had gone to Saudi Arabia , therefore, could not send any intimation and further that he has remained in custody for more than one month and thus sufficiently punished and therefore the applicant may be granted bail. Mr. Mian Khan Malik learned Additional Advocate-General appearing for the state does not oppose the grant of bail. I have considered the arguments of the learned counsel appearing for the parties. In fact, I am not inclined with the reason assigned by the applicant for his non appearance as his going to Saudi Arabia is no ground for grant of bail but, however, as the applicant was granted bail on merits and he was remained in custody for more than a period of one month, therefore, in view of case of Zaheer Ahmed v. The State reported in 1983 PCr.LJ 2600, a lenient view is being taken and it is ordered that the applicant shall be released on bail subject to his furnishing surety in the sum of Rs . 100,000 and P.R. Bond in the like amount to the satisfaction of trial Court. The Criminal Bail Application No. 90 of 1998 stands disposed of. (AAJS) . Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. (Lahore) 1193 Present raja muhammad khurshid, J. MUHAMMAD SULTAN-Petitioner versus STATE and another-Respondents Criminal Misc. No. 6030-B of 1998, decided on 10.12.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(5)--Bail--Cancellation of«Offence u/S. 302/109/34 of Paksitan Penal Code, 1860--Pre-arrest bail had been refused to accused by Sessions Court only 18 days ago and on same facts of case without any change in circumstances post-arrest bail had been granted to him by same Court-Accused played a pivotal role leading to murder of deceased and he had been found guilty during police investigation on basis of evidence so far collected by police-Bail allowed to accused in pursuance of bad exercise of jurisdiction by Sessions Court was cancelled accordingly-- [P. 1195& 1196] A& B Inayat Ullah Khan Niazi, Advocate for Petitioner. Tariq Mahmood Chaudhry, Advocate for State. Ghulam Hussain Malik, Advocate for Respondent No. 1. Date of hearing: 10.12.1998. order A case under Section 302/109/34, P.P.C. was registered against Respondent No. 1 vide F.I.R. No. 145 of 1998, dated 31.5.1998 at Police Station Saddar Mianwali for the murder of one Muhammad Anwar Arain. 2. Respondent No. 1 applied for pre-arrest bail in the aforesaid case which was dismissed by the learned Additional Sessions Judge-I, Mianwali vide his order, dated 16.6.1998 with the following observations:- "The petitioner/accused is nominated in the F.I.R. The police has not exonerated the petitioner/accused during investigation. The petitioner/accused allegedly made three attempts of murder on the complainant party previously as his brother Ghulam Akbar was murdered at the hands of the complainant party of this case. Therefore, he has a strong motive against the complainant party. This being a pre-arrest bail, which is exceptional remedy and is available only to the innocent persons, who are not involved in the occurrence and have been mala fide by involved in the case due to some ulterior motive. As the petitioner/accused is very much connected with the occurrence, therefore, he is held to be not entitled to the concession of extraordinary relief of pre-arrest bail. The interim pre-arrest bail already granted to the petitioner, in the circumstances, is recalled and bail petition is dismissed." 3. Respondent No. 1 moved post-arrest bail on 23.6.1998 i.e. after about one week of dismissal of his pre-arrest bail. It came up for hearing before the same learned Additional Sessions Judge-I, Mianwali, who vide his order, dated 4.7.1998 allowed bail to the respondent aforesaid with the following concluding paragraph:-- "According to the contents of the F.I.R., the petitioner/accused was not present at the time of occurrence and the only allegation against him is that of conspiracy under Section 109, P.P.C. This provision of law having been declared repugnant to Injunction of Islam, the case ' of the petitioner/accused is that of further enquiry. The witnesss of conspiracy are closely related to the complainant of this case. Both the parties are on inimical terms before this occurrence. Therefore, the petitioner/accused is held to be entitled to the concession of post-arrest bail subject to furnishing bail bonds in the sum of Rs. 1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of this Court." 4. Learned counsel for the petitioner has assailed the order, dated 4.7.1998 on the ground that Respondent No. 1 is named in the F.I.R. and a specific role is attributed to him for committing conspiracy and abetting the principal accused to finish the deceased Muhammad Anwar Arain. In this respect, it was alleged that according to the F.I.R., the respondent aforesaid had prompted the principal accused by stating that he would pay them Rs. 1,00,000 if they finished the deceased as he was the killer of his brother and he wanted to take revenge from him. It was in pursuance of that abetment that the alleged hired assassins killed the deceased. It was, therefore, submitted that the learned Additional Sessions Judge who had earlier dismissed the pre-arrest bail on its merit after taking into account the investigation conducted in the case and also the facts brought before him, was not justified to grant post-arrest bail only after about eighteen days as nothing had changed in-between in respect of the facts of the case nor any extenuating circumstance had arisen during that period in favour of the respondent/accused. As such, the learned Additional Sessions Judge-I, Mianwali misused his judicial discretion to enlarge the aforesaid respondent on bail in an offence which is punishable wtth death or imprisonment for life. 5. Learned counsel for Respondent No. 1 submitted that the criteria which regulate the pre-arrest bail are different than the post-arrest bail. It was, therefore, alleged that the learned Additional Sessions Judge-I, Mianwali was justified to enlarge the respondent/accused on post-arrest bail after considering the facts that the parties were on inimical terms and that the offence of conspiracy under Section 109, P.P.C. has been declared repugnant to the Injunctions of Islam. 6. Learned State Counsel, however, submitted that Respondent No. 1 was nominated in the F.I.R. and a crucial role was assigned to him which led to the murder of the deceased, as such, he was not entitled to bail. 7. I have considered the submissions made at the Bar and have also gone through the record carefully. Before I take up this petition on merit, it may be pointed out that the petitioner had earlier instituted Criminal Miscellaneous No. 5406-B of 1998 Muhammad Sultan v. Muhammad Anwar and others for cancellation of bail but the same was dismissed for nonprosecution on 2.11.1998. Hence, this petition was filed on the next following date i.e. 3.11.1998 and was admitted for hearing. Now coming back to the merits of the case, it may be pointed out that I have already quoted the relevant paragraph from the order, whereby the pre-arrest bail was dismissed only eighteen days earlier, whereas, the post-arrest bail was granted although there was no change in the facts. In the offence punishable with death or imprisonment for life, the principles which regulate the prearrest bail as well as post-arrest bail are almost same, particularly when while refusing the pre-arrest bail, the merits of the case have" already been taken into account. In the instant case, the learned Additional Sessions Judge while rejecting the pre-arrest bail had also taken into account the ^ ~ merits of the case and had come to the view that pre-arrest bail could be granted only to innocent persons who are involved in the case with mala fide intention. Since Respondent No. 1 was found to have been nominated in the F.I.R. and held guilty during the investigation and had earlier made three attempts of murder on the complainant party, therefore, the learned Additional Sessions Judge came to the conclusion that he had no case for pre-arrest bail-. However, post-arrest bail was granted to Respondent No. 1 on 4.7.1998, although there was no change in the circumstances of the case, on the ground that the offence of conspiracy was repugnant to the Injunctions of Islam and as such, case against the respondent aforesaid had become that of further enquiry when both the parties were on inimical - - terms. All these facts were existing when the pre-arrest bail of Responden No. 1 was rejected. One fails to understand as to what influenced the mind of the learned Additional Sessions Judge to grant post-arrest bail while taking into account the same circumstances of the case. This is surely the misuse of judicial power. Needless to say that according to the F.I.R., Respondent No. 1 had played a pivotal role leading to the murder of the deceased. He was found guilty during the police investigation on the basis of evidence so far collected. Hence, on merit, the aforesaid respondent had no case for bail. Therefore, the 'impugned order passed by the learned Additional Sessions Judge-I, Mianwali appears to be a bad exercise of jurisdiction. 8. In view of my above discussion, the petition for cancellation of bail is allowed and the bail granted to Respondent No. 1 by the learned Additional Sessions Judge-I, Mianwali vide his order, dated 4.7.1998 is cancelled. The aforesaid respondent is present in Court and is directed to be taken into custody. He shall be sent to jail as under trial prisoner. (AAJS) Bail cancelled.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1196 Present: zahid kurban alavi, J. Syed QAIM ALI SHAH-Applicant versus STATE-Respondent Criminal Misc. Application No. 175 and Miscellaneous Application No. 567 of 1998, decided on 30.9.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 144-Unlawful assembly-Election-Gathering of people near polling during elections whether justified-Gathering of people near Polling Both or aking voters to election place cannot be construed as violation of S.144ofCr.P.C. [P. 1198] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A-Proceeding-Quashemnt of--0ffence u/Ss. 353, 188, 147 & 149- Incident took place on election day--F,,I.R. was lodged by S.H.O.--F.I.R. and challan were lying in .Court of Sub-Divisional Magistrate-No proceedings had taken place-Petitioner did not approach Trial Court but application was filed directly in High Court-Maintainability-High Court could take cognizance and pass order if enough grounds were shown to warrant such action—Proceedings were ordered to be quashed in. [P. 1199] B Mr. Qurban Mi H. Chohan, Advocate for Applicant. Mian Khan Malik, Add. A.G., Sindh for State. Date of hearing: 30.9.1998. order The applicant Syed Qaim All.Shah seeks quashment of proceedings in a case vide Crime No. 52 of 1996, pending against him in the Court of learned Judicial Magistrate and F.C.M., Tando Adam. Briefly the facts of the case are that S.H.O. Muhammad Banaras of Police Station Berani lodged a F.I.R. being Crime No. 28 of 1992 on 28.4.1992 at 19-15 hours under Sections 353 147, 149 and 188, P.P.C. This F.I.R. was lodged against the present applicant as well as Mr. Shahnaz Junejo and his sons Gul Junejo and Roshan Junejo, Parwaiz Ali Shah, Altaf Bhayyo and Pir Khalid Jan Sarhandi. It is alleged that on the date of elections for PS-67 in Constituency of Tando Adam and Berani the complainant was posted on special duty alongwith his subordinate staff Muhammad Ashraf Sajjan, Abdul Karim, Nek Muhammad and P.Cs. they were asked to patrol different places in the Government vehicle. They were given information by some "spy information" that some miscreants will reach the Gulab Polling Station in order to create law and order situation. Urgent messages were conveyed to S.D.P.O. and S.D.M. The S.H.O. alongwith his party reached village Ser Mai and blocked the road leading to the Polling Station. They saw the abovenamed people including the applicant in this case coming in three Pajeero Jeeps fully armed. There were also other male and female persons accompanying them. The were asked to stop and undergo a search where upon all the said persons started manhandling the police and used indecent languages. Apprehending a situation the orders were given to take positions whereafter all the so-called accused against got into their Pajeero vehicles and went back towards Tando Adam. According to the F.I.R. the said gentlemen have committed offence under Section 144, P.P.C. and Section 188, P.P.C. A case was registered against these gentlemen which is lying with the Judicial Magistrate and F.C.M., Tando Adam since 18.1.1997. On the other hand the F.I.R. and challan are still lying the Court of learned S.D.M., Tando Adam. The same have not been sent to the Judicial Magistrate hence no proceedings are taking place save and except repetition of N.B.Ws. against the accused. The present application under Section 561-A, Cr.P.C. has been filed by the applicant and the learned counsel has pleaded as follows:- According to him the bare reading of the F.I.R. amply proves and shows that it has been concocted purely and simply for political gains. They have further gone on to show that the F.I.R. was lodged by the S.H.O. who under the relevant provisions of law is not authorized to do so. Most of the sections that have been mentioned in the F.I.R. are non-cognizable. The learned counsel has further gone on to point out that if there is any complainant against an accused for violation of Sections 172 to 188, P.P.C. then the complaint has to be in writing of the public servant concerned. In the instant case according to the learned counsel for the applicant the District Magistrate or the Deputy Commissioner should have lodged the necessary complaint. According to him in such cases no F.I.R. is cut but a complaint is filed based upon which proceedings take place. The sections that have been applied in the F.I.R. are very interesting keeping in mind the fact that elections have now become apart and parcel of our lives since the last ten years have shown more than five elections taking place. Both in the rural and the urban areas of Pakistan the seats are contested very strongly and in effect certain political parties and their workers are known for being over enthusiasm and overzealous in trying to ensure that their candidates wins. While it is appreciative that in order to ensure fair, free elections under peaceful conditions yet every time election take place certain incidents do occur most of them hopefully are not violent and, therefore, certain actions can be condoned on the ground of election fever. On the other hand it is also important to note the overenthusiasm of ' the machinery that is supposed to control the law and order who are at most times more loyal than the king and, therefore, probe to take action against those candidates who would be construed as members of the opposition. Since by all standards elections are comparatively new phenomenon to the i every day Pakistani, therefore, one could justify certain actions at the time of elections but by no remote possibility could a gathering of people near the Polling Booth or the taking out of voters to the election place could be construed as violation of Section 144. The learned counsel appearing on behalf of the State have on the other hand insisted that the present application is not maintainable as they could have filed the same as provided under the law. According to them such quashment was premature and, therefore, this application should be dismissed. The learned counsel on the other hand appearing for the applicant insisted that he was well within his rights to come straight to the High Court and filed such an application. According to him there were enough case-laws to support his stand that he could move the High Court for quashment of the proceedings and the High Court could take cognizance and pass orders°if enough grounds were shown to warrant such an action. The learned counsel has relied on the following case-laws in support thereof: ~ (1) 1997 PCr.LJ (Kar.) page 589, (2) 1993 PCr.LJ (Kar.) .page 1307, (3) PLD 1994 Kar. page 363, (4) 1993 PCr.LJ 1913, . (5) -1994 SCMR 798, and (6) 1985 SCMR 257. Under the circumstances, proceedings in question are quashed and this application is allowed. (AAJS) Proceedings quashed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1199 (DB) Present: nazim hussain siddiqui and raja qureshi, JJ. -Applicant versus STATE-Respondent Criminal Bail Application No. 369 of 1998, decided on 4.5.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of-Prayer for-Difference between F.I.R. and witnesses statement before police u/S. 161 Cr.P.C.-Offence u/S. 302/34 of Pakistan Penal Code, 1860-Case of prosecution was that prosecution witnesses had seen incident and had identified accused who had killed deceased but rosecution witnesses in their police statements had controverted assertion of prosecution-Complainant had not claimed to have identified accused-No body has claimed to have identified accused- Prosecution after seeing police papers had stated that incident was not witnessed by anybody and also conceded for grant of bail to accused-Bail granted. [P. 1200] A Sardar Muhammad Ishaq, Advocate for Applicant. Mr. Habib Ahmed, A.A.G. for State. Date of hearing: 4.5.1998. order Deceased Rana Muhammad Ashraf, S.H.O., Police Station Taimuria was killed on 27.1.1996 at about 10.15 p.m. in front of his house situated in block 13-D, Gulshan-e-Iqbal, Karachi . He was the father of the complainant. According to the F.I.R., the complainant was informed by the deceased that he wanted to arrest terrorists Naeem Sharri, Saulat Mirza, Sohail Bengali, and also applicant Nawab Tun, as they were involved in heinous offences. It is alleged that just before the incident a rickshaw had come near the house of the deceased and its. occupants had killed him. The F.I.R. states that Mohallah people had informed the complainant that the culprits had come in a Yellow-Cab Taxi, and after firing they disappeared from there. It is the case of the prosecution that P.Ws. Iqbal Ahmed, and Khalid Malik had seen the incident and identified the culprits. These P.Ws., however, in their police statements controverted the above assertion and maintained that it was the complainant, who had informed them that '"~ abovenamed terrorist had killed his father. The complainant has not claimed to have identified the culprits. In fact, nobody ha'd identified them. Learned A.A.G. after seeing the police papers, states that the incident was not witnessed by anybody. He concedes for grant of bail to the applicant. Accordingly, bail is granted to the applicant in the sum of Rs. 10 ,00,000 (Rupees ten lac) with two sureties each being of Rs. 5,00,000 (Rupees five lac) and P.R. Bond in the like amount to the satisfaction of the trial Court. (AAJS) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Karachi ) 1200 Presentzahid kurban alavi, J. KISHORE KUMAR-Applicant versus STATE-Respondent Criminal Misc. Application No. 314 of 1995, decided on 30.9.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 561-A-Proceedings-Quashment of-Prayer for-Offence u/Ss. 120-B. 123-A & 506-B of Pakistan Penal Code, 1860-Petitioner was not arrested from spot where he was llegedly/shouting anti-state slogans-No other person was involved with petitioner whereafter it could be stated that there was, in fact, conspiracy being hatched against State-Petitioner could file application for quashing of proceedings directly in High Court- Proceedings were ordered to be quashed in circumstances. [P. 1202] A Mr. Qurban Ali H. Chohan, Advocate Applicant. Mr. Bahadur Ali Baloch, Advocate for State. Date of hearing: 10 and 15.9.1998. judgment The applicant Kishore Kumar seeks quashment of proceedings in Sessions Case No. 67 of 1995 pending against him in the Court of learned Sessions Judge, Umerkot. Briefly the facts of the case care that the applicant has been charged under Sections 120-B, 123-A, 526(2), P.P.C. on the averments that on 14.8.1995 at 5.30 P.M. he raised slogans against the integrity and security of Pakistan while in front of a gathering of small boys of a Primary School Umerkot, which was witnessed by police party being patrolled under S.H.O. Police Station Umerkot. It is alleged that after raising slogans against the integrity of Pakistan and allegedly in favour of India he succeeded inslipping away. S.H.O. Umerkot without obtaining any sanction from the Provincial Government recorded F.I.R. in 154, Book and challaned the abovenamed applicant/accused before a Court of law. That soon after the arrest of the applicant/accused bail application was submitted in the Court of learned Sessions Judge, Umerkot which was dismissed by his order, dated 16.8.1995. In the meantime challan was submitted in the Court of learned Sessions Judge, Umerkot under Sections 506-B, 123-A and 120-B. A bail application was moved this Court and this Court was pleased to grant bail on 31.8.1995. Thereafter, this matter remained pending before the Sessions Judge, Umerkot. By an order, dated 3.1.1996 which was passed by this Court the proceedings before the trial Court was stayed till the disposal of the main application under Section 561-A, Cr.P.C. According to the learned counsel for the applicant/accused the F.I.R. is an absurdity in the eyes of law as no person especially belonging to a minority would confront a procession on the independence day and could shout slogans of "Pakistan Murdabad" and "Hindustan Zindabad" unless he was slightly balmy in the head. The sections quoted by the respectable police in the F.I.R. are remote possibility be relevant for the so-called offence that the alleged accused seems to have committed. Furthermore, the learned counsel has pointed out that according to Chapter VI of P.P.C. offence against State viz. 121, 121-A, 122, 123, 123-A, 123-B and 124, P.P.C. are not cognizable according to 196, Cr.P.C. and no F.I.R. with regard to under any of the above sections can be registered under Section 154, Cr.P.C. as only a direct complaint as defined under Section 4-H of Cr.P.C. can be made if no direct complaint has been made then it is a patent illegality and it cannot be cured under Section 537, Cr.P.C. or any other provisions of law If an F.I.R. is filed under the above circumstances then the same can be struck down and quashment allowed. There is plethora of judgments on this aspect of law. The case-law referred to by the learned counsel for the applicant is as follows:-- (1) Dost Muhammad v. The State 1976 PCr.LJ 184, (2) Qaisar Raza v. The State 1979 PO.LJ 758, (3) Main Alam v. The State 1993 PCr.LJ 1913, (4) Mian Munir Ahmed v. The State 1985 SCMR 257, (5) State v. AsifAli Zardari 1995 SCMR 798, (6) Ghulam Alt v. The State 1989 PCr.LJ 507, and (7) Muhammad Sadiq Umrani v. The State PLD 1993 Kar. 735. Section 506-B, P.P.C. and Section 120-B, P.P.C. are not applicable at all as the basic reading of the F.I.R. shows that the person stood in front of the procession with a lathi and when confronted by the police he immediately ran away. It is needless to state that his speed was such that he managed to outrun the upholders of law who were specially posted to patrol the city in a Government vehicle who yet could not catch hold of the gentleman concerned at that time. Once again if the F.I.R. is to be believed then there was only an individual who shouted slogans. Hence, there is no mention at all of any other person involved with the accused whereafter it could be stated that there is in effect a conspiracy being hatched against the State. The learned counsel for the accused has given detail and lengthy a arguments and I must record my deep appreciation with the way he was he 'I has assisted this Court. On the other hand confronted by the arguments of the accused the learned counsel appearing for the State had nothing to add save and except that it was too early to apply for quashment of proceedings and that the proceedings before the trial Court should have been allowed to continue. They have also gone on to argue that quashment proceedings directly to the High Court was not maintainable as there was provision under the law whereby such quashment proceedings could have been initiated before the trial Court. The case-law referred to above has also dwelt on this point of whether a person can come directly to the High Court in a quashment proceedings without applying for the same before the trial Court. In view of what is stated above I have no hesitancy in allowing the application under Section 561-A and quashing the proceedings initiated before the trial Court. Order accordingly. (AAJS) Proceedings quashed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 1203 (DB) Present: JAWAID NAWAZ KHAN GANDAPUR AND NASIR-UL-MULK, JJ. MUHAMMAD SALEEM-Petitioner versus STATE and another-Respondents Criminal Bail Application No. 218 of 1998, decided on 3.2.1999. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 497-Bail-Grant of-Prayer for~Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3) read with Penal Code (XLV of 1860), Ss. 411, 353 & 120-B and West Pakistan Arms Ordinance (XX of 1965), S. 13-Name of petitioner was neither mentioned in F.I.R. nor in confessional statement of co-accused~Co-accused did not mention in confessional statement that petitioner was a party to conspiracy or was a participant in dacoity or recipient of looted money- Case appeared to be was that of receiving and retaining stolen cash and same was punishable under S. 411, P.P.C.—There was no identification parade-Bail granted. [P. 1204] A & B Mr Dost Muhammmad Khan, Advocate for Petitioner. Syed Saeed Hassan Sherazi, Asst. A.G. and Mr. Muhammad Karim Anjam Qasuria, Advocate for Respondent Date of hearing: 3.2.1999. judgment Nasir-ul-Mulk, J.--On 12.2.1998, at around 3.00 p.m., 4 to 5 persons, duly armed, attacked a van belonging to the National Bank Branch, Tijarat Ganj, D.I. Khan, in which cash was being carried after collection from other branches. Apart from the driver, Kifayatullah, Senior Assistant, national Bank and a Guard Constable, Ghulam Hussain, armed with a kalashnikov, were also riding in the van. It is alleged that the dacoits, after successfully disarming the Constable and seizing his weapon, looted a cash of Rs. forty lacks belonging to the Bank. After firing in the air, the dacoits made good their escape in a pick-up parked nearby. A case was registered under Section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and Section 411/353/120-B, P.P.C. read with Section 13 of the Arms Ordinance, at Police Station City, Dera Ismail Khan, on the information of Kifayatullah, the Senior Assistant against unknown persons. On some undisclosed information, the police arrested Muhammad Saleem son of Ramzan, resident of Garah Mithu, Tehsil and district Tank, and allegedly, on his pointatioa, recovered on 1.3.1998 Rupees 3,75,000 cash from his house and the kalashnikov seized by the dacoits from the guard of the National Bank. That subsequently on 6.3.1998, while Muhammad Saleem was taken in police custody, another amount of Rs. 9,80,500 was recovered again from the house of Muhammad Saleem. Meanwhile, on 27.2.1998, one Saifullah son of Jangi Khan, resident of Tank, was arrested. He made confessional statement on 13.3.1998 in which he narrated how the dacoity was planned and how he and his other co-accused looted the money and disposed it of, Muhammad Saleem has applied to this Court for bail after being declined the same by the lower Court. 2. The learned counsel appearing for the petitioner argued that the confessional statement of Saifullah is to be excluded from consideration even at bail stage, because in response to the question put to him by the Magistrate regarding confession, Saifullah had stated that he was pressurized by the Investigating Agency. He next argued that even in the confessional statement, the name of Muhammad Saleem does not appear and that at best the petitioner can be charged for an offence under Section 411, P.P.C. The learned counsel appearing for the National Bank, the complainant in this case, submitted that the recovery of the kalashnikov and cash, duly carrying the stamp of the National Bank, is sufficient to connect the petitioner with the commission of the crime. That there was no reason for the prosecution to plant a huge sum of nearly fourteen lacs on the petitioner. The learned Assistant Advocate-General also opposed the bail on the ground of the petitioner's direct involvement in the dacotiy. 3. In the F.I.R., no one is charged because the dacoits were not known to the three occupants of the Bank's van. For the first time the names of the dacotis appeared in the confession statement of Saifullah. The name of the petitioner does not find mention in the confessional statement at all, either being a party to the conspiracy, or as a participant in the dacoity, or the recipient of the looted money. It also does not seem to be the prosecution's case that the petitioner took part in the dacoity, because after the arrest of the petitioner, no identification parade was held so that the three occupants of the vehicle could identify him as one of the dacoits. It is also not the prosecution's case that the dacoits had muffled their faces. Thus, the only case against the petitioner appears to be receiving and retaining the stolen cash, which is punishable under Section 411, P.P.C. with imprisonment upto three years. Likewise, Section 13 of the Arms Ordinance entails punishment upto seven years imprisonment and which also does not fall under the restrictive limb of Section 497, Cr.P.C. 4. Therefore, without highlighting upon merits of the case, this application is allowed and the petitioner is admitted to bail provided the furnishes bail bonds in the sum of rupees five lacs with two sureties, each in the like amount, to the satisfaction of the Additional Registrar of this Bench, who shall see that the sureties are local residents of D.I. Khan District, resourceful and men of sufficient means. Their property documents/copies of identity Cards shall also be obtained for recr i. (AAJS) Bail allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 1205 [DB] Present: NASiR-UL-MuLK and abdur rauf khan lughmani, JJ. AFSAR ALI etc.-Appellants versus STATE-Respondent Criminal Appeal No. 30 of 1995, dismissed on 19.12.1998 Pakistan Penal Code, 1860 (XLV of I860)-- —-Ss. 302/34--Murder-Offence of--Conviction for--Appeal against--FIR was lodged without any loss of time--P.W. A. is an independent and impartial person having no ill will or grudge with appellants-He bears stamp of presence on his person in shape of fire arm injury-No doubt D. is brother of deceased but relationship per se is not enough to disbelieve him—He is supported by testimony of A-Both PWs are consistent, clear & categorical that appellants duly armed with D.B. shot guns, fired, resulting in death of deceased—In addition, there is long standing abscondence of appellants—Seizure of empties from spot also furnish corroboration-Trial Court rightly convicted appellants-Appeal dismissed. [Pp. 1209 & 1210] A to E Mr. Dost Muhammad Khan, Advocate for Appellants. Syed Saeed Hassan Sherazi, Advocate for State. Syed Zaffar Abbas Zaidi, Advocate for the Complainant. Date of hearing: 15.9.1998. judgment Abdul Rauf Khan Lughmani, J.-This appeal by two brothers, namely, Afsar Ali and Asghar Ali, residents of Khujari, Police Station Kaki, District Bannu, is against order, dated 16.4.1995 of the learned Sessions Judge, Bannu, who convicted them under Section 302 P.P.C read with Section 34 PPC and sentenced them to suffer imprisonment for life with a fine of Rs. 30,000/- each or in default of payment of fine, to further suffer six months R.I. each. 3/4th of the fine, if realized, was directed to be paid to the heirs of the deceased by way of compensation. The benefit of Section 382-B Cr.P.C. was also extended to the convicts. Daraz Khan, complainant, has also filed Criminal Revision No. 7 of 1995 seeking enhancement of the Me imprisonment to death and also award of compensation in terms of Section 544-A Cr.P.C. 2. The case of prosecution, in short, is that on 5th June, 1984, Daraz Khan (PW/6) alongwith Abbas Khan (PW/7) took dead body of his brother Zarwali Khan to Police Station, Kakki, and made report with NasruUah Khan, SHO (PW/10) at about 6.15 A.M. regarding the occurrence taking place in the wee hours of the morning resulting in the death of his brother and injuries to Abbas Khan (PW/7). It was alleged in the initial report that he (complainant) had just offered his morning prayer, when his brother Zarwali Khan and Abbas Khan S/O Gul Said entered the Mosque and started making ablution on the side of water pond. Meanwhile accused Asghar Ali and Asfar Ali duly armed with D.B. Shot Guns, while accused Nazar Ali and Murad Ali armed with 7 MM rifles entered and started firing at Zarwali Khan and Abbas Khan. With the fire shots of accused Afsar Ali, Nazar Ali and Asghar Ali, Zarwali Khan was hit and fell into the pond, whereas Abbas Khan after the receipt of fire arm injury at the hand of Murad Ali fell down. Mir Qadaz and Sher Muhammad happened to be present in the Mosque also witnessed the occurrence. After the occurrence the four accused bolted away. The motive is stated to be blood feud between the parties. 3. After recording report Ex.PA, Nasrullah Khan, SHO (PW/10) read over the report to the deponent as well as Abbas Khan, who after admitting the same to be correct, thumb impressed. He prepared injury sheet (Ex.PB) and inquest statement (Ex.PC) in respect of deceased Zarwali Khan and also prepared injury sheet (Ex.PE) regarding Abbas Khan. He sent the injured and the dead body to the Hospital. He proceeded to the spot and prepared site plan (Ex.PN) with all its foot notes at the instance of PW Daraz Khan. The blood was taken from the place where Zarwali Khan deceased was fired at by the assailants and also from the place of Abbas Khan PW. Those were sealed into parcel, vide memo Ex.PH. One empty of 12 bore (P-l), two empties of 7 MM (P-2) which smelt freshly discharged and three empties of 7 MM (P-3) and 3 card board (P-4) were taken into possession, vide Memo Ex.PJ in the presence of marginal witnesses. Blood stained trouser, bearing cut marks of PW Abbas Khan sent by the Doctor, was sealed into parcel, vide Memo Ex.PK. Likewise, one trousers (P-6) and Banyan (P-7), blood stained with cut marks belonging to Zarwali Khan and a bottle containing 3 pellets sent by the Doctor were also taken into possession, vide memo Ex.PL. He recorded statements of the PWs and made an effort to arrest the culprits, but in vain. He obtained warrants under Section 204 Cr.P.C. and successfully applied for issuance of proclamation under Sections 87/88 Cr.P.C. 4. Dr. Qadardad Khan (PW-4) performed autopsy on the body of Zarwali Khan at 8.40 A.M. on 5.6.1984 and found the following injuries on external examination:- 1. Fire arm injury entry wounds 6 in number in group form on right thigh anteriorly size \" x \". 2. Fire arm injury exit wound four in number on right thigh posteriorly related to wound No. 1 size V x V. 3. Fire arm injury five in number entry wound in group from size 1/6" x 1/6". The wounds are lying on the Epigastrum; 4. Fire arm injury exit wound on the left Lumber Region five in number situated posteriorly related to wound No. 3, size 1/2" x 1/2". 5. Fire arm injury entry wound on left side chest posteriorly size 1/4" x 1/4". 6. Fire arm injury exit wound on upper end of Sternum size 5" x 3". 7. Fire arm injury entry wound on lateral aspect of right shoulder joint, size 1/4" x 1/4". 8. Fire arm injury exit wound on medial aspect of right shoulder joint, in the Axilla size 1/2" x 1"; related to wound No. 7. 9. Fire arm injury entry wound on left Axilla, size 1/6" x 1/6". 10. Fire arm injury entry wound on left Axilla 4" below wound No. 9 size 1/6" x 1/6". INTERNAL EXAMINATION Thorax, walls, ribs, cartilages, pleasure, larynx, trachea, right lung, left lung, pericardium, heart, blood vessels, abdomen, walls, peritoneium, diaphgram, stomach, small intestine, large intestine and kidney were injured. Right femour, right humerous and sternum were fractured. The stomach contained semi digested food. 5. Dr. Ahsanullah Wazir (PW/9) examined Abbas Khan (PW-7), brought by Ajmal FC, at 8 A.M. on 5th June, 1984 and noticed the following injuries:- 1. Entry wound on the lateral side left knee joint 1/6" x 1/6". 2. Exit wound on the medial side of left knee joint 1/4" x 1/4". 6. Accused Nazar All was arrested on 2.6.1987, after his pre-arrest bail was turned down. The remaining accused were absconding. At the conclusion of the trial Nazar Ali was found guilty under Section 302 PPC and read with Section 34 PPC and sentenced him to imprisonment for life with a fine of Rs. 10,000/- or in default thereof to further suffer two years imprisonment. Half of the fine, if realized, was directed to be paid to the heirs of the Zarwali Khan. The benefit of Section 382-B Cr.P.C. was also extend to the accused by trial Court vide judgment dated 11.3.1990. 7. Daraz Khan complainant also filed Criminal Revision No. 5/90 for the enhancement of sentence of life imprisonment to that of death and for award of suitable compensation under Section 544-A Cr.P.C. The High Court, vide judgment, dated 19.10.1992, upheld the conviction and sentence of Nazar Ali. However, criminal revision was accepted to the extent that the convict should pay compensation to the tune of Rs. 30,000/- to the heirs of deceased or in default thereof to undergo simple imprisonment for six months. 8. Nazar Ali sought leave to appeal against the judgment of this Court, dated 19.10.1992, but met with no success as the Supreme Court of Pakistan declined to grant leave, vide judgment, dated 16.10.1993. 9. Accused Murad Ali is absconder. Accused Afsar Ah' and Asghar Ali were absconders. Asghar Ali was granted bail by the Court of Session on 19.2.1986 after his arrest but he subsequently again absconded. Accused Afsar Ah' and Asghar Ali were arrested as a result of successful raid conducted by Kalam Rais Khan, SHO on 20.3.1992. 10. Witnesses were produced by the prosecution in support of its case. Both the convicts, during the course of examination under Section 342 Cr.P.C. did not admit to have committed crime, claimed innocence and false implication. As regards abscondance, the appellant Afsar Ali Shah simply stated that the allegations are incorrect and appellant Asghar Ali Shah claimed to have gone alongwith Afsar Ah' Shah to Karachi to eke out his livelihood and when they left Karachi due to law and order situation and came to the village, where on coming to know of the case, they surrendered. However, no evidence was called in defence. The prosecution mainly relied on the ocular testimony furnished by Daraz Khan PW-6 and Abbas Khan PW-7, the motive, the recoveries, medical evidence and the long standing abscondence of the appellants. The trial Court, relying on the prosecution evidence, convicted and sentenced the appellants as described in Para-1 of the judgment. 11. Mr. Dost Muhammad Khan, learned counsel for the appellants, contended that the findings of the learned trial Court holding his clients guilty of the charge are result of failure to appreciate the evidence and jarring features in the case making it wholly doubtful. He was critical of the lodging of the FIR by PW Daraz Khan, instead of PW Abbas Khan, who having been allegedly injured was relegated to secondary position, would indicate reluctance of PW Abbas Khan to charge as many as four persons and later on he was prevailed upon to become a witness. It was submitted with reference to "morning prayer time' mentioned in the relevant column of the FIR as time of occurrence to convince us that there was delay in making report for which no explanation whatsoever has been offered. Another grievance xpressed by the learned counsel for the appellants is failure to produce independent witnesses. Lastly, it was stressed that the medical evidence contradicts PWs Daraz Khan and Abbas Khan that the appellants fired from higher level of 7/7^ feet. 12. On the other hand, Syed Saeed Hassan Sherazi, learned Assistant Advocate General, did not agree with the criticism of the learned counsel for the appellants and justified the judgment of the trial Court by stating that the initial report was lodged with promptitude by PW Daraz Khan. PW Abbas han is an independent person having no reason to falsely involve the appellants and he fully supported the prosecution version. The various recoveries and unexplained long abscondence of the appellants, according to him, sufficiently corroborate the ocular testimony of PWs Daraz Khan and Abbas Khan. After recording the report at the instance of PW Daraz Khan, PW Abbas Khan admitted it to be correct and also thumb impressed the same. 15. No exception can be taken to "morning prayer time" in the FIR. t is a matter of common knowledge that village rustics do usually specify the time as "Deegarvela", "Peshinveal", "Sham Qazavela" or "Khuftanvela". We also do not find any delay in making the report. The morning prayer time on the eventful morning was upto 5.10 A.M. It is on record, notably in the statement of PW Daraz Khan that the morning congregational prayer had been offered, when he went to the mosque and before the occurrence, he also offered prayer. The deceased and PW Abbas Khan came there to say their prayers and that the deceased was in the process of making ablution when the accused party attacked. The time of occurrence comes to about 4.45 A.M. Considering that the gory occurrence in the early hours of the morning, taking of the dead body and arranging for a transport etc. lodging of repo-,, j by 6.15 A.M. in the Police Station, which is at a distance of about 5 L' Kilometres from the spot, can never be treated as delayed or result of ar after thought. It was, in our view, lodged without any loss of time. 16. PW Abbas Khan did concede presence of 3/4 persons at the time of occurrence in the morning, but omission to produce them is not material for more than one reason. Firstly, PW Abbas Khan is an independent and impartial person having no illwill or grudge with the appellants. He bears stamp of presence on his person in the shape of fire arm injury. Secondly, he equally stated that he did not remember their names. It is well known that generally people are not prepared to appear as witnesses for fear of earning enmity. 17. As regards arguments of the learned counsel for the appellants, that the medical evidence is in conflict with the ocular testimony keeping in view that the fire was directed from a higher level. The distance between the assailants and the deceased is between 7 to 10 paces which comes to 21 to 30 feet. If this height is taken into consideration, the injury wounds would be higher than the exist wounds just by an inch. Again depending on the position of the victim whether he was standing or in the pre cess of standing. Such a small difference of one inch cannot be determined by naked eye, unless measurement of injury and exit wound is from bone prominence. Further the deceased cannot be expected to stand still like a statue at the time of firing. The sequence of the injuries sustained by the deceased is difficult to be determined. As is evident from the site plan Ex.PN, there is sufficient gap between two walls obviously for access to the place of ablution from the mosque and vice versa. The possibility of one or two assailants having come down cannot be ruled out. As stated earlier, apart from the statement of PW Daraz Khan, there is an independent person baring a stamp of presence on his person. He has supported the accusations against the appellants. In a case "Manzoor and others vs. The State and others" (1992 SCMR 2037) the Supreme Court of Pakistan relied on the ocular evidence with regard to the level of injuries as against the opinion of the doctor. In that case the convicts were riding horses at the time of firing at the deceased. It was held as under: "The level of the injuries as ascertained from the medical opinion is not destructive of the ocular evidence with regard to the actual firing done by the accused/appellants. Such expert opinion cannot prevail over the reliable ocular evidence as held in Yaqoob Shah v. The State PLD 1976 SC 53." 18. PW Daraz Khan reiterated the version reflected in the F.I.R. No doubt, he is brother of the deceased but relationship per se is not enough to disbelieve him. He is supported and corroborated by the testimony of Abbas Khan (PW 7), an independent witness and whose presence can in no manner be doubted. Both the PWs are consistent, clear & categorical that the appellants duly armed with D.B. shot guns fired, resulting in the death of Zarwali and injury to Abbas Khan. In ddition, there is long standing abscondence of the appellant, in that, appellant Asghar Ah' Shah was arrested on 2.7.1985 by Nasrullah Khan PW. He after release on bail, absconded. Again, he was arrested alongwith appellant Afsar Ali Shah as a result of a raid by Kalam Rais Khan PW. 8 on 20.3.1992. Appellant Afsar Ali Shah did not admit his abscondence and simply termed it as incorrect. 19. The seizure of one empty of 12 bore, two empties of 7 MM which D smelt freshly discharged, three empties of 7 MM and 3 card boards from the spot also furnish corroboration. 20. We are convinced that the learned trial Court has rightly convicted the appellants. 21. As regards the quantum of sentence, suffice to say, that Nazar Ali co-accused, in the earlier trial, was found guilty and sentenced to suffer life mprisonment with a fine of Rs. 10,000/- or in default thereof to further suffer two years R.I. but the High Court, while maintaining the sentence of life imprisonment on the ground that the deceased died due to injuries of various dimensions, burdened the convict to pay compensation amounting to Rs. 30,000/- in addition to fine of Rs. 10.000/-. The compensation was to be paid to the heirs of the deceased or in default thereof to further suffer six months S.I. The appellants too deserve the same treatment. We, therefore, while maintaining the sentence of life imprisonment of the appellants and that of fine of Rs. 30.000/-, direct that the fine if recovered, is to be paid to the heirs of the deceased or in default to suffer six months' S.I. and the convicts are further fined Rs. 10,000/- each payable to the State or in default thereof to further suffer six months' S.I. 22. Accordingly, the appeal of appellants/convicts is dismissed, while the revision petition filed by the complainant is disposed of in the above terms. (MYFK) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 1211 Present: jawaid nawaz khan gandapur, J. AINULLAH-Petitioner/Accused versus NAZOOL and THE STATE-Respondents Crl. Misc ./ Bail Application No. 170 of 1999, decided on 29.4.1999 . Criminal Procedure Code, 1898 (V of 1898)-- [P. 1212] A & C 1968 Supreme Court (M.R.) 1168 rel . <ii) Criminal Trial- —Appreciation of evidence-Mere possibility of recording different view on basis of available record would not be sufficient for interference- Interference would however be justified only when there is nonappreciation of evidence, collected by Investigating Officer, which may lead to grave mis-carriage of justice or where order of lower Court is absolutely artificial which might create shocking impression on a person with ordinary prudence or where there is overwhelming evidence, collected by Investigating Officer, which might lead to irresistible conclusion, regarding involvement of accused in commission of offence charged with. [P. 1212] B Mr. Abbas Khan, Advocate for Petitioner. Kh. Azhar Rashid, A.A.G. for State. Date of hearing: 24.9.1999. judgment Petitioner Ainullah alongwith Farooq Haider, absconding accused, has been charged for having effectively fired at the house of complainant Nazol. Resultantly the nephew of the complainant aged about 2 years was injured. 2. Since the petitioner, who is directly charged for having committed an offence punishable U/& 324/34 P.P.C. Vide: F.I.R. No. 85 registered atPolice Station, Sheringal, Tehsil and Distt: on 27.12.1997, had absconded, after the occurrence, and had remained fugitive from law for a considerable long time, therefore, he was refused to be released on bail by the Addl. Sessions Judge/Zila Izafi Qazi Dir, Vide: his order recorded on 14.1.1999. 3. A perusal of the record would show that the order is neither arbitrary nor perverse. Besides the conclusion drawn in the impugned judg­ ment suffers from no legal infirmity and needs no interference by this Court. 4. It may be pointed out that the mere possibility of recording different view on the basis of the available record would not be sufficient for interference. Interference would however be justified only when there is non-appreciation of evidence, collected by the Investigating Officer, which may lead to grave mis-carriage of justice or where the order of lower Court is absolutely artificial which might create shocking impression on a person with ordinary prudence or where there is overwhelming evidence, collected by the Investigating Officer, which might lead to the irresistable conclusion, regarding the involvement of the accused in the commission of the offence charged with. 5. Even otherwise, on a tentative assessment of the available record, it is not possible for me to come to the conclusion that reasonable grounds do exist for believing that the petitioner has not committed the offence charged with. The reasons given by the Addl. Sessions Judge for not granting bail to the petitioner are quite convincing and I do not see any justification to interfere with the discretion exercised by him judiciously. If an authority is needed, I am supported by case titled IjazAli Khan us. The State reported as 1968 Supreme Court (M.R.) 1168, wherein it was held by the Hon'ble Supreme Court: - "The petitioner who is charged with the offence of murder has been refused bail by the Courts below from which he now seeks leave to appeal. On examining the facts appearing in the order of the learned Judge in the High Court we are inclined to the view that the conditions laid down in Section 497 Cr.P.C. for refusing bail to the petitioner were amply fulfilled in this case. The petition is dismissed." 6. This bail petition is without any substance and is, therefore , dismissed. (T.A.F.) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 1213 Present: jawaid nawaz khan gandapur, J. MURAD All alias PAPPU-Accused/Petitioner versus STATE and another-Respondents Cr. Misc./Bail Petition No. 227/1999, decided on 19.4.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Bail--Grant of-Prayer for--Offence U/S. 302 of Pakistan Penal Code, 1860-Contention that petitioner's wife was suffering from T.B and had expired because of suffocation and petitioner accused was innocent, falsely charged and not committed murder of his wife-Held: Reasonable grounds do exist for believing that petitioner was connected with commission of offence charged with and that judgment recorded by Sessions Judge rejecting bail application was quite correct-Since Sessions Judge had exercised his discretion judiciously, therefore, there is no need to interfere with orders. [Pp. 1214 & 1215] A, B & C 1968 Supreme Court (M.R.) 1168 rel. Syed Asghar All Shah, Advocate for Petitioner. Khawaja Azhar Rasheed, Asstt. A.G. for State. Date of hearing: 19.4.1999. judgment Briefly stated the facts of the case are that Mst. Nelofar, the wife of accused/petitioner Murad Ali, alias Papu, had strained relation with her husband. Resultantiy she was residing with her parents. It was on 17.6.1996 that a Jirga, consisting of the family members of the accused, went to the house of the parents of the lady wife and because of their deliberations the lady wife was sent by her parents to the accused-petitioner's house. 2. Strangely, the lady wife on the very next day i.e., 18.6.1996 died in the petitioner's house. The post-mortem report of the deceased wife revealed that the death was caused because of suffocation. The matter was eported by her brother namely Shaukat Ali to the Police. The Police instead of registering an F.I.R. entered the report in the daily diary, (Mad. No. 38) on the same day. 3. It appears that the matter was not only enquired into by the local Police but was also enquired into by Inspector Muhibullah Khan, D.P.E.O. However, the petitioner was adamant to get the case registered, therefore, the brother of the deceased had to approach the High Court for the registration of the F.I.R. by filing Writ Petition No. 700 of 1996 (Shaukat Ali vs. Superintendent of Police, Nowshera and others) which was decided by His Lordship Mr. Justice Abdul Rehman Khan and Mr. Justice Mian Shakirullah Jan. It was here, in the High Court, that the Police officials had filed their comments wherein they stated that an inquiry U/S 174 Cr.P.C. has been initiated and that the stomach contents of the deceased had been sent to F.S.L. Lahore for chemical examination for opinion regarding the cause of the death. They further stated that the moment the requisite report is received by them they would proceed further in the matter in accordance with law. Accordingly the brother of the deceased did not press his writ petition further which was disposed of in the following terms:- "3.11.1996. Abdur Rehman Khan. J.--The comments of Respondent No. 2 reveals that they have initiated inquiry under Section 174 Cr.P.C. and have sent stomach contents etc. for chemical examination to F.S.L. Lahore for opinion regarding cause of death and the moment that report is available, they would proceed in the matter in accordance with law. The petitioner would, therefore, not for the time being press this writ petition and would take appropriate steps in the light of the report of the Laboratory and the action on it by the Police. This writ petition is accordingly disposed of." Sd/- (ABDUR REHMAN KHAN, J.) Sd/- (MIAN SHAKIRULLAH JAN) 4. It is indeed shocking that it took the Police about two and a half years to register the F.I.R. (F.I.R. No. 462 dated 27.10.1998). Resultantly the accused-petitioner was arrested on 28.10.1998. 5. After having failed to get himself released on bail from the lower forums the petitioner has now approached this Court for the redress of his grievance contending that he is innocent, falsely charged and has not committed the murder of his wife. According to him, his wife was suffering from T.B. (Tuberculosis) and had expired because of suffocation. 6. On the other hand, the case of the prosecution is that she was done to death by the petitioner by placing a pillow on her mouth/nose with the result that she suffocated and resultantiy died. The prosecution further alleged that there is nothing on the file to suggest, even remotely, that the woman was in fact suffering from T.B. or any other ailment and had remained under the treatment of some doctor including a lady doctor. The Prosecution has further alleged that it was for this reason that was never ever admitted to any Hospital because of her alleged illness. According to the learned counsel for State the lady wife was done to death intentionally. 7. Without dilating upon the merits of the case at this stage because it may prejudice the mind of the trial Judge, I am of the view that reasonable grounds do exist for believing that the petitioner is connected with the commission of the offence charged with and that the judgment recorded by the Sessions Judge, Nowshera (Mr. Jehangir Khan) is quite correct. Since the Sessions Judge has exercised his discretion judiciously, therefore, there is no need for me to interfere with the same. 8. Even otherwise, on a perusal of the available record it is not possible for me to come to the conclusion that the reasons given by the Sessions Judge for not granting bail to the accused-petitioner are either arbitrary or perverse and that the same are not convincing. Therefore, I do not see any justification to interfere with the discretion exercised by him. 9. Reliance is placed on case titled Ijaz All Khan vs. The State reported as 1968 Supreme Court (M.R.) 1168, wherein it was held by the Hon'ble Judges of the Supreme Court as under: - "The petitioner who is charged with the offence of murder has been refused bail by the Court below from which he now seeks leave to appeal. On examining the facts appearing in the order of the learned udge in the High Court we are inclined to the view that the conditions laid down in Section 497 Cr.P.C. were amply fulfilled in this case. The petition is dismissed." 10. For the above stated reasons I am convinced in my mind that this bail application is without any substance and is accordingly dismissed. (T.A.F) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C . ( Peshawar ) 1215 Present: jawaid nawaz khan gandapur, J. BASAAT RAZAQ-Petitioner versus STATE-Respondent Cr. M ./ B.A. No. 1535 of 1998, decided on 22.1.1999. Criminal Procedure Code, 1898 (V of 1898)- S. 497» Bail"Grant of--Prayer for-Offence U/A. 3/4 Prohibition (Enforcement of Hadd ) Order 1979-Contention that there was nothing on file to suggest that substance which had recovered, allegedly from possession of petitioner was " charas " because report of Forensic Laboratory was not available on file-Further contended that petitioner was entitled to be released on bail not as a matter of grace but as a matter of right-State counsel frankly conceded that there was no report from Chemical Examiner to show/establish that substance which was recovered from possession of petitioner was cAaros -Investigating Officer had failed to obtain requisite report-Petition accepted with the direction to Addl. Registrar that sureties should be respectable persons, hail from settled areas of Distt : Peshawar and have sufficient property in their names. [Pp. 1216 & 1217] A & B Syed Lai Badshah , Advocate for Petitioner. Kh . AzharRashid , A.A.G. for State. Date of hearing: 22.1.1999. judgment Syed Lai Badshah Advocate learned counsel for the petitioner and Kh . Azhar Rashid learned Asstt : Advocate General for the Sate present and heard. Record of the case perused. 2. At the very out-set the learned counsel for the petitioner submits that there is nothing on the file to suggest that the substance which was recovered, allegedly, from the possession of the petitioner is " Charas " because the report of the Forensic Laboratory is not available on the file. He further stated that in the circumstances the petitioner is entitled to be released on bail not as a matter of grace but as a matter of right. 3. When the learned Asstt . Advocate General was faced with this situation, he frankly conceded, and rightly so, that there was no report from the Chemical Examiner to show/establish that the "substance" which was recovered from the possession of the petitioner was " Charas ". He further stated that in this case the Investigating Officer has failed to perform his duty because he was bound by law to obtain the requisite report from the a Forensic Laboratory, Peshawar to establish that the "substance", (2 Kg.), recovered from the possession of the petitioner was in fact " Charas ". He was accordingly directed to contact the Inspector General of Police N.W.F.P. Peshawar (Maj. Syed Kama ! Shah) and the Senior Supdt : of Police Peshawar ( Malik Muhammad Saad ) and to ask them to issue necessary instructions to their subordinates to do the needful in future well within time. 4. This petition for bail is accordingly accepted. The petitioner shall be released forthwith, if not required in any other case, provided he furnishes bail bonds in the sum of Rs . 50,000/- ( Rs . Fifty thousand) with two sureties, each in the like amount, to the satisfaction of the Addl. Registrar (Judicial) of this Court. 5. The Addl. Registrar shall see that the sureties are respectable persons, bail from the settled areas of Distt : Peshawar and have sufficient property in their names. Attested copies of the property documents/photo copies of their identity cards shall be obtained by the Addl. Registrar and placed on file for record under intimation to my Private Secretary. 6. A copy of this order shall be sent to the Chief Secretary, Govt. of N.W.F.P., Peshawar for information and onward transmission to the Home Secretary/Inspector General of Police Peshawar. Another copy shall be retained by my Private Secretary for record. (T.A.F.) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 1217 Present: jawaid nawaz khan gandapur, J. NEK MUHAMMAD-Petitioner versus STATE and 5 others-Respondents Cr. Revision No. 55 of 1998, decided on 21.5.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 439(5)--5 accused charged for committing offences, punishable U/Ss. 302 404/148 and 149 Pakistan Penal Code, 1860 and were acquitted U/S. 266-K Cr.P.C.--Revision petition filed against said judgment-Held: Revision petition is not at all competent in view of provisions laid down in Section 439(5) Cr.P.C.-Held further: Revision cannot be converted into appeal as same is barred by time by about 6 months which cannot be condoned. [Pp. 1217 & 1218] A & B Mr. Muhammad Nasir Mahfooz, Advocate for Petitioner. Nawabzada Saleem Dil Khan, Advocate for Respondent No. 2 to 6 and Khan Azhar Rashid, A.A.G. for State. Date of hearing; 21.5.1999. judgment Arguments heard. Record of the case perused. 2. This Criminal Revision Petition, filed against the judgment of Zaila Qazi/Sessions Judge, Malakand at Batkhela Camp Court Chakdara, recorded on 13.12.1997, Vide: which respondents-accused Nos. 2 to 6, charged for committing offences, punishable U/S. 302/404/148/149 P.P.C., in case registered Vide. F.I.R. No. 321 dated 20.9.1994 lodged at Police Station Ouch, were acquitted U/S. 265-K Cr.P.C. is not at all competent in view of the provisions laid down in Section 439 (5) Cr.P.C. which is to the following effect; - "439(5) Cr.P.C. Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed." 3. Beside this the present Criminal Revision cannot be converted into an appeal as the same was filed on 14.7.1998 and is therefore barred by time by about six (6) months, which, under the circumstances of this case, cannot be condoned. & 4. Since this Criminal Revision is not competent, therefore, it is dismissed alongwith the condonation application i.e., No. Cr. M. No. 116/99. (T.A.F.) Revision dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 1218 [DB] Present: MuHAMMD azam khan and abdur ruaf khan lughmani, J. Syed RASOOL KHAN-Appellant versus STATE and another-Respondents Criminal Appeal No. 7 of 1999, dismissed on 17.3.1999. Suppression of Terrorist Activities Act, 1975-- —-S. 7--Offence u/S. 302(b) PPC--Conviction for-Appeal against-Presence _ of eye witnesses at relevant time is fully established and their testimony is above board-All PWs were subjected to cross-examination but nothing favourable to accused could be elecited-They had no enmity with appellant, neither deceased or complainant party had enmity or ill will ~~ with any one else-Motive advanced by prosecution that deceased was done to death simply because he refused to give in to immoral demand of appellant was fully proved-Fire-arm expert, confirmed that five empties recovered from spot were fired from service rifle which was given to appellant for performance of his duties-Appellant committed murder of deceased in brutal manner in broad day light by firing as many as 7/8 shots-Prosecution has proved its case-Trial Court rightly convicted appellant-Appeal dismissed. [Pp.1222,1223 & 1225 ] A to E 1998 P.Cr.L.J. 426 ref. Syed Zafar Abbas Zaidi, Advocate for Appellant. Syed Saeed Hassan Sherazi, A.A.G. for State. M/s Dost Muhammad Khan and Pir Liaqat Ali Shah, Advocates for Complainant/Respondent No. 2. Date of hearing: 17.3.1999. judgment Abdur Ruaf Khan Lughmani, J.-The appellant, namely, Said Rasool/S/o Haqdad Khan, resident of Village Zeran, Tehsil and District Lakki Marwat, has filed this appeal against the judgment, dated llth February, 1999, passed by the learned Special Judge, Bannu, in case F.I.R. No. 1080, dated 27.12.1998 of Police Station City, Bannu, vide which he was convicted under Section 302 (b) PPC for the murder of Haroon-ur-Rasheed and sentenced to death and to pay Rs. 4 lacs as compensation to the legal heirs of the deceased in terms of Section 544-A(l) Cr.P.C. 2. The case of the prosecution, as unfolded, at the trial is that on the eventful morning of 27th December, 1998, Muhammad Qasim (PW. 7) alongwith his sons Nawab Khan (PW. 8) and Haroon ur Rasheed (deceased aged about 15/16 years) had gone to the clinic of Dr. Saadullah Khan, situated inside Puhari Gate, Bannu City . At about 9.15/9.30 A.M., appellant Syed Rasool Khan, a Police Constable, posted at Police Post Puhari Gate, which is at a distance of 52 (single) paces from the said clinic, came duly armed with service rifle and started firing at Haroon-ur-Rasheed, who having been hit, fell down and succumbed to the injuries on the spot. PW Muhammad Jaseem was also present at the time of occurrence. The motive for the offence is stated to be that the appellant was in love with the deceased and wanted to establish friendship with bad intention, but the deceased refused to oblige him. The appellant rushed towards the Police Post Puhari Gate in order to take shelter, as he was being chased by angry people who wanted to beat him. 3. Ghulam Habib, SHO, Police Station City (PW. 9) at about 10.00 A.M. was informed on telephone that a Police Constable of Police Post Puhari Gate had committed murder. He rushed there, where he noticed the said Police Post encircled by the people, raising full throat slogans. The mob apprised him that a boy had been assassinated by the constable, who should be handed over to them so as to avenge the murder of the innocent deceased. The S.H.O. cooled down the mob by assuring and satisfying them that the culprit was in his custody and action would be taken without any fear or favour. The size of the mob grew in number and so was shouting. Sensing critical situation, he tactfully shifted the appellant to Police Lines. The dead body had already been sent to the Police Station. Since the spot was close, he, therefore, inspected it cursorily and seized five empties and some blood. Thereafter, he went straight to the Police Station. Muhammad Qasim (PW. 7), pprehending that the appellant might not be favoured, submitted report in writing (Ex.P/1) to the S.H.O. which was accordingly incorporated into the F.I.R. (Ex.PA). He prepared injury sheet (Ex.PM/I) and inquest report Ex.PM/2). Meanwhile, he was informed over wireless that the angry mob grew unchecked and attacking the Police Post Puhari Gate, had set it on fire. During the attack, the angry mob also looted the service rifles of the police officials from the police post, besides ransacking public properties and setting ablaze other police psots/stations of the city. Vide F.I.R. No. 1081, dated 27.12.1998 case was registered at Police Station City, Bannu, under Sections 302/324/353/436/395/396/427/148/149/120B P.P.C. read with Sections ¾ Explosive Substances Act, against numerous persons. Due to extremely deteriorating law and order situation in the city, the Investigating Officer had to defer the investigation. To control the law and order situation and to restore normalcy, the District Magistrate clamped curfew with effect from 27th December, 1998, which was later on lifted on the evening of 30th December, 1998. 4. The Investigating Agency of the State once again came into motion on 31.12.1998. S.H.O. Ghulam Habib (PW. 9) prepared the site plan (Ex.PB), took into possession shirt (Ex.P. 4), shalwar (Ex.P-5) Bunyan (Ex.P-6), warm jersey (Ex.P.7), P.M. report alongwith a sealed bottle containing bullets (Ex.P.3), vide recovery memo (Ex.PR/2). He recorded the statements of the P.Ws. One Azizullah was arrested and on his pointation three service rifles, including the one bearing No. 155/DB, allegedly used by the appellant in the commission of offence, were recovered. He took into possession the weapon of offence vide, memo Ex.PR/1 and sealed it into a parcel. He sent the rifle, five empties recovered from the spot and the bullets extracted from the dead body by the Doctor to the Arms Expert. The Arms Expert, namely, Aziz Khan (PW. 1) found that the five empties had been fired from the crime rifle and that the bullets were of 7.62 bore. 5. Dr. Riyaz Ahmad Khan, Medical Officer (PW. 3) conducted autopsy on the dead body of Haroon ur Rasheed on 27.12.1998 at 2.00 P.M. and found the following:- ENTRANCE WOUNDS: 1. Entry wound of 1/4" size over tip of right shoulder. 2. Entry wound 2" x 3" size just behind right ear in scalp. 3. Entry wound of 1/4" size in outer upper part of left buttock. 4. Entry wound of 1/4" size in middle border of back of left thigh, near upper end. 5. Entry wound of 1/4" size in lateral part of upper end of left thigh. 6. Entry wound of 1/4" size, in the middle of back of left thigh. EXIT WOUNDS 1. Exit wound of 2" x 3" in left side of abdomen above middle of left anguinal legament. 2. Exit wound of 1/2" in size in left scrotal cycle injuring penis and testices. 3. Exit wound of 1/2" in middle part of front of left thigh, near upper end of it. 4. Exit wound of 1/2" size in middle part of front of left thigh near upper end. GRAZE WOUNDS 1. A 3" x 6" size graze over front of right side of chest. 2. A 1" graze at upper end of front of right thigh. BULLETS RECOVERED 1. Bullet recovered from right side back of chest over medial angle of scapular spine by giving incision. 2. Bullet recovered by giving incision over dorsal vertebral-column at the level of fourth vertebra. INTERNAL EXAMINATION Abdomen & Thorax: Carnium, spinal cord, pericardium, heart, walls, peritonium, small and large intestines, organs of generation & muscles were injured. Scalp bone, left thigh bone, right shoulder, cervical vertebrae and upper dorsal vertebrae were fractured. The deceased died due to fire arm injuries to vital organs like brain and spinal cord. He died instantaneously. A bottle containing two bullets recovered from the dead body and clothes of the deceased were sent to the police. 6. On completion of the investigation challan was put in the Court of Judge, Special Court , Bannu. 7. The appellant, who was charged under Section 302 P.P.C. did not plead guilty and exercised the right of trial. 8. The prosecution produced as many as 9 witnesses in support of its case, whereas rest of the witnesses, including Muhammad Jaseem, were abandoned. The appellant, during the course of examination under Section 342 Cr.P.C., claimed innocence and false implication. He denied that rifle No. 155/BD, was handed over to him by PW Muhammad Saeed constable for the performance of duty and or that he used it in the commission of crime. According to him, he was performing his duties as "sentry", when in the meantime he noticed two persons passing in front of the post. He suspected that they were hiding illegal arms. He stopped them and enquired about the authority under which they were carrying arms. They resisted, whereupon many people gathered and amongst them was one Mir Nawaz, who runs business of Hardware in close vicinity. They started beating him and he ran, to save his skin, towards police post and took shelter there. However, no evidence was called in defence. 9. Syed Zafar Abbas Zaidi, learned Counsel for the appellant, vehemently assailed the award of punishment to his client on the following grounds:- Firstly, presence of the eye witnesses at the crucial time is improbable and highly doubtful as Dr. Saadullah Khan (PW. 2) in whose clinic they were allegedly employed, was to start work from 12.00 noon; Secondly, in the absence of marginal witnesses to the recoveries and the report of Forensic Science Laboratory are not reliable; Thirdly, there is no reliable evidence forthcoming on the record as what was the immediate cause of the occurrence and the motive is shrouded in mystery; Fourthly, that the case was and is not triable by a Special Judge as the offence was allegedly committed with a licenced weapon; and Lastly, that at any rate it is not a case of the nature where capital punishment is warranted. 10. Mr. Dost Muhammad Khan, learned counsel for the complainant, and Syed Saeed Hassan Sherazi, learned Assistant Advocate General, for the State have, however, supported the conviction and sentence awarded by the Special Judge, Bannu, to the appellant by stating that the evidence led by the rosecution proved guilt of the accused beyond any shadow of doubt and in the circumstances, the normal penalty of death is proper. 11. We have anxiously considered the arguments advanced by the learned counsel of both the sides and have also minutely gone through the record of the case. 12. We are of the considered view that the presence of the eye witnesses at the relevant time is fully established and their testimony is above board. Objection of the learned counsel for the appellant that since Dr. Saadullah Khan (PW. 2) was not present and he was to commence his business at 12.00 noon, the presence of the PWs Muhammad Qasim and Nawab Khan at the crucial time in the said clinic, is not warranted, is devoid f force. The said Doctor, during the cross-examination, had stated that his clinic opens at 8.00 A.M. and on Sunday he used to go to Domel and returns at 12.00 noon to start his work. It is a matter of common knowledge that the subordinate staff of medical practitioners ordinarily come earlier than the scheduled hours so as to open the clinic, set the things right and prepare list of patients. Dr. Saadullah Khan (PW. 2) did state that deceased Haroon ur Rashid with his father PW Muhammad Qasim and Muhammad Jaseem used to work in his clinic. No doubt, PW Muhammad Qasim is a lineman in the WAPDA and the deceased was a student, but to eke out better livelihood, the low paid employees of various organizations do undertake part time jobs. Similarly, the deceased was also doing part time job to help his father to overcome financial hardships, besides studying regularly. P.Ws. Muhammad Qasim and Nawab Khan have fairly and squarely charged the appellant for the murder of the deceased. They claimed to be eye witnesses and in their view the appellant fired recklessly 7/8 shots, resulting in the tragic death of the deceased on the spot. All the P.Ws. were subjected to cross-examination but nothing favourable to the accused could be elected. There is nothing on record to show that the eye witnesses have any enmity with the appellant or substituted the appellant for real culprit so as to discredit their testimony. Similarly, there is nothing to suggest that the deceased or the complainant party had enmity or illwill with any one else. In fact the motive advanced by the prosecution would lend ample support to the prosecution case that the deceased was done to death simply because he refused to give in to the immoral demand of the appellant. 13. Next important piece of evidence is furnished by Muhammad Saeed F.C. (PW. 4), who deposed that on the eventful morning from 6.00 A.M. to 9.00 A.M. he performed his duty as sentry and thereafter handed over his responsibility alongwith rifle No. 155/BD (China made) to the appellant Syed Rasool Khan. He went to sleep and after some time woke up on the report of fire shots. He and Rabban Shah F.C. came out of the Police Post and saw the appellant being chased by people. He confirmed that the people wanted to beat him but they successfully intervened and after some time the S.H.O. (PW. 9) also arrived. 14. The contention of the learned counsel for the appellant with regard to the absence of the marginal witnesses to the recovery of empties effected from the spot, is without any substance in the circumstances of the case. It is on record, notably, in the statement of I.O. that while going back from the police post to the Police Station, he went to the spot which is at short distance, and recovered some blood and five empties. The spot inspection was done very swiftly in a minute or so by picking up blood and empties. The police constables, accompanying him during the spot inspection, were busy in controlling and pushing the people back. His immediate concern was to take into possession the blood and the empties from the spot at a time when the demonstrators were being pushed back by the constables so as to facilitate the spot inspection by the Investigating Officer. Non-association of marginal witnesses would not discredit the recovery which is otherwise quite genuine. The law and order situation deteriorated to such an extent that the police officials had to take off uniform and to wear civilian dress in order to take the dead body for Post-mortem examination. There is no reason to doubt the Investigating Officer. He was straightforward in the matter of recoveries though he could fabricate the memo by mentioning marginal witnesses therein. On 31st December, 1998, he resumed investigation, recovered fire arm weapon, allegedly used in the commission of crime, on 2.1.1998, 3rd January, 1999 happened to be Sunday and on 4th January, 1999, the recovery Memos were sent to the Forensic Science Laboratory for xamination and report. PW Aziz Khan, Fire-arm Expert, confirmed that the five empties recovered from the spot were fired from the service rifle bearing No. 155/DB (China made) which was given to the appellant for the performance of his duties at 9.00 A.M. by PW Muhammad Saeed F.C. 15. With regard to the third grievance of the learned counsel for the appellant about the absence of immediate cause of occurrence and that motive is shrouded in mystery, the presence of PW Muhammad Qasim, ather of the deceased and Nawab Khan (PW. 8), brother of the deceased, is sufficient to answer the question which further gets support from the statement of Muhammad Saeed F.C. (PW. 4) who is in fact colleague of the appellant. This witness had stated that he handed over he service rifle to the appellant at about 9.00 A.M. as it was the turn of the latter to perform duly as sentry and, that after sometime he heard report of the fire shots whereupon he woke up and saw the appellant coming towards the police post, following by people who wanted to beat him but were successfully prevented. PW Muhammad Qasim alleged in his written report (Ex.P/1) that the appellant wanted to have friendship with the deceased with bad intention but the deceased had refused to accede to his demand. He advanced the same motive in his statement before the Court as PW. 8 & on this point he was not at all cross-examined. He being father of the deceased, categorically mentioned this fact in his statement before the Court which cannot be disbelieved by any stretch of imagination. The motive is not shrouded in mystery. The appellant was performing his duties at the Police Post and the moment he came to know of the presence of the deceased at the clinic, he left the place of duty without informing anyone. The manner in which the deceased was done to death speaks for itself. The deceased was sprayed with bullets and this fact is further evident from the medicolegal report confirming about six entrance, four exit and two graze wounds. The ocular evidence is consistent and clear that the .appellant is responsible for causing murder of Haroon-ur-Rasheed by firing 7/8 shots. 16. About lack of jurisdiction of the Special Court, it was contended that the offence allegedly committed by the appellant, is not Scheduled offence, if the provisions of Section 2(b) are read with Paragraphs (b) & (c) of the Schedule of the Suppression of Terrorist Activities Act, 1975. In short, the plea of the appellant is that the allotment and use of rifle is governed under the Police Rules, 1934 and any violation of the rule is amenable to disciplinary action but cannot be treated as nlicenced firearm weapon. Only those arms and ammunitions are called licenced one for which a licence is issued under the Pakistan Arms Act 1965 (Ordinance XX of 1965). Admittedly, the appellant did not possess any licence under the Arms Act wherein licence is also defined in S. 3(l)(e) of the Arms Act, 1965. No doubt, a sentry while performing his duty is authorized to possess a firearm in terms of Rule 6.9(1) of the Police Rules, 1934 which provides that when rifles are issued from the armoury each man shall take the particular rifle registered against his name and shall be held responsible for it. The prosecution has succeeded in establishing that the rifle with which the appellant committed murder of the deceased was not allotted to the appellant but was given to Muhammad Saeed F.C. (PW. 4). Under Section 9 of the Arms Act 1965, any person having in his possession, or under his control any arm or ammunition or military stores, except under a licence and in the manner and to the extent permitted thereby, shall be guilty of the offence under Section 13 of the Act ibid. Of course, licence is the one issued under the provisions of the Arms Act 1965. We are also of the view that any violation of the Rule 6.9(1) of the Police Rules, 1934, is not only amenable to disciplinary action but also subject to the Pakistan Arms Act, 1965. Assuming without conceding, for the sake of arguments that arms and ammunitions supplied to the police personnels and their possession under the Police Rules is not only authorized but also legal one and can be treated as licenced weapon, even in that case, the appellant cannot gain any premium, because the rifle with which he committed the murder of the boy, was neither specifically allotted to him nor had he any authority to use it for the commission of crime. He used a rifle allotted to another sentry, namely, Muhammad Saeed F.C. (PW. 4) and that too at a place other than that where he was supposed to be armed with a service rifle. The moment he left the place where he was required to perform his duty and went with the c intention of committing the murder of the deceased, he violated the terms and conditions of the licence, if at all it is presumed to be a licenced one, because even with the licenced arm muder cannot be committed. In the instant case, the appellant was not possessing the rifle specifically allotted to him and was carrying a rifle allotted to another sentry, and for all practical purposes, can be treated as un-licenced weapon. On the view of the matter that we take, we are firm in our view that the prosecution has proved to its hilt the murder of Haroon-ur-Rasheed, deceased at the hands of the appellant and, therefore, the learned trial Judge rightly convicted him under Section 302-B PPC. 17. As regards the punishment, the appellant, after leaving his duty place, committed the murder of the deceased in brutal manner in broad day light by firing as many as 7/8 shots. Crime of violence of this nature ommitted on account of refusal of the victim to satisfy the appellant's unholy passion by firing recklessly, must be ut down with iron hand and the award of death penalty is adequate and proper for his act of wild aggression. Accordingly, while maintaining conviction and sentence as well as the award of compensation under Section 544-A Cr.P.C., we dismiss this appeal. 18. The learned trial Judge has also sent to this Court Murder Reference (No. 1 of 1999) for the confirmation of the death sentence. Under the Suppression of Terrorist Activities (Special Court) Act, 1975 the sentence of death passed by the trial Court is final at that end and it does not require confirmation by this Court in terms of Section 374 Cr.P.C., firstly, because under Section 374 Cr.P.C. the sentence of death awarded by Court of Sessions is subject to confirmation by the High Court and not a sentence of death passed by a Court constituted under the Special Act and, secondly, the provisions of Chapter XXVII have not been made applicable to the proceedings under the Suppression of Terrorist Activities (Special Court) Act, 1975. In this view we are fully fortified by a Division Bench judgment reported as Abdul Qadir and another - appellants vs. The State - respondent (1998 P.Cr.L. J. 426) wherein it was held that no reference for the purpose of confirmation of the sentence of death shall be competent before the High Court in accordance with the provisions of Section 374 Cr.P.C. passed by the Special Court constituted under the Act of 1975. It was held that if convict submits an appeal against the sentence to the High Court within the prescribed limitation, that would be disposed of in accordance with law. Consequently, the murder reference is disposed of as incompetent. 19. Before we part with the judgment, we direct that a copy of this judgment, besides all the concerned agencies shall be immediately supplied to the appellant free of cost through the Superintendent of the Jail concerned. A copy of the judgment should also be forwarded to the Secretary to the Government of N.W.F.P. Home Department and to the Inspector General of Police, NWFP, for strict compliance. They should issue directions for strict adherence to the Rules and instructions regarding keeping of arms by the police personnels in accordance with the Rules and Regulations of the Police Department and for this purpose they should also arrange prompt check system. (MYFK) Appeal dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 1226 Present: jawaid nawaz khan gandapur, J. KHALIQ NOOR-Petitioner versus STATE-Respondent Crl. Misc. No. 127 of 1999, decided on 2.14.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497«Bail--Grant of~Prayer for--Offence U/S. 3/4 Prohibition (Enforcement of Hadd) Order, 1979 read with Ss. 9 & 51 of Control of Narcotic Substances Act, 1997-69 Kilograms of cAaros-Recovery of~ Contention of learned counsel that petitioner had no knowledge about presence of contraband "charas" in secret cavities of vehicle, has no substance-Even otherwise reasons given by Special Judge for not granting bail to petitioner are quite convincing-There is no need to interfere with discretion exercised by him judiciously-Bail petition dismissed. [Pp. 1227 & 1228] A & B 1968 SCMR1168 rel. Mr. Muhammad Amin Khattak, Advocate for Petitioner. Khawaja Azhar Rashld, A.A.G. for Sate. Date of hearing: 2.4.1999 (announcement on 19.4.1999). judgment The petitioner stands charged for having committed an offence punishable U/Ss. 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with Section 9 of the Control of Narcotic Substance Act, 1997, Vide: F.I.R No. 131 dated 6.12.1998 registered at Police Station, Shakardara, Distt: Kohat. 2. The petitioner after his arrest moved an application before the Judge, Special Court , Kohat (Malik Mujtaba Ahmad) for bail who rejected the same Vide: his order dated 14.1.1999. 3. The petitioner has now approached this Court for the redress of his grievance alleging therein that he is innocent, falsely charged and, therefore, entitled to be released on bail. 4. Mr. Muhammad Amin Khattak, Advocate, learned counsel for the petitioner and Kh. Azhar Rashid, learned Assistant Advocate General, for State present and heard. Record of the case perused. 5. The punishment provided for the offence mentioned above is either death or life imprisonment as the quantity of the narcotics recovered (69 Kilograms of Charas) from the car of the petitioner exceeds far more than one Kilogram. The petitioner cannot be, therefore, released on bail as laid down in Section 51 of the said Act. The same is reproduced as under:- "Section 51. No bail to be granted in respect of certain offences.--() Notwithstanding anything contained in Sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death. (2) In the case of other offence punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount." 6. The contention of the learned counsel for the petitioner that the petitioner had no knowledge about the presence of the contraband "charas" in the secret cavities of the vehicle, has no substance. It shall be looked into at the time of trial. 7. Even otherwise, on a perusal of the available record, it is not at all possible for me to come to the conclusion that reasonable grounds do exist for believing that the petitioner has not committed the offence charged with. The reasons given by the Special Judge for not granting bail to the petitioner are quite convincing and I do not see any justification to interfere with the discretion exercised by him judiciously. Reliance is placed on a case titled Ijaz All Khan vs. The State reported as 1968 Supreme Court (M.R) 1168, wherein it was held by the Hon'ble Supreme Court: - "The petitioner who is charged with the offence of murder has been refused bail by the Court below from which he now seeks leave to appeal. On examining the facts appearing in the order of the learned Judge in the High Court we are inclined to the view that the conditions laid down in Section 497 Cr.P.C. were amply fulfilled in this section. The petition is dismissed." 8. In the circumstances, this petition for bail is without any force and is accordingly dismissed. (T.A.F.) Bail rejected

PLJ 1999 Cr PLJ 1999 Cr.C . ( Peshawar ) 1228 Present: JAWAID NAWAZ KHAN GANDAPUR, J. RAHIM SULTAN-Petitioner versus STATE-Respondent Cr. Misc ./ B.A. No. 443 of 1999, decided on 28.4.1999. Criminal Procedure Code, 1898 (V of 1898)- —S. 497-Bail-Grant of-Prayer for-Offence U/S. 3/4 Prohibition (Enforcement of Hadd ) Order, 1979 read with Section 498-B Pakistan Penal Code, 1860--C/ iaros and forged currency notes-Recovery of- Condition laid down in Section 497 Cr.P.C . for refusing bail to petitioner were amply fulfilled-Petition dismissed. [P. 1229] A 1968 SCMR 1168 rel . Mr. Atta-ur-Rehman Khan, Advocate for Petitioner. Date of hearing 28.4.1999. order The petitioner was arrested on 11.11.1998 while he was transporting contraband narcotics i.e., " Charas " weighing 2 Kg (2000 grams) in Bus No. PRC-1711 from Karkhano Market Peshawar where all the smuggled goods are available and are being sold openly under the very nose of the Police/ Chustom Authorities etc., to Peshawar. Additionally, the petitioner was also bringing 110 forged currency notes of the denomination of Rs . 100/- each ( Rs . 11,000). 2. When the bus was stopped and the petitioner was searched and the articles were recorded from his possession he was asked if he could show that he was in lawful possession of the same. The petitioner failed to produce any evidence to show that he was in lawful possession of the same, therefore, he was arrested by Muhammad Aman Shah Khan, Sub. Inspector, Police Station, Hashtnegri , Tehsil & Distt : Peshawar . A case was accordingly registered against him U /S. 3/ 4 of the Prohibition (Enforcement of Hadd ) Order, 1979 read with Section 498-B PPC. Vide F.I.R. No. 578 dated 11.11.1998 lodged in Police Station, Hashtnagri , Tehsil & Distt : Peshawar . 3. The petitioner's bail application was firstly rejected by Mr. Abdul Hakeem Hashmi , Senior Civil Judge/ Judl . Magistrate, Peshawar and then by Mr. Muhammad Azeem Khan Afridi , Addl. Sessions Judge (II) by their orders dated 19.11.1998 and 25.3.1999 respectively. Hence this petition. On a perusal/tentative assessment of the available record, it is not at all possible for me to come to the conclusion that reasonable grounds do exist for believing that the petitioner has not committed the offence charged with. Moreover the reasons advanced by the lower forums for not granting bail to the petitioner are quite convincing and I do not want to upset their findings as they have committed no illegality or material irregularity. Reliance is placed in this respect on case titled IjazAli Khan vs. State reported as 1968 Supreme Court Monthly Review 1168, wherein it was held by the Hon'ble Supreme Court:- "The petitioner who is charged with the offence of murder has been refused bail by the Courts below from which he now seeks leave to appeal. On examining the facts appearing in the order of the learned Judge in the High Court we are inclined to the view that the conditions laid down in Section 497 Cr.P.C . for refusing bail to the petitioner were amply fulfilled in this case. The petition is dismissed." 5. This bail petition is without any substance and is, therefore, dismissed in limine . (T.A.F.) Bail refused.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 1230 Present: muhammad azam khan, J. ASHRAF KHAN-Petitioner versus STATE--Respondent Crl. Misc./B.A. No. 249 of 1999, decided on 21.5.1999. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Bail-Grant of-Prayer for--Offence U/S. 3/4 Prohibition (Enforcement of Hudood) Order, 1979 read with Control of Narcotic Substances Act, 1997-One kilogram heroin-Recovery of~According to school leaving certificate petitioner at the time of commission of offence was 13/14 years-Report of Chemical Examiner after lapse of 9 months is not available-Offence for which petitioner is charged does not entail punishment for more than 7 years-Offence do not fall within prohibitory clause of Section 497 Cr.P.C.-Petitioner has been charged under two laws out of which Prohibition Order provides a lesser sentence-Petition accepted-Petitioner is stated to be an Afghan refugee, sureties should be local and men of means. [Pp. 1230 & 1231] A Mr. Salahuddin Khan, Advocate for Petitioner. Mr. Qasim Jan, O.S.D. for State. Date of hearing: 21.5.1999. judgment This application has been moved by Ashraf Khan, petitioner, seeking bail in case F.I.R. No. 357 dated 2.9.1998, for offences under Section 3/4 P.O./6, 7, 9 CNSA. of Police Station, after having been aggrieved of the order of Additional Sessions Judge/Special Judge, Nowshera dated 21.9.1998. 2. The petitioner was apprehended by the Local Police of Police Station Nowshera on 2.9.1998 when he was travelling in a Flying Coach near Khairabad and from his possession one thousand grams (one kilogram) of charas was recovered in presence of marginal witnesses, who were also police officials. 3. The grounds on which the petitioner seeks bail is minority as according to the School Leaving Certificate his date of birth is 12.3.1985 and he was aged 13/14 years. The report of the Chemical Examiner despite the warning to make the same available to this Court after a lapse of 9 months is not available. The offence for which the petitioner is charged, however, does not entail punishment for more than 7 years. According to Section 9-B of the Control of Narcotic Substances Act, the punishment is only upto 7 years when the quantity of narcotics does not exceed one kilogram. In the instant case the offences for which the petitioner is charged do not fall within the prohibitory clause of Section 497 Cr.P.C. Besides the petitioner has been charged under two laws out of which the prohibition order provides a lesser punishment. In view of the aforesaid, this petition is accepted, the petitioner shall be released on bail provided he furnishes bail bonds in the sum of Rs. 1,00,000/- (Rupees one lac) with two sureties each in the like amount to the satisfaction of the Special Judge who should see that the sureties are local and men of means because the petitioner is stated to be an Afghan refugee. (T.A.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C . ( Peshawar ) 1231 Present: jawaid nawaz khan gandapur, J. SARFARAZ KHAN-Petitioner versus AYUB KHAN and STATE-Respondent Cr. Misc. No. 313/99, decided on 22.4.1999. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(2)-Bail--Grant of--Prayer for--Further inquiry-Case of~Offence U/S. 302 Pakistan Penal Code, 1860-No one who might have seen occurrence-Petitioner did not make any confession about his guilt, if any, in spite of fact that he remained in Police custody for sufficient time-­ Similarly no incriminating article was ecovered from or at the instance of petitioner-Reasonable grounds do not exist for believing that petitioner has committed crime charged with-Accordingly by his case is that of further inquiry within meaning of S. 497(2) Cr.P.C -Resultantly this bail petition is accepted. [Pp. 1232] A & B Mr. Javed A. Khan, Advocate for Petitioner. Kh . Azhar Rasheed , A.A.G. for Respondent (State). Date of hearing: 22.4.1999. judgment The petitioner stands charged by Ayub Khan S/o Yaqoob Khan for having killed Mazullah S/O Ayub Khan/complainant (Respondent No. 1) and thereby committed an offence punishable U/S. 302 P.P.C., Vide: F.I.R. No. 525 registered at Police Station Matta , Distt : Swat on 6.11.1998. 2. The petitioner, when arrested applied for bail and after having failed to secure bail from the lower forums, has now approached this Court for the redress of his grievance. It has been alleged on his behalf that he is innocent, falsely charged for ulterior motive/previous enmity and, therefore, entitled to the concession of bail. 3. Mr. Javed A. Khan Advocate learned counsel for the petitioner and Kh . Azhar Rashid, learned Asstt . Advocate General for State/Respondent No. 2 present and heard. Record of the case perused. 4. It is admitted that this is a case where there is no one who might have seen the occurrence. The petitioner did not make any confession about his guilt, if any, in spite of the fact that he remained in police custody for sufficient time. Similarly no incriminating article was recovered from or at jthe instance of the petitioner. 5. In the circumstances and without dilating upon the merits of the case, I am of the considered view that this is a case of no evidence, in view of the material collected so for by the Prosecution and, therefore, reasonable grounds do not exist for believing that the petitioner has committed the B crime charged with. Accordingly his case is that of further inquiry within the meaning of S. 497(2) Cr.P.C . Resultantiy this bail petition is accepted. 6. The petitioner shall be released forthwith, if not required in any other case, provided he furnishes bail bonds in the sum of Rs . 1 ,00,000 /- ( Rs . One lac only) with two sureties, each in the like amount, to the satisfaction of the Addl. Registrar/Deputy Registrar of this Court. 7. The Addl. Registrar/Deputy Registrar shall see that the sureties are respectable persons, hail from the settled areas of Distt . Swat and have sufficient property in their names. Attested copies of their properly documents/identity cards shall be obtained for record. (T.A.F.) Bail granted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Quetta ) 1232 (DB) Present: IFTTKHAR muhammad chaudhary, C. J., and fazal-ur-rehman, J. MUHAMMAD IBRAHIM-AppeUant versus THE STATE-Resondent Cr. Jail Appeal No. 51/99, heard on 27.7.1999. Arms Ordinance, 1965-- —-S. 13-Rifle 303-Recovery of~Non production of licence or permit-­ Registration of case-Challenge to-Omission to associate independent witness at time of search and recovery is violation of provisions of Sec. 103 Cr.P.C-Learned Judge of trial Court has also mentioned in judgment that accused on account of poverty had not engaged counsel to defend him as such, prosecution witnesses during trial could not be cross examined comprehensively-Regarding non-preparation of mashirnama at place where alleged recovery has been stated to have been affected and non mentioning of time and place where recovery was affected and evidence of witnesses make case of prosecution doubtful-Prosecution has not been able to bring home guilt to accused beyond any reasonable doubt-High Court accordingly accept appeal nd set aside conviction and sentence recorded against appellant by trial Court by extending benefit of doubt. [P. 1235] A PLJ 1995 Crl. Case ( Peshawar ) 362 and 1972 P.Cr.LJ 478 rel. Mr. Amanullah Kanrani, Advocate for Appellant. Mr. Nasrullah Achakzai, Advocate for Respondent. Date of hearing: 27.7.1999. judgment Fazal-ur-Rehman, J.--This Jail Appeal has been directed against the judgment dated 12.6.1999 passed by the learned Sessions Judge, Khuzdar by which he convicted the appellant under Section 13-E of the Arms Ordinance, 1965 and sentenced to suffer R.I for three years and to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo S.I for three months. The benefit of Section 382(B) Cr.P.C. was also granted to the applicant. 2. Briefly stated the facts of the case are that the appellant was stated to had been arrested n connection with murder case as on 13.12.1998. It is alleged that one Riffle 303 Bore alongwith two rounds was recovered from his possession. It is stated that his arrest was affected by PWs Faqir Muhammad and Hamza, Levies Personnels at Khatichak Nail, and taken to Nail where he was produced before Naib Tehsildar, Nail. The recovery memo Exp/1- has been stated to have been prepared in Sub Tehsil, Nail. It is the case of prosecution that since the accused/appellant did not produce any licence or permit therefore, contravened the provisions of Arms Ordinance. ccordingly a case being Crime No. 28/99 under Section 13-E of the Arms Ordinance was registered on the report of Faqir Muhammad against the accused. After usual investigation the accused/appellant was sent up to face his trial under Section 13-E of the Arms Act. 3. On 29.1.1999 charge under Section 13-E of the Arms Ordinance was framed against the appellant to which he pleaded not guilty. 4. In support of its case the prosecution examined PW-1 Hamza PW-2 Faqir Muhammad and PW-3 Mehboob Ali. In his statement recorded under Section 342 Cr.P.C. he denied the allegations levelled against him and pleaded his innocence. According to him he has neither committed the murder of Ghaus Bakhsh nor he was absconding. He has stated that he was arrested from his house and riffle and rounds do not belong to him. He has disputed the recovery of arms from his possession and alleged that a false case has been registered against him. When asked as to why the prosecution witnesses had deposed against him to which he stated that they made false statements against him. He pleaded his innocence and stated that he has falsely been implicated with the commission of this offence. Neither he made any statement on oath nor led any evidence in his defence. The Trial Court on the assessment of the evidence came to the conclusion that the alleged recovery had been effected from the possession of the appellant and accordingly convicted and sentenced him in the manner herein above mentioned. Aggrieved by the above judgment the appellant has preferred this appeal. 5. We have heard Mr. Amannllqh Kanrani, Advocate learned counsel for appellant and Mr. Nasrullah Khan Achakkzai, Advocate for State. We have also perused the relevant record and evidence. 6. It is an admitted fact that no Mashirnama had been prepared at the place where from the accused had been arrested nor any site plan of the place of recovery had been made. Similarly, no public witness has been cited to had witnessed the recovery. The distance between the place of occurrence and that of Levies Thana has been indicated in Column-4 of the FIR (Exp/2- A) to be 52 miles. The so called recovery memo ExP/l-A which is stated to had been prepared by the Naib Tehsildar when the alleged recovered riffle alongwith two rounds was produced to him does not find place the name of any public witness nor the prosecution has examined any private person to had witness the recovery of the riffle form the possession of accused and production of said riffle by PWs Faqir Muhammad and Hamza to Naib Tehsildar. The record of the prosecution is also silent as to where from and at what time the accused was arrested. PW-1 Ramza who has been cited as a marginal witness of ExP/l-A alongwith Faqir Muhammad had produced the said riffle and accused person to PW-3 Naib Tehsildar who had been conducting investigation of the main case has stated that on the date of occurrence when Ghaus Bakhsh was murdered he accompanied Tehsildar to Khatichak and arrested the accused Ibrahim as per direction of Tehsildar. He has further stated that one 303 riffle alongwith two rounds was recovered from the possession of accused and handed over to Tehsildar who had prepared recovery memo. He has also deposed that accused could not produce any licence or permit at the time of recovery. He has produced recovery memo Exp/l-A and identified riffle and rounds as Article Exp/1 and Exp/2 and the accused person in the Court. It is pertinent to note that the occurrence of the murder of Ghaus Bakhsh has been stated to have taken place on 30.11.1998 and the information was received by Naib Tehsildar on 1.12.1998 and accordingly had gone to Khatichak. The perusal of recovery memo indicates that accused was arrested on 13.12.1998 and the recovery was also effected on the same date which makes the case of prosecution doubtful as according to PW-1 the accused was arrested on the date when he had accompanied Tehsildar to Khatichak on receipt of information regarding murder of Ghaus Bakhsh and the accused was arrested as per direction of Tehsildar. PW-2 Faqir Muhammad in his statement has stated that on 13.12.1998 he was posted as levies Hawaldar Garoke Nail on which date Ghaus Bakhsh was murdered in Khatichak (Garoke) he accompanied Tehsildar to Khatichak where the dead body was examined by the doctor in his presence. He has further stated that Tehsildar made direction at the spot for the arrest of accused Muhammad Ibrahim son of Ghulam Qadir and he accordingly arrested accused Muhammad Ibrahim on the same day i.e. 13.12.1998 from illaqa Khatichak. He has also stated that one riffle 303 bore alongwith two live cartridges was recovered from the possession of accused and thereafter, accused alongwith recovered arms was produced before Tehsildar in Tehsil where on his report a case was registered against the accused vide FIR. Exp/2-A. The statement of Faqir Muhammad also makes the case of prosecution doubtful. The time and the place where from the accused was arrested by Faqir Muhammad has neither been disclosed by him nor by PW-1. It is also an admitted position that Naib Tehsildar who had been conducting investigation of the main case was neither present at the place where the accused was arrested and the alleged recovery was effected nor any seizure memo had been prepared by Faqir Muhammad or Hamza at the time of alleged recovery. The plea of the accused is however, that he was arrested from his house and no recovery has been affected. PW-3 Mehboob AM who was posted as Naib Tehsildar, Nail has stated that accused Muhammad Ibrahim who was wanted in a murder case of Ghaus Bakhsh was produced by Hawaldar Faqir Muhammad alongwith riffle and two rounds. According to him since accused could not • produce any licence or permit for the same therefore, it was taken into possession vide Fard Exp/l-A and FIR Exp/2-A was registered Under Section 13-E of the Arms Ordinance. It is also an admitted fact that no parcel had been prepared in respect of recovered riffle and rounds nor the same have been sent to the fire arm expert. 7. The above statement of facts would show that the prosecution case is doubtful in nature. Omission to associate independent witness at the time of search and recovery is violation of the provisions of Sec. 103 Cr.P.C. The learned judge of the trial Court has also mentioned in the judgment that the accused on account of poverty had not engaged counsel to defend him as such, the prosecution witnesses during trial could not be cross examined comprehensively. Regarding non preparation of mashirnama at the place where the alleged recovery has been stated to have been affected and non mentioning of time and place where the recovery was affected and the evidence of above mentioned witnesses make the case of prosecution doubtful and the authorities reported in 1972 Pakistan Criminal Law Journal 478, Karachi and P.L.J. 1995 Criminal Cases (Peshawar) 362 are applicable. 8. Having regard to the above mentioned factors, evidence and authorities it can be concluded that the prosecution has not been able to bring home the guilt to the accused beyond any reasonable doubt. We accordingly accept the appeal and set aside the conviction and sentence recorded against the appellant by the trial Court by extending the benefit of doubt and he is acquitted. The appellant be released if not wanted in any other case. (T.A.F.) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1236 (DB) [ Rawalpindi Bench] Present: muhammad nawaz abbasi AND sh. amjad ali, JJ. MUHAMMAD ASIF alias KHAUD etc.--Appellants versus STATE--Respondent Criminal Appeal No. 85-T of 1998 and M.R. No. 62-T of 1998, heard on 24.6.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/34/109 read with Ss. 7 & 26 Anti Terrorism Act, 1997«Murder of six persons-Conviction for-Appeal against—Case is not that of private enmity-Deceased being Iranian Nationals had no grudge with accused-­ Motive of sectarian hatred is found real cause of occurrence-Deceased belonging to Shia sect were not to tolerable to accused-Motive for commissioner of offence is proved beyond doubt-Crime empties recovered from place of occurrence were found matched with weapons of offence, subsequently recovered at instance of appellant-Report was immediately lodged after happening of occurrence-Two eye witnesses being on traffic duty at place of occurrence were natural eye witnesses of occurrence-Prosecution has successfully established charge against A appellant/accused through direct evidence of eye witnesses who have identified him in identification parade-However, Y appellant/accused was not put to identification parade after arrest for unknown reasons-­ Confessional statement made by him before DSP is not an evidence to be read and used against accused-Therefore, appeal of Y appellant was allowed whereas, appeal of A appellant was dismissed. [Pp. 1249, 1251 to 1253] A to F 1998 SCMR 1156 ref. Mr. Basharat Ullah Khan and Muhammad Ilyas Mian, Advocates for Appellants. Malik Muhammad Kabeer, A.A.G. and Raja Saeed Akram, AA.G. for Respondent. Date of hearing: 24.6.1998. judgment Muhammad Nawaz Abbasi, J.-The appellants, namely, Muhammad Asif alias Khalid son of Muhammad Rafiq and Muhammad Yaqoob son of Habib Ullah, were challaned to face the trial alongwith Qari Muhammad Siddique, Qari Sarfraz Muhammad Ajmal alias Akram Lahori and Rashad before the learned Judge Special Court Anti Terrorism, Rawalpindi Division and Islamabad Capital Territory established under the Anti Terrorism Act, 1997. The learned trial Judge having found the appellants guilty of the charge under Section 302/34/109 P.P.C. read with Section 7 of the Anti Terrorism Act, 1997 convicted them vide judgment dated 4;4.1SGS and sentenced both of them to death on six counts for committing Qatl-e-Amd of (1) Martaza Khakpur, (2) Jamshed Kirimi, (3) Khusrawabachi, (4) Ali Raza Jehani, (5) Hossein Asghari Bashkan and (6) Muhammad Asif deceased. The appellants were also directed to pay a fine of Rs. 20,000/- on each count separately and in default thereof to undergo R.I. for two years each on each count Qari Muhammad Siddique, co-accused of the appellants was acquitted of the charge whereas the remaining three accused, namely, Qari Sarfraz, Muhammad Ajmal alias Akram Lahori and Rashad were declared proclaimed offenders. 2. The appellants being aggrieved of their conviction and sentence filed Criminal Appeal No. 85/T of 1998, whereas the trial Court has sent a Reference bearing M.R. No. 62/T of 1998, under Section 25 of the Anti Terrorism Act, 1997 for confirmation of the death sentence. The State has preferred Criminal Appeal No. 103 of 1998 against acquittal of Qari Muhammad Siddiquu. We propose to dispose of all the connected matters through this single judgment. 3. The brief facts of the case in the background as set out in the F.I.R. (Exh.PJ/1) registered at Police Station Westridge, Rawalpindi on the basis of complainant (Exh.P.J.) lodged by Gul Muhammad, a traffic police constable (P.W. 19) are to the following effect- That on 19.7.1997 he alongwith Muhammad Saghir Khan, F.C. (P.W. 20) was present on traffic duty at Chohar Chowk, Peshawar Road, Rawalpindi. At 7.05 a.m. a Hiace Vehicle of white colour bearing No. RPT-1145 while coming from Peshawar side when reached Chohar Chowk, a person with beard of the age of about 30/32 years of the height of about 5.8' of whitish colour in black colour Shalwar Kamiz armed with Khlashnikov suddenly appearing on the road opened fire at the vehicle causing injuries to the driver and other uniformed persons present in the vehicle. At the same time, another person of the age of 26/27 years of fair complexion and height of 5.9' with a white cap on his head, wearing Badami colour Shalwar Kamiz also armed with Klashnikov appeared at the scene and opened firing at the vehicle. As a result of the firing made by the above said two culprits, five persons travelling through the vehicle succumbed to the injuries caused to them at the spot and one pei-son was removed to hospital in serious condition. The people present near the place of occurrence being frightened ran away and the accused escaped from the place of occurrence comfortably with the help of a third person of the age of 22/23 years with fair complexion wearing blue colour Shalwar Kamiz who while coming there on a Honda Motor cycle 125 cc without registration number picked them on his motor-cycle. The occurrence was also witnessed by Muhammad Saghir Khan P.W. 20. Soon after the occurrence a Government vehicle coming from Peshawar side, carrying Army Officers reached there and the officer travelling through said vehicle immediately removed the injured and the deceased to the Combined Military Hospital and also informed the concerned police about the occurrence. 4. Mirza Jamil Beg (P.W. 25), Inspector/SHO Police Station Westridge after recording the statement of Gul Muhammad, F.C., sent the same for registration of the case and himself proceeded to the spot. He during the spot inspection took into possession empty cartridges (Ex. P.5/1- 19) with five lead bullets (Exh.P. 6/1-5) and a missed bullet (Exh. P. 7), vide memo Exh.P.D. in presence of Sherbaz, and Maqsood Ahmad, S.Is. He also took into possession broken pieces of glasses and blood from the spot through memo Exh. P.C. After completing the preliminary investigation at the spot, he proceeded to Civil Hospital, Rawalpindi and prepared inquest report (Exh.PX) of Muhammad Asif driver and then moved an application (Exh. P.W.) for the post-mortem examination of his dead body which was identified by Muhammad Aslam and Azhar Mahmood. The Inspector then proceeded to Combined Military Hospital, Rawalpindi and moved applications (Exhs. PY, PZ, and PZA, PZB and PZC) for the Post-mortem Examination of the remaining five deceased (Iranian nationals). He prepared their inquest reports (Exh. PZE, PZF, PZG and PZH) in the hospital and the dead bodies were identified by Sq. Leader Haseeb Baig (P.W. 13). 5. Dr. Zain-ul-Abidin (P.W. 5) conducted the post-mortem examination on the dead body of Muhammad Asif, driver of the vehicle and found the following injuries on his person during the external examination:- 1. A lacerated wound of entry of fire arm with burning around, 3.5 cm x 4.5 cm, present over the back of the chest, below right shoulder and 5 cm medial to right axilla. 2. A lacerated wound of entry of fire arm with burning around 2 cm x 1 cm present just close to Injury No. 1. The margins of the inJTiry were inverted. 3. A lacerated wound of entry of fire arm with burning around 2 cm x 2 cm round present on the back of the right side of the chest, 11 cm lateral to the lower end of the thoracic spine, margins were inverted. 4. A lacerated wound of entry of fire arm with burning around, 2 cm x 1 cm, about 2 cm lateral and superior to Injury No. 3. The margins were inverted. 5. A lacerated wound of exit of fire arm with averted 5 cm x 3 cm, oval shaped present on the back of the chest about 5 cm below the root of the beck slightly right to the midline. It was communicating with Injury No. 1 i.e. exit of Injury No. 1. 6. A lacerated wound of exit of fire arm with averted edges 3 cm x 1.5 c«r, about 1.5 cm superior to Injury No. 5. it was the exit of Injury No. 2. 7. A lacerated wound of exit of fire arm 2 cm x 2 cm at the back of the root of the neck about 3 cm lateral towards right from the midline. It was the exit of Injury No. 3. 8. A lacerated would of entry of fire arm with burning around, 1.5 cm x 1.5 cm round, and inverted margins present on the skull at occiput about 10 cm medial to the right ear. 9. A burning laceration 3 cm x 1.5 cm x scalp deep was present at the back of the skull about 3 cm superior to Injury No. 8. 10. A lacerated wound of entry of fire arm with burning around, 1.5 cm x 1.5 cm round, inverted edges present on the abdomen over the right iliac fossa. In the opinion of the doctor, the deceased died due to multiple fire arm injuries on his chest, abdomen and skull causing serious damage to the major organs of the body. The injuries were found ante-mortem and sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was immediate and between death and postmortem was four to six hours. The tatooing marks were seen scattered around the above-mentioned injuries on the chest and abdomen. 6. Dr. Munawar Hussain Gondal (P.W. 14) while conducting the external post-mortem examination on the dead bodies of Mortaza Khakpur, Ali Raza Jehani, Jamshed Kirimi, Hossain Asghari Bashkan and Muhammad Khursraoabadi, found the following injuries on their person:- I. MORTAZA KHAKPUR: 1. A circular wound 2.5 cm x 2.5 cm on front of left chest, 5 cm form left nipple and 6 cm lateral to midline (with collar abrasion), corresponding cuts were present on shirt and vest. 2. A spindle shaped wound 2.5 cm x 1 cm on front of left shoulder, 11 cm below shoulder top and 12 cm from left nipple, tatooing, and blackening were present around wound in an area of 5 x 5 cm. 3. A spindle shaped wound of exit 4 x 5 cm on right arm, 20 cm above below, and 10 cm below shoulder top. 4. A wound of entry of fire arm, 1 x 1.5 cm showing burning, and blackening on right arm, 4 cm from Injury No. 3 and 16 cm above elbow. 5. A wound of fire arm 1 cm x .5 cm just right elbow. 6. A wound of exist of fire arm 7 x 5 cm on right lumber region in mid axillary line. Abdominal viscera and fatty tissues coming out 21 cm supro-lateral to umblicus and 27 cm from roof of axilla. 7. A grazed wound of impact of fire arm 5 x 6 cm on anterior aspect of right axilla with adjoining area of 16 x 16 cm showing tatooing, there was fracture of right humerus, a metalic piece was recovered from his clothes. II. ALIRAZA JEHANI: 1. A wound of entry of fire arm, 5x3 cm, with gaping, collar of abrasion, burning, tatooing and blackening were present on right upper chest, with froth and blood in an area of 17 x 7 cm, upto neck. 2. A wound of entry of fire-arm, 1 x 1.5 cm on supero posterior aspect of right shoulder, 11 cm from midline. 3. A wound of fire arm 2.5 x 1 cm on right postero right lateral aspect of chest with burning tatooing and blackening were present. 4. A grazed impact of fire arm 3 x 1 cm on right anterior aspect of right lower leg with charring, burning and blackening as also tatooing were present. 5. A wound of exit of fire arm 8 x 4 cm on left side of abdomen, 10 cm shows multiple small holes. 6. A lacerated wound of fire arm, 4 in number of medial and posterior aspect of left arm, each measuring 1 x 1.5 cm. 7. A wound of entry of fire arm, 1x1.5 cm, on medial aspect of left upper forearm. 8. An area of 21 x 5 cm shows tatooing, blackening and burning on back of left lower leg. 9. A wound of fire arm, 1 x .5 cm, on left heel. 10. A wound of fire arm 1 x .5 cm, on left postro-lateral aspect of chest. III. JAMSHED KIRIMI: 1. A wound of entry of fire arm 6x5 cm, on front of right lateral chest, with charring, 6 cm anto lateral to nipple, 10 cm below top of shoulder. 2. A wound of entrym of fire-arm 5 x 2 cm on right medial upper arm, with tatooing, 11 cm below right shoulder top. 3. A wound of entry firearm, 1x1 cm, on back of right middle forearm. 4. A wound of exit 2x2 cm, on medial aspect of right middle forearm, there was fracture right forearm. 5. A tunnel shaped wound of fire-arm 7x6 cm, on dorsal aspect of right hand, with tatooing, charring and multiple fracture of thumb index, middle fingers with wrist joint. 6. A wound of entry of fire-arm 5 x 4 cm on right iliac fossa, gaping, tatooing and burning were present. Abdominal viscerae visible. 7. A wound of entry of fire-arm 4 x 1.5 cm on outer aspect of right hip joint. 8. A wound of exit 5 x 3 cm on right lower abdomen, 4 cm, infro lateral to umblicus with 12 small oval injuries varying .5 x .5 cm to 1 x 1.5 cm in adjoining area superior to right lateral toumblicus. Abdominal viscerae was coming out. 9. A wound of fire-arm 1 x 1.5 cm on right anterior chest, 2.5 cm below nipple. 10. A wound 2 x 2.5 cm in the middle of front of chest, 10 cm left and medial to right nipple. 11. A wound complex showing multiple small hole with varying sizes 15 to 20 in number on front and lateral to neck upto chest. 12. A wound of entry of fire-arm, .5 x .5 cm on anterior aspect of right lower thigh, 11 cm above knee. 13. A wound of exit of fire-arm, 4x3 cm on back of right lower thigh. 14. A lacerated wound of fire-arm, through and through, 2.5 x 2.5 cm on penis, with amputation of body of penis and urethra. 15. A wound of entry of fire-arm 1 x 1.5 cm on back of left upper leg, in an area of 6 x 7 cm with multiple oval injuries 7 in number showing collar of abrasion and tatooing on right buttock near midline. 16. Three small holes 2x2 cm, each on posterior aspect of back of chest with fracture of thoracic cage. IV. HOSSAIN ASGHARIBASHKAN: 1. A wound of fire-arm, 7 x 6 cm on right lateral aspect of chest, 6 cm from top of anterior axillary fold, 10 cm lateral to midline. 2. A wound of entry of fire-arm 3x2 cm, 3 cm from Injury No. 1, and 7 cm from midline. 3. Multiple spindal shaped wounds varying in sizes from 2.5 x .5 cm, to 2.5 to 3 cm, almost in middle of right arm, 6 in number, with profuse bleeding and fracture of humerus. 4. A wound of entrym of firearm 2 x 2.5 cm, on right lateral thigh, with gaping, an area of 7 x 2.5 cm, showing tatooing on superior illiac spine. 5. A wound of entry of fire arm 3 x 1.5 cm on medial aspect of right upper thigh, with burning and tatooing were present. 6. A grazed wound of fire-arm 6 x 1 cm on anterior aspect of right lower thigh with charring and blackening. 7. A wound of entry of fire arm 3x2 cm, on back of left upper forearm. 8. A wound of exit, 5 x 3 cm on anterior aspect of left lower forearm. 9. A wound of fire arm, 2 x 2.5 cm on medial aspect of left upper thigh. V. MUHAMMAD KHUSRAOABADI: 1. A wound of entry of firearm 2 x 1.5 cm, on right superior aspect of head, 10 cm from pinna of ear, margin inverted and burning were present. 2. A wound of exit of fire arm, 5x2 cm, with gaping outward margin, brain matter was coming out, showing egg shell fracture of skull. 3. A wound of fire arm 2.5 x 2.5 cm, on front to left chest 2 cm medial to left nipple with circular pink colouration. 4. A wound of entry of fire arm 2.5 x 1 cm on anterior aspect of right upper forearm. 5. Around of exit of fire arm, 7.5 x 1 cm medial aspect of right upper forearm, with laceration of muscular tissues. 6. A wound of fire arm, 1.5 x cm, on right lateral aspect of upper thigh, 29 cm above knee, with multiple small adjoining injures, muscular tissues were coming out. 7. Around of entry of firearm 1 x 1.5 cm, on lateral aspect of right knee. 8. A wound of exit of fire arm, 4x5 cm, on medical aspect of right knee. Tissues and bony fractures were visible. 9. A wound of entry of fire arm 2 cm x 2.5, on medial aspect of left forearm, with inverted margins. 10. A wound of exit of fire arm 5x4 cm, on alter aspect of left forearm, fracture of forearm was visible. 11. In an area of 7 x 9 cm, on left lower medial arm, there was multiple grazing extensive tatooing. 12. A wound of entry of fire arm, 2 x 2.5 cm, with gaping on left superior illiace crest with fracture left hip bone. 13. A wound of fire arm, 7 x 2.5 cm, spindle shape on left axillary line, 8 cm below axilla, muscular tissues were coming out, tatooing was present, a metalic piece was recovered from medial aspect of right upper thigh. In the opinion of the doctor all deceased died due to fire-arm injuries caused to them, which were sufficient to cause death in the ordinary course of nature. The time between the injuries and the death was immediate, whereas between external post-mortem examination and the death was about six hours. 7. Mirza Jamil Baig (P.W. 25), also took into possession the vehicle (Exh. P.U), in which the deceased were travelling, through memo Exh.PF and collected mat (Exh. P8), boots (Exh. P.9/1-3) and glasses (blood stained) through a separate parcel vide memo Exh.P.E. He also took into possession the last worn clothes of the deceased and other articles through separate memos. Muhammad Asif appellant upon arrest on 22.101.997 led to the recovery of Klashnikov (Exh. P. 12), Magazines (Exh. P. 12/2-3) and another Magazine (Exh. P. 13/1), 50 live cartridges (Exh. P.14/1-50) from Jisit Box (Exh. P. 13) from the residential house of Muhammad Yaqoob, his coaccused, situated in Dhoke Matkal, which were taken into possession vide memo Exh.PR attested by Muhammad Khalil (P.W. 18) in addition to the Investigating Officer. Muhammad Yaqoob co-accused of the appellant produced a key from a bag (Exh. P15) and got recovered a Klashnikov (Exh. P. 16) alongwith Magazine (Exh. P. 17/1-3) and rounds (Exh. P18/1-50) from a box, which were taken into possession through a sealed parcel vide recovery memo Exh. P.S. The said accused also got recovered two handgrenades (Exh. P. 19/1-2) lying in the said box, which were taken into possession vide recovery memo Exh. PT. The above recoveries were also witnessed by Muhammad Khalil (P.W. 18). Muhammad Yaqoob, accused while in police custody led to the recovery of motor-cycle (Exh. P. 10) allegedly used in the occurrence, from the shop of Babu Khan in Banghash Colony, Gali No. 1, on 2.11.1997, which was taken into possession through recovery memo Exh.PL. The recovery was witnessed by Iftikhar Ahmad, S.I. and Muhammad Ayub S.I. Thereafter, the accused were sent to judicial lock­ up on 3.11.1997. During their custody with the police, an application (Exh. P. 12/A) for the identification parade of Muhammad Asif appellant was moved and in consequence thereof, his identification parade was held on 25.10.1997 in jail. The recovered weapons i.e. the Klashnikoves were sent to Forensic Science Laboratory in sealed parcels and the co-accused of the appellants, namely, Qari Muhammad Sarfraz, Muhammad Ajmal alias Akram Lahore and Rashad being not traceable were declared absconders. Qari Muhammad Siddique, co-accused of the appellants (since acquitted) was arrested from Masjid Aisha Siddiqa on 6.11.1997 and after completing the investigation submitted the challan against the accused for trial before the Special Court constituted under the Anti Terrorism Act, 1997. 8. The trial Court while proceeding against the appellants and the acquitted accused separated the case of the absconding accused under Section 512 Cr.P.C. The charge against the appellants and the acquitted accused was framed under Section 302/34 P.P.C. and 109/216 P.P.C. read with Section 7 of the Anti Terrorism Act, 1997 for the allegation of committing the murder of six deceased and also providing protection to the absconding accused. 9. The prosecution examined 25 witnesses in all in proof of the allegations against the accused. Azhar Mahmood (P.W. 1) identified the dead body of uhammad Asif deceased at the time of post-mortem examination, whereas Nadeem Aslam (P.W. 2) escorted his dead body in the hospital and handed over the last worn clothes of the deceased to the Investigating Officer. Liaqat Ali, constable (P.W. 3) was given sealed parcels of blood stained earth, pieces of glasses and empty cartridges for their delivery in the office of Chemical Examiner and the Forensic Science Laboratory at Lahore. Nazir Ahmad, Moharrar H.C. (P.W. 4) was given these articles by Mirza Jamil Baig, Inspector in sealed parcels for keeping them in Malkhana, which were to be sent to the office of Forensic Science Laboratory, These parcels were handed over to Iftikhar Ahmad S.I. and the remaining parcels to Ahmad Sher constable for the delivery of the same in the office of Chemical Examiner at Lahore. Dr. Zain-ul-Abidin (P.W. 5) and Munawar Hussain Gondal (P.W. 14) have conducted post-mortem examination on the dead bodies of Muhammad Asifdriver and five Iranian national deceased, respectively. Maqsood Ali, S.I. (P.W. 6) and Sher Baz, S.I. (P.W. 7) have witnessed the recovery of blood stained earth and pieces of glasses and empty cartridges detailed above. He also witnessed the recovery of vehicle in which the victims were travelling. Qamar-ud-Din, Draftsman (P.W. 8) on the pointation of the P.Ws. prepared the site plan (Exh. PG/1). Muhammad Naveed (P.W. 9) stated that the motor-cycle (Exh. P.10) was sold to him by Muhammad Yaqoob accused for a consideration of Rs. 22,000/- out of which he paid Rs. 10,000/- and remaining amount was promised to be paid at the time of handing over the registration book of the motor-cycle. The receipt of the sale of motor-cycle on a stamp paper (Exh.PH) with the signatures of the accused (Exh. PH/1) was produced by him in confirmation of his statement. He further stated that on 2.11.1997, Muhammad Yaqoob accused led to the recovery of said motor-cycle from his shop. Ktikhar Ahmad, S.I. (P.W. 10) recorded formal F.I.R. (Exh. PJ/1) on the basis of complaint (Exh.PJ) sent by Mirza Muhammad Jamil Baig, Inspector/S.H.O. He also witnessed the recovery of key and the klashnikov from Muhammad Asif appellant and kept the same in safe custody for their onward transmission to the Forensic Science Laboratory at Lahore. He also witnessed the recovery of motor-cycle at the instance of Muhammad Yaqoob accused from Bangash Colony. Zia Akmal (P.W. 11) was deputed to guard the dead bodies of the five Iranian nationals, whereas Zulfiqar Ahmad (P.W. 12), Ilaqa Magistrate has supervised the identification parade of Muhammad Asif appellant held on 25.10.1997 in Central Jail, Rawalpindi. The accused was identified by Gul Muhammad (P.W. 19) and Muhammad Saghir (P.W. 20) during the identification parade. Sqn. Leader Haseeb Tahir Baig (P.W. 13) while posted at Pakistan Aeronatical Complex Kamra was performing the duty of Coordination Incharge for training of Iranian Cadets. He on receipt of information about the sad incident reached Combined Military Hospital, Rawalpindi and identified the dead bodies of Iranian cadets, namely, Ali Raza Jehani, Mortaza Khakpour, Hossain Asghari Bashkan, Muhammad Khosrowabadi and Jamshaid Karimi before the doctor. Muhammad Maqsood, D.S.P./SDPO (P.W. 15) recorded the translated statement of Syed Qazim Hamadi made by him in Persian. Abid Ali, A.S.I. (P.W. 16) was given a sealed parcel containing a kalashnikov with three magazines and 50 live cartridges with two hand grenades in black bag and another parcel of klashnikov, three magazines, 50 live cartridges, one iron box alongwith a key and a lock by Muhammad Zarait Kiani, DSP for keeping the same in Malkhana. Muhammad Basharat, ASI (P.W. 17) being Muharri Police Station Ganj Mandi, Rawalpindi produced an affidavit alongwith a report (Exh. PW 17/A) entered in the Rozenamcha regarding the missing of registration book of the motor-cycle recovered at the instance of Muhammad Yaqoob accused. Muhammad Khalil Satti, Inspector (P.W. 18) being an associate of the investigating team witnessed the recovery of the weapon of offence from Muhammad Asif appellant from the house of Muhammad Yaqoob accused. Gul Muhammad (P.W. 19) being on traffic duly at the relevant time witnessed the occurrence and lodged the report (Exh.PLJ) on the basis of which the case F.I.R. (Exh.PJ/1) was registered. He identified Muhammad Asif appellant in the identification parade as the main participant of the occurrence. Muhammad Saghir Khan, constable (P.W. 20) while performing the traffic duty at the time of occurrence at Chohar Chowk witnessed the occurrence and identified Muhammad Asif appellant in the identification parade held in Central Jail Adiala, Rawalpindi. Muhammad Munir P.W. 21) conveyed the information about the occurrence and also took photographs of the deceased and produced negatives of the same in the Court. He on the direction of Raja Mahboob, D.S.P. prepared vedio cassette of the confessional statement made by the accused on 28.10.1997 and also played the vedio cassette in open Court. Muhammad Maboob (P.W. 22), D.S.P. Cantt. Recorded the confessional statement of Muhammad Asif and Muhammad Yaqoob under police custody. The confessional statements of the accused recorded by him were kept in a separate sealed envelope. Muhammad Zarait Kiani, D.S.P. (P.W. 23) stated that Muhammad Saqlain, S.I./SHO, Police Station Airport after arrest of the accused during the night between 21.10.1997 and 22.10.1997 produced Muhammad Asif appellant before him, and upon disclosure about the weapon of offence used by the accused in the occurrence, the same on his pointation was recovered from the house of Muhammad Yaqoob appellant. Ahmad Sher, constable (P.W. 24) deposed that two persons of the name of Muhammad Ajmal alias Akram Lahori and Qari Muhammad Sarfraz were seen by him while entering the mosque in the company of Qari Muhammad Siddique but before he conveyed the information to the police, they disappeared. Mirza Muhammad Jamil Baig, Inspector/SHO (P.W. 25) has conducted the investigation with the association of the remaining police officials of different police stations. The detail of investigation conducted by him has already been described above. 10. The Special Public Prosecutor closed the prosecution case tendering the reports of Chemical Examiner (Exhs. PZJ and PZK), the reports of Serologis't (Exhs. PZL and PZM) and that of the Forensic Science Laboratory (Exh.PZN). 11. The accused in their statements under Section 342 Cr.P.C. denying the allegations against them pleaded false implication. They also denied the recovery of weapon of offence at their instance and of making the confessional statements voluntarily. The accused neither produced any evidence in their defence nor hemselves appeared in the witness box under Section 340(2) Cr.P.C. The application under Section 550 Cr.P.C. moved on behalf of the accused for summoning of the persons named therein as witnesses, was dismissed. The trial Court at the conclusion of the trial finding the two appellants, namely, Muhammad Asif and Muhammad Yaqoob guilty of the charge convicted and sentenced them in the manner stated above, whereas their co-accused, namely, Qari Muhammad Siddique was acquitted for want of proof of his guilt. 12. Mr. Basharat Ullah Khan, learned counsel appearing on behalf of the appellants raising the following contentions sought the acquittal of the appellants from the charge:- (i) That unexplained delay in lodging the F.I.R. created a reasonable doubt about the truthfulness of the story. (ii) That the occurrence took place in the Bazar on the main road the Chohar Chowk in presence of number of persons, but none was produced by the prosecution as witness except GUI Muhammad and Muhammad Saghir, the two police constables, which is an evident proof of the fact that either no person, was prepared to make a tutored statement or it being unwitnessed occurrence, the police has introduced the two police constables as eye witnesses. (iii) That Kazam Ahmad and Munir Ahmad, who were travelling through the vehicle, with the deceased and also received injuries, were the natural witnesses, but they were purposely not produced at the trial and thus the material evidence was withheld with the motive to suppress the actual story. (iv) That except Muhammad Asif driver of the vehicle, the dead bodies of the remaining deceased were not sent for post­ mortem examination, therefore, the cause of death of these deceased was not ascertained. The medical evidence running counter to the eye witnesses is in conflict to the ocular account. (v) That as per news-paper publication, the appellants were taken into custody on 18.10.1997, whereas their arrest was shown on 22.101.1997, which made the identification parade of Muhammad Asif appellant doubtful as the possibility of showing the accused to the witnesses while in custody with police before holding the identification parade in the jail is not ruled out. (vi) That both the appellants have got recovered Kalashnikov, the weapons of offence, from an iron box lying in a room of the house of Muhammad Yaqoob in his occupation, which is a fake recovery. (vii) That the inquest report does not contain the description of the accused as well as the motor-cycle, allegedly used in the occurrence, and also the name of Muhammad Saghir as eye witness. (viii) That as per site plan the vehicle of the deceased was attacked while coming from Peshawar side to Rawalpindi and the accused being on the opposite direction to the "/itnesses could not possibly be identified in the given situation. (ix) That no person from the locality was associated while effecting the recovery of weapons of offence from the accused and the same having made in violation of mandatory provisions of Section 103 Cr.P.C. cannot be used as incriminating material against the appellants. Further the joint recovery from the house in possession of Muhammad Yaqoob is of no use and help to the prosecution. (x) That the investigation was not conducted fairly and honestly and the appellants having taken into custody as suspects have been falsely involved in the case. Learned counsel pointing out minor discrepancies and citing some case law in support thereof has questioned the truthfulness of the prosecution story. 13. Conversely, Malik Muhammad Kabeer, learned Assistant Advocate General argued that the appellants were identified by the police constables present on traffic duly at the place of occurrence. The report of occurrence taken place in broad day light was lodged by Gul Muhammad Police Constable on duty without loss of time and, therefore, there was not a remote possibility of the substitution. He argued that Muhammad Asif appellant was correctly identified by the eye witnesses in the identification parade held in Central Jail Adiala under the supervision of a Magistrate in strict observance of the rules on the subject and that the evidence available on the record does not suggest that the accused were arrested on 17.10.1997 and remained in police custody without producing before a Magistrate till 22.10.1997. The press news is not admissible as an evidence unless it is proved in proper manner. Learned Assistant Advocate General with reference to the confessional statements made by the accused before the D.S.P. in the Police Station argued that such statement being admissible under Section 26 of the Anti Terrorism Act, 1997, the guilt of the accused is proved beyond doubt. He alternatively argued that the admission of guilt by the appellants before the D.S.P., if is not considered as confession, it can be used as extra-judicial confession as corroborative evidence. Upon the recoveries, he argued that the crime empties recovered from the spot were dispatched to the concerned offices much before the recovery of the Kalashnikovs at the instance of the appellants and, the same being wedded with the weapons of offence recovered from the accused was a strong corroborative evidence. He argued that the joint recovery of weapons of offence used by the appellants in the occurrence from the same place would not be fatal to the prosecution case as they jointly operated the common mission, therefore, the evidence of recovery is not excludable from the consideration on such technical grounds. He further argued that the factum of receiving fire arm injuries by the six deceased in the vehicle and the spontaneous death is not deniable and that there being no doubt about the manner of receiving the injuries by the deceased, the non-availability of the post-mortem report would not materially effect the prosecution case. 14. We have heard the learned counsel for the appellant as well as the learned Assistant Advocate General at considerable length and given full attention to the arguments advanced by them in support of their respective stands and also perused the record in detail with their assistance. The prosecution case rests upon the following evidence:- (a) Ocular account consisting upon the two eye witnesses, namely, Gul Muhammad and Muhammad Saghir, police constables on traffic duty. (b) The Identification Parade of Muhammad Asif appellant, (c) The confessional statements of the appellants before the D.S.P. in police custody. (d) The recovery of crime empties from the place of occurrence and the weapons of offence with positive report of the Forensic Science Laboratory. (e) Report of the Chemical Examiner regarding the blood stained earth taken from inside the vehicle. (f) The medical evidence of Muhammad Asif driver deceased and others. (g) The circumstantial evidence. The case is not that of the private enmity or any other background except the sectarian hatred as narrated by the prosecution. The deceased being Iranian nationals had no personal enmity or grudge with any person in Pakistan. They were on official training in Pakistan at Aeronatical Complex Kamra District Attock and were strangers to the witnesses as well as the accused. Similarly, the accused being local had no acquaintance with the witnesses or the deceased. Therefore, the motive of sectarian hatred given by the prosecution is found the real cause of occurrence. Factually, the accused had no personal enmity or grudge against the deceased, but they being Iranian Nationals belonging to Shia sect were not tolerable to the accused, statedly being the members of Sipah-e-Sihaba. The clash between the two Muslim sects is not unknown, therefore, the motive for the commission of this heinous offence being sectarian hatred is proved beyond doubt in the facts and the circumstances of the case. 16. Gul Muhammad (P.W. 19), a Police Head Constable and Muhammad Saghir (P.W. 20), a constable of traffic staff are the eye witnesses of the occurrence. Gul Muhammad deposed that he while present on traffic duty on 17.19.1997 at Chohar Chowk, Rawalpindi witnessed the occurrence. The witnesses identifying Muhammad Asif accused in Court as one of the culprits, stated that he discharged a burst on the van hitting the driver through wind screen and at the same time, another person armed with Klashnikov discharged a burst on the van, as a result of the firing of the accused, five persons travelling in the vehicle died at the spot, whereas the driver of the vehicle and another were removed in injured condition to the hospital for medical aid. The two accused ran away from the place of occurrence through a'motor-cycle being driven by their third companion and in the meanwhile, a person while appearing at the scene on Honda 125 CC motor-cycle with a clean shave person on the rare seat armed with 30 bore pistol raising Lalkaras fired in the air that if anybody would chase the accused, he will be destroyed by bomb blast. This witness immediately after the occurrence lodged the complaint (Exh.PJ) giving detail of the occurrence containing the names of Muhammad Saghir, traffic constable and one Munir Ahmad as witnesses of the occurrence. He further deposed that the crime empties were collected by the Inspector and his colleagues from the spot in his presence, and denied that Muhammad Asif appellant was shown to him in the police station before the identification parade was held on 25.10.1997, wherein he identified Muhammad Asif appellant as one of the culprits. He denied that the appellant had raised objection before the Magistrate that he was shown to the witness in the police station. 17. Muhammad Saghir (P.W. 20), who was also performing traffic duty at the place of occurrence, identifying Muhammad Asif appellant as one of the articipant of occurrence as accused has supported the prosecution story as disclosed in the F.I.R. and narrated by Gul Muhammad P.W. 19 at the trial. The eye witnesses corroborated each other on each material point without any describable contradiction. The defence without challenging the presence of the eye witnesses at the spot seriously contended that they being police officials were not reliable witnesses. The witness identified Muhammad Asif appellant as one of the accused in the identification parade as well as in the Court. 18. Zulfiqar Ahmad, Magistrate (P.W. 12) conducted the identification parade in Central Jail Adiala, Rawalpindi at 10.25 a.m. on 25.10.1997. He confirmed the claim of Gul Muhammad (P.W. 19) and Muhammad Saghir (P.W. 20) of correctly identifying Muhammad Asif appellant, amongst the ten other prisoners. 19. The defence despite lengthy cross-examination has not been able to bring anything on record dislodging the evidence of the identification of the accused at the time of identification parade, except the technical objections, which are not material to disbelieve or exclude the evidence of identification from onsideration. The direct and independent evidence of two police constables, who witnessed the occurrence, identified the accused not previously known to them at the spot as well as in the identification parade and then in the Court have established the participation of Muhammad Asif appellant as an accused in the occurrence beyond doubt. 20. Dr. Munawar Hussain Gondal (P.W. 14) conducted the post­ mortem examination on the dead bodies of Mortaza Khakpour, No. 78/97, passport No. A0015431-12-96, Jamshed Karimi, Passport No. A001514431- 12-96, Muhammad Khosrow Abadi, Passport No. A001515631-12-96, All Raza Jehani, Passport No. A-100149451-9-2-96, and Hossein Asghari Bashkan, Passport No. A00151463-12-96, which were identified by Sqn. Leader Haseeb Tahir Baig, P.A.C. Kamra (P.W. 13), and Taba Tabien (Iranian Deputy Leader). The doctor has confirmed the deaths as a result of fire arm injuries. 21 The crime empties recovered from the place of occurrence were found matched with the weapons of offence i.e. Klashnikov subsequently recovered at the instance of the appellant from the box lying in a room of the residential house of Muhammad Yaqoob appellant. The recovery of Klashnikoves from the house of Muhammad Yaqoob appellant cannot be used as incriminating evidence against Muhammad Asif appellant. The Klashnikoves recovered from the house of Muhammad Yaqoob being in his exclusive possession can undoubtedly be used as corroborative evidence against said accused. There being no evidence that Muhammad Asif was living with Muhammad Yaqoob and was in joint possession of the room from where he got the Klashnikov recovered, matching of the empties recovered from the spot with Klashnikov allegedly recovered from Muhammad Asif would not be a corroborative evidence against him. Be that as it may, even with the exclusion of evidence of recovery as such, the prosecution has successfully established the charge against Muhammad Asif appellant through the direct evidence of two eye witnesses, namely. Gul Muhammad and Muhammad Saghir, who have identified the accused in the identification parade held in Central Jail Adiala, Rawalpindi and also in the Court. The taking place of deaths with fire arm injuries is proved through the medical evidence. Additionally, the motive of sectarian hatred having proved is a strong evidence in proof of guilt of Muhammad Asif appellant. Learned defence counsel except pointing out the minor discrepancies and the contradictions in the statements of the P.Ws. and criticizing the manner of investigation has not been able to show us any material on the record to suggest mis-identification of Muhammad Asif appellant by the eye witnesses. Learned counsel has also not been able to convince us through the evidence on record that the two constables were subsequently introduced as eye witnesses of the occurrence and they were not present at the time of occurrence at the spot. The report was lodged immediately after happening of the occurrence containing the names of the eye witnesses. It being a day light occurrence, on the public road in the bazar, the police could easily introduced many persons as eye witnesses of the occurrence but the same was not done. The two eye witnesses being on traffic duty at the place of occurrence were the natural eye witnesses of the occurrence, therefore, the objection of the learned defence counsel that no person from the public was cited as witness carried no weight in the given circumstances. The occurrence being an act of terrorism, the general public must be disappeared from the scene and, therefore, it cannot be expected that the persons present around the place of occurrence would remain present at the time of such an occurrence. The presence of eye witnesses at the spot while performing official duty being beyond doubt, their witnessing the occurrence is unquestionable. The witnesses have identified the accused by face without describing their names and other particulars, which fact fortified their claim of identification of the accused. The review of the evidence of eye witnesses in detail repels the arguments of the learned counsel that the eye witnesses were introduced subsequent to the occurrence. The prosecution having established the identification of Muhammad Asif, as one of the accused of the occurrence, who while armed with Kalashnikov fired at the deceased has proved his guilt. However, the case of Muhammad Yaqoob appellant is distinguishable on facts. 22. Muhammad Yaqoob appellant, upon arrest was not put to Identification Parade by the concerned police for the unknown reasons. The most important and basic evidence of the identification of this appellant having destroyed by the Investigating Agency has created an incurable dent in the prosecution case to establish charge against him. The eye witnesses categorically stated that they identified both the accused at the spot but Muhammad Yaqoob appellant was not taken to the identification parade to be identified by the witnesses, and consequently the participation of this appellant in the occurrence remains unproved. The identification of this accused in Court, by the witnesses without his identification in Jail immediately after arrest was of no value in the facts of the present case. The appellant having not identified by the eye witnesses in the identification parade with the role played by him in the occurrence, the prosecution has not been able to establish his guilt beyond doubt. The evidence of recovery of Klashnikov at the instance of this appellant from the iron box lying in the room of his residential house and matching of some empties with the same itself is not enough evidence to sustain the conviction. The prosecution gave much importance to the confessional statement of the appellant before the D.S.P. while in custody in the police station. This confessional statement having not made voluntarily did not acquire the status of extra-judicial confession. The D.S.P. displaying the recording of confessional statement through the vedio probably wanted to show that it was voluntarily made but he forget that the appellant was not mentally free. The appellant if was ready to make a confessional statement voluntarily, instead of recording of same by the D.S.P. to remove any doubt the appellant should have been produced before a Magistrate. The confession made before a police official of the rank of D.S.P. was admissible under Section 26 of the Anti Terrorism Act, 1997, but the same still could be rejected by the Court, and necessary to be believed and given effect. Be that as it may, the apex Court in Mehram All's case (1998 S.C.M.R. 1156) has struck down the provisions of Section 26 of the Anti Terrorism Act, 1997 by virtue of which the confession before the D.S.P. was made admissible and, therefore, the confessional statement made by Muhammad Yaqoob appellant before the D.S.P. is not an evidence to be read as such and used against the accused. With the exclusion of the evidence of recovery, the confessional statement of the appellant and he having not identified through identification parade, the evidence of eye witnesses in the given circumstances is of no help to the prosecution and the conviction and sentence of this appellant being not based on any evidence is not sustainable. We accordingly allow the appeal to the extent Muhammad Yaqoob appellant and set aside his conviction and sentence. He is directed to be released from jail forthwith if not required in any other case. 23. Learned counsel for the appellants contended that except Muhammad Asif deceased driver only, external post-mortem examination of the remaining deceased having conducted, the cause of their death being not ascertainable, the sentence of death awarded to Muhammad Asif appellant on more than one count is not legal. He further argued that it being not clear that Muhammad Asif driver and his companion were killed by the firing of Muhammad Asif appellant or his co-accused, the extreme penalty of death to him is not justified. 24. We having considered the contention raised by the learned counsel for the appellant find no force in it and repel the same. We also do not find any itigating circumstance in favour of Muhammad Asif appellant in the circumstances of the present case. Notwithstanding the fact that only external post-mortem examination of the deceased was conducted, the doctor has clearly expressed opinion that the injuries were sufficient to cause death in the ordinary course of nature in case of each deceased. Muhammad Asif appellant alongwith his companion while firing with Klashnikov collectively caused injuries to the occupants of the vehicle and caused death of six persons. The co-accused of the appellant, namely, Muhammad Yaqoob has been benefited for want of identification and direct evidence and not for any other reason, therefore, we are of the considered view that the conviction of the appellant under Section 302(b) P.P.C. with death sentence on each count is not nterfereable. 25. We in the light of the above discussion dismiss the appeal of Muhammad Asif appellant confirming his death sentence on each count and answered the murder Reference to his extent in the positive. Criminal Appeal No. 103/T of 1998 filed by the State against the acquittal of Qari Muhammad Siddique is dismissed in view of the observations made above. (MYFK) Orders accordingly.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1254 (DB) Present: ASIF SAEED KHAN KHOSA AND mian muhammad najam-uz-zaman, JJ. WAZIR AHMAD-Appellant versus STATE-Respondent Crl. A. No. 60 of 1994 and M.R. 95 of 1994, heard on 16.9.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302 & 201--Murder--Conviction--Validity--Delay of nine days in lodging F.I.R.-Material witnesses not supporting contents of F.I.R-- Effect-Prosecution had failed to prove its case against accused beyond reasonable doubt--F.I.R. lodged after nine days of deceased, disappearance did not specify whether he was dead or alive-Only suspicion was expressed against accused on account of alleged motive- Person on whose information first clues to deceased, murder had been found had not supported prosecution, case and was declared hostile- Lambardar in whose province accused has made alleged extra-judicial confession had not supported prosecution version-Person who had supported prosecution's version was found to be wholly un-reliable- Statement of solitary eye-witness of occurrence being contradictory to medical evidence was totally un-worthy of any credit on capital charge- Statement of eye-witness was recorded after about twenty four days of missing of deceased and the same was un-worthy of credit, having been recorded after 15 days of lodging of F.I.R.-Prosecution had, thus, failed to prove its case against accused beyond reasonable doubt-Sentence of death awarded to accused were set aside and he was ordered to be released forth with if not required in any other case. [Pp. 1257 to 1260] A to C Sahibzada Farooq All Khan, Advocate for Appellant. Sh. Muhammad Rahim, Advocate for State. Date of hearing: 16.9.1998. judgment Asif Saeed Khan Khosa, J.--Wazir Ahmad appellant was convicted by the learned Additional Sessions Judge, Muzaffargarh vide judgment dated 31.3.1994 for an offence under Section 302(b), P.P.C. and was sentenced to death as Ta'zir. He was also ordered to pay a sum of Rs. 20,000/- to the heirs of Faiz Bakhsh deceased as compensation under Section 544-A, Cr.P.C. which was recoverable as arrears of land revenue. He was also convicted for an offence under Section 201, P.P.C. and was sentenced to R.I. for two years and to pay a fine of Rs. 5,000/- or in default thereof to undergo further R.I. for six months. Through the same judgment Wazir Ahmad's co-accused Khadim Hussain was acquitted by the learned trial Court. Wazir Ahmad convict has challenged his convictions and sentences before this Court through Criminal Appeal No. 60 of 1994. We have heard the convict's Appeal alongwith Murder Reference No. 95 of 1994 seeking confirmation of the sentence of death passed against Wazir Ahmad. We propose to decide both these matters together through the present consolidated judgment. 2. The prosecution story narrated in the F.I.R. was that Allah Wasaya complainant, an agriculturist by profession, was a resident of Mauza Purhar Gharib whereas his brother Faiz Bakhsh used to drive a taxi-car of one Azhar Habib and used to operate the same from the Kot Adu stand. The complainant's brother Faiz Bakhsh developed illicit relations with one Mst. Naziran and he used to visit her frequently at night. About 15/16 days prior to the registration of the F.I.R. Wazir Ahmad appellant, who was previously known to the complainant, came to the complainant and told him that the complainant's brother Faiz Bakhsh was ishonouring Wazir Ahmad's beloved Mst. Naziran and that he should be restrained from doing that otherwise the consequences would be bad for him. Wazir Ahmad appellant told the complainant that the said Mst. Naziran was carrying on illicit relations with Wazir Ahmad appellant for the last 15/16 years and that the appellant could not tolerate Faiz Bakhsh's relations with her. Statedly Allah Wasaya complainant forbade his brother Faiz Bakhsh from that activity. ccording to the F.I.R. the complainant's brother Faiz Bakhsh took some passengers from Kot Adu to Multan on the taxi-car on 4.2.1992 but did not return. Upon the complainant's inquiries from other drivers he was told that Faiz Bakhsh had not returned from Multan. On 12.2.1992 a landlord named Maqsood Ahmad Gurmani told Azhar Habib that his taxi-car had been parked outside his dera by Faiz Bakhsh driver nine days ago but he had not returned to take the same till then. Upon this information received by the complainant form the said Azhar Habib the complainant went to the dera of the said Maqsood Ahmad Guarmani with others and identified the taxi-car driven by his brother Faiz Bakhsh. The house of Wazir Ahmad appellant was situated close to the dera of Maqsood Ahmad Gurmani. The complainant strongly suspected that Wazir Ahmad appellant might have abducted and murdered the complainant's brother Faiz Bakhsh. The complainant then went to Police Station Sinanwan, District Muzaffargarh and lodged F.I.R. No. 4 (Exh-PC) which was recorded by Abdul Latif, SI/SHO (PW 12) at 3.15 P.M. on 12.2.1992 for an offence under Section 364, P.P.C. 3. After recording the statement of the complainant Abdul Latif, SI/SHO (PW 12) took up the investigation of this case, went to the dera of Maqsood Ahmad Gurmani and took the taxi-car and its registration book into possession vide memo. Exh-PG. On 13.2.1992 Khadim Hussain Lumberdar and Ghulam Farid made statements before him in writing upon which he added offences under Sections 302 and 201, P.P.C. to the F.I.R. On the samelay he arrested Wazir Ahmad appellant on whose pointing out the place of occurrence was located and blood-stained earth was collected therefrom vide memo Exh-PH. Still later on that day the deadbody of Faiz Bakhsh was recovered from Nala Sardar on pointing out of the appellant. The Investigating Officer then prepared inquest report (Exh-PK) and injury statement (Exh-PL) in respect of Faiz Bakhsh deceased and sent his deadbody to the mortuary for autopsy. 4. Post-Mortem Examination (Exh-PD) of the deadbody of Faiz Bakhsh was conducted by Dr. Abdul Jabbar (PW7) on 13.2.1992. He found 8 injuries on the deadbody out of which Injuries No. 1 to 7 had been caused by fire-arm whereas Injury No. 8 had been caused by a blunt weapon. In the opinion of the doctor Injuries No. 1 to 7 had collectively injured the vital organs of the body like heart, lung and liver and the said injuries were sufficient to cause death in the ordinary course of nature. The approximate time elapsing between the injuries and death was stated by the doctor to be instantaneous and that between the death and post-mortem examination was opined by the doctor to be within two weeks. 5. After the Post-Mortem Examination of Faiz Bakhsh deceased Abdul Latif, SI/SHO (PW 12), the Investigating Officer, secured the lastworn clothes of the deceased vide memo. Exh-PB. On 16.2.1992 he also took into possession the blood-stained cloth of the appellant vide memo. Exh-PJ. Then the Investigating Officer recovered a gun and its licence from the appellant and secured the same vide memo. Exh-PL Khadim Hussain accused was arrested by him on 18.2.1992. He also got a formal Site-plan (Exh-PA) of the place of occurrence appeared from a Patwari. On 27.2.1992 he recorded the statement of Mst. Naziran under Section 161, Cr.P.C. and then got her statement recorded under Section 164, Cr.P.C. on 28.2.1992. Thereafter he fulfilled the other formalities, completed his investigation and submitted a Challan in respect of this case. 6. At the commencement of the trial the learned trial Court framed a charge with two heads under Sections 302 and 201/34, P.P.C. against the appellant and his co-accused Khadim Hussain to which they pleaded not guilty and claimed a trial. 7. During the trial the prosecution produced as many as 12 witnesses in support of its case against the accused persons. Mst. Naziran (PW 9) furnished the ocular account of the incident. The motive set up by the prosecution was stated by Allah Wasaya complainant (PW 5), Mst. Naziran (PW 9) and Qadir Bakhsh (PW 11). An extra-judicial confession made by the appellant was proved by Ghulam Farid (PW 6). Qadir Bakhsh (PW 11) deposed about the recoveries effected from and on the pointing out of the appellant. Dr. Abdul Jabbar (PW 7) provided the medical evidence. Abdul Latif, S.I. (PW 12) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. 8. In their statements recorded under Section 342, O.P.C. both the accused persons denied and controverted all the allegations of fact leveled against them by the prosecution and professed their innocence. They maintained that they had been falsely implicated in this case on account of enmity and ill-will. While answering a question as to why he had been involved in this case and as to why the witnesses had deposed against him Wazir Ahmad appellant had stated that: "My land and the land ofMst. Naziran's father PW 9 irrigated from the same Nala which is Nala Sardar and the disputes for irrigation of land are always arises between us. Due to this reason I was falsely involved. The witnesses were relatives of the deceased. They were enimical towards me and due to that reason they have deposed against me." However, both the accused persons opted not to make any statement on oath under Section 340(2), Cr.P.C. and also did not produce any witness in their defence. 9. At the conclusion of the trial, as mentioned above, the learned Additional Sessions Judge, Muzaffargarh convicted and sentenced the appellant as noticed above while the appellant's co-accused was acquitted. Hence, the present appeal and the connected Murder Reference before this Court. 10. We have heard the learned counsel for the appellant as well as the learned counsel representing the State and have also gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case beyond reasonable doubt. He has maintained that the statement made by the solitary eye-witness did not inspire confidence; the alleged extra-judicial confession was bogus; the motive set up by the prosecution had not been satisfactorily proved; the recoveries allegedly affected from the appellant and at his pointing out weresham; and the medical evidence contradicted the ocular account. As against that the learned counsel representing the State has argued that the prosecution had successfully proved the guilt of the appellant to the hilt as the witnesses produced by the prosecution had made consistent statements which had found ample corroboration and support from the other evidence produced by the prosecution. 11. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution , had failed to prove its case against the appellant beyond reasonable doubt. ! We have noticed that the F.I.R. in this case had been lodged by Faiz Bakhsh eceased's brother Allah Wasaya complainant (PW 5) after nine days of the j deceased's disappearance and that too when nobody was sure whether the i deceased was dead or alive. In the F.I.R. only a suspicion was expressed ! against the appellant on account of the alleged motive. Maqsood Ahmad i Gurmani (PW 8), who had allegedly pointed out the abandoned taxi-car for the first time and upon whose information the first clues to the deceased's murder had been found, had not supported the prosecution's case and was 'declared hostile. Khadim Hussain Shajrah, Lumberdar, at whose house and before whom the appellant had allegedly made an extra-judicial confession, also did not support the prosecution's case and he was given up by the prosecution as having been won over! Ghulam Farid (PW 6), the other witness of the alleged extra-judicial confession, had claimed to be present at the house of the above mentioned Khadim Hussain Shajrah when the appellant had made the confession before Khadim Hussain Shajrah. When Khadim Hussain Shajrah disowned the stoiy of the appellant's visit to his house and making of the confession then the very foundation of Ghulam Farid (PW 6)'s claim stood knocked out. Even otherwise the house of Khadim Hussain Shajrah was situated 11 kilometers away from the house of Ghulam Farid (PW 6) and the latter had initially disclosed no reason for his visit to the former's house. He had stated that his visit to that house was for some "personal work". During his cross-examination he had divulged that he had to take some land on lease from Khadim Hussain Shajrah and it was in that connection that he had gone to his house. But later on he went on to admit that during that visit of Khadim Hussain Shajrah's house he had not even talked to him about taking of any land on lease. It was also admitted by him that neither before nor after the said visit he had even taken any lease of Khadim Hussain Shajrah's land! We have, thus, found this witness to be wholly unreliable. 13. Adverting now to Mst. Naziran (PW 9), the solitary eye-witness of the occurrence produced by the prosecution, we are in absolute agreement that her statement was totally unworthy of any credit on a capital charge. To start with we have noticed that she had admitted of maintaining illicit relations with the appellant as well as the deceased. She had also admitted that she used to receive money from both of them in order to meet her routine expenses. Her claim that her father as well as her father-in-law, living in her house, never objected to her scandalous activities is nothing but incredible. She had maintained that despite having witnessed the murder of the appellant she had not told anybody about it for the next eight days. She had also stated that she had informed the police about the occurrence after 6/7 days of the incident. Both these statements were factually incorrect. The Investigating Officer (PW 12) had stated that Mst. Naziran had made her first statement before the police on 27.2.1992 (15 days after registration of the F.I.R. and 24 days after disappearance of the deceased). We have noticed that the manner in which Mst. Naziran (PW 9) came forward as an eye­ witness was also highly suspicious. It had been stated by the Investigating Officer (PW 12) that Mst. I-aziran and her father had gone missing after the murder of the deceased. It was specifically suggested by the defence that in fact the murder had been committed by Mst. Naziran and her father and under the pressure and blackmailing of the local police Mst. Naziran had volunteered to falsely implicate the present appellant. Those suggestions do not appear to us to be without any foundation. Mst. Naziran's disappearance from her house soon after the occurrence, her belated statement before the police, the police getting her statement recorded under Section 164, Cr.P.C., deficient observance of the necessary legal formalities in recording of her statement under Section 164, Cr.P.C., and the appellant talking about a background of bitterness and hostility between him and Mst. Naziran's father are only some of the factors which wo have found to be relevant in this regard. 14 We have also found that the medical evidence produced by the prosecution was in conflict with the ocular account furnished by Mst. Naziran (PW 9). In her statements recorded under Sections 161 and 164, Cr.P.C. she had maintained that the solitary fire received by the deceased had hit him at his back but the doctor (PW 7) conducting the post-mortem examination of the deceased had found the entry wounds on the deadbody to be on its front. Apart from that Mst. Naziran had claimed that the shot was fired at the deceased from a distance of 40 karams yet the post-mortem examination of the deadbody revealed presence of blackening and charring on the wounds signifying very close range of fire! Thus, the medical evidence has provided us an additional ground to seriously doubt the credibility of Mst. Naziran's claim of having witnessed the occurrence in question. 15. It was alleged by the prosecution that the appellant had, during the investigation of this case, led to recovery of the deadbody of the deceased from Nala Sardar. According to the Investigating Officer (PW 12) that Nala was full of water for many days before the said recovery. But we have found that the doctor (PW 7) had not found the deadbody in a condition which could show its remaining in water before its discovery or recovery. The contradiction between the medical evidence and the rest of the prosecution's case causes another serious dent to the latter. 16. The recovery of his licensed gun from the appellant could not provide any corroboration to the ocular evidence in the present case as no crime-empty had been recovered from the place of occurrence for its possible atching with the said gun so as to connect the same with the offence in question. 17. We are also unconvinced by the evidence of motive led by the prosecution as the same had remained sketchy and vague. Even otherwise motive only provides corroboration where there is some other evidence available which requires strengthening by corroboration. In the present case all other pieces of evidence led by the prosecution have already been found by us to be totally unreliable. Surely conviction of an accused person cannot be based upon the evidence of motive alone! 18. For what has been observed above we are convinced that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed and the appellant is hereby acquitted. He shall be released from jail forthwith, if not required in any other case. 19. As the sentence of death passed by the learned trial Court against Wazir Ahmad appellant has been set aside and he has been acquitted by us, therefore, Murder Reference No. 95 of 1994 is answered in the negative. Death sentence Not Confirmed. (A.A.) Accused acquitted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1260 [ Multan Bench] Present: riaz kayani, J. FIDA HUSSAIN and others-Appellants versus STATE-Respondent Crl. Appeal No. 135 of 1991, heard on 15.2.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/34--Murder--Offence of~Conviction for-Appeal against- Investigation of case was conducted in a dishonest manner-Injuries person of appellants have been suppressed by prosecution-Complaiannt, deceased and PWs were closely related to each other-Appellants are also related to each other-Which party was aggressor has not been probed by trial Court-Recoveries also become doubtful-It was a free fight and in heat of passion both sides exchanged blows-Unfortunately one blow on head of deceased proved fatal-Appellants did not take undue advantage- Conviction altered to period already undergone by appellants-Appeal accepted. [Pp. 1265 & 1266] A to D Malik Ghulam Murtaza, Advocate for Appellants. Mr. M. Anwarul Haq, Advocate for State. Date of hearing: 15.2.1999. judgment Appellants namely Fida Hussain son of Malik Lalu, Allah Wasaya son of Karim Bakhsh, Allah Ditta son of Gul Muhammad, and Muhammad Ali son of Qadir Bakbsh alias Ghulam Qadir, have filed the present appeal bringing in challenge the judgment of Addl. Sessions Judge-I, Muzaffargarh dated 12.5.1991 whereby they were convicted under Section 302 read with Section 34 PPG for committing the murder of Atta Muhammad-deceased and each of them was sentenced to imprisonment for life and also a fine of Rs. 4.000/- each. In default of payment of fine, to further undergo one year R.I. each. All the aforesaid appellants/accused were ordered to pay compensation of Rs. 2.000/- each under Section 544-A Cr.P.C. to the heirs of the deceased. In default whereof to further undergo six months R.I. each. All the accused/appellants were also convicted under Section 307 PPC read with Section 34 PPC for committing murderous assault on Allah Wasaya PW and sentenced to four years, R.I. each and a fine of Rs. 2,000/- each. In default of payment of fine to further undergo six months' R.I. 2. The prosecution version as recorded by Khalil Ahmed, Addl. SHO, Police Station, City Alipur at Grain Godown Alipur on the complaint Ex.PB of Khadim Hussain, at 7.15 p.m. on 23.6.1989, is that the complainant is a cultivator by profession and on 23.6.1989 at 6.30 p.m. he alongwith Allah Rakha and Ata Muhammad, brothers, Mian Allah Wasaya son of Nabi Bakhsh and Fida Hussain son of Malik Kaoo residents of Tal Ghulawan were riding on a tractor to be taken to the shop of Dilbar Shah, electrician for repair and when they reached the said shop after stopping their tractor, Allah Wasaya and Ata Muhammad were standing at a distance of few paces ahead of them near the metalled road; that they saw Fida Hussain son of Lalu armed with an iron pipe, Allah Wasaya son of Karim Bakhsh armed with sarya, Allah Ditta son of Gul Muhammad also armed with a sarya and Muhammad Ali son of Ghulam Qadir empty handed residents of the same village coming from the eastern side and when they reached the complainant and others, a lalkara was raised that they would be taught a lesson for beating Qadir Bakhsh. Immediately thereafter Muhammad Ali took Atta Muhammad in his fold. Upon which Fida Hussain hit him with iron bar on the back of his head, who fell to the ground after receiving the injuries, his head started bleeding and consequently he became un-conscious. Allah Wasaya son of Karim Bakhsh hit Allah Wasaya son of Nabi Bakhsh PW with his sarya on his head and the second blow also hit the same PW on the top of his head whereas Allah Ditta-appellant hit Allah Wasaya PW with his sarya which hit him on the finger of left hand. He alongwith his brother Allah Rakha and Fida Hussain went forward but they were threatened by the appellants that if any body comes near they would also be dealt with the same manner as the injured witnesses. The appellants managed to run away alongwith their weapons. The motive for the occurrence is stated to be watering of the fields of Ghulam Qadir; upon which Ghulam Qadir beat Nabi Bakhsh uncle of the complainant and by way of retaliation, sons of Nabi Bakhsh gave beating to Qadir Bakhsh. Due to this grievance, the appellants in furtherance of their common intention, made a murderous assault upon Ata Muhammad and Allah Wasaya. 3 Khalil Ahmed, Addl. SHO, Police Station, Alipur after recording the statement of Khadim Hussain (complainant) sent the same to the Police Station, through Mushtaq Ahmed, constable for the registration of the case. He prepared the injury statement of Allah Wasaya Ex.PH and Ata Muhammad -deceased Ex.PI Both the injured were sent to Civil Hospital for medical exammanon tnrough Tanveer Ahmed, constable. Thereafter he reached the spot and recorded the statements of Allah Bakhsh and Fida Hussain PWs. The blood-stained earth was collected from the place of injury of Ata Muhammad vide recovery memo Ex.PD. He reached the Civil Hospital, Alipur where upon he found that Ata Muhammad had been referred to Nishter Hospital, Multan. After seeking permission from the Doctor to record the statement of Allah Wasaya, PW statement was recorded. On 24.6.1989 he was informed through Moharrir that Ata Muhammad had died in the Nishter Hospital, Multan. He proceeded to the hospital, prepared the inquest report Ex.PL and submitted an application Ex.PM to the Medical Superintendent, Civil Hospital, Multan for Post­ mortem Examination of Ata Muhammad-deceased. The accused were arrested on 4.7.1989. On 8.7.1989, Allah Rakha and Fida Hussain joined the investigation and in their presence Allah Ditta, accused while in police custody led to the recovery of iron bar p. 4 from his residential kutha which was taken into possession vide memo. Ex.PE whereas Allah Wasaya, while in custody, led to the recovery of iron bar p. 5 from the cattle-shed which was taken into possession vide memo. Ex.PF and lastly Fida Hussain (appellant) in custody led to the recovery of iron pipe p. 6 from his residential kotha which was taken in possession vide memo. Ex.PG All the recoveries memos. were thumb-marked by Allah Rakha and Fida Hussam PWs. After completion of the investigation, challan was submitted in Court. 4. Dr. Aziz-ur-Rehman, Medical Officer, THQ Hospital, Alipur medically examined Ata Muhammad on 23.6.1989 and found two injuries on his person; first injury was lacerated wound 5 c.m. x 1 c.m. x bone deep on the top of the head which was kept under observation and was advised Xrays; second injury was an abrasion of 3 c.m. x 1/2 c.m. on the front of right lower part of thigh. Since the condition of patient was serious and dangerous to life, he was referred to Nishtaf Hospital , Multan on the same day. owever, his report Ex. PO indicated Injury No. 1 to have been kept under observation while Injury No. 2 was declared simple. Both the injuries were caused by blunt weapon within the duration of half to one hour. 5. On the same day doctor also examined Allah Wasaya son of Nabi Bakhsh and found three injuries on his person; Injury No. 1 was a lacerated wound 6 c.m. x 1 c.m. horizental in direction into scalp deep on the top of head which was kept under observation; second injury was also lacerated wound of 4 c.m. x 1 c.m. x scalp deep vertically in direction on the top of the head close to Injury No. 1 which was also kept under observation; and the third injury was again a lacerated wound of 3 c.m. x 1 c.m. x bone deep on the front of left index finger at the terminal inter phalangil joint. The terminal pahlynx was cut. Injuries Nos. 1 and 2 were kept under observation; while Injury No. 3 was declared grievous. Both the injuries were caused by blunt weapon and the probable duration was i 2 to 1 horn 6. On the same day doctor also examined Ghulam Qadit son of Ghaus Bakhsh and found four injuries on his person; Injury No 1 was a lacerated wound of 10 c.m. x 1 c.m. x scalp deep on left perital region of the head which was kept under observation and were advised X-ray. Second injury was a contusion of 6 c.m. x 2 c.m. on the outerside of left leg. It was also kept under bservation and advised X-ray. Third injury was a contusion of 8 c.m. x 1 c.m. on the front of left lower thigh, and the last injury was a lacerated wound of 3 c.m. x 1 c.m. x scalpe deep on the left toxipital region of the head with swelling around it. It was kept under observation and was advised X-ray. All the injuries were caused by blunt weapon and duration was about 3 to 5 hours. 7. On the same day doctor medically examined Muhammad AM son of Ghulam Qadir and found two injuries on his person; Injury No. 1 was a lacerated wound 6 c.m. 4 1 c.m. x scalp deep on the right peritla region of the head which was kept under observation and advised X-ray. Secondly he was complaining of pain in the left shoulder joint. Both the injuries were caused by blunt weapon and the probable duration of injuries was half to one hour. Lastly the same Doctor on the same day examined Allah Wasaya son of Karim Bakhsh and found two injuries on his person. Injury No. 1 was a lacerated wound of 5 c.m. x 1 c.m. x scalp deep on the top of the head which was kept under observation and was advised X-ray. Second injury was a contusion 6 c.m. x 2 c.m on the front of right shoulder. It was kept under observation and was advised X-ray. Both the injuries were caused by blunt weapon and their probable duration was 1/2 to 1 hour. 8. The witness stated in his cross-examination that some police officials visited the hospital during the presence of the examinees in the hospital and he informed the police officials but they refused to receive Medico-legal Certificates. 9. After the death of Ata Muhammad, his Post-mortem Examination was conducted by Dr. Syed Ziauddin Zaidi, S.M.C. Civil Hospital, Multan, who found the same injuries as were found by Dr. Aziz-ur- Rehman, Medical Officer (PW. 10). 10. The appellant denied the charge and claimed the trial. During the trial as many as 11 prosecution witnesses were examined. The ocular account .of the occurrence was given by Khadim Hussain (PW. 5) and Allah Wasaya (PW. 6) whereas Fida Hussain was a witness to the recovery of the crime weapons. 12. Appellants were examined under Section 342 Cr.P.C. Fida Hussain denied to have participated in the occurrence and stated that the sister of Muhammad All, co-accused was married to him and because of his relationship with Muhammad Ali, he was falsely involved. He further stated that the PWs are related inter se and are interested to depose against him. Allah Wasaya son of Karim Bakhsh denied the recovery of crime weapon and in reply to question as to why the prosecution case was made against him and why the witnesses deposed, his reply was as under: "On 23.6.1989 it was Friday. I alongwith Muhammad Ali and his father Ghulam Qadir went to Bahadar Khan Mosque in Alipur to offer Junia prayers. After Juma prayers we made purchases in the Bazar. We were coming back to our house and when we reached college chowk, Ali Pur the PWs and Ata Muhammad deceased armed with iron rods and sotas reached there. Ghulam Qadir father of Muhammad Ali was going ahead and we were following him. The PWs and the deceased started be labouring Ghulam Qadir. We tried to intervene and the PWs as well as the deceased started be labouring us. We snatched the weapons from the PWs and deceased and injured the PWs. Thereafter the injured persons of both the parties went to the hospital Alipur and there from we got medical certificates after the medical examination. The police also reached there. The doctor gave our certificates to the police but they did not receive the same. The thanedar told to hand over the certificates belonging to our party to him on the following morning at the P.S. On the next day when we produced the MCs before the Thanedar at the PS, he made us to sit there. He did not register the FIR at out instance and kept us at the PS w.e.f. 24.6.1989. The PWs and deceased entertained a suspicion that Ghulam Qadir, father of Muhammad Ali accused had insulted Nabi Bakhsh. The PWs alongwith the deceased committed aggression on us in order to take revenge of the insult. The PWs are closely related inter se and are interested witnesses and they have falsely implicated us." 13. Allah Ditta (appellant) denied the occurrence and stated that he was cousin of Allah Wasaya and Muhammad Ali, therefore, he was falsely implicated by the PWs, who were related inter-se. Muhammad Ali (appellant) made the similar statement as made by Allah Wasaya (appellant). 14. Learned counsel for the appellants stated that injuries on the person of Ghulam Qadir son of Ghaus Bakhsh, Allah Wasaya S/o. Karim Bakhsh and Muhammad Ali son of Ghulam Qadir were not explained either in the FIR or during the trial. It was further stated the deceased and the PWs started beating and they in the exercise of right of self-defence snatched the weapons and gave beating to the deceased and PWs. It was further stated that the motive was not established. The recovery of crime weapon was doubtful and the blood-stained earth was taken into possession on 25.6.1989 which proved the change of venue of the occurrence. 15. Learned State counsel supported the judgment of the trial Court. 16. I have attended to the arguments advanced by both the learned counsel for the parties and have gone through the record. 17. One fact which goes heavily against the prosecution is the nonexplanation of the injuries on the person of Muhammad Ali, Allah Wasaya (appellants) and Ghulam Qadir, father of Muhammad Ali. These injuries were suppressed not only in the First Information Report but also in the ocular testimony of PW. 5 Khadim Hussain and Allah Wasaya (PW. 6). The investigation of the case was conducted in a dishonest manner. PW. 10 Dr. Aziz-ur-Rehman, specifically stated that the edico-legal Reports of Ghulam Qadir, Muhammad Ali and Allah Wasaya were attempted to be handed over to the police officials, who refused to receive the same. Khalil Ahmed, Addl. SHO (PW. 8) stated that it did not transpire during the investigation that similar accused were injured and denied that they appeared before him on 24.6.1989 and produced the medical certificates which were misplaced by him. The complainant, deceased and the PWs were closely related to each others. Similarly all the appellants are also related to each other. Ghulam Qadir admittedly is the father of Muhammad Ah' (appellant) Dr. Aziz-ur- Rehman (PW. 10) xamined the deceased when he was in injured condition alongwith Allah Wasaya PW on 23.6.1G89 and on the same day he also examined Ghulam Qadir son of Ghaus Bakhsh, Muhammad Ali son of Ghulam Qadir and Allah Wasaya son of Karim Bakhsh. The injuries on the person of the deceased Allah Wasaya PW, uhammad Ali and Allah Wasaya (appellant) are stated to be within the duration of half hour to one hour whereas injuries on the person of Ghulam Qadir son of Ghuas Bakhsh are stated to be of the duration of 3 to 5 hours. According to FIR, Nabi Bakhsh uncle of the first informant was given beating by Ghulam Qadir. This beating was further explained by the first informant when he appeared as PW. 5 in Court and stated to be a shoe-beating which did not cause any injury. Lateron it is stated that the sons of Nabi Bakhsh gave beating to Ghulam Qadir alias Qadir Bakhsh. It is this beating which was stated by the doctor at the time of examination on 23.6.1989 causing injuries to be of the duration of 3 to 5 hours whereas the time between injuries and Medical Examination on the person of the deceased, Allah Wasaya PW, Muhammad Ali and Allah Wasaya (appellant) was also of duration of half to one hour. This being the second occurrence, took place on the same day and as to who was the aggressor has not been probed by the trial Court for the reason that the injuries were suppressed by the prosecution on the person of the appellants and thereafter Muhammad Ali and Allah Wasaya also received blunt weapon injuries on their head and shoulders whereas the deceased received one injury on the top of his head and another injury on the right lower part of thigh, and Allah Wasaya, PW received two injuries on the scalp and one injury on the left index inger. 18. The conclusion which one is led in the absence of prosecution to explain the injuries is that it was a free fight. After the father of Muhammad Ah' appellant) was injured, it is not known as to who started the fight; who could be termed as aggressor; almost equal number of injuries were suffered on either side. The recoveries also become doubtful; firstly because they were evidenced by PW. 7 Fida Hussain, closely related to the complainant party; Dj secondly due to vital discrepancies in his statement which casts doubt about his presence at the time of the recovery and thirdly the weapons of offence were not stained with blood. The recovery becomes use-less and no premium can be attached to the prosecution from the same. In these set of circumstances, I am of the considered view that it was a free fight and in the heat of passion both sides exchanged blows. Unfortunately one blow on the head of the deceased proved fatal. The appellants did not take undue advantage. Fida Hussain, who was attributed fatal blow on the head of the deceased, was arrested on 4.7.1989. He was not granted bail before trial. After his conviction on 12.5.1991 his sentence was suspended by this Court vide order dated 2.12.1997, meaning thereby he was behind bars for approximately eight years. Similarly Allah Ditta was incarcerated right from the date of his arrest i.e. 4.7.1989 and was released on bail granted to him by this Court on 13.11.1991 alongwith Allah Wasaya and Muhammad Ali. 19. Resultantly, I alter the conviction of the appellants to Section 304 Part-I PPC and reduce their sentence of imprisonment to the period already undergone by them. With this modification, this appeal is accepted. All the appellants are on bail. They shall be discharged from their bail bonds. (MYFK) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1266 [ Multan Bench] Present: asif saeed khan khosa, J. ZAHID IQBAL alias ZAHID KHAN-Appellant versus STATE-Respondent Crl. Appeal No. 225 of 1997 M.R. No. 134 of 1997, heard on 7.4.1999. Pakistan Penal Code, 1860 (XLV of I860)- —S. 302(b)»Murder»Offence of-Conviction for-Appeal against-Both PWs 2 & 3 were chance witnesses-They lived away from place of occurrence- Occurrence had taken place at about 9.00 P.M.--Both these witnesses were not expected to be present at that time, whereas, eye witness who was maternal uncle of deceased had not been produced~A chance witness who fails to satisfy Court regarding reason of his presence at a place where he was not ordinarily expected to be present in normal course of things is not worthy of implicit reliance on a capital charge-Eye­ witnesses failed to receive any corroboration from any independent source-Evidence about motive was virtually next to nothing-Recovery of pistol and motor-cycle from appellant is doubtful-Medical evidence was also of not much support to ocular account-Even place of occurrence had not been convincingly established by prosecution~I.O. had not secured blood stained earth-No crime empty had been recovered from spot and even a rough site plan of alleged place of occurrence had not been prepared by him-Prosecution had failed to prove its case against appellant beyond reasonable doubt-Appeal accepted. [P. 1270 to 1272] A to G Sahibzada Farooq Ali, Advocate for Appellant. Mehr Muhammad Saleem Akhtar, Advocate for Respondent. Date of hearing: 7.4.1999. judgment Asif Saeed Khan Khosa, J.--Zahid Iqbal alias Zahid Khan appellant was convicted by the learned Additional Sessions Judge, Khanewal vide judgment dated 10.7.1997 for an offence under Section 302(b), P.P.C. and was sentenced to death and to pay a sum of Rs. 1,00,000/- by way of compensation to the heirs of Nisar Khan deceased under Section 544-A, Cr.P.C. failing which he was to suffer R.I. for five years. Zahid Iqbal alias Zahid Khan appellant had challenged his conviction and sentence before this Court through Criminal Appeal No. 225 of 1997. We have heard his appeal alongwith Murder Reference No. 134 of 1997 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment. 2. The prosecutions story narrated in the F.I.R. was that Safdar Khan complainant was a resident of Chak No. 23/10-R situated within the area of Police Station Kacha Khoh, District Khanewal. After Isha time on 29.3.1995 the complainant, Qaim PW and the complainant's maternal uncle Fazal-ur-Rehman were proceeding to the house of the latter. When they reached the Chowk of Dera Javed Khan at about 9.00 P.M. they found the complainant's brother Nisar Khan standing there. The electric light of the Dera of Javed Khan was on at that time. In the meanwhile Haibat Khan and his son Zahid Khan appellant came there riding on a motor-cycle Honda CD 70. Upon reaching near Nisar Khan they stopped and alighted from their motor-cycle. At that time Haibat Khan was armed with a .12 bore gun and Zahid Khan appellant was carrying a pistol. Haibat Khan then told Nisar Khan that he would teach a lesson to Nisar Khan for insulting his son Zahid Khan. Thereafter, within the view of the complainant and his companions, Haibat Khan gave a blow with the butt of his gun at the head of Nisar Khan. Zahid Khan appellant then fired a shot from his pistol hitting Nisar Khan below his left armpit. Upon receipt of those injuries Nisar Khan fell down. The complainant and his companions tried to apprehend the culprits hut they scared the complainant, etc. away by firing 3/ 4 shots. After that the culprits fled away from the place of occurrence on their motor-cycle. The complainant, etc. then took Nisar Khan injured to Civil Hospital, Kacha Khoh but he succumbed to his injuries upon reaching the hospital. 3. Leaving the deadbody of his brother Nisar Khan at the hospital in the care of Qaim and Muhammad Ashiq PWs the complainant went to Police Station Kacha Khoh, District Khanewal and lodged F.I.R. No. 76 in that regard at 10.00 P.M. during the same night. The F.I.R. was recorded by Kama! Uddin, SI/SHO (PW-7) for an offence under Sections 302/34, P.P.C. 4. After recording the F.I.R. Kama! Uddin, SI/SHO (PW-7) took up the investigation of the this case, went to Civil Hospital, Kacha Khoh, prepared injury statement and inquest report qua the deadbody of Nisar Khan and then sent the deadbody to the mortuary for autopsy. He also recorded the statements of witnesses at the hospital. Thereafter he went to the place of occurrence and took into possession a pair of chapped of the deceased therefrom. 5. The Post-mortem Examination of the deadbody of Nisar Khan was conducted by Dr. Khalid Rafique (PW-6) at 10.00 A.M. on 30.3.1995. He had found two injuries on the deadbody. Injury No. 2 was found by him to be sufficient to cause death in the ordinary course of nature. A bullet was recovered from the heart which had damaged the heart causing severe bleeding due to which death had resulted. The probable time elapsing between the injuries and death was stated by the doctor to be about 10 to 20 minutes while the duration between the death and Post-mortem Examination was opined by the doctor to be about 10 to 12 hours. 6. After the Post-mortem Examination of the deadbody Kalim Uddin, SI/SHO (PW-7), the Investigating Officer, took into possession the blood-stained last-worn clothes of the deceased. Subsequently he got a siteplan of the place of occurrence prepared by a Draftsman, arrested Haibat Khan accused and Zahid Khan appellant and recovered a motor-cycle from them. On 17.4.1995 he recovered a licensed gun from Haibat Khan accused and a pistol from Zahid Khan appellant. Thereafter he completed the other formalities, finalized his investigation and submitted a Challan in respect of this case. Haibat Khan accused died before ommencement of the trial. 7. At the commencement of the trial the learned trial Court framed a Charge under Section 302, P.P.C. against the appellant to which he pleaded not guilty and claimed a trial. 8. During the trial the prosecution produced as many as seven witnesses in support of its case against the appellant. Safdar Khan complainant (PW-2) and Qaim Khan (PW-3) furnished the ocular account of the incident and also stated about the motive. Dr. Khalid Rafique (PW-6) provided the medical evidence. Nasir Khan (PW-1) deposed about the recoveries of a motor-cycle and the weapons of offence from the appellant and his co-accused. Kama! Uddin, SI/SHO (PW-7) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. The learned trial Court also examined Saeed Ahmad, FC and Dr. Syed Ahad Ali as CW-1 & CW-2 respectively. 9. In his statement recorded under Section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact levelled against him by the rosecution and professed his innocence. He maintained that the prosecution witnesses were related inter se and they had deposed against him due to enmity. While answering a question as to why he had been implicated in this case the appellant had stated that: "It is a false case. I and my father Haibat Khan since deceased have not committed the murder of Nisar Khan since deceased. In fact on 29.3.1995 after Isha prayer at about 9 PM my uncle Hamid-ur-Rehman alongwith Juma Khan and Ijaz Khan was returning from the house of his uncle Shah Jahan and was going towards his house, when they reached in the chowk situated in front of the dera of Javid Khan, deceased Nisar Khan armed with pistol, Safdar Khan armed with dagger, Mansab Khan and Fazal-ur- Rehman both empty handed followed them and assaulted Hamid-ur- Rehman. Nisar Khan since deceased started firing at Hamid-ur- Rehman and injured him whereupon Hamid-ur-Rehman in his self defence with his licenced pistol fired which hit Nisar Khan since deceased. This attack was launched by Nisar Khan due to the reason that on the day of occurrence an altercation took place between Hamid-ur-Rehman on one side and Nisar Khan and Safdar Khan on the other side due to fight between the children. At that time Hamid ur Rehman gave abuses to Nisar Khan since deceased and Safdar Khan. In order to avoid legal action in respect of injuries on the person of Hamid-ur-Rehman in connivance with police this story has been concocted. Hamid-ur-Rehman was not made accused in the FIR in order to conceal the injuries received by him and expected defence. As we are joint family members of Hamid-ur-Rehman and closely related inter-se, therefore we have been made accused in this case so that we may not peruse the case of Hamid-ur- Rehman." The appellant opted not to make any statement on oath under Section 340(2), Cr.P.C. and also did not produce any evidence in his defence. However, the learned trial Court had examined CW-1 & CW-2 who supported the case of the appellant. 10. At the conclusion of the trial the learned Additional Sessions Judge, Khanewal convicted and sentenced the appellant as noticed and detailed above. Hence, the present appeal and the connected Murder Reference before this Court. 11. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have also gone through the record of this case with their assistance. 12. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. According to him the witnesses produced by the prosecution did not inspire confidence and that they had also failed to find material corroboration from any independent source. He has also maintained that the defence version had received ample support from the evidence available on the record. As against that the learned counsel for the State has argued that the prosecution had successfully proved the guilt of the appellant to the hilt through convincing, cogent and reliable evidence. 13. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. The ocular account of the incident in question had been furnished by Safdar Khan complainant (PW-2), and Qaim Khan (PW-3). Safdar Khan complainant (PW-2) was a brother of Nisar Khan deceased and Qaim Khan (PW-3) belonged to their brotherhood. Qaim Khan (PW-3)'s brother Mansab Khan was an accused in the cross-case (F.I.R. No. 183/95) of this very incident lodged by a paternal uncle of the appellant and, therefore, the interest and motivation of Qaim Khan on the side of the complainant party of this case was quite natural. Both these witnesses were also chance witnesses. Safdar Khan complainant (PW-2) lived two acres away from the place of occurrence and Qaim Khan (PW-3) had his house one Bigha away from the spot. The occurrence had taken place at about 9.00 P.M. in the month of March. In the normal course of village life both these witnesses were not expected to be present outside their houses at that time of the night in that part of the year. Neither Safdar Khan complainant (PW-2) in the F.I.R. lodged by him nor Qaim Khan (PW-3) in his statement (Ex-DA) made before the police had given any reason whatsoever for going with Fazal-ur- Rehman PW-to his house at the relevant time when they coincidentally itnessed the occurrence. Even in their examinations-in-chief before the learned trial Court both of them again failed to advance any reason for going with Fazal-ur-Rehman PW to his house at that time. It was only in their cross-examinations recorded one year after the incident that they had for the first time xplained that at the relevant time they were going with Fazal-ur- Rehman PW to his house because Fazal-ur-Rehman PW had come to them and had asked them separately to go with him for the purpose of taking the Ailing mother of Fazal-ur-Rehman PW to an hospital. We have been surprised to notice that the said Fazal-ur-Rehman PW, who was a maternal uncle of the deceased as well as an eye-witness of the occurrence, had not been produced by the prosecution as a witness and was given up as unnecessary! He was the one who could prove the reason for availability of PW-2 and FW-3 near the place of occurrence at the relevant time. He was the one who could state about the health of his mother or any medical emergency necessitating her being taken to a hospital. But the prosecution not only failed to produce Fazal-ur-Rehman PW as a witness but it also completely failed to produce any evidence worth the name regarding any ailment of bis mother. In the complete absence of any proof in that regard the raison d'etre for the presence of PW-2 and PW-3 near the place of occurrence at the relevant time remained completely unsubstantiated. It goes without saving that a chance witness who fails to satisfy the Court regarding the reason for his presence at a place where he was not ordinarily expected to be present in the normal course of things is not worthy of implicit reliance on a capital charge. 14. We have also noticed in this context that Safdar Khan complainant (PW-2) and Qairn Khan (PW-3) were not themselves injured during the incident nor there was any evidence available on the record confirming their claim of having taken the deceased to the hospital immediately after the occurrence. Thus, we have failed to find any independent confirmatory circumstance on the record to vouchsafe their presence near the deceased at the time of occurrence. They have, therefore, failed to inspire our confidence. 15. The eye-witnesses produced by the prosecution had also failed to receive any corroboration form any independent source. The evidence about motive was virtually next to nothing. The only hint of motive on the part of the appellant available on the record was in the shop of a lalkara allegedly raised by the appellant's father Haibat Khan co-accused before the assault to the effect that the insult of the appellant by the deceased would be avenged. Nothing was brought on the record by the prosecution as to when, where and under what circumstances the deceased had insulted the appellant. There was also no evidence available as to what was the nature of the said insult or before whom the same was hurled. 16. The alleged recovery of a pistol from the appellant t during the investigation had also remained inconsequential. The bullet recovered from the deceased's heart during his Post-mortem Examination could not match with the pistol allegedly recovered from the appellant. According to the report of the Forensic Science Laboratory (Exh-PL) the bullet was of .32 bore whereas the pistol recovered was of .30 bore! The same was the case with the motor-cycle allegedly recovered from the appellant. The F.I.R. only mentioned a Honda CD 70 motor-cycle without specifying its registration number or any other mark of identification. Thus, the motor-cycle allegedly recovered from the appellant could not be connected with the offence in question. 17. The medical evidence produced by the prosecution was also of not much support to the ocular account. The eye-witnesses had to improve their tatements to bring their statements in line with the medical evidence. The medical evidence showed that the solitary shot received by the deceased was from his back whereas this was not the original stand taken by the eye itnesses. The medical evidence further showed the shot received by the deceased must have been fired from a long distance because the bullet, despite hitting the softer parts of the body of the deceased, had failed to make an exit from the body. As against that the eye witnesses had claimed that the shot at the deceased had been fired from a distance of 5 to 6 feet! Apart from that in a witnessed occurrence the medical evidence is nothing but supportive in nature and the same has no value where the eye-witnesses themselves do not inspite confidence and, thus, there is nothing left to be supported. 18. It has also been noticed by us that even the place of occurrence in this case had not been convincingly established by the prosecution. The Investigating Officer (PW-7) had admitted that no blood-stained earth had been secured, no crime-empty had been recovered from the spot and even a rough site-plan of the alleged place of occurrence had not been prepared by him. It had also been admitted by the draftsman (PW-5) and the Investigating Officer (PW-7) that the formal site-plan (Exh-PG) of the place of occurrence or the notes recorded thereon did not contain the names of the culprits. 19. For the foregoing reasons we have arrived at a confident conclusion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. The benefit of doubt, thus, must go to the appellant. 20. As the prosecution had failed to prove its case against the appellant beyond reasonable doubt, therefore, we have thought it fit not to bother much about the defence version. It may, however, be observed for the record that there was ample evidence available on the present record showing that the appellant's paternal uncle Hameed-ur-Rehman did in fact receive injuries at about the same time when the present occurrence was alleged to have taken place but, unfortunately, the prosecution had remained completely silent about that. It was also brought on the record that the pistoland the motor-cycle allegedly recovered from the appellant in fact belonged to the said Hameed-ur-Rehman. However, the circumstances in which Hameed-ur-Rehman sustained his injuries have remained far from being proved. The record of the present case also does not clearly show as to what was the fate of the F.I.R. lodged and a private complaint filed in respect of the injuries sustained by the said Hameed-ur-Rehman. No further comment on the defence version is called for in the present case. 21. The upshot of the above discussion is that Criminal Appeal No. 225 of 1997 is hereby allowed, the impugned judgment passed by the learned Additional Sessions Judge, Khanewal on 10.7.1997 is set aside and Zahid Iqbal alias Zahid Khan appellant is acquitted of the charge against him. He shall be released from jail forthwith if not required in any other case. 22. Murder Reference No. 134 of 1997 is hereby answered in the negative. Death sentence is not confirmed. (MYFK) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1273 [ Rawalpindi Bench] Present: SH. AMJAD ali, J. HABIB-UR-REHMAN--Petitioner versus STATE-Respondent Criminal Misc. No. 949-M of 1999, heard on 26.2.1999. Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 35 & 397 read with S. 561-A-Offence U/S. 302 PPC-Conviction for- Appeal against-Death sentence converted into Life imprisonment- Thereafter, sentences of imprisonment were awarded in three other cases under Emigration Ordinance, 1979 and Passport Act, 1974-Petition for treating the said sentences to run oncurrently with sentence of life imprisonment-Dismissal of-Petition against-Sentences of imprison­ ment awarded to petitioner under Emigration Ordinance 1979 and Passport Act, 1974, have no nexus with prior sentence of murder case- Offences therein were committed at different occasions-Trial were held at different times and cases were decided on different dates—These offences were not committed in one transaction, nor there was any consolidated trial-Therefore, trial Court was not required to pass order that sentences in later cases be run concurrently-There is no legal infirmity in impugned order-However, petitioner was given benefit of S. 382-B Cr.P.C.-Petition disposed of. [Pp. 1275 & 1276] A & B 1992 MLD 193 and 1990 PCr.LJ 568 ref. Qazi Ahmad Naeem Qureshi, Advocate for Appellant. Malik Muhammad Kabir, A.A.G. for Respondent. Date of hearing: 26.2.1999. judgment Habib-ur-Rehman, the present petitioner, was tried for murder of one Riaz Ahmad and sentenced to death by the learned Additional Sessions Judge, Rawalpindi , by his judgment, dated 29.7.1987. He was also required to pay fine of Rs. 20.000/- payable as compensation to the heirs of the deceased failing which he was to suffer two years rigorous imprisonment. On appeal this Court by its judgment, dated 12.6.1990, converted the sentence of death to imprisonment for life. The sentence of fine was, however, maintained. These sentences were also maintained by the Supreme Court in appeal filed by the petitioner. 2. In the meanwhile, the petitioner was also tried in three cases registered under Sections 17, 18 and 22 of the Emigration Ordinance, 1979 and was convicted and sentenced as under:-- (i) Case registered vide FIR No. 278/96, dated 18.11.1986 under Sections 17, 18 and 22 of the Emigration Ordinance, 1979, decided on 8.4.1989-Sentenced to three years rigorous imprisonment on two counts. Sentences were, however, ordered to run concurrently; (ii) Case registered vide FIR No. 214/85, dated 8.7.1985, under Sections 17 and 22 of the Emigration Ordinance, 1979 and Section 6 of the Passport Act, 1974, decided on 29.3.1989.-Sentenced to three years rigorous imprisonment on each count. Both the sentences were to run concurrently; and (iii) Case registered vide FIR No. 48/88, dated 20.7.1988, under Sections 17 and 22 of the Emigration Ordinance, decided on 20.1.1993.~Sentenced to two years rigorous imprisonment under Section 22 ibid. 3. The petitioner is stated to have undergone the sentence of imprisonment for life but has not been released as he is required to undergo the sentences awarded under the aforesaid three cases and according to jail authorities these sentences are to run consecutively. The wife of the petitioner thus moved to the Special Judge (Central), Rawalpindi , seeking directions that the said sentences of the petitioner should run concurrently with the sentence of imprisonment for life already undergone by him. This application did not find favour with the learned Special Judge who turned down the same vide his order, dated 28.7.1998, whereupon the petitioner has moved the instant petition under Section 561-A of the Code of Criminal Procedure for the similar relief praying that the aforesaid sentences of imprisonment be directed to run concurrently alongwith imprisonment for life awarded in the murder of Riaz Ahmad. 4. Qazi Ahmad Naeem Qureshi, Advocate, the learned counsel, representing the petitioner relying upon Altaf Hussain vs. The State (PLJ 1987 Cr.C. (Peshawar) 437) contended that imprisonment for life means life imprisonment only once and any other sentence exceeding the life imprisonment cannot be awarded. The petition was however, vehemently opposed on behalf of the State Malik Muhammad Kabir, the learned Assistant Advocate-General referred to Bashir and three other vs. The State (PLD 1991 SC 1145) wherein the apex Court has in detail dealt with similar cases particularly involving the interpretation of Section 35 of the Code of Criminal Procedure. The order of the Court in the said case is reproduced below: "The Court is unanimously of the view that the judgments of this Court in Javed Shaikh v. The State (1985 SCR 153), Juma Khan and another v. The State (1986 SCMR 1573), Muhammad Ittefaq v. The State (1986 SCMR 1627) and Khan Zaman and others v. The State (1987 SCMR 1382) require review and are hereby reviewed to hold that proviso (a) to sub-section (2) of Section 35, Criminal Procedure Code does not apply to cases of sentence awarded by the Sessions Court in original trial, it does not, therefore, apply to cases of imprisonment for life imposed in murder trial. The Court by majority of opinion holds that- (i) the sentence of life imprisonment, unless ordered to run concurrently under sub-section (1) of Section 35, Cr.P.C. will run consecutively in view of its qualification in terms of years under Section 57 of the Pakistan Penal Code; and (ii) the executive order of commutation of sentence of death into life imprisonment takes effect forthwith making such sentence to run concurrently with any other sentence ordered by the Court." 5. In the instant case, the petitioner was convicted under Section 302 of the Pakistan Penal Code for murder of one Riaz Ahmed and sentenced to death and fine. In appeal the sentence of death was converted by the High Court to imprisonment for life. The sentences of imprisonment awarded to the petitioner in three other cases under the Emigration Ordinance, 1979, and the Passport Act, 1974, have no nexus with the aforesaid murder case. The offences therein were committed at different occasions. The trials were held at different times and the cases were decided on different dates. In other words, these offences were not committed in one transaction nor there was any consolidated trial. In the circumstances, the trial Court was not required to pass order that the sentences in later cases be run concurrently, in Peter Erastos and others vs. The State (1992 MLD 193) it was held by this Court that Section 397 Cr.P.C itself shows that the ordinary rule is that when a person is under-going a sentence of imprisonment and bis consequently sentenced to another term of imprisonment, such imprisonment would commence at the expiration of the sentence of imprisonment which was imposed upon him in the previous case. Likewise, in Abdul Hamid vs. The State (1990 P.O.LJ. 568) was held as under: "The rule laid down in Section 397, Cr.P.C. is that a sentence is to commence on the expiration of a sentence to which a person has been sentenced previously, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. Consecutive sentences is, therefore, the general rule while concurrent sentences is only an exception. Depending on the particular circumstances of a case, concurrent sentences may be awarded where the two offences are akin and intimately connected with each other, but not where there is no connection between the two. In the present case the two offences are not connected. They took place at different times and two different persons were killed at two different places and there was no connection of any sort between the two. Under these circumstances, the sentence in this case cannot be justifiably ordered to run concurrently with the sentence in the other case." 6. In view of the above, there is no legal infirmity in the order of the learned Special Judge (Central) declining to order the sentences under the Emigration Ordinance 1979, and the Passport Act, 1974, to run concurrently alongwith the sentence awarded in a murder case. In the interest of justice, however, the petitioner is given the benefit of Section 382-B Cr.P.C. in all the three cases referred to above in the term of his imprisonment. The present petition is accordingly disposed of. (MYFK) Orders accordingly.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1276 [ Rawalpindi Bench] Present: mian muhammad najam-uz-zaman and asif saeed khan khosa, JJ. FAIZ MUHAMMAD-Appellant versus STATE-Respondent Criminal Appeal No. 178 of 1995 and M.R. No. 198/95, heard on 1.2.1999. Pakistan Penal Code, 1860 (XLV of I860)-- —-S. 302~Murder--Offence of--Conviction for--Appeal against-Prosecution succeeded in proving guilt of appellant beyond reasonable doubt--PWs 9 & 10 were natural '..itnesses of occurrence and they made consistent statements regarding main occurrence-There was no background of ill will or animosity between witnesses nd appellant-But prosecution had failed to prove motive set up by it against appellant-What transpired between deceased and appellant immediately preceding ccurrence had also remained shrouded in mystery-Place of occurrence was not visible from original place of presence of witnesses—It was only after hearing cries of deceased that those witnesses had reached place of occurrence- Appellant is young lad and he had no criminal antecedents to his discredit—Death sentence ubstituted with life imprisonment—Appeal partly allowed. [Pp. 1279,1280] A to C Malik Muntizar Mehdi, Advocate for Appellant. Sh, Muhammad Rahim, Advocate for Respondent. Date of hearing: 1.2.1999. judgment Asif Saeed Khan Khosa, J.-Faiz Muhammad appellant was convicted by the learned Sessions Judge, Dera Ghazi Khan vide judgment dated 20.7.1995 for an offence under Section 302(a), P.P.C. and was sentenced to Death as Qisas. He has challenged his conviction and sentence before this Court through Criminal Appeal No. 178 of 1995. We have heard his appeal alongwith Murder Reference No. 198 of 1995 seeking confirmation of the sentence of Death passed against him. We propose to decide both these matters together through the present consolidated judgment. 2. The prosecution story narrated in the F.I.R. was that at about 9.00 A.M. on 6.7.1993 Muhammad Bakhsh complainant was sitting on a Hamacha (a big cot) with his son Muhammad Yaqoob outside his house in Rukan Abad Colony within the area of Police Station Civil Lines, Dera Ghazi Khan. Mazhar and Naveed PWs, residents of the same colony, were also sitting with them on the Hamacha. In the meanwhile Faiz Muhammad appellant came there and asked Muhammad Yaqoob to go with him as he had to tell something to Muhammad Yaqoob. Soon after that the complainant, etc. heard the cries of Muhammad Yaqoob, they rushed to the spot and saw the appellant giving four chhurri blows to Muhammad Yaqoob which landed on his back, left elbow and left buttock. Upon receipt of those blows Muhammad Yaqoob fell at the spot and became unconscious. The appellant then fled away towards his own house. Muhammad Yaqoob was immediately taken to a hospital but, despite efforts made by the doctors, he succumbed to his injuries and died. The motive stated in the F.I.R. was that the appellant had teased the complainant's younger son Hafiz Zahoor Ahmad a few days ago upon which Muhammad Yaqoob had reprimanded the appellant and had beaten him up with fists and kicks. At that occasion the appellant had issued threats to Muhammad Yaqoob. It was statedly for that grievance that the appellant had now killed the complainant's son Muhammad Yaqoob. 3. Leaving the deadbody of Muhammad Yaqoob at the hospital in the care of Mazhar and Naveed PWs the complainant proceeded to report the matter to the local police, he went to Police Station Civil Lines, Dera Ghazi Khan and lodged F.I.R. No. 117 which was recorded by Ahmad Nawaz, SI (PW-7) at 3.30 P.M. on the same day for an offence under Section 302, P.P.C. 4. After recording the statement of the c omplainant Ahmad Nawaz, SI (PW-7) took up the investigation of this case, proceeded to the hospital, prepared injury statement and inquest report regarding the deadbody of Muhammad Yaqoob and sent the same to the mortuary for autopsy. He then went to the place of occurrence, took into possession blood-stained earth, inspected the place of occurrence, prepared a rough site-plan thereof and recorded the statements of witnesses. 5. Medico-legal examination of the injured Muhammad Yaqoob was conducted by Dr. Fayyaz Karim Leghari (PW-5) at 9.45 A.M. on 6.7.1993 who found four injuries on his person which had all been caused by a sharpedged weapon within a duration of six hours. All the injuries had been kept under observation. 6. Post-Mortem Examination of the deadbody of Muhammad Yaqoob was conducted by Dr. Muhammad Safdar Hashmi (PW-6) at 5.15 P.M. on 6.7.1993. He had found four injuries on the deadbody which were all ante-mortem and caused by a sharp-edged weapon. Injuries Nos. 1 & 2 were dangerous to life whereas Injures Nos. 3 & 4 were simple in nature. Injury No. 2 had proved fatal. Death had occurred due to haemorrhage and shock caused by injury to right lung. Injury No. 2 individually and Injuries Nos. 1 and 2 collectively were sufficient to cause death in the ordinary course of nature. In the opinion of the doctor the time elapsing between the injuries and death was within a few hours whereas the time elapsing between death and Post-mortem Examination was within three hours. 7. After the Post-mortem Examination of the deceased Ahmad Nawaz, SI (PW-7), the Investigating Officer, secured the last-worn clothes of the deceased. He arrested the appellant on 12.7.1993 and on the same day recovered a blood-stained chhurri from the appellant. He then.got a formal site-plan of the place of occurrence prepared by a Patwari. Thereafter he completed the other formalities, finalized his investigation and submitted Challan in respect of his case. 8. At the commencement of the trial the learned trial Court framed a Charge with one heard under Section 302, P.P.C. against the appellant to which he pleaded not guilty and claimed a trial. 9. During the trial the prosecution produced as many as eleven witnesses in support of its case against the appellant. Mian Muhammad Bakhsh complainant (PW-9) and Naveed Shahid (PW-10) furnished the ocular account of the incident. The motive set up by the prosecution was stated by Mian Muhammad Bakhsh complainant (PW-9) and Zahoor Ahmad (PW-11). Dr. Fayyaz Karim Leghari (PW-5) and Dr. Muhammad Safdar Hashmi (PW-6) provided the medical evidence. Muhammad Ayub (PW-2) deposed about the recovery of blood-stained khanjar affected from the appellant. Ahmad Nawaz, SI (PW-7) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. 10. In his statement recorded under Secti on 342, Cr.P.C. Faiz Muhammad appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He maintained that he had been falsely implicated in this case, the witnesses had deposed against him on account of suspicion and that the deceased and his family had many enemies. The appellant opted not to make any statement on oath under Section 340(2), Cr.P.C. He, however, tendered copies of certain F.I.Rs. in his defence. 11. At the conclusion of the trial the learned Sessions Judge, Dera Ghazi Khan convicted and sentenced Faiz Muhammad appellant as noticed and detailed above. Hence, the present appeal and the connected Murder Reference before this Court. 12. We have heard the learned counsel for the appellant and the State and have also gone through the record of this case with their assistance. 13. At the very outset the learned counsel for the appellant has submitted that he does not challenge the involvement of the appellant in the occurrence in question and the role played by him during the same. He has, however, maintained that on account of the fact that the prosecution had failed to prove the alleged pre-existing motive set up by it against the ppellant, the immediate cause of the occurrence was shrouded in mystery and the recovery of weapon of offence from the appellant had been discarded by the learned trial Court the appellant deserves concession in the matter of sentence. As against that the learned counsel for the State has argued that the prosecution had successfully proved the guilt of the appellant to the hilt and that no mitigating factor exists on the record so as to reduce the appellant's sentence. 14. After hearing the learned counsel for the parties and going through the record we have found that the learned counsel for the appellant is quite justified in not challenging the finding of guilt recorded by the earned trial Court against the appellant. The prosecution had indeed succeeded in proving the guilt of Faiz uhammad appellant beyond reasonable doubt Mian Muhammad Bakhsh complaint (PW-9) and Naveed Shahid (PW-10) were natural witnesses of the occurrence and they had made consistent statements regarding the main occurrence. There was absolutely no background of ill-will or animosity between these witnesse and Faiz Muhammad appellant so as to prompt these witnesses to falsely implicate the appellant in this broad daylight occurrence. The medical evidence had furnished ample support to their statements. They have inspired our confidence and we have found no reason to doubt their veracity. Thus, we have no hesitation in concluding that the appellant had committed the murder of Muhammad Yaqoob deceased and was rightly convicted for an offence under Section 302, P.P.C. 15. We are, however, of the considered opinion that after convicting the appellant for an offence under Section 302, P.P.C. the learned trial Court was not legally correct in sentencing him under Section 302(a), P.p.C. There was neither any confession of guilt made by the appellant nor the prosecution witnesses had been subjected to Tazkiya-tul-shuhood so as to attract a sentence of Qisas under Section 302(a), P.P.C. The appellant's sentence of Qisas under Section 302(a), P.P.C. is, thus, converted by us into one Ta'zir under Section 302(b), P.P.C. We have also considered the question of quantum of sentence with all seriousness. The learned counsel for the appellant is quite right in maintaining that the prosecution had failed to prove the motive set up by it against the appellant. Mian Muhammad Bakhsh complainant (PW-9) had not himself witnessed the motive ncident allegedly taking place a few days before the present occurrence. Zahoor Ahmad (PW-11) had not made any statement before the Investigating Officer egarding the alleged incident of motive. His first statement in that regard was made before the learned trial Court about two years after the incident of murder. Such a belated statement made by this witness on a crucial aspect of the case has failed to inspire our confidence. Apart from that we have also noticed that as to what transpired between the deceased and the appellant immediately preceding the occurrence had also remained shrouded in mystery. It was the prosecution's own case that the appellant and the deceased had peacefully gone away together from the place where the eye-witnesses were sitting and that the place of occurrence was not visible from the original place of presence of the said witnesses. It was only after hearing the cries of the deceased that those witnesses had reached the place f occurrence and had witnessed the occurrence when it was already in progress. Thus, it was known as to what had transpired between the deceased and the appellant immediately before the causing of injuries by the appellant to the deceased. In this state of the evidence, i.e. absence of convincing proof of the existing motive and immediate cause of the occurrence remaining shrouded in mystery, we have felt it to be unsafe to uphold the sentence of death passed against the appellant by the learned trial Court. In this context we are also not unmindful of the fact that the appellant is a yound lad and he had no criminal antecedents to his discredit. Therefore, in the exercise of our discretion in the matter of sentence we set aside the sentence of death passed against the appellant by the learned trial Court and substitute the same with imprisonment for life. The appellant shall also be entitled to the benefit under Section 382-B, Cr.P.C. After noticing that the learned trial Court had failed to order payment of compensation by the appellant to the heirs of Muhammad Yaqoob deceased under Section 544-A, Cr.P.C. we issued notice in that regard to the appellant during the hearing of this appeal and the said notice was accepted on behalf of the appellant by his learned counsel. It is hereby ordered that the appellant shall pay a sum of Rs. 40,000/- to the heirs of the deceased by way of compensation under Section 544-A, Cr.P.C. failing which he shall suffer simple imprisonment for six months. 17. Before parting with this judgment we have thought it fit to mention that there is no clear proof available on the record of this case regarding the exact age of the appellant on the day of occurrence so as to consider whether or not the appellant's case attracts the provisions of Section 306(2) read with Section 308, P.P.C. The Certificate of Identification available on the police record showed that the appellant was already 18 years old at the time of occurrence. As against that the statement of the appellant recorded under Section 342, Cr.P.C. about two years after the occurrence also recorded his age to be 18 years! It was suggested to Zahoor Ahmad (PW-11) by the defence itself that the appellant might be 30/32 years of age! Therefore, in this state of the record about the age of the appellant at the time of occurrence we could not safely apply to this case the principle laid down by the honourable Supreme Court in the case of Kalil-uz-Zaman v. The Supreme Appellate Court, etc. (PLD 1994 SC 885). 18. The upshot of the above discussion is that the appellant's appeal is partly allowed in the terms recorded in Paragraph No. 16 above. 19. As the sentence of death passed by the learned trial Court against Faiz Muhammad appellant has been set aside by us, therefore, Murder Reference No. 198 of 1995 is hereby answered in the negative. Death sentence is not confirmed. (MYFK) Appeal partly allowed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1281 Present: MlAN MUHAMMAD NAJAM-UZ-ZAMAN AND asif saeed khan khosa, JJ. ALLAH DITTA-Appellant versus STATE-Respondent Criminal Appeal No. 36 of 1997 and M.R. No. 17 of 1997, heard on 9.2.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302--Murder--Offence of-Conviction for-Appeal against-PW-8 was real father and PW-9 was real brother of deceased-Both these witnesses lived separately rom each other in different parts of town and far away from place of occurrence-Both of them were admittedly Chance witnesses-I.O. had made no enquiry about mother of deceased allegedly leaving for Lahore on a bus and deceased allegedly having gone to drop her at Bus Stand-Even reason for deceased's presence at a place of occurrence at relevant time far away from his house remained unsubstantiated-Chance witnesses cannot be safely relied upon on a capital charge in absence of satisfactory explanation regarding their presence near place of occurrence where they were ordinarily not expected to be present-Prosecution- miserably failed to prove motive set up by it against appellant-Recovered pistol as well as crime-empties had been despatched to Forensic Science Laboratory together-Thus, positive report of Laboratory in that respect was not of much corroborative value- -Prosecution failed to prove its case against appellant—Appeal accepted. V. [Pp. 1285 & 1286] A to E Ch. Muhammad Yaqoob Rung, Advocate for Appellant. Mehr Muhammad Saleem, Advocate for Respondent. Mr. Altaf Ibrahim Qureshi, Advocate for Complainant. Date of hearing: 9.2.1999. judgment Asif Saeed Khan Khosa, J.--Allah Ditta appellant was convicted by the learned Additional Sessions Judge, Arifwala vide judgment dated 15.12.1996 for an offence under Section 302(b), P.P.C. and was sentenced to death as Ta'zir. He was also ordered to pay a sum of Rs. 25,000/- by way of compensation to the heirs of Ali Akbar deceased under Section 544-A, Cr.P.C. failing which the same was ordered to be recovered as arrears of land revenue. Allah Ditta appellant has hallenged his conviction and sentence before this Court through Criminal Appeal No. 36 of 1997. Muhammad Yaqoob complainant has also filed Criminal Revision No. 8 of 1997 before this Court seeking enhancement of compensation ordered against the appellant. We have heard the convict's appeal and the complainant's revision petition alongwith Murder Reference No. 17 of 1997 seeking confirmation of the sentence of death passed against the convict. We propose to decide all these matters together through the present consolidated judgment. 2. The prosecutions story narrated in the F.I.R. was that Muhammad Yaqoob complainant was a resident of Zia Nagar, Arifwala situated within the area of Police Station City, Arifwala, District Sahiwal. At about 7.30 A.M. on 5.1.1995 the complainant's son Ali Akbar was returning _ to the complainant's house on a motor-cycle after taking the complainant's wife to the Bus Stand for boarding a bus to Lahore. At that time the complainant was returning home with his other sons namely Muhammad Iqbal and Muhammad Ismail, who lived near the Bus Stand, on their motor­ cycle. Ali Akbar was traveling on his own motor-cycle one furlong ahead of the complainant, etc. When Ali Akbar reached near the wheat-grinding machine of one Ghulam Muhammad suddenly Allah Ditta appellant came there from his front and started altercating with Ali Akbar. Then, within the view of the complainant, etc., the appellant took out a .30 bore pistol and fired seven shots at Ali Akbar hitting him at his left shoulder, below the chin, chest, left hand, below the ribs, left of chest and left side of the neck. The complainant, etc. challenged the appellant but did not go near him due to fear. Ali Akbar succumbed to his injuries at the spot and thereafter the appellant left the spot firing with his pistol. The motive set up in the F.I.R. was that Ali Akbar used to do the business of milk-selling and the appellant used to purchase milk from him on deferred payment. According to the complainant his son Ali Akbar had been murdered by the appellant on account of demand made by him from the appellant for the amount of money outstanding against the appellant. 3. Leaving the deadbody of his son Ali Akbar at the place of occurrence in the care of Muhammad Ismail and Muhammad Yasin the complainant went to Police Station City, Arifwala, District Sahiwal and lodged F.I.R. No. 3 in that regard at 8.30 A.M. in the same morning. The F.I.R. was recorded by Ghulam Sabir, ASI (PW-10) for an offence under Sections 302, P.P.C. 4. After recording the F.I.R. Ghulam Sabir, ASI (PW-10) took up the investigation of this case, went to the place of occurrence, prepared injury statement and inquest report qua the deadbody, collected blood­ stained earth, recovered seven crime-empties and the deceased's motor­ cycle, prepared a rough site-plan of the place of occurrence, recorded the statements of witnesses and then sent the deadbody to the mortuary for autopsy. 5. The Post-mortem Examination of the deadbody of Ali Akbar was conducted by Dr. Muhammad Raheel (PW-1) at 12.00 noon on 5.1.1995. He had found 9 injuries on the deadbody which were all Ante-mortem and caused by firearm. The cause of death was injuries of the left neck vessels, the right lung and upper lobe left lung leading to severe and rapid bleeding which were sufficient to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was stated by the doctor to be immediate while the duration between the death and Post­ mortem Examination was opined by the doctor to be within 6 hours. 6. After the Post-mortem Examination of the deadbody Ghulam Sabir, ASI (PW-10), the Investigating Officer, took into possession the blood stained last- worn clothes of the deceased. The investigation of this case was then taken over by Muhammad Anwar Chishti, Inspector/SHO (PW-11). He got a site-plan of the place of occurrence prepared by a draftsman, arrested the appellant and recovered a licensed .30 bore pistol from him. Thereafter he completed the other formalities, finalized his investigation and submitted a Challan in respect of this case. 7. At the commencement of the trial the learned trial Court framed a Charge with one head under Section 302, P.P.C. against the appellant to which he pleaded not guilty and claimed a trial. 8. During the trial the prosecution produced as many as eleven witnesses in support of its case against the appellant. Muhammad Yaqooh complainant (PW-8) and his son Muhammad Iqbal (PW-9) furnished the ocular account of the incident. Both of them also deposed about the motive. Dr. Muhammad Raheel (PW-1) provided the medical evidence. Muhammad Iqbal (PW-9) also deposed about the recovery of weapon from the appellant. Ghulam Sabir, ASI (PW-10) and Muhammad Anwar Chishti, Inspector/SHO (PW-11) stated about various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. . 9. In his statement recorded under Section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Allah Ditta appellant had stated that: "Ah" Akbar deceased was a vagabond person. He belonged to criminal gange. The deceased had enmity with many persons. He also belonged to 'Qabza Group'. He wanted to snatch my house/disposses me from my house so due to that enmity I have been involved in this case. PWs are kith and kins so they also deposed against me." The appellant opted not to make any statement on oath under Section 340(2), Cr.P.C. However, he produced Bashir Ahmad Alvi, Moharrir/HC in his defence as DW-1 who produced copy of a judgment in a criminal case registered against the deceased. 10. At the conclusion of the trial the learned Additional Sessions Judge, Arifwala convicted and sentenced the appellant as noticed and detailed above. Hence, the present appeal, revision petition and the connected Murder Reference before this Court. 11. We have heard the learned counsel for the appellant as well as the learned counsel for the State and the complainant and have also gone through the record of this case with their assistance. 12. It has been argued by the learned counsel for Allah Ditta appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. According to him the witnesses produced by the prosecution did not inspire confidence and that they had also failed to find material corroboration from any independent source. As against that the learned counsel for the State and the complainant have argued that the prosecution had successfully proved the guilt of the appellant to the hilt through convincing, cogent and reliable evidence. 13. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had failed to prove its case against Allah Ditta appellant beyond reasonable doubt. The ocular account of the incident in question had been furnished by Muhammad Yaqoob complainant (PW-8) and his son Muhammad Iqbal (PW-9). Both of them have failed to inspire our confidence. Muhammad Yaqoob complainant (PW-8) was the real father of Ali Akbar deceased whereas Muhammad Iqbal (PW-9) was the deceased's real brother. Both these witnesses lived separately form each other in different parts of the town and far away form the place of occurrence. Both of them were admittedly chance witnesses. Muhammad Yaqoob complainant (PW-8) had given no reason whatsoever for his stated visit to the house of Muhammad Iqbal (PW-9) early in the winter morning either in the F.I.R. or in his statement made before the learned trial Court! Muhammad Iqbal (PW-9) had also remained silent about the purpose of his father's visit to his house in the morning in his examination-in-chief. The reason advanced by him in that respect during his cross-examination was also nothing but sketchy and unspecific! If the very reason for the complainant's visit to his sons' house early in the morning remained unproved then the story that the son was taking his father back to the father's house and in that process they coincidentally saw the occurrence also necessarily collapsed and crumbled. The Investigating Officer (PW-10) had also admitted that he had made no inquiry about the mother of the deceased allegedly leaving for Lahore on a bus and the deceased allegedly having gone to drop her at the bus stand. Even the reason for the deceased's presence at the place of occurrence at the relevant time far away from his house remained unsubstantiated. It is -e.iled lav, that chance witnesses cannot be safely relied upon on a capital eh-r^e In ihe absence of satisfactory explanation regarding their presence ,-ci.r the place of occurrence where they were ordinarily not expected to be 14, Apart from that both these witnesses admittedly did not go with the deudbody to the mortuary. That was surely an unusual conduct on the part of a father and a brother of the deceased. None of the eye-witnesses had any stamp of injuries on his person to otherwise vouchsafe his presence at the spot at the relevant time. Muhammad Iqbal (PW-9) had also gone on to state that his statement was not recorded by the police on the day of occurrence. We also cannot ignore the fact that these witnesses had claimed that they were travelling on a motor-cycle one furlong behind the motor­ cycle of the deceased. The site-plan (Exh-PE) shows that if these witnesses --were one furlong away from the deceased then they could not be anywhere near the street wherein the deceased had a rendezvous with his death. For all these reasons we have felt great reluctance in accepting the testimonies of the eye-witnesses produced by the prosecution. 15. The prosecution had also miserably failed to prove the motive set up by it against the appellant. Not an iota of evidence was brought on the record by the prosecution in support of its claim that the deceased used to sell milk or that the appellant owed the deceased nay sum of money on account of sale of milk or even in support of any existing dispute between the two on that or any other account. Thus, there was neither any serious on­ going motive nor any immediate motive available with the prosecution to provide corroboration to the already beleaguered ocular evidence. 16. As regards the recovery of his licensed pistol from Allah Ditta appellant during the investigation of this case suffice it to observe that the evidentiary value and worth of the said recovery has failed to impress us. The recovered pistol as well as the crime-empties had admittedly been dispatched to the Forensic science Laboratory together. Thus, the positive report of the laboratory in that respect was not of much corroborative value. Even otherwise Muhammad Iqbal (PW-9), an alleged eye-witness, had deposed in support of the said recovery of pistol from the appellant. It goes without saying that an eye-witness could not provide corroboration to himself. It is settled law that corroboration must emanate from an independent source. 17. There is no need to discuss the medical evidence produced by the prosecution in this case as medical evidence, by its very nature, cannot identify or locate the actual culprit. Thus, in a case where the presence of the eye-witnesses at or near the spot at the time of occurrence is itself doubtful there the medical evidence necessarily loses its supportive worth. What can a supportive piece of evidence do where there is nothing left in the field to support? 18. For what has been observed above we have arrived at a confident conclusion that the prosecution had failed to prove its case against Allah Ditta appellant beyond reasonable doubt. 19. The upshot of the above discussion is that Criminal Appeal No. 36 of 1997 is hereby allowed, the impugned judgment passed by the learned Additional Sessions Judge, Arifwala on 15.12.1996 is set aside and Allah Ditta appellant is acquitted of the charge against him. He shall be released form jail forthwith, if not required in any other case. For the reasons discussed above Muhammad Yaqoob complainant's Criminal Revision No. 8 of 1997 is dismissed. 20. As the appeal filed by Allah Ditta appellant has been accepted, with a resultant setting aside of his conviction and sentence recorded by the learned trial Court, and he has been acquitted by us, therefore, Murder Reference No. 17 of 1997 is hereby answered in the negative. Death sentence is not confirmed. (MYFK) Appeal accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1287 Present: RAJA MUHAMMAD KHURSHID, J. Khawaja SALAH-UD-DIN-Petitioner versus Malik MUHAMMAD NASIM and another-Respondents Crl. Misc. No. 6598/BC/1998, heard on 30.11.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Offence U/S. 17/22 of Emigration Ordinance, 1979--Acceptance of bail petition against-Cancellation of bail-While granting bail to respondent, trial Court did not exercise its jurisdiction arbitrarily- Agreement whereupon Rs. 100.000/- were acknowledged by respondent did not mention that same were paid for securing employment of brother of complainant abroad-This question can only be substantiated during trial and as such, at this stage, it would be a case of further enquiry-­ Respondent is an ill person with age of 60 years and has rightly been allowed bail by lower Court-There is no ground for cancellation of bail already granted to respondent-Petition dismissed in limine. [Pp.1288 & 1289 ] A & B Syed BaqarAli Naqvi, Advocate for Appellant. Date of hearing : 30.11.1998. order A case under Section 17/22 of Emigration Ordinance, 1979 was registered against Respondent No. 1 at P.S. FLA , Passport Cell, Township, Inhere vide FIR No. No. 125/98 dated 21.8.1998 on the ground that he promised to secure employment for younger brother of the complainant r.a^tly, Kh. Shuja-ud-Din in the foreign branch of United Bank Ltd. and in raturn received Rs. 100,000/- vide the impugned agreement. However, the respondent could not provide employment to the brother of the complainant as suitid in the agreement, whereupon demands were lodged against him time and again. The respondent accordingly returned Rs. 16,000/- out of the aforesaid amount of Rs. 100,000/- and the remaining Rs. 84,000/- were promised to be returned for which bank cheques were issued but those were dis-hcnoured. It was, therefore, contended that the respondent aforesaid was guilty of an offence under the Passport Act as he had not only cheated but had given a false promise of securing employment abroad for brother of the complainant. 2. The Special Judge (Central), Lahore admitted Respondent No. 1 to bail vide a detailed order dated 5.10.1998. The aforesaid order is assailed in this petition on the ground that it was clear from the contents of the agreement entered into between the parties that a part of amount was returned which further showed that the respondent had played a trick and as such, was liable to be punished under the Emigration Ordinance. The remaining amount was still outstanding and, therefore the respondent was not entitled to bail in the case. On the contrary, the perusal of the order of the learned trial Judge shows that the agreement in question does not mention that brother of the complainant was to be sent abroad for which the aforesaid amount was received. Likewise, the respondent had produced certain documents before the Court showing that open heart surgery was performed upon him in the past and he was an ailing person with the age of 60 years. Lastly, it was observed that one of the PWs namely Rashid Sadiq had sworn an affidavit showing that the consideration of Rs. 100,000/- was not paid in his presence although he was told that such consideration was paid to the respondent by the complainant. A request was made to the Court that the aforesaid witness be summoned in order to verify the affidavit but the Court did not find it necessary to summon him as according to the statement recorded under Section 161 Cr.P.C., the witness had also stated the same way about the consideration in question. Finally, it was observed that due to the acclaimed agreement between the parties, the possibility could not be ruled out that the transaction in question could be of civil nature. 3. In this petition, it is submitted that the learned Court below mis­ used the discretion vested in it. In this regard, it was contended that it was never verified that Rashid Sadiq PW had actually given any affidavit in favour of the respondent or not. Secondly, the documents placed on record were merely prescription chits issued by a Consultant from abroad and it could not be ascertained whether or not those were the genuine documents. As such no reliance could be placed on those ocuments to come to the conclusion that the respondent was actually a sick person. Likewise the sympathy regarding the demise of mother of the respondent would have no relevance to the grant of bail as it would not be considered to be a valid ground. 4. After taking into consideration the contentions and on going through the documents attached with the petition, I come to a view that while granting bail to the respondent, the learned trial Court did not exercise its jurisdiction arbitrarily. All the facts were clearly narrated and vividly discussed before allowing bail to the respondent. It is also clear that the agreement whereupon, Rs. 100,000/- were acknowledged by the respondent did not mention that the same were paid for securing employment of brother of the complainant abroad. The question whether or not the aforesaid amount represented consideration for sending the brother of the complainant abroad was true or not can only be substantiated during the trial and as such, at this stage, it would be a case of further enquiry. The prescription slip placed on record at page No. 25 showed that the same was issued by Mayo Institute of Cardiology, Lahore and was issued by an Associate Professor showing the treatment being administered to the respondent for some disease. Likewise, the Cardiothoracic Unit of the King's College Hospital , London 's slip issued by Mr. John Keates shows that the diagnosis of illness of the respondent was declared as 'Coronaryartery disease' followed by operation resulting into the Coronary Artery grafting on 23.1..L998. The history of the patient is given in Annexure 'E/2' to 'E/3' which is at pages 27 and 28. It was also signed by Dr. Keates who is Consultant Cardiothoracic Surgeon. It is enough to show for the limited purpose of bail that the respondent is an ill person with the age of 60 years and even on that ground, he would deserve to be released on bail and as such, has rightly been allowed bail by the learned lower Court. There is no good ground for cancellation of bail already granted to Respondent No. 1. The petition is, therefore, dismissed in limine with the remarks that any observation made herein would in no way effect the true merits of the case. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1289 Present: raja muhammad khurshid, J. ALLAH DITTA and another-Appellants versus STATE-Respondent Crl. Appeal No. 405 of 1993, heard on 4.2.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/379/34--Murder-Offence of-Conviction for-Appeal against-Both sides were having blood enmity and as enmity is a double edged weapon, it would call for extreme caution and care while analysing evidence of inimical witnesses-There can be no doubt about identification of killers as occurrence took place in middle of day and parties were known to each other-FIR was lodged promptiy-Evidence of witnesses cannot be brushed aside only because they are related to deceased-Though police opinion is not binding on Courts but since it comes into contact with parties when memories are fresh in mind of witnesses, therefore, a due weight is to be given to such finding, if there are additional attending circumstances in support of version of police-As such, participation of A appellant in occurrence is not proved beyond reasonable doubt, hence he was acquitted-Appellant, D had been found guilty throughout in all investigations, his appeal was dismissed-Appeal partly accepted. [Pp. 1294 to 1297] A to G Mr. Qadeer Ahmad Siddiqui, Advocate for Petitioners. Ch. Imtiaz Ahmad, Advocate for A.G. Mr. R.A. Awan, Advocate for Complainant. Dates of hearing: 4.2.1999 and 8.2.1999. judgment A case under Section 302/379/34 PPC was registered against Allah Ditta, Muhammad Anwar and Muhammad Bashir at P.S. Noshera Virkan vide FIR No. 313 dated 29.9.1990 for an occurrence which took place at 2 p.m. on 29.9.1990 in the area of village Sadhoke, District Gujranwala for the murder of one Munshi Khan. The occurrence was reported by Faqir Muhammad complainant, a hrother of the aforementioned deceased. The FIR was registered at 3:30 p.m on the same day at the police station which was at the distance of 7 miles from the place of occurrence. 2. The aforementioned accused were tried by Ch. Riaz Ahmad, the then learned Addl. Sessions Judge, Gujranwala , who vide his judgment dated 18.5.1993 convicted Allah Ditta and Muhammad Anwar Le. The present appellants under Section 302/34 PPC and sentenced them to undergo imprisonment for life with a fine of Rs. 30.000/- each or in default to undergo 2 years R.I. each. It was also directed that half of the fine, if realized, shall be paid to the legal heirs of the deceased Munshi Khan as compensation under Section 544-A, Cr.P.C. The benefit of Section 382-B, Cr.P.C. was also given to both the convicts/appellants. The third accused namely Muhammad Bashir was, however, given benefit of doubt, and acquitted. 3. The appellants/convicts have filed this appeal to impugned the judgment aforesaid. 4. The complainant Faqir Muhammad also filed a revision petition under Section 439 Cr.P.C., whereby, he prayed for enhancement of sentence of mprisonment for life awarded to the appellants/convicts to that of the sentence of death. The complainant also prayed that the acquittal of Muhammad Bashir (acquitted accused) be also set-aside and he be convicted and punished for the murder of the deceased. 5. Since the appeal and the revision petition have arisen out of the same judgment, therefore, those are proposed to be decided through this common judgment. 6. It was alleged in the FIR (Ex.PB) that father of the appellant/ convict Allah Ditta namely Muhammad Siddique was murdered on 2.3.1984. In that murder case, the complainant and the deceased Munshi Khaa alongwith others were arrested and tried. All of them were, however, acquitted after the trial in the aforesaid murder case. About three or four days prior to the occurrence, the pet dog of the deceased was lost. On the day of occurrence, the deceased armed with his licenced 7 MM rifle at about noon's time was searching for his dog while riding a cycle. At that time, the complainant alongwith Akbar son of Wassan Din Awan resident of Mughalpura, Lahore and then residing at Sadhoke was also proceeding to participate in a fair (Mela). In the nearby field of Rana Liaquat Ali, another brother of the deceased namely Dil was grazing his goasts. Munshi Khan was proceeding to the village on a cycle near the 'Dera' of aforesaid Rana Liaquat Ali. The appellants/convicts namely Allah Ditta and Muhammad Anwar alongwith Muhammad Bashir (acquitted accused) were standing alongwith their cycle near the field of Muhammad Bashir Gujjar on the aforesaid 'Kachaha' path. As soon as the deceased reached near them, the appellant Allah Ditta fired at him with his carbine from a dose range hitting the victim on the right side of his waist and head. After making the fire, the aforesaid Allah Ditta took off the rifle from the left shoulder of the deceased. Thereafter, the acquitted accused Muhammad Bashir gave dagger blows one after the other to the deceased hitting near his right eye and aforehead. The appellant Muhammad Anwar had also fired from close range on the deceased when the latter had fallen down. The fire made by Anwar also hit the right side of back of the deceased. After completing the occurrence, all the three appellants escaped from the spot while leaving their cycle and taking away cycle of the deceased. The PWs tried to follow the accused but they raised lalkara that if any body came near to them, he would be killed. The FIR was lodged, as pointed out above, at 3:30 p.m at the police station. The deceased died on the spot. 7. The prosecution examined Faqir Muhammad complainant as PW. 2 and an eye-witness Dil Muhammad as PW. 3 to prove the ocular account of ccurrence. The recovery of weapons of offence carbine (P. 7) from Allah Ditta and cabrin (P. 8) from Muhammad Anwar were effected and secured vide memos (Ex.PF and Ex.PG) respectively. The medical evidence consisting of the statement of Dr. Ali Muhammad (PW. 8) was recorded to prove the post mortem report (Ex.PK) and the diagram of injuries (Ex.PK/1). The police officials including the Investigating Officer were also examined to bring on record the investigation conducted in the case. 8. After considering the evidence, the learned trial Court rendered the impugned judgment. 9. Learned counsel for the appellants has submitted in his arguments that both the eye-witnesses are the real brothers of the deceased who were admittedly inimical to the accused/appellant as the latter's father was murdered for which they were arraigned. It was also contended that besides being inimical, they were interested and chance witnesses as they were found at the place of occurrence in a casual manner as one of them was going to participate in the fair and the other was grazing his goats in the nearby field. As such, it was contended that both these witnesses did not see the occurrence but were later on made eye-witnesses to strengthen the prosecution case. Even otherwise, those witnesses were not allegedly trust­ worthy because there was no corroboration of intrinsic nature to support their testimony in respect of the ocular account of occurrence. The evidence of such uncorroborated interested witnesses ought to be allegedly considered with due care and caution before accepting it to bring home an offence punishable with capital sentence. It was further contended that the occurrence had allegedly taken place in the broad day light in a populated area near a village, therefore, the absence of any independent person to have seen the occurrence would make the prosecution case highly doubtful. Secondly, it was contended that the motive was also a concocted story without any substance. It was allegedly not only far-fetched but was basically weak and imaginary. In this regard, it was submitted that murder of father of Allah Ditta appellant had taken place on 2.3.1984, whereas, the present occurrence took place after more than Q\ years. Even the FIR is silent as to how the occurrence had started. The fire attributed to the assailant was made at random on seeing Allah Ditta. Allegedly there was nothing on record to show that infact the present occurrence had taken place in pursuance of the motive disclosed in the FIR. Hence, the occurrence was without motive or at least was based on a very weak and far-fetched incident. The recovery of weapons of offence was allegedly made in total violation of Section 103 Cr.P.C. as no independent person from the locality was associated nor the weapons were sent to the Ballastic Expert for analysis to come to the conclusion that the same were used during the occurrence. In this regard, it was also contended that admittedly no empty was recovered from the spot, hence the recovery of the weapons i.e. carbines was only an exercise in futility on the part of the prosecution; and it is for that reason that the learned trial Court had also discarded such recovery. The whole story of the prosecution allegedly hinged on chances such as loss of dog of the deceased who came out in search of it and incidently found his two brothers near the place of occurrence, as pointed out above. All these chances of their assemble together would show that a story was built up in order to involve the present appellants/convicts with whom they had a proven enmity. The medical evidence was also stated to be at variance with the ocular account of occurrence. In this respect, it was stated that it seemed impossible that two assailants would select similar weapons and will also choose the same part of the body of the victim while making firing at him. It was submitted that il did not make any sense that Muhammad Anwar appellant/convict would also selected the right side of waist of the deceased to make fire while the latter had already fallen on the ground on receiving the fire from Allah Ditta appellant/convict. It was, therefore, contended that infact there was sorer unknown single assailant who had fired at the deceased but the appellants/convicts have been made scape goat on account of enmity. Likewise, Muhammad Bashir (acquitted accused) was allegedly unnecessarily involved. He was found innocent during the investigation which further reflected that a balaboured attempt was made by the complainant to rope in their enemies in the case after losing their brother at the hands of some unknown assailant. It was, therefore, submitted that case of the prosecution against both the appellants/convicts was highly doubtful and the impugned judgment was not liable to stand because the same set of evidence which was his-believed qua the acquitted accused could not be utilized to record conviction of the present appellants/convicts. It was, therefore, prayed that the appellants deserve to be given benefit of doubt and acquitted. 10. Learned counsel for the state assisted by learned counsel for the complainant also argued at considerable length and submitted that the appellants/convicts were rightly convicted but were not adequately punished after their conviction under Section 302/34 PPG for which a prayer was made in the connected revision petition that the sentence for imprisonment for life awarded to them be enhanced to the sentence of death. It was also contended that acquittal of the third accused namely Muhammad Bashir was also not warranted by the evidence on record which fully proved his involvement in killing the deceased. While advancing arguments, it was contended that in this case, the FIR was lodged promptly at the police station within 1 \ hour. The police station was at the distance of 7 Miles from the place of occurrence, therefore, keeping in view the distance and other attending circumstances prevailing in the rural side, the FIR was recorded with promptitude leaving no chance for fabrication or padding up of the case. The occurrence had taken place during the broad day light and hence, there was no possibility of the mistaken identity by the eye-witnesses to whom the accused was previously well known. All the accused were named in the FIR alongwith their weapons by the eye-witnesses and a specific role was attributed to each one of them in assaulting the deceased. The motive was also allegedly clearly stated in the FIR which was even not denied by the other side. The medical evidence allegedly fully corroborated the ocular account of occurrence given by the eye-witnesses and as such, there was a substantive piece of corroboir Ion for the involvement of the appellants/convicts in the case. The mere fact that the PWs were brothers of the deceased would in no way adversely influence their testimony because, though admittedly related but were also natural witnesses to the occurrence. One was grazing his goats in a nearby field and the other was passing near the place of occurrence as he was going to participate in a fair (Mela). These types of witnesses cannot be allegedly dubbed as chance witnesses nor would they be considered interested or biased witnesses in the light of the motive alleged in the FIR. The appellant Allah Ditta had lost his father about six years back for which the complainant side was challaned and acquitted. As such, normally the accused would nurse grudge and could have taken the law in their own hands in order to take revenge of the aforesaid murder. Both the appellants/convicts are closely related. Muhammad Anwar being nephew of Allah Ditta would naturally join hands to kill the killer of his uncle and father of his co-accused. The mere fact that one of the accused namely Muhammad Bashir was acquitted would not effect the merits of the prosecution case adversely as the principle of sifting the grain from the chaff has been Universally recognized by the Superior Courts of this country. Reliance was placed on PLD 1976 Supreme Court 452 Muhammad Sharif vs. Muhammad Javed alias Jeda Tedi and 5 others, 1988 SCMR 1749 (Supreme Court of Pakistan) Piyaro vs. The State and 1998 SCMR 1823 (Supreme Court of Pakistan) Sardar Khan and 3 others vs. The State to support the foregoing points. 11. It was also contended that although the recoveries of carbines were discarded by the learned trial Court but such recoveries and the corresponding injuries found on the person of the deceased provided confirmatory circumstance to the eye-witnesses. Reliance was placed on 1973 SCMR 83 Sharif and another vs. The State. Another confirmatory factor was the alleged absconsion of the accused persons for more than two months before they were arrested on 23.11.1990. This also showed that they were involved in the occurrence and had, therefore, gone under-ground. Since the motive was admitted by both the sides as father of Allah Ditta was murdered for which the deceased and the complainant side were challaned, therefore, this too provided a corroborative factor when read with the medical evidence which supported that the deceased suffered fire arm injuries at the seats as pointed out by the eye-witnesses during their testimony. Reliance was placed on PLD 1993 Supreme Court 895 Muhammad Hanif vs. The State, PLD 1977 Supreme Court 557 Roshan and 4 others vs. The State and PLD 1976 Supreme Court 44 Mst. Razia Begum vs. Hijrayat Ali and 3 others. It was further contended that the mere fact that nobody else from the public had come forward to depose against the appellants/accused would not be material keeping in view the social conditions prevalent in our society where strangers avoid to poke their nose in the bloody affairs of other people. This is surely a lack of civic sense amongst the people but that would not effect adversely the testimony of the eye-witnesses who though related but would also inspire confidence. In this regard, reliance was placed on PLD 1976 Supreme Court 53 Yaqoob Shah vs. The State and PLD 1976 Supreme Court 291 Muhammad Iqbal alias Javed Iqbal vs. The State. Both the appellants/convicts allegedly acted in furtherance of their common intention to cause murder of the deceased, therefore, both of them were vicariously liable apart from being individually amenable to law. 12. I have considered the arguments addressed from both the sides and have also carefully gone through the evidence brought on record. It is true that in this case, the only two eye-witnesses, examined at the trial, were the real brothers of the deceased. It is also true that the complainant side including the deceased was arraigned for the murder of father of Allah Ditta appellant/convict in 1984 and were acquitted on a trial. It is, therefore, clear that both the sides were having blood enmity and therefore, it would call for extremely cautious approach to decide about the value of the testimony of the eye-witnesses. Seeing in the past perspective, it would be clear that infact Allah Ditta and his family members would be aggrieved of the murder of their father and consequent acquittal of his killers. This is but natural that if provided with an opportunity, they would not spare the killers of their father. The deceased was one of the killers arraigned for deceased father of Allah Ditta appellant/convict. It is also true that enmity is a double edged weapon and would call for extreme caution and care while analysing the evidence of inimical witnesses. In the instant case, as pointed out above, the motive was actually with Allah Ditta appellant/convict and his family members because the complainant side had also earned acquittal and would not be much aggrieved qua the accused side. Though the brothers of the deceased are inimical to the accused side but it will be natural on their part to see that the actual killer of their deceased brother is brought to the book and punished. This natural instinct would actually smoother their impulse of falsely implicating the appellants/convicts and leaving scot-free the actual killer if he was some one else. There can be no doubt about the identification of the killers of the deceased as the occurrence had taken place in the middle of the day and the parties were known to each other. It cannot be, therefore, successfully urged that in fact some unknown killer had committed the murder of the deceased and out of sheer enmity, the present appellants were implicated in the case. Even otherwise, the FIR was lodged at the police station promptly after the occurrence i.e. within 1% hour. In such a situation, it cannot be said that the complainant side had a reasonable opportunity to cook up their case falsely or had sufficient time for deliberation to mint up a false story. The mere fact that Faqir Muhammad was going to participate in a fair and Dil Muhammad PW was grazing his cattle in a nearby field would not make them chance witnesses because they admittedly belonged to the same village where the murder was committed. Had they come from out side or belonged to a different locality, then of course, the plea of their presence by chance would have raised some suspicion about truthfulness of their testimony. As such a person belonging to the same locality and passing by the place of occurrence would not be rendered as a chance witness. Even a passer-by belonging to the same locality would be a good witness in the eyes of law without becoming or dubbed as chance witness. It is true that no empty was picked up from the place of occurrence, therefore, the recovery of similar carbines form the appellants/convicts would be of no avail to the prosecution and had rightly been so held by the learned trial Court. However, the prompt lodging of the FIR would be a very strong confirmatory circumstance about the presence of the eye-witnesses to see the occurrence and their evidence cannot be easily brushed aside only because they are related to the deceased or there is some enmity over the murder of father of Allah Ditta appellant/convict. The motive having been admitted from both the sides can also be utilized as a confirmatory circumstance at least to bring home the offence of murder against Allah Ditta appellant/convict. The medical evidence in this case clearly shows that there were five injuries on the person of the deceased. Out of them, Injury No. 2 was declared to have been inflicted by a blunt weapon, whereas, all other injuries were caused by fire arm. Injuries Nos. 3, 4 and 5 were grievous and dangerous to life. The death had taken place due to shock and massive haemorrhage as a result of Injuries Nos. 3, 4 and 5 collectively. Injuries Nos. 1 and 3 were not caused by sharp edged weapon. Tt is for that reason that the third accused namely Muhammad Bashir »ts rightly given benefit of doubt and acquitted. The question would arise whether or not the evidence dis-believed regarding one accused could be utilized against the appellant/convicts i.e. other accused of the same occurrence. In this connection, it may be observed that there is unfortunate tendency in the rur : de to throw a net wider to implicate the maximum number of persons belonging to the other side. This case also does not appear to be an exception to the aforesaid unfortunate tendency of roping innocent persons with the actual accused. It is for that reason that the principle of sifting the grain from the chaff has gained recognition from the Courts of this country, as compared to the principle offalsus in uno falsus in omnibus. Acting on the first principle, the Court has to separate on innocent from the guilty for the proper adimnistra^on of criminal justice. In the instant case, the benefit of doubt extended ,tb the acquitted accused is also required to be further examined in respect of Muhammad Anwar appellant/convict. Though he is nephew of Allah Ditta appellant/convict who is shown to have participated in the occurrence while armed with a carbine of similar nature as was carried by him (Anwar) at the time of occurrence but the motive was asically against Allah Ditta appellant/convict as compared to Muhammad Anwar appellant/convict. Even otherwise, during the investigation at one stage, he was also found innocent by a senior police officer namely Rana Rashid, DSP who had directed that the accused Muhammad Bashir (acquitted accused) and Muhammad Anwar i.e. the appellant/convict be placed in Column No. 2 and that Allah Ditta appellant/convict be only challaned for the murder of the deceased Munshi Khan. It is in pursuance of finding of Rana Rashid, DSP that names of the appellant/convict Muhammad Anwar and Muhammad Bashir (acquitted accused) were placed in column No. 2 of the report prepared under Section 173 Cr.P.C. Though the police opinion is not binding on the Courts but since it is conducted by an agency responsible for coming into contact with the parties at the initial stages of the case when the memories are fresh in the mind of the witnesses and the people concerned, therefore, a due weight is to be given to such finding, if there are additional attending circumstances in support of such version of the police. In the instant case, as pointed out above, the mmediate motive was with Allah Ditta appellant/convict whose father was allegedly murdered by the complainant side which was arraigned and acquitted. The possibility of false implication of Muhammad Anwar appellant/convict could not be ruled out particularly when he had been found innocent by the police, as pointed out above. It is also very doubtful that Muhammad Anwar appellant/convict would fire at the deceased when the latter had fallen down after receiving fire of Allah Ditta i.e. the main culprit. It is also questionable that Muhammad Anwar appellant would also select the same part of the body of the deceased which was injured with the fire made by Allah Ditta appellant/convict. Although the Medical Officer has stated that Injuries Nos. 4 and 5 (allegedly attributed to Muhammad Anwar ellant/convict) on the person of the deceased could not be caused by one fire shot but this is an opinion of the Expert which cannot have a binding effect if otherwise, it is not in consonance with the natural course of conduct. As pointed out above, it would not be worth while for Muhammad Anwar appellant to fire at the deceased who had already fallen down after receiving fire from Allah Ditta appellant/convict and secondly, it would be quite unusual that he would choose the same part of body of the deceased which was injured Allah Ditta i.e. the main culprit. In such a situation, the participation of Muhammad Anwar in the occurrence also becomes reasonably doubtful because it would be quite probable in the ordinary course of nature that the injuries found on the person of the deceased could be inflicted by a single weapon such as carbine used by the principal accused namely Allah Ditta appellant/convict. As such, it is found that the participation of Muhammad Anwar appellant/convict in the occurrence is not proved beyond reasonable doubt. Accordingly, he is give benefit of doubt and acquitted. However, the case against Allah Ditta appellant/convict is proved beyond any doubt as already discussed. The main motive is against him and even the Investigating Agency had also no doubt regarding his participation in the occurrence and he had been found guilty throughout in all the investigations. 13. Now the question would arise whether the sentence of imprisonment for Ufe was adequate under the given situation. In this context, the reference to the FIR would show that its bare perusal does not indicate any immediate cause for the occurrence. As such the origin f the occurrence remains shrouded in mystery and there is plethora of case-law that in such cases, the capital punishment should be avoided and the alternate sentence for life imprisonment should be preferred. Resultantiy, Allah Ditta appellant was rightiy given the imprisonment for Ufe for the reasons given above which are different than the reasons given by the learned trial Judge. 14. In view of the above discussion, the appeal is partly accepted to the extent of Muhammad Anwar appellant/convict who is given the enefit of doubt and acquitted. He shall be set at liberty at once if not required in any other case. The appeal to the extent of Allah Ditta ppeUant/convict is, however, dismissed and his conviction and sentence under Sections 302 PPC as awarded by the learned trial Judge is maintained. He shall have the benefit of Section 382-B, Cr.P.C. as given to him in the impugned judgment. 15. In view of the foregoing decision in the appeal, the revision petition has no merit and the same is dismissed. (MYFK) Appeal partly accepted

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1302 (DB) [ Multan Bench] Present: mian muhammad najum-uz-zaman and asif saeed khan khosa, JJ. ABDUL RASHID alias TEDDI-AppeUant versus STATE-Respondent Criminal Appeal No. 336 of 1995 and M.R. 37/96, heard on 21.4.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- -—S. 302(b)--Murder--Offence of--Conviction for--Appeal against-Appellant entertained a motive to kill deceased-Evidence led by appellant clearly showed that appellant claimed the deceased to be his wife but deceased did not accept that claim till her death-It was a case of daylight occurrence and FIR had been lodged with sufficient promptitude wherein appellant had been nominated as sole perpetrator of offence-It is true that eye witnesses were related to deceased but mere relationship is never sufficient by itself to discard his testimony—Eye witnesses had no reason to falsely implicate appellant-Their statements had remained completely consistent before police as well as before trial Court-Recovery of blood stained churri from custody of appellant was a corroborative factor to ocular evidence-Nikahnama between deceased and appellant, produced by appellant had no value in the presence of other documents roduced by appellant himself-Appellant bruttaly butchered an innocent young girl and prosecution produced best available evidence in that regard-Appeal dismissed. [Pp. 1306 to 1310] A to I Mian Muhammad Tayyab Watto, Advocate for Appellant. Malik AltafHussain Rawn, AAG for Respondent. Date of hearing: 21.4.1999. judgment Asif Saeed Khan Khosa, J.--Abdul Rashid alias Teddi appellant is a lady-killer but of a different kind. Instead of softly winning over a lady by his amorous and masculine charms he brutally killed her with a chhurri\ He was, thus, convicted by the learned Sessions Judge, Vehari vide judgment dated 29.11.1995 for an offence under Section 302(b), P.P.C. and was sentenced to death and to pay a sum of Rs. 20,000/- by way of compensation under Section 544-A, Cr.P.C. to the heirs of Mst. Shamim alias Sheema deceased or in default of payment thereof to undergo R.I. for six months. He has challenged his conviction and sentence before this Court through Criminal Appeal No. 336 of 1995. We have heard his appeal alongwith Murder Reference No. 37 of 1996 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment. 2. The prosecution story narrated in the F.I.R. was that Sardar complainant was a resident of Chak No. 107/WB, situated within the area of Police Station Mitroo, District Vehari. At about 10.00 A.M. on 9.9.1993 the complainant and his brother's daughter Mst. Shamim alias Sheema were proceeding to the complainant's lands for the purpose of collecting grass therefrom. When they reached a katcha road near the tube-well of one Sher Muhammad Mahar suddenly Abdul Rashid alias Teddi, armed with a churn, •:-merged there from a cotton crop and raised a lalkara that Mst Shamim alias Sheema would be punished for not marrying him. He then gave- a chhurri blow to Mst. Shamim alias Sheema which landed at the left side of her front chest. Upon receipt of that injury Mst. Shamim alias Sheeina fell down. He then gave repeated chhurri blows to the fallen Mst. Shamim alias Sheema hitting her left flank, left side of her back, right side of neck and right arm. He and cry raised by the complainant and Mst. Shamim alias Sheema attracted Shoaib and Qasim PWs to the spot who also witnessed the occurrence. When the complainant and the PWs tried to intervene and catch hold of him they were also threatened by Abdul Rashid alias Teddi who then managed to flee from the place of occurrence brandishing his churri. After a short while Mst. Shamim alias Sheema succumbed to her injuries at the spot. The motive set up in the F.I.R. was that Abdul Rashid alias Teddi appellant wanted to marry Mst. Shamim alias Sheema deceased which offer was spurned and turned down by the complainant's family and Mst. Shamim alias Sheema herself. It was statedly on account of that grievance that Abdul Rashid alias Teddi had committed the murder ofMst. Shamim alias Sheema. 3. Leaving the deadbody of Mst. Shamim alias Sheema in the care of Shoaib and Qasim PWs the complainant proceeded to report the matter to the local police. He went to Police Station Mitroo, District Vehari and lodged F.I.R. No. 228 which was recorded by Muhammad Ameer, Inspector/SHO (PW 8) at 1.00 P.M. on the same day for an offence under Section 302, P.P.C. 4. After recording the statement of the complainant Muhammad Ameer, Inspector/SHO (PW 8) took up the investigation of this case, proceeded to the place of occurrence, prepared injury statement and inquest report qua the deadbody of Mst. Shamim alias Sheema and sent the deadbody to mortuary for autopsy. He then inspected the place of occurrence, prepared a rough site-plan thereof, took into possession blood­ stained earth therefrom and recorded the statements of witnesses. 5. Dr. Muhammad Razzaq (PW 1) conducted post-mortem examination of the deadbody of Mst. Shamim alias Sheema on 10.9.1993 and found 9 incised wounds on the deadbody which were all ante-mortem and caused by a sharp-edged weapon. The cause of death was shock and haemorrhage and injuries to heart, right carotid vessels and liver, which were vital organs of the body, due to Injuries Nos. 1 to 9. Injuries Nos. 1, 4 & 5 were fatal and sufficient to cause death in the ordinary course of nature. The rest of the injuries were simple in nature. In the opinion of the doctor the death occurred instantaneously upon receipt of the injuries and the post­ mortem examination was conducted within 24 hours of the death. 6. After post-mortem examination of the deadbody Muhammad Ameer, Inspector/SHO (PW 8), the Investigating Officer, secured the bloodstained last-worn clothes of the deceased. Subsequently he arrested the appellant and recovered a blood-stained chhurri from his custody. He then got a formal site-plan of the place of occurrence prepared by a Patwari. Thereafter he completed the other formalities, finalized his investigation and submitted a Challan in respect of this case. 7. At the commencement of the trial the learned trial Court framed a Charge with one head under Section 302, P.P.C. against the appellant to which he pleaded not guilty and claimed a trial. 8. During the trial the prosecution produced as many as eight witnesses in support of its case against the appellant. Sardar complainant (PW 6) and Qasim (PW 7) furnished the ocular account of the incident. Sardar complainant (PW 6) also stated about the motive. Dr. Muhammad Razzaq (PW 1) provided the medical evidence. Muhabat Ali (PW 5) deposed about recovery of the weapon of offence affected from the appellant. Muhammad Ameer, Inspector/SHO investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. 9. In his statement recorded under Section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Abdul Rashid alias Teddi appellant had stated as follows: "The prosecution witnesses are inimical towards me. They are dose relatives of the complainant. Mst. Shamim deceased was my wife. She was married to me on 5.9.1992. My Nikah was solemnised by Moulvi Abdul Hameed in the presence off Nawab Ali Lambardar and Muhammad Hanif. The complainant party was annoyed due to this marriage. I was living in the house of Gohar Ali, the father of Mst. Shamim deceased as Ghar-damad. After my marriage Gohar Ali had died and there was no legal heir of said Gohar Ali except his wife and Mst. Shamim deceased. Said Gohar Ali had sufficient amount of cash with him He was also having golden ornaments with him. He had lajnded property. I have been involved in this case falsely due to ulterior motive as after my involvement in this case, the complainant party would be able to usurp the whole of the property of said Gohar Ali. The mother of Mst. Shamim deceased is still alive. She wanted to bring the true facts before the police but she was restrained by the complainant party with ulterior motive from doing so. I had no motive to murder Mst. Shamim deceased. I am a poor person. There is no body in my family to pursue my case. The complainant party in connivance with the police had falsely involved me in this case. Mst. Shamim deceased was murdered at a deserted place and since it was a blind murder, the complainant party had an opportunity and involved me falsely in this case." Although initially the appellant opted to make a statement on oath under Section 340(2), Cr.P.C. as his own witness and also stated that he would produce evidence in his defence yet subsequently he changed his mind. He neither made any statement on oath under Section 340(2), Cr.P.C. nor produced any witness in his defence. He, however, tendered documents Exh- DA to Exh-DD in his defence. 10. At the conclusion of the trial the learned Sessions Judge, Vehari convicted and sentenced the appellant as noticed and detailed above. Hence, the present appeal and the connected Murder Reference before this Court. 11. We have heard the learned counsel for the appellant and the learned Assistant Advocate-General appearing for the State and have also gone through the record of this case with their assistance. 12. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. He has further argued that the eye-wintesses produced by the prosecution were related, interested and chance witnesses who had failed to substantiate the reason for their presence near the deceased at the time of occurrence. It has also been contended that the ocular evidence had failed to receive corroboration from any independent source inasmuch as motive set up by the prosecution remained unproved, recovery affected from the appellant was unbelievable and the medical evidence contradicted the ocular account. It has seriously been canvassed that the stand taken by the appellant in his defence was supported by documentary evidence and the same merited acceptance. In the alternative it has been argued that on account of the prosecution's failure to prove the motive set up by it the appellant did not deserve the sentence of death passed against him by the learned trial Court. As against that the learned Assistant Advocate-General has argued that the guilt of the appellant had been proved to the hilt and that he had acted curelly and brutally and, thus, did not deserve any concession in the matter of sentence. 13. After hearing the learned counsel for the parties and going through the record we have hesitation in concluding that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt. 14. The first que stion that has engaged our attention is whether the appellant had any motive to kill the deceased or not. After analyzing the record of this case from various angles we have formed a considered opinion that the appellant in this case indeed entertained a motive to kill the deceased. The prosecution's case was that the appellant wanted to marry the deceased but the omplainant's family as well as the deceased herself had turned down that proposal of the appellant. According to the prosecution such rejection of the proposal had propelled the appellant into aggression against the deceased. It has been argued by the learned counsel for thr appellant that the prosecution had failed to prove that motive set up by it. We do not agree with this argument. Sardar complainant had deposed about the motive in this case and he had not been seriously cross-examined by the-, defence on that aspect. It was admitted by all the parties to this case that the deceased was a young girl aged about 18/19 years and the deceased's father had already died and also that Sardar complainant was a brother of the deceased's father. It was also admitted that the deceased had no brother or sister and also that the deceased's mother was old and ailing. In this factual background, keeping in view the social set-up in our villages, we are ready to believe that the complainant was looking after the deceased and wa,a concerned with and responsible for the welfare of the deceased and her mother. It was, thus, primarily the complainant who could be approached with a marriage proposal regarding the deceased and if such a proposal and its rejection were to be proved then it was the complainant who, more than anybody else, could appropriately depose about it. Thus, the prosecution had produced the best available vidence in that regard and in the absence of any serious cross-examination of the complainant in that regard we have felt persuaded to accept his deposition in that respect. 15. Another angle from which we have looked at the aspect of motive in this case is that even the defence evidence obliquely accepts the motive part of the prosecution's case. The stand taken by the appellant in his statement recorded under Section 342, Cr.P.C. was that the deceased had in fact contracted Nikah with the appellant on 5.9.1992 through a registered Nikahnama (Exh-DB). The defence had also placed on record a plaint ( Exh- DC ) filed by the deceased against the appellant on 22.10.1992 regarding jactitation of marriage. That plaint was dismissed vide order dated 12.10.1993 (Exh-DD) on account of murder of the deceased on 9.9.1993. That evidence led by the appellant clearly showed that the appellant claimed the deceased to be his wife but the deceased did not accept that claim till her death. That by itself provided motivation to the appellant to launch aggression against the deceased. Yet another angle in that respect could be that even if the deceased had contracted marriage with the appellant with her free consent on 5.9.1992 it appeared that she had gone back to her mother and the complainant within a month and a half of such marriage whereafter a suit for jactitation of marriage was filed on her behalf which she had not refused to pursue. That could have generated a grave sense of betrayal in the mind of the appellant motivating him to launch aggression against her. Although extremely unfortunate and abominable yet throwing of acid on such betraying females by their frustrated and angry paramours or physically assaulting them or even committing their murder is not something unheard of in our society. All these various angles available on the record of this case have convinced us that the appellant indeed nursed a motive to launch an assault on the deceased. 16. As regards the ocular account in this case we have noticed that it as a case of a daylight occurrence and the F.I.R. had been lodged with _ sufficient promptitude wherein the appellant had been nominated as the sole perpetrator of the offence. It was never suggested to the eye-witnesses that they did not previously know the appellant for the purpose of his identification. Even otherwise the stand taken by the appellant in his defence regarding alleged marriage with the deceased completely excluded the possibility of lack of identification on the part of the eye-witnesses. It is settled law that substitution is a rare phenomenon in a case of single accused. Apart from bald suggestions no solid foundation had been laid by the defence in the present case so as to impute such a substitution by the eye-witnesses. 17. It is true that the eye- witnesses produced by the prosecution in this case were related to the deceased but mere relationship of a witness with the deceased is never sufficient by itself to discard his testimony. The E eye-witnesses in the present case had no reason to falsely implicate the appellant as the sole accused who had committed a gruesome murder of their young and innocent female relative. They had seen the appellant committing the offence in question and they had made straightforward depositions ahout the same before the learned trial Court. Their statements had remained completely consistent regarding the main occurrence before the police as well as before the learned trial Court. It is true that at the time of occurrence the said eye-witnesses were away from their homes but the presence of Qasim (PW 7) on his land and the claim of Sardar complainant (PW 6) about going towards his land at that time of the day were neither unusual nor unbelievable. Villagers do frequently shuttle between their homes and nearby lands throughout the day. After all their lands are their main pre-occupation. Therefore, we are quite reluctant to brand the eye­ witnesses produced by the prosecution in this case as proverbial chance witnesses. We have also noticed with seriousness that the defence had failed to seriously cross-examine the said witnesses regarding the explanations put forth by them for their presence at or near the place of occurrence at the relevant time. In this context we are also mindful of the fact that the deceased was a young girl aged about 18/19 years and it was quite natural and expected that when present outside the village at that time she must be accompanied by a male member of the family. In the absence of her father or brother it was the complainant who was most likely to accompany her at that time and place. This, therefore was an additional reason available to believe the presence of the complainant with the deceased at the time and place of occurrence. The eye-witnesses produced by the prosecution have, thus, inspired our confidence and we have found them to be worthy of reliance on a capital charge. 18. The ocular evidence in the present case had also received ample corroboration from many independent sources. As already noticed above, prompt lodging of the F.I.R. and existence of motive on the part of the appellant indeed provided strong corroboration. Recovery of blood-stained chhurri from the custody of the appellant during the investigation was yet another corroborative factor. Muhabat Ali (PW 5) had witnessed the said recovery and had attested the recovery memo, in that regard. It has been argued by the learned counsel for the appellant that Muhabat Ali (PW 5} was related to the complainant and that no Lambardar or Chowkidar wa,-associated with the said recovery so as to meet the requirements of Section 103, Cr.P.C. This argument is not acceptable to us. Muhabat Ali (PW 5) was a shopkeeper belonging to the village from where the recovery was affected, He surely met the standard required by Section 103, Cr.P.C. Respectability in a village is not exclusively reserved for Lambardars and Chowkidars and relationship with the complainant party does not necessarily or per se affect a witness's acceptability! No reason has been established by the defence as to why Muhabat Ah' (PW 5) would falsely depose in this case. The medical evidence produced by the prosecution had also provided sufficient support to the ocular evidence. The time of occurrence, the weapon used and the locale of injuries mentioned by the eye-witnesses were all confirmed by the medical evidence. The learned counsel for the appellant has argued that the deceased had suffered more injuries than what was stated by the eye-witnesses and that brought out a contradiction between the ocular and the medical evidence. We have not been impressed by this argument. The F.I.R. had mentioned repeated blows having been given to the deceased by the appellant. Some variation made by the eye-witnesses at the trial regarding the exact number of injuries caused to the deceased would not have the effect of destroying their credibility. After all a sound thrashing or a gruesome murder is hardly a statistical or fiscal proposition wherein audit and account is to be maintained for each and every blow given! Thus, we have found no good reason to hold that the medical evidence did not provide full support to the ocular evidence. 19. As regards the defence version put forth by the appellant in his statement recorded under Section 342, Cr.P.C. suffice to observe that the same had failed to travel beyond a verbal assertion. Apart from the Nikahnama (Exh-DB) there was no other proof available to support the assertion of a Nikah between the deceased and the appellant. The effect and value of that Nikahnama had been destroyed by the defence's own documents produced as Exh-DC & Exh-DD which showed that the deceased herself did not own that Nikahnama till her death. The appellant had failed to make a statement on oath under Section 340(2), Cr.P.C. in support of his stand. He had also failed to produce the Nikah-khwan or any witness of the said Nikahnama so as to independently establish the factum f that Nikah. Apart from that the appellant's allegation that the complainant was himself interest in getting the deceased murdered so that he could usurp her property was based on nothing but conjectures or bald insinuations which have no place in our criminal justice system. We have, thus, felt no hesitation in outrightiy rejecting the defence version in this case. 20. For the reasons mentioned above we are convinced that the prosecution had succeeded in proving the guilt of the appellant beyond reasonable doubt and, therefore, we are minded to uphold the appellant's conviction recorded by the learned trial Court. 29. We have also given our anxious consideration to the question of sentence to be passed against the appellant for the offence committed by him. It has already been found by us in the earlier part of this judgment that the motive set up by the prosecution stood fully established through the best evidence available. Thus, the learned counsel for the appellant is not justified in claiming reduction of sentence of the appellant on the ground of failure of the prosecution to establish the motive set up by it. We have looked far and wide for any mitigating circumstance in this case qua the sentence to be passed against the appellant but have found none. The appellant had brutally and mercilessly butchered an innocent young girl by executing a premeditated design in that regard. The normal wages of murder is death and in the peculiar circumstances of this case the appellant deserves no less. 22. For the foregoing reasons the appellant's conviction under Section 302(b), P.P.C. is upheld. The sentence of death passed against him and the order regarding payment of compensation by him are also maintained. However, he shall suffer six months' S.I. in case of default in payment of compensation instead of six months' R.I. ordered by the learned trial Court. 23. For what has been held above Criminal Appeal No. 336 of 1995 is hereby dismissed and the appellant's conviction and sentence are upheld except to the extent of the slight modification mentioned above. 24. As the sentence of death passed by the learned trial Court against Abdul Rashid alias Teddi appellant has been confirmed by us, therefore, Murder Reference No. 37 of 1996 is hereby answered in the affirmative. (MYFK) Appeal dismissed

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1310 (DB) [ Multan Bench] Present: mian MUHAMMAD NAJAM-UZ-ZAMAN AND asif saeed khan khosa, JJ. NISAR MASIH and 2 others-Appellants versus STATE-Respondent Crl. Appeal No. 359 of 1996 and M.R. NO. 70/97, heard on 5.4.1999. Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302 (b)/324/34-Murder~Offence of-Conviction for~Appeal against- It was a day light occurrence and FIR had been lodged with sufficient promptitude with all necessary details-Eye witnesses were not only closely related to deceased but also to appellants-All said witnesses had stamp of serious injuries on their persons so as to vouch safe their presence at spot during occurrence—They had made consistent statements and no contradiction between their statements has been pointed out-Motive of a dispute between parties over an Ihata is admitted by appellants-Blood stained weapons of offence had been recovered from appellants-Medical evidence provided full support to ocular account-Onus to prove plea of self defence had not been sufficiently discharged by appellant-Appellants were rightly convicted- Appeal dismissed. [Pp. 1314 to 1317] A to G Sahibzada Farooq Mi, Advocate for Appellants. Mehr Muhammad Saleem Akhtar, Advocate for State. Syed Sardar Shah Bokhari, Advocate for Complainant. Date of hearing: 5.4.1999. judgment Asif Saeed Khan Khosa, J.-Nisar Masih appellant was convicted by the learned Additional Sessions Judge, Chichawatni vide judgment dated 13.11.1996 for an offence under Section 302(b), P.P.C. and was sentenced to Death and to pay a sum of Rs. 50,000/- by way of compensation under Section 544-A, Cr.P.C. to the heirs of Sharif Masih or in default of payment thereof to undergo R.I. for one year. Through the same judgment Nisar Masih appellant's brothers Niamat Masih and Sansar Masih appellants were also convicted for an offence under Section 302/34, P.P.C. and were sentenced to imprisonment for life each and to pay a sum of Rs. 20,000/- each by way of compensation under Section 544-A, Cr.P.C. to the heirs of Sharif Masih or in default of payment thereof to undergo R.I. for six months each. All three of them were also convicted on three counts of an offence under Sections 324/34, P.P.C. and were sentenced to R.I. for seven years each on each count and to pay a fine of Rs. 10,000/- each on each count or in default of payment thereof to undergo further R.I. for six months each on each count. All the sentences of imprisonment were ordered to run concurrently and the benefit under Section 382-B, Cr.P.C. was extended to all the appellants. All the three convicts have challenged their convictions and sentences before this Court through Criminal Appeal No. 359 of 1996. Ayub Masih complainant and the other two injured persons in this case have also filed Criminal Revision No. 170 of 1996 before this Court seeking enhancement of sentences of Niamat Masih and Sansar Masih and also an order regarding payment of compensation by all the convicts on the three counts under Section 324/34, P.P.C. We have heard the convicts' appeal and the complainant and others' revision petition alongwith Murder Reference No. 70 of 1997 seeking confirmation of the sentence of Death passed against Nisar Masih. We propose to decide all these matters together through the present consolidated judgment. 2. The prosecution story narrated in the F.I.R. was that Ayub Masih complainant was a resident of Chak No. 8/11-L, situated within the area of Police Station Ghaziabad, District Sahiwal. There was an outstanding dispute between the complainant's stepfather Albert John and Parem Masih, father of the three appellants, over an Ihata. At about 9.00 A.M. on 17.12.1995 Sharif deceased, Albert John, Amrat Masih and the complainant were sitting with Niamat, Sansar and Nisar Masih appellants in the house of the complainant and were talking about the said Ihata. During those parleys Niamat Masih, etc. asked the complainant party to go with them so that their share of the Ihata could be given to them after partitioning of the same. Upon that the complainant, Sharif deceased and Albert John proceeded towards the said Ihata with the appellants. When they reached in front of that Ihata all the three appellants hurriedly went inside their own house and emerged therefrom armed with various weapons. Niamat Masih and Sansar Masih appellants were armed with a dagger each and Nisar Masih appellant was carrying a knife. Immediately upon their emergence from their house the appellants launched an assault upon the complainant party. Niamat Masih appellant gave a dagger blow to Sharif deceased which landed at his right upper arm. Sansar Masih appellant gave a dagger blow to Sharif deceased which hit him below the back of his left shoulder. Niamat Masih appellant then gave two injuries to Albert Johan with his dagger on the latter's front and left side of chest. Nisar Masih appellant gave a knife blow to the complainant at his back. Thereafter Sansar Masih appellant caused two injuries on the complainant's left hand. Niamat Masih appellant then gave four dagger blows to Amrat Masih which landed at his left arm, back and head. Nisar Masih appellant then gave a knife blow to Sharif deceased which landed at his chest. Sansar Masih appellant gave a dagger blow to the complainant causing in injury below the complainant's right eye. Sansar Masih appellant then caused two injuries on Albert John's left elbow. Nisar Masih appellant thereafter gave a knife blow to Sharif deceased which landed a little above his left flank. Upon receipt of that injury Sharif deceased ran towards the North of the place of occurrence but fell down after covering a short distance. The hue and cry raised by the complainant party attracted Shafqat and Afzal PWs to the spot who also witnessed the occurrence and separated the parties. Thereafter the appellants left the place of occurrence and went towards their own house. The complainant, Shafqat and Afzal PWs took Sharif, Amrat and Albert John to the local hospital on a tonga . Sharif succumbed to his injuries on the way. The complainant, Amrat and Albert John were medically treated at the hospital. The motive set up in the F.I.R. was that Albert John used to demand his share of the joint Ihata but Niamat Masih and the other appellants were seriously aggrieved of that. According to the F.I.R. it was on account of that grievance that the appellants had committed the murder of Sharif and had caused injuries to the complainant, Amrat and Albert John PWs. 3. Leaving the deadbody of Sharif in the care of Shafqat and Afzal PWs the complainant proceeded to report the matter to the local police. He went to Police Station Ghaziabad, District Sahiwal and lodged F.I.R. No. 268 which was recorded by Muhammad Aslam, SI/SHO (PW 13) at 11.55 A.M. on the same day for offences under Section 302/324/337-A(ii)/337-F(ii)/337- A(i)/34, P.P.C. 4. After recording the statement of the complainant Muhammad Aslam, SI/SHO (PW 13) took up the investigation of this case, proceeded to the hospital, prepared injury statement and inquest report qua the deadbody of Sharif deceased and sent the deadbody to mortuary for autopsy. Then he proceeded to the place of occurrence, prepared a brought sit-plan thereof, took into possession blood-stained earth therefrom and recorded the statements of witnesses. 5. Dr. Zamir Ahmad (PW 1) medically examined Albert Joh n PW at 10.00 A.M. On 17.12.1995 and found 4 injuries on his person caused by a sharp-edged weapon within a duration of 6 hours. The same doctor also medically examined Ayub Masih complainant on the same day and found 4 injuries on his person caused by a sharp-edged weapon within a duration of 6 hours. The said doctor had also medically examined Amrat Masih PW on the same day and had found 4 injuries on his person caused by a sharpedged weapon within a duration of 6 hours. On the same day the same doctor also conducted post-mortem examination of the deadbody of Sharif Masih at 2.00 P.M. Masih at 2.00 P.M. He had found 4 injuries on the deadbody which were all ante-mortem and caused by a sharp-edged weapon. The cause of death was injury to vital organ, i.e. heart leading to syncop by injury No. 2 which was sufficient to cause death in the ordinary course of nature. In the opinion of the doctor the death occurred immediately after receipt of injuries and the post-mortem examination was conducted within 12 hours of the death. 6. After the post-mortem examination of the deadbody Muhammad Aslam, SI/SHO (PW 13), the Investigating Officer, secured the last-worn clothes of the deceased. He then got a formal site-plan o the place of occurrence piepared from a draftsman. Subsequently he arrested all the appellants and recovered blood-stained knife and daggers from their respective custody. Thereafter he completed the other formalities, finalized his investigation and submitted a Challan in respect of this case. 7. At the commencement of the trial the learned trial Court framed a Charge with one head under Section 302/34 and three heads under Section 324/34, P.P.C. against the appellants to which the pleaded not guilty and claimed a trial. 8. During the trial the pros ecution produced as many as 13 witnesses in support of its case against the appellants. Ayub Masih complainant (PW 10), Albert Masih (PW 11) and Ararat Masih (PW 12) furnished the ocular account of the incident and also stated about the motive. Dr. Zamir Ahmad (PW 1) provided the medical evidence. Yousuf Masih (PW 9) deposed about recoveries of weapons of offence affected from various appellants. Muhammad Aslam, Sl/SHO (PW 13) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. 9. In their statements recorded under S ection 342, Cr.P.C. all the appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, admitted existence of a dispute between them and the complainant party over an Ihata. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Nisar Masih appellant had stated as follows: "It is a false case. In fact on the day of occurrence I was present in the Ihata which was under dispute with the complainant party. When at about 9.00 A.M. Ararat Masih, Ayub Masih, Albert Masih PWs and Sharif Masih deceased duly armed with hatchet and dangs entered into the said Ihata and tried to take over the possession of the same forcibly by inflicting injuries to me and I in my private right of self defence of my person and property caused injuries to Sharif Masih deceased only. Co-accused Sansar Masih and Niamat Masih were not present at the post at that time. The injuries on the persons of Amrat Masih, Ayub Masih and Albert Masih were not caused during the occurrence. Rather those are self suffered and the complainant party twisted the mode of occurrence with the connivance of the police and involved myself and my co-accused under the false charge in this case. The PWs have deposed falsely due to their relationship with the deceased." The other two appellants had also made statements on the same lines. All the appellants opted not to make any statement on oath under Section 340(2), CrJP.C. However, Nisar Masih appellant produced Dr. Salamat Ali Chaudhry in his defence as DW1 who had statedly medically examined Nisar Masih appellant at 2.30 P.M. on 17.12.1995 and had found 9 injuries on his person caused within a duration of 6/8 hours. Injuries Nos. 7 & 9 had been caused with a sharp-edged weapon whereas the remaining injuries had been caused by a blunt weapon. 10. At the conclusion of the trial the learned Additional Sessions Judge, Chichawatni convicted and sentenced all the appellants as noticed and detailed above. Hence, The present appeal, revision petition and the connected Murder Reference before this Court. 11. We have heard the learned counsel for the appellants and the learned counsel for the State and the complainant and have also gone through the record of this case with their assistance. 12. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. He has further argued that Nisar Masih appellant had admitted his involvement and participation in the occurrence in question and that his version of the incident inspired confidence, especially due to the fact that the injuries sustained by him during the occurrence had been suppressed by the prosecution and the same had been duly proved by DW 1. According to the learned counsel for the appellants Nisar Masih appellant's plea based on his exercise of right of private defence of person and property merits acceptance and the other two appellants ought to be acquitted as having been falsely implicated in this case on their being brothers of Nisar Masih appellant. In the alternative he has argued that the motive set up by the prosecution had not been proved and also that it was a case of a sudden flare-up without premeditation and, therefore, in the peculiar circumstances f this case Nisar Masih appellant did not deserve the sentence of death passed against him by the learned trial Court As against that the learned counsel for the State as well as the complainant have argued that the guilt of the appellants had been proved by the prosecution to the hilt and that they had acted cruelly and brutally and, thus, did not deserve any concession in the matter of sentence. 13. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had succeeded in proving its case against the appellants beyond reasonable doubt. It was a daylight occurrence and the F.I.R, had been lodged with sufficient promptitude with all the necessary details. All the three eye­ witnesses produced by the prosecution were not only closely related to the deceased but also to the appellants. All the said eye-witnesses had the stamp of serious injuries on their persons so as to vouchsafe their presence at the spot during the occurrence. In fact all the appellants had, in their statements recorded under Section 342, Cr.P.C., admitted the presence of all the three eye-witnesses at the place of occurrence during the incident in question. Nisar Masih appellant had admitted his own involvement and participation in the occurrence. There was no serious reason available for the said eye­ witnesses to falsely implicate the other two appellants. Niamat Masih and Sansar Masih appellants are brothers of Nisar Masih appellant and they all lived adjacent to the place of occurrence. Thus, their presence and participation in the incident together was not a claim which could be attributed to exaggeration. While arriving at this conclusion we are fortified by the impression that the number of injuries sustained by the deceased and three injured witnesses could not have been accused by Nisar Masih appellant alone. The eye-witnesses produced by the prosecution had made absolutely consistent statements regarding the main incident and no contradiction between their statements has been pointed out to us. Thus, the said eye-witnesses have inspired our full confidence for placing implicit reliance on their statements. The learned counsel for the appellants really did not have much to argue by way of cirticism of these witnesses. 14. Upon a careful scrutiny of the record we have not felt persuaded by the argument of the learned counsel for the appellants that there was no live motive for the appellants to launch an assault on the complainant party. It is true that in the year 1990 Rehmat Masih, the elder of both the parties, had executed a document (Exh-DB) regarding partitioning of the Ihata in question but the said document itself stipulated that the same shall become effective upon the death of Rehmat Masih. The complainant had stated before the learned trial Court that Rehmat Masih was still alive and that statement of the complainant was never controverted by anybody. In his statement the complainant had also provided the exact nature of the dispute between the parties regarding the Ihata in question. As a matter of fact the alleged dispute between the parties over that Ihata had been admitted by all the appellants in so many words in their statements recorded under Section 342, Cr.P.C. The occurrence had also taken place near the said Ihata. Therefore, in the absence of any other background of hostility or bitterness between the parties, we have arrived at a confident conclusion that the dispute over the said Ihata was in fact the issue which had provided the necessary motivation to the appellants propelling them into aggression against the complainant party. Thus, this admitted motive provided sufficient corroboration to the ocular account furnished by the eye-witnesses in the present case. 15. Blood-stained knife and daggers had been recovered from the appellants during the investigation of this case and the said recoveries had been proved by Yousuf Masih (PW 9). The Serologist had found the said knife and daggers to be stained with human blood. Yousuf Masih (PW 9) was not seriously cross-examined so as to tarnish his reliability qua the said recoveries affected from the appellants. Therefore, the said recoveries have provided further corroboration to the eye-witness account. 16. The medical evidence brought on the record by the prosecution provided full support to the ocular account. The time of occurrence, the weapons used and the seats of injuries stated by the eye-witnesses were all confirmed by the medical evidence. 17. As already noticed above the F.I.R. in this case had been lodged with reasonable promptness and the same contained all the necessary details of the incident in question. No serious challenge was thrown by the defence to the stated time and place of lodging the F.I.R. We have, thus, found the same to be yet another circumstance providing corroboration to the ocular account. 18. Adverting now to the version of the incident put forth by the defence, we have faced no reluctance in rejecting the same. The onus to prove the plea of exercise of right of private defence had not been sufficiently discharged by Nisar Masih appellant. He had failed to make nay statement on oath, under Section 340(2), Cr.P.C. No eye-witness was produced in support of the defence version of the incident. The only witness produced in defence was Dr. Saiarnat A!i Chaudhry (DW 1) who had statedly medically examined Misar Miush appellant on the day of occurrence. The evidence provided by this witness nas tilled to inspire our confidence. DW 1 had examined Nfisar Masih arp'-'^ant us a private case; he had failed to inform the police about the ir.jm-u-s allegedly sustained by the appellant as a result of vicleiKt"; thi R'.u'&i Health Centre where he had examined the appellant did not fall in the area to which the appellant belonged; no explanation was available .3 to why the appellant had not gone to the Rural Health Centre available in his own area; and the injuries detailed by DW 1 in the medicolegal certiSicaie (Exii-DE) were such that, if actually suffered by Nisar Masih appellant, he could not use his right arm to inflict so many injuries in retaliation to four persons of the complainant party. Thus, we have entertained serious doubts about the genuineness of the medico-legal certificate issued by DW1 in respect of Nisar Masih appellant. We have also noticed that the version of the incident put forth by the defence did not explain the injuries sustained by the three eye-witnesses produced by the prosecution. The injuries sustained by the said witnesses were duly proved by the prosecution and the same could not be termed as self-suffered. Apart from all that the accused party neither took the plea of self defence before the investigating officer nor any executive or judicial authority was ever moved in that regard. For all these reasons we have found that the plea of defence and its version did not call for any serious credence. 19. For the reasons mentioned above we are convinced that the prosecution had succeeded in proving the guilty of the appellants beyond reasonable doubt and, therefore, we are minded to uphold the appellants' convictions recorded by the learned trial Court. 20. We have also given our anxious consideration to the question of sentences to be passed against the appellants for the offences committed by them. In this context we are mindful of the fact that it was the prosecution's own case that shortly before the occurrence the parties were peacefully sitting together with no apparent aggressive designs. But, at the same time, the act of the appellants in going inside their own house, bringing out knife and daggers and launching an all-out assault on the complainant party surely demonstrated the fact that they had formed an intention to kill. The weapons used and the seats of injuries chosen by the appellants left no doubt as to what they had intended. There is no gainsaying that an intention to kill can be formed even at the spur of a moment and the same is decipherable from the circumstances of a case. The circumstances of this case were such that we have entertained no doubt as to formation of an intention to kill on the part of the appellants and their sharing of common intention in that regard. It was not just Nisar Masih appellant who had caused the fatal and other injuries to Sharif deceased but the other two appellants had also done their bit by giving dagger blows to the deceased besides injuring the three eye-witnesses on their vital, parts. Thus, all the three appellants were not only rightly convicted for offences under Section 302/34 and 324/34, P.P.C. but were also liable to he sentenced accordingly. There was no mitigating circumstance warranting lesser sentence for Nisar Masih appellant. He had caused the fatal injury to Sharif deceased. He was, thus, rightly awarded the sentence of death. As the other two appellants had not been attributed the fatal injury to the deceased,, therefore, the learned trial Court had, in exercise of its discretion, decided not to award the sentence of death against them. The exercise of discretion by the learned trial Court in that regard was not averse to the settled principles of safe administration of criminal justice and, therefore, the same does not call for interference by this Court. 21. While dwelling on the question of sentences passed against the appellants we have noticed that the learned trial Court had failed to award compensation to the injured victims on all the three counts of Sections 324/34, P.P.C. We have further noticed that the sentences ordered by the learned trial Court in default of payment of compensation are also not in accord with the relevant law. 22. For the foregoing reasons the appellants' convictions under Sections 302/34 & 324/34, P.P.C, are upheld. The sentence of death passed against Nisar Masih appellant under Section 302(b), P.P.C. and the order of payment of compensation by him are maintained. He shall suffer six months' S.I. in case of default in payment of compensation. The sentences of imprisonment for life passed against Niamat Masih and Sansar Masih appellants each under Sections 302/34, P.P.C, and the order of payment of compensation by them are also maintained. They shall suffer six months' S.I. each in case of default by them in payment of compensation. The sentences of imprisonment and fine as well as those for default of payment of fine passed against all the appellants on three counts of Sections 324/34, P.P.C. are also maintained. However, it is ordered that half of the fine, if realized, shall be paid to the respective victims of assault by way of compensation. As already ordered by the learned trial Court, all the sentences of imprisonment passed against the appellants shall run concurrently and the appellants shall also be entitled to the benefit under Section 382-B, Cr.P.C. 23. For what has been held above Criminal Appeal No. 359 of 1996 is hereby dismissed and the appellants' convictions and sentences are upheld except to the extent of the slight modification mentioned above. Likewise, Criminal Revision No. 170 of 1996 filed by the complainant and the other injured victims stands dismissed to the extent of enhancement of sentences of Niamat Masih and Sansar Masih convicts but the same is partly of allowed to the extent of awarding of compensation to the injured victims in the terms detailed above. 24. As the sentence of death passed by the learned trial Court against Nisar Masih appellant has been confirmed by us, therefore, Murder Reference No. 70 of 1997 is hereby answered in the affirmative. (MYFK) Appeal dismissed.

PLJ 1099 Cr PLJ 1099 Cr.C. ( Lahore ) 1318 (DB) [ Multan Bench] Present: MUHAMMAD NAWAZ ABBASI AND AHMED NAWAZ MALIK, J J. MUHAMMAD JAFFER etc.-Appellants versus STATE-Respondent Crl. Appeal No. 17 of 1997 (ATSC) M.R. No. 7 of 1997, heard on 20.11.1998. Pakistan Penal Code, 1860 (XLV of 1860)- —S. 302/324/109/34~Double murder-Offence of--Conviction for-Appeal against-Material facts of case relating to time and place of occurrence, use of weapon and presence of witnesses at spot are admitted-Annoyance of appellant over conduct of deceased of teasing girls in back ground of occurrence is common reason behind fateful incident-Injured witnesses having no back-ground of enmity or personal grudge against appellants-­ Presence of these witnesses is not chullengable-Motive and medical evidence provide a strong source of independent corroboration— Participation of all three appellants is proved beyond doubt-Any how, accused Y is attributed simple injuries to PWs-His conviction altered to one year R.I.~Considering background under which occurrence took lace, death sentence of remaining two accused was altered to life imprisonment-Orders accordingly. [Pp. 1324 & 1325] A to 6 Malik Muhammad Rafiq Rajwana, Advocate for Appellants. Sh. Muhammad Raheem, Advocate for defence counsel on State expenses. Date of hearing: 20.11.1998. judgment Muhammad Nawaz Abbasi, J.--This single judgment proposes to dispose of Murder Reference No. 7 of 1997 (ATSC) sent by the learned Judge, Special Court, Anti-Terrorism, Dera Ghazi Khan Division and Criminal Appeals Nos. 17, 18 and 19 (through jail) of 1997 (ATSC) filed by Muhammad Jaffar son of Sher Khan, yasir Arfat son of Muhammad Inayat and Allah Ditta son of Ahmad Yar, respectively. 2. The above named appellants alongwith their co-accused, namely, Amjad Abbas son of Malik Rab Nawaz, having faced trial for the charge under Section 302/324/109/34 P.P.C. before the Special Court at Dera Ghazi Khan established under Anti-Terrorism Act, 1997 for committing murder of Akbar Hameed and Aadil Hameed son of Abdul Hameed complainant were convicted by the said Court vide judgment dated 5.11.1997 and sentenced in the following mannen- (i) Allah Ditta appellant: Under Section 302/34 P?C sentenced to death on two counts with a fine of Rs. 5,00,000/- (Rupees five lacs) or in default thereof to undergo R.I. for five years. An amount of Rs. 5,00,000/- (Rupees five lacs) was ordered to be paid by him as compensation to the legal heirs of two deceased persons, namely, Akbar Hameed and Aadil Hameed under Section 544-A Cr.P.C. in equal share i.e. one half to the legal heirs of each deceased. Under Section 324/34 PPG, sentenced to ten years' R.I. for causing injury to Aain-ul-Haq PW with a fine of Rs. 50,000/- or in default thereof to further under R.I. for two years. (ii) Muhammad Jaffar appellant: Under Section 302/34 PPC sentenced to Death on two counts with a fine of Rs. 5,00,000/- (Rupees five lacs) or in default thereof to undergo R.I. for five years' R.I. He was also directed to pay a sum of Rs. 5,00,000/- (Rupees five lacs) as compensation under Section 544-A Cr.P.C. to the legal heirs of the .deceased, namely, Akbar Hameed and Aadil Hameed, which would be equally divided and one-half will go to the legal heirs of each deceased. In case of non-payment of the amount of compensation, the appellants will suffer imprisonment for six months each and the amount in question will be recoverable as arrears of land revenue. (iii) Yasir Arfat appellant: Under Section 324/34 PPC sentenced to ten years' R.I. for causing injury to Muhammad Akhtar P.W. with a fine of Rs. 50,000/- or in default thereof to further undergo R.I. for two years. Amjad Abbas, co-accused of the appellants has been acquitted of all the charges. 3. The occurrence in the present case took place on 1.2.1997 at Busstop of Fatehpur Within the area of Police Station Chowk Azam at 11.30 a.m. The report of which was lodged by Abdul Hameed, father of the deceased persons thought FIR (Ex.PM) on the same day at 12.00 noon. The precise facts narrated therein are as follows:- On the fateful day at about 11.30 a.m. Abdul Hameed alongwnb his sons, namely, Akbar Hameed and Aadil Hameed were waiting for the bus at Bus-Stand Fatehpur in Chowk Azam whereas Aain-ul-Haq and Muhammad Akhtar PWs were busy in purchasing the house-hold articles from a nearby shop, when the appellants, namely, Allah Ditta, Muhammad Jaffar and Yasir Arfat appearing at the scone armed with Chhuries and raising Lalkara that Aadil Hameed would not be spared on that day, attacked on him with their respective weapons. Allah Ditta inflicted Chhuri blows on the chest and left shoulder of Aadil Hameed and on the intervention of Akbar Hameed to save his brother, he was caused Chhuri blows by Muhammad Jatfar appellant on different parts of the body. Aain-ul- Haq and Muhammad Akhtar PWs when made an attempt to rescue the deceased, they were attacked by Allah Ditta and Yasir Arfat appellants and were caused injuries. Muhammad Akhtar and Aainul-Haq sustained sin;ple injuries at the hands of Yasir Arfat and Allah Ditta respectively. Aadil Hameed and Akbar Hameed succumbed to the injuries at the spot, whereas Aain-ul-Haq and Muhammad Akhtar were removed to the Hospital for medical aid and treatment. The motive behind the occurrence as disclosed in the F.I.R. was that a week earlier a quarrel took place between Allah Ditta and Aadil Hameed on account of teasing of Aadi! Hameed n Mst. Bakhtawar, sister of Allah Ditta. 4. Riaz Hussain, S.I. (P.W. 6) reach.'ug at the place of occurrence prepared the injury statements (Exh.PJ & PC) of Aadil Hameed and Akbar Hameed deceased and the inquest reports (Fxh.PH & PB) respectively. During the spot inspection, he collected blood-stained earth from two places through separate memos. and preparing sealed parcels thereof, sent the same to the Chemical Examiner. He arrested Allah Ditta and Muhammad Jaffar accused on 21.2.1997 and got recovered blood-stained Chhuries, the weapons of offence, form them on 25.2.1997 in presence of Abdul Hameed complainant. Yasir Arfat appellant was arrested after refusal of bail before arrest, however, no recovery was effected from him. The Sub-Inspector during the investigation found Yasir Arfat innocent and placed him in Column No. 2 of the final report. 5. Dr. Fateh Muhammad, SMO, RHC, Chowk Azam (P.W. 5) medically examined Aain-ul-Haq and Muhammad Akhtar injured P.Ws, who sustained the following injuries on their person during the occurrence:-- Aain-ul-Haq: (1) An incised wound on the medical side of low er part of left arm, measuring 1 \ cm x 1 cm muscle deep, corresponding cut hole present in shirt. (2) An incised wound in the abdomen going deep into abdomen, above umblicus on left side. Injury was kept under observation. Corresponding cut hole present in shirt and Bunyan and Sweater measuring 2^x1 cm. Muhammad Akhtar: (1) An incised wound on right thigh at its upper part measuring 2 cm x ^ cm x muscle deep on back side. 6. Dr. Abdul Majeed, M.O., DHQ Hospital, Layyah (P.W. 1) conducted the autopsy of the deadbodies of Akbar Hameed and Aadil Hameed deceased and found the following injuries on their person:-- Akbar Hameed: (1) An incised wound 2^x^cmxlcmx going deep on the left side of chest cavity at the level of left nipple and 2 cm medial to it. (2) An L (shaped) incised wound 2^ cm x \ cm x 2 cm x going deep on the right side near to vertebrae at the level of iliace crest. A lacerated wound 1 cm x \ cm x muscle deep on the front and the lower part of right knee joint. Aadil Hameed: (1) An incised wound 3 cm \ cm x going deep on the left side of the chest. 4^ cm above the left nipple. Wound was going deep into the chest cavity. (2) An incised wound 1 \ cm x 1 cm x muscle deep on he middle of left scapular blad. (3) A laceration 2 cm x 2 cm on the front of the knee joint. In the opinion of the doctor, the death was the result of Injury No. 1, which being grievous in nature was sufficient to cause death in the ordinary course of nature and was proved fatal to the life of Akbar Hameed deceased. Similarly, Injury No. 1 having caused damage to the heart resulted in the death of Aadil Hameed. The time duration given by the doctor was two to five hours between the death and the Post-mortem Examination. 7. The eye-witness account has been furnished by Abdul Hameed, father of the two deceased, and the complainant in addition to Aain-ul-Haq and Muhammad Akhtar, the injured witnesses. They repeating the story of the F.I.R. in their statements at the trial affirmed the role of causing injuries by the ppellants to the two deceased and the witnesses as narrated by the complainant in the First Information Report. The presence of two eye­ witnesses namely Aain-ul-Haq and Muhammad Akhtar who sustained injuries during the occurrence has not been questioned by the defence, but the presence of the omplainant at the spot, who is a resident of about five miles away from the place of occurrence, was seriously challenged. Allah Ditta appellant upon his arrest after twenty-five days of the occurrence led to the recoveiy of blood-stained Chhuri P-9 from his house in presence of Muhammad Aslam and Abdul Hamid complainant which was taken into possession through recovery memo. Ex.PQ. Similarly, Muhammad Jaffar appellant led to the recovery of Chhuri P-10 from his house on the same day in the presence of same witnesses. The above said weapons of offence V recovered from the accused were found stained with human blood by the Serologist. The reports of the Chemical Examiner and that of Serologist are Ex.PS, Ex.PT and Ex.PU on the record. 8. Allah Ditta appellant in his statement under Section 340(2) Cr.P.C. on oath in the Witness-box admitted the occurrence with the version that he alongwith his sister namely Mst. Bakhtawar was present at the busstop of Chowk Azam when Aadil Hameed and Akbar Hameed made an attempt to abduct bis sister and as a result thereof during the quarrel between him and the deceased, the picking up a Chhuri from the nearby vegetable shop caused injuries to both the deceased. He stated that after the occurrence, he went to the Hospital for medical aid when Aain-ul-Haq and Muhammad Akhtar PWs while making an attempt to apprehend him received injuries at his hand in the Hospital. He excluding the presence and participation of his co-accused ccepted the sole responsibility of committing the crime. The remaining two appellants namely Muhammad Jaffar and Yasir Arfat have denied their presence at the spot and pleaded false implication. 9. The trial Court rejecting the defence version while placing reliance upon the ocular account of the two injured witnesses and the complainant supported by the corroborative evidence of motive and medical alongwith the recovery of weapon of offence/blood-stained Chhuries allegedly recovered from Allah Ditta and Muhammad Jaffar, accused, found the appellant guilty of the charge of murder. 10. Learned counsel appearing on behalf of Muhammad Jaffar appellant without challenging the evidence of the eye-witnesses and their credibility, argued that Muhammad Jaffar, a student of tenth class was less than 15 years of age at the time of occurrence and that having no concern with the matter or related to the parties had no motive against the deceased and that he was made an accused in the cese because of his friendship with Allah Ditta. The learned counsel pointing out the minor discrepancies and the contradictions in the statements of the witnesses argued that the case was of doubtful character. The main thrust of the learned counsel was that the alleged motive being attributed to Allah Ditta, and all the injuries on the persons of the deceased of similar nature, the possibility of causing the same by one person being not ruled out and the addition of Muhammad Jaffar made the prosecution story cloudy. He lastly commenting upon the quantum of sentence mphasized that according to the prosecution story, the occurrence was the result of dispute between Abdul Hameed deceased and Allah Ditta appellant over the quarrel for teasing relative girls of Allah Ditta by the deceased and, therefore, Muhammad Jaffar being a boy of tender age having no direct motive was wrongly given the maximum penalty. 11. Sh. Muhammad Raheem, Advocate, learned defence counsel appointed on State expenses in Criminal Appeal No. 19 of 1997 filed by Allah Ditta appellant through Jail, strongly argued that the defence plea taken by the appellant while putting in juxta position with the prosecution version with the back-ground of earlier incident between Aadil Hameed deceased and Allah Ditta appellant on the teasing of his sister by the deceased as narrated in the F.I.R., it would be a case of grave and sudden provocation falling under the exception being covered by Section 302(c) PPG and that the sentence for Qatl-e-Amd under Section 302(b) PPC was not legal. He argued that the statement of Allah Ditta appellant under Section 340(2) Cr.P.C. having the status of evidence negated the prosecution story and the same receiving full weight should have been accepted in toto. 12. Malik Muhammad Rafiq Rajwana, Advocate, learned counsel appearing on behalf of Yasir Arfat appellant contended that during the investigation, this appellant was found innocent. Riaz Hussain, Sub Inspector PW-6, who conducted the investigation of the case, deposed that Dr. Muhammad Yaqoob PW, while accompanying Abdul Hameed complainant at the time of lodging the report disclosed that Yasir Arfat was not present at the spot and that the presence of said Muhammad Yaqoob was admitted by the complainant with him at the time of lodging the report at the Police Station. The learned counsel challenging the conviction and sentence of the appellant alternatively argued that in any case the appellant was not a party to the transaction of murder as he allegedly caused a simple injury to Muhammad Akhtar PW in the occurrence. His argument was that had the appellant joined the common intention to kill the deceased, he being armed with Chhuri could join hands with his co-accused Muhammad Jaffar and Allah Ditta in causing injuries to the deceased but the same having not done by him the allegation of sharing the common intention to commit the murder are negated. 13. We with the help of the learned counsel for the parties have perused the record and minutely examined the evidence as well as heard them at length.The material facts of the case relating to the time and the place of occurrence, the use of weapon and the presence of witnesses at thespot are admitted through the statement of Allah Ditta appellant containing a counter version to the prosecution case with the exclusion of participation of Muhammad Jaffar and Yasir Arfat appellant Looking at the two versions of the case together, the only controversy required to be resolved is confined to the extent, whether the occurrence was not pre-meditated and it took place suddenly and Allah Ditta alone was responsible for causing the injuries to the two deceased and the injured witnesses. The annoyance of the appellant over the conduct of the deceased of teasing the girls in the back- „ ground of the occurrence is the common reason behind the fateful incident. The quarrel relating to the incident of teasing the sister of Allah Ditta by Aadil Hameed took place a week before the occurrence and the appellant having developed enmity because revengeful and consequently attacked on the deceased on the fateful day with the help of his friends. Allah Ditta appellant through introduction of a different version of making an attempt of abduction of his sister by the deceased tried to make it a case of grave and sudden provocation with-holding the natural evidence of his sister. Consequently, the defence version of abduction of girl and grave and sudden provocation being not supported by any evidence direct or circumstantial, has no plausibility in it to be accepted, while putting the two stories in juxta­position, the story given by the prosecution not suggesting any possibility of the taking place of the occurrence in the manner as stated by Allah Ditta, is found near to truth and natural. 14. Proceeding further, we noticed that the injured witnesses having no back-ground of enmity or personal grudge or malice against the appellants, telling truth described the role of causing injuries played by an individual accused. Aain-ul-Haq PW consistently stated that he sustained injuries at the hands of Allah Ditta and similarly Muhammad Akhtar stated that he was caused injuries by Yasir Arfat. They with no addition or omission assigned the role of causing injuries to Aadil Hameed deceased by Allah Ditta and Akbar Hameed deceased by Muhammad Jaffar as per version of the F.I.R., and fully supported the prosecution. The presence of these injured and independent witnesses at the spot is not challengable and "their evidence being confidence inspiring and truthful was, therefore, sufficient to make basis for the conviction without looking for any other source of corroboration. However, in the present case, the motive and the medical evidence provide a strong source of independent corroboration even with the exclusion of the recovery of blood-stained Chhuries, the recovery of which was being doubted on the ground that the blood could not possibly be traced on these weapons after lapse of twenty-five days of the occurrence. 15. As a result of the above discussion, the prosecution story being convincing, the presence and participation of all the three appellants in the manner suggested therein is proved beyond doubt. 16. Taking the case of the individual accused, we noticed that Yasir Arfat appellant is attributed only simple injuries to Muhammad Akhtar PW and that too after sustaining the injuries by the two deceased at the hands of Allah Ditta and Muhammad Jaffar appellants, therefore, the element of sharing the common intention with his co-accused in committing the murder of Aadil Hameed and Akbar Hameed being missing the doubt arising in this behalf made his case distinguishable to that of his co-accused. Consequently, keeping in view his role of causing simple injury to Muhammad Akhtar PW, we extending him the benefit of doubt, alter his conviction and sentence under Section 324 PPC to Section 337-F (i) PPC and maintaining the fine awarded to him by the trial Court sentence him to rigorous imprisonment for one year and dispose of his appeal in the above terms. 17. The motive is attributed to Allah Ditta, who having felt dishonoured by Aadil Hameed for teasing of his sister picked up a quarrel with him a week ago and being revengeful taking opportunity attacked on the deceased on the fateful day. Muhammad Jaffar appellant being not related to Allah Ditta joined him in the occurrence only due to the friendship nd caused injuries to Akbar H.jr.eed deceased, real brother of AadQ Hameed. Undoubtedly, the occurrence was the result of objectionable conduct of Aadil Hameed deceased of teasing the girls of the family of Allah Ditta, which ordinarily is not tolerated in the village life. Allah Ditta appellant a young person could not digest the same in his family honour and feeling injured and insulted could not compromise with the matter. We, therefore, taking into onsideration the reason in the back-ground and the circumstances under which the occurrence took place, do not approve it a case of capital punishment and are not in favour of confirmation of death sentence. We, therefore, altering the sentence of death awarded to the two appellants on two counts into life imprisonment on individual count, answered the murder reference in the negative. We, therefore, modifying sentence of Allah Ditta appellant to life imprisonment for causing the murder of Aadil Hameed and Muhammad Jaffar appellant to life imprisonment for causing the murder Akbar Hameed deceased on additional count, dismiss their appeals. However, the sentence of fine imposed by the trial Court and compensation awarded to the legal heirs of the deceased is maintainable. (MYFK) Orders accordingly.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1326 (DB) Present: muhammad nawaz abbasi and ahmed nawaz malik, JJ. MUHAMMAD YOUSAF-Appellant versus STATE-Respondent Criminal Appeal No. 23 of 1997 (ATSC) and M.R. No. 9 of 1997, heard on 27.1.1998. Pakistan Penal Code, 1860 (XLV of 1860)— —S. 302(b)/392/34--Murder and Robbery-Offence of-Conviction for-- Appeal against-Appellants after snatching key of Motor-Cycle from deceased made an attempt to run away from spot with motor cycle but due to resistance put by deceased, he was fired at by A accused-Offence proved through direct evidence of witnesses who were accompanying deceased-Appellants being stranger to complainant party were not supposed to be involved in a false case through substitution for actual culprits-Charge stands proved against appellants beyond doubt-- l However, accused M was guilty of an offence U/S. 392 PPG only, hence, conviction and sentence to him U/S. 302 PPC was set aside-Any how conviction and sentence U/S. 392 PPC awarded to him was maintained- Orders accordingly. [Pp. 1329 & 1330] A to C Mr. Abdul Aziz Khan Niazi, Advocate for Appellants. A.A.G. for Respondent. Date of hearing: 27.1.1998. judgment Muhammad Nawaz Abbasi, J.-This single judgment will dispose of Criminal Appeal No. 23 of 1997 and Criminal Appeal No. 24 of 1997 filed by Muhammad Yousaf and Anees Ahmad alias Muhammad Umar appellants against their conviction and sentence alongwith Murder Reference No. 9 of 1997 sent by the Special Court established under Anti- Terrorism Act, 1997. 2. The appellants namely Muhammad Yousaf S/o. Suleman, resident of Chistian, District Bahawalnagar, and Anees alias Muhammad Umar S/o. Abdul Ghani, resident of Karachi were tried for the charge under Section 392 PPC read with Section 302/34 PPC by the learned Special Judge, Anti-Terrorism Court No. n, Multan, established under the Anti- Terrorism Act, 1997, for committing the murder of Azhar Ehsan deceased during the course of committing the offence of robbery on 24.9.1997 on a public road in the area of Police Station Kotwali, Multan. 3. The learned Special Court at the conclusion of the trial having found the appellants guilty of the charge convicted and sentenced them to Death under Section 302/34 PPC and rigorous imprisonment for ten years with a fine of Rs. 20.000/- each under Section 392 PPC and in default of payment of fine to undergo simple imprisonment for one year each through judgment dated 25.11.1997. The appellants have challenged their conviction and sentence through the above referred criminal appeals. The special Court has sent Murder Reference under Section 25(2) of the Anti-Terrorism Act, 1997, for confirmation of sentence of death awarded to them by the said Court The above said appeals and the Murder Reference are proposed to be disposed of together through this single judgment. 4. The brief facts of the prosecution case as given in the FIR and pleaded at the trial are that on 24.9.1997 at about 8.00 p.m. Azhar Ehsan deceased alongwith Ashfaq Ahmad complainant (PW-2), Saad-ullah Khan (PW-3) and Amar Ibrahim having gone to a fruit shop situated at Chungi No. 8, LMQ, Multan, on the motor-cycles were present outside the fruit shop to take lemons when they were intercepted by the appellants. Anees alias Muhammad Umar appellant snatching the key of the motor-cycle from Azhar Ehsan handed over it to Muhammad Yousaf appellant, who occupying the driver seat was about to move with Muhammad Umar on the rear seat when Ashfaq, Amar Ibrahim and Saad Ullah intervened and simultaneously Azhar Ehsan deceased putting his hand on the handle of the motor-cycle resisted them from moving whereupon Anees alias Muhammad Umar taking out pistol fired at Azhar Ehsan which hit on the right side of his neck. The complainant and the above named eye-witnesses apprehended both the appellants at the spot with pistol. Azhar Ehsan succumbed to the injury at the spot. Saadit Mehdi (PW-9) Inspector/S.H.O., Police Station Old Kotwali, reaching at the spot took into custody the accused alongwith pistol and motor-cycle and also recorded the statement (Ex.PD) of the complainant Ashfaq Ahmad, on the basis of which a case was registered through FIR Ex.PD/1 on the smae day against the appellants. 5. During the spot inspection, the Investigating Officer prepared the injury statement Ex.PB and inquest report Ex.PC of the deceased and despatched the deadbody for Post-mortem Examination. He collected the blood-stained earth from the place of occurrence in a sealed parcel through memo. Ex.PG. A crime empty of 30 bore pistol having recovered from the place of occurrence was taken into possession through Memo. Ex.PH. A. 30- bore pistol with four loaded bullets snatched by Ashfaq Ahmad complainant from Anees alias Muhammad Umar appellant was produced by him before the Investigating Officer at the spot. The weapon of offence with bullets and motor-cycle belonging to the deceased were taken into possession vide Memos. Ex.PE and Ex.PF respectively. 6. The Post-mortem Examination of Azhar Ehsan deceased conducted by Dr. Qazi Abdullah Sabir CMO Civil Hospital, Multan , on 25.9.1997 revealed the following injuries on the dead body:-- (1) A penetrating injury 1 x \ cm on left side of neck in front, 05 cm form supra sternal notch, about 1.5 cm from mid line with inverted margins wound of entry. (2) An injury measuring 02 cm x 01 cm going deep on right of chest in back 8 cm from posterior axillary line and 18 cm from mid line with everted margins wound of exit. The doctor opined that the death occurred immediately upon receipt of the injuries at the spot. The Investigating Officer having completed the investigation challaned the accused to face trial under Section 392 read with Section 302/34 PPC. 7. The prosecution having produced ten witnesses in support of the charge placed reliance on the direct evidence of the ocular account furnished by Ashfaq Ahmad complainant (PW-20, brother of the deceased and Saad Ullah PW-3. The third eye-witness namely Amar Ibrahim, nephew of Saad Ullah was given up. The above named witnesses narrating the facts of the case as incorporated in the F.I.R. deposed that Anees appellant snatching the key of the motor-cycle from Azhar Ehsan deceased handed over the same to Muhammad Yousaf his co-accused. The appellants after occupying their seats on the motor-cycle were about to move, when Azhar Ehsan deceased resisted through putting his hand on the handle of the motor-cycle, whereupon Anees alias Muhammad Umar extending threat fired at him, who sustaining the injuries expired at the spot. The witnesses have also confirmed the arrest of accused and recovery of pistol from Anees at the spot. 8. Muhammad Azhar Head Constable and Mushtaq Ahmad Constable deposed about the receipt of sealed parcels of .30-bore pistol, an empty and blood-stained earth from the Investigating Officer on the day of occurrence and later the delivery of the same to the office of Chemical Examiner, Lahore . 9. The appellants in their statements under Section 342 Cr.P.C. denying the allegations pleaded that the actual culprits namely Saif and Munir being not traceable, they were substituted as accounted through false implication. 10. Learned counsel for the appellants contended (i) that the essential elements constituting an offence of robbery being missing, thecharge under ection 392 PPC was not proved; (ii) that the allegation of robbery being of doubtful character, the charge under Section 302 P.P.C. was not proved beyond doubt. Learned counsel however, without seriously challenging the conviction emphasized that with the exclusion of application of Section 392 PPC, the reason behind the fateful incident being not known the offence would not fall under Section 302(b) will be punishable under Section 302(c) PPC. 11. Learned counsel appearing on behalf of Muhaminad Yousaf appellant taking exception to the above arguments vehemently contended that as per prosecution story, Muhammad Yousaf appellant could not be burdened with the responsibility of murder. He contended that the act of firing at Azhar Ehsan deceased was an individual act of Anees alias Muhammad Umar and Muhammad Yousaf appellant having not shared the common intention to kill, his conviction under Section 302 PPC is not sustainable. 12. Learned Assistant Advocate-General has argued that the taking place of murder of Azhar Ehsan during the course of committing robbery by the appellants being a collective act, both the appellants were equally responsible for the murder of Azhar Ehsan. He argued that the appellants making an attempt to commit robbery, committed murder, and, therefore, they were equally guilty of murder without proving common intention or knowledge and have been rightly convicted and sentenced. 13. We with the help of the learned counsel for the parties examined the record and also heard them at length. This is an established fact that the appellants after snatching the key of the motor-cycle from the deceased made an attempt to run away from the spot with motor-cycle but due to the resistance put by Azhar Ehsan, he was fired at by Anees alias Muhammad Umar appellant. The apprehension of the appellants with .30-bore pistol used by Anees alias Umar appellant in the occurrence by the PWs at the spot and their production with motor-cycle belonging to the deceased to the police at the lace of occurrence is proved through the direct evidence of the witnesses who were accompanying the deceased. The appellants being stranger to the complainant party were not supposed to be involved in a false case through substitution for the actual culprits. The factual analysis of the case and the evidence brought on record by the prosecution in proof of the allegation, the charge stand proved against the appellants beyond doubt with the result that the findings of guilt of the appellants arrived at by the trial Court are unexceptional. 14. The contention of the learned counsel appearing on behalf of Muhammad Yousaf requires consideration. From the facts and circumstances of the case, it is crystal clear that the appellant Muhammad Yousaf was active to the act of snatching the motory-cycle as an associate of Anees alias Muhammad Umar and in making an attempt of running from the spot. Thus, without independent proof of common intention, he being jointly responsible for the committing of robbery was guilty of an offence under Section S32 PPC punishable with imprisonment for life or with rigorous imprisonment of ten years with fine. In the present case, the taking place of murder during the course of robbery an independent act of Anees Ahmad appellant constituted an offence under Section 302 PPC and was not included in Section 392 or 394 PPC, as the case may be, as in the case of dacoity with murder punishable under Section 396 PPC. Thus, giving benefit of the ircumstances under which murder took place suggesting it an individual act of Anees alias Muhammad Umar appellant, we are not in favour of upholding the conviction and sentence of Muhammad Yousaf appellant under Section 392 PPC, The same is accordingly set aside. However, the conviction and sentence of Muhammad Yousaf appellant under Section 392 PPC as awarded to him by the trial Court is maintained and Criminal Appeal No. 23 of 1997 filed by said appellant with the above modification in the conviction and sentence is dismissed. 15. Learned counsel appearing on behalf of Anees alias Muhammad Umar argued that he being young man of 20 years of age is first offender and that he did not fire with the intention to kill Azhar Ehsan but the purpose being to avoid his spot apprehension and escape from the place of occurrence, it was a mitigating circumstance in his favour for the purpose of lesser punishment We are afraid, the appellant while committing robbery when was put resistance by the deceased fired at him hitting on his neck with the intention to kill. The excuse that the fire was made with a view to avoid the arrest was not a valid ground to plead mitigating in favour of an offender of robbery. Anees alias Muhammad Umar appellant the course of robbery took the life of an innocent young person who put resistance to the commission of offence, therefore, he was not entitled to any leniency in the matter of sentence on the ground that the fire was made to escape from the plea of occurrence. Further the young age itself is no ground for lesser punishment in such cases. We, therefore, of the considered view that it being not a case of lesser penalty, the normal sentence of death awarded to Anees alias Muhammad Umar appellant is not interferable and consequently we maintaining the conviction of this appellant under Section 302 PPC confirmed the Death.._sentence. We also maintaining the conviction and sentence of the appellant under Section 392 P.P.C. dismiss his appeal. The murder Reference to the extent of Anees alias Muhammad Umar is answered in affirmative. (AAJS) Orders accordingly

PLJ 1099 Cr PLJ 1099 Cr.C. ( Lahore ) 1330 Present: SHAIKH ABDUB RAZZAQ, J. NAZIR and another—Appellants versus STATE-Respondent Criminal Appeal No. 870 of 1992, heard on 4.3.1999. Pakistan Penal Code, 1860 (XLV of 1860)- —S. 302/34--Murder~Offence of~Conviction for--Appeal against- Accused/appellants gave brick below on head of deceased out of sudden provocation--This defence plea was suggested to I.O. since very inception and he has candidly admitted this fact-Prosecution version is not supported by any independant evidence as such efence version which is more plausible and appeals to conscience of a man of ordinary prudence- Held: Deceased was not done to death as alleged by prosecution in FIR, but he was killed by accused/appellants under impulse of grave and sudden provocation-Conviction altered to Section 302(c) PPG and sentence of life imprisonment reduced to one already undergone—Orders accordingly. [P. 1336] A to C 1997 PCr.LJ 2056; PID 1996 SC 274; 1999 P.Cr. L.J. 1016 and 1998 PCr.LJ 1110 ref. Sardar Nazar Hussain Dogar, Advocate for Appellants. Mian Muhammad Sikandar Hayat and Mr. Muhammad Yaqoob Chatha, Advocates for Complainant. Mr. A.H. Masood, Advocate for State. Date of hearing: 4.3.1999. judgment Briefly stated the facts are that on 1.6.1992 at about 5.00 A.M., Sardar complainant alongwith his son Muhammad Hayat deceased, Ahmad and Munir PWs were going to the shrine of Mian Muhammad Siddique for offering Fateha, Muhammad Hayat was leading by 22/25 karams ahead of them, When they reached near post office Chowk, they were challenged by Nazir, Shahadat and Ahman who were armed with Sotas. They caught nold of his son Muhammad Hayat and dragged him to their house. They started inflicting Sota blows on his son Muhammad Hayat. On Ms hue and cry, they were attracted and saw that Nazir accused had given a Sota blow which hit on the chest of Muhammad Hayat. Ahman accused gave a Sota blow on his heard were as Nazir accused gave two successive Sota blows to the deceased hitting him on his left cheek and left eye. The deceased was also given Sota blow by Shahadat accused which landed on Ms face. As a result of said injuries, the deceased fell down and was subject to the successive blows by all the three accused. The accused threatened the PWs of dire consequences if they tried to rescue him. The injured Muhammad Hayat was removed to Civil Hospital Lalian. As the Medical Officer was not available there, as the injured was taken to Civil Hospital Chiniot. After preliminary medical examination, he was sent to Allied Hospital Faisalabad from where he was referred to Civil Hospital Faisalabad where he was admitted for 2/3 days and was again referred to Allied Hospital Faisalabad where he succumbed to the injuries on 6.6.1990. The complainant brought the dead body back to Civil Hospital Chiniot. After leaving the same under the supervision of Mohla and Ahmad, made for the police station to lodge report. 2. Ashiq Ali Inspector PW 6 was posted at P.S. Lalian, who on the statement of Sardara, recorded FIR Ex.PA. He thereafter made for Civil Hospital and prepared injury statement Ex.PD and inquest report Ex.PE. He handed over the dead body to Talib Hussaia constable for post-mortem examination and made for the place of occurrence. Talib Hussain constable produced post-mortem examination report as well as last worn clothes of the deceased which he took into possession. He also prepared rough site-plan of the place of occurrence and also got prepared site-plans Ex.PB and PB/1 from Abid Sherazi Draftsman PW 3. On 15.6.1990, he arrested Shahadat and Nazir accused whereas on 22.6.1990, arrested Ahmad accused. On 27.6.1990, accused Ahmad led to the recovery of Danda PI from his house which he secured vide memo Ex.PC and also prepared rough site-plan of place of recovery Ex.PC/1. After completing investigation, the challan was submitted by Munir Ahmad SHO. 3. A charge under Section 302/34 PPC was framed against the accused to which they pleaded not guilty and claimed trial. 4. To prove its case against the accused, prosecution examined PW 1 Sardara complainant, who corroborated his version appearing in FIR Ex.PA. Ahmad PW-2 is an eye-witness of this case and has corroborated the prosecution version. Abid Sherazi Draftsman PW3 deposed that he prepared site-plans Ex.PB and Ex.PB/1 on 10.6.1990 and handed over the same to the Investigating Officer. Talib Hussain constable PW4 was handed over the dead body on 6.6.1990 for post-mortem examination which was conducted on 7.6.1990. He was given last worn clothes of the deceased as well as post­ mortem examination report which he produced before the Investigating Officer. PW5 Muhammad Khan Head Constable was posted at P.S. Lallan on 27.6.1990. He deposed that the accused Ahmad led to the recovery of Danda Pi from his residential room which was secured vide memo Ex.PC. PW 6 Ashiq Ali Inspector is the Investigating Officer of this case, whose evidence has already been discussed. PW 7 Dr. Nasir Mumtaz deposed that on 1.6.1990 he was posted as M.O. THQ Hospital Chiniot. On the same day at 9.00 A.M., he medically examined Muhammad Hayat and found the following injuries on his person: 1. A lacerated wound 3 cm x 0.5. cm mussel deep on right side of back side of scalp 4.5 cm above right ear. 2. A lacerated wound 2 x 0.5 cm skin deep on left cheek. 3. A swelling 6 x 4 cm around left eye with redness inside left eye. 4. A swelling 10 x 6 cm on left cheek (mandibular region). 5. A swelling 8 x 6 cm on right cheek. 6. Marks swelling around neck. On examination subcudandous emphysema found. 7. Multiple contusion on front and back of chest subcudandous and emphysema all over the chest on front and back. 8. Multiple contusion on left arm. 9. Multiple contusion on right arm. 10. Multiple contusion on right buttock and right thigh. 11. A contusion 12 x 2 cm on front of left thigh. He further stated that Injuries Nos. 2, 8, 9, 10 and 11 were declared simple whereas Injuries Nos. 1, 3 to 6 were kept under observation. He also stated that duration between injuries was 8 to 12 hours and all of them had been caused by blunt weapon. He issued a correct carbon copy of medico-legal report Ex.PF and sketch of injuries Ex.PF/1. He further deposed that on 7.6.1990 at 9.00 A.M., he conducted the post-mortem examination on the dead body of Muhammad Hayat and found the following injuries: 1. A stitched wound on right side of scalp above right ear. 2. Neck swollen all around. 3. A healed wound on left cheek. 4. Enterior and posterior chest walls swollen with faint contusion all over. Post mortem staining on back of the chest. 5. Faint contusion marks on right arm. 6. Contusion on left arm. 7. Faint contusion on right and left thighs. 8. Contusion on right buttock. 9. A dressing above right wrist. On venefection would for treatment. 10. Right and left cheek swollen. All the vissras in abdomen were healthy. Stomach was empty. Large intestines contained small quantity of fecal matter. Scall, Membrain and brain were healthy. Spynal card was not opened. In his opinion, cause of death was cardio pulmonary arrest due to chest injuries causing fracture of 8th and 9th ribs, injury to plaeura, lung collapsed and hydropnuma thorax. All the injuries were anti-mortem and had been caused by blunt weapon. He gave the time between injuries as 5 days and between death and post-mortem examination as 18 to 24 hours. He produced post-mortem examination report Ex.PG and skectch of injuries Ex.PG/1. Thereafter the learned DBA closed the prosecution case vide statement dated 19.9.1992. 5. When examined under Section 342 Cr.P.C., Nazir accused denied the prosecution version and in reply to Question No. 5 regarding registration of case, he stated as follows: "The PWs are close relatives and they have deposed as such. Hayat deceased had illicit relations with Mst. Kaniz, my sister. He abducted her and was got restored. Again Hayat went to her in-laws where she was residing. The deceased was made to run from the house of her in-laws. On the fateful night Hayat deceased was posted at mid night on the cot of Mst. Kaniz in our house. Ahman co-accused on seeing Hayat at such odd hours present on the bed of Mst, Kaniz got infuriated and injured Hayat. Mst. Kaniz filed away form the spot I and Shahadat accused did not participate in the occurrence and learnt about it later on." Similarly accused Ahman while recording the statement under Section 342 Cr.P.C. denied the prosecution version and disclosed his involvement while replying to Question No. 5 which is as follows: "The deceased was seen by me on the right of occurrence at mid night on the bed of my sister Mst. Kaniz. I lost my control and injured Hayat deceased. Mst Kaniz escaped. After injuring Hayat deceased I confined him in my Kotha and in the morning I restored Hayat deceased to his father on the intervention of Mehr Sikandar Lali. Hayat deceased had earlier abducted my sister Mst. Kaniz and she was restored through the intervention of Khalid Lali. She was sent to her in-laws. Before the occurrence and even before that the deceased used to visit her where-ever she was sent by us. The deceased had made our lives miserable and thus I injured him. Both my co-accused did not participate in the occurrence. After the occurrence I informed them." Accused Shahadat also denied the prosecution version and made a similar statement while giving reply to Question No. 5 which reads as follows: "The deceased had illicit relations with my daughter Mst. Kaniz. Because of this illicit relations Mst. Kaniz was abducted by the deceased, restored, the deceased chased her even in the house of her in-laws and on the fateful night at about mid night Ahman my son on seeing the deceased on the cot of Mst. Kaniz, injured him. I and my son Nazir accused were not aware of the occurrence. The PWs are dose relatives of the deceased." The accused Ahman closed his defence vide statement dated 24.9.1992. 6. After going through the evidence produced by the prosecution, the trial Court while acquitting Shahadat accused convicted Nazir and Ahman accused under Section 302/34 PPC and sentenced each of them to imprisonment for life and fine of Rs. 10,000/- each and in default thereof to suffer R.I. for one year each. The appellants have felt aggrieved and have filed instant appeal. 7. Alongwith this appeal, Cr. Rev. No. 750/92 has been filed by the complainant/petitioner Sardara for the enhancement of sentence awarded to Nazir and Ahman and for providing compensation under Section 544-A Cr.P.C, Besides the said criminal revision, he also filed another Criminal Revision No. 458/94 against the acquittal of Shahadat accused. As the appeal and both Criminal Revisions arise out of the same judgment, so these are being disposed of by this single judgment. 8. Arguments have been heard and record perused. 9. It is submitted by learned counsel for the accused/appellants that ccording to the prosecution version, the deceased Muhammad Hayat was dragged inside the house by the accused/appellants while the complainant alongwith Munir and Ahmad PWs and the deceased were proceeding to the shrine of Mian Muhammad Siddique to offer Fateha. However, stand of the accused/appellants from the very inception is that on the fateful night the deceased was found on the cot of Mst. Kaniz, sister of Nazir and Ahman accused and daughter of Shahadat accused, that it was only Ahman accused who found the deceased on the cot of his sister and under the impulse of sudden and grave provocation caused him injuries, that neither Nazir nor Shahadat accused was present nor participated in this occurrence, that it has been admitted by Ashiq Ali Inspector PW6 in his cross-examination that the first version of Shahadat accused was that Muhammad Hayat deceased had abducted his daughter Mst. Kaniz, that the deceased had come to their house for sexual inter-course with his daughter Mst. Kasiiz ob the night of occurrence, that his son Ahman saw the deceased there and got provoked and gave a brick blow to him on his head, that even according to his (PW 6) investigation the version of Shahadat accused was found correct to the extent that Ahman accused and had found Ms sister Mst Kaniz sleeping with the deceased gave him brick blow, that in view of this can did admission of PW 6, it is dear that the deceased was done to death under sudden and grave provocation on the part of accused Ahman. He next contended that under similar circumstances, the convictions recorded under Section 302(b) PPG have been altered to 302(c) PPC and sentence awarded has been ranging from 3 to 5 years. He thus submitted that conviction be altered accordingly. He next argued that the accused/appellants were convicted on 1.10.1992 and since then are in jail, as such they have been in jail for almost 6^ years, as such they have adequately been punished and the sentence awarded be modified to one which they have already undergone. 10. Conversely, impugned judgment has been supported by the learned State counsel assisted by learned counsel for the complainant. They canvassed that Sardara complainant (PW 1) and Ahmad PW 2 have fully supported the prosecution version and nothing discrediting their credibility aas been brought on record though both of them have been subjected to lengthy cross-examination, that ocular account stands corroborated by medical evidence of Dr. Nasir Mumtaz PW 7, that defence plea is an after thought, that both the accused/appellants deserve normal sentence, as such by accepting the Criminal Revision the same be enhanced, that trial Court was not justified ie acquitting their co-accused Shahadat on the same evidence upon which majority of accused were convicted. He next urged that if the Court does not find favour with their submissions, then the complainant be awarded costs as stipulated under Section 544-A Cr.P.C. 11. The accused/appellants have been convicted under Section 302/34 PPG and have been sentenced to imprisonment for life and fine of Rs. 10,OOQ/- each. According to the prosecution version, tue deceased was way laid when he alongwith his father and others was proceeding to the shrine of Mian Muhammad Siddique for offering Fateha. On the other hand, the stand of accused/appellants is that the deceased had been carrying on with their sister Mst. Kaniz and on the fateful night was found lying on hercot by Ahman accused/appellant who out of grave and sudden provocation gave brick blows on his head. This defence plea was suggested to the Investigating Officer since very inception and he has candidly admitted this fact. The complainant as well as Ahmad PW 2 have also been uggested a similar defence plea which has been raised by the accused while according their statements under Section 342 Cr.P.C. According to the prosecution version, occurrence took place at 5 in the morning, which time also co­ incides with the version of the accused that the deceased had been present in their house on the cot of their sister Mst. Kaniz at the relevant time. It is also pertinent to mention here that prosecution version is not supported by any independent evidence, as such defence version which is more plausible and appeals to the conscience of a man of ordinary prudence. However, one point needs special attention. If the defence plea is accepted as correct, then it was only Ahman accused who caused brickbat blow on the deceased. This defence version is belied by medical evidence. According to the statement of Dr. Nasir Mumtaz, the deceased had received as many as 11 injuries on his person which fact further stands corroborated from the post-mortem examination report which shows that he had received as many as 10 injuries on his person. The number and locale of injuries clearly shows that these could not be caused by one person. Thus, the stand of defence that it was only Ahman accused/appellant who is responsible for causing the death of deceased is also not correct and it is established from the ocular evidence supported by medical evidence that deceased was done to death not by one accused as suggested by the defence, but at least by two accused. 12. In the light of facts narrated above, it is proved that the deceased was not done to death as alleged by the prosecution in FIR Ex.PA, but he was killed by the accused/appellants under the impulse of grave and sudden provocation. Thus, the conviction of appellants Nazir and Ahmad under Section 302(b)/34 PPG is altered to that under Section 302(c) PPG. In cases involving element of Ghariat, there is a tendency to justify imposition of lesser penally as held in Muhammad Ayub vs. The State (1997 PCr.LJ 2056), All Muhammad vs. Mi Muhammad etc. (PLD 1996 SC 274), Saeed Ahmad vs. State (1999 PCr.LJ 1016) and Muhammad Ishaque alias Baig vs. The State (1998 PCr.LJ 1110). The accused/appellants were convicted on 1.10.1992 and since then are in judicial lock-up. Thus, they are in jail for the last 6^ years. Keeping in view the authorities referred above, the sentence of imprisonment for life of accused/appellants is reduced to one which they have already undergone. However, the sentence of fine of Rs. 10,000/- each or in default thereof R.I. for one year is maintained. 13. The trial Court has not awarded any compensation to the legal heirs of the deceased as contemplated by Section 544-A Cr.P.C. nor has recorded any reason for that. Accordingly, appellants are directed to pay compensation of Rs. 10,000/- each to the legal heirs of deceased as required under Section 544-A Cr.P.C. or in default thereof to further undergo R.I. for one year each. 14. With this modification in the conviction and sentence awarded to the appellants, the instant appeal as well as Criminal Revisions stand disposed of. (MYFK) Orders accordingly.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1337 Present: muhammad naseem chaudhri, J. RAJA PERVAIZ AKHTAR-Petitioner versus STATE-Respondent Cr. Misc. No. 615-B of 1999, heard on 4.8.1999. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence U/S 420/468/471 PPC-Bail petition against-With respect to disputed property, civil litigation is already pending between parties-Case seems to have been taken to police to put pressure upon accused party-Involvement of petitioner is a question of further inquiry- Moreover, S. 420 PPC is bailable, whereas, Sections 468/471 PPG being not cognizable and police having not obtained any warrant or permission from area Magistrate to register or investigate case under these sections-­ There is no alterative but to accept bail application-Further detention of petitioner would be punishment without trial who is entitled to be admitted to bail than to be retained in jail-Petition accepted. [P. 1339] A to C PLJ 1996 Cr.C. ( Lahore ) 1996 rel. Raja Muhammad Farooq, Advocate for Petitioner. Malik Shaukat Hussain, Advocate for State. Date of hearing: 4.8.1999. judgment One Haji Muhammad Yaqoob son of Elahi Dad Khan submitted an application before the Deputy Commissioner Islamabad wherein he alleged that Ashraf Zameer accused through a fake power of attorney transferred the land of one Maula Dad, a relative of his wife, to Muhammad Bakhtiar. The application was sent to the Assistant Commissioner City , Islamabad for holding the preliminary inquiry who recorded the statements of the witnesses. During the inquiry it came to the notice of the Assistant Commissioner City Islamabad that Raja Pervaiz Akhtar petitioner had appeared before the Sub-Registrar at the time of the registration of the power of attorney in favour of Ashraf Zameer who identified him. Holding the preliminary inquiry in favour of Hqji Muhammad Yaqoob complainant the Assistant Commissioner City, Islamabad directed the SHO Police Station Bharakahu District Islamabad for registration of a criminal case, accordingly, FIR No. 184 dated 18.12.1998 stands registered at Police Station Bharakahu District Islamabad under Sections 420/468/471 Pakistan Penal Code. The Assistant Commissioner City , Islamabad also recommended for the forthwith cancellation of the mutation. 2. The law was set in motion by the police. Raja Pervaiz Akhtar petitioner has been arrested whose bail application has been dismissed by a learned Area Magistrate and the learned Additional Sessions Judge with the reasoning that he is prima facie connected with the occurrence and that he is riot entitled to the discretion of the said Courts. He has filed this petition before this Court to try his luck to be adniitteci to bail. 3. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. Even though this aspect has not been argued I would express that the preliminary inquiry was entrusted to the Assistant Commissioner City, Islamabad by the Deputy Commissioner, Islamabad and it was the duty of the Assistant Commissioner City, Islamabad to send the report to the Deputy Commissioner, Islamabad with the recommendations who could proceed in the matter in accordance with law. In short the haste has been shown by the Assistant Commissioner City for the reasons best known to him. 4. On merits learned counsel for the petitioner argued that Section 420 Pakistan Penal Code is bailable while both Section 468/471 Pakistan Penal Code are non-cognizable and that keeping in view the said aspect the petitioner is entitled to the discretion of this Court as a bail application has to be disposed of within the ramework of Section 497 of the Code of Criminal Procedure. He expressed that Raja Pervaiz Akhtar petitioner is not beneficiary of the matter. On the contrary learned State counsel laid the emphasis that the petitioner is named in the FIR to whom specific role has been attributed and that having identified the principal accused before the Sub-Registrar he has lost the discretion of the Court. 5. I would express that the reasoning adopted by the learned counsel for Raja Pervaiz Akhtar petitioner-accused has to prevail. A bail application has to be disposed of within the framework of Section 497 of the Code of Criminal Procedure. In a judgment printed as Ghulam Qasim alias Muhammad Qasim and another versus The State (1991 P.Cr.L.J. 2418 Lahore) it has been expounded that the offences under Section 468/471 Pakistan Penal Code being not cognizable and the police having not obtained any warrants or permission from the Area Magistrate to register or investigate the case under these sections and the offence under Section 420 Pakistan Penal Code being bailable there was not alternative but to accept the bail application of the accused. Same view was expressed by me in Muhammad Azam versus The State (PLJ 1996 Cr. cases (Lahore) 799). Another aspect which cannot be lost sight of is that with respect to the disputed properly the civil litigation is already pending between the parties and I would express that civil Court has better footing for the determination of the dispute revolving around the alleged status and character of the parties qua the disputed property. Without prejudice I am tempted to express that the case seems to have been taken to the police to put the pressure upon the accused party which fact stands projected by the order of the Assistant Commissioner City, Islamabad who got registered the FIR and passed the order for forthwith cancellation of the mutation. 6. The locus standi of Haji Muhammad Yaqoob applicant to get initiated the inquiry is also a moot point and salient feature which shall have to be processed with during the investigation especially when the civil litigation is admitted to be pending with respect to the disputed properly. As such the registration of the FIR at the instance of the Assistant Commissioner City, Islamabad on the basis of the preliminary inquiry without the intervention of the Deputy ommissioner/District Collector, Islamabad who could give his verdict on the report of the preliminary inquiry has stolen the eminence to make me hold that the involvement of Raja Pervaiz Akhtar, who appeared and identified before the Sub-Registrar at the time of the registration of the power of attorney, is a question of further inquiry. The reasoning mentioned by the learned State counsel that the name of Raja Pervaiz Akhtar stands entered in the FIR need not be given the legal weight in view of the aforesaid analysis of the matter at this initial stage while disposing of this bail application. Consequently I hold that further detention of Raja Pervaiz Akhtar petitioner-accused would be punishment without trial who is entitled to be admitted to bail than to be retained in jail. 7. I, therefore, accept this application and admit Raja Pervaiz Akhtar petitioner-accused to bail in the sum of Rs. 25,000/- (Rupees Twenty Five Thousand only) with one surety in the like amount to the satisfaction of the Area/Duty Magistrate with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. (MYFK) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1340 [ Multan Bench] Present: muhammad naseem CiiAUDHRi, J. --Petitioner versus STATE-Respondent Cr. Misc. No. 1032-B of 1999, accepted on 19.7.1999. Criminal Procedure Code, 1898 (V of 1898)-- —- S. 497--Murder--Offence of--Bail against-There was no motive on part of petitioner to have committed intentional murder of his wife—In Islamic society morals of society have always been given weight-Efforts are made to improve moral values-Legally, petitioner shall not be liable for maximum punishment even if he is convicted, because he murder his wife who committed adultery and was found with stranger on same cotct of petitioner in finishing his wife was in furtherance of pure moral and eithical Islamic atmosphere in society-Petitioner is entitled to bail so that male person(s) remain "Ba-Ghairat" instead of becoming "Be- Ghairat" -Petition accepted. [P. 1341] A 1994 P.Cr.L.J. 2012 ref. Sardar Dost Muhammad Khan Chandia, Advocate for Petitioner. Sh. Gul Muhammad, Advocate for State. Date of hearing: 19.7.1999. judgment Abdul Qadir complainant, a driver by profession, and brother ofMst. Khadija (deceased of this case), married to Ameer Bakhsh petitioner, got recorded FIR No. 51 dated 29.1.1999 at Police Station Jampur, District Rajanpur under Section 302 PPG. According to him his sister Mst. Khadija was married to Ameer Bakhsh who were blessed with two sons and two daughters. He had gone to the house of his Behnoi Ameer Bakhsh alongwith Kareem Bakhsh on a routine visit where he had his dinner and started watching television. In the contiguous room his sister Mst. Khadija was present. At about 8.30 P.M. he heard the alarm of h\s sister where he went and saw Ameer Bakhsh petitioner present there while armed with a gun and a stranger whose name afterwards was brought to his notice as Abrar Ahmad was lying with his sister Mst. Khadija on the same cot. His Behnoi fired at Mst. Khadija and, second time, at Abrar Ahmad. He repeated firing at Mst. Khadija and Abrar Ahmad. He restrained them from coming ahead by issuing the threats who fled away. According to the complainant the dead bodies of both Mst. Khadija and Abrar Ahmad were lying full of blood on the same cot He prayed for taking the legal action. The law was set in motion. The dead bodies were taken into possession and autopsy of both the dead bodies was got conducted. The blood-stained earth was taken into possession. The statements of the P.Ws were recorded under Section 161 of the Code of Criminal Procedure, Ameer Bakhsh was arrested whose bail plea has been rejected by the learned Additional Sessions Judge. He has filed this petition before this Court to try Ms luck to be admitted to bail. 2. I have heard the learned counsel for the petitioner as well as the earned State counsel and gone through the record before me. Learned counsel for the petitioner argued that the petitioner took the law in his hands in furtherance of pure moral and ethical considerations in the Islamic State of Pakistan as a stranger Abrar Ahmad was present in the room of his house where his wife Mst. Khadija was lying with him on the same cot who could not restrain himself as it was a matter of adultery. He added that the petitioner is a person who can be termed to be "Ba-Ghairat" and he is not liable for capital punishment. On the contrary learned State counsel laid the emphasis that the petitioner is named in the FIR who committed the double murder and thus is not entitled to be admitted to bail. 3. At this stage I would refer to the ruling printed as Liaqat Ali versus State (1994 PCr.LJ 2012) and I shall reproduced the following para form the same:- Chapter IV (General Exceptions) of the Code is to be read in conjunction with substituted Chapter XVI. Section 76 provides that nothing is an offence which is done by a person in good faith believing himself to be bound by law to do it. Extending the analogy to the facts of the case in hand, one can prima facie say that the act of the petitioner in finishing Abdul Hameed deceased was rather in furtherance of the pure moral and ethical Islamic atmosphere in society when he proceeded to do away with the life of a Zani. Section 79 ibid also lays down that nothing is an offence which is done by any person who is justified by law to do it or in good faith believes himself to be justified by law in doing it. A Muslim on seeking a person committing Zina with a woman and that too of his own house, under Islamic Law, is justified to do away both." 4. The fact of the matter is that there was no motive on the part of Ameer Bakhsh petitioner-accused to have committed the intentional murder of his wife Mst. Khadya. I am tempted to express that in the circumstances of such like cases when the accused is none else than the husband of Mst. Khadya who was lessed with two sons and two daughters and yet committed adultery with the stranger in his house, if the "Gkairat" is not prompted and given the weight then apprehension cannot be ruled out that the close dears and nears shall become "Be-Ghairat" due to the fear of heavy punishment. In our Islamic society the morals of the society have always been given the weight. Rather the efforts are made to improve the moral values. Legally Ameer Bakhsh petitioner shall not be liable for the maximum punishment even if he is convicted. Keeping in view the very case of the prosecution, 1 hold that Ameer Bakhsh petitioner-accused is entitled to the iscretion of this Court in this Islamic State of Pakistan so that the male person(s) remain "Ba-Ghairat" instead of becoming "Be-Ghairat"'. On the aforesaid reasoning it is a fit case to admit Ameer Bakhsh petitioner to bail than to detain him in jail. 5. For what has been said above, I accept this application and admit Ameer Bakhsh petitioner-accused to bail in the sum of Rs. 1,OQ,000/- (Rupees One Lakh) with one surety in the like amount to the satisfaction of the learned Additional Sessions Judge, Jampur, District Rajanpur with the direction to appear before the learned trial Court on each and every date of hearing failing which the learned trial Court may cancel his bail. (MYFK) Petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1342 Present: muhammad naseem chaudhri, J. PERVA1Z IQBAL alias GOGl-Petitioner versus STATE-Respondent Cr. Misc. No. 658-B of 1999, accepted on 29.7.1999. Criminal Procedure Code, 1898 (V of 1898)- —S. 497-Offence U/S. 382/34 PPG and S. 17 of Offences Against Property, Ordinance, 1979-Bail-Prayer for-Making of a statement during interrogation by an accused implicating himself as well as co-accused can safely be held to be confession before police which is inadmissible in evidence under Article 38 of Q.S. Order, 1984-Abscondence of petitioner after occurrence is not enough to deny concession of bail to him--There is no provision of codified law in Punjab Police Rules, 1934 that Identification parade can be conducted by a Police Officer in police tation-Identification Parade is necessary where names of culprits are not given in FIR~Mere fact that petitioner is involved in a case falling under prohibitory clause of S. 497 Cr.P.C., would not be sufficient for rejection of plea of bail of accused—Involvement of petitioner is a question of further inquiry-Petition accepted. [Pp. 1344 & 1345] A to E 1997 SCMR 971,1988 SCMR 557 ref. Syed Muhammad Tayydb, Advocate for Petitioner. Mr, Aftab Ahmad G'tgjar, Advocate for State. Date of hearing: 29.7.1999. judgment Muhammad Saleem complainant got recorded his statement on 24.6. IS9? before Abdus Sattar ASI Police Station Secretariat, Islamabad at 8,50 A.M. with the allegation that he alongwitb Muhammad Ayyub Khan and Ncor Muhammad P.Ws was going on Suzuki Car No. JMB 2595 to Chak Shehzad when they were surprised by car No. RIV 7887 who stopped their car. Three persons alighted while each of them was armed with pistol who abused them. They forcibly removed an amount of Rs. 3,600/- and one wrist watch. One person remained sitting in car No. RIV 7887. Two persons sat inc ar No. JMB 2595 alongwith them. One of the persons went to car No. RIV 7887 and two persons sitting therein went away. The two persons sitting in car No. JMB 2595 snatched the car and took away the same. 2. On the basis of the aforesaid statement formal FIR No. 103 dated 24.6.1997 was registered at Police Station Secretariat, Islamabad under Section 382/34 Pakistan Penal Code and under Section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The value of the car as mentioned in the FIR was Rs. 1,40,OOQ/-. 3. The law was set in motion. The stolen car was standing on Islamabad Highway in a jungle which was taken into possession by Abdus Sattar ASI on 26.6.1997 vide memo attested by Abdul Manan Constable No. 6499 and Muhammad Elahi S.I. Muhammad AM was arrested as an accused of the case who during interrogation ob 1.10.1997 named Pervaiz Iqbal alias Gogi as one of those persons who accompanied him. On that the police initiated the proceedings under Sections 87/88 of the Code of Criminal Procedure. Pervaiz Iqbal alias Gogi petitioner-accused was arrested on 4.1.1999 who is said to have been identified by the complainant and the P.Ws, in Police Station Secretariat as one of those persons who participated in the occurrence. The bail plea of this petitioner has been refused by both the learned lower Courts who has filed this petition before this Court to try his luck to be admitted to bail. 4. Both the learned lower Courts have denied the concession of bail to Pervaiz Iqbal alias Gogi petitioner on the grounds that he was identified during the Identification parade held in Police Station, under the Police Rules, 1934 and that the proceedings under Sections 87/88 of the Code of Criminal Procedure were initiated against him. 5. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record. The main contentions of the learned counsel for the petitioner are that the statement of an accused implicating the co-accused during the investigation has no legal force as the statement of an accused implicating a co-accused during the trial may be considered; that the simple fact of initiation of the proceedings under Sections 87/88 of the Code of Criminal Procedure cannot be held as the basis of the corroboration of the recitals of the FIR as sometimes the accused made good their escape to avoid the coercion which is effected by the police and that there is no provision of law to justify the holding of the identification parade in the police station. He added that even in the FIR the particulars of the accused persons have not been incorporated so as to ornament the ingredients of the prosecution case. On the contrary learned State counsel laid the emphasis that the reasoning adopted by the learned Additional Sessions Judge as mentioned supra has to play the legal role and that the abscondance of the petitioner has made out that he isprima facie connected with the occurrence. 6. I would express that the reasoning adopted by the learned counsel for Pervaiz Iqbal alias Gogi petitioner-accused has to prevail. First of all I would refer to Article 43 of Qanoon-e-Shahadat Order, 1984 which provides that when more persons than one are being tried jointly and confession made by one of such person is proved, such confession shall be proved against the person making it and the Court may take into consideration such confession as circumstantial evidence against such other person. The interpretation of this Article would be that during the trial confession of an accused implicating himself and his co-accused shall be circumstantial evidence against the co-accused, I would express that making of a statement during the interrogation by an accused implicating himself as well as co-accused can safely be held to be the confession before the police which is inadmissible in evidence in view of the mandatory provisions of Article 38 of the Qanoon-e-Shahadat Order, 1984. This being the position the connected matter of processing further under Sections 87/88 of the Code of Criminal Procedure shall have to be viewed with caution on the grounds that the very taking into consideration of case of Pervaiz Iqbal alias Gogi as the accused is suspicious and the supplementary working in the matter shall sail in the same boat which means that the same shall also be of less legal effect. This is one aspect of the matter. The other aspect of the matter is that sometimes the accused persons hide and leave the place being scared of the coercion which is effected by the Police in our country which is a known fact and is a matter of common knowledge. This ingredient of the prosecution case is not enough to deny the concession of bail to the petitioner. The remains the Identification Parade said to have been conducted in Police Station Secretariat, Islamabad wherein the prosecution witnesses are said to have identified Pervaiz Iqbal alias Gogi petitioner-accused. In this respect suffice it to refer to Article 22 of the Qanoon-e-Shahadat Order, 1984 under which provisions of law the Identification Parade is to be conducted. It would be better to refer to Chapter 11-C of the Lahore High Court Rules and Orders Volume III providing as to how Identification Parades are conducted. There is no provision of codified law or nay rule in the Punjab Police Rules, 1934 that the Identification Parade can be conducted by a Police Officer in the Police Station. If this aspect of the matter is given the weight, I would express, then nobody would be able to save his skin. It has been held in Farman All versus The State (1997 SCMR 971) in which a case under Section 392 Pakistan Penal Code was dealt with, that Identification Parade is necessary where names of culprits are not given in the FIR and that the holding of such test is not only a check against false implication but is also a good piece of evidence against genuine culprits. Even though no Identification Parade has been conducted in this case yet, I would refer to Ghulam Rasool and three others versus The State (1988 SCMR 557) wherein it has been held that where role of accused at time of commission of offence is not described by the witnesses it is inherent defect and the evidence of the witnesses identifying the accused in such Identification Parade loses its efficacy. This was a ruling under Section 9 of the Evidence Act which at present is equal to Article 22 of the Qanoon-e-Shahadat Order, 1984. Even this aspect is entered in Rule 2 Chapter 11-C of the Lahore High Court Rules and Orders Volume-Ill. The cumulative effect of the aforesaid discussion is that the involvement of Pervaiz Iqbal alias Gogi petitioner-accused is a question of further inquiry and further detention of the accused would be punishment without trial. 7. At this stage I am tempted to express that a bail application has to be disposed of within the framework of Section 497 of the Code of Criminal Procedure and it is the high time to administer a piece of advice to he learned subordinate judiciary in this regard that the mere fact that the petitioner is involved in a case falling under the prohibitory clause according to the version of the complainant in the FIR and according to the final verdict of the police incorporated in the challan indictment submitted under Section 173 of the Code of Criminal Procedure, it would not be sufficient for the rejection of the plea of bail of the accused persons. If his case is that of further inquiry or is covered by any of the other provisions mentioned in the aforesaid section, he is entitled to be admitted to bail. In the instant matter the nvolvement of Pervaiz Iqbal alias Gogi petitioner is held to be a question of further inquiry and I hold that he is entitled to be admitted to bail than to be retained in jail. 8. For what has been said above, I accept this application and admit Pervaiz Iqbal alias Gogi petitioner-accused to bail in the sum of Rs. 50,000/- (Rupees Fifty Thousand only) with one surety in the like amount to the satisfaction of the learned trial Court with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. (MYFK) Application accepted

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1346 Present: RAJA MUHAMMAD KHURSHID, J. ZAFAR-Petitioner versus STATE-Respondent Criminal Misc. No. 5287/B of 1998, dismissed on 20.10.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Offence u/S. 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Bail petition against-Petitioner was found in compromising condition with Mst. B i.e. sister of complainant who picked up a hatchet and caused injuries to both of them and particularly when cross-version has been found meritless in police investigation, petitioner has no case for bail-Petition dismissed. [P. 1347] A Sardar Muhammad Latif Khan Khosa, Advocate for Petitioner. Mr. Khalid Saeed Sandhu, Advocate for State. Date of hearing: 20.10.1998. order A case under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against the petitioner vide FIR No. 199 dated 18.5.1998 at P.S. Shorkot City , District Jhang. 2. The petitioner was surprised while he was committing Zina-biljabr with sister of the complainant namely Mst. Imtiaz Bibi on the night between 16th and 17th of May, 1998 at about 4:00 a.m when she had gone out to ease herself. The complainant on seeing the occurrence picked up a hatchet and started inflicting injuries to the pari-delicto which resulted into multiple injuries on the person of the petitioner and also to Mst. Imtiaz Bibi aforesaid who later on succumbed to the injuries. It is contended by learned counsel for the petitioner that there is a cross-version in respect of the same occurrence as a case under Section 324/337-A(vi)/337-F(v)/148/149 PPC was registered against the complainant side vide FIR No. 203 dated 24.5.98 as the complainant with his four accomplices committed murderous assault upon the petitioner after calling him from the house. It was, therefore, alleged that it was a case of further enquiry. 3. Learned counsel appearing for the State opposed the bail on the ground that cross-version has been found false during the investigation and that the etitioner has been found guilty of committing Zina-bil-jabr with the deceased Mst. Imtiaz Bibi after she had come out from her house to ease herself in the early morning dr ring the unfortunate night. It was, therefore, submitted that the petitioner having been named in the FIR and that the coaccused of the petitioner namely Mst. Imtiaz Bibi (since-dead) were surprised by the complainant who under grave and sudden provocation allegedly committed the occurrence would not provide any justification for granting bail to the petitioner at this stage. 5. Without entering into the deeper appreciation of merits of the case, it is enough to say that the petitioner was found in compromising condition with Mst. Imtiaz Bibi i.e. sister of the complainant who picked up a hatchet and caused injuries to both of them and particularly when the crossversion has been found meritJess in the police investigation, the petitioner has no case for bail at this stage. The petition is accordingly dismissed. (MYFK) Petition dismissed.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Peshawar ) 1347 Present: JAWAID NAWAZ KHAN GANDAPUR, J. Mian MUNFAR All-Petitioner versus STATE-Respondent Cr. Misc. No. 632 of 1998, decided on 1.9.1998. Criminal Procedure Code, 1898 (V of 1898)- —-S. 497-Pakistan Penal Code (XLV of 1860), Ss. 419/420/222/223/224/ 468/471 & 120-B-Petitioner facing trial in case u/S. 6/7/8/9 of Control of Narcotic Substances Act, 1997 and kept in Central Jail, Peshawar-­ Shifted to Mardan Jail to appear before Family Court in connection with family suit instituted against him-Released from jail by forged means and registration of case-Bail-Grant of-Prayer for-Persual of record would show that complainant, Supdt. Jail, District Jail, Mardan has not been examined U/S. 164 Cr.P.C. so far~Similarly his Deputy Supdt. And others have also not been examined U/S. 164 Cr.P.C.-Strangely, statements of all three material witnesses have not been recorded even U/S. 161 Cr.P.C. by Investigating Officer-No reason exists and none indeed has been advanced by learned Asstt: Advocate General as to why three material witnesses, who are all responsible Government Servants, have not been examined so far in support of Prosecution case-Held: This creates shadow of doubt to correctness of prosecution case against petitioner-Petition accepted. [P. 1349] A, B & C Mr. Kamran Arif, Advocate for Petitioner. Kh. Azhar Rashid, Assistant Advocate General for State. Date of hearing: 1.9.1998. judgment Briefly stated the facts of the case are that one Niaz Ali S/0. Subaz Ali was facing trial at Peshawar in narcotic case registered Vide: F.I.R. No. 24 dated 21.6.1997 u/S. 6/7/8/9 of the Control of Narcotic Substances Act, 1997, when in the meantime, a Suit (No. 34/FC of 1998) was instituted against him in Mardan in the Family Court. 2. He was, therefore, summoned to appear before the Judge, Family Courts, Mardan on 21.3.1998. He was accordingly despatched from Central Jail, eshawar to Mardan Jail on 19.3.1998 so as to enable him to appear before the Family Court on 21.3.1998. He was however released from Mardan Jail on 20.3.1998 for which the petitioner, the Asstt. Supdt. of Jail, Distt: Jail, Mardan, has been charged by the Supdt: Jail Mardan/complainant/Khalid Abbas Khan who had addressed Letter No. 660 dated 20.3.1998 to the S.H.O., Police Station "A" Division, Mardan. On the basis of the said letter F.I.R. No. 300 was duly registered u/S. 419/420/221/223/224 PPC, in the first instance, on 20.3.1998. 3. It appears that during the course of investigation certain other sections of PPC were added, on various dates, as is clear from the attested photo-copy of the F.I.R. However it is not clear as to when and by whom Section 120-B PPC was added i.e., before or after the addition of Section 468/471 PPC. Similarly it is not clear from the record as to why and when and by whom Section 222 PPC was added. 4. The learned counsel for the petitioner, therefore, vehemently contended that all the subsequent sections of law were added by the S.H.O., maliciously and with mala fide intention, at the instance of the Superintendent Jail, merely to bring the case of the petitioner within the prohibitory clause of Section 497 Cr.P.C. so that he is denied the concession of bail. 5. He next submitted that the petitioner, after having received the information about the registration of case against him, got transitory bail from the Addl. Sessions Judge, Dargai Mr. Muhammad Tariq Wali and then appeared before the Addl. Sessions Judge (I) Mardan (Syed Afsar Shah) on 1.4.1998. The Addl. Sessions Judge (I) initially extended the interim bail to 6.4.1998 but on 6.4.1998 recalled the interim bail. The petitioner was resultantly arrested. 6. According to the learned counsel for the petitioner, the petitioner applied for bail to the Senior Civil Judge/City Magistrate which was rejected on 2.5.1998. His subsequent bail petition was rejected by Malik Ghulam Mohyuddin, Sessions Judge, Vide: his order dated 26.5.1998. Hence this petition. I. Mr. Kamran Arif Advocate learned counsel for the petitioner and Kh. Azhar Rashid learned Asstt: Advocate General for State present and heard. Record of the case perused. 8. The charge against the petitioner, in the main, is that he had facilitated the escape of accused Niaz Ali S/O. Subaz Ali, alleged to have been involved in a narcotics case wherein the maximum punishment provided is death or imprisonment for life. 9. Admittedly F.I.R. No. 300 was registered on 20.3.1998 on the complaint of Khalid Abbas Khan, Supdt: Jail Distt: Jail Mardan. The petitioner, after having failed to procure bail from the lower Courts, has come to this Court for the redress of his grievance saying that he is innocent, falsely charged by the Supdt: Jail, as a result of family enmity, and thus liable to be released on bail till the decision of the main case on merits. 10. A perusal of the record would show that complainant Khalid Abbas Khan, Supdt: Jail, Distt; Jail Mardan has not been examined u/S. 164 Cr.P.C. so far. Similarly his Deputy Supdt: Jail has also not been examined u/S. 164 Cr.P.C. It may be remarked here that the petitioner has categorically alleged that he was on leave on the day of occurrence, Vide: his application dated 20.3.1998, and that his leave had been duly sanctioned by the complainant who had at the same time irected that in his absence the Asstt: Supdt. Jail, namely, Zafar Iqbal, shall perform his (petitioner's) duties. Ironically, Zafar Iqbal has also not been examined so far u/S. 164 Cr.P.C. Strangely, the statements of all the three material witnesses have not been recorded even u/S. 161 Cr.P.C. by the Investigating Officer. This indeed is quite objectionable and is extremely unreasonable. In fact it is not understandable at all. II. No reason exists and none indeed has been advanced by the learned Asstt: Advocate General as to why these three material witnesses, who are all esponsible Government servants, have not been examined so far in support of the prosecution case. This has, therefore, created a shadow of doubt in my mind as to the correctness of the prosecution case against the petitioner. 12. Additionally, the "Chit" regarding which the learned Asstt: Advocate General has made a repeated reference for about 10 times, duringhis arguments, is not available on record either on the judicial file or on the police file. This is the "Chit" Vide: which the under trial prisoner was let of from the Jail. Since the said "Chit" is not traceable, therefore, it cannot be relied upon by the prosecution to substantiate its case. 13. Kh. Azhar Rashid, learned Asstt: Advocate General has, on the other hand, relied on the statements of the lower staff of the Jail recorded u/S. 164 Cr.P.C. beside the statements-of the under trial prisoner/convicts who are confined in the jail and contended that from these statements a "Pritna facie" case is made out against the petitioner and resultantly he is not entitled to get bail. 14. I do not want to touch the merits of the case but I am of the opinion that it would be sufficient to remark here that the statements recorded u/S. 164 r.P.C. in this case, referred to above by the learned Asstt: Advocate General, cannot be relied upon safely as it is a matter of commonknowledge that such like statements can easily be obtained especially when the Supdt: of the Jail is interested and the persons whose statements are recorded are confined in his Jail and are totally at his mercy. 15. Accordingly, without dilating upon the merits of the case, I am of the view that reasonable grounds do not exist for believing that the petitioner is connected with the commission of the offence charged with and that his case is that of further inquiry. 16. This bail petition is accepted. The petitioner shall be released forthwith, if not required in any other case provided he furnishes bail bonds in the sum of Rs. 2,00,000/- (Rs. Two lacs) with two sureties, each in the like amount, to the satisfaction of the Addl: Registrar (Judicial) of this Court. 17. The Addl. Registrar shall see that the sureties are respectable persons and hail from the settled areas of Distt: Peshawar and have sufficient property in their names. The property documents as well as the copies of the Identity Cards of the sureties shall be obtained from them for record by the Addl: Registrar of this Court. 18. Before parting with the case in hand I must bring it on record that the Investigating Officer in this case has been adding various sections of the PPC against the petitioner every other day. This procedure is not at all proper. The addition of various sections shall be looked into by the Supdt: of Police, Mardan mmediately. A copy of this judgment shall be sent to him by my Private Secretary. (B.T.) Bail petition accepted.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1350 (DB) Present: muhammad naseem chaudhri and muhammad asif jan, JJ. GHULAM RASOOL-Petitioner versus ABDUL GHANI etc.--Respondents Criminal Misc. No. 5787/CB of 1998, heard on 28.1.1999. Criminal Procedure Code, 1898 (V of 1898)- —-S. 497(5)--Cancellation of bail-Offence U/S. 324/34 PPC--Nonappearance of injured person before Medical Board shall not make prosecution case to be doubtful because injury was on left temporal region of skull which could neither be self suffered nor caused by a friendly hand-Delay in registration of case shall also not make doubtful prosecution case in view of alleged motive, nature of occurrence and explanation in FIR about inception of compromise between parties which did not materialize-Principle of grant of bail before arrest is apprehension of un-necessary harassment at hands of police which is lacking in instant matter-Question of further inquiry (S. 497(1) Cr.P.C.) is no ground for bail pre-arrest (S. 498 Cr.P.C.)--Making of five successive applications for pre-arrest bail and dismissal thereof is a strong circumstance against respondent-accused for his prima-facie involvement in matter-Prosecution has collected material comprising motive, ocular evidence and medical evidence against respondent-accused-His case was not a case of pre-arrest bail-Petition accepted and bail cancelled. [Pp. 1354 & 1355] A to C Mr. Mazhar Iqbal Sidhu, Advocate for Petitioner. Mian Mushtaq Ahmad, Advocate for Respondents. Mr. Arshad Mehmood, Advocate for State. Date of hearing: 28.1.1999. judgment Muhammad Naseem Chaudhri, J.--On 20.5.1998 the elections to the Local Councils Punjab were held. Ghulam Rasul complainant went at 9:30 AM to Government Girls School Amar Kot alongwith his brother Muhammad Habib Ahmad to cast the votes. Abdul Ghani accused armed with .303 rifle, his son Zulfiqar armed with a .222-rifle and Muhammad Akram accused armed with a .12-bore gun were present there. An altercation took place due to the casting of the votes. Abdul Ghani is said to have raised the 'Lalkara' to teach the complainant party a lesson as they wanted to vote for the opponent candidate. On that Zulfiqar accused fired which hit Muhammad Habib Ahmad on his left temporal region of the skull who fell down. Abdul Ghani and Muhammad Akram affected the indiscriminate firing. In the meanwhile Muhammad Sher and Mushtaq Ahmad alias Papoo as well as many persons arrived who saw the occurrence. The accused persons made good their escape. Muhammad Habib Ahmad injured was removed to the Rural Health Center Khanka Dogran who was examined by Dr. Abbas Ali Zahid, Medical Officer on 20.5.1998 at 10:30 AM. 2. About the occurrence FIR No. 177 dated 23.5.1998 was got registered by Ghulam Rasul complainant under Section 324/34 PPC at Police Station Khanka Dogran. 3. The medical witness found lacerated wound bone deep in an area of 0.6 CM X 0.5 CM on the left temporal region of the skull. The wound was found to be l.l.CM deep and the margins of the wound were inverted. There was no wound of exit. Two X-ray skiagrams were obtained by the medical witness who did not find any boney lesion in the skull. The aforesaid injury was declared as 'Shajjah-i-Mudiha'. 4. At one stage Mr. Arshad Javed, Additional Sessions Judge-I, Sheikhupura was working as the Judge Suppression of Terrorist Activities Sheikhupura. The petitioners filed their application for their admission to re-arrest bail on 26.5.1998 which was withdrawn on 6.6.1998. Another petition of the same nature was filed on 11.7.1998 which was dismissed as withdrawn on 31.7.1998. Third application was moved on 4.8.1998 which was dismissed in default on 15.8.1998. Another application was filed on 7.8.1998 which was dismissed on 7.9.1998. The next application was filed on 9.9.1998 which was withdrawn on 28.9.1998. Thus in every application interim relief was recalled on the date of the disposal of petition. On 29.9.1998 the application for pre-arrest bail was moved before Mr. Mujahid Huss-ain Sheikh, Additional Sessions Judge-I/Judge Special Court for Suppression of Terrorist Activities, Sheikhupura who accepted the same on 14.10.1998 on the grounds that there is delay of three days in reporting the matter to the Police; that Zulfiqar Ali accused was found to be innocent by Dr. Muhammad Amin Yousafzai, ASP Sheikhupura and that Muhammad Habib Ullah injured did not appear before the Medical Board for second opinion inspite of the order passed by the District Magistrate, heikhupura. Feeling aggrieved Ghulam Rasul complainant has filed this petition for the cancellation of the pre-arrest bail allowed to the aforesaid accused who have been arrayed in the list of the respondents and who have resisted this application. 5. We have heard the learned counsel for the parties as well as the learned counsel for the State. At the very outset we would express that in view of the role of ineffective firing attributed to Abdul Ghani and Muhammad Akram respondents-accused this petition to their extent was not pressed by the learned counsel for the petitioner which stands dismissed to their extent. 6. With respect to Zulfiqar Ali respondent-accused it was canvassed by the learned counsel for the petitioner-complainant that five applications for pre-rrest bail were filed earlier which were dismissed either as withdrawn or in default and that the chance was being taken by the accused persons to get the nvestigation of the case titled in their favour. He maintained that the injury on the person of Muhammad Habib Ullah injured could neither be self suffered nor caused by a friendly hand and that the reasoning made by the learned trial Court in the impugned order dated 14.10.1998 is not enough for the admission of Zulfiqar Ali accused to prearrest bail who could not claim un-necessary harassment at the hands of the Police. On the contrary the learned counsel for the respondents-accused laid the emphasis that Zulfiqar Ali was declared as innocent by the Additional Superintendent of Police whose involvement is that of further enquiry and that he has rightly been admitted to pre-arrest bail especially when Muhammad Habib Ullah injured did not appear before the Medical Board for the second opinion and that there is delay of three days in reporting the matter to the Police. 7. On our query it was intimated by the Police Officer after consulting the case diary that Zulfiqar Ali was declared as innocent by the aforesaid Police Officer on the ground that the complainant party was not willing to swear on the Holy Qur'an about the bona fide of the prosecution case. Our view is that the benefit of the reluctance of the complainant is not enough to exonerate Zulfiqar Ali respondent as accused. According to the ruling published as Mst. Bashiran Bibi vs. Nisar Ahmad and others (PLD 1990 SC 83) the procedure of swearing on the Holy Qur'an (oath proceedings) is not applicable in criminal proceedings in view of Section 163 of the Qanoon-e-Shahadat, 1984. It has also been laid down in this ruling that the sanctity of the Holy Qur'an is such that it cannot be brought in oath and while disposing of the bail application it was not right/correct to countenance the procedure in the matter and that approval of such a procedure would throw the entire administration of criminal justice in to disarray due to the prevalent moral standards. I have myself expressed my sentiments in the ruling published as Hussain Ahmad alias Madni Shah vs. The State (1996 P.Cr.L.J. 130 Lahore) wherein I placed the reliance on the aforesaid ruling (PLD 1990 SC 83) that by adopting such a working the Investigating Officer(s) make the attempt to desecrate the Holy Qur'an who should refrain themselves therefrom lest the wrath of God may not fall. As such the opinion about the innocence of Zulfiqar Ali respondent-accused expressed by the aforesaid Police Officer need not be given the weight. The non-appearance of Muhammad Habib Ullah injured before the Medical Board shall not make doubtful the prosecution case at this stage for the simple reason that the injury was on the left temporal region of the skull which could neither be self suffered nor caused by a friendly hand. The delay in the matter of registration of the criminal case shall also not make doubtful the prosecution case in view of the alleged motive, nature of the occurrence and the explanation in the FIR about the inception of the compromise between the parties which did not materialize. We hold the view that the cardinal principle for the grant of extraordinary relief of bail before arrest is that the accused, who has prayed the aforesaid type of proposed relief, is apprehending un-necessary harassment at the hands of the police which is lacking in the instant matter. Further keeping in view the fact that an application for pre-arrest bail is to be disposed of under Section 498 of the Code of Criminal Procedure, the assertion of the learned counsel for the respondent-accused that his involvement is a question of further enquiry falling under Section 497(1) of the Code of Criminal Procedure is no ground for the admission of the accused to pre-arrest bail. The making of five successive applications for pre-arrest, bail and dismissal thereof is a strong circumstance against the respondent-accused for hispnma facie involvement in the matter. The prosecution has collected the material comprising motive, ocular evidence and the medical evidence against Zulfiqar Ali respondentaccused which has to be produced during the trial. Keeping in view the aforesaid material we hold that it was not a case for the admission of Zulfiqar Ali respondent-accused to pre-arrest bail. 8. Consequently, we accept this application, set aside the impugned judgment dated 14.10.1998 to the extent of Zulfiqar Ali respondent-accused and cancel his pre-arrest bail. 9. Zulfiqar Ali respondent-accused has been put in the custody of Rai Nazir ASI, Police Station Khanka Dogran, District Sheikhupura, for his detention in the judicial lock up of District Jail Sheikhupura. The Police Officer may obtain his physical remand under Section 167 Code of Criminal Procedure Code. In case the hallan has been submitted and the trial has not commenced, the trial shall commence after the lapse of a period of 20 days. (MYFK) Bail cancelled.

PLJ 1999 Cr PLJ 1999 Cr.C. ( Lahore ) 1354 Present: dr. munir ahmed mughal, J. KHALID PERVAIZ etc.-Appellants versus STATE-Respondent Criminal Appeal No. 129 of 1994, dismissed on 31.8.1999. Pakistan Penal Code, 1860 (XLV of 186G)-- —S. 302-Murder-Offence of-Conviction for-Appeal against-Relationship of witnesses with deceased makes meeting of witnesses with him as a natural phenomena-Conversation that took place between them was also natural-Accused has failed to create any dent in prosecution case-Blood has been found of human origin by erologist~No link is missing as to seeing of witnesses the accused with deceased in his car-Recovery of same car from same accused pointing out place of commission of offence of murder by accused and recovery of articles belonging to deceased and also on pointation of accused are circumstances which are not explainable on any other hypothesis then guilty of accused-Place of disposal of deadbody by throwing into a canal was additional circumstance of destroying evidence-Trial Court was justified in passing impugned conviction-Appeal dismissed. [Pp. 1360 to 1362] A to E PLD 1967 SC 217; 1968 SCMR 378 ref. Dr. Asghar Ahmed Rana, Advocate for Appellant No. 1. Kh. Basat Waheed, Advocate for Appellant No. 2. Mr. Ras Tariq Ch. , Advocate for Complainant. Mr. SyedAli Raza, Advocate for State. Dates of hearing: 22.6.1999 and 23.6.1999. judgment This judgment will dispose of Cr. A. No. 129-94 filed by the appellants Khalid Pervaiz and Muhammad Rafiq, Cr. A. No. 223-94 filed by Atta Muhammad and Cr. Rev. No. 150-94 filed by Haji Muhammad Ashraf to enhance the sentence of appellants from life imprisonment to death penalty and sentence of fine from Rs. 5,000/- to Rs. 50,000/- and to set aside the acquittal of co-accused Mst. Maryam Bibi and to convict her U/S. 302 PPC. 2. Cr. As. Nos. 129-94 and 223-94 are against the judgment dated 27.2.1994 passed by the learned Addl. Sessions Judge Okara whereby he convicted the appellants U/S. 302-B/34 PPC and sentenced them to undergo imprisonment for life and also convicted them U/S. 201/34 PPC and sentenced them to undergo 2 years R.I alongwith fine of Rs. 5.000/- and in case of default of payment of fine, to undergo further R.I for six months. 3. Briefly stated, the prosecution case is that Haji Muhammad Ashraf (PW-5), the real paternal uncle of Zafar Iqbal got entered a rapat No. 13 on 7.3.1993 at the Police Station B-Division Okara narrating that he was the resident of Sheikh Basti Okara whereas Zafar Iqbal was the resident of Bajwar Colony Okara who was Taxi Driver of a Car No. 8645/OKA Toyota Crolla Model 1984. The said Zafar Iqbal had gone to taxi stand Okara on 4.3.1993 at 6.00 a.m. but did not return to his house thereafter. The complainant alongwith the family member of Zafar Iqbal made a search of him and it transpired to them from some body that he had gone to Gujranwala alongwith a passenger who had hired a taxi from the said Zafar Iqbal. Till Thursday night he was to return back to Okara but his whereabouts were not known to the complainant as well as his family members. The complainant narrated all these facts before the police through his affidavit. 4. On 13.3.1993 Haji Muhammad Ashraf complainant filed an application Exh.PB before the ASP Okara narrating that CIA Staff Kohat had apprehended the accused alongwith his companions and the stolen Car No. 8645/OKA. After reading this news in the Daily 'Khabrain' on 11.3.1993 the complainant alongwith his relatives went to Kohat where it transpired to him that Khalid Pervaiz accused had been arrested alongwith his companions and taxi Car No. 8645/OKA. The complainant further narrated that Inspector CIA Staff Kohat told him that the accused was concealing some facts about Zafar Iqbal Taxi Driver and was also making contradictory statement. At this, on the basis of the application Exh.PB, FIR Exh:PB/l was registered U/S. 365 PPC against the accused on 13.3.1993 at 11.30 a.m. Karam Elahi SI/PW conducted investigation of this case. He went to Kohat where Khalid Pervaiz accused was already in judicial lock-up. He got him transferred to Okara. Khalid Pervaiz accused was interrogated by the police who in police custody disclosed that he alongwith his companions had abducted Zafar Iqbal taxi driver alongwith the said taxi Car and also had committed his murder by strangulation of his neck in Mohallah Faisal Town Tehsil Kamonke District Gujranwala. The accused further disclosed that after committing murder of Zafar Iqbal taxi driver he alongwith his companions threw away his dead body into the Upper Chanab Canal. Khalid Pervaiz accused pointed out the house situated in Mohallah Faisal Town Kamonke where Atta Muhammad and Mst. Maryam Bibi accused were residing as tenant. Khalid Pervaiz accused got recovered a blood stained string as weapon of offence and also a purse, photo, and currency notes amounting to Rs. 135/- owned by Zafar Iqbal deceased. The accused also pointed out the place where he had thrown the dead body of Zafar Iqbal Taxi driver. The police made a search of the dead body but it could not succeed. At this, an offence U/S. 365 PPC was amended to an offence U/S. 302/ 34/201 PPC. The investigation of this case was then entrusted upon Ahmad Nawaz Inspector who arrested Atta Muhammad, Muhammad Rafiq and Mst. Maryam Bibi remaining accused from Kohat. The 1.0 recorded the statements of all the PWs, found Khalid Pervaiz, Muhammad Rafiq, Atta Muhammad and Mst. Maryam Bibi accused guilty U/S. 302/201/34 PPC and submitted the challan in the trial Court. 5. The accused were formally charged sheeted and the prosecution examined 12 witnesses, namely, Saleem Ullah (PW-1), Qasim Ali (PW-2), Nawab (PW-3), Muhammad Ismail (PW-4), Muhammad Ashraf (PW-5), Haji Taj Muhammad (PW-6), Faiz Ahmad (PW-7), Safia Bibi (PW-8), Karam Elahi (PW-9), Mir Saeed (PW-10), Muhammad Zaman (PW-11) and Ahmad Nawaz (PW-12). Haji Muhammad Aslam, Noor Muhammad Khan, Khalid Pervaiz, Muhammad Afzal and Nazir Ahmad PWs who were cited in the challan were given up by the prosecution. 6. Site-plan of place of occurrence came on the record as Ex.PA and its duplicate as Ex.PA/1 application which was the basis of FIR Exh.PB and the formal FIR Ex.PB/1, identified purse (P-1), photo of deceased Zafar Iqbal (P-2), Currency notes (P-3, P-4 (1, 2, 3) & P-5), blood stained string (P-6),memo, of possession of the said string Ex.PC, rough sketch of place where the dead body was thrown (Ex:PG) report of Chemical Examiner (Ex:PJ), report of the Serologist (Ex:PK) were brought on the record and duly proved. 7. The accused were examined U/S. 342 Cr.P.C. who denied all the incriminating circumstances and declined to produce defence evidence or to appear U/S. 340(2) Cr.P.C. and explained that they were travelling in a wagon. Atta Muhammad and Mst. Maryam Bibi accused were going to pay homage at the shrine of homghol Sharif. "The police of Kohat checked the wagon and misbehaved Mst. Maryam Bibi and her husband. The remaining accused protested against the isconduct of the police officer. The police of Kohat arrested the accused being residents of the other Province under suspicion and due to the said grudge a false case was registered and false recovery of Car No. 8645/OKA was planted against the accused whereas, no such recovery was ever effected. The accused never travelled in the said car. Khalid Pervaiz accused also denied of all the recoveries alleged to be effected on his disclosure and specifically asserted that the same were fake and planted upon him. 8. The learned trial Court believed the last seen story of the prosecution, recovery of taxi Car, and disbelieved false implication, recovery of the articles by Khalid Pervaiz accused from the place of recovery and its being stained with human blood connecting the accused with the crime. The defence plea of the accused was declared as not believable and passed the impugned conviction and sentence. 9. The learned counsel for the appellants has submitted that it is a case of Corpus Delicti Missing and conviction in such like cases could only be awarded when the evidence or ocular testimony was absolutely of un­ impeachable character and that the evidence in the case in hand was not of such quality that it would be safely acted upon. He further submitted that much reliance has been placed on the eye-witnesses who had last seen alive Zafar Iqbal deceased with the appellants without taking into consideration that both the eye-witnesses were closely related to the deceased and were not able to give cogent reasoning for their being present at the Bus Stand Okara and thus were interested and un-natural witnesses and that the said witnesses have tried to make a wilful mprovement upon their earlier statements just to strengthen the case of the prosecution and that the factum of considerable and un-explained delay in lodging the FIR has also been ignored and that there was an after-thought version which was prepared after due deliberation and development and as such the FIR was not an FIR in the eye of law. He also submitted that non-indication in the site-plan the exact location of eye-witnesses of the last seen alive with precision reflects that they were not present there at the crucial time and that the only independent and un-interested witness Haji Muhammad Aslam who had been examined in the course of investigation by the police and whose name appeared in the list of witnesses, has not been examined by the prosecution and in this manner, adverse inference should have been drawn by the trial Court which it did not and thus the prosecution story was not liable to be accepted as true. The learned counsel further submitted that the finding of guilt against the accused could not and should not have been based on mere high probabilities and that the basis should have been the evidence produced on account of which plain inferences of guilt could be irresistably drawn. He further submitted that the alleged recoveries and circumstances as narrated are not enough without anything more to connect the appellants with the crime. Regarding the recovery of crime string, the learned counsel submitted that it was recovered at least 18 days after the occurrence and it took 7 days more for examination and that in such circumstances, the chemical examiner's report that it was human blood, was suspicious in view of probable disintegration of blood by putrifying during an extraordinary delay of 25 days. Not holding of Identification Parade and non- ealing of articles of recovery at the spot were also the factors that made the case doubtful. He further submitted that the observation of the trial Court at page 13 of the judgment is that inter se connection of the accused required elaboration in spite of the fact that the prosecution could not put it in a proper way and that there is mis-reading and non-reading of evidence by the trial Court. The learned counsel for the appellants has also urged that the circumstances negatived elements of preparation and the intention to kill and that when the trial Judge had himself come to the above conclusion, he should have charged the charge before convicting the appellants. 10. On the other hand, the learned counsel for the State has fully supported the judgment of the trial Court. 11. The learned counsel for the complainant has submitted that the reasons given by the learned Addl. Sessions Judge for not imposing the death penalty is that the appellants had no enmity prior to the occurrence against the deceased and their purpose was to snatch the car and in pursuance to this, they committed the murder and, as such, they deserve a lenient view of the Court. This view is incorrect. This could not be a reason for not awarding the maximum punishment. He further submitted that although the law has provided an alternative punishment, either is not to be passed indefinitely at the discretion of a Judge, where the accused has been found guilty of a deliberate murder, the Court must pass the sentence of death and the lesser penalty is to be awarded only when there are extenuating circumstances and the sentence consequent upon a conviction for murder must be death and that there is no ground available in the present case for not awarding the maximum punishment. He further submitted that where a murder is committed to facilitate the commission of another offence, it is very cruel and revolting and could never be a ground for taking a lenient view while passing the sentence. Learned counsel for the complainant further submitted that co-accused Mst. Maryam Bibi has been acquitted on the ground that she was abducted by Atta Muhammad accused and her case was distinguishable from the other co-accused and the possibility could not be ruled out that she might have not shared common intention. These findings are incorrect and contrary to the record as she herself in her statement U/S. 342 Cr.P.C. had stated that she is the wife of said Atta Muhammad accused and that she equally participated in the murder of Zafar Iqbal deceased. He further submitted that imposition of fine of Rs. 5,000/- to each appellant is too less for an offence of such a nature. I have given due consideration to the valuable arguments of the learned counsel for the appellants, revision petitioner/complainant and the learned counsel for the State and have gone through the record with their able assistance. 12. The last seen story of the prosecution is based on the evidence of PW-6 and PW-7. PW-6 Haji Taj Muhammad stated: "On 4.3.1993 about 7.00 a.m. I alongwith Faiz Ahmad PW went to Lari Adda Okara in order to travel to Sahiwal. Zafar Iqbal deceased stopped his Taxi Car No. 8645/OKA at the place where we were present. The Taxi Car is present outside the Court premises. All the accused present in the Court namely Khalid, Rafique, Atta Muhammad and Mst. Maryam were also sitting in the Taxi Car. We had gupshap with Zafar IqbaJ deceased for 10 minutes who told us that he was going to Gujranwala alongwith the passengers/accused. Then in our presence, Zafar Iqbal deceased departed for Gujranwala alongwith the accused. Thereafter we did not see Zafar Iqbal deceased either dead or alive." In his cross-examination, this witness deposed:-- "I am also Taxi driver and Zafar Iqbal deceased was my friend. He was also related to me. Zafar Iqbal deceased was my real maternal uncle's son. Mst. Safia PW is the widow of said Zafar Iqbal deceased. Faiz Ahmad PW is also related to Zafar Iqbal deceased 3/4 days after when Zafar Iqbal deceased met with us at Lari Adda Okara, we came to know that whereabouts of Zafar Iqbal deceased were not known I alongwith Faiz Ahmad PW had to go to Sahiwal in order to see our friend Muhammad Ismail resident of village Wakeel Wala Sahiwal at distance of 4 miles from Sahiwal. We had to request him to provide a job for us at Poswal Factory near Kasowal. I had come to the house of Faiz Ahmad PW at Qadir Colony, Okara and stayed with him during the night. The place where we were standing at bus stand Okara was in front of Zamindar Hotel. Hardly, we had reached bus stand when after 10/15 minutes Zafar Iqbal stopped his taxi car at the place where we were standing. We came from Qadir Colony on foot to Adda Okara. 15/20 minutes after the departure of Zafar Iqbal deceased we boarded a bus and reached Sahiwal When I came to know that whereabouts of Zafar Iqbal were not known I told Ashraf PW as well as widow of Zafar Iqbal deceased that I had seen Zafar Iqbal deceased in his Taxi Car alongwith accused Khalid Pervaiz, Atta Muhammad, Muhammad Rafiq and Mst. Maryam Bibi while sitting in his taxi car at Bus Stand Okara. This fact was told by me to Safia and Ashraf PWs on the 3rd or 4th day of my last meeting with Zafar Iqbal deceased at bus stand Okara." 14. Faiz Ahmad PW-7 stated:- "About 8 months ago, I alongwith Haji Taj Muhammad PW went to bus stand Okara at 7.00 a.m. Zafar Iqbal deceased Taxi Driver stopped his taxi car near to us. The accused present in the Court were also sitting in that taxi car. Khalid accused was sitting in the front seat whereas Atta Muhammad, Rafique accused were sitting on the back seat. Mst. Maryam Bibi alongwith three children was also sitting on the back seat. We had a gupshap with Zafar Iqbal deceased and the accused for 15/20 minutes and then he told us that he was going to Gujranwala alongwith the passenger-accused. Thereafter the accused departed from the said place for Gujranwala. He was not seen after than." In his cross-examination, he stated: - "The names of the accused were not mentioned by me in my statement recorded before the police as the accused were not known to me previously. Names of the accused were not known to Taj PW previously We shook hands with one accused and paid saiam to the others ................. I am the paternal uncle of Zafar Iqbal deceased. On the 3rd or 4 th day of our last meeting with Zafar Iqbal deceased we came to know that he had not yet come back to his house. The women accused was wearing chadar. All the accused were not known to us previously .............................................................................. It is incorrect that the story of wajtakar had been concocted falsely to create evidence against the accused." 15. It has been specifically questioned to the accused-appellants in their statements U/S. 342 Cr.P.C. in Question No. 2 to which they all have answered that it was incorrect. The deceased Zafar Iqbal and Haji Taj Muhammad PW-6 being related and in the same profession, the story of their meeting appears to be genuine. Faiz Ahmad PW and Haji Taj Muhammad PW have both stated that they had to go to Sahiwal in order to see their friend Muhammad Ismail. Both have stated that the purpose was to search some job in Poswal Cotton Factory. PW-6 has stated that the said Factory is near Kasowal while PW-7 has stated that it was near Chichawatni at a distance of 3 miles towards Sahiwal, which in no way is a discrepancy fatal to the prosecution. 16. Learned counsel for the appellants has very strongly urged that both the eye-witnesses were closely related to the deceased and were interested and un-natural witnesses. The argument is not convincing as the relationship of the witnesses with the deceased rather makes the meeting of the witnesses with the deceased as a natural phenomena as otherwise, there was no fun in meeting the witnesses with an unknown taxi driver. The conversation that took place between the witnesses and the deceased was also natural. 17. The next point urged by the learned counsel for the appellant is that non-indication in the site-plan the exact location of the eye-witnesses of the last seen alive with precision reflects that they were not present there at the crucial time. This argument is misconceived. There was no question of indication in the site-plan the exact location of the eye-witnesses of the last seen alive with precision as the site plan was not of the site where the eye­ witnesses had last seen alive the deceased. It was Lari Adda Okara while the

PLJ 199S Karachi 1 (DB)

Present: WAJIHUDDIN ahmed, C.J. and raja q'ureshi, J.

Miss AISHA RAHMAN-Petitioner

versus

GOVERNMENT OF SINDH through SECRETARY, MINISTRY OF HEALTH and another-Respondents

Const. Petition No. D-1569 and Civil Misc': No. 4291 of 1997, decided on 17.12.1997.

Educational Institution--

—Constitutional petition-Migration of medical student from one college to another, ordered by Government by relaxing relevant rules—Petitioner complained that although she was allowed migration to specified medical college in relaxation of rules as a special case, and even though she was attending classes in the college, yet Principal of that college was not entering her name in relevant register and other record of students-Held : Petitioner being doctor's child in category of "children of medical doctors domiciled in the Province" was occupant of reserved seat, therefore, could not take benefit of R. 2 of the Prospectus which allowed migration on specified reasons, wherein persons admitted on reserved seats were not included-Government in accordance with R. 3 of the Prospectus, although had the power to relax conditions, yet such course could be adopted in "special case"-No comments having been filed by the Government, petitioner had not come up with any justifiable reasons-­ Petition 'dismissed and Secretary Health directed to submit explanation in writing within 15 days as to what were the circumstances which compelled him for passing order of migration—Secretary Health was directed to undo the wrong which had been done and to send petitioner back to her parent institution within specified time. [P. 3] A

Mr. Nizam Ali Khan and Amir Malik, Advocates for Petitioners. Mr. Muhammad Sarwar Khan, Addl. A.G. (Sindh). Date of hearing: 17.12.1997.

order

On 10.10.1997, while issuing pre-admission notices, a Division Bench, presided over by one of us, had recorded the following order--

"Reliance is placed on an order, dated 15.9.1996 passed by the Government of Sindh in its Health Department wherby the petitioner, a girl student of Sindh Medical College, Karachi, was allowed migration to the Dow Medical College, Karachi, in relaxation of rules and as a special case. The petitioner's grievance is that even though the petitioner is attending class in Dow Medical College, the Principal of such College is not entering her name in the relevant register and other record of students admitted to the College.

Our concern about orders passed as special cases and in relaxation of rules by the Government is growing by the day. Admissions in Medical Colleges of Sindh, it is a known fact, are allowed in the applicable order of merit in such a way that better students are admitted and allocated in Colleges, where facilities are recognized to be of a higher order. Where an order of migration, as in this case, appears to bypass such allocations on the basis of merit, there must be good and manifest reasons in the order itself, which may be cited in justification of the order. None is reflected in the order upon which the petitioner relies. Since, however, the petitioner is a student and a female, we would still like to verify from the Government of Sindh as to what were the underlying reasons, if any, for passing the order, which allegedly is not being given effect to by the Dow Medical College. For such purpose, notices would go only to the Advocate-General, Sindh and to the Secretary, Ministry of Health for submission of comments within 10 days. Put up after due service at the level of the OSD is effected."

Today, the learned Additional Advocate-General Sindh, while no comments have been filed, invokes the following rules in the Rules for Migration appearing in the Prospectus for Medical Colleges of Sindh, 1996-97:-

"The following categories of students shall not be allowed migration:-

(i) Those who are admitted against reserved seats.

(ii) Those who are admitted on the basis of merit-cum-choice in the colleges not tagged to their district of domicile.

(iii) Those who are admitted against reciprocal seats in colleges outside the Province of their domicile, including those admitted in F. J.M.C., Lahore.

(iv) Those who are admitted on nomiaation by Chief Minister in previous sessions.

(v) Those who have not yet passed the First Professional M.B., B.S. examination.

1. Those students who do not fall in the above categories shall be allowed migration only:

(i) On mutual exchange basis between students of same class

(ii) If the Principal of the recipient college agrees to accept him and issues a no-objection certificate to this effect.

(iii) Only once during the entire pc-iicd of medical education of a student.

1. The Government may, however, relax the above conditions'in some special cases/'

It is an admitted position that the petitioner being a doctor's child in the'category, "children of Medical Doctors domiciled in the Province" was the occupant of a reserved seat and, therefore, could not take benefit of Rule 2 above. It is also an admitted position that the Principal of Dow Medical College, where the petitioner was transferred under the orders of the Secretary Health, had never agreed to accept the petitioner, let alone issuing a no-objection certificate to such effect. At this stage, it is argued that under the quoted Rule 3, the Government has the power to relax the conditions in

the two preceding rules but that, let it be noted, can be done only a "special case". "Special case" here patently signifies a hardship case or one where just circumstances exist for deviating from the rules. In no attending facts a "special case" would signify the case of a well-connected person, benefitting solely on account of such corrections. Since no comments, in spite of orders, have been filed, we are constrained to draw a conclusion, which cannot be favourable to the petitioner, all the moreso because the petitioner herself also has not come up with any justifiable reason. The petition, therefore, must fail and is dismissed.

At the same time, the then incumbent of the Office of Secretary Health would submit an explanation in writing as to what were the circumstances which compelled him for passing the abovesaid order of transfer, such being submitted within 15 days' time.

At this stage, Mr. Nizam All Khari has pointed out that because the petitioner is already taking classes at the Dow Medical College in virtue of the order here discussed, she would be stranded there and may not be able to go back and continue her studies even in Sindh Medical College from where she has purportedly migrated. Normally, in such cases some people must be exposed to suffer the consequences of their manifestly over-bearing conduct. However, the petitioner is a female and it is not unlikely that she alone was not responsible for what came to transpire. We would, therefore, direct the Secretaiy Health to Undo the wrong which has been done in this case and to send the petitioner back to her parent institution, such being done within a week's time. '

Petition disposed of.

(K.K.F.)

Order accordingly.

PLJ 1999 Karachi 4

Present:rana bhagwan das, J. Messrs KHAN BROTHERS AND ASSOCIATES-Claimant

versus

DIRECTOR-GENERAL FOOD, GOVERNMENT OF PAKISTAN-Defaulter

Suit No. 1053 of 1991, decided on 12.5.1998.

Arbitration Act, 1940 (X of 1940)--

—-Ss. 3, 14, 28, 30 & SB-Arbitration award-Objections against-Court's duty while hearing such objections-Court while hearing objections could not undeitake reappraisal of evidence to discover error or infirmity therein—Error or infirmity in award which would render the same invalid must appear on the face of award and should be discovered by reading the same—Where reasons recorded by Arbitrator were impugned as perverse, such perversity in reasoning must be substantiated with reference to material considered by Arbitrator in award-Court while hearing objections against award was not. legally competent to reappraise award or to assess and examine, evidence-to'determine whether another possible conclusion could be drawn—Award was not vitiated for having been made long after expiiy of four months—Court was empowered to enlarge time for making award irrespective of fact whether time had expired or not and whether award had been made or not-Time for making award could be extended on oral application of parties or on Court's own accord-S. 3, of Arbitration Act, 1940, postulates that Arbitrator would make award within 4 months after entering on reference or after having been called upon to act by notice in writing from any party to arbitration agreement or within such extended time as Court might allow-Where after expiiy of four months, parties had submitted themselves to jurisdiction of Arbitrator and had taken part, in proceedings enabling Arbitrator to make award, he could not; be deemed to have acted without jurisdiction-Conduct and participation in proceedings by respondent would clearly reflect that he had consented to continuation of proceedings even after expiiy of 4 months' period which was deemed to-have been extended by consent of parties—Award was, thus, not vitiated by reason of making it beyond time fixed by law.

[Pp. 9, 10, 12 & 13] A, B, C, D, E, F & G

AIR 1949 All. 399; AIR 1962 SC 78; 1988 CLC 564; PLD 1955 Sindh 224; 50 1C 52; AIR 1961 All. 180; PLD 1967 Lah. 204; 1996 CLC 344; PLJ 1997 S 47 and PLD 1990 SC 359 ref.

Mr. Izhar Alarn Farooqui, Advocate for the Claimant. Syed Tariq Ali, Standing Counsel for the Defaulter. Date of hearing: 27.3.1998.

judgment

Sole Arbitrator appointed by the parlies Mr. S.A. Ni/.ami, the then Additional Secretary, Ministry of Law and Justice, Government of Pakistan has filed his award, dated 27th July, 1991 in this Court under the provisions of Section 14(2) of the Arbitration Act, 1940 read with Rule 282 of the Sindh Chief Court (Original Side) Rules. Office registered such award as suit and issued notice to the parties to file objection within thirty (30) days if any. Pursuant to such notice respondent Director-General of Food has filed objections under sections 30 and 33 of the Arbitration Act to the award.

1. Precisely the objections taken to the award are that the Arbitrator misconducted himself by obtaining excessive extra fee from the claimant by way of travelling expenses to the tune of Rs.60,000 when agreed terms of fee were that he would decide the matter for Rs.2,000 only; that travelling expenses were not payable since the Arbitrator was in Karachi and he could have easily disposed of the matter during such times when in Karachi; that the Arbitrator made the award taking into consideration the civil disturbances and strikes in the city of Karachi from 14-12-1986; that he misconducted himself by ignoring the evidence of the respondent to ttie effect that Port Qasim Authority/Cargo Handling Contractor could not maintain discharge rate as required under clause 2(b)-of the contract and the vessel including lighter vessel had gone under demurrage due to slow discharge; that had the Port Qasim Authority maintained the discharge rate as per contractual obligation, discharge from the vessel would have been completed on 13-2-1986 (wrongly stated instead of 13-12-1986) and in case of lighter vessel on 8-12-1986. In support of these objections, respondent has furnished the details of actual discharge of imported wheat from the vessel date-wise of both mother and lighter vessel in the memo, of objections, adding that Port Qasim Authority/Cargo Handing Contractor is responsible for payment of demurrage on account of slow discharge. It is furthermore, urged that during the period of civil disturbances and strikes work was carried out at Port Qasim in the normal course and there was no stoppage of work. It is averred that the Sole Arbitrator ignored the fact that the contract for discharge and handling of consignment of wheat was with the Port Qasim Authority while the claimant acted as its sub-contractor with whom the respondent had no contractual obligation. A legal objection has also been raised to the effect that the award is bad and invalid inasmuch as it was passed beyond four months after the reference was entered into by the parties even though the respondent observed that no extension of time had .been obtained.

2. On behalf of the claimant firm a counter-affidavit has been filed controverting various objections raised by the respondent. According to the claimant, the Arbitrator was posted at Islamabad during the period of his appointment as Arbitrator and his services were required from Islamabad therefore, he had to come to Karachi on each date of hearing. As such visits could not be and were not official visits, he had to be paid T.A. because he was legally entitled to it which were to be equally shared by both the parties. With regard to the slow discharge of consignment, claimants assert that it was mainly on account of breach of principle of shipping laws by the ship owners in thatc they failed to provide vessel of the nature required to carry cargo of the nature, namely the Bulker. Indeed a tanker ship was provided and it was impracticable to maintain the discharge rate according to the contract. Respondent should have claimed damages from the ship owners who committed breach of accepted principle of shipping laws. The claimant added that respondent chose to pay to •- the ship owners at their own risk for which they were not entitled at all. Advening to the plea relating to the disturbances and strikes, the claimant urged that they could have abandoned the discharge as force majeure clause was applicable but in order to assist the Government to face the difficult position of shortage of wheat, they carried out the discharge operation though at the reduced rate. With regard to the time limit for making an award, claimant took the position that the award was made according to the consented time extension by the parties as they continued to appear before the Arbitrator beyond four months and at no stage they raised any objection to the continuation of proceedings. Since the respondent had himself appointed the Arbitrator vide letter, dated 14th October, 1990 after obtaining consent from the Port Qasim Authority and the claimant, appearance of the parties before the Arbitrator without any objection as to his authority and jurisdiction to proceed with arbitration, objection raised at this stage is frivolous and without any basis.

3. I have had the privilege of hearing learned counsel for the parties at quite some length and examining the award as well as their respective contentions.

4. A glance at the award reveals that the Director-General Food, Government of Pakistan through his letter, dated 14th October, 1990 appointed the Sole Arbitrator with the approval of the competent authority and that of Port Qasim Authority as well as Cargo Handling Contractor namely Khan/Brothers and Associates. The contract between the respondent on the one hand and, Port Qasim Authority on the other hand related to the discharge and handling of imported wheat from vessel. On the part of Port Qasim Authority they appointed claimant Khan Brothers & Associates as Cargo Handling Contractor. The vessel anchored at the Port Qasim Authority on 16th February, 1986 with 56,000 metric tons of wheat. The agreed discharge rate was 3000 metric tons per working day in respect of mother vessel and 1500 metric tons for lighter vessel. It appears that on arrival of the vessel it lightened a quantity of 7,150 metric tons in lighter vessel Talia which was also on despatch and demurrage terms. The berth was provided to mother vessel on 27th November, 1986 whereas lighter vessel was provided berth on 5th December, 1986. It is not disputed that mother vessel as well as the lighter vessel went into demurrage. According to the claimant, the low rate of discharge was for the reasons beyond their power and control while the respondent held them responsible for demurrage and deducted a sum of US $ 27,343.75. Claimant advanced their claim for refund of the said amount before the Arbitrator on the ground that deduction was unlawful, unjust and against the terms of the contract; that the contract contained force majeure clause in that there was a port strike and curfew in the city during the relevant period; that the consignee was unable to take the delivery in that the booking in the railways for transport of the cargo was cancelled due to strikes and disturbances and lastly in terms of the arrangements and according to the accepted normal practice, the vessel for carriage of imported wheat had to be a bulker but in the case in hand the vessel Beaver State was a tanker which could not have maintained the discharge rate.

5. Respondent resisted the claim before the Sole Arbitrator who after taking into account the attending facts and circumstances of the dispute took the view that the claimant could not be held liable to pay the demurrage on account of low rate of discharge which was not resisted by the respondent who accepted the demurrage charges and paid the same to the ship-owners which in fact was not due and payable. Indeed respondent would have invoked the clause of force majeure against the claim of ship-owners. Accordingly Arbitrator allowed the claim for refund of the deduction made by the respondent from their bills as prayed alongwith interest at the prevailing Bank rate on the deducted amount of US S 27,343.75 if the said amount be not paid within one month from the date of award. He also awarded costs of arbitration including his fee, counsel fee etc. in the sum of Rs.40,000.

6. Adverting to the first objection of the respondent that the Arbitrator misconducted himself by receiving extra fee from the claimant by way of travelling expenses to the tune of Rs.60,000, learned counsel for the claimant explained that in fact a sum of Rs. 17,500 was paid to the Arbitrator on his direction in \writing towards his passage from Islamabad to Karachi and his return journey. Indeed this question was raised before late Nizam Ahmed, J. who heard this case in 1993. From the record, however, it transpires that there is no substance in the objection of the respondent to the effect that a sum of Rs.60,000 was received by the Arbitrator from the claimant towards his travelling expenses from Islamabad to Karachi and his return journey. Apparently the Sole Arbitrator was posted at Islamabad and he could not have visited Karachi on each occasion on official account and had to be reimbursed some of visits for conducting arbitration proceedings at Karachi at the behest of the panics. In any event the receipt of Rs.17,500 by the Arbitrator from the claimant towards his travelling expenses does not militate against his bona fides and it cannot be held by any stretch of reasoning that on this account he misconducted himself vitiating the arbitration proceedings.

7. Revening to second objection taken by the respondent that the Arbitrator committed legal misconduct by not taking into consideration the evidence that there were no civil disturbances and strike at Port Qasim though such disturbances took place in the city of Karachi, the argument again is misplaced and untenable. While it is not disputed that there were civil disturbances, riots and imposition of curfew in parts of Karachi city, one cannot lose sight of the facts that the transport and labour for handling and discharge of cargo from the vessel had to be arranged from the city and could not be readily available at the port at all times. Indeed city of Karachi suffered worst ethnic disturbances and increasingly abnormal law and order situation and the claimant could seek refuge behind force majeure clause contained in the contract with the Ministry of Food and Agriculture but instead of taking such legal plea claimant managed the discharge of cargo and handling thereof by detaining labour, mechanical and skilled staff at Port Qasim situated at a distance of almost 35 kilometres from the city. Learned Arbitrator has dealt with this aspect of the case in elaborate manner and this Court during the course of hearing objections against the award is not legally competent to reappraise the award or to assess and examine evidence with a view whether another possible conclusion could be drawn in the circumstances.

8. Aforesaid discussion brings us to another limb of objection resulting in payment by respondent demurrage charges to the ship owners owing to slow rate of discharge. In the contract with the ship owners admittedly there was no mention of the type of the vessel to be employed in the shipment of wheat. It is however, well-settled principle of law and shipping practice that the vessel to be provided for shipment of cargo like wheat must be a bulker while in the matter of transport of liquid consignment a tanker is ordinarily employed. In the case of cargo such as wheat a tanker could not be employed as required by customary law and thus, the rate of discharge as stipulated in the contract could not be legitimately achieved by the claimant. In the absence of any express stipulation in the clearing and forwarding contract, clearing and handling agents were justified to assume that vessel for shipment of cargo like wheat shall be bulker and the agreement containing the rate of discharge is required to be weighed in the light of this legitimate expectancy. Obviously in the case in hand, instead of bulker, the vessel provided was in the nature of tanker which could not be legally expected to keep pace with the rate of discharge in contrast to the discharge from a bulker. Be that as it may, legally speaking Cargo Handling Contractor cannot be held responsible for this deviation from the general and long-standing established practice. The rate of discharge being slow as compared to the stipulated rate, it can hardly be justified that the Cargo Handling Contractor should be saddled with penalty by way of demurrage charges paid by the respondent to the shipper. Again at the cost of repetition, it may be observed that the Arbitrator has taken this aspect of the case into consideration and applied his mind to the pros and cons of this issue expressing the view that the respondent did not resist the claim on account of demurrage charges and felt ever willing to disburse the same without realizing that in all probability it was not the liability of the respondent. In any event, and as rightly observed by the Arbitrator, claimant being not a party to the settlement of demurrage charges between respondent and the ship owners, deduction of demurrage charges from their bills were wholly uncalled for and without any lawful authority.

9. It is well-settled law that while examining the validity of an award, the Court does not act as a Court of appeal. Therefore, a Court hearing objections to the award cannot undertake reappraisal of evidence recorded by the Arbitrator in order to discover the error or infirmity in the award. Indeed, the error or infirmity in the award which renders the award invalid must appear on the face of the award and should be discoverable by reading the award itself. Where reasons recorded by the Arbitrator are impugned as perverse, the perversity in the reasoning must be substantiated with reference to the material considered by the Arbitrator in the award.

10. Last but not the least objection taken by the respondent is to the effect that he had no contractual obligation towards the claimant as the contract for discharge and handling of the cargo was with the Port Qasim Authority. From perusal of the award, it seems that this preliminary objection was taken before the Arbitrator as well which did not find favour with him. The main reason which heavily weighed with the Arbitrator was that in the first instance respondent by his letter, dated 14th October, 1990 had appointed him'to settle the dispute between him and the claimant. The letter was treated as arbitration agreement in terms of Arbitration Act, 1940 which was duly accepted by the panics willingly and voluntarily. The factual position of the matter is that throughout the proceedings before the Arbitrator, Port Qasim Authority had been pursuing and supporting the "claimant's case who were duly appointed as authorised agent by Port Qasim Authority and were definitely a party to the arbitration agreement as contained in the letter of reference. The objection on the face of it, appears to be frivolous and without any legal or factual basis. The claimant having actively participated in the discharge and handling of the cargo on account of Port Qasim Authority it is not open to the respondent to turn round and blow hot and cold at the same time. Submission in this behalf is, thus, devoid of any force and must be repelled.

11. Lastly learned Standing Counsel contended with vehemence that the award is vitiated by reason of the fact that it was made long after expiry of four months which is the time stipulated in law for making the award. It may be pertinent to point out that the proceedings before the Arbitrator took place between 31-10-1990 and 7-7-1991 whereas the award was announced on 27-7-1991. A reference to section 28 of the Arbitration Act in this behalf would be relevant which enables the Court to enlarge time for making award irrespective of the fact whether the time has expired or not and whether the award has been made or not. Under this provision of law, the Court can enlarge time for making an award either before or even after the time for making an award has expired. The power is permissive and discretionary and it negates the right to extend the time by agreement by the parties to the arbitration proceedings. However, the discretion is to be exercised only when cogent reasons are available including all circumstances surrounding the making of award. There is nothing in this section to suggest that an application for I enlargement of time should be expressly made. Time may be granted even on oral application or on Court's own accord. There is plethora of case-law on this subject and there is consensus of opinion that if the parties after expiry of four months submit themselves to the jurisdiction of the Arbitrator and take part in the proceedings enabling the Arbitrator to make an award then such party cannot say that the Arbitrator acted without jurisdiction. It is further held that in such situations principle of waiver and estoppel would apply with full force In Province of Sindh v. Haji Khan (PLD 1983 Karachi 621) late Naimuddin, J. (as he then was) held that although the award was given beyond time fixed by the Court but the said time was impliedly extended by the Court 5 under section 28 which extension was neither arbitrary nor capricious.Likewise in Amarnath v. Uggar Sen (AIR 1949 Allahabad 399) a Division Bench took the view that section 28 of the Arbitration Act gives •unrestricted power to Court to enlarge the time for making award irrespective of the fact whether the time for making award has expired or not. In Hari Shankar Lai v. Shamboonath (AIR 1962 SC 78) it was held that after expiry of four months Arbitrators become funcrus officio unless the period is extended by the Court. It was further held hat such time can be extended by Court even after making award.

A reference may-also be made to the case reported as Elite Builders and Developers v. Nooruddin Hemani (1988 CLC 564) in which it was held by this Court that Court can extend time for making an award by an express order and by implication as well.

There is a classic judgment of the erstwhile Sindh Chief Court reported as Tayab Sharif v. Kasam Adamji (PLD 1955 Sindh 224) authored by late Inamullah, J. Learned Judge quoted with approval the view taken in Bibi Patto Kumari Saheba v. Upendra Nath Ghosh 50 Indian Cases 52 as under:"Where parties attend and recognise that the arbitrator has jurisdiction to continue the arbitration, even though the time for making the award has expired, they are estopped by their conduct from seeking to impugn the award on the ground that it was invalid by reason of being filed out time."

Learned Judge after an elaborate and precise discussion with regard to the time limit stipulated under para. 3 Schedule I of the Arbitration Act held that if an award is made beyond four months it is not void as such it is only voidable. He further observed that there is a presumption that whatever the Arbitrators have done they have done bona fide and in good faith unless otherwise proved.

In Shamboonath v. Surja Devi AIR 1961 All. 180 Allahabad High Court expressed the view that a party to an arbitration agreement who voluntarily takes part in the arbitration proceedings after the expiry of the period of four months will be deemed to have waived the implied condition as to time.

This question was the subject-matter of Letters Patent Appeal before a Division Bench of Lahore High Court in Ghulam Mohyuddin v. Federation of Pakistan PLD 1967 Lah. 204 in which the Court after a review of an earlier judgment held that the award cannot become invalid due to mere fact that it was not given within four months, the reasons being that the appellant did not raise this objection at the proper time and rather acquiesced in the continuance of the Arbitration proceedings learned Judges of the Lahore High Court observed that if the terms of an agreement can be changed by the panics by their mutual consent (as for example by writing) then it is obv-ous that the terms about time matter could also be changed with their consent implied from their conduct. Aforesaid view was also affirmed by Rasheed Ahmed Razvi, J. in Engro Chemical Pak. Limited v. Trading Corporation of Pakistan 1996 CLC 344.

Lastly this question came up for consideration before their lordships of the Supreme Court of Pakistan in Joint Venture KG/Rist v. Federation of Pakistan (PLD 1996 SC 108) laying down the principles to test the validity of an . award. Ratio decidendi of the case seems to be that the Court while examining the validity of an award does not act as a Court of appeal, thus, a Court hearing objections to the award cannot undertake reappraisal of evidence recorded by the Arbitrator.

1. Period for giving the award, generally, speaking is not incorporated in an arbitration agreement. It is, however, by dint of the provisions contained in section 3 of the Arbitration Act postulating that an arbitration agreement, unless a different intention is expressed therein, shall be deemed to include the provisions set out in the First Schedule in so far as they are applicable to the reference that the provisions contained in para. 3 of the First Schedule are generally invoked 'for ascertaining the period for making an award. This paragraph reads as under:

"The arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow."

1. The period is to be calculated from the day when the Arbitrators entered on the reference or when qalled upon by any party to act by a notice in writing. It further appears that in computing this period for making the award the first day is to be excluded but the last day is to be included. There is consensus of opinion that if after the expiry of four months parties submit themselves to the jurisdiction of the Arbitrator and take part in proceedings enabling the Arbitrator to pass an award, it cannot be said that they acted without jurisdiction. To my mind in such a contingency the principle of waiver and estoppel would be fully attracted to the circumstances. It is, thus, clear and the position of law appears to be that the parties are free to enlarge the time for making the award with their mutual consent as by consent of all the parties a term can be incorporated in the arbitration agreement giving powers to the Arbitrator to enlarge the time for making the award. Indeed by condition No.3 in the First Schedule, statutorily an implied term is incorporated in the agreement that the award shall be made within four months after entering upon the reference. By reason of this legal proposition, this term is to be taken an integral part of arbitration agreement and is always subject to alteration with the consent of the parties like any other term of a contract. If that were not the intention of the Legislature, Section 28(2) would not make valid a provision in the arbitration agreement empowering the Arbitrator or Arbitrators to enlarge the time for making the award with the consent of the parties.

2. Examination of the proceedings before the Arbitrator clearly reflects that throughout the proceedings not only a representative of the respondent alongwith Mr. Akhlaq Ahmed Siddiqui, Advocate appeared before the Arbitrator they willingly took active part in the proceedings without any protest or objection. The conduct and participation in the roceedings by the respondent clearly reflects that the respondent had consented to the continuation of the proceedings even after the expiry of four months' period which is deemed to have been extended by consent of the parties. I am, therefore, of the considered view that it is too late in the day to urge at this stage of the case that the award is vitiated by reason of making it beyond the time fixed by law. In fact the time stood impliedly enlarged by consent of the parties and respondent is legally estopped from taking a plea to the contraiy. Reliance is placed on WAPDA v Khanzada Muhammad Abdul Haq Khan (PLD 1990 SC 359).

3. For the aforesaid facts and reasons, objections taken to the award are without any merit and substance. Accordingly award is made rule

of the Court.

(K.K.F.)Award'made rule of Court.

PLJ 1999 Karachi 13 (DB)

Present: ALI MUHAMMAD BALOCH AND ABDUL GHANI SHAIKH, JJ. RUGHUMAL-Petitioner

versus

GOVERNMENT OF PAKISTAN and others-Respondents , Const. Petition No. D-784 arid Civil Misc. Application No. 1704 of 1997, decided on 25.2.1998.

Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

—S. 16—Constitutional petition under Article 199 of Constitution of Pakistan 1973--Efficacious alternate remedy available—Non-availing--Effect-Petitioner being tenant of evacuee trust property sought permission to cany out minor repairs in property under his tenancy which was granted-Permission so granted to tenant was subsequently withdrawn-Status-Alternate remedies being available to petitioner were effective and efficacious could not be invoked Constitutional jurisdiction of High Court-Constitutional petition was not maintainable-Petition dismissed. [P. 17] A

Mr, David Lawrance, Advocate for Petitioner.

Mr. Hadi Bux Soomro, Advocate for Respondent No. 3

Shaikh Abdul Ghani, D.A.G.

Date of hearing: 25.2.1998.

judgment

This Constitutional petition has been filed by one Rughumal a tenant in respect of a property measuring 997 sq. ft. out of City Survey No. 2224-25 situated in Rohri District Sukkur. This property belongs to the respondents. The petitioner had entered into possession as tenant and had sought permission for carrying out minor repairs of the said property by erecting a compound wall surrounding it to save encroachment. Such permission was allowed to the petitioner by a letter, dated 14.6.1997 addressed to the petitioner by the Respondent No. 3. The letter contained the terms and conditions under which he was permitted to carry out the said minor repairs. It is necessaiy to reproduce the contentions of the letter for the decision of this Constitutional petition :

Government of Pakistan .

Office of the Asstt; Administrator, Phone: 26400

Evacuee Trust Property Grains: ETPO

(Sukkur Division)'

Near

Mukhtiarkar Office Minara Road, Sukkur. Dated: 14.6.1997.

To, Mr. Rughumal N. Doda, Tenant E.T.P. No. B-2224-25, (Portion), Situated in vicinity, Maternity-Home, (North),. Massan Road, Rohri.

Subject: PERMISSION FOR MINOR REPAIR OF EVACUEE TRUST PROPERTY BEARING CITY

SURVEY NO. 2224-25 (PORTION) LYING DEMOLISHED/DILAPIDATED CONDITION SITUATED IN VICINITY MATERNITY HOME. HASSAN ROAD. RQHRI BY ERECTING ENCIRCLED PROTECTION COMPOUND-WALL IN ITS SURROUNDINGS TO SAVE ANY ENCROACHMENT.

Reference your application, dated 10.6.1997, on the above subject.

You are hereby allowed to carry out the minor repair of the Evacuee Trust Property bearing City Survey No. 2224-25, (portion/Open space), situated at Rohri, demolished by drastic rains/flood attacks having in our physical possession, Massan Road, Rohri, to erect encircled compound-wall in it's surroundings just to save any encroachment over it, on the following terms and conditions:-

(1) That all the expenditure so incurred on minor repair shall be borne by you.

(2) That you shall not make any addition/alteration in the portion except allowed as above.

(3) That you shall not claim the expenditure of repair from the department in any manner.

(4) That you shall clear all the dues of rent if any outstanding against you.

(5) That the permission is valid for the six months.

Sd/-

(Rafique Ahmed)

Assistant Administrator, Evacuee Trust Property, Board, Sukkur."

Later on, it appears that the permission for carrying out the repairs to the dilapidated property was cancelled by the Respondent No. 3 by another letter, dated 15.7,1997. The said letter is also reproduced as under:-

Government of Pakistan

Office of the Asstt; Administrator, Phone: 26400

Evacuee Trust Property Grams: ETPO

(Sukkur Division)

NearMukhtiarkar Office inara Road,

Sukkur. Dated: 15.7.1997.

To, Mr. Rughurnal S/o. N. Doda,Resident of Rohri.

^

Subject: PERMISSION FOR MINOR OF B-2224-2&P) SITUATED AT ROHRI.

Reference: This office Letter No. ETP/SUK/508, dated 14.6.1997. '

• The permission for minor repair, issued by this office under reference is hereby cancelled.

Sd/-:

(RAFIQUE AHMED)_________________ , Assistant Administrator."

On receiving the Letter, dated 15.7.1997 the petitioner has'filed this Constitutional Petition seeking the following reliefs:-

(a) to declare that the Letter bearing No. ETP/SUK/646 dated 15.7.1997 whereby Respondent No. 3 has cancelled the permission for carrying out, repairing of the Evacuee Trust Property in possession of the Petitioner, vide Letter No. ETP/SUK/508, dated 14.6.1997 is illegal, unlawful, ab initio void, against the principles of Natural Justice and of no legal effect in the eye of law.

(b) To uphold/maintain Letter No. ETP/SUK/508, dated 14.6.1997, where under permission is granted to the petitioner by the Respondent No. 3.

(c) To grant any other relief which this Honourable Court deems fit and proper."

The petitioner has challenged the letter cancelling the permission of minor repairs on the ground that since he was paying monthly rents and the property was in dilapidated condition, with its boundary wall having fallen down, and he had already sought permission from Municipal Committee Rohri for carrying out the repairs and had paid a fee of Rs. 100, the cancelling of permission without issuing any show-cause notice was illegal and unlawful.

Notice was ordered to respondents and Deputy Attorney-General and comirfents were called from the respondents. In their comments the respondents took the stand that the petitioner had violated the terms and conditions of the permission letter inasmuch as he started construction of a shop instead of carrying out minor repairs. It was also contended in the comments that cancellation of the permission, was communicated by Respondent No. 3 to the petitioner, but he did not challenge the said order in any appeal or revision although he was entitled to approach the Administrator Evacuee Trust Property, Southern Zone, Karachi under Section 16 of the Act XIII of 1975. He had also the remedy of filing a revision before the Chairman Evacuee Trust Property Board, Government of Pakistan, Lahore as laid down in the above cited Act but the petitioner erroneously has directly come to this Court without availing the remedies available to him.

No rejoinder was filed by the petitioner nor the above contentions of respondents were rebutted by any affidavit by the petitioners. Since the remedies available to the petitioner in our view are efficacious and proper, the petitioner ought to have availed the same before coming to this Court, under Article 199 of the Constitution of Pakistan, 1973. We have no reason to disbelieve that the petitioner had attempted to construct a shop instead of a compound wall as contended by the respondents. Consequently, we find that this petition has not been well founded and has been filed prematurely. The petitioner is free to seek his remedies of appeal and revision is still available to him under the law. We therefore, see no reason to admit this petition for regular hearing and we dismiss the same in limine.

1. In view of the above order this application has become infructuous and is dismissed.

(K.K.F.) Petition dismissed.

PLJ 1999 Karachi 17

Present: RANA BHAGWAN das, J. ABDUL KHALIQ-Petitioner

Versus

ABANDONED PROPERTIES ORGANIZATION-Objector

Judicial Misc. No. 10 of 1985, decided on 25.3.1998

(i) Abandoned Properties (Management) Act, 1975 (XX of 1975)--

—S. 3-Companies Ordinance (XLVII of 1984), S. 444--Winding up of company-Majority shares of company were owned by Pakistani shareholders, while rest of shares vested in Administrator, Abandoned Properties Organization-Objection relating to bifurcation of such shares-Official Liquidator appointed by Court-Pakistani shareholders possessing and owning absolute majority in shareholding of company could not be made to suffer adversely on account of fact that minority shareholds belonged to Abandoned Properties Organization-Besides, petitioner and other shareholders being creditor of company, same was liable to be wound up-For winding up of company it would suffice to show that the company had some assets within jurisdiction of Court-­Such assets were not required to be of commercial nature and could be of any nature-Winding up of company, in circumstances, would be just and equitable-Company wound up with direction to Official Assignee to take over affairs of the company as Official Liquidator.

[Pp. 23 & 24] D, E & F

(ii) Administrations of Justice-

--,--Mere technicalities could not thwart, 'grant of rights to parties if otherwise due under law. [P. 22] B

(Hi)Companies Ordinance, 1984 (XLVII of 1984)--

—-Ss. 444 & 508-Abandoned Properties (Management) Act (XX of 1975), S. 3-Application for winding up of company-Maintainability-Question 6f--In view of Notification issued by Government exempting proportion of properties of said company belonging to Pakistani shareholders from operation of provisions of Abandoned •..Properties (Management) Act, 1975, with retrospective effect, winding up petition on the face of it would be maintainable and could not be dismissed on that score alone-Application for winding up could be maintained before High Court under S. 44, Companies Ordinance, 1984 after repeal of Companies Ordinance. -

" [Pp. 22 & 23] A & C PLD 1983 Kar. 176 and1986 CLC 2933 ref.

Mr. Muhammad All Sayeed, Advocate for Petitioner. Chaudhry Muhammad Jamil, Advocate for the Objector. Dates of hearing: 24.2.1998 and 3.3.1998.

judgment

This is a winding up petition under Section 271 of the Companies Act, 1913 corresponding to Section 444 of the Companies Ordinance in respect of Amin Jute Mills Limited (hereinafter referred to as the said company) incorporated in Chittagong on 28.5.1953 with its registered office at Chiltagong and principal place of Business at Building No. 1-B, Slate Life Square, LI. Chundrigar Road, Karachi, under the provisions of the Companies Act, 1913. Authorised share capital of the company was Rs. 2 crores divided into 20 lac shares of Rs. 10 each. Petitioner was elected to the Board of Directors on competition in 1960 and continued to be a Director until the fall of Dacca on 16-12-1971. .

1. It is the case of the petitioner that at the relevant time it was the policy of the Government of Pakistan to encourage West Pakistani businessmen to setup ndustries in the former Province of East Pakistan for the economic upliftment of that Province. Participation of Government of Pakistan in the company is reflected in the circumstance that 25 % of the share and four of the subscribers to the Memorandum of Association represented the Pakistan Industrial Development Corporation. In pursuance of the' said policy the company was incorporated in Chittagong by promoters all of whom were West Pakistanis. Majority of the subscribers to the Memorandum and shareholders of the company were West Pakistanis and some of them are common household names associated with the creation of Pakistan and its survival and development in early years. The company expanded its range of activities over a number of years and invested in projects in West Pakistan as well as taking part in International trade. Indeed the company was one of a Group of concerns belonging to Amin Group, which is a prominent family of West Pakistan Enterprises and Industrialization. Since the inception of the company paid up and subscribed share capital of the company increased to Rs.323.18 lacs. While the PIDC disinvested its l/4th share in the company, the state owned/managed Pakistani banks and financial institutions had acquired more than l/3rd share out of the above-said capital. In December, 1971 out of eight Directors in the Board of Directors only Mr. A. Sattar was the Director who was the resident of former East Pakistan, which subsequently emerged as Bangladesh whereas all other seven Directors are Pakistani nationals. After the cesession of East Pakistan in December, 1971, the said company advertised in West Pakistan newspapers that shareholders of the company residing in Pakistan should send details of their shareholdings in the said company and accordingly shareholders, who notified the company of their addresses and shareholdings owned 27,00,000 shares out of total number of 32,31,800 shares. It is averred in the petition that for the year 1970 the company declared a cash dividend at the rate of 10% and a dividend in specie amounting to Rs. 16,15,896. Ratio of one share of Amin Fabrics Limited for every 20 shares of Amin Jute Mills Limited held by shareholders was duly notified by Karachi Stock Exchange. According to the petitioner, while the said cash dividend was paid dividend in specie was never distributed which constitutes a debt owed by the company to its shareholders. Other ground urged for winding up of the company is that the petitioner as well as other shareholders of the company are also creditors of the company.

2. According to the petitioner, on 29th May, 1975 an extraordinary general meeting of the said company and its shareholders was held in which Directors of the said company were elected as authorised representatives of the shareholders and it was resolved to give an authorised representative so elected full authority to take such measures as he considers necessary to safeguard the interests and realise the assets of the company in Pakistan and abroad so that the interests of the shareholders may be protected. It was further resolved unanimously to authorise the Directors to re-construct the Share Register of the said company.

3. According to the petitioner, after dismemberment of Pakistan, Government of Bangladesh issued Bangladesh Abandoned Property (Control) Management and Disposal Order, 1972, which declared that all properties owned by specified persons, who were citizens of State at war with Bangladesh after March 25, 1971 were confiscated by the Government of Bangladesh without the payment of any compensation. Under the said Order a company with more than 50% of share capital owned by Pakistani nationals was to be treated as a specified person and its property subject to seizure. Furthermore, with effect from 26th March, 1972,' the Bangladesh Industrial Enterprises (Nationalisation) Order, 1972 declared that the share of the Industrial Enterprises which had not already vested in the Bangladesh Government would vest in the Government as shareholder with the natural consequence that for all practical purposes the said company was nationalised and had ceased to carry on business in Pakistan.

4. According to the petitioner, Pakistani shareholders of the said company held a meeting on 20th December, 1984 which was attended by shareholders representing 23, 76, 112 share including N.I.T., I.C.P., State Life Insurance Corporation and unanimously passed a special resolution authorising the petitioner to apply to this Court for winding up of the said company which is solicited on the grounds that the company has been unable to carry on its business and lost its majority viable assets due to separation of the former Province of East Pakistan; that there is no reasonable hope of the revival of the said company or resumption of its object of trading and manufacturing for profit; that substratum and subject-matter of the company is no longer in existence and that it is just and equitable that the said company be wound up in view of the aforesaid facts and events.

5. Notice of the petition was issued to the Registrar of Companies and the petition was advertised as required by the Sindh Chief Court (Original Side) Rules. Some times in November, 1986, when this petition came up for hearing Mr. Kamal Azfar, the then Advocate for the petitioner pointed out to the Court that Deputy Administrator of Abandoned Properties had taken over the control of the assets of the said company, therefore, a notice was ordered against the said authority. Parawise comments were, however, filed by Administrator, Abandoned Properties Organization only in January, 1992 whereafter the petition remained pending from time to time.

6. In the comments it was said that the petition is not maintainable in law in view of Abandoned Properties (Management) Act XX of 1975; that after the fall of Dacca Amin Jute Mills Limited falls within the definition of specified person as laid down in the above Act; that no doubt all assets of Amin Jute Mills Limited relate to shareholders, the said company is distinct legal entity and such property vests in it and not the shareholders. It is urged that as the said company failed to shift its registered office to West Pakistan as per Companies (Shifting of Registered Office) Ordinance V of 1972, it falls within the category of specified person. With regard to declaration of dividend, it is urged that since registered office of the company was not shifted at the relevant time and it became a specified person, the property vested in the Federal Government as it did not physically pass on to the shareholders. As regards the assets of the company, it is said that main assets of the company were situated in the former Province of East Pakistan and only a part of the assets were situated in former West Pakistan, which were declared as abandoned property with the consequence that Amin Jute Mills Limited ceased to exist as a company under the Companies law. Therefore, resolutions of the shareholders passed in the meetings held on 29-5-1975 and 20-12-1984 were completely uncalled for. With regard to the petitioner, it is pointed out that by order, dated 2-12-1977 he was authorised by the Administrator to manage the assets and cany on business on behalf of the Board of Trustee/Administration but he was not authorised to move for winding up. In fact, he was liable to render accounts of the company but he did not furnish the same and filed this petition with mala fide intentions and ulterior motives.

7. In reply to the parawise comments the petitioner urged that the Administrator Abandoned Properties Organization has no locus stand! in the matter in view of notification, dated 7-12-1988 issued by the Federal Government (Board of Trustees of Abandoned Properties) published in the Gazette of Pakistan Extraordinary, dated 27-12-1988 exempting proportion of the properties of the said company belonging to the Pakistani shareholders from the operation of the provisions of Abandoned Properties (Management) Act, 1975 with effect from 16-12-1971, Various averments made contentions raised in the comments are denied as being erroneous, misleading, belated and not maintainable. With regard to the said company acquiring status of specified person as urged by the Administrator, it is pointed out that this question has been finally decided by this Court in High Court Appeal No. 16 of 1982 and Civil Appeal No.l4-K of 1987 preferred from the said judgment before the Supreme Court was dismissed as infructuous vide order, dated 2nd June, 1991.

8. At the hearing Mr. Muhammad Ali Sayeed, learned counsel for the petitioner with reference to subsection (3) of section 444 of the Companies Ordinance submitted and rightly so, that the said company shall be deemed to be an unregistered company after being taken over and nationalised by Bangladesh Government in 1972. Learned counsel urged that it may be wound up as an unregistered company notwithstanding that it has otherwise ceased to exist as a company by virtue of the laws of this country under which it was incorporated. In this connection learned counsel made a pointed reference to section 271 of the Companies Act, 1913 under which the present petition was filed. This provision is analogous to the provisions of section 444 contained in the Companies Ordinance, 1984. Only difference between the two provisions is as under:—

K). In the Companies Act, 1913 the Provision read as follows:—

"If it is otherwise proved to the satisfaction of the Court that a company is unable to pay its debts."

In the Companies Ordinance, 1984 the provision is worded as follows:—

"If it is otherwise proved to the satisfaction of the Court that the company is unable to pay its debts; and, in determining whether a company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the company and its solvency."

Adverting to the objections raised on behalf of the Administrator Abandoned Properties Organization first contention of the learned counsel is that the said company being a specified person under Act XX of 1975 by virtue of section 3 of the said Act all properties shall be deemed to have vested in the Federal Government on and from 16th of December, 1971. Second limb of the argument of the learned counsel is that as no step was taken for shifting of the registered office of the said company from Bangladesh to this country in pursuance of the Companies (Shifting of Registered Office) Ordinance, 1972, present petition filed in this Court on 31-12-1984 is completely misconceived and not maintainable at law. This submission is also premised on the provisions contained in section 15 of the above said Act providing for an appeal by an aggrieved person from an order of the Administrator. Contention on the face of it would have an element of attraction and perhaps been fatal to the, maintainability of this petition but by reason of notification, dated 7-12-1988 issued by the Federal Government and published in Gazette of Pakistan, dated 27-12-1988 exempting proportion of the properties of the said company belonging to the Pakistani- shareholders from the operation of the provisions of above said Act w.e.f. 16-12-1971 the argument looses its efficacy and is no longer available. Since the notification exempts the properties of the said company belonging to Pakistani shareholders presently represented by the petitioner from the operation of the provisions of Act \XX of 1975 with retrospective effect, petition on the face of it would be maintainable and cannot be dismissed on this score alone. In fact, the declaration of the properties-of the said company to the extent of its ownership vesting in Pakistani shareholders as abandoned property within the meaning of section 2(a) of the Act and vesting of such properties in the Government ceased to have any effect retrospectively with publication of the notification in the Official Gazette. Objection, therefore, has an academic value and is of technical nature which may not operate as bar to the grant of rights of the Pakistani shareholders in the said company as mere technicalities cannot thwart the grant of rights to parties when otherwise due under the law. Learned counsel confronted with this position in law was unable 1 to press this contention any longer and felt satisfied that after the publication of exemption notification petition could be maintained before this Court under section 444 of the Companies Ordinance after the repeal of Companies Act 1913 in view of saving clause contained in section 508 of the Ordinance.

1. Learned counsel with reference to paragraph 7 of the petition reflecting that out of 32,31,800 total shares about 27, lac shares were owned by the Pakistani shareholders who are residents of Pakistan seeking winding up feebly contended that it would not be possible to bifurcate the shareholding in the said company vesting in the Administrator, Abandoned Properties Organisation from the shareholding of Pakistani nationals. Learned counsel is of the view that on this account the petition would be incompetent and improperly constituted but I see no merit in it. I think in the event of a winding up order Official Liquidator appointed by this Court would be conveniently able to scrutinize, manage and administer the assets and liabilities of the company with reference to its shareholders. In any event, Pakistani shareholders possessing and owning an absolute majority in the share holding of the company cannot be made to suffer adversely for the reason that minority shareholding belonged to the Abandoned Properties Organisation. The argument is, thus, without any merit and not enable at law.

2. Learned counsel for the petitioner referred to sub-clauses (a)(b) and (c) of clause (iii) of subsection (1) of section 444 to urge that the said company being unregistered company is liable to be wound up for the reasons: firstly that it has ceased to carry on business; secondly that it has been unable to pay its debts and thirdly that it is just and equitable that the company should be wound up. With regard to the first ground, it may be observed that obviously after the tragic event of 16th December, 1971 on account of creation of Bangladesh and emergence as an independent State, the said company has in fact ceased to carry on business in this country which by itself is a valid ground for passing a winding up order. With regard to inability of the company to pay its debts, learned counsel referred to the averments in paragraph 8 of the petition with regard to declaration of cash dividend for the year 1970 and a dividend in specie in the form of fully paid up shares of Amin Fabrics Limited in the ratio of one share of Amin Fabrics Limited for every 20 shares of Amin Jute Mills Limited. This position has not been disputed in the parawise comments filed by the Administrator, Abandoned Properties Organisation. It is furthermore substantiated by publication of such announcement in the Gazette published by Karachi Stock Exchange Limited, dated 26-11-1970. According to the petitioner while the cash dividend was duly paid, the dividend in specie remaining unpaid it constitutes a debt owed by the company to its shareholders. Accordingly petitioner and other shareholders are creditors of the company and for this reason as well, the company is liable to be wound up. Plea taken in para. 8 of the parawise comments to the effect that as the registered office of the said ompany was not shifted to Pakistan and the shares did not physically pass on to the'shareholders such property vests in the Federal Government is completely misconceived and ill-advised on the face of it. This question was considered.by a Division Bench of this Court in Maudood Ahmed Farooqui v. Amin Fabrics Limited (PLD 1983 Karachi 176). After referring to the definition of "Abandoned Property" and elaborating dictionary meaning of the expression "belonging to a specified person", Division Bench observed as under:

"It is settled law that once a dividend is declared by a company it becomes payable as a debt to the shareholders and the shareholders can sue the company for its recovery."

Division Bench further observed that "in our view a debt due to a shareholder in the hands of the company cannot be treated as property belonging to the company. A debt in the hand of a debtor does not belong to the debtor but it belongs to the person to whom it is payable. A debt is something which is owed by one person to another. It is an obligation and liability to pay or return something. In this view of the matter the dividend declared by Amin Jute Mills which though not paid to the shareholders could not be said to be the property of Amin Jute Mills as it was admittedly a debt due to its shareholders".

1. With regard to the jurisdiction of this Court to direct winding up of unregistered company including a foreign company under section 444(1 )(iii) it is not the requirement of law that the said company had been carrying on business in Pakistan or had an office or a place of business in Pakistan. For winding up a company, it would suffice to show that company proceeded against had some assets within the jurisdiction of this Court. Such assets are not required to be of commercial nature but could be of any nature. It would be sufficient if by making of winding up order, assets of the company would be of benefit to a creditor or creditors in some other way. Obviously, Amin Jute Mills apart from assets in Bangladesh does have valuable assets in Pakistan where it used to carry on business before inception of Bangladesh. I am fortified in this view by an authoritative pronouncement by Nasir Aslam Zahid, J. (as his Lordship then was) in James Finlay P.L.C. v. Hellenic Lines Limited (1986 LC.2933).

2. In this view of the matter, I am clear in my mind and there is no manner of doubt that it is just and equitable to direct winding up of the company. Accordingly, this petition is allowed and Official Assignee of Karachi appointed as Official Liquidator to take over the affairs of the company. He will )e assisted by the petitioner as well as other shareholders of the company in locating the assets of the company.

(K.K.F.)

Order accordingly.

PLJ 1999 Karachi 25 (DB)

Present:NAZIM hussain siddiqui and ghulam nabi soomro, JJ. M/s. PLASTIC CRAFTS (PVT.) LTD.--Petitioners

versus

REGISTRAR OF TRADE UNIONS KARACHI and 3 others-Respondents

Const. Petition No. D-1676/96, decided on 26.8.1998.

Industrial Relations Ordinance, 1969 (XXIII of 1969)-

—S. 10-Constitution of Pakistan (1973), Art. 199-Cancellation of Trade Union's registration—Essentials—Jurisdiction—Registration of Trade Union could only be cancelled under S. 10, Industrial Relations Ordinance, 1969 and not otherwise-Labour forum have refused to cancel registration-All questions raised in Constitutional petition were disputed facts-While exercising jurisdiction under Art. 199 of the Constitution, disputed facts could not be investigated—Przma facie there was nothing on record to hold that elected union was illegal body nor could it be declared that criminal proceedings pending against petitioners non- supply of worker's list were mala /We-Constitutional petition was dismissed in circumstances. [P. 27] A

Mr. S.M. Yaqoob, Advocate for Petitioner.

Mr. 'Khalid Imran, Advocate for Respondent No. 1.

Mr. Nishat Warsi, Advocate for Respondent No. 3.

Mr. Muhammad Urs Soomro, Assistant Director Trade Union.

Date of hearing: 20.8.1998.

judgment

Nazim Hussain Siddiqui, J.-The petitioners on 2.9.1996 filed this petition against Respondents Nos. 1 to 3. On 22.9.1996, they had filed amended petition, wherein National Industrial Relations Commission was joined as Respondent No. 4. Again on 13.2.1997 they filed second amended petition and prayed for the following reliefs-

(i) Uphold the grounds raised above in the petition in favour of the petitioners.

(ii) Grant stay order, injunctions as prayed by the petitioners in their separate such application.

(iii) Hold and declare that the orders, acts and actions of the Respondent No. 1 impugned (Ann J & B) hereto and of the Respondent N. 4 are illegal, void, arbitrary, mala fide, without jurisdiction and of no legal consequences.

(iv) Hold and declare that the Respondent No. 1 failed in his functions, acted illegally and arbitrarily by not paying any heed/attention, not replying, going ahead and not deciding the objections raised by the petitioners about the respondent.

(v) Hold and declare that the Respondent No. 3 has no locus standi, it is an illegal and invalid body, it is illegally constituted and by violating its Constitution and the provisions of I.R.O. 1969 as explained above, it is no longer a legal body and it has ceased to exist as provided by Section 10(3) IRQ, 1969.

(vi) Hold and declare that the criminal proceedings initiated by the Respondent No. 4 in the Case No. (28)/96-K on thesame facts and issues as in this petition, issuance of the process, framing of charges against the officials of the petitioners, holding daily proceedings in hot haste and its other actions, orders, refusal to annouce/make orders on application U/S. 249-A C.P.C. after hearing the arguments and fixing date of announcement are illegal, invalid arbitrary, in abuse of the law and process and without jurisdiction and the same deserve to be set aside/quashed and held illegal and without jurisdiction by this Hon'ble

Court.

(vii) Direct, order and make such other orders, declarations ' and/or directions and/or give reliefs as may appear to this Hon'ble Court just proper in the circumstances of the case.

Alongwith the petition dated 2.9.1996, the petitioners had filed an application under Order, XXXIX, Rules 1 & 2 read with Section 151 C.P.C. and prayed therein to restrain Respondent No. 1 from holding Referendum, which was to be held on 5.9.1996 for determination of CBA in the establishment of the petitioners. Further, it was prayed that Respondents Nos. 2 and 3 be restrained from participating in said Referendum. The petitioners had also prayed for a direction to the Respondent No. 1 not to issue C.B.A. Certificate if the Referendum was held. In the alterative, it was prayed that if the Certificate was already issued it be suspended.

It appeal's from the comments of Respondent No. 1 that Referendum was held on 5.9.1996, but its result was not announced pursuance to the order of this Court dated 4.9.1996, passed in C.P. No. S-92 of 1996. Thereafter, on 22.10.1996 this Court recalled a part of Stay Order relating to the announcement of result. Accordingly, the result was announced and CBA Certificate was issued in favour of the Respondent No. 2, Plastricrafters Mazdoor Union.

It is noted that after the stay order was recalled the petition which was filed on 2.9.1996 had become infructuous, as in said petition letters dated 16.12.1995 and 22.8.1996 of Assistant Director Lahour regarding determination of Collective Bargaining Agents, were challenged. In the amended petition filed on 22.9.1996 the reliefs claimed were the same, which were claimed in the petition filed on 2.9.1996. In the second amended petition, the reliefs at serial numbers (iv, v and vi) were added.

Mr. S.M. Yaqoob, learned counsel for the petitioners contended that Respondent No. 3 Union was no longer a legal body and it ceased to exist in view of Section 10(3) of IRO, 1969, as no election was held in this Union for the last 8 years and also it failed to file return under Section 21 of IRO. Learned counsel also argued that said Union, having all its office bearers not from amongst the workers of the establishment in violation of Section 7(l)(d) of IRO, is longer a legally constituted body. Learned counsel also urged that said Union did not have 1/3 workers of the establishment as its member, as such, it could not apply for CBA Certificate.

As against above, learned counsel for the Respondents Nos. 1 and 3 argued that the petitioners had no locus standi to file this petition as the action of Respondent No. 1 was legal. They also contended that the Respondent No. 1, after having received applications for Referendum, directed the petitioners to submit the list of their employees/workers, as is required by Clause (a) sub-section (4), of Section 22 of the IRO, but the petitioners had not submitted any such list. Instead, the petitionei's raised objections against holding of Referendum, therefore, the Respondent No. 1 had no option but to file Criminal Complaint No. (28)/96-K, under Sections 15(g) and 53(l)(a) of IRO before the NIRC.

It is an admitted position that in view of sub-section (4) of Section 22 of the IRO, the employer shall submit a list of workers to the Registrar, when the latter is to determine as to which Union be collective bargaining agent in the establishment. It appears that the petitioners, instead of assisting the Registrar for above, attempted to cause delay. The representative of Respondent No. 1 submits that the returns under Section 21 of IRO were submitted by the Respondent No. 3. The registration of a trade union can only be cancelled under Section 10 of IRO and not otherwise. All points raised in the petition are disputed facts. While exercising jurisdiction under Article 199 of the Constitution, the disputed facts cannot be investigated. Prima facie, there is nothing on record to hold that Respondent No. 3 is an illegal body nor can it be declared that criminal proceedings in Case No. 4(28)/96-K before NIRC, were mala fide.

On 20.8.1998; after hearing learned counsel for the parties, we had dismissed this petition in limine and these are the reasons for the same.

(A.P.) Petition dismissed.

PLJ 1999 Karachi 28 (DB)

Present: SABIHUDDIN AHMAD AND MUHAMMAD ROSHAN ESSANI, JJ.

ADA MUHAMMAD-Petitioner

versus

GOVERNMENT OF SINDH through SECRETARY, LOCAL GOVERNMENT and 3 others-Respondents

Const. Petition No. D-349 of 1997, decided on 3.6.1998.

Sindh Local Government Ordinance, 1979 (XII of 1979)—

....S. 45(4)-Contract Act (IX of 1872), S. 2(h)-Constitutioual petition- Octroi contract-Failure to perform essential part of contract-Effect-- Petitioner having been awarded contract, he was required to deposit 5 per cent, of contractual amount but he failed to do so-Petitioner could not claim that such contract could not be-awarded to anybody without notice to him. [P. 32] A

(ii) Sindh Local Government Ordinance, 1979 (XII of 1979)--

—S. 45(4)-Contract Act (IX of 1872), S. 2(h)-Constitutional petition- Octroi contract—Petitioner was awarded contract but he was required to deposit specified amount by specified date-Petitioner failed to deposit the same-Respondent decided to grant one more opportunity to petitioner to deposit requisite amount and further decided that in the event of his failure, contract would be re-auctioned and in pursuance thereto public notice was issued for specified date-Such decision having been taken and implemented through public notice, respondent was bound to wait till specified date to enable petitioner to make such deposit and in the event of his failure proceed with re-auction on the date specified in that notice.

[P.32]B ' " -

(iii) Sindh Local Government Ordinance, 1979 (XII of 1979)--

—S. 45(4) [as inserted through Sindh Local Government (Second Amendment) Act (II of 1992)]-Constitutional petition-Contract made with highest bidder on basis of comparative bids in open auction—Such contract would not need approval of Government-Approval of Government would be necessaiy only when for some reasons highest bid was not accepted. [P. 33] C

(iv) Sindh Local Government Ordinance, 1979 (XII of 1979)--

—-S. 45(4) [as inserted through Sindh Local Government (Second Amendment) Act (II of 1992)]-Constitutional petition-Administrative guidelines relating to octroi contract requiring approval of Government in all cases including cases of open auction-Validity-Such stipulation in guidelines or even in rules would be ultra vires viz. Sindh Local Government Ordinance, 1979 and would be of no legal effect.

[Pp. 33 & 34] D & E

(v) Sindh Local Government Ordinance, 1979 (XII of 1979)--

—-S. 45(4)-Coritract Act (IX of 1872), S. 2(h)-Constitutional petition-­ Public contracts-Duites of Government functionaries-Public functionaries must act honestly, faily and in public interest in matters of contracts-Such obligation was created not by contract but was duty ordained by law which duty could be enforced through Constitutional petition. [P. 34] F

(vi) Sindh Local Government Ordinance, 1979 (XII of 1979)-

—S. 45(4)-Contract Act (IX of 1872), S. 2(h)-Constitutional petition- Contract awarded to person through negotiation and not through public auction—Such exercise was patently mala fide and without jurisdiction and contract awarded to such person was without lawful authority and of no legal effect. " [Pp. 34 & 35] G

Mr. Muhammad Yousuf Leghari, Advocate for Petitioner.

Mr. Ghulam Rasool Qurcshi, Advocate for Respondents Nos. 1 and 3.

Mr. Partab Rai, Advocate for Respondent No. 2.

Mr. Jhamat. Jethanand, Advocate for Respondent No. 4.

Date of hearing: 28.5.1998.

judgment

Sabihuddin Ahmad, J.--The admitted facts are that Respondent No. 2 i.e.. Town Committee, Khoski through public advertisement appearing in newspaper called upon interested parties to participate in the auction of contract for recovery of octroi toll tax etc. payable to Town Committee for the financial year 1997-98. Apparently the initial few attempt to award the contract through public auction against the reserved price official bid of Rs. 2.4 million proved futile. However, in the 7th auction held on 19.6.1997 the petitioner submitted a bid for Rs. 40,00,000 which was found to be the highest and accepted as such. The petitioner had already deposited an amount of Rs. 1,20,000 (being 5% of the reserved price) and after acceptance of his bid was required to deposit a further security deposit of 5% of the bid amount within one week of the acceptance of bid but he failed to do so. In the circumstances the Respondent No. 2 decided to cause a public-notice to be published in the press requiring the petitioner to deposit a 5% security deposit within three days of the publication of the notice failing which the contract would be put to re-auction with the official bid/reserved price of Rs. 28,50,000. The operative pait of the said notice appeared in Dawn of August 4, 1997 reads as under-

"Accordingly through this notice the said party is advised to deposit 5% of his bid amounting to Rs. 40,00,000 only within three days of the publication of this notice, else the contract would be put to re-auction on 12.8.1997, 19.8.1998 and 21.8/1997 at 11.00 a.m. in this office at the risk and cost of the above party with the official bid of

Rs.28,50,000 only as such offer has been received from M/s. Manjhi Khan & Co., dated 26-7-1997."

2.Nevertheless it appears that before this notice could actually appear in the press (which appeared in both daily Dawn and daily Jang on 4-8-1997). The respondent No.4 who is another octroi contractor, instead of approaching the Town Committee managed to approach certain officials in the Provincial Government and at the level of the Government, the concerned officers without bothering to find how the Town Committee proposed to award the contract and what offers it had received, proceeded to issue a letter, dated 29-7-1997 purporting to confirm the offer made by the respondent No.4 in the amount of Rs.27,00,000 i.e., 13,00,000 less than the offer made by the petitioner and 1.5 lacs less than the reserved price/official bid notified by the Committee for which it had already received offer. The Town Committee, without bothering to inform the Government that it had decided to issue a notice to the petitioner to deposit the security amount and in the event of his failure decided to re-auction the contract, had already received higher offer than the one submitted by the respondent No.4 and that the Government had no power to receive offer directly and accept them proceeded to award the contract to the respondent No.4 for an amount of Rs.27,00,000. Being aggrieved by the aforesaid action the petitioner has moved this Court under Article 199 of the Constitution seeking a declaration tljat the order that the respondent No.3, dated 27-7-1997 confirming the contract in favour of the respondent No.4 is illegal and a direction that the petitioner's bid be confirmed and the contract be awarded to the petitioner.

1. In support of the petition Mr. Muhammad Yousuf Leghari raised the following contentions:—

(i) That the petitioner's bid being admittedly the highest could not be rejected without assigning any reason.

(ii) That the bid submitted by the petitioner was admittedly the highest and the contract could not be awarded to the respondent No.4 without rejecting his bid after hearing him.

(iii) That after having decided to issue a public notice requiring the petitioner to deposit the security amount. The respondents could not legally award the contract to any other person without waiting till the expiry of the time granted to the petitioner for depositing the required amount.

••

(iv) That in any case the contract was required to be re-auctioned in terms of the public notice and the confirmation of the bid submitted by the respondent No.2 was illegally and mala fide particularly as a great deal of loss to public exchequre was caused by accepting the same.

(v) That in any event the offer of the respondent No.4 which was for an amount less than the reserved price/Government rate was not liable to be accepted and such acceptance reflects mala fide.

1. Mr. Partab Rai, learned counsel for the respondent No.2 contended that the petitioner himself was a defaulter and did not furnish requisite security deposit which he was under the law required to deposit within seven days of the acceptance of his bid. He neither approached the Committee nor could be otherwise contacted and in view of his own default is not entitled to relief under the discretionary jurisdiction of this Court. With respect to the contention that the contract was awarded without following the terms of the public notice the facts were admitted but the learned counsel contended that before the time granted to the petitioner to make the deposit expired or before a fresh auction could be held the Government chose to confirm the offer of the respondent No.4 which the Town Committee was required to accept.

2. Mr. Ghulam Rasool Qureshi, learned counsel for the respondents Nos.l and 3 argued that by having failed to disburse the amount of security deposit within the time stipulated in the rules the petitioner himself defaulted and was not entitled to any relief. He nevertheless frankly conceded that he was not prepared to defend the action of the Government in dealing directly with the respondent No.4 as such course is not contemplated by the rules and that in any event he is not prepared to defend the action whereby a bid for such a low amount was accepted.

3. Mr. Jhamat Jethanand, learned counsel for the respondent undertook to bear the main burden of defending the impugned action and urged as follows:—

(i) That the petitioner was not a serious bidder after having made an irrational bid he disappeared from the scene and never bothered to disburse the amount of security. He was set up to damage the interest of serious octroi contractors by making an unrealistic bid.

(ii) That six attempts to auction the contract had failed and only in the 7th attempt a farcical bid was made by the petitioner who thereafter, disappeared from the scene. The period during which most of the octroi was collected through sugar mill in Khoski was fast expiring and in the circumstances the Provincial Government had no option but to accept the offer made by the respondent No.4 which was reasonable and well above .the original official bid/reserve price of Rs.24,00,000.

(iii) That bids were required to be confirmed by the Provincial Government and the Government had the power to award the contract even otherwise than by way of public auction.

(iv) That the petitioner being a defaulter himself and haying not come to Court with clean hands is not entitled to discretionary relief under Article 199 of the Constitution.

(v) That in any event the contract period having almost expired it is not possible to grant the relief claimed by the petitioner.

3

(vi) That the petitioner has sought enforcement of contractual obligations which cannot be enforced under the Constitutional jurisdiction conferred by Article 199.

1. We have carefully considered the arguments addressed at the bar and examined the applicable law as well as the case-law cited by the counsel for the panics. It is indeed correct that the petitioner upon the acceptance of his bid at ._the auction was required to deposit a sum equal to 5% of the bid mount in terms of the relevant rules. Learned counsel for the respondents are correct that the petitioner failed to do so he could not claim that the contract cannot be awarded to anybody else without notice to him. The petitioner has not been able to substantiate the contention that he attempted to deposit the amount but it was not accepted.

2. The matter, however, does not end here. The respondent No.2 in their own wisdom decided to grant one more opportunity to the petitioner to deposit the amount and further decided that in the event of his failure the contract would be re-auctioned pursuant to the aforesaid decision a public notice repared on g 26-7-1997 was caused to be published in the press on 4-8-1997. Such decision having been taken and implemented through the public notice the respondent No.2 were bound to wait till 7-8-1998 to enable the petitioner to make the deposit, and in the event of his failure, proceed with re-auction on the dates specified in the notice. Having committed to act in a particular manner which was undisputedly lawful they had no authority to follow any other method of awarding the contract prior to the dates mentioned in the notice. We regret to find considerable force in Mr. Muhammad Yousuf Leghari's contention that the whole exercise was mala fide. While on one hand a notice requiring, the petitioner to deposit the amount up to 7-8-1997 and to the public at large .to participate in the re-auction on three dates in August, 1997 was issued, on the other, the contract was awarded to the respondent No.4 on 29-7-1997. Moreover, it is evident from^the record that the respondent No.2 had already received offer from M/s. Manjhi Khan & Company for Rs.28,50,000. Yet they chose to award the contract to the respondent No.4 for a lesser amount i.e., Rs.27,00,000. Therefore, there can be no escape from the conclusion that the action was patently mala fide, whereby irrespective of the question of petitioner's right, loss was caused to the public exchequer.

3. Mr. Partab Rai, learned counsel for respondent No.2, however, contended that respondent No.2 was bound to follow the directions of the

respondents Nos.l and 3 which is the controlling authority and there was no improper conduct on the part of its officers. It is necessary to examine the

correct legal position as to the powers of the Government in the context of awarding and confirming contracts for collection of octroi granted by Local .-

Councils. Section 45(1) of the Sindh Local Government Ordinance enables a Council to enter and perform all such acts and it may consider necessary or expedient in order to cany into effect the provisions and purposes of the Ordinances. Subsection (2) stipulates that contracts made by or on behalf of a Council shall "'be in writing expressed to be made in the name of the Council. Subsection (3) provides that subject to the rules, contracts be entered into after inviting competitive tenders or quotations. Subsection (4) reads as under:—

"(4) All contracts for transfer by grant, sale mortgage, lease or otherwise of immovable property or any interest and right thereto or disposal or sale of immovable property or for leasing out'rights to collect taxes shall, subject to the rules be entered into after inviting offers in an open auction. (Underlinings ours).

Provided that if the highest bid is not accepted by the council, approval in writing of Government shall be obtained, and Government shall, in its order give reasons for not accepting the highest bid:

Provided further that a council may with the approval of Government enter into a contract without inviting offers in auction."

1. It may be mentioned that the underlined portion of section 45(4) was inserted through the Sindh Local Government (Second Amendment) Act (Act II) of 1992. It is unmistakenly clear from the above that the Government has no role whatsoever if the contract is made with the highest bidder on the basis of comparative bids in an open auction. Such contract does not even need the approval of the Government. An approval would be necessary only if for some reasons the highest bid is not accepted.

2. We may mention here that the administrative guidelines relating to octroi contract, copies whereof were placed before us seem to indicate that approval is obtained hi all cases. However, in view of the explicit language of the statute, we hold that such stipulation in guidelines or even in rules would be ultra vires the parent statute and of no legal effect. Accordingly we would hold that "when the council finds no reason to reject the offer of the highest bidder it should straightaway award the contract without seeking Government approval.

3. Mr. Jhamat Jethanand attempted to argue that the contract was validly awarded by the Government in view of the second proviso to the abovequoted section 45(4). We regret we find his contention plainly untenable. A bare reading of the aforesaid proviso shows that it only enables the Council to enter into a contract without inviting, offers but hi case it chooses to do so it is required to seek the approval of the Government. In the instant case, however, the council in fact chose to enter into the contract through a public auction. On the other hand it was the officers of the Government who imposed their own.will in forcing a contract upon the council. The council in fact only rendered a command performance. The Additional Chief Secretary to the Government arrogated himself powers which the law does not confer upon the Government. Admittedly even if we ignore the petitioner's case the council expected offers higher than Rs.28,50,QOO and that is why it decided to re-auction the contract. In fact somebody at the relevant time was willing to pay the aforesaid amount, yet when the respondent No. 4 approached officers of the Government the said officers, without even bothering to make necessary enquiries from the council T proceeded to oblige him at the expense of public exchequer. We are, therefore, clearly of the opinion that the order of the Additional Chief Secretary was not Ijonly a lawful but also mala fide. Even if the power to award such contract xisted, it had to be exercised in public interest. Apparently relevant information about a higher offer available was not even sought.

When the counsel decided to carry out this command performance in violation of its own decision and did not even bring facts to the notice of the Government, causing loss to public revenues, its action was equally mala fide.

1. We find no force in Mr. Partab Rai's contention that the petition is barred by laches. It has been authoritatively laid down by the Supreme Court in Pakistan Post Office v. Settlement Commissioner (1987 SCMR 1119) that the defence of laches can be taken only when certain rights have matured in favour of the respondent. Obviously no rights can be claimed on the basis of an order which is both without jurisdiction and mala fide.

2. Mr. Jethanand referred to a number of judgments in support of his contention that the petitioner's grievance was founded upon a contract and this Court does not exercise Constitutional jurisdiction for enforcement of contractual obligation. It is not necessary to refer to these judgments because we are in agreement with the aforesaid principle of law. Nevertheless, it is equally well-settled that even in matters of contracts/public authorities must act honestly, fairly and in the public interest. This obligation is created not by a contract but is a duty ordained by law. Such duty can always be enforced through Article 199 of the Constitution. If authority is needed we may refer to the recent Supreme Court decision in the case of Shoukat Hayat v. Pakistan Railways (PLD 1997 SC 342) and two D.B. judgments of this Court in Abdullah & Co. v. Province of Sindh (1992 MLD 293) and Pacific Multinational (Pvt.) Ltd. v. Province of Sindh (PLD 1992 Karachi 292). As such we do not find any force in this contention.

3. The last question to be decided is what relief can be awarded to the petitioner. Indeed the contract period is to expire on 30-6-1998 this year and therefore, he cannot be put into the position of the respondent No.4. He has not claimed any monetary compensation nor is it possible for us to determine the quantum of losses that he might have sustained. We are also unable to say that whether he actually sustained any loss on account of the contract being awarded to the respondent No.4. We, therefore, confined ourselves to a declaration that the so-called confirmation of the. offer of the respondent No.4 on the part of Respondents Nos. 1 and 3 was patently mala fide and without jurisdiction and the consequent award of the contract in his favour by the Respondent No. 2 was also without lawful authority. The petitioner may approach a Civil Court for recovery of compensation if so advised. The petition is allowed in

the above terms. »

A copy of this judgment may be sent to the Chief Secretary to Government of Sindh for initiating appropriate disciplinary action against the persons involved in the aforesaid transaction.

(AAJS) Order accordingly.

PLJ 1999 Karachi 35

Present: rana bhagwan das, J. Mrs. RIAZ BIBI-Plaintiff

versus

SHELL PAKISTAN LTD. KARACHI and another

-Defendants Suit No. 475 of 1997 and CMA No. 3419 of 1997, allowed on 18.3.1998.

Civil Procedure Code, 1908 (V of 1908)-

—:O. 37—Suit for recovery—Application for leave to appear and defend-­Though plaintiff made a mention of legal notice issued to defendant No. 1, no mention was made about reply received from defendant-Reply letter seems to have been sent by registered A.D. post and is dated ~~ 10.12.1996, which, in all probability; is expected to have been mailed on due date-There is no evidence to indicate that bungalow in question was indeed handed over to Defendant No. 1 as alleged-Fact that said bungalow has now been rented out to a new tenant is also a relevant factor to reflect that plaintiff appears to have been compensated for loss if at all any--Defendant has raised disputed issue of fact which require trial at hearing of suit after appropriate evidence is adduced by parties-­Plausible defence appears to have been Tiade out, leave granted. [P. 37] A

Agha Faqir Muhammad, Advocate for Plaintiff. Mr. Faroogh Naseem, Advocate for Defendant No. 1. Date of hearing: 18.3.1998.

order

CMA No. 3419 of 1997. In this suit for recovery of Rs. 9,32,400/- filed under the provisions of Order XXXVII CPC founded on a cheque issued by Defendant No. 1 and dated 1.12.1996 pursuant to a lease agreement dated 27.11.1996 executed by plaintiff in favour of Defendant No. 1 through Defendant No. 2, Defendant No. 1 seeks unconditional leave to appear and defend the suit in the following circumstances.

1. Defendant No. 1 desired a residential Bungalow for accommodation their Finance Executive Mr. Jeremy Davies and entered into an agreement of lease dated 27.11.1996 with the plaintiff in respect of Bungalow No. 34/II-B, 16th Street, Khayaban-e-Mujahid, D.H.A., Phase-V, Karachi on monthly rental of Rs. 42,000/- with an agreement to pay two years' advance rent less income tax and issued the aforesaid cheque payment whereof was stopped. In the event of dishonour of the cheque plaintiff filed suit for recovery on the averments that on receipt of the advance rent she had handed over peaceful physical possession of the bungalow through Defendant No. 2 to Defendant No. 1 but as stated above the cheque issued by Defendant No. 1 was dishonoured, hence this suit.

2. In the accompanying affidavit Defendant No. 1 has averred that Mr. Jeremy Davies visited the bungalow on or about 20th November, 1996 to 26th November, 1996 and found that certain repairs were absolutely necessary before occupation, therefore this defendant informed the Defendant No. 2 to hire the bungalow on rent provided the repairs were effected before the next date of inspection. According to Defendants No. 1, the bungalow was re-visited on 1st December, 1996 when it was noticed that the works pointed out were not carried out, therefore, Defendant No. 2 was categorically informed that due to default on the part of the plaintiff in carrying out necessary repairs the lease agreement stood cancelled and that the payment of cheque shall be stopped. It is further averred that subsequently the premises have been rented out by the plaintiff to someone else with the result that no loss or damage has been caused to her. According to the defendant, the plaintiff through her counsel had issued a legal notice dated 4th December, 1996 to them which was promptly replied through letter dated 10.12.1996 but the plaintiff for mala fide reasons did not attach the legal notice and reply there with the plaint with a view to suppress vital facts. 1 4. On behalf of the plaintiff a counter affidavit has been filed ontroverting various statements of fact including that the bungalow did not I require any repairs; that vacant possession was handed over to Defendant No. 1; that Defendant No. 2 did not represent the plaintiff and he acted as an agent for defendant company lastly that the reply to legal notice was received after the filing of the suit. Six photographs of various portions of the bungalow have been appended to the counter affidavit to substantiate the position taken therein. Counter affidavit is followed by affidavit in rejoinder on behalf of Defendant No. 1 as well as affidavit by Defendant No. 2 supporting the case set up by the defendant and substantiating the grounds . taken in the application for leave to defend. According to the affidavit of Defendant No. 2, the bungalow in question was rented out through him to another person but the said person also terminated the lease agreement as repairs were not conducted to his satisfaction and lastly it has now been rented out through some other agent, to new tenant, who has been occupying the bungalow for the last 8/9 months.

3. Upon hearing learned counsel for parties and examining the relevant data placed on record, I find that though the plaintiff made a mention of legal notice issued to Defendant No. 1, no mention was made about the reply received from the defendant. In the counter affidavit it was said that the reply was received after filing of the suit but the accompanying envelope is not produced to substantiate this plea. On the face of it reply letter seems to have been sent by registered A.D. post and is dated 10.12.1996 which, in all probability, is expected to have been mailed on due date. As to the cancellation of.lease agreement owing to lack of repairs to the bungalow, there is a supporting affidavit of Defendant No. 2, who acted as an estate agent and middle man between the parties. Prime facie there is no evidence to indicate that the bungalow in question was indeed handed over to Defendant No. 1 as alleged. The fact that the said bungalow has now been rented out to a new tenant is also a relevant factor to reflect that the plaintiff appears to have been compensated for the loss if at all any. Without commenting in details as to the correctness or otherwise of the allegations raised and controverted by the parties suffice to say that Defendant No. 1 has raised disputed issues of fact which require trial at the hearing of the suit after appropriate evidence is adduced by the parties. In this view of the matter since a plausible defence appears to have been made out, I am inclined to grant leave to defend the suit unconditionally. CMA is granted. Written statement may be filed in office within three weeks.

(MYFK) Leave granted.

PLJ 1999 Karachi 37 (DB)

Present:majida razvi and abdul hameed dogar, JJ. SAEEDUDDIN SHAIKH-Petitioner

Versus

MINISTRY OF PRODUCTION and 3 others-Respondents

C.I5. No. D-1488 of 1993, dismissed on 28.5.1998.

Service Tribunals Act, 1973 (LXX of 1973)--

—-2-A-In view of amendment made in Service Tribunals Act, 1973 by Act No. XVII of 1997, Whereby Section 2-A has been inserted, petitioner has become a civil servant, hence petition stands abated-Petition dismissed.

[P. 38] A

Nemofor Petitioner.

Mr. Khalid Javed, Advocate for Respondent No. 3. Mr. S.M. Yakoob, Advocate for Respondent No. 4. Date of hearing: 28.5.1998.

okder

This case has been called twice since morning but none has appeared for the petitioner. The learned counsel for the respondents have filed a statement stating therein that in view of the amendment made in the Service Tribunals Act, 1973 Act No. XVII of 1997 published in the Gazette of Pakistan Extraordinary dated June 10, 1997, whereby Section 2-A has been inserted the present petition stands- abated. They have also drawn our attention to the fact that the petitioner during the pendency of this petition had filed an Appeal No. 445(K)/1997 before the Federal Service Tribunal on the same cause of action which was dismissed and thereafter a petition for leave to appeal bearing No. 132-K of 1998 was filed which was allowed by the Hon'ble Supreme Court remanding the case to the Tribunal. In view of the statement and the very fact that due to insertion of new Section 2-A in the Service Tribunals Act, 1973, the petitioner has become a Civil Servant. We dismiss this petition as having been abated.

(MFYK) Petition dismissed.

PLJ 1999 Karachi 38 (DB)

Present:wajihuddin ahmed, C.J. and saiyed saeed ashhad, J. Messrs TRADING CORPORATION OF PAKISTAN (PVT.) LTD.-Appellant

versus Messrs NIDERA HANDLES COMPAGNIE B.V. :

and another-Respondents HCP No. 187 of 1996, decided on 4.5.1998.

(i) Arbitration Act, 1940 (X of 1940)--

—-S. 2~Arbitration agreement in writing not signed by parties-Effect--Arbitration agreement, although in writing, need not be signed by parties if circumstances were to establish that. [P. 43] A

(ii) Civil Procedure Code, 1908 (V of 1908)--

—S. 9-Contract Act (EX of 1872), S. 2(h)-Arbitration Act (X of 1940), S. 33- Suit to challertge existence, effect or validity of contract wherein rbitration clause was included~S. 9, Civil Procedure Code, 1908, would not bar suit where existence, effect or validity of contract was questioned wherein arbitration clause was also incidentally included-Such broad contract, as a whole, could not be challenged under S. 33, Arbitration Act, 1940, though arbitration clause therein separately could be so challenged. [P.47]B

AIR 1960 Punjab 585; The law of Contract by Treitel, p. 20; Snell's

Principles of Equity, 1947, p. 557; The Contract Act, 1872 by Dr. M.A.

Mannan, p. 81, S. 9; AIR 1955 Bom. 419; Corbin on Contracts, Vol. I, 1963

Edn., p. 310; AIR 1987 SC 2289; 1992 SCMR 65; PLD 1970 SC 43; AIR 1959

SC 1357; AIR 1959 SC 1357 and AIR 1962 SC 378 ref.

(Hi) Civil Procedure Code, 1908 TVo\ 1908)—

—s. 9~Contract Act, 1872 (EX of 1872), S. 2(h)~Arbitration Act (X of 1940), S. 33--Arbitration-Suit in terms of S. 9, C.P.C. was filed wherein agreement as a whole was challenged including arbitration dause-Effect-- Notwith-standing such suit, arbitration clause in contract could not be suspended or unreasonably whittled down solely because main agreement was under challenge-Where any party was disinclined to go to arbitration then, notwithstanding such general or broad based challenge with which arbitration clause might stand or fall, such party must institute appropriate proceedings under S. 33, Arbitration Act, 1940, challenging arbitration clause itself and unless that was done arbitration proceedings could not, as an interim measure, be allowed to be by-passed- -Plaintiff having not proceeded under S. 33, Arbitration Act, 1940, till such time his suit in terms of S. 9, C.P.C proceeded to trial and entire contract was found either not to have been concluded duly or stood to have been lawfully cancelled, and with it the arbitration clause, parties would have to go to arbitration if any one of them was to insist for that course. [P. 47] C

(iv) Civil Procedure Code, 1908 (V of 1908)-

—-S.9 O.XXXK, Rr. 1, 2 and O.XLIII, R. l--Contract Act (IX of 1872)- S. 2(h)-For For Grant of interim injunction-Essentials-Where prima facie case, irreparable loss and balance of convenience could not normally subsist conjointly, interim injunction could neither be granted nor sustained. [P. 48] D

Mr. Khalid M. Ishaque and Samiuddin Sami, Advocates for Appellant.

Mr. Khalid Anwar, Advocate for Respondents, Dates of hearings: 19.2.1997 and 11.11.1997.

judgment

Wajihuddin Ahmed, C.J.--This is an appeal directed against the order, dated 22.10.1996, passed by a learned Single Judge of this Court in Suit N. 588 of 1991, whereby the plaintiffs application for injunction (C.M.A. 2563 of 1991) was dismissed for the reasons that neither prima facie case was established nor the plaintiff was likely to suffer irreparable loss in case of refusal nor did balance of convenience lie in the plaintiff s. favour. The facts of the case are stated succinctly by the learned Single Judge as under:-

"In this suit for injunction and in the alternative for declaration brought by the Trading Corporation of Pakistan (hereinafter referred to as T.C.P.), by way of aforesaid application, plaintiff seeks an order to restrain the defendants from seeking remedy for and proceeding with arbitration before Federation of Oil Seeds and Fats Association (hereinafter referred to as FOSFA) as there exists no binding contract between the parties.

(2) Facts in brief leading to this suit are that by way of tender notice, dated 19.2.1991 published in daily 'Dawn', dated 21.2.1991, t.C.P. invited tenders for the supply of Soyabean oil on C & F Karachi free out basis from eligible world-wide sources; for import of one cargo of 26,000 metric tons plus/mims 5% on seller's option. According to the notice, suppliers were required to furnish alongwith their offers a bid bond in the form of Bank, Guarantee on T.C.P.'s prescribed pro forma. As is usual in such cases. T.C.P. reserved the right to accept or reject any or all the tenders, partly or wholly without assigning or intimating any reason. •, (3) Defendant No. 1 carrying on business in Netherlands though their agen defendant No.2 offered to sell Syoyabean oil at the rate of US $ 65 per metric ton plus interest at the rate of US $ 23.90 for credit of 180 days and local agents commission of US $ 0.50 per metric ton. According to the plaintiffs, they communicated a conditional acceptance by telex, dated 10-3-199Lwhich stipulated:

t ^ (i) that a signed formal contract would be executed, (ii) that defendant No.l would submit an acceptable performance bond for the due performance of the contract strictly in accordance with the prescribed pro forma. Under clause 6(b) of the enquiry. Letter of Credit was to be opened by the plaintiffs within fourteen days from the date pf signing of contract which was subject to the receipt of the bank guarantee for the purpose.'

(4) On 16-3-1991 defendant No.2 submitted a signed contract form for itself on a performance bond which according to the plaintiffs was not in accordance with the tender enquiry. It is asserted that, between 16th March and 31st March,\ 1991, the plaintiffs received several communications, one of them requesting certain changes in the Letter of Credit and others requesting early, acceptance by opening of Letter of Credit as they expected the ship for carrying the commodity to berth for loading on or about 30/31st March, 1991. According to the plaintiffs' performance bond was subject to compliance with the condition—

%to keep this guarantee valid and in force for 90 days after completion of discharge of the contracted goods in Karachi.'

Whereas the performance bond furnished by the defendants contained the additional words "Or 15th August, 1991, whichever date is earlier'. On account of this addition, T.C.P. regretted that due to their non-compliance strictly with the pro forma of the performance bond supplied by them they had committed breach of the contract which stood cancelled now.

(5) It is further the case of the plaintiffs that notwithstanding aforesaid telex, the defendants in defiance of their obligation to mitigate damages by not loading the ship, loading the commodity on ship and after informing the plaintiffs that defendants were holding the plaintiffs in breach offered to sell commodity to the plaintiffs. Later defendant No.l communicated to the plaintiffs that it had purchased some consignment through M/s. Pasternak and claimed damages in the sum of US $ 18,31,250. Defendant No.l finally communicated to the plaintiffs a notice of arbitration by FOSFA London. Referring to arbitration in London in order to recover some amount of money from them which would be mostly, without jurisdiction and lead to multiplicity of legal proceedings in the absence of a binding contract, they filed this suit.

(6) The T.C.P. have prayed for an injunction in order to restrain the defendants from seeking remedy by arbitration before Federation of Oil Seeds and Fats Association, London and in the alternative a declaration that no binding contract having been concluded between the parties, the defendants cannot seek and proceed with the arbitration proceedings •before FOSFA, London. ..

(7) The defendants filed separate written statements wherein they denied the case of the plaintiffs in the plaint and explained the circumstances and the steps taken by -the parties in furtherance of the contract which in fact made contract complete and contracted for all intents and purposes. It was denied that the performance guarantee submitted by them did not fulfil the requirements of law.

(8) A counter-affidavit was also filed to the aforesaid Civil Miscellaneous Application disputing and denying various averments made by the T.C.P. and more particularly pointing out that clause (13) of the contract expressly provided that the bid bond of successful tenderers will be returned on their furnishing performance bond acceptance to the T.C.P. and thus, the scrutiny of the performance bond had to take place before the return of the bid bond which was returned to them. They further pointed out that the guarantee furnished by them contained a clause by which the Bank expressly agreed to extend it for such further period or periods as may be required by the buyers in their sole discretion five dayrbefore the expiration of the validity date. It was urged that there was no limitation on the validity of the guarantee and even if it be assumed that the guarantee was not fully complied with, the requirements of the tender, it was not open to the plaintiffs to unilaterally cancel the contract as they had accepted the guarantee. T.C.P. also returned the bid bond to the defendants which was decisive by itself to conclude that the contract was concluded/done. In fact the plaintiffs acted upon the contract by appointing M/s. Thionvitte Surveying Company ISA, as Pre-shipment Inspectors. They had equested the defendants to supply the relevant information pertaining to the shipment which was conveyed to the T.C.P. by means of a telex, dated 14-3-1991 stating that the vessel had been chartered by them by means of a chartered party, dated 12-3-1991 and particulars asked for were actually supplied. T.C.P. was further intimated that it was planned to start loading on or about lst/2nd April, 1991."

Examining the dispute, it becomes manifest that while the defendants-respondents were asking, time and again, for establishing of the letter of credit by the plaintiff-appellant, they were virtually eliciting no response. Yet, apparently, because the market had moved favourably for the defendants they were proceeding to make arrangements for the shipment of the consignment. In the ultimate analysis while the formal contract seems to have been concluded in spite of acceptance of offer through the plaintiff's telex, dated 10-3-1991 conditional upon the following:

"PARA. TWO

PLS submit performance bond FR 3rd of total CNF value within working days FM acceptance of YR OFR(.) You are requested to formalize contract immediately(.) L/C B opened only on receipt mal contract N acceptable performance bond(.)

REGARDS"

a performance bond from Banque Indosuez was submitted. In such performance bond in the original clause 2(ii), viz., "to keep this guarantee valid and in force for 90 days after completion of discharge of the contracted goods in Karachi", an additional phrase, namely, "or 15th August, 1991 whichever date is earlier" was inserted. Mr. Khalid Anwar, while arguing the case, pointed out that there was the undernoted other clause in the performance bond which covered the situation and made no difference whatsoever to the operative portion of the guarantee:--

"(iii) To extend this guarantee for such further period or periods as may be required by the Buyers in the Buyers sole discretion five days before the expiry of the validity date."

Be that as it may, the plaintiff per telex, dated 31-3-1991, principally on the basis of the above alteration, maintained that the supplier had committed breach and cancelled the contract. The telex in extenso is as under:—

"Reference your Telex, No. 1/3/14, dated 28-3-1991. No. 1/328, dated 28-3-1991 and No.1/351, dated 30-3-1991. It is true that we did inform you on 21-3-1991 that actions for opening L/C were already in hand(.) These actions included the scrutiny of the documents such as • performance bond etc. submitted by you to ascertain whether or not all the terms and conditions of the tender inquiry have been strictly adhered to by you(.) Regret to inform you that you have not adhered to the pro forma of the performance guarantee attached to the tender inquiry(.) According to clause 10 of the tender inquiry, the sellers were to arrange for performance bond/Bank guarantee for the performance of contract in buyer's prescribed pro forma within ten working days of acceptance of offer(.) Now when we have scrutinised the performance bond we have found that you have without any authority departured from our pro forma bond inasmuch as in clause (ii) it has been mentioned that guarantee shall remain in force for 90 days after completion of discharge of the contracted goods in Karachi 'or 15th August, 1991 whichever date is the earliest'(.) The above wordings within commas have been added by you in the guarantee!.) Further on the first page of the guarantee the maturity date is unauthorisedly mentioned as 15th August, 1991(.) We regret that due to your non-compliance strictly with the pro forma of the performance bond supplied by us you have committed breach of the contract and the same stands cancelled now. Regards."

On the facts stated, the learned Single Judge found that in spite of there being no formal contract and, thus, no formal arbitration clause the legal position remained unaffected. It is true, as the learned Single Judge has observed, that an arbitration agreement while such may be in writing need not be signed by the parties if circumstances go to establish that, formalities notwithstanding, there in fact subsisted a concluded arbitration agreement. While / much the same may be true of contracts generally, a contract may yet be conditional or even contingent. We have carefully examined the plea of Mr. Khalid Anwar that clause (iii) above reproduced covered the situation on the score of detriment, if any. However, we find that such clause has not been inserted by the seller or its bank to cover the alterations aforesaid but was already there in the draft form. It will, therefore, remain to be seen whether the words "15th of August, 1991" inserted in two places (according to the learned Single Judge just one), as brought out by the buyer did or did not make a difference. It is by no means without precedent that such technicalities may be made capital of by parties and even bankers when that suits a defence. On the other hand, it should remain to be seen whether the plaintiff for doing that it did was not entirely motivated by the falling market. Furthermore, it is to be noted that the formal contract was never signed even though that was one of the conditions of acceptance of the offer by the plaintiff-buyer. All ihis throws open the question whether or not due contract had been concluded and if such contract was not concluded, as urged by the plaintiff, there can hardly be any question that the arbitration agreement itself for much the same reason may not have stood concluded either. We may add here that nothing turns on the question that the plaintiff, as a last resort, chose to cancel the contract, rather than say that none was concluded. This is not the stage to determine that question. All that need be stated at this juncture is that it is not for the parties but for the Court to assess whether the contract was rescinded or never materialised, the parties' conduct at best furnishing a clue in the direction of assessing the legal implications. In saying so, we are mindful of the fact that acceptance must correspond exactly to the terms of the offer (Hugh Collins: the Law of Contract, p.72) and there has to be Consensus AD Idem (State of Punjab v. Hindustan Dev, AIR 1960 Punjab 585). The person, to whom the tender is submitted\does not always incur liability merely by accepting it. At times, he becomes liable only when he places an order for the goods. The same is true where it is expressly stipulated that "there is to be no contract until certain formal documents have been executed" (Treitel: The Law of Contract, p.20). There can be no specific performance unless there is a complete or definite contract (Snell's Principles of Equity, 1947, at p.557). The manner prescribed for acceptance of the proposal cannot be mere silence nor can, as an unexceptionable rule, silence simpliciter amount to an assent (Dr. M.A. Mannan: The Contract Act, 1872, section 9, p.81 and Bank of India v. Rustom Fakirji, AIR 1955 Bom. 419). An offerer has no power to cause the silence of the offeree to operate as an acceptance when the offeree does not intend to do so (Corbin on Contracts, Vol.1, p.310, 1963 Edn.). Mr. Samiuddin Sami for the appellant had contended likewise.

It is nobody's case that any inherent power vests with the arbitrator to determine the existence or effect of an arbitration agreement muchless such a determination of the larger agreement of which an arbitration clause may only be one of the clauses.

Mr. Khalid M. Ishaque points out that a subtle distinction has been drawn by the Indian Supreme Court between the existence and validity of the main contract and an arbitration clause therein as reported in Korean Transport v. Jaya Bharat, AIR 1987 SC 2289 and it has been found that there is no bar in section 9 of the Code of Civil Procedure for entertainment of a suit seeking the validity or effectiveness of a broad contract determined of which the arbitration component is but one of the ingredients. The learned Single Judge was'in error to hold that Awan Industries Ltd. v. Ex. Engineering Lines Channel, 1992 SCMR 65, is a deviation from the rule spelt out by the Indian Supreme Court. That case neither expressly nor impliedly lays down any other rule. On the contrary in Badri Narayan v. Pak Jute, PLD 1970 SC 43, the Supreme Court of Pakistan referred with approval is a passage in AIR 1959 SC 1357, where it was categorically observed that while dealing with an arbitration clause, pure and simple, in terms of seclion 33 of the Arbitration Act, the Court was not concerned with the other terms of the main agreement which lay beyond the scope and parameters of section 33 aforesaid. The applicable observations of their Lordships are as under:—

"The provisions referred to above clearly permit a party to an arbitration agreement to challenge the existence of such an agreement by filing an application under section 33 of the Act. Section 32 bars a suit to obtain such a relief. Two questions, therefore, fall for determination. It is firstly to be seen whether the appellant who denied to have signed the contract which contained the arbitration clause could .file an application under section 33 of the Act. The other point which needs consideration is whether in the absence of an independent application under section 33 the existence of the agreement could be challenged by way of defence to the acceptance of the award by the Court for the passing of a decree in terms of it. The fact that the appellant denied to have signed the contract will not disentitle him to challenge it under section 33 as the words 'any party to an arbitration agreement' in that section include avparty who is alleged to be a party to an .agreement, but who challenges the existence thereof.

In the case of Shiva Jute Baling Limited v. Hindley & Co. Limited (AIR 1959 SC 1357), the Supreme Court of India observed:---

"The part of section 33 of the Arbitration Act, relevant for our purposes, ^lays down that any party to an arbitration agreement desiring to challenge the existence or validity of an arbitration agreement or to have its effect determined shall apply to the Court and the Court shall decide'the question. It will, thus, be clear that section 33 contemplates an application for three purposes, namely, (i) when it is desired to challenge the existence of an arbitration agreement, (ii) when it is desired to challenge its validity and, (iii) when it is desired to have its effect determined. An arbitration agreement may come into existence in one of two ways; it may either arise out of an agreement which contains nothing else besides the arbitration agreement, or it may arise out of a term contained in a contract which deals with various other matters relating to the contract, which is the present case. Where one is dealing with an arbitration agreement of the second kind, section 33 is concerned only with the term relating to arbitration in the contract and not with the other terms of the contract which do not arise for consideration on an application under that section!"

We respectfully agree with the above observations. The only point that could be raised by the appellant under section 33 was whether the clause relating to the arbitration agreement existed. Section 33 of the Act has nothing to do with the other terms of the contract which the appellant is said to have signed. It is true that the case of the appellant is that he never signed the agreement in question which contained the arbitration clause. Nontheless his right to challenge the term relating to arbitration cannot be denied in view of the language of section 33 of the Arbitration Act. The Arbitration Act of 1940 is a consolidating and an amending Act and is complete Code in itself relating to arbitration save what is mentioned in section 47. The learned Judges of the High Court in holding that the remedy of the appellant lay in filing a.suit when he challenged the existence of the contract itself have relied upon the decision of the Indian Supreme Court, reported, in AIR 1959 SC 1357 to which reference has already been made by me. I have found no observation in that judgment which lends support to such a conclusion. The challenge of the appellant, of course, has to remain confined to the arbitration clause in the agreement but in challenging the same I do not find any reason why he could not show that he had not signed the agreement and, therefore, the arbitration clause was non-existent. The view that I have taken finds support from the following observation made by Gajendragadakar, J., in the case reported as Jawahar Lai Barman v. Union of India (AIR 1962 SC 378):—

"Even if it is held that there is inherent jurisdiction on the Court to entertain an application in support of the existence of an arbitration agreement the question still remains whether an application can be made under such inherent jurisdiction for a declaration that the contract which includes the arbitration agreement as defined by section 2(a) includes cases where the arbitration is made a part of the contract itself. The argument is that though an application may be made under the inherent jurisdiction of the Court to obtain a declaration about the existence or validity of an arbitration agreement, no such application can be made to obtain a declaration about the existence or validity of the main contract itself. In dealing with this argument it would be necessary to have' regard to the substance rather than the form of the matter. In the present case the respondent claims that there is a concluded contract between the parties and that the said contract contained a valid arbitration agreement. Looking at the substance of the matter the prayer was first in regard to the existence and the validity of the main contract leading up to the second and principal prayer that there was a' valid arbitration agreement. Quite clearly the decision of this question cannot depend merely on the words used in the petition. Where the challenge to the contract made by the appellant in defence to the claim of the respondent is a challenge common to both the contract and the arbitration agreement, the petition, like the one made by the respondent, must in substance be held to be a petition for a declaration as to the existence of a valid arbitration agreement; and a suit to contain such a declaration is clearly barred by section 32. Therefore, in our opinion, the fact'that an incidental declaration is claimed about the existence and validity of the main contract does not affect the essential character of the application. It is an application for obtaining a declaration about the existence and validity of an arbitration agreement.'

The declaration prayed for by the appellant that he had not executed the contract in question included the declaration that the arbitration agreement did not exist. A spit filed for such a declaration would be clearly hit by section 32 of the'Act as the prayer for declaring the non-. existence of the arbitration agreement cannot be made in a suit in view of the words 'on any ground whatsoever', used in that section."

What, therefore, emerges from the above discussion is that section 9 of the Code of Civil Procedure does not bar- a suit where the existence, affect or validity of a contract is questioned in which contract an arbitration clause is also B incidentally included. Indeed, such a broad contract cannot, as a whole, be challenged under section 33 of the Arbitration Act, though the arbitration clause therein separately may.

On our part, we called for the suit file and examined at to what action of the learned Single Judge has taken with reference to the following conclusion recorded by him in the impugned order:—

"32. Before parting with this order, I would direct the issuance of notice to the plaintiffs to appear and to address this Court with regard to the maintainability of the suit in the present form."

We find that the learned Single Judge has lately drawn up the issues in the case and the main controversy is to proceed to trial.

Having said as much we are by no means convinced that no prima facie case, in other words, an arguable case was made out by the plaintiff. To this extent the conclusion of the learned Judge was erroneously recorded.

However, the foregoing does not and should not make any difference to a case of this character. Even where a suit questioning the main agreement is brought and is found entertainable, notwithstanding an arbitration stipulation in it, such suit in itself, as an interim measure should not be allowed to preclude arbitration proceedings in totality. It seems to us that notwithstanding such a suit the arbitration clause cannot be suspended or unreasonably whittled down solely _ because the main agreement is under challenge. If a party is distinclined to go to arbitration then, notwithstanding such a general or broad-based challenge with which the arbitration clause may stand or fall it must institute appropriate proceedings under section 33 of the Arbitration Act, challenging the arbitration clause itself and unless that is done the arbitration proceedings cannot, as an interim measure, be allowed to be bypassed. That the plaintiff has not done, as was the requirement under section 33 of the Arbitration Act. It follows, therefore, that till such time the suit proceeds to trial and the entire contract is found either not to have been concluded duly or stood to have been lawfully cancelled and with it the arbitration clause, the parties have to go to arbitration, if anyone of them insists for that course.

Indeed any other course may prove to be counter-productive. It can hardly be disputed that a person, in default, solely to circumvent the quick and effective procedure of arbitration may embark upon a broader suit of the present category. The proceedings may be mala fide and if an interim injunction is issued therein, precluding the arbitration the fundamental intention of the parties may be put at naught and one of them may stand to suffer irreparable loss. None of this should occur if an interim injunction of the same kind were to issue on a summary challenge to the arbitration agreement under section 33 of the Arbitration Act. The detriment to the opposite number in such a situation can only be transitory since no protracted proceedings should thereby be generated; not necessarily so may transpire in a regular suit. There instead of interim relief the suitor must wait for the ultimate outcome. In case, a suit' of the instant character succeeds with such success the arbitration proceedings and even the award following thereupon, if any, would fall and if |not the proceedings and the award can be given due effect to. If an award intervenes, while such suit still remains pending the suit can be expedited to ensure that justice is denied to none. Balance of convenience also lies in favour of allowing arbitration proceedings to take place and that process to commence and conclude without anyone being left as a sufferer in the process. It will be another matter though if both parties in such a suit agree to postpone the arbitration in which case, of course, consent order to such effect can be passed. Similar should be the effect if the plaintiff in such a suit, instead of having a mere prima facie or arguable case has an indefeasible case to go to trial. There the elements of irreparable loss and balance of convenience would fall in place and an interim injunction may well be the choice relief for no useful purpose can be achieved by opening up an arbitration, where, for instance, the main agreement is void and where the arbitration at, the inception itself, may be no more than still-born

Having said as much, we are of the view that, as a general rule, in cases of this character since all the essential ingredients for grant of an

injunction, namely, prima facie case, irreparable loss and balance of convenience cannot normally subsist conjointly, an interim relief in the way of injunction can neither be granted nor sustained.

For such reasons even though we think that the learned Single Judge was not entirely right in drawing the conclusion that he did, he was perfectly justified in refusing to stay the arbitration proceedings. This appeal, therefore, fails but the outcome of the arbitration would abide the result of the suit. The parties are left free to nominate their respective arbitrators.

(K.K.F.) Appeal dismissed.

PLJ 1999 Karachi 48 (DB)

\ "Present: ikram ahmad ansari, J.

Haji BAGH ALI through LEGAL HEIRS and 9 others-Appellants

versus

Messrs HABIB BANK LIMITED through VICE-PRESIDENT

& ZONAL OFFICER-Respondent :

F.R.A. No. 296 of 1986, decided on 13.3.1998

"i) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—-Ss. 10(3) & 15(2)(ii)-Tenant-Ejectment of-Defualt-Ground of~Duration of tenancy was 120 months and tenant had paid advance rent for period of 60, months—After adj ustment of advance rent of 60 months, further rent had become payable but tenant failed to pay or tender such future rent to landlords—Tenant, in circumstances had committed flagrant, deliberate and wilful default in payment of rent and he had become liable to be ejected on ground of default. [Pp. 52 & 54] A & D

(ii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—Ss. 12 & 15(2)(ii)-Tenant-Ejectment of-Repair charges-Adj ustment against rent payable-Claim of-Tcnant had alleged that on failure of landlord to cany out necessary repairs of premises in question according to terms of agreement, tenant carried out such repair and spent amount equal to rent of five months and had claimed that such amount should have been adjusted against payable rent-Tenant before carrying out alleged repairs neither had made any request to landlords in that respect nor approached Rent Controller through an application to carry out repairs-Tenant had also failed to examine person who carried out repairs in premises—Tenant who failed to advert to provision of S. 12 of Sindh Rented Premises Ordinance, 1979 with regard to repair, had no authority either to carry out any. repair of premises or to claim an adjustment of amount allegedly spent by him on repair against payable rent.

[Pp. 53, 54 & 55] B, C & E

1986 CLC 955; 1993 MLD 2215; 1995 MLD 816; 1986 CLC 702; 1996 CLC 221 and 1987 CLC 378 ref.

'

Jhamat Jethanand, Advocate for Appellants. . . "\&''«'• Hakim All Siddiqui, Advocate for Respondent.

Date of hearing: 6.2.1998.

judgment

;

This appeal is directed against the order, dated 30.10.1986 passed by the learned IVth Senior Civil Judge and Rent Controller, Hyderabad, in the proceedings of Rent Application No. 128 of 1982 whereby the eviction application filed against the respondent was dismissed.

The brief facts relevant for the decision of this appeal are that the appellants are owners of Property bearing No. 1725/A-96, Hospital Road, Hyderabad, and the respondent is their tenant in respect thereof at the agreed rental of. Rs. 1,000 per month. The respondent failed to tender the rent of the case premises since 22.10.1981, hence it was prayed that the respondent be ejected from the case premises and vacant possession of the same be delivered to the appellant.

In rebuttal of the case of the appellants the respondent on 11.2.1984 filed its written-staternent admitting the relationship of landlord and tenant between the parties and the quantum of rent. As to default in payment of , rent it is the case of respondent that at the time of execution of Agreement of Lease, dated 22.10.1976 it had paid to one of the co-owners a sum of Rs. 60,000 (Rupees sixty thousand) as advance rent for sixty months. It is also the case of respondent that it was put in possession of the case premises at the end of December, 1976 and in fact tenancy commenced from January, 1977 and was to end after 120 months. That the respondent made huge investment for the fittings and fixtures which are usual in case of Banks, though under the agreement landlord was to carry out repairs, colour wash, distemper, paint etc. but on their failure to do so respondent, on oral '—— permission/consent of one Shahdad Ali, one of the co-owners of the case premises, carried out the same at their own cost of Rs. 5,370 which amount was to be debited to the rent account of the appellants. It was denied that the rent was due from 22.10.1981 and the aforesaid advance payment of rent covered the period upto December, 1991 and the expense of Rs. 5,370 was also to be adjusted towards the rent of another period of five months, according to which the rent was deemed to have been paid upto May, 1982. It is also the case of respondent that since the executant of the agreement died in the meanwhile and nobody turned up to collect the rent, therefore, respondent filed an application under Section 10 of the Sindh Rented V" Premises Ordinance, 1979, before the Controller and deposited the rent of June, 1982 and ever since have regularly been depositing rent in the Court of Rent Controller. Hence it was pleaded that neither the respondent has failed to tender rent due for any month nor is liable to eviction. • , In support of case of the appellants, Appellant No. 1, Hqji Bagh Ali son of Hussain Ali, filed his affidavit-in-evidence wherein he reiterated the statements made in the eviction application and further submitted that... ^ -, neither the respondent had any authority or power to carry out the repairs etc. of the case premises nor in fact any alleged repairs were carried out and as such respondent was not entitled to the adjustment of the alleged amount of Rs. 5,370. He also submitted that Shahdad Ali died on 22.7.1979 and the respondent had the knowledge of his death and knew that appellants are the surviving owners of the case premises. That the respondent bank committed deliberate default in payment of rent, and it was liable to be evicted from the case premises. The said witness of the appellants was cross-examined by the learned Advocate for respondent on 9.4.1985. In the cross-examination it was categorically stated that the witness is brother of Shahdad Ali, who was a co- owner and had executed the rent agreement, dated 22.10.1976, photo copy of such lease agreement is on record as Exh. 31. For want of knowledge it was denied if said Shahdad Ali had undertaken to make any changes in the case premises as per requirement of respondent bank. It was voluntarily stated that at the time of Agreement of Lease the case premises was a new building, therefore, question of repair or changes did not arise. It was denied that respondent bank carried out and effected the alleged repairs subject to adjustment of Rs. 5,370. It was stated that the fact of death of Shahdad Ali was verbally communicated to the bank authorities. The witness denied the receipt of notice, dated 27.6.1982 issued by respondent Bank requiring the appellants to collect the rent. In cross-examination the suggestion that the respondent is nqt a defaulter was denied.

On behalf of respondent its two officers, namely, S. Shamim Ahmed and Nizar Ali Khoja, filed their affidavits in evidence and they were cross-examined by the learned counsel for the appellant. In the affidavit-in-evidence of said witnesses the averments made in the written statement of respondent bank were reiterated but in the cross-examination respondent's witness S. Shamim Ahmed admitted the execution of agreement of lease, Exh. 31, but he stated that at that time he was not Manager of the respondent bank as he was appointed on the said post from 1.4.1977 to 7.7.1979. He admitted that as a matter of fact tenancy in respect of the case premises commenced from 22.10.1976 and at that time case premises was a newly constructed building but it was without plaster and fixtures. He also admitted that the respondent bank did not give any notice to Shahdad Ali for completing the building with plaster and fixtures. He denied that Shahdad Ali had not permitted to carry out the repairs and plaster at his expenses. He denied that the cost of repairs as per Exhs. 24/1 and 24/2 do not pertain to the case premises. He admitted that when the case premises was given on lease to the bank it was already colour washed, distempered and painted. He stated that he is unable to say if rent was offered to the appellants by the respondent bank after the expiry of lease period of five years as according to him he was already transferred from the bank branch in question before the _ expiiy of the lease period.

Nizar Ali Khoja, the other witness of respondent bank in his affidavit in evidence admitted the execution of Exh. 31 but stated that actual and physical possession was not delivered to tha respondent bank till the last week of December, 1976 and that in fact the tenancy commenced from January, 1977 and not from 22.10.1976. In his cross-examination the said witness stated that he has never remained incharge of the branch of Habib Bank Limited in the case premises and that according to the agreement of . lease (Exh. 31) the tenancy commenced from 22.10.1976 and that newly constructed building was handed over to the respondent Bank. He also stated that it is a fact that building in question did not require any repairs at the time when the respondent bank got its possession. He voluntarily stated that the respondent bank had carried out necessary work of sanitary fittings, colour wash and electricity work in the case premises and that the vouchers produced as Exh. 24/1 and Exh. 24/2 pertain to the work carried out by the bank in the case premises.

In order to resolve the controversy with regard to the actual date of commencement of tenancy and the need of repairs, white wash etc. it will be pertinent to refer to the preamble and Clauses 3, 4(a) and 4(b) of the agreement of lease which is on record as Exh. 31. Admittedly Exh. 31, dated 22.10.1976 was executed between the parties. The clauses 3, 4(a) and 4(b) of Exh. 31 (Agreement of Lease) read as under:-

"3. The duration of the lease shall be 120 months commenced from the 22nd day of October, 1976 on which date the tenant will be put in possession of the Demised Premises."

1. The landlord hereby convenants with the Tenant as under:- , (a) To allow the Tenant to carry on its business of banking in the Demised premises and to allow peaceable vacant and uninterrupted use and occupation of the Demised Premise.

(b) To effect such repairs colour wash, distemper, paint on the doors, windows, gates, garage as may be called upon by and to the satisfaction of the Tenant as conveyed to the Landlord by the Manager of the Branch in occupation of the Demised Premises, by way of Tenant."

From the reading of aforesaid clause (3) of Exh. 31 it is amply clear that the tenancy in question commenced with effect from 22.10.1976'and as such the payment of advance rent of Rs. 60,000 was upto 21.10.1981 and as such the future rent at the rate of Rs. 1,000 per month was payable by the respondent to the appellants with effect from 22.10.1981.

It will be pertinent to refer to Section 10(3) of Sindh Rented Premises Ordinance, 1979. According to which where the landlord has refused or avoided to accept the rent it may be sent to him by postal money order or be deposited with the Controller within whose jurisdiction the premises is situated. Admittedly, no money order of any amount was sent by respondent Bank to any of the appellants. In view of terms and conditions of lease, said advance rent of Rs. 60,000 was adjustable upto 21.10.1981 whereafter the respondent was bound to pay or tender future rent to the appellant at the rate of Rs. 1,000 per month, which has not been done. This fact even according to the version of the respondent amounts to the deliberate default in payment of rent.

As to the adjustment of Rs. 5,370 allegedly incurred by the respondent in carrying out the repairs etc. I again revert to clause 4(b) of Exh. 31, according to which the Manager of the respondent Bank in the first instance had to call upon/convey to the landlord that repairs, colour wash, distemper, paint etc. was needed to be carried out; but no such demand has been proved to have been made on the landlord. Before dilating upon this controversy I will prefer to make reference to the provisions of Section 12 of the Sindh Rented Premises Ordinance, 1979 and for the sake of convenience it is reproduced hereunder:-

"(12) .Repairs.--(1) Subject to the agreement if the landlord fails to make such repairs or white-washing as may be necessaiy to keep the premises in proper shape, the Controller may, on application made to him by the tenant and after such inquiry as the Controller deems fit to make, direct that such repairs or white-washing may be made by the tenant and the cost thereof may be deducted from the rent payable to the landlord.

(2) Where any authority empowered by a law for the time being in force has required landlord to make such repairs within such period as may be specified by such authority and the landlord has made default in this behalf, such authority was require the tenant to make such repairs.

(3) Where the tenant has made the repairs as aforesaid the authority ordering the repairs shall, after the verification of the details of the expenditure incurred by the tenant, certify the cost repairs and tenant may thereupon deduct the amount so certified from the rent payable to the landlord.

According to the above provisions of law on the failure of the _ landlord to carry out necessaiy repairs the tenant has to make an application to the Controller who after the enquiiy can direct that such repairs or white­wash may be made by the tenant and the cost thereof be deducted from the rent payable to the landlord. In the instant case, admittedly before carrying out the alleged repairs neither any request was made to the landlord nor the concerned Controller was approached through an application seeking his permission to carry out the repairs arid to deduct cost thereof from the rent payable by the tenant to the landlord.

On the basis of the foregoing, I am not inclined to allow the respondent to deduct the alleged amount of Rs. 5,370 which comes to be.the rent of more than five months of the case premises at the agreed rate of Rs. 1,000 per month. It is also pertinent to mention here that the respondent has failed to examine the person who carried out the alleged repaii-s in the case premises and to whom the said sum of Rs. 5,370 was paid.

In support of his case the learned Advocate for the appellant has relied upon the reported cases of (1) Muhammad All v. Mst. Madina and 2 others 1986 CLC 955 (2) A.R. Umer v. Haji Abdul Karim, 1993 MLD 2215(3) Messrs Bamboat & Co. v. Messrs G.B. Construction Co. 1995 MLD 816. On behalf of the respondent its learned Advocate contended that there is no document of deliver of possession of the case premises from the appellants to the respondent showing that the possession of the case premises was in fact delivered on 22.10.1976 and as such he contended that the deposition of witnesses of respondent should be believed that the possession of the case premises was delivered to the respondent in January, 1977 from which date the tenancy commenced and as such the advance payment of Rs. 60,000 was to be treated as rent for the period from 1.1.1997 to 31.12.1981. He further contended that in view of Exh. 24/1 and Exh. 24/2 there was no need to examine the person who had carried out the repairs in the case premises and to whom the said sum of Rs. 5,370 was paid. The learned Advocate for respondent contended that after the death Shahdad AM, the executant of Exh. 31 the respondent bank vide letter, dated 27.6.1987 (Exh. 26 on record) had required M/s. Haji Bagh Ali, Feroz Ali and Ashraf All to disclose the bank as to who are the legal heirs of the case property and that the bank should have been informed as to who was authorised person to whom the rent could be paid. It is pertinent to mention here that no rent was tendered to all or any one of the three above-named persons and subsequently vide Exh. 28/1 and Exh. 28/2 rent was deposited in Court in favour of Bagh Ali.

During the course of his arguments learned Advocate for respondent submitted that the above-referred citations made by the learned counsel for the appellants are not attracted to the case in hand and on his won part the learned counsel has relied on the reported cases of (1) Sh. Fazalur Rchman vs. Muhammad Yousuf 1986 CLC 702 (2) Muhammad Yasin v. Ali Muhammad 1996 CLC 221 and (3) Haji Ahmad Haji Abdur Rehman v. A.H. Sherazai 1987 CLC 378.

In the circumstances of the case and the law applicable to the matter, I am of the considered view that the appellants have established through their oral and documentary evidence that the date of commencement of tenancy was 22.10.1976 and in the absence of any requisition or demand, in terms of clause 4(b) of Exh. 31 and without adverting to the provisions of Section 12 of the Sindh Rented Premises Ordinance, 1979, the respondent had no authority either to carry out any repair etc. or to claim deduction of Rs. 5,370 allegedly spent by it on the repairs of the case premises. Hence, from the record it is amply clear that the respondent has committed flagrant, deliberate and wilful default in payment of rent of the case premises as submitted by the appellants in their pleadings and evidence. I am of the opinion that the aforesaid citations referred to by the learned Advocate for the appellants are aptly applicable to the case in hand whereas the citations made by the learned Advocate for the respondent are not attracted to the facts and circumstances of the case.

I have carefully perused the impugned order, dated 30.10.1996 and find that the learned Controller in passing the said order has failed to interpret the agreement of lease, dated 22.10.1976 Exh. 31 in its proper perspective and has erred in ignoring the evidence of appellants and has further erred in believing the respondent whose witnesses themselves have admitted that the tenancy commenced w.e.f. 22.10.1976 and that for carrying out the alleged repairs that did not obtain any permission of the appellants or the competent authority or of the concerned Rent Controller and as such he should not have dismissed the eviction application of the appellant.

For the foregoing reasons I set aside the impugned order, dated 30.10.1986 and allow this appeal with costs and keeping in view that the case premises is a commercial premises allow to the respondent a period of six months for vacating and handing over peaceful possession thereof to the appellants subject, however, to the continuance of payment of due rent by the respondent to the appellant and/or deposit of such rent in Court. In case the respondent fails to pay or deposit the due rent, as aforesaid, then the appellants would be free to move appropriate execution proceedings against the respondent forthwith.

Above are the reasons by my short order, dated 6.2.1998 whereby this Rent Appeal has been allowed with costs.

The appeal is allowed with costs. (K.K.F.) Appeal allowed

PLJ 1999 Karachi 55

Present: rasheed ahmed razvi, J. PROGRESSIVE METHODS (PVT.) LIMITED-Plaintiff

versus

SHAHEEN AIR PORT SERVICES and others

-Defendants Suits Nos. 760 of 1992 and 679 of J1990, decided on 25.2.1998.

Arbitration Act, 1940 (X of 1940)--

—Ss. 20, 16 & 39~Arbitration proceedings—Defendant's counter-claim was dismissed due to non-appearance and non-production of evidence on target date- Status-Defendant could not be non-suited due to one default for which he had offered plausible explanation in respect of counter-claim-Act of Arbitrator in dismissing defendant's counter-claim, however, did not fall within term "misconduct" as defined in S. 39(a), Arbitration Act, 1940; objection to legality of award apparent on the face of it would be justified in so much as to remit that award to same Arbitrator for reconsideration-Arbitrtion Act, 1940, although contained no statutory rule imposing mandate.on Arbitrator not to proceed ex parte against any defaulting party without first giving notice of his intention to proceed in that manner, yet issuance of notice by Arbitrator expressing his intention to proceed ex parte was rule of prudence and convenience- Arbitrator ought not to proceed ex parte against defaulting party for its non-appearance at one of sittings-Arbitrator should fix another date for hearing and give notice to defaulting ;party of his intention to proceed ex parte on specified date, time and, place-Defaulting party could be proceeded against ex parte when it had failed to appear on receipt of such notice-Arbitrator's award was set aside and same was remanded to him to proceed with arbitration from the, stage on which he had proceeded ex. parte.'" [Pp. 60 to 63] A, B, C & D

(1954) 59 OWN 146; (1806) 13 Ch. D. 156; PLD 1960 (W.P.) Kar. 455;

PLD 1971 Azad J&K 127; PLD 1977 SC 237; 83 LJKB 1296; PLD 1987 SC 393; Halsbury's Laws of England, Fourth Edn., Vol. 2, p. 306; (1820) 2 Jac & W 249; (1855) 24 LJQB 69; Re Morphett (1845) 2 DOW & L

967; Wrxham, Mold and Connah's Quay Rly Co. (1895) 39 Sol. Jo. 692; (1723) 9 Mod. Rep. 63; (1803) 9 Ves 67; (1806) 12 Ves. 412; (1820) Uac & W 505 at 512; (1844) 6 QB 237; (1858) 27 LJ Ex 320; (1861) 2 F & F 381; Re Hewitt and Portsmouth Waterworks Co. (1862) 10 WR 780; (1841) 9 Dowl 550; AIR 1956 Pun. 187; AIR 1983 Delhi 413; AIR 1924 Cal. 524; AIR 1920 Cal. 853; AIR 1932 Bom. 68; AIR 1955 Cal. 354, AIR 1954 All. 244 and AIR 1988 Cal. 174 ref.

Nemo for Plaintiff.

Mr. Sajjad Ali Shah, Advocate for Defendants.

Date of hearing: 25.2.1998.

order

On 23.12.1990, the dispute pending between the parties was referred to the sole arbitrator by consent of the parties in Suit No. 679 of 1990 with the following observations:-

"By consent of the learned counsel present the main application in the suit, namely, that under Section 20 of the Arbitration Act is taken up and the Arbitration Agreement is directed to be filed. Pursuant to this application, in terms of the contract between the parties, Mr. Justice (Retd.) Zahoorul Haq is appointed as the sole arbitrator in the reference but his function, mutatis mutandis, would be the same as that of an umpire under the relevant contractual provisions. The learned sole Arbitrator would be provided with the necessary papers including relevant applications and affidavits as well as documents in this suit by both the panics within two weeks. Claims, counterclaims and replies shall likewise be filed. The requisite award, of course, would be rendered within the prescribed period of four months from the date of the entering upon the reference by the learned sole Arbitrator. The fees of the learned Arbitrator is, tentatively, fixed at Rs.50,000 to be shared 50% each by the plaintiff on the one side and the defendant No. 1 on the other, the fees to be payable directly to the learned sole arbitrator. This disposes of the above suit in the foregoing terms."

1. Both the parties filed their claims and counterclaims before the learned Arbitrator and as a result of the same, some 10 issues were framed. On 3rd November, 1992 upon conclusion of the proceedings, the learned Arbitrator pronounced the following Award:—

"Since the plaintiff had not appeared for the complete cross-examination, therefore, that evidence has to be ignored. Consequently there is no evidence in support of the plaintiff's case and the defendant had not admitted any part of plaintiff's claim, therefore, the claim of the plaintiff is dismissed.

Similarly the defendant has not preyed any part of its counterclaim nor the same was admitted by the plaintiff and hence the counterclaim of the defendant is also dismissed. The arbitration is, thus, disposed of."

1. After filing of the Award before this Court, several notices were issued to the plaintiff but they have failed to appear. Consequently, this Court directed issuance of notice to the learned counsel Mr. Bilal Khawaja, who was representing the plaintiff before the Arbitrator. Today, he has appeared in Court and has stated that he does not know the whereabouts of the plaintiff and that he has not been engaged after the conclusion of the arbitration proceedings. In pursuance of this Court order several notices were issued as well as published in daily newspapers, namely, 'Dawn' on 18-12-1993 and vMashriq' on 22nd March, 1994. According to the postal endorsement plaintiffs have abandoned their office. All attempts to compel the plaintiff to appear before this Court have gone in vain and, therefore, this Court has no option but to proceed with the objections filed by Mr. Sajjad AH Shah. It was contended by Mr. Sajjad Ali Shah that the Award is liable to be remanded back to the Arbitrator on the grounds, firstly, that during the proceedings before him, hundreds of documents were admitted and denied by the parties and, therefore, his finding that the parties have failed to adduce evidence is not sustainable in law; secondly, the Arbitrator was required to give notice of his intention to proceed ex parte and lastly, that he was required to issue notice to the parties, intimating the date and time for the purpose of pronouncing Award. He has also referred to the cases in support of his contentions, namely, (1) Juggilal Kamlapat v. The General Fibre Dealers Ltd. (1954 (59 CWN) 146) and Wood v. Leake (J806), 13 Chancery Division page 156). In the first case of Juggilal, it was held by a Division Bench f Calcutta High Court, that if a party to an arbitration agreement fails to appearon one of the sittings, the Arbitrator should not proceed ex parte against him, but if non-appearance of such party appears to the Arbitrator to be an act of delaying the proceedings then the Arbitrator is permitted to proceed ex pane. In _. _

other words, it was observed in that case that the Arbitrator before proceeding ex pane against any party should be satisfied about the conduct of the part)'. In the case of Wood v. Leake more or less same view was held that every arbitrator has the power to proceed ex pane against a party, who, though served failed to attend with a view to prevent justice and to" defeat the object of the Reference. Reliance has also been placed on "Russell's on the Law Arbitration, 17th Edn. (Stevens & Sons Ltd., London), page 171, where it was observed that the proceedings in an arbitration ends as a general rule, with counsel's speeches and then the arbitrator informs the party that he will make his award in due course. It was further observed that an arbitrator should make his intention clear without any doubt that the proceedings have ended and that he now wants to proceed to make his award.

1. I have gone through the record of the arbitration proceedings, which as commenced on 12th February, 1991 by filing of claims and counterclaims by the parties. On 28th July, 1991 since the plaintiff failed to produce his witness, his side of evidence was closed, whereafter the matter was adjourned to 20th August, 1991 for the defendant's evidence. It was noted by the learned ^r\'~Te~~ arbitrator that on 20th August, 1991 the defendants appeared alongwith his witness and filed his affidavit-in-evidence. However, on 19th September, 1991 the plaintiff's side was reopened in the interest of justice. Thereafter, matter continued and several opportunities were extended to the plaintiffs to conclude his side of evidence when finally on 17th May, 1992 the side of P.W.I was closed and one more opportunity was extended to the plaintiff for producing his further evidence. The matter was adjourned to 3rd June, 1992 when finally it was stated on behalf of the plaintiff that plaintiff is not inclined to lead any further evidence and the matter was adjourned to 27-7-1992 when the following orders were passed:—

"27-7-1992. Mr. Nasir Mahmud, holding brief for Mr. Bilal Khawaja for the plaintiff, is present. None else is present. Mr. Nasir states that • the plaintiff's counsel have not received any affidavit of any witness of the defendant which should have been supplied by 20-7-1992.

Today the matter was fixed for cross-examination of the defendant's witnesses but no witness is present. Therefore, the case of the defendant is hereby closed as time fixed was 9-30 a.m. and now it is 9-58 a.m. Since the plaintiff had not appeared for the complete cross-examination

therefore, that evidence has to be ignored. Consequently, there is no evidence in support of the plaintiffs case and the defendant had not admitted any pan of plaintiff's claim, therefore, the claim of the plaintiff is dismissed.

Similarly the defendant has not proved any pan of its counterclaim nor the same was admitted by the plaintiff and hence the counterclaim of the defendant is also dismissed. The Arbitration is thus, disposed of.

27-7-1992. Mr. Sajjad Ali Shah turned up at 5 p.m. and made application for reopening the case of defendant. Notice to the other side for 4-8-1992."

1. Against the aforesaid order of the learned Arbitrator the defendant filed an application for recalling of the same, which was rightly dismissed by the learned Arbitrator on the ground, that after pronouncement of Award he has ecome functus officio. While arguing, it was contended by Mr. Sajjad Ali Shah that it is a case of clear hardship. So far as the defendant is concerned, not a single opportunity was awarded to him in comparison to the plaintiff, which fact was also noted by the learned Arbitrator in the following words:—

"At the very first outset I must say that I have felt sympathy for the defendant as their absence before me on 27-7-1992, at 9-30 a.m., was caused by an inadvenent mistake by the counsel in noting a wrong time. It was a good cause for re-opening of their case if the matter had not.— . been concluded on that day. And further I have no hesitation in

agreeing with the learned counsel for the defendant that considering the circumstances of the case and the opportunities which had been granted to the plaintiff it would have been at least more appropriate and probably a bit more equitable if I had not proceeded to conclude the whole matter on 27-7-1992, and at least had given one more opportunity to the defendants to prove their case.

It is, therefore, clear that the defendant had obtained a long date for 27-7-1992, at 9-30 a.m. for its evidence but neither filed the affidavit of any witness ten days before hearing nor was present on 27-7-1992. The defendant very well knows the result of non-production of witnesses and the matter could be legally concluded against ihem. It • may have been better if I had waited but I did not wait further nor adjourned the matter and while so acting I did not commit any illegality or irregularity."

1. One of the grounds given in section 30 of the Arbitration Act, 1940 for setting aside an award is that where it appears to the Court that the same is "otherwise invalid". One more ground is, whether an arbitrator misconducted himself. In the instant case, it was rightly held by the learned Arbitrator that after pronouncement of the Award, he becomes functus officio. However, under such circumstances, a Court is competent to set aside an award and to remand the same where it appears that the parties were not afforded proper opportunity to produce their case. In the instant case, I am fully salified that due to one default of the defendant, even for which a plausible explanation was offered, he A could not be non-suited when he has preferred his counterclaim before the same arbitrator.

2. The term misconduct as referred in section 13(a) of the Arbitration Act particularly in reference to ex pane proceedings was considered by an illustrious Judge of this Court, Waheeduddin Ahmed, J. (as his Lordship then was) in Khan Bahadur Allah Bux Gabol v. Razia Begum (PLD 1960 (W.P.) Karachi 455) where it was held that an arbitrator is permitted at hearing considerable latitude in the procedure to be followed by him and that it is his paramount duty to offer the parties a reasonable opportunity to know the case against them for defending it before him. It was further held, "If he makes an Award without complying with such elementary principles of natural justice, he does it at the risk and peril of his Award being set aside on grounds of misconduct. In my opinibn in order to justify an arbitration proceeding ex pane a very strong case must be made out of wilful delay of the party at fault and if a reasonable cause is shown, it is the duty of the Court to set aside such an Award". The said Award was set aside by this Court under section 30 of the Arbitration Act. At the same time, learned Judge refused on oral motion for referring the matter back to the same sole arbitrator on the ground that it was not permissible in law as section 30 of the Arbitration Act contains no provision to refer back the matter to the arbitrator. A learned Division Bench of Azad Jammu and Kashmir High Court had also considered the question of misconduct while setting aside an Award. After considering several reported cases, some 12 instances of misconduct were suggested which included a situation where an Award is made without having heard all the evidence; where a party was not allowed reasonable opportunity of proving his case; or where the Award indicates gross negligence or recklessness on the face of record. (See Kh. Ghulam Rasool Lone v. Azad Jammu and Kashmir Government PLD 1971 Azad J & K 127). In the case of Brook Bond (Pakistan) Ltd. Conciliator and 6 others (PLD 1977 SC 237) misconduct of an arbitrator was considered in reference to the provisions of Industrial Relations Ordinance in the following words:—"The term misconduct used in connection with arbitration does not necessarily imply anything in the nature of fraud or moral turpitude. In the judicial sense the misconduct of an Arbitrator means his failure to perform his essential duty, resulting in substantial miscarriage of justice between the parties. According to Atkin, J., in Williams v. Willis (83 LJKB 1296), the words 'misconducted proceedings' means such a mishandling of arbitration as is likely to cause some substantial miscarriage of justice. In the American Jurisprudence, Volume 3 on pages 964-965 it is observed that awards which are valid on their faces may be set aside in equity for misconduct on the part of the arbitrators, and the extrinsic evidence is admissible to prove such misconduct. Conduct inconsistent with the duties imposed upon those selected as the arbitrators, either at the hearing, or in reaching their conclusions will frequently constitute misconduct as will impeach an award."

3. Again, a Full Bench of the Hon'ble Supreme Court in the case of Ghulam Abbas v. Trustees of Port of Karachi (PLD 1987 SC 393) while interpreting section 30 of the Arbitration Act, held that the general rule is that an Award is final as to both fact and law but if an error of law is apparent on the face of the Award, it is good ground for setting it aside. It was further held that there is a rider to this rule, namely, that if the parties have specifically referred a question of law to arbitration then the general rule would apply and the award will be beyond reproach even if such a question is decided erroneously. It was •^ further held that where there is intentional disregard of law, it woul'd be deemed to be a misconduct on the part of an arbitrator as would justify setting aside the award. Reference was made to Russel on Arbitration. In the instant case, one can say that the act of learned arbitrator -does not fall within the term "misconduct" as defined in section 39(a) but, to my mind, it is an objection to the legality of the Award apparent on the face of it as defined under section 16(l)(c) and, therefore, it appears justified to remit the Award to the same arbitrator for reconsideration. In the entire scheme of the Arbitration Act, 1940, there is no statutory rule imposing a mandate on an arbitrator not to proceed ex pane against any defaulting party without first giving notice of his B intention to proceed in that manner and that an Award in such a manner be set aside. Nevertheless, issuance of a notice by an arbitrator expressing his intention to proceed ex parte is a rule of prudence and convenience. Even after issuance of such notice, a party, to whom proper opportunity of attending arbitration proceedings was extended, fails to appear, the arbitrator will be fully entitled to proceed ex parte and to pass any just order. This view finds favour from the observations made in the Halsbury's Laws of England, Fourth Edition, Volume 2, page 306 at para. 590 which reads as follows:—

"590. Times and places of meetings.—It is the duty of an'arbitrator, when called upon to act pursuant to the agreement of reference, to appoint times and places of meeting and to give due notice thereof to the parties. Where the reference is to more than one arbitrator, they should all concur in appointing such times and places and in doing all other acts in the course of the reference, unless the agreement for arbitration provides that the decision of the majority is to be binding (Goodman v. Sayers (1820) 2 Jac and W 249 at 261).

The arbitrator cannot hear one party in the absence of and without notice to the other parties (Oswald v. Earl Grey (1855) 24 LJQB 69); but where nothing was done at a meeting notice of which had not been given to the other side, the award was not thereby invalidated (Re Morphett (1845) 2 Dow and L 967).

In fixing times and places of meeting it is usual for the arbitrator to consult the convenience of the panics and to comply, so far as possible, with their wishes; but it is within his discretion to fix such times and places as he may think proper (Re: Whitwhara Trustees, etc. and Wrexham, Mold and Connah's Quay Rly. Co. (1895) 39 Sol Jo 692).

Where the time and place of meeting appointed by the arbitrator are reasonable, and due notice has been given to the parties, but one of the panics refuses to attend, the arbitrator may proceed with the reference in his absence. Where the arbitrator proposes to proceed with the reference notwithstanding the absence of one of the panics, it is v - advisable that he should give that party distinct notice of his intention to do so (Waller v. King (1923) 9 Mod Rep 63; Fetherstone v. Cooper (1803) 9 Ves 67; Wod v Leake (1806) 12 Ves 412; Harcoun v. amsbottom (1820) I Jac and W 505 at 512; Scott v. Van Sandau 1844) 6 QB 237; Tryer v. Shaw (1858) 27 LJ Ex 320; Angus v.

Smythies, Smythies v. Angus (1861) 2 F & F 381; Re: Hewitt anortsmouth Waterworks Co. (1862) 10 WR 780). ; If reasonable excuse for not attending the appointment can be shown, the Court will set aside an award made by an arbitrator who haproceeded ex pane (Gladwin v. Chilcote (1841) 9 Dowl 550)."(Emphasis added).

1. A Division Bench of Punjab High Court in the case of Prem Nath L. .-—

Marsaran Dass and another v. OM Parkash L. Ram Kishen Dass Aggarwal (AIR 1956 Punjab 187) held that law permits an arbitrator considerable latitude in the procedure adopted by him at the hearing and that he should afford the parties a reasonable opportunity of being heard and an award passed in violation of this essential requirement will be liable to be set aside. In the case of Messrs Lovely Benefit Chit Fund and Finance (Pvt.) Ltd. Purun Dutt Sood and others (AIR 1983 Delhi 413) a Single Judge of Delhi High Court followed the rule laid down by a Division Bench of Calcutta High Coun in Bhowanidas Ramgobind v. Harsukhdas Balkishandas (AIR 1924 Cal. 524), case of Premnath Harsaran Dass (supra), Udaichand Panna Lall v. Debibux Jewanram (AIR 1920 Calcutta 853), Pratapsingh v. Kishnprasad & Co. Ltd. (AIR 1932 Bombay 68), and the rule of Juggilal Kamlapat (Supra = see also AIR 1955 Calcutta 354) and held that "from these authorities, it is apparent that an arbitrator ought not' to proceed ex pane against a party if he has failed to appear at one of the sittings. The arbitrator should fix another date for hearing and give notice to defaulting party, of his intention to proceed ex parte on a specified date, time and place. Even after notice if the defaulting party does not take part in the proceedings, the arbitrator may proceed in his absence". (Emphasis added). The cases of Bhowanidas. Juggilal and Udaichand (as noted earlier) were followed, in -»-^_..-\"- addition to the case of Dori Lai v. Lai Sheo (AIR 1954 Allahabad 244) by a Single Judge of Calcutta High Court, who very' elaborately summarised five principles governing the arbitrator's right as follows:—

"....Broadly stated, the principles governing the arbitrator's right to proceed ex pane were: (i) If a party to an arbitration agreement had failed to appear at one of me sittings, the arbitrator could not or, at least ought not to, proceed ex pane against him at that sitting, (ii) Where non-appearance was accidental or casual, the arbitrator should ordinarily proceed in the ordinary way, fixing another date of hearing and awaiting the future behaviour of the defaulting party, (iii) If, on the other hand, it appears that the defaulting party had absented himself for defeating the object of the reference, the arbitrator should issue a notice that he intended at specified time and place to proceed with the reference and that if the party concerned did not attend he would proceed in his absence, (iv) Bui if after making such peremptory appointment issuing such a notice the arbitrator did not in fact proceed ;- ex pane on the day fixed, but fixed another subsequent date, he could not proceed ex pane on such subsequent date, unless he issued a similar notice in respect of that date as well, (v) If he'issued a similar notice and the pany concerned did not appear, an award made ex pane would be in order. But, if he did not issue such notice on the second occasion but nevertheless proceeded ex pane, the award would be liable to be set aside in spite of a notice of peremptory hearing having been given in respect of the earlier date, subject, however, to the condition that ~ prejudice was caused to the pany against whom the ex pane order was made. But this duty to give notice of the intention to proceed ex pane was not an absolute one. Where a pany by its conduct had made his position clear that he would not attend in any event then the formality need not be followed..."

The abovementioned principles were endorsed by a Division Bench of Calcutta High Court in Lohia Jute Press Ltd. v. The New India Assurance Co. (AIR 1988 Calcutta 174).

1. The upshot of the above discussion is that Award, dated 27th July, 1992 is set aside and is remanded back to the learned Arbitrator, who will proceed with the arbitration from the stage as of 27th July, 1992 after giving notice to the plaintiff. However, the defendant shall pay a further sum of Rs.25,000 to the learned Arbitrator as his fee.

2. The suit stands disposed of in the above terms.

(K.K F ) ' Case remanded.

PLJ 1999 Karachi 64

Present:WAJIHUDDIN AHMED, J.

Dr. MUHAMMAD SALEEM KHAN-Applicant

Versus

AMANULLAH KHAN-Respondent

Civil Revision Application No. 122 and Civil Miscellaneous Applications Nos.

512 and 573 of 1992, decided on 1.9.1994.

1Specific Relief Act, 1877 (I of 1877)—

—-S. 42-Civil Procedure Code (V of 19.08), O.yiI,lR. 10-Suit for declaration,injunction and accounts-Trial Court refused to admit suit on the ground that suit was arbitrarily valued and subject-matter of suit, exceeded Rs. 1,00,000 which was maximum limit of pecuniary jurisdiction of trial Court-Order was upheld by First Appellate Court on the ground thatconsequential relief of possession was not sought, as was requirement of S. 42 of the Specific Relief Act, 1877-Status-Suit either to be admitted or rejected or returned-Order of the Courts below were set aside and suit was remanded back for appropriate order. [P. 65] A

Dr. Hameed Ahmed Ayaz, Advocate for Applicant.Nemo for Respondent. Date of hearing: 1.9.1994.

judgment

I have examined the orders of the learned two Courts below. Facts, as recorded therein, need no repetition. The learned trial Judge declined to "admit the suit" on 22.4.1991, on the two-fold grounds of the applicant-plaintiff, arbitrarily valuing his suit for declaration. Injunction and accounts in contravention of the rule laid down in Muhammad Siddiq v. Haji Ahmed and Co. PLD 1967 Kar. 468, and the subject-matter of the suit, as gleaned from the plaint, exceeding Rs. 1,00,000, which then was the maximum limit of the pecuniaiy jurisdiction of the Court. In appeal, the order was upheld also on the' ground that consequential relief of possession was not sought, as was the requirement of Section 42 of the Specific Relief Act, 1877.

Before me, the learned counsel for the applicant has contended that the proper course for the Courts below would have been either to fix a valuation of the claim in suit and require commensurate payment of court-fee, if necessary, or .to return the plaint, if it was found beyond jurisdiction or to reject it if payment of court-fee, in compliance of the revised value arrived at by the Court, had not been made good or if the suit was barred.

I am afraid the learned counsel is right. Declining to admit the suit, in reality, is hardly an order, which the Presiding Officer of a Court can lawfully pass when a plaint is presented in his or her Court. The plaint is either to be admitted or rejected or returned, as the requirement of a situation may warrant. This does not seem to have been done by the two Courts below and the impugned orders, therefore, are not sustainable. Such are set aside and the suit is remanded back for appropriate orders to the learned Civil Judge.

At this stage it may be noted, as the learned counsel for the applicant has pointed out, that, in the meantime, the pecuniary jurisdiction of the Courts of First Class Civil Judges, functioning at Karachi, has been enhanced from a maximum of Rs. 1,00,000 to Rs. 5,00,000, and that being so, the plaint, even if the conclusion as to valuation of the learned Judge remains the same, is not to be returned. In this the learned counsel is wrong because the question of return of plaint would be decided in the background of the law, as to jurisdiction, which prevailed at the time the suit came to be filed and if the plaint is returned, irrespective of the time when it is returned, representation shall have to be made to the Court, which possessed the applicable jurisdiction at the time the erroneous institution came to be made, assuming always that the Court subsists.

With the foregoing observations, the revision application is allowed but with no order as to costs.

(K.K.F.) Revision petition

PLJ 1999 Karachi 65 (DB)

Present: KAMAL mansur alam and zafar hadi shah, JJ.

MEHMOOD AHMED-Petitioner

versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and another-Respondents

Constitutional Petition No. D-2235 and Miscellaneous No. 5473 of 1996, decided on 21.5.1997.

(i) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-

—-S. 21-Interlocutory order-Constitutional petition against such order-Maintainability--No appeal having been provided against interim order under Section 21, Sindh Rented Premises Ordinance, 1979, High Court dismissed the petition assailing such order with observations that if Constitutional petition was to be entertained at such stage the very purpose of S. 21 of the Ordinance would be defeated-Tenant would have opportunity to file appeal if the final order went against him and then he could raise this ground too. [P. 66] A

(ii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—S. 4(2)~Rent Controller-Qualification of--Stage of raising objection-­ Tenant could raise such objection before Rent Controller at any stage during proceedings and not before appellate forum. [P. 67] B

Mr. Muhammad Raghib Baqi, Advocate for Petitioner.

Mr. Mian Mushtaq Ahmad, Advocate for Respondent No. 1. Mr. Naraindas C. Motiani, A.A.G. Date of hearing: 21.5.1997.

order

This Constitutional petition is directed against an order, dated 3.11.1996 passed by the Vth Senior Civil Judge and Rent Controller, Karachi (South), whereby he dismissed petitioner's application for permission to cross-examine the Respondent No. 1's witness. It appears that the affidavit-in-evidence of respondents' witness was filed on 28.9.1992 and since then the cross-examination of the witness continued to be put off till 22.1.1996 when the Controller closed the cross-examination. Prior to this, on an earlier occasion too the cross-examination of the same witness had been closed but at that time it was reopened with the consent of the Respondent No. 1's counsel.

Indisputably the impugned order is in the nature of an interim order passed on an interlocutory application filed on behalf of the petitioner, whereas under Section 21 of the Sindh Rented Premises Ordinance appeal is provided only from order which is not an interim order. Obviously, it is in view of the bar contained in Section 21 of the Ordinance that the petitioner did not file appeal against the impugned order but has invoked the A Constitutional jurisdiction of this Court. In a number of cases it has been held that no Constitutional petition is maintainable against an interim order of the Rent Controller, the reason being that if Constitutional petitions were to be entertained the very purpose of Section 21 of the Ordinance would be defeated. The petitioner will have opportunity to file Appeal if the final order goes against him and then he can raise this ground too.

In the present case apart from challenging the order of the Controller refusing to allow the cross-examination of the Respondent No. 1's witness, the rent proceedings before the Rent Controller are also attacked on the ground that the Rent Controller does not possess the requisite qualification of three years experience as a Civil Judge or First Class Magistrate as provided under Section 4(2) of the Ordinance and, therefore, cannot function as a Rent Controller. However, admittedly no such objection was ever taken by the petitioner before the Rent Controller at any stage, which he should have done before raising it in this petition.

For the foregoing reasons, we find no merit in this petition which we dismiss in limine.

1. In view of the above order, this application has become infructuous and is dismissed.

(K.K.F.) Petition dismissed.

PLJ 1999 Karachi 67

Present: mushtaq ahmad memon, J. UNITED BANKLTD.-Applicant

Versus

Messrs AZMAT TEXTILE MTLLS-Respondent

Execution Application No. 6 and Civil Miscellaneous Application No. 264 of

1998, decided on 3.6.1998.

(i) Sindh Chief Court Rules (O.S.)»

—Rr. 74 & 75~Grant of time for affidavit/rejoinder-Rule 75(4) of Sindh Chief Court Rules (O.S.) provides that affidavit cannot be filed after affidavit in rejoinder has been submitted—Time for filing counter-affidavit and affidavit in rejoinder was specifically fixed by order and by virtue of R. 71 of Sindh Chief Court Rules (O.S.), any affidavit if filed beyond such time, could not be used except by leave of the Court. [P. 70] A

(ii) State Bank of Pakistan Incentive Scheme-

—Circular No. 19, dated 5th June, 1997-Time limit-Down payment-State Bank of Pakistan Incentive Scheme showed that it did not require deposit of any down payments and the time for approaching lending Bank hadx""- admittedly been extended from time to time-Time limit was not \ considered of essence for purpose of availing benefits under the said scheme. [P. 71] B

PLD 1965 SC 68 and 1976 SCMR 208 rel.

Mr. Nafees Siddiqui and Essa Shaikh, Advocates for the Decree-Holder.

S. Mazharul Hag, Advocate for the Judgment-Debtor. Date of hearing: 3.6.1998.

order

This application is filed on behalf of the judgment-debtors under Order XXI, Rule 2, C.P.C. with the prayer to certify satisfaction of the decree passed in Suit No. 509 of 1994 under the State Bank of Pakistan Incentive Scheme. In support of the application, the judgment-debtors have filed copy of letter dated 23.12.1997 whereby the decree-holder had called upon the judgment-debtor No. 1 to make payment of Rs. 22,922,502.21 under the State Bank of Pakistan Incentive Scheme in full and final settlement of the subject liabilities. Such letter is, admittedly, signed by the Officer Incharge of the Advances and Vice-President/Chief Manager of the decree holder-bank.-v On 24.12.1997 Le. the next day, the offer contained in the above-stated letter -^ dated 23.12.1997 was accepted by judgment-debtor No. 1 and was duly conveyed to the Chief Manager of the decree holder-bank. The letter dated 24.12.1997 being pertinent, is reproduced hereunder:-

The Chief Manager, United Bank Limited, Corporate Circle, Karachi.

Subject: SETTLEMENT OF LIABILITY UNDER S.B.P. INCENTIVE SCHEME OF MESSRS AZMAT TEXTILE MILLS LTD. CENTRAL LOAN LIABILITY

Dear Sir, Please refer to your Letter No. Corp/ADB/CDC/97 dated 23.12.1997. We are pleased to inform you that the amount payable by us under the above scheme as advised vide your above letter i.e. Rs. 2,29,22,502.21 is acceptable to us.

We also hereby authorise you to kindly encash our Defence Certificate value of Rs. 5 million on 13.2.1998 for full seven years maturity and treat the proceeds as Down payment We further confirm that the remaining balance will be paid by us on or before 15.2.1998.

Thanking you.

Yours faithfully, (Sd)

The receipt of above letter is not denied by the decree holder. On 21.1.1998, on an application filed by the decree holder, it was allowed to encash the pledged Defence Saving Certificates in terms of the decree passed in Suit No. 509 of 1994. The above referred Defence Saving Certificates, of the face value of Rs. 5 million, were, however, encashed by the decree holder on 13.2.1998 upon completion of seven years maturity and a sum of Rs. 12,500,000 was credited to the account of Judgment-Debtor No. 1. On 14.2.1998 the balance sum of Rs. 10,422,502.21 was paid by the Judgment-Debtor No. 1 to the decree holder through cheque which was duly encashed through clearing on 16.2.1998. Alongwith the cheque, a forwarding letter dated 14.2.1998 was also sent clearly mentioning therein that the above mentioned balance amount of Rs. 10,422.502.21 was paid in full and final settlement of the decretal amount. The decree holder was further requested to issue suitable certificate for notifying satisfaction of decree before this Court.

The application is opposed by filing counter-affidavit of one Saleem Sadiq who claims to be Principal Officer and Attorney of the decree holder-bank. Mr. Nafees Siddiqui, Advocate for the decree holder has urged that the offer contained in letter dated 23.12.1997 had been procured by the judgment-debtors in collusion with officers of the decree holder-bank in order to deprive the bank from the decretal amount which is stated to be Rs. 99,681,865. It is further urged that the decree holder-bank has already filed complaint for prosecution of the officers who had signed the letter dated 23.12.1997, the deponent of counter-affidavit and the Judgment-Debtor No. 1 alleging therein that the decree holder-bank has been defrauded as a result of above-referred collusive acts of the accused. The learned counsel, for such reason, has requested that the counter-affidavit filed by the above-named Saleem Sadiq may not be looked into and permission be accorded for filing substituted counter-affidavit. To support his request, made through oral motion, the learned counsel has referred to the averments contained in para. 13 of the counter-affidavit which are as follows:-

"That the letter on which they are relying in the present application is the letter which is unauthorised and the same is under investigation of the decree-holder and the decree-holder reserves the right to institute any further proceedings .„ including those of criminal investigation by which the judgment-debtor/Defendants have obtained this letter from the branch which is not authorised by the Decree Holder."

The learned counsel in response to query made by me, however, has not been able to pink point the date when the alleged fraud came to the notice of the decree holder. The request made by Mr. Nafees Siddiqui, Advocate for grant of time is opposed by the learned counsel for the judgment-debtors who has pointed out that after filing the counter-affidavit and the affidavit-in-rejoinder no further affidavit can be filed except with the leave of the Court. The affidavits in relation to interlocutory proceedings are filed under Rules 74 et seq of Sindh Chief Court Rules (OS) and under Rule 75(4) further affidavit cannot be filed after affidavit-in-rejoinder has been submitted. The time for filing counter-affidavit and affidavit-in-rejx>inder was specifically fixed by order dated 28.4.1998 and by virtue of Rule 71 of Sindh Chief Court Rules (OS), any affidavit if filed beyond such time, cannot be used except by leave of the Court obtained on an application made in that behalf. The decree holder has failed to file any application in terms of the above and I do not find any justification, even otherwise, for grant of oral motion made by Mr. Nafees Siddiqui for grant of time.

Faced with the situation, Mr. Nafees Siddiqui has argued that the settlement offered to the Judgment-Debtor No. 1 through letter dated 23.12.1997 was unauthorised and beyond the purview of the scheme notified by the State Bank of Pakistan. It is contended on behalf of the decree holder-bank that the State Bank of Pakistan Incentive Scheme was initially notified under Circular No. 19, dated 5th June, 1997 (hereinafter referred to as State Bank of Pakistan Incentive Scheme). For availing the benefit of the scheme, a party was required to approach the concerned bank within one month of the issuance of the said Circular. The dates for making initial payment and the balance payment for settlement were subsequently notified by the State Bank of Pakistan. Such dates were later on extended and finally through B.P.R.D. Circular No. 57, dated 8th December, 1997, it was notified that the defaulters who pay 30% of the agreed amount of liabilities by 15th December, 1997 and pay the remaining balance upto 16th February, 1998 would be entitled to the benefits of the State Bank of Pakistan Incentive Scheme.

On the basis of the above, it is urged that the judgment-debtors had failed to pay 30% of the amount mentioned in letter dated 23.12.1997, and therefore, the benefit of the State Bank of Pakistan Incentive Scheme could not be extended to the judgment-debtors.

The terms of the State Bank of Pakistan Incentive Scheme show that it did not require deposit of any down payments and the time for approaching the lending bank had, admittedly, been extended from time to time. This being so, in my view, the time limit was not considered of essence for the purpose of availing benefits under the said Scheme. As regards the requirement of initial deposit, evidently, such was not the requirement of the S.B.P. Scheme initially hence could not be introduced subsequently as a mandatory term for availing benefits thereunder. For such view, I am supported by the principle laid down in the cases of Ch. AltafHussain and others v. The Chief Settlement Commissioner Pakistan, Lahore and others PLD 1965 SC 68 and Mst. Hussain Bibi v. Haji Muhammad Din and 3 others 1976 SCMR 208. The decree holder, in the present case, has, admittedly, received the sum of Rs. 22,922,502.21 towards the account of Judgment-Debtor No. 1 which was specifically notified as payment in full and final settlement of the subject liabilities. In the circumstances, the decree-holder was required to apply the payment towards discharge of the liability notified by the judgment-debtors by virtue of the principle contained in Section 59 of the Contract Act. It is pertinent to note that the decree holder has failed to notify anything to the contrary in this behalf to the judgment-debtors either. The averments contained in the above-quoted paragraph 13 of the counter-affidavit, too, cannot give any different right to the decree holder who had merely reserved the right to institute further proceedings including criminal prosecution. The decree holder-bank, in the event of any fraud having been committed upon it, may sue its own Officers for damages or continue criminal proceedings as may be available to it under the law. The judgment-debtors having accepted the offer and acted thereon cannot be denied benefits under the S.B.P. Incentive Scheme. The doctrine of indoor management affords complete protection to the judgment-debtors against the irregularity, if any, committed by the officers of the decree holder-bank. The judgment-debtors have sufficiently established that the payment of Rs. 22,922,502.21 was made in full and final settlement of the decretal amount and are entitled to such payment being recorded and certified as full and final satisfaction of the decree. The application is granted in the above terms. Resultantly, the execution application too, stands disposed of.

(K.K.F.) Order accordingly.

PLJ 1999 Karachi 72 (DB)

Present:kamal mansur alam and hamid All mirza, J J. RASHE) IFTIKHAR and another-Petitioners

versus

KARACHI DEVELOPMENT AUTHORITY and others-Respondents

Constitutional Petition No. 226 of 1988, heard on 11.11.1997.

Karachi Development Authority Allotment Regulations--

—-Reglns. 6(d) & 23-Constitutional petition u/A 199 of Constitution of Pakistan, 1973-Enhancement of occupancy value with retrospective effect--Status--Executive actions like enhancement of occupancy value where vested interests of parties were involved, would take effect prospectively and not retrospectively—Notification by Government or Executive Act could not take retrospective effect but^rould take effect prospectively only and just because word "retrospectively" had been used in notification would not make any difference-Demand of respondents claiming payment of occupancy value at enhanced rate with retrospective effect was declared to be without lawful authority and of no legal effect.

[Pp. 73 & 74] A

1992 MLD 2401 ref.

Mr. Abul Khair Ansari, Advocate for Petitioners.

Dasti Muhammad Ebrahim, Advocate for Respondent No. 1.

Mr. J. J. Vishno, Addl. A.G. on Court's Notice.

Date of hearing: 11.11.1997.

judgment

Kamal Mansur Alam, J.-The petitioners in this case purchased on 31.5.1977 a residential Plot bearing No. B-lll, measuring 400 sq. yards, situated in Scheme No. 24 Gulshan-e-Iqbal, Karachi, from one Mahmood Construction Company who were originally allotted the same alongwith several other plots by the Respondent No. 1 on 19.5.1976. The petitioners having paid full price of the plot to the said Mahmood Construction Company and cleared the dues of the K.D.A. (Respondent No. 1), the K.D.A. executed lease deed, dated 3.6.1977 in favour of the petitioners. Later, the petitioners constructed house on the plot which was duly approved by the concerned authorities on 11.12.1982. Almost ten years after the plot had been leased out by the K.D.A. to the petitioners, they received notice from the respondents demanding payment of occupancy value at the enhanced rate. It is this demand of increase in the occupancy value which is challenged by this petition.

Hi. Dasti Muhammad Ebrahim, the learned counsel for the respondents submitted that by a Resolution passed in the meeting of the Governing Body of the K.D.A. held on 29.11.1975, recommendation was made to the Government for the enhancement of the occupancy value (reserve price) of residential plots in the locality in which the petitioners plot in question was situated from Rs. 17.50 per sq. yard to Rs. 80 with effect from 1.1.1976. He explained that as the power to increase the price of the land vested in the Provincial Government the resolution was forwarded to that Government for approval. The resolution was accorded approval by Notification, dated 18.6.1977 published in the Sindh Government Gazette, dated 23rd June, 1977 and the increase in the occupancy value was made effective retrospectively from 1.1.1976. It was argued that as the rate of occupancy value was increased from 1.1.1976 which was prior to the date of allotment of the plot to the original allottee and much before the execution of the lease deed in favour of the petitioners, the petitioners were liable to pay the enhanced occupancy value of Rs. 80 per sq. yard instead of Rs. 17.50 per sq. yard that they actually paid, as such, it was contended, that the impugned notice demanding payment of differential between the old rate of occupancy value actually paid by the petitioners and the enhanced rate that they were liable to pay was issued.

Admittedly, the Governing Body of the K.D.A. had no authority to increase the reserve price of the land of its own and all that it could do was to approach the Governing for effecting such increase. Accordingly the said resolution of the Government Body was merely in the nature of recommendation. This recommendation received Government's approval by the notification, dated 18.6.1977 published on 23.6.1977 and, therefore, it was only on such approval being accorded that the enhanced rate, became effective. No doubt, under this notification the approval of the increase in the reserve price has been given retrospective effect from 1.1.1976, but that would not be of any avail to the respondents, for, it is well-settled that executive actions like the present, where vested interests of parties are involved, would take effect prospectively and not retrospectively. Consequently, whether the increase was made effective from the date of the notification or the date of its publication in either case it would be much later in time to the allotment of the plot to the original allottee on 19.5.1976, purchase of the plot by the petitioners on 31.5.1977 and execution of the lease deed in favour of the petitioners on 3.6.1977. Reference may here be made to the case of Abdul Mqjeeb and others v. Karachi Development Authority and others (1992 MLD 2401) which is on all fours with the present. There too in somewhat similar circumstances the effect and implication of the aforesaid notification came up for considCation before a learned Division Bench of this Court and while dealing with the question about the date of applicability of the increase in the reserve price of plots approved by the said notification, it has been observed that, ".... It is, therefore, apparent that on the passing of the Resolution No. 550 by K.D.A. on 20.12.1975, the rates did not stand enhanced as K.D.A. on its own could not enhance 'the rates of occupancy value. The enhancement could only become effective on approval of the enhanced rates of occupancy value by the Sindh Government. That was done on 18.6.1977 by the said Notification, which was published in the Sindh Government Gazette on 23.6.1977. In our view, therefore, the occupancy value at the enhanced rates could not be charged from the petitioners as the allotment as well as the lease in favour of the original allottee, Abdur Rafai Samdani, had been made/executed much prior to the date of publication of the Notification by the Government, approving the enhancement of rates. The submission of the learned counsel for K.D.A. that the Notification is not retrospective and will be deemed to be effective from 1.1.1976 as mentioned in the Notification, is devoid of any merit. The law is well-settled that a Notification by the Government or an Executive Act cannot take retrospective effect and takes effect prospectively only and just because the word 'retrospectively' has not been used in the Notification, it does not make any difference. The notification dated 16.6.1977 states that it will be effective from 1.1.1976, but it cannot take effect from the date as it would amount to giving retrospectivity to the Notification, which cannot be done under the law."

We are in respectful agreement with the above finding. We accordingly allow the petition and declare the demand of the respondents (K.D.A.) contained in its letter, dated 15.8.1987 and challan, dated 27.7.1987 in respect of the aforesaid differential in reserve price/occupancy value of the said plot to be without lawful authority and of no legal effect.

The above are the reasons for the short order which we passed on 11.11.1997.

(K.K.F.) Petition accepted.

PLJ 1999 Karachi 75

Present: mushtaq ahmad memon, J. Messrs H.B. LTD.-Plaintiff

versus

Messrs KARIM COTTON MILLS and others-Defendants

Suit No. 552 of 1993, Civil Miscellaneous Applications Nos. 8873 of 1997 and 10426 of 1993, decided on 10.2.1998.

Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979)--

—S. 7(2)--Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997), S. 14--Limitation Act, 1908 (LX of 1908), Arts. 57 & 133»Civil Procedure Code (V of 1908), O.XXXVII, R. 3 & O.XXXIV, R. 5-Leave to defend suit-Application for~Suit for recovery of loan amount-Amounts due from mortgagors would be payable on demand notwithstanding any instalment or other arrangement which might have been agreed upon by plaintiff (Bank)~Money payable under mortgage deed became due on demand and same could not be deemed to have fallen due at any earlier point of time-Acknowledgment of earlier liability would negate defendant's contention that demand for its re­payment was made and that mortgage suit had become barred by limitation-Plaintiffs suit has to be treated as demand for payment by guarantors-Defendant's plea about applicability of Art. 57, Limitation Act, 1908 was untenable for Art. 57 was not attracted to case covered by promissory note or letters of guarantee-There being no variation in the terms of loan granted to defendant, guarantors would not stand absolved from grantees extended by them in terms of Art. 133, Limitation Act, 1908-Defendant's application for leave to defend suit having been dismissed, contents of plaint would be deemed to have been admitted whereupon plaintiff was entitled to decree in terms of prayer contained therein-Plaintiffs suit was decreed jointly as well as severally against defendants with specified interest from institution of suit till payment-On basis of provisions contained in S. 14, Banking Companies (Recovery of Leans, Advances, Credits and Finances) Act, 1997, instead of preliminary decree final decree under O.XXXIV, R. 5, C.P.C. for sale of property detailed in mortgage deed was passed. [Pp. 77 & 79] A, B, C & D

1986 CLC 2808 ref.

Mr. Hamid Hussain and Salman Hamid, Advocates for Plaintiff. Mr. Shahanshah Hussain, Advocate for Defendants Nos. 1, 2 and 4 to 10.

Mr. Gulzar Ahmed, Advocate for Defendant No. 11. Date of .hearing: 10.2.1998.

ORDER

Placed at Serial No.2 is the application preferred on behalf of defendants Nos. 1, 2 and 4 to 10 seeking unconditional lea"£ to defend the proceedings under section 7(2) of the Banking Companies (Recovery of Loans) Ordinance, 1979. The application is opposed by the plaintiff who has filed counter-affidavit in reply thereto.

The suit is filed for recovery of Rs.25,60,09,486.14 with interest thereon and for mortgage decree for sale of property mentioned in the mortgage deeds. The defendant No.l is sued as the borrower whereas the defendants Nos.2 to 10 are sued as guarantors. The defendant No. 11 has been joined only because it has charge over the mortgaged property and was granted leave to appear and defend the suit through order, dated 20-12-1994. The plaintiffs claim according to the averments in the plaint is based on four accounts stated in paragraph 27 thereof and is as follows:

1. Overdraft A/C No.2-24958-32 Rs.5,24,95,479.27

2. Cash Credit A/C No.3-35815-79 Rs.8,95,40,240.29

3. Loan A/C No.192215-45 Rs.9,92,21,569.23

4. Loan A/C No. 192355-86 Rs. 1.47.52.197.35

Rs.25,60.09,486.14.

Mr. Shahanshah Hussain, appearing for the defendants, has urged as follows:

(i) The plaintiffs claim is barred by limitation and the plaint, therefore, is liable to be rejected.

(ii) After grant of facilities to the defendant No. 1, the terms of the facilities have substantially been varied with the result that the defendants Nos.2 to 10, with exception of defendant No.3 who have been sued as guarantor stand absolved from liability under the guarantees.

(Hi) The guarantors cannot be held liable for claim beyond the amount for which guarantee was given.

(iv) The defendant No.3 having died before the institution of suit, the proceedings were not competently filed.

(v) Levy of interest and its claim being opposed to Injunctions of Islam is not permissible.

Elaborating his first submission, the learned counsel for the defendants has urged that by virtue of Article 132 of the Limitation Act, mortgage suit can be filed within 12 years from the date of money becoming due. According to the . learned course, three mortgage deeds were executed by the defendant No. 1. The first was executed on 19-5-1976 as security for repayment of a sum of Rs.6 million with interest at the rate of 13% with monthly rests. The second deed was executed on 15-7-1980 for repayment of Rs.7.5 million with 14% interest per annum calculated with monthly rests. The third mortgage deed, dated 31-8-1982 is for a sum of Rs.10 million carrying interest at the rate of 14% with quarterly rests. It is significant to note that in the second mortgage deed, dated 15-7-1980 and the third mortgage deed, dated 3-8-1982, reference was specifically made to the earlier mortgages acknowledging liability for payment of money secured by the earlier deeds of mortgage and the total amount of liability was also mentioned. According to the learned counsel for the defendants, the payment of money secured by the first mortgage deed became due on the execution of second mortgage deed, dated 15-7-1980. Likewise, the amount covered by the second mortgage deed, dated 15-7-1980 became due for payment upon execution of the third deed, dated 3-8-1982. On the basis of such submission, it is urged that the suit based on the first mortgage deed, dated 19-5-1976 became barred upon expiry of 12 years from 15-7-1980 and the present suit, filed on 31-5-1993, was evidently barred by limitation prescribed under Article 132 of the Limitation Act.

I have perused the terms of mortgage deeds which contain provisions to the effect that all sums due from the mortgagor at any time would always be payable on demand notwithstanding any instalment or other arrangement which might have been agreed upon by the plaintiff-bank. The money payable under the mortgage deed became due on demand and cannot be said to have fallen due at any earlier point of time. The contention of the learned counsel for the defendants to the effect that the execution of subsequent mortgage deeds amounts to demand is untenable since such intention cannot be gathered from the terms of any mortgage deed. Indeed, the second and third mortgage deeds, dated 15-7-1980 and 3-8-1982 contain specific provision acknowledging the earlier liability and do contain the cumulative figure of outstanding liability under the earlier deeds of mortgage. The acknowledgment of earlier liability, as above, negates the contention that demand for its re-payment was made. The mortgage suit, in the circumstances, cannot be held as barred by limitation. It is pertinent to point out that on behalf of the plaintiff, legal notice, was caused to be issued to. the defendant No.l demanding liquidation of the outstanding liability first on 29-1-1992. The learned counsel for the plaintiff submits that the repayment of outstanding liabilities was demanded for the first time through the legal notice, dated 29-1-1992. Despite reference to the repeated demands allegedly made from time to time in para. 6 of such notice, no material has been placed on record showing any demand having actually been made prior to the said notice. Consequently, even if the matter has to be taken on the basis of contents of the legal notice, limitation cannot be pressed in service to deny relief to the plaintiff in the absence of any material establishing assertion of earlier demands. Evidently, such material ought to have been put-forward by the defendants.

It is next contended by Mr. Shahansii^h Hussain that the three mortgage deeds were executed as security for repayment of the liability covered by over­draft Account No.2-24958-32 and the plaintiffs claim under such account is for a sum of Rs.52,495,479.27. It is urged by the learned counsel that the other three accounts were secured by way of Promissory Notes, Deed of Hypothecation, Letters of Facility and Letters of Guarantee etc. On the basis of such contention, it is urged that the said charge documents having been executed on 21-9.-1988 or prior thereto the suit filed on 31-5-1993 is liable to be dismissed or having been instituted beyond the period of three years calculated from the date- of advancement of loans/facilities by virtue of Article 57 of the Limitation Act. In reply, the learned counsel for the plaintiff submits that the liability due to the plaintiff was acknowledged by the defendant No.l in the balance-sheet for the year ending 30th September, 1990 which were approved in the Annual General Meeting of Shareholders of defendant No.l held on 15-8-1991. The learned counsel in order to substantiate his contention to the effect that the acknowledgment of liability in the balance-sheet and/or annual reports is a valid acknowledgment in terms of section 19 of the Limitation Act, has referred to judgment in the case of Deputy Custodian of Enemy Property v. Karachi Electric Supply Corporation Ltd. (1986 CLC 2808) wherein learned Single Judge cf this Court, Mr. Justice Saleem Akhtar (as his Lordship then was), after consideration of the case-law cited before him, came to the conclusion that the entries in the balance-sheet amount to acknowledgment of liability. It is further urged by the learned counsel for the plaintiff that the suit based on the Promissory Notes and other charge documents including the Letters of Guarantee would fall under Article 120 of the Limitation Act and for computation of the period prescribed thereunder, the right to sue would accrue upon failure by the defendants to make repayment. According to the learned counsel, in any event, regarding guarantors the limitation would be governed by Article 65 of the Limitation Act which prescribes period of three years for institution of proceedings with effect from the time specified for fulfilment of promise. It is contended by Mr. Salman Hamid that under the Letters of Continuing Guarantee, the defendants Nos.2 to 10 had undertaken liability to make payment within two days after demand. Copies of six letters of guarantee have been placed on record which are executed by different defendants apart from one Haji Ibrahim A. Karim who has not been joined-in the proceedings. The first guarantee is, dated 26-12-1981 and is for a sum of Rs.40 million. It is executed by the defendants Nos.2 .to 5. The second guarantee is also, d?«M 26-12-1981 and is for a sum of Rs.28.5 million executed by defendants Nos.2, 4 and the abovenamed Haji Ibrahim H. Karim. The third guarantee for a sum of Rs.23.5 million is, dated 1-9-1982 and is executed by defendants Nos. 2, 3, 5 and the abovenamed Haji Ibrahim H. Karim. The fourth guarantee executed n 9-1-1983 is for Rs.28.5 million and is executed by defendants Nos.2, 3, 4, 6 and the abovenamed Haji Ibrahim H. Karim. The next guarantee is, dated 8-5-1984 for a sum of Rs.14 million and is executed by defendants Nos.3, 4 and 6 to 10. The last guarantee is, dated 26-12-1984 executed by defendants Nos.4, 6 and 7 for a sum of Rs.4.5 million. Although the learned counsel for he defendants has urged that different guarantees were executed for various accounts, the contents of the Letters of Guarantee do not indicate any such bifurcation or any term to identify if a particular guarantee was given as security for repayment of outstanding liability pertaining to a particular account. All the guarantees are personal guarantees given in consideration of accommodation granted to the defendant No. 1. Except for endorsement of copy of legal notice, dated 29-1-1992 to the defendants Nos.2, 3, 4, 9 and 10, nothing has been shown if the plaintiff had preferred demand for repayment by the guarantors. In such event the filing of the present proceedings has to be treated as demand for payment by the guarantors. The contention of Mr. Shahanshah Hussain about applicability of Article 57 of the Limitation Act is also untenable since the same is not attracted to a case covered by the Promissory Note or Letters of Guarantee.

As to the contention that by virtue of Article 133 of the Contract Act the defendants Nos.2 to 10 stand absolved from the guarantees executed by them, the learned counsel for the defendant was not able to point out any variation in the terms of loan granted to the defendant No.l so as to claim discharge under section 133 of the Contract Act. No arguments were advanced in relation to the last contention that the grant of interest would be violative of the Injunctions of Islam. As regards defendant No.3, Mr. Salman Hamid states that he is not in a position to controvert the statement made by the other defendants, and therefore, does not press for any relief against such defendant. Rather Mr. Salman Hamid, in the circumstances, seeks deletion of defendant No.3 from the array of the defendants on account of his death .before the institution of the proceedings. Such request of Mr. Salman Hamid is granted and the name of defendant No.3 is deleted from the proceedings.

No other argument having been urged in support of the application, it is dismissed.

As a result of dismissal of application seeking leave to defend the proceedings, the contents of the plaint are to be deemed to have been admitted and the plaintiff is entitled to decree in terms of the prayer contained therein. The claim amount is supported by the statement of account filed alongwith the plaint. The statement is duly certified and the benefit under the Bankers' Book of Evidence Act is to be extended thereto. The plaintiff's suit, resultantly, is decreed jointly as well as severally against defendants Nos.l to 10 (except defendant No.3) in the sum of Rs.25,60,09,486.14 with simple interest at the rate of 18% per annum from the institution of the suit till payment. In view of provisions contained in section 14 of Act XV of 1997 instead of preliminary decree, final mortgage decree under Order XXXIV, Rule 5, C.P.C. for sale of property detailed in the mortgage deed is also passed. The plaintiff shall also be entitled to proportionate costs.

(AAJS) Suit decreed

PLJ 1999 Karachi 80

Present: rasheed ahmed razvi, J.

M/s. FAIZ & SONS CLEARING AND FORWARDING AGENTS-Petitioner

versus

SECRETARY TO THE GOVERNMENT OF N.W.F.P. INDUSTRIES, COMMERCE, MINERAL DEVELOPMENT LABOUR AND TRANSPORT

DEPARTMENT, PESHAWAR and 2 others-Respondents

Suit No. 745 of 1991 and Civil Miscellaneous Application No. 525 of 1992, decided on 14.3.1997.

Arbitration Act, 1940 (X of 1940)--

—Ss. 30, 31, 32 & 11-Civil Procedure Code (V of 1908), O.VH, R. 11--Application for setting aside award of arbitrator in High Court at Karachi—All defendants were neither residents nor working for gain within Province to which jurisdiction of said High Court extended-Addresses of defendants in plaint related to N.W.F.P.--Parties in\ agreement had agreed to refer their dispute to sole arbitrator or to his nominee who also resided outside jurisdiction of High Court at Karachi-Effect--High Court at Karachi, thus, had no jurisdiction to entertain application for setting aside award-Civil Court at Peshawar would be competent to entertain such suit/application-Provisions of O.VH, R. 11, C.P.C. being not exhaustive, any incompetent suit must be buried at initial stage in order to save defendants from hardship and rigours of protracted trial-High Court at Karachi, thus, had no jurisdiction, therefore, provisions of Ss. 31(2) & 32, Arbitration Act, 1940 were fully attracted, whereby plaint was liable to be rejected.

[Pp. 83, 84 & 85] A, B, C & D

AIR 1952 Nag. 65; AIR 1987 Bom. 39; AIE 1970 SC 833; AIR 1979 Bom. 149; 1986 CLC 1660; PLD 1967 Dacca 190; PLD 1991 Kar. 365; 1994 CLC 2413 and AIR 1960 Andh. Pra. 59 ref.

Mr. Farooq H. Naek, Advocate for Plaintiff. Nemo for Defendants. Date of hearing: 14.3.1998.

order

This suit, in the nature of an application under Section 30, read with Section 11 of the Arbitration Act, 1940 (hereinafter referred tolas "the Act of 1940") was filed by the Plaintiff, who was appointed by the Defendant No. 1 for carrying and handling clearing and forwarding business at Karachi, on behalf of the Provincial Government of N.W.F.P. vide agreement, dated 1st March, 1982. Clause (13) of the said agreement is relevant which is reproduced as under:

"CLAUSE (13) (SETTLEMENT OF DISPUTES)

Any dispute or difference between the parties arising out of this agreement, the settlement of which is not otherwise specially provided in these terms and conditions, shall be referred to the Secretary to Government of N.W.F.P., Industries, Commerce and Mineral Development Department or his nominee not below the rank of Deputy Secretary to the Government of N.W.F.P., for arbitration and the decision of the said Secretary or his nominee shall be final and binding on the parties."

1. The case of the plaintiff, as set out in the Plaint, is that as a result of some disputes and differences in respect of payment of plaintiffs bill, arbitration proceedings were filed in 1987 with the Respondent No. 1. However, at a subsequent stage, the plaintiff filed proceedings under Sec­tion 11 of the Act of 1940 (J.M. 8 of 1987) for revocation of the arbitration and for appointment of some impartial arbitrator to proceed with the arbitration proceedings at Karachi. The same came-up before this Court on 27.8.1987 which was dismissed with costs with the following observations:

"The allegations in the petition are denied by the respondents in their objections. In para. 8 of the objections, it has been specifically stated that no dispute had arisen within the purview of Clause (13) of the agreement which had been referred by the petitioners to the Respondent No. 1.

Although, apart from the two letters, dated 5.1.1987, allegedly written by the petitioners to the Respondent No. 1, no other document has been filed by them to support their contention, however, whatever be the case, the sole grievance raised by the petitioners is directed against the Respondent No. 2, as according to them this respondent had been nominated to arbitrate in the matter by the Respondent No. 1 and he had made the dispute a matter of his personal prestige. There is nothing on the record to indicate that the matter, if at all pending before the Respondent No. 1, had been referred by him to the

Respondent No. 2. The respondents having completely denied any existence of a dispute or reference of the same to arbitration, the burden clearly is on the petitioners to establish that there was a matter which had been referred by them to the Respondent No. 1 or to Respondent No. 2 as his nominee. There being nothing on record to support the petitioners' contention, this petition cannot be granted."

1. The High Court Appeal filed against the above order of this Court was dismissed in limine by a Division Bench of this Court comprising Ajmal Mian and Muhammad Mazhar Ali, JJ. (as their Lordships then were) wherein it was held that the respondents (now defendants) after the service of the notice have filed counter-affidavit averring therein that factually no arbitration proceeding was pending as no dispute was referred to thearbitration by the plaintiffs. It wag observed that the proper course for the ppellant/plaintiff was to serve a fresh notice under the arbitration clause on the Secretary N.W.F.P. under Registered Post acknowledgement due and in case he fails to proceed with the matter, it will be open to the appellants to approach the Court for appointment of arbitrator. It is further admitted in the Plaint that after the aforesaid order, the plaintiff served a fresh notice on the Defendant No. 2 and therefore, filed first arbitration proceedings before the Defendant No. 1, who, vide its letter, dated 18.12.1989, appointed Defendant No. 3, namely, Sikandar Ali, Director, Menpower and Training, Government of N.W.F.P., Peshawar to act as arbitrator.

2. The grievance of the plaintiffs is that the matter was heard and concluded on 20th May, 1990, at Peshawar whereafter no award was pronounced; that on 8.4.1991, without any intimation to the plaintiffs and without hearing them, the Award was announced by the Defendant No. 3. It

is alleged in the plaint that the said arbitrator acted mala fidely, illegally and without giving proper opportunity to the plaintiffs. Therefore, instant proceedings were filed with the following prayer;

"(i) Set aside the so-called award, dated 8.4.1991 communicated vide letter, dated 6.5.1991;

(ii) Order to call the Respondent No. I/Arbitrator as Court witness and examine his conduct in the matter while action as Arbitrator in Arbitrarily and capriciously manner in order to defeat the claims of the Petitioner;

(iii) to appoint fresh Arbitrator in the matter in the interest of justice;

(iv) grant cost of the Petition;

(v) grant any other relief/reliefs which this Hon'ble Court deems fit and proper under the circumstances of the case."

1. It is an admitted position that vide Clause (13) of the agreement, dated 1st March, 1982, all dispute or difference between the parties was required to be settled through arbitration by' the Secretary to the Government of N.W.F.P. or by his nominee not below the rank of Deputy Secretary. Defendant No. 1, as it appears from the contents of the plaint, is Director and above the rank of Deputy Secretary, It is also admitted that on 8.4.1991, award was pronounced by the Defendant No. 1 which was communicated to the plaintiffs vide letter, dated 6.5.1991. The question which requires determination is, whether this Court has territorial jurisdiction and is competent to give such relief to the plaintiffs in view of Sections 31(2) and 32 of the Act of 1940; which read as follows:-

"31. (1)

(2) Notwithstanding anything contained in any other law for the time being in force and save as otherwise provided in this Act, all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has? been, or may be, filed, and by no other Court.

(3). (4).

1. Bar to suit contesting arbitration agreement or award. Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any affected, otherwise than as provided in this Act"

2. Admittedly, all the defendants in this suit the neither residents nor working for gain within the Province of Sindh. As per addresses given in the title of the plaint, they belong to the Province of N.W.F.P. It is also admitted by the plaintiff that vide Clause (13) of the agreement, dated 1.3.1982, they have agreed to refer this dispute to the sole arbitration of the ^-^ Defendant No. 1 or to its nominee who both are the authorities working for the Government of N.W.F.P. Therefore, which would be the competent ^,. ^- Court wherein the Award under the agreement is required to be filed? The answer is Very simple, a Civil Court of competent jurisdiction of Peshawar would be the competent Court. Only that Court would be competent to entertain a suit between the parties in which the identical controversy is involved. Sub-section (2) of Section 31 of the Act, 1940 is to be read with Section 2(c) which define "Court" to mean a Civil Court having jurisdiction to decide the question forming the subject-matter of reference if the same had been the subject-matter of a suit. (See the Lahore Transport Cooperative Society Ltd. v. Malik Muahmmad Sadiq PLD 1958 Lahore 44 andMA Jalil v. Group Capt. (Retd.) Salahuddin Khan 1983 CLC 1685). It is only such Court to decide all questions regarding the validity, effect or existence of an award or an arbitration agreement. In the instant case, an earlier application was filed by the plaintiff under Section 11 of the Act 1940 (J.M. 8 of 1987) which was dismissed. This will not give jurisdiction to this Court to hear all subsequent applications. I may observe here that mere filing of an application in a Court which has no jurisdiction would not fix that Court permanently as the Court in which all subsequent applications are to be filed. (See Veirendra Saigal v. M/s. Sumatilal Jamnalal AIR 1970 Delhi 14). I may also refer to the case of M.A. Jalil v. Group Capt. Salahuddin Khan (1983 CLC 1685) where it was held by a learned Single Judge of Lahore High Court that Section 31 of the Act, 1940 provides that all matters relating to a reference should be made before the same Court in which the first application in connection with the arbitration matter was made and that it will be the said Court which alone would be competent to decide all questions in relation to that particular arbitration. It means the Court having competent jurisdiction. In these circumstances, I am of the considered view that this Court has no territorial jurisdiction over the subject-matter and that the Civil Court Peshawar having territorial jurisdiction is competent to hear and decide this suit.

3. Now, coming to the question of Section 32 of the Act, 1940 which prohibits filing of a suit on any ground whatsoever for decision as to existence, effect or validity of an Award, I may refer to an earlier decision of this Court mAfaq Ahmed Ansari v. Zameer Hasan Ansari (PLD 1955 Sindh 282). In that case, a suit was filed for declaration that the partnership between the plaintiff and the defendant stands dissolved and for accounts of partnership asserts. Prior to filing of that suit, there was an arbitration proceedings as a result of which an award was given. Defendant filed an application under Order VII, Rule 11, C.P.C. and pleaded that the suit was barred in view of Section 32 of the Act, 1940. A learned Single Judge of this Court after reference to the case Lutufullah Khudabaksh Khan and others v. Muhammad Siddiq Sobho Bhatti and others (AIR 1946 Sindh 117) and Muhammad Nawaz Khan and another v. Alam Khan (ILR XVIII Cal. 414), held that it is well-settled that once the dispute between the parties to any matter has been referred to arbitration, the only remedy open to the party is under the Arbitration Act and not through any suit. It was further held that once an Award has been made, the dispute between the parties relating to the subject-matter and reference are merged in the Award and no suit can lie which can have the effect of avoiding the Award except under the provisions of the Arbitration Act, 1940.1 am point out here that Section 32 of the Indian Arbitration Act, 1940 is para materia to Section 32 of our Arbitration Act, 1940. In Kanhayalal Vishweshwarlal Mahajan v. Ramchandra Shankarroa Holkar (AIR 1959 M.P. 415), it was held, after relying on the cases Narbadabai v. Natuerlal (AIR 1953 Bombay 386) and Nathulal v. Biharilal (AIR 1952 Nagpur 65) that if a suit is filed by a person who is a party to an Award for decision either as to the existence of the Award or its effect, than such a suit is totally prohibited. It was further held that a Court proceeding to hear such a suit will be acting without jurisdiction since as a Court of general jurisdiction its jurisdiction to hear a cause of this nature is curtailed. Similar view was reiterated in the case ofAkbar Ali and others v. Mumtaz Hussain and another (AIR 1987 Bombay 39) where after following the cases Satish Kumar v. Surinder Kumar (AIR 1970 SC 833) and Delux Milk Traders v. Satyanarayan (AIR 1979 Bombay 149), it was held that according to the provisions of Section 32, a suit on the original cause would be barred because of the existence of the arbitration award and further that a suit on any ground whatsoever for a decision upon the existence, effect and validity of an award stands barred by the provisions of Section 32 of the Indian Arbitration Act. I am also conscious of the rule laid down by a learned Single Judge of this Court in Abdul Karim v. Haji Ilyas and 4 others(1986 CLC 1660) where an application under Order VII, Rule 11, C.P.C. filed by the defendant in a suit for dissolution of partnership and rendition of account was dismissed. It was held that a plaint under Order VII, Rule 11, C.P.C. cannot be rejected on the assumption that Section 32 of the Arbitration Act is a legal bar. Rule laid down by this Court in the case of Afaq Ahmed v. Zamir Hasan Ansari (supra), though noted, was dissented. It is a settled law that the provisions of Order VII, Rule 11, C.P.C. are not exhaustive and an incompetent suit should be buried at an initial stage in order to save the defendants from the hardship and rigours of a protracted trial. If any reference is needed, see Burma Eastern Ltd. v. Burma Employees (PLD 1967 Dacca 190), Pakistan State Oil v. K.E.S.C. (PLD 1991 Karachi 365) and M/s. Standard Hotels (Put.) Ltd. v. M/s. Rio Centre and others (1994 CLC 2413).

4. Revelling to the facts of the case, the plaintiff is seeking setting aside of the Award, dated 8.4.1991. The dispute was referred to the Arbitrator by the plaintiff who participated in the proceedings. The merit and demerits of the plaintiffs claim were examined by the Arbitrator who on 8.4.1991 announced the Award which is subject-matter of this suit. All this was done at Peshawar, N.W.F.P. which are admitted facts. The agreement in question was also executed at Peshawar, N.W.F.P. In the circumstances as narrated hereinabove. I am of the considered view that Sections 31(2) and 32 of the Act, 1940 are fully attracted and the plaint is liable to be rejected. It was contended by Mr. Farooq H. Naek that till this date none of the parties have filed any proceedings under Section 14(2) of the Act, 1940 for making the said Award rule of the Court. If it is correct, then it is now more than three years when the Award was passed and, therefore, it would be open to the plaintiff to challenge any such proceedings on the grounds of limitation in view of Article 181 of the Limitation Act. It was held by a Full Bench of Andhra Pradesh High Court in the case of Sait Pamandass Sugnaram v. T.S. Manikyam Filled and others (AIR 1960 Andhra Pradesh 59) that no party can prejudice by the mere existence of an Award and that it does not become operative and enforceable until it has been filed in a Court and that such Court adjudicates about its validity. This makes the plaintiffs suit without cause of action.

5. On 4.3.1998, the plaint was rejected through a short order. Above are the reasoning for the said short order.

(K.K.F.) Plaint rejected

PLJ 1999 Karachi 86

Present: rasheed ahmed razvi, J.

Mrs. NAILA MASOOD and 2 others-Plaintiffs

versus

SECRETARY, FOOD AND CO-OPERATION, GOVERNMENT OF SINDH

and others-Defendants

Suit No. 659 of 1993, Civil Miscellaneous Applications Nos. 11197 of 1993 and 57 of 1994, decided on 25.2.1998.

(i) Co-operative Societies Act, 1925 (VII of 1925)--

—S. 70-Civil Procedure Code (V of 1908), O. VH, R. 11-Plaintiffs suit against Co-operative Society~Non-service of notice prior to filing of suit-­Contention of-Communication between parties prior to filing of suit ful­filled requirements as provided in S. 70, Co-operative Societies Act, 1925, therefore, plaint was not liable to be rejected on that ground. [P. 89] A

(ii) Co-operative Societies Act, 1925 (VII of 1925)--

—Ss. 54 & 70-A~Suit by legal heirs of deceased member of Co-operative Society-Whether suit maintainable or net-Question of-Terms "past member" would not include within its ambit deceased member or his legal heirs—Plaintiffs being legal heirs of deceased member of Coopera­ tive Society were not entitled in law to invoke arbitration under S. 54, Co­ operative Societies Act, 1925, therefore, bar to file suit as contained in S. 70-A, Co-operative Societies Act, 1925 was not attracted. [P. 91] B

AIR 1933 Lah. 376; AIR 1926 Bom. 352; AIR 1925 Pat. 575; AIR 1939 Pat. 500; AIR (1946) 33 Nag. 317 and AIR 1967 SC 389 ref.

(iii) Co-operative Societies Act (VII of 1925)--

—Ss. 17-B [as inserted by Sindh Co-operative Societies (Amendment) Act (VIII of 1989)], 70 & 54~Tranfer of interest in Housing Societies-What rules applicable-Plaintiffs on insertion of \S. 17-B, in Co-operative Societies Act, 1925 were entitled to become members of Co-operative Housing Society by means of inheritance-Subsequentiy in 1993, however, but prior to filing of suit, such property was cancelled and allotted to another person-Right of plaintiffs to apply for membership pf Society by virtue of S. 17-B, Co-operative Societies Act, 1925, thus stood expired-Plaintiffs therefore, being not members of Co-operative Society could be termed to be person claiming through past member of Sotiety-- Such status, would take plaintiffs out of purview of S. 54, Co-operative Societies Act, 1925-Plaintiff s suit was, thus, not barred by provisions of Ss. 54 & 70, Co-operative Societies Act, 1925. [Pp. 94 & 95] C

Mr. Zahid Burhani, Advocate for Plaintiffs.

Mr. Muhammad Maqsood and Nasir Maqsood, Advocate for Defendant No. 3.

Mirza Adil Baig, Advocate for Defendant No. 5. Date of hearing: 25.2.1998.

order

Through this order, I intend to dispose of two applications: one filed under Section 34 of the Arbitration Act, 1940 (CMA-11197/93) filed by Defendant No. 5 and the other filed under Order VII, Rule 11, C.P.C. (CMA-No. 57 of 1994) filed by Defendant No. 3 alongwith the preliminary legal objections, framed by this Court on 13.8.1996. .

1. Firstly, I would like to proceed with Civil Miscellaneous Application 57 of 1994, which is an application under Order VII, Rule 11, C.P.C. and the three preliminary legal objections to the maintainability of this suit, which are reproduced as hereinafter:-

(i) Whether the suit is barred by Sections 70 and 70-A of the Co-operative Societies Act, 1925?

(ii) Whether the suit is barred by Section 54 of Sindh Co­operative Societies Act, 1925?

(iii) Whether the suit is liable to be stayed under Section 34 read with Section 45 of the Arbitration Act, 1940?

1. This is a suit for declaration, possession, cancellation of documents and injunction, filed by widow of (late Masood Ali Khan alongwith her two minor children who are co-plaintiffs. The c&se of the plaintiffs is that deceased Masood Ah' Khan who was husband of the Plaintiff No. 1 and father of Plaintiffs Nos. 2 and 3 was allotted a residential Plot bearing No. B-84, Block 18, measuring 355 square yards, situated in K.D.A. Scheme No. 24, Gulshan-e-lqbal, Karachi, (hereinafter referred to as the "suit property") by the Defendant No. 3, namely Works Co-operative Housing Society Limited; that on 5th November, 1978, the physical possession of the suit property was delivered by the Defendant No. 3; that deceased Masood All Khan expired on 3rd October, 1977 in an accident at Colombo, Sri Lanka; that after a lapse of nearly IS years, i.e. in the month of February, 1993 the widow (plaintiff No.l) of the said deceased applied for mutation/transfer of the suit property; that despite completion of the formalities the suit property was not transferred; that or 29th May, 1993 plaintiff No.l served a legal notice on the defendant No.3 calling upon them to immediately transfer the suit property; that on 13th June, 1993 defendant No.3 through a communication informed the plaintiff that the allotment of the suit property was cancelled and the same was allotted to the defendant No.4, on the instructions received from the then Chief Minister of Sindh. It is pleaded by the plaintiffs that the said cancellation was mala fide, without issuing any prior show-cause notice and in violation of the Rules, and Regulations of the Cooperative Society.

Following reliefs are being sought in the suit:

"..(a) Grant the Declaration that the plaintiffs abovenamtd, as legal heirs of the deceased Masood Ali Khan have succeeded to all the rights, beneficial interests, titles and entitlements etc. of the Deceased in the aforesaid Plot and as such they are entitled to have their names mutated, transferred and recorded in the books and records of Defendant No.3 Society as the owners/allottees/transferees of the aforesaid Plot bearing No.B-84, Block 18, K.D.A. Scheme No.24, Gulshan-e-Iqbal Karachi admeasuring 355 square yards or thereabout and situated in the Defendant No.3's Housing Society within Police Station.

Declare that the Defendant No.3 (in view of declared policy as per letter Annexure N hereto) is acting arbitrarily and illegally and against the declared policies of the Government to create transparency in the allotment and cancellation of Plots.

Direct the Defendant No.3 to hand over and deliver to the plaintiffs such mutation/transfer/allotment letters and documents in favour of the plaintiffs in respect of aforesaid Plot family described hereinabove without any further delay or loses of time.

Cancel the allotment/transfer of the aforesaid plot in favour of Defendants Nos.4 and 5 or any other persons deriving title from the said Defendants as the case may be.

Restrain the Defendants, their agents, attorneys or any one working for or on their behalf, either jointly and/or severally, from transferring, assigning, alienating, disposing and selling the aforesaid Plot or in any way whatsoever creating any charge, lien, mortgage, transfer or interest thereon of whatsoever nature pending the final adjudication of the Suit.

Direct the Defendants, severally and/or jointly, their agents, servants, officers workmen or others for and on behalf of the Defendants to . deliver to the Plaintiffs the peaceful and vacant possession of the aforesaid Plot more particularly described in para. 3 hereinabove, without any let or hindrance.

(g) (h)

1. I have heard Mr. Zahid Burhani, for the plaintiffs and Mirza Adil Baig, for the defendants. On the previous dates of hearing, I have also heard Mr. Muhammad Maqsood, Advocate. In so far as the first objection of non-serving a legal notice prior to filing of the suit is concerned, Mr. Zahid Burhani has invited my attention to Annexure T, filed with the plaint, which is a legal notice dated 29-5-1993, .issued on behalf of plaintiffs to the defendant No.3 wherein all the relevant grievances of the plaintiffs have been incorporated as well as the cause of action has also been disclosed. Issuance of this notice has not been denied by the defendant No.3 in its written statement. Annexure 'I' of the plaint is the reply of defendant No.3. It is pertinent to note that in this reply, defendant No.3 has admitted that,the suit property was transferred as no timely actiof was taken by the legal heirs of deceased Masood Ali Khan. It was further admitted by the defendant No.3 that they are ready to accommodate the plaintiffs and to allot a plot available in the Society, for which widow of (late) Masood Ali Khan, namely Mrs. Naila Masood (now plaintiff No.l) was advised to make a request in writing. I have gone through both these notices and in my view it » fulfils the requirements as provided in section 70 of the Cooperative Societies Act, 1925. Therefore, the plaint is not liable to be rejected on this ground.

2. The next question which requires determination is in respect of sections 54 and 70-A of the Cooperative Societies Act, 1925, (hereinafter referred to as the Act, 1925) which provide a separate forum for determination of dispute touching the business of a cooperative society. Several classification of such parties have been disclosed in sub-clauses (A) to (E) of section 54 who are competent to refer a dispute to an arbitrator vide section 54. It was contended by Mirza Adil Baig that the category as classified in subsection (c) to section 54 covers the plaintiffs case which envisages reference of dispute between the Society or its Committee and any present or past member of the society to an arbitrator. According to Mr. Baig, since the plaintiffs are claiming their right through a past member, the matter should have been referred to the arbitration as provided under section 54,pf Act, 1925. It is not disputed by any of the defendants that the predecessor-in-interest of the plaintiff died on 3-10-1977 which was after issuance of letter of allotment and delivery of physical possession. Mr. Zahid Bumani, has argued that the term 'past member' used in section 54 of the Act, 1925 does not include legal heirs of a deceased member. He has placed reliance on the cases Anjuman Imadad Kafait Shuari v. (Captain) Naiz Ahmad and others (PLD 1952 Lahore 478) and Anjoman Imdad Qarza v. Abdul Haq and others (PLD 1960 (W.P.) Lahore, 273). In the former case the question before a learned Division Bench of Lahore High Court was whether all disputes between a Cooperative Society and past member could be referred to arbitration for decision in view of an arbitration clause which requires that any dispute touching the business of a society between members or past members of a society or a person claiming through a member or past member or persons so claiming and the committee or any officers can be referred to arbitration. Reference was made to the cases Narinjan v. Cooperative Society (AIR 1933 Lahore 376), Bharmakka v. Mallappa (AIR 1926 Bom. 352), Mahabir v. Basudeo (AIR 1925 Pat. 575). Sheosaran Singh v. Gaya Amla Cooperative Society (AIR 1939 Pat. 500). It was held by a Division Bench of Lahore High Court comprising of Cornelius and Shabir Ahmad, JJ., (as their Lordships then were) that the definition contained in clause (c) to section 2 of the Cooperative Societies Act, 1912 does not extent to a dead person. The view of a learned Single Judge that a cooperative society has a right to claim its debts against the successors of a deceased member through suit for recovery, filed in a Civil Court was upheld by the Lahore High Court. More or less, same question came up before another Division Bench of Lahore High Court in the case of Anjuman Imdad Qarza (supra). It was argued that the term, "past member" occurring in Rule 18(a) of the Cooperative Societies Rules framed by the Punjab Government includes a person, who, though dead, has been a member of the society and could be termed as past member. This Arugument was not upheld with the following observations:

"....There cannot be a dispute between persons, be the persons juristic persons or natural persons unless they are in existence. It follows that the expression 'past member' used in section 43(2) (1) of the Cooperative Societies Act used in relation to disputes of such member with the society would apply only to person who though no longer members of the society are still in existence. By the same clause the ' Provincial Government was authorised to make rules for settlement of disputes between a Cooperative Society and persons claiming under 'members' or past-members' and if one were to hold that when the legislature used the expression 'persons claiming under past members' it intended to include person claiming under 'deceased members' one would be holding that the legislature which enacted the Cooperative Societies Act, 1912, was indulging in inconsistencies and as an interpretation which would lead to the legislature being held to be inconsistent is to be avoided, it cannot.,but be held that a dispute-between a Cooperative Society and the legal representatives of a deceased member was not intended by the legislature to be a matter about which the Provincial Government had been authorised to make rules. Consequently, I would hold that rule 18(a), the relevant part of which has been reproduced in paragraph (3) above cannot be invoked in disputes between a Cooperative Society and the legal representatives of a deceased member of that society."

1. ') he above view of a learned Division Bench of Lahore High Court was followed by this Court in the case of Mst. Laila Bai and others v. Mst. Gul Bano and others (1992 CLC 1643). In that case, section 54 of the Act, 1925 was under consideration when it was held that the term "past member" does not include a deceased member. Mr. Zahid Burhani has also relied upon the case of Cooperative Society, Patur, No.7 v. Vasant Balkrishna and others (AIR (33) 1946 Nagpur 317) and the case of Bihta Cooperative Development and Cane Marketing Union Ltd., and another v. Bank of Bihar and others (AIR 1967 SC 389 (V 54 C 75)). In my view, the rule laid down in both these cases does not lend any suppon to Mr. Zahid Burhani as section 48 of the Indian Cooperative Societies Act, 1912 has been amended where the classification of the person to invoke arbitration includes such as past member and "deceased member". In the Si nan Cooperative Societies Act, 1925 the term "deceased member "was not included in the scheme of section 54. The term "member" has been defined in the Act, 1925 vide section 3(c) which includes a person joined in an application for the registration of a society or a person admitted to membership after registration of the Society in accordance with the rules and by-laws applicable to such society. However, the term "past member" has not been defined anywhere in the entire Act 1925. But, afthe same time, the term "deceased member" has been used in the Act 1925 which suggests that the intention of legislapure was not to include deceased member in the category of past member. Section 27 prescribes methods for the transfer of interest on the death of a member. Section 28 deals with the liability of a past member while section 29 deals with the liability of the estate of a deceased member. If the intention was to include deceased member into the term "past member", there was no. need for enacting separate provisions for deceased member in the scheme of Act, 1925. This is further clarified by section 54 where the term "dispute" is defined as inclusive of a claim by a society for debts or demands due to it from heirs of past member. It reads as follows:

"A dispute shall include the question whether a person is or was member of a society and also claims by a society for debts or demands due to it from a member, past member or non-member or the heirs or assets of a past member or non-member whether such debts or demands be admitted or not:"

It is, therefore, clear that the term "past member" does not include a deceased member or his legal heirs. In these circumstances, the plaintiffs are not entitled 8 in Law tp invoke arbitration under section 54 of the Act, 1925. Therefore, the bar as contained in section 70-A is not attracted.

1. On 10-12-1997 upon conclusion of hearing, order was dictated in the open Court through which both these applications as well as preliminary legal objections were disposed of. However, while going through the said order and before signing the same it transpired that none of die Advocates have made submissions to the effect of insertion of section 17-B in me Sindh Cooperative Societies Act, 1925, made through Act VIII of 1989 (PLD 1990 Sindh Statute 14) as well as on the definition of "dispute" as given in subsection (2) to section 54 of the Act, 1925. Accordingly, rehearing was ordered and notices were issued to the parties. In pursuance of the same re-hearing was done. In the year 1989 an amendment was made in the Act, 1925 through which section 17-B was enacted, which reads as follows:

"17-B. Transfer of interest in a Housing Society.—A member of a cooperative housing society or a society dealing in housing development shall cease to be member of the society in case all his interests in the immovable property in the society are transferred in favour of any other person by sale, inheritance, gift or otherwise, and the person acquiring such interests shall subject to rules be admitted as a member:

Provided that where more than one person acquire the interests, one of such person with mutual consent, failing which the person older in age shall be admitted as a member having right to vote while other persons will be members without such right:

Provided further that where a minor or a mentally disabled person, acquires the interests, the natural or legal guardian of the minor or, as the case may be, the person bound to maintain the disabled person shall be admitted as a member and such membership shall stand transferred to the minor as soon as he acquires majority or to the disabled person as soon as his disability is removed."

1. It was contended by Mr. Zahid Burhani that this amendment has no effect on the case of plaintiff since the predecessor-in-interest of the plaintiff died on 3-10-1977, some 12 years earlier to the introduction of this amendment and that section 17-B does not cover section 54 of the Act, 1925. According to Mirza Adil Baig who vigorously argued that by virtue of this amendment, plaintiffs became members of the Society and, therefore, remedy, if any, available to them is through the process prescribed under section 54 of the Act, 1925. It was jointly stated by all the Advocates present that there is no judicial pronouncement of any Superior Court on section 17-B of the Act, 1925.

2. Prior to introduction of section 17-B there was no provision in the Act, 1925 dealing with the status of a member in case of transfer of his interest in the immovable porperty by way of sale, inheritance, gift or otherwise. Section 17-B rovides that in the case of transfer through any mode as mentioned earlier, a member of a Cooperative Society shall cease to be a member and that a person acquiring such interest shall, subject to rule, be admitted as a member. It is clarified in this section that where the transferee is more than one person than by consent of such transferees one would be admitted as a member having right to vote while other persons will be simple member without such right. In case of minor, it is provided that his or her legal guardian shall be admitted as a member and in case of a mentally disabled person the same provision is provided. It would require examination whether transfer of a property of a mentally disabled person, as provided in Second proviso to section 17-B comes in conflicts with any of the provisions of The Lunacy Act, 1912, where it is provided that the properties of a mentally disabled person will be managed and controlled through a Manager, to be appointed by the District Judge of such District where the said lunatic resides. Adverting to the question involved in the instant case, the moot point is whether this provision of section 17-B has any retrospective effect. The admitted postion is that despite expiry of deceased member on (sic)-10-1977 the property remained in his name till January, 1993 when it was transferred to defendant No.3 this fact has been admitted by defendant No.4. Cooperative Society, in its written statement as well as in Annexure T to the plaint through which following admissions were made by the Cooperative Society:-

"(i) I do not want to go into detail and it is also not denied that the plot hi question was not allotted to your client's husband but I must say that your client has, though, died long ago, no timely action was taken by the legal heirs to watch and protect their interest and no application was filed for mutation of the same in the name of the legal heirs and no letter of Administration was obtained in this regard.

(ii) As per the record of the society, one Attaullah Unnar son of Hameedullahh was allotted a Plot bearing No.B-33, Block No. 10, Ghlshan-i-Iqbal, in the year 1981 and he made an application for another plot in exchange of his allotted plot and accordingly on 21-1-1993 another plot B-34 in Block 18 Scheme No.24 was allotted to him vide allotment order dated: 21-1-1993 and you applied for mutation after that so your case cannot be considred for mutation of the Plot No.B-34, Block No. 18, Scheme No.24, Gulshan-i-Iqbal, Karachi in favour of your client since it has been transferred to Mr. Attaullah in exchange of his Plot. I hope you will appreciate the difficulty of my client in not conceding to the request of your client in view of the above factual position."

1. On 26-11-1995 the Secretary of the defendant No.3 was directed to appear in Court for examination, who appeared and was examined by this Court on 8-4-1996, when the following order was passed:

"The. Secretary of defendant No.3, namely, Muhammad Mujtaba Khurshidi was examined by this Court under Order X, Rule 2, C.P.C. It is stated by him that the defendant No.3 had received an application in the month of Suptember, 1992 from defendant No.4 that his plot was encroached and that an alternate plot be issued to him. That the then Administrator, namely, Nasimul Haq Malik without issuing notice to the original allottee ordered allotment of B-84 to the defendant No.4. It is further stated by the Secretarty that at the relevant time there was no managing committee in existence and the full powers were with the Administrator. He has admitted taht the suit plot was cancelled without issuing any show-cause notice to the original allottee and that it was an illegal and unauthorised act on behalf of the Secretary. He has filed photo copies of the letter dated 21-9-1992 and allotment letter dated 21-9-1992 and allotment letter dated 20-1-1993. Copies of these documents were supplied to the learned counsel for the plaintiffs as well as for defendant No.4.

Mr. Mirza Adil Baig, learned counsel appearing for the defendant No.S has requested to cross-examine this witness. The Secretary was examined under Order X, Rule 2, C.P.C. by the Court and since he is not under oath or in the witness-box, as such, no question arises for cross-examination by the other side. However, parties are entitled to suggest questions but none of the parties have suggested any question.By consent, further hearing is adjourned to 22-4-1996."

1. It appears that one of the intentions of enacting section 17-B may be to curb any mischief which may arise on the part of cooperative society in dealing with the transferee of an immovable property. It will be seen that while dealing with the case of transferor, the word, 'shall' has been used in regard to the termination/seizure of a membership of a transferor on transfer of all his interest in the immovable property. In the same provision, a transferee has been extended a right, after acquiring interest in an immovable property, to obtain a membership in a cooperatiive housing society but sub jet to its rules. A persual of section 17-B reveals that the termination of membership on transferring rights in an immovable property becomes effective ipso facto in respect of a transferor. But to obtain a membership as a result of acquiring interest in an immovable property it is extended subject to rules of such cooperative housing society which may include completion of some formalities, like the submission of application forms for membership, managing or working committee's resolution or membership, fee etc. It is observed that a cooperative housing society could not frame any rule denying a right to a transferee to obtain membership on the eventualities as.mentioned in section 17^8 which, as it appears, was enacted in reference to a cooperative housing society since there is a provision in the Sindh Building Control Ordinance, 1979 whereby it is prescribed that the allottees of different flats/units in a building shall form a cooperative housing society. Perhaps, it may be for the reason that section 13(3-A) of the Sindh Building Control Ordinance, 1979, was introduced in the year 1982 through which allottees of a building were permitted to form cooperatiive society.

, 11. Keeping in view the facts of the present case, it could be safely said that on the introduction of Section 17-B in the year 1989, the plaintiffs were entitled to become a member of the Co-operative Housing Society/Defendant No. 3 on acquiring interest in the suit property by means of inheritance but at present their status is doubtful. Subsequently, in the year 1993 but prior to filing of the suit this property was cancelled and allotted to another person. Therefore, the rights of plaintiffs to apply for membership of the Defendant No. 3 by virtue of Section 17-B stands expired. The plaintiffs at present, therefore, could not be said to be the members of the Defendant No. 3 nor they could be termed to be person claiming through a past member. This takes them out of the purview of Section 54 of the Co­operative Societies Act, 1925. Thus, the suit, in view of its peculiar circumstances, does not appear to be barred by the provisions of Sections 54 and 70 of the Co-operative Societies Act, 1925. Accordingly both the applications under Order VII, Rule 11, C.P.C. stand dismissed and it is held that in view of the facts disclosed in the plaint, it is not liable to be rejected.

1. Since minor's interest is also involved in this suit, it is directed that the suit be fixed for early hearing on an early date, preferably within one year.

(AAJS) Application dismissed.

PLJ 1999 Karachi 95

Present: mrs. MAJIDA razvi, J. MUHAMMAD YOUNUS and others-Appellants

versus

MUHAMMAD ISMAIL-Respondent

F.R.A. No. 256 of 1995, decided on 2C4.1997.

(i) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-

—-S. 16(2)-Failure to deposit rent determined by Rent Controller-Plea of tenant that order was vague and, thus, had no force-Held : It tenant chose to deposit rent on the last few days then he must suffer for his own negligence. [P. 98] A

(ii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—S. 16(2)-Jurisdiction for striking off defence-Held: Appellate Authority as well as High Court was competent to exercise powers conferred on Rent Controller under S. 16(2) to strike off defence for non-compliance of order. [P. 99] B

1976 SCMR 229; 1986 SCMR 1156; PLD 1974 Kar. 10; PLD 1969 Kar. 546 and 1.980 SCMR 779 ref.

Mr. Bashir Ahmed, Advocate for Appellants.

Mr. K.B. Bhutto, Advocate for Respondent.

Date of hearing: 7.4.1997.

judgment

The present appeal has been filed against the order dated 26.3.1995 passed by the learned IVth Senior Civil Judge/Rent Controller, Karachi Central in Rent Case No. 701 of 1991 striking off the defence of the present appellants/tenants and allowing ejectment application.

Before I deal with the two applications listed for hearing, the brief facts as per memo., of appeal are that the respondent is the owner/landlord of property constructed on Plots Nos. 25, 26, 27 and 28/2, Commercial Area, Liaqatabad, Karachi; (the premises) and the appellant Muhammad Haroon ~\, ~. was the tenant in respect of the 1st -floor of the premises at a monthly rent of Rs. 575. The present appellants are the legal heirs of Muhammad Haroon the original tenant. Several allegations against the appellants/opponents were made in the ejectment application including sub-letting, and impairment of the value of the property. Notice of ejectment application was issued to the opponent/appellant (late) Muhammad Haroon who filed written statement and denied all the allegations contained in the ejectment application and took the plea that there was no relationship between the parties as that of landlord and tenant as no notice under Section 18 of the Sindh Rented Premises Ordinance, 1979, was served on the application. As , application under Section 16(1) of the Sindh Rented Premises Ordinance, \-• 1979, was also pending for determination and subsequently application under Section 16(2) of the Sindh Rented Premises Ordinance was also filed. Due to preliminary objection, by consent of the parties, it was decided that the preliminary objection in regard to the relationship of landlord and tenant between the parties will be dealt with first. The applicant filed his own affidavit-in-evidence as well as of three other witnesses, who were cross-examined. During the pendency of the rent case Muhammad Haroon died on or about 25.4.1994 and the appellants on 25.4.1995 came to know that the order dated 26.3.1995 was passed by the Rent Controller allowing the application under Section 16(2) field by the landlord and directing the opponent to hand over vacant and peaceful possession of the premises in question within sixty days.

I have heard both the counsel and have perused the record.

Without going into the merits of the case, admittedly, the appellant/ " x tenant had failed to deposit the arrears of rent as per order dated 9.1.1995 passed by the learned Rent Controller and as such the defence of the appellant/tenant was struck off by order dated 26.3.1995 and consequently the present appeal was filed. During the pendency of the appeal, on 22.10.1995, interim rent order was passed by consent and in presence of the counsel of the parties .nd Appellant No. 1, in person. The order is as follows:-

"22.10.1995. Mr. Bashir Ahmed for the appellant along with Muhammad Younus, Appellant No. 1. Mr. K.B. Bhutto for the respondent.

This application is granted by consent provided that the appellants deposit a sum of Rs. 32,775 (Rupees thirty two thousand seven hundred and seventy five only) within six weeks and continue to deposit accruing rents in the sum of Rs. 575 (Rupees five hundred and seventy five only) per month, the first such deposit being made before the 10th of November, 1995 and thereafter to be continued to be made before the 10th of each calendar month. The amount or amounts so deposited with the Nazir of this Court shall not be withdrawn by the respondents. Application disposed of.

(1) C.M.A. No. 1152 of 1995, dated 6.12.1995 was filed on behalf of the appellant under Section 148, C.P.C. read with Section 151, C.P.C. seeking condonation of delay in depositing the rent and seeking further time to comply with the order dated 22.10.1995.

(2) C.M.A. No. 1153 of 1995, is an application under Section 16(2) of the Sindh Rented Premises Ordinance, 1979 filed on behalf of the respondent to strike off the defence of the appellant as he failed to comply with the order dated 22.10.1995.

Mr. Bashir Ahmed, the learned counsel for the appellants submitted that the amount could not be deposited within six weeks due to bona fide misunderstanding/miscalculation of period as according to him, order dated 22.10.1995 was vague and it was not clear as to when the period for payment would start. He has taken the plea that Friday and Saturday i.e. 1st and 2nd December, 1995, where holidays and on the 3rd there was some strike and on the 4th December he could not deposit the arrears of rent due to death of his close friend/relative and on the 5th when he approached the Nazir to deposit the arrears the Nazir refused to accept the same and as such the application was made on the 6th of December, 1995. According to him, the grounds of non-compliance are very sound and as such the period may be condoned.

However, Mr. K.B. Bhutto, the learned counsel for the respondents contended that the order very clear and it was understood that the period for payment will start from the following day after passing of the order and six weeks means forty two days which expired on the 2nd of December, 1995, but the opponent made the application on 6th and that too praying for grant of seven days to deposit the arrears of rent which indicate that even on that date he did not have the money to deposit as such the application be dismissed and the defence of the appellant he struck off.

Admittedly, the amount of Rs. 32,775 was deposited on 10.12.1995. It is pertinent to mention here that the present appeal has also been filed against the tentative order dated 26.3.1995 passed by the Rent Controller directing the opponent to deposit the arrears of rent within thirty days and future rent to be deposited on or before the 10th of each calendar month, which the opponent failed to comply with.

The learned counsel for the appellants could not substantiate his grounds for non-compliance of the order dated 22.10.1995. Not only that he failed to deposit the rent by 6.12.1995, the day application for extension of time was filed but he took another four days to deposit the rent which in itself is self-explanatory as to the non-availability of funds with the appellants. None of the pleas raised on behalf of the appellants were "beyond human control".

In the case of Javaid Iqbal v. Rana Muzaffar Khan (1976 SCMR 229), where the tenant had failed to deposit the future monthly rent at specified rate and took the plea that he was not apprised of the order by his counsel and as such default was not wilful. It was held "petitioner/tenant being negligent in prosecution of his defence by failing to keep himself fully informed of order passed against him, default in payment of rent not unavailable or beyond his control; hence order striking . off defence unexceptional". In the present case, the Appellant No. 2 was present when the order was passed by this Court and as such the plea that the order was vague has no force. The appellant had sufficient time to deppsit the rent and if he chose to deposit the same on the last few days then he must suffer for his own negligence.

In the case of Fazlur Rehman v. Mst. Sarwari Begum and others (1986 SCMR 1156), the learned Rent Controller had struck off the defence of the tenant for non-compliance of the order for depositing of rent. It was observed that "the appellant himself took the risk of depositing the rent on the last date and the consequence thereof should also be borne by him". As such the appeal was dismissed. In the present case also the appellant had enough time to deposit the rent but failed to do so and moved an application, that too after the expiiy of the period granted and the reasons given for condonation of delay are not at all cogent and could have been avoided by him in case he was serious in complying with the rent order.

Next argument of Mr. K.B. Bhutto, the learned counsel for the respondent is that the High Court is competent to strike off the defence where the tenant has failed to deposit rent in compliance of the order to the same. As far as the question striking off the defence by the Appellate Court is concerned in the case of Abdul Qayum Ansari v. Salahuddin Qureshi (PLD 1974 Kar. 10). It was held that "Appellate Authority as well as High Court in appeals under Section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, is competent to exercise powers conferred on Controller under Section 13(6) and can order deposit of rent pending appeal and strike off defence for non-compliance with its order." It was held that the view taken in flosnan Din's case (PLD 1969 Kar. 546) is correct and must be followed in this Court and in all subordinate Courts. In the case of M/s. Crescenf Publicity Service v. S.M. Yownus and owners (1980 SCMR 779), the abovereferred judgment was upheld and the petition was accordingly dismissed.

In view of the abovereferred judgments and the principle laid down therein, by a short order dated 7.4.1997 C.M.A. No. 1152 of 1995 was dismissed while C.M.A. No. 1153 of 1995 was allowed.

Since the appellant's defence in struck off, this appeal stands dismissed. However, the appellant is granted sixty days' time from the date of this order to vacate and hand over vacant peaceful possession of the

premises to the respondent/landlord.

(K.KF.) Orders accordingly.

PLJ 1999 Karachi 99 (DB)

Present amanullah abbasi and abul inam, JJ.

MUHAMMAD SALEEM and 5 others-Petitioners

versus

ADMINISTRATOR, KARACHI METROPOLITAN CORPORATION and 2 others-Respondents

Constitutional Petition No. D-1794 and Miscellaneous No. 4503 of 1995, decided on 26.5.1998.

(i) Constitution of Pakistan (1973)--

—Art. 199~Relief under Constitutional jurisdiction being discretionary in nature, same cannot be granted to a person who had acted in violation of law of land. [Pp. 104 & 105] D

(ii) Sindh Building Control Ordinance, 1979 (V of 1979)--

—Ss. 6 & 7-A~Constitutional petition—Petitioners who were in occupation of premises in question as bonafide purchasers thereof, had challenged sealing of premises by respondent Authorities (KMC) alleging that action of sealing premises was without lawful authority-Builing/premises in question had been construted without approval of its building plan by Authority in the manner provided in S. 6 of Ordinance, 1979-Petitioners had failed to obtain occupancy certificate as required under S. 6(2) of Sindh Building Control Ordinance, 1979, respondent Authorities were competent under S. 7-A of Sindh Building Control Ordinance, 1979 to take action of sealing of premises-Plea of being bona fide purchasers would be of no help to petitioners as under law they were not even legally competent to purchase premises in question from owner/builder and occupy same. [Pp. 103 & 104] A, B, & C

1993 CLC 727 and 1993 CLC 1348 ref.

Mr. Muhammad Younus, Advocate for Petitioners.

Mr. Shahid Jamil Khan, for Respondent.

Mr. M. Iqbal Raad, Addl. A:G.

Date of hearing: 26.5.1998.

order

Abul Inam, J.--By this order we propose to dispose of this Constitutional Petition alongwith the listed application, C.M.A. No. 4503 of 1995, which has been filed by the petitioners under Order 39, Rules 1 and 2, C.P.C. for restraining the respondents from resealing the commercial premises constructed in the basement of Hashmi Electronics Centre on Plot No. 18, P.R. 2, Abdullah Haroon Road, Karachi (hereinafter referred to as "Hashmi Centre").

Before proceeding further it may be observed that this petition is listed for Katcha Peshi and for hearing of aforesaid miscellaneous application and in view of the order dated 24.2.1998 whereby the learned counsel appearing for the parties were put on notice that this petition shall be heard and disposed of finally at the same time, we have heard this petition at some length and the same is disposed of as such.

The brief facts giving rise to the filing of this petition are that the petitioners who are in occupation of commercial premises built on the ground floor and so also in the basement of the Hashmi Centre as owners of the same since several years. It is the case of the petitioners that commercial premises which are in their possession with lawful authority, were sealed by the respondents on 31.8.1995 after 9 p.m. in their absence and at a time when the said premises were closed. The petitioners through their Advocate sent telegra- phic notice dated 2.9.1995 to the respondents complaining against illegal sealing of their premises and called upon them to deseal the same. Thereafter, another legal notice dated 3.5.1995 was served on the respondents by the petitioners requesting for descaling of the commercial premises of the petitioners and on their failure to do so the Constitutional Petition in hand has been filed in this Court seeking the following reliefs:- "(1) Declaration that the said action/acts and the sealing of the petitioners' said premises in the Basement of the \ Hashmi Electronic Centre' on Plot No. 18, P.R.2, Abdullah Haroon Road, Karachi, by the Respondents are without any lawful authority and are of no legal effect.

(2) Declaration to the respondents to remove their seals from the Petitioners' said commercial premises in the Basement of the said

building forthwith. F (3) Award compensatory costs to the petitioners.

(4) Any other further relief deemed fit and proper under the facts and circumstances of the case, by this Honourable Court." The respondents were served and have filed their counter-affidavit.

We have heard Mr. Muhammad Younus counsel for the petitioners, Mr. Iqbal Raad, learned Additional Advocate-General and Mr. Shahid Jamil

Khan, Advocate for the respondents. Learned counsel for the petitioners has raised the following contentions:

(a) That the petitioners are bona fide purchasers of the premises and the impugned action of sealing their commercial premises by the respondents is without any lawful authority inasmuch as no such action can be taken by the respondents under section 7-A of the Sindh Buildings Control Ordinance, 1979 hereinafter referred to as "the Ordinance of 1979.

(b) That the impugned action of sealing the commercial premises of the petitioners, in any event, is against the principle of natural justice inasmuch as no show-cause notice was served on the petitioners before taking the impugned action, and

(c) That the respondent No. 1 KBCA (KMC) is riot a legally constituted body under section 4 of the Ordinance of 1979 and the notification, dated 29-10-1991 whereby the KBCA (KMC) was constituted is abinitio void and of no legal consequence as the Ordinance of 1979 does not envisage separate or more than one building control authority for the city of Karachi."

On the other hand, Mr. Shahid Jamil Khan, learned counsel for the respondents has contended that the entire building known as Hashmi Electronic Centre has been constructed by the builder without approval of any building plan and only architectural plan which does not authorise a builder to raise construction, was got approved by the builder for the construction of Hashmi Centre. According to the learned counsel, the builder, without any approved building plan, has illegally constructed 29 shops and godowns in the basement of Hashmi Centre alongwith ground plus two storeys. A notice, dated 25-9-1994 was served on the owner/builder to demolish the authorised/illegal construction and on failure of the owner/ builder to do so the building in question was sealed by the respondents. Lastly, it has been contended by the learned counsel for the respondents that the entire construction of the Hashmi Centre i.e. basement and ground plus two storeys is illegal and unauthorised and under section 7-A of the Ordinance of 1979 the respondents are legally competent to take the impugned action of sealing the same.

In order to fully appreciate the contentions raised by the learned counsel for the petitioners, we deem it advantageous to reproduce hereinbelow sections 6 and 7-A of the Ordinance of 1979:-

"(6) Approval of Plan.— (1) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no objection centrificate for the construction thereof on payment of such fee as may by prescribed:

Provided..................................................................................................

Explanation.......................................................................... ....................

(2) No building mentioned in subsection (1) shall be occupied by any person or shall be allowed by the builder to be occupied, before the Authority has, on application of the occupant or owner, issued occupancy certificate, in such manner as may be prescribed.

(3) ......................................................................................................

(4) ......................................................................................................

(7-A) Violation of certain provisions.— Where the provisions of subsection (1) of section 6 are violated the building may without prejudice to any other action including sealing of the building or ejectment of the occupants be ordered by the Authority or any officer of the Authority authorized in this behalf to be demolished, at the cost of the builder in the case of public buildings and the owners in other cases."

A plain reading of section 6 of the Ordinance of 1979 reveals that no building shall be constructed before the building plan of the same has been approved by the Authority and no objection certificate for construction thereof has been issued. Subsection (2) of section 6 of the Ordinance of 1979 enjoins upon the builder not to allow occupation of a building by any person unless occupancy certificate, in the manner prescribed, is issued to the builder by the Authority. Under the said subsection a duty is cast upon the occupants of a building also to obtain occupancy certificate from the Authority before occupying the same in case the occupancy certificate has not been obtained by the owner/builder.

It is an admitted position that the building in question has been constructed without approval of a building plan by the Authority in the manner provided in section 6 of the Ordinance of 1979. It is also an admitted position that the builder/owner and so also the petitioners, before occupying the said illegally constructed building, failed to obtain an occupancy certificate as contemplated under section 6(2) of the Ordinance of 1979. Such being the position, in our opinion, the petitioners were not legally competent to occupy the commercial premises in the Hashmi Centre. The contention of the learned counsel for the petitioners to the effect that under section 7-A of the Ordinance of 1979, the respondents were not competent to take the impugned action of sealing the building in question is also misconceived and fallacious inasmuch as under the provisions of section 7-A in case of violation of provisions of section 6(1) of the Ordinance of 1979, the respondents are competent to take the impugned action of sealing the premises.

Under section 23 of the Contract Act all agreement, consideration or object of which is forbidden by law, are illegal. As observed above, the building in question was constructed by the builder/owner without approval of a building plan as envisaged by section 6 of the Ordinance of 1979 and the commercial premises were occupied by the petitioners without obtaining occupancy certificate from the building control authority as required under section 6(2) of the Ordinance of 1979. Such being the position, the plea of bona fide purchasers raised by the petitioners' counsel is of no help to them as under the law the petitioners were not even legally competent to purchase the said commercial premises from the owner/builder and occupy the same.

The plea of the petitioners being bona fide purchasers for value, under similar circumstances, came up for consideration before this Court in the recent case of Muhammad Aslam Gatta v. Karachi Building Control Authority (KMC) and 13 others 1989 MLD 544 wherein a learned Single Judge of this Court (Mr. Justice Rasheed Ahmed Razvi) while discussing plathora of case-law has held as under:

"(27) Section 23 of the Contract Act, 1872, makes all agreements void, the object or consideration of which is unlawful. There are several instances incorporated in section 23 and under its illustrations which further envisage that where the agreement is forbidden by law or if it defeats the provisions of any law or is fraudulent or involves or implies injury to the person or property of another or if the Courts regard it as immoral or if it is opposed to public policy falls within the category of void agreements. It was strenuously argued on behalf of plaintiffs that nowhere in section 6, in particular, and nowhere in the provisions of Ordinance, 1979, the builders are forbidden to enter into any agreement with the purchaser prior to completion of construction and, therefore, the agreements between allottees and builders are not hit by the provisions of section 6(2) of the Ordinance, 1979, which view is not correct. One of the conditions provided in section 23 of the Contract Act is that if any contract is of such a nature that if permitted it would defeat the provisions of law then such agreement is unlawful and void. In the instant case, there is a specific prohibition imposed on the builders that no building as mentioned in subsection (1) to section 6 shall be occupied by any person or shall be allowed by the builders to be occupied by any person or unless on an application of the occupant or owner the Building Control Authority has issued occupancy certificate in a prescribed manner. Therefore, in order to obtain permission to occupy any building or its portion by any occupant or owner the first requirement is that such building should have been constructed strictly in accordance with the approved building plan as provided under section 6 (1) of the Ordinance. 1979. The second condition of grant of permi-ssion to occupy a building is that an occupant or owner must have obtained occupancy certificate from the Building Control Authority."

We are in complete agreement with the dicta laid down in the case of Muhammad Ismail Gatta (Supra) and held that the petitioners were not legally competent to occupy any portion of the building in question and as such the plea lof bona fide purchasers is not available to the petitioners.

It has further been urged by the learned counsel for the petitioners that the impugned action of sealing the premises of the j)etitioners is against the principles of natural justice inasmuch as before sealing neither any show-cause notice was served nor any opportunity of being heard was provided to the petitioners by the respondents. Reliance in support of such contention has been placed by the learned counsel on the cases of Noor-ul-Amin Bachani and others v. Government of Sindh through Secretary', Industries and Mineral Development Department and others 1993 CLC 727 and Gul Muhammad and others v. T^e Deputy Commissioner, Hyderabad and others 1993 CLC 1348. The ratio laid down in both the reported cases is that an order passed in absence of aggrieved parties and without hearing them is illegal. There can be no cavil to the proposition that no action and/or an order can be taken or passed by any authority without giving an opportunity of being heard and the superior Courts have been consistent in holding such view. The case of the petitioners is somewhat on different footing inasmuch as before taking the impugned action of sealing the premises of the petitioners a show-cause notice was served by the respondents on the builder/owner of the property in question and the petitioners who derive their title from the said owner/builder step in the shoes of the owner/builder and as such notice to the owner/builder shall be deemed to be a notice to the petitioners. In any even^ the petitioners occupied the building in (question without obtaining occupancy certificate from the respondents as /•(required by section 6(2) of the Ordinance of 1979 and as such the petitioners jhave acted in an illegal manner. The reliefs under writ jurisdiction of this Court being discretionary in nature, in our view, cannot be granted to a person who acts in violation of law of the land. In this view of the matter we are of the considered view that the contention of the learned counsel is misconceived.

Before parting with this judgment, we would like to state that the Sindh Building Control Ordinance, 1979 was promulgated to regulate the planning, construction, control and demolition and disposal of buildings and plots in the Province of Sindh. Under section 4 of the Ordinance of 1979 the Provincial Government has been conferred with powers to nominate anybody corporate or council or any department of such body corporate or council to act as Authority under the Ordinance. Under section i 1 of the Ordinance of 1979 an Authority, nominated1 appointed under section 4, has been conferred a power to authorize any officer not below Grade- P of the National Pay Scales to inspect any under construction building for the purpose of quality control and if in the opinion of such authorized officer, any building is not in accordance with the plan or specifications approved by the Authority, a statutory duty is cast upon such authorized officer to :--

by an order in writing issue any direction which shall be binding on the builder and all those concerned with the construction of the building or to require that the construction be suspended until any further direction is issued by him or by the Authority or order that the construction which, in his opinion, is defective be demolished at the cost of the builder.

A plain reading of the aforesaid provisions of the Ordinance of 1979 read in conjunction with sections 6 and 7-A of the same would reveal that the Authority and its officers are clothed with ample and wide powers by the legislature to see to it that provisions of the Ordinance of 1979 are not violated but the reality on the ground is that at least in the city of Karachi provisions of the said Ordinance are being constantly flouted by the builders with impunity. The Authority and its functionaries have miserably failed to implement and enforce the mandate of law as it is common knowledge that in majority of cases the functionaries of the Authority, for obvious reasons, shut their eyes on the flagrant violation of the provisions of the Ordinance of 1979 and the relevant Building Control Regulations. The ineffectiveness of the Authority and its functionaries has compounded the problems of the people in respect of enjoyment of their basic civic amenities such as electricity, water, gas and sewerage etc. The Authority has failed to fulfil its statutory obligations as enshrined in the Ordinance of 1979 and it is high time that proper corrective measures are taken at the appropriate Governmental level to streamline the working of the Authority lest it may become too late and the city is turned into a jungle of unplanned and unauthorized monstrous high-rise buildings and the people are deprived completely of their basic amenities available in a civilized society.

In the case in hand also the manner in which the respondents have conducted themselves leaves much to he desired and is highly regretable. As an ad interim measure an order was passed by this Court on 28.9.1995 ordering temporaiy de-sealing of the premises of the petitioner to enable them to remove such of their goods and articles as desired and after such removal premises were ordered to be re-sealed. We cannot refrain ourselves from placing on record our strong disapproval on failure of the respondents comply with the second leg of the said order inasmuch as the respondents without any legal justification did not re-seal the premises in question.

In view of the above discussion, we are of the considered opinion that this petition is not maintained and as such is dismissed alongwith C.M.A. No. 4503 of 1995 with no orders as to cost. The respondents are directed to take action in respect of illegal and unauthorised construction strictly in accordance with law and report compliance to the M.I.T. of this Court within two months.

A copy of this order be sent to the M.I.T. as well as to the Chief Secretary, Government of Sindh for compliance.

(K.K.F.) Petition dismissed.

PLJ 1999 Karachi 106

Present:HAMID Au MlRZA, J. ABDUL MALIK-AppeUant

versus

SARFRAZ KENNETH-Respondent

F.R.A. No. 25 and Civil Miscellaneous Application No. 47 of 1998, decided on 21.5.1998.

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—-S. 15(2)(ii)-Tenant-Ejectment of~Default~Ground of~Contended that amount of security deposited by him with landlord could have been adjusted towards arrears of rent for disputed period-Tenancy agreement betweon parties showed that fixed/security de-posit could only be returned to tenant when he would hand over vacant possession of premises after adjustment of amount of damages, if any caused to the premises but such security amount could not be adjusted towards arrears of rent-Tenant who failed to pay or tender rent was rightly ordered to be ejected on ground of default. [Pp. 109&110]A&B

PLD 1995 Kar. 370; 1986 CLC 2524; 1996 MLD 1717; 1996 CLC 619; 1987 CLC 493; PLD 1990 SC 389; 1986 SCMR 441 and PLD 1988 SC 228 ref.

Mr. Muhammad Yaseen Azad, Advocate for Appellant. Mr. Sardar Muhammad Ishaque, Advocate for Respondent. Date of hearing: 21.5.1998.

order

This is an appeal under Section 21 of Sindh Rented Premises Ordinance 1979 (hereinafter called the Rent Ordinance) directed against the order dated 4.12.1997 passed by II-Senior Civil Judge and Rent Controller, Karachi-South, in Rent Case No. 345/93 (Sarfaraz Kenneth vs. Abdul Malik whereby eviction application under Section 15 of Rent Ordinance filed by respondent was allowed on the ground of default in payment of rent, hence this appeal.

Brief facts of the case are that the respondent/landlord filed eviction application under Section 15 of Rent Ordinance against the appellant/tenant on the ground that the premises in question was required by the respondent for his personal use in good faith and that the appellant/tenant has defaulted in payment of rent from October 1992 to March 1993. The appellant/tenant filed written-statement wherein he denied the contents of the eviction application and with regard to default in payment .of rent he stated that rent was paid by him till March 1993 for which no rent receipt was issued by the respondent. No plea with regard to security deposit was raised/stated, nor for its adjustment was claimed in the written-statement. The Rent Controller after recording the evidence held that default in the - payment of rent from October 1992 till March 1993 has been committed by the appellant/tenant hence the appellant was ordered to vacate the premises.

I have heard learned counsel for the parties and perused the record and proceedings of the case.

Contention of the learned counsel for the appellant is that the appellant is in occupation of two shops when Shop No. 1 was let out to him on 27.5.1997 through a written agreement for eleven months wherein an amount of Rs. 30,000 was given to the respondent as security deposit and Shop No. 2 was rented out later, but there was no written agrCement in respect of same and an amount of Rs. 10,000 was given to the respondent towards the security deposit which fact is said to have been admitted by the respondent in the cross-examination. In the said circumstances, learned counsel for the appellant contended that amount of arrears of rent for the period from October 1992 till March 1993 could have been adjusted from the security deposit and if that would have been done the finding would have been that there was no default in the payment of rent, consequently, no eviction could have been ordered. In support of his contention, learned counsel for the appellant has placed reliance upon (i) Muhammad Afzal v. Rent Controller Faisalabad etc. 1989 MLD 2056; (ii) Muhammad Amin v. Mst. Nasim Begum 1984 CLC 1745, (iii) Muhammad Yousaf v. Abdullah (PLD 1980 SC 298), (iv) M.K. Muhammad and another v. Muhammad Abu Bakar (1993 SCMR 200), (v) Abdul Hakim v. Atiya Sultana (PLD 1995 Karachi 370) and (vi) Waddhawawan Silk Industries v. Hawa Bai and 6 others (1986 CLC 2524) in support of his contention.

Learned counsel for the respondent has admitted that the appellant has made security deposit of Rs. 30,000 in respect of Shop No. 1 and an amount of Rs. 10,000 as security deposit in respect of Shop No. 2 but contended that the said amount of security amount could not be adjusted towards the arrears of rent as the said amount was to be adjusted at the time when the shop was to be vacated by the appellant/tenant. He has referred to an agreement made between the parties in respect of Shop No. 1 only, wherein as per para 2, the fixed deposit was to be refunded to the lessee, as and when he would hand over physical possession to the lessor and damages, if any, done by the lessee, said amount to the extent of damages will have to be deducted from the fixed deposit. He further submitted that so far as another Shop No. 2 terms of first agreement would be made applicable but in case same are not applied for then provisions of Rent Ordinance would come into play, where under nowhere it has been said, that amount of security deposit would be adjusted towards the rent and there was neither oral agreement between the parties for adjustment of said security deposit nor any such question was suggested in the cross-examination to the respondent by the learned counsel for the appellant. He has placed reliance upon Noman Ahmad v. Mrs. Ghazala Iqbal 1996 MLD 1717, (ii) Ismail Adamjee v. Mst. Bilquis Iqbal (1996 CLC 619), (iii) Muhammad Ally Ahmad v. Shaikh Abdul Hameed (1987 CLC 493), (iv) Mst. Saeeda Khaton v. Muhammad Ahmad Latift (PLD 1990 SC 389) and (v) Karamat Hussain v. Kazi Ali Muhammad (1986 SCMR 441) in support of his contention.

I have gone through the evidence of the parties and the case-law cited by the respective learned counsel for the parties. Admittedly, in the instant case the appellant is said to have not paid rent from October 1992 to March 1993 for which it is alleged by the appellant that no rent receipt was issued by the respondent to him. Under Section 10 of Rent Ordinance mode of tender of rent is laid down whereunder the tenant has either to tender the rent personally on acknowledgement of the receipt and in failure to obtain such rent receipt, rent could be sent through money order and if money-order is refused, same could be deposited in the office of Rent Controller. The ocular testimony of the witnesses examined by the appellant that rent was paid but no rent receipt was issued inspired no confidence that the appellant/tenant paid rent for the defaulted period to the respondent whereas the respondent has proved non-payment of rent for the said period by the appellant which evidence/testimony was confidence inspiring. The only contention which has been argued by the learned counsel for the appellant is that the admitted security deposit could have been adjusted towards the arrears of rent for the period from October 1992 to March 1993. I find that in view of para. 3 of tenancy agreement with respect to Shop No. 1 the said fixed deposit could only be returned to the appellant/tenant when he would hand over the vacant possession of the shop premises after the adjustment of amount of damages, if any, done to premises but the said security amount cannot be adjusted towards the arrears of rent. The facts of the cases cited by the learned counsel for the appellant are different and distinguishable to the facts of instant case. There is also no suggestion with regard to Shop No. 2 that amount of fixed deposit was liable to be adjusted towards the arrears of rent. Besides this, the appellant has not raised this plea in the written-statement that in case he failed to prove the payment of rent then in the alternative the amount of security deposit be allowed to be adjusted towards the rent. The plea raised is after thought and made at later stage therefore it cannot be considered. Reference '-may be made to Mst. Saeeda Khatoon v. Muhammad Ahmad Latifi (PLD 1990 SC 389) at page 392, para 9 it has been observed:

"However, since leave was granted to consider the question whether the deposit of Rs. 500 could be adjusted towards rent, we propose to deal with this question also. We have produced the terms of tenancy hereinbefore under which the deposit of Rs. 500 was made as security. It clearly states that the amount shall not be adjusted towards future rent. If further provides that the amount is deposited as security for electric, gas and conservancy charges and if any of these charges remain outstanding the same will be adjusted against them otherwise refundeft on vacating the premises in good condition. Therefore, it is clear that according to the terms, the amount of security deposit could not be adjusted against the future rent which was not paid in due time. Reliance is placed on Swrf \sghar All Imam v. Muhammad

All (PLD 1988 Supreme Court 228) wherein this Court, in spite of the fact that there was no mention in the agreement as to how and when the security deposit will be adjusted or applied, held that "it could not be adjusted against the current liability to pay the rent". It would be of some advantage if the relevant passage which appears at page 231 of the report as quoted here. It reads as follows: -"Although it is not mentioned in the agreement as to how and when the security deposit will be adjusted or applied, but it can easily be spelled out from the use of the word security and the positive provisions regarding payment of rent in advance at specified time as also the payment of other charges; and the provisions in the negative form that the tenant shall not cause loss or damage to the property or to the landlord. The security deposit, therefore, is to be adjusted by the landlord when the tenant vacates the premises towards unpaid rent as against other payments or loos at any time. It could not be adjusted against the current liability to pay the rent. It has to be adjusted in accordance with the terms of the agreement and not by the Rent Controller at his will. It has beeri so held by us in the case of Mst. Zarina Khawaja."

In the case on hand the term under which the security deposit was made specifically states that it cannot be adjusted against the future rent and it could be returned only after the premises is vacated in good condition. Therefore, the High Court was not right when it held that the amount of security could be adjusted against the rent due during the occupation of the premises by the tenant or before surrender of vacant possession of the premises as it would amount to changing the terms of agreement on which the premises is held by the tenant."

In the circumstances I do not find any merit in this appeal which is hereby dismissed in limine alongwith listed application.

Learned counsel for the appellant requests for six months' period. However, three months' period is allowed to him to vacate shop premises subject to condition that the appellant would deposit rent in the office of Rent Controller.

(K.K.F.) Appeal dismissed.

PLJ 1999 Karachi 111

Present: S. ahmad sarwana, J. I.B.M. SEMEA SPA LTD.-Plaintiff

versus

EGS (PVT.) LTD.-Defendant

Suit No. 1242 of 1996 and Civil Miscellaneous Application No. 8104 of 1997, decided on 12.1.1998.

1989 CLC 625; 1985 MLD 1440; PLD 1957 Kar. 54 and 1990 MLD 171 ref.

(i) Civil Procedure Code, 1908 (V of 1908)--

—O. VIII, R. l--Time provided in O.VIII, R. 1, C.P.C. is not absolute-Cour would have complete discretion to extend time to file written statement which might even exceed 30 days as provided in R. 1 of O.VIII, C.P.C.

PLJ 1999 Karachi 114

Present: rasheed ahmed razvi, J.

Raja FAKHAR ABBAS and another-Plaintiffs

versus

KARACHI METROPOLITAN CORPORATION, AUTONOMOUS CORPORATE BODY through ADMINISTRATOR-Defendant

Suit No. 612 of 1978, decided on 6.4.1998.

(i) Sindh People's Local Government Ordinance, 1972 (II of 1972)-

—S. 42~Specific Relief Act (I of 1877), S. 4~Plaintiffs claiming ownership of land-Plaintiff was although claiming to be in possession of properly in question from 1924, yet neither any approved plan or completion certificate was produced to show that there was lawful and bona fide construction on premises in question-Even if there was such construction, same would have no effect, for, defendant had never denied status of plaintiff on property as tenant. [P. 123] B

(ii) Sindh People's Local Government Ordinance, 1972 (II of 1972)-

—S. 42-Specific Relief Act (I of 1877), S. 4-Damages--Claim of-Plaintiffs neither in plaint nor in evidence had shown as to how they had suffered any damages or pecuniary loss-No evidence was produced on such point or question of damages-Held: Plaintiffs, were not entitled to claim damages. . [P. 123] C

(iii) Specific Relief Act, 1877 (I of 1877)--

—S. 4--Sindh People's Local Government Ordinance (II of 1972), S. 42- Factum of such contract was denied by defendant (KMC)--Effect—neither any formal contract as provided under s. 42 Sindh People's Local Government Ordinance, 1972 (since repealed) was executed nor the same was placed before Local Council/Corporation which was mandatory-­ Held: There was no concluded and binding contract between plaintiffs and defendants for lease or sale of property in question. [P. 123] A

Mr. Rehanul Hasan Faruqi, Advocate for Plaintiffs. Mr. Muhammad Yasin Kiyani, Advocate for Defendant. Dates of hearing: 16.1; 10.2; 18 and 19.3.1998.

judgment

This is a suit for specific performance of contract and in alternate for damages claimed at Rs. 9,72,000. According to the averments of the amended plaint, the predecessor-in-interest of Plaintiff Nos. 1 (a) and Kb) namely Raja Sardar Khan (now deceased) and Plaintiff No. 2, namely Raja Ghulam Abbas are in possession of the two plots measuring 405 square yards each situated in S.B. 9, Saddar Bazar Quarters, Karachi (hereinafter referred to as the suit properties); that the plaintiff raised construction on the said plot after considerable investment; that initially lease was granted by defendant which continued till June, 1977 for which the plaintiffs were continuously paying rents; that in the year 1978, an offer was made by the defendant for grant of lease in respect of suit properties which was duly accepted; that the rate was fixed by the Government at Rs. 1,000 per square yard for which the plaintiffs made representation and the same was reduced to Rs. 600 per square yard; that this offer was accepted by the plaintiffs; that the defendant without affording any opportunity of hearing to the plaintiff and after accepting the consideration, illegally and unauthorisedly revoked the allotment; hence, the plaintiffs have filed the suit for the following relief--

"(a) Specific performance of contract, dated 18.2.1978 and 25.2.1978 and direct the defendants to execute and register the Deed of Sale in respect of property comprising 810 sq. yards., bearings Nos.9, Saddar Bazar, Karachi in favour of plaintiffs and/or their nominee or nominees and on failure of the defendants to do so, to direct the Nazir or any other officer of this Hon'ble Court to execute the sale-deed and to get the same registered after compliance with due formalities/alternatively to pass the judgment and decree in Jhe sum of Rs.9,72,000 as damages and/or compensation.

(b) Costs of the suit.

(c) Interest at judgment at 14% per annum from the date of the suit to that of realisation of decretal amount.

(d) Such other, better or further relief and/or reliefs as this Hon'ble Court may deem fit in the circumstances of the case."

1. The defendant has challenged the maintainability of this suit in its written statement in addition to the denial of the averments of the plaint. It was stated by defendant/K.M.C. in its written statement that the letter Exh. 5/4 was issued by the lower staff of the K.M.C. without any lawful authority and sent by the Land Department. It is further alleged that the said letter was issued under some pressure, but the source of such pressure was not disclosed. It is also pleaded that by virtue of MLO-60 and section 42 of the Sindh People's Local Government Ordinance, 1972 (hereinafter referred to as the Sindh People's Local Government Ordinance, 1972 this suit is liable to dismissed. As a result of the above pleadings of the parties, following issues were framed by this Court on 29-9-1979:—

"(1) Whether there is a concluded contract between the plaintiffs and defendant for sale of the property in suit?

(2) Whether the sanction was withdrawn by the Government? If so, what is the effect?

(3) Whether the plaintiffs have raised any construction on the disputed plot? If so, what is the effect?

(4) What is the effect of the filing of two suits by the plaintiffs against the defendant which are pending in the lower Courts?

(5) Relief?"

1. I have heard Mr. Rehanul Hasan Faruqi; Advocate for the plaintiff and Mr. Muhammad Yasin Kiyani, Advocate for defendant. I have also perused the evidence brought on record by the parties. My findings issue-wise are as follows:—

Issue No. 1.

1. This is an important issue which will decide the fate of the suit. It is provided in section 4 of the Specific Relief Act, 1877 (hereinafter referred to as the Act, 1877) that a specific relief cannot be granted in respect of an agreement which is not a contract. Much emphasis has been placed by Mr. Kiyani on the provisions of section 42 of the Sindh People's Local Government Ordinance, 1972, the relevant portion of which reads as follows:—

"42. Contracts.—(1) Every council shall be competent, subject to the provisions of this Ordinance or rules to transfer or alienate any movable or immovable property vested in or acquired by it and to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the provisions and purposes of this Ordinance:

Provided that no expenditure not covered by the budget shall be permissible.

(2) All contracts made by or on behalf of a Council shall be—

(a) in writing and expressed to be made in the name of the Council; and

(b) reported to the Council by the Mayor or Chairman, as the case may be, at the meeting next following the execution of the contract.

(3) .......... --

(4) All contracts for transfer by grant, sale, mortgage, lease or otherwise of immovable property or any interest and right thereto or disposal or sale of movable property shall, subject to rules to be entered into after inviting offers in an open auction:Provided that if the highest bid is not accepted by the Council, approval in writing of the Controlling Authority shall in his order give reasons for not accepting the higher bid;

'Provided further that a Council may with the approval of Government enter into a contract without inviting offers in auction.'

Note: The last proviso to subsection (4) was added by the Act V of 1974 (PLD 1974 Sindh 50).

(5) (6)

(7) No contract executed otherwise than in conformity with the provisions of this section shall be binding on the Council."

1. In support of their case, the plaintiffs have examined Raja Fakhar Abbas who is son of original plaintiff No.l. According to this witness, plaintiffs are in physical possession of the suit properties since 1st February, 1953 and carrying on business of different merchandise; that the monthly rent was fixed at Rs.39.25 which was paid till June, 1997: that in the year 1969 defendant demanded lease money at the enhanced rate of 300 rupees per square yards which was refused; as such, the said action of the defendant was challenged through two Suits Bearings Nos.24.7 of 1969 and 249 of 1969. On 20-11-1969, declaration was granted by the 9th Civil Judge, Karachi vide Exh.5/1 that the plaintiffs are lawful tenants and cannot be evicted otherwise than due course of law.

6: The main document upon which the plaintiffs are relying is Exh.5/4 which was also produced by the defendant's witness as Exh/6/4. This is a letter, dated 14-2-1978 written by Director Land and Estate, K.M.C. to the predecessor in interest of the plaintiffs through which it was communicated that the Government has decided to sanction grant of leas; on 99 years basis subject to payment of Rs. 1,000 per square yard plus land rent at the rate of Rs.3 per square yards per annum. Through this letter, the plaintiffs were directed to deposit the occupancy value of Rs.8,10,000 plus a sum of Rs.3,378.45 being land rent and survey fee. Mr. Kiyani has drawn my attention to the opening para, of this letter Exh.5/5 and Exh.6/4 which refers to some letter of the plaintiff addressed to the Martial Law Administrator Zone-C. At the bottom of this letter, a copy of Exh.5/4 was forwarded to Lt. Col. Muhammad Sohrab. Martial Law Headquarters, Assembly Building, Karachi. The other document which has been relied upon by the plaintiffs is Exh.6/5 which is again a letter, dated 18-2-1998 written by Section Officer of Government of Sindh to the Administrator of K.M.C. expressing willingness of the Government for reduction of lease money from Rs. 1,000 to Rs.600 per square yard. Again this document contains a note in handwriting that "Col. Sohrab of M.L. insists that the demand letters be issued today".

1. It is pertinent to note that on 14-2-1978. approval was granted by the Government of Sindh vide Exh.6/3 and on the same day it was conveyed by the K.M.C. to plaintiff vide Exh.6/4. Within a span of four days only the Government of Sindh agreed to reduce the lease money which fact was conveyed to the plaintiffs. The defendant's witness has produced a letter, dated 23-2-1978 written by the then Administrator, K.M.C. to the Secretary Government of Sindh, Karachi (Exh.6/7) asking the Government to revoke the plots and to resume the land for the purpose of Empress Market Re-construc'tion Scheme. As a result of this letter, on 7-3-1978, the Government revoked the offer to lease out the suit properties on 99 years basis through Exh.6/8. This letter was written by the same Section Officer who has written Exh.6/5.

2. Now, the question which requires consideration is whether in view of the aforesaid documents, a valid, lawful and binding contract came into existence? Mr. Rehanul Hasan Faruqi has relied upon the following cases to support his contention that even mere allotment creates a permanent right and :annot be revoked without affording proper opportunity of hearing to such allottee:—

(i) Khan Bashir Ahmad Khan v, The Government of West Pakistan and others (PLD 1959 Lahore 790);

(ii) Haji Noor -Muhammad and others v. Karachi Development Authority and 2 others (PLD 1975 Karachi 373);

(iii) Nasira Sultana v. Habib Bank Ltd. and others (PLD 1975 Karachi 608);

(iv) Pakistan Medical Association, Karachi v. Government of Sindh and 5 others (1979 CLC 3 82); and

(v) Sh. Abdul Aziz v. Karachi Development Authority through its Chairman (1984 CLC 2629).

On the other hand, Mr. Muhammad Yasm Kiyani has argued that since this is a suit for specific performance, the cases cited by Mr. Faruqi do not help him as in these cases question of allotment was involved and in the instant case, the question involved is of a valid and binding contract. In addition to section 42 of the Sindh People's Local Government Ordinance, 1972, he has cited the

following cases:—

(i) Rai Singh and others v. Allah Din and others (PLD 1950 Lahore 111);

(ii) Dr. Fazal Din v. Municipal Committee Lyallpur (PLD 1956 (W.P.) Lahore 916).

(iii) Karachi Municipal Corporation v. Moosa M. Adam and others (PLD 1972 Karachi 571).

1. The authorities cited by Mr. Rehanul Hasan Faruqi involve the question of allotment by the Development Authorities. The first case cited by him namely Khan Bashir Ahmed Khan (supra) pertains to the allotment of a premises under the rehabilitation laws where it was held by a learned Single Judge of Lahore High Court that once an order of allotment is passed a formal order has to be issued and it is not correct to say that so long as a formal order of allotment is not signed and delivered, there is no allotment in favour of an allottee. The case of Haji Noor Muhammad (supra) was decided by a Division Bench of this Court where it was held that an allottee of a plot in a housing scheme formulated under the Karachi Development Authority Ordinance, 1957 is not merely a licensee or sub licensee but has a right in rem in respect of the plot allotted to him. The cases of Kamaluddin Ansari v. Director Excise and Taxation (PLD 1971 SC 114) and Abdul Bhai v. Muhammad Ahmed Din (PLD 1964 SC 101) were followed by the learned Division Bench of this Court in the case of Haji Noor Muhammad. The rule laid down by a learned Single Judge of this Court in the case of Nasira Sultana (supra) is that an allottee according to the terms of agreement with K.D.A. is entitled to be put into possession and raise construction on the plot on the payment of full occupancy value and that K.D.A. ; „ is bound under agreement to grant lease of 99 years. The rule laid down in the case of Haji Moor Muhammad (supra) was reiterated by another Division Bench of this Court in the case of Pakistan Medical Association (1979 CLC 382). The last case cited by Mr. Faruqi is not relevant as in that case it was held that where an allotment order is cancelled by the Karachi Development Authority without notice to the allottee such cancellation is illegal. None of these cases is relevant for the purpose of resolving the present controversy. It is not the case of the plaintiffs that they were allotted a plot by a Development Authority. Their case is that K.M.C. agreed to convert their licence/tenancy into 99 years lease hold rights.

-<\

1. The cases cited by Mr. Kiyani are direct on the point involved in this case. He has relied upon the case of Rai Singh (supra) and contended that when a special procedure has been laid down and a special provision has been made on a particular subject then to that subject the general provision of a statute cannot be applied. However, in the instant suit, it is section 42 of the Sindh People's Local Government Ordinance, 1972 (now repealed) which is involved. This provision of law was incorporated in section 45 of the Sindh Local Government Ordinance, 1979. In order to ascertain the real intention of the legislators, it would be necessary to examine the subject-matter, the scope and the object of enactment; whether any injury will result from ignoring it; whether it requires \ same antecedent and pre-requisite conditions to the performance of an act or --conducting of a proceeding in order to invest it with validity. Reliance is placed on the cases Tanzeem-e-Mulazamin Baldiya and 2 others v. Government of West Pakistan and 4 others (PLD 1971 Karachi 535) and Messrs Saleemsons Ltd. v. The Second Sindh Labour Court, Karachi and another (PLD 1973 Karachi 1). The question in the case of Dr. Fazal Din (PLD 1956 Lahore 916) was whether an agreement of lease of land by a Municipal Committee which was reduced to writing but did not bear its seal was void not being binding on either party to the lease. Reference was made to section 6 of the Punjab Municipal Execution Officers Act, 1931, wherein, inter alia, it was provided that every contract to be entered into by Municipal Committee affecting immovable property shall be entered into in certain manner and form and shall be in writing and be sealed with the owned seal of the Committee. It was further provided that no contract executed otherwise than as provided in section 6 of the Act, 1931 shall be ^ binding on the Municipal Committee. A learned Division Bench of the Lahore High Court followed the rule laid down in the case of Municipal Committee Lahore v. Miran Bux (ILR 13 Lahore 561) and Mayor of Ludlow v. Charlton (6 M & W 815) and held that it is only a seal of the Corporation which acts when it enters into contracts in writing and if there is no seal the. Corporation has not acted at all and that no question of existence of a contract, therefore, arises. The contract entered in such circumstances was held to be totally void. This view was further reaffirmed by the erstwhile West Pakistan High Court in Dr. Azim Shad v. Municipal Committee Multan (PLD 1968 Lahore 1419).

2. The last case cited by Mr. Kiyani is of a Division Bench of this Court where the present defendant filed a letters patent appeal against an order of a learned Single Judge of this Court. One of the objection raised was that since the agreement to transfer a land was not in accordance with sections 229 and 230 of the City of Karachi Municipal Act, 1933 (hereinafter referred to as the Act, 1933), it was not a binding contract and was, therefore, void. It is pertinent to note that in sections 229 and 230 of the Act, 1933, there were certain conditions laid down for entering into contract without which it was stipulated that such contract shall not be binding on the Municipal Corporation. Two learned Judges of this Court, Dorab Patel and Imdad Ali H. Agha, JJ. (as their Lordships then were) after resume of 70 years of law on the Municipality dating from Ahmedabad Municipality v. Suleman G. (ILR 27 Bombay 618) till the case of Dr. Fazal Din (supra) held, inter alia, that the formalities prescribed in Municipal Legislation with regard to the execution of contracts of municipalities are mandatory and there can be no estoppel against them and that a contract by a Municipality can only be made by affixing its seal to the contract and non- compliance with this provision rendered contracts of municipalities, void. The object for laying down such rules by the legislators in respect of contracts to be entered into by Municipal Committees was narrated in the following words:—

"...In order to protect the public interest to check corruption and to ensure the purity of the democratic process, the Legislature has always imposed drastic controls on the powers of the employees of Municipalities, and so under the K.M.C. Act, wuilst the Corporation itself has wide powers, the only officer empowered to contract on its behalf is its Chief Officer and that in the manner specified under the Act. To nullify these provisions by equating Municipalities with joint stock Companies and then invoked the rule of estoppel would, in my humble opinion amount to frustrating the intention of the Legislature..."

1. Section 42 of Sindh Local Government Ordinance, 1972 came up for consideration in a suit before this Court in the case Ali Muhammad v. K.M.C. (1985 CLC 1730) when reference was made to the case of Dr. Azeem Shad (PLD 1968 Lahore 1419). It was held by Saleem Akhtar, J. (as he then was), inter alia, that it is now well-settled that contracts entered into with the Corporations in breach of statutory provisions and rules are not binding on them. Provisions of subsection (7) to section 42 of the Ordinance, 1972 where it was provided that any contract entered into otherwise than in conformity with the provisions of section 42 will not be binding on the Council/Corporation was held to be mandatory and not directory. In the instant c^se, it is admitted position that no contract as provided under section 42 of the Sindh People's Local Government Ordinance, 1972 was entered into at any relevant time.

2. Reverting to the facts of the case, it will be seen that on 14-2-1978, vide Exh.6/3 which was issued by Section Officer VI of Housing Town Planning and Local Government Department plaintiffs were granted 99 year easehold rights for the suit properties' and on the same day, Director Land and state K.M.C. vide Exh.6/4 affirmed the action of the Government of Sindh. In

fact, allotment, if any, should have been made first by the Council and only thereafter it should have been placed before the Provincial Government for confirmation or odierwise. But in the instant case, reverse procedure was adopted. However, it is interesting to note that a copy of Exh.6/4 issued by Director Land and Estate K.M.C. was forwarded to Lt. Col. Muhammad Sohrab, Martial Law Headquarters, Assembly Building, Karachi "for favour of information". One of the conditions of lease as mentioned in Exh.6/3 was that the same shall be liable to be reverted back to the K.M.C. for any public amenities or any other purpose specified by the K.M.C. The price of lease was fixed at Rs. 1,000 which was subsequently reduced to Rs.600 vide Exh.6/5, dated 18-2-1978 within a period of four days from the issuance of Exh.6/3. This Exh.6/5 which is issued by the same Officer as of Exh.6/3 contains a remark, "Col. Sohrab of M.L. insists that demand letter be issued today". Accordingly, on the sanv day Exh.6/6 was issued by the Director Land and Estate reducing the rate from 1,000 to 600 per square yard. AdmiUedly, no agreement or contract as provided under section 42, Sindh People's Local Government Ordinance, 1972 was executed. It is not the case of the plaintiff that such grant of lease was reported to the Council by the Mayor or Chairman of defendant in the next meeting. In what manner and how hurriedly this offer of lease was made to the plaintiff is incorporated in Exh.6/11 which has not been denied by the plaintiff which reveals that it was under the pressure from the then Martial Law Authorities. Be that as it may, during the same month i.e., February, 1978 the then Administrator K.M.C. who happened to be a retired Bridg. stood to the occasion and brought the facts before the Government of Sindh. It was under these circumstances, that the Government recalled grant of lease vide letter, dated 7-3-1978 (Exh.6/8) which is the letter challenged in this suit.

1. Section 42 of the Sindh People's Local Government Ordinance, 1972 . provides that it is only the Council which shall be competent to transfer or alienate any movable or immovable property vested in it. It further provides that all contracts made by or on behalf of a Council shall be in writing and to be made in the name of such Council which shall, be reported to the Council by the Mayor or Chairman as the case may be at the next following meeting after the execution of the contract. Subsection (4) provides that all contracts in the nature of transfer by grant, sale, mortgage, lease or otherwise of immovable property or any interest and right involved in an immovable or movable property shall be entered into after inviting offer in an Open auction. Subsection (7) makes it clear that no contract executed otherwise than in conformity with the provisions of this section shall be binding on the Council. In the instant case, the lease was granted by the Provincial Government and thereafter, it was confirmed by the defendant on 14-2-1998 and within a span of 17 days the same was recalled by the same process as it was granted. Neither any formal contract as provided under section 42 of the repealed Ordinance of 1972 was executed nor the same was placed before the Council which are mandatory provisions of law. In absence of such provisions, it cannot be held that that there was a concluded and binding contract between the plaintiffs and defendant for the lease or sale of the property in suit. Accordingly, my answer to Issue No.l is in negative.

Issue No .2.

1. It has not been denied that the offer was subsequently withdrawn by the Council vide Exh.6/8. Since I have held that there was no concluded and binding contract between the panics, such withdrawal has no legal effect.

Issue No.3.

1. Plaintiffs have not brought on record any reliable or tangible evidence to show that what type of construction was raised on the suit property. They are claiming to be in possession of suit property since 1924 and are doing business. In such circumstances, the presumption is that there may be some construction of Katcha/Pakka nature. But neither any approved plan or completion certificate was produced in order to show that there is a lawful and bona fide construction on the suit premises. Even if there is such construction, it will have no effect as the defendant has not denied the status of plaintiffs on the suit premises to be tenants.

Issue No.4.

1. It is admitted by both the parties that after filing of the instant suit, the reviously filed suits were withdrawn and, therefore, this issue was not pressed by Mr. Kiyani.

Issue No.5.

1. It is pertinent to note that the plaintiffs have prayed in alternate for a decree of Rs.9,72,000 as damages and/or compensation but neither in the plaint nor in the entire evidence of P.W.I namely Raja Fakhar Abbas it was shown as to how the plaintiffs have suffered any damages or pecuniary loss. There is no evidence on this point. As a result of the above discussion, the suit is dismissed with no order as to costs.

(TAF) Suit dismissed.

PLJ 1999 Karachi 124

Present: M.L. shahani, J. SOHAIL MUHAMMAD-Petitioner

versus

Mst.MIZNA ROOMANA and others-Respondents

Constitutional Petition No. S-lll of 1995, decided on 31.5.1997.

(i) Constitution of Pakistan (1973)--

—-Arts. 35 & 199-Dislution of Muslim Marriages Act (VIII of 1939), S. 2(ix)~ West Pakistan Family Courts Act (XXXV of 1964), s. 5 & Sched.- Principles of policy of Constitution, 1973-In resolving matrimonial disputes Court should keep in view entire fabric of society while deciding human issues involved therein so that decision of Courts should benefit society as a whole-Courts in such cases should keep in mind social justice rather than legal justice-State is also obliged under principles of policy as embodied in Constitution to advance social justice and eradicate evil and protect weaker section of society. [Pp. 129 & 130] E

(ii) Constitution of Pakistan (1973)--

—Part II, Chap. 2 (Arts. 29 to 40)~Principles of policy of Constitution, 1973--Whether applicable by Courts of Law-Question of-Courts may not \ enforce principles of policy as contained in Part II, Chap. 2 of the Constitution but can lay broader contours for dispensation of justice.

[P. 130] E

(iii) Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)-

—S. 2(ix)-Constitution of Pakistan (1973), Art. 199-Constitutional petition-Wife seeking dissolution of marriage, inter alia, on ground of fraud which would suggest that element of love was lacking between them right from inception of marriage-Element of fraud as deposed by wife was that husband had told her that he had obtained permission of bis first wife which as per statement of wife was false statement-­Marriage had taken place in dubious circumstances i.e. at taxi drivers place about which even elders of family did not know nor they participated and blessed the couple-Even if vital age differences between —-parties were ignored, still circumstances which had come in evidence would reveal that marriage had taken place in dubious circumstances to satisfy worldly lust and not for seeking heavenly blessings-Order for dissolution of marriage passed by Trial Court was, thus, just and proper in circumstances. [Pp. 128 & 129] A & B

(iv) West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

—S. 5 & Sched.-Constitution of Pakistan (1973), Art. 199-Constitutional jurisdiction could only be exercised if Court had come to conclusion that lower Tribunal had exceeded its jurisdiction, travelled beyond its jurisdiction, or acted without jurisdiction—Where court possessed jurisdiction, findings of fact recorded by Tribunal would not be disturbed simply on the ground that another view was possible on same evidence— Unless High court had come to conclusion that findings of Tribunal were based on no evidence, or such findings were fanciful or arbitrary or based on fantasy same could not be disturbed. [P. 129] C

(v) West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

—-S. 5 & Sched.-Constitution of Pakistan (1973), Art. 199--Dissolution of marriage—Prayer for~Husband's nature was such that he had filed report with police, which dragged wife and her father, humiliated and insulted them-Wife would find it humanly impossible to live with such husband-­ Trial Court's decision in dissolving marriage was, thus, just and reasonable. [P. 129] D

(vi) West Pakistan Family Courts Act, 1964 (XXXV of 1964)-

—S. 5 & Sched.-Constitution of Pakistan (1973), Art. 199~Constitutional jurisdiction in matrimonial matters, would be exercised in only rare circumstances-Matrimonial relations involving delicate human relations could not be judged on legal factors alone-Concept of social justice rather than legal justice should be advanced-Constitutional petition was not maintainable. [P. 129] E

Chaudhry Abdul Rasheed, Advocate for Petitioner. Mr. M. Zia Qureshi, Advocate for Respondents. Date of hearing: 22.5.1997.

judgment

The petitioner has assailed the judgment dated 26.10.1995 and decree passed by Respondent No. 2 decreeing suit for Dissolution of Marriage filed by Respondent No. 1 and dismissing the suit for restitution of conjugal rights filed by the petitioner.

1. The petitioner has alleged that he was married to Respondent No. 1 on 10.1.1990. Respondent No. 1 is his first cousin. The parties knew each other before marriage. The Respondent No. 1 under the influence of her parents sought dissolution of marriage through the suit filed by her, inter alia on the grounds that her consent was obtained by fraud. The petitioner is nearly fifty years while Respondent No. 1 is 26 years old. She is post-graduate while the petitioner is Intermediate. The petitioner is already married and has five children from his first wife. It is alleged that the petitioner believes in evil spirits and, therefore, it is impossible to live with such character within the limits ordained by God. Petitioner also filed suit for restitution of conjugal rights. Both suits were consolidated. The parties filed their written statement and the Respondent No. 2 (hereinafter referred to as trial Court) framed the following issues:--

"(1) Whether the defendant gave physical and mental torture to the plaintiff ?

(2) Whether the plaintiff is entitled to dissolution of marriage by way of Khula, if so, what terms?

(3) Whether the plaintiff in Family Suit No. 400 of 1994 is entitled to the decree of restitution of conjugal rights?

(4) What should the decree be?

1. In support of their suits the Respondent No. 1 examined herself and was cross-examined while the petitioner examined himself and was cross-examined. The trial Court examined the evidence and on Issue No. 2 held the Respondent No. 1 was entitled to the dissolution and after holding on Issue No. 3 that the petitioner is not entitled to the relief of restitution of conjugal rights decreed the suit of Respondent No. 1 and dismissed the suit of petitioner, which judgment is assailed in this petition.

2. Chaudhry Abdul Rashid learned counsel appearing for the petitioner urged that the suit filed by Respondent No. 1 for dissolution of marriage is not maintainable as the Respondent No. 1 claimed that fraud has been committed on her and her signature on Nikah nama was obtained through fraud as such no grounds mentioned in Dissolution of Muslim Marriages Act, 1939 have been made out and that the trial Court exceeded jurisdiction in granting the relief. He has relied upon the case of Mst. Nighat Aijas v. Muhammad Jamil (PLD 1994 Karachi 46) in which a learned single Judge expressed the view that suit for jactitation of marriage should have been filed, instead of dissolution of marriage.

3. Mr. M. Zia Qureshi, learned counsel for the Respondent No. 1 on the other hand contended that the marriage had taken place in a manner which does not exclude the element of fraud. Consent of Respondent No. 1 was obtained by fraud. No woman would, in proper senses marry a man who is father of five children of whom eldest son was 17 years and a student of First Year College. The marriage has taken place in a taxi driver's house of which even the parents of Respondent No. 1 had no knowledge. No Rukhsati took place. The petitioner is 52 years old while the respondent is half of his age. The petitioner believes in black magic and evil spirits. In such circumstances a God-fearing home could not come into existence which is the ultimate purpose of a marriage in a pre-dominant religious society.

4. I have given my anxious consideration to the pleas argued by the parties and have gone through the record with the assistance of learned counsel.

One of the grounds on which the Muslim marriage can be dissolved is prescribed by Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939 which reads as under :

"2. A woman married under Muslim Law shall be entitled to obtain a decree for dissolution on any one or more of the following grounds, namely:

(ix) On any other ground which is recognized as valid for the dissolution of marriage under Muslim Law "

And one such ground so recognized is that "the parties cannot live as husband and wife within the limits ordained/prescribed by God."

(i) Marriages are made in heaven and on earth they are manifested. The institution of marriage was created and ordained by God Almighty Himself and blessed the first couple to be fruitful and multiply. It is, therefore, essential purpose of marriage in a religious society such as ours that Umat should be fruitful and multiply according to God's command as God Himself creates a new home. (In the Constitution it has been declared that the Islam shall be the State religion and the objectives Resolution are adopted in terms of Article 2-A, and also as per our Constitution God is ultimate sovereign, therefore, such provisions in the Fundamental Law characterises the society at large as religious).

(ii) I have used the word home, and not house. House is made of bricks (and now perhaps with R.C.C. and cement blocks) while the home is made of love. For the loving couple created through the institution of marriage as husband and wife, if wife should seek dissolution of marriage, inter alia, on the grounds of fraud would suggest that the element of love was lacking at the inception.

(iii) Another essential for a home is that there should be mutual trust amongst the partners. Apart from trust, compatibility of minds is another element, for a home seeking blessing of God the parties should be God-fearing and God-honouring, such a home is the basis of the society. When a ground is urged for dissolution of marriage that "parties cannot live as husband and wife within the limits prescribed by God" the Court has to judge the case (of course, based on evidence) that the minimum standards (some of them stated above) could be held intact if the marriage is allowed to stay and not dissolved. If not then it will be better to bring an end to such an institution which apparently was not made in heaven, but the marriage has taken place to satisfy the wordly pleasure and lust of eyes and flesh which are earthly reasons.

(iv) Referring to the case of Mst. Nighat Aijaz (PLD 1994 Karachi 46) a learned Single Judge of this Court held that where the marriage is challenged on the grounds of fraud, forgery or misrepresentation then the suit for jectitation for marriage could be filed. In that case Nikah Khawan had testified that the lady alleged to have been married did not sign Nikah nama as such there was no Nikah and, therefore, no marriage and Family Court would obviously have no jurisdiction to dissolve the marriage, as a matter of fact there was no marriage at all. In this case factum of marriage is not denied. Dissolution of marriage has been sought by the wife for other grounds, than fraud. As such the judgment relied upon by the counsel for the petitioner is not apt, and does not support him.

(v) On the above criteria, from the evidence on record I find that specific allegations have been levelled against the petitioner by the Respondent No. 1. The Respondent No. 1 entered in witness-box and deposed on oath the reasons which according to her would not permit her to live with the petitioner as husband and wife within the prescribed limits ordained by God. Her deposition was not shaken in the cross-examination. The Respondent No. 1 accused the petitioner for having extra marital affairs with other women. Apart from that one element of fraud was that the petitioner told her that petitioner has obtained permission of his first wife which according to Respondent No. 1 was a false statement. Marriage has taken place in dubious circumstances i.e. at taxi driver's place for which even the elders of the family (as the parties are grand-children of same grand father) did not know nor they participated and blessed the couple. Even if I were to ignore the vital age difference between the parties, circumstances which have come in evidence would reveal that the marriage had taken place in dubious circumstances (to satisfy worldly lust and not for seeking heavenly blessings), therefore, the order passed by the trial Court is just and proper.

(vi) Writ jurisdiction can only be exercised once the Court comes to the conclusion that the lower tribunal has exceeded its jurisdiction, travelled beyond its jurisdiction, or acted without jurisdiction. If the Court possesses jurisdiction (which in this case it does possess) the findings of the fact recorded by the tribunal may not be disturbed simply on the grounds that another view is possible on the same evidence. Unless this Court comes to the conclusion that the findings of the tribunal are based on no evidence, or such findings are fanciful or arbitrary or based on fantasy, in such eventuality, such findings can be disturbed because they will be no findings in law, the Constitutional jurisdiction may not be available, such is not the case here. The Family Court examined and assessed the evidence. The findings are based on evidence as such I decline to exercise the Constitutional jurisdiction.

(vii) There is yet another reason which compels me to hold that the order of dissolution of marriage was valid. Petitioner (husband) filed report with police. Police dragged the Respondent No. 1 and her father, humiliated and insulted them. Is it humanly possible for a wife to live with such husband? Human nature is vindictive. Humanly it may not be possible, but divinely yes as to forgive is device.

(viii) The writ jurisdiction in matrimonial matter would be exercised in only rare circumstances. Such matrimonial matters involve delicate human relations. They are emotional issues as well. These relations should not be judged on legal factors alone. The Court should keep in mind the entire fabric of society while deciding the human issues involved in matrimonial matters, and the Conclusions of the Courts should benefit the society as whole. In other words in such matters the concept of social justice rather than legal justice be advanced. Such is also the obligation of State under the Principals of Policy of the Constitution which charges the executive to advance social justice and eradicate evil, and protect weaker section of the society. One such Article 35 provides as follows:

"35. Protection of family, etc.-The State shall protect the marriage, the family, the mother and the child."

The Courts may not enforce principles of policy but can lay broader contours for dispensation of justice.

1. After hearing the parties in Court, I dismissed this petition with costs by short order. These are the reasons for passing such order.

(AAJS) Petition dismissed.

PLJ 1999 Karachi 130 (DB)

Present: WAJiHUDDiN ahmed, C.J. and muhammad roshan essani, J. HABIB CREDIT AND EXCHANGE BANK LTD.-Appellant

versus

GULZAR AHMED-Respondent

H.C.A. Nos. 182 of 1993 and 94 of 1996, heard on 3.3.1998.

Civil Procedure Code, 1908 (V of1908)-

—O.XXH, R. 10, O.I, R. 10 & O.XLm, R. l--Law Reforms Ordinance (XH of 1972), S. 3-Appellant was ordered to be added as defendant in suit in preference to substitute original defendant--Status--Powers of Court in matters of creation and devolution of any interest or assignment thereof during pendency of suit would be covered by O.XXII, R. 10, C.P.C.- Guiding principle in O.I, R. 10, C.P.C., however, in such matters being discretionary, same have to be exercised ex debito justitiae-Sound exercise of discretion would be to allow addition of rather than substitution of defendant-Where no prejudice whatsoever could possibly be caused to original or to added defendant on account of being sued side by side and when plaintiff was likely to suffer if and when it was found that its entire claim could not be met by appellant, best course would be to add rather than substitute appellant-Impugned order of High Court maintained, in circumstances. (DB) [Pp. 132 & 134] A & B

AIR 1925 Lah. 574; 1988 SCMR 250; 1992 CLC 700 and 1992 SCMR 652 ref.

Mr. Iqbal Ahmad, Advocate for Appellant.

Mr. Muhammad Sharif, Advocate for Respondent.

Date of hearing: 3.3.1998.

judgment

Wajihuddin Ahmed, C.J.--The first of these High Court appeals is directed against an order of Mukhtar Ahmed Junejo, J. while in this Court and sitting on the original side, whereby, on an intervenor's application in Suit No. 190 of 1991, filed by Gulzar Ahmed, he allowed the Habib Credit and Exchange Bank Ltd. to be impleaded as Defendant No. 2 in the suit wherein the Bank of Credit and Commerce International (Overseas) Ltd. (B.C.C.I.) was the original and the only defendant As to the facts in the background, Habib Credit and Exchange Bank Ltd. had intervened in the suit, seeking substitution of the original defendant (B.C.C.I.), "presumably to take over liability incurred by the B.C.C.I." The B.C.C.I. were stated to have gone into liquidation and, pursuant to an agreement with the liquidators, their three branches at Karachi, Lahore and Rawalpindi were merged with the Habib Bank Ltd., as reflected in an amalgamation scheme prepared by the State Bank of Pakistan and approved by the Federal Government. In passing the foregoing order the learned Single Judge preferred to add the Habib Credit and Exchange Bank Ltd. as a defendant in the suit in preference to allowing it to substitute the B.C.C.I. altogether. Such order gives rise to High Court Appeal No. 182 of 1993.

A similar controversy arose in Suit No. 672 of 1990 where M/s. Shafiq Hanif (Pvt.) Ltd. were the plaintiffs and Bank of Credit and Commerce International (Overseas) Ltd. were the original defendants. In like circumstances, a learned Single Judge of this Court, per order, dated 23.5.1996, allowed substitution of the original defendant (B.C.C.I.) by its successor, the Habib Credit and Exchange Bank Ltd. Such order has brought plaintiff-Shafiq Hanif (Pvt.) Ltd., in the other appeal before us viz. High Court Appeal No. 94 of 1996. Thus, while conventionally these appeals may not be cross-appeals, yet the implications involved are, in effect, those of cross-appeals.

At the outset, we rejected the argument of Mr. Muhammad Sharif that the order of induction of the Habib Credit and Exchange Bank Ltd. in the suit, because of an allegedly invalid and in-operative assignment, was itself bad. He, therefore, adopted the second line of attack against the order impugned in High Court Appeal No. 94 of 1996, urging that at best Habib Credit and Exchange Bank Ltd. could be added and not substituted as a defendant in the suit, Mr. Iqbal Ahmed, the learned counsel for the Habib Credit and Exchange Bank Ltd., however, insist that it is an order of substitution by the purported successor which alone is the valid order to be sustained at this level. He has cited before us Riasut Rasool Qadri v. Dubai Bank Ltd., PLD 1986 Karachi 297, but there the question, being one of the affect of an amalgamation Scheme under Section 48 of the Banking Companies Ordinance, 1962, was altogether different and besides we have already rejected the argument of substitution raised by Mr. Muhammad Sharif as above.

The powers of the Court in the matters of creation or devolution of any interest or assignment thereof during the pendency of a suit are covered by Rule 10 of Order 22, C.P.C. but the guiding principles in Rule 10 of Order 1 of the Code in such matters still remain of some relevance. In either of these cases the powers of the Court are discretionary and such have to exercised ex debito justiae.

Now, what are the respective arguments of the learned counsel on the issue? Mr. Muhammad Sharif says that the scheme of amalgamation, both as to its validity and impact, has yet to be proved. He further says that it is quite possible and even likely that all liabilities of the B.C.C.I. may not ultimately be established to have been taken over by its purported successor viz. Habib Credit and Exchange Bank Ltd. He places reliance on Allah Jawaya v. Lajpat Rai, 1925 Lah. 574. Ghulam Fatima v. Rahim Baig, 1988 SCMR 250, AltafParak v. Dalmonts Construction Co., 1992 CLC 700 and Suraya Begum v. Subhan Begum, 1992 SCMR 652. In the first of these cases, where the assignment pendente lite was disputed impleadment of the assignee was declined. In Ghulam Fatima'scase the Supreme Court declined to join the assignee from the landlord pending a landlord and tenant dispute in a Constitutional Petition. In Altaf Parekh's case a learned Single Judge of this Court observed that a question, whether the applicant, seeking joinder, had derived interest^ from the plaintiff or the defendant was entirely a separate matter and not a question involved in the suit. Joinder was refused. In Surraya Begum's case the Supreme Court observed that an assignee can continue the suit without bringing himself on the record and that the rights for and against the assignee can be agitated for and against him, irrespective of his being impleaded, the only difference being that of direct or implied rights.

As against this, and reiving on the case of Riasut Rasool Qadri ibid., Mr. Iqbal Ahmed says that once a scheme has been framed in terms of Section 48 of the Banking Companies Ordinance, 1962, it has to be acted upon and operates in supersession even cf all that is contained in the Companies Ordinance of 1984. As already said we have, at this stage of the proceedings, disallowed a challenge to the vires or the effect of the claim or defence. Such would remain an open question to be examined when the suit proceeds and the evidence unfolds. Besides, even if the assignee assumes full responsibility, a question always can arise as to its ultimate ability or willingness to discharges it. Correspondingly, we asked Mr. Iqbal Ahmed as to what prejudice would be caused to appellant-Habib Credit and Exchange Bank Ltd. If it was allowed to be added rather than substituted as a defendant in the suit, which has given rise to High Court Appeal No. 182 of 1993. His argument on the point have been conflicting. In the first instance, he said that there are disputes and even litigations going on in this country between the B.C.C.I. and Habib Credit & Exchange Bank Ltd. and on the other his plea was that the B.C.C.I. being in liquidation could not even defend itself. As to this, all we can say is that even if B.C.C.I. does not or cannot defend itself, such would make no difference whatsoever to the Habib Credit and Exchange Bank Ltd., if the scheme upon which it relies and on the basis of which it is arrayed as a defendant in the suit is found to be valid, binding and all pervasive in so as to controversies in the suit are concerned. Besides, if B.C.C.I. can defend itself in the controversies viz-a-viz a Habib Credit and Exchange Bank Ltd., apparently, through liquidators, it can also to do so in the suit from which High Court Appeal No. 182 of 1993 arises. At any event, it is none of the business or worry of the Habib Credit and Exchange Bank Ltd., to concern itself about what the B.C.C.I. can or may do. Even if it undertakes to meet all the liabilities of such institution in liquidation, in the event there is decree against the B.C.C.I., such would be of no practical or factual consequence because, at any event, the Habib Credit and Exchange Bank Ltd. should be there to effect compliance of such decree.

In the aforesaid circumstances, when no prejudice whatsoever can possibly be caused either to the Habib Credit and Exchange Bank Ltd. or to the B.C.C.I. on account of the two institutions being sued side by side and when on the other hand the plaintiff in Suit No. 190 of 1991 may suffer if and when it is found that its entire claim could not be met by the Habib Credit and Exchange Bank Ltd., on the basis of the scheme referred to above or otherwise, the best course is to add rather than substitute the Habib Credit and Exchange Bank Ltd., as a defendant in the suit. Another, and more pressing, legal aspect of the case is that there is a difference between an assignee or successor of a plaintiff and that of a defendant. If the assignee or the successor of plaintiff fails, the failure effects only itself but if a claim cannot be realised from an assignee or from a successor of the defendant, it is not the assignee or successor who may suffer but the plaintiff in the suit. In the instant case, it is the defendant under whom the assignment is set up. In such cases, therefore, it is always a more sound exercise of discretion to allow addition of rather than substitution of the defendant. For these reasons, we allow High Court Appeal 94 of 1996 and set aside the order of learned Single Judge, thereby permitting the Habib Credit and Exchange Bank Ltd., merely to be added as a defendant rather than to be substituted as the sole defendant in the suit. Correspondingly, we uphold the impugned order of the learned Single Judge in High Court Appeal 182 of 1993 and dismiss such High Court Appeal. In the circumstances, the disposals shall not carry any costs.

At this stage, we have discovered the cause of worry of Mr. Iqbal Ahmed. He says that if the foregoing order is allowed to cover the field, the same may result in re-opening of similar questions, already decided in other suits. We are unable to express any firm opinion on this question because hypothetical questions cannot be answered. However, we would tend to think that no farther or final order, in the relevant context, should be passed by any Court within this jurisdiction, unless such order is calculated to advance justice and to suppress mischief, which may have or could occur. More than this we are unable to say anything. (AAJS) Order accordingly.

PLJ 1999 Karachi 134 (DB)

Present: wajihuddin ahmed, C. J. and muhammad roshan essani, J.

ANEEL KUMAR-Petitioner

versus

PROVINCE OF SINDH through SECRETARY, HEALTH DEPARTMENT, SINDH SECRETARIAT, KARACHI and 3 others-Respondents

C.P. No. 22 of 1997, decided on 13.5.1998.

Educational Institution-

—Admission to Medical College-Candidate had cleared his Intermediate Pre-Medical Examination in 1995 from India and he applied for admission during Session 1996-97 whereas according to 3 categories mentioned in R. 111(2) (ii )(iii) & (iv) of Prospectus for Medical Colleges, Sindh for 1996-97, only those candidates who had passed Intermediate Examination in year 1996 were eligible for Session 1996-97~Authority had rightly found that candidate was not eligible to be considered for admission in the First Professional M.B., B.S. Course during Academic Session 1996-97 because he had cleared his Intermediate Examination in 1995. [P. 139] A

Miss Tehniat Farooq, Advocate for Petitioner.

Mr. Muhammad Iqbal Road, Addl. A.G., Sindh for Respondents.

Nemo for Respondent No. 3.

Mr. Khalid Jawed, Advocate for Respondent No. 4.

Date of hearing: 28.4.1998.

judgment

Muhammad Roshan Essani, J.~The petitioner through this petition has sought the following reliefs :--

(a) To declare that the impugned certificate, dated 10.12.1996 issued by the Respondent No. 3 i.e. Registrar University of Sindh is without lawful authority and of no legal effect;

(b) To direct the Respondent No. 2 i.e. Principal and Chairman, Selection Board Chandka Medical Collage, Larkana to admit the petitioner on the basis of merit in terms of the certificate granted by the Inter-Board Committee of Chairman, dated 27.11.1996.

The brief facts for seeking the above reliefs as stated in the petition, are that the petitioner is a Citizen of Pakistan and a permanent resident of District Ghotiki. He passed his Matriculation examination from Government High School, Mirpur Mathelo in the year 1981 in "A-A" Grade. After obtaining admission, in Intermediate Pre-Medical Group the petitioner went to India and according to him owing to certain family circumstances he stayed in India and passed his Intermediate Pre-Medical Examination from the Maharashtra State Board of Higher Secondary Education Bombay in the year 1995 and he was placed in Grade "A" by obtaining 75.83 marks. Since the petitioner passed his Intermediate Examination from outside Pakistan, therefore, he applied to the Chairman Inter Board Committee, Ministry of Education Government of Pakistan for equivalence certificate. The Inter Board granted him equivalence certificate on 27.11.1996 stating therein that the qualification acquired from India would be equivalent to Higher Secondary School Certificate/Intermediate Examination (Science Group) of Pakistan. Accordingly the petitioner submitted his application for admission to the Respondent No. 2 i.e. Principal and Chairman, Selection Board Chanka Medical College, Larkana on 30.11.1996. The certificate issued by the Inter-Board Authorities was not accepted by the Respondent No. 2 and the petitioner was directed to obtain equivalence certificate from the Respondent No. 3 i.e. University of Sindh. He approached the Respondent No. 3 for the grant of required certificate, Consequently the certificate No. 3 for the grant of required certificate, Consequently the certificate was issued. The contents of the same are reproduced hereinbelow in extenso :--

CERTIFICATES "Ref. No. G/equi./75/1988________________________ dated 10.12.1996.

This is to certify that Higher Secondary Education Certificate from Maharashtra State Board of Secondary and Higher Secondary education Divisional Board, Bombay passed by Aneel Kumar Kundandas has been determined the Inter-Board Committee of Chairman, Government of Pakistan, Ministry of Education, Islamabad as equivalent to H.S.C. (Pre-Medical) Examination this University has, therefore, recognised the said Examination as equivalent to H.S.C. (Pre-Medical) Examination for the purpose of admission to first year M.B., B.S. Class.

In view of the decision of the Academic Council, after subtracting 20% marks in the subjects of Physics, Chemistry and Biology overall percentage of marks comes to 67.83 (sixty seven point eight three). Mr. Aneel Kumar Kundandas shall be eligible for admission to first year M.B., B.S. Class subject to the condition that he must pass the following paper of H.S.C. Level from the Board of

Intermediate and Secondary Education in Sindh prior to appearing at First Prof. M.B., B.S. Examination :

(1) Pakistan studies.

(2) Islamiat/Ethics.

(Sd.) Registrar, University of Sindh."

It is averred that despite the production of the aforesaid certificate the petitioner was declined admission in Medical College on merits basis. The candidate who obtained upto 72% marks became eligible for admission to 32 seats in Medical College from District Ghotki. Since 20 marks from the total marks of petitioner were deducted his percentage cam to 67.83% with the result that admission was declined to him.

The petitioner has further averred that he approached various authorities explaining that 20% deduction from his marks was illegal but no action was taken. He, therefore, preferred the present petition in terms material particulars whereof are given above.

On 29.5.1997 this petition was admitted to regular hearing by a Division Bench of this Court.

The Respondent No. 1 in their parawise comments did not reply in detail the different paras, of the petition.

The Respondent No. 2 in his parawise comments has stated that the petitioner passed his Intermediate Pre-Medical Examination in the year 1995 from Board of Intermediate and Secondary Education, Bombay and on the basis of the said qualification he applied for his selection having domicile of Ghotki District, during Academic Sessions 1996-97 whereas for his session only those candidates were eligible who passed their Intermediate Science Pre-Medical Examination in the year 1996. It was, thus, stated that the petitioner was declined admission and he was not considered to be eligible for selection under Rule 2, sub-clause (ii), (ii), (Rules of admission) for Session 1996-97, incorporated in the prospectus. It is further, averred that Chandka Medical College, Larkana is affiliated with Sindh Universily, Jamshoro, so, therefore, the candidates who passed their Intermediate examination from the Board other than, Board of Intermediate and Secondary Education of Pakistan, are required to submit an equivalence certificate from University of Sindh under Rule 7(c) (iii-Rule of admission) for Session 1996-97. The petitioner did not submit the requisite equivalence certificate as required under Rule 7(c) (in Rules of admission) of the prospectus for Session 1996-97 but the produced a certificate issued by the Inter-Board Committee. It is stated that equivalence certificate issued the Respondent 3 i.e. University of Sindh produced by the petitioner revealed that his 20% marks were subtracted and as such petition was not entitled to admission.

The learned counsel for the Respondent No. 3 i.e. University of Sindh has filed a letter purportedly sent to him by the Registrar of University of Sindh in connection with present petition containing formula for conversion of Marks for British and American System of Education with Intermediate Science (Pre-Medical) Examination of Pakistan for the purpose of admission in professional Colleges duly approved by the Academic Council. He same is reproduced hereinbelow in extenso :--

"Ref. No. G/488.

Dated 23.5.1997.

Prof. P.M. Amer, Legal Adviser, University of Sindh.

Subject: CONSTITUTION PETITION NO. D-22 OF 1997 ANIL KUMAR V. PROVINCE OF SINDH AND 2 OTHERS.

Dear Sir, With reference to your Letter No. AMER Co/L.A., dated 21.5.1997,1 am reproducing below the formula for conversion of marks of British and American system of education with Intermediate Science (Biology) Group) Examination of Pakistan for the purpose of admission 1st year M.B., B.S./B.D.S./B. Pharmacy Class duly approved by he Academic Council :-

FOR BRITISH SCHOOL

(i) Since students of Medical Group study Physics, Chemistry and Biology as optional subject at our Intermediate Level, which is a pre-requisite qualification for entires in Medical Colleges and 1st Professional B. Pharmacy Class the members of the Equivalence Committee feel that students seeking admission in Medial Colleges and 1st Professional B. Pharmacy Class after completing education under British System should also be required to study above mentioned subject at 'A' levels. Hence successful completion of 'A' level examination in Physics, Chemistry and Biology should be one of the pre-requisite for entries in Medical Colleges and admission to 1st Professional B. Pharmacy Class.

(ii) In addition, students completing their education under British system of education, must pass the following courses of H.S.C. Level room the Board of Intermediate and Secondary Education in Sindh.

(a) Urdu/Sindhi.

(b) Islamiat and Pakistan Studies.

(iii) Since marks given against different grades under British Schools are towards comparatively higher side (A-90, B-80, C-70), it is considered essential to substract, 20% marks from the marks obtained in each course to bring them at par without grades given in our system of Intermediate Examination (A-70, B-60, C-50).

FOR AMERICAN SCHOOL

(i) Since Pysics, Urdu/Sindi, Islamiat and Pakistan studies, are not taught at either llth or 12th grade in American Schools and these are the prerequisite subjects for students seeking admission in Medical Colleges in Pakistan and 1st Professional B. Pharmacy Class, students completing their education under American System of Education, must pass the above mentioned subjects of the H.S.C. Leave from the Boards of Intermediate and Secondary Education in Sindh.

(ii) Since marks given against different grades under American Schools are towards comparatively higher side (1-90), B-80, C-70), it is considered essential to subtract 20 % marks from the marks obtained in each course to bring them at part with our grades given in our system of Intermediate Examination (A-70, B-60, C-50).

N.B.The above formula is applicable to the children of Pakistan stationed in Middle East and other countries.

I am to inform you further that the Vice-Chancellor has now been pleased to pass orders under this emergency powers only to substract 15 (Fifteen) Marks for the purpose.

Yours faithfully, (Sd. (Muhammad Hussain Shaikh), Registrar.

We have heard the learned counsel for the parties and have perused the pleadings. We are not impressed by the arguments advanced by the learned counsel for the petitioner.

The Rule ni(2), (ii), (iii) and (iv) of the prospectus for Medical Colleges of Sindh for 1996-97 is reproduced hereinbelow :-

"(2) The following candidates shall be eligible to apply for admission in 1st years M.B., B.S./B.D.S. in the Medical Colleges in Sindh for the year 1996-97.

(ii) Those who have passed Intermediate Science (Pre-Medical Group)/B.Sc. (Biological Science) Annual Examination of 1996 or equivalent examination and secured at least 50% of the marks.

(iii) Those who have passed Intermediate Science (Pre-Medical Group)/B.Sc. (Biological Science) Supplementary Examination of 1995 or any other equivalent examination of 1995 whose result has been declared after the closing date of applications of Sessions 1995-96 and before the last date for receiving applications for Sessions 1996-97 and secured at least 50% marks.

(iv) Those who have passed Intermediate Science (Pre-Medical Group)/B.S.c (Biological Science) Annual/Supplementary Examination of 1994 and could not be considered in last session due to last issue of domicle/P.R.C. or late declaration of result or late issue of marks certificate. This claim shall have to be supported by proper documentary evidence."

The rules mentioned hereinabove clearly show that, every candidate for admission to the 1996-97 session must fall within one of the three categories mentioned therein whereas he case of the petitioner does not fall within any of the said categories. The petitioner cleared his Intermediate Pre-Medical Examination in 1995 from Board of Intermediate and Secondary education Maharshtra Bombay in the year 1995 and he applied for the admission during the Session 1996-97. The only candidates who passed Intermediate Examination in the year 1996 were eligible as per Rule 2 sub-clause (ii) (III Rules of admission) for Session 1996-97. The Chandka Medial College, Larkana is affiliated with Sindh University, Jamshoro, therefore, candidates who passed the Examination from the Board other than Pakistan were required to obtain and produce equivalence certificate form University of Sindh under Rule 7(c) (Ill-Rules of admission) for Session 1996-97 and not from the Inter Board Committee. The procedure of Boards conducting the Intermediate Examination in Pakistan is same but in foreign countries it is different. The certificate of petitioner reveals that in Bombay Board Mathematics is included alongwith Biology whereas it is not so in Pakistan. Likewise two other subjects Pakistan Studies and Islamic Studies/Ethics are compulsory subjects in Pakistan for qualifying the Intermediate examination. The petitioner did not pass any of these subjects. The respondents No. 2 has followed the rules correctly, therefore, petitioner is not eligible to be considered for admission in the first professional M.B.,B.S. Course during academic Session 1996-97 because he cleared his Intermediate Examination in 1995. Only those candidates who cleared in 1996 from Sindh ere eligible for admission. According to equivalence certificate issued by the Respondent No. 3 petitioner could not compete or apply for admission, having less marks that those candidates who were given admission against 32 seats reversed for Ghotki District The formula deducting 20 marks of the petitioner was rightly applied in his case.

For the reasons recorded hereinabove petitioner is not entitled to the admission and the petition is not maintainable and is accordingly dismissed with no order as to costs.

(K.K.F.) Petition dismissed.

PLJ 1999 Karachi 140 (DB)

Present: wajihuddin ahmed, C.J. and raja qureshi, J.

PAKISTAN AGRICULTURAL STORAGE AND SERVICES CORPORATION LTD.--Petitioner

versus

PORT QASIM AUTHORITY through CHAIRMAN, PQA, BLN QASIM, KARACHI-48 and 3 others-Respondents

C.P. No. D-729 of 1997, decided on 14.2.1998.

Port Qasim Authority Act, 1973 (XLIII of 1973)--

—Ss. 13(3) & 14--Constitution of Pakistan, 1973, Art. 199-Demurrage and storage charges-Concession for-Claim of-After settling dispute with regard to valuation of imported goods with customs, goods kept lying with respondent Port Qasim Authority-Authority vide Notification levied demurrage and storage charges on such goods-Petitioners sought concessional rate on basis of Customs Detention Certificate, but plea of petitioner was rejected by Authority on ground that since consignment fell within ambit of exceptions contemplated by S. Ill in Notification, concession incorporated in Note (8) appended to S. in, would not apply- Notification according to which demurrage and storage charges were levied, was issued in pursuance of S. 13(3) of Port Qasim Authority Act, 1973, which could not be placed on higher pedestal than rules framed under statutory Authority-Section 14 of Port Qasim Authority Act, 1973 had postulated circumstances in which tolls and charges on imported goods could be remitted by Authority~In view of Customs Detention Certificate petitioners would be entitled to total or partial refund to the extent contemplated by Note (8). [P. 143] A

1993 CLC 2022 and 1995 CLC 1456 rel.

Mr. Muhammad Akram Khawqja, Advocate for Petitioner. Mr. Shaiq Usmani, Advocate for Respondent No. 1. Date for hearing: 14.2.1998.

order

Wajihuddin Ahmed, C.J.--The petitioner being a public limited company, 25 per cent, equity thereof is held by the Federal Government, whereas remaining 75 per cent, vests in various banks including some which stand nationalized. The subject-matter of the dispute here is 10,000 was bales of jute bags which were imported by the petitioner from Bangladesh.The dispute arose as to the valuation of the jute bags, the Customs ultimately accepting the petitioner's valuation. Meanwhile, because the goods kept lying at Port Qasim, demurrage and storage charges of Rs. 6,03,840 were levied by the Port Qasim Authority. The levy was based on SRO 97 (KE)/1995, dated 16.4.1995, issued under Section 13(3) of the Port. Qasim Authority Act, whereby scales of tolls, rates and charges were notified. The petitioner sought concessional rates on the basis of the Customs Detention Certificate for the period 17.9.1995 to 25.9.1995 and for free working days viz. from 24.9.1995 to 30.9.1995. The plea was rejected on the ground that the consignment fell within the ambit of the exceptions contemplated by Section III in the referred notification and that being so the concession incorporated in Note (8) appended to such Section III did not apply. The quoted exception and Note (8) aforesaid are as below :--

"(f) Raw Jute Five Next ten Rs. 28 per tonne per and jute working days day products days, after bulk landing

Note. (8) In cases where a Customs Detention Certificate is issued for the whole or part of a consignment, storage charges will be levied at the rate of Rs. 10 per tonne or part thereof plus Rs. 20 per tonne or part thereof per day on the whole or part of a consignment, as the case may be, for the period of detention and three working days thereafter, unless in the opinion of the Authority there are other reasons which do not justify this concession.

This concession will not apply to items specified under exceptions above."

Before us, Mr. Shaiq Usmani, the learned counsel representing the Respondent No. 1 Authority, maintains that even though the petitioner cannot be saddled with responsibility for what came to transpire, the Port Qasim Authority under the rules to which it is subject can extend no relief to the petitioner.

On his part, the learned counsel for the petitioner has relied on Aftab Ahmed Saeed v. Federation of Pakistan 1993 CLC 2022, where the following observation occurs :--

"In that case, as provided under Section 182 of the Customs Act, the goods remained vested in the Federal Government until they were ordered to be restored to the petitioners. Consequently, we are of the view that it should be the Federal Government which should be liable for the storage charges to the K.P.T. during the period the goods remained under confiscation and the petitioner should not be burdened with this additional amount of tax. However, so far as the K.P.T. is concerned, under Section 46 of the K.P.T. Act, the Board of Trustees of the said respondents shall have lien over the goods until the dues of the said respondents are satisfied.

(6) In the result, these petitions are allowed but only to the extent as pointed above. We would, however, clarify that in our view in case the petitioner get the goods released after payment of the charges to the K.P.T. they can realize the amount payable for the period the goods remained under confiscation by instituting legal proceedings against the Federal Government. However, in case such proceedings are instituted the same would be decided on their own merits."

The learned counsel has also drawn our attention to Al-Rukiya Traders v. Central Board of Revenue, 1995 CLC 1456, where a Division Bench of this Court recorded the following:

"As far as the question of payment of demurrage is concerned, since under Section 182 of the Customs Act, the confiscated goods become the property of the Federal Government, the petitioner will not be liable for payment of demurrage charges from the date of confiscation of the goods till the date the Customs Authorities decide and dispose of the case finally.

Before we part with this case, we hope that in further the Custom Authorities will be considerate to the citizens and decide such cases at an early date to avoid unnecessary accumulation of demurrage or other charges. The Federal Government will be free to take such action as is available under law against those officers due to whose conduct the Federal Government has become liable for the payment of demurrage charges."

The referred notification, dated 16.4.1995 having been issued in pursuance of Section 13(3) of the Port Qasim Authority Act, 1973, cannot be placed on a plane higher than rules framed under statutory authority, in other words what technically is known as subordinate legislation. Such follow-up legislation, it is now well-settled, is to be in conformity with the parent statute, conducive to the objectives thereof, reasonable and free of oppression. Section 13 aforesaid is promptly followed by Section 14, postulating the circumstances in which tolls and charges may be remitted by the Authority. Due powers therefore, at various levels, are conferred, the ultimate being that of the board, with the previous sanction of the Federal Government. In such circumstances when there was an express provision in Note (6)(b) envisaging, "an extension of free period where a consignment cannot be cleared due to fault of the Authority", it is inconceivable that Note (8) could lawfully be saddled with something in the nature of a proviso to take away the concession available pursuant to a Customs Detention Certificate solely because the gods fell under the exceptions to Section III without dilating upon or saying anything more. Surely, fault of the Authority could not be placed, as a generalization, at a level higher than a fault of the Federal Government, which usually is reflected when a Customs Detention Certificate is issued. The intendment of the Legislature being made clearer by the subsistence of Section 14 in the 1973 statute, we have no hesitation in saying that the said rider appended to Note (8) above is neither in consonance with the purport of the statute nor reasonable nor free of oppression. We, accordingly, find the same to be unlawful and of no legal effect. In the result, the petitioner would be entitled to total or partial refund to the extent contemplated by Note (8) sans the curtailment of its referred appendage, which the respondent Authority would effect within a period of 15 days. The rule making power, however, may yet be exercised to replace the offending provision by a more appropriate one in accordance with law.

This petition is, accordingly, allowed in terms. (K.K.F.) Petition allowed.

PLJ 1999 Karachi 143 (DB)

Present: abdul hameed dogar and anwar zaheer jamali, JJ.

ADBUL GHAFOOR and 25 others-

versus

LARKANA MUNICIPAL CORPORATION through its ADMINISTRATOR

and others-Respondents.

Constitutional Petition No. D-167 of 1998.

(i) Constitution of Pakistan 1973-

—-Art. 199-Unilateral enhancement of rent by Administrator Municipal Corporation-Challenge through constitutional petition-Contention of learned counsel for petitioners that Respondent No. 2 (Divisional Commisioner) has orally informed them about enhancement of rent and has further threatened petitioners for sealing of their shops etc. is clearly belied from case record which reveals that Respondent No. 1 (Administrator Municipal Corporation) has passed an order on 5.11.1998, whereby rent of various shops owned by Respondent No. 1 has been revised~Not only this but production of several rent receipts by petitioners, and also their admission about payment of rent, at enhanced rate by many of them, prima facie goes to show that such order of Respondent No. 1 was not only well within their knowledge but was a consent order, which was therefore also acted upon by an absolute majority of tenants, as out of more then 850 tenants, only petitioners have come forwarded to question on same-Assertions of petitioners that action taken by respondent against them was without any notice or hearing to them and they have not consented to such enhancement or that they have not paid enhanced rent willingly, have been clearly denied by respondents and such factual controversy cannot be resolved in writ jurisdiction-Petition dismissed. [P. 147] A

<ii) Constitution of Pakistan 1973--

—-Art. 199-Section 108 of Sindh Local Government Ordinance, 1979-No doubt availability by alternate remedy does not operate as absolute bar for exercise of writ jurisdiction by High Court, and such jurisdiction can be exercised by High Court in appropriate cases-However, when a party, intends to by pass such alternate remedy available to him under some statute, it is for him to first satisfy High Court that such available alternate remedy will not be equally adequate and efficacious remedy for him-Admittedly alternate remedy under Section 108 of Sindh Local Government Ordinance 1979 is available to petitioners but from petitioners side there is no plausible explanation for non-availing of such alternate remedy which, is equally adequate and efficacious remedy for petitioners in facts and circumstances-Held : Petition due, to availability of alternate remedy to petitioners and also for reason that it involves disputed question of fact is not maintainable- [P. 147] B & C

Mr. Moohan Lai K. Mukhijani, Advocate for Petitioner. Mr. Muhammad Nawaz Chandio, Advocate for Respondent. Mr. Mi Zahar Tunio, A.A.G. Date of hearing: 1998

judgment

Abdul Hameed Dogar, J.~This Constitutional petition has been filed by the petitioners for the purpose of seeking following reliefs in the matter :--

(i) The hon'ble Court be pleased to declare that the acts of respondents No. 1 and 2 unilaterally enhancing the rent of the demises shops of petitioners against their wishes and its intended recovery and the threatened interference with their lawful tenancy rights, are illegal, mala fide, arbitrary, unjust, un-constitutional and without lawful authority and of no legal effect.

(ii) Issue perpetual injunction against the Respondents No. 1 and 2, restraining them from recovering the impugned enhanced rent from the petitioners and directing them not to interfere with their tenancy rights in any way, either personally or through their subordinates or any other Agency.

(iii) Award costs of the petition.

(iv) Also any other equitable relief which the Hon'ble Court deems fit and appropriate be granted to the petitioners.

According to the facts as disclosed in the petition, the petitioners are tenants of the Respondent No. 1 (Larkana Municipal Corporation) in respect of their shops, and they are regularly paying rent of their respective shops ranging from Rs. 17/- to 190/- per month to them. In the month of November 1998 the petitioners were called by the Respondent No. 2 in his office and they were orally informed about the enhancement of rent of their shops up to Rs. 500/- and Rs. 800/- per month. The respondents were also threatened that in case of non-payment of rent at the enhanced rates, their shops will be sealed and re-let to others., Thereafter from the petitioners Nos. 1, 7, 9, 11, 12, 13, 15,16, 17, 21 & 22 rent was also forcibly recovered at the enhanced rate, which they have paid under protest. These actions of the respondents had given cause of grievance to the petitioners for filing of the present petition on the ground that they have been condemned un-heard in the matter and further the respondents Nos. 1 and 2 have no jurisdiction to enhance the rent of the shops in their possession.

After service of pre-admission notice on the respondents, the Respondent No. 1 has fried his written statement on 17.12.1998, wherein he has mentioned that the petitioners are tenants of the Respondent No. 1, but paying a meager rent looking to the prevailing market rental value of the shops in their possession. Respondent No. 1 is running in financial crises, even having no funds to make payments to their staff or to improve sanitation and health facilities. Looking to this financial situation of Respondent No. 1 a meeting was held to raise funds and Respondents No. 2 was requested for this purpose. Notices were issued to the tenants as well as to the prominent citizens, representatives of various Trade Unions and Chamber of Commerce and such meeting was held on 28-10-1998 under the Chairmanship of Respondent No. 2. In this meeting after deliberations and discussion the petitioners were taken into confidence and it was unanimously resolved, to enhance the rate of rent of the shops of Respondent No. 1. Thereafter re-assessment was carried and fair rent of all the shops was fixed and such decision was accepted by more than 850 tenants of the Respondent No. 1 and accordingly they are making payment of rent to the Respondent No. 1 and even many of the petitioners are also making the payment of rent. Respondent No. 1 has further disclosed that the petitioners have participated in the meeting and consented for such enhancement of rent and thus the petition is not maintainable. The maintainability of the petition has also been challenged on the ground of availability of alternate remedy to the petitioners under Sections 108 and 113 of the Sindh Local Government Ordinance, 1979.

We have heard Mr. Mohan Lai. K. Makhijani, the learned counsel for the petitioners, Mr. Muhammad Nawaz Chandio, the learned counsel for the Respondent No. 1 and Mr. All Azhar Tunio, the learned A.A.G. for Respondents Nos. 2 and 3.

The learned counsel for the petitioners has contended that the enhancement in the rate of rent as ordered by Respondent No. 2 is patently illegal as the petitioners were not provided any chance of hearing in the matter, and such order has been passed in violation of the principle of natural justice. Learned counsel has also contended that the enhancement of rent as ordered by Respondent No. 2 is in violation of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 as it is the fundamental right of every citizen that he shall be dealt with in accordance to the law. Lastly the learned counsel has contended that the availability of alternate remedy under Section 108 of the Sindh Local Government Ordinance 1979, has not an efficacious and adequate remedy and thus the jurisdiction of this Court, in such circumstances, is not barred. He has placed his reliance on the case law reported as The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279), United Sugar Mills Ltd., Karachi v. District Magistrate Sukkur and another (PLD 1979. Kar. 410), Pz'r Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 638).

Conversely Mr. Muhammad Nawaz Chandio, the learned counsel for Respondent No. 1 has argued that enhancement in the rate of rent was ordered by Respondent No. 1 after due notice and hearing to the petitioners and they have not only consented to this order but most of them have also paid rent according to the new rate and in such circumstances the petitioners are estopped from challenging such order of the Respondent No. 1 by way of filing of this petition. The learned counsel further argued that in any case a legal and proper order has been passed by the Respondent No. 1 (Administrator Larkana Municipal Corporation) on 5.11.1998 and a copy of the same has been filed in court and also supplied to the petitioners counsel, but the petitioners have not cared to challenge such order in this petition and thus the petition, as instituted, is not maintainable. The learned counsel has also argued that the order dated 5.11.1998 is open to appeal under Section 108 of the Sindh Local Government Ordinance 1979 and therefore even if the arguments of the learned counsel for the petitioners that at the time of filing of this petition, they were not supplied with the copy of such order is accepted as correct, then ever now when the copy has been supplied to them such remedy can be availed by filing of appeal under Section 108 of the Sindh Local Government Ordinance 1979 and in such circumstances this petition is liable to be dismissed. Lastly the learned counsel has argued that the controversy raised in this petition involves disputed question of facts, which cannot be resolved in writ jurisdiction. In support of these arguments the learned counsel has placed his reliance on the case law reported as Messrs Sharafali Ghulam Hussain Gani v. Government of Pakistan and 3 others (1989 M.L.D. 1440), Abdul Rahman v. The Province of Sindh and 3 others (1986 C.L.C. 2635), and Ataur Rehman Khan v. Dost Muhammad and others (1986 S.C.M.R. 98).

Mr. Ali Azhar Tunio, the learned A.A.G, while supporting the arguments of the learned counsel for the Respondent No. 1 has mainly stressed the point that under Section 108 of the Sindh Local Government Ordinance 1979 a proper alternate remedy is available to the petitioners and therefore this petition is not maintainable.

We have carefully considered the arguments of the learned counsel and perused the case record. The contention of the learned counsel for the petitioners that the Respondent No. 2 has orally informed them about the enhancement of rent and has further threatened the petitioners are sealing of their shops etc. is clearly belied from the case record which ereveals that the Respondent No. 1 has passed an order on 5.11.1998, whereby rent of various shops owned by Respondent No. 1 has been revised. Not only this but production of several rent receipts by the petitioners, and also their admission about the payment of rent, at the enhanced rate, by many of them,prima facie goes to show that such order of the Respondent No. 1 was not only well within their knowledge but was a consent order, which was therefore also acted upon by an absolute majority of the tenants, as out of more then 850 tenants, only the petitioners have come forwarded to question the same. In any case the assertions of the petitioners that action taken by the respondents against them was without any notice or hearing to them and they have not consented to such enhancement or that they have not paid enhanced rent willingly, have been clearly denied by the respondents and such factual controversy cannot be resolved in writ jurisdiction. If any case law is needed on this point reference may be made to the case of Syed Saghir Ali v. MeharDin and others (1968 S.C.M.R. 729), also see : the cases of Mst. Nafis Fatima v. Syed Muhammad Mashooq and another (1987 M.L.D. 2755) and Naraindas and another v. Hinanand and 2 others (1937 M.L.D. 464).

Reverting to the other contention, about the availability of alternate remedy to the petitioners, it may be observed that no doubt availability of alternate remedy does not operate as absolute bar for exercise of writ jurisdiction by this Court, and such jurisdiction can be exercised by this Court in appropriate cases. However when a party, intends to by-pass such alternate remedy available to him under some statute, it is for him to first satisfy this Court that such available alternate remedy will not be equally adequate and efficacious remedy for him. In the instant case admittedly alternate remedy under Section 108 of the Sindh Local Government Ordinance 1979 is available to the petitioners but from the petitioners side there is no plausible explanation for non-availing of such alternate remedy which, in our view, in equally adequate and efficacious remedy for the petitioners in the facts and circumstances of the instant case.

In view of the above discussion we are of the view that present peti­tion, due to the availability of alternate remedy to the petitioners and also for the reason that it involves disputed question of fact is not maintainable. In addition to this we are also cautious of the fact that earlier to order dated 5.11.1998, the petitioners were occupying shops of the Respondent No. 1, which is statutory body, on payment of very meager amount of rent and therefore the Respondent No. 1, who had jurisdiction in the matter, was fully justified in making is reasonable enhancement in the rate of rent. In such circumstances, even if for the arguments sake, while passing an order dated 5.11.1998 some error or illegality has been committed by the Respondent No. 1, interference in writ jurisdiction will not be justified, as in one sense it will perpetuate injustice. In the given facts and circumstances of this case any such interference in writ jurisdiction, on one hand will result in giving un-due advantage and benefit to the petitioners, and on the other hand it will cause serious hardship to the Respondent No. 1, who being statutory body, needs reasonable resources to meet their budgetary expenditures and also funds to carry out development work.

We are fortified in our view, with the observations of the Hon'ble Supreme Court of Pakistan in the following judgments :-

(i) Export Promotion Bureau v. Qaiser Shafiullah (1994 S.C.M.R. 859)

"Mr. Khalid Anwar was at pains to urge that if this Court is going to hold that under clause 13(3) of the Scheme, the Vice-Chairman of the Bureau could not have cancelled the above quotas for export, it would provide leverage to the dishonest exporters as they would get away scot free, which would encourage them to indulge in the above malpractices which bring bad name to the standing and reputation of our country. In his list of books, he has referred to the case of Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another (1986 SCMR 1071), in which this Court, while declining leave to appeal against the judgment of the High Court of Sindh passed in a Constitu­tional petition, observed that the High Court was within its power to refuse relief in Constitutional jurisdiction even though the authority concerned had acted clearly without jurisdiction as the impugned order was passed "in order to foster the cause of justice". In the above reported case, reliance was placed on the famous case of Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236). The above proposition of law seems to be well-settled. In this regard, reference may also be made to a more recent case referred to by Mr. Sharaf Faridi in his list of books .besides the above case relied upon by Mr. Khalid Anwar (Syed Ali Shah u.

Abdul Saghir Khan Sherwani and others PLD 1990 S.C 504)."

(ii) Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 S.C. 351).

"A study of various cases decided by this Court would show that before a person can be permitted to invoke the discretionary powers of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party rather it cures a manifest illegality then the extraordinary jurisdiction ought not be allowed to be invoked PLD SC 236 (258); likewise in the case of Begum Shamsun Nisa v. Said Akbar Abbasi and another, PLD 1982 SC 413, it was held that the High Court in exercise of its discretion, if it had not interfered with the order of the Chief Settlement Commissioner in that case even if it felt that the order of the Chief Settlement Commissioner whereby he rendered the order of the Settlement Commissioner as null and void, was not strictly legal". Again this Court refused to intervene where the grant of relief would amount to retention of ill- gotten gains or would lead to injustice or aiding the injustice. See Gul Muhammad v. Addl. Settlement Commissioner, 1985 SCMR 491; Nazim All etc. Mustafa All etc., 1981 SCMR 231; Wait Muhammad and others v. Sheikh Muhammad and others, PLD SC 106; Meraj Din v. Director, Health Services, 1969 SCMR 4; Tufail Muhammad v. Muhammad Ziaullah Khan, PLD 1965 SC 269; AzmatAli v. Chief Settlement and Rehabilitation Commissioner, PLD 1964 SC 260. The object of the appearior Courts while exercising its discretionary jurisdiction is to foster justice, preserve rights and to right a wrong and keeping this object in view, it may in equity set aside or annul a void judgment or enjoin enforcement by refusing the intervene in the circumstances of the case before it."

Foregoing are the reasons for our short order dated 21.12.1998, whereby this petition was dismissed in limine alonwith listed application.

(K.K.F.) Petition dismissed

PLJ 1999 Karachi 150 (DB)

Present: muhammad roshan essani and anwar zaheer jamali, JJ.

SHAFKAT HUSSAIN-Applicant

versus

150-Respondents

Constitutional Petition No. D-02 of 1999, heard on 1.2.1999.

Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975)--

—S. 4A~Transfer of case from one city to another without assigning any reason-Challenge to-Notification in question unveil that transfer of two cases is not based on any of reasons which could be legitimately made basis for exercise of power under Section 4-A of Act-It appears from language of notification dated 24th August 1998 that only reason assigned for exercise of such power is "in public interest" which consideration is alien to spirt and scope of Section 4-A of Act-Thus on this ground alone notification dated 24.8.1998 cannot be sustained-Indeed, under Section 4-A of Act Government is empowered to exercise power for transfer of cases within limits, as evident from language of section 4-A but still Government is expected to give due consideration and respect to judicial orders of High Court, when it relates to same subject-Such spirit is lacking and action taken by respondents is found arbitrary—Held : Notification No. REG. (HD)/5-l/66/93 dated 24th August 1998 issued by Secretary, to Government of Sindh Home Deptt. was declared as unlawful, null and void. [P. 153] A, B & C

Mr. All Nawaz Ghanghro, Advocate for Petitioner. Mr. RashidAli G. Shaikh, Advocate for State. Date of hearing: 1.2.1999.

judgment

Anwar Zaheer Jamali, J.~Petitioner has invoked the Constitutional jurisdiction of this Court to challenge the order of Respondent No. 1, in pursuance thereof a notification dated 24.8.1998 has been issued by the Secretary to the Government of Sindh, Home Department, thereby transferring two cases arising out of FIR No. 6/96 P.S. Garhi Yasin and FIR No. 73/93 P.S. Garhi Yasin from the file of Special Judge S.T.A. Court Larkana to the Special Court S.T.A. Nawab Shah. This notification is reproduced as under :—

REGISTRAR SPECIAL COURTS STA/ST, GOVERNMENT OF SINDH HOME DEPARTMENT

NOTIFICATION

No : REG (HD)/5-l/66./98 :-In exercise of the powers conferred by Section 4-A of the Suppression of Terrorist

Activities (Special Courts) Act, 1975, the Government of Sindh, are released to transfer the following cases from the file of Special Judge S.T.A. Court Larkana to Special Court S.T.A. Nawabshah, in the public interest.

| | | | | | --- | --- | --- | --- | | s- FIR No. No. | Name of Accused | Under Section | P.S. |

1. 06/93 Karam Khan @ Niaz 302/PPC GarhiYasin.

Muhammad & others

1. 73/93 Sadaruddin & others 364/147/ GarhiYasin

148/PPC

SECRETARY TO GOVERNMENT OF SINDH HOME DEPARTMENT

No. Reg. (HD)/5-166/98, Karachi, dated 24th August 1998.

According to the petitioner, he is one of the accused in Crime No. 6/96 P.S Garhi Yasin and one of the witnesses in Crime No. 73/93 of the same Police Station. The cases arising out of both these FIRs were challaned before the Sessions Court at Shikarpur, however during the pendency of these cases a transfer application was moved before this Court and it was allowed by the Hon'ble Chief Justice Mr. Mamoon Kazi (As his lordship then was) and the cases arising out of FIR No. 6/93 and 6/96 P.S. Garhi Yasin were transferred to the Court of Sessions Judge Larkana, for trial either by himself or by any other Additional Sessions Judge, subordinate to him.

Subsequently another transfer application relating to FIR No. 73/93 was also moved and was allowed by an order of the Division Bench of this Court dated 20.1.1998. Detailed reasons recorded separately contained following observations :--

"The contentions of the application/accused are not controverted by the respondent/complainant by way of counter affidavit. The facts allegedly suppressed have not been pointed out. Admittedly three is enmity between the parties and due to blood feud many precious lives have been lost on both sides within the jurisdiction of Police Station Garhi Yasin. The shifting of applicant/accused party to Makli District Thatta has not been disputed. It may be to avoid further blood shed. Besides more or less on the identical grounds two cases between the same parties have already been transferred by this Court from Shikarpur to Larkana. It may be pertinent to point out that in the matters of transfer of cases Court has to see the convenience of accused and his witnesses in comparison to the convenience of the complainant and his witnesses unless there are special and compelling reasons for not adhering to this principle. In this matter not only applicant/accused party has shown apprehension to their lives but they have also shown apprehension that they will not get fair and impartial trial at the hands of Presiding Officer of the Court. Justice is not only to be done but it should seen to have been done."

In this manner these cases were transferred and ordered by this Court to be tried by Sessions Judge at Larkana.

On 24.8.1998 the Respondent No. 1 in exercise of powers under Section 4-A of Suppression of Terrorist Activities (Special Courts) Act 1975 has issued a notification whereby both these cases which were transferred under the orders of this Court, and were lastly pending for trial before the Special Court (S.T.A) at Larkana, have been withdrawn from the file of the said Court and transferred to the Court of Special Court (S.T.A) at Nawabshah. This action of the respondents has given the cause of grievance to the petitioner for filing this petition.

We have heard Mr. Ali Nawaz Ghanghro, the learned counsel for the petitioner who has contended that the impugned notification dated 24.8.1998 is based on mala fide and the sold object of issuing this notification by Respondent No. 1, is to negate the effect of two orders passed by this Hon'ble Court, whereby both the criminal cases are to be tried at Larkana. The learned counsel for the petitioner further contended that the Respondent No. 1 while issuing this notification has condemned the petitioner un-heard in the matter and has thus also violated the principles of natural justice and for these reasons the impugned notification is liable to be set aside and be declared as without lawful authority and of no legal effect.

Mr. Rashid Ali D. Shaikh, the learned counsel appearing for A.A.G. in this case does not controvert the facts as submitted by the learned counsel for the petitioner. However he has supported the notification dated 24.8.1998, and opposed this petition.

We have considered the arguments of the learned counsel and perused the case record, which goes to show that the notification dated 24th August 1998 has been purportedly issued by the Respondent No. 1 in exercise of powers conferred to the Government under Section 4-A of the Suppression of Terrorist Activities (Special Courts) Act 1975 (hereinafter referred as Section 4-A of the Act). It will be useful to reproduce the same as under :--

"4-A. Transfer of cases. —(1) Where two or more Special Courts have jurisdiction of cases, etc. wholly or partly in the same territorial limits and the Government constituting the Special Courts or, if one of such Special Court has been constituted by the Federal Government that Government is satisfied that for the general convenience of the parties or

PLJ 1999 Karachi 154 (DB)

Present: ali muhammad balouch and anwar zaheer jamali, JJ. AURBAN ALI KALWAR and 38 others-Petitioners

Versus

SSP GHOTKI and 38 others-Respondents

C.P. Nos. D-414; D-598; D-385; D-389; D-395; D-406; D-409; D-426; D-435; D-439; D-445; D-450; D-456; D-457; D-460; D-472; D-473; D-489; D-496; D- 568; D-578; D-579; D-582; D-587; D-605; D-130; D-132; D-151; D-173; D-475; D-490; D-492; D-519; D-570; D-590; D-595; D-624; D-628; D-639; of 1998, heard on 4.6.1998.

Constitution of Pakistan, 1973--

—- Arts. 199 & 212(2) read with Sindh Civil Servants Act, 1973-Contention that petitioners were inducted in service in their respective Department of Government of Sindh after completion of all procedural formalities as provided under relevant Rules and that their appointments in service were in accordance with law-However, suddenly notices for termination of their services, have been issued to them without affording them any opportunity of hearing and same are mala fide—In. addition to this, in petitions at Serial Nos. 1 to 25 which relates to servants of Police Department, petitioners have further submitted that they are not governed by Sindh Civil Servants Act, 1973 and rules framed thereunder, but are governed by Police Act and Rules framed thereunder and their appointments have also been made in accordance with requirements of Police Rules for which, posts were advertised in daily newspapers, applications were invited, interviews were conducted, medical tests were held, selections were approved by Selection Board and finally their appointment letters were issued~But after change of Government with mala fide intention impugned notices have been issued to them on pretext of Human Rights Case No. 104 of 1992 dated 6th March, 1993, decided by Hon'ble Supreme Court of Pakistan reported as 1996 SCMR 1394, though same has no relevancy to facts and circumstances of these petitions-Held : Impugned notices issued to petitioners by departmental authorities are not final orders of termination of their services and thus there is no denial of right of hearing to them-Further from contents of impugned notices nothing is spelled out about allegations of fitness as argued before the Court even otherwise as observed by Hon'ble Supreme Court of Pakistan in case of Mian Abdul Malik vs. Dr. Sabir Zamir Siddiqi (1991 SCMR 1129) "fitness introduces an element of subjective evaluation on basis of objective criteria where substitution for an opinion of competent authority is not possible by that of a Tribunal or a Court-­Therefore, it goes without saying that question of fitness is sole prerogative and within exclusive domain of competent authority, and thus High Court while/exercising powers under Article 199 of Constitution cannot assume jurisdiction to decide and adjudicate same and substitute such findings recorded by competent authority with its own findings as to fitness or otherwise of a civil servant-Submission that bar of jurisdiction contained in provisions (b) to Section 4 of Sindh Service Tribunals Act, 1973 shall be interpreted so as to regulate jurisdiction to High Court is also devoid of any legal force-Held further: Jurisdiction of High Court is barred under Article 212(2) of Constitution and proper remedy available to petitioners would be either to follow departmental remedy or to approach Service Tribunal regarding their grievance made in these petitions if law so permits-IP. 156, 165 & 166] A, D & E

Constitution of Pakistan, 1973--

—Art. 232, 233,199 & 4-Proclamation of Emergency Fundamental Rights-Status—Constitutional Petition—In view of proclamation of emergency, in country under Article 233 of Constitution all fundamental rights under Chapter I Part II of Constitution have been suspended and since petitioners have also raised contentions relating to violation of their fundamental rights, hearing of these petitions may be deferred—Despite proclamation of emergency in country under Articles 232 and 233 of Constitution, Courts are not precluded from exercising their powers as provisions of Article 4 as well as clause l(a) & (b) of Article 199 of Constitution remains in field and empowers Court to deal with cases in accordance with law~Under Article 4 of Constitution it is an inalienable right of every citizen to be treated in accordance with law and doors of justice are never closed for that purpose-Petitioners have approached High Court for the purpose of enforcing their alleged statutory rights. [Pp. 157, 161] B & C

Mr. Amir Hani Muslim, Mr. Muhammad Iqbal Memon, Mr. Abdul Fattah Malik, Mr. M. ManzarAla, Mr. Shaikh Amanullah, Mr. Abdul Sattar Soomro, Mr. Raja Ram, Mr. Gul Bahar Korai, Mr. Siafullah Shah, Mr. Maqbool Ahmed Khan, Mr. Mumtaz Ali Siddiqi, Mr. Muhammad Nasrullah Siddiqi and Mr. ImdadAli Awan, Advocates for Petitioners. Mr. Zawar Hussain Jafri,Additional A.G. for official Respondents in all Petitioners. Date of hearing: 4.6.1998.

judgment

Anwar Zaheer Jamali, J,-These Constitutional Petitions were heard together as common questions of law were raised in these petitions.

1. The petitioners who are employees of Police Department (in petitions listed at Serial Nos. 1 to 25) and Excise and Taxation Department (in petitions listed at Serial Nos. 28 to 39) of Government of Sindh have impugned notices of termination of service issued to them, a performa copy of which is reproduced as under :--

"OFFICE OF THE................................................................... ,...........

No. Place dated To, Mr.

Subject: NOTICE OF TERMINATION OF SERVICE

Whereas you were appointed as vide this office Order No. dated.

And whereas no scrutiny, the undersigned is satisfied that your appointment as aforesaid has been made in complete violation of the method of appointment prescribed by the Sindh Civil Servants Act, 1973 and the rules made thereunder for the post held by you and without observing the formalities laid down by the Supreme Court in its judgment in Human Rights Case No. 104/92 dated the 06th March, 1993.

And whereas by reason of the above, your appointment is illegal and it is expedient to terminate your services.

Now, therefore, you are hereby called upon to show cause within 14 days of the receipt of this notice as to why your services should not be terminated indicating whether you wish to be heard in person.

If no reply is received within the stipulated period, it would be presumed that you have nothing to say in your defence and ex-pratedecision will be taken.

Sd/- Authority"

1. The petitioners while agitating their grievance in respect of above notices of termination of service have stated that they were inducted in service in their respective Departments of Government of Sindh after completion of all procedural formalities as provided under the relevant Rules and that their appointments in service were in accordance with law. However, suddenly notices for termination of their services, as reproduced above, have been issued to them without affording them any opportunity of hearing and the same are mala fide.

In addition to this, in the petitions at Serial Nos. 1 to 25 which relates to the servants of Police Department, the petitioners have further submitted that they are not governed by the Sindh Civil Servants Act, 1973 and the rules framed thereunder, but are governed by the Police Act and Rules framed thereunder and their appointments have also been made in accordance with the requirements of the Police Rules for which, posts were advertised in daily newspapers, applications were invited, interviews were conducted, medical tests were held, selections were approved by Selection Board and finally their appointment letters were issued. But after the change of Government with malafide intention impugned notices have been issued to them on the pretext of Human Rights Case No. 104 of 1992 dated 06th March, 1993, decided by the Hon'ble Supreme Court of Pakistan reported as 1996 SCMR 1394, though the same has no relevancy to the facts and circumstances of these petitions.

1. Pre-admission notices of these petitions were issued to the respondents, in response whereof in certain cases comments have been filed by them wherein it has been stated that no record of alleged selection and appointments of the petitioners is available with the concerned authority; and that the appointments in favour of the petitioners were made on the basis of recommendation of MNA & MPSs of that time in the shape of recommendation list received from higher ups and that the relevant procedural law for the purpose of these appointments was violated and that the petitioners were appointed on the basis of consideration other than merits and in violation of the judgement dated 6.3.1993 passed by the Supreme Court of Pakistan in Human Rights Case (1996 SCMR 1349). In addition to this it has also been submitted that for these grievances proper forum is the Service Tribunal and not the Constitutional jurisdiction of this Court.

2. We have heard the learned counsel for the petitioners and also learned Additional Advocate General Sindh for the respondents.

Mr. Amir Hani Muslim, the learned counsel for the petitioner in C.P. No. D-414 of 1998 has firstly argued that in view of the proclamation of emergency, in the country under Article 233 of the Constitution on 28.5.1998 all the fundamental rights under Chapter I Part II of the Constitution have been suspended and since the petitioners have also raised contentions relating to the violation of their fundamental rights, the hearing of these petitions may be deferred. Reverting to the merits of these petitions, the learned counsel has raised the following contentions;

(i) the perusal of the impugned notification would show that they are itself termination orders and thus the petitioners have been condemned unheard in the matter;

(ii) the contents of impugned notice indicates that violation of the method of appointment prescribed in the Sindh Civil Servants Act, 1973 and the Rules made thereunder have been attributed in the cases of the petitioners serving in Police Department though the Sindh Civil Servant Act, 1973 and the Rules framed thereunder are not applicable to their cases as the cases of the petitioners being servant in the Police Department, are governed by the Police Act and the Rules framed thereunder, and thus the impugned notice issued to the petitioners are wholly without jurisdiction. Reliance placed on the Human Rights Case reported in 1996 SCMR 1349 has also no relevancy to the facts of the petitioners' case.

(iii) the notice of termination impugned in these petitions relates to the fitness of the petitioners in service as such this question can only be examined in the Constitutional jurisdiction of this Court and that the jurisdiction of the Service Tribunal in such cases is not available to the petitioners in view of the bar contained in proviso (b) to Section 4 of Sindh Service Tribunals Act, 1973.

(iv) lastly it has been contended that the whole exercise of the respondents resulting in the issuance of impugned notice of termination of service is malafide as in this regard all the relevant material which has been produced by the petitioners alongwith their petitions justifying their selection and appointments have been ignored by the concerned authority.

However, the learned counsel during the course of his arguments has conceded to, that the petitioners are civil servants within the meaning of Section 2(l)(b) of Sindh Civil Servants Act, 1973. The learned counsel has placed his reliance on the following case law;

1. Mian Abdul Malik vs. Dr. Sabir Zaman Siddiqi & 4 others (1991 SCMR 1129).

2. Muhammad Anis & others vs. Abdul Haseeb & others (PLD 1994 SC 539).

3. Independent Newspapers Corporation (Pvt) Ltd. vs. Chairman, Fourth Wages Board & Implementation Tribunal for Newspapers Employees, Govt. of Pakistan (1993 SCMR 1533).

4. Gadoon Textile Mills vs. WAPDA (1997 SCMR 641).

5. Mr. Abdul Fateh Malik, the learned counsel for the petitioners in many other petitions has opposed the arguments advanced by Mr. Amir Hani Muslim that the hearing of these petitions may be deferred in view of proclamation of emergency by the Presidential Order dated 28th May, 1998 and on this point, he has submitted that since primarily the petitioners have agitated their grievances arising out of their statutory rights, therefore, these petitions can be heard inspite of proclamation of emergency under the Presidential Order. According to the learned counsel Article 4 of the Constitution is still in force and it provides that it is the inalienable right of every citizen to be treated in accordance with law and thus pite of suspension of fundamental rights as provided under Chapter I Part II of the Constitution, these petitions can be herd, the learned counsel while making his submissions about the merits of these petitions has vehemently argued that the notices for termination issued to the petitioners are not mere show cause notices but the same are termination orders whereby the petitioners have been denied their right of hearing and condemned unheard. He has further submitted that the whole action of the Government functionary in this regard is malafideand based on political victimization and without examining the relevant facts and the record which clearly indicates that the appointments of the petitioners were made after following all the relevant provisions of the Rules applicable for that purpose. While concluding his submissions the learned counsel has submitted that the impugned notices being malafide are liable to be declared as without lawful authority in exercise of the powers vested with this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Reliance has been placed on the case of Muhammad Afzal Khan vs. Karachi Development Authority & Gathers, (PLD 1984 Karachi 114).

Mr. Manzar Alam, the learned counsel for the petitioners in certain other cases during the course of his arguments has produced before us a notification dated 11.8.1979 and relying on the case of Inspector General of Police Punjab & others vs. Mushtaq Ahmad Warrich & others (PLD 1985 SC 159) Balochistan Development Authority vs. Badar Raza Malik (1996 SCMR 1243) and an unreported judgment in C.P. No. D-155 of 1984 dated 21.10.1986 has submitted that in view of this notification the petitioners being servant in Police Department stand excluded from the purview of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 and thus they cannot approach the Sindh Service Tribunal for their grievance as agitated in these petitions. However, to a query from the Court, the learned counsel has conceded to, that the petitioners are civil servants within the meaning of Section 2 (l)(b) of the Sindh Civil Servants Act, 1973.

Learned counsel appearing for petitioners in other cases have also adopted same arguments and have submitted that the jurisdiction of this Court is not barred under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 as the notices issued to the petitioners are wholly without jurisdiction, malafide and relates to fitness of their service for which the jurisdiction of the Sindh Service Tribunal is barred.

1. On the other hand the learned Additional Advocate General Sindh Mr. Zawar Hussain Jaffri has argued that the notices of termination issued to the petitioners are neither malafide nor based on any political motives but the same have been issued in the line of the observations made by the Hon'ble Supreme Court of Pakistan in the Human Rights Case (1996 SCMR 1349). The learned Addl. A.G. has further argued that the Departmental Authorities have verified and have found that the appointments of the petitioners were made purely on the basis of political favouritism and considerations other than merits so much so that even a list has been found were instead of addressees of the persons appointed in the Police Department and Excise and Taxation Department of the Government of Sindh at the place of addressees of the appointees reference has been made to the political figure, MNAs & MPAs and the high officials of the Government at whose behest such appointments were made without examining the merits and following procedural law applicable for that purpose. The learned Additional Advocate General Sindh has further argued that the contents of impugned notices issued to the petitioners clearly indicates that the same are not notice for termination of service but show cause notices wherein 14 days time have been allowed to the petitioners for submitting their reply and intimating the concerned authority as to whether they wished to be heard in person, and in such circumstances firstly a reply to show cause notices should have been substituted by the petitioners before the concerned departmental authority and departmental remedy should have been followed. In any case even if any adverse orders were passed by the departmental authority, an adequate and effective remedy was available to the petitioners by approaching the Service Tribunal regarding their grievance as the dispute involved in not about their fitness to be retained in service but about their eligibility which relates to the terms and conditions of service of the petitioners and thus jurisdiction of this Court is barred under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973. With reference to Constitutional Petition No. D-274 of 1998, the learned Additional Advocate General has submitted that in this petition after issuance of show cause notice, final orders have been passed by the departmental authorities and thus this petition has become infructuous. The learned Addl. A.G. has further argued that in any case the allegations of facts contained in the petitions and assertions made in rebuttal in the comments by the Government requires a thorough investigation about disputed question of fact and the same cannot be resolved in exercise of the Constitutional jurisdiction of this Court.

The learned Addl. A.G. in support of his contentions has referred the following case law;

Abdul Bari vs. Gout of Sindh (PLD 1981 Kar. 290).

Hidayatullah vs. Govt. of Sindh (PLC 1994 (CS) 336).

LA. Sharwani & others vs. Govt. of Pakistan (1991 SCMR 1041).

Mian Abdul Malik vs. Dr. Sabir Zameer Siddiqi (1991 SCMR 1129).

Jamal Khan Jaffer & others vs. Rahim Shah & 3 other (1994 SCMR 759).

and has submitted that even in the case of malafide, corum-non-judice and violation of fundamental rights, in view of bar contained under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973, jurisdiction is service matters is barred and no writ under Article 199 of the Constitution can be issued to redress such grievance, which relates to the terms and conditions of service of a civil servant.

1. We have carefully considered the arguments advanced by the learned counsel for the petitioners as well as learned Additional Advocate General Sindh, we have also perused the case law cited before us in support of their respective contentions.

The contention raised by Mr. Hani one of the counsel for the petitioners that in view of proclamation of emergency declared under the Presidential Order dated 28th May, 1998 the hearing of these petitions should be deferred, has not impressed us. We are of the view that despite proclamation of emergency in the country under Articles 232 and 233 of the Constitution, the Courts are not precluded from exercising their powers as the provisions of Article 4 as well as clauses l(a) & (b) of Article 199 of the Constitution remains in the field and empowers the Court to deal with the cases in accordance with law. Under Article 4 of the Constitution it is an inalienable right of every citizen to be treated in accordance with law and the doors of justice are neVer closed for that purpose. In addition to this, as has been rightly pointed out by Mr. Abdul Fateh Malik another learned counsel for the petitioners, from the allegations contained in these petitions, it is clear that the primarily the petitioners have approached this Court for the purpose of enforcing their alleged statutory rights.

1. Reverting to other contentions, we find that the moot point for consideration before us is that whether the jurisdiction of this Court to hear these petitions is barred under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973.

For the purpose of examining various contentions raised in these petitions, on this point, it will be beneficial to reproduce hereunder Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 which reads as follows :—

"212. Administrative Courts and Tribunals. --(1) Notwithstanding anything hereinbefore contained, the appropriate legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-

(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters.

(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or

(c) matters relating to the acquisition, administration X. and disposal of any property which is deemed to be enemy property under any law.

(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or tribunal is established under clause (1), no other Court shall grant an injunction, ^ make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal; other than an appeal -—. pending before the Supreme Court, shall abate on such establishment.

Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly, unless at the request of that Assembly made in the form of a resolution, Mqjlis-e- Shoora (Parliament) by law extends the provisions to such a Court or Tribunal."

On examination of clause(2) of the above quoted Article 212 of the Constitution, it is clear that after establishment of such Administrative Courts or Tribunals as provided under clause (1) of Article 212, no other Court is competent to entertain proceedings in respect of any such matter regrading which such Administrative Courts or Tribunals have jurisdiction. Section 4 of Sindh Service Tribunals Act, 1973 relates to the appellate jurisdiction of the Tribunals. It would be advantageous to reproduce Section 4 which reads as under :--

"Appeals to Tribunals.~(l) Any civil servant aggrieved by any order, whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service may within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, whichever is later, an appeal to the Tribunal;

Provided that-

(a) Where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rules against i-ch order, no appeal shall lie to a Tribunal unie;- rhe aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;

(b) no appeal shall lie to a Trihunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or a particular post or to be promoted to a higher grade and;

(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969.

(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty" on a civil servant, the appeal shall be preferred:--

(a) in the case of penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale or to a lower stage in a time-scale, to a Tribunal referred to in sub­section (3) of Section 3; and

(b) in any other case, to a Tribunal referred to in sub­ section (7) of that Section."

On perusal of Section 4 of the Sindh Service Tribunals Act, 1973 it is char that the jurisdiction of other Courts is barred in respect of all matters which are in one or the other way relating to and in respect of any terms and a litions in service of a civil servant. A Full Bench of this Court has examined at length this aspect of the matter in the case of Abdul Bari vs. Govt. of Sindh (PLD 1981 Kar. 290) and following observations have been made :-

"It will be observed that Article 212 of the Constitution opens with the non obstante clause contained in the words "Notwithstanding anything hereinbefore contained", We agree with the submission of the learned Deputy Attorney General that the effect of this clause is to curtail and oust the jurisdiction conferred on the High Court under Article 199. It goes without saying that the source of power of judicial review vesting in the High Court is not inherent in the Court as distinct from the "judicial power" as elucidated in the case of State vs. Ziaur Rehman, but the power is conferred by Article 199 of the Constitution with all its limitations. Article 175 of the Constitution makes it abundantly clear that "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." Article 199 qualifies the power conferred thereunder on a High Court with the words "subject to Constitution". It cannot, therefore, urged that the High Court has inherent power of judicially reviewing the action of the Executive, the Legislature, the Courts or Tribunals, but exercises such jurisdiction in the field of judicial review as has been expressly conferred upon it by Article 199. Consequently ifby any provision of the Constitution any fetters are placed upon the jurisdiction of this Court in the exercise of powers under Article 199, this Court cannot overreachs these limitations by any other consideration."

"The ouster contemplated under that Article is of the Constitutional nature, and, therefore, of necessity curtails the jurisdiction of the High Court totally in respect -of the subject matter committed to the Service Tribunals. The second important reason is that the plain reading of the provisions of clause (2) of Article 212 leaves no manner of doubt that these provisions did not envisages concurrent jurisdiction of the Civil Courts and the Tribunals in regard to any matter on any ground in respect of terms and conditions of service. The situation contemplated in the ~-same provisions is that the jurisdiction conferred on the Service Tribunals and the jurisdiction vested in the civil Courts in respect of terms and conditions of service of civil servant is mutually exclusive, so that the field covered by the jurisdiction of the Service Tribunal is totally outside the jurisdiction of the civil Courts including the High Court. That order which are malafide ultra vires or corum non-judiceare within the ambit of the Service Tribunals."

A Division Bench of this Court while dealing with the question of bar of jurisdiction as contained in Article 212 (2) of the Constitution in the case of Hidayatullah vs. Government of Sindh (1994 PLC (C.S.) 336) has made the following observations;

"By now it is more or less a settled position of law that wherever the jurisdiction of the Service Tribunal exists, it is not open to the aggrieved person to invoke the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan, by saying that the order of the departmental authority is without jurisdiction, or is void, or it is malafide, or it is in the nature of corum nonjudice."

In the case of LA. Sherwani & others vs. Government of Pakistan (1991 SMR 1041) a Bench of five Hon'ble Judges of Supreme Court has again thrashed out the question of bar under Article 212(2) of the Constitution, also with reference to the allegations of violation of fundamental rights and has made the following observations:- "We may clarify that a civil servant cannot by-pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights."

With reference to the question of eligibility and fitness, the question of bar of jurisdiction has been examined by the Hon'ble Supreme Court of Pakistan in the case of Mian Abdul Malik vs. Dr. Sabir Zamir Siddiqui & 4 others (1991 SCMR 1129) and following observations have been made;

"The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces an element of subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of the competent authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification. On the question of eligibility and qualification no such bar exists either or express words of Section 4 of the Service Tribunals Act or even by implication. The petitioner had approached the civil Court for determination of his eligibility and also for being declared as the only one eligible to be promoted. Such an exercise could not be undertaken by the civil Courts with the limited number of parties arrayed before it nor could it have jurisdiction as the matter related to the terms and conditions of the Service."

Similar view has also been followed by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Anis vs. Abdul Haseeb & others (PLD 1991 SC 539) and Abid Mahmood vs. Government of Pakistan (1996 PLC (C.S.) 1061).

1. After examining the relevant provisions of law in the light of decisions as reproduced above, we find that none of the contentions raised before us from the petitioners side with reference to the question of bar of jurisdiction as contained in Article 212(2) of the Constitution of the Islamic Republic of Pakistan, 1973 are tenable. The case law referred before us also do not help the case of the petitioners in any manner.

It is clear that the impugned notices issued to the petitioners by the departmental authorities are not the final orders of termination of their services and thus there is no denial of right of hearing to them. Further from the contents of the impugned notices nothing is spelled out about the allegations of fitness as argued before us, even otherwise as observed by the Hon'ble Supreme Court of Pakistan in the case of Mian Abdul Malik vs. Dr. Sabir Zamir Siddiqi (supra) "fitness introduces an element of subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or a Court. Therefore, it goes without saying that the question of fitness is the sole prerogative and within the exclusive domain of competent authority, and thus this Court while/exercising powers under Article 199 of the Constitution cannot assume jurisdiction to decide and adjudicate the same and substitute such findings recorded by competent authority with its own findings as to the fitness or otherwise of a civil servant. The submission that bar of jurisdiction contained in provision (b) to Section 4 of the Sindh Service Tribunals Act, 1973 shall be interpreted so as to regulate jurisdiction to this Court is also devoid of any legal force.

1. For the foregoing reason, we have no hesitation to hold that jurisdiction of this Court is barred under Article 212(2) of the Constitution and the proper remedy available to the petitioners would be either to follow the departmental remedy or to approach the Service Tribunal regarding their grievance made in these petitions if law so permits.

In view of this, we also refrain from making any discussion about other factual aspect of the matter and the contention relating thereto raised before us during the course of arguments by the learned counsel for the petitioners.

These are the detailed reasons for the short order dated 4th June, 1998 passed by us in the above petitions whereby the same were dismissed in limine.

(K.KF.)

Petitions dismissed.

PLJ 1999 Karachi 166

Present: ANWAR ZAHEER JAMALI, J. ABDUL HAMEED and others-Appellants

versus

Haji MUHAMMAD JAVED-Respondent

F.R.A. No. 22 to 26 and 29 to 37 of 1997, decided on 30.9.1998

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—S. 16(l)«Tenant--Ejectment of-Default-Ground of-Relation of landlord and tenant—Question of—If there was a serious dispute about existence or non-existence of landlord and tenant relationship between parties Rent Controller should have afforded full opportunity to both parties and after recording their "evidence he should have decided this issue, alongwith other issues at time of final disposal of case-It would have been much appropriate for Rent Controller to have decide application under Section 16(1) of Ordinance pending for disposal, alongwith main case-There is no legal and proper finding on the issue of relationship of land-lord and tenant between parties impugned orders are liable to be set aside-Rent appeals are allowed and orders of Rent Controller dated 21.5.1998 as well as order dated 25.2.1997 passed on applications under Section 16(1) of Ordinance are set aside-Rent Controller is directed to proceed with the cases in terms of directions contained in the short order dated 25.9.1998- It will be open for Rent Controller to pass a fresh order on application under Section 16(1) of Ordinance at time of final disposal of rent case-­ Appeal allowed. [P. 169] A

Shaikh Fazaldin Mr. Shaikh Abdul Ghani, Advocates for Appellant.

Mr. Lachmand and Mr. Jan Jamshed Akhtar, Advocates for Respondent.

Date of hearing: 25.9.1998.

judgment

This order will govern the disposal of all the above listed rent appeals as the facts involved in these cases are identical so also the impugned orders.

The brief relevant facts are that respondent Haji Muhammad Javid claiming himself to be the owner and landlord, of "Javed Market" at National High-way near Octroi post, filed ejectment applications against all the appellants on 12.11.1995 on one and the same ground of default in the payment of rent for a period of three years prior to the institution of these rent applications. Such ejectment applications filed by the respondent before the Rent Controller were accompanied with applications under Section 16(1) of the Sindh Rented Premises Ordinance 1979 (hereinafter to be referred as Ordinance).

On service of notices of such ejectment applications as well as the applications under Section 16(1) filed by the respondent before the Rent Controller, the opponents filed their written objections to the rent application as well as to the application under Section 16(1) of the Ordinance, wherein each one of them challenged the jurisdiction of the Rent Controller and pleaded that there exist no relationship of landlord and tenant between the parties. The other allegations about the commission of default were also denied and it was pleaded that the appellants were occupying the shop premises in their own rights as owners thereof.

The Rent Controller during the course of proceedings while deciding application under Section 16(1) of the Ordinance passed an order on 25.2.1997 whereby directed the appellants in each case to deposit the arrears of rent as well as future monthly rent in Court.

Subsequently the respondent on 29.3.1997 filed an application under Section 16(2) of the Ordinance wherein he prayed to struck off the defence of the appellants due to non-compliance of the order dated 25.2.1997. These applications were also resisted by the appellants by way of filing of their objections in each case. However the Rent Controller after hearing the arguments reached to a conclusion that due to non-compliance of the order passed under Section 16(1) of the Ordinance dated 25.2.1997, the defence of the appellants was liable to be struck off and accordingly he passed an order of identical nature in all cases, which has been impugned in these Rent Appeals.

I have heard the learned counsel for the parties and have perused the case record. The learned counsel for the appellants have vehemently argued that it was incumbent upon Rent Controller to have first decided the question of jurisdiction with regard to the existance or non-existance of the relationship of landlord and tenant between the parties and unless the question of jurisdiction was decided by the Rent Controller in accordance with law, passing of rent order dated 25.2.1997 and subsequent order for striking off defence dated 21.5.1997 against appellants were nullity in the eye of law. The learned counsel further submitted that the question of existance or otherwise of the relationship of landlord and tenant between the parties could not have been decided by the Rent Controller in a summary and slipshoned manner while dealing with an application under Section 16(1) of the Ordinance. Since the jurisdiction of the Rent Controller was dependant upon the existance of relationship of landlord and tenant between the parties, the Rent Controller without affording full opportunity to both the parties was legally not competent to decide such issue. The learned counsel in support of his contention also referred to the pleadings of the appellant to show that the relationship of landlord and tenant was specifically disputed by each tenant. He lastly submitted that there was not an iota of evidence available before the Rent Controller for deciding the question of relationship of landlord and tenant in affirmative, but the Rent Controller in a fallacious and arbitrary manner proceeded and decided the same which makes the whole proceedings a nullity and liable to be set aside. The learned counsel placed reliance on the case law reported as PLD 1976 S.C. 208, 1987 MLD 3263, 3265, 3269 and 1993 CLC 1702 and 2385.

On the other hand, Mr. Lachmandas Rajput the learned counsel for the respondent supported the order of the Rent Controller and argued that the respondent placed on record, before the Rent Controller, documentary proof about his ownership in respect of the disputed premises known as Javaid Market" and the fact that the appellants in each case were in possession of shops in the said market was not disputed and in such circumstances the existance of landlord and tenant relationship was establishment and therefore the Rent Controller was justified in passing order under Section 16(1) of the Ordinance dated 25.2.1997 and subsequent order for striking off the defence dated 21.5.1997. The learned counsel in support of his contention placed his reliance on the case law reported as PLD 1977 Lah. 516,1984 CLC 626 and PLD 1991 S.C. 242.

Mr. Jam Jamshed Akhtar learned counsel also representing the respondent in these connected rent appeals adopted the same arguments as advanced by Mr. Lachmandas Rajput.

I have considered the arguments advanced before me and also perused the case law. In the instant case from the pleadings of the parties it is clear that the claim of the respondent that he is owner of the disputed premises and also landlord of the same and that the appellants are his tenant was denied by the appellants in clear words. The appellants in their written objections have specifically pleaded that their exist no relationship of landlord and tenant between the parties and the Rent Controller had no jurisdiction in the matter. In such circumstances adjudication of this issue made by the Rent Controller, while dealing with an application under Section 16(1) of the Ordinance, in a summary manner was not warranted by the law. The issue of existance of relationship of landlord and tenant cannot be decided by the Rent Controller tentatively or in an arbitrary manner, without affording full opportunity to both the parties, to prove their respective contentions. In the instant case the perusal of the record and proceedings of the Rent Cases reveals that the Rent Controller decided the issue of landlord and tenant in a summary manner and on a wrong presumption that words "ownership" and "landlordship" are synonymous to each other and word occupant and tenant are also synonymous. This may be so in the mind of an ordinary person but legally each of these words would carry its different meaning. Therefore it cannot be presumed that in each case a person in possession of a premises owned by some other person will be his tenant.

In the facts and circumstances of these cases when there was a serious dispute about the existance or non-existance of landlord and tenant relationship between the parties the Rent Controller should have aforrded full opportunity to both the parties and after recording their evidence he should have decided this issue, alongwith other issues at the time of final disposal of the case. It would have been much appropriate for the Rent Controller to have decided the application under Section 16(1) of the Ordinance pending for disposal, alongwith the main case.

In view of the above position when there is no legal and proper findings on the issue of relationship of the landlord and tenant between the j parties the impugned orders are liable to be set aside. Reference in this regard may be made to the case of Muslim Raza v. Mst. Saghra Bono 1987 M.L.D. 3269) wherein a Hon'ble Single Judge of this Court has observed as under:--

"....the appellant had clearly denied the relationship of landlord and tenant between himself and the respondent and without first determining the issue the learned Controller was not competent to direct ejectment of the appellant from the demised premises. It may be pointed out that the Controller has been vested with jurisdiction to try cases between the landlord and the tenant and when such relationship between the parties is denied it is incumbent on the Rent Controller to first determine such issue and then proceed further in the matter. Although no authority is needed on the point, nevertheless, reference in this respect may be made to Habibullah v. Bawa Vasdevqir Chelo Shambhugir(PLD 1968 Karachi 869)."

The case law referred by the learned counsel for the respondent is on different facts and not relevant in this case.

"As a result of above discussion all these rent appeals are allowed and the orders of the Rent Controller dated 21.5.1998 as well as the order dated 25.2.1997 passed on applications under Section 16(1) of the Ordinance are st;t aside. The Rent Controller is directed to proceed with the cases in terms of the directions contained in the short order dated 25.9.1998. It will be opesn for the Rent Controller to pass fresh order on application under Section 16(1) of the Ordinance at the time of final disposal of rent case.

Foregoing are the reasons of the short order dated 25.9.1998. 'K.K.F.) Orders accordingly.

PLJ 1999 Karachi 170 (DB)

Present: nazim hussain siddiqui and raja qureshi, JJ.

GULZAR HUSSAIN SHAH-Petitioner

versus

CHAIRMAN SINDH LABOUR APPELLATE TRIBUNAL, KARACHI and 4 others-Respondents

C.P. No. D-640 of 1997, decided on 18.5.1998.

ndu. rial Relations Ordinance, 1969 (XXVIII of 1969)--

—S. 25-A--West Pakistan Industrial and Commercial Employment (Stand­ing orders) Ordinance (VI of 1968), S.O. 13--Constitution of Pakistan 91973, Art. 199-Termination of Service-Validity-Petitioner being workman had received voluntarily all dues in full and final settlement of account would cease to be aggrieved person and would have no grievance left on basis of which he could invoke jurisdiction of Labour Court-­ Petitioner having received service certificate such fact indictate that he was satisfied and for that reason he had accepted willingly all dues-­ Employer, however having voluntarily offered specified amount to petitioner he was directed to pay the same to petitioner within one month of order of court-Petitioner was found not entitled to relief of re­ instatement in service- [P. 173] A & B

Mr. Gohar Iqbai, Advocate for Petitioner.

Mr. Mehmood Abdil Ghani, Advocate for Respondents (Employer).

Date of hearing: 15.5.1998.

judgment

Nazim Hussain Sidiqui, J.~The Petitioner has challenged the Order dated 21.11.1996 of learned Labour Appellate Tribunal, whereby the Order dated 12th September, 1996 of learned Vth Labour Court, Karachi, reinstating the Petitioner in service with full back benefits, was set aside.

The case of the Petitioners, in brief, is that he was appointed by Respondent No. 3, the employer of Marubeni Power Development Project as "Boy-Cum-Helper" in the month of August, 1977 with an assurance of permanent job, subject to this conduct, abilities, and performance, but no appointment letter was issued to him. It is alleged that since August, 1977 without any break, he served the Respondent No. 3. It is also his case that on several occasions he was compelled/directed for submitting the applications for job. He has claimed that on 15.8.1991 he requested for increase in salary and that on very day 'advance notice for termination of service' was served upon him, which, inter alia, stated that he, if so desired, could have the service certificate. It appears that on 31st August, 1991 such certificate was issued which in the last mentioned as under :-

"We regret that we will have to release Mm from our organization purely due to completion of the aforesaid project. We wish him a very success in his next job opportunities and bright future."

Being aggrieved by he termination order, the petitioner served grievance notices upon Respondents Nos. 3 to 5 find thereafter filed grievance petition, under Section 25-A of the Industrial Relations Ordinance, 1969 before the concerned Labour Court, which was allowed and he was re­instated in service with all back benefits by order dated 12.3.1996. The Respondent No. 3 challenged said order and the Appeal was allowed by the order, which has been impugned in this Petition.

The case of the Respondent No. 3 is that it is a "Japanese Company" and takes individuals contracts from time to time in Pakistan for the purpose of erection of Power Plants for WAPDA and/or KESC. It is alleged that since the projects are awarded after open bid through process of tenders, the company is not sure ifit will bid for another project on completion of one project or as to wether it will be awarded or not any other project in Pakistan. Accordingly, it is urged that the work of the respondent is essentially of a temporary nature and for a limited duration. Further, it is said that the Respondent No. 3 was awarded a project known as "KESE Bin Qasim Thermal Power Station Pipri Unit No. 5." It is also the case of the respondent that the Petitioner applied for employment on 18.7.1990 and said project was completed in August 1991. Since the Petitioner was aware of the above position, he had moved an application to the respondent requesting for grant of a contract of'lunch at SITE Office", stating therein that said project was "at the final stage". According to respondent, it was evident that the Petitioner was aware that the project was near completion and he would be rendered surplus. It is alleged that on 20.9.1991 the Petitioner had received his legal dues including Gratuity, Leave Encashment, Earned Wages, and acknowledged the same as per letter of said date. It is also the case of the respondent that voluntarily an offer of extra amount of Rs. 20,000/.- was made to the Petitioner, although the respondent was not under any obligation to pay said amount.

Mr. Gohar Iqbal, learned counsel for the petitioner contended that in view of clause (3) of Standing Order 12 of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, the service of the Petitioner could not be terminated, nor he could be removed, retrenched, discharged or dismissed from service, except the reason for the action taken. Learned counsel argued that in the termination order dated 15th August, 1991 no reason was shown. Learned counsel also argued that the Petitioner was appointed by said company and not for said project, though on 18.7.1990 he had sent an application for job to the Project Manager.

As against above, Mr. Mehmood Abdul Ghani, learned counsel for the Respondent No. 3 submitted that the termination order of the petitioner is not to be road is isolation to the earlier letter written by the petitioner himself, wherein he himself mentioned about completion of the project. He also argued that the petitioner, having accepted his entire dues in full and final settlement of his claim, could not invoke the jurisdiction of the Labour Court and also of this Court under Article 199 of the Constitution.

It is evident from the petitioner's letter (Page-65 Ex. 6) that he was fully aware about completion of the project and for said reason requested for providing him catering services for future project at the construction Site. It is not disputed that said project has been completed nor there is any plea of mala fide against the Company. On the contrary, irrefutable evidence is available on record to show that the Company had appreciated the work of the petitioner. It being so, there was no reason for the company to remove him from the job, except the fact that the project was completed. It is not the case of the petitioner that after his removal somebody else was appointed in his place. Since the Respondent No. 3 is a Foreign Organization and was working for specific assignment which was completed, the petitioner, after having become surplus, could not challenge his termination. He was well aware about the reason of termination of his service. No prejudice was caused to him in that regard.

The Petitioner admittedly received this dues as per letter dated 20.9.1991, which included salary of 24 days, over time, gratuity and leave encashment. Mr. Gohar Iqbal, learned counsel for the petitioner argued that said letter is a "Pay Roll Sheet" and was not a document of final settlement. In Monthly Pay Roll Sheet Gratuily is not paid. Learned counsel failed to offer and satisfactory explanation regarding receipt of gratuity. It appears that although the payment was made on Pay Roll Sheet, but in fact, it was in final settlement of claim of the Petitioner. It is settled proposition of law that a workman, voluntarily having received all dues in full and final settlement of account, ceases to be an aggrieved person and has no grievance left on the basis of which he could invoke the jurisdiction of the Labour Court. The fact that the petitioner had obtained Service Certificate indicated that he was satisfied and for that reason he had accepted willingly all his dues.

The respondent voluntarily had offered an amount of Rs. 20,000/- to the Petitioner. We order that said amount be paid to the Petitioner by „ Respondent No. 3 within a month from the date he approaches said respondent for its payment.

On 15.5.1998 after hearing the arguments, we had dismissal this petition in limine alongwith the listed applications and these are the reasons for short order announced on above date.

(AAJS) Petition dismissed

PLJ 1999 Karachi 173 (DB)

Present: wajihuddin ahmad C. J. and muhammad roshan essani, J.

SHAFI MUHAMMAD-Petitioner

versus

GENERAL MANAGER M/s. MUSLIM COMMERCIAL BANK LTD. SUKKUR and 3 others-Respondents

C.P. No. 466 of 1995, decided on 23.4.1998.

Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—Ss. 2 (xxviii) & 25-A--Constitution of Pakistan (1973), Art. 199--Petitioner claiming to be a workman-Labour Court and Labour Appellate Tribunal had found him not to be a workman-Validity-Question whether petitioner was or was not workman being essentially question of fact, concurrent finding recorded thereon by Tribunals of exclusive jurisdiction could not be interfered with except for good reason-- l etitioner himself had concede in his cross-examination before Labour ,~- iirt. that he was officer in the Bank and was doing supervising job-- Potitioner was, thus, not a workman as per his own account and, therefore, not entitled to relief. [P. 175] A

1992 SCMR 502 and 1988 SCMR 1664 ref.

Mr. MM. Aqil Awan, Advocate for Petitioner.

Mr. Mahmood Abdul Ghani for Respondents, Nos. 1 and 2.

Date of hearing: 23.4.1998

judgment

Muhammad Roshan Essani, J.-The facts of the case are amply dilated upon in the orders of the Labour Court as also the Labour Appellate Tribunal and, therefore, need not be re-stated. Both such Courts have found the petitioner not to be a workman.

In support to the respondents' plea that the petitioner was not a workman, Mr. Mahmood Abdul Ghani has relied upon the following passage with which the cross-examination of the petitioner before the Labour Court commenced :--

"When my services were terminated I was working as Officer Gr. II in MCB Pano AMI Br. at the time of termination of my service I was drawing salary of Rs. 4565/-PM. I was working as Acctt: in Pano Akil Br. of the Bank at the time of termination of my service. I was officer number two in the Akil Branch after the Manager. In the absence of Manager I used to work as Incharge Manager of MCB Pano AMI Br. Officer Gr. II of MCB works in the management cadre. Pay commission fixes salary of officer worMng in the Bank. Wage Commission fixes salary of workers. I was not 'holding power of Attorney of MCB Ltd. I use to supervise work of staff worMng in the MCB Br. at Pano AMI. When I was dismissed from service by Bank Authority at that time 14 persons were worMng in the Pano AMI Br. Payment made in the Branch comes within the knowledge of Acctt. of the Branch."

The learned counsel has further stated that the consistent view of the superior Courts pertaining to MCB employees is that Officer in Grade-Ill and upwards have been adjudged as non-workmen. He adds that according to the prevailing view enunciated by the Supreme Court pertaining to less than 20 people being employed in a branch, such branch having been treated as an establishment for the purposes of the applicable law, the opinion as reflected in 1992 SCMR 505; (523) Abdul Razzaq vs. Messrs Ehsan Sons Ltd. & 2 others) applies with full force to the present case and the grievance petition was, therefore, not entertainable at all. As against this the learned counsel for the petitioner has drawn our attention to the following averments on cross-examination made by the respondents' witness before the Labour Court :--

"Applicant Shafi Muhammad was posted as Accountant at Panoakil Br. MCB. Whatever the applicant has stated in affidavit in evidence sand also his grievance application regarding nature of duties is incorrect. Branch Manager Mahar was controlling the branch of MCB at Pano Akil. It is correct that applicant Shafi Muhammad was not competent to suspend any of the employee of the MCB Branch at Pano Akil or grant leave or take any disciplinary action against the employees of above said Bank. It is incorrect to suggest that applicant's duty was to prepare weekly, monthly and yearly return of the Bank. It is incorrect to suggest that it was a duty of the applicant to balance the cash and record. We prepare restor for the duties of a employees of the Branch, specifying the duties of every employee of the branch. It is incorrect to suggest that duties mentioned by applicant in his grievance application and also in the affidavit in evidence are same as per roster maintained by the branch of MCB at Pano Akil. It is incorrect to suggest that the roster of the branch has not been produced by us in this matter in order to conceal the nature of the duties which applicant was performing at the above said branch of the Bank. It is correct to suggest that the applicant has got no power of Attorney on behalf of the Bank. It is fact that applicant was charged sheeted on 3.4.1991."

Mr. Aqil Awan also refers to Allied Bank Ltd. vs. Muhammad Humayun Khan, 1988 SCMR 1664, to urge that even Manager of a bank in appropriate cases can be termed to be a workman.

Having heard both the learned counsel we are of the view that the question whether a person is or is not a workman is essentially a question of fact and concurrent findings on the question recorded by Tribunals of exclusive jurisdiction cannot be interfered with except for good reasons. One of the reasons why the Supreme Court did not interfere with the conclusions recorded upto the level of the High Court in Allied Bank's case (supra) was the same, namely, that the question was one of the fact. Besides, whatever the petitioner himself conceded in his cross-examination before the Labour Court appears to be enough to say that the petitioner was anything but a workman.

For the aforesaid reasons there is no merit in this petition which is dismissed.

(AAJS) Petition dismissed.

PLJ 1999 Karachi 176 (DB)

Present: nazim hussain siddiqui and ghulam rabbani, JJ.

HASAN ABBAS-Petitioner

versus

SINDH LABOUR APPELLATE TRIBUNAL, KARACHI and others-Respondents

C.P. No. D-761 of 1998, decided on 6.11.1998.

Industrial Relations Ordinance, 1969 (XXWII of 1969)--

—Ss. 25-A & 2(xxviii)--Constitution of Pakistan (1973), Art. 199—Dismsisal of employee-Employee in his grievance petition claimed to be workman and as such not liable to dismissal in the manner in which he was dismissed-Labour court and Labour Appellate Tribunal dismissed employee's grievance petition on the ground that he was not workman and thus not entitled to lodge grievance petition as also grievance notice- Validity-Employe could not point out material evidence to substantiate his contention-Forums below, having examined all material available on record, reached the conclusion that employee's employment was temporary in nature and his grievance petition was time barred-Length of employment was not criterion for determining of employee was permanent or temporary-Nature of work was thus, deciding factor in determining status of employee-Well considered concurrent findings of fact of two forums below, thus, could not be lightly interfered with- Employee was not entitled to relief in circumstances. [P. 177] A

Petitioner in persons.

Respondent No. 3 through Mr. Mahmood Abdul Ghani, Advocate.

Date of hearing: 5.11.1998.

judgment

Nazim Hussain Siddiqui, J.-The petitioner has impugned the orders dated 4.11.1997 and 4.4.1998 passed by the Respondents Nos. 1 and 2 respectively.

The case of the petitioner, in brief, is that he was a permanent employee of Respondent No. 3, Karachi Sheraton Hotel, and its management was annoyed with him as he was an active Member of the Union. According to him, once he had refused to perform work of polishing furniture at the residence of one of the members of the management and this generated ill-feelings against him amongst those members. He has claimed that verbally he was dismissed from service on 23.7.1995. He sent a grievance notice to the Respondent, but no reply was received. Consequently he field Grievance Petition before the labour Court, which was dismissed. He preferred appeal against the said order before Sindh Labour Appellate Tribunal and it was also dismissed.

The case of the Respondent No. 3 is that on 10.6.1993, the appellant was appointed as "Polisher" on purely temporary basis as renovation work of the Hotel was being carried out in those days. Further, it is alleged that he i was engaged from time to time for said work and his services were terminated on 12.3.1995. The Respondent has specifically stated that the appellant had never been an active member of the Union nor he was victimized.

Learned Labour Court held that neither the appellant was a permanent employee nor an active member of the Union. It also held that terminated on 12.3.1995 and the grievance notice was sent by him on 12.8.1995 and it being so, it was time-barred and no cause of grievance arose to him within the meaning of Section 25-A of I.R.O. 1969.

Learned Labour Appellate Tribunal upheld the findings of Labour Court on both the above points.

It is contended by the Petitioner that both the Forum below have failed to appreciate the evidence brought on record, as such, reached wrong conclusion. He also argued that he was employed as a 'Polisher' on 19th July, 1992 and after completion of probationary period of three months, he became a permanent employee and his services could not be terminated like a 'Temporary Employee'.

We have heard the petitioner at length. He was not able to point out the material evidence to substantiate his contentions. Both the Forum below, having examined all material available on record, reached the conclusion that the Petitioner was a temporary employee and his services were terminated according to law and that his grievance petition was time-barred. He was appointed as 'Polisher' at the time when renovation work was on and said work was not of a permanent nature. Length of employment is not the sole criterion for determining if a workman is permanent or temporary. In fact, it is the nature of work, which is the deciding factor, Under the circumstances, it was rightly held that he was not a permanent employee. A well considered concurrent findings of facts of two Forums below cannot be lightly interfered with. There is no merits in the Petition.

On 5.11.1998, after hearing the Petitioner and learned counsel for Respondent No. 3, we had dismissed the petition in limine and these are reasons for the same.

(A.A.) Petition dismissed.

PLJ 1999 Karachi 178

Present:MUSHTAQ AHMAD MEMON, J. NATIONAL BANK OF PAKISTAN-Plaintiff

Versus

MUHAMMAD TAHIR PARACHA-Defendant

Suit No. 1475 of 1997 and Civil Misc. Application No. 1286 of 1998, decided on 23.4.1998.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997)-

—-S. 10--Loan-Recoveiy of~Leave to defend suit-Application by guarantor of loan-Dispute relating only to mark-up-Mark-up under Islamic Law of Banking could be charged only if agreement was reached between parties to that effect-Plaintiff having failed to show any agreement for charging mark-up, was not entitled to claim the same-Non-entitlement of plaintiff to claim mark-up could not be considered serious and bona fide dispute entitling guarantor of loan to grant of leave-Amount of mark-up claimed by plaintiff could conveniently be segregated from remaining claim-Guarantor of loan could not assert right to delivery of imported merchandise and could not be granted leave to defend-Plaintiff s claim to mark-up was not accepted-Plaintiffs suit was decreed against defendants jointly as well as severally in the sum of outstanding amount with mark­ up at specified rate per annum from date of institution of suit till payment of outstanding amount-Plaintiffs suit was decreed for sale of pledged stocks and for costs of proceedings. [P. 180] A & B

Mr. TasawarAli Hashmi, Advocate for Plaintiff.

Mr. Abdul Sadiq Tanoli, Advocate for Defendant No. 2.

Date of hearing: 23.4.1998.

order

Through this application, preferred under Section 10 of Act XV of 1997, the Defendant No. 2 who is sued as guarantor, has sought leave to defend the proceedings. It is urged by the learned counsel for Defendant No. 2 that the plaintiff was paid a sum of Rs. 2.5 million on 25.9.1989 and a further sum of Rs. 7,10,000 on 3.10.1993 towards partial liquidation of liability in respect of the two Letters of Credit No. KCY/3/97792 and KCY/3/97778. It is submitted by Mr. Tanoli that such amounts have not been credited in the account of Defendant No. 1. The case of Defendant No. 2 further is that it is ready to take delivery of the imported merchandise upon retirement of documents paying the principal amount with mark-up for 150 days from the date of lodgement subject to delivery of the goods. Mr. Tasawur Ali Hashmi, appearing for the plaintiff, submits that the Defendant No. 1 has already taken delivery of the goods covered by Letter of Credit No. KCY/3/097792 upon execution of Trust Receipt which has been filed as Annexure G-4 with the plaint. It is further urged that the status of Defendant No. 2 is merely of a guarantor and the delivery of goods can be taken by the Defendant No. 1 alone. The liability of the Defendant No. 2 as guarantor is to make payment of the Letter of Credit amount within two (2) days of demand in the event of default committed by the Defendant No. 1. It is further urged that both the L.Cs. were usance Letters of Credit payable after 150 days. The period of 150 days was prescribed for the purpose of making payment to the beneficiary and, therefore, no limit for charging mark-up could be inferred therefrom. Reliance on behalf of the plaintiff for charging mark-up and the commission has been placed Instructions Circular No. 108 of 1997. The receipt of the sum of Rs. 2.5 million against the subject Letters of Credit has been denied and to substantiate such assertion, copy of Credit Voucher showing receipt of a sum of Rs. 2.5 million on 3.9.1989 has been produced. Such voucher shows that the amount of Rs. 2.5 million was received in respect of Letter of Credit No. 097509 established on behalf of the Defendant No. 2. The last mentioned Letter of Credit, according to the plaintiff, was quite distinct from the subject transaction. As regards the amount of Rs. 7,10,000 allegedly paid on 3.10.1993 by the Defendant No. 1, Mr. Hashnii submits that, whatever amount was received from the Defendant No. 1 has duly been accounted-for in the statement of account.

As to the liability for principal amount, the same has not been disputed by the Defendant No. 2. However, it to be considered as to for what period, the plaintiff can charge mark-up from the Defendant No. 1. Admittedly, the Letters of Credit in question were usance L/Cs and payable at 150 days on D.A. basis from receipt of the Bill of Lading. Although the documents filed in support of the plaint do not show the actual date of payment to be beneficiary, the Letter of Credit amount could not have become due before its payment. The plaintiff, therefore, could have made claim for recovery immediately upon the amount became in due as above but it has chosen to delay the filing of proceedings till 17.10,1997 when the present suit was filed. The plaintiff cannot burden the defendant with liability for mark-up merely on account of its own negligence in preferring the claim. The delay in preferring claim and the resultant loss allegedly caused to the bank can be attributed to officers/staff of the plaintiff itself and it is imperative for the bank to fix responsibility for the loss and take departmental action accordingly. As regards the rate of mark-up, the plaintiffs reliance is on its Circular No. 108 of 1997. The circular was admittedly issued in 1997 and cannot apply retrospectively to a transaction which has taken place in the year 1989. The Letters of Credit and the correspondence exchange between the parties including the application for establishment of Letters of Credit do not show if the parties had agreed to payment of any mark-up.- The plaintiff has not produced any documents to

show if any instructions for charging mark-up were issued prior to establishment of Letters of Credit in question and/or the same were brought to the notice of the defendants to regulate the terms thereof. Mark-up, under ^ the Islamic Law of Banking, can be charged only if an agreement is reached between the parties to that effect. In the present case, the plaintiff having failed to show existence of any agreement for charging mark-up, is not entitled to claim the same. The question then is as to whether the non-entitlement of the plaintiff to claim mark-up, can be considered a serious and bona fide dispute entitling the Defendant No. 2 to grant of leave. I am afraid, the answer to the above question has to in the negative for the reason that the amount of mark-up claimed by the plaintiff can conveniently be segregated from the remaining claim. As to the contention that the Defendant No. 2 is prepared to retire the documents upon payment of the principal amount with mark-up for period of 150 days, suffice to observe that such claim could lawfully be made only by the Defendant No. 1 who has "\ chosen not to defend the proceedings. The Defendant No. 2 cannot assert the right to delivery of the imported merchandise and cannot be granted leave on such ground.

The application for leave to defend, in the circumstances, is dismissed.

As a result of dismissal of the application for grant of leave and on _ account of non-filing of application for leave by the Defendant No. 1, the contents of the plaint are to be deemed to have been admitted. The plaintiff has claimed a sum of Rs. 19,862,659.41 as the principal amount due under X the letter of credit in question out of which it has admitted receipt of a sum of Rs. 5,623,500 by way of adjustment of the margin amount. The balance of Rs. 14,239,159.41 is outstanding and due against the defendants. The plaintiff cannot claim any mark-up over the said amount for want of agreement between the parties. The plaintiff has also failed to the any material entitling it to claim mark-up which is disallowed despite the admission of its liability for 150 days contained in the application filed by the Defendant No. 2. The Defendant No. 1, is the principal-debtor who cannot be burdened with mark-up on the basis of said admission made by the, -guarantor.

In the circumstances, the plaintiffs suit is decreed against the defendants jointly as well as severally in the sum of Rs. 14,239.159.41 with mark-up at the rate of 16% per annum from the date of institution of suit till its payment The plaintiffs suit is also decreed for sale of the pledged stock and for costs of the proceedings.

(AAJS)

Suit decreed.

PLJ 1999 Karachi 181

Present: mushtaq ahmad memon, J. FAIZOO and others-Appellants

versus

RAEES BAQAR, KHAN and others-Respondents

F.A. No. 25 of 1980, decided on 24.9.1997.

(i) Administration of Jwstiee-

—Any step which advances justice could always be adopted; in absence of specific powers and procedure, inherent powers could always be invoked.

[P. 185] A

AIR 1927 All. 716; AIR 1942 Bom. 338 and!970DLC817re/:

(ii) Civil Procedure Code, 1908 (V of 1908)-

—O.XXVI, R. 6--Sindh Chief Court Rules (O.S.), R. 131-For assessment of mesne profits-Report of commission appointed by Court-Status-No, objection was filed by any of the parties-Appellants had failed to avail opportunity to question the same during proceedings-Such report having been found to be proper was lawfully approved by Trial Court.

[PI. 185 & 188] B & C

(iii) Civil Procedure Code, 1908 (V of 1908)-

—Ss. 2(12) & 115-Grant of mesne profits for period of three years prior to date of institution of suit-Status-Plaintiffs would have been entitled to mesne profits for period of three years prior to institution of earlier suit i.e. from 31.7.1946, since possession of land in question was delivered by plaintiffs on 29.4.1971 and in view of permission granted to them vide judgment of Court for filing separate suit for mesne profits, such period ought to have been treated as period of suspension of the right to sue for the same-Failure of plaintiffs to file cross-objections-Modification in decree refrained-Decree and judgment of Court below were maintained.

[Pp. 188 & 189] D

Mr. M.M. Aqil Awan, Advocate for Appellants.

Nemo for Respondents.

Dates of hearing: 26 & 28.5.1997 and 14.3.1997.

judgment

Through this appeal preferred under Section 96 of the Code of Civil Procedure, the appellants have assailed the judgment dated 28.6.1978 and the final decree dated 22.3.1980 passed in Suit No. 105 of 1970 by the Senior Civil Judge, Gambat whereby the suit filed by the respondents have been decreed for a sum of Rs. 1,07,044.

The facts leading to the present proceedings, briefly stated, are that the Respondents Nos. 1 and 2 had filed Civil Suit No. 5 of 1946 seeking decree for possession of agricultural land measuring 190.34 acres and for mesne profits for the period from 1937. It was averred in the plaint that the subject land was ancestral property of the respondents and the appellants had taken over physical possession thereof through trespass on 15.7,1937. After appreciation of evidence, as was produced by the parties, the suit was decreed with costs on 30.4.1956 by the First Class Sub-Judge, Khairpur Mirs, for possession only. As regards claim for mesne profits, it was observed that the respondents could bring a separate suit. The decree was challenged through Civil Appeal No. 17 of 1956 before the erstwhile High Court of West Pakistan, which was re-numbered as Civil Appeal No. 18 of 1962 upon transfer to the District Judge, Khairpur Mirs. Eventually, on 14.1.1964, the appeal was dismissed and Second Appeal No. 70 of 1964 preferred before the High Court of West Pakistan was also dismissed on 15.11.1968. The direction with regard to filing separate suit for mesne profits was also not modified at any stage. In the meantime, on 2.5.1956, Execution Application No. 14 of 1956 was preferred by the Respondent No. 1 and on 29.4.1971, the respondents were put in possession of the subject land. Before the respondents got possession, as above, on 25.5.1970 Suit No. 105 of 1970 was filed by them claiming mesne profits with effect from 15.7.1937. The suit was subsequently re-numbered as 26 of 1976. On 18.12.1975, the matter was ordered to proceed exparte against the appellants. On 18.2.1976, affidavit in exparteproof was filed by the respondent No. 1. In such affidavit, as to the amount of mesne profits the following averments were made :

That I have tentatively shown the value of mesne profits as Rs. 16,000. But it is a question of determining the mesne profits by actual cultivation of the survey numbers in each crop, a separate application is being under Order 26, rule 14 and Section 151, C.P.C. for determining the actual mesne profits."

This was followed by affidavit of one Ghulam Muhammad who was apparently managing the lands of the respondents as an employee, wherein net profit from the subject land was claimed as Rs. 20,000 to Rs. 25,000. On the basis of the unchallenged material produced by the respondents, as above, judgment and preliminary decree dated 28.6.1976 was passed. However, the learned Judge found that Article 109 of the Limitation Act was applicable to the case and awarded mesne profits for a period of 3 years from 25.5.1970 when the Suit was filed up to 29.4.1971 when possession of the subject land was handed over to the respondents. Mr. Abdul Sattar Dosi, Advocate was appointed as Commissioner to ascertain quantum of actual profits received by the appellants severally or collectively through local investigation and to submit report. On 15.1.1978, the above named Commissioner submitted his report after visiting the subject land and recording statements of the concerned persons and neighbouring land owners. The Learned Commissioner on the basis of the investigation conducted by him worked out the approximate amount of total income and after deducting therefrom the approximate amount of expenditure and share of cultivator (Hari) reported that a sum of Rs. 1,07,044-11-00 was due from the appellants as mesne profits for the period from 25.5.1967 to 29.4.1971, The learned Commissioner also gave breakup of the amount of mesne profits worked out by him as was due from the seven appellants and one Ghulam Hyder. It appears from record that on 7.3.1978 statement was filed by the Advocate for the appellants in the following terms :

"It is stated that Ghulam Haider and Rasool Bux defendants in the suit have died long ago."

Pertinently, the actual date of death of Ghulam Haider and Rasool Bux was not mentioned so as to determine if they had died before promulgation of Land Reforms Ordinance 1972 or thereafter. However, in the absence of any material on the record, I would proceed on the assumption that such persons expired after the amendment in the provisions of Order 22, Rules 3 and 4, C.P.C. with the result that the proceedings did not abate. On 12.6.1979, the above-named Commissioner was examined but it appears that he was not cross-examined on behalf of appellants despite their representation through one Mr. S. Hassan Imam, Advocate who had field Vakalatnama on 5.12.1978. It appears from the record that applications were then filed by some of the appellants under Order 9 rule 13, C.P.C for setting aside the exparte judgment. However the record does not show if any order was passed on such applications. On 22.1.1980, the matter came up for hearing in respect of the report submitted by the Commissioner when the Learned Senior Civil Judge, Gambat, after consideration of the report passed order in the following terms :

"2. Mr. Zaheer Hassan learned counsel for plaintiff/decree-holder has submitted that since the defendants/Judgment debtor have failed to file any objection within 10 days of service of notice on them of the filing of report by Commissioner as required under rule 131 (2) of Sindh Civil Court Rules, therefore, the report has become final and now no exception can be taken on it. Mr. Zaheer has further contended that even on merits the report submitted by the Learned Commissioner is very elaborate and exhaustive and the Learned Commissioner has worked out very mainute details and has considered each and every aspect of the matter, such as the cost of expenses and other allied matters. I have gone through the report of Learned Commissioner and I am of the view that no exception can be taken to the report submitted by the learned Commissioner and, thus, the report submitted by Learned Commissioner is approved. The suit is decreed in terms thereof and a final decree should be prepared accordingly. The plaintiff has paid court-fee on the amount of Rs. 16,000 only, therefore, deficit amount of the court-fee on the remaining amount would be first charge on the decree. The total amount of mesne profits comes to Rs. 1,07,044. The Learned Commissioner has been paid fee of Rs. 200 already only tentatively. The learned Commissioner is allowed commission fees at the rate of 2-1/2% on the total amount of mesne profits. Rs. 200 already paid to the Learned Commissioner should be deducted from the total amount of commission fees."

On the basis of findings as above, final decree was passed on 22.3.1980 in the sum of Rs. 1,07,044-11-00 which has been challenged as above in the presentproceedings.

Mr. M.M. Aqil Awan appearing on behalf of the appellants has urged as follows :—

(i) Filing of suit for mesne profits in the year 1970 was barred by the provisions of Order 2, Ride 2, C.P.C. in view of the earlier proceedings in Suit No. 5 of 1946.

(ii) The impugned judgment and decree for mesne profits shows that the primary ingredients for grant of mense profits were neither alleged nor established by the respondents.

(iii) The report of the Commissioner, is illegal and beyond scope of reference/preliminary decree.

Elaborating his first submission, the learned counsel for the appellants has urged that the respondents has filed Suit No. 5 of 1946 for possession and mesne profits in respect of the subject land. The mesne profits were claimed with effect from 15.7.1937. The matter was contested and by Judgment dated 30.4.1956, the suit was decreed with cost for possession of land. According to the learned counsel, the prayer for grant of mesne profits is to be treated to have been declined. The learned counsel further submits that the observation contained in the Judgment dated 30.4.1956 permitting the respondents to file separate suit for mesne profits could not lawfully be granted and in any event, cannot be considered a justification for bye-passing or circumventing the provisions of Order II, Rule 2, C.P.C. The learned counsel in support of his submission has referred to Judgments in the case of

(a) (GoswamV Gordhan Lalji Mahraj v. Bishamber Nath(AIR 1927 Allahabd 716);

(b) Channappa Cirimalappe Golad v. Sagalkot Bank, (AIR 1942 (29) Bombay 338 and

(c) Province of East Pakistan v. Upendra Narayan Lala and others (1970 DLC 817).

Instead of referring to each of the above referred cases cited by the Learned Counsel for the appellants, suffice to observe that the dictum laid down in the above cases is not applicable to the present case for the reason that the facts involved in the present case are different from those in the cited Judgments. Indeed the provisions or Order II, Rule 2, C.P.C. would have barred the respondents from brining fresh suit for mesne profits if such prayer had not been made in the earlier proceedings. It is significant to note that the respondents had specifically pleaded the necessary details and sought decree for specific performance in Suit No. 5 of 1946. The provisions of Order n, Rule 2, C.P.C. manifestly do not apply to the present case. As regards grant of permission to bring separate suit for mesne profits, through the reason to justify such observation has not been stated in the Judgment dated 30.4.1956, the logic for such observation is not for from reason since the respondents would have been entitled to mesne profits up to the date of restoration of possession and though a decree for mesne profits could have directly been passed by the learned Senior Civil Judge who had passed Judgment dated 30.4.1956, he had considered it more appropriate to permit filing of separate proceedings in that behalf. Any view contrary to the above would amount to entrapping the respondents into technicalities. Any step which advances justice can always be adopted and in the absence of specific powers and procedure, inherent powers can always be invoked. Reference may be made to the Judgment in Imtiaz Ahmad v. Ghulam All (PLD 1963 SC 382), herein following observation was made which has consistently been followed:

.................. the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy................... system which by giving effect to the form and not the substance defeats substantive rights (and) is defective to the extent."

The Learned Civil Judge, in exercise of inherent powers vesting in the Court, could permit filing of separate suit. Obviously the direction for Sling separate suit had brought inconvenience, if any, to the respondents who would have got their relief much earlier and in the very proceedings when decree for possession was passed. Moreover, another reason which might have weighed with the learned Civil Judge for putting the respondents' to another round of litigation could be that grant of mesne profits would have resulted in passing preliminary decree and for such reason decree for possession would have been delayed exposing appellants to long-period and obviously, larger amount of mesne profits. In any event, a B party cannot be made to suffer on account of act of the Court. The Judgment dated 30.4.1956 was affirmed up to the stage of second appeal by a Bench of the erstwhile High Court of West Pakistan and in the event of any illegality, the judgment dated 30.4.1956 would not have sustained. The point urged by the learned Counsel for the appellants, thus, is without force and is repelled.

In support of next contention, the learned Counsel has first referred to definition of the term mesne profits as appearing in Section 2(12) of the Code of Civil Procedure which for the sake of convenience is reproduced as foDows :-

"(12)'mesne profits' of property means those profits which the person in wrongful possession of such property actually received or might with ordinary deligence has received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession :"

It is submitted by the learned counsel that in order to claim mesne profits, a plaintiff is required to show that the subject property was in wrongful possession of another person and cannot include profits due to improvements made by such person. It is urged by the learned Counsel that the two affidavits Exh : 28 and Exh : 31 did not contain even an averment that the subject land was in wrongful possession of the appellants. The learned Counsel has referred to Judgment in the case of House Building Finance Corporation v. Mrs. Sarwar Jehan reported in (PLD 1993 Karachi 21), wherein it was held that mesne profits are recoverable only from the person in wrongful possession of the subject property.

The affidavits Exh. 28 and Exh. 31 are to be read alongwith plaint which was duly ve ified arid the othei 'documentary evidence as has come on record. The plaint in Suit No. 105 of 1870 in Paragraphs 2, 7, 8 and 9 contains reference to previous proceedings in Suit No. 5 of 1946 and the pleadings and Judgment in such proceedings have been produced in evidence. The above documents do show tr-at the appellants were found to have trespassed over the subject land and were in wrongful possession thereof. The decree for possession Tvas passed in consequence of the said finding. The pleadings and the evidence, in the present case, thus sufficiently establish that the appellants were in unauthorit 8d and wrongful possession of the suit property and were cultivating the same earning profits therefrom. The learned Counsel for the appellanc, therefore, is not correct in asserting that there was no material before that learned CiviJ Judge, who has passed the impugned Judgment and decree, to hold that the appellants were in wrongful possession of the subject land. As regards ;he judgment in House Building Finance Corporation case, cited by the learned Counsel, the peculiar facts involved therein make it distinguishable. However, the dictum laid down by the learned Single Judge of this Court who had decided the abovecited case supports the respondents in the present case for the reason that the appellants were in wrongful possession of the subject land arid the mesne profits are recoverable from them. As to the second aspect of the arguments that the respondents cannot have the profits which were earned due to the improvements made by the appellants, I may note that there was no evidence on the record to show that the appellants had carried out any improvements. In the result, I do not feel inclined to upset the impugned Judgment and decree on the basis of second contention of the learned Counsel for the appellants.

1. As to his final contention, the learned Counsel submits that the local Commissioner had admittedly failed to give any notice to the parties before inspection of the subject land. It is further urged that the learned Commissioner had relied on the data provided to him by Khan Muhammad and Pir Bux who were owners of land in the adjoining deh. The learned Counsel submits that the absence of any material to show that owners of land in the same deh were not available, reliance cannot be placed upon the figures provided by the abovenamed landowners. The Learned Counsel further submits that the report of the Learned Commissioner has mechanically been followed in drawing the final decree. It is further urged by the learned Counsel for the appellants that evidence regarding quantum of mesne profits should have been recorded by the Court itself and the date collected by the Commissioner on the basis whereof report was prepared could not be taken into account. The grievance further urged by the Learned Counsel for the appellant is that the said course adopted by the learned Civil Judge amounts to abdication of the powers of Court in favour of the Commissioner. The learned Counsel in support of his above submission has referred to the following judgments :

2. Muhammad Bakhsh v. Nazim Din (PLD 1978 Lahore 31).

3. Muhammad Juman and others v. Mst. Aqlan and 2 others (PLD 1980 Karachi 108).

4. N.M. Khan and others v. Dr. Abdur Rauf and others (1980 SCMR 528).

5. Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others (1992 SCMR 1245).

In the first case, it was held that the law does not allow delegation of powers by the Court to the Local Commissioner to decide material issues and that the report of the Commissioner cannot be considered to be final. It is merely in the nature of proceedings of an inquiry, for the information of the Court after which the Court is bound to give its own findings (s) on each and every issue. In the present case, however, the material issues were decided by the Court itself and the Commissioner was appointed only to collect information with regard to the mesne profits as could be granted to the respondents. The cited judgment, therefore, does not help the appellants.

In the second case, the request by one of the parties for inspection of subject land to determine as to who was in possession thereof was declined and the contention questioning such order was repelled in the following terms by Zafar Hussain Mirza, J. (as he then was):

"8. Mr. Fazeel lastly contended that the impugned orders are bad in law as the request of the applicants for inspection of the land to determine as to who was in possession thereof submitted under Order XVIII, Rule 18, C.P.C. was not considered by the trial Court and was rejected for uncogent reason by the Appellant Court. I find no substance in his contention. It is well-settled that a Court only decides a matter on the basis of evidence on record and not on its view or impressions evidence and in the matter of possession of agricultural land such inspection will be of no value. am enquiry conducted at the site by a Court would obviously be improper and contrary to law unless the parties agree to be bound by such procedure."

The above judgment also does not help the appellants.

In the third case, the local Commissioner appointed for demarcation if boundary line, had proceeded to devise a more equitable way of dividing he house which was not approved, being in deviation of the direction issued >y the Court. Such contention, patently, has no bearisig in the present case.

In the last case, local Commissioner was appointed for assessment of unount of compensation under Section 28 of Land Acquisition Act. Jbviously Section 23 of the Land Acquisition Act invests such power unto he Court, and therefore, it was held by the Honourable Judges of the Supreme Court that appointment of local Commissioner for determination of :ompensation amounted to abdication of the power of the Court in favour of Commissioner which was improper and illegal. Again, this case does not ipply to the present matter since the Court had lawfully exercised its power o hold that the appellants were liable for mesne profits and after submission if report by the Commissioner, the learned Civil Judge had applied his mind o the terms of the report. As to the question of notice, suffice to observe that he Commissioner had not issued notice to either of the parties. The equirement for issuance of such notice would have become important, had he report of the Commissioner been taken on record and adopted within urther proceedings. In the present case the Commissioner had examined dmself and could be cross-examined by both or either of the parties. Indeed le was cross-examined by the learned counsel for the appellants. The record urther shows that all the parties were provided ample opportunity to lubmit their objections to the report of the Commissioner. However, despite 'equirement of rule 131(2) Sindh Civil Courts Rules no objections were filed ind the report having been found to be proper and lawful was approved by he learned Civil Judge through order dated 22.1.1980. The above-referred >rder dated 22.1.1980 shows that the report was not adopted mechanically ind the appellants had rather failed to avail the opportunity to question the same during the proceedings. In appeal, party cannot be permitted to fill up acunas and its short-comings. What is required to be see is as to whether on lie material available before the Court, the finding was properly and lorrectly reached ? The learned counsel for the appellants has failed to show iny such defect or error in the impugned judgment and decree. I may )bserve here that the mesne profits have been allowed to the respondents by he learned Civil Judge for a period of 3 years prior to date of institution of he suit. In my view, the respondents would have been entitled to mesne >rofits for the period of 3 years prior to institution of the earlier Suit No. 5 of 1946 i.e. from 31.7.1946 since possession of the subject land was delivered to he respondents on 29.4.1971 and in view of the permission granted to the •espondents vide Judgment dated 30.4.1956 for filing separate suit for mesne >rofits, such period ought to have been treated as period of suspension of the profits, such period ought to have been treated as period of suspension of th{ right to sue for mesneprofits. I have refrained from modifying the decree or the said ground since the respondents hti'w aot filed any cross-objections.

In the result, the appeal fails which is hereby dismissed. However, the respondents shall not be entitled to any cost for the present proceedings since no one had appeared on their behalf at the time of hearing.

(K.K.F.) Appeal dismissed

PLJ 1999 Karachi 189

Present: raja qureshi, J.

Mrs. HAFEEZA BEGUM through her HUSBAND AND ATTORNEY-Appellant

versus

ABDUL GHAFFAR-Respondent

F.R.A. No. 328 of 1991, decided on 24.3.1998.

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—S. 21"Tenant--Ejectnaent of«Default in payment of rent, personal bona fide need and impairing utility of premises-Grounds of-Nuisance must be something which could occasion unpleasant or disagreeable situation- Where nuisance complained of related to small premises not exceeding 80 sq. yards; persons living in those premises having vehicle or two vehicles; same were bound to be parked outside premises in question-Congestion was bound to occur by parking vehicles outside such small houses, but at the same time magnitude of such nuisance and inconvenience could not be of such nature as to warrant eviction of tenant-Landlord had not mentioned even default in his evidence-No evidence was brought on record in support of plea that tenant had converted residential premises into commercial one-Landlord bad failed to substantiate her claim for personal bona fide need-Judgment of Rent Controller refusing ejectment of tenant on basis of evidence on record being based on cogent reasons, would not warrant interference in appeal. [Pp. 191 & 192] A, B & C

Mr. Mustafa Lakhani, Advocate for Appellant. Mr. S.A Ghaffar, Advocate for Respondent. Date of hearing: 24.3.1998.

judgment

Impugned in this appeal is an order passed by the learned Ilnd Senior Civil Judge and Rent Controller, Karachi (East), whereby the application under Section 15 of the Sindh Rented Premises Ordinance, 1979, filed by the appellant has been dismissed vide order, dated 7th May, 1991.

The facts forming the background of this appeal is that the appellant is the landlady in respect of premises, duly reflected in her application, being L-126/1, Block 13-G, Gulshan-e-Iqbal, Karachi and the opponent is the tenant of the said premises. Initially, the disputed premises was stated to have been let out on 11 months' agreement renewable upon request at the monthly rent of Rs. 750 payable in advance on 5th of every calendar month. Upon expiry of the said agreement, the respondent has acquired the status of being a statutory tenant. Grounds seeking ejectment of the respondent urged before the learned Rent Controller were default in payment of rent, personal 1 bona fide need and impairing the utility of the disputed premises. In additio" to these grounds, a ground of nuisance was also agitated before the learned Controller for seeking ejectment of the respondent. On the other hand, the respondent had, before the learned Rent Controller, denied the allegations and took a position that the premises in question being residential in nature , were being utilized as premises for residential purposes and no other , purpose whatsoever.In order to substantiate the contention, the appellant before the learned trial Court had examined as many as four witnesses, namely. Syed ij Idris, Syed Ayub, Muhammad Mohiuddin and Taj Muhammad. On the other o hand, the respondent had examined himself in addition to three other »f witnesses, namely, Ghulam Sarwar, Masroor Hussain and Mirza o Azmatullah. The learned counsel for the appellant has contended before me h that the learned Rent Controller hs misread the entire evidence, which has e resulted into miscarriage of justice and has consequently, arrived at a wrong h conclusion. He has further contended that mere statement of the landlady u would be enough to order eviction of the respondent, which has not been so u done. He has contended that it has transpired in the evidence that has been u brought on record, that the respondent has been managing and operating a u workshop meant for repairs of vehicles, which has created nuisance, iu pollution and also inconvenience to the Namazis, who could only reach the e mosque once they pass through the premises which is being used as a ie workshop. The learned counsel has further contended before me that the h appellant in the cross-examination has asserted personal need and the »r disputed premises are, admittedly, built on 80 sq. yds. In so far as witnesses ui of the appellant namely, Syed Idris and Syed Ayub are concerned, it was •a contended that personal need through them also stands established coupled aiwith the element of nuisance and default. Witness Muhammad Mohiuddin h. was contended before me to be an independent witness. However, he had !0 categorically stated in the cross-examination, that the respondent is not ie carrying on business of a kind like workshop inside or outside the premises. >b When this aspect was confronted to the learned counsel for the appellant, no .h satisfactory answer came forthwith. In so far as prosecution witness Taj h Muhammad is concerned he was also canvassed before me to be an >r independent witness and was stated to have substantiated the contentions of i9the appellant before me. The learned counsel for the appellant has further h contended that conversion of the premises from residential to commercial •ei )r would warrant ejectment and breach of terms of tenancy would also lead to the same consequence in addition to the aspect of nuisance that has been canvassed before me.

On the other hand, the learned counsel for the respondent has submitted that personal bona fide need, as canvassed, has not been substantiated as all documents which have been produced and relied upon by the appellant do not pertain to Plot No. L-126/1, Block 13-G, Gulshan-e-Iqbal but in fact all these documents in terms of electricity bill and other documents pertain to Plot No. L-121, which is the adjoining property of the appellant. In so far as the ground of impairing the utility of the disputed premises is concerned, the learned counsel for the respondent has canvassed before me that had there been any impairment of the disputed premises then there was nothing to prevent the appellant to have sought an inspection of the premises which had neither been done before the learned Rent Controller nor any effort has been made in the said direction before this court. Meeting the allegation of default, made by the appellant, the learned counsel for the respondent has contended that up to the month of July, 1989 rent had been accepted by the appellant, whereas rent in respect of August, 1989 and thereafter, continues to be paid by the respondent in miscellaneous rent case bearing No. 662 of 1989. This position of withdrawing the rent deposited by the respondent, has been confirmed by the learned counsel for the appellant, who has further stated before me that all rents, deposited uptodate have been continued to be withdrawn by them.

I have carefully considered the evidence of the parties, which has been read out in extenso before me, examined the record and the contentions which have been agitated before me. In the first instance, I am of the considered view that nuisance as has been urged before me, has to be a conduct on part of the respondent which could cause injury, damage, hurt, inconvenience, annoyance or discomfort to the appellant in the enjoyment of the appellant's right of person or for that matter the property of the appellant. It has to be something which could occasion unpleasant or disagreeable situation. In order to meet this explanation of nuisance, my reliance would be on the reported judgment 1982 CLC page 332, authored by my brother Naeemuddin, C.J., former late Chief Justice of this Court. I would be failing in my duty if I would not record that at the very outset I had called upon the learned counsel for the appellant before me as to whether he would be satisfied if the respondent is asked to enhance the rate of rent. The learned counsel for the appellant, upon instructions, had stated that he would not be satisfied even if the rate of rent is enhanced. Hence there was no occasion to call upon the learned counsel for the respondent as to what position would be taken by the respondent in this behalf. Keeping in view the fact that these are premises which are small and not exceeding 80 sq. yds. and persons living m these premises having a vehicle or for that matter even two vehicles, the same are bound to be parked outside the disputed premises. Such position has not been denied by any of the witnesses appearing for the parties before the learned Rent Controller, who have categorically said that occupants of 80 sq. yds. property all over the area park their vehicles outside their property. Such being the situation, congestion is bound to occur but at the same time such is the situation of our social fabric ,. lie when small accommodation and large families are living in properties of a \nature mentioned hereinabove. It may appear to be nuisance to any one or it I may, at least, give a cause of inconvenience but magnitude of such nuisance and inconvenience cannot be of a nature to warrant eviction of the ; respondent as a tenant from the disputed premises. Having de?lt with the aspect of default in terms that the appellant has not, in any manner, staled that there was a brake in the receipt of rent for each calendar month towards ' payment of rent by the respondent. Whether the appellant has withdrawn such rent from the miscellaneous rent case or not is an altogether different jt£ I issue, keeping in view the fact that the respondent is already out of pocket of , the amount of rent for each calendar month. Keeping in view also the impugned judgment before me and the reasons assigned in refusing ejectment of the respondent before me, I see no reason for interference in the impugned judgment. Consequently, this appeal fails and First Rent Appeal

No. 328 of 1991 stands dismissed.

(K.KF.) Appeal dismissed.

PLJ 1999 Karachi 192 (DB)

Present: WAJfflUDDINAHMED, C.J. AND

muhammad roshan essani, J.

SHAHID All-Petitioner

versus

KARACHI UNIVERSITY through THE VICE-CHANCELLOR, UNIVERSITY ROAD, KARACHI and 3 others-Respondents

Constitutional Petitions Nos. 20-D and 21-D and Civil Miscellaneous

Application No. 73 of 1998, decided on 2.3.1998.

Pakistan Medical and Dental Council Ordinance, 1962 (XXXII of 1962)--

—S. 33(2)-Petitioners challenging vires of Note (ii) of Regln. 4(1), of Pakistan Medical and Dental Council Regulations, 1965 framed under S. 33(2), Pakistan Medical and Dental Council Ordinance, 1962 on ground •of being unjust, discriminatory, unreasonable, beyond the scope of Authority and in derogation of Fundamental Rights, whereunder any student who failed to clear First Professional M.B., B.S. Examination in four chances availed or unavailed would cease to be eligible for further medical/dental education in Pakistan-Held: Regln. 4(1), Pakistan Medical and Dental Council Regulations, 1965 was, designed to check and safeguard at the earliest occasion all such entrants in medical institutions who did not have aptitude or competence to continue course of study to its conclusion-Neither, therefore, on ground of unreasonableness nor of discrimination or unequal treatment, Regulation in question, could be found to offend nor the same would violate any of the Fundamental Rights or other Constitutional provisions and more particularly Arts. 2A, 4, 8 & 25 of the Constitution. [Pp. 195 & 196] A & B

PLD 1992 Pesh. 52; 1993 CLC 1675; 1994 SCMR 532 ref.

Mr. Shamsuddin Khalid Ahmed, Advocate for Petitioner.

M. Naimur Rehman, Deputy Attorney-General.

M. Sarwar Khan, Addl. A.G., Sindh.

Obaidur Rehman, Advocate for Respondent No. 1.

Muhammad Yasin Kiyani, Advocate for Respondents Nos. 2 to 4.

Date of hearing: 2.3.1998.

order

Wajihuddin Ahmed, C.J.--Shahid Ali and Muhammad Man Iqbal are the petitioners in these two connected petitions. Both of them were ^admitted to the M.B.,B.S. course of the Karachi Medical and Dental College (KMDC) for the 1993-94 session. The first professional M.B.,B.S. examination for the session was held in February 1996. Shahid Ali according to his version, cleared the theory part of the three major subjects but failed in viva. The second chance was the supplementary examination held in August 1996, where Shahid Ali again failed to qualify the viva in physiology, getting 26 out of 200 marks. He availed the third opportunity in the paper of Physiology in the annual examination held in January 1997. Again he cleared the theory part but was unsuccessful getting 65 out of 200 marks in the practicals. Shahid Ali's fourth chance was in August 1997, through the relevant supplementary examination, but he again plucked in the physiology practical getting 40 out of 200 marks. The position of Muhammad Man Iqbal is more or less similar. He says that, while he was unwell in the January 1996, examination, he attempted all the papers hut failed to make it in most of the subjects. In the supplementary of August 1996, Muhammad Man Iqbal cleared the theory part of Physiology and practical part of Anatomy but did not make the rest of each paper and was declared failed. He is stated to have lost the third chance because of serious sickness, but concedes that he appeared in the theory parts of Anatomy and Physiology though without success. As regards the final opportunity in the August 1997, Supplementary Examination, it is said that he is a nervous student and victim of circumstances which included domestic problems with the result that he failed to qualify in the practicals of Anatomy and Physiology. Both the candidates thereafter made representations but predictably without success. They have approached this Court challenging the vires of Note (ii) of Regulation 4(1) of the Pakistan Medical and Dental Council Regulations framed under Section 33(2) of the Pakistan Medical and Dental Council Ordinance, 1962, on the grounds of being unjust, discriminatory, unreasonable, beyond the scope of authority and in derogation of the Fundamental Rights. For the sake of convenience, Section 33(2) and Note (ii) of Regulation 4(1) are reproduced hereinbelow:

"33. Power to make Regulations.-(l)................................

(2) Notwithstanding anything contained in sub-Section (1) the Council shall make Regulations which may provide for:

(a) Prescribing a uniform minimum standard of courses of training for obtaining graduate and post-graduate medical and dental qualifications to be included or included respectively in the First, Third and Fifth Schedules;

(b) Prescribing minimum requirements for the content and duration of courses of study as aforesaid;

(c) Prescribing the conditions for admission to courses of training as aforesaid;

(d) Prescribing minimum qualifications and experience required of teachers for appointment in Medical and Dental Institutions;

(e) prescribing the standards of examinations and other requirements to be satisfied for securing recognition of medical and dental qualifications under the Ordinance;

(f) prescribing the qualifications and experience required of examiners for professional examinations in medicine and dentistry antecedent to the granting of recognised medical qualifications;

(g) registration of medical and or dental students at any medical or dental college or school or any university and the fees payable in respect of such registration."

Note(ii):.................... Any student who fails to clear First Professional M.B., B.S. Examination in four chances availed or unavailed shall cease to be eligible for further medical/dental education in Pakistan."

The reproduced Note (ii) of Regulation 4(1) of the Regulations for the degree of Bachelor of Medicine and Bachelor of Surgery (MBBS) or equivalent thereof has frequently come up for judicial scrutiny. Some of the reported dicta include Asim Siddique v. PrincipalAM. College, PLD 1992 Peshawar 52, Zubair Ishtiaq Qureshi v. The Chairman of Academic Council and Principal Sindh Medical College, 1993 CLC 1675, a decision of this Court, and Akhtar Ali Javed v. Principal, Quaid-i-Azam Medical College, Bahawalpur, 1994 SCMR 532. The Peshawar and Karachi decisions lay down that the provision has to be beneficially construed and if a deserving case for being relieved of the rigours of the rule is made out by an affectee student, the given matter may require due scrutiny and examination at the appropriate level. In Akhtar Ali Javed's case, the Supreme Court found an equivalent provision in the prospectus of the Quaid-i-Azam Medical College Bahawalpur, not to impinge upon the right of a student to pursue the course of study in a medical institution and observed that, on the contrary the rule assured the arrest of falling standards in education. On our part, in some cases and particularly the unreported cases of Miss Shaheen Akhtar v. The Principal, Dow Medical College and Amema Naeem Sharwani v. The Principal Sindh Medical College, Civil Petitions Nos. D-75-76 of 1998, we, while interpreting the preclusion in the rule, came to the conclusion that to qualify for relief and correspondingly for relaxation of the rule, a genuine case, promptly made-out, showing the existence of factors beyond the control of the affectee, has invariably to be made-out. In other words, there was no room for after-thoughts or conjured upon belated pleas to qualify for relief either at the level of the college or university authority or of the Court. Applying such dicta, we find that none of the petitioners here laid any foundation whatsoever for condonation in his case. The petitions themselves were not filed earlier than 9.1.1998 when the last result was probably declared in October 1997, such a case requiring, as already said, all promptitude. Since, perhaps, the petitioners were aware of the frailty of their cases, they have adopted the other course for challenging the vires of the regulation itself.

Emphasis as regards purported unreasonableness and alleged artificial classification, irreconcilable with rationality or justice, has been laid largely on pleas that such a disqualification as is postulated in the applicable clause of the regulation is peculiar to the first professional examination and no similar check is envisaged for subsequent years of the study. We have been fully convinced that no violation of Fundamental Rights including unequal treatment or discrimination is involved in the application of the rule. On the contrary, the provision is designed to check and safeguard at the earliest all such entrants in Medical Institutions as do not have the aptitude or the competence to continue the course of study to its conclusion. The first such hurdle is provided at the admission stage itself when students are required to be possessed of a minimum percentage of marks to secure entry and there as well an open competition on merit is to take place, the last successful candidate often averaging much higher than the minimum qualifying requirement. The second check occurs at the level of the First Professional M.B., B.S. Examination which takes place after two years of internment. There, as well, no less than four attempts are provided and what is more such attempts, in relation to a failed student, do not involve appearance in all the subjects or papers but merely in those in which the student has failed to make the grades. Normally, if the affectee does not clear even after such a number of attempts, in spite of being one of the better qualified from amongst those who where initially seeking admittance, there must be something wrong somewhere and seriously at that. In our opinion, once the first professional examination is cleared, there remains no further need for any additional constraint and no in-equality occurs on account of non-making of such a provision. Neither, therefore, on grounds of reasonableness nor of discrimination or unequal treatment the rule in question can be found to offend. It does not violate any of the Fundamental Rights or other constitutional provision and more particularly Articles 2A, 4, 8 and 25 on which some emphasis was laid by Mr. Shamsuddin Khalid Ahmed, the petitioners' learned counsel. As to competence Section 33(2) (c) of the Ordinance is the answer.

These were the reasons on account of which through a short order, dated 26.2.1998 we had dismissed the above petitions.

(K.K.F.) Petition dismissed.

PLJ 1999 Karachi 196 (DB)

Present: syed deedar hussain shah and syed saeed ashhad, JJ.

Messrs CROWN CONSTRUCTION SERVICES and another-Petitioners

versus

Mst. NASREEN BEGUM and another-Respondents

Constitutional Petition No. D-787 of 1990, decided on 6.6.1998.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

—S. 14-Constitutional petition u/A 199--Family matters-Revision before Civil Court whether justified-Respondent (mother) was appointed as guardian of minor children and their property-Respondent, thereafter, entered into sale agreement with regard to property of minors-Family Court finding agreement of sale against interest of minors, allowed inquiry in the matter-Respondent approached District Court by filing civil revision against order of Family Court below despite order of Family Court did not adversely affect interest of respondent-Revision against order of Family Court being not permissible under S. 14 of West Pakistan Family Courts Act, 1964, order of Family Court allowing inquiry in the matter was proper and within four corners of jurisdiction vested in Family Court-Order passed by District Court on revision filed by respondent/guardian was without jurisdiction and was liable to be set aside, in circumstances. [Pp. 200 & 201] A & B

PLD 1972 Kar. 410 ref.

Mr. Akhtar Hussain, Advocate for Petitioner. Mrs. Surraiya Rahim, Advocate for Respondents. Date of hearing: 14.5.1998.

judgment

Syed Deedar Hussain Shah, J.--On 14.5.1998 after hearing learned counsel for the parties, we by short order have allowed the petition, set aside the order passed by the learned Vllth Additional District Judge (South) Karachi, dated 26.5.1990 and remanded the case to the learned Vllth Senior Civil Judge at Karachi for holding inquiry as per the order, dated 7.11.1989.

We now hereby assign reasons for the short order. Brief facts of the matter are as follows:-

Mst. Nasreen Begum widow of Abdul Baqi, Respondent No. 1, filed application for appointment of Guardian for the property and minors before the Vllth Additional District Judge, South Karachi being application No. 79 of 1989. The applicant averred that she married with late Abdul Baqi son of Mian Khan according to Muslim Law and out of the above wedlock 7 children were born. The names and ages of the children are as follows :-

(i) Huma daughter of Abdul Baqi aged 17 years

(ii) Humera Daughter of Abdul Baqi aged 16 years

(iii) Abdul Jabbar Son of Abdul Baqi aged 14 years

(iv) Mehnaz Daughter of Abdul Baqi aged 13 years

(v) Mian Khan Son of Abdul Baqi aged both are twins

and aged about 11 years

(vi) Nawab Khan Son of Abdul Baqi

(vii) Essa. Son of Abdul Baqi aged 6 years

That husband of the applicant and father of the minors late Abdul Baqi died at Karachi on 14.2.1983 due to Cardiac failure. Prayer of the application was as follows :--

"It is, therefore, prayed that the applicant be appointed as guardian of said minors as stated in para. 1 herein and of their property i.e. their legal share in Plot No. 57/1, Garden West, Karachi inherited by them from their deceased father.

Any other relief/relivers which this Honourable Court may deem fit and proper under the circumstances of this case."

In pursuance to the above application learned Vllth Senior Civil Judge at Karachi while haring the Guardians and Wards Application No. 170 of 1989 was released to appoint the petitioner as guardian of the property of the minors vide order, 11.7.1989.

Mst. Nasreen Begum approached the learned Vllth Senior Civil Judge, Karachi for seeking permission for sale of the properly of the minors. Learned Vllth Senior Civil Judge allowed the application vide order, dated 9.9.1989. On 17.9.1989 on Afzal son of Musti Khan one of the parties of Intervenors of Messrs Crown Construction Services submitted application under Order 1, Rule 10 read with Section 151, C.P.C. requesting therein to be impleaded as party to the proceedings. The application was supported by affidavit sworn by Afzal Khan. Another application under Order XXXIX, Rules 1 and 2 read with Section 151, C.P.C. was filed on behalf of the Intervenor praying therein that the petitioner/Guardian of the minors and Nazir of the Court may please be prohibited and restrained from entering into sale of executing the sale-deed for the share of the minors in respect of the property. This application was also supported by affidavit sworn by Afzal S. Masti Khan.

There is a report of Nazir, dated 18.9.1989 stating therein that in compliance of the order, dated 9.9.1989 passed by the Court, on 17.9.1989 the Nazir executed the sale-deed on behalf of the minors before the Sub-Registrar. Thereafter, on 24.9.1989 application under Section 151 read with Section 12(2), C.P.C. was filed with the prayer, to recall/set aside the order of sale of the property of minors bearing Property No. 57/1, Garden West, Karachi to Khuda Bux Chandio on the ground that the orders have been obtained by playing fraud upon the Court, against the interest of the minors by suppression of facts and misrepresentation and to revoke the said sale after holding inquiry and further to restrain the Sub-Registrar, "T" Division VI, Lyari, Karachi from further proceeding with the Registration or creating any encumbrance on the said property and from handing over the document/sale-deed to purchaser Khuda Bux Chandio in the interest of justice. The application was supported by affidavit of Afzal Khan. Counter-affidavit to this application was filed by Mst. Nasreen, mother of the minors and the Respondent No. 1.

After hearing the learned counsel for the parties learned Vllth Senior Civil Judge vide order, dated 7.11.1989 allowed the application with the following observation :-

"The point which requires further inquiry in this case is that the applicant through Nazir nas sold out the share of the minors at the rate of Rs. 960 per sq. yard whereas clause (4) of Annexure 1/2 show that Rs. 1,200 per Sq. yard, was the consideration in the year 1980. It is alleged that the applicant even after the death of her husband has taken some amount in lieu of the share consideration executed during life time of her husband Abdul Baqi. The interest of the minors is involved in the property in question which requires further inquiry. Accordingly this application is allowed let this case be kept for further proceedings."

Being aggrieved and dissatisfied with the above order Mst.Nasreen Begum, Respondent No. 1, filed Civil Revision No. 79 of 1989 before the learned Vllth Additional District and Sessions Judge, Karachi South. The learned Vllth Additional Sessions Judge by order, dated 26.5.1990 allowed the revision application observing as follows :-

"Hence I find that intervenor's application is not proper and the order does not appear to be lawful and as such order, dated 7.11.1989 is hereby set aside. Proper remedy for the intervenor is to invoke appropriate jurisdiction of the Civil Court for getting the redress, if the had any privacy of the contract. With these direction appeal is allowed with no order as to costs."

The above order has been agitated through this Constitutional petition, Mr. Akhtar Hussain, learned counsel for the petitioner, has contended that the order, dated 26.5.1990 passed by the learned Vllth Additional District Judge, South Karachi is illegal and without jurisdiction. That the provisions of Code of Civil Procedure in this matter are not applicable. According to Section 14 of the Family Courts Act, the decision and the decree passed by the Family Court shall be appealable: -

"(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge of any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and

(b) to the District Court, in any other case."

That the jurisdiction exercised by the learned Vllth Additional District Judge is unwarranted. That the orders of the sale of the property of minors were obtained by fraud and suppression of the material facts from the Court of the learned Vllth Senior Civil Judge and when it came to know that fraud has been committed and since the interest of the minors are involved in the property in question, therefore, the learned trial Court ordered inquiry in the matter and the case was kept for further proceedings.

Mr. Akhtar Hussain has cited PLD 1972 Kar. 410.

Mrs. Surriya Rahim learned counsel for the respondent has contended that out of the 7 minors six have attained majority and they have already compromised with the party to whom their mother sold away the property and only one Essa is minor as yet and after two years he will also attain majority. That the order of the learned Additional District Judge, South Karachi is liable to be maintained.

We have gone through the material placed with the case. Admittedly, the Respondent No. 1 was appointed as Guardian of the minors and their property being their real mother. She entered into sale agreement which according to the order of the learned Trial Court, prima facie, appears to be against the interest of the minors and as required under the law allowed inquiry in the matter and kept the case for further proceedings. By this order admittedly, interest of the Respondent No. 2 in any case was not adversely affected even then she approached the learned Vnth Additional District Judge, South Karachi, through civil revision application.

In view of the provisions of Section 14 of the Family Courts Act, referred to hereinabove, in any case even revision application against the above order is not permissible, however, the provisions of Code of Civil Procedure under the Family Court Act are not applicable. In PLD 1972 Kar. 401, a reference was placed before the learned Full Bench of this Court ^ consisting of Mr. Justice Dorab Patel, Mr. Justice Muhammad Haleem (as their Lordships then were) and Mr. Justice Ghulam Rasool K. Shaikh, J. to this effect: -

"In a decision by the Family Court under the Guardians and Wards Act where the Presiding Judge is not a District Judge or one of equivalent rank does an appeal lie at all and, if so, to which forum?

After hearing the learned counsel for the parties, Mr. Fakhruddin G. Ibrahim, Mr. A.K. Lakhani and Mr. Ajmal Mian as Amicus curiae and after — perusal of palethora of case-law, learned Full Bench of this Court was pleased to observe as under: -

"An appeal against a decree or decision of a Family Court under the Guardians and Wards Act, when its Presiding Judge is not a District Judge or a Judge of equivalent rank, lies to the District Court and not to this Court."

Their Lordships further observed:-

"As the Civil Procedure Code is not applicable to proceedings under the said Act, the revision is not maintainable. Further, as the case itself has been referred to us, the revision is dismissed with costs."

We would like to refer to a reported case decided by a learned D.B. of this Court of which one of us was a member.

The pronouncement made in this case is that when an allegation of fraud or cheating is, made by any of the parties to a proceeding pending in a Court in obtaining an order from such Court then it becomes incumbent ^ upon the Court to hold an inquiry into the allegation of fraud and cheating and set aside the order if it is found to have been obtained by playing fraud on Court as fraud and cheating renders the most solemn transactions as illegal and null void. It was further declared that a Court of Tribunal not vested with the power of revising, reviewing or recalling its order would become entitle to exercise the aforesaid powers for recalling, revising or

setting aside an order obtained by fraud. It will be appropriate to reproduce the relevant portion from the aforecited authority, which is as under:-

"It has been generally held that fraud vitiates the most solemn of the transactions and renders the same as voidable and a nullity in the eye of law and it was necessary to examine the plea of fraud with a view to determine the possibility of commission of fraud by the above respondents and its effect on the alleged transfer of the common open passage in favour of the above three respondents."

Since the revision application against the order of the learned Family Court Judge is not permissible, the order of the Family Court Judge, dated 7.11.1989 allowing the inquiry in the matter was proper and within the four corners of the jurisdiction vested with the Court. The impugned order passed by the Vllth Additional District Judge appears to be without jurisdiction which is liable to be set aside. The case-law referred by Mr. Akhtar Hussain is relevant, applicable and helpful to the case of the petitioner whereas the decision of learned D.B. of this Court referred to hereinabove is also applicable to this matter.

For the facts, circumstances and case-law, we allow the above petition, set aside the order of the learned Vllth Additional District Judge, South Karachi, dated 26.2.1990 and remand the same to Vllth Senior Civil Judge, Karachi South for holding inquiry as per the order, dated 7.11.1989.

(K.K.F.) Petition allowed

PLJ 1999 Karachi 201

Present: dr. ghous muhammad, J.

Mst. JAMEELA BEGUM through his LEGAL HEIRS and another-Applicants

Versus

MUHAMMAD SIDDIQ and 3 others-Respondents

Rev. Appl. No. 19 of 1996, decided on 20.3.1998.

Civil Procedure Code, 1908 (V of 1908)--

—Ss. 12(2) & 115-Application for setting aside decree got on ground of fraud of which petitioner had to vacate premises in question which they claimed to have purchased—Petitioners were although in possession of such premises yet they were not party to suit-Petitioner's application under S. 12(2), C.P.C. was dismissed-Status-Objections raised by petitioners pertained to jurisdiction, limitation and fraud which coulil not be dismissed in a slipshod manner-Petitioner was under no obligation to supply photo copies of case-law-Once particular citation was referred to, onerous duty was cast upon Judge to have taken pains to scrutinize such case-law and discuss the same in the order-Even if counsel of any party could not cite relevant provision of statute and case-law on the subject, it was duty of Judge to decide matter in question justly by applying correct law-Impugned order whereby petitioner's application under S. 12(2), C.P.C. was dismissed was set aside-Case remanded. [Pp. 206 & 207] A, B &C

PLD 1992 SC 263; PLD 1969 SC 278; PLD 1965 SC 690 and PLD 1995 SC 362 ref.

Mr. Hussain Shaikh, Advocate for Applicants.

Mr. Jamil Ahmed, Advocate for Respondents..

Mr. M. Ikram Siddique, Advocate for Respondent No. 4.

Date of hearing: 6.3.1998.

judgment

The applicants are aggrieved by the order, dated 2.11.1995 whereby their application under Section 12(2) read with Section 151, C.P.C., which they had moved as intervenors in Civil Appeal No. 85 of 1987 was dismissed by the learned 3rd Additional District Judge, Karachi, East (Mrs. Akhtar A. Choudhry) and in Execution Application No. 11 of 1993 they were dispossessed from the suit property.

Briefly stated the factual background of the matter is as follows:

According to the applicants who are mother and daughter respectively they are Pardanasheen, ladies. In good faith they purchased and held possession of residential Quarter No. N-79 measuring 120 sq. yards situate in Korangi Township (hereinafter referred to as the suit property). It is alleged that originally one Imamuddin son of Sharafuddin had acquired the suit property on 14th May, 1981 from the K.D.A. He sold it to Ghulam Mqhiuddin Qureshi vide registered sale-deed No. 591, dated 19th January, 1984. Then the latter sold the suit property through his general attorney Syed Anwar Ali to Muhammad Jamil and Mst. Nasreen Bano (the Applicant No. 2) for Rs. 48,000 vide registered sale-deed No. 267, dated 24.1.1987 and delivered vacant possession of half portion measuring 60 sq. yards to Muhammad Jamil and the remaining half portion to Mst.Nasreen. Later on Muhammad Jamil sold his half portion for Rs. 30,000 to Mst. Jamila Begum (the Application No. 1) vide registered sale-deed No. 4240, dated 7.11.1988 and delivered vacant possession to her. This is how the two applicants alleged to have become absolute the exclusive owners in possession of the suit property. However, on 28.9.1994 without any notice or opportunity of hearing they were dispossessed. It is their case that for the first time they came to know about any pending proceedings when they were being dispossessed by the bailiff with the assistance of the Police Party. Therefore, they engaged a counsel who informed them about Civil Suit No. 1116 of 1985 (Old No. 1332 of 1982) filed by the Respondent No. 1 (plaintiff) in the Court of learned XX-Civil Judge/VI-Senior Civil Judge, Karachi, East against the Respondents Nos. 1 to 3 for the following reliefs:-

"(1) For a declaration that the plaintiff is the real allottee of Quarter bearing No. N-79, Korangi Township and the plaintiffs deceased wife namely Mst. Siddiqan was only an ostensible allottee during the absence of the plaintiff from Karachi.

(2) For a declaration that all acts, deeds and things of the Defendants Nos. 1 and 2 in respect of plaintiffs Quarter bearing No. N-79 Korangi Township, Karachi with the help of Defendant No. 3 for the transfer of aforesaid quarter and its subsequent lease in the name of the Defendant No. 2 are bad, illegal malicious and of no legal effect and consequence being based on fraud and misrepresentation of facts and without nay consideration.

(3) For a permanent injunction restraining the defendants their servants men and agents from dealing in any manner. Selling, alienating and/or transferring the said quarter to anybody else."

The suit was dismissed by the learned Vlth Senior Civil Judge vide judgment, dated 4.7.1987. Respondent No. 1 filed Civil Appeal No. 85 of 1987 which was dismissed by the then learned Ill-Additional District Judge, Karachi East on 11.8.1988. The Respondent No. 1 preferred Civil Revision No. 262 of 1988 against the impugned judgment on 14.3.1991 which was allowed and the matter was remanded by this Court. The operative part of the judgment reads as under:

"The oral move for amendment to insert the bare prayer of possession, being free of any technicalities or complications, is, therefore, taken-up in the interest of justice and allowed by consent. Amended plaint to be submitted before the learned lower Appellate Court within one month with a right to the responding parties to submit adequate written statement(s) all of which being done additional evidence, slight, if any as it should be, may be recorded from the side of such party, as chooses to adduce it. The option to remand the case to the learned Appellate Court has been exercised so as to avoid unnecessary delays, since this is an old controversy and requires to be sorted out expeditiously.

Accordingly and by consent the above revision application is disposed of in terms foregoing."

After remand the matter was heard and this time appeal of Respondent No. 1 (Appeal No. 85 of 1987) was allowed on 31.5.1993 by the then learned Ill-Additional District Judge, Karachi East (Ms, Scfia Latif) and the suit was decreed. Thereafter, in execution proceedings (Application No. 11 of 1993) writ of possession was issued against Respondents Nos. 2, 3 and 4 (J.Ds) on 29.8.1994 which resulted in dispossession of the applicants. Both the applicants filed application under Order 12(2) read with Section 151, C.P.C., in October 1994 but that was dismissed by the learned ffl-A.D. J. vide the impugned judgment which is subject-matter of the instant revision. Since the points urged in the revision require consideration, therefore, it is admitted for regular hearing.

I have heard Mr. Hussain Shaikh learned counsel for the applicants and Mr. Jamil Ahmed learned counsel for Respondents Nos. 1 to 3 at length. They have submitted detailed written arguments as well as the case-law in support of their respective submissions which are summarised as follows:

Learned counsel for the applicants submitted that the learned Additional District Judge exercised jurisdiction illegally and with material irregularity inasmuch as the impugned order is not based on any evidence admissible in law and is based on inadmissible evidence. He also submitted that the impugned order being fanciful and perverse has resulted in miscarriage of justice.

Learned counsel for Respondent No. 1 while supporting the impugned judgment/order submitted, inter alia, that no fraud, misrepresentation and/or want of jurisdiction has been claimed or asserted by the parties in the original suit as well as in appeal, therefore, the judgment/decree as well as the impugned order have attained finality. Furthermore, the applicants have no legal character whatsoever and no application was ever filed by them under Order 1, Rule 10 C.P.C.

Learned counsel for the Respondent No. 4 submitted that essentially the dispute is between the applicant and the Respondents Nos. 1 to 3. Therefore, Respondent No. 4 has nothing to do with the said dispute.

Keeping in view the order which I propose to pass it would not be just and proper to make any comment on the merits of the controversy between the parties. In the impugned order the learned Appellate Court has observed, inter alia, as follows:

"Learned counsel appearing on behalf of both the intervenors has argued that actually the possession of the suit quarter was with intervenors and they were residing in the said quarter and they have no intimation of any litigation in-between the appellant and respondent. It is further added that the intervenors came to know about litigation in between the appellant and respondents when they were ejected from the said premises then they have filed their present application under Section 12(2) read with Section 151, C.P.C. The I?arned counsel appearing on behalf of intervenors has relied upon various rulings with regard to limitation, infructuous and being not party to the suit jurisdiction, fraud etc. But the learned counsel for the intervenors has failed to produce photo copies of the above citations or books for the study of same. (Underlining is supplied).

The intervenors abovenamed have not filed any cogent or independent evidence to believe that they were in possession of the portion of disputed quarter except photo copy of sale-deed and General Power of Attorney. It is not believable that during the long period of litigation, which is in respect of property in question intervenors remained unaware. The intervenors have also not discussed about their relationship with each other. The property in question now has been sold out and possession has also been handed over to the new purchaser. The intervenors also remained silent during the execution proceedings, if at any instance they are in possession of the suit property, they had to approach to the Court during the course of execution proceedings but on this aspect both the intervenors remained silent, hence these applications under Section 12(2), C.P.C. filed after about 2 years. Further the intervenors have also not filed any General Power of Attorney of Mr. S. Ikhlaque All, nor they have filed any legal proceedings against Muhammad Jamil from whom 60 sq. yards of the said quarter said to be purchased by the intervenor Mst.Jamila Begum. Likewise another sale-deed is also there dated 23.5.1991 which also speaks the same fact. Except abovesaid documents no other proof is placed on record to prove that actually the intervenors remained in possession of the disputed property.

From the documents placed on record, it appears that no fraud has been committed by the plaintiff/appellant and whatever has been weighted in due course of law and in the light of evidence which was placed on record. Further, the possession of the suit property is with another person whose name had not been discussed here. However, it is not proved that Muhammad Siddiq has committed any fraud or obtained judgment, dated 31.5.1995 by playing fraud or misrepresentation of facts.Therefore, in view of my above discussion, I see no merits in the application under Section 12(2) read with Section 151, C.P.C. filed by intervenors Mst. Jameela Begum w/o Iqbal Ahmed and Mst. Nasreen Begum w/o Laiq Ahmed and consequently both applications stand dismissed with no orders as to costs."

In my humble opinion the learned Additional District Judge has materially erred in failing to cite and consider the case-law relied upon by the learned counsel for the intervenors on the ground that photo-copies of such citations were not given by the counsel. The objections raised by the learned counsel pertained to jurisdiction, limitation and fraud which the learned Appellate Court could not dismiss in such a slipshod manner. To start with the counsel was under no obligation to supply photo-copies of the case-law. Once particular citations were referred to, an onerous duty was cast upon the Judge to have taken the pain to scrutinize such case-law and discuss the same in the order. In fact, the law on his score is very stringent. Even if the counsel does not cite the relevant provisions of the statute and the case-law on the subject, it is the duty of the Judge to decide the matter justly by applying the correct law. Since the Hon'ble Supreme Court in Board of Intermediate and Secondary Education, Lahore v. Mst. Salma Afroze PLD 1992 SC 263 has categorically held that although failure of the counsel to bring to the notice of the Court the law laid down was not a good service rendered by the counsel to the client, the Judge was supposed to wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise the Judge was not a complete excuse in the matter. The Hon'ble Supreme Court while deciding this case placed reliance upon its earlier decision in Muhammad Sarwar v. The State PLD 1969 SC 278 wherein Muhammad Yaqoob Ali, J. (as he then was) had observed:

"It appears that the learned Judges were not properly advised, but it falls to be said that there is a well-known adage that a Judge must wear all the laws of the country on the sleeve of his robe." (At page 292)."

Comparable views were earlier expressed by the Hon'ble Supreme Court in Haji Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690 (at page 696) wherein it was held that it was the duty of the Court itself to apply the law; a party was not bound to engage a counsel; and whatever law became applicable on the admitted or proved facts law has to be given effect to whether or not it had been relied upon by a party. Recently the Hon'ble Supreme Court in Ali Khan & Co. v. Allied Bank of Pakistan, PLD 1995 SC 362 had gone to the extent of holding that the Court has to apply its mind before passing any order or judgment notwithstanding the factum that no person appeared before it to oppose such an order or that the person who wanted to oppose was not allowed to oppose because he failed to fulfil the requirements of law. In the ultimate analysis it is the duty of the Judge to apply the correct provisions of the statute and the case-law to the facts of the case.

In view of the above, this revision is allowed to the extent that the impugned order is set aside and the case is r^m^nded back to the learned Appellate Court with directions to decide the matter afresh according to law after scrutinising the case-law cited, discussing the same in the order and apply the correct law on the facts of the case. The parties and their learned counsel should also be given fair and reasonable chance of hearing. Since this is an old matter, the learned Appellate Court is directed to dispose of expeditiously preferably by 30th June, 1998.

(K.K.F.) Revision accepted.

PLJ 1999 Karachi 207

Present: hamid alt MlRZA, J. Mst. NOOR BIBI and 6 others-Applicants

versus

KARACHI MUNICIPAL CORPORATION and another-Respondents

Civil Revisions No. 47 and 48 of 1994, decided on 12.2.1998.

Transfer of Property Act, 1882 (Act of 1882)-

—S. 105—Plaintiff being licensee was authorised to enter upon land and raise construction thereon in accordance with approved plan of Authority and thereafter, he was to be granted lease—Licensee could have no right or interest in land in question until he could get leasehold rights over such land subject to fulfilment of conditions mentioned in agreement between plaintiff and defendants-Such conditions having not yet been fulfilled by plaintiff in respect of plot in question, suit filed by him against rival claimants (defendants) for possession thereof, was not maintainable in law-Court below having misread evidence on record, their finding based thereon, amounted to illegality, therefore, same were set aside.

[Pp. 210, 211 & 212] A, B & C

AIR 1927 All. 633; 1987 SCMR 1115; (1889) 42 Ch. D. 561; AIR 1926 Oudh 609; AIR 1960 Pat. 498 and AIR 1916 All. 219(2) ref.

Mr. Shamdas B. Changani, Advocate for Applicants. Nemo for Respondent No. 1.

Mr. Abdul Karim Siddiqi, Advocate for Respondent No. 2. Date of hearing: 12.2.1998.

judgment

These two civil revision applications under Section 115 of C.P.C. arise out of a common judgment passed in Civil Appeals Nos. 172 and 173 of 1989 whereby the judgment and decree passed in Suit Nos. 1114 of 1970 and 728 of 1973 were maintained and appeals filed by the applicants were dismissed hence the present revision applications.

The brief facts of the case are that Suit No. 1114 of 1970 was filed by the predecessor-in-interest Ghulam Rasool of the present applicants for declaration and injunction that the allotment made in favour of Respondent No. 2 in respect of the land in dispute by Respondent No. 1 was illegal, without jurisdiction and not binding upon the applicants' predecessor-in-interest and further that the respondents be restrained from disturbing their peaceful possession over the plot in dispute on the ground that they were in possession of the same since long.

The Respondent No. 2 filed Suit No. 728 of 1974 for possession of the suit plot and mense profits on the ground that the said plot was allotted to him by K.M.C. as per resolution No. 370 dated 12.5.1967 for which he had paid occupancy value at Rs. 150 per square yard and the K.M.C. executed a regular agreement of licence in From A/1, dated 10.12.1968 in his favour and permitting him to enter upon the 'and in dispute and construct a building thereon whereafter the K.M.C. Respondent No. 1 would grant 99 years lease of the suit plot. In para. 7 of the said plaint the Respondent No. 2 stated that in about January, 1970 when he wanted to enclose the suit plot with a boundary wall went there when applicant/defendant in the said suit interfered and disturbed his possession claiming right of entrance of his Gate through the suit land. In para. 9 of the said plaint the Respondent No. 2 stated that in May, 1971 the applicants' predecessor-in-interest occupied the suit plot and on 27.5.1970, he filed Suit No. 1114 of 1970 in the Court of Civil Judge First Class, Karachi for declaration and injunction. Both suits were consolidated, when Suit No. 1114 of 1970 and leading thereafter consolidated issues were settled and evidence of parties was recorded and after hearing the counsel for the parties, the Court of learned End Senior Civil Judge, Karachi East, dismissed the Suit No. 1114 of 1970 while decreed the Suit No. 728 of 1974 filed by Respondent No. 2. Thereafter the predecessor-in-interest of the applicants preferred Appeals Nos. 172 and 173 of 1989 before the District Court, Karachi East, which were transferred, heard and disposed of by Illrd Additional District Judge, Karachi East, whereby the dismissed both the appeals and maintained the judgments and decrees passed by learned trial Court.

The learned counsel for the applicants main legal plea raised is that as per Exh. 7 Form A/1 the Respondent No. 2 Anwar Baig being a licensee, would acquire the rights of lease on the completion of building in accordance with the terms and conditions of Exh. 7 licence agreement of the plot in dispute for the period of 99 years and till such time, Mr. Anwar Baig the Respondent No. 2 would remain licensee of K.M.C. Respondent No. 1 and Respondent No. 2 would have no right or interest in the plot, therefore being a licensee, the Suit No. 728 of 1974 for possession filed by the Respondent No. 2 Mr. Anwar Baig was not maintainable. In support of his contention he has placed reliance upon (i) Manbahal Rai and others v. Ram Ghulam Pandey (AIR 1927 All. 633), (ii) Ghulam Hussain v. Fateh Muhammad and 9 others (1987 SCMR 115) and (iii) Muhammad Sharif v. Mehbub Alam and 4 others (1992 MLD 37). So far the reliance prayed for in Suit No. 1114 of 1970 the learned counsel for the applicants submitted that because the applicants were in possession of the disputed plot since last many years, therefore, the lease of the same should have been granted to the predecessor-in-interest of the applicants and not to the Respondent No. 2 who was not in possession of the same.

Learned counsel for Respondent No. 2 has argued that as per Exh. 7 From A/1 the respondent was granted the disputed plot by K.M.C. and he was authorised to enter upon the land and construct the building thereon for which he had paid the occupancy value and, in fact, Exh. 7 Form A/1 was a lease document and treating the same as license would be a misnomer hence the respondent was competent and entitled under the law to sue the applicants' predecessor-in-interest for possession who had illegality encroached upon his land, therefore, the Suit No. 728 of 1974 was maintainable. He has placed reliance upon (i) Abdullah Bhai and others v. Din (PLD 1964 SC 106), (ii) Haji Noor Muhammad and others v. Karachi Development Authority and 2 others (PLD 1975 Kar. 373) and (iii) Nasira Sultana v. Kabib Bank Ltd. and others (PLD 1975 Kar. 608) in support of his contention.

Admittedly, so far the Suit No. 728 of 1974 is concerned the Respondent No. 2/plaintiff in the said suit, has filed suit for possession on the basis of Exh. 7 Form A/1. On perusal of the said document Exh. 7, it would appear that the Respondent No. 2/plaintiff in the suit has been named as a licensee while the K.M.C. Respondent No. 1 has been named as licensor in the said document. Throughout Exh. 7 Form A/1 the Respondent No. 2 has been termed as licensee whereas Respondent No. 1 has been termed as licensor. At page 2 of Exh. 7 Form A/1 it runs :--

"................ for the purpose of constructing building thereon in accordance with the subject to the said terms and conditions referred to above, and appended herewith which shall be deemed to form part of and be incorporated in this agreement and it is hereby agreed that on the competition of the building in accordance with the said terms and conditions and on the licensee complying with the said rules the licensee shall be entitled to a lease of the said plot for a term of 99 years and it is hereby further agreed that till such lease has been granted by the licensors the licensee shall not have any right or interest in the plot except that of a bare licensee."

From the above it would appear that the Respondent No. 2/plaintiff in the said suit was not conferred any right or interest in the plot in question except that of a bare licensee who was authorised to enter upon the land and to raise building in accordance with the approved plan and the right to lease was to be conferred only on fulfillment of conditions. It I is admitted position that so far lease has not been executed in favour of 'the Respondent No. 2/plaintiff in respect of suit plot. In Manbahal Rai's (AIR 1927 Allahabad 633) learned Judge in Chambers has observed that "a licensee passes no interest in immovable property to the licensee, but only makes an action lawful which, without it, would have been unlawful. That being so, by the licence granted to the licensee acquire no interest in the site, the subject-matter of the dispute. The were authorized by the license simply to build over the site in dispute. The licensee, not having any interest in the site, could not maintain an action for possession of the same in their own name". In Muhammad Sharif s (1992 MLD 37) case it was a case in respect of land which was auctioned and the appellant being highest bidder, was transferred the same as per sale-deed when the respondents filed the suit for declaration and they were owners in possession. The contention in the said appeal before the High Court was that the agreement Exh. 3 was void being in violation of Section 19 of Colonization of Government Land (Punjab) Act, 1912 and that Section 19 of the said Act prohibited the Government tenant from transferring his rights or interest to a third person without first obtaining the consent of the Commissioner, or any other officer duly empowered by him in writing. As such the appellant was held to have acquired the status of the tenant of the said agreement Exh. 3. In the circumstances the above cited case has no application to the facts of the instant case. In the case of Ghulam Hussain (1987 SCMR 1115) it was case under Colonization of Government Lands (Punjab Act, one Veer Singh was considered as grantee who faile'd to take over the disputed land with the permission of Collector, therefore, in law he was not deemed to a tenant or to have any right or title in the said land which was allotted to him. In the circumstances this case is also not applicable to the facts of instant case.

So far the case of Hqji Noor Muhammad (PLD 1975 Kar. 373 relied upon by leaned counsel for Respondent No. 2, it was a Constitutional petition, wherein the petitioners' predecessor-in-interest was allotted one plot with the condition that construction on the plot would be raised within two years in accordance with the approved plan but it was not raised, therefore, it was canceled and same was allotted to some other person by the K.D.A. which action of K.D.A. was challenged in the writ petition and in the said circumstances their lordship of Division Bench observed that the allotment was right in rem which is passed to the allottee. However, in the instant case there is no question of allotment but is of licence which has been specifically stated in Exh. 7 From A/1. Therefore, cited case would not apply to the facts of the instant case.

So far the case of Abdullah Bhai (PLD 1964 SC 106) it was a case of ejectment filed against the tenant and sub-lettee in respect of the shop between the parties. In the instant case the Respondent No. 2 has neither been granted allotment nor it has been leased our nor it has been rented out the said plot to the Respondent No. 1 and the applicants being third party, the cited authority has no application to the facts of instant case. In case of Nasira Sultana (PLD 1975 Karachi 608) it was also case of allotment of plot land by KDA and another and by the terms of agreement of allotment a person in whose favour the allotment was made was entitled to be put into possession who was to raise construction over plot and on payment of occupancy value whereafter the KDA was bound under the agreement to grant lease of 99 years. However, the facts of instant case are quite different and^distinguishable to the facts of cited case hence no applicable.

On going through the evidence on record as well as case law it could conveniently be said that Respondent No. 2 being a licencee was authorised to enter upon the land and raise construction thereon in accordance with the approved plan of K.M.C. and thereafter, he was to be granted lease in his favour. It has also been specifically stated in Exh. 7 Form A/1 that the licensee would have no right or interest in land in dispute until he would get lease-hold rights over the disputed land subject to fulfilment of conditions mentioned in Exh. 7 Form A/1 but those conditions were not yet fulfilled by Respondent No. 2 hence lease in respect of suit plot has not yet been granted to him, therefore, present sit filed by Respondent No. 2 against the applicants for possession would not be maintainable in law. Reference may be made to (i) Manbahal Rai and others v. Ram Ghulam Pandey (AIR 1927 Allahabad 633) wherein the learned Single Judge observed :--

"A licence passes no interest in immovable property to the licensee, but only makes an action lawful which, without it, would have been unlawful. The licensee, not having an interest in the site, cannot maintain an action for possession of the same in, his own name. Heap v. Hartley (1889) 42 Ch. D., 561, rel. on (P. 634, C.Ij".

(ii) Ghulab Khan and another v. im! Muhammad Khan (AIR 1926 Oudh 609) wherein the learned Single Judge observed :--

"That if the document is to be considered a mere licence then, under Section 52 of the Easements Act, it cannot create any interest in the property; and that if it is to be treated as a lease it is invalid under the provisions of Section 107 of the Transfer of Property Act, and that in either case a person in actual occupation of the plot cannot be ejected by means of that document."

(iii) Gajo Rai and others v. Gaura Devi and others (AIR. 1960 Patna 498) wherein the learned Judges of Division Bench observed :-

"In the present case the plaintiffs do not claim possession of the plot over which they claim right of passage. Their legal position is that of a mere licensee, and there is no warrant in law for saying that a licensee as such can bring a suit or get a declaration for removing the obstruction put up by third parties over the subject-matter of the license. Learned counsel is unable to cite any authority in support of such proposition. It is also not warranted by any legal principle."

(iv) Rasdeo Rai v. Dwarka Ram and another (AIR 1916 Allahabad 219(2) wherein the learned Judges of Division Bench observed :--

"It seems to us fairly clear from the language of Sections 52 to 64 Easements Act that even if the plaintiffs respondents be mere licensees whose license has been improperly revoked their remedy lies not in a suit for possession, but in a suit for damages as laid down in Section 64, as a licensee is a person without any title and has no interest in the land."

The fact that the Respondent No. 2 is a licensee is evident from the evidence on record which the both Courts below have misread and, thus, there has been misreading of evidence amounting to illegality, therefore, the present revision applications would be competent. Accordingly, the judgments of both Courts below are set aside and Suit No. 728 of 1974 filed by Respondent No. 2 is dismissed. However, the Respondent No. 2 would be at liberty to move the K.M.C. to put him in possession of the land in accordance with law of which Respondent No. 2 is the licensee as per Rxh. 7 Form A/1. So far the Suit No. 1114 of 1970 filed by the applicants for declaration and possession having been filed on the basis of long possession of the disputed land which land admittedly belonged to the K.M.C. would also be not maintainable as no right has been shown to be vested in or has been created in favour of the applicants and this Court could not grant the declaration of entitlement of the applicants over the land in suit in the circumstances of case on account of their long possession which land is owned by K.M.C. which body would be competent to dispose of the land in suit in accordance with law, rules, instructions and policy in force. In the circumstances the evidence as well as law has been misread consequently the revision applications are competent and maintainable. However, the finding of two Courts below in respect of dismissing the Suit No. 1114 of 1970 is maintained holding that suit to be not maintainable as no vested right has been shown to exist over the land in dispute in favour of applicant However, the applicants would be at liberty to move the K.M.C. for their entitlement over the plot in dispute. In consequence of above observations and reasonings, the Civil Revision Application No. 47 of 1994 is dismissed whereas Civil Revision Application No. 48 of 1994 is allowed in terms of the order passed.

(K.K.F.)

Order accordingly.

PLJ 1999 Karachi 213

Present:ABUL INAM, J. MUHAMMAD ATEEQ and 5 others-Plaintiffs

versus

Mst ASGHARI BEGUM and 8 others

-Defendants

Suit No. 1031, Civil Misc. Appl. Nos. 5672 and 6698 of 1996, decided on 23.4.1998.

Specific Relief Act, 1877 (I of 1877)--

—Ss. 12 & 56-Specific performance of agreement to sell-Plaintiffs being tenants against whom order of ejectment had been passed, had filed suit to the effect that after order of ejectment was passed against them, there was agreement of sale between parties and that plaintiffs had passed on earnest money to defendants as per terms of agreement of sale- Defendant had totally denied such agreement-Share of defendants being admittedly undivided, even if it was proved that they had agreed to sell property, such agreement would be deemed to be void-Plaintiffs having failed to make out prime facie case for grant of temporary injunction- Plaintiffs, however, being tenants they would not be dispossessed/ejected otherwise than in due course of law-Relief claimed could not be granted for no injunction could be granted to stay judicial proceedings in terms of S. 56(a), Specific Relief Act, 1877. [Pp. 217 & 218] A & B

Mr. Khalid Javed, Advocate for Plaintiffs.

Mr. Javed Farooqui, Advocate for Defendant No. 3.

Mr. H.A. Rehmani, Advocate for Defendant No. 4.

Mr. A.F.M. Mokaram, Advocate for Defendants Nos. 5 to 9.

Date of hearing: 23.4.1998.

order

The brief facts giving rise to these two applications (Civil Miscellaneous Nos. 5672 and 6698 of 1996) are that Plaintiffs Nos. 1 to 3 are sons, Plaintiffs Nos. 4 and 5 are daughters and Plaintiff No. 6 is widow of late Muhammad Shafiq who was tenant of Shop No. 1 situated on ground floor of Nusrat Manzil, Plot No. RB-11/24, Ratan Talau, Mohan Road, Karachi (hereinafter referred to as the said property since 1974. The Defendant No. 1 is widow, Defendants Nos. 2 and 3 are daughters of late Syed Siddique Hasan who was owner of the said property and Defendant No. 4 is widow of Syed Tahir Hussain son of Syed Siddique Hasan. The Defendant Nos. 5 to 9 are subsequent purchasers of the said property. It is the case of the plaintiffs that late Syed Siddique Hasan died leaving behind Defendants Nos. 1 to 3, Syed Tahir Hussain since deceased and another daughter Aqueela Hussain as his next of kin and the said legal heirs have been receiving rent from late Muhammad Shafique against receipts after the death of Syed Siddique Hasan. It is averred that after December, 1975, the co-owners/legal heirs of late Syed Siddique Hasan, in the first instance, avoided and then refused to accept the monthly rent of shop in question and as such late Muhammad Shafique started depositing rent regularly with the Rent Controller, Late Syed Tahir Hussain one of the legal heir of late Syed Siddique Hasan, during his lifetime, filed a Rent Case No. 1623 of 1986 for ejectment of late Muhammad Shafique from the said property, which was allowed ex parte and then said Syed Tahir Hussain filed Execution Application No. 17 of 1988. During the pendency of said execution proceedings, Defendants Nos. 1 to 3, it is alleged, settled the matter with late Muhammad Shafique and entered into a sale agreement in respect of the r said property on 25.2.1989 and an amount equivalent to 75% of the sale consideration was paid by late Muhammad Shaifque to the Defendants Nos. 1 to 3, whereas balance was agreed to be paid at the time of execution of sale-deed before the Sub-Registrar. Besides this a general power of attorney was also executed by Defendants Nos, 1 to 3 on 27.2.1989 in favour of Plaintiff No. 1 regarding the said property. It is further averred that after such settlement and agreement of sale, Defendants Nos. 1 to 3 filed three separate applications for withdrawal of ejectment/execution proceedings before the Court of Vlth Rent Controller, Karachi South. As per the averment made in the plaint, the said ejectment-execution proceedings were ultimately dismissed for non-prosecution on 28.1.1993. As there were disputes between the Defendants Nos. 1 to 3 and late Syed Tahir Hussain regarding their respective shares in the Nusrat Manzil, the sa e-deed was not executed by Defendants Nos. 1 to 3 in favour of the plaintiffs. According to the plaintiffs late Muhammad Shafique and after his death the plaintiffs herein, have been requesting Defendants Nos. 1 to 3 to receive balance sale consideration and execute the sale-deed but the said defendants while admitting the sale transaction kept on requesting for further time to execute the sale-deed on the ground that there were serious disputes between the legal heirs of Syed Siddique Hassan who were co-owners of the entire building. It is further the case of the plaintiffs that in spite of there being an agreement of sale in respect of the said property, the predecessor-in-interest of plaintiffs, namely, Muhammad Shafique, and after his death, the plaintiffs, as abundant caution, continued depositing monthly rent with the Rent Controller to avoid any future complication. On 21.7.1996, the plaintiffs through two notices issued by Defendants Nos. 5 to 9 came to know that the Nusrat Manzil where the said property is situated, has been sold/conveyed by Defendants Nos. 1 to 4 to Defendants Nos. 5 to 9. On receipt of such notices it was learnt that late Syed Tahir Hussain and Defendant No. 2 with 3 the collusion and assistance of other co-owners of the property have executed conveyance deeds on various dates and sold out the entire building in parts of Defendant No. 7 on various dates. It is stated that one of such deeds was executed on 17.6.1996 by Defendant No. 2 in respect of her share 21-25% and other sale-deed was executed by widow of late Syed Tahir Hussain, the Defendant No. 4 in respect of her 45% share in Nusrat Manzil.

It is in the background of aforesaid facts that the present suit has been filed seeking following reliefs:-

"(i) Decree for specific performance of sale of suit properly i.e. Shop No. 1 situates on ground floor of Nusrat Manzil, Plot No. RB-11/24, Ratan Talau, Mohan Road, Karachi, as agreed vide sale agreement dated 25.2.1989 by directing the Defendants Nos. 1 to 3 and on their failure to do so the Nazir of this Hon'ble Court to execute the sale-deed in respect of the above suit properly in favour of plaintiffs.

(ii) For cancellation of conveyance deed, dated 16th June, 1996 registered on 17th June, 1996 regarding 21.25% share in the building namely Nusrat Manzil and for cancellation of conveyance deed 9th February, 1994 in respect of 45% share of the said building and for cancellation of other conveyance deeds, gift deed, declaration of oral gift, agreements, executed by and/or in favour of any defendants in respect of said building particularly th& suit property namely Shop No. 1 situated on ground floor of Nusrat Manzil, Plot No. RB-11/24, Ratan Talau, Mohan Road, Karachi.

(iii) Declaring that the acts of the Defendants Nos. 1 to 3, transferring their share including the suit property in favour of other defendant and attempts, threats of the defendants for evicting the plaintiff from the suit property, are illegal, mala fide and without lawful authority.

(iv) Grant permanent injunction restraining the defendants, their servants, agents, representatives, heirs, attorney and person(s) acting for and on their behalf from selling, transferring, mutating, alienating, creating third party interest in favour of any person except the plaintiffs, disposing of in any manner the suit property, causing any loss or damage to the suit property, changing the present condition of the suit property in any manner. They may further be restrained from dispossessing, evicting, extending threats in any manner to the plaintiffs interfering in the enjoyment of the rights of the plaintiffs in the suit property in any manner, taking any action for eviction of the plaintiffs from the suit property.

(v) A decree for a sum of Rs. 30,00,000 as damages/ compensation against the defendants jointly and severally.

(vi) Cost of the suit.

(vii) Any other relief(s) which this Hon'ble Court may deem fit and proper in the circumstances of the case may also be granted to the plaintiff."

Alongwith the suit Civil Miscellaneous Application No. 5672 of 1996 has also been filed under Order 39, Rules 1 and 2 read with Section 151, C.P.C. for restraining the defendants from selling, transferring, mortgaging, alienating, disposing the plaintiffs from the said properly and/or creating any third part interest. Another application being Civil Miscellaneous Application No. 6698 of 1997 has been subsequently filed for staying further proceedings in Rent Case No. 1704 of 1997 filed by Defendant No. 5 and others against tne plaintiff in Court of VIII, Rent Controller, Karachi, South for ejectment of the plaintiffs from the said property.

The Defendants Nos. 2 and 3 were served and have inter alia stated in their written statement and counter-affidavit to the aforesaid applications that the alleged sale agreement dated 25.2.1989 and receipts thereto were obtained by the predecessor-in-interest of the plaintiffs fraudlentiy and without the consent of the said defendants. It has further been contended by the said defendants that the predecessor-in-interest of the plaintiffs was tenant of the said property and the alleged sale agreement is void. It has further been contended that Nusrat Manzil had already been sold by the defendants to Defendant No. 7 under sale agreement dated 9.3.1988 and as such there was no occasion for the said defendants to execute a sale agreement on 25.2.1989 in favour of the predecessor-in-interest of the plaintiff. In so far as defendant No. 4 is concerned, it has been contended by her in the written statement that there being no sale agreement between the husband of Defendant No. 4 and the predecessor-in-interest of the plaintiffs, the Defendant No. 4 is not legally bound to execute a sale-deed in favour of the predecessor-in-interest of the plaintiffs or in favour of the plaintiffs after the death of their predecessor-in-interest.

I have heard the learned counsel appearing for the parties and perused the record.

The learned counsel for the plaintiffs has strenuously urged that there being a valid sale agreement in respect of the said property between the predecessor-in-interest of the plaintiffs and Defendants Nos. 1 to 3 the subsequent sale of the building in question in favour of Defendant No. 7 is void and as such liable to be set aside. According to the learned counsel, the plaintiffs, in this view of the matter, have a strong prima facie case and the balance of convenience is in their favour as they are in possession of the said property. It is further contended by the learned counsel that the plaintiffs shall suffer irreparable loss and injury in case the defendants are not " restrained from selling, disposing of and/or creating any third party interest in respect of the said property and further that the possession of the plaintiffs is required to be protected under orders of the Court.It is an admitted position that the building in question where the said property is situated was originally owned by late Syed Siddique Hasan and predecessor-in-interest of the plaintiffs, namely, Muhammad Shafique, was his tenant. After death of Syed Siddique Hasan, the property in question devolved on his legal heirs i.e. Defendants Nos. 1 to 3 Syed Tahir Hasan and another daughter of the deceased Mst. Aqueela Khatoon who died unmarried before the filing of this suit. The share of the legal heirs of late Syed Siddique Hasan in Nusrat Manzil was undivided and as such the Defendant Nos. 1 to 3, even if it is proved that the said defendants had agreed to sell the said property to predecessor-in-interest of the plaintiffs is a void agreement of sale as the said Defendant Nos. 1 to 3 could not have competently/legally agreed to sell the said property to predecessor-in-interest of the plaintiffs. Even otherwise, there is total denial of sale agreement by Defendants Nos. 1 to 3 in favour of predecessor-in-interest of the plaintiffs. Much stress has been laid by the learned counsel for the plaintiffs on the application said to have been filed by Defendants Nos. 1 to 3 before the Rent Controller in execution No. 17 of 1988 (outcome of Rent Case No. 1632 of 1986). In this regard, it may be stated that the said rent case was filed by late Syed Tahir Hasan, predecessor-in-interest of Defendants No. 4 and under the law no compromise could have been recorded in the said execution application on the basis of an application filed by Defendants Nos. 1 to 3 as the said defendants were not a party to the aforesaid execution proceedings. In any event, no orders on such application for compromise were passed by the learned Rent Controller and the execution application was dismissed for non-prosecution on 219 of 1993 though the said applications for compromise and withdrawal of execution proceedings were filed on 26.2.1989. One fails to understand as to why no orders from the Rent Controller were obtained by the predecessor-in-interest of the plaintiffs on the said compromise applications in case there was genuine compromise between the parties. Another aspect of the matter is that alongwith the alleged sale agreement between the predecessor-in-interest of the plaintiffs on the said compromise applications in case there was a genuine compromise between the parties. Another aspect of the matter is that alongwith the alleged sale agreement between the predecessor-in-interest of the plaintiffs and Defendants Nos. 1 to 3 a general power of attorney is also alleged to have been executed by Defendant Nos. 1 to 3 in favour of Plaintiff No. 1 on 27.2.1989, yet till 1996 i.e. up to the filing of this suit, no attempt was made by the plaintiffs or their predecessor-in-interest to execute a sale-deed in respect of the said property in their favour.

The upshot of the above discussion is that the plaintiffs have failed to make out a prima facie case for grant of injunction, the balance of convenience does not lie in their favour and they shall not suffer any irreparable loss or injury in case this application is not granted. Civil Miscellaneous Application No. 5672 of 1996 is, therefore, dismissed. However, since admittedly the plaintiffs are tenants in respect of the said property they will not be dispossessed/ejected from the same otherwise than in due course of law.

In view of my above findings, Civil Miscellaneous Application No. 6698 of 1997 is also dismissed. Even otherwise, the relief claimed under the said application is barred by Section 56(a) of the Specific Relief Act as no injunction to stay the judicial proceedings can be granted by the Court.

(K.K.F.) Application dismissed

PLJ 1999 Karachi 226

Present: M.L. shahani, J. Syed SHAUKAT ALI and others-Petitioners

versus

ABDUL ALi-Respondent

F.R.A. No. 51 of 1994, heard on 22.8.1997.

<i) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—Ss. 15 & 21-Tenant-Ejectment of-Personal bona fide need-Ground of~ Commercial property-Where need of landlord as mentioned in application is duly established through evidence for which landlord must enter in witness-box and depose on oath about personal bona fide need and assign reasons for such need, Court would normally not question such need-Evidence on record clearly established need of landlord and his bona fides for running his own business-Tenant, while controverting assertions of landlord, produced hearsay evidence which did not inspire confidence-Landlord was, thus, successful in establishing his bona fide need and assigning reasons for starting his own business in shop in question-Tenant was directed to vacate the shop.

[Pp. 231, 232 & 233] A & B

1992 SCMR 1296 rel. 1992 SCMR 1296; 1997 CLC 605; 1972 SCMR 437; 1993 MLD 477; PLD 1976 Kar. 832 and 1980 SCMR 593 ref.

(ii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—Ss. 15-A & 21-Rent Controller was empowered to restore possession of premises to tenant where landlord had put in use the premises other than for his personal use for which ejectment was ordered. [P. 233] C

Mr. Abdul Naeem, Advocate for Appellants. Mr. M.A. Rasheed,Advocate for Respondents. Dates of hearing: 18 and 22.8.1997.

judgment

The appellant has assailed and order of Rent Controller and 1st Senior Civil Judge, Jecobabad dated 28.8.1994 whereby he allowed the rent application filed by the respondent praying for ejectment of the appellant from the premises/shop bearing S. No. 412/2, which was purchased by the respondent on 15.1.1992, on the grounds of personal bona fide need.

1. Briefly the facts of the case are that the respondent purchased Shop No. 412/2 from its original owner while the appellant was statutory tenant. After giving notice that the respondent is the new owner, he requested the appellant to vacate the premises as he intends to do his own business. Respondent earlier was doing business in an adjacent shop bearing City Survey No. 413/1 alongwith his brothers, which is jointly inherited by respondent belonging to other 7 brothers, 2 sisters and mother. He stated further in his application that it is not convenient for him to continue in that business on account of his domestic problems. In paragraph 6 of his application, respondent alleged as follows:-

"6. That the Applicant requires the disputed shop bearing City Survey No. 412, Ward No. 2, Jacobabad bona fidely for bis personal use and occupation to run his own business in disputed shop and since the Opponent has not given the vacant possession of the shop despite of the service of the legal notice and, therefore, the applicant has every reason to believe that the opponent shall not vacate and hand over the vacant possession to the Applicant unless the Opponent is ordered by this Honourable Court hence this application."

The need of respondent was denied and refuted by the appellant. It was stated that the respondent was conducting business in adjoining property independently and in his personal capacity to the exclusion of others, who are only joint owners in the property. It was further alleged that the appellant is in association with Allah Wasayo and Abdul Razzak and they deal in sale and purchase of property. It is alleged that the respondent wanted the ejectment to sell the property to one Mr. Ateeque. Appellant and his above-named associates approached the respondent and offered Pugree of Rs. 50,000, which was refused by him. For these reasons, the need of the respondent was opposed videParagraph-6 of the written statement. Respondent examined himself and his witness flq/i Allah Wassayo while the appellant who died in the meanwhile his son Syed Rafique Zaman and his witnesses Ayaz son of Ateeque Ahmed and S. Aslam son of Nazim All were examined. Respondent in his affidavit in evidence averred the facts produced sale-deed of the property extract from the property register Card, legal notice, reply to the legal notice and was cross-examined by the counsel appearing for the appellant. Haji Allah Wasayo his witness deposed that the respondent made complaint to him that it was not possible to continue in the joint business with his brothers and was on a look out to purchase the shop to establish bis own business. He is witness to the registered sale-deed. He was cross-examined. The respondent then closed his side.

On behalf of the appellant, Syed Rafique Zaman deposed that the respondent has formed an association of persons with Hqji Allah Wassayo and Abdul Razzak as they purchase and sell the property. He alleged that the disputed shop was purchased so that it could be sold at higher price after getting the ejectment of occupant tenant. He stated that shop was purchased by them at Rs. 100,000 and they have already contracted to sell the said shop to Mr. Ateoque Ahmed from whom they have taken Rs. 50,000 as earnest money. It is alleged that the shop was to be sold for Rs. 2,50,000 as such personal need therefore was denied and mala fides were attributed. In support of Ms assertions that the appellant has entered in an agreement with Ateeque Ahmed, his son Ayaz was examined. He further stated that because appellant was not. in a mood to vacate the premises, therefore, his father cancelled the deed on 1.5.1992. He was also cross-examined. Another witness of appellants S. Aslam deposed that respondent alongwith Haji Allah Wassayo and Abdul Razzak approached him to intervene and prevail upon the appellant to vacate the premises after getting Rs. 50,000 as Pugree. According to this witness, respondent Abdul All and others declared that they had accepted Rs. 50,000 as earnest money. According to him, he approached Mr. Atteeque Ahmed and he affirmed about the deal. According to this witness, he persuaded Shaukat Ali to receive the amount but he refused, tbsrefore, it is only after that event the respondent filed the case. He was also Cross-examined. In cross-examination he, however, admitted that opponent Shaukat Ah' was his cousin.

1. In nut shell the case put-forth by the appellant was as follows:-

The claim of respondent is fallacious.

He is in competition with the appellant as he is doing the same business which is being done by the respondent in his family concern.

His contention that he intends to do separate business, is not correct.

/ 4. The ejectment has been sought to get the vacant possession and then to sell the same.

1. The learned counsel appearing for the appellant apart from raising above contentions, stated that in relation to the family dispute, no evidence was led and none of his brothers, who are alleged to be in the joint business with him, were examined, as such on the face of record he alleged that the respondent failed to establish his bona fide need. He has relied upon the following judgments :--

Jahangir Rustam Kakalia v. State Bank of Pakistan (1992 SCMR 1296).

Syed Muzaffar Hussain Jafri v. Khawaja Fazal Ahmed (1993 MLD 1707).

M/s. United Bank Ltd. v. Haji Abdul Razzak & Co. (1993 MLD 2575).

(4) Anisur Rehman v. Mst. Sharifa Khrdoon and another (1986 CLC 448).

(5) Akhlaq-un-Nabi v. Nawab Ahmed Shamsi and 6 (1986 CLC 1100).

(6) Noor Ahmed and another v. Khawaja Imran Ahmed (1988 CLC 1041X

(7) Wafer ant! Power Development Authority through Chairman and another v. Muhammad Hussain (1991 MLD 538).

(8) Bhagwandas Chawala v. Kishanchand Parwani and others (1997 CLC 605).

1. He has further stated that provisions of Section 15-A will have no applicability in the case of appellant as the appellant may not re-let the premises and has relied upon the following cases:-

2. Dr. A.R. Khan v. Muhammad Ishaque (1972 SCMR 437).

3. Razia Sultana u. Water and Power Development Authority (1993 MLD 477).

4. Reverting to the case ofJahangir Rustam Kakalia v. State Bank of Pakistan (1992 SCMR 1296), the Honourable Supreme Court came to the conclusion that on the facts of the case that the personal need was not established. However, their lordships were pleased to observe as follows:-

"In the impugned judgment (page 14 of paper book) while discussing evidence on the question of proof of bona fide requirement reliance is paced on the case of Hassan Khan v. Mrs. Munawar Begum reported in PLD 1976 Karachi 832, which view was subsequently confirmed in case of Mst. Toheed Khanam v. Muhammad Shamshad reported in 1980 SCMR 593. Rule laid down in the cases mentioned above is that on the issue of personal need, assertion or claim on oath by landlord if consistent with his averments in his application and not shaken in the cross-examination, or disproved in rebuttal is sufficient to prove that need is bona fide."

1. Reverting to the case of Syed Muzaffar Hussain Jafri v. Khawaja Fazal Ahmed (1993 MLD 1707), one of the Judges of this Court ruled that the personal bona fide need of landlord in good faith was to be established by producing strong evidence.

2. In the case of M/s. United Bank Ltd. v. Haji Abdul Razzak & Co. (1993 MLD 2575) late Mr. Justice Qaiser Ahmed Hamidi of this Court ruled that the personal bona fide need of landlord was not established.

3. Reverting to the case ofAnisur Rehman v. Mst. Sharif Khatoon and another (1986 CLC 448), this Court on the basis of evidence came to the conclusion that landlady did not establish the need. Mr. Justice Haider Ali Pirzada was pleased to hold that the terms "requires" meant that there must be element of need and went on to hold that reasonableness is relevant in deciding the bona fides of the landlord and that in deciding bona fide of landlord in good faith reasonableness of need was relevant. In this case since the genuineness of landlady was not established, therefore, ejectment was refused.

4. In the case of Akhlaq-un-Nabi v. Nawab Ahmed Shamsi and 6 others (1986 CLC 1100), it was held that the bona fide requirement of witness must be supported by valid reasons.

5. Reverting to the case of Noor Ahmed and another v. Khawaja Imran Ahmed (1988 CLC 1041), this Court rejected the evidence of the landlord and ruled that the landlord must succeed on the strength of his won case rather than the weakness of defence.

6. In the case of Water and Power Development Authority through Chairman and another v. Muhammad Hussain (1991 MLD 538), it was held that if the statement made in examination-in-chief if not questioned in cross examination it would deem to be correct.

7. In the case of Bhagwandas Chawala v. Kishanchand Parwani and others (1997 CLC 605) Election Tribunal Sindh ruled that the plea not taken in the pleading could not be allowed to be raised in evidence.

8. In the case of Dr. A.R. Khan v. Muhammad Ishaque (1972 SCMR 437) it has been held by Honourable Supreme Court that the provisions of Section 13(4) of the Ordinance of 1959 which were enacted in favour of the tenant and constitute a salutary check to restrain landlord from prosecuting ejectment proceedings on the basis of his bona fide requirement do not relieve landlord of the basic onus on him to prove affirmatively that he requires the premises for himself.

9. Reverting to the case Razia Sultana v. Water and PowerDevelopment Authority (1993 MLD 477), Mr. Justice Mukhtar Ahmed Junejo (as his lordships then was) pleased to hold that the premises be required by the landlord in good faith and must be supported by valid reasons as to how his requirement was genuine.

10. The ratio of all cited cases is the principle which is now time- honoured. It is for the landlord to establish his personal bona fide need and assign reasons for such need. If the need of the landlord as mentioned in application and duly established through evidence, for which the landlord must enter in the witness box and depose on oath about the personal bona fide need and assign reasons for such need, the Court would normally not question such need as was held by the Honourable Supreme Court in the case of Jehangir Rustam Kakalia v. State Bank of Pakistan (1992 SCMR 1296), and the portion has already been quoted in the earlier part of this judgment. It is also well-established that notwithstanding the protection afforded to the tenant for re-claiming the premises under Section 15-A, the landlord is bound to establish his such need. In the light of these principles of law, I would, therefore, scrutinize the evidence laid by the parties.

11. The respondent in his application has stated in Paragraph-2 that he is not in a possession, of any shop and it is not convenient for him on account of his domestic problem to continue in the joint business with his brothers. In his application he further stated that he has got no other shop of his own in his own name except the shop bearing City Survey No. 412, which was in possession of the appellant. While in Paragraph-6 he stated that he needs the shop bona fidely for his personal use and occupation and to run his own business in the disputed shop. In his evidence he stated that he purchased the property on 15.1.1992 while the appellant was already in possession of the said shop before the purchase of said property, he was running joint business in the inherited shop. He further stated that he is not in a possession and it is not convenient for Mm on account of his domestic problem to continue with joint business with his brothers. He further stated, that he had got no other shop and he purchased the shop with the sole object to run his own business of selling utensils/crockery independently. He further stated, that the requires and needs the disputed shop bona fidely for his personal use and occupation to run his own business. He has denied the allegations levelled in the written statement. He specifically stated that he did not offer pugree nor he entered into any contract for the sale of shop with Ateeque Ahmed nor he obtained Rs. 50,000 as earnest money from Ateeque for the sale of said shop nor he asked the appellant to raise the rent. He further stated that he had already told Haji Allah Warsayo that it was not possible for him to continue in joint business with his brothers. In the cross- examination he stated that his father was also running the same business. He further stated that his relation-ship with his brothers namely Shaukat and Ashraf was not good. He repudiated suggestions of selling the property at Rs. 2,50,000. He also repudiated suggestions that he offered Rs. 50,000 as Pugree to the appellant. His witness Hqji Allah Wassayo deposed that the respondent has informed him that it is not possible to continue joint business. He has denied suggestions that he went to Shaukat All and offered him Rs. 50,000 as Pugree.

12. As against above evidence of the landlord, the appellant/tenant, who expired in the meantime and contested the case through his legal heir: Rafique Zaman examined himself. He brought Ayaz Ahmed son of Ateeque Ahmed as his witness. Ateeque Ahmed was the person, who also died in the meanwhile and for whom it was alleged, the respondent Hqji Allah Wassayo and Abdul Razzak, who are jointly engaged in purchase and sale of the property, offered to sell the shop which he had agreed to purchase at Rs. 2,50,000 and paid Rs. 50,000 as earnest money. To that extent there is also the deposition of his other witness Ayaz Ahmed. Ayaz Ahmed in his cross-examination stated that Abdul All executed receipt for obtaining earnest money. According to this witness it was his father Ateeque who approached the trio of respondent and his 2 associates for the purchase of shop, who according to him, were well-known property dealers, in the last days of January. There was no agreement to sale between respondent and Ateeque. As regards other witness S. Alsam he has stated that he is the cousin of appellant. In other words the burden of evidence laid by the tenant is that the ejectment proceedings, have been initiated so that the vacant possession be obtained and that with vacant possession the property should be sold. These are the mala fides, which are attributed to the landlord.

13. Analysis of above evidence would reveal that the landlord was successful in establishing his need and requirement bona fide for running his own business. In cross-examination he has stated that his terms with his brothers are not good, and i.e, the reasons he wants to start his own business. He further deposed that he needs the premises for his bona fide need. Against, this case of landlord, the appellant has stated that landlord contracted Ateeque and entered in contract in selling the shop to him for Rs. 2,50,000 and obtained earnest money of Rs. 50,000 which was offered to him as Pagri to vacate the shop, which offer the appellant refused. Such assertion of the tenant was denied on oath by the landlord. His witness also stated that he did not go to the tenant nor offered Rs. 50,000 as Pagri for vacating the shop. The deposition of the appellant and his witness regarding the sale of shop to Ateeque was not established through any cogent evidence which may reflect on the bona fides. Even the son of Ateeque, who was examined as witness could not produce any document regarding the alleged agreement of sale. The evidence of the tenant is hearsay and even otherwise does not inspire confidence. I would, therefore, hold that the landlord was successful in establishing his need bona fide and assigned reasons for starting his own business in the disputed premises.

14. Assuming for the sake of arguments the defence which has been set-up by the tenant that the premises are needed in bad faith by the landlord as he wants to sell the same to some other person, legislature has taken care of such mala fide need of landlord by enacting the provisions of Section 15-A of Sindh Rented Premises Ordinance, which read as follows: -

"15-A. Where the landlord who obtained the possession of a building under Section 14 or premises under clause (vii) of Section 15, relets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within open year of such possessions-CD he shall be punishable with fine which shall not exceed one year's rent of the building of the premises, as the case may be, payable immediately before the possession was so obtained.

(ii) the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly."

(underlines is mine).

1. The legislature has empowered the Rent Controller to restore the possession of the premises to the tenant if the landlord put in use the premises other than for his personal use for which ejectment application was ordered, and such is complete safeguard granted to the tenant. In other words, if the landlord does not occupy the premises himself or puts it to the use other than the personal use (including selling the same) he shall be not only prosecuted but also the tenant will be entitled to recover possession.

2. After hearing the parties in open Court on 18.8.1997 and 22.8.1997 the above 1st Rent Appeal No. 51 of 1994 was dismissed and it was further ordered that 3 months time is allowed i.e.up to 30.11.1997 for vacating the premises. If the tenant does not vacate the premises by then the writ of possession will be issued without further notice to the tenant.

(K.K.F.) Appeal dismissed.

PLJ 1999 Karachi 234

Present:mrs. majida razvi, J. ADMINISTRATOR, KARACHI PUBLIC SCHOOL-AppIicant

versus

DAWOOD AHMED SALAR and others-Respondents

Revision Application No. 237 and Civil Miscellaneous Application No. 1135 of 1995, decided on 19.9,1997.

(i) Specific Relief Act, 1877 (I of 1877)--

—-S. 42-Question involved was entitiement/disentitlement to recover specified amount of money-Word "property" as used in S. 42, could include "money"-Suit for declaration was, thus, competent. [P. 240] B

(ii) West Pakistan Registration of Unrecognized Educational Institutions Ordinance, 1962 (XI of 1962)--

—-S. 4(3)--Private registered school-Enhancement of tuition fee-Plaintiffs challenged enhancement of tuitions fee by school management-Plaint rejected by Trial Court-Appellate Court remanded case for trial on merits and also issued interim injunction to school management not to recover enhanced fee till decision of suit-Held: Relationship between parties having arisen out of contract signed by school and parents, and declaration which have been sought in suit, being of pecuniary nature, suit for declaration was maintainable-Aggrieved party had a right to approach the Court if their fundamental rights were violated by the action of defendants-Law has provided proper forum where grievance could be retrieved—Interim relief granted by Appellate Court while disposing of appeal and remanding the case to Trial Court amounted to grant of main relief-Interim order passed by Appellate Court was set aside and case was remanded for trial. [Pp. 239, 240, 242 & 243] A to F

PLD 1974 SC 228; PLD 1971 Kar. 736; AIR 1937 Lah. 25; NLR 1987 CLJ 140; Black's Law Dictionary; Corpus Juris Secundum, (Vol. LXXIH; AIR 1930 Bom. 331 and 1991 MLD 1312 ref.

(Hi) Words and Phrases-

—Word "property"~The word property has been defined in Black's Law Dictionary as:- "The word is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate."

The most comprehensive definition of the property is given in Corpus Juris Secundum (Volume LXXIH) as:-

"................ In law it is not the physical material object which constitutes property--The term means, something more than the mere thing which a person owns, and in its more appropriate and true legal sense property is not alone the corporeal thing or physical object itself, and is not alone the land or chattel itself-In fact, it has been said that there are no property rights innate in objects themselves--The physical objects constitute only the foundation and material of property, and, although the subjects of property, they are, when coupled with possession, only the indicia, the visible manifestations of invisible rights, the evidence of things not seen, and the idea of property springs out of the connection, or control or interest which, according to law, may be acquired in or over things.

In the strict legal sense the word 'property' signifies valuable rights or interest protected by law, and this is the primary, appropriate, and broader signification of the term.

In modern legal systems, property includes practically all valuable rights, the term being indicative and descriptive of every possible interest which a person can have, in any and every thing that is the subject of ownership by man, including every valuable interest which can be enjoyed as property, and recognized as such, equitable interests as well as legal interests, and extending to every species of valuable right or interest in either real or personal property, or in casements, franchises, and incorporeal hereditaments. Property is considered to be the highest right which a man can have to anything, real or personal, being a complex bundle of rights, duties, powers, and immunities, comprising a vast variety of rights, with certain rights such as the right of use, the right of enjoyment, and the right of disposal considered to be the constituent elements or essential attributes of property." [P. 240] B

Black's Law Dictionary and Corpus Juris Secundum Vol. LXXIII ref. Mr. Abid S. Zuberi, Advocate for Applicants.

Mr. Waqar Hussain and Muhammad Sarwar Khan, Advocates for Respondents.

Date of hearing: 19.9.1997.

order

This revision application has been filed against the judgment dated 14.12.1995, passed by the learned District Judge, Malir, in Civil Appeal No. 1 of 1995, whereby the appeal of Respondents Nos. 1 to 100 was allowed against the order of the Senior Civil Judge, District Malir, dated 19.4.1995 passed in Suit No. 52 of 1995, whereby the plaint was rejected under Order 7, Rule 11, C.P.C.

The brief facts of the case are that the applicants run a private school by the same of Karachi Public School with branches situated at three different places in Karachi. The school provides education for matriculation as well as for O-Level and A-Level and keeping in view the advancement in computers it provides computer teaching also. The School also provides facilities of purchasing the uniform and text books. The school management, due to enhancement in the cost of running the school, the rise in the teacher's salaries and providing computer teaching, was compelled to increase the tuition fees from April, 1995 and as such issued a notice to all the parents of its students. After receipt of the said notice Respondent No. 1 who poses himself as Convernor of K.P.S. Parents Action Committee filed a complaint to the Directorate of School Education, Government of Sindh (Respondent No. 102), against the school. A notice dated 22.3.1995 was issued by the said respondent to which a reply dated 18.5.1995 was immediately sent by the applicants denying the allegations mentioned in the said notice. After the said reply no further action was taken by the said respondent against the school.

Having failed to obtain any result of the complaint the Respondents Nos. 1 to 100 filed Suit No. 52 of 1995 before the learned Senior Civil Judge, District Malir. On notice to the present applicants, written statement as well as counter affidavit to the stay application was filed and an application under Order 7, Rule 11, C.P.C. was also filed praying for rejection of the plaint. The said application was heard and after considering the counter affidavit and rejoinder filed by the parties, and contentions raised, the learned Senior Civil Judge by bis order dated 19.4.1995 allowed the application under Order 7, Rule 11, C.P.C. and rejected the plaint. Against this order the Respondents Nos. 1 to 100 filed Appeal No. 1 of 1995 before the learned District Judge, Malir, who after due notice and hearing the present applicants, by judgment dated 14.12.1995 allowed the appeal and set aside the order dated 19.4.1995 and while passing the said judgment the learned Appellate Court granted interim injunction during pendency of the suit.

Mr. Abid Zuberi, learned counsel for the applicants contended that the learned District Judge erred in law and failed to appreciate the legal effect of Order 7, Rule 11, which enjoins on a Court to reject the plaint on the ground as mentioned in the said Order. His next contention was that the judgment does not advert to the point of legal character of Respondents Nos. 1 to 100 on which the plaint was rejected and that the judgment is arbitrary and capircious and based on surmises and conjectures by stating in the judgment that the applicant admitted the averments of the respondents whereas in the counter affidavit filed in the suit as well as objections to the appeal the averments of the Respondents Nos. 1 to 100 were categorically denied. His next contention was that no mandatory injunction could be granted at the interlocutory stage when no prima facie case was established by the plaintiff and by granting the said injunction the learned District Judge has actually granted the main appeal. Further, that the suit was not maintainable under Section 42 of Specific Relief Act.

On the other hand Mr. S. Waqar Hussain, Advocate contended that the trial Court was wrong in rejecting the plaint as he was the aggrieved party and his fundamental rights were violated and that since he had a prima facie case against the present applicants, the Appellate Court was justified in passing the interim order which is according to law. Further that, there has been violation of law under which the registration was granted to the applicants.

Mr. M. Sarwar Khan, Additional Advocate-General appeared on behalf of Respondents Nos. 101 and 102 and supported the respondents stating that the applicant violated terms and conditions under which the certificate was granted &? under clause 7 no power for enhancement or collection of any other fee was granted. His further contention was that the word "property" in Explanation under Section 9, C.P.C. includes money also.

I have heard both the counsel and have perused the record and relevant Rules/Laws.

The applicant's school was registered under sub-section (3) of Section 4 of the Registration of unrecognized Educational Institution Ordinance, 1962 (The Ordinance 1962). Subsequently, the Private Schools (Management and Control) Act, 1974, which is an act to control and manage the private schools in the Province of Sindh (Act 1974), was legislated. Under Section 3 of the said Act the Controlling authority i.e. the Minister for Education or his nominee, for the purpose of Management and control of a school, is required to establish the Board of Governors consisting of four members nominated by the present body, five members nominated by the controlling authority, one member elected by the parents/guardians of the students on the roll of the school from amongst themselves and further details as given under the said section. Both, the Ordinance of 1962 and Act of 1974 are in the field. One, for the purposes of Registration and the other to manage and control le Private Schools. The terms and conditions are mentioned in the Registration Certificate granted under the Ordinance 1962. Condition at Serial No. 5 specifies the amount of tuition fees for different classes to be charged by the school and No. 6 specifies the admission fees. Condition No. 7 is as follows.

"That no other Fee/Fund except approved Tuition fee, Admission fee and students funds at the rate of Rs. 2 p.m. per student shall be charged."

Condition No. 18 is "that non-fulfilment of any of the above condition shall cause withdrawal or suspension of Registration of the School" granted under the Ordinance, 1962.

The School after its Registration issued admission forms to all the intending students which were duly signed by the parents/guardians of the students and the Principal. Among other terms and conditions mentioned on the admission form, Condition No. 5 is that the school reserves the right to make revision in fees without prior notice to parents. The respondents, by signing this form accepted all the conditions mentioned thereon including enhancement of fee. The proper course for them, which they did adopt was to complain to the concerned authorities, who could take action against the School for breach of terms and conditions. Admittedly, the Registration Authority issued notice to the School and after reply thereof did not take any further action. The indifference and inaction of the Registration Authority after receiving the complaint, the abject negligence in setting up the Board of Governors as required by law are the clear indication as to the appalling conditions in the educational field. In the circumstances the contention of learned A.A.G. that School violated the .«ons and condition is rather negation of their own in-action.

Mr. Abid Zuberi, the learned counsel for the applicants contended that the Government failed to constitute the Board of Governors and frame the Rules as such School had no option but to act on its own to safeguard its smooth working. He referred to the case of M. U.A. Khan v. Rana M. Sultan and another (PLD 1974 SC 228), wherein it was observed as under:--

"It is universally recognised that as regulatory statutes have to deal with a variety of situation and subjects, it is not possible for the Legislature itself to make detailed regulations concerning them, and, therefore, the Legislature delegates its powers to specified or designated authorities to make such detailed regulations, consistent with the statute, for carrying out purpose of the parent legislation. The power so conferred is generally in the nature of an enabling provision, intended to further the object of the statute, and not to obstruct and stultify the same. As a consequence, the failure of or omission of the designated authority to frame the necessary

rules and regulations, in exercise of the power conferred on it by the Legislature, cannot be construed as having the effect of rendering the statute nugatory and unworkable. Such eventuality could arise only if the Legislature indicates an intention to this effect in clear and unmistakable terms."

Mr. Abid Zuberi's contention that the Government failed to perform its obligation in constituting the Board is no doubt correct but the School under the circumstances could have applied to the Registration Authority which had fixed the tuition fee and other related fee.

However, be that as it may, the revision application has been filed inter alia on the ground that the Appellate Court has acted illegally and with material irregularity by granting injunction while disposing of the appeal. According to the learned counsel, it amounts to granting of the main relief which could not be granted at this stage.

Mr. Abid Zuberi, the learned counsel for the applicants referred to the case of Muhammad Idris v, Collector of Customs, Karachi and another (PLD 1971 Kar. 736), wherein it was held that "although the powers of the Court to pass a mandatory injunction in appropriate cases even at interlocutory stage cannot be doubted but such order are rare and granted only to restore the status quo and not to create a new situation which may be irretrievable or to establish a new state of things different from those which existed at the time the relief granted. He further relied on the case ofNathu Ram v. Mula and others (AIR 1937 Lah. 25), wherein it was held that Section 42 of the Specific Relief Act will not be applicable to the suits in respect of rights arising out of a contract affecting only pecuniary relationship.

Reliance was also placed on the case of Ferozuddin Ahmed v. Trading Corporation of Pakistan, (NLR 1987 CLJ 140), wherein it was claimed that the Trading Corporation of Pakistan had agreed to grant house building loan to its employees and the same was approved but after payment of two installments the third installment was withheld and the suit was filed seeking interim relief by issuance of mandatory injunction directing the defendant to pay third installment of the house building loan. The suit was resisted on two grounds. Firstly, that the grant of interim relief would tantamount to the grant of final relief claimed in the suit which could seriously prejudice the defendant. Secondly, perpetual injunction sought by the plaintiff should not be granted as he can be compensated by granting of damages. It was held that "interim relief sought by the plaintiff cannot be granted as it would tantamount to passing of a decree in his favour in respect of at least a part of this claim and if such order is passed at this stage and the plaintiff ultimately fails to succeed in his suit the same is bound to prejudice the defendant for which there can be no compensation for in the future and as such the application was dismissed.

In the instant case the Appellate Court has restrained the School from recovery of additional fee but the same can be realised if the case is decided in their favour as such adjudication by the Appellate Court may have caused inconvenience to the applicant but the same is not irretrievable.

In the present case the plaint was reject by the Trial Court being not maintainable under Section 42 of the Specific Relief Act as neither the defendant had legal character nor there was any property involved. The Appellate Court has discussed the maintainability of the suit under Section 42 of the Specific Relief Act and on Page-17 of the judgment has held that he money is "moveable property".The word property has been defined in Black's Law Dictionary as:

"The word is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate."

The most comprehensive definition of the properly is given in Corpus Ju\ I; Secundum (Volume LXXIH) as:~

"............... In law it is not the physical material objection which constitutes property. The term means, something more than the mere thing which a person owns, and in its more appropriate and true legal sense property is not alone the corporeal thing or physical object itself, and is not alone the land or chattel itself. In fact, it has been said that there are no property rights innate in objects themselves. The physical objects constitute only the foundation and material of property, and, although the subjects of property, they are, when coupled with possession, only the indicia, the visible manifestations of invisible rights, the evidence of things not seen, and the idea of property springs out of the connection, or control or interest which, according to law, may be acquired in or over things.

In the strict legal sense the word 'property' signifies valuable rights or interest protected by law, and this is the primary, appropriate, and broader signification of the term.

In modern legal systems, properly includes practically all valuable rights, the term being indicative and descriptive of every possible interest which a person can have, in any every thing that is the subject of ownership by man, including every valuable interest which can be enjoyed as property, and recognized as such, equitable interests as well as legal interests, and extending to every species of valuable right or interest in either real or personal property, or in casements, franchises, and incorporeal hereditaments. Property is considered to be the highest right which a man can have to anything, real or personal, being a complex bundle of rights, duties, powers, and immunities, comprising a vast variety of rights, with certain rights such as the right of use, the right of enjoyment, and the right of disposal considered to be the constituent elements or essential attributes of property."

All definitions include corporeal and incorporeal tangible or intangible wealth in fact it includes all the rights that a man can have. In view of these definitions it is clearly established that the word property includes money. The finding of the appellate is upheld to this extent.

The suit was filed for declaration and injunction wherein the prayers were as follows:-

"(1) Declare that the Defendants Nos. 1 and 2 cannot enhance the rate of the fees as they had already enhanced the same 1-1/2 year earlier and that also without prior permission of the Defendants Nos. 3 and 4 and the Defendants Nos. 3 and 4 cannot grant this permission for any unreasonable amount and the decision of enhancement of fee of the Defendants Nos. 1 and 2 is illegal unlawful and without any lawful authority and is nullity in the eyes of law; and that the Defendants Nos. 1 and 2 are bound to receive fees from the plaintiffs with respect to their children, studying in the Karachi Public School, Star Gate, Karachi at the rates prevailing in the month of March, 1995;

(2) Declare that the Defendants Nos. 1 and 2's charging Rs. 5,000 as admission fee is also illegal, unlawful and without any lawful authority and the admission fee could be only double to the monthly tuition fee of the relevant class in the school;

(3) Declare that the Defendants Nos. 1 and 2 are bound provide: (i) All the trained teaching staff in the School;

(ii) Minimum place for per student as required under the law and stop new admissions beyond the capacity;

(iii) Properly equipped laboratory and school library with books lending facility;

(iv) Sports facilities and extra-curricular activities arrangements.

(v) Dispensary/Sickroom/First Aid facility;

(vi) Waiting room for the parents/guardians who come to collect their wards;

(4) Declare that the uniform as is already adopted cannot be changed;

(5) Declare that the purchased of books and note books is not necessary to be purchased by the students from the school.

(6) Declare that the wards of the plaintiffs cannot be harassed by withholding their results on account of non-payment of the fee on enhanced rates andcannot otherwise be harassed or subjected to any discrimination."

All the prayers are in the form of declaration, which means grant of a declaratory decree. To pass, such decree, the suit must fall within the requirement of Section 42 of the Specific Relief Act. The seetion provides that any person entitled to any legal character, or to any rights as to any property may institute a suit against a»y person denying or interested to deny his title to such character or rights.

In the case of Sripatrao Sadashiv Upre v. Shankarrao (AIR 1930 Bombay 331), it was held that alleged right arising out of a contract cannot find a subject-matter to a declaratory suit.

In the case ofNathu Ram v. Mula and outers(AIR 1937 Lahore 25), it was held:-

".... that a suit for declaration that the plaintiff would be entitled to contribution from the defendant if and when occasion arose did not fall within Section 42 of the Specific Relief Act where a declaratory relief was sought in respect of rights arising out of a contract which would affect only the pecuniary relationship between the parties to the contract."

The section will not be applicable.

In view of the case-law cited during arguments injunction in a suit in respect of rights arising out of contract effecting only pecuniary relationship cannot be granted. In the present case also relationship between the parties arises out of a contract signed by the School and the Parents and the declaration which have been sought in the suit are of pecuniary nature.

Considering the above definitions and applying the same to the present case, it is clear that the interim relief granted by the Appellate Court at the time of disposing of the appeal and remanding the same to the trial Court amounts to grant of main relief.

The principle laid down under Order 7, Rule 11, C.P.C. enjoins a duty on the Court to reject the plaint, on perusal thereof if it appears that the Suit is incompetent. Rule ll(d) of Order 7 clearly stipulate that where the suit appears from the statement in the plaint to be barred by any law the plaint shall be rejected. In the case of Mst. Zubeda Begum v. Muhammad Saeed, (1991 MLD Karachi 1312): it was held that:-

"The plaint should be rejected if the Court comes to the conclusion that even if the allegations which are made in the plaint were proved to be correct, the plaintiff will not be entitled to get the relief, but the Court cannot consider either the pleadings of the defendant nor any material outside the plaint for rejection thereof. Therefore, the grievance of the learned counsel that the Appellate Court has failed to examine and consider documents placed by the appellant on the record is of no substance. The Appellate Court would have acted in violation of the aforesaid settled principle of law, if it had done so."

Next contention of the learned counsel for the applicant that in spite of the fact that the averment made in the plaint were denied by the respondent, but the learned Appellate Court still held that the applicant admitted the averments of the respondent, is supported by different paras of . the counter-affidavit and objection filed in the suit/appeal. In para. 15 of the Appellate order the learned District Judge has observed that "On facts most of the averments of the appellants are admitted," which is contrary to the contents of the counter-affidavit.

Admittedly, a party has a right to approach the Court if they are aggrieved by actions of the others but it is the forum which is to be correct one. If the plaintiffs in the suit were aggrieved of the actions of the defendants and thair fundamental rights were violated, the law provides a proper forum where the grievance could be retrieved. One such forum to which the plaintiff in the suit approached was the "Controlling Authority" where they lodged their grievance.

Without going into the merits of the case or giving any finding as to the legal status of Respondent Nos. 1 to 100 this revision is accepted and the judgment dated 14.12.1995 passed by the learned Appellate Court is set aside. The case is remanded back to the trial Court of Senior Civil Judge, District Malir, which will decide all the issues being raised by the parties in the case according to law.

(K.K.F.) Case remanded.

PLJ 1999 Karachi 243

Present: M.L. SHAHANI, J. MOHBAT KHAN-Applicant

versus

PROVINCE OF SINDH and 14 others-Respondents

Civil Revision No. 54 of 1995, decided on 2.9.1997.

Civil Procedure Code, 1908 (V of 1908)-

—O-XXJOX, Rr. 1, 2 & S. 115-Plaintiff was sought interim relief on basis of his purported ownership of land in question—Interim relief refused-­ Challenge to-Record of rights produced by plaintiff was declared by both Courts below to be false record-Revenue Officer also stated that entries of Revenue Record produced by plaintiff were forged-Forged documents could not confer any right of any kind on any person-Grant of interim relief fell within equitable jurisdiction of Civil Court-Equity would not help the person who had come to Court with unclean hands- Maintenance of status quo would amount to reversing orders of Court below—Trial Court was, however, directed to decide the suit, at an early period in accordance with law. [Pp. 245 & 246] A, B & C

1997 SCMR 1139 ref.

Ghulam Muhammad Khan Durrani, Advocate for Applicant. Karam Alt Mughal, Advocate for Respondents Nos. 9 and 10. Zawar Hussain Jaffri, Addl. A.G. Date of hearing: 2.9.1997.

order

The applicant has assailed an order dated 24.1.1995 passed by learned 2nd Senior Civil Judge Sukkur in 1st Class Suit No. 77 of 1994 refusing to grant ad interim injunction to the applicant who was plaintiff before the trial Court. This order has been merged in an appellate order passed by Bind Additional District Judge Sukkur on 20.6.1995 who also dismissed Civil Miscellaneous Appeal No. 1 of 1995 arising out of the impugned order of the Civil Court, and both these orders have been impugned in this Court Revision Application.

Briefly the case of plaintiff is that he is 50 paisa share holder in the property which has been erroneously allotted to Respondents Nos. 3 to 15 by Respondent No. 2 and Sindh Land Commissioner, however, Sindh Land Commission is not respondent either before the trial Court nor before me. His further contention is that he has record of rights in his favour the land could not be allotted to Respondents Nos. 3 to 5 and, therefore, he prayed for declaration and injunction to the extent that the plaintiff is owner of the disputed land allotted to Respondents Nos. 3 to 5 and the allotment in favour of respondents be annulled/declared invalid and prayed for injunction as well.

The parties filed their written statement and objections. The Respondent No. 2 Mukhtiarkar stated that the record of rights produced by the plaintiff is forged document. The land was never transferred by an authority to the plaintiff at any time and his claim over the suit land is pulpably false. The trial Court while refusing the interim relief held as follows:-

"I am not inclined to grant the above application for the reasons that the present Revenue Record in respect of the suit land is not in the favour of plaintiff. Plaintiff has also not produced any proof of his possession over the suit land. On the other hand defendants have produced allotment orders, hence noprima facie case is made out by the plaintiff and no balance of convenience lies in the favour of plaintiff and plaintiff shall not suffer an irreparable loss in case above application is refused. In such circumstances I find no merit in the application hence it is dismissed with no order as to costs."

Maintaining the impugned order of trial Court, the Appellate Court ruled as follows:

"The Respondent No. 2 is Taluka Mukhtiarkar Rohri has clearly stated in his objections filed by him in this appeal that the document i.e. record of rights produced by the appellant before this Court regarding 50 paisa share in the disputed land is bogus fabricated and does not exist in Revenue Record and the same has been prepared by him mala fldely. He has clearly stated that the appellant has never remained in possession of the suit land while the respondents/grantees are in actual cultivating possession of the disputed land. In view of the above circumstances I am of the considered view that the appellant has failed to prove a prima facie case in his favour. The balance of convenience does not lie in his favour, and if injunction if refused he will not suffer any irreparable loss as he is not in possession of the disputed land. The learned trial Court has rightly dismissed the injunction application of the appellant and 1 do not find any reason to interfere in the same. The appeal of the appellant is, therefore, dismissed with no order as to costs. The R & Ps of the learned lower Court be sent back to lower Court for further proceedings."

Contention urged before me is that if the entry was false the Court has not taken any action against the plaintiff. His further contention is that he is in continuous possession since 1974, therefore, presumptions of record of rights in his favour are valid and thirdly he has contended that the trial Court before disposing of application under Order 39, Rules 1 and 2 should have framed the issue regarding the ownership.

The contention of the respondents before me is that the plaintiff/applicant had no right whatsoever over the suit land. He was a trespasser and usurper. Learned counsel for respondent has relief upon 1997 SCMR 1139 Abdul Hakeem v. Habibullah and 11 others in which the HonTjle Supreme Court has re-affirmed the time honoured principle of law that the jurisdiction of this Court under Section 115, C.P.C. is very limited, and that the Court under Section 115, C.P.C. cannot substitute its findings affecting those findings of fact which are based upon cogent reasons and sold material on record and sustainable in law.

Reverting to the first contention I am not impressed that the prosecution has not been initiated against the forgery. The cannot be taken to be plus point in favour of the plaintiff. The action for forgery would ultimately lie if the Court comes to the conclusion that indeed forgery has been committed by the plaintiff.

The second contention of the learned counsel that he is in possession of the premises. How he come to possess the land is yet to be determined by the trial Court The contention of private respondent is that he is in

possession. However, apparently on the basis of record the plaintiff/applicant has no title in his favour. Through the interim injunction the Court only protects the legal possession of the property and does not protect the interest of tresspassers/usurper. By doing so, the Court will be travelling in an area which is unknown to the jurisprudence. The illegal possession without title, thus, cannot be protected through interim relief under Order 39, Rules 1 and 2, C.P.C.

Coming to the other contention, the record of rights produced by the plaintiff was declared by both the Courts below to be false record. It does not bear true entries of the Revenue Record and Mukhtiarkar in his objection has specifically stated that it is forged document. Forged documents cannot confer any right of any kind on any person and the person who uses false document, comes to the Court with unclean hands. Granting interim relief is equitable jurisdiction of Civil Court. Equity does not help the person who comes to the Court with unclean hands.

In this case I have quoted the findings of the trial Court and the 1st appellant Court. No exceptions can be taken against such findings. It is for the plaintiff to apply to the trial Court for framing for any issue. However, this Court cannot give directions in such matter.

Lastly, it was contended that this Court should paas the order for maintenance of status quo and that the directions be given for disposal of suit as early as possible. Again I am not inclined to grant such prayer as grant of status quo would amount to reversing the orders of the trial Court and the 1st Appellate Court and the protecting the interest of tresspasser/ usurper. This suit is filed in 1994. The Court is mindful of the fact that there are still older suit which needs to be disposed of. However, it is expected from the trial Court that efforts shall be made for disposal of all suits at an early period in accordance with the law, including this suit.

(K.K.F.)

Order accordingly.

PLJ 1999 Karachi 246

Present: ABDUL HAMEED DOGAR, J. Messrs MEHRAN TRADERS-Appellant

Versus

Messrs WELLCOME PAKISTAN LIMITED KARACHI-Respondent

F.C.A. No. 2 of 1996, decided on 21.3.1997.

(i) Civil Procedure Code, 1908 (V of 1908)--

—8. 97—Appellants had not preferred appeal against preliminary decree-Held: Appellants were competent to question validity of final decree even if they had not preferred appeal against preliminary decree which otherwise was not a complete one. [Pp. 250 & 251] A

PLD 1984 SC 208; PLD 1972 Lah. 187; 1996 SCMR 763 and PLD 1967 Kar. 136 ref.

(ii) Limitation Act, 1908 (IX of 1908)-

—S. 12(2)-Time requisite for obtaining copies-If there was delay in depositing and delivering the stamps and folios after notification such delay could not be taken advantage of by a prospective appellant or applicant, as the time taken could not be said to be the time requisite for obtaining copy of order or decree under S. 12(2}-Fact that appellant or applicant had made a delayed deposit and Court had accepted delayed deposit instead of rejecting the application, did not make any difference.

[P. 252] C

PLD 1984 SC 208 and AIR 1978 Cal. 358 rel, (iii) Sindh Chief Court Rules (O.S.)-

—Rr. 323 & 331-Contention that Record Keeper was bound to paste copies for delivery on Notice Board in office-Held: Rule 331 provided that list of copies and translation ready for delivery shall be pasted on Notice Board--Since copies were not ready for delivery for want of stamp, it would not be included in list under Rule. [P. 251] B

Mr. S, ManzarAlam, Advocate for Appellants. Mr. M.A. Rashid, Advocate for Respondents. Date of hearing: 21.3.1998.

order

This appeal is directed against the judgment, dated 29.5.1993 and final decree dated 25.9.1995 of learned 1st Senior Civil Judge, Sukkur in F.C. Suit No. 86 of 1990 (Messrs Wellcome Pakistan Limited v. Messrs Mehran Traders) whereby the suit of the respondents was decreed and/as per final decree the appellants were directed to pay Rs. 11,16,614.72 with interest at the rate of 15% per annum upto 31.8.1995 and to continue paying further interest at the same rate up to the time the entire amount was realised.

V

The facts raised in the plaint by respondents are that their company carries on business of manufacturing and supply of drags at Karachi and also supplies other material to the dealers. The appellants are dealers of the respondents and are carrying business of selling drugs and other material at Sukkur since last 10-15 years. On 28.8.1981 the appellants entered into an agreement with the respondents for grant of cheque facility payment due to marketing conditions. This facility was allowed to them for limited period but they became defaulters in paying the dues of the invoices within the contract period. They however cleared dues of invoices from 1985 to 1987 and failed to clear the dues from July, 1988 to January, 1990 which according to them had been because of the marketing conditions. Their further case is that the respondents keeping in view the business credit gave further facility of paying tie dues in installments for which the appellants entered into separate agreement on 10.2.1990 as per schedule mentioned in the agreement which was accepted and signed by both proprietors of the firms. In spite of the above facility the appellants did not clear the dues which remained unpaid by them despite repeated demands and notices dated 5.1.1989,4.3.1989 and 4.4.1989 and lastly a bill of Rs. 11,46,671-87 was sent to the appellants for payment who admitted the correctness of the balance recorded in the bill dated 31.5.1990. The respondents on failure to receive the above amount filed this suit praying therein that a decree in the above amount be passed against the appellants and interest at the rate of 15% be awarded till the decretal amount is realized.

The suit was contested and appellants field written statement They\' -^ admitted paras. 1 and 2 of the plaint but denied the agreement dated 28.8.1981 and pledged the same to be fabricated and forged one. They admitted the payment of dues up to 1987 but denied the rest of the dues. The appellants in written statement admitted agreement dated 10.2.1990 but stated the respondents violated the terms of agreement Therefore a notice dated 11.8.1991 was served upon the respondents calming the damages from them to the tune of Rs. 23,00,000 and in order to save their skin they filed the suit. In the written statement the pleas of suit being not maintainable and not filed by properly person, and it being not in accordance " with provisions of Order HI, C.P.C. were also taken.

From the pleadings of the parties the trail Court settled the following issues :--

(1) Whether the suit as framed is not maintainable in law ?

•

(2) Whether no cause of action has accrued to the plaintiff for filing the present suit ?

(3) Whether the terms and conditions of the agreement dated 10.2.1990 were violated by the defendants ?

(4) Whether the plaintiff was served by the defendants with the notice dated 11.8.1991 claiming damages for Rs. lacs. If so, with what effect ?

(5) Whether the defendants are liable to pay the suit amount viz. Rs. 1,14,6671.87 paisas to the plaintiff ?

(6) What should the decree be ?

To establish the case respondents (plaintiffs) examined P.W. 1 Ghulam Raza Station Incharge who produced original agreement dated 28.8.1981, application for grant of cheque facility, notice, dated 5.1.1989, 4.3.1989, 4.4.1989, agreement dated 10.2.1990 and 30 original invoices and then their side was closed on 14.11.1992., On the other hand the appellants in spite of many chances failed to lead evidence. As such their side was closed on 2.3.1993. After hearing both the parties the learned trial Court passed preliminary decree on 31.5.1993. But before report of the Commissioner, an application under Order VH, Rule 11, C.P.C. was moved on 23.11.1994 by the respondents on the grounds as mentioned below :--

(1) That the suit is not maintainable.

(2) That the suit is barred under Order HI, Rules 1 and 2, C.P.C. and Sindh Civil Court Rules.

(3) That the suit is filed by a person who was not authorized and his power of attorney is not according to the Power of Attorney Act.

The abovesaid application was dismissed on 10.9.1995 and final decree was passed on 25.9.1995.

Mr. M.A. Rasheed learned counsel for respondents at the very out set raised a legal plea that this appeal is not maintainable as the appeal required under Section 97, C.P.C. against preliminary decree dated 29.5.1993 of learned Senior Civil Judge, Sukkur has not been preferred. He next contended that this appeal too has not been field within time and is hit by Section 12 of the Limitation Act. According to him application for grant of true copies of the documents was made by the counsel of appellant on 24.9.1995 and its estimated cost was determined on the same day and advance fees were deposited but the stamps were not supplied on that date which were supplied on 21.12.1995 and it was on that day the copies were not only made ready but were delivered to the appellant. Learned counsel argued that in view of the above position the case of appellants is hit by sub-rule (2) of Rule 324 of Sindh Civil Courts Rules whereby if the estimated amount of fees and in case of certified copies requisite stamps in not deposited within seven days from the date of communication under sub-rule (1) of Rule 323 the application shall be rejected. He lastly argued that present appeal was preferred on 17.3.1996 whereas the estimated cost was determined on 24.9.1995. As such the appeal is preferred beyond stipulated period of three months provided for filling of appeal under Section 96, C.P.C. In support learned counsel relied upon the case-law reported in PLD 1984 SC208.

On the other hand, Mr. Manzar Alam, controverted the arguments and submitted that the estimated cost was determined provisionally and some amount inadvance was obtained from appellant and no notice as required under Rule 325 was issued or communicated to the appellants by the Copying Branch about the documents being ready, and supply of the stamps. He lastly argued that this Court is competent to dispose of this matter as a writ petition in case the Court comes to the conclusion that the present appeal is barred by the law of Limitation and that technicalities, if any, should not come in the way of justice. He placed reliance on the case-law reported in PLD 1972 Lah. 187 and 1996 SCMR 763.

Relevant points for determination are set down as under :--

(1) What will be the effect if no appeal is preferred against preliminary decree as required under Section 97, C.P.C. ?

(2) Whether the case of appellants is hit by Section 12 of the Limitation act in view of Rule 324 of Sindh Civil Court Rules ?

Admittedly the appeal against preliminary decree dated 30.5.1993 has not been preferred. On this point learned counsel contended that after passing of the preliminary decree the learned trial Court appointed Commissioner to settle the accounts and calculate the interest who did so on 7.8.1995 and on the basis of which final decree was prepared on 25.9,1995 against which the instant appeal has been filed. Learned Counsel for the respondent, on the other hand, stated that the decretal amount in preliminary decree as well as in final decree was determined to be one and same and the provisions of Section 97, C.P.C. clearly contemplate that in case appeal is not filed against the preliminary decree, party aggrieved shall be precluded from disputing its correctness in appeal preferred from the final decree. For proper appraisal a reference is made to Section 97, C.P.C. which is as follows :-

"97. Appeal from final decree where no appeal from preliminary decree.-Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree."

From its bare reading it transpires that in case if appeal is not preferred against preliminary decree the correctness to the same cannot be questioned in any appeal to be preferred against final decree. Same view has been taken by this Court in the case of Rashid Ahmed v. Nazir Ahmed reported in PLD 1967 Kar. 136.

I do not agree with the contention of learned counsel for respondents and point No. 1 for determination settled above is answered in the manner that the appellants are competent enough to question the validity of the final decree even if they had not preferred appeal against the preliminary decree which, in fact, was not complete as after the announcement of judgment the learned trial Court did not find the amount accurate and, therefore, appointed Commissioner to settle the accounts which was done in the final decree.

Adverting to the next point regarding the limitation it may be observed that the appellants applied for the grant of true copy of judgment and decree and other documents on 24.9.1995 and it was on the same day the amount was ascertained by the Copying Branch and estimated cost was deposited on the same day. The stamps as well as deficit amount was paid on 21.12.1995 and the copies were made ready and with certification on the same day delivered to the appellants. They however, filed appeal on 17.3.1996 that is after 5 months and 21 days whereas the period for filing appeal is prescribed to be 3 months only. Rule 323 of Sindh Chief Court Rules provides that as soon as an order for copy or translation has been made the Record-keeper shall number and register application is the register of application for copies and translation and shall also at once, if possible, or during the same day but ordinarily not later than following working day ascertain the amount of copying, comparing and translation fees and enter them on the application and communicate them to the applicant. Sub-rule (1) of Rule 324 states that no copying or translation shall be commenced until the estimated amount of copying, comparing fee, translation have been deposited with the Record-keeper and its sub-rule (2) says that the estimated amount of fees and in case of certified copy, also to requisite stamp if not deposited within seven days from the date of communication under sub-rule (1) to the applicant, the application shall be rejected and note be made in the register of applications for copies and translation. Here in the present case the estimated amount was deposited by the appellants on the same day when it was calculated by the Record-keeper but the requisite stamp was not supplied within 7 days which being a mandatory provision the application was liable to be rejected. Rule 329 makes the position further dear which is produced as under :-

1. Certified copies shall be endorsed with the following particulars:--

(1) The date of application for the copy;

(2) the date of estimate of fees;

(3) the date of deposit of estimated fees and the date of supply of stamp;

(4) the date of certification by the Chief Ministerial Officer; and

(5) the date of delivery of the copy.

They shall be certified at the foot to be a "true copy" shall bear the seal of the Court on each page, and shall be dated and subscribed in full with his name and official title by the Chief Ministerial Officer of the Court. The Certifying Officer shall initial every alteration and interlineation in the copy.

This rule shows that two separate dates are mentioned about the deposit of estimated fee and supply of stamps. The contention that the Record-keeper was bound to past the copies for delivery on the notice board in the office has no force in view of Rule 331 of the above Rules which provides that list of copies and translation ready for delivery shall be pasted on the notice board. Since the copies were not ready for delivery for want of stamp, it could not be included in the list under this Rule.

The words "time requisition" mentioned in Section 12 of Limitation Act for obtaining copies shall be excluded in certain limited conditions such as where the delay caused was because of the circumstances over which applicant had no control and which could not be due diligence be avoided. In such a situation the delay can form part of time requisite for obtaining the copies. Here in the present case nothing of the sort has either been mentioned or agitated by the appellants in the appeal. Honourable Supreme Court in the case ofMst. Jamila Kkatoon and another v. Mst. Tajunissa and others (PLD 1984 SC 208) has elabortely decided these points and has held that once the estimated amount of fee is communicated to the applicant under Rule 323(1) he is required to deposit the amount as well as the requisite stamp within 7 days from the date of such communication, otherwise his application is liable to be rejected. In case of State of W.B. v. Midnapore Commercial Co.. Ltd., AIR 1978 Cal. 358 Full Bench has held :--

"By framing rules the High Court cannot extend the period of limitation prescribed by the Limitation Act. A date is fixed by the department under the Rules for filing the stamps and folios. The Rules permit that within specified period, the stamp and folios have to be delivered. If stamps and folios are not delivered with thus specified, the application for copies are liable to be rejected. But the period specified in the Rules has nothing to do with extension of the period of limitation prescribed by the Limitation Act. If there is delay in depositing and delivering the stamps and folios after notification, that delay also cannot be taken advantage of by a prospective appellant or applicant, as the time taken cannot be said to be the time requisite for obtaining copy of order or decree under Section 12(2) of the Act. The fact that a proposed appellant or applicant has made a delayed deposit and the Court has accepted the delayed deposit instead of rejecting the application does not make any difference.

Keeping in view the above legal position the case of appellants is hit by Section 12 of Limitation Act and there is absolutely no ground shown by the appellants to exclude the time consumed by them in obtaining the copies of the documents. Therefore the appeal of the appellants apparently seems not to have been filed within time and is barred by law of Limitation.

The law referred by learned counsel for appellants is entirely on different facts and circumstances and has no relevancy to their case.

The trial Court has properly dealt with the issues in the judgment and it has rightly observed under Issues No. 3 that appellants/defendants failed to bring any evidence oral as well as documentary in spite of many chances granted to them and on the contrary the claim of respondents/plaintiffs was fully supported and corroborated by oral as well as documentary evidence inasmuch as so many documents were produced which were not rebutted.

For the foregoing reasons there seems to be no merit in the appeal. Therefore, the same is dismissed in litnine with no order as to costs.

(K.K.F.) Appeal dismissed.

PLJ 1999 Karachi 253

Present:M.L. shahani, J. Syed HUSSAIN ALI SHAH--Appellant

versus

SHAMSUDDIN-Respondent F.R.A. No. 19 of 1987, heard on 25.8.1997.

Sindh Rented Premises Ordinance, 1979 (XVII of1979)--

—-Ss. 18 & 21-Tenant-Ejectment of~Denial of relationship of landlord and tenant-Dismissal of application by Rent Controller-Status—Respondent (tenant) admitted in written statement that he was liable to pay rent-­ Respondent had not claimed ownership of premises in question-Rent was already determined-Respondent had himself produced order of allotment in favour of original owner who had transferred the same to petitioner-Respondent, was, thus, undoubtedly tenant and would fall within scope of law-Letter of transfer of ownership was sent to respondent through registered post on his correct address-Relationship of landlord and tenant stood established between parties-Respondent had himself admitted in his cross-examination that he had not paid rent to appellant, therefore, default stood established on record-Findings of Rent Controller whereby he had dismissed application for ejectment, being not correct, were set aside-Ejectment of tenant was ordered in circumstances. [Pp. 255 & 256] A, B, C & D

1994 SCMR 1012; PLD 1964 S.C. 189; PLD 1984 Kar. 63; 1989 CLC 34; NLR 1980 UC 456; 1989 CLC 252 ref.

Mr. David Lawrence, Advocate for Appellant. Mr. Abdul Kadir Shaikh, Advocate for Respondent.

Date of hearing: 25.8.1997.

judgment

This appeal by the landlord calls in question an order passed by Ilnd Rent Controller dated 19.1.1987 dismissing the Rent Application No. 75 of 1986 filed by the appellant against the respondent for ejectment. The learned Rent Controller came to the conclusion that the relationship of landlord and tenant does not exist, therefore, application was misconceived. He also came to the conclusion that the notice under Section 18 was not served on the respondent and, therefore, dismissed the rent application.

1.Briefly the facts of the case are that the appellant filed ejectment application on 8.5.1983 against the respondent stating that he has purchased 716 Sq. yards, out of C.S. No. 105 from its previous owner namely one Mir Muhammad son of Muhammad Yakoob through registered sale-deed dated 29.9.1981. The appellant further stated that the said premises were in occupation of 8 tenants including the present respondent. He further stated that he served the notice under Section 18 on 8.12.1981, which was received by respondent and even after receiving such notice, no rent was given to him as such he has field the ejectment application. The respondent centered the case and filed written statement. He denied that he received any notice from the appellant. He stated that he did not receive the notice under Section 18. It is alleged that he did not commit wilful default, as such applications so filed, is illegal and he is not liable to be ejected.

1. In support of his case, the appellant examined himself, produced the title documents, and the copy of the notice. In fact 2 notices were served, one in relation to the premises occupied by the respondent himself and the other notice to his father Dhani Bux Soomro, who was also in possession of 1295 Sq. feet of the same premises. The respondent himself examined and produced a letter dated 30.1.1985 where from it was established that the premises were transferred to Mir Muhammad and the rate of rent was fixed by the Deputy Settlement Commissioner o. 24.12.1996 to be Rs. 12. Another affidavit in evidence has been filed by Muhammad Bachal, who says that he is a masson by profession. It is stated by him that he constructed a room and the remaining open area was a court-yard that was the portion of the house where respondent Shamsuddin is residing.

2. Originally this rent application was filed and the appellant claimed relief for two portions, one in possession of respondent and the other in possession of his father Dhani Bux, but the relief in relation to the portion in possession of his father was dropped.

3. The learned Rent Controller on the assessment of the evidence, came to the conclusion that the relationship of landlord and tenant is wanting. There is no agreement between the appellant and the respondent nor there is statutory relationship of landlord and tenant. He came to the conclusion that notice was not served and consequently dismissed the application vide impugned judgment.

4. Mr. David Lawrance learned counsel appearing for the appellant while assailing the impugned judgment, contended that Mir Muhammad the original transferee of tht- premises was the landlord while the respondent was in possession of the premises. The amount of the rent was fixed by the Settlement Commissioner and the letter issued by the Deputy Settlement Commissioner to that extent was produced by respondent alongwith his affidavit in evidence. He further contended that the notice under Section 18 was issued to the respondent as well as to his father Dhani Bux Soomro. Learned counsel for the appellants has relied upon the following judgments:-

(1) Muhammad Rafique vs. Messrs Habib Bank Limited (1994 SCMR 1012).

(2) Rahim Bakhsh v. Ch. Ahmad Bakhsh and others (PLD 1964 Supreme Court. 189).

(3) Mst. Fatima Bi and 15 others v. Muhammad Amin (PLD 1984 Karachi 63).

(4) Pakistan Art Emporium Shop No. C/6 v. Palace Hotel, Karachi (1989 CLC 34).

1. Mr. Abdul Kadir Shaikh learned counsel appearing for the respondent, contended that the respondent, is not the tenant, therefore, the application was misconceived. He has relied upon the following judgments:—

(1) Sh. Salahuddin v. Malik Muhammad Yakoob (NLR 1980 UC 456).

(2) Ghulam Muhammad v. Abdul Ghaffar and another (UC of this Court in F.R.A. No. 11/82).

(3) BeejalMal v. Punaji (1987 CLC 1134).

(4) Haji Faaqir Muhammad v. Hazratullah (1989 CLC 252).

1. In the judgments relied by the learned counsel for the respondent as a matter of fact, the Courts came to the conclusion that the relationship of landlord and tenant was wanting and, therefore, the relief was denied to the landlord. In this case it is to be seen whether the relationship of landlord and tenant exists between the parties. If it does as a matter of fact, then the judgments relied by the learned counsel for the respondent would not be attracted.

2. The definition of tenant as given in Section 2(J) reads as follows: -

"(J) 'tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:--

(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;

(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant; and

1. It is admitted that the respondent is in possession of the premises i.e. 755 Sq. feet. He admitted in written statement that he is liable to pay the rent. He is not claiming ownership of the premises. The rent was already determined and the respondent himself with his affidavit in evidence, produced the letter, therefore, he is undoubtedly tenant and falls within the scope of law.

2. In order to determine whether the appellant is landlord, the evidence on the record reveals that the notice under Section 18 was served on the respondent. That notice is at page-47 of the trial Court record. The address of the respondent is correctly shown and not disputed by Lkr, receipt of registered letter issued by Post Office is also available on record, which is not disputed by the respondent and the Post-man was also examined by the trial Court. This notice was denied by the respondent and stated that he did not receive this notice. I checked the admitted signature of the respondent on the written statement and the signature on "the acknowledgment due" receipt at page-49. I also checked his signature on affidavit in evidence. The pattern of writing word "S" is identical in all these documents.

3. The address on the acknowledgement due, is not disputed by the respondent. He has however, denied that b° received letter. It is well-settled law that if the notice is sent in registered post on a correct address, \ presumption under Section 27 of General Clauses Act is attached, and it will be presumed that the letter is delivered.

4. For all these reasons, I hold that the notice under Section 18 has been served on the respondent, as such the relationship 'of landlord and tenant is created between the appellant and the respondent, therefore, he was liable to pay the rent of the portion under his occupation admeasuring 755 Sq. feet.

5. Since the relationship of landlord and tenant is established admittedly he has not paid the rent, as such default is established on the face of record. In this connection he has admitted in cross-examination that he never offered any rent to the appellant. He further stated that in case this Court direct me to pay some reasonable rent I will pay the rent." Since the default is established it is, therefore, held that the findings of the Rent Controller are not correct and therefore set aside and the rent application is allowed, ejectment is ordered to the extent that the premises which are possession of the respondent, shall be vacated and handedover to the appellant by 30.1.1997.

(K.K.F.) Ejectment ordered.

PLJ 1999 Karachi 257

Present: M.L. SHAHANI, J. GULAB-Plaintiff

versus

KARACHI PORT TRUST and others

-Defendants

Suit No. 687 of 1988, decided on 6.1.1997.

(i) Fatal Accidents Act, 1855 (XIII of 1855)--

—S. 1-Fata accident-Damages-Claim of-Pre-requisites for-Under Fatal Accidents Act, it must be proved on record that accident had taken place and as a result thereof person had sustained injuries which might have proved fatal-Such injuries must be shown to have been caused through rash and negligent act by some one to whom responsibility must be specifically fixed and proved through legal evidence. [P. 261] A

(ii) Fatal Accidents Act, 1855 (XIII of 1855)--

—-S. 1-Acquittal of accused from Criminal Court-Deposition of witnesses- Status-Acquittial in criminal case or deposition of witnesses based upon same incident in that criminal case would not be taken into consideration while deciding suit under Fatal Accidents Act. [P. 262] B

Mr. Nasir Maqsood, Advocate for Plaintiff. Mr. Jawaid Farooqui, Advocate for Defendant No. 2. Mr. Mehmood A. Qureshi, Advocate for Defendant No. 3. Date of hearing: 6.1.1997.

judgment

The case of plaintiff as mentioned in the plaint for recovery of Rs. 8,50.000 under the Fatal Accidents Act, 1855 is that Plaintiffs Nos. 1 and 2 are the sons of deceased Hameedullah Khan while the Plaintiff No. 3 is daughter of the said deceased. The suit has been filed through next friend Umer Farooq Khan. It is claimed in the suit that deceased Hameedullah Khan who was then aged 47 years died in a traffic accident on 8.4.1988 within the area of the T.P.X. Police Station, Karachi and according to the plaint he left the following legal heirs :--

NameRelation Age

1. Shamsho Mother 95 years

2. Asal Bibi Widow 45 years

3. Jahan Zeb son 28 years

4.Akhtari daughter 26 years

It is alleged that on 8.4.1988 Defendant No, 3 who is the driver of Vehicle No. GP-1781 which belong to Defendants Nos. 1 and 2 caused death of deceased Hameedullah Khan by driving the vehicle in rash and negligent manner without giving any alarm, dashed the deceased and due to the fatal injuries he died subsequently. Consequently, therefore, compensation was claimed and it was stated that he was drawing a sum of Rs. 1,500 per month as Chowkidar and was further earning Rs. 1,000 per month by way of serving water to the truck drivers. It is further alleged that he was intending to go to abroad and in such eventuality had he gone abroad his income would have been nearly Rs. 4,000. It is alleged that the expected age is 75 years and since if the deceased would have not died due to rash and negligent act, he would have lived for another 28 years and consequently, therefore, the relief claimed was Rs. 8,50,000 as damages/compensation.

All defendants filed separate written statement. The defendant No. 1 stated that on hearing the horn one of the person turned and was hit by the fire tender's middle body and was injured. He died subsequently in the ( hospital at 1225 hours and not on the spot as alleged in the plaint. It is c further averred that an F.I.R. No. 80 of 1988 was recorded at T.P.X. Police Station and the Defendants No. 3 was sent up for trial and since the prosecution could not establish its case, therefore, the Defendant No. 3 was acquitted under Section 249-A, Cr. P.C. the Defendant No. 1 denied liability to pay the compensation/ damages as "Because the death was not caused due to rashness, negligence, default or wrongful act of Defendant No. 3. "The defendant No. 2 have also taken the same stand. They have also taken the same plea in paragraph No. 7 as quoted above. The Defendant No. 3 also denied that he was driving the vehicle in a rash and negligent manner and that dashed the deceased Hameedullah Khan and subsequently the deceased a got fatal injuries and died on the spot. He denied the allegations of rashness i! and negligence on his part which resulted in the injuries. On pleadings of the parties the Court framed the following issues :--

(1) Whether the death of the deceased Hameedullah was caused by the rash and negligent driving of water taken Fire/Extinguisher No. GP-1781 driven by the Defendant No. 3, belonging to Defendants Nos. 1 and 2 ?

(2) Whether the plaintiff and other legal heirs are entitled to the compensation/damages as claimed ?

(3) Whether the defendants are liable to pay the damages jointly 01 and severally to the plaintiff ?

(4) Whether the plaintiff and other legal heirs are entitled to cost and interest as claimed ?

(5) What should the decree be ?

On behalf of the plaintiffs the next friend examined himself as P.W. 1 vide Exh. 7. He produced photocopy of the F.I.R., a copy of N.I.C. and Death Certificate. He stated in his affidavit-in-evidence that he has filed the suit in representative capacity and he further stated that the Defendant No. 3 caused death of deceased Hameedullah Khan, due to rash and negligent driving. According to him he died on the spot. He further deposed that the death of deceased was caused by actionable wrong negligence, default and wrongful act of Defendant No. 3 who is an employee of Defendants Nos. 1 and 2 as such the Defendants Nos. 1 and 2 are legally liable to pay the compensation. He further stated that the deceased was 47 years and very healthy. According to his further deposition he was a Chowkidar and drawing Rs. 1,500 per month in Zar Paposh Company Kanch Godam West Wharf Road, Karachi. It has been further deposed that he used to earn another Rs. 1,000 per month by way of serving drinking water to the drivers of the trucks and taking delivery of goods from different factories. He further stated that he wanted to go middle East Country and he could have earned Rs. 4,000 per month. According to him he could have lived upto the age of 75 years as from the area that he belonged, the people are averagely living upto, 75 years. He has claimed a sum of Rs. 8,50,000 as damages. In cross-examination he stated that the widow of deceased Asar Bibi has not been impleaded as a plaintiff as she resides in a village. He claims that he met the said widow before filing the said suit and he taken her permission, the permission was not in writing. He further deposed that he is not an eye­witness of the accident. He further deposed that he took the dead body of Hameedullah Khan from Karachi and buried him at Kohat for which the Defendant No. 3 paid Rs. 10,000 to him. He claims in cross-examination that the mother of deceased is maternal grand-mother and is till alive, however, he pleads ignorance as to when the father of deceased dies as according to him he died in his child-hood. He stated that the deceased had told him that he wanted to go abroad. According to the understanding of the said witness the general minimum earning in the Middle East country is Rs. 4,000. He further deposed that since he was himself a driver in U.A.E., therefore, he is aware of the prevailing rates. He pleaded ignorance to the question that the Defendant No. 3 has been acquitted in the criminal case arising out of the said accident. The other witnesses examined by the plaintiff is Muhammad Nasir, who claims to be the eye-witness of the accident which took place on April 8, 1988. According to him he saw that the Defendant No. 2 had driven the Fire tender bearing No. GP-1781 of the Defendant No. 1 on his way towards West Wharf from Khawaja Jamat Khana in a very rash, negligent and careless manner without any alarm and when he reached near Dock Labour Board and opposite Kanch Godam he dashed the pedestrian Hameedullah Khan at a excessively high speed from the wrong side and consequently pedestrian Hameedullah Khan got fatal injuries and died immediately. Accordingly to the him the Defendant No. 2 could not control the balance of the said vehicle and dashed the same against the pedestrian and dragged him for couple of steps causing him fatal injuries. I notice from his deposition that in paragraph No. 2 and repeatedly in paragraph No. 4 he has alleged that the Defendant No. 2 drove the vehicle. (Emphasis supplied) the Defendant No. 2 according to the plaint is K.P.T. Fire Station.

The said witness in cross-examination has deposed that at the place of accident traffic was moving and along the pavement some trucks were also parked. According to him the deceased was standing besides one of the trucks and either he was going to fetch or carrying the water as he had a cane in his hand when the fire tender hit him. He was specifically put the following question :--

Q. 'You have stated in your affidavit-in-evidence that the Defendant No. 2 was driving the vehicle 'in a very rash, negligent and careless manner'. What do you mean by your statement that the Defendant No. 2 was driving the vehicle 'in a very rash, negligent and careless manner'?

A. By this I mean that he was driving the vehicle without alarm, without blowing the horn, at a very fast speed and on the right hand side of the road instead of being on the left hand side of the road".

The above-quoted question was put to him specifically as to what does he mean that the Defendant No. 2 was driving the vehicle. Even in reply he did not correct himself that in fact it was the Defendant No. 3 who was driving the vehicle. He had further deposed as follows :--

"It is correct that the road on which the said accident occurred was then and still in a one-way road i.e. traffic-flow on that road is only in one direction. It is correct that a pavement runs in the middle of the road dividing it into two roads and on the road on one side of the said middle of the road pavement the traffic moves in one direction while on the road on the other side of the said pavement the traffic moves on the opposite direction.

The trucks were parked alongside the side middle of the road pavement. When earlier I said that the Defendant No. 2 was driving the vehicle on the right hand side of the road instead of being on the left hand side of the road, 'I meant that he was driving on the right hand side near the middle of the road pavement of the said one-way road and not that he was driving in the wrong direction. It is correct that the said fire-tender was travelling in the correct direction i.e. in the same direction in which movement of traffic is permitted on that one-way road."

The Defendant No. 3 examined himself and stated that he has been acquitted under Section 249-A, C.P.C. in relation to the incident/accident resulting in death of deceased Hameedullah Khan. Before cross- examination, however, he produced certified copy of acquittal order and certified copy of the depositions of witnesses as Exhs. No. 9/1, 9/2 to 9/5.

He was cross-examined at length and specifically denied that he was driving negligently, rashly or at excessive speed. According to him he suddenly heard the sound of something which hit the vehicle in rear and he himself immediately stopped the vehicle and got down when he saw the deceased had dashed on the rear side of the vehicle apparently the deceased was between two parked vehicles and was dashed by one amidst since he dashed on the rear side of his vehicle he could not see as to what exactly happened. According to him that at the relevant time the gate of railway crossing was also closed and, therefore, the traffic had stopped. He denied the suggestion that he had filed false affidavit-in-evidence.

The Zafar Ali Khan was examined on behalf of the Defendant No. 2. He has produced the map of the area where the accident had taken place which is Exh. 10/2. The witness of plaintiff Muhammad Nasir has also admitted to be correct by deposing as follows :

"1 am shown a rough sketch of the place of accident and say that it does correctly show the position of the parked trucks at the place of accident.

According to the map the road followed by the vehicle is marked in green, the trucks parked are marked in blue and the place of accident is marked in red.

I have gone through the written arguments filed on behalf of the plaintiffs as well as on behalf of the Defendant No. 3. After having considered the case from all angles and entire deposition on record I have come to the following conclusion on the above issue :

ISSUE NO. 1:

In order to claim damages/compensation under the Fatal Accidents Act, it must be proved on record that an accident has taken place. As a result of accident the person must sustain injuries which may prove fatal. The injuries must be caused through rash and negligent act by some on whom the responsibilities must be specifically fixed and proved through legal evidence.

In this case accident is proved Fatal injuries are proved, the vehicle with which the injuries were sustained is proved. But what has not been proved is rash and negligent act on the part of Defendant No. 3.

In this connection the evidence led by the plaintiff is through next of kin's deposition who is not an eye-witness as such his evidence regarding rash and negligent act is only hearsay as such not sustainable as legal evidence. The second witness of plaintiff who is an eye-witnesses has fixed the responsibility on Defendant No. 2 and that too repeatedly in his affidavit-in-evidence and even in cross-examination. When specific question was put as to what he means about rash and negligent act of Defendant No. 2 he did not fix the responsibility on Defendant No. 3. I would, therefore, hold that the plaintiffs have failed to discharge their burden and initially did not establish that the rash and negligent act on the part of Defendant No. 3 cause accident which proved fatal and led to the death of deceased.

As against the evidence of the two witnesses of the plaintiffs, the Defendant No. 3 against whom responsibility was alleged in the plaint, examined himself as witness. He denied any rash or negligent act on his part. His deposition was not shaken in cross-examination. Mr. Nasir Maqsood, Advocate has argued that the details revealed by the Defendant No. 3 were not the part of his written statement as such he spoke about the facts not mentioned in his written statement. I am afraid I cannot agree with such argument. He has denied about rash and negligent act in the written statement as he has so stated in his deposition. If Mr. Nasir Maqsood, n Advocate for the plaintiffs means about his criminal case acquittal or deposition of witnesses in Criminal Court based upon same incident, which shall be not taken into consideration while deciding the suit then I agree with him. However, while deciding the issue under discussion I have neither referred to the evidence in Criminal case nor I have considered his acquittal by the Criminal Court. I have specifically referred to the evidence in this suit only and no other document.

Yet there is other evidence which suggests that there can be no rash and negligent act on the part of Defendant No. 3. It is a admitted position on record that the vehicle in question was heading towards West Wharf Road. According to Exh. 10/2 (Sketch of place of accident) which is even admitted by second witness of plaintiffs near the Karachi Dock Labour Board trucks were parked on the left side of the West Wharf Road. The railway crossing ahead of Karachi Dock Labour Board Building on the said road was closed (Deposition of Defendant No. 3 refers). The road (West Wharf Road) has partition in between two lanes meant for going to West Wharf or coming from West Wharf. The space on the left side for the vehicle to pass thorough second lane while going to West Wharf become narrower due to parking of trucks on the left side of the road. On such narrow path unless the person driving vehicle is insane he could not drive vehicle recklessly, negligently or rashly.

The Defendant No. 3 has further deposited that the deceased hit the back side of his vehicle. The plaintiffs have failed to prove that vehicle hit the deceased in the front. The doctor certificate only suggests death. The injuries sustained by the deceased are not mentioned nor any document on record has been produced which may disclose the injuries sustained by the deceased. The deposition of Defendant No. 3 is natural and inspires confidence as against the deposition of the witnesses of plaintiffs. As such I believe his deposition which is corroborated by other circumstances. Consequently, therefore, I hold that the plaintiffs have failed to establish • that rash and negligent act on the part of Defendant No. 3 caused fatal accident, and the defendants have established that there was no rash and negligent act on the part of Defendant No. 3 which resulted fatal accident as such I decide the issue in negative.

ISSUES NOS. 2 to 4:

In view of my finding in Issue No. 1, it is not necessary to decide the above issues.

ISSUE NO. 5:

In view of my findings on Issue No. 1, the suit is dismissed with no order as to costs.

(K.K.F.) Suit dismissed.

PLJ 1999 Karachi 263

Present: WAJiHUDDiN ahmed, C.J. and muhammad roshan essani, J. SAIFUR REHMAN-Petitioner

versus

MUHAMMAD AYUB and 2 others-Respondents

C.P. No. D-65 and Misc. No. 708 of 1998, decided on 11.3.1998.

(i) Civil Procedure Code, 1908 (V of 1908)--

—O.XXXIX, Rr. 1 & 2«Contempt of Court Act (LXIV of 1976), S. 3--Party to proceedings could not, while an application for interim relief was bona fidelypending, blatantly so act as to pre-empt its lawful disposal because such act, in given set of circumstances, could amount to doing things calculated "to interfere with or obstruct or interrupt or prejudice process of law or due course of a judicial proceedings" and, thus, fell within mischief of S. 3 of Contempt of Court Act, 1976. [P. 265] A

(ii) Civil Procedure Code, 1908 (V of 1908)-

—-O. XXXK, R. 2 & S. 151--Powers of a Civil Court in terms of O.XXXIX, R. 2(3), C.P.C. extended to initiate appropriate action for disobedience of order of Court and whenever necessary, inherent powers under S. 151, C.P.C. could be exercised for advancement of ends of justice or to prevent abuse of process of Court. [P. 265] B

(iii) Civil Procedure Code, 1908 (V of 1908)--

—O. XXXEX, Rr. 1 & 2--Specific Relief Act (I of 1877), S. 55-Interim order in nature of a mandatory injunction could be issued in a very limited category i.e. of wilful disregard of orders, tending to alter position or status of parties to a judicial dispute while another comprised of like change recklessly and wantonly brought about, while an application for interim relief was receiving active consideration of Court. [P. 265] C

(iv) Civil Procedure Code, 1908 (V of 1908)--

—S. 151 & O.XXXIX, R. 1 & 2--In such cases of wrongdoings merits of the dispute or the stage of the proceedings, interlocutory or final, were irrelevant-All that needed to be considered was the nature of corrective measures to uphold and maintain the majesty of law. [P. 265] D

(v) Constitution of Pakistan (1973)-

—Art. 199--Constitutional jurisdiction of High Court in essentials, was a discretionary jurisdiction and it could not be claimed as a matter of right-­ Such jurisdiction could only be exercised in aid of justice-Each case would entail its own objective conditions and the discretion was to be used on sound judicial considerations-Even where clear and manifest acts of illegality, covered by Art. 199 of Constitution of Pakistan (1973), were questioned in the Constitutional jurisdiction of Court, Court could well refuse relief if aggrieved person had approached Court with unclean hands and was guilty of iniquitous conduct-No room for technicalities in such jurisdiction was available and Court would refrain from according relief where grant of same could, instead of advancing cause of justice and public good, had potential to retard same. [Pp. 265 & 266] E

1995 PLC (C.S.) 1221 and 1995 PLC (C.S.) 1226 ref.

Mr. A. RaufKasuri, Advocate for Petitioner.

Mr. Muhammad Iqbal Malik, Advocate for Respondent No. 1.

Date of hearing: 11.3.1998.

order

Wajihuddin Ahmed, C-J.-This petition is directed against the order, dated 17.1.1998 passed by the learned IVth Additional District Judge, Karachi East, in Civil Revision No. 2 of 1998. That, revision, in turn, was taken against an order, dated 13.1.1998, whereby the learned VHIth Senior Civil Judge, Karachi East, in Suit No. 97 of 1997 had ordered restoration of possession of the disputed property to the plaintiff on the apparent ground that the plaintiff was dispossessed by the defendant in the suit while an ad interim order of status quo had been operative. In the referred proceedings, the defendant expressly acknowledged that he had, during pendency obtained possession of the disputed property from the plaintiff who was the defendant's tenant and that the delivery of possession was voluntary because the plaintiff-tenant was under heavy arrears of rental dues. The two successive orders of the learned Civil Judge and the learned Additional District Judge East, Karachi, have been questioned before us on the plane of want of jurisdiction. It is correct, as is implicit in the argument, that orders of Civil Courts are not challengeable in the Constitutional jurisdiction unless such be void or without jurisdiction or the proceedings be coram nonjudice. This petition must qualify within such narrow compass to bear any fruit.

In the first place, it is doubtful that the orders were without jurisdiction. As already observed, the defendant (petitioner) admitted before the learned Presiding Judges that he had in fact taken-over possession while the proceedings were pending and what is more he also asserted that such taking over and voluntary surrender of possession occurred at a time when the ad interim status quo order had not been extended. These are tell-tale pleas. If the plaintiff (Respondent No. 1) was forcibly dispossessed, the defendant utilized a convenient plea of the ad interim order not holding the field at the relevant time. Needless to point out that there is sound logic behind the proposition that a party to the proceedings cannot, while an application for interim relief is bona fide pending, blatantly so act as to pre­empt its lawful disposal because that, in given set of circumstances, may amount to doing things calculated "to interfere with or obstruct or interrupt or prejudice the process of law or the due course of a judicial proceeding" and thus fell within the mischief of Section 3 of the Contempt of Court Act, 1976. This is so far as the plea of no ad interim order holding that field at the time is concerned. It remains, however, to be reckoned that if the defendant's version of the case is to be accepted and if there actually was a voluntary surrender of possession, there should have been some documentation, some pursuasive evidence in support thereof and above all a person if he had volunteered to vacate could hardly approach the Court overnight for restoration. On the legal plane, the powers of a Civil Court in terms of Order XXXIX, Rule 2(3), C.P.C. clearly extend to initiate appropriate action for disobedience and wherever necessary inherent powers under Section 151 of the Code can be exercise for advancement of the ends of justice or to prevent abuse of the process of the Court. In the circumstances, such powers appear to have been correctly exercised concurrently.

It needs to be stressed here that an interim order in the nature of a mandatory injunction can be issued in a very limited category of cases. One of those cases consists of wilful disregard of orders, tending to alter the position or status of parties to a judicial dispute. Another comprises of like change, recklessly and wantonly brought about, while an application for interim relief is receiving active consideration of the Court. Such manipulated interventions, through acts of commission or omission, have never been brooked by Courts and restoration of the status quo ante can, in appropriate cases be ordered. A party attempting to act in anticipation of the order of a Court or trying to steal a march over his adversary, already in Court or acting in a manner suggestive of a race against the law is liable to correction. In such cases of wrongdoings merits of the dispute or the stage of the proceedings, interlocutory or final, are irrelevant. All that needs to be considered is the nature of corrective measures to uphold and maintain the majesty of law. This the Courts below seem to have achieved. See inter alia Noor Muhammad v. Civil Aviation Authority, 1987 CLC 393.

At any event, the Constitutional jurisdiction of this Court, in essentials, is a discretionary jurisdiction. It cannot be claimed as a matter of right. It can only be exercised in aid of justice. Each case entails its own objective conditions and the discretion is to be used on such judicial considerations. Even where, we might add, clear and manifest acts of illegality, covered by Article 199 are questioned in the Constitutional jurisdiction of the Court, the Court may well refuse relief if the aggrieved person has approached the Court with unclean hands and is guilty of iniquitous conduct. There is no room for technicalities in this jurisdiction and the Court would refrain from according relief where grant of it may, instead of advancing the cause of justice and public good, have the potential to retard it. See Shakeel Ahmed v. Federation of Pakistan, 1995 PLC (C.S.) 1221 and 1226.

In the facts and circumstances of this case, no interference is called for and the petition is dismissed.

(K.K.F.) Petition dismissed.

PLJ 1999 Karachi 266

Present: rana bhagwan das, J. GROSVENOR CASINO LTD. KARACHI-Decree-holder

versus

ABDUL MALIK BADRUDDIN-Judgment-debtor

F.C.D. No. 6 of 1991 and Execution No. 77 of 1991, decided on 10.12.1997.

(i) Gambling Act, (of 1968)--

—S. 16--CM1 Procedure Code (V of 1908), S. 13(3) Foreign judgment-­Execution to recover gambling debt-Whether capable of execution in Pakistan-Question of--Act of gambling and gambling is not only prohibited by Gambling Ordinance, 1961, but also repugnant to injunctions of Qur'an & Sunnah which are embedded in every statute and any statute being repugnant to such injunctions would be void-Act of horse racing is regulated by law in Pakistan, betting on such races has been declared repugnant to injunction of Islam-Recalling to verses 8:60 &34:39, Court observed that net result is that luring people to contribute for pious and charitable causes on temptations of monetary and worldly gains in such schemes would not only amount to paying exorbitant interest in that form but also defeating Quranic dictates-In ultimate analysis Court declared Section 294-A P.P.C.. as repugnant to injunctions of Qur'an and Sunnah and desired President of Pakistan to take steps for amending Sections 294-A & 294-B suitably-Indeed statement of claim forming subject matter of decree expressly stipulates that claim for sum of £ 25,000 against defendant as drawer of six cheques payable to plaintiff which cheques were paid to plaintiff in accordance with provisions of Section 16 of Gambling Act, 1968 which was complied with in all respects—Glance at Section 16 renders such credits for gambling neither lawful nor enforceable at law-Held: Decree is not capable of execution as such transaction would fall within ambit of Section 30 of Contract Act read with Section 13(f) C.P.C. besides being hit by express prohibition contained in Shariat law. [Pp. 271 & 272] C, D & E

PLD 1986 F.S.C. 49, PLD 1989 F.S.C. 60 and PLD 1992 SC 153.

(ii) General Clauses Act, 1897 (X of 1897)--

—S. 27~Service of defendant by ordinary post-Presumption of-Judgment shows that writ relating to claim duly served on 26th day of February, 1987 upon defendant by ordinary post first class mail in envelop duly pre­ paid and properly addressed to him at his address who did not knowledge service of writ and did not give notice of intention accordance with presumption of service arising under Section 27 of General Clauses Act, 1897 which has been generally accepted by Superior Courts in Pakistan- No doubt judgment debtor, in his objections has questioned Service of process on him for reason that in February, 1987 he was not in England nor residing in 66, Devon Port South Wick Street, Lond W-2—Mere objection would not sufficient to defeat decree or to refuse execution-On contrary decree holder has placed on record various documents including letters from solicitors of judgment debtor to demonstrate that he was residing at address disclosed in claim filed against him-High Court cannot go behind decree-Solitary word of judgment debtor at this belated stage that there was no effective service of process on him or that he did not reside at given address cannot be accepted-Held: Presumption raised by English Court and as envisaged in Section 27 of General Clauses Act may be rebuttable, but judgment debtor has miserably fail d to displace such presumption-Execution fails and is accordingly dismissed. [P. 273] F, G & H

(iii) Limitation Act, 1908 (IX of 1908)--

—Art. 181-Sindh Chief Court Rules, Section 309, Civil Procedure Code (V of 1908), S. 44-A-Foreign judgment-Execution of-Prayer for-Whether execution hit by Art. 181 of limitation Act-Question of-Period of limitation so prescribed would commence from date when right to apply accures-Right to apply in such cases would ordinarily arise from date of decree unless operation of decree is suspended-Decree was passed on or about 7th October, 1987 whereas execution was presented in office of High Court for first time on 13.8.1991 which on face of it was filed beyond period prescribed by law-Affidavit for obtaining certificate was sworn before prescribed officer on England Court only on 7th January, 1991 and filed before Court on 16th January, 1991 by which date execution itself had became barred by law-It may further he pertinent to observe that execution could be filed within prescribed period of 3 years and certificate with regard to non satisfaction of decree could be filed subsequently before executing court-Held: Certificate alone would neither extend period of limitation nor deferred commencement of period of limitation for making application for execution of foreign decree.

[Pp. 270 & 271] A & B

Mr. ArifKhan, Advocate for Decree-holder.

Mr. J.H. Rahimtoola, Advocate for Judgment-debtor.

Date of hearing: 11.11.1997.

judgment

In this execution application under Section 44-A CPC read with Rule 309 of Sindh Chief Court (O.S.) Rules for enforcement of a decree passed by the High Court of Justice Queens Bench Division England, respondent/judgment-debtor has raised the following objections and exceptions to show that the decree cannot be executed against him:

(1) That the execution by reason of Article 181 of the First Schedule to the Limitation Act being filed beyond three years from the date of decree is barred by law.

(2) That the suit to recover gaming/gambling debt cannot be decreed and enforced in Pakistan by reason of Section 13(f) CPC and Section 30, Contract Act.

(3) That the decree was passed without jurisdiction in as much as no service of process was done on him according to Pakistan law and that he had not submitted to the jurisdiction of English Court.

1. Decree-holder named above filed a claim for payment of £ 25,000 together with £ 1,709.25 by way of interest and £ 118 as costs in respect of amount of six dishonoured cheques against the judgment-debtor in which according to the decree, the writ was duly served on 26th February, 1987 upon the judgment-debtor who did not acknowledge service of the writ and did not give notice of intimation to them hence the claim was decreed as prayed less £ 1000 paid by the judgment-debtor since the date of issue of writ.

2. Execution application was presented and registered in the office of this court on 13.8.1991 for recoveiy of the amount in Pakistan currency with interest/compensation at 5^.

3. Objections to the execution of the foreign court decree filed on behalf of the judgment-debtor, were dismissed by Mr. G.H. Malik, J. (as he then was) for the reason that the judgment-debtor failed to comply with the requirements of Order XXI, Rule 23-A CPC by a short order dated 31.5.1992, detailed reasons wherefore were recorded on 6.6.1992. This order was impugned in High Court Appeal No. 94/1992 which came up before a Division Bench consisting of S. Haider Ali Pirzada and S. Khurshid Hyder Rizvi, JJ. (as they then were) who allowed the appeal and recalled the impugned order expressing the view that Section 44-A CPC is a self contained Code as regards execution of a foreign decree and that in absence of any provisions in the aforesaid section right of hearing objections without furnishing security cannot be curtailed. Judgment in High Court Appeal was impugned in Civil Appeal No. K-257/1993 which was dismissed vide judgment dated 31.12.1996 recently published in 1997 SCMR 323.

4. S. 44-A CPC governing the decree in hand provides for execution of certain types of foreign judgments and decrees. By reason of this section, the judgments of the superior courts of the United Kingdom and other reciprocating territories can be executed in Pakistan upon filing a certified copy of the same in a District Court and thereafter such decree shall be treated as if it were a decree passed by the District Court and all the provisions relating to execution contained in CPC shall be attracted thereto. It is spelt out from the aforesaid provisions of law that certified copy of such decree shall be filed alongwith a certificate from such superior court stating the extent if any to which it has been satisfied or adjusted and such certificate shall be conclusive proof of the extent of such satisfaction for the purpose of execution. By reference to clauses (a) to (f) of Section 13 CPC, it is stipulated that the District Court shall refuse execution of any such decree if it is shown to the satisfaction of the court that the decree falls within any of such exceptions. It further seems that the provisions of Section 47 CPC as from the filing of the certified copy of the decree shall apply to the proceeding of a District Court executing a decree under this Section. It may not be out of context to reproduce hereunder the provisions contained in Section 13 CPC which reads as under:

"13. When foreign judgment not conclusive.--A. foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except—

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognise the law of Pakistan in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in Pakistan."

1. Adverting to the objection as to the execution being patently hit by the provisions of Limitation Act, a reference may be made to Article 181 of the First Schedule to the Limitation Act which prescribes a period of three years for an application for which no period of limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure 1908. This article is a residuary article which is available in cases in which no other article dealing with the application under the CPC is attracted. The period of limitation so prescribed would commence from the date when the right to apply accrues. The right to apply in such cases would ordinarily arise from the date of decree unless the operation of the decree is suspended. In the present case as would be seen from the decree itself it was passed on or about 7th October, 1987 whereas execution was presented in the office of this court for the first time on 13.8.1991 which on the face of it was filed beyond the period prescribed by law. There can be no exception to the view that such application was filed far beyond the expiry of the period fixed by the Limitation Act and notwithstanding the view expressed in Shaikh All u. Shaikh Muhammad (AIR 1967 Madras 45), that Limitation Act does not apply to execution of foreign decree the view taken in Lukhpat Rai Sherma v. 'Atma Sindh (AIR 1971 Punjab & Haiyana 476) runs counter to the Madras view. It was ruled by a Division Bench in this case that though the decree of a foreign court has to be treated as a decree passed by the District Court for the purpose of execution, application filed for execution for such decree cannot be entertained where neither any step in the execution nor the step in aid of such execution has been taken by the decree-holder in any Indian Court within three years from the date of passing of such foreign decree. This view taken by Madras High Court was also distinguished by our own Supreme Court in 1997 SCMR 323 as the ratio decidendi of the above case seems to be that the Section 44(a) CPC is confined to the powers and the manner of execution and has nothing to do with the law of limitation and that the fiction created by the sub-section goes no further and is not for all purposes but is designed to attract and apply to the execution of foreign judgment by the District Court, its own power of execution and the manner of it in relation to its decrees without reference to limitation.

2. It is thus evident that the execution application is barred by law having been filed beyond the period prescribed in Article 181 of the First Schedule to the Limitation Act. I am least impressed by the contention raised on behalf of the decree-holder that the right to apply accrued after obtaining certificate relating to non satisfaction of decree from the English Court which passed the decree. Learned counsel vainly referred to such certificate dated 5th March, 1991 but this certificate alone would neither extend the period of limitation nor deferred the commencement of period of limitation for making application for execution -^ a foreign decree. Suffice however to say that affidavit for obtaining such certificate was sworn before the prescribed officer of the English Court only on 7th January, 1991 and filed before the court on 16th January, 1991 by which date execution itself had become barred by law. It may further be pertinent to observe that the execution could be filed within the period prescribed by law and certificate with regard to non-satisfaction of the decree filed subsequently before the executing court.

3. Adverting to the second contention raised on behalf of the judgment-debtor that law suit to recover gaming debt cannot be enforced in Pakistan by reason of Section 13(f) CPC, which postulates an exception clause to the conclusiveness of a foreign judgment. This clause provides for an exception where a foreign judgment sustains a claim founded on a breach of any law in force in Pakistan. While a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the parties subject to exceptions enumerated in clauses (a) to (f) and by reason of Section 14 CPC there is a presumption to the effect that such judgment was pronounced by a court of competent jurisdiction unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction. It is nobody's case that the English Court which passed the decree acted without jurisdiction but such decree can always be attacked and assailed in collateral proceedings like execution or satisfaction of the decree and more particularly under clauses (a) to (f) of Section 13 CPC. It is urged that provision of Section 16 of the Gaming Act, 1968 under which the cheques were paid to the plaintiff renders the recovery of such debt unlawful even in England. It is more particularly repugnant to Section 30 of the Contract Act. Latter provision of law stipulates that agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made. If the amount was paid to the JD by reason of a wagering contract, it may be completely violative of public policy and thus not enforceable in this country. Needless to point out an act of gaming and gambling is not only prohibited by Gambling Ordinance, 1961 but also repugnant to Injunctions of Qur'an & Sunnah which are embedded in every statute and any statute being repugnant to such injunctions would be void. It may further be observed that the act of horse racing is regulated by law in Pakistan, betting on such races has been declared repugnant to Injunction of Islam. I am fortified in this view by a Full Bench judgment of Federal Shariat Court of Pakistan in Raja Khushbakht-ur-Rehman v. The Province of Punjab (PLD 1986 Federal Shariat Court 49). In this Shariat petition, petitioners challenged the vires of Section 2(b) of Punjab Prevention of Gambling Ordinance, 1978 which was heard by a Full Bench consisting of five Judges. The conclusion arrived at by the Full Bench was that betting of horses in present form is gambling -Bilateral betting being gambling is forbidden in Islam - Tradition of Prophet of Mohallil is proved only in case of horses being trained for Jehad and was not available to allow the gambling - Betting with Mohallil was therefore not allowed - Betting by spectators of horse-racing are not permitted in Islam -No contrivance can be allowed to operate to achieve a forbidden result -Horse-races are excepted from general restriction, only because of their need and necessity in Jehad against enemies of Allah and Islam.

8-A. Although no precedent is required for the view I have taken hereinabove, there is a Full Bench decision by Federal Shariat Court in Mushtaq All v. Government of Pakistan (PLD 1989 Federal Shariat Court 60) in which the Federal Shariat Court has elaborately discussed the lottery scheme in the make of Sections 294-A and 294-B PPC. After an exhaustive and comprehensive analysis of merits and demerits of the lottery scheme, the court observed as under:-

"Be that as it may, such a payment over and above the amount of loan or contribution is like interest, and so prohibited as stated by Wahaba Zuhailee Vol. V page 178. It says Further> the

very way of luring people to contribute towards objects which are pious or charitable appears to be a rebellion against the Injunctions of Islam. It is neither the fear nor love of Allah but the temptation of a windfall that tempts the investors to bring contributions for the stated purposes."

Recalling attention to verses 8:60 &34:39 the court observed that the net result is that luring people to contribute for pious and charitable causes on the temptations of monetary and worldly gains in such schemes would not only amount to paying exorbitant interest in that form but also defeating the Quranic dictates. In the ultimate analysis the court declared Section 294-A as repugnant to the Injunctions of Qur'an and Sunnah and desired the President of Pakistan to take steps for amending Sections 294-A and 294-B suitably.

The verdict was assailed by Federation of Pakistan before Shariat Appellate Bench of the Supreme Court which was dismissed. The judgment is repotted as Federation of Pakistan v. Mushtaq All, Advocate (PLD 1992 SC 153). The apex court unanimously declared as under:

"(1) Section 294-A of the Pakistan Penal Code in so far as it exempts "State lottery or a lottery authorized by the Provincial Government" is repugnant to the Injunctions of Islam;

(2) Section 294-B of the Pakistan Penal Code in so far as it by its generality prohibits free trade in commodities on fair market price also, is repugnant to the Injunctions of Islam."

Indeed the statement of claim forming the subject matter of the decree expressly stipulates that the claim for the sum of £ 25,000 against the defendant as the drawer of a series of six cheques payable to the plaintiff which cheques were paid to the plaintiff in accordance with the provisions of Section 16 of the Gaming Act, 1968 which was complied with in all respects. A glance at Section 16 as referred to above renders such credits for gaming neither lawful nor enforceable at law. For these reasons as well the decree is not capable of execution as such transaction would fall within the ambit of

•MM. Section 30 of the Contract Act read with Section 13(f) CPC besides being hit by the express prohibition contained in Shariat Law.

9. Adverting to the third contention that the decree was passed without jurisdiction as the service of process was not effected on the judgment-debtor in accordance with the Pakistan Law, there is hardly any merit in this submission as well. It is doubtful whether the service of writ before the English Court would be regulated by the law applicable in Pakistan and in all fairness the Civil Procedure Code in relation to service of writ as applicable in England might be attracted in the case in hand. The judgment under consideration expressly shows that the writ relating to the claim was duly served on 26th day of February, 1987 upon the defendant by ordinary post first class mail in any envelope duly pre paid and properly addressed to him at his address who did not acknowledge service of the writ and did not give notice of intention to defend. There is an affidavit of plaintiffs Legal Manager in support of the judgment filed before the English Court that the said copy writ was duly sealed with the seal of the court office out of which it was issued and was accompanied by a prescribed form of acknowledgment of service; the said letter or envelop had not been returned by the post office through the dead letter service and in his opinion and in the opinion of the plaintiff, the said writ of summon so posted to the said defendant will have come to his knowledge within seven days after the said date of posting thereof. In fact the service of process was duly accepted and upheld by the English Court which cannot be lawfully questioned before this court in execution proceedings as it is neither opposed to the manner of service of process as provided in the Civil Procedure Code nor any other law. The procedure adopted by the English Court is also in consonance with the presumption of service arising under Section 27 of the General Clauses Act, 1897 which has been generally accepted by superior courts in this country. No doubt JD in his objections has questioned the service of process on him for the reason that in February, 1987 he was not in England nor residing in\ 66, Devon Port South Wick Street, London W-2. To my mind, mere objection, would not be sufficient to defeat the decree or to refuse execution. On the contrary decree-holder has placed on record various documents including the letters from solicitors of the JD to demonstrate that he was residing at the address disclosed in the claim filed against him. At any rate, this court cannot go behind the decree and I am not inclined to accept the solitary word of JD at this belated stage that there was no effective service of process on him or that he did not reside at the given address. No doubt the presumption raised by the English Court and as envisaged in Section 27 of the General Clauses Act may be rebutable in my opinion judgment-debtor has miserably failed to displace such presumption.

For the aforesaid reasons, execution fails and is hereby dismissed. (B.T.) Execution dismissed.

PLJ 1999 Karachi 274

Present: mushtaque ahmad memon, J. VALUEGOLD LIMITED and two others-Plaintiffs

versus

UNITED BANK LIMITED-Defendant

Suit No. 949 and Civil Misc. Applications Nos. 5001, 6020 and 6021 of 1997, decided on 4.9.1998.

(i) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997)--

—S. 2(b)--Expression "original civil jurisdiction" as used in S. 120, C.P.C. would signify identified class of cases wherein cases entertained as Special Court under S. 2(b), Act, 1997 were not included--High Court, therefore, while hearing matters as Special Banking Court would not act as High Court in exercise of its original civil jurisdiction but as Special Court set up under Act, 1997-Exclusion of principles contained in Ss. 16 & 20, C.P.C. on basis of S. 120, C.P.C. therefore, could riot be urged while High Court was acting as Special Court-Notwithstanding doctrine of lex situs having been incorporated in provision to S. 16, C.P.C. suit to obtain relief respecting immovable properly in possession of defendant or on his behalf could, at the option of plaintiff, be instituted in Court within local limits of whose jurisdiction defendant was carrying on business.

[P. 283] A

(ii) Civil Procedure Code, 1908 (V of 1908)-

—S. 16-Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S. 10~Jurisiction-Choice of forum by plaintiffs could be objected to on grounds of mala fides, vexation and intent to defeat justice etc-No such element, ex facie, was shown to exist and objection regarding choice of forum was merely based on assertion that defendant (Bank) would be exposed to enormous difficulties in brining complete material and proper evidence, available abroad, before High Court for just determination of issues- [P. 293] D

(111) Civil Procedure Code, 1908 (V of 1908)--

—S. 16 read with S. 10 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)--Alleged illegalities had taken place on foreign soil-Claim for damages on basis of fraudulent and mala fide action alleged against officers of defendant (Bank) being action in personam would fall within exceptions to doctrine of lex situs- Action for damages could, thus, lawfully be maintained by plaintiffs against defendant-Bank in Pakistan where headquarter of said Bank was located-Objection regarding choice of forum could not be maintained in circumstances. [P. 292] C

(iv) Civil Procedure Code, 1908 (V of 1908)--

—O. VII, R. 11 & O. XXXLX, Rr. 1 & 2-Plaint could not be rejected piecemeal; even if one prayer contained in plaint was found entertainable, proceedings were liable to be continued-Plaintiffs could maintain action for damages, therefore, plaint could not be rejected in terms of O.VII, R. 11, C.P.C. even if Court had no jurisdiction in respect of other reliefs claimed. [P. 295] E

(v) Companies Ordinance, 1984 (XLVII of 1984)--

—S. 305—A company having gone under liquidation, its name was deleted from list of plaintiffs—Shareholder did not enjoy any corporate rights to agitate vis-a-vis company of which he/she was member-Where liquidators had been appointed, management of such company would vest in them alone, who were authorised in law to bring action on behalf of company under liquidation for protection of its interests-Plaintiff (shareholders) thus, could not seek relief pertaining to properties belonging to company. [P. 288] B

S. Sharifuddin Pirzada and Mr. Nadeem Ahmed for Plaintiffs.

Mr. Patch Mi W. Vellani and Mr. A.I. Chundrigar and Mr. D. Akbar for Defendants.

Date of hearing: 4.9.1998

order

This matter initially filed on 6.8.1997 by a London-based Private Limited company namely M/s. Valuegold Limited (Valuegold) and its two Directors namely Raja Mehmood Ahmed and Mrs. Iris Ahmed being the only shareholders thereof, has been put up for hearing of four miscellaneous application. The first application listed for hearing at Serial No. 1, C.M.A. NO. 5001 of 1997, was moved by the three plaintiffs under Order XXLX, Rules 1 and 2, C.P.C. seeking interim injunction in the following terms :

"Wherefrom the petitioners respectfully pray that pending the adjudication of the titled suit this Hon'ble Court may graciously be pleased to give temporary injunction restraining the respondent, its officers, agents, functionaries and so-called Receivers/Liquidators to deal in any manner or dispose of the assets, properties and business of the petitioner company and the personal properties of petitioners Nos. 1 and 2, pending adjudication of this application ad interim relief is also prayed for."

The remaining three applications are filed on behalf of the defendant, a banking-company incorporated in Pakistan and having branches, amongst others, at 94, Commercial Street, London, El 6LZ, commonly known as the defendant's London Branch. The first of the three applications, C.M.A. No. 6019/1997, is made under.Order VII, Rule 10, C.P.C. for return of plaint whereas the next application, C.M.A. No. 6020 of 1997 is made under Order VII, Rule 11, C.P.C. seeking rejection of plaint; and the last application C.M.A. No. 6021 of 1997, is made under Section 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, hereinafter referred as Act XV of 1997, seeking leave to defend the proceedings. The injunction application listed at Serial No. 1 had come up for orders on 18.8.1997 and 25.8.1997. On the last-mentioned date, notice was directed to be issued to the defendant-bank for 28.8.1997. Accordingly, the said application was put up for hearing before a learned Judge of this Court who was pleased to restrain the defendant-bank in terms of the prayer contained in the application by way of ad interim relief. Subsequently, the three applications, listed at Serial Nos. 2, 3 and 4 for hearing, were preferred by defendant-bank. At hearing, with consent of all the learned counsel present and in view of the settled legal position, the three applications moved on behalf of the defendants were heard first. The application for interim injunction, filed by the plaintiffs, too, has been heard. By this order I propose to dispose of all the four applications together.

It is pertinent to note that after the matter had partly been heard an application under Order I, Rule 10, C.P.C. was presented seeking deletion of Valuegold from the array of the parties. On 27.10.1997, the application was taken up with consent of all the learned counsel representing both the sides and was granted subject to all just exceptions.

The facts leading to the present proceedings, as stated in the plaint, are that Valuegold, engaged in import of leather garments from Pakistan, had opened in the year 1982 and maintained account with the defendant's London Branch. The said company had obtained credit facilities from the defendant-bank and, amongst others, had created first charged over its freehold properties situated in London. In the year 1994., Valuegold, on account of decline in trade, had sought additional credit facility and by way of security had mortgaged two other properties of the plaintiffs. Similarly, its two shareholders-directors had executed personal guarantees on 13.6.1995 for repayment of the loans. The plaintiffs' case is that the serious liquidity problems faced by them were caused by the various acts of the defendant-bank. Enumerating the various acts of misfeasance, it is stated in the plaint that on 5th November, 1990, the defendant-bank was instructed to debit Pound Sterling 57560 and Pound Sterling 69070 from the account of Valuegold for credit in the accounts of its supplier in Sialkot, Pakistan. Despite debiting the account of Valuegold, the defendant-bank failed to remit the money until the year, 1994. Similarly, on 26.9.1991, the defendant-bank was instructed to transfer Pound Sterling 18397 from the account of Valuegold to its .supplier in Sialkot. However, the said amount despite having been debited from the company account was not remitted to the payee. Again, a further amount of Pound Sterling 1973 was not transmitted despite instructions dated 4th March, 1991 for almost two years whereafter interest of Pound Sterling 2729.50 was claimed from the said Company. Besides, it is alleged that excessive rate of interest was charged from valuegold. Further loss is stated to have been suffered on account of the defendant-bank wrongly refusing payment against cheques totalling point Sterling 14,855.95 on 19th December, 1994 despite availability of over-draft limit in the account of the company. Lastly, it is averred that Valuegold was compelled to pay an amount of Pound Sterling 31000 to facilitate issuance of letters of credit. It is averred in the plaint that the defendant-bank had unlawfully appointed Receivers in relation to the personal properties of two shareholder-directors of Valuegold in purported exercise of authority under the deeds of mortgage executed in its favour. The plaintiffs farther case is that on 25th September, 1996, a complaint was registered with the then Investment Minister. Government of Pakistan, alleging fraud committed by the defendant-bank. The allegations contained in the complaint were found correct by the Enquiry Officer appointed by the said Investment Minister and action was suggested against the management of the defendant-bank with recommendation for waiver of entire amount outstanding against Valuegold. Despite instruction issued by the State Bank of Pakistan for implementation, the defendant-bank, it is alleged, has failed to take action as per the recommendations of the Enquiry Officer, Instead, it is averred that the Receivers/Liquidators appointed by the defendant-bank had stepped-up action for sale of the mortgaged properties at a price which, according to the plaintiffs, was lesser than their forced sale value. The appointment of Receivers/Liquidators is claimed to be invalid, illegal and calculated to defraud the plaintiffs.

Mr. Vellani, appearing for the defendant-bank, has pointed out that Valuegold was a foreign company incorporated in the United Kingdom and had no place of business or assets in Pakistan. It is urged that this Court was not the proper forum nor has the jurisdiction to entertain present proceedings under Act XV of 1997. According to Mr. Vellani, the claim for damages is based on the various transactions and acts admittedly taking place within the territorial jurisdiction of the English Courts; entire evidence about loans and credits availed by Valuegold and the alleged breach of liabilities by either of the parties was exclusively available in the United Kingdom; Valuegold having opted for voluntary winding up was under liquidation in the United Kingdom and liquidators of the company having been appointed in terms of the Insolvency Act, 1986, had taken over possession and control of the properties of Valuegold including those mortgaged with the defendant's London Branch; remaining two plaintiffs had expressly taken the position that Valuegold was unable to account for its liabilities and continue its business and such position was duly acknowledged by the shareholders and the creditors during their meetings held on 25th January, 1996 and 8th February 1996 respectively leading to estoppel by way of acquiescences; after appointment of liquidators, Valuegold could act through them alone and could not have initiated the present proceedings otherwise; after deletion of Valuegold, the claim for damages allegedly suffered by it cannot be maintained by the two shareholders since the company was a distinct legal entity which could be represented by the liquidators alone who are not party to the present proceedings; the present plaintiff cannot claim entitlement to an existing legal right and its unjustified invasion, hence no cause of action had accrued in their favour; the liability of the two shareholders as guarantors/mortgagors being co­extensive with that of the company could not be segregated from the proceedings for liquidation of Valuegold wherein the validity or otherwise of the claim of defendant's London Branch had also to be considered; the relief of injunction, both in the mandatory and prohibitory form, pertains to movable properties located outside Pakistan and the doctrine of lex situs requires the matter to be agitated, if at all, before the English Courts, alone. On the basis of the above contentions, rejection of plaint is sought by the defendant Alternatively, return of the plaint has been sought under Order VII, Rule 10, C.P.C. Otherwise, it is contended, in exercise of inherent jurisdiction, the present proceedings be stayed. Finally, it is urged that the various contentions raised by the defendant entitle it to grant of leave. Additionally it is urged that the quantum of damages and the question of its liability cannot be decided in the absence of proof by the plaintiffs and to enable botht the parties to produce their respective evidence, leave be granted and issues be settled for a regular trial.

In reply, Mr. S. Sharifuddin Pirzada, Advocate, arguing the matter for Mr. M. Akram Shaikh on behalf of the plaintiff and as an Officer of the Court, in his usual lucid and most professional style, has taken me through a long list of case-law and the record. The learned counsel, by referring to various documents, annexed with the plaint and affidavits, has contended that the various acts of misfeasance, on the part of the defendant-bank, were found to have been proved by the Enquiry Officer appointed by the then Investment Minister of the Government of Pakistan; the defendant-bank had agreed to abide by the findings of the Enquiry Officer, which position was clearly reflected from the minutes of meeting held on 29.9.1996 and attended by the then President of the defendant-bank. According to Mr. Pirzada, even otherwise, the instructions issued by the Investment Minister, Government of Pakistan, have binding effect in terms of Section 5 of Banks Nationalization Act, 1974; the report finalized by the Enquiry Officer having been accepted by the State Bank of Pakistan, the defendant-bank could not act to the contrary by virtue of the Banking Companies Ordinance, 1962 and the State Bank of Pakistan act, 1956. It is further contended that the two plaintiffs were not privy to the various resolutions for liquidation of Valuegold and the appointment of its liquidators. In relation to the application filed under Order VII, Rule 10, C.P.C., the learned counsel has referred to the case of M.A. Chaudhry v. Mistui O.S.K. Lines Limited PLD 1970 SC 373 to contend that the plaint cannot be returned for presentation before a Foreign Court which has its own Rules of Procedure. In any event, by reference to the provision of Order EL(sz'c), C.P.C., it is contended that the - plaint cannot be returned by this Court under Order VII, Rule 10, C.P.C. Mr. Pirzada has further referred to the exceptions contained in Rule 18 formulated by Dicey in his treatise Conflict of Laws (VTtth Edition) to the effect that the rule of lex situs will have no application to the present case and jurisdiction should be exercised by this Court in view of the fraud and other unconscionable conduct on the part of the defendant-bank as has been averred in the plaint. Reliance in this respect is placed on the cases ofSamaj Council, Lahore v. Amret Lai Mori Lai & others (AIR 1934 Sindh 123) and YousafAli v. Ismat Mustafa PLD 1968 Kar. 480. It is further urged by Mr. - Pirzada that the jurisdiction affecting immovables can be exercised in personam and exercise of such power is justifiable, for, the Court can make its adjudication effective through its control over the defendant-bank who "" has its head office within the territorial jurisdiction of this Court It is further contended that the proceedings before this Court which is a Court of record, having been initiated earlier, ought to be given priority and the defendant-bank cannot apprehend any disadvantage before this Court in comparison to the plaintiff. Consequently, on the basis of principle stated by Lord Diplock in theAbidin Dover case (1984) 1 All England Reports 470 it is contended that the Judicial Comity requires adjudication of the matter in the present proceedings. Continuing further, it is urged that no case for grant of leave, in any event, has been made out by the defendant-bank who had failed to establish its bona fides. However, in order to do complete justice, should this Court feel inclined to grant leave, the defendant Bank by •"\' way of conditions be directed to withdraw the proceedings instituted before the English Courts and refrain from taking steps in regard to personal properties of the two plaintiffs besides furnishing appropriate guarantees by way of security equivalent to the amount of damages claimed in the proceedings. The learned counsel has further urged that the doctrine of forum non-convenience cannot be applied and particularly at this stage.

In relation to the application for interim injunction, Mr. S. Sharifuddin Pirzda, Advocate, has urged that the balance of convenience is in favour of grant of the motion and the plaintiffs stand exposed to irreparable injury in the event of refusal of interim relief. It is stated that in the event of sale of the immovable properties by the Receivers at a price which is hardly l/3rd of the actual market value, nothing would be left for the plaintiffs to retrieve. On the basis of findings contained in the report of the Enquiry Officer appointed by the Government of Pakistan. The plaintiffs' right to sue the defendant in personam is sought to be justified with reference to the effect of deletion of Valuegold, it is urged that the bulk of facts stated in the plaint have remained unchanged; the two plaintiffs being the only shareholders are vitally interested in the matter and by lifting the veil of incorporation one cannot resist the conclusion that Valuegold and the two plaintiffs are to swim or sink together; and the interest of company referred in the plaint cannot be isolated from or considered alien to that of the plaintiffs.

Mr. Velani, while opposing the motion for interim injunction has reiterated the submission made by him regarding the three applications filed by the defendants and has urged that the plaintiffs having themselves quantified the damages are not entitled to grant of interim injunction. It is further urged that the Receivers are agent of the plaintiffs and the interim injunction seeking to restrain them cannot be made rule of the Court in their absence.

I have recorded that above facts and the various contentions raised on behalf of the parties in order to comprehend the issues involved in the matter and the perspective in which the matter was heard. Upon deletion of Valuegold, however, the scope of the proceedings has narrowed down to a substantial extent The contents of the plaint which have remained unchanged after Valuegold was struck off from the proceedings, clearly refer to various acts of misfeasance and malfeasance affecting the interest of Valuegold. Before examining the effect of Valuegold opting to stay out of proceedings. I find it more appropriate to examine maintainability of present proceedings before this Court. The reliefs sought by the plaintiffs in the suit itself can broadly be classified to contain dual object. The first relief sought by the plaintiffs is for injunction both mandatory as well as prohibitory. The relief of injunction, in either form necessarily pertains to the immovable properties belonging to Valuegold and of the two plaintiffs which were mortgaged as security for repayment of the liabilities owed by Valuegold. The other relief is for recovery of the damages allegedly sustained by the plaintiffs. The learned counsel for the defendant bank has urged that the relief of injunction relating to the immovable properties situated in the United Kingdom cannot be granted by this Court and therefore the plaint ought to be rejected. The kw relating to territorial jurisdiction of the Civil Courts in Pakistan is contained in Sections 15 to 20 of the Civil Procedure Code. During hearing, the provisions contained in Sections 16 and 20 of the Code of Civil Procedure were frequently referred by both the sides which may be referred here for the sake of convenience.

"20. Suits to be instituted where subject matter situate. ~S\iitto the pecuniary or other limitations prescribed by any law, suits--

(a) for the recovery of immovable property with or without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or interest in immovable property, (e) for compensation for wrong to immovable property, (f) (f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the properly is situate or in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen:

Provided that a suit to obtain relief respecting or compensation for wrong to, immovable property held by or on behalf of the defendant may where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the case of suits referred to in clause (c) at the place where the cause of action has wholly or partly arisen or in the Court within the local limits of whose jurisdiction the defendants actually and voluntarily resides, or carries on business or personally works for gain.

Explanation.-In this section 'property' means property situate in Pakistan.

'20. Other suits to be instituted where defendant reside or cause of action arises.-Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction :--

(a) the defendant of each of the defendants were there are more than one at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works of gain; or

(b) any of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiensce in such institution; or

(c) in cause of action, wholly or in part, arises.

Explanation l.~Where a person has a permanent dwelling at one place and also temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.

Explanation II.--A corporation shall be deemed to carry oh business at its sole or principal office in Pakistan or in respect of any cause of action arising at any place where it has also a subordinate office, at such place."

Reference was also made to Section 120 of the Code of Civil Procedure whereby applicability of the above referred two provision to the proceedings before the High Court in exercise of original civil jurisdiction has been excluded. Section 120 of the Code of Civil Procedure is as follows :--

"Section 120. Provisions not applicable to High Court in original civil jurisdiction.-(l) The following provision shall not apply to High Court in the exercise of its original civil jurisdiction, namely, Sections 16,17 and 20."

According to Mr. Pirzada, the effect of excluding application of the said Sections is to enlarge the jurisdiction of this Court and the doctrine of lex situs does not apply to the proceedings entertained by this Court in exercise of its 'original civil jurisdiction'. It is urged that the effect of Section 120, C.P.C. is to enhance the jurisdiction instead of its curtailment The question here is if the present proceeding would fall within the term 'original civil jurisdiction' of this Court. The relevant provision whereunder the present proceedings are filed is contained in Section 2(b) of Act, XV of 1997 which is as follows :--

"Section 2(b).' "Banking Court" means.-(i) in respect of case in which the outstanding amount of claim based on a loan or finance does not exceed thirty million rupees or the trial of offences under this Act, the Court established under Section 4 of this Act; and

(ii) in respect of any other case, the High Court;"

The jurisdiction under Act, XV of 1997 evidently is exercised by this Court as the Banking Court created under the said law. The powers of this Court as a Banking Court and the procedure for hearing cases is separately provided under the said Act and the Code of Civil Procedure applies only to the extent of matters not provided by the Act. The question about nature of jurisdiction exercised under Special Laws in contradistinction to the original civil jurisdiction was examined in depth in the case of Pakistan Fisheries Limited v. U.B.L. PLD 1993 SC 109 with the following conclusion :--

"It seems to us that by the expression 'original civil jurisdiction' as used in the Ordinance, is meant the trial of the suit on the original side of the High Court. The term has not been used in the technical sense as understood with reference to the Letters Patent of some of the High Courts in the Sub-Continent, but has been employed in contradistinction to the appellate and revisional jurisdiction exercised by the High Court. The jurisdiction conferred on the High Court under the Ordinance is special jurisdiction and while exercising such jurisdiction the High Court bears the fictional character of a Special Court as defined in the Ordinance. It is a fundamental rule, that where an enactment creates a new jurisdiction, prescribes the manner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive and the party aggrieved of an order made in exercise of that jurisdiction must seek only such remedy and not others. The jurisdiction conferred by the Ordinance on the forums created thereunder, seems to have been jealously guarded by the Legislature. By virtue of sub-section (4) of Section 6 in all matters to which under the Ordinance, the jurisdiction of the Special Court extends, no Court other than the Special Court can have jurisdiction to deal therewith. Furthermore, Section 11 attaches finality to the orders and categorically lays down that subject to provision for appeal under Section 12, no Court or other authority shall call in question or permit to be called in question any order or judgment of the Special Court. Evidently, the Legislature in its anxiety to protect the orders of Special Court, has gone to the extent of ordaining that no Authority other than the appellate forum specified in Section 12, shall even allow to throw a challenge to the validity of such order. Combined effect of these provisions is that judgment and order passed by a Special Court cannot be assailed before any forum except in accordance with the provisions of Section 12."

Similarly, in Civil Appeal No. 193-K of 1992 (Ashira Khatoon v. M.C. B and others, the appeal preferred by leave under Article 185(3) of the Constitution against an order passed by a learned Single Judge of this Court acting as Special Court under the Banking Companies (Recovery of Loans) Ordinance, 1979 was dismissed as not maintainable on the ground that the order was passed by he Special Court envisaged under Section 2(8) of the said Ordinance and not by the High Court. The term "original civil jurisdiction" signifies identified class of cases and does not include the cases entertained as Special Court under Section 2(b) of Act XV of 1997. This Court, therefore, while hearing matters under Act XV of 1997 does not act as High Court in exercise of its original civil jurisdiction but as a Special Court set up under the said Act. Resultantly, exclusion of the principles contained in Sections 16 and 20, C.P.C. on the basis of Section 120, C.P.C., I am afraid, cannot be urged. The language of proviso to Section 16, C.P.C. is also pertinent in this respect. Under the proviso, notwithstanding the doctrine of lex situs having been incorporated in Section 16, C.P.C., a suit to obtain relief respecting immovable property held by or on behalf of the defendant may, at the option of the plaintiff, be instituted in the Court within the local limits of whose jurisdiction the defendant carries on business. The explanation appended to Section 16, C.P.C. however, makes the above provision applicable only to the properties situated in Pakistan. Even so, the exception contained in the proviso and the doctrine prescribed by the section itself can be applied by reference to Common Law principles. On such basis, the learned counsel for the defendant has aptly referred to the principles stated by Dicey in his Treatise on the Conflict of Laws (Vllth Edition) to contend that as to immovables, the general rule is that lex situs is the governing law for all questions that arise with regard to such property. The admitted position in the present case is that all the immovable properties, in relation whereto the final relief of injunction is sought, are situated in the United Kingdom. To controvert the above position, the learned counsel representing the plaintiffs has referred to the exceptions to the above stated rule of lex situs. It is urged that the defendant bank had acted fraudulently in procuring documents pertaining to the immovable properties in question, and therefore, jurisdiction in personam can be exercised by this Court By referring to the various passages from Cheshire and North's Private International Law (12th Edn.) by P.M. North and J.J. Fawacett, quoted with approval by Noorul Arfeen, J. (as he then was) in Yousuf Abbas v. Ismat Mustafa PLD 1968 Kar. 480, it is contended that exercise of jurisdiction in relation to the immovables located in the United Kindom is justifiable. I may reproduce here, with advantage, the following portion from the cited case:

"10. As to immovables, the general rule is recognised in England that lex situs is the governing law for all questions that arise with regard to such property. Chesire says : 'An English Court has no jurisdiction to adjudicate upon the right of property in, or in the right to possession of foreign immovable', even though the parties may be resident or domiciled in England and that this rule is generally based upon the practical consideration that only the'Courts of the suits can make an effective decree with regard to land'. However, the rule that lex situs governs immovable, is subject to modifications which have been formulated by Dicey amongst others, in the Rule 18 with Exceptions I and 2, Rule 25 and Rule 85 with Exception 9, which are relevant to the present controversy and which it will be convenient to reproduce here :--

'Rule 18. Subject to the exception hereinafter mentioned, the Court has no jurisdiction to entertain an action for-

(1) the determination of the title to, or the right to the possession of, any immovable situate out of England (foreign land), or

(2) the recovery of damages for trespass to such immovable.

Exception 1.-Where the Court has jurisdiction to entertain an action against a person under either Rule 25, or under any of the Exceptions to Rule 16, the Court has jurisdiction to entertain an action against such person respecting an immovable situate out of England (foreign land) on the ground of either-

(a) a contract between the parties to the action; or

(b) an enquiry between such parties; with reference to such immovable.

Exception 2.--Where the Court has jurisdiction to administer an estate or a trust, and the properly includes movables or immovables situated in England and immovables situated abroad, the Court has jurisdiction to determine questions of title to the foreign immovables for the purposes of the administration.

Rule 25. -When the defendant in an action in personam is, at the time for the service of the writ, in England, the Courts has jurisdiction in respect of any cause of action in whatever country such cause of action arises, subject however in the case of actions under the Carriage by Air Act, 1932, or in respect of claims to which Section 4 of the Administration of Justice Act, 1956 applies, to the limitations therein respectively contained.

Rule 55.--All rights over, in relation to, an immovable (land) are (subject to Exceptions hereinafter mentioned) governed by the law of the country where the immovable is situate (lex situs).

Exception 9.--The question whether a legatee of movables under a will must elect between the legacy and foreign land is determined by the law of the testator's domicile.

If a testator devises foreign immovable property (foreign land) under a will with on any ground is inoperative to pass the same to the devise, and also either-

(1) devises English immovable property (English land) to the heir of the foreign immovable property, or

(2) being domiciled in England, bequeaths movable property wherever situate to the heir of the foreign immovable property, the Court will not allow such heir to take any benefit under the will as regards (1) the English immovable property, or (2) the movable property, unless he fulfils the conditions of the will with respect to the foreign immovable property or compensates for his failure to do so; i.e. the heir is put to his election.

1. Thus the rule that immovables are governed by the lex situs will have no application :

(i) Where the Court exercises equity jurisdiction in personam, that is, where the issue before the Court is one of a personal obligation enforceable against the person of the defendant, which jurisdiction, according to Cheshire is exercisable in cases of:

(a) Contracts relating to foreign lands;

(b) Fraud and other unconscionable conduct on the part of the defendant; and

(c) Fiduciary relationship, that is, cases where the issue involves enforcement of trusts or personal equities between the parties.

(ii) Where the estate being administered by the Court includes both properly within, and outside the jurisdiction, in which case the Court is competent to determine questions of title to foreign immovables.

(iii) Where the heir of foreign immovables is put to election, that is, where a will comprising foreign immovables, and immovables and/or moveables within jurisdiction, fails with regard to foreign immovables, in which case the heir at law must either take the benefit under the will with regard to movables and immovables with jurisdiction subject to the conditions of the will with regard to foreign immovables, or he must compensate for the failure to do so.

This exercise of jurisdiction over immovables located within foreign jurisdiction is justifiable on the ground that the Court can make its adjudication effective through its control of the defendant or of deceased's assets, if both or either are within the jurisdiction."

To the same effect is the judgment in the case of Samaj 1934 Sindh 123 wherein it was held that question of fraud in transactions pertaining to immovable properties situated abroad can be examined by the Courts in India. The above-stated principle of law is clear from doubts and proceedings seeking enforcement of rights in personam can always be instituted in Pakistani Courts even if the result effects immovable properties situated abroad. The underlying idea, it seems, is to ensure avoidance of vexation and oppression. The principle of prudence, emerging from the above, is that this Court does not have jurisdiction to entertain an action for the determination of the title to or regulate the possession of and manage an immovable property situate out of Pakistan subject to certain exceptions. One of the recognized exceptions to the said rule is the case of fraud and other unconscionable conduct on the part of the defendant. Now, the principles of pleadings require a plaintiff to state the particulars of fraud with exactness and details. Such particulars in the present case, I must say, are wanting. The plaint does not show what fraud, deceit or misrepresentation had lured the plaintiffs into the transactions to render the defendant's conduct unconscionable. The delayed remittance of money to Pakistan or debiting wrong account could well lead to inci^«nce of negligence and resultant liability for damages, whereas fraud necessarily envisages assertion of factual nature with knowledge as to its falsity or omission to assert fact with intent to cheat other(s). The present case, therefore, for the relief of injunction, does not qualify for being classified as one falling within the ambit of abovestated exception to the rule of lex situs. Indeed, I cannot remain completely oblivious of the transactions between the parties, out of which the obligation to account or to pay arose. In the present case the various acts alleged in the plaint had manifestly taken place at London which appears to be the place with which the transactions had the natural and most real connection. However, these are merely the rules of convenience or propriety which are rather alien to the question of jurisdiction. Moreover, as regards the properties of Valuegold, after its exclusion from the proceedings through order dated 27th October, 1997, no relief can, in my view, be sought by the remaining plaintiffs whose status is merely of shareholders of Valuegold or its former Directors. Here it appears pertinent to consider if the cause of action for continuing the present proceedings subsists after deletion of Valuegold. Mr. Vellani's contention is that the present plaintiffs did not posses any existing right which had been infringed or threatened to be infringed and consequently, the plaint was liable to rejection for want of cause of action. It is further urged that if at any given time, cause of action cases to subsist or bar under any contemporary law comes into operation and that position is discernible from the plaint itself, the proceedings must not be allowed to continue any further. Reliance for the above, is placed on he view expressed in University of the Punjab, Lahore v. Syed Mohsan TirmizeyPLD 1958 (W.P.) Lah. 943; Sardar Balbir Singh v.. Atma Ram Srivastava AIR 1977 All. 211; Abdul Rehman v. Wahid Bakshsh and 9 others PLD 1977 Lah. 1243 and Diamond Rubber Mills v. Pakistan Television Corporation Limited and 2 others 1989 CC 1989. In the last-mentioned case, following observation was referred with some emphasis:

"The principle is that while a suit is to be dealt with at all its stages, on the cause of action as it exists at the date of its commencement yet a Court, both at primary and appellate stage, may take notice of intervening events and afford relief on the basis of altered conditions. Thus ifon a meaningful-nor formal-reading of the plaint it is found to be meritless, as not disclosing a cause of action or a clear cut relief, duly based, the power under Order VII, Rule 11, C.P.C., would be clearly attracted."

Mr. Pirzada, in reply, has asserted the plaintiffs' right as the exclusive shareholders and submits that the veil of incorporation of valuegold having already been pierced, the plaintiffs enjoy a very special status vis-a-vis the company. Contextually, reference is made to the judgment in Hqji Muhammad Khan v. Muhammad Younus and 2 others 1991 SCMR 2030 holding:

PLJ 1999 Karachi 297 (DB)

Present: mrs. majida razvi and sarmad jalal osmany, JJ.

SAMAN DIPLOMATIC DUTY FREE BONDED WAREHOUSE through MANAGER SUMBAL ALI-Petitioner

Versus

CENTRAL BOARD OF REVENUE and others-Respondents

C.P. No. D-1143 of 1998, decided on 8.10.1998.

(i) Customs Act, 1969 (IV of 1969)-

—S. 13—Constitutional petition-Maintainability-Licence of petitioner operate Diplomatic Duty Free Bonded Warehouse was suspended by Authority-Allegation that licence was being misused-Matter was further probed through a domestic enquiry-Such allegation, thus, could not be agitated in Constitutional proceedings. [P. 300] A

(ii) Customs Act, 1969 (IV of 1969)--

—S. 91-Customs Authorities searched Diplomatic Duly Free Bonded warehouse and an inventory made of its contents in the presence of representative of licensee and a First Class Magistrate-Status-Action of Customs Authority was within powers afforded under S. 91, Customs Act, 1969. [P. 301] B

(iii) Customs Act, 1969 (IV of 1969)--

—Ss. 162, 163, 168 & 171-Search of Diplomatic Duty Free Bonded Warehouse-Whether search warrant or notice, requirement of law-­ Customs Officer under S. 91 of Customs Act, 1969 was provided for access to a private bonded warehouse licensed under the act, therefore, neither any search warrant nor any notice was required by the Authorities. [P. 302] C

(iv) Customs Act, 1969 (IV of 1969)-

—S. 13~Constitutional petition-Licence to operate Bonded Warehouse was suspended by Authority without issuance of show-cause notice-Status-Where a particular provision of law which was aimed at depriving citizens of their rights as to property or person, was silent as to prior notice before commencement of the proceedings, such notice would be read into that provision of law~This reflects the maxim audi alterant partem-Authority was directed to decide the case in accordance with law.

[P. 303] E

(v) Maxim-

—"Audi alterant partem" (No one should be condemned unheard-

[P. 303] D

Mrs. Nauin S. Merchant Advocate for Petitioner.

Mr. Mubarak Hussain Siddiqi, Dy. A.-G. for Respondent No. 1.

Mr. S.D. Rana Advocate for Respondent No. 4.

Dates of hearing: 15,16, 18 and 22.9.1998.

judgment

Sarmad Jalal Osmany, J.-This petition impugns the order dated 18.6.1998 issued by Respondent No. 3 viz. Assistant Collector of Customs (Bonds) whereby the licence of the petitioner to operate its Duly Free Bonded Warehouse has been suspended.

The brief facts of the matter as per the Memo, of Petition are that the petitioner is the holder of Ldcence No. PWL-3/90 (Diplomatic) which entitles it to operate its Diplomatic Duty Free Bonded Warehouse and the same has been granted by the Respondent No. 2 in accordance with Section 13 of the Customs Act, 1969. It is contended that right from the very inception of the business the petitioner is being harassed by the respondents on and off and ultimately this resulted in the issuance of the impugned order whereafter an investigation was carried out by the Customs Authorities on 21.7.1998 but no incriminating evidence was found against the petitioner which could warrant the issuance of the impugned order.

Based upon the above facts the impugned order has been challenged on various grounds, inter alia, that no notice was issued to the petitioner and also no personal hearing was afforded to it before its licence was suspended that from the inquiry report and the Investigation Report dated 21.7.1998 no material is forthcoming which would warrant issuance of the impugned order; that after issuance of the impugned order the petitioner has been consistently writing to the Customs Authorities requesting them for a personal hearing and investigation of the matter but to no avail; that as a result of the impugned order the Bonded Warehouse has been sealed and the petitioner has been prevented from doing its lawful business and finally that the impugned order is mala fide without jurisdiction and suffers from gross illegality. In support of these contentions Mrs. Naveen 8. Merchant, learned counsel for the petitioner has submitted that in the first instance as no notice was issued under Section 168 of the Customs Act, as a result, the property seized/sealed by the Customs Authorities in pursuance of the impugned order would have to be desealed/returned to the petitioner. Learned counsel further contends that the provisions of Section 162 of the Customs Act also have not been followed in as much as no search warrant was obtained at the time the petitioner's premises were thoroughly searched, inventory made and thereafter sealed. Similarly learned counsel has vehemently stressed that notice under Section 171 of the Customs Act was not served upon the petitioner and accordingly the entire exercise of sealing/confiscation of the property is rendered infructuous being a gross violation of the law. However, learned counsel's main thrust is upon the ground that before issuance of the impugned notice in terms of Section 13(4) of the Customs Act whereby the petitioner's licence was suspended, the Customs Authorities were bound to issue a show-cause notice and hear the petitioner. Since this was not done, therefore, the entire exercise was a nullity in the eyes of law and accordingly mere non-conformity with Section 13(4) of the Customs Act is sufficient for the grant of the prayers made in the petition. In support of her contention learned counsel has relied upon Khalid Agencies v. Collector of Customs 1990 SCMR 447; Al-Rukiya Traders v. Central Board of Revenue 1995 CLC 1456; Deputy Collector, Central Exciseand Land Customs, Lahore and 2 others v. Muhammad Munir and others 1989 SCMR 311; Messrs Shaheen Calico Printing Works v. Mumtaz Ali Khan and 3 others PLD 1995 Lah. 1442.

On the other hand as per the counter-affidavit and parawise comments filed on behalf of the respondents it is contended that the petition is not maintainable since the licensees of the bond who are actually the partners of the petitioner (it being a partnership concern) i.e. a certain Mrs. Susan a Christian and Mr. Abdul Rehman Ahmad, an Ahmadi, are not actually running the business but it is being run by some other persons who being Muslims are not entitled to do so. This contention is further clarified to the effect that since a licence to run a Diplomatic Bonded Warehouse can only be granted to non-Muslims which in this case are the said Mrs. Susan and Mr. Abdul Rahman Ahmad who reside in Islamabad and Rawalpindi respectively, therefore, the person filing the petition i.e. a certain gentleman by name of Mr. Sumbul All is not authorised to do so and also the petition is not maintainable to the extent that the said Mr. Sumbul All was not the licensee of the petitioner. It has been further contended that an adequate remedy is available under the Customs Act i.e.by way of appeal/revision, therefore, the petition is not maintainable to the extent that the said remedy has not been exhausted. Finally by way of preliminary objections it has been maintained by the respondents that the licence was valid up to 30.6.1998 and was not renewed thereafter due to non-compliance of the formalities, thus, the petition is not maintainable to the extent that on the day of filing of the petition i.e. 11.8.1998 the petitioner was not a licence holder.

As regards the merits of the case it has been maintained by the respondents that no harassment has been meted out by the respondents and in fact upon previous inspection of the petitioner's Bonded Warehouse it has been established that some goods were unaccounted for and that certain documents had been tampered with as a result of which the impugned order was issued. It has also been maintained that the respondents' impugned action under Section 13(4) of the Customs Act is not illegal since in terms thereof the petitioner's licence can be suspended prior to a show-cause notice which is to be issued thereafter. Finally it was maintained that the goods lying in the Warehouse have not been seized but the operation of the warehouse has been temporarily suspended.

On the above pleadings Mr. Mubark Hussain Siddiqui, learned D.A.-G. appearing for the State has submitted that Sections 162, 163,168 and 171 of the Customs Act do not come into the picture at all particularly as regards the facts of the present petition are concerned. With reference to Section 168 of the Act, learned D.A.-G. contends that no seizure of the petitioner's property is involved as by virtue of Section 13(3) the business of the petitioner has automatically stopped, and thus, notice under Section 168 is not required. His other contention is that the provisions of Sections 162,163 and 171 of the Act as to obtaining search warrants and giving notice contemplated thereunder are also not relevant as they appear in Chapter XVI of the Customs Act which provides the power of seizure of the goods. Whereas the provisions regarding entry into bonded warehouse for the purpose of making inventories of the contents thereof appear under Sections 91 and 92 of the Customs Act. Finally learned D.A.-G. has contended that the impugned order was validly issued as no notice is necessary for suspension of the licence under Section 13(4) of the Act Learned D A-G has relied upon Sharifuddin v. The Zonal Municipal Committee 1994 MLD 1062 as well as Mushtaq Hussain v. Collector of Customs 1996 CLC 1319.

We have heard the learned counsel for the parties and their submissions are considered in seriatim below :-

1. Regarding the preliminary objections raised by learned D.A.-G. it may be observed that whether or not the petitioner's licence is to be suspended/cancelled on the basis that it is being misused by persons i.e. Muslims who are not entitled to the licence under the kw, depends upon a further domestic enquiry into the matter and the same cannot be agitated in these proceedings. Consequently we are of the view that the maintainability of the petition cannot be challenged on this score. So also learned D.A.-G. has asserted that the person filing the petition is not authorised to do so which objection has been squarely met by the petitioner by filing the necessary letter authorising Mr. Sumbul Ali, under whose signature the petition has been filed to do the needful. Consequently we are satisfied that the petition has been properly filed and cannot agree with learned D.A.-6. that it should be rejected on this score. As to the objection that the petitioners have not exhausted the remedies available in the Customs Act before approaching this Court suffice it to say that in the circumstances of the case and for the reasons to be expressed here after we are of the opinion that the remedies available to the petitioner are not adequate or efficacious enough to reject the petition for this reason alone.

2. Regarding the next issue i.e. the applicability of Sections 162, 163, 168 and 171 of the Act we agree with learned D.A.-G. that these would not apply to the case at hand. It would be seen that the said sections appear in Chapter XVIII of the Act which is entitled "Prevention of Smuggling Powers of Search, Seizure and Arrest Adjudication of offences" and a plain reading of the said sections it is quite clear that the provisions thereof are aimed at the curtailment of smuggling and the powers of the Customs Authorities in relation thereto. On the other hand, the regime created by the Act, with respect to the licensing of Bonded Warehouse and their operation etc. appear in Chapter III which is entitled "Declaration of Ports, Airports, Land Customs Stations etc." and Chapter XI which is entitled "warehousing", respectively. It would, thus, be seen that these chapters create an independent regime whereby the licensing, regulation and operation of customs bonded warehouses are controlled and provide for various aspects relating thereto including Section 91 for access of Customs Officer to Bonded warehouse, Section 92 for re-opening and examination of packages lodged therein by Customs Officers, Section 117 for the joint custody of a private Warehouse by the Customs Authorities and the licencee. In our view the impugned action of the Customs Authorities, whereby the petitioners, warehouse was searched on 28.7.1998 and an inventory made of its contents in the presence of the petitioner's representative and a First Class Magistrate is within the powers of the Customs Authorities under Section 91 of the Act which provides for access of a Customs Officer to a private bonded warehouse licenced under the Act In the absence of such powers, it is inconceivable as to how any investigation could be carried out by the Customs Authorities as to the contents of a private bonded warehouse whenever there is any allegation of wrongdoing, as in the present case by the licensee of such warehouse as regards the operation thereof. In the present case, it is alleged in the impugned order dated 18.6.1998 and the acts complained of were tampering of ex-bond bills of entry Which were sought to be confirmed by the subsequent search of the warehouse on 28.7.1998. In this view of the matter we are unable to agree with learned counsel for the petitioner that the respondents impugned action of searching the warehouse would require any notice under Sections 168 or 171 of the Act or that the provisions of Sections 162 and 163 were attracted thereto with respect to obtaining any search warrant etc. for this purpose. As to learned counsel's contention .that there is no provision in the Act for sealing of a bonded warehouse, we are of the opinion that as rightly contended by learned D.A.-G. after suspension of the petitioner's licence the petitioner's business would automatically cease as long as the matter was under investigation and as such there was no "sealing" of the premises involved. The petitioners cannot be allowed to carry on its business which allegedly was being conducted unlawfully while its affairs were under investigation. Of course the petitioner could always claim damages from the Customs Authorities for any loss of business which may have accrued to it during the period its business remained suspended. Finally it was contended by learned D.A.-G. that Section 13(4) of the Customs Act entitled the Customs Authorities to suspend the petitioner's licence before affording it any show-cause notice or hearing. In this regard it would be beneficial to reproduce Section 13 of the Act which reads as follows :-

"13. Power to licence private warehouses.--(I) At any warehousing station, the Collector of Customs may, from time to time, licence private warehouses wherein dutiable goods may be deposited.

(2) (Every application for a licence for a private whorehouse shall be made in such form as may be prescribed by the Collector of Customs.

(3) A licence granted under this section may be cancelled by the Collector of Customs for infringement of any condition laid down in the licence or for any violation • of any of the provisions of this Act or any rules made thereunder, after the licensee has been given proper opportunity of showing cause against the proposed cancellation).

(4) Pending consideration whether a licence be cancelled under sub-section (3), the Collector of Customs may suspend the licence."

It would, thus, be seen that upon a plain reading of sub-section (3) of Section 13, it is quite clear that a licence issued under sub-section (2) cannot be cancelled unless the licensee is given a proper opportunity for showing cause against the proposed cancellation. Thereafter sub-section (4) empowers the Collector of Customs to suspend the licence during the pending of the proceedings under sub-section (3). In these circumstances, we cannot agree with learned D.A.-G. that without issuance of the show-cause notice contemplated under sub-section (3), the petitioner's licence can be suspended under sub-section (4). In any event, if it is ettled that where a particular provision of law which is aimed at depriving citizens of their rights as to property or person, is silent as to prior notice before commencement of the proceedings, such notice shall be read into that provision of law. This reflects the maxim "audi alterm partem" (no man shall be condemned unheard). In this regard reference can be made to Commissioner of Income-tax, East Pakistan v. Fazulr Rehman PLD 1964 SC 410.

Consequently, in view of all the above circumstances the impugned order dated 14.6.1998 is struck down as being in violation of Sections 13(3) and (4) of the Customs Act, 1969. The respondents are directed to decide the matter in accordance with law after giving the petitioner full opportunity of being heard. In consequence of the above the petitioner shall be entitled to carry on their lawful business till such time as the proceedings under Section 13(3) of the Act are pending. Of course this would not debar the Customs Authorities from suspending the petitioner's licence under Section 13(4) during the pendency of such proceedings if the facts and investigations into the matter so warrant.

We had also directed the respondents vide order dated 1.9.1998 to allow clearance of the petitioner's goods for inbonding into their warehouse. As we have concluded that the impugned order is not warranted in law, we also direct the respondents to issue the necessary Delayed Detention Certificate to the petitioner so that they may be able to recover any demurrage already paid and not incur further demurrage on their goods at Karachi Port

Order accordingly. Mrs. Majida Razvi, J.--I agree. (K.K.F.) Petition allowed.

PLJ 1999 Karachi 304

Present: MUSHTAQUE A. memon, J. CITY BANK--Petitioner

versus

TARIQ MOHSIN SlDDIQI and others-Respondents

Suit No. 1633 of 1997 and Civil Misc. Application No. 423 of 1998, decided on 12.11.1998.

(i) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997)--

—Ss. 10 & 11-Leave to defend suit-Dual rates and excessive mark-up-­ Schedule of re-payment annexed to agreement disclosed substantial amount to be deducted towards prompt payment bonus-Admissibility of prompt payment bonus and reduction of marked-up price was not left at the will and desire of plaintiff and other members of syndicate—Principal company was entitled to prompt payment bonus as per agreement provided amount of installments was paid by due dater-Marked-up price, therefore, agreed between parties was what was agreed to be paid upon deduction of amount referred as prompt payment bonus-Amount of prompt payment bonus, in reality, was what had to be paid by way of penalty for non-payment of installments by scheduled dates—Amount of prompt payment bonus and liquidated damages could be identified and segregated quite conveniently from claim amount-Such process would not require any evidence from either side and could not be classified as a serious and bona fide dispute warranting grant of leave to defend case- Leave to defend was refused. [Pp. 312 & 313] C & E

(ii) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997)-

—Ss. 10 & 11-Leave to defend suit-Guarantee of one of defendants, in favour of principal company filed by plaintiff was contended to have been got signed blank or under undue influence or duress exercised by other defendant-Allegation of undue influence and duress was a matter to be sorted out between defendants themselves and contract of guarantee relied upon by plaintiff appeared lr> be valid and enforceable—Such defence could not be raised by defendants who were sued as guarantors-­Application for leave to defend suit was dismissed in circumstances.

[P.3193H&J

(iii) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997)--

—-S. 6--Suit for recovery of money-Suit was filed by a banking company, with a syndicate of other companies without joining other syndicate members—Status-Once notice calling upon principal company to pay outstanding amount was issued, syndicate acting jointly as well as each individual member had become entitled to take remedies as agreement — Where proceeds of securities would be shared ratably, and expenditure incurred on sale, disposal or realization thereof and Commissioner's fees, legal fees etc. would be shared by all members proportionately—Held: Agreement had not cast any disability upon right of plaintiff to initiate proceedings individually for recovery of outstanding dues to it~

[P. 312] A & B

(iv) Contract

—Guarantor-Liability of--Creditor in an action against a guarantor is merely required to show existence of liability of principal debtor and occurrence of default or breach of terms leading to liability-Defence based on technicalities, laws of procedure or covenants to which guarantor is not a party cannot be pressed into service by guarantor-- [P. 316] F

(v) Contract-

-—Liability of guarantors co-extensive with that of principal-Defendants had undertaken to make payment and discharge all liabilities of principal company upon receipt of demand—Guarantee does not postulate any ~" proof of legality of claim which would have made guarantee subservient and subject to adjudication of claim against principal debtor-Where guarantors had expressly agreed that plaintiff could, at its election, treat them primarily liable for debt of principal company-Plea repelled.

[P. 317] G

(vi) Contract Act, 1872 (IX of 1872)--

—S. 73—Penalty or liquidated damages-Extent-Imposition of penalty or damages at a fixed rate is opposed to provisions contained in S. 73, Contract Act, 1872-For claiming penalty or liquidated damages, a party is required to plead and prove actual loss or damages for claiming such damages. [P. 313] D

Mr. Salman Talibuddin, Advocate Mr. Mansoorul Arfin, Advocate Mr. Nizam Mi Khan, Advocate Date of hearing: 12.11.1998.

order

The application put for hearing is filed by Defendant No. 2 seeking leave to defend the suit.

The plaintiffs suit is for recovery of Rs. 76,130,360 against the defendants and for sale of all the immovable and movable properties owned by them alongwith costs of the proceedings. In the plaint, it is averred that the plaintiff alongwith a syndicate of other Banking companies had entered into a Term Finance Agreement, dated 20th July, 1995 referred herein as the agreement', with M/s. Pak Land Cement Limited (hereinafter referred as the principal company') undertaking grant of finance to the extent of Rs. 250 million. Under the terms of the agreement, the above-referred amount of facility was termed as the purchase prince and the marked-up price undertaken to be re-paid by the principal company was settled at Rs. 437,804,414. The amount undertaken to be contributed by the various members of syndicate including the plaintiff was separately earmarked in the agreement as follows:-

"The purchase price shall be contributed by the members in the following amounts:

(1) CITIBANK PKR 50,000,000

(2) ACB PKR 50,000,000

(3) ABL PKR 50,000,000

(4) SCB PKR 50,000,000

(5) HBL PKR 30,000,000

(6) SBL PKR 20.000.000 Total: PKR 250.000.000

Like-wise, the marked-up price receivable by the respective members of the Syndicate was also separately mentioned and was payable to the plaintiff and other members of the Syndicate in the following proportion:--

"The marked-up price shall be paid by customer to the members as under:--

(1) CITI BANK PKR 87,560,883

(2) ACB PKR 87,560,883

(3) ABL PKR 87,560,883

(4) SCB PKR 87,560,883

(5) HBL PKR 52,536,530

(6) SBL PKR 35.024.353

Total: PKR 437.804.415."

The parties to the agreement had agreed to appoint M/s. Citicorp Investment Bank (Pakistan) Limited hereinafter referred as the agent' to act as agent for and on behalf of the Syndicate. It was agreed that the amount of finance would be re-paid in installments in terms of Schedule-B attached to the agreement with the stipulation that in the event of payment of installments) on or before its due date the principal company would be entitled to a prompt payment bonus set out in or calculated in accordance with Schedule D annexed with the agreement It may be noted that the prompt payment bonus calculated on actual, in accordance with Schedule D, finds mention in Schedule B to the agreement. Article 9 of the agreement contained the events of default and clauses (9.3) and (9.4) therein being relevant and having been cited by both the learned counsel for the plaintiff and Defendant No. 2 are reproduced hereunder for the sake of convenience:-

"9.3. Consequences of an event of default-fhe Agent shall, if so requested by the majority in value of the Members, without prejudice to any other rights of the Syndicate, at any time after the occurrence of an event of default, by notice in writing to the customer declare:

(a) That the several obligations of the members to disburse and contribute their portions of the Purchase Price shall be terminated, whereupon the facility granted by this Agreement shall be terminated forthwith;

(b) that the outstanding amount of the Marked-up Price and other amounts due by the customer under this Agreement (whether or not as yet due for payment) shall have become due and payable by the customer within ten (10) days of the receipt by the Customer of the said notice issued by the Agent. Such outstanding amount of the Marked-up Price and other amounts shall become due and payable by the Customer without the need to obtain a judgment or completion of any other formality. In such a case, in addition to paying all outstanding amount due under this Agreement, the customer will pay to the syndicate the amount corresponding to the costs (directly and reasonably) incurred by the members in connection with the early payment of the Marked-up Price and other amounts due under this agreement: Provided further that in no event, any delay on the part of the Syndicate, or the Agent, in the exercise of the said right to cancel the facility or to require immediate payment of the outstanding amount of the Marked-up Price and other amounts, may be interpreted as waiver of this right

9.4. Declaration by the Agent and rights of the Syndicate and the Members.--(a) The amount of the outstanding Marked-up Price declared by the agent to be due and payable with immediate effect in accordance with clause 9.3(b) above will be the aggregate amount stated in the notice given by the agent for the Syndicate as well as the proportion amounts payable to each individual member as its entitlement out of the said aggregate amount due and shall be final and conclusive. The Customer shall pay each amount to the respective Members within ten (10) days after the receipt of such notice. If the customer fails to pay the outstanding amount within ten (10) days from the date of the receipt by the customer of such notice from the agent demanding payment, the Syndicate as well as each individual Member shall have the right to forthwith take the following remedies amongst other remedies available under the law:-

(i) To forthwith enforce and realised the securities provided in clause (3) hereof including, without limitation, to sell with or without the intervention of the Court, the Mortgaged Properties, the hypothecated and/or pledged properties;

(ii) to file suits for the recovery of the outstandings due to each Member and for the sale of the mortgaged properties, hypothecated and/or pledged properties including, without limitation, for the appointment receivers and prompt attach­ment of all other movable and immovable properties of the Customer;

(iii) to apply for winding up of the customer in accordance with the provisions of the Companies Ordinance, 1984; and

(iv) to file suits for the recovery of the total outstandings and/or for any shortfall after the sale or realisation of all the securities, as the case may be.

(b) The net amount realised by sale of any security or securities after deduction of expenses on sale, disposal or realisation, including without limitation, Commissioner's fees, legal fees, etc., shall be shared by all the Members in proportion to their entitlements mentioned in Schedule B and clause (2.3) thereof. If the net sale proceeds the insufficient, the customer shall continue to be liable for the deficit

(c) Each Member shall be free to initiate recovery proceedings for the amount due to it, but the proceeds of the securities shall always realised for the benefit of all the Members and shared on pari pasu basis in proportion to the Marked-up Price due to each

Member."

Another salient term of the agreement, referred by the learned counsel, is contained in sub-clause (a) of Article 14.2 which is to the following effect--

"(a). A statement signed on behalf of the agent by any of its Authorised Representatives, as to any matter or any amount outstanding (including, without limitation, amounts owing by the customer) as at the date specified in the statement would conclusive as against the Customer and all Members."

Under term 14.3 of the agreement it was acknowledged by the principal company that the agent was not an agent trustee or fiduciary for the principal company. According to the averments contained in the plaint amongst the various collaterals stipulated under the agreement, the Defendants Nos. 1 to 4 were required to execute personal guarantees to secure repayment of liabilities under the agreement to the plaintiff and other members of the syndicate. The Defendant No. 1 and the Defendants Nos. 2, 3 and 4 had accordingly executed personal guarantees in favour of the plaintiff on 22.12.1996. The guarantees are stated to be irrevocable and unconditional and have to be considered continuing security binding the guarantor(s) to make payment of and discharge all the liabilities of the principal company, upon receipt of its demand, jointly and severally, a sum up to the limit of Rs. 67 million. The guarantees executed by the defendants had further authorised the plaintiff, at its option, to treat the guarantors primarily liable for the debt of the principal company. On account of the alleged failure of the principal company to make repayment in terms of the agreement the plaintiff through letter dated 11.11.1997 had called upon the principal company to liquidate the claim outstanding against it amounting to Rs. 74,624,660 followed by notice dated 17.11.1997 calling upon the Defendants Nos. 1 to 4 to discharge the liability in terms of the undertaking contained in the guarantee. The notice dated 17.11.1997 is stated to have been responded by the four defendants in identical terms through their Legal Advisor. The reply being evasive, the present proceedings have been filed.

It may be noted that the Defendant No. 2 is younger brother of Defendant No. 1. The Defendants Nos. 1 and 3 had earlier filed a joint application for leave to defend the suit which was dismissed for non-prosecution on 8.9.1998. Applications were then separately filed for restoration of the leave application but the same came to be dismissed on 16.9.1998.

The defence urged by Defendant No. 2 in the affidavit, filed in support of the application for grant of leave, is that the principal company is a necessary party and the various documents were signed blank under undue influence and duress exercised by Defendant No. 1. It is further averred in the affidavit that detailed statement of account has not been filed with the plaint and besides charging excessive mark-up adjustment of liabilities through sale of pledged shares had not been accounted for during hearing, however, the learned counsel for the Defendant No. 2 has urged as follows:—

(i) The present proceedings having been initiated by the plaintiff alone are not maintainable due to non-joinder of other members of the syndicate and, in any event, the communication about the amount remaining due and outstanding had to be conveyed by the agent namely M/s. Citicorp. Investment Bank (Pakistan) Limited;

(ii) Excessive mark-up amounting to penally had been charged and the amount mentioned as prompt payment bonus in Schedule-B to the agreement had to be discounted from the marked-up price mentioned in the agreement for ascertaining the correct marked-up price;

(iii) Liability of defendants being co-extensive with that of the principal company, the claim against the latter ought to be shown to have matured and all other securities held by the plaintiff should be disclosed.

Mr. Salman Talibuddin, appearing for the plaintiff, has raised preliminary objection against entertainment of the pleas, urged on behalf of Defendant No. 2 as are not mentioned in the application for leave. The contention of Mr. Salman Talibuddin, Advocate is that the object of pleadings is to put the other side on notice about contentions/questions proposed to be raised and the requirement of a fair hearing stands defeated in case fresh pleas are permitted to be raised during arguments.

The objection agitated by the learned counsel for the plaintiff, I must confess, has a good logic; and, the requirement of fair and reasonable hearing, indeed, stands negatived if new and additional pleas are allowed to be raised during arguments. The requirement of reasonable hearing means a fair opportunity to meet the case set up by the other side and the desire to administer justice and equity cannot be enforced in a manner to ignore the technicalities altogether. On such principle even evidence which comes on record and is found contrary to or beyond the pleadings is required to be discarded out of consideration. The principle of fair hearing was even implemented in a case where default in payment of rent was alleged for a particular period but was found by the Court to have been committed for a slightly different period. Ajmal Mian, J, as he then was, in the case of Amir Ali v. Mrs. Aleema Ahmed PLD 1981 Kar. 150 had proceeded to set aside the order of eviction despite holding that law of pleadings was not strictly applicable to rent proceedings. The other possible approach could be of allowing time to the adversary for meeting the additional or new points raised subsequently. In relation to the cases under Act XV of 1997, however, >. the position is regulated by letter of the law. Section 10 of the Act provides: "Subject to Section 11, the Banking Court, shall, upon an application made — by a defendant within twenty-one days, give leave to defend the suit, if a serious and bona fide dispute is raised thereby". The word thereby' has its own significance and according to Chamber's Dictionary means "by that means". The above-referred provisions of law, thus, requires that the questions or issues raised through the leave application, alone, can be considered and the desire to dispense equitable justice cannot defeat or override the letter of law which requires the law of pleadings to be enforced strictly.

Having held as above, the various contentions raised by the learned counsel for Defendant No. 2 cannot be considered at all whereas the questions raised through the application for leave to defend itself are to be 'deemed to have been given-up having not been pressed a the time of arguments. However, since I have heard arguments of the learned counsel in detail and the submissions made in reply, I propose to deal with the questions separately.

The first contention about maintainability of the proceedings by the plaintiff alone, without joining other Syndicate members, is based on certain terms of the agreement including the Schedule of re-payments contained in Schedule-B to the agreement. The said schedule indeed, refers to the cumulative amount of installments payable to the plaintiff and other members of Syndicate through the agent Even the terms contained in Article 9.3 and Article 9.4 of the Agreement tend to show that the Syndicate including the plaintiff is to act jointly in relation to ascertained matters through the agent. Under Article 9.4 the amount of outstanding marked-up price is required to be declared by the agent through notice to become due and payable with immediate effect in accordance with Article 9.30)) conveying therein the aggregate amount so due as well as the proportionate amount payable to each individual member of the Syndicate. The special mode for treating the outstanding amount of the marked-up price and other amounts due is contained in Article 9.3 of the Agreement which requires issuance of notice by the agent Once notice calling upon the principal company to pay the outstanding amount is issued, the Syndicate acting jointly as well as each individual member becomes entitled to take the remedies specified under Article 9.4 of the Agreement The use of word 'as well as' is synonymous with 'includes' and tends to enlarge or broaden the arena. Thus, not only the Syndicate acting jointly but every member thereof including the plaintiff have the right to follow the remedies specified under Article 9.4 of the Agreement and the other remedies available under the kw. Besides the statutory remedies, the plaintiff, subject to fulfilment of declaration by agent rendering the outstanding amount due, can file suit for recovery of the outstanding due to it and for the sale of the mortgaged properties, hypothecated and/or pledged properties etc. subject to the limitation contained in clauses (b) and (c) of Article 9.4 of the Agreement meaning thereby that the proceeds of the securities would be shared rateably, and, expenditure, incurred on sale, disposal of realization thereof and Commissioner's fees, legal fees etc. would be shared by all the members proportionately. The agreement thus, does not cast any disability upon the right of plaintiff to initiate proceedings individually for recovery of the outstanding due to it

Another important factor which is to be borne in mind is that the principal company is not a party to the present proceedings. The plaintiff has opted to recover its dues from the defendants who had executed two guarantees dated 22.12.1996. The guarantees in question have been executed in favour of the plaintiff-bank; and, the Syndicate as a single unit or the agent are not privy thereto. The cause of action against the defendants is primarily based on the two guarantees and while I have dealt with the question of liability of defendants vis-a-vis the liability of the principal company separately hereinafter, the joinder of other members of Syndicate to the present proceedings would have surely complicated the matter, rather, rendered it defective for misjoinder. The guarantees in question enure to the benefit of plaintiff who alone can sue on the basis thereof. The learned counsel for the plaintiff has aptly referred to Article 2.11 of the Agreement which provides that the rights and obligations of the members and the agent under the agreement are several and divided. The objection relating to maintainability of the proceedings is, thus, repelled.

Adverting to the second contention relating to excessive mark-up having been charged in the nature of penalty, I have dealt with such matter in a number of cases including Suit No. 1472 of 1997 (NDFC v. Anwarzaib White Cement Ltd.). It is quite normal in the matter of financing that dual rates of mark-up are prescribed under ait agreement in order to keep the pressure for repayment of marked-up price within due date. The schedule of repayment annexed to the agreement discloses substantial amount under Column 5 being deducted towards prompt payment bonus. The admissibility of prompt payment bonus and reduction of the marked-up price to such extent is not left at the will and desire of the plaintiff and other members of the Syndicate. The principal company was entitled to prompt payment bonus as per the agreement provided the amount of installments was paid by the due date. Obviously, therefore, the marked-up price actually agreed between the parties was what was agreed to be paid upon deduction of the amount referred as prompt payment bonus. The amount of prompt payment bonus, in reality, is what had to be paid by way of penalty for non-payment of installments by the scheduled dates. The Islamic System of Banking, in the event of grant of finance allows the parties to settle between themselves a reasonable amount of profit. However, imposition of penally by any name or form is impermissible. Likewise, the claim for liquidated damages, also, is in the nature of penalty. The Divine Command to the creditor is either to forgive or to grant time (2:280). Even otherwise, imposition of penalty or damages at a fixed rate is opposed to the provisions contained in Section 73 of the Contract Act. For claiming penalty or liquidated damages, a party is required to plead and prove actual loss or damages. Such view finds support in the Division Bench of this Court in the case of Habib Bank Limited v. M/s. Farooq Compost Fertilizer Corporation Ltd. 1993 MLD 1571. The claim of plaintiff in the present case, as per the statement of account includes liquidated damages and prompt payment bonus, which is denied to the principal company for its alleged failure to make repayment within due dates. The learned counsel for the Defendant No. 2 is justified in contending that the amount of prompt payment bonus and liquidated damages having been levied by way of penalty cannot be granted to the plaintiff. Such finding, however, does not justify grant of leave to defendant since the claim based under the above-referred heads can be identified and segregated quite conveniently from the claim amount. Such process would not require and evidence from either side and cannot be classified as a serious and bona fide dispute warranting grant of leave to defend the case.

The last submission raised by Mr. Arfin is based on Sections 127 and 128 of the Contract Act. It is urged by Mr. Arfin that the liability of defendants being co-extensive with that of the principal company, the plaintiff is required to establish that the claim herein could lawfully be preferred against the latter. It is urged that the liability of the principal company had to be ascertained through a particular mode prescribed under Article 9.3 of the Agreement and could then be enforced in the manner provided by Article 9.4 of the Agreement. In the context of such submission, it is contended that liability under the guarantee in question cannot be invoked. It is further the case of Mr. Arfin that the guarantee dated 22.12.1996 was not enforceable for being without consideration. I may reproduce here the provisions contained in Section 127 with illustration (c) thereunder and Section 182 of the Contract Act for reference purpose:-

"S. 127. Anything done, or any promise made, for the benefit of the principal debtor may be a sufficient consideration to the surely for giving the guarantee.

Illustration

(a)

(b)

(c) A sells and delivers goods to B.C. afterward, without consideration, agrees to pay for them in default of B. The agreement is void.

S. 128. The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract."

The case of Defendant No. 2 urged during hearing, is that the entire amount of finance undertaken by the plaintiff was disbursed to the principal company on or about 8.8.1995 and no further benefit or additional advantage was extended to the principal company thereafter. The Defendant No. 2 having executed guarantee jointly with Defendants Nos. 3 and 4 on 22.12.1996, it is urged that nothing was done nor was any promise made for the benefit of the principal company at the desire or behest of the defendants, hence, the contract of guarantee is void and unenforceable. The learned counsel for Defendant No. 2 has relied in this behalf on judgments in National Construction Ltd. u. Standard Insurance Co. Ltd. 1984 CLC 286 and United Bank Limited u. Ch. Ghulam Hussain 1998 CLC 816. In the first case, it is affirmed that liability of surety and a principal-debtor is co-extensive and the claim against surety until and unless existence of liability and failure or breach on the part of principal-debtor is established, would be premature. In the second case, a Division Bench of Lahore High Court had found that the statement of account filed by the plaintiff therein did not show any disbursement and the financing agreement relied therein were not preceded by grant of sanction by the Competent Authority. In the circumstances, the agreements were found lacking any consideration and were treated void.

In reply, Mr. Salman Talibuddin, has urged that the guarantee itself creates enforceable and independent contract of indemnity and the defendants including the Defendant No. 2 cannot bank on the procedural technicalities which could be urged by the principal company. It is further contended that in any event, the certification of the dues by the agent was agreed to be conclusive proof of the outstanding in terms of Article 14.2 of the Agreement with the result that upon communication of demand through letter dated 17.11.1997 forwarding therewith certificate in terms of clause (8) of the guarantee, the defendants became liable for payment under the guarantee. It is further pointed out that the Defendant No. 2 in his reply dated 22.11.1997 sent through his counsel did not question the liability itself. Reference was instead made to some undisclosed undertaking of the Syndicate during meeting held on 20th October, 1997 between the representatives of principal company and members of the Syndicate. The learned counsel for plaintiff has referred to the notice of demand, dated 21st August, 1997 addressed by the agent to the principal company annexing therewith details of calculation of alleged over-dues showing therein the proportionate amount payable to every individual member of the Syndicate out of the aggregate amount mentioned in the notice. I may note here that both the learned counsel representing the plaintiff and the Defendant No. 2 have vehemently argued for and against in relation to the propriety of any reference to the said notice. Mr. Arfin has urged that the said documents had been filed alongwith counter-affidavit to C.M.A. No. 498 of 1998 filed by Defendants Nos. 1 and 3 seeking leave to defend the proceedings. The said application having been dismissed for non-prosecution, the various documents filed in relation thereto could not be referred for the purpose of present application. From the plaintiffs side, reference has been made to Order XHI, Rules 10 and 11, C.P.C. and Section 9(4) of Act XV of 1997 and it is contended that the Court is empowered to take into account and consider any material or documents as may be considered relevant and seem to advance cause of justice. The learned counsel for plaintiff further submits that two copies of the above-referred notice, dated 21st August, 1997 with its enclosures are available on the file and the same have not been re-filed in order to avoid burdening the Court record. Moreover, it is urged that the objection based on Articles 9.3 and 9.4 of the Agreement was raised for the first time during arguments and in order to do complete justice, the contents of the notice be considered. In support of his submission, reliance has been placed on the case of Mian Rahim Gul Syed Kaka Khel v. District Judge (South), Karachi 1994 CLC 94 wherein request of a party for allowing production of inspection report was upheld with the observation that procedural law was a handmaid of justice and even if there was infraction of the same, in a fit case relevant and material documents could be considered. In the present case, the Defendant No. 2 did not plead its non-liability for want of notice/declaration by the agent and, therefore, cannot now be allowed to urge hypertechnicalities. The notice dated 21.8.1997 is material and relevant for meeting the objection raised on behalf of Defendant No. 2 and its copy is already available on the record. Pertinently, the Defendant No. 2 has not alleged manipulation of the said document and the same has, therefore, appropriately been referred by the learned counsel for plaintiff. The requirements of Articles 9.3 and 9.4 of the Agreement have sufficiently been shown to have been met by the plaintiff before filing the present proceedings. In relation to the question of liability of defendants, it is true that the same is co-extensive and the plaintiff, as held by Ibadat Yar Khan, J. as he then was, in the case of National Construction Ltd. (supra). The plaintiff, in a claim against guarantor, is required merely to assert that liability of principal company exists in the first instance and a default or breach on its part had occurred. The logic for such finding is the principle contained in Sections 140 and 141 of the Contract which invests the surety with all the rights enjoyed by a creditor against the principal-debtor and further entitles it to the benefit of every security held by the creditor against the principal-debtor. Indeed, mere forbearance on the part of the plaintiff to sue the principal company has not even been pleaded as a ground of discharge in the present case.

Having held, as above, it is necessary to see if all the defences which could be urged by the principal company can be raised by the Defendant No. 2. A contract of guarantee creates an independent liability and the guarantor can defend action against it primarily on the terms of guarantee. The creditor in an action against a guarantor is merely required to show existence of liability of the principal-debtor and occurrence of default or breach of the terms leading to the liability. Beyond the above, the defences based on technicalities, laws of procedure or the covenants to which guarantor is not a party cannot be pressed into service by the guarantor. For instance a claim may have become barred by limitation against the principal-debtor but the creditor can still sue the guarantor if such relief can otherwise be maintained. However, if the guarantee itself stipulates and incorporates by reference, the terms contained in the agreement between the creditor and the principal-debtor, implementation to that extent becomes imminent. The law in this behalf is succinctly stated in Sree Meenakshi Mills Ltd. v. Ratilal Tribhovandas Thakar AIR 1941 Bombay 108 in the following terms:--

"It is well-established that a guarantor isprima facie entitled to have the debt provide as against him The liability of a guarantor must depend on the true construction of the guarantee which he has given. If the guarantor merely guarantees payment of the debt of the principal-debtor, then he is entitled to require the debt to be proved as against him in accordance with the ordinary law, that is in this case under the Evidence Act. If, on the other hand, the principal-debtor has agreed that as against him the debt shall be proved in a particular way, and the guarantor has guaranteed the debt so to be proved, then I apprehended that there can be no doubt that the guarantor would be bound by the particular method of proof agreed to by the principal-debtor and accepted by himself."

In the present case, the Defendant No. 2 had undertaken to make payment and discharge all the liabilities of the principal company upon receipt of demand. Conspicuously enough, the guarantee does not postulate any proof of legality of the claim which would have made the guarantee subservient and subject to adjudication of claim against the principal-debtor. The very concept that a contract of guarantee creates independent liability, in such an event would have stood negatived. The defendant had expressly agreed that the plaintiff could, at its election, treat them primarily liable for the debt of the principal company.

Applying the above principle, in para. 5 of the plaint, the plaintiff has clearly stated the existence of liability and failure of the principal company to effect its discharge. Such assertion has remained unrebutted and the Defendant No. 2 cannot press into service any further defence as could be urged by the principal company. Needless to observe the Defendant No. 2, in any event has not been able to show if the plaintiffs claim is inadmissible as against the principal company. However, I do not wish to dilate any further on this issue for the rights of the principal company are not subject-matter of adjudication in the present proceedings nor do I intend to undertake any such exercise.

Coming to the validity of the guarantee in question itself, the learned counsel for Defendant No. 2 has referred to the use of terms 'granting and/or agreeing to grant at our request' used in opening part of the guarantee. According to Mr. Arfin, the guarantee had contemplated simultaneous grant of finances and future grant of finances to the principal company and the undertaking to repay such liability. It is further contended that illustration (c) under Section 127 of the Contract Act renders the guarantee in question void in relation to the advances already made by the plaintiff to the principal company which in any event, were not covered by the terms of guarantee.

Mr. Salman Talibuddin has urged that Section 127 of the Contract Act admits of anything done, or any promise made, for the benefit of principal-debtor as sufficient consideration to the surety for giving the guarantee. The facilities advanced in past and continued to be enjoyed by the principal company, therefore, amount to valid consideration and the guarantee in question is valid and enforceable. According to the learned counsel, the reference to definition of 'consideration' contained in Section 2(d) of the Contract Act does not render it necessary to show that the facilities were granted to the principal company at the request or behest of the Defendant No. 2. For such contention reliance has been place on the judgment in M. Ghulam Hussain Khan v. M. Faiyaz All Khan AIR 1940 Oudh 364. The learned counsel in order to explain the scope and meaning of Section 127 of the Contract Act has referred to a large number of Authorities in Kali Charan v. Abdul Rahman AIR 1918 PC 226, Mathra Das v. Shamboo Nath AIR 1929 Lah. 203, National Bank of Pakistan v. Alam Industries Limited, Karachi PLD 1992 295, American Express Bank Limited v. Adamjee Industries Limited 1995 CLC 880 and United Bank Limited v. Shahyar Textile Mills Ltd. 1996 CLC 106. I do not consider it necessary to refer separately to the various judgments cited by the learned counsel for plaintiff. The principles which have come to he settled in the said judgments are that anything done or any promise made for the benefit of the principal may he a sufficient consideration to a surety for giving guarantee; that the word 'done' in Section 127 of Contract Act shows that past benefit to principal-debtor is good consideration; that the consideration is not necessary to be received by the surety; and, that something done or abstained from in relation to past transaction would be a good consideration. In all the cases, however, the language of the guarantee was examined and it is observed that the intention of the party is to be gathered from language of the instrument and the surrounding circumstances. In the present case, the relevant portion of the guarantee is as follows:-

"In consideration of your bank granting and/or agreeing to grant at our request finances of credit facilities up to the limit of Rs. 67,000,000 (Rupees sixty-seven million only) to M/s. Pakland Cement Limited having offices at Trade Centre, A-14, Block 7/8, KCHS, Karachi (Hereinafter called 'principals') under one or more modes of 'finances' as defined in the Banking Tribunals Ordinance, 1984 and/or providing to the Principals any other banking accommodation or facility and in that connection your entering into one or several agreement or agreements with the Principles and your opening one or several account or accounts in your Books in the name of the Principals, I/we, the undersigned herein referred to as the 'Guarantor(s)', do hereby irrecoverably and unconditionally agree; undertake and guarantee jointly and/or severally the due payment and discharge of all the Principal's liabilities to you on receipt of vour demand, whether incurred before or after the date thereof." (Emphasis supplied).

The guarantee in the above terms was executed on 22.12.1996 at a time when the syndicate including the plaintiff had already disbursed the amount of finance. The facility, however, had to be returned in installments and such installments became due form 1st November, 1995 onwards. The use of word 'granting' read with the words 'the due payment and discharge of all

the principal's labilities ............ whether incurred before or after the date

hereof signifies desire of the guarantors about continuity of the facility notwithstanding default committed already, in re-payment thereof. The statement of account filed by the ^aintiff on 27.10.1998 shows that the installments due on 1st August, 1996 and 1st November, 1996 had remained unpaid on the date of execution of guarantee. Indeed, on account of the default, the entire amount of liability could be recalled and the principal company, therefore, needed waiver of the rights enforceable then, by the members of the syndicate. The grant of waiver or time was a continuing process and the same was apparently allowed upon execution of guarantee. Conversely, the guarantee was executed in consideration of the plaintiff-bank continuing with the facilities. The undertaking to pay the liabilities which had turned to arrears before execution of the guarantee signifies knowledge on the part of Defendant No. 2 and others or existence of past liabilities. The facilities were allowed to be continued in pursuance of the guarantee in question and the loan agreement itself, amounting to valid consideration in terms of Section 127 of the Contract Act It is not necessary that a surety himself must receive some benefit in return for the guarantee. The principal Company having receive benefit was sufficient consideration for the guarantee. In the circumstances, I do not find any merit in the submission that the guarantee dated 22.12.1996 was given without consideration or that no liability was undertaken for the past disbursement.

Reverting to the grounds urged in the leave application itself, nothing has been shown to infer that the guarantee in question was signed blank or under undue influence or duress exercised by Defendant No. 1. In any event, the allegation of undue influence and duress is a matter to be sorted out between the defendants themselves and the contract of guarantee between the plaintiff and Defendant No. 2 appears to be valid and enforceable. As to the detailed statement of account, the plaintiff has filed the same on 27.10.1998 with due certificate appended thereto. The Defendant No. 2 has not given details of the liabilities which the plaintiff was obliged to adjust through sale of pledged shares. From the plaintiffs' side, it is urged that nothing has been sold nor has any amount remained unaccounted. Assuming that the pledged shares are in custody of the plaintiff, the plaintiff can lawfully retain the pledged shares as collateral securities and make claim for the outstanding debt. In any even, such defence cannot be raised by the defendants who are sued as guarantors in view of the observation recorded hereinbefore. In the circumstances, the application for leave to defend, filed by the Defendant No. 2, is dismissed.

As a result of dismissal of the leave applications and non-filing of application for leave on behalf of Defendant No. 4, I have examined the plaintiffs claim and found that the claim herein includes mark-up beyond the agreed rate inasmuch as penalty payable upon non-repayment by the due dates, referred as prompt payment bonus, has been included therein besides the amount of liquidated damages. While dealing with the leave application filed by Defendant No. 2,1 have already held that the plaintiff is not entitled to claim the amount of prompt payment bonus and liquidated damages. Let the plaintiff file a revised statement of account within five (5) days from today with advance copy to the learned counsel for other side and the matter be put up for further orders on 19.11.1998.

(K.K.F.) Orders accordingly.

PLJ 1999 Karachi 320

Present: sabihuddin ahmed, J. Mst. ABIDA AMIN-PMntiff

Versus

MUHAMMAD AMIN and another-Defendants

Suit No. 650 of 1986, decided on 10.8.1998.

Defamation--

—Damages-Defendant, in divorce deed consciously chose to allege that plaintiff (wife) was suffering from gynaecological disease prior to solemnization of marriage, that she had urinary tract infection of serious nature; and that she used to return home very late and always pretended that she had gone to see her mother or friends—Allegation to the effect that plaintiff suffered from gynaecological disease and had been so suffering prior to her marriage was per se defamatory-Further, statement in divorce deed that plaintiff used to come home late and would pretend that she had gone to visit her mother or some friend unquestionably showed that defendant was attempting to attribute unchastity or immorality to plaintiff-Such statement was, thus, made and circulated maliciously-Imputations made in divorce deed were calculated to defame plaintiff-Imputations in question were not made by defendant in his written statement but in altogether different document Le. divorce deed which was required to be communicated to concerned union council for being given legal effect and was, admittedly, executed well before proceedings in Court commenced, therefore, defendant could not claim privilege with regard to statement in question-Contents of divorce deed were defamatory of plaintiff and were circulated without justification-Defendant and co-defendant (doctor) in whose clinic (lady) remained under treatment; who issued certificate to defendant (husband) that plaintiff was suffering from such and such decease thus, connived with each other to defame plaintiff and were, thus, liable to pay damages-Court on basis of evidence on record and principle of law relating to awarding of damages deemed it fair to award specified amount against defendant (husband) for imputations contained in divorce deed and further similar amount jointly and severally against both defendants in respect of imputations made in medical certificate with specified interest from date of decree till payment was made.

Iff 323, 324 & 327] A, B & C

Mr. Nasir Maqsood, Advocate for Plaintiff. Mr. S.A Ghaffar, Advocate for Defendants. Date of hearing: 17.2.1998.

judgment

This is a suit for recovery of Rs. 1,500,000 by way of damages for defamation. The plaintiffs case, briefly, is that she is an educated-lady working as Assistant Director in Sindh Small Industries Corporation. Her father had left her mother and with a great deal of difficulty her mother brought her up and educated her as her only child. She started working from a very young age and supporting her mother when the latter fell sick. Coming from a conservative Katchi Memon Family and being devoted to her mother who did not approve of her marrying outside the community, she married the Defendant No. 1 on 4.7.1984. The Defendant No. 1 had been married before, but his first wife had died few years ago. The Defendant No. 1 used to insist that the plaintiff should give all her earnings to his mother and did not approve plaintiffs supporting or attending to her own mother who had fallen seriously ill and was unable to support herself. She was subjected to a great deal of mental and physical torture by the Defendant No. 1, his mother and his daughters from his first wife. Within three months of her marriage she fell seriously ill and was admitted in Mowloo Jumma Hospital Gari Khata, where she remained from 4.10.1984 to 19.10.1984. Neither the Defendant No. 1 nor any of his family members visited her in the hospital and when she was about to be discharged, a message was sent to her that she was no longer welcomed in the Defendant No. 1's house and was advised to go and stay with her mother. During her hospitalisation the plaintiff was informed that she was suffering from Urinay Traction infection and she might have contracted through her husband. The plaintiff also came to know from members of the community that his first wife who died due to kidney failure and also probably contracted the same disease from the Defendant No. 1. It is further stated that despite several attempts to persuade him, the Defendant No. 1 was not willing to take the plaintiff to his own house and maintain her. After eleven months she filed the suit for maintenance before the competent Family Court. The Defendant No. 1 filed a written statement wherein he, inter alia, contended that he had divorced her in terms of the declaration of divorce dated 22.9.1985. The written statement and its enclosures including the divorce deed has been placed on record as Exh. 6/8. It may be pertinent to reproduce certain parts of this declaration of divorce which read as under:- \

"5. That Mst. Abida was also suffering from gynaecological disease prior to the solemnisation of the marriage as she had urinary tract infection of serious nature, which she never told me but the same came to my knowledge afterwards when she was given medical treatment by our family doctor on her bad health conditions.

1. That Mst. Abida was asked several times to leave her job and live like a house wife and take care of children and the house as per her promises and agreed terms but she always refused to do so and her daily practice was to go to her job early in the morning and return home very late at u.i6ui, say after 8 and 9 p.m. without any lawful and just reason, when she was asked for that routine she always pretended that she had gone to see her mother from her office and/or some of her friends."

Alongwith the written statement the Defendant No. 1 filed a certificate issued by the Defendant No. 2 to the following effect: -

"It is certified that Mrs. Abida Ameen was treated by me after her marriage for many times. She has Urinay Tract Infection and some serious Gynaecological diseases. Her U.T.I, is leading her to chronic Renal failure. She had got many mental symptoms of Hallucination and Psychosis."

1. The plaintiff has alleged that the allegations contained in the declaration of divorce deed as well as the certificate mentioned above are false and defamatory of the plaintiff. They were made out only with an attempt to defame and humiliate the plaintiff within her community and generally in the public eye.

2. The Defendant No. 1 in his written statement admitted the execution of the declaration of divorce and the certificate issued by the Defendant No. 2. He nevertheless, pleaded that the contents thereof were true and in any case were not defamatory of the plaintiff. He emphatically denied any allegation of collusion with Defendant No. 2 or malice on his part. The Defendant No. 2 admitted the execution of the certificate and contended that he had been treating the plaintiff before and after her marriage and the statements in the certificate are true.

3. Certain issues were settled and the parties led evidence in support of their respective contentions. However, before commencement of arguments the issues were recast to the following effect: -

(1) Whether the allegations in the divorce deed made by the defendants of the certificate issued by the Defendant No. 2 were mala fide and given wide publicity to cause damage to the plaintiff?

(2) Whether the certificate issued by the Defendant No. 2 in respect of the ailment to the plaintiff are false?

(3) Whether the defendants have acted in collusion?

(4) What should the decree be?

1. Having gone through the record and heard the arguments of the learned counsel my issue-wis\ findings are stated as follows:-

ISSUE NO. 1:

1. On this issue the factum of a written divorce deed having been made and its contents are not disputed. The only question for consideration are whether its contents are defamatory i.e. tend to lower the reputation of the plaintiff in the public eye whether the Defendant No. 1 is entitled to the protection of any defences available in such proceedings. In Para. 10 of the written statement the defendant has pleaded that he had always discharged his duties as a husband quite well and only when his sincere efforts to bring the plaintiff home (after her discharge from hospital) failed, he pronounced divorce upon her in accordance with the norms and principle of Islam, having realised that they could not remain as husband and wife within the limits of God. It is Indeed correct that under the Muslim Law the husband can always divorce his wife by pronouncing Talaqand no written document is necessary fro doing so. Even if he chooses to divorce her through a written document he is not required to assign any reason whatsoever. Moreover, if the primary reason, as contended in the written statement as well as his evidence for terminating marital, ties, was the stubborn attitude of the defendant in refusing to come to the marital home and not her health condition, the Defendant No. 1 could have confined himself to saying so. Nevertheless, in the divorce deed the consciously chooses to allege that the plaintiff was "suffering from gynaecological disease prior to solemnization of marriage and she had urinary tract infection of serious nature". He further went to say, in the same document, that she used to return home very late and always "pretended that she had gone to see her mother or friends".

2. Mr. Nasir Maqsood, learned counsel for the plaintiff has argued that an allegation to the effect that a woman suffers from some gynaecological disease and has been so suffering prior to her marriage is per se defamatory. Indeed the question whether this statement amounts to libel or slander has to be viewed from the social context in which it is made and in which the person said to have been defamed resides. Indeed, in our society such imputations are to be treated very seriously. Further, statement in the divorce deed to the effect that the plaintiff used to come home late and would pretend that she had gone to visit her mother or a friend unquestionably shows that the Defendant No. 1 was attempting to attribute unchastity or immorality to the plaintiff. As discussed above, there was absolutely no need to make aforesaid allegation in the divorce deed and the marriage could be terminated without making such imputations, therefore, it is impossible to resist the arguments that such statement was made and circulated maliciously. Even otherwise, in such matters the law assumes malice and the burden is on the defendant to show that the statement was true and was made in good faith. The Defendant No. 1 in his evidence has neither bothered to show that such statements were true nor attempted to explain why they were made in the divorce deed. On the contrary, he has deposed that the plaintiff did have pre-marital sex life but this did not matter to him. This makes his conduct all the more questionable because if it did not really gatter, as far as he was concerned, why he chose to put it down in writing thi circulate it knowing perfectly well that in our social milieu such al)0\nients do lower the prestige of a woman. He himself chose to file a copy incaj' document before the Court trying the suit for maintenance. He must also communicated the same to the concerned Union Council if he had intended to give legal effect to the divorce. It is, therefore, quite clear that the imputations made in the divorce deed were calculated to defame the plaintiff.

3. Mr. S.A. Ghaffar, learned counsel for the defendants has argued that even if the contents of the divorce deed were defamatory, no cause of action could accrue to the plaintiff because the document was a privilege document, have only been filed in the Family Court alongwith written statement in the suit for maintenance filed by the plaintiff. Learned counsel relied upon a judgment of the Madras High Court in Sedimbi Hanumantharow and others v. Nidumolu Seetharamayya (AIR (29) 1942 Madras 343) in this case it was held after examining certain English judgments that no action for life or slander lies against the parties for words "written" or "spoken" in the course of any proceedings before a Court recognised by law, even though such words were written or spoken maliciously, without justification and from personal ill-will and anger against the person defamed.

4. However, I do not think that this judgment is of much help to the defendant. In the first place privilege extends to a statement, whether oral or in writing made before a Court and not to other documents that may be enclosed alongwith such documents. The imputations in question were not made by Defendant No. 1 in his written statement but in an altogether different document i.e. a divorce deed, which is required to be communicated ito the concerned Union Council for being given legal effect and was _j admittedly executed well before proceeding in Court commenced. Secondly, °| in the judgment cited by Mr. S.A. Ghaffar himself, it has been held that the : question whether a statement is privileged or not, depends entirely on the i nature of the statement and the purpose for which it is filed and if their | documents are considered by a party as being essential for his defence they are covered by the doctrine of privilege.

5. Mr. Nasir Maqsood, learned counsel for the plaintiff has argued that the Defendant No. 1 being possessed of an absolute right to divorce under the Muslim Law was not required to assign any reason either before the Court or the concerned Union Council and the imputation made being entirely irrelevant were not protected by the doctrine of privilege. The following statement of law from Gatley on Libel and Slander (Seventh Edition, page 583), which read:-"The scope of the defamatory matter must not exceed the exigency of the occasion. If a person goes into matters wholly unconnected with, and irrelevant to, the duty or interest that gave rise to the privilege, no privilege will attach to his statement in so far as it refers to such matters. The fact that an occasion is privileged" said Lord Lorebun in Adam v. Ward, does not necessarily protect all that is said written on that occasion. Anything that is not relevant and perti) to the discharge of the duty or exercise of the right or safeguarding of the interest which creates the privilege or, in the words of Lord Atkinson, foreign and irrelevant subjects not pertinent to the discharge of the duly, or the protection of the interest which forms the basis of the privilege will not be protected.'"

In view of the above, I am clearly of the opinion that the contents of the divorce deed were defamatory of the plaintiff and were circulated without justification and the Defendant No. 1 if not entitled to any privilege in respect thereof.

ISSUE NO. 2:

1. As regards the certificate issued by the Defendant No. 2 while the plaintiff has admitted that she suffered from urinary tract infection (which according to her she contracted from the Defendant No. 1) she has emphatically denied the remaining part of the statement in the certificate reproduced in para. 2 above. The Defendant No. 1 on the other hand has categorically denied that the plaintiff suffers from such infection. Be that as it may the Defendant No. 2 has taken up the defendant that the contents of the certificate were true and based upon investigation conducted in the due performance of professional duties. The certificate refers to three ailments, namely, (1) Urinary tract infection); (ii) some serious gynaecological disease and (iii) mental symptoms of Hallucination and Phychosis.

2. As far as the infection is concerned there does not appear to be in dispute as between the plaintiff and Defendant No. 2 that the former was suffering from such infection. The plaintiff has asserted that she contracted this infection from the Defendant No. 1 and that she consulted the Defendant No. 2 for the first time only after her marriage with Defendant No. 1. On the other hand the Defendant No. 2 has stated in evidence that he had also examined the plaintiff prior to her marriage and she was suffering from such infection even at that time. In his evidence he has explained that such infection can be contracted by one spouse from another, but can also erupt in unmarried females. As such even if the evidence of the Defendant No. 2 is believed all that it proves is that the plaintiffs assertions to the effect that she acquired this infection from the Defendant No. 1 stands negatived. This however, is not an issue before me and no finding is necessary. Even otherwise I am tentatively of the view that a certificate by a doctor to the effect that his patient is suffering from such infection does not appear to be defamatory.

3. The important aspect of the controversy however, relates to the two other ailments mentioned in the certificate i.e.some serious gynaecological disease and mental symptoms of Hallucination and Psychosis.

'The plaintiff has categorically asserted that such statements made in the certificate are false. This has been denied by the Defendant No. 2. Evidently, th-e imputation as to gynaecological diseases is per se defamatory as discused above. Similar is the position with respect to an allegation of mental incapacity. Therefore, burden to prove that they were true was on the

326 Kar. Mst. abida amin v. muhammad amin PLJ

(Sabihuddin Ahmed, J.)

Defendant No. 2 i.e. the Doctor. The Defendant No. 2 has not produced the records maintained at his clinic relating to investigation conducted by him in respect of his patients and has stated that the same got destroyed in riots. Nevertheless, even in his affidavit-in-evidence and deposition in cross-examination while he has explained the genesis of Urinary Tracts Infection he has not spoken a word about the gynaecological disease that the plaintiff was allegedly suffering from or her mental condition. Moreover, the statement to the effect that a patient is suffering from "some serious gynaecological disease" does not appear to convey the impression of strictly professional opinion. Normally, a Doctor is expected to identify the nature of such disease or that at least convey his impression. If he was unable to identify the disease, he could require her to undergo further tests or seek another professional opinion. Not a word has been stated in evidence to this effect. In the circumstances, I am inclined to hold that truth of the statement, in so far as the two other ailments are concerned, has not been established.

ISSUE NO. 3:

1. Mr. Nasir Maqsoou, learned counsel for the plaintiff argued that the Defendant No. 2 issued the certificate only to oblige the Defendant No. 1 in defaming the plaintiff and not in the bona fide performance his professional duties. In this context, he contended that irrespective of the contents of the certificate the Defendant No. 2 owed a professional obligation to maintain secrecy and not to divulge information which came to his knowledge in the course of professional duties without the express permission of his patient. He referred to various passages of Principles of Forensic Medicine by Apurba Nandy, wherein it has been clearly laid down that a doctor not divulge secrets of his patient learnt by him in connection with his professional duties and the secret information about one spouse cannot be divulge to another without the consent of the former. Mr. Nasir Maqsood has further referred to the following passage from Legal Medicine (Third Edition, p. 312), published by the American Society for Legal Medicine:

"A patient's right to privacy and confidentiality is one of the highest priorities in our legal system. Statutes and Court decisions proclaim the duly to provide, maintain and enforce a patient's right to privacy and confidentiality and also perils of failing to do so. The Supreme Court has recognised it as constitutional right. No longer is privacy and confidentiality merely a moral, ethical, professional obligation; it is a legal duly."

1. In any event, it is not necessary to go into the question whether the Defendant No. 2 committed a breach of ethics or duty actionable at law. It might suffice to note that though the certain contents of the certificate have been found to be defamatory per se, the Defendant No. 2 has not pleaded that the same were given in the bona fide performance of professional duty or was privilege for some other reason. All that he has pleaded is that they were true though he has not been able to establish the same. In his evidence has admitted that the Defendant No. 1 approached him for issuance of the certificate though he did not assign any specific reason for doing so. At the same time neither in his affidavit-in-evidence nor in cross-examination he has uttered a word about the plaintiffs suffering from any other "gynaecological disease" or "psychosis". It has not been contended that some requirement of public interest demanded the disclosure of such information. At the same time at least three witnesses, namely Muhammad Saleh Memon, the immediate superior of the plaintiff as well as Abdul Qadir Shah and Abdul Rauf, members of the community having alleged that the certificate was shown to them by the Defendant No. 1. In the circumstances, Mr. Nasir Maqsood appears to be justified in contending that the defendants connived with each other to defame the plaintiff and I am constrained to hold accordingly.

ISSUE NO. 4:

The next question relates to the quantum of damages. Indeed no special damage has been alleged or proved and the plaintiff has only claimed general damages for loss of reputation, mental tension, loss of prospects of further marriage etc. to the extent of Rs. 15,00,000. It is no doubt correct that part from the mental anguish that the plaintiff might have suffered the imputations in question also tend to diminish her future prospects of marriage and leading a family life. At the same time it is extremely difficult to quantify the extent of compensation to which the plaintiff may be entitled in monetary terms. Mr. Nasir Maqsood has referred to the cases of American Life Insurance Company v. M.S. Khawqja PLD 1960 Karachi 568, Harold Robert Henrylind v. British Insulated Callender's Construction Co. Ltd. PLD 1970 Karachi 315, Altaf Gauhar v. Wajid Shamsul Hasan and another PLD 1981 Karachi 515 and the recent pronouncement of the Honourable Supreme Court in Soofi Muhammad Ishaque v. Metropolitan Corporation, Lahore PLD 1996 SC 737 to illustrate the pattern of which general damages have been awarded by the Courts in their discretion. In the last case the Honourable Court awarded Rs. 50,000 by way of damages for mental shock only. Keeping in view the facts and circumstances of the case and principles of law laid down by superior Courts I am of the view that it would be fair to award Rs. 75,000 against the Defendant No. 1 for the imputations contained in the divorce deed and a further amount of Rs. 75,000, jointly and severally against the Defendant No. 1 for the imputations contained in the divorce deed and a further amount of Rs. 75,000, jointly and severally against both the defendants in respect of the imputations made in the medical certificate with 14% interest from the date of decree till payment is made. The plaintiff will also be entitled to proportionate cost. The suit is decreed accordingly.

(K.K.F.) Suit decreed.

PLJ 1999 Karachi 328

Present: SHAIQUE USMANI, J. HASHMI CAN COMPANY--Plaintiff

versus

HYSONG CORPORATION OF KARACHI-Defendant

Suit No. 575 and Civil Miscellaneous Application No. 3687 of 1997, decided on 1.9.1998.

(i) Arbitration Act, 1940 (X of 1940)--

S. 34-Qualily of goods-Question of—Matter referred to arbitration- Plaintiff, however, did not deny terms and conditions which were scribed on reverse page-Parties had, in fact, acted upon specified terms and conditions otherwise contract itself would be impossible to be performed being devoid of any modalities for working the same-Dispute related to quality of goods being shipped from foreign country and not its short delivery or damage to it-Dispute with regard to quality would be required detailed testing and examination by Inspectors/Experts which could best be done in that place from where material originated i.e. foreign country-Most of evidence would be available there-Valid and subsisting contract between parties for referring dispute to arbitration being in existence they were bound to abide by same-Proceedings stayed tffl further orders. [P. 330, 331 & 332] A, B & D

(ii) Sale of Goods Act, 1930 (III of 1930)-

—S. 4-Defendant's offer to discount by way of compensation at U.S. Dollar 70 per metric ton of the commodity in future shipments in view of long standing business relationship between parties was to assuage their feeling as marketing gimmick, however, such offer having, admittedly, been rejected by plaintiffs, they could not now be heard to say that said offer constituted admission of plaintiffs' claim. [P. 331 & 332] C & D

Mr. Nasir Ahmed Khan, Advocate for Plaintiff. Mr. Mansoorul Arfin, Advocate for Defendant.

order

By a short order dated 1.6.1998, C.M.A. No. 3687 of 1997 was allowed. Following are the detailed reason for it. This is an application under Section 34, Arbitration Act, 1940 through which the defendant seeks to invoke the Arbitration Clause in the agreement between the parties and in consequence to have the suit stayed. Briefly the facts of the case are that the parties to the suit entered into a sales contract dated 19.11.1995 under which over a period between 1995 and 1996 plaintiff placed orders on the defendant based in South Korea for the supply of "Electrolytic Tinplate Prime Quality"; payments for which were made by plaintiff by establishing Letters of Credit in favour of defendant. It transpires that certain consignments, to be exact four in number, upon receipt by the plaintiffs were found to be of inferior quality and not in conformity with the agreed specifications which resulted in loss to the plaintiff. There appears to have been correspondence between the parties to this effect which led to the defendant allegedly offering to compensate the plaintiff for their losses by reducing the invoice value of their future consignments by a certain figure. This offer by the defendants was rejected by plaintiff ostensibly because they took a high moral ground as they regarded this to be an illegal act of under invoicing. Whatever be the motives for the rejection of defendant's offer, the fact remains that the plaintiff did reject the defendant's offer for compensation of plaintiffs losses. The plaintiff then filed this suit against the defendant for recovery of Rs. 6,070,059. The defendants on their part, immediately upon being served, filed an application under Section 34, Arbitration Act wherein they invoked the Arbitration clause in the sales contract, praying that the proceedings in the suit be stayed and that the plaintiff be directed to refer the matter to arbitration as per clause 12 of the Contract, which is reproduced below:

"(12) All disputes, controversies, or differences which may arise between the parties, out of or in relation to or in connection with this contract, or for the breach thereof, shall be finally settled by arbitration in Seoul, Korea in accordance with the Commercial Arbitration Rules of The Korean Commercial Arbitration Board and under the laws of Korea. The award rendered by the arbitrator(s) shall be final and binding upon both parties concerned."

It is significant to note that even though plaintiffs claim was based on alleged breach of a contract between the parties, they did not even annex the sale contract to their plaint and it were the defendants who brought the contract on record. This clearly goes to show that due to some reason the plaintiff wanted to avoid reference to the terms of the contract between the parties. Mr. Nasir Ahmed Khan, the learned counsel for the plaintiff in rebuttal of the application under Section 34, Arbitration Act, mainly contended that it is only the front page of the sale contract which is signed by the parties and hence plaintiffs were bound by what is written on that page but the contents of reverse page of the contract that contains general terms and conditions of the contract, being unsigned are not binding upon the parties. It followed therefore that since Arbitration Clause appeared on the reverse page, plaintiffs were not bound to resolve their dispute through Arbitration. Alternatively he contended that even if arbitration clause is held to be binding on the parties, since the said clause envisaged the arbitration to be held in Korea, it would be expensive and inconvenient for the plaintiff to pursue that remedy besides all evidence relating to the goods being substandard was at Karachi hence Karachi was a more convenient forum for resolution of the dispute. The learned counsel for the plaintiff also maintained that since the defendants had already agreed to compensate the plaintiffs for their losses they had tacitly accepted plaintiffs claim and their reliance now on the arbitration clause was not a genuine demand at all. In support of his contentions he relied on PLD 1986 Karachi 138, 1993 SCMR 866 and PLD 1993 SC 42.

M. Mansoorul Arfin, the learned counsel for the defendant on the other hand argued that the terms and conditions on the reverse page of the sale contract was as much part of the contract as the contents of the front page as the plaintiffs had acted upon these terms particularly with regard to term regarding "payment". According to him as per various authorities, whereas an Arbitration Agreement ought to be in writing but it need not be signed by the parties. In support of this, he relied on AIR 1963 SC 1685 and 1987 CLC 83. He also pointed out that since the dispute related to the quality of the goods shipped from Korea, the evidence would of necessity be available in Korea rather than Karachi. An examination of the sale contract which is an admitted document shows that the front page merely contains the description of the goods and its value but is silent about the other terms and conditions that are vital part of every sale contract, that is terms regarding mode of payment, insurance, lodging of claims, shipment and exceptions that can be relied upon. All these including the Arbitration Clause are of course reflected on the reverse page which is titled and begins as under:

General terms and conditions. -Both parties agree to following terms and conditions:

The plaintiffs do not deny the existence of these general terms and conditions on the reverse page, they merely say that since this page is not signed, they are not bound by these terms and conditions, which include an arbitration clause. This is obviously a weak argument because the parties have acted upon these terms and conditions otherwise the contract itself would be impossible to perform being devoid of any modalities for working it. It is obvious that this argument is being resorted merely to deny the applicability of arbitration clause. Moreover, it is now settled law that while an arbitration agreement must be in writing, it is not essential that it be signed by the parties. In this connection the case ofRalli Brothers and Coney Ltd. v. Muhammad Amin Muhammad Bashir Ltd. reported in 1987 CLC 83, where Saleem Akhtar, J. had reviewed a number of authorities on this point and has finally reached the conclusion that:

In these circumstances, even if the parties have not signed any agreement for arbitration or the defendants have refused to sign the contract note sent by the plaintiffs containing arbitration clause the existence of arbitration agreement between the parties cannot be denied."

I have therefore no doubt in my mind that in this case an arbitration agreement existed between the parties. The question now is whether this arbitration agreement ought to be given effect to or not. Now in the world of commerce today arbitration as a method of resolving of disputes finds its way in most contracts, the aim being to avoid long and arduous litigation in Courts. Most parties to the contracts at the time of signing it agree to incorporation of an arbitration clause quite readily because at the time the primarily concern of the parties is to clinch the contract. It is only later when the disputes arise that they begin to circumvent or avoid the arbitration agreement depending upon whether it suits them or not. What is interesting is that while Courts are generally strict in enforcing the various terms of the agreement depending upon the principle "consent facit legem", they are prone to give latitude to parties where arbitration agreement is concerned when question of "forum conveniens" arises but this consideration is discretionary and not mandatory and depends upon the facts of each case. However, in the instant case, the dispute is about the quality of goods being shipped from South Korea and not its short deliver or damages to it. It is obvious that the dispute with regard to quality will require detailed testing and examination by inspector/experts which can be best done in the place where the material originates, that is South Korea. Needless to say that most of the evidence would be there and, thus, the argument of plaintiff, for whatsoever it is worth, that Pakistan will be the 'forum conveniens' is effectively repelled.

Lastly, there is the question of admission of plaintiffs; claim by the defendants. There is nothing on record to show that the defendants ever admitted that the goods shipped by them were of substandard quality or that these were not in accordance with the agreed specifications. All that the defendant did was to offer a discount by way of compensation at U.S. Dollar 70 per metric ton in future shipments in view of long standing businesss relationship between the parties. Here it may be advantageous to re-produce the contents of fax dated 28.12.1996 from defendants to the plaintiff which is self-explanatory:

"This refers to our previous correspondence, please be noted that our contracted specifications of tinplate was temper T-3CA and you have opened the L/C accordingly and we produced the Tinplate as per our contracted specifications Temper T-3CA and L/Cs. Moreover please note that our shipped cargo was prime Tinplate which was inspected by SGS Korea before each shipment and test reports were submitted to you alongwith shipping documents of each shipment.

Our supplied material was prime Tinplate and strictly as per offered/contracted specifications but even though our mill has agreed to compensate you U.S. Dollar 70 per metric ton in view of our old business relations with your organization.

Please note our top management refused to accept your claim because export department had shipped out the material strictly as per specifications of the contract/LCs. But on our hard persuastion, they accepted U.S. Dollar 70/MT compensation and it must be adjusted in future orders."

At best this was an offer by the defendants to the plaintiff to assuage their feeling as a marketing gimmick but since this offer was, admittedly, rejected by the plaintiffs they cannot now be heard to say that the said offer constituted an admission of plaintiffs' claim. I, therefore, find that there was a valid and subsisting Arbitration Agreement between parties and the parties are bound to abide by it. Accordingly C.M.A. No. 3687 of 1997 is allowed and the proceedings in this suit are stayed till further orders.

(K.K.F.) Proceedings stayed.

PLJ 1999 Karachi 332 (DB)

Present: nazim hussain siddiqui and raja qureshi, JJ.

Messrs TAUFIQ TEXTILE MILLS (PVT.) LTD. and 4 others-Appellants

versus

Messrs INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN-Respondent

High Court Appeal No. 139 of 1998, decided on 7.10.1998.

Industrial Development Bank of Pakistan Ordinance, 1961 (XXXI of 1961)--

—S. 39--Ordinance is a special law and has been enacted for making credit facilities expeditiously available to industrial concerns and to safeguard interest of Bank for prompt recovery of its dues-Ordinance strikes a balance between its objectives and mode of achieving them and looks after interests of industrial concerns as well as of Bank—Section 39 of Industrial Development Bank of Pakistan Ordinance, 1961, provides special provisions for enforcement of claim of Bank-Debtors, having failed to show sufficient cause for non-payment of amount of Bank dues, Court had rightly issued order to make interim order of attachment absolute. [P. 337] A

AsgharAli Bhutto, Advocate for Appellants. Ainuddin Khan, Advocate for Respondent. Date of hearing: 6.10.1998.

judgment

Nazim Hussain Siddiqui, J.--This appeal under Section 39(ii) of the Industrial Development Bank of Pakistan Ordinance, 1961, hereinafter called the Ordinance, is directed against the order dated 24.4.1998 of learned Single Judge of this Court, whereby interim order of attachment dated 31.5.1998 was made absolute and the Official Assignee was appointed as "Commissioner" to take over management and possession of the various properties of the appellants and to sell them for realization of the dues of the respondent amounting to Rs. 44,086,049.15 with mark-up @ 22% from the date of institution of proceedings till payment with cost.

The respondent M/s. Industrial Development Bank of Pakistan, filed J.M. No. 122 of 1995 under Section 39 of the Ordinance for recovery of Rs. 44,086,049.15 against the appellants (1) M/s. Taufiq Textile Mills (Pvt.) Ltd., (2) Taufiqullah Shah, (3) Tanvirullah Shah (4) Faridullah Shah and (5) Mrs. Zahida Tanvir w/o Tanvirullah Shah. It is the case of the respondent-Bank that it granted to the Appellant No. 1 a local currency finance assistance in the sum of Rs. 17.25 million on mark-up basis under SBP Scheme for purchase of local manufactured machinery for setting up a new weaving unit at Rahim Yar Khan and the respondent-Bank agreed in principle to purchase said machinery/equipment from Appellant No. 1 at an estimated price of Rs. 17.25 million and simultaneously to resell it to the Appellant No. 1 at lump sum approximate price of Rs. 39.691 million (net rebate of Rs. 23.53 million) as per terms and conditions of sanctioned letter dated 28.6.1991. Said financial assistance was repayable in 16 equal installments of Rs. 2.481 million each after two years from the date of disbursement of first installment. As security for repayment, the Appellants Nos. 1 to 4 executed a demand promissory note on 30.2.1991 in the sum of Rs. 39,691.000 in favour of the respondent. The Appellants Nos. 2 to 4 personally guaranteed repayment of said financial assistance jointly and severally and the Appellant No. 5, as collateral security, mortgaged her house, situated at Model Colony, Lahore.

On 14.9.1993 inspection was carried out by the Engineer of the respondent-Bank and it was found that some machinery was missing from the project of the appellants. On 22.9.1993, the Appellant No. 1 requested the respondent-Bank to revise repayment schedule so that the repayment could be started from March, 1994, instead of September 1993. It was allowed, but subject to the conditions, mentioned in para. 17 of the J.M. No. 122 of 1995. Again on 21.9.1994 inspection was made and machineries were found missing. On 28.2.1995 an amount of Rs. 44,086,049.15 was found outstanding against the appellants and they failed to pay the same.

It is contended on behalf of the appellants the learned Single Judge in Chamber has failed to appreciate the contents and spirit of Circular No. 19 dated 5.6.1997 of State Bank of Pakistan, which provided an opportunity to the defaulting borrowers for settlement of claim of the respondent strictly in accordance with paras. 4 and 6 of the said circular, which according to the learned counsel was statutory in nature and was binding on the respondent-Bank. Learned counsel also argued that the impugned order was passed hurriedly without application of judicial mind, particularly the fact that every Court is required to apply its mind before passing any order or judgment notwithstanding the factum that no person had appeared before it to oppose such an order or that person, who wanted to oppose, was not

allowed to oppose because he failed to fulfil the requirement of law. For this proposition, reliance is placed on the case reported as Hqji Mi Khan & Co., Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Ltd., Abbottabad PLD 1995 SC 362(377).

As against above, Mr. Ainuddin Khan, learned counsel for the respondent-Bank strenuously argued that pursuance to Circular No. 19 dated 5.6.1997 a package was agreed, vide letter dated 27.11.1997, between the parties and its terms were accepted by the appellants which were as follows:-

1. You will admit and acknowledge that a sum of Rs. 29.846 million as on 30.6.1997 is payable by you and the same shall be liquidated in the following mannen-

(A) You shall make down payment of Rs. 0.918 million as under:-

(i) Rs. 0.500 million immediately after receipt of letter alongwith acceptance of this package.

(ii) Balance amount of Rs. 0,418 million in four monthly installments, first three installments of Rs. 0.100 million each commencing from January, 1998 and fourth installment of Rs. 0.118 million.

(B) The principal overdue and other charges amounting to Rs. 9.703 million as on 30.6.1997, alongwith installments falling due in September, 1997 and March, 1998 (total Rs. 2.844 million) shall be paid in 4 years in 16 equal quarterly installments commencing from 30.9.2001 with mark-up @ 18% p.a.

(C) You shall pay mark-up accrued during the grace period of three years in quarterly installments with effect from June, 1998 onwards.

(D) You shall pay the amount of Principal not yet due and outstanding mark-up for the grace period in installments falling due from 30.9.1998 in accordance with existing repayment schedule.

(E) Mark-up outstanding as on 30.6.1997 amounting to Rs. 10.265 million after adjustment of down payment (i.e. Rs. 0.918 million) shall be ibrzen and shall be paid by you in 6 quarterly installment with effect from 31st March, 2005.

1. In case of default in payment of restructured and/or frozen liability mark-up fine @ Re. 0.60/- Rs. 1000/-day will be charged.

2. You shall arrange working capital/export refinancing from any Commercial Bank/DFI and produce letter of intent in this regard. IDBP shall allow 2nd charge on the project assets as security to the lending institution for providing working capital assistance.

3. You shall pay Rs. 50,000 as Banks processing charges, together with the amount of commission, costs.

4. The petition filed under Section 39 of IDBP Ordinance, 1961 shall be compromised through Court. You shall pay legal expenses incurred to be incurred. However, the compromise application shall be filed after brought back of missing machinery worth Rs. 0.520 million at project site and the same is verified by the Bank's Engineer.

5. All other terms/conditions of IDBP loans/assistance shall remain unchanged."

It is an admitted position that facility of said local currency finance assistance was availed by the Appellant No. 1. It is also an admitted fact that the Appellant No. 1, by letter dated 11.12.1997, accepted said package contained in letter dated 27.11.1997. During the course of arguments, Mr. Asghar All Bhutta, learned counsel for the appellants conceded that, out of the total liability of appellants, they have only paid an amount of Rs. 1.2 million to the respondent-Bank. Cheque No. 12697606 dated 30.4.1998 for Rs. 0.118 million drawn on MCB Rahim Yar Khan, issued by the Appellant No. 1 in favour of the respondent-Bank admittedly was dishonoured. After interim order dated 31.5.1995, a show-cause notice was issued to the appellants as to why ad interim attachment be not made absolute. It is significant to note that in the ordinary way, the appellants were not served and the notice had to be published in the newspaper. They did not file any reply to said show-cause notice. All these circumstances demonstrate that the appellants had done, what possibly they could do to prolong the proceedings and to avoid to discharge their liability.

Learned counsel for the appellants also argued that interim order dated 31.5.1995 could not be made absolute, under sub-section (7) of Section 39 of the Ordinance, as sufficient cause was shown for non-payment of the amount outstanding against the appellants. Also, it is contended that, at the most, the respondent-Bank could file a suit for recovery of said amount and not the application under the Ordinance. The relevant provisions of Section 39 of the Ordinance are as follows: -

"39. Special provisions for enforcement of claims by the Bank.-(l) Where the Bank becomes entitled to require the immediate payment of any loan by reason of the breach of any condition of any agreement between the Bank and an industrial concern to which the loan has been granted or any person liable for repayment of that loan fails to repay the loan or where an industrial concern to which any loan has been granted or any person liable for repayment of that loan fails to repay the loan in term thereof or in compliance with the notice under Section 38, an officer of the Bank, generally or specially authorised by the Board in this behalf, may apply to the District Judge within the local limits of whose jurisdiction the concern carries on the whole or a part of its business, or the office or branch of the Bank from which the loan was disbursed is situated, for one or more of the following reliefs, namely: -

(a) an order for the sale of property pledged, mortgaged, hypothecated or assigned to the Bank as security for the loan and any other properties, disclosed or undisclosed, of the industrial concern or the properties, disclosed or undisclosed of person liable for the repayment of the loan, including guarantors; or

(b) an order for the transfer of the management of the industrial concern to the Bank or its nominee, provided that when such management is so transferred to the Bank, the Bank shall be deemed to be the agent of the industrial concern and shall manage the industrial concern on its behalf and all actions taken by the Bank on such transfer shall be deemed to be those of the industrial concern; or

(c) an injunction ad interim where there is apprehension that machinery or equipment may be removed from the premises of the concern without the permission of the Board.

(2) (3) (4) (5)

(6) At the time of passing an order under sub-section (3), the District Judge shall issue to the concern a notice accompanied by a copy of order, the application and evidence, if any, recorded by him and calling upon it to show cause on a date to be specified in the notice why the order of attachment ad interim should not be made absolute or the injunction be not confirmed.

(7) If no cause is shown on or before the date specified in the notice under sub-section (4) or sub-section (6), the District Judge shall forthwith make the order ad interim absolute and direct the sale of the attached property or transfer the management of the concern to the Bank or confirm the injunction."

It is noted that the Ordinance is a special law, and was enacted for making credit facilities expeditiously available to industrial concern and simultaneously it safeguarded the interest of the bank for early recovery of its dues. It strikes a balance between its objectives and the mode of achieving them. It looks after the interest of Industrial concerns and of the Bank as well. Section 39 provides special provisions for enforcement of claim of the Bank.

In the present case sufficient cause was not shown for non-payment of the amount, as such, the Court had no option but to make the interim order absolute. Impugned order is perfectly correct and no exception can be taken to it The appeal has no merit

On 6.10.1998, after hearing the learned counsel for the parties, we had dismissed the appeal in limine and these are reasons for the same.

(K.K.F.) Appeal dismissed.

PLJ 1999 Karachi 337

Present:S. AHMED SARWANA, J. Messrs ZATDI'S ENTERPRISES and others-Plaintiffs

versus

CIVIL AVIATION AUTHORITY and others-Respondents

Suits Nos. 940, 917, 918, 944,945, 946,954 and 955 of 1995 and 321 of 1994, decided on 16.10.1998.

(i) Agreement-Licence

—Licence agreement-Power of Court-Court has no power to read or import any term into licence agreement which is not there.

[P. 349] E

(ii) Civil Procedure Code, 1908 (V of 1908)-

—O.XXXIX, Rr. 1, 2 & O.VH, R. 11-Temporary injunction-Grant of- Where agreement between parties was a licence agreement and licences had expired, plaintiffs had no right to remain in premises and defendant would be justified in taking action against plaintiffs for obtaining possession of premises in accordance with law-Plaintiffs were not entitled to relief of injunction. ' [Pp. 350 & 351] G & H

(iii) Contract-

—Agreement-Unfilled space for date in the document—Status—Such omission does not invalidate agreement or changes nature of agreement or relationship between parties. [P. 350] F

<iv) Easements Act, 1882 (V of 1882)--

—-S. 52~Shops in airport lounge-Vacation notices-Challenge to~Where right to use premises was not assignable or transferable in any way, plaintiffs did not have exclusive possession of premises and entry of plaintiffs in Airport and into shops/premises was subject to permission by defendant every day and no interest, whatsoever, in property had been transferred to plaintiffs, relationship between parties was held to be that of licensee and licensor and agreement executed between them was clearly a licence agreement [P. 348] C

(v) Easements Act, 1882 (V of 1882)--

—-S. 60-Shops in airport lounge-Vacation notices-Challenge to-Plaintiffs (a private concern against Civil Aviation Authority) had not been transferred interest of property and no work of a permanent character could be executed by them-Execution of such work by plaintiff, held, would become property of defendant after termination of agreement

[P. 349] D

(vi) Transfer of Property Act, 1882 (IV of 1882)--

—S. 105-Lease and licence-Distinction-To find out real nature of relationship between parties, actual wordings and spirit of agreement has to be looked into, rather than terminology used therein, as line of demarcation between a lease and licence is very thin. [P. 344] A

(vii) Transfer of Property Act, 1882 (IV of 1882)-

—S. 105-Lease and licence-Salient features. In a lease there is transfer of interest in property whereas in a licence this element is expressly excluded. In a lease exclusive right of possession is granted to the lessee and the lessor totally excludes himself from his right Right granted to a lessee is assignable and transferable while in a licence it is not so.A licence is a personal right, it is purely a permissible right-­ There is no right of exclusive possession-Notwithstanding permission, grantor retains control over property. [P. 346] B

Mr. Shahenshah Hussain, Advocate for Plaintiffs (in Suits Nos. 940, 945, 946 and 955 of 1995).

Mr. Safdar Hussain, Advocate for Plaintiffs (in Suit No. 321 of 1994, 917, 918 and 944 of 1995).

Mr. Abdul Khalil, Advocate for plaintiffs (in Suit No. 954 of 1995).

Mr. Mustafa Lakhani, Advocate for Defendants (in Suits Nos. 940, 917, 918, 944, 945, 946, 954 and 955 of 1995).

Mr. Umar Qureshi, Advocate for Defendants (in Suit No. 321 of 1994).

Date of hearing: 16.10.1998.

order

These are nine suits filed by various plaintiffs against Civil Aviation Authority ("C.A.A.") and Airport Manager, Karachi Airport ("Manager") for declaration that the plaintiffs are Tenants/Lessees of defendants in respect of various shops situated in the International Transit Lounge, Jinnah Terminal, Karachi Airport, for permanent injunction restraining the defendants from dispossessing them from or interfering with their rights to occupy and use the said shops and/or disposing of or alienating or transferring the said shops to any other person and for declaration that the Notices issued by C.A.A. to hand over possession of these shops are invalid and mala fide. On application for temporary injunction filed by the plaintiffs to restrain the defendants from dispossessing them from their shops, the Court passed status quo orders in favour of the plaintiffs. All these applications for temporary injunction are pending disposal.

In one suit, namely, Suit No. 940 of 1995 the additional facts are that the plaintiff was running a shop in the old Terminal No. 1 (International Transit Lounge) of Karachi Airport at the time CAA. decided to close down the said Terminal. When C.A.A. declined to accommodate the plaintiff in the new Jinnah Terminal, he filed Suit No. 217 of 1989 and obtained a Temporary Injunction against C.A.A. Ultimately on 26.3.1992 the suit was compromised whereby C.A.A. was required to offer the plaintiff an opportunity to match the highest bid in respect of a shop of his choice which the plaintiff did and occupied Shop No. 10 under Licence Agreement, dated 25.10.1992 which is Annexure "B" to the Plaint

After plaintiffs' Entry Passes issued by Airport Security Force expired, they requested the defendants to forward their applications for renewal of such passes by the relevant Authority. On the refusal of the defendants to do so, all the plaintiffs filed further applications under Order 39, C.P.C. for Temporary Injunction requiring the defendants to forward their applications to Airport Security Force for renewal of their passes.

The defendants filed counter-affidavits attacking the maintainability of the suit and also stated, inter alia, that the licences of the plaintiffs having expired they had no right to occupy the premises and accordingly their applications cannot be forwarded to Airport Security Force which is not a party to the proceedings. Plaintiffs did not file any Rejoinder to these counter-affidavits.

Consequently the following Interlocutory applications are pending in:-

(1) Suit No. 321/94 CMA No. 2338/94 and CMA No. 1774/97

(2) Suit No. 917/95 CMA No. 6674/95 and CMA No. 1776/97

(3) Suit No. 918/95 CMA No. 6676/95 and CMA No. 1770/97

(4) Suit No. 940/95 CMA No. 6796/95 and CMA No. 1748/97

(5) Suit No. 944/95 CMA No. 6806/95 and CMA No. 1772/97

(6) Suit No. 945/95 CMA No. 6809/95 and CMA No. 746/97

(7) Suit No. 946/95 CMA No. 6811/95 and CMA No. 6811/95

(8) Suit No. 954/95 CMA No. 6838/95 and CMA No. 1806/97

(9) Suit No. 955/95 CMA No. 6842/95 and CMA No. 744/97

Learned counsels for the plaintiffs argued the following points in support of their applications for Temporary Injunction:--

(1) That the alleged Licence agreement which has been annexed with the plaint is in fact a lease between the parties as reflected from various clauses included in the agreement. As they are in exclusive possession of the premises, they are tenants of the defendants (PID 1982 Kar. 532; PLD 1964 SC 1060). Further, as the agreement was drafted by the defendants it must be interpreted in favour of the plaintiffs and against the defendants (PLD 1969 Kar. 363).

(2) The investments in the shops were made on the assurance of the defendants that if the plaintiffs continued to pay rent regularly, the lease would be extended. Therefore, the defendants are estopped from changing their position.

(3) There is a renewal clause in the agreement If power to renew is discretionary with the statutory authority, it must exercise such discretion fairly, honestly, justly and equitably (PLD 1991 SC 14).

(4) Alternatively, if it is a licence, it is coupled with interest, and therefore, cannot be terminated. (PLD 1987 Kar. 112; American Jurisprudence 1941 Edn., Vol. 33, Licences, Sections 101 to 103; Halbury's Laws of England, 3rd Edn., Vol. 23; Landlord Tenant, page 432, para. 1027).

The Learned counsel for the defendants referred to several clauses of the licence agreement to show that it is a licence and not a lease. He cited PLD 1963 Lahore 418; PLD 1959 Kar. 24; 1988 CLC 1261 and PLD 1965 SC 83, in support of his contention.

I have heard the arguments of the learned counsel of all the parties and my conclusions are as follows.

The whole controversy revolves around the point whether the relationship between the plaintiffs and C.A.A. is that of Landlord and Tenant or Licensor and licensee. It would, therefore, the advantageous to reproduce the salient clauses of the Licence Agreement which have been highlighted and relied upon by both sides in support of their contentions.

The title, preamble and the clauses of the agreement are:

"LICENCE AGREEMENT"

"Whereas the licensee has applied to the Licensor for grant of licence to establish and run Shop No. 10 in International Departure Transit Area at Jinnah Terminal QIAP, Karachi for Cotton Garments (hereinafter called the said premises) on monthly licence fee of Rs. 18,500 (Rupees Eighteen Thousand Five Hundred only) during the period of licence (for year only effective from 30.12.1992).

1. DURATION

This licence in respect of the said premises shall remain in force for a period of three years commencing from 30.12.1992 to 29.12.1995 provided that the Licensor reserves to himself the right to terminate it at any time without notice and without any cause being assigned and without any compensation.

1. STATUS OF THE LICENSEE

It is clearly understood by the parties to this agreement that the contents of this licence agreement or any part thereof shall not be construed or interpreted in a manner as to amount to creation of an easement, lease or any other interest except what is explicity stated in this agreement in favour of the licensee in respect of the said premises. It is also dearly understood that the licensee shall have the status of an independent contractor and shall not be considered to be a servant or agent of the licensor.

1. LICENCE FEE

The Licensee shall pay to the Airport Manager on 30.12.1992 as licence fee in advance for the current month i.e. on the day the possession thereof is handed over to the licencee. Thereafter, the monthly fee shall be paid ill advance before the 10th .of each month to which it relates, ..whether the .licensee receives any bill or not If the said -Licence Fee or any part therefor shall be in arrears for one month or more .after the sa^ne shall have become due (whether demanded or not), the Airport Manager may terminate the Licence Agreement and Licensor or his authorized representative may upon such termination,by the Airport Manager enter into or upon the premises and take over the same without any right or remedy to the Licensee or any obligation to the Licensor or charge a fine not exceeding Rs. 500 for each day of such default which shall be paid/realised as mentioned in Paragraph 29.

4-A. ENHANCEMENT OF FEE/CHARGE

The Licensor shall have the right during the currency of the Licence Agreement to revise/enhance the amount of the licence fee/charges with prior notice and Licensee shall be bound to pay the revised Licence Fee from such day as may be specified prospectively by the Licensor.

1. MAINTENANCE OF PREMISES

The licensee shall, at his own cost, maintain the said premises in good tenantable condition and maintain the said premises as well as the premises impound in a proper state of cleanliness and sanitation at all times to the satisfaction of the Airport Manager and shall also obey all orders and instructions of the Airport Manager or Health or other official of a competent authority in respect of sanitation or orderly running of the business.

1. No permanent structure or tampering with the premises.--The Licensee shall not raise any permanent structure or alter the said premises and make any addition or alteration to the electrical circuit, gas and water connection without previous permission in writing of the Airport Manager and make good any damage to the fixture and fittings of the said premises resulting from such addition/ erections/alteration or cause by or resulting from any default or accordance with the assessment of the Airport Manager, provided by him at the expiration or sooner determination of the licence and the said premises shall be restored to their former conditions, unless otherwise directed in writing by the Airport Manager.

And provided also that Licensee's Legal status under this Agreement shall continue to remain the same, any permission or raising of any permanent structure under this clause notwithstanding.

1. Premises to remain fully equipped and stocked.--The Licensee shall maintain the said premises fully equipped and stocked for licensed business and shall keep it open at all reasonable hours. If the Licensee keeps the premises unreasonably closed or does not open within a month's time from the date of taking over its possession the licence shall stand cancelled, and the licensor shall be entitled to take over the said premises forthwith without any notice.

2. Advertisements efc.~The Licensee shall not put up or permit on the said premises any Playcard, Poster, sign or advertisement without previous written permission of the Airport Manager.

3. Assignment subletting.-fhe said premises or the rights of the Licensee which are of personal nature under the licence or any part thereof shall not be assigned, transferred, sublet, parted with or shared in any manner.

4. Particulars of employees and security clearance.--The Licensee shall provide names and details of employees to the Airport Manager at the time of commencement of business at the said premises and thereafter, notify immediately, if any one or more employees are hired or fired or any other charges in this respect whatsoever. The Licensee and all its employees who are to work in the Terminal Building of Airport or in other sensitive areas will be required to obtain security clearance from the Agencies concerned as directed by the Airport Manager.

5. Price list.~The Licensee shall display at the said premises Price List of the items respecting the business duly approved by the Airport Manager. No item exceeding the approved price shall be sold by the Licensee.

6. Vocation.--Unless extended in writing by the Licensor immediately upon the expiry or sooner determination of the licence, the licensee shall remove his belongs/articles/goods of business from the said premises and hand over the same to the Licensor together with fixtures and fittings therein good order and condition reasonable wear and tear excepted.

7. Free access.-Nothing herein contained shall pr vent the free use of the said premises by the Licensor/Airport Manager/or his authorised representative who shall be at liberty to inspect or use the said premises any time and the Licensee shall not do or permit to be done anything which may cause inconvenience or annoyance to such person or the Licensor.

SPECIAL CONDITIONS - APPENDIX "A"

1. This licence may be renewed/extended for such period and on such conditions as may be determined by the Licensor. However, any request by the Licensee in this regard shall not be considered unless the Licensee has cleared all dues for the expired period payable to licensor under the current Licence and attaches with his request a No-Objection Certificate signed personally by the Airport Manager concerned that no C-A.A. dues are outstanding against the Licensee on any account. Such a request shall be made not later than two months before the expiry of the current licence.

2. The Licensee shall not claim any further right in the premises after expiry or determination of the Licence Agreement and will not have any objection in any manner whatsoever, if the Licensor retender the said premises as per policy at the appropriate time.

3. The Licencee shall instal his own modules for the shop at his own expense as per approved structural plans of C.A.A. and which module/structure shall become the property of the Licensor after expiry of the period of this Licence Agreement or sooner determination thereof as the case may be.

4. The place of business is to remain always open round the clock for providing uninterrupted services to passenger, public and staff during the period of this Licence Agreement."

In order to decide the issue of maintainability of the suits and the pending Miscellaneous Applications, we have to determine whether the agreement, several clauses of which have been reproduced above, is a lease or a licence. The line of demarcation between a lease and licence is some times very thin and one will have to look at the actual wordings and the spirit of the agreement rather than the terminology used therein to find out the real nature of the relationship between the parties (PLD 1982 Karachi 532 and PLD 1963 Lahore 418). In Ahmed Din v. Abdullah Bhai and others PLD 1962 Karachi 663 at page 676 the learned Division Bench observed as follows:-

The most distinctive feature between a lease and a license is that, in the former there is a transfer of interest in immovable property whereas in the latter that element is expressly excluded. The transfer of interest in a case of a lease consists of the grant to the lessee the exclusive right of possession of the demised premises. This right, in the first instance, vests in the lessor and is one of the most important incidents of ownership. In granting a lease the lessor transfers this important right to the lessee. The right of exclusive possession involves an element of ouster and when the lessor grants this right to the lessee he totally excludes himself from that right, though it may be only for a certain time. This right is assignable and heritable and constitutes property. On the other hand, in the case of licence there is a total absence of transfer of interest in the immovable property. A licence is a personal right granted to an individual or to an ascertained number of individuals, to do or continue to do something in or upon the immovable property of the grantor which in its absence would be unlawful. It is purely a permissive right and is neither assignable nor heritable. Notwithstanding the permission the grantor retains control over the property. The fact that a licensee occupies the property, that occupation does not confer upon him the right of exclusive possession as understood law."

The principles enunciated above were confirmed by the Hon'ble Supreme Court of Pakistan in PLD 1964 SC 106.

In Sajjad Ali Khan and another v. Muhammad Ahmed Farooqui PLD 1959 Karachi 24, another learned Division Bench of this High Court observed that the test of exclusive possession is very important in determining whether a person is a lessee of the property or a mere licensee.

According to PLD 1963 Lahore 418 "a licence is normally created where a person is granted a right to use premises without becoming entitled to exclusive possession thereof or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is for the use of property in a certain way and on certain terms, while the property remains in the possession and control of the owner, the agreement will operate as a licence even though the agreement may employ words appropriate to a lease". In light of this principle the Lahore High Court where an agreement was entered into between Punjab Road Transport Board and Muhammad Hashim, proprietor of Madina Hotel, Lahore relating to the working of a. canteen at the Railway Station sub-office of the Lahore Minibus Service held that it was a licence and not a lease as under the terms of the agreement Muhammad Hashim was not permitted to construct Pucca type of building and the use of the premises was limited to sell refreshments etc. at the rates to be fixed and intimated to him by the Lahore Minibus Service. Similarly in Sqjid All Khan v. Muhammad Ahmed Farooqui, PLD 1959 Karachi 24 (DB), where the respondent had been given a catering contract and allowed the use of three rooms and a kitchen situated on the first floor of the Customs House, Karachi for running a canteen he was held to be a licensee on the ground that the use of the premises was allowed to him so that he could cater for the staff of the Customs Department and that the respondent could not use the premises for any purpose he liked, nor could he carry on the business for general public.

In M.A. Noser v. Chairman, Pakistan Eastern Railways, PLD 1965 SC 83, by agreement, dated 12th December, 1953 between Eastern Bengal Railways and M.A. Naser, proprietor of Gulistan Restaurant, Dhaka, the Railways granted to the appellant (M.A. Naser) for a period of three years the right to sell refreshments both solid and liquid of the best quality to the upper class passengers at the Refreshment Rooms at Chittagong, Tafrsam, Sylhet and Dacca etc., and on Buffet Cars on the trains. The said agreement was terminable on 17.12.1956 on not less than six month's notice in writing by either party and if it was not so determined the agreement was to continue subject to termination at any time in any subsequent year on not less than six,months' notice in writing given by either party desiring, to cancel it In consideration of the grant of the contract, the contractor agreed to pay to the Railways a licence fee of Rs. 2,740 each year in advance, and deposit a .sum of Rs. 11,000 as security. In 1962 when the contract was terminated on alleged breach of contract, without giving the specified notice, the appellant filed a suit for a declaration that the contract was still subsisting and for an injunction restraining the Railways from interfering with his right of catering in terms of the agreement. The appellant was granted special leave to appeal mainly to consider "whether the contract of this kind is one for which protection in law by method of injunction could be claimed against termination otherwise than in accordance with the terms of the contract". After discussing the law of easements and specially Section 60 of the Easements Act the Hon'ble Supreme Court observed as follows:--

"From the above provisions it is clear that this agreement merely conferred a right to carry on business of catering in the Refreshment Rooms and on the Buffet Cars. They were not given any general right of occupation but only a right to sue the Refreshment Room allotted to them for the exclusive purpose of catering refreshments. Such a right does not amount to easement as defined in Section 4 of the Easements Act or an interest in the property. Nor can it be suggested that the contractor was required to execute any work of permanent character in connection with the business. No doubt bis business may involve complex arrangements for continued supply of refreshments both solid and liquid but this cannot be regarded as 'execution of a work of permanent character.'

In conclusion the Court held that the agreement was a revocable licence, the revocation of which could not be prevented by an injunction. It further held that in a case like the one under consideration the licensee was entitled to reasonable notice in accordance with the provisions of Section 63 of the Easements Act. If, however, the licence was revoked without reasonable notice, the remedy of the licensee was by way of damages and not by way of an injunction.

In light of the above discussion, the salient features of a lease and licence may be summarized as follows:--

(a) In a lease there is transfer of interest in property whereas in a licence this element is expressly excluded;

(b) in a lease exclusive right of possession is granted to the lessee and the lessor totally excludes himself from this right;

(c) the right granted to the lessee is assignable and transferable while in a licence it is not so;

(d) a licence is a personal right. It is purely a permissible right There is no right of exclusive possession. Notwithstanding the permission, the grantor retains control over the property.

If we read the provisions of Licence Agreement, copies of which have been filed and relied upon by all the parties, the following position emerges:-

(i) The Agreement is titled "Licence Agreement" and starts with the Preamble. "This Licence Agreement made on 25th October, 1992 between Civil Aviation Authority of the one part (hereinafter called the "Licensor").... and .... (hereinafter called the "licencee") of the Other Part". Both parties have used the term "Licence" and its derivatives intentionally with full knowledge of its meaning and its ramification as evidence bellow.

(ii) The second part of Preamble clearly states that the licensee has applied to the Licensor for grant of a license to establish and run a shop in the International departure transit area at Jinnah Terminal for cotton garments. Every individual Licence Agreement specifies the nature of the business to be done by the Licensee at the shop for which the licence is granted;

(iii) Clause (2) states that, "It is dearly understood by the parties to this agreement that the contents of this Licence Agreement or any part thereof shall not be construed or interpreted in any manner as to amount to creation of easement, lease or any other interest except what is explicitly stated in this agreement in favour of Licensee in respect of the said premises". (Emphasis added). The parties, having clearly expressed their intention they would not now be permitted to take a stand contrary to the intention expressed by them in writing.

(iv) Clause (13) relating to Assignment, subletting, states that".................. rights of licensee which are of personal nature under the licence....................................................................................... shall not be assigned, transferred, sublet parted with or shared in any manner" (Emphasis added).

(v) Clause (22) of the Agreement provides that "nothing herein contained shall prevent the free use of the said premises by the Licensor/Airport Manager or his authorised representa­tive to use the said premises any time and licensee shall not do or permit to be done anything which may cause incon­venience to such person or the Licensor.

(vi) Under clause (9) of the Agreement the plaintiff is not permitted to raise any permanent structure or make any kind of alteration including electrical circuit, gas or water without previous permission in writing of the Airport Manager. Under condition (4) of the Special Conditions of the Agreement, if the plaintiff were to install his own module the same shall become the property of C.A.A. on the expiry of the Agreement or sooner determination thereof. The clause takes care of the possibility of creation of interest in property as envisaged by Section 60 of the Easement Act, 1882 and confirms that the plaintiff would not acquire any right or interest in properly even if he raises any module structure on the licensed shop.

(vii) Under clauses (7) and (11) of the Agreement the Licensee is not permitted to use the premises for any purpose other than for which the licence has been granted and is required to keep the premises fully stocked for the licensed business. Such a condition is contrary to the very concept of a lease.

(viii) Clause (12) forbids the plaintiff to put up any Playcards, Poster, sign or advertisement without the permission of Airport Manager and under clause (20) he is required to get the prices of all items approved by C.A.A. The entire conduct of the plaintiff in the licensed shop is, thus, controlled by C.A.A.

All these terms of the Licence Agreement clearly establish that the C.A.A. has not transferred any interest or right in property and has retained complete control over the same. No exclusive possession has been given by C.A.A. to the plaintiffs. The permission to occupy the premises is personal in nature and is not assignable or transferable. The permission to occupy the premises has been given for a specified business and for no other business which is also subject to control by C.A.A. Further, the plaintiffs have applied to the Court to direct C.A.A. to forward their applications for renewal of Passes to Airport Security Force which shows that the plaintiffs and their representatives can neither enter their own shops nor the airport area without permission of C.A.A. This fact is also supported by clause (18) of the Licence Agreement which requires the Licensee to provide the names and details of their employees to the Airport Manager to obtain entry passes. The essential ingredients of a lease are absent both in the executed Licence Agreement and in practice.

However, learned counsel for the various plaintiffs cited PLD 1962 Karachi 663 to argue that the Agreement is a licence and not a lease. This judgment does not at all support the contention of the plaintiff. As already discussed above in the present Agreement the right to use the premises is not assignable or transferable in any way (clause 13). Further, the plaintiff does not have exclusive possession of the premises and the entry of the plaintiff in the airport and into his shop/premises is subject to permission by C.A.A. everyday and no interest whatsoever in ^property has been transferred to the plaintiff as discussed above. The plaintiffs counsel also relied on PLD 1964 SClpe.but this case also does not help the plaintiffs as it has been held in this case that if the agreement between the parties is a lease it is required to be registered under the provisions of the Registration Act and Section 107 of the Transfer of Property Act. The legal requirement of registration is lacking in the present case.

The learned counsel for the plaintiffs cited several authorities including Halsbury's Laws of England (3rd Edition), Landlord and Tenant, Page 432; American Jurisprudence (1941 Edition), Volume 33 on Licences, pages 406 - 408, which need not be discussed as it is crystal clear that the relationship between the parties is that of Licensee and Licensor and the agreement executed between them is clearly a Licence Agreement.

The learned counsel for the plaintiffs further argued that in case, it is held that the Agreement under discussion is held to be a Ucence, it is a licence coupled with interest, and therefore, it cannot be revoked in view of Section 60 of the Easements Act, 1882.1 have already pointed out above that under the provisions of the Licence Agreement, no interest of any kind whatsoever in the property has been transferred to the plaintiff and no work of a permanent character can be executed by the plaintiff and if executed the same shall become the property of C.A.A. on termination of the Agreement The argument is, therefore, devoid of any merit.

The learned counsel for the plaintiffs also relied upon PLD 1969 Karachi 363 to argue that as the Licence Agreement has been drafted by C.A.A., it must be construed against C.A.A. and in favour of the plaintiff in case there is any ambiguity as is done in case of an Insurance Policy. I have no cavil with this principle but I am afraid this principle cannot be applied to the circumstances of the present case because the agreement is not ambiguous. It clearly and unequivocally states that it is a Licence Agreement and the relationship between C.A.A. and the plaintiff is that of a Licensor and Licensee.

Learned counsel for the plaintiff further argued that C.A.A. is a statutory body and must exercise its power justly, fairly and honestly. According to him Special Condition No. 1 of the Agreement relating to renewal/extension was included in the Agreement because the parties honestly intended to do so and, therefore, C-A.A. should not be allowed to cancel the same. I am afraid the argument is not valid because Special Condition No. 1 does not support him. It reads as follows:

"This Licence may be renewed intended for such period and on such Condition as may be determined by Licensor." (Emphasis added).

Further Special Condition No. 3 states:

"The Licensee shall not claim any further right in the premises after expiry or determination of the Licence Agreement and will not have any objection, in any Banner whatsoever, if the Licensor retender the said premises as per policy at the appropriate time."

After reading the above clause the Court has no power to read or import any term into the Licence Agreement which is not there. The period of the Licence has not only expired but the licence has been terminated by C.A.A. as a result of which the plaintiffs' occupation of the premises has become unauthorised. The Court cannot in these circumstances pass an order of Injunction against C.A.A. as prayed.

Mr. Abdul Khalil, Advocate adopted the arguments of Mr. Shahenshah Hussain and also cited Street v. Mountford (1985) 1AER 289 in support of the argument that the Agreement between the plaintiffs and C.A.A. was a Lease and not a Licence. In view of the conclusion I have reached on the basis of Division Bench Judgments of this Court and the Supreme Court of Pakistan, I do not consider it necessary to discuss the same.

Mr. Syed Safdar Hussain, Advocate also adopted the arguments of Mr. Shahenshah Hussain and augmented as follows:-

(i) In Suit No. 917 of 1995, he referred to the copy of tender notice published in daily "Jang" of 20.8.1992 to urge that the Agreement in question was a lease. The argument is not valid as the Advertisement clearly states that the successful bidder will be given a licence for period of three years from the date of possession.

(ii) Though the Licence Agreement was executed on 28.11.1992 it was for a period of 3 years form the date of possession which was April, 1993, for the sake of argument assuming this to be correct, it is obvious that the period of three years from April, 1993 has expired and consequently this plaintiff has no right to continue possessions of the premises now.

(iii) That the plaintiff signed the Agreement leaving the date of execution blank which was later filled by C.A.A. as 28.11.1998. A photo-copy of the Agreement has been produced by this plaintiff as Annexure P/2. Every page of this document bears the stamp and signature of the plaintiff and C.A.A. The counsel has not alleged that the date inscribed in the agreement is incorrect. In my opinion leaving the space for the date unfilled does not invalidate the agreement or changes the nature of the agreement or the relationship between the parties. The argument is frivolous and rejected.

With respect to Suit No. 940 of 1995 Mr. Safdar Hussain argued that the plaintiff in this suit was given the shop not pursuant to the Tender but in lieu of the shop in the Old Terminal No. 1 and pursuant to the decree in Suit No. 217 of 1989 wherein it was agreed that the existing shop-keepers in Terminal Nos. 1 and 3 were to have preferential and prior right for allotment. Be that as it may, it does not change the substantial position that after execution of the Licence Agreement by the parties, their relationship would be governed by the terms of the said agreement, the terms of which ha. • been discussed above in detail.

In view of the above discussion, I am Oi ie confirmed view that the agreement between the plaintiffs and C.A.A. is a Licence Agreement and that all the plaintiffs are licensees of C.A.A. and accordingly not entitled to the relief of Injunction. The Licences having expired, the plaintiffs have no right to remain in the premises and the defendants would be justified in taking action against the plaintiffs for obtaining possession of the premises in accordance with law. If the plaintiffs are aggrieved by the action of C.A.A. their remedy is not by way of Injunction but by way of damages as held in PLD 1965 SC 83.

Having come to the conclusion that the plaintiffs are licensees of C.A.A. and have no right whatsoever in respect of the premises in question, it is obvious that the present suits are not maintainable and are accordingly rejected with costs under Order 7, Rule 11, C.P.C. (PLD 1967 Dacca 190). Consequently all miscellaneous applications also stand dismissed.

(K.K.F.) Suits rejected.

PLJ 1999 Karachi 351 (DB)

Present: kamal mansur alam, C.J. and muhammad roshan essani, J.

Mohtarma BENAZIR BHUTTO and another-Petitioners

versus

FEDERATION OF PAKISTAN and 2 others-Respondents

Constitutional Petitions Nos. D-797 and D-872 of 1998, decided on 1.9.1998.

Constitution of Pakistan (1973)--

—-Art. 199(l)(a)(i) & (ii)-Maintainabilily of petition-Question of-Letter was written and despatched Switzerland's Federal Deptt. of Justice and Police by Attorney-General of Pakistan from his main office at Islamabad-­ Constitutional petition calling in question the letter written at Islamabad, was not maintainable before Sindh High Court on account of lack of territorial jurisdiction. [P. 362] A

Constitution of Pakistan (1973)--

—Arts. 100 & 199~Powers of Attorney-General-Petitioners had challenged authority of Attorney-General-Government of Pakistan could not be denied right to approach Foreign Authorities and make efforts to procure ^evidence of crime available in their country or to seek prosecution of offender or re-mittance of money rightfully belonging to Government of Pakistan-Dealings and agreements with Foreign Countries in judicial and legal matters was within authority of Government of Pakistan-­ Attorney-General being a part of Federal Government and Chief Law Officer of Government of Pakistan could always be assigned work of entering into such dealing-Attorney-General, apart from functions vested in him under Art. 100 of Constitution could write letter in question-Act of writing letter in question by Attorney-General was not without lawful authority. [Pp. 364 & 365] B, C & D

Mr. Abdul Hafeez Lakho, Mr. KM. Nadeem and Mr. K.K. Agha,Advocates for Petitioners.

Chaudhry Muhammad Farooq, Attorney-General, Naeem-ur Rehman, D.A.G. and Raja Muqsit Nawaz, Advocates for Respondents.

Dates of hearing: 19.8. to 1.9.1998.

judgment f

Kamal Mansur Alam, C.J.--By this judgment we propose to dispose of Constitutional Petitions Nos. D-797 of 1998 and D-872 of 1998 as the facts and question of law involved in both are common.

These petitions call into question the authority of the Respondent No. 2 to write the letter dated 6.11.1997 to the "Switzerland's Federal Department of Justice and Police" in particular and generally his authority to approach the Swiss Authorities for legal proceedings against the petitioners arising out of the alleged charges of corruption. It may be stated that though in the petitions the authority of the respondents to approach other Foreign Countries for such proceedings has been assailed but at the hearing the learned counsel appearing for the petitioners confined themselves to challenge the authority of the Attorney-General to write the impugned letter and the proceedings initiated by the Swiss Courts and authorities allegedly on the basis of that letter.

When these petitions came up for hearing before a Division Bench of this Court on 29.7.1998 the Attorney-General for Pakistan being also Respondent No. 2 was not present and on his behalf adjournment was sought by the Deputy Attorney-General. The Court while granting adjournment restrained the respondents in Petition No. D-797/98 from, "directly and indirectly pursuing and corresponding with respect to indictment of the petitioner in the Court outside the country till next date," and in Petition No. D-872 of 1998 from, "corresponding further against the petitioner in respect of indictment proceedings initiated at the request of Respondent No. 3 through Respondent No. 2 till the next date." Against the ad interim orders, the respondents filed petitions in the Supreme Court leave to appeal and in these petitions stay applications were also moved which were disposed of by a consent Order dated 7.8.1998, whereby hearing of the present petitions was to be taken up by this Court from 18.8.1998 and disposed of within seven days leaving the ad interim order impugned in the Supreme Court in effect till the disposal of these petitions by this Court The petitions came up for hearing in the usual course on 11.8.1998 when a copy of the Supreme Court's said order was placed before us with a request that these may be taken up for hearing on 18.8.1998. Accordingly, in terms of the Supreme Court order, the ad interim orders, \vere extended till the disposal of the petitions and the petitions were adjourned for 18.8.1998. However, on 18.8.1998, the learned counsel for the petitioners sought two days' adjournment on the ground that the Respondent No. 3 had filed his counter-affidavit alongwith several additional documents and copy of these had not been supplied to the petitioners' counsel three clear days before the date of hearing, as directed by the Supreme Court With a view to accommodate petitioners' counsel and to give them three clear days' time to examine the counter-affidavit and the additional documents and to file rejoinder, if any, the case was adjourned for 19.8.1998. On 19.8.1998, counsel for the petitioners filed rejoinder affidavit copy whereof was supplied to the learned Attorney-General, the arguments commenced on 19.8.1998 and continued from day to day till 1.9.1998 when these petitions were dismissed by a short order. These are the reasons for that order.

Before going to the merits of the case we propose to take up the two preliminary objections raised on behalf of the respondents, the first pertaining to the territorial jurisdiction of this Court and the other about the delay in the filing of the petitions, as, these go to the root of the case.

It was submitted by Mr. Chaudhry Muhammad Farooq, the learned Attorney-General for Pakistan, that the exercise of jurisdiction under Article 199(l)(a)(i) and (ii) of the Constitution of the Islamic Republic of Pakistan was subject to the condition that the impugned act was done within the territorial limits of the High Court where it is challenged. Here, it was urged that, both, he and Respondent No. 3 have their offices at Islamabad and it is there that they perform their functions, except when he has to appear in Courts elsewhere. The impugned letter too, he said, was written at and dispatched from his office at Islamabad, and therefore, these petitions wherein in substance the authority of the Attorney-General to write that letter has been called into question are not maintainable in this Court. In support of the proposition, reference was made to the cases of The Sanddlbar Enterprises (Put.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334 and Abdul Ghaffar Lakhani v. Federal Government of Pakistan and 2 othersPLD 1986 Kar. 525.

Opposing the objection, Mr. Abdul Hafeez Lakho and Mr. K.M. Nadeem, the learned counsel for the petitioners submitted that the acts of persons performing functions in connection with the affairs of the Federation and exercising authority throughout Pakistan can be challenged under Article 199(l)(a)(i) and (ii) of the Constitution of the Pakistan in any of the High Courts in Pakistan and it was only when such person was exercising authority for a limited area that the High Court having territorial jurisdiction over the area, could be approached. In any case, they said that the High Court within whose territorial jurisdiction persons are affected by such acts will have jurisdiction to entertain petition under the Article. It was, therefore, argued that in any of the two situations this Court has jurisdiction to entertain the petition as the Attorney-General who wrote the impugned letter is performing function in connection with the affairs of the Federation for the whole of Pakistan and the petitioners who have been affected by that letter ordinarily reside at Karachi. The learned counsel placed reliance on the cases of Asghar Hussain v. Election Commission Pakistan and others PLD 1968 SO 387; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758.

In the first case, the election to a Provincial Assembly seat in the then East Pakistan was challenged by the appellant therein by a petition under the President's Order 13 of 1962, Settlement of Disputes (First Election) Order 1962 which was accepted by the Tribunal holding that the entire election was liable to be declared void and to be set aside but appellant's prayer for being declared successful was rejected. The two respondents in that case approached the Dacca High Court under Article 98 of the 1962 Constitution of Pakistan for the quashment of the order of Tribunal. Both the petitions were, however, dismissed and thereupon the appellant moved the Election Commission to disqualify the Respondent No. 3 from being or being elected member of National Assembly under Article 77 of the President's Order 4 of 1962 but when the Commission did not take any action for quite some time, the petitioner approached the Dacca High Court, inter alia, seeking disqualification of the Respondents Nos. 2 and 3 from participating in the election etc. At the hearing, objection was taken about the jurisdiction of the High Court to issue any writ to the Election Commission under Article 98(2)(a)(i) of the 1962 Constitution as it did not perform any function in the then Province of East Pakistan in connection with the affairs of the Central Government The objection found favour with the High Court, which observed that "We are, therefore, of the view that the petitioner is not entitled to ask for issuing the directions upon the Election Commission from this Court". The judgment of the High Court was challenged in the Supreme Court. On the point of jurisdiction, the Supreme Court has observed that:

"It was urged that the Election Commission does not perform its functions 'in the Province' of East Pakistan implying thereby territorial limitations on the exercise of jurisdiction by the High Court under Article 98 of the Constitution. The relevant words are: 'performed in the Province'. The Central Ministries as well as many Departments of the Central Government are located in Islamabad or at Rawalpindi. Nevertheless they perform functions in both the Provinces in connection with the affairs of the Centre, such as, Defence of Pakistan, External Affairs, Insurance, Copyright, Patent, Design, Air Navigation, Mineral, Oil and Natural Gas, Metrology, National Libraries and Museums, election to the Office of President, National Assembly and to the Provincial Assemblies, etc. Many Central Government Departments have their regional offices in either Province, such as Election Commission and their personnels perform functions there in connection with the affairs of tile Central Government. Could it be said that the orders made or proceedings taken by these departments are not subject to the writ jurisdiction of the High Court of that Province because the main offices of the Ministries and the Departments of the Central Government are not situated within the territories over which the High Court of East Pakistan exercised its jurisdiction. It will be useful in this connection to compare the provisions of Article 98 of the 1962 Constitution with Section 223-A of the Government of India Act and Article 170 of the

1956 Constitution.

Section 223-A which for the first time conferred writ jurisdiction on the various High Courts in Pakistan provided that:

'Every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them.'

Similarly Article 170 of the 1956 Constitution enacted that:

'Notwithstanding anything in Article 22, each High Court shall have the power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part II and for any other purpose.'

The words which limited the jurisdiction of the High Court under Section 223-A were 'any person or authority within those territories' namely in relation to which it exercises jurisdiction. Under Article 170 the limits were imposed by the words: throughout the territories in relation to which it exercises jurisdiction'. On the contrary under Article 98 the governing words are: 'performed in Province in connection with the affairs of the Centre, the Province or a local authority'. Under Section 223-A the person to whom a writ could be issued should have been a resident within those territories in relation to which the High Court exercised jurisdiction. These limitations were, however, done away with in the 1962 Constitution presumably for the reasons that while under the 1956 Constitution the Supreme Court had concurrent jurisdiction with the High Courts to issue writs, the 1962 Constitution took away that jurisdiction and but for this arrangement the citizens of East Pakistan would have been denied the remedy provided by Article 98 of the Constitution in respect of orders made and proceedings taken, etc. by persons performing in that Province function in connection with the affairs of the Centre."

The relevant facts of the second case, as can be gathered from the report, were, that the appellant, therein applied to the Registrar of Copyrights, Karachi, for registration of a series of cassettes entitled "Paigham-e-Qur'an Cassettes Series" which the appellant's Managing Director had prepared from pre-recorded tapes of the sermons of Maulana Maudoodi, respecting Tafseer of eleven Surahs of the Holy Qur'an. The application for registration was dismissed, whereupon the appellant preferred an appeal under Section 76 of the Copyright Ordinance, 1962, before the Copyright Board, Karachi. The hearings of the appeal, on the request of the parties and for the convenience of the three Members of the Board who hailed from Lahore and Rawalpindi, took place at Lahore, but final order dismissing the appeal was announced at Karachi. The appellant company challenged the said order of the Board in a Constitutional petition before the Lahore High Court which was dismissed by a learned Judge on the ground that the Lahore High Court had no jurisdiction to entertain the petition because the office of the Registrar and the Copyright Board was located at Karachi. The record of the case, which the appellant wanted to be examined was also in Karachi and, therefore, applying the rule laid down by the Supreme Court in Deputy Managing Director, National Bank of Pakistan v. Attaul Haq PLD 1965 SC 201 held that the Court had no jurisdiction to entertain the writ petition. The appellant then filed an Intra-Court Appeal before a Division Bench of that High Court which too was dismissed and consequently, the appellant therein filed appeal in the Supreme Court, which was allowed. While recording the opinion for the Court Nasim Hasan Shah, J. (as he then was) made the following observation on the question of Constitutional jurisdiction:--

"A perusal of the provisions of the Copyright Act shows that the Copyright Board, as also the Registrar of the Copyrights, exercise jurisdiction throughout Pakistan. According to Section 45 of the Copyrights && the, CenteaL Government shall constitute a Copyright Board and its members shall be:—

(i) a Chairman appointed by the Central Government;

(ii) not less than three and not more than five other members appointed by the Central Government after consultation with the representative bodies of authors, publishers, cinematography industry and any other interest relating to copyright:

Provided that 'adequate representation on the Board shall, as far as possible, be given to the residents of each Province: and

(iii) the Registrar, ex official (Underlining is ours).

The Board, according to Section 46, have power to regulate its own procedure, including the fixing of place of its sittings. It can, thus sit in any part of the country and appeals against its decision, in cases not decided by it on appeal, under Section 76 of the Ordinance can be preferred to the High Court within whose jurisdiction the appellant actually and voluntarily resides or carries on business or personally works for gain.

Thus, the Board is to be constituted by the Central Government which will exercise jurisdiction in all parts of the country. Its members will belong, as far as possible, to all the Provinces of the country and its sittings can be held in every part of the country. Again, its orders, except those passed by it in its appellate capacity, can be appealed to in the High Court where the appellant resides and carries on his business. Thus, if in this case the impugned order of the Board was not passed in its appellate capacity but in its original capacity, the appellant herein could undoubtedly have filed an appeal before the Lahore High Court, because he admittedly resides and carries on business at Lahore. But it has been found by the High Court that the same appellant cannot approach the Lahore High Court in its Constitutional jurisdiction. Such an incongruous conclusion cannot easily be acceded to unless the words of the Constitutional provision yielded no other interpretation.

We do not think that this is so.

While dealing with a somewhat similar situation, this Court was called upon to examine the terms of Article 98 of the 1962 Constitution (which are similar in the relevant regard to those of Article 9 of the Provincial Constitution Order, 1981 in Asghar Hussain v. Election Commissioner, Pakistan and others PLD 1988 SC 387. In this case, the East Pakistan High Court had held that the said High Court could not exercise jurisdiction with regard to the decisions of the Election Commission of Pakistan as the said body was not located in nor performed its function in the Province of the East Pakistan and, therefore, the East Pakistan High Court was precluded on account of territorial limitations, from exercising jurisdiction in connection with orders passed by it. While rejecting this contention it was observed by this Court thafc-

'The plain meaning of the words ' a person performing in the Province functions in connection with the affairs of the Central excludes territorial limitations such as, that the person or authority to whom the High Court is empowered to issue writs must be amenable to its jurisdiction either by residence or location within those territories.'

(Underlining is ours). In explained that-

'The Central Ministries as well as many Departments of Central Government are located in Islamabad or at Rawalpindi. Nevertheless they perform functions in both the Province in connection with the affairs for the Centre, such as, Defence of Pakistan, External Affairs, Insurance, Copyright Patent Design (Underlining is ours).

and found that the orders made or proceedings taken by the said Departments in connection with the affairs of the Central Government but having effect on parties in East Pakistan would be subject to the writ jurisdiction of the High Court of that Province.

The rules laid down in the said case would, we think, be applicable also in the circumstances of this case. The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case.

The learned Deputy Attorney-General, Mr. Munir A. Sheikh, who appeared on behalf of the respondent-Copyright Board, supported this interpretation of the Constitutional provision in question and submitted that the writ petition filed by the appellant before the Lahore High Court should not have been dismissed for lack of jurisdiction by the said High Court, as it also had jurisdiction to entertain it, concurrently with the Sindh High Court.

We agree and are of the opinion that both the Lahore High Court as well as the Sindh High Court had concurrent jurisdiction in the matter and both the Courts could have entertained a writ petition against the impugned orders in the circumstances of this case, we, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case."

In order to appreciate the contentions of the learned Attorney-General and that of the learned counsel for the petitioners it will be useful to reproduce here Article 199(l)(a)(i) and (ii) of the Constitution of Pakistan:

"199(l).-Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law~

(a) on the application of any aggrieved party, make an order-

(i) directing a person performing, within the territorial jurisdiction of the Court functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or

(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect, ofIn the above provision the words "within the territorial jurisdiction of the Court" evidently, on a plain reading, govern the preceding words "any act done or proceeding taken" and have obviously been incorporated with the intention of confining the scope of exercise of jurisdiction by the High Court thereunder to such acts or proceeding only as are done or taken within the territorial jurisdiction of that Court Such intention can also be gathered from the fact that in Article 98 of the 1962 Constitution, from where the language of Article 199 seems to have been lifted, did not have this restrictive condition. The effect of absence of such condition has been dealt with by the Hon'ble Supreme Court in Asghar Hussain's case while comparing the provisions of Article 98 with those of Section 223-A of the Government of India Act and Article 170 of the 1956 Constitution where somewhat similar restrictions found mention, in the following words, which for the sake of convenience may be reproduced again:-

"The words which limited the jurisdiction of the High Court under Section 223-A were 'any person or authority within those territories' namely in relation to which it exercises jurisdiction. Under Article 170 the limits were imposed by the words: throughout the territories in relation to which it exercises jurisdiction'. On the contrary under Article 98 the governing words are: 'performed in Province in connection with the affairs of the Centre, the Province or a local authority'. Under Section 223-A the person to whom a writ could be issued should have been a resident within those territories in relation to which the High Court exercised jurisdiction. Under Article 170 no writ could be issued beyond the territories in relation to which the High Court exercised jurisdiction. These limitations were, however, done away with in the 1962 Constitution took away that jurisdiction and but for this arrangement the citizens of East Pakistan would have been denied the remedy provided by Article 98 of the Constitution in respect of orders made and proceedings taken, etc., by person performing in that Province function in connection with the affairs of the Centre."

The language employed in the above provisions of Article 199 is clear and unambiguous and should be construed according to the rule of grammar and the words given natural and ordinary meaning. Plainly the effect of the restriction found in the expression "any act done or proceeding taken within the territorial jurisdiction of the Court" is that the exercise of jurisdiction by a High Court under the said provision is subject to the condition that the impugned act or proceeding is done or taken within the territorial jurisdiction of that High Court. On the language of the said provision of Article 199 we do not find it possible to subscribe to the views of the petitioners' counsel that the High Court in whose territorial jurisdiction a person is affected by the impugned act, done within the territorial limits of another High Court, can too exercise jurisdiction under those provisions.

In the case of Abdul Ghaffar Lakhani v. Federal Government of Pakistan and 2 others PLD 1986 Karachi 525 the implication of Article 199(l)(a)(i) and (ii) came up for consideration before a Full Bench of this Court and Naimuddin, C.J. (as his Lordship then was) speaking for the majority observed:-

"It was, however, submitted by the learned counsel for the petitioner that a person would come within the territorial jurisdiction, if he exercises powers or authority over the area within the territorial jurisdiction of the Court and as in the present case Respondent No. 3 exercise his authority by controlling all Military Officers and Cantonments in Pakistan including those within the territorial jurisdiction of the Court, therefore he comes within the territorial jurisdiction of this Court. As already stated that for issuance of a writ in the nature of quo warranto it is the place of residence, or the place of office of the person against whom such a writ is sought which is material and that should be within the territorial jurisdiction and not the area over which he exercises the authority or powers of the office held by him. In the present petition no action of Respondent No. 3 in relation to any officers or the Cantonment within the territorial jurisdiction of this Court is challenged. What is being questioned is the holding of office as Chief of Army Staff. Therefore, this Court has no territorial jurisdiction. It may be stated that where an action of a person who is not covered by clause (3) of Article 199 is questioned, the Court would have jurisdiction, if action was taken within the territorial jurisdiction of the Court as would be clear from the language used in clause (l)(a)(ii) of Article 199 of the Constitution. I am fortified in my view by a decision of the Supreme Court of Pakistan and several other decisions from foreign jurisdiction and a decision of Dacca High Court, namely Sabir Din and another v. Government of Pakistan (1979 SCMR 555), Abrar Hassan v. Government of Pakistan and another (PLD 1976 SC 315), Election Commissioner, India v. Saka Venkatasubbarao (AIR 1953 SC 210), K.S. Rashid and Son v. Income Tax Investigation Commission and others (AIR 1954 SC 207), Lt.-Col Khajoor Singh v. Union of India (AIR 1961 SC 352), Madan Gopal Rungta v. The Secretary to the Government of Orissa and others (AIR 1962 SC 1513) and A.K.M. Fazlul Quadir Chowdhury v. Government of Pakistan and another (PLD 1957 Dacca 345)."

Reference may also be made to the unreported decision of a Division Bench of Lahore High Court whereby several writ petitions including Writ Petition No. 1851 of 1995 were disposed of. The petitioners in all those cases imported certain consignments which arrived at the Karachi Port where the Customs Authorities imposed regulatory duty on these under notification dated 29.10.1995 which levy was assailed in several writ petitions filed in the Lahore High Court. In reply to the preliminary objection about the maintainability of those petitions in that Court it was argued that as the factories and other work place of the petitioners were located within the jurisdiction of that Bench and the notification under which the imposition of duty was made, had been issued by the concerned Ministry at Islamabad, the petitions were maintainable before that Court. Repelling the contention the Court concluded that:-

"Resultantly, keeping in view the filing of bills of entries and the location of goods as well as the authorities functioning beyond the territorial jurisdiction of this Court, we hold that these Constitutional petitions are not maintainable before this Court."

Distinguishing those petitions with Asghar Hussain's case the learned Judges observed:-

"This judgment according to our humble view turned on the wordings of Article 98(2) (a) (i) wherein the constraint of 'within the territorial jurisdiction of the Court' was not required."

The above decision of the Lahore High Court was challenged in the Supreme Court in the case of Sandalbar Enterprises. (Pvt.) Limited v. Central Board of Revenue and others PLD 1997 Supreme Court 334. The Hon'ble Supreme Court while approving the Lahore High Court's view made the following pertinent observation about the scope of Article 199(l)(a)(i) and (ii):-

"The learned Judges of the Division Bench have pointed out the language originally employed in Article 98(2)(a)(i) of 1962 Constitution prior to the incorporation of clause (c) by the First Amendment Act, 1963, to distinguishing the case of Asghar Hussain v. Election Commission of Pakistan etc. PLD 1968 SC 387. The view found favour with the learned Judges of the Division Bench in the case in hand seems to be in consonance with Article 199(l)(a)(i) and (ii) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution. A perusal of above sub-clause (a)(i) of the above Article indicates that a High Court has power to issue a direction to a person performing within its territorial jurisdiction functions in connection with the affairs of the Federation, Province or a local authority to refrain from doing anything he is no permitted by law to do or to do anything he is required by law to do. Similarly, under sub-clause (a)(ii) a declaration without lawful authority or of no legal effect can be given by a High Court in respect of any act done or proceeding taken within the territorial jurisdiction by a person performing functions in connection with the affairs of the Federation, a Province or a local authority."

The cases relied upon by the learned counsel for the petitioners are clearly distinguishable. In Asghar Hussain's case it was Article 98 of the 1962 Constitution which was under consideration of the Supreme Court, which had no provision, similar to that found in Article 199(l)(a)(ii) in the phrase "any act done or proceeding taken within the territorial jurisdiction of the Court" which limited the scope of exercise of jurisdiction by the High Court.

The case of Al-Iblagh Ltd. was mainly based on Asghar Hussain's case and the effect and implication of the above-referred restrictive condition incorporated in Article 199(l)(a)(i) and (ii) was not considered. What seems to have weighted with the Hon'ble Judges were the facts that the hearings of the appeal were held by the Copyright Board at Lahore, the appellant resided at Lahore and under the Copyright Ordinance appeal from the orders of the Board if passed in original capacity would lie in the High Court within whose jurisdiction the appellant resided and as in that case the appellant resided in Lahore the appeal could be filed in that High Court.

Thus, we are of the view that as the main office of the Attorney-General is situated at Islamabad from where the impugned letter dated 6.11.1997 was written and dispatched, the petitions are not maintainable in this Court.

On the other objection about the delay in the filing of these petitions it was contended by the learned Attorney-General that the main cause of grievance of the petitioners is the letter dated 6.11.1997 written by Respondent No. 2, whereby according to the petitioners, the Respondent No. 2 had approached the Swiss Authorities for taking action against the petitioners, but though the said letter was written as far back as 6.11.1997 the two petitions were filed on 8.6.1998 and 24.6.1998 when proceedings/actions against the petitioners had already been initiated by the Swiss Authorities in Courts. It was submitted that this long delay of almost eight months in the filing of the petitions, in the circumstances of the present case, when the matter had already progressed substantially disentitles the petitioners from approaching the Court in its Constitutional jurisdiction. It was stated that the petitioners had knowledge of the proceedings against them in Switzerland, as, for quite sometime such reports were appearing in local and foreign newspapers and magazines, therefore, the delay in the filing of the petitions cannot be justified.

In reply, it was submitted by the petitioners' counsel that while it was true that the petitioners had learnt from magazines and newspapers about the Swiss Authorities, contemplating action against them, they were not at all aware that these actions were the result of the impugned letter by the Respondent No. 2 or in consequence of his approaches to the Swiss Authorities and that it was only from the "Press Briefing" by Respondent No. 3 on 2.6.1998 at Geneva, which later came to the knowledge of the petitioners in Pakistan, that they for the first time learnt of the impugned letter and the involvement of the Respondent No. 2 in the action initiated against the petitioners. Soon thereafter these petitions were filed without any loss of time. No material on record could be pointed out on behalf of the respondents to controvert the contention of the petitioners' counsel that the petitioners learnt of the impugned letter only from the 'Press Briefing\ of the Respondent No. 3, as such we do not consider that any delay occurred in the filing of the petitions.

Having found that the petitions are not maintainable in this Court it was not necessary to examine the merits of the case, however, as we had heard the learned counsel on merits it would perhaps be appropriate to briefly record our opinion on merits too.

The counsel for the petitioners assailed the impugned letter on several grounds. It was submitted that the Respondent No. 2 could exercise powers only within the scope and ambit of Article 100 of the Constitution of the Islamic Republic of Pakistan and that neither under that Article nor any law the Attorney-General had authority to enter into correspondence with foreign countries with the object of embarking upon investigation in criminal cases. In the absence of such authority the action was not sustainable. Reference in this regard was made to the following passage from the judgment delivered in the case of Mumtaz Alt Bhutto and another v. The Deputy Martial Law Administrator, Sector I, Karachi and 2 others PLD 1979 Karachi 307 appearing at page 330 of the report: -

"As the Executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice."

It was further contended that the allegations made in the impugned letter had the effect of tarnishing petitioners' reputation and dignity in the eyes of people in violation of the fundamental rights guaranteed under Articles 4 and 14 of the Constitution.

The impugned letter was neither a command nor an order nor was there any compulsion on the Swiss Authorities to comply therewith, it was merely in the nature of a request for mutual assistance in the alleged cases of corruption involving the petitioners and others. By that letter, which is claimed to be written on behalf of the Islamic Republic of Pakistan, information about the various cases of alleged corruption had been provided to the Swiss Authorities with the request that action be taken in respect of such as were offence under their laws. Request was also made for providing to Pakistan information and evidence available in Switzerland pertaining to the referred cases of corruption, freezing of certain bank accounts and remittance of money to Pakistan illegally taken away. It was then for the Swiss Authorities to consider these requests and take appropriate action.

Now the question is as to whether in a case where there is a reasonable belief of an offence having been committed under the laws of Pakistan and that of another country, would it be within the competence of the Government of Pakistan to seek cooperation of that country for the exchange of information and available evidence about the crime, for the initiation of legal proceedings against the persons involved etc.? There appears to be no law and none was pointed out to us, placing any restriction on Government's Authority to approach other countries in these circumstances. It would seem that in such situation the Government cannot be denied the right to approach Foreign Authorities and make efforts to procure evidence of crime available in their country or to seek prosecution of the offender or remittance of money rightfully belonging to Pakistan.

It still remains to be seen if these acts can lawfully be executed by the Respondent No. 2, Attorney-General on behalf of the Government. In this regard, reference may be made to the functions of Law, Justice and Parliamentary Affairs Division set out in Para. 21 of Schedule II to the Rules of Business, where while enumerating the various functions of the Division, Item 4 provides "Dealings and agreements with other countries and International Organization in judicial and legal matters", thus, it would appear that in so far as dealings and agreements with Foreign Countries in judicial and legal matters was concerned, it fell within the authority of the Law, Justice and Parliamentary Affairs Division. The Attorney-General being a part of the said Division and Chief Law Officer of the Government can always be assigned the work of entering into such dealings. The fact that the Federation of Pakistan is a party in these proceedings and has not disputed Respondents No. 2's act of writing the impugned letter would show that the same had been written with the authority of the Federal Government. Reference may also be made to Article 100 of the Constitution of Pakistan which reads as under:--

"lOO.-(l) The President shall appoint a person, being a person qualified to be appointed a Judge of the Supreme Court, to be the Attorney-General for Pakistan.

(2) The Attorney-General shall hold office during the pleasure of the President.

(3) It shall be the duty of Attorney-General to give advice to the Federal Government upon such legal matters, and to perform such other duties of a legal character as may be referred or assigned to him by the Federal Government, and in the performance of his duties he shall have the right of audience in all Courts and Tribunals in Pakistan.

(4) The Attorney-General may, by writing under his hand addressed to the President, resign his office."

It is apparent from clause (3) of the Article, reproduced above, that apart from the functions vested in the Attorney-General by the Article, the Federal Government may assign to him order duties too. As such, under the authority of the Federal Government, the Respondent No. 2 could have written the impugned letter. Since, there is no dispute on behalf of the Federal Government with regard to the authority of the Attorney-General to write the said letter, we are of the view that the act of writing the said letter was not without lawful authority. As to the various allegations in the letter suffice to say that these are relatable to the alleged offences and are to be read in that context.

For the reasons discussed above, both the said petitions are dismissed and, consequently, the ad interim orders dated 29.7.1998 passed in these petitions are recalled.

(K.K.F.) Petitions dismissed.

PLJ 1999 Karachi 365 (DB)

Present: nazim hussain siddiqui and ghulam rabbani, JJ. COLLECTOR OF CUSTOMS (APPRAISEMENT)--Appellant

versus

Messrs SALEEM ADAYA, KARACHI-Respondent

Custom Appeal No. 2 of 1998, decided on 22.10.1998. (i) Customs Act, 1969 (IV of 1969)-

—S. 196--Appeal~Limitation--Question of~Customs Act, 1969 being a special law, provisions of S. 5, Limitation Act, 1908 whereby delay could be condoned, was not applicable to cases governed by Customs Act, 1969 as provided under S. 29(2) of Limitation Act, 1908-Delay in filing appeal by 14 days could not be condoned especially when no satisfactory explanation for condonation of delay was offered. [P. 369] A & B

(ii) Customs Act, 1969 (IV of 1969)--

—-Ss. 13 & 156-Exemption from customs duty-Claim of-Confiscation of imported vehicle-Importer claimed exemption from customs duty etc. under Notification No. SRO 783(l)/92, dated 19.8.1992 and got released imported vehicle against facility of exemption-State Bank in view of Explanation of above said Notification issued show-cause notice to importer to the effect that importer was not entitled to benefit of said Notification and his vehicle was confiscated—State Bank's letter which was issued subsequent to filing of Bill of Entry, was not in consonance of Notification and importer had fulfilled legal conditions-Letter of State Bank which was not more than an executive instruction, could not be operative retrospective-Even otherwise facility of exemption of customs duty etc. having already been extended to 4 other importers under said Notification, importer was also entitled to said facility.

[Pp. 369 & 370] C, D & E

Mr. Shakeel Ahmed, Advocate for Appellant.

Mr. Makhdoom Alt Khan, Advocate for Respondent.

Date of hearing: 29.7.1998.

judgment

Nazim Hussain Siddiqui, J.-This appeal is directed against judgment dated 3.1.1998 of the Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench, whereby the appeal of the respondent was allowed and the order dated 14.9.1994 passed by the Collector of Custom Preventive, Karachi, was set aside. The facts relevant for decision of this appeal are as follows:

1. Respondent Saleem Adaya imported a new Mercedes Benz Car, type C-200, valued at Rs. 13,50,536 and claimed exemption of customs duty, sales tax and Iqra charges under SRO No. 783(l)/92, dated 19.8.1992, hereinafter referred to as said SRO, and got the vehicle released against ITC exemption 13-D of SRO No. 599(1)/91 dated 1.7.1991. The State Bank of Pakistan in its letter No. 3913 FEP-16(6)HR-94, dated 12.5.1994, explained the scope of said SRO. Thereafter, a show-cause notice dated 6.8.1994 was issued to the respondent stating therein that he was not entitled to the benefit of said SRO and that he had caused loss to Government revenue to the extent of Rs. 20,25,804 as customs duty. Rs. 5,08,407 as sales tax, Rs. 67,525 as Iqra charges and Rs. 80,938 as fixed sales tax, total Rs. 26,96,251. The respondent submitted his reply against said show-cause otice on 5th September, 1994. Learned Collector of Customs by order dated 14.9.1994 confiscated .said vehicle, under clauses 9 & 14 of Section 156(1) of the Customs Act, with an option to the respondent to get the same released on payment of fine equal to 20% of ascertained value in addition to payment of customs duty and other taxes leviable thereon on production of necessary import permit from Ministry of Commerce.

2. The respondent challenged said order befcrs the Customs, Excise and Sales Tax Appellate Tribunal, Karachi, and the Tribunal by impugned order allowed the appeal.

3. In order to appreciate the points involved in this matter, it would be advantageous to reproduce the said SRO and the relevant portion of the State Bank of Pakistan's letter dated 12th May, 1994, which are as follows:--

Number Custom CBR IDS GOVERNMENT OF PAKISTAN MINISTRY OF FINANCE AND ECONOMIC AFFAIRS (REVENUE DIVISION)

Islamabad, the 19th August, 1992 NOTIFICATION (CUSTOMS)

S.R.O. 783(l)/92.-In exercise of the powers conferred by Section 13 of the Customs Act, 1969 (IV of 1969), sub-section (1) of Section 13 of the Sales Tax Act, 1990, and sub-section (2) of Section 5 of the Finance Act, 1985 (I of 1985) the Federal Government is pleased to exempt import of vehicles specified in column (3) of the table below, from whole of Customs duty leviable under the First Schedule to the Customs Act, 1969 (IV of 1969) sales tax and Iqra surcharge, subject to the condition that the amount of foreign exchange in US dollar specified in column (2) of table below has been remitted through the regular banking channels and the importer produces certificate from the bank in accordance with the instructions issued by State Bank of Pakistan from time to time to the effect that the requisite amount of foreign exchange had been remitted by him through said bank as mentioned below:--

TABLE

S.No. Amount Remitted Vehicles n US Dollar

(i) (ii) Oil)

| | | | | --- | --- | --- | | (1) | 200,000 or more | Car 1000 ec | | (2) | 500,000 or more | Car 1200 cc | | (3) | 600,000 or more | Car 1300 cc | | (4) | 1,000,000 or more | Car 1600 cc | | (5) | 2,500,000 or more | Car 2000 cc | | (6) | 5,000,000 or more | Car above 2000 cc |

Relevant portion of letter dated 12.5.1994 of State Bank of Pakistan:

"The remittance sent by the Pakistanis working/settled abroad to the beneficiaries residing in Pakistan for payment in Pakistani rupees or for credit to the rupee account of the remitter or beneficiary are classified as 'Home Remittances'. In the cases where remittances have been received on account of the goods exported from Pakistan on account of services rendered they are not eligible for the duty exemption under this scheme."

1. Mr. Makhdoom Ali Khan, learned counsel for the respondent, as a preliminary objection, challenged the maintainability of this appeal on the ground that it was time-barred and valid explanation for condonation of delay was not furnished. We propose to deal with this point first.

2. The impugned order was passed on 3.1.1998, and the appeal was presented before this Court on 27.3.1998. The appellant in his application under Section 5 of the Limitation Act has not specifically mentioned that by how many days the appeal was barred by time. He, however, maintained that impugned order was received in his office on 28.2.1998 and thereafter it was sent to the Central Board of Revenue, Islamabad, for obtaining necessary instructions, which were received on 21.3.1998 and then the appeal was filed. The appeal under Section 196 of the Customs Act was to be preferred within 30 days of the impugned order. Instead, it was filed on 27.3.1998. The record shows that on 11.2.1998 its copy was supplied to the appellant. Calculating from said date it should have been filed on or before 13th March, 1998. It seems to be time-barred by 14 days. The explanation for delay is that the time was spent in completing formalities and obtaining necessary instructions form the Central Board of revenue, Islamabad.

3. Mr. Makhdoom Ali Khan, contends that Customs Act is special law and it being so Section 5 of the Limitation Act is not attracted as its applicability is excluded by Section 29 of said Act. In support of this contention, he cited (1) Syed Muhammad v. Mazhar AUJKhan PLD 1981 Kar. 76, (2) Abdul Ghaffar and others v. Mst. Mumtaz PLD\L982 SC 88, (3) Mi Muhammad and another v. Fazal Hussain and others 1983 SCMR 1239. These cases were under Sindh Rented Premises Ordinance, 1979/West Pakistan Rent Restriction Ordinance, 1959. The ratio decidendi of these cases is that they being under special law, Section 5 of the Limitation Act stands excluded by virtue of Section 29(2) of the said Act. Customs Act being a special law, Section 5 of the Limitation Act will also not apply to the cases governed by Customs Act.

4. Mr. Makhdoom Ali Khan also cited (1) Dr. Hussainullah Khan v. Hqji Abdullah Jan 1978 SCMR 457; (2) Mst. Rukhsana Ahmed v. Tariq Attaullah 1980 SCMR 36; (3) Commissioner of Income Tax v. Races Pir Ahmad Khan 1981 SCMR 37; (4) Government of Punjab through Secretary (Services), Services and General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396; (5) Federation of Pakistan through Sea ^iry of Foreign Affairs, Government f Pakistan and 5 others v. Jamaluddin and others 1996 SCMR 727/744 para. 14; (6) Federation of Pakistan v. Niaz Ahmad 1997 SCMR 959 and (7) Central Board of Revenue, Islamabad v. M/s. Raja Industries Limited 1998 SCMR 307. The ratio decidendi of these cases is that Government on the question of limitation could not be treated differently from ordinary litigant Further, it was observed that where Government in spite of enormous resources and facilities at its disposal if it still files case beyond the period of limitation detrimental to its own interest the opposite-party cannot be penalised for its negligence and that for condonation the delay of each and every day must be explained. It is significant to point out that in case of Hussainullah Khan, the delay was of only seven days. In case of Rukhsana Ahmad the High Court held that there was a delay of one day for which no satisfactory explanation was offered and this finding was maintained by the Supreme Court. In all aforesaid cases delay was not satisfactorily explained.

5. In this case learned counsel for the appellant seeks condonation of delay on the oft repeated ground of seeking instructions from the higher authorities and of completing the formalities. This by itself, as held by the Supreme Court in aforesaid cases, is not a valid ground. The appeal is time- barred and no satisfactory explanation for condonation of delay has been offered.

6. On merits, Mr. Shakeel Ahmed, learned counsel for the appellant argued that exemption from custom duty and other taxes, under said SRO, is only applicable to the remittances, which are covered by the State Bank's letter, referred to earlier. Learned counsel also contends that the respondent was not settled abroad and had not sent "home remittances" himself and the condition precedent for applicability of said SRO was that the remittances should have been sent by a Pakistani working/settled abroad.

7. We have examined the above contentions and are of the view that the State Bank's letter is not in consonance of said SRO, which clearly lays down only two conditions namely, that the amount of Foreign Exchange in US Dollars specified in Column 2 of table as shown in said SRO must have been remitted through the regular banking channels and second condition is a production of certificate from the Bank concerned to the effect that requisite amount of foreign exchange had been remitted by him through said Bank. It is not disputed that the respondent had remitted the requisite amount nor the fact that concerned bank viz. Faisal Bank, Dubai, had issued such certificate. Both conditions precedents were fulfilled by the respondent.

8. State Bank of Pakistan's letter dated 12th May, 1994 is not a corrigendum of said SRO and on the contrary it militates a ainst it basic concept. In said SRO either the term "Home Remittances" has been defined nor it requires any sort of verification from State Bank. On the basis of extraneous material the scope of said SRO cannot be extended or limited. It is to be read as it is and not in any other manner, unless so is permitted by law. It is significant to point out that the bill of entry for clearance of said vehicle was filed on 20.3.1994, while said letter of State Bank was issued on 12th May, 1994. The letter of the State Bank of Pakistan is not more than an executive instruction, as such, it could not be retrospective.

9. During the course of arguments, learned counsel for the appellant conceded that above facility was extended in four other cases, but added that action was being taken against the concerned importers. He : however, has not pointed out that so far what action was taken against them. Prima facie, it appears to be a case of discrimination. The same facility should have been extended to the respondent also as was done in other four cases. On merits also, this appeal cannot succeed.

10. On 29.9.1998 we had, after hearing learned counsel for the parties, dismissed the appeal in limine and these are reasons for the same.

(K.K.F.) Appeal

PLJ 1999 Karachi 370

Present: zahid kurban alavi, J.

LAND ACQUISITION OFFICER/COLLECTOR, GOVERNMENT OF SINDH, HYDERABAD CITY-Appellant

Versus

Hqji MUHAMMAD SIDDIQUE through LEGAL HEIRS-Respondents

First Appeals Nos. 16,17,18 and Intra-Court Appeal No. 49 of 1998; Civil Mis. App. Nos. 504 of 1993,458 and 228 of 1994, decided on 2.10.1998.

Land Acquisition Act, 1894 (I of 1894)-

—S. 11 read with S. 114 & O.XLVH, R. 1 of CPC-Land-Acquisition of-Compensation--Question of--Review--Scope--Respondent being not satisfied with award filed reference to District Judge-Amount of compensation was increased-Appellant filed appeal against order passed in reference whereas respondent filed cross-objections-Appeal was dismissed by High Court and cross-objections filed by respondent were allowed-Review against-Jurisdiction of Court in review was restricted and limited-Court could not go beyond scope of S. 114 and O.XLVTI, R. 1, C.P.C.-Review application was dismissed in circumstances. [P. 375] A

Mr. Abdul Haleem Pirzada and Syed Masood Alt, Advocates for Appellant

Mr. Ghulam Rasool Qureshi, Advocate for Respondents. Mr. Mian Khan Malik, Add. A.G. Date of hearing: 2.10.1998.

order

By a consolidated order four review applications under Order 47, Rule 1, C.P.C. read with Sections 151 and 152, C.P.C. shall be disposed of. Briefly the case is that the respondent owned land in Deh Jamshoro Taluka and the land was acquired for the public purpose to construct water logoons. This acquisition of land was done under the Land Acquisition Act The Notification was published on 20th of October 1979, another notification was also issued under Sections 6 and 17 of the Land Acquisition Act on 2.5.1980. Award was given under Section 11 on the 19th June, 1980. Notices were issued under Section 9 on 24.5.1980 to the owners of the properly. The award was given for Rs. 30,000 per acre however, the respondent was not satisfied with the sum and a reference was made to the District Judge under Section 18 wherein a demand was made that the amount of compensation should be Rs. 40,000. Issues were framed before the learned Additional District Judge whereafter evidence was produced and the learned Additional District Judge awarded the compensation of Rs. 40,000 per acre by judgment dated 30.11.1986. The appeal under Section 54 was filed by the Land Acquisition Officer/Collector Government of Sindh before this Court were cross-objections were also filed under Order 41, Rule 22, C.P.C. by the respondent. Through these cross-objections the respondents demanded that compensation should be given to them at the rate of Rs. 1,50,000. The judgment by this Court was given by Mr. Justice Khursheed A. Rizvi (as his Lordship then was) on 21.2.1993. By this judgment the appeal was dismissed and the cross-objections filed by the respondents were allowed to the extent of what was stated in detail in the said judgment The appellant in the case filed review application on 7.9.1993. In this application they asked for certain change in the operative part of the judgment. The grounds for review as stated in the application I reproduce as follows:-

1. That this Honourable Court in the operative part of the judgment dated 21.2.1993 has been pleased to observe as under:-

"I, therefore, fix the rate of compensation for the above land at the rate of Rs. 70,000 per acre. I also direct that compulsory acquisition charges at the rate of Rs. 15% under Section 23(2) of the Land Acquisition Act on the above compensation be also paid. Interest at the rate of 6% per annum is also granted from the date of possession of the land i.e. 18.6.1980 till the amount is finally paid to the respondents by the appellants. The additional compensation at the rate of 15% per annum be also paid on the above amounts from the date of notification under Section 4 of the Land Acquisition Act till 20.10.1979 till the entire amount is paid to the respondents."

1. That while dismissing the appeals of the appellant and allowing cross-objections of the respondent this Honourable Court had made the above observations.

2. That the additional compensation under Section 28-A of L.A. Act 1894 has been allowed by amendment in the L.A. Act vide Ordinance XXin of 1984, L.A. (Sindh Amendment) Ordinance, 1984, Gazette of Sindh, Extraordinary dated 30.9.1984 which has been reproduced below:

"28-A. Additional Compensation.-In addition to the compensation fixed on the basis of market value as prevailing on the date of notification under Section 4, an additional amount of fifteen per cent, per annum of the compensation so fixed shall be paid from the date of the notification under Section 4 to the date of payment of the compensation."

1. That while allowing additional compensation at the rate of 15% per annum, this Honourable Court inadvertantly, through oversight has used the words "additional compensation at the rate of 15% per annum be also paid on the above amounts", while, as provided under Section 28-A of L.A. Act 1894, the additional compensation is not to be paid on all the amounts which includes 15% compulsory nature of the acquisition under Section 23(2) of L.A. Act and 6% interest payable on excess compensation under Section 28 of L.A. Act, but only on the amount of compensation fixed on the basis of market value, hence this review is warranted by law.

2. That the appellant, under the law, is not liable to pay additional compensation at the rate of 15% per annum on all the above amounts hence the judgment dated 21.2.1993 passed by this Honourable Court calls for a review.

3. That in view of the above submissions, it is earnestly prayed that this Honourable Court be graciously pleased to review the judgment dated 21.2.1993 by clarifying that the additional compensation at the rate of 15% per annum is payable by appellant to the respondents only on the amount of compensation fixed on the basis of market value as prevailing on the date of notification under Section 4 of L.A. Act.

4. That an affidavit in support of this application is filed herewith.

Heard the learned counsel for the appellant/applicant who has dwelt at length on the factual aspect which led to the filing of the appeal and according to him he has raised certain objections which according to him touches the very of the appeal. He has very vehemently argued that the appeal was filed by a person who was not competent to file the same under the law. According to him it has to be the Advocate-General or anybody authorised by the Advocate-General. According to him if the appeal was not filed properly then whether the cross-objections could be maintained or not He has also gone on the state that the appeal was time-barred by twenly days and even the stamps were not paid in time. The third point that he has taken is that even if the review was considered as time-barred then it can be entertained under Section 151, C.P.C. He has then gone on to deal exhaustively with the various Sections of the Land Acquisition Act and whether the cross-objections could also be entertained. Thereafter in support of his various contentions the learned counsel has relied on lot of case-laws which are reproduced hereunder:--

(1) PLD 1992 Kar. 150(a).

(2) Unreported case of Civil Appeal No. 39 of 1994 Government of Sindh v. Hqji Abdul Rehman.

(3) AIR 1924 Lab. 43;

(4) PLD 1973 SO 295(b);

(5) 1985 SCMR 45(b)(c);

(6) PLD 1978 Pesh. 138 overruled in 1983 CLC 685;

(7) 1983 CLC Kar. 685;

(8) PLD 1975 Lah. 942;

(9) PLD 1984 SC 253;

(10) PLD 1955 Sindh 349;

(11) NLR 1979 Service Lah. 179(a);

(12) PLD 1959 (W.P.) Lah. 31(f);

(13) PLD 1968 Azad J&K 26(b);

(14) AIR 1941 Sindh 158(a);

(15) PLD 1993 Kar. 578.

Furthermore he has also contended that compensation under Section 28-A could not be awarded for the reasons that Section 28-A was brought into existence in 1984 and there could be no retrospectively of its application. He has also pointed out that even if the High Court could come to the conclusion that compensation under Section 28-A would be applicable then it should be on the net value and not on the gross value.

The learned counsel for the respondent while arguing the matter has brought forward some very relevant dates. According to him the following dates are worth considering:

(1) Judgment in appeal dated 21.2.1993.

(2) Review filed on 29.8.1993 i.e. after six months and eight days.

(3) Review did not have Court-fees and no application under Section 149, C.P.C. was filed.

(4) No application under Section 5 of the Limitation Act was filed.

(5) Office objections was raised on 7.9.1993.

(6) Counter-affidavit was filed on 27.2.1994.

(7) Application under Section 5 of the Limitation Act was filed on 17.7.1994 which is C.M.A. 458 of 1994. This application was presented on 19.7.1994.

(8) Court-fees were paid through a statement on 18.6.1996.

The another objection taken by the respondent was that there was no provision for review under the Land Acquisition Act He has then gone 011 to give various case-laws on the following points. The learned cou. for the respondent has also raised certain points in reply to the arguments led by the counsel for the appellant.

(A) Right of review is a substantive right and is always a creation of relevant statues on the subject.

(B) Review/Appeal-Filed without Court-fee stamps/deficit Court- fee is a mere piece of paper and subsequent payment beyond time would not render it as properly filed.

(C) Condonation of delay under Section 5 of Limitation Act.

Question of limitation not be lightly interfered since it create valuable right in favour of other party.

Condonation of delay, delay of each day is to be explained and Government cannot be treated differently.

PLD 1981 SC 94(b) Plus 1986 SCMR 965 Plus PLD 1970 SC 1

(i) PLD 1978 BJ 7 (ii) AIR 1955 Raj. 165 (iii) 1996 MLD 1074 (a) (iv) 1998 MLD 589 (a) (v) 1997 SCMR 919 (a) (vi) 1996 CLC 2002 (c)

(i) PLD 1993 Quetta 88(d)(e) (ii) PLD 1995 SC 396 (a) (iii) 1996 SCMR 727 (b)/730

15% Additional compensation is to be awarded on compensation allowed under Section 23(1) and under Section 23(2) of Land Acquisition Act.

1. Whole appeal cannot be argued at Review stage.

However points raised are replied as under:—

Penal provision of Section 25 (1)(2) cannot be availed until service of notice under Section 9 of L.A. Act is strictly complied failure to do so case falls under Section 25(3) of L.A. Act

1996 SCMR 1361 (a)/ 1365 to 1367(e) (i) 1985 SCMR 45 (ii) 1983 CLC 1879(a)

1. Appeal signed by unauthorised person

Even if the appeal is not signed (i) 1992 SCMR 2379 by authorized person, the Court (ii) PLD 1969 Kar. 566 should give chance to appellant to get it signed by authorized person and appellant cannot be non-suited.

to appreciate the manner in which the matter has been argued. I have gone through the case-laws submitted by both the sides and would like to make an observation that the arguments of the applicant and the case-laws relied on by him cannot be urged or taken up in a review application. The jurisdiction of the Court in review is restricted and limited as can be seen and appreciated after reading the provisions of review under the Civil Procedure Code while the grounds urged could have been taken into •consideration under the appellate jurisdiction but regretfully I cannot go beyond the scope of Section 114 and Order 47, Rule 1, C.P.C. Even this application cannot be taken into consideration as it is hopelessly barred by limitation. In parting it would be fair to observe that by staying the proceedings of execution the respondents have been at a distinctive advantage since this matter has been pending in the High Court alone for the last ten years. I, therefore, have no hesitancy in dismissing the review application.

(K.K.F.) Application dismissed

PLJ 1999 Karachi 375 (FB)

Present:wajihuddin ahmed, C.J., kamalmansur alam, mrs. majtoarazviandamanullahabbasi, JJ.

ASIF ALI ZARDARI-Petitioner

versus

FEDERATION OF PAKISTAN and others-Respondents

Constitutional Petition No. D-1574 of 1997, decided on 20.12.1997.

(i) Constitution of Pakistan (1973)--

—-Arts. 69(1)(2), 127, 248 & 199~Rules of Procedure and Conduct of Business in Senate, 1988, R. 72-A-Rules of Procedure of National Assembly of Pakistan, R. 90-Chairman of Senate upon hearing person elected who was an under trial prisoner, recorded a ruling to effect that person though elected but not having been administered oath of office as Senator was not a member of Senate and could not, within terms of Rule 72-A, Rules of Procedure and Conduct of Business in Senate, 1988 be summoned to House-Such finding and implicit ingredients were questioned through Constitutional petition—It is not each and every act of such officer or member, as is embraced by Article 69(2), inclusive of Chairman, that is protected-It is only an exercise of power, which has a nexus with regulating of procedure or conduct of business or maintaining of order in Parliament which is, thus, made immune, though subject to time honoured constraints-In other words, concept of internal proceedings also comes into play while construing extent or expanse of such powers and that, necessarily, is circumscribed by "formal transaction of business' concomitant to such internal proceedings—Besides, protection in clause (1) of Article 69 to which clause (2) also is subject, protects only "any irregularity of procedure' and obviously not a patent illegality-Summoning a member to a Session of a House of Parliament does not appear to be a matter, which pertains to regulation of procedure or conduct of business or maintenance of order in a House of Parliament and is, therefore, speaking strictly, beyond ambit of immunity, such immunity itself being subject to similar implications as in Article 248 of Constitution-Even so Courts, and in particular Superior Courts, where. such matters are usually agitated, should be careful in interfering with matters, which squarely fall within ambit of powers, exercised or exercisable in relation to internal affairs of a House of Parliament or other legislative Authorities in contemplation of Articles 69 and 127 of Constitution-This arises directly from doctrine of trichotomy of powers and consequential separation thereof, latter so well defined in Constitution of Pakistan-Bar of Article 69 does not apply to order of Chairman of Senate-Pursuant to a directive being issued under Rule 72-A or for matter of that Rule 90, to extent proceedings against an under trial prisoner are known, prisoner himself or even concerned Government may move for prisoner to be taken to relevant House of Parliament and, unless good reason subsist, relevant Court of law, where proceedings are taking place and in whose custody prisoner for time being happens to be, would not withhold requisite permission—If more Courts than one are involved and applying to all of them for requisite permission is cumbersome and has potential to defeat Rules 72-A and 90, as apprehended by Chairman, such a permission may be sought from High Court or High Courts concerned-In all such cases where a requisition issues under either of such rules, Government agency cannot oppose such a request from side of prisoner and in appropriate cases may even itself be obliged to apply for necessary permission-This is how all organs of State, namely, Legislature, Executive and Judiciary can pursue their activities with a view to compliment one another rather than one pulling in one direction and other in quite another-This has necessary reservations, because none has questioned vires of Rules 72-A and 90 and these rules, being conceded to be peculiar to Pakistan Parliament, can obviously invite challenge, though when and how belong to domain of pure speculation-Where said rules of procedure apply power to summon an under trial prisoner shall always remain a discretionary power of Authority (Chairman, etc.) in which it vests-Next, it is only when "necessary" that such a power can come to be exercised-Lastly, but no less importantly, in exercising such powers relevant functionary would, all time, ensure that in virtue of such an exercise proceedings in relevant Court of law are not unnecessarily delayed, let alone thwarted-These then are parameters within which powers under Rules 72-A and 90 to be exercised—There are no regulations corresponding to Rules 72-A and 90 at level of Provincial Legislatures—There pre-existing principles of law would continue to apply-Wherever word "person" in relevant context is used in Constitution, it is to be viewed not otherwise than contextually and nowhere does it emerge that word "person" is equivalent of a "member" who has duly taken oath-Irresistible conclusion, therefore, is that person till such time he takes oath is not a member of a House of Parliament, in this case Senate and Chairman was not in error in holding that to be so-Person has a right and where there is a right, there must be a remedy-High Court allowed Constitutional petition and required Provincial and Federal Governments to make arrangements to allow person to attend earliest Session of Senate of Pakistan~In so doing no further permission from concerned Court was necessary because that was already there and besides High Court had powers to grant necessary permission.

[Pp. 378 to 380, 385, 387, 388, & 391] A to H

(ii) Constitution of Pakistan, 1973-

—Art 199~Constitutional jurisdiction of High Court-It is only in exceptional cases that writs can issue pertaining to legislative bodies and such may be instances where there has been a clear violation of statutory law or when principles of natural justice have been violated or, perhaps, where there has been a mala fide discrimination against an individual to detriment of his rights-There may be other situations as well and it is impossible to define such matters with any exactitude. [P. 388] H

Mr. Iqbal Haider, Mr. Farooq H. Naek and Mr. Abu Dakar Zardari, Advocate for Petitioner.

Raja Qureshi, A.G. (Sindh) and Mr. Naimur Rehman, Dy. A.G. for Respondents.

Date of hearing: 20.12.1997.

judgment

Wajihuddin Ahmed, C.J.--The petitioner is a member of the Pakistan People's Party and was elected to the Senate of Pakistan on one of the general seats from the Province of Sindh, the election having been held on 12.3.1997 and notified on 17.3.1997. The petitioner, as to his credentials as a politician of some significance, states that he has also been a member of the National Assembly of Pakistan and a Federal Minister. Being the husband of the former Prime Minister and present Leader of the Opposition, Ms. Benazir Bhutto, it is claimed that the petitioner, who is interned and facing trials before the District and Sessions Judge, Karachi (South) and Special Judge (Anti-Corruption), Central n, is being mala fide denied the oath of office as Senator. On our query, it was revealed that the petitioner did not apply for bails in the two cases pending against him, one commonly known as the container case and the other the Murtaza Bhutto murder case. However, the petitioner has been seeking from the Chairman Senate under Rule 72-A of the Rules of Procedure and Conduct of Business in the Senate, 1988, to summon him for being administered the requisite oath of office. Correspondingly, the petitioner also applied to the two Courts, where he is facing trials, to grant him permissions for attending the Senate of Pakistan in order that he may be administered the referred oath. The Special Judge (Central) II, Karachi, the office held by Mr. Muhammad Afzal Khan, per order dated 8.4.1997, observed that it was "entirely for the Chairman Senate to decide as to whether it is imperative to call him at Islamabad for the said purpose specially when he has made such request also", whereas Mr. Akbar M. Memon, Sessions Judge, Karachi (South), vide order dated 10.4.1997, concluded that there was no harm if the petitioner was "summoned by the Chairman for the purpose and accordingly this Court has no objection if the accused is summoned provided the trial of this case is not disturbed". In so far as the Chairman of the Senate is concerned, he, upon hearing, recorded a ruling on 13.8.1997 to the effect that the petitioner not having been administered oath of office as Senator was not a member of the Senate and could not, within the terms of Rule 72-A aforesaid, be summoned to the House. Such finding and the implicit ingredients are questioned through this petition. It is urged on the factual plane that at no time whatsoever any person elected to an assembly or to the Senate of Pakistan has been denied his right to take oath as a member of such Assembly or as Senator and instances of the petitioner himself, Mir Murtaza Bhutto, Ch. Shujaat Hussain, Masroor Ahsan and Azam Tariq etc. are cited as precedents, claiming in the same breath that it was mala fides and mala fides alone which have operated to prevent the petitioner from exercising his rightful functions as a Member of Parliament

In the first place, an objection is taken that a petition of this kind is not maintainable inasmuch as proceedings of Parliament or a House thereof cannot be called in question in any Court Reliance is placed on Article 69 of

the Constitution, which runs thus:-

\69.~(1) The validity of any proceedings in Majlis-e-Shoora(Parliament) shall not be called in question on the ground of any irregularity of procedure.

(2) No officer or member of Mqjlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Majlis-e-Shoora (Parliament), shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.

(3) In this Article, Mqjlis-e-Shoora (Parliament) has the same meaning as in Article 66."

A similar argument pertaining to the corresponding provision in Article 111 of the then Constitution of 1962 came up for examination before the Supreme Court in Farzand Alt v. Province of West Pakistan PLD 1970 SC 98, where in relation to the concept of internal proceedings of an assembly, Hamoodur Rehman, C.J., observed that whatever was not "related to any "formal transaction of business" in the House cannot be said to be a part of its internal proceedings". The question, however, in this petition, though akin and allied to that decided in Farzand Ali's case, is slightly different. Here, in relation to clause (2) of Article 69 it is argued by the learned Advocate-General, Sindh, and the learned Deputy Attorney General that because pursuant to such clause the Chairman Senate is one such officer, as is in contemplation, he is not subject to the jurisdiction of any Court in respect of exercise of powers by him. The argument, however, overlooks that it is not each and every act of such officer or member, as is embraced by Article 69(2), inclusive of the Chairman, that is protected. It is only an exercise of power, which has a nexus with regulating of procedure or the conduct of business or maintaining of order in the Parliament which is, thus, made immune, though subject to time honoured constraints. In other words, the concept of internal proceedings also comes into play while construing the extent or expanse of such powers and that, necessarily is circumscribed by "formal transaction of business" concomitant to such internal proceedings. Besides, it is often overlooked that the protection in clause (1) of Article 69 to which clause (2) also is subject, protects only "any irregularity of procedure' and obviously not a patent illegality. Summoning a member to a session of a House of Parliament does not appear to us to be a matter, which pertains to the regulation of procedure or conduct of business or maintenance of order in a House of Parliament and is, therefore, speaking strictly, beyond the ambit of immunity, such immunity itself being subject to similar implications as in Article 248 of the Constitution. Even so Courts, and in particular the Superior Courts, where such matters are usually agitated, should be careful in interfering with matters, which squarely fall within the ambit of powers, exercised or exercisable in relation to internal affairs of a House of Parliament or other Legislative Authorities in contemplation of Articles 69 and 127 of the Constitution. This arises directly from the doctrine of trichotomy of powers and consequential separation thereof, the latter so well defined in the Constitution of Pakistan.

Having found that the bar of Article 69 does not apply to the order of the Chairman, we would now proceed to examine such order. The Chairman ays that because the petitioner is not a member of the Senate of Pakistan, lot having taken oath as such member, the Chairman is unable to summon lim in terms of Rule 72-A aforesaid. Rule 72-A is this:- , "72-A. Production of a member in custody for a sitting of the Senate or meeting of a Committee.--(l) The Chairman or Chairman of a Committee may summon a member in custody on the charge of any offence or under any law relating to preventive detention to attend a sitting or sittings of the Senate or meeting of Committee of which he is a member if he considers his presence necessary.

(2) On a Production Order, signed by the Secretary or by any other officer authorised by the Chairman in this behalf, addressed to the Federal Government or, as the tasa may oe, ihc Provincial Government where the member is held in custody, or to authority having or holding custody of the member, the Federal Government or the Provincial Government or such other authority shall cause the member in custody to be produced before the Sergeant-at-Arms who shall, after thi conclusion of the sitting or the meeting, deliver the meuiuer into the custody of the Federal Government or the Provincial Government or other authority, as the case may be."

The cited rule was inserted in the rules on 10.5.1994. Such was in line with Rule 90 in the Rules of Procedure of the National Assembly of Pakistan which itself had been inserted in those rules some two years prior to Rule 72-A ibid. Rule 90 is reproduced below:-

"90. Production of a member in custody for a sitting of the Assembly or meeting of a Committee.-(l) The Speaker or Chairman of a Committee may summon a member in custody on the charge of a non-bailable offence to attend a sitting or sittings of the Assembly or meeting of a Committee of which he is a member; if he considers bis presence necessary.

(2) On a Production Order, signed by the Secretary-General or by any other officer authorised in this behalf, addressed to the Government of the Province where the member is held in custody, or to the authority concerned, the Provincial Government or such authority shall cause the member in custody to be produced before the Sergeant-at-Arms, who shall, after the conclusion of the sitting or the meeting, deliver the member into the custody of the Provincial Government or other authority concerned."

Rule 90 had a background and that had a nexus with the petitioner himself, who was elected to the National Assembly of Pakistan from NA-189, Liyari, Karachi. Much the same way as now, being then interned for a non-bailable offence, he could not be administered oath as an M.N.A. However, according to the Advocate-General, he applied to the Special Court, then presided over by late Justice (Retd.) Fakhruddin H. Shaikh, where the application was not opposed, permission was granted and arrangements were made, leading to the petitioner being taken to the National Assembly and administered oath of office there. Difficulties then yet arose regarding the petitioner's continued attendance in the proceedings of the House. He preferred a Constitutional petition in this Court, which came up before a Full Bench comprising of three Judges and the decision is reported as Asif All Zardari v. Special Judge PLD 1992 Kar. 430. The learned Judges of the Court denied relief in the petition on the ground that neither Articles 65 and 66 of the Constitution nor Section 135-A of the Code of Civil Procedure conferred any privilege on a member if in custody in a pending criminal trial, to attend sessions of a House of Parliament. However, an observation was made in the report that there was nothing in law to prohibit the Provincial Government from making arrangements for the petitioner, who was an under trial prisoner, to attend the session of the National Assembly. As a sequence, on 5.8.1992, Rule 90 was incorporated in the Rules of Procedure of the National Assembly of Pakistan, as reproduced above, which, as seen, was followed by the insertion of Rule 72-A in the Rules of Procedure and Conduct of Business in the Senate, 1988 and that came about on 10.5.1994.

An interesting development, relevant to rule 72-A, followed regarding the matter of then Senator Chaudhry Shujaat Hussain, who, facing a criminal trial was required to be produced by the Senate Chairman. The People's Party Government expressed its inability to produce him, saying that he was in custody of the Court and that it was beyond the scope of its powers to bypass the jurisdiction of the Court and comply with the ruling of the Chairman. The Chairman examined the issue and recorded the reasons for his order relative to the session, commencing 17.11.1994, on 22.2.1995. Applicable observations are reproduced below: -

".................... I asked the Law Minister as to which Court would be deemed to have custody if let us say 20 cases were pending against them before different Magistrates. Could it be said that in any such situation the custody stood divided between different Courts? The Law Minister could not give a satisfactory answer to this question.

1. I also asked the Law Minister that if his arguments were to be accepted, how would he explain the fact that even a Police Officer has been given the power to grant bail under Section 497(ii), Cr.P.C. Under Section 167, Cr.P.C., the Magistrate has been empowered to , remand the accused to such custody as he may deem fit. Does it not mean that the Court controls the custody of an accused person but the physical custody is handed over to whichever authority the Court may deem fit in the circumstances of the case?

2. The law Minister relied on the case of Mr. Asif All Zardari, PLD 1992 Karachi page 430 in support of his arguments."

Commenting on the referred Full Bench case of this Court, the Chairman recorded:--

"18. The High Court, therefore, was quite clear that even in the situation which existed prior to the incorporation of Rule 90 in the Rules of Procedure of National Assembly although a member did not have the privilege to attend a session of the National Assembly, nevertheless there was no law which barred the Government from producing him before the Assembly if it proposed to do so. In these circumstances Rule 90 of the Rules of Procedure of the National Assembly and Rule 72-A of the Rules of Procedure of the Senate acquire meaning and substance. The Chairman and the Speaker have the power under the rules to direct the Government to produce an under trial prisoner before the House to attend its sessions. The High Court has made it clear that there is no law which prohibits the Government from doing so. As pointed out by Senator Aftab Ahmed Sheikh and Senator Anwar Bhinder, Rule 31 of the Rules of Business of the Federal Government place an obligation on the Federal Government to comply with the Rules of Procedure and standing orders of the Assembly, the Senate or the Joint Sitting. Accordingly, the Government is bound under the Constitution and the law to carry into effect and implement directions of the Chairman and the Speaker issued under the rules framed by the respective houses

1. The Law Minister argued that the power exercised by the Chairman is in conflict with the jurisdiction conferred on Courts of law as the custody of an accused person is with a Court of law. After going through the provisions of the Criminal Procedure Code it appears that the power conferred on the Chairman or the Speaker does not in any way come into conflict with the power of Courts of law. This House has always had the highest respect for the judiciary. This respect is reflected in the Rules of Procedure of the House. For example, as a general principal discussion on matters which are sub judice before Courts is avoided in the House. Rule 200(3)(c) stipulates that a member while speaking shall not discuss the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. Various organs of the State are to operate independently under the provisions of a written Constitution. Whereas one organ of State may be give in powers to check the illegal acts of another organ of State, interference in the normal functioning of each is avoided by the other. Each one is allotted its own sphere of jurisdiction. Under the Rules of Procedure of the House and specially after the incorporation of Rule 72-A. it becomes necessary to bring the members together to complete the House after it has been summoned by \ie President under Article 54(1). The same is the position if the Chairman Senate summons the House on requisition signed by at least one-fourth of the total membership under Article 54(3) of the Constitution. The Chairman Senate has not been given power to release a member from custody nor is there any intention to do so. When a member is summoned to attend a session of the Senate in pursuance of Rule 72-A, he comes in custody, remains in custody and is delivered back into the custody from which the member was received, after the sitting of the House is concluded. At best, it can be said that the case is one of temporary transfer of custody from one authority to another, to comply with the direction given by the Chairman under a Rule made by the Senate pursuant to the Constitutional power to make rules vested by Article 67 of the Constitution. It may be emphasized that exercise of power under Rule 72-A enables the Senate to discharge its role as an integral part of Pakistan's Legislature by ensuring members in custody to attend sittings of the Senate, a Constitutional function. By complying with the direction under Rule 72-A, the Government did not impinge upon any judicial power or effect the Courts' control on custody of an accused." (Emphasis supplied).

Adding the following the Chairman concluded:-

"................... Even before Rule 72-A was incorporated, there was nothing to prevent a member from moving an application before an appropriate Court and get permission from the Court. There are examples where this practice has been followed in the past. The rule made a change. It was intended to facilitate the members to perform their duties without going through the procedures of getting permission from the Court. The rule was also intended to assert the sovereignty and independence of Parliament:

"26. In a parliamentary form of Government, the Government derives its validity and authority from the Parliament and more specifically from the National Assembly. At all times the Government must submit to Parliament. The Government is answerable and accountable to Parliament. Under our Constitution sovereignty over the entire universe belongs to Almighty Allah. This sovereignly is to be exercised by the people of Pakistan through their chosen representatives within the limits prescribed by Allah. Therefore, for all practical purposes, Parliament is the sovereign authority subject to ultimate sovereignty of Almighty Allah. It would not be proper or Constitutional to defy the authority of Parliament. Such actions undermine the sovereignty of Parliament and the Rule of law. The Federal Government may have had some doubts about the validity and import of Rule 72-A. The Chairman and in the case of National Assembly, the Speaker, have the ultimate responsibility to interpret the Rules and their interpretation is binding and final. The Presiding Officers are not subject to the jurisdiction of any Court in the exercise of these powers

(Article 69(2)). I do hope that after this detailed judgment, the Federal Government would have no hesitation in - complying with my orders passed validly under the Constitution and the Rules of Procedure of the House. All doubts should now stand removed. In my opinion, theFederal Government has a duty under Rule 72-A to produce an accused person before the House in compliance with the orders of the Chairman. I had passed a short order in this case on 26.11.1994. This Ruling gives the detailed reasons. The short order should also be read as part of this ruling." We have little cavil with the reproduced conclusions of the hairman. However, we would like to draw upon the observations of the Supreme Court of Pakistan pertaining to the enforceability and indeed viresof Sections 3 and 4 of the Members of National Assembly (Exemption from reventive Detention and Personal Appearance) Ordinance, 1963, on the touchstone of repugnancy or otherwise to the Injunctions of Islam. Thus in Federation of Pakistan v. Public-at-Large PLD 1991 SC 459, the apex Court concluded that the privilege conferred by those sections on the members of the National Assembly negated the concept of equality of citizens before law and, therefore, it was imperative to bring the same to conform to the Injunctions of Islam. The judgment of the Federal Shariat Court in appeal was upheld and a directive was issued for carrying out the necessary amendments by 30.6.1991, failing which the said provisions were postulated to cease to have effect. The applicable observation highlighting the practice in Courts is as follows:- I

"We do not find any force in these submissions because we can take judicial notice of the fact that whenever an Hon'ble member of the National Assembly is busy attending a session of the House, theCourts, on being apprised of this fact, invariably grant him accommodation and do not prevent him from discharging his duties

as such Member and the argument that his obligations to national interest deserve preference over individual interests is more theoretical than real. The privilege conferred on Members by Sections 3 and 4 of the Ordinance appears to be designed, in point of fact, from making it almost impossible to obtain justice against him. if he is arrayed as a party before Court so long as he continues to be a Member of the National Assembly. This results in negation of the --- concept of equality of citizens before law in the Islamic Republic of Pakistan. The Verses of the He!;- Qur'aa and the Ahadith of the Holy Prophet cited in the judgment of the Federal Shariat Court clearly establish that the provisions relating to exemption of Members of the National Assembly from appearance before the Courts and the provisions for the stay of proceedings of these Courts for the whole period when the Assembly is in Session and for a period of 14 days before and 14 days after Session are manifestly repugnant to the Injunctions of Islam. Accordingly, they require amendment with a view to bringing them in accord with the Injunctions of Islam." (Underlining added).

In this background, it is manifest that pursuant to a directive being issued under Rule 72-A or for the matter of that Rule 90, to the extent the proceedings against an under trial prisoner are known, the prisoner himself or even the concerned Government may move for the prisoner to be taken to the relevant House of Parliament and, unless good reasons subsist, the relevant Court of law, where the proceedings are taking place and in whose custody the prisoner for the time being happens to be, would not withhold the requisite permission. If more Courts than one are involved and applying to all of them for the requisite permission is cumbersome and has the potential to defeat Rules 72-A and 90, as apprehended by the Chairman, such a permission may be sought from the High Court or the High Courts concerned. In all such cases where a requisition issues under either.of such rules, the Government agency cannot oppose such a request from the side of the prisoner and in appropriate cases may even itself be obliged to apply for the necessary permission. This is how all the organs of the State, namely, The Legislature, the Executive and the Judiciary can pursue their activities with a view to compliment one another rather than one pulling in one direction and the other in quite another. This we say with necessary reservations, because none has questioned the vires of Rules 72-A and 90 before us and these rules, being conceded to be peculiar to the Pakistan Parliament, can obviously invite challenge, though when and how belong to the domain of pure speculation.

Here, it may also be pointed out that where the said Rules of Procedure apply the power to summon an undertrial prisoner shall always remain a discretionary power of the Authority (Chairman, Speaker and the like) in which it vests. Next, it is only when "necessary" that such a power can come to be exercised. Lastly, but no less importantly, in exercising such powers the relevant functionary would, all the time ensure that in virtue of such an exercise the proceedings in the relevant Court of law are not unnecessarily delayed, let alone thwarted. These then are the parameters within which the powers under the referred Rules 72-A and 90 are to be exercised.

We may also note here that, as canvassed before us, there are no regulations corresponding to Rules 72-A and 90 at the level of Provincial Legislatures. There the pre-existing principles of law would continue to apply, as held in AsifAli Zardari v. Special Judge PLD 1992 Kar. 430.

Reverting, upon invocation of Articles 64 and 65, it has been argued that the words "a person elected to a House' in Article 65 are the equivalent of a member and Rules 72-A and 90 furnish sufficient warrant for him to be taken to the concerned House and administered oath. Articles 64 and 65 in

the Constitution of 1973 are these:--

"64.--(l) A member of Mqjlis-e-Shoora(Parliament) may, by writing under his hand addressed to the Speaker or, as the case may be, the Chairman resign his seat, and thereupon his seat shall become vacant.

(2) A House may declare that seat of a member vacant if, without leave to the House, he remains absent for forty consecutive days of its sittings.

1. A person elected to a House shall not sit or vote until he has made before the House oath in the form set out in the Third Schedule." (Underlining added).

Prior to these Constitutional dispensations corresponding provisions in the 1956 and 1962 Constitutions were Articles 47 and 48 and Articles 106 and 107 respectively, which are also reproduced hereunder:-

1956 CONSTITUTION

"47. If a member of the National Assembly is absent from the Assembly, without leave of the Assembly, for sixty consecutr .-; sitting days, his seat shall become vacant.

1. If a member of the National Assembly fails to make and subscribe an oath or affirmation in accordance with the provisions of the Constitution within period of six months from the date of the first meeting of the Assembly after his election, his seat shall become vacant:

Provided that the Speaker may, before the expiration of the said period, for good cause shown, extend the period." (Underlining added).

1962 CONSTITUTION

"106.-(D A person elected as a member of an Assembly shall not take his seat in the Assembly until he makes before such person as is prescribed by Rules of the Assembly an oath in such form set out in the First Schedule as is applicable to a member of the Assembly.

(2) The oath may be made at any time, whether or not the Assembly is in session."

1. The seat of a member of an Assembly shall become vacant if-

(a) he resigns his seat by notice in writing under his handC ddressed to the Speaker of the Assembly;

(b) he is absent from the Assembly without the leave to the Assembly for thirty consecutive sitting days of the Assembly;

(c) he fails to make the oath referred to in Article 106 within a period of ninety days after the date of his election, unless the Speaker of the Assembly for good cause shown extends the period; or

(d) he ceases to be a member of the Assembly under any provision of this Constitution or under any law." (Emphasis added).

It would at once be seen that Article 65 is a departure from the earlier provisions in the Constitutions of 1956 and 1962. The Constitution of 1956 made no distinction between a member and a member-elect In the Constitution of 1962 while a distinction was made in Article 106 between a "person elected as a member" and a member subscribing to the prescribed oath thai distinction disappeared when it came to be provided by Article 107 that such a person elected as member would lose his seat if he is in terms of Article 1070 failed to make the requisite oath. Note also that Article 106 ibid, employs the expression "A person elected as a member" whereas Article 65 of the present Constitution uses a distinct and apparently deliberate phrase "A person elected to a House", implying that such a person is not a member till he makes the oath in the form set out Thus, in the former successive Constitutional instruments it was a member who could cease to hold office as such member if he failed to make and subscribe an oath or affirmation or who even before the taking of such oath had resigned his seat (1962 Constitution). That is no longer the case under the present Constitutional dispensation. Needless to add that the Legislature is presumed to know the earlier legislation on the subject it is legislating and if it chooses to use different language, such cannot be without meaning and import. Indeed we pointed out to the learned counsel that under the Constitutional scheme a President elect is not the President of Pakistan unless he makes the oath of office, much as a Judge appointed to a superior Court is not such Judge till he enters the oath of his office. The Constitution makes a like distinction between a person elected and a member of House.

The departure in the Constitution of 1973 does not end here. In the first place, no time-frame has been fixed for a member to take his oath before the relevant House and no one loses his seat merely because he allows time to go-by. He only deprives his electorate of representation. His tenure, of course, commences with the tenure of the House and a lapse on his part to take a timely oath would reduce such tenure to the extent that corresponds to the tenure of the House or of the period for which he has been elected in the case of a Senator or in a bye-election. Another result is that because he is only a person elected arid not a member his seat cannot fall vacant even though, not having taken due oath, he remains absent for 40 consecutive days of the sittings of the relevant House as postulated. Indeed, if the argument of the petitioner's counsel were to be accepted and the petitioner was not merely a person elected to the Senate but a member thereof, the petitioner by now, probably, would have lost his seat in the Senate if 40 consecutive days of the Senate sittings had already taken place, which perhaps is the position on the ground. May it also be noted here that , whereas the relevant Articles in the 1956 and 1962 Constitutions used the word "fails", regarding non-taking of oath and vacation of the relevant seat, n course of time, Article 64 of the present Constitution, correspondingly speaks of his remaining "absent" as a member for forty connective days of sittings. The word "fail" is stronger and may not include an involuntary default whereas the word "absence" is weaker and may cover even absence generated for reasons not of one's own making. Mere absence of a member ; may, therefore, suffice and lead to loss of seat under Article 64 whereas i under the precursor Constitutions an element of volition was necessary before loss of the seat came about An effort was made to show that if thei expressions "person" and "member", as used in other Articles of the onstitution and notably in Articles 49, 51, 53, 59, 60, 61, 65, 106, 223, 260,271,272 and 273, etc.. are examined, a clear impression is gathered that the ord "person" has the same connotation as a member or holder of other office in the contemplation of the Constitution of Pakistan. The argument has been closely examined. Wherever the word "person" in the relevant ontext is used in the Constitution, it is to be viewed not otherwise than contextually and nowhere does it emerge that the word "person" is the {equivalent of a "member" who has duly taken oath. The irresistible conclusion, therefore, is that the petitioner till such time he takes oath is not member of a House of Parliament, in this case the Senate and the Chairman was not in error in holding that to be so.

The next question which is thus thrown up is whether the petitioner who, apparently, is a lawfully elected candidate for the upper House of the 1 Parliament can be precluded to take oath merely because the petitioner I happens to be under certain indictments and facing trials. The learned i Deputy Attorney-General has referred us to three judgments from the ; Indian jurisdiction on the point. Such are Re: Anandan AIR 1952 Madras \ 117, Raj Narain v. Atmaram 1954 Allahabad 319 and Kunjan Nadar v. The i State AIR 1955 TC 154. In the first of these cases, it has been observed and ' quite correctly that it is only in exceptional cases that writs can issue : pertaining to Legislative bodies and such may be instances where there has been a clear violation of statutory law or when principles of natural justice have been violated or, perhaps, where there has been a mala fide r : discrimination against an individual to the detriment of his rights. There may be other situations as well and it has correctly been said that it is impossible to define such matters with an exactitude. The second case ! pertains substantially to internal proceedings in legislative bodies and the rights and privileges incidental thereto. In the third case, the implications of a criminal trial and the far-reaching effects thereof on the continuity of the i petitioner's seat in a Provincial Legislative Assembly were considered and j apparently the learned Deputy Attorney-General relies on the following passages:--

"The argument was that the petitioner stands in real danger of his scat being declared vacant by the House if he is not allowed to attend the next session of the Legislative Assembly, that by his non-attendance he will also be losing the allowance of Rs. 10 per day and that his valuable rights should be safeguarded by an appropriate writ or direction from this Court So long as the detention is legal--and in this case there is no dispute about its legality—the danger of the petitioner losing his seat or the certainty of his losing his daily allowance cannot possibly form the foundation for relief against the normal or probable consequences of that detention."

Such matters as above in so far as our Parliament is concerned have now been taken care of by Rules 72-A and 90 herein referred. Besides, on the basis of what has already been stated, the petitioner as consequence of his continued trial and absence from the House is not likely to be effected because he is not yet a member of the Senate of Pakistan. Even so, the fact remains that in other jurisdictions, if a person is facing a criminal trial and happens to be interned as a corollary thereof, there is no right vesting in him to be taken to the legislative body of which he be a member, irrespective of such trial and consequent internment The above rules are a departure and a peculiarity of Pakistan, right or wrong we have not been called upon to determine.

Reverting, it still remains to be seen whether the petitioner does not have a right to be administered the requisite oath of his office. It has not been disputed that previously no member of a legislative body in Pakistan has been denied the claimed right of being taken to the relevant assembly and administered the necessary oath or affirmation. It is, however, disputed that there is a right to be administered such oath and a greater cavil is taken to the fact that the petitioner never applied to the Federal or the Provincial Governments for the needful to be done. To this, Mr. Iqbal Haider, the petitioner's learned counsel, has replied by saying that the manner in which the request was opposed in the Senate by the Federal Law Minister and the Attorney-General for Pakistan,, left no room for doubt that such a request, if made to the Executive, would bear no fruit

It is hardly open to question that the petitioner, through the Provincial Assembly electoral college, represents a substantial segment of the electorate and if the petitioner is not administered the relevant oath of office as Senator that segment of the electorate would stand deprived of due representation in the upper House of the Parliament Such is the right of the electorate and such is also a right of the petitioner. Indeed, the Constitution recognizes the same to be also a right of the political party on whose ticket a candidate is returned to a legislative body. The following observation from the judgment of Ajmal Mian, J., in Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473, (673-4) may some relevance:-

"16. I am inclined to hold that the right to form a political party and to be a member of a political party enshrined in clause (2) of Article 17 does not culminate upon winning of the elections as was contended by the learned Attorney-General and Mr. S.M. Zafar but it is a continuous political process which includes the right of the petitioner to remain as a memher of the National Assembly or as a Prime Minister till the time the lifeof the Assembly or the tenure of the Prime Ministership is terminated lawfully in accordance with the provisions of the Constitution. It is true that nobody can claim any vested right to remain a Member of the National Assembly or to be a Prime Minister for the period of five years that an M.N.A. or a Prime Minister can claim that he should be allowed to function so long as the life of the Assembly or his tenure is not terminated in accordance with the provisions of the Constitution. Any infraction of the above right without legal basis will inter alia attract Article 17(2) of the Constitution besides being violative of the relevant Constitutional or statutory provision. Since the majority, including me, has held that the impugned order of 18th April, 1993, does not fall within the ambit of Article 58(2)0)) of the Constitution, the termination of the life of the Assembly and the tenure of the petitioner as the Prime Minister besides being violative of the above provision of the Constitution will also attract Article 17(2) of the Constitution, as admittedly the petitioner was the leader of a political party which commanded the majority in the National Assembly."

It is implicitly conceded when the respondents say that the petitioner is only a member-elect that the relevant part of the electorate is not represented in the Senate so long as the petitioner is not administered the oath under reference. This, therefore, is a right which calls for enforcement. It cannot be enforced by the Chairman because he has correctly held the petitioner, at the present time, to be a non-member. The only alternative was for the petitioner to move the relevant Government, something which the petitioner refrained from doing in circumstances that do not admit of much controversy. In all probability even if approached, the Federal and the Provincial Governments would have declined the overture. The concerned Courts, as approved by the dicta in Federation of Pakistan v. Public-at-Large (ibid) have already accommodated the petitioner to go and attend a session of the Senate provided that the proceedings in the relevant cases are not impeded. It is in these circumstances that the petitioner seeks relief in the petition. It will be unjust and indeed unlawful to deny relief to the petitioner. Here is not a case of a member, already inducted, being precluded from attending to his functions as such member on account of his internment. On the contrary, involved in these proceedings is a right to represent his constituency, which is being denied to the petitioner. It is a right which the Courts will enforce so long as democracy prevails in this country. Indeed, we posed a question to the learned Advocate-General, Sindh and the Deputy Attorney-General for Pakistan as to what would have happened and as to whether relief would still have been resisted if, at a given time, the party in power held elections, framed questionable cases against those who were elected on the platforms of their adversary parties, interned them and denied them oaths of their offices and thus conjured up a majority to continue in power. Would the affectees have no relief even in such an extreme scenario? They were unable to answer this question.

Having examining the controversy from every possible angle, it is manifest that the petitioner has a right and where there is a right, there must be a remedy. We would, therefore, allow this Constitutional petition and require the Provincial and the Federal Governments to make arrangements to allow the petitioner to attend the earliest session of the Senate of Pakistan. In so doing no further permission from the concerned Courts is necessary because that is already there and besides sitting in the High Court we exercise our own powers in granting the necessary permission.

Petition allowed. (K.K.F.) Petition allowed.

PLJ 1999 Karachi 391 (DB)

Present: rana bhagwan das and GHULAM nabi soomro, JJ. MUHAMMAD SHAFIQ and others-Petitioners

versus

TOWN COMMITTEE, DIGRI and others-Respondents

Constitutional Petitions Nos. D-3264 of 1993 and D-408 of 1994, decided on 14.10.1998.

(i) Constitution of Pakistan (1973)-

—Art. 25-Doctrine of equality before law and equal protection of law was anchor sheet of Constitution and it prescribed in unequivocal terms that every citizens of State was to be equally treated and was to enjoy equal protection of law-Equal protection theory had prevented discriminate treatment of individuals or a group of individuals at the expense of other individuals or class of people similarly situated—Even handed fair treatment to every citizen was ordained by Constitution. [P. 396] B

(ii) West Pakistan Municipal Committees Octroi Rules, 1964-

—R. 46-Constitution of Pakistan (1973) Arts. 18, 25 & 199-Octroi-Charging of on ad valorem basis-Challenge to~Provisions of R. 46 of West Pakistan Municipal Committees Octroi Rules, 1964, enjoined upon Town Committee to calculate octroi on gross weight of consignement— Respondent Town Committee could not state as to under what authority it was burdening citizens of concerned locality with assessment of octroi on basis of valuation of goods instead of weight thereof as required by statute especially when in two adjoining Town Committees octroi was being charged on basis of weight of goods—By reason of excessive levy of octroi on most of consumable goods petitioners had been deprived of their right to freedom of trade, business or profession as guaranteed under Art 18 of Constitution—Respondent Town Committee and concerned Authorities were directed to revise octroi schedule in consonance with R. 46 of West Pakistan Municipal Committees Octroi Rules, 1964.

[Pp. 395, 396 & 398] A, C & D

Mr. MM. Aqil Awan, Advocate for Petitioner.

Mr. Ghulam Hussain Abbasi, Advocate for Respondent No. 1.

Mr. Muneeb Ahmed Khan, Add. A.G. Sindh for Respondent No. 2.

Nemo for Respondent No. 4

Date of hearing: 7.10.1998.

judgment

Rana Bhagwan Das, J.--This judgment shall dispose of aforesaid

two petitions calling into question the validity of octroi schedule prescribed by Town Committee, Digri notified in the Sindh Government Gazette dated June 7, 1980 whereby octroi within the limits of the Town Committee on a number of goods is being charged on ad valorem basis and not on the basis of weight unlike the octroi rates being charged within the limits of Town Committee, Tando Ghulam Ali and Municipal Committee, Mirpurkhas.

1. Petitioners are the businessman engaged in different kind of business including electronic goods, iron merchandise, leather articles, auto parts, general store, Kiryana etc. In Petition No. 3264 of 1993, the relief prayed is that Town Committee, Digri be directed to revise octroi schedule and prepare it on the basis of weight as required by West Pakistan Municipal Committee. Octroi Rules, 1964 (hereinafter referred to as Octroi Rules). It is the case of the petitioners that businessmen and shopkeepers of Digiri had expressed their resentment and protest against the octroi schedule leading to a complete strike for five days in the month of July, 1979 resulting in unlawful arrest and wrongful detention by the local administration, of about 17 persons for about 11 days, which was highlighted in local press.

2. Petitioners as well as other citizens also made a number of representations from time to time to higher authorities including the Chief Minister, Sindh and Federal Minister for Production whereupon Minister, Local Government in the Government of Sindh responded to their grievances and made a direction to the respondent Town Committee to revise the octroi schedule and bring it at par with the octroi schedule of Municipal Committee, Mirpurkhas with immediate effect and to issue necessary notification in this behalf. Such directive conveyed to the respondent Town Committee, vide letter dated 16.10.1993 however was not implemented and instead a collusive Suit No. 279 of 1993 was filed by the octroi contractor namely M/s. Bismillah & Company against the Town Committee as well as Province of Sindh before the Court of Senior Civil Judge, Mirpurkhas in which an interim order maintaining status quo was granted on 23.10.1993. Later on the direction given by the Minister was withdrawn as conveyed by the Local Government Department to the respondent Town Committee vide letter dated 24.11.1993 with the consequence that the suit before the Civil Court was withdrawn. On account of this development during the pendency of C.P. No. 3264 of 1993 petitioners were obliged to file C.P. No. 408 of 1994 calling into question the order dated 24.11.1993 as void ab initio, illegal, without jurisdiction and to have been passed without lawful authority. In the subsequent petition prayer is that the earlier order dated 16.10.1993 passed by the Minister, Local Government, Government of Sindh be restored and Town Committee be directed to act accordingly in consonance with Rule 46 of the Octroi Rules.

3. In both the petitions, respondent Town Committee filed parawise comments justifying the validity of the octroi schedule and denying the violation of any provision of law. Non-implementation of the directive by the Minister was attributed to the suit filed by the contractor»and the order for maintenance of status quo passed by the Civil Court followed by withdrawal of the directive of the Minister.

4. In earlier Constitutional petition parawise comments were filed on behalf of Government of Sindh purportedly by a Section Officer in the Local Government department expressing lack of concern but admitting the directive issued by the Minister for Local Government requiring Respondent No. 1 to revise the octroi schedule and to bring it at par with that of Municipal Committee, Mirpurkhas. Essentially it was made to appear that it as a dispute between the petitioners and Town Committee, Digit

No comments at all were, however, submitted in C.P. No. 408 of 1994 on behalf of the Government of Sindh, despite sufficient time.

1. At the hearing Mr. M.M. Aqil Awan, learned counsel for the petitioners referred us to the copies of representations made by the petitioners and other shopkeepers against the introduction of octroi on ad valorem basis and press clippings highlighting grievances of the citizens of Town Committee against unjust, excessive and illegal levy of cotroi. Learned counsel also referred to us the octroi schedule introduced by Town Committee, Tando Ghulam Ali a town situated about 14 miles away from Digri and the octroi schedule enforced by Municipal Committee, Mirrpurkhas situated about 27 miles away from Digri. Admittedly both the local councils are collecting octroi on the basis of weight except for charcoal, coal, gas sylenders, electricity, lubricants, sewing machine, knitting machine, typewriter, electronic goods and cattle etc. which are subjected to levy of octroi on the basis of per unit or per bag as the case may be.

2. Learned counsel was at pains to refer to Rule 46 of the Octroi Rules which reads as under:-

"46. Octroi on goods other than those imported by Sea shall be calculated on the gross weight of the consignment including packing and other containers; provided that where the containers outweigh the principal goods, or are to be used frequently, the Municipal Committee may, with the approval of the Controlling Authority, determine the standard weight on the basis of which such goods or containers shall be taxed."

Main grievance of the petitioners is that Town Committee, Digri has been charging octroi on a large number of goods in violation of Rule 46 of the Octroi Rules and thereby violating fundamental rights of the petitioners and other citizens of Town Committee, Digri as envisaged by Articles 18 and 25 of the Constitution. It would be pertinent to reproduce both Articles hereunder:-

"18. Freedom of trade, business or />ro/esszo/t.--Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:

Provided that nothing in this Article shall prevent—

(a) the regulation of any trade or profession by licensing system; or

(b) the regulation of trade, commerce or industry in the interest of free competition therein; or

(c) the carrying on, by the Federal Government or a Provincial Government, or by a Corporation controlled by any such Government, of any trade business, industry or service, to the exclusion complete or partial of other persons.

1. Equality of citizens.--(l) All citizens are equal before law and are entitled to equal protection of law.

(2) There shall be no discrimination on the basis of sex alone.

(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children".

1. It is further contended that the respondent Government of Sindh having realized the gravity of the situation and reasonableness of the petitioner's demand had conceded to their representations videorder dated 16.10.1993 passed under Section 62(l)(b) of the Sindh Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance) which was not implemented by the Town Committee who sabotaged it in collusion with the contractor by resorting to luxury of uncalled for litigation and obtaining an order of status quofrom the Civil Court Learned counsel submitted that subsequent withdrawal of the directive through letter dated 24.11.1993 by the Government of Sindh was wholly unwarranted and without lawful authority inasmuch as no opportunity of showing cause against contemplated withdrawal was afforded to the petitioners/citizens.

2. On the other hand, learned counsel for the respondent Town Committee vehemently urged that the petitioners and for that matter every citizen aggrieved by assessment of octroi on any goods or the liability of the goods could make an appeal to Taxation Officer under Rule 48 in accordance with the provisions of Chapter XXVIII of the Octroi Rules which having not been availed of, the petitioners have no locus standi to maintain the petition. Learned counsel impugned the directive by the Minister, Local Government requiring the respondent Town Committee to revise the octroi schedule and to bring it at par with that of Municipal Committee, Mirpurkhas. Mr. G.H. Abbasi, also contended that under Rule 19 of the Rules of Business, 1973 framed by the Provincial Government in exercise of the powers conferred under Article 139 of the Constitution, a Provincial Minister though responsible for all matters relating to his department was not competent to issue the directive to the respondent Town Committee without the approval of the Chief Minister. According to the learned counsel Rule 46 of the Octroi Rules is not a self-operative provision of law but subject to Rule 48 of the Octroi Rules. Learned counsel vehemently urged that the octroi schedule being invariably subject to approval by the Provincial Government which is empowered to supervise and control the Local Councils, issue directions to such Councils, to carry out inspection through an Inspection Team and to enquire into the affairs of the councils, under the provisions of Sections 53, 54 and 56 of the Ordinance, it is not open to this Court to issue a writ of mandamus to the local council as well as the Provincial Government to revise the octroi schedule as arithmetical calculations and mathematical computations cannot form the subject-matter for exercise of Constitutional jurisdiction by this Court.

3. On his part, learned Additional Advocate-General representing the Provincial Government adopted an attitude of lack of concern for the reason that the dispute involved in the petitions essentially is between the petitioners and the respondent Town Committee and that the Provincial Government is not directly concerned with it. He, however, supported the directive issued by the Minister, Local Government directing the revision of octroi schedule issued with lawful authority but later on withdrawn by the Government.

4. Adverting to the first contention raised by the learned counsel for the petitioners it may be observed that Rule 46 of the Octroi Rules enjoins upon the Town Committee to calculate the octroi on the gross weight of the consignment including packing and other containers. The only exception to rule envisaged under the law is to the effect that where the containers outweigh the principal goods, the Municipal Committee may with the approval of the Controlling Authority, determine the standard weight on the basis whereof such goods or containers shall be taxed. This rule is, however, not attracted in case of goods imported by sea and the goods carried in bulk at wagon rates. In the case of goods carried in bulk at wagon rates the octroi shall be charged on the weight for charge shown in the Railway receipt as contemplated by Rule 47 of the Octroi Rules. While learned counsel for the petitioners is right in seeking to enforce the provisions of Octroi Rules relating to assessment and collection of octroi which have the force of law being statutory Rules as laid down in Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362, learned counsel for the contesting respondent was not in a position to convince us as to under what authority the respondent Town Committee was authorised to burden the citizens of Digri with assessment of octroi on the basis of valuation of goods instead of weight thereof as required by statute. The fact that within the octroi limits of Town Committee, Tando Ghulam Ali and Municipal Committee, Mirpurkhas octroi is being charged on the basis of weight with a few exceptions is beyond the pale of any controversy. It is also not disputed that both these Towns are situated in the close vicinity of Town Committee. Digri. To our mind, by reason of excessive levy of octroi on most of the consumable goods, petitioners are deprived of their right to freedom of trade, business or profession as guaranteed under Article 18 of the Constitution. Likewise by charging octroi from the citizens of Digri in a manner unfavourable to them as compared to the persons residing in the towns situated in the close vicinity, seemingly they appear to be deprived of their right to be treated equally and equal protection of law as envisaged by Article 25 of the Constitution.

5. Indeed, the doctrine of equality before the law and equal protection is the anchor sheet of the Constitution and it prescribes in unequivocal terms that every citizen of the State is to be equally treated and is to enjoy equal protection of law. Equal protection theory prevents discriminate treatment of individual or a group of individuals at the expense of other individuals or class of the people similarly situated. Even hand fair treatment to every citizen is ordained by the Constitution. In fact the rights guarantee by the Constitution are presently applied throughout the universe and practised in the civilized world. Such rights are recognized in Universal Declaration of Human Rights and the Covenant on Human Rights, 1950. Such rights do provide in unequivocal terms a safeguard against discrimina­tion/amongst the persons placed in similar circumstances. In case, the citizens residing in a nearby locality are subject to lesser rate of case, the citizens residing in a nearby locality are subjected to lesser rate of octroi there is no good reason as to why the petitioners and for that reason the citizens of Digri be treated with discrimination. The inequality and discrimination in the matter of levy of octroi on the goods in which the petitioners are dealing is quite likely to interfere with their right to trade or profession and lawful occupation. Surely their trade and business is bound to be adversely affected on account of adverse circumstances owing to discriminatory and unreasonably higher assessment of octroi by the respondent Town Committee. A reference may be made to Independent Newspapers Corporation v. Chairman, Fourth Wage Board (1993 SCMR 1533) in which the Hon'ble Supreme Court interpreting Article 19 of the Constitution laid down that the freedom of expression includes the right to receive information through organs of public opinion and the freedom of press on its turn rests on the assumption that there is a wide dissemination of information. Such dissemination inevitably contemplates absence of restraints. Thus any measure which directly or indirectly puts restraint on or curtails the circulation of newspaper, due to any factor, including cost of production and resultant increase in the price thereof should, in so far as possible, be avoided.

6. Reverting to the ground with regard to acceptance of a long standing demand of the citizens of Town Committee, Digri, it may be pertinent to note that their repeated representations culminated in a directive for revision of the octroi schedule and to bring it at par with that of Municipal Committee, Mirpurkhas. In our view, the Minister Incharge of Local Government Department was fully authorised and competent to issue the directive in consonance with the spirit of Section 62 of the Ordinance to which no exception could be taken by the Town Committee but unfortunately the said directive was not implemented and allowed to be thwarted by the respondent in active connivance with the octroi contractor by reselling to unnecessary litigation. Indeed such directive was binding on the Local Council as would appear from the provisions contained in sub-. section (2) of Section 62. We are not inclined to agree with the learned counsel for the respondent when he says that the Minister was not competent to make this direction without the express authority from the Chief Minister. There is a presumption of law to the effect that the official acts have been regularly performed. Indeed letter dated 16.10.1993 addressed by the Local Government Department, Government of Sindh to the respondent Town Committee expressly manifests that this directive was given by a competent authority in exercise of the powers conferred on the Government by Section 62 referred to hereinabove. Obviously no material has been placed before this Court to take a contrary view. In case the respondent desired to believe us that the Minister Local Government acted without lawful authority in making the aforesaid directive the onus is on such respondent to substantiate the contrary. The very fact that this directive was conveyed by the Government of Sindh Local Government Department to the respondent Town Committee with copies endorsed to all other relevant quarters reflects that the directive was lawfully given and it was made competently, Moreover, Provincial Government has expressly admitted this position in the parawise comments which tends strong support o the legitimate inference arising in the circumstances.

7. Now having accepted quite reasonable and just demand of the citizens of Town Committee Digri respondent Government is required to demonstrate extraordinary grounds for withdrawal of such policy decision but no ground whatsoever has been shown for reverting to the original position after 38 days of the issue of directive. Indeed no comments have been filed in the petition impugning the withdrawal of earlier order pholding the case of the petitioners. We are, therefore, inclined to the view that subsequent withdrawal of the earlier order by the Government of Sindh was neither justified nor warranted in the peculiar circumstances of the case.

8. As to the jurisdiction of this Court it is always subject to law and the Constitution. In the face of the record and in the peculiar circumstances of the case we see no strong reason for denying the discretion and equitable relief to the petitioners who are otherwise entitled to it under the law. Admittedly respondents are acting in connection with the affairs of the Province and we think that the prayers solicited in the subsequent petition can be lawfully granted without any hesitation. In the exercise of Constitutional jurisdiction this Court is under a duty to protect fundamental rights of the citizens guaranteed under the Constitution as well as law. Indeed ouster of jurisdiction is not to be readily inferred and the superior Courts have adequate jurisdiction to enforce and protect the rights of the citizens by making proper directions in the exercise of writ jurisdiction. Evidently the petitioners have no other adequate and alternative remedy available under the law for the enforcement of their rights and a reference to rule 48 of the Octroi Rules in this behalf is completely out of context and highly misconceived.

9. For the aforesaid facts and reasons, we declare that the withdrawal of the order dated 16.10.1993 by the Government of Sindh is unwarranted, invalid and witho.ut lawful authority. Consequently earlier order dated 16.10.1993 is declared to have been passed in recognition of the valuable rights of the petitioners and to have been passed justly, fairly, reasonable and competently.

Accordingly, we direct the respondent Town Committee and Government of Sindh to revise the Octroi schedule in consonance with Rule 46 of the Octroi Rules and in line with the lawful direction given by the ry Government of Sindh. Both the petitions are accordingly disposed of but j with no order as to costs.

! (K.K.F.) Order accordingly.

PLJ 1999 Karachi 398 (DB)

Present: rasheed A. razvi and muhammad roshan essani, JJ.

KHURSHID HAIDER-Petitioner

versus

Syed SAEED AHMAD, DISTRICT AND SESSIONS JUDGE, CENTRAL KARACHI-Respondent

Constitutional Petition No. D-1909 of 1996, decided on 2.5.1998.

(i) Civil Procedure Code, 1908 (V of 1908)-

—O.XLVII, R. 5~Review-Court had to be satisfied to that petitioner had made out aprima facie case for review of judgment and only then notice could be issued to other side-No bar existed for Court to call petitioner and to summarily hear him on point of admissibility—Conduct of petitioner to insist upon Court to hear him in open Court instead of in Chamber, without any reason or justification, was highly improper.

[P. 404] B & D

(ii) Civil Procedure Code, 1908 (V of 1908)--

—-O.XLVII, R. 5-Review--Two Judges of High Court Bench who had earlier heard petition and authored judgment under review, being available, two conditions as contemplated under Rule 5 O.XLVII were not fulfilled--Review petition was to be heard by same Bench in absence of any disability or disqualification of any Judge to hear petition. [P. 406] E

(iii) Practice and Procedure-

-—Law does not prohibit to declare Chamber of Judge to be an open Court and no prohibition existed against hearing matter in Chamber of Judges of superior Courts-Such rule or practice, however, could be exercised subject to certain limitations such as where facts of a case demanded a public hearing or where hearing in Chamber could cause prejudice to other party-No hard and fast rule can be laid down for Judges of superior Courts to hear and conduct a judicial proceedings-Discretion was to be exercised judiciously and for public good—General rule in respect of hearing in Chamber was meant for cases in nature of urgent motion, otherwise all matters were to be heard and dealt with by Judges in open Court-Just and fair administration of justice required that a hearing should be conducted in open Court, but, if it was for convenience of a High Court Judge, and if no prejudice was likely to be caused to any party, or where in considered view of Judge, it was in public interest or for purpose of national integrity, which required secrecy or in the name of decency or Morality Court would be competent to hold trial even in Chambers. [Pp. 403 & 404] A & C

Petitioner in person

Mr. Muhammad Ali Sayeed: Amicus curia.

Date of hearing: 2.5.1998.

order

Rasheed A. Razvi, J.-This was a Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 which was dismissed on 19.12.1997 by a Division Bench comprising of Mon'ble Chief Justice and Justice Abdul Hameed Dogar. For the present controversy it is not relevant to narrate the facts of the petition.

1. On 10.1.1998 a review petition (Miscellaneous No. 95 of 1998) •was filed against the final order dated 19.12.1997 by the petitioner which came up before the same Bench for hearing on 19.1.1998 when the following

u' 'er was passed:

"Petitioner in person.

Petitioner wants that this review application, which has been taken up in Chambers should be heard in open Court.

We would not like to hear this review application. Put it up before another Bench."

1. Through an administrative order dated 12.2.1998 passed by Hon'ble Chief Justice of this Court, a Special Division Bench was constituted comprising of myself and Justice Muhammad Roshan Essani to hear this review petition for the reasons disclosed in the report of the Superintendent, Cause Roster. At the time of constitution of this Bench by the learned Chief Justice, it was observed by his lordship that the matter be heard on a Saturday convenient to the Special Division Bench. Accordingly, we ordered fixation of hearing of this review petition on 28.2.1998 at 11.00 a.m., when again, as of 19.1.1998, the petitioner insisted that he be heard in open Court. He was asked whether any adversary was involved in this matter to which he replied in negative. He was further asked to show how he will be prejudiced if the case is heard in the Chamber on Saturday when it is not a Court day but reserved for writing judgments. However, he was not able to render proper assistance to this Court. In such circumstances and keeping in view the provisions of Order XLVII, Rule 5, C.P.C. and the fact that the learned Members of the earlier Division Bench are available, following order was passed:--

"Both the learned Judges are still available on the Bench. As a matter of propriety they may be justified to express their inability to hear this review petition but the Rules provide that a review petition is to be heard by the same Bench or the Judge whose order is under review. In the peculiar circumstances of this case, the question which emerges for consideration is whether the propriety is to take precedence over Rules or otherwise. The facts of this case have special bearing. We would, therefore, like to be satisfied on the point whether in view of Rule 5 to Order XLVII, C.P.C. this Bench is competent to hear this review petition. In addition, whether the rule laid down by Hon'bls Supreme Court in the case of Mst. Nisar Bibi and another v. Salahuddin PLD 1990 SC 76 is available. Besides, whether a party, as a matter of right, could insist upon the Judges, without having any reason or justification to conduct hearing in open Court, particularly on a day which is not a Court day and is exclusively meant for judgment writing. All these questions need detailed consideration. We are of the view that petitioner would not be able to satisfy this Court on such important questions of law. We would like to ask Mr. Muhammad All Sayeed, Senior Advocate, Supreme Court (now President, Sindh High Court Bar Association, Karachi) to assist this Court by advancing his valuable views. To come up on 14.3.1998."

1. Mr. Muhammad All Sayeed, Advocate, Supreme Court who is the present President of the Sindh High Court Bar Association, Karachi was kind enough to appear and offered his assistance in response to the notice. On 14.3.1998 we had waited till 1.00 p.m. but the petitioner neither appeared nor sent any intimation; as a result, we heard Mr. Muhammad Ali Sayeed at length who had also filed his written arguments. We would like to first deal with the question whether a party could insist upon any Judge to ear his case in the open Court without assigning any good reason. Mr. Muhammad Ali Sayeed argued that the practice and usage prevailing in the Courts of the Sub-Continent of Indo Pakistan are different than the English and U.S. Courts. He has referred to the case of Scott v. Scott (1913) AC 17 which is a decision from the House of Lords where it was held that the Court of Appeal in England had no power to sit in Chambers unless it is shown that otherwise ends of justice will be liable to be defeated. He further argued that it is the established practice of this Court that often cases before Special Division Bench are heard on a miscellaneous day in Chamber, and that such practice was never held to be violative of any provision by either this Court or by the Hon'ble Supreme Court. To conclude, he contended that a Court of law has an inherent power to regulate its own procedures saved in so far as it is not controlled by enacted law. However, some exceptions to this rule was highlighted in the case Scott v. Scott (supra) which are not relevant for the present controversy.

2. There is no clear provision in the Code of Civil Procedure, 1908 or in the Sindh Chief Court Rules, appellate or original side in reference to a High Court which may prohibit the hearing of cases in Chamber or which may restrict hearing of cases only in open Court. However, there is no exception to this observation which is provided in Rule 4 to Order XVffl, C.P.C. which provides for the recording of evidence of the witnesses in open Court in the presence and superintendence of the Judge. Mr. Muhammad Ah" Sayeed has referred to para. 703 of Halsbury's Laws of England, IVth Edition, Volume 10 (page 315) which reads as follows:--

"703. Procedure.-A Court exercising judicial functions has an inherent power to regulate its own procedure, save in so far as its procedure has been laid down by the enacted law, and it cannot adopt a practice or procedure contrary to or inconsistent with rules laid down by statute or adopted by ancient usage (Ex parte Events (1846) 9 QB 279). The procedure of the Supreme Court, Country Courts and most of record are now substantially regulated by statutory rules."

In para, 705 (supra) of the Halsbury's Laws of England, it is further observed that in general, all cases, both civil and criminal, must be heard in open Court, but in certain exceptional cases the Court may sit in camera where an administration of justice would be rendered impracticable by the presence of the public. In addition to the above two paras, the question of proceedings in Chambers were also dealt with in para. 345, Vol. 37 (page 253) of Halsbury's Laws of England, Fourth Edition which reads as follows:

"345. Chambers proceedings generally. -Business in the High Court must be heard and disposed of in Court except in so far as, under the

Supreme Court Act, 1981 or any other Act, under rules of Court or in accordance with the practice of the Court, it may be dealt with in Chambers. Any jurisdiction of the High Court must be exercised only by a Single Judge of that Court except in so far as it is by rules of Court made exercisable by a master, Registrar or other officer of | the Court, or by another person. A High Court Judge may deal withbusiness in Chambers and may exercise all or any part of the jurisdiction vested in the High Court in all causes and matters and in all proceedings in that Court which under the Supreme Court Act. 1981 or any other Act.or under rules of Court or in accordance with the practice of the Court may be dealt with in Chamber. Subject to certain exceptions, the business and jurisdiction of the High Court exercisable by a master or Registrar under rules of Court or in accordance with the practice of the Court will be ransacted or exercised by him in chambers. roceedings in Chambers are held in private, but the publication of the whole or part of an order made in chambers is not in itself a contempt of Court unless the Court, having power to do so, expressly prohibits its publication Every application in Chambers not made exparte must be made by -summons and the evidence adduced in support of any application, where this is necessary or desirable, is generally given by affidavit The cost of proceedings in Chambers are at the discretion of the Court before which the application is heard." (Emphasised added).

1. The case of Scott v. Scott (supra) was considered in reference tothe "Camera Trial" by the Supreme Court of Pakistan in the case ofZulfiqar All Bhutto v. The State PLD 1979 SC 53 and 171 where it was held that the observations of Lord Lorebum on page 445 and Lord Atikinson at page 464 lend support to the view that the hearing of cases in Chamber is normally held in private, as another exception to the general rule. In that case HonTble Supreme Court referred to the definition of "Chambers" as given in various dictionaries including the Concise Law Dictionary by P.C. Osborn, Bonvier's Law Dictionary, Mozley's Law Dictionary, Wharton's Law Lexicon, Black's ,. Law Dictionary and the Oxford English Dictionary. The term Chamber "is >- also defined in "The Oxford Companion to Law" by David M. Walker (Oxford University Press, 1980) as Judge's private room adjacent to the Court room and that certain kinds of business may be, or directed to be, dealt with in Chambers and accordingly in private less formally than in Court. Reference was also made to the case Alliance Perpetual Building Society v. Belru Investment Ltd. and another (1957) 1 WLR 720. In the case of Z.A Bhutto (supra) appellant objected against the hearing of transfer application in Chambers by the Lahore High Court Former Chief Justice of Supreme Court, Anwarul Haq, J. (as his lordship then was) while speaking for the majority view held, inter alia, that according to Section 352, Cr.P.C. the place in which any Criminal Court is held for the purpose of inquiring into or trying an offence, shall be deemed to be an open Court. Following observation at para. 350 of the said judgment would be relevant for settling the present controversy:

"Strictly speaking therefore, the Court is open only for the purpose of inquiring into or trying any offence" and not for any collateral purpose, or while dealing with something which is strictly speaking outside the cause itself. In this category would fall a transfer application which is not germane to the proper trial as such. In this view of the matter also Section 353 of the Code did not debar the learned trial Court from hearing the transfer application in limine 'in chambers' and not in Court open to the public. Indeed the Bench in its impugned order has itself specifically observed that it was decided by them to take up the transfer application 'in chambers' in accordance with the usual practice of the Court. The objection as to the hearing of the transfer application in Chambers is, therefore, without merit."

1. In the case The State v. Mr. Majeed Nizami and others PLD 1980 Journal 65 which is a decision of the Supreme Judicial Council of Azad Jammu and Kashmir, the question was whether a Single Judge can dispose of a matter in Chamber regarding bail while pending decision of an appeal, it was observed that under Order V, Rule 2, Clause (28) of the Judicial Board Rules, of a Single Judge is competent to dispose of such matters. Indian Supreme Court has also considered the implication of hearing some of the cases in Judges Chamber. Former of Chief Justice of India Mr. Gajendragadkar while speaking for the majority view in Naresh Shridhar Mirajkar and others v. State of Maharashtra and another AIR 1967 Supreme Court 1 observed that it would be unreasonable to hold that a Court should hear eveiy case in public even though it is specified that the ends of justice themselves would be defeated by such public trial. It was further held that the principle that all cases must be tried in public is really and ultimately based on the view that it is such public trial of cases that assists the fair and impartial administration of justice and that the High Court had inherent powers to hold the trial of a case "in camera" provided, of course, it is satisfied that the ends of justice require such a course to be adopted. Reference was also made to the case Scott v. Scott (supra). It may be observed that the just and fair administration of justice requires that a hearing should be conducted in open Court; but, at the same time, ifit is for the convenience of a High Court Judge and if no prejudice is likely to be caused to any party or where in the considered view of the Judge it is in the public interest or for the purpose of National integrity which may require secrecy or in the name of decency or morality, the Court would be competent to hold trial even in Chamber and in camera. However, in the instant case, it was decided by the present Bench as well as the earlier Bench to hold hearing in Chamber as it was not a Court day but was the day of judgment writing. It was never the intention of this Court that the proceedings of review petition be conducted in camera. There is no prohibition in law to declare the Chamber of the Judge to be an open Court. In the instant case, review petition was fixed for preliminary hearing and the other side was not on notice. It was for the satisfaction of the Court to come to a conclusion that the petitioner has made out aprima facie case for review of the judgment and only then the notice could have been issued and the other side would have been heard. For such purpose, there appears no bar for the Judges to call petitioner and to summarily hear him on the point of admissibility. Thus, the conduct of the petitioner to insist upon the Judges to hear him in open Court without any reason or justification was highly improper.

2. From the above it appears that in Pakistan also, there is no prohibition for hearing a matter in Chamber by the Judges of the superior Courts. However, this rule or practice may be exercised subject to certain limitations such as where the facts of a case demand a public hearing or where hearing in Chamber may cause prejudice to the other party. But no hard and fast rule could be laid down for the Judges of superior Courts to hear and conduct a judicial proceeding. It is their discretion which is to be exercised judicially and for the public good. Nevertheless the general rule in respect of hearing in Chamber is meant for the cases in the nature of urgent motion; otherwise, all matters are heard and dealt with by the Judges in open Court. The present case has a special circumstance. Firstly, the Roster Branch was directed by the Hon'ble Chief Justice to fix this case on Saturday only. On this date, there was no case fixed in Court and both the Judges assembled in Chamber of one of us. Saturday is fixed for writing judgments and orders and, therefore, it was deemed fit and proper that the case be heard in Chamber. Never in past, such practice was ever objected to by any Advocate or by any Bar Association. Thus, by the passage of time and by consent of all, it has become an established practice. It was with this view that we had asked the petitioner to point out any prejudice which he may suffer by conducting hearing in Chamber but nothing was said against it In this factual and legal background, we are inclined to hold that the petitioner's conduct on 19.1.1998 as well as on 28.2.1998 insisting upon the Division Bench of this Court to hear his review petition in open Court fixed [for preliminary hearing was neither justified in law nor reasonable in the given facts.

3. Now, adverting to the first question, whether review application can be heard only by the same Judges who passed the earlier order which is subject-matter of this petition, Mr. Muhammad Ali Sayeed has drawn our attention to the case of Shabpir Ahmed v. Akhtar Atom PLD 1994 SC 598 where after reference to several case-law including the case of Chhajju Ram v. Neki and others AIR 1922 PC 112 it was held, inter alia, that only those Judges are entitled to hear a review petition who have passed the original order provided they are available on the Bench. In that case provisions of Order XLVII, Rule 5, C.P.C. alongwith Rule 5 of Chapter ffl-A, Volume V of the High Court Rules and Orders with reference to the case of Government of Punjab v. Salamat Ali Khan PLD 1991 SC 691 came up for consideration. Following rule was laid down by the Full Bench of Hon'ble Supreme Court which reads as follows:-

"In the present case the private respondents had filed the review petition under Order XLVII, Rule 5, C.P.C. as there is no Constitutional provision empowering the High Court to review its own judgment, similar to that of Article 188 of the Constitution, which empowers the Supreme Court to review any judgment pronounced or any order made by it subject to the provisions of any Act and/or of the Supreme Court Rules. In this view of the matter, if none of two learned Judges who decided the above Constitutional Petition would have been available, in that case, Rule 5 of the Rules and Orders would have been attracted to. The language of above Rule 5 as pointed out hereinabove seems to be unambiguous and clear on the question that it is applicable only when Order XLVn, Rule 5, C.P.C. is not applicable to a review petition. In the case in hand the author Judge remained available in terms of Rule 5, Order XLVn, C.P.C. he was to hear the review petition as held by the Privy Council in the above case and not by two Judges under Rule 5 and Orders."

1. Order XLVII, Rule 5 of the Code of Civil Procedure, 1908 read as follows:-

"5. Application for review in Court consisting of two or more Judges.-Where the Judge or Judges, or any one of the Judges who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same."

1. There are two conditions contemplated by Rule 5 of Order XLVII of the Code of Civil Procedure which unless satisfied, a review application cannot be heard by any Judge or Judges who had not participated in the judgment decree or order sought to be reviewed. In addition to the case of Shabbir Ahmad (supra) there are other cases from Indian jurisdiction which support this view. In Sirkar v. Velayuhan Ponnan and othersAIR 1953 Travancore-Cochin 1), it was held by the majority that a review application is to be heard by the same Judge or Judges who had authored the order, judgment or decree under review. It was further held that the prohibition contained in Rule 5 of Order XLVH, C.P.C. is absolute and it is not limited to the first stage of the hearing of the application and that the hearing contemplated in this Rule includes the hearing at both the stages of the application. In Sheo Prakash Singh v. The State of Rajasthan and others AIR 1960 Rajasthan 72, it was held by a Division Bench of Rajasthan High Court that where an appeal has been heard by two Judges and a review against it is heard by one of the two Judges and a third Judge, and where the other Judge who was member of the earlier Bench which heard the appeal and who did not participate in the hearing of the review, was still a member of the Court and was not precluded from hearing it by bis absence or other similar cause for a period of six months next after the application for review was presented, such a procedure was held to be illegal in view of Order XLVII, Rule 5, C.P.C. (seealso Seemakurty Achyutan v. Seemakurti Kasi Annapuranamma and others AIR 1963 Andhra Pradesh 277). Thus, the two learned Judges who have earlier heard this petition and authored the judgment under review are available and the two conditions as contemplated under Rule 5 of Order XLVII, C.P.C. being not fulfilled, this review petition is to be heard by the same Bench.

2. The matter does not end here. The earlier Division Bench which passed the judgment has ordered not to fix this case before them. None of the parties have addressed on this aspect of the case that whether a Judge or Judges for no reason, could decline to hear a case. The conditions imposed on a Judge disqualifying him to hear a case is provided in Article IV of the Code of Conduct which provides that a Judge must decline to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends. A Judge must also refuse to deal with any cause in which he has a connection with on of its parties or lawyers more than the other or even with both the parties and their lawyers. The petition was earlier heard and disposed of by the same Bench which fact reveals that apparently there was no ground of disability or disqualification at the initial stage to hear the petition. While stating the above Rule from the Code of Conduct, I am fully conscious of the case ofMirza Akbar v. Mirza IftikharAli and others PLD 1956 Federal Court 50, where it was held by the Hon'ble Supreme Court that a Judge is not disqualified to hear a cause simply on the ground that one of the parties is his friend. It was further held that the friendship is too vague and general a term to be judicially recognized as a factor disqualifying a Judge to hear a cause to which one of the parties in his friend. Be that as it may, we would not like to dilate any further on this point as these questions require detailed consideration.

3. In view of the above observations, we direct the office to place his matter once again before the Hon'ble Chief Justice for further orders as his Lordship may deem fit and proper.

(K.K.F.) Order accordingly

PLJ 1999 Karachi 407

Present rasheed A. razvi, J.

GHEE CORPORATION OF PAKISTAN (PVT.) LIMITED--Plaintiff

versus

BROKEN HILL PROPRIETARY COMPANY LIMITED through their LOCAL AGENTS-Defendant

Suit No. 421 of 1994, decided on 14.12.998.

(i) Arbitration-

—Conflicting awards by arbitrators-Status-Findings of umpire and one Arbitrator indicated that in addition to reasonings given by other arbitrator, they had given their own reasoning-No misconduct could, thus, be attributed to the Umpire and arbitrators in circumstances.

[P.413]A&C

(ii) Arbitration-

—Award-Error apparent-Status--If the relevant contract between parties had not been properly appreciated and considered that would amount to an error apparent on the face of award. [P. 413] B

(iii) Arbitration Act, 1940 (X of 1940)-

—S. 30-Award~Examination of validity of award by Courtr-Scope-Court while examining validity of an award does not act as Court of appeal and, therefore, a Court hearing objections to award cannot undertake re­appraisal of evidence recorded by arbitrator in order to discover error or infirmity in award-It was further held that error or infirmity in the award which rendered it invalid, must float on the surface of award and should be discoverable by reading award itself-Where reasons recorded by arbitrator are challenged as perverse; perversity in reasoning is to be established with reference to material considered by arbitrator in award.

[P. 414] C

Mr. Samiuddin Sami, Advocate for Plaintiff. Mr. Abid T. Japanwala, Advocate for Defendant Dates of hearing: 28.10; 25 and 26.11.1998.

judgment

This is a proceeding under Section 14(2) of the Arbitration Act, 1940 (hereinafter referred to as the Act, 1940) read with Rule 282 of the Sindh Chief Court Rules (O.S.) for making Award dated 19.5.1995, passed by the umpire, Justice (Retired) Zakiuddin Paul, Rule of the Court Earlier the two arbitrators, Sheikh Abdul Rauf, for the plaintiff, and Justice (Retired) Dorab patel, for the defendant, gave dissenting awards which resulted in reference to the umpire.

1. The plaintiff is a company incorporated under Pakistani law while the defendant is a company established under the Australian Law. In the years 1984 and 1986, the plaintiffs imported a quarter million tons of tin plates form the defendant as a result of two contracts executed on 3.12.1985 and 21.4.1986, respectively. There arose a dispute pertaining to the specifications and weight of the tin-plates which ended in the proceedings before the two arbitrators as mentioned above. Both the parties filed claim and counter-claim before the arbitrators and led their evidence. Following seven issues were framed by the Court:--

(1) What formula if any was agreed between the parties for the purpose of calculating the weight of the goods and which of the parties correctly applied the formula?, What is the effect?

(2) Was the supply of tin-plates in conformity with both the contracts. If so, were the claims rightfully rejected by the respondens?

(3) What was the agreement between the parties as to post- shipment inspection of goods, and was the post-shipment inspection made in accordance thereto? In either case, what is he effect?

(4) Did the respondents fulfil all their obligations on both the contracts? If so, are the claimants entitled to the sum of Rs. 1,00,12,410 or any part thereof?

(5) Whether the claimants unlawfully or unjustifiably encashed the Performance Bonds? If so, are the respondents entitled to receive damages from the claimants as set out in the counter­ claim?

(6) Whether any cause of action has accrued to the claimants?

(7) What should the decree be?

1. The first award was pronounced by Justice (Retd.) Dorab F. Patel who, according to Mr. Abid T. Japanwala, who is opposing this award dismissed the claim of the plaintiff as well as defendant. The other arbitrator Mr. Sheikh Abdul Rauf, as appears from his reasoning, concurred with Justice Dorab patel to the extent of granting Rs. 40,92,245 as compensation for the short supply made by the defendant. In respect of other issues, except for the additional compensation of Rs. 5,00,000 Mr. Sheikh Abdul Rauf has agreed with Justice (Retd.) Dorab Patel. The matter was referred to the umpire, Justice (Retd.) Zakiuddin Paul who agreed with the award of Mr. Sheikh Abdul Rauf. In both the reasonings of Mr. Sheikh Abdul Rauf as well as Mr. Zakiuddin Paul, reference was made to the findings of Justice (Retd.) Dorab Patel that since he has awarded the aforesaid amount his finding to such extent was correct. Subsequently the second arbitrator and the umpire have based their findings on the same. It is this finding which has been vehemently attacked by Mr. Abid T. Japanwala. It will be advantageous if para. 55 of the reasoning of the award as given by Justice (Retd.) Dorab F. Patel is reproduced:--

"55. The plaintiff has claimed a sum of Rs. 40,92,245 and to prove it, it examined Mr. Munawar to whose evidence I have referred earlier and he produced documentary evidence in support of its claim. The documentary evidence supports the claim and the witness was hardly cross-examined about it He was also not cross-examined on the suggestion that the-market price of tin plate at the date of the alleged breaches of contract by the defendant was lower than the purchase price paid by the plaintiff to the defendant. Therefore, on the assumption that the plaintiff was short supplied as alleged and that this amounted to a breach of contract on the defendant's part I would decree the plaintiffs claim in the sum of Rs. 40,92,245 with interest at 10% from the date of this award." (Emphasis added by me).

1. I have heard Mr. Syed Samiuddin Sami, Advocate for plaintiff who has supported the award. I have also heard Mr. Abid T. Japanwala, who has objected to making the award a rule of the Court on different grounds. His first attack is that the findings of the learned arbitrator for the plaintiff and, therefore, of the umpire is based on erroneous view that Justice (Retd.) Dorab F. patel has accepted the claim of the plaintiff up to the amount of Rs. 40,92,245. He has put much emphasis on the words "assumption" and "would" used by Justice (Retd.) Dorab F. Patel in para. 55 as reproduced above. According to Mr. Abid T. Japanwala, the contents of para. 55 are to be read with the findings of the said arbitrator in respect of two other issues. He has referred to Mr. Dorab Patel's finding on Issues Nos. 6 and 7 which says that there was no cause of action whatever accrued to the plaintiff. In respect of Issue No. 7 which pertains to the amount of decree, it was maintained: "For the reasons which I have given, the plaintiffs claim is dismissed. The only question which remains for consideration is that of costs in this arbitration and I leave the parties to bear their own costs". Mr. Abid T. Japanwala has placed reliance on the following cases:-

(i) Province of Sindh and 4 others v. Waseem Construction Co. 1991 CLC 66;

(ii) M. Aslam Amin v. Muhammad Alt Khan and another 1995 CLC 1795;

(iii) Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by Government of Sindh and 6 others PLD 1977 SC 237.

1. Mr. Syed Samiuddin Sami has supported the award by saying that the defendant has not raised the instant questions before the umpire and now he is estopped from raising these questions before this Court It was further argued that the scope of this Court while hearing an award is limited and that this Court does not act as a Court of Appeal. He further argued that the learned umpire was competent to judge and interpret para. 55 of Justice (Retd.) Dorab F. Patel's reasoning for award which was accordingly undertaken by him and that it cannot be challenged in the instant oceedings. It was further argued that an arbitrator or an umpire, as the case may be, is not required to give reasoning in detail. He has placed reliance on the following cases:-

(1) Messrs Hqji Hasham Hqji Ahmed and Brothers v. Messrs Trading Corporation of Pakistan Ltd., Karachi PLD 1977 Kar. 480;

(ii) Surqj Mal-Chandan Mai v. Fateh Chand Jaimal Rai AIR 1930 Lah. 230;

(iii) Suleman Hqji Muhammad & Co. v. State Bank of Pakistan PLD 1960 Kar. 78;

(iv) The Premier Insurance Co. (Pakistan) Ltd., Karachi v. Ejaz Ahmed Khawaja and 3 others 1981 CLC 311;

(v) Kohinoor Chemical Co. Ltd., Karachi v. Government ofSindh and another PLD 1976 Kar. 548;

(vi) Messrs Pakistan Builders Co., Karachi v. Pakistan PLD 1961 Kar. 365;

(vii) Manzoor Hussain and others v. Wall Muhammad and another PLD 1962 Kar. 877;

(viii) Trading Corporation of Pakistan Ltd., Karachi v. Messrs Aslam Saeed & Co. and 3 others PLD 1973 Kar. 65; and

(ix) WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak & Co. NLR1990 SCJ 183.

1. Except for the case of WAPDA and another (ibid), all the cases are prior to the year 1981 when Section 26-A was introduced in the Act 1940, through Arbitration (Amendment) Ordinance, 1981 which reads as follows:-

"26-A. Award to set out reasons.--(1) The arbitrators or umpire shall state in the award the reasons for the award in sufficient detail to enable the Court to consider any question of law arising out of the award.

(2) Where the award does not state the reasons in sufficient detail, the Court shall remit the award to the arbitrators or umpire and fix the time within which the arbitrator or umpire shall submit the award together with the reasons in sufficient detail:

Provided that any time so fixed may be extended by subsequent order of the Court.

(3) An award remitted under subsection (2) shall become void on the failure of the arbitrator or umpire to submit it in accordance with the direction of the'Court."

1. In order to ascertain the real intention of Justice (Retd.) Dorab Patel in reference to his views expressed in para. 55 of his reasoning, it will be necessary to consider his findings on the other issues. He has dealt with Issue No. 1 in Para. 49. According to his finding, clause 1 of the contract imposes limitation and the contract permits the thickness of the tin plates to be less than the thickness ordered by the plaintiff by not more than 10% and that the defendant had more or less to ensure that the weight of the tonnage supplied was not less than the tonnage ordered by more than 2%. In para. 5, it was stated by him, "In view of my finding on the first issue and in view of the evidence produced by the parties, I answer both these questions in the affirmative". The effect of answering Issue No. 2 in affirmative is that it was held by Justice (Retd.) Dorab F. Patel that the supply of tin plates by the defendant was in conformity with both the contracts and that the claim of the plaintiff was rightfully rejected by the respondents.

2. In respect of third issue, it was held that the plaintiffs failure to give notice affects the evidenciary value of the survey and its right to hold the survey. As a result of this finding, it was held that it is not possible to rely on such survey report Issue No. 4 was discussed in paras. 52 to 59, which was considered by the other arbitrator and umpire, granting partial relief to the plaintiff by Mr. Justice (Retd.) Dorab Patel.

3. Mr. Sheikh Abdul Rauf s finding on Issue No. 1 is to the extent that there was an agreed specification between in the parties which was not followed by the respondents. In respect of Issue No. 2, it was held by Mr. Sheikh Abdul Rauf that the respondent did not fully conform to the requirements of the contract and thereby did not provide specified tonnage of tin plates of actual physical weight. He also upheld the survey report and declared the same to have been made according to the rules sand established practice. However, while dealing with Issue No. 4, he relied upon Para. 55 of the reasoning of award by Justice Retired Dorab F. Patel and made the following observations thereby deciding the entire claim of the parties. The relevant portion of the findings of Mr. Sheikh Abdul Rauf reads as follows:--

"................... Mr. Justice (Retd.) Dorab Patel has dealt with this question at some length. Discussing the various components of the plaintiffs claim of Rs. 1,00,12,410, for the reason given he has rejected all claims except the one on account of short supply of 338.301 M/tons of tin sheets amounting to Rs. 40,92,245 (Para. 55 of his award refers). I agree with him. Further I am also of the view that the plaintiff should be adequately compensated for the denial to them of the use of this large amount of money all this while. As it is not easy to precisely work it out, I would put it at Rs. 5 lacs-rougly Rs. one lac a year.

As regards the fifth issue, I share the finding of Mr. Justice (Retd.) Dorab Patel and endorse the rejection of respondent's claim.

1. In line with my findings on issues one and two, my answer to he sixth issue is in the affirmative.

2. As per the amount of decree, the seventh issue, it should be Rs. 45,92,245 (Rs. 40,92,245 plus Rs. 5,00,000) as indicated earlier while disposing of the fourth issue.

3. On the point of costs, I hold that each party should bear their own expenses."

4. The learned umpire, for majority reasons, agreed with Mr. Sheikh Abdul Rauf and he too while considering grant of relief to the plaintiff referred to the observations of Justice (Retd.) Dorab Patel made in para. 55 and gave his finding decreeing the claim of the plaintiff to the above extent with the following observations:--

".................. In Para. 55 of Mr. Justice (Retd.) Dorab Patel's Award, the genuineness or otherwise of this claim has been discussed in detail. It has been rightly found that Mr. Munawar, one of the witnesses produced by the plaintiff, had produced documentary evidence to prove this claim. Strangely enough, the aforesaid witness was not cross-examined on various points arising from his statement. So much so, the witness was not even questioned about the market price of tin plates at the date of the alleged breach of the contract by the defendant which was allegedly lower than the purchase price paid by the plaintiff to the defendant. In view of that the learned Arbitrator has rightly drawn the presumption that plaintiff was short supplied as alleged by it and as such this amount to a breach of the contract on the defendant's part. Mr. Justice (Retd.) Dorab Patel has, therefore, passed a decree in favour of the plaintiff for a sum of Rs. 40,92,245 with interest at 10% form the date of his award. Sh. Abdur Rauf, learned Arbitrator for the plaintiff, in Para. 30 of his award has concurred with that finding in clear terms. However, he has further added that the plaintiff should be adequately compensated for the denial of such a large amount to him all this time. As such, he has found that amount of Rs. 5,00,000 (Five lacs) is sufficient amount for compensation purpose. The learned Arbitrator for the plaintiff has, therefore, passed decree for Rs. 45,92,245 inclusive of the amount of compensation with ten per cent interest from the date of the award.

I have carefully gone through the awards of both the learned Arbitrators, discussing in detail, all the relevant points arising in this case. I agree with the finding of both the learned Arbitrators that on account of breach of the contract on the part of the defendant for short supply of 338.301 metric tons of tin sheets, amount of Rs. 40,92,245 is the adequate amount to be decreed in favour of the plaintiff. There is no doubt that the plaintiff was deprived of this large amount of money all this period on for that reason he has been compensated by the Arbitrator for the plaintiff, Sh. Abdur Rauf, for Rs. 5,00,000.1 agree with this finding.

The result is that decree for amount of Rs. 45,92,245 with interest at the rate of 10% from the date of the award is passed in favour of plaintiff.

Both the parties will bear their own costs....... "

1. In the case of Brooke Bond Ltd. (supra), a dispute arose on the award given by an arbitrator who, at the relevant time was Presidential Adviser of Public Affairs, Government of Pakistan appointed by consent of the parties in furtherance of Section 31 of the Industrial Relations Ordinance, 1969. One of the grounds challenging the award was that the said arbitrator has committed misconduct. It was held by a Full Bench of Hon'ble Supreme Court that the term misconduct used in connection with arbitration does not necessarily imply anything in the nature of fraud or moral turpitude. Term 'misconduct' was defined by the Hon'ble Supreme Court as 'conduct inconsistent with the duties imposed upon those selected arbitrators either at the hearing or in reaching their conclusions ". In the

case of Messrs Moosa Omar & Co. Ltd., Karachi v. Messrs Haji E. Dossa and Sons PL 1997 Kar. 899 at 905, it was held by a Division Bench of this Court that where an arbitrator had not awarded damages upon the settled principle, still the award cannot be challenged on the ground of legal misconduct. Therefore, it cannot be said that the arbitrator Sheikh Abdul Rauf and the Umpire have not applied their conscious mind and have simply proceeded on the findings of arbitrator Mr. Dorab F. Patel. Perusal of findings of these two persons indicate that in addition to the reference to para. 55 of Justice (Retd.) Dorab F. Patel's reasons they have given their reasoning in addition. Therefore, there appears no misconduct on the part of these two (arbitrator and umpire).

1. Indeed, if a contract has not been properly appreciated and considered by an arbitrator or by an umpire, it would amount to an error apparent on the face of award as held in the case of Waseem Construction Co. (supra). But, in the instant case, there is no such mis-reading or mis­ interpretation of the terms and conditions of the contract It was argued by Mr. Samiuddin Sami that if the award given by Justice (Retd.) Dorab F. Patel is excluded, still there are, in field, the awards given by Sheikh Abdul Raivf and umpire Justice (Retd.) Zakiuddin Paul. I have gone through the reasonings of both the arbitrators and the umpire. Reference was made to Para. 55 of Mr. Justice (Retd.) Dorab PatePs reasoning. But in addition to that, the remaining arbitrator and umpire had given their reasoning for which Mr. Abid T. Japanwala was not able to point out any error apparent on the face of their awards.

2. It was not explained as to why the dispute was referred to the umpire when both the arbitrators have concurred on awarding damages/ compensation in favour of plaintiff. In the concluding portion of Justice (Retd.) Dorab Patel's award, he has declined to grant any relief to the plaintiff while Mr. Sheikh Abdul Rauf has granted relief to the extent mentioned hereinabove. From the conduct of the parties and by virtue of the fact that the matter was referred to the umpire, it is clear that both the arbitrators' awards were contrary. Mere reference to the contents of Para. 55 of Justice (Retd.) Dorab F. Patel's reasoning by the second arbitrator and the umpire is not such an error which warrants interference of this Court Both Mr. Sheikh Abdul Rauf (arbitrator) and Justice (Retd.) Zakiuddin Paul (umpire) have given additional reasoning support of their award. Recently, a Full Bench of Hon'ble Supreme Court in the case of M/s. Joint Venture KG/Rist and 2 others v. Federation of Pakistan and anothers PLD 1996 SC 108 at 119, held inter alia, that the Court while examining the validity of an award does not act as Court of appeal and, therefore, a Court hearing the objection to the award cannot undertake reappraisal of evidence recorded by the arbitrator in order to discover the error or infirmity in the award. It was further held that the error or infirmity in the award which rendered it invalid, must appear on the face of the award and should be discoverable by reading the award itself. "Where reasons recorded by the arbitrator are challenged as perverse, the perversity in the reasoning is to be established with reference to the material considered by the arbitrator in the award".

3. As a result of the above discussion, I do not see any error or perversity on the face of the awards given by Mr. Sheikh Abdul Rauf and Justice (Retd.) Zakiuddin paul. However, I do not see any lawful reason for granting an additional amount of Rs. 5,00,000 (Rupees five lacs only) by Mr. Sheikh Abdul Rauf on the ground that the plaintiff should be adequately compensated for the denial to the plaintiff for the use of this large amount of money which was also endorsed by the umpire. Such relief was outside the scope of arbitration. The plaintiff has never claimed any extra amount as compensation for denial of this pcyment. Therefore, to that extent, the award is modified. The award is made Hule of the Court to the extent of Rs. 40,92,245 with interest at 12% from the date of decree.

(K.K.F.) Order accordingly.

PLJ 1999 Karachi 415 (DB)

Present: RANA BHAGWAN das AND SABIHUDDIN AHMED, JJ. SALEEM AKHTAR-Petitioner

versus

FEDERATION OF PAKISTAN and another-Respondents

C.P. No. D-1049 of 1998, decided on 12.11.1998.

Exit-Control Ordinance, 1981 (XLVI of 1981)-

—Ss. 2 & 3--Constitutional petition-Name of petitioner was placed on exit control list-Status-No incriminating material against petitioner was available with Government tending to show that he was involved in any serious kind of nefarious activities or acting prejudicial to security and solidarity of State-Nothing against petitioner was pointed out to reflect whether he was going abroad to hatch any conspiracy against national interest or his visit abroad could endanger security of State or was contrary to public interest-Power vested in Federal Government was apparently unfettered and unrestricted, yet the same must be exercised fairly, reasonably, justly and in accordance with law and constitution-Order of Government was bad in law, invalid and without lawful authority-Petition allowed. [P. 417 & 418] A & B

Mr. M. Ilyas Khan, Advocate for Petitioner.

Mr. MushirAlam, Standing Counsel for Respondent No. 1.

Date of hearing: 10.11.1998.

judgment

Rana Bhagwan Das, J.-Petitioner who is engaged in the business of construction industry in the name of Glaxy Construction (Pvt.) Limited through this Constitutional Petition seeks to impugn the orders of the respondent Federation of Pakistan placing his name on the Exit-Control List in the following circumstances.

1. It is the case of the petitioner that he is a law abiding citizen of Pakistan, has never been in default and pays Income-tax in the range of about Rs. 10 to 12 lakhsto the Government of Pakistan every year. Out of his hard earning, he claims to have invested millions of rupees in raising construction of Hotel Glaxy on Main Shahrae Faisal, Karachi. According to him his whole stake is in Pakistan and all his earnings invested within the country. His younger brother Shahid Hassan living at 42-35 South Custer, Avelyonsilliois-60535, Chicago, U.S.A. developed some serious problems of health and he intended to proceed to U.S.A. to look after his ailing brother, when some of his friends told him that his name had been put in the Exit Control List as reported in daily "Dawn" dated 8.7.1998. He, therefore, approached the office of Respondent No. 2 and came to know that the Ministry of Interior had included his name and two others and issued such letters dated 13.6.1998 to the passport issuing authorities in Pakistan and Director-General, F.I.A. to distribute copies thereof to all check posts of Pakistan. Contents of the letter dated 13.6.1998 tend to indicate that it had been decided by the Ministry of Interior to include the names of the petitioner and two others in the E.C.L. with immediate effect. Since the

petitioner was not served with any notice or letter and he was not served with the impugned order nor supplied any grounds for filing a review application, he has impugned the aforesaid action as violative of Article 4 of the Constitution, against the principles of natural justice and in contravention of the spirit of Section 2(3) of the Exit-Control Ordinance, 1981.

1. Alongwith the petition, he moved a miscellaneous application for suspending the operation of the impugned order which was herd by a Division bench consisting of Amanullah Abbasi and Sarmad Jalal Osmany, J. who vide order dated 30.9.1998 permitted the petitioner to proceed abroad subject to furnishing security for his return to Pakistan within thirty days from the date of order.

2. In the parawise comments submitted under the signature of Director (S.Z.) Immigration and Passports, Government of Pakistan, Karachi, the grounds agitated are that the petition is not maintainable under Section 3 of the Ordinance XLVI of 1981; that the name of the petitioner was placed on E.C.L. on receipt of information in the Ehtesab Bureau, that he was-front person of Asif Ali Zardari owning/managing properties as benamidar on behalf of Asif Ali Zardari and that the Federation of Pakistan is not obliged to issue a notice before passing an order placing the name of any person on E.C.L. Parawise comments are followed by an affidavit in rejoinder by the petitioner seriously controverting the position taken in the

parawise comments. It is urged that neither the petitioner is the.front man of Asif Ali Zardari nor owning/managing properties as his benamidar. Moreover, there was no information with regard to this allegation otherwise he would have been involved in multiple litigations and references but not a single case is pending against him nor any instance cited to this effectPetitioner reiterated that placing his name on E.C.L. is mala fide, without jurisdiction, void and liable to be struck down.

1. At the hearing learned counsel for the petitioner urged that the petitioner is a law abiding citizen of Pakistan engaged in the construction industry for quite a long time having invested huge amounts in the project known as Glaxy Construction (Pvt.) Limited Company and paying considerable amount by way of Income-tax. Learned counsel submitted that there is not an iota of evidence to connect the petitioner with Asif Ali Zardari. He has neither been involved in ^;:y F.I.R. nor interrogated by any agency including. Ehtesab Bureau and that the entire exercise appeared to be the result of some mis-information without any concrete material and legal justification. It is for this reason that no reason was assigned by the respondents while placing his name on E.C.L. and no notice or intimation was given to him. Even uptil now not a single case has been registered against the petitioner to reflect that he was in any way concerned with unlawful activities attributed to the spouse of the former Prime Minister of

Pakistan.

1. Preamble of Ordinance XLVI of 1981 tends to show that this legislation was made as it was found expedient to provide for the control of exit of certain persons from Pakistan, therefore, this Ordinance was promulgated in pursuance of the proclamation of the 5th day of July, 1977 read with Provisional Constitution Order, 1981. Ordinance itself is quite short and vests unfettered power in the Federal Government who may by order prohibit any person from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is in possession of valid travel documents. Sub-section (2) of Section 2 stipulates that it shall not be necessary to afford an opportunity of showing cause against the order before making such order. Sub-section (3) lays down that if while making an order as aforesaid, it appears to the Federal Government that it will not be in the public interest to specify the ground on which the order is proposed to be made, it shall not be necessary to specify such grounds. Remedy to any person aggrieved by an order is provided in Section 3 providing for an application for review within 15 days of the making of such order to the Federal Government setting out the grounds on which review of the order is sought and the Federal Government may after giving person concerned an opportunity of being heard make such order as deemed fit which shall be final and not to be called in question before any Court or other Authority.

2. Indeed the power purportedly vested in the Federal Government is apparently unfettered and unrestricted, it is weD-settled that the discretion vested in Executive must be exercised fairly, reasonably, justly and in accordance with law and the Constitution. In absence of any incriminating material available with the respondent Government against --the petitioner tending to show that he was involved in any serious kind of nefarious activities or acting prejudicial to the security and solidarity of the State, impugned order cannot be sustained in law inasmuch as not a single instance of involvement of the petitioner in any serious crime is shown to exist. By restricting the movement of the petitioner, respondents appear to have violated the provisions of Articles 4, 9 and 15 of the Constitution. Articles 4, 9 and 15 may be reproduced hereunder for the sake of convenience and proper appreciation of the point under consideration:

"4.-(l) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular--

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c) no person shall be compelled to do that which the law does not require him to do."

"9. No person shall be deprived of life or liberty save in accordance with law."

"15. Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof."

1. It appears that no action detrimental to the life, liberty, body, reputation or property of any person can be taken except in due course of law and the Constitution guarantees that no person shall be deprived of life or liberty save in accordance with law. Article 15 reproduced hereinabove guarantees to every citizen his right to remain in, enter and move freely throughout Pakistan. Such right to enter the country if he is leaving it or he has gone abroad and is allowed to step out and step in, the country, may be subject to reasonable restriction imposed by law in the public interest. In the case in hand, there is nothing on record and indeed none is pointed out by the learned State Counsel to reflect whether the petitioner was going abroad to hatch any conspiracy against the National interest or his visit abroad _

could endanger the security of the State or was contrary to public interest. bald allegation that he is reportedly front man of Asif Ali Zardari, in our view, is neither adequate nor convincing to support the view that the petitioner may be restricted in his movements out of country. It may beobserved that pursuant to the interim order, petitioner has been to the 1 United States and returned home within the time permitted by this Court whichprima facie manifests his bona fides. Indeed we are supported by the ' cases reported as Government of Pakistan v. Dada Amir Haider Khan PLD 1987 SC 504, Abdul Hafeez Pirzada v. Government of Pakistan, a Division Bench decision consisting of Ajmal Mian and Haider Ali Pirzada, JJ. (as their Lordships then were) reported in 1989 CLC 79 and Wajid Shamsul

Hassan v. Federation of Pakistan PLD 1997 Lahore 617.

1. For the aforesaid facts and reasons even the learned State Counsel was not in a position to find any justification for supporting the impugned order which is declared to be bad in law, invalid and without lawful authority and is accordingly struck down. At the conclusion of the hearing, we had allowed this petition with a further direction that the title documents may be returned to the petitioner. Aforesaid are the detailed reasons for the short order.

(K.K.F.)

PLJ 1999 Karachi 419 (DB)

Present: rana bhagwan das and ghulam nabi soomro, JJ. DR. HAIDER ALI MITHANI and another-Appellants

versus

ISHRAT SWALEH and others-Respondents

H.C.A. No. 8 of 1991, decided on 13.10.1998.

Civil Procedure Code, 1908 (V of 1908)--

—-Ss. 10 & 151--Suit--Stay of~Important ingredients-Five essential ingredients which must be fulfilled before directing stay of subsequently instituted suit, are; matter in issue in both suits must be directly and substantially the same; previously instituted suit must be competent in a Court of competent jurisdiction; Court before which previous suit was pending must be competent to grant relief in subsequent suit; both suits must be between same parties or their representatives; and parties mustbe litigating in both the suits under the same title-Where all such conditions were fulfilled, it was incumbent upon Court trying subsequently instituted suit to stay further proceedings, but if all conditions for exercise of jurisdiction under Section 10, C.P.C. were not strictly fulfilled in order to achieve ends of justice, suit could be stayed under Section 151, C.P.C. or trial of two suits must be consolidated. [P. 422] A

Civil Procedure Code, 1908 (V of 1908)-

—-S. 10-Intention and spirit behind scheme of S. 10, C.P.C. appears to avoid duplication of trial on same cause of action and to obviate conflict of decisions as well as unnecessary labour on adjudication of a common suit

[P. 423] B

Mr. S. Mi Ahmed Tariq, Advocate for Appellants.

Mr. Naimur Rehman, Advocate for Respondent No. 1. Nemo for Respondents Nos. 2 to 5. Date of hearing: 8.10.1998.

judgment

Rana Bhagwan Das, J.-This appeal under Section 15 of the Civil Procedure Code (Amendment) Ordinance, 1980 is directed against the order j». dated 6.12.1990 passed by a learned Single Judge staying the proceedings in "\ Suit No. 1190 of 1989 brought by the appellants against the respondents.

1. The crux of the dispute between the parties revolves around alleged illegal dispossession from tenement son Plot No. D-9, Rizvia Co­operative Housing Society Ltd., Karachi which was let out to the Appellant No. 1 where he was running an eye-clinic by virtue of lease agreements dated 29.3.1968 and 1.1.1972 respectively. Appellant No. 2 is the wife of Appellant No. 1 and is an specialist in fitting and prescribing "contact lenses" and low visual aids" and assists the Appellant No. 1. Sometimes in 1979-80 kndlord refused to accept the rent from Appellant No. 1 prompting him to institute a Miscellaneous Rent Application No. 276 of 1980 in the Court of Vth Rent Controller, Karachi in which he was permitted to deposit the rent The landlord died sometimes in December, 1985 levying his widow and three daughters as legal heirs form whom the property was purchased by Respondent No. 1. After the acquisition of proprietary rights, it is said that Respondent No. 1 through Respondent No. 2 who was then serving as S.S.P. at Karachi started harassing the appellants with imminent danger of unlawful dispossession of appellants from the said premises. In the circumstances, Appellant No. 1 was obliged to file Suit No. 1395 of 1986 renumbered as Suit No. 61 of 1988 in the Court of VIII Civil Judge, Karachi-West seeking permanent injunction for restraining the Respondent No. 1 or anyone else acting or claiming through or under him from disturbing his peaceful possession. After the institution of such suit, an order for maintaining status quo was granted by the Court in his favour. Later Appellant No. 1 left for U.S.A. leaving the eye clinic under the care and supervision of his wife i.e. Appellant No. 2. Essentially case of the appellants is that on the night intervening 23rd and 24th October, 1986 while Appellant No. 1 was out of Pakistan, Respondent No. 1 with the active connivance and in furtherance of a criminal conspiracy with the remaining respondents committed trespass in the tenanted premises and with the help of criminal elements illegally dispossessed the appellants by force and also unlawfully demolished and destroyed the said premises with the active assistance and cooperation of the area police and in complete disregard of status quo order passed by the Court. Later, on 21.4.1987 Appellant No. 1 filed Suit No. 499 of 1987 renumbered as Suit No. 529 of 1988 before the Xth Civil Judge, Karachi-West which is still pending decision.

2. In Suit No. 1190 of 1989 appellants claimed that the cause of action to file this suit arose to the appellants against the respondents firstly on 23rd/24th October, 1986 when Respondents Nos. 1 to 4 committed trespass and the appellants were forcibly and unlawfully dispossessed from the premises which were wrongly demolished and assets, properties, records and documents of the appellants were robbed, destroyed and misappropriated and again arose in July, 1989 when Respondent No. 1 started construction of a multi-storeyed commercial plaza on the plot in suit in violation of appellants' right and the said cause of action continued to subsist from day to day. Appellants prayed for a judgment and decree seeking the following reliefs against the respondents:

"(a) For declaration that the Plaintiff No. 1 being the lawful tenant at the rate of Rs. 400 per month of the entire first and second floor of the immovable property constructed on Plot No. D-9, Rizvia Cooperative Housing Society Ltd., Karachi is entitled to occupy and possess the entire first floor and second floor of the said property on reconstruction/re-erection of whatsoever nature by the Defendant No. 1 or any person/persons claiming through or under him as owner/landlord of the said property.

(b) For permanent injunction restraining the Defendant No. 1, his agents, subordinates, employees, attorneys and/or any one else claiming or acting through or under him from constructing on the aforesaid plot bearing No. D-9, Rizvia Cooperative Housing Society Ltd., Karachi and/or from ortgaging/selling/leasing out/parting with possession, or enjoyment of the said plot of land or any portion thereof or any construction thereon either on the first or second floor in favour of any other person whosoever to the exclusion of the Plaintiff No. 1.

(c) For mandatory injunction directing the Defendant No. 5, all its officers, employees and/or any one else acting on its behalf not to accord approval/sanction to the Defendant No. 1 for constructing multi-storey commercial building on Plot No. D-9, Rizvia Cooperative Housing Society Ltd., Karachi till the Defendant No. 1 agrees to accommodate and give/hand over physical possession to the Plaintiff No. 1 of the entire first and second floor of the proposed building on plot of land bearing No. D-9, Rizvia Cooperative Housing Society Ltd., Karachi and/or in case such sanction has already been accorded then to withdraw, suspend/cancel the same.

(d) For mandatory injunction directing the Defendant No. 1, his agents, subordinates, employees, attorneys, successors and/or any one else acting or claiming through or under him to hand over the physical possession of the entire first and second floor of the said proposed building on Plot No. D-9, Rizvia Cooperative Housing Society Ltd., Karachi on reconstruction/ erection to the Plaintiff No. 1.

(e) For possession of the first floor and second floor of the proposed building on its reconstruction/erection on the plot of land bearing No. D-9, situated in Rizvia Cooperative Housing Society Ltd., Karachi.

(f) For recovery of total sum of Rs. 1,98,00,000 from the Defendants Nos. 1 to 4 jointly and/or severally as compensa- tion/damages/loss caused to the plaintiffs by illegal acts of the Defendants Nos. 1 to 4 with interest thereon at the rate of 15% per annum from the date of this suit till its actual realisation from the said defendants."

1. During the pendency of the suit before the learned Single Judge Respondent No. 1 moved C.M.A. No. 2779 of 1990 under Section 10 read with Section 151, C.P.C. seeking stay of further proceedings on the ground that two suits so filed by Appellant No. 1 were pending between the same parties and the matter in issue in the three suits was directly and substantially same. Upon hearing learned counsel for the parties, learned Single Judge was pleased to stay further proceedings in the subsequent suit pending on the original side of this Court which has been impugned in this High Court Appeal.

2. In order to analyse and comprehend the respective contentions of the parties and the sole point for our consideration in this appeal, it would be necessary to reproduce the provision of Section 10 of the Code of Civil Procedure which reads as under:--

"10. Stay of suit-No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in (Pakistan) having jurisdiction to grant the relief claimed, or in any Court beyond the limits of (Pakistan) established or continued by (the Central Government \\\) and having like jurisdiction or before (the Supreme Court)."

Plain reading of the aforesaid provision of law leads to an irresistible conclusion that five essential ingredients must be fulfilled before directing the stay of subsequently instituted suit

(1) The matter in issue in both the suits must be directly and substantially the same.

(2) The previously instituted suit must be competent in a Court of competent jurisdiction.

(3) The Court before which the previous suit is pending must be competent to grant the relief in the subsequent suit.

(4) Both the suits must be between the same parties or their representatives, and

(5) The parties must be litigating in both the suits under the same title.

1. Where all the aforesaid conditions are fulfilled it is incumbent upon the Court trying the subsequently instituted suit to stay further proceedings but if all the conditions for the exercise of jurisdiction under Section 10, C.P.C. are not strictly fulfilled in order to achieve the ends of justice, the suit may be stayed under Section 151, C.P.C. or trial of the two suits may be consolidated.

2. A critical analysis and evaluation of the pleadings in the earlier suits tends to show that Suit No. 61 of 1988 was confined to the prayer for a permanent injunction restraining the Respondent No. 1 from disturbing or interfering with the appellants' peaceful possession. In the second suit i.e. Suit No. 529 of 1988 it would appear that it was filed under the provisions of Section 9, Specific Relief Act seeking a judgment and decree for possession of the property in suit on the averments that during the pendency of the earlier suit, Appellant No. 1 was illegally and forcibly dispossessed from the premises in suit. In the face of changed situation, it may perhaps be observed without any fear of contradiction that the relief of permanent injunction asked for in the first suit was frustrated and the suit rendered infructuous by reason of subsequent developments. It would further appear that in Suit No. 1190 of 1989 brought before the Single Judge, Appellant No. 2 was impleaded as Plaintiff No. 2 seeking additional reliefs of declaration, injunction and compensation/damages by impleading apart from the Respondent No. 1, the other respondents by introducing another cause of action with regard to raising of construction of a multi-storey building on the plot in suit in July, 1989. Be that as it may, the first cause of action with regard to the relief for possession remained intact and unamended for which relief Suit No. 529 of 1988 was already pending. As regards the additional reliefs with regard to permanent as well as mandatory injunctions against the Respondent No. 1, it is pertinent to note that such right if any might , accrue to Appellant No. 1 if he succeeds in obtaining a judgment and decree for possession owing to the act of unlawful and forcible dispossession from the premises at the hands of Respondent No. 1. With regard to the prayer for damages/compensation due to forcible and unauthorised dispossession and loss of equipments as well as professional income and on account of mental torture and physical discomfort, this ground was available to the appellants on the date of filing suit for possession which was perhaps abandoned and not pressed into service for the reasons best known to them. It may further be observed that in Act the substance of the earlier suit and subsequently instituted suit before this Court remains one and same inasmuch as parties and the subject-matter of the suits are one and the same.

3. The relief for grant of injunction as well as damages/ compensation would also essentially depend on the success of Appellant No. 1 in Suit No. 529 of 1988 if he is able to establish that he was dispossessed from the premises except in due courts of law and he as well as his wife were deprived of professional income, valuable scientific and medical equipments and on that account suffered mental torture, loss of reputation and discomfort. It may thus be safely concluded that sum and substance and the vital issue in both the suits directly and substantially is the same. The intention and spirit behind the scheme of Section 10, C.P.C. appears to avoid duplication of trial on same cause of action and to obviate the conflict of decision as well as unnecessary labour on adjudication of a common suit. Technically speaking it may be said that the Civil Judge would not be competent to grant the relief of damages in the sum of Rs. 1,98,00,000 for want of pecuniary jurisdiction but the fact of the matter remains that the appellants might be entitled to such relief only on proof of forcible and wrongful dispossession from the premises and suffering of mental as well as mandatory loss on account of the facts pleaded in the subsequent suit Learned Single Judge has rightly referred to the precedent cases and assigned valid and strong reasons for arriving at a conclusion that it was a fit case for stay of proceedings. Alternatively it may be pointed out that the proceedings in the subsequent suit are deemed to have been stayed in order to secure the ends of justice and to suppress the mischief within the meaning of Section 151 read with Section 94, C.P.C. In fact and in law, no exception can be taken to the conclusion drawn from the facts and circumstances of the case.

4. Realising the weakness and infirmity of the cause, learned counsel submitted that in exercise of the powers under Section 24, C.P.C. this Court may order the transfer of the suits pending before the Civil Court to this Court but we think that this course of action is not open to this Court as no such ground was urged before the learned Single Judge. Furthermore with the amendment in Sindh Civil Courts Ordinance, 1962 jurisdiction of the District Court at Karachi having been raised to try suits not exceeding Rs. 5 lakhs, instant suit would no longer be triable in the High Court and shall be deemed to stand transferred to the Court of Senior Civil Judge having jurisdiction.

5. Before parting with this judgment, it may be pointed out that on being called upon to state the fate of the suit before the Civil Court, both the learned counsel expressed unawareness about the progress in the suit which has been pending for over a decade before the Civil Court. Instead of pursuing this appeal for eight years, it would have been in the fitness of things and in the larger interests of justice had the appellants pursued the suits instituted earlier in point of time. With these observations, we find no ubstance and merit in this appeal which must fail and is hereby dismissed with costs.

(K.K.F.) Appeal dismissed.

PLJ 1999 Karachi 424

Present: M. shaiq usmani, J.

Messrs. PAKISTAN EDIBLE OILS CORPORATION LTD. KARACHI-

Plaintiffs

versus

UNIVERSAL TRANSPORT CORPORATION and others-Defendants

Suit No. 551 of 1981, decided on 27.2.1999.

(i) Heague Rules-

—Art. HI Rule 6--Notice to carrier U/A. HI Rule 6 of Heague Rules-Held: Not mandatory if consignment has been surveyed. [Pp. 428 & 429] C

(ii) Limitation-

—Carriage of goods-Limitation-Question of-Held: Limitation period is 3 years under a contract not governed by Heague Rules. [P. 428] B

(iii) Transportation-

—-Edible oil-Transportation--Loss percentage-Held: 0.25% is normally permissible but not where short landing is claimed against carrier due to contamination. [P. 427] A

Mr, Samiuddin Sami, Advocate for Plaintiffs.

Mr. Jan Muhammad Dawood, Advocate for Defendants.

Date of hearing: 23.9.1998.

judgment

By order dated 23.9.1998,1 had decreed this suit against Defendants Nos. 1 and 2 and had dismissed it against Defendants Nos. 3 and 4 for reasons to be recorded. Following are the detailed reasons for the same.

Brief facts of the case are that on 23.6.1978 the plaintiffs finalised the purchase of 2500 M.T. crude palm oil from an Indonesian company. Later, on 12.7.1978 the plaintiffs invited offers for carriage of the said quantity of palm oil from Indonesia to Karachi. In response the Defendant No. 2 on behalf of the Defendant No. 1 offered to carry the said quantity of palm oil at the rate of US $17.49 per M.T., which offer was accepted by the plaintiffs and the deal was confirmed. Consequently Defendant No. 1 arranged for vessel M.T. Victory belonging to Defendant No. 3 to carry the said oil. Pursuant thereto the said vessel called the port of Belawan on 17.8.1978, but could not complete the loading of the cargo within the lay time due to delay in the grant of quarantine and immigration clearance to the vessel. Even though the delay in loading was due to the fault and or negligence of the vessel and or Defendant No. 1, the Defendant No. 3 claimed demurrages of US $13310 which claim was passed by the Defendant No. 1 to the plaintiffs with remarks that the demurrages was incorrect and exaggerated. After completing the loading of the oil cargo the vessel left Belawan on 17.8.1978 but instead of proceeding directly to Karachi as per Clause 18 of plaintiffs' contract with Defendant No. 1, the vessel called at Bombay where due to some reasons or the other it was delayed by four months and eventually reached Karachi on 12.12.1978 i.e. after full four months from the time of leaving Belawan. The plaintiffs claimed that the time taken by the vessel to reach Karachi as per terms of the contract from Belawan was much in excess of the normal passage of time between two ports. Thus according to them, the defendants have failed to deliver the cargo within reasonable time as they are bound to do under the law and also under the terms of the. agreement between Defendant No. 1 and the plaintiffs. The plaintiffs contend that due to this inordinate delay in the delivery of the oil cargo, they have suffered losses which they claim from the defendants in this suit.

Amongst the defendants only the Defendant No. 1 has fileJ Written Statement which also covers the role of Defendant No. 2 who v/ere the local sub agent of the Defendant No. 1. Through their Written Statement, the Defendant No. 1 claimed to be merely the ship brokers, that is to say the agent who brought the Defendant No. 3, the owners of the vessel in question in contact with the plaintiffs and that the Defendant No. 2 were merely their co-broker and sub-agent. The Defendant No. 1, therefore, aver that having performed their functions of bringing Defendant No. 3 and the plaintiffs together they had fulfilled their responsibilities under the agreement between the plaintiff and themselves and thereafter, the rights and liabilities of the parties would be governed by a charter party that was entered into between the plaintiffs and the Defendants No. 3. The Defendant No. 1 also disclosed that the Defendant No. 4 were in fact the owners of the vessel and hence they too were subsequently added as a party to these proceedings. In so far as the delay in the delivery of the cargo is concerned, the Defendant No. 1 maintained that the liability for this would be that of the ship owners and not of the Defendant No. 1.

Based on the pleadings of the parties the following issues were framed to which additional issues were added. A consolidated list of the issues framed is given below:--

1. Whether the suit is had for non joinder of owners of the vessel and its local agents?

2. Whether the plaintiff has any contractual relationship with the defendants?

3. Whether the Defendants Nos. 1 and 2 have acted as brother and sub broker?

4. What were the terms and conditions under which the goods were carried to Karachi on board the vessel?

5. Whether there is customary permissible handling loss of oil in transportation up to 1.5%? If so, what is its effect?

6. Whether the plaintiff has suffered any loss? If so, to what extent?

7. Whether the suit is barred by limitation?

8. Whether the Defendant No. 3 is discharged of its lability under Art. Ill Rule 6 of the Carriage of Goods by Sea Act 1925? If so, its effect?

9. Whether loss or damages, if any, was caused before or after the discharge of the cargo from the vessel and who is responsible for it?

10. Whether the plaintiff is entitled to relief, if so against which defendants?

The evidence in this matter was recorded by a Commissioner before whom the plaintiffs' witness filed his affidavit in evidence, who was then cross-examined by the Defendants Nos. 1 and 2's counsel but the Defendants Nos. 1 and 2 themselves did not bring any evidence on record. In so far as the affidavit in evidence is concerned it was substantially a repetition of the contents of the plaint During the course of arguments the defendants were not represented and only the counsel for the plaintiffs appeared.

ISSUE NO. 1.

The learned counsel for the plaintiff did not address me on this issue at all. In any case I find there was no necessity for the local agent of the owners of the vessel to be impleaded in this case because primarily in this suit plaintiffs claim is against the Defendants Nos. 1 and 2 under the terms of agreement between them. In so far as, impleading of the owners of vessel is concerned, the plaintiff had impleaded Defendant No. 3 as the owners, later upon disclosure that in fact Defendant No. 4 were the owners, they too were added. My findings, therefore, for this issue are in the negative.

ISSUES NOS. 2 AND 3.

The defendants have led no evidence at all, consequently, in deciding these issues I will have to consider their averments in their pleadings. It is an admitted position that the Defendants Nos. 1 and 2 did act as brokers to fix this vessel for carriage of oil cargo from Indonesia to Karachi. To this extent there is no doubt that there is contractual relationship between plaintiffs and the defendants. As to when this contractual relationship ended is a question which could have been debated upon but since the defendants have chosen not to lead any evidence on this question, I have no option but to accept the plaintiffs' version and, therefore, my findings in respect of these issues are in the affirmative.

ISSUE NO. 4.

The terms and conditions of the carriage of the oil cargo from Indonesia to Karachi are substantially contained in the freight tender, which is annexed as annexure "B" to the plaint. In the absence of any evidence of the defendants and also any denial of this document the presumption would arise that this document indeed contained the agreement between the plaintiffs and the Defendants Nos. 1 and 2. The Clause 18 of the this agreement clearly states as under:

"Vessel to sail directly for Karachi port from last port of loading unless otherwise mutually agreed."

There is no need for me to go into other terms and conditions of the Agreement because they are not relevant for the purpose of decision in this suit.

ISSUE NO. 5.

It has been recently held by me in a judgment in Suit No. 386/1982 that in case of edible oil a transportation loss of 0.25% is permissible. Consequently any short landing proved has to be adjusted by that amount to determine the exact quantity of cargo short landed. However, in this case loss of 7.857 M.T. is not claimed by way of short landing but due to contamination and hence this allowance for transportation loss will not be applicable in this case.

ISSUE NO. 6.

It is clear that there was an agreement between the Defendants Nos. 1 and 2 and the plaintiff that the vessel would sail directly from the port of Belawan to Karachi and it is an admitted position that the vessel was delayed by about three months due to the intervening call by her to Bombay. Considering that passage time from Indonesia to Karachi is not more than ten days, it is obvious that there was inordinate delay and that the cargo was not carried to Karachi within a reasonable period. The plaintiffs have alleged that due to this delay the cargo had deteriorated and was contaminated and because of that they have suffered a loss of 7.857 M.T. as a result of contamination and 87.942 M.T. as a result of loss of quality, which when quantified in terms of money amounts to US $ 56,582.47 equivalent to Rs. 5,62,814.51. Since the defendants have not brought any evidence on record to rebut this claim of the plaintiff I have no option but to accept the plaintiffs' evidence and, therefore, I find that the plaintiffs have suffered a loss of US $56,582.47.

ISSUE NO. 7.

The defendants have contended in their Written Statement that this suit is barred by limitation because it was brought after one year of cargo being discharged. The contention of the defendants would have been correct if the plaintiffs' claim arose from Contract of Carriage by Sea which is governed by the Heague Rules under which as per Art. Ill Rule 6 limitation period is one year but that is not the case here. Plaintiffs' claim is clearly under a Contract with the Defendants Nos. 1 and 2 for which the limitation period is three years and consequently, I find that the suit is within time.

ISSUE NO. 8.

This issue is based on misconception of provisions of Article ni Rule 6 of the Heague Rules. Article III Rule 6 of the Heague Rules reads as under

"6. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall beprimct facie evidence of the delivery by the carrier of the goods as described in the bill of lading.

The notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection.In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.

In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods."

It is now well settled that the provision for giving notice for loss or damage to the carrier within three days is not a mandatory provision particularly when the consignment has been subjected to a survey, which happens to be the case here. My findings, therefore, in respect of this issue are in the affirmative.

ISSUE NO. 9.

From the pleadings of the parties it is clear that the loss claimed by the plaintiffs arose from the delay in delivery of the cargo in violation of the contract of freightment between the plaintiff and the Defendants Nos. 1 and 2. The loss itself occurred because of the resulting contamination and deterioration in quality of the cargo. Consequently it is of no relevance whether the loss or damage was caused before or after the discharged of the cargo from the vessel. In so far as the responsibility for the loss is concerned, I find that since the Defendants Nos. 1 and 2 have failed to fulfil the terms of the agreement between them and the plaintiffs inasmuch as they failed to ensure the vessel sailing directly to the port of Karachi from the port of loading, the responsibility for the loss of the plaintiff is entirely attributed to the breach of contract by the Defendants Nos. 1 and 2. In so far as the other defendants i.e. owners of the vessel are concerned, they would be bound by terms and condition of any agreement that the Defendants Nos. 1 and 2 had entered with the ship owners. Since the Defendants Nos. 1 and 2 have not brought on record these terms and conditions it is not possible for me to hold the ship owners i.e. Defendants Nos. 3 and 4 responsible for this loss. In any case the proximate cause of plaintiffs' loss is the vessel not abiding by the term of the agreement between plaintiff and Defendants "Nos. 1 and 2 whereby it was to sail directly from Indonesia to Karachi.

In view of the discourse above, I find that the plaintiffs have not been able to make out a case against the Defendants Nos. 3 and 4 but they have proved their claim against the Defendants Nos. 1 and 2 for the loss due to contamination and deterioration in quality of the oil cargo and consequently, I decree the suit against the Defendants Nos. 1 and 2 in the sum of US $ 56,582.47 alongwith interest at the rate of 10% per annum and dismiss it against the Defendants Nos. 3 and 4.

(K.K.F.) Orders accordingly.

PLJ 1999 Karachi 430 (DB)

Present: WAJfflUDDIN AHMED, C.J. AND MUHAMMAD ROSHAN ESSANI, J.

MASOOD AHMED KHAN»Petitioner versus

N.E.D. UNIVERSITY OP ENGINEERING AND TECHNOLOGY, KARACHI through VICE-CHANCELLOR-Respondent

C.P. No. D-2267 of 1997, decided on 4.5.1998.

(i) Educational Institution--

—Constitutional petition u/A 199 of Constitution of Pakistan, 1973—Non-joinder of necessary party-Candidate who got admission in place of petitioner, was non-joinder—Held : Such student would have lost seat without being heard, Constitutional petition, therefore, was liable to be dismissed on account of non-joinder of necessary party.

[P. 933] C

(ii) Educational Institution-

—Admission—Question of-Prospectus of N.E.D. University of Engineering and Technology, Karachi 1997-98 Rule 12.2.2.(a)~Candidate who passed his Higher Secondary Certificate from Board of Intermediate and Secondary Education at Hyderabad offered himself to compete with candidates of Board at Karachi by suppressing the fact of having passed from Board at Hyderabad-Effect-Such candidate was disqualified to apply for admission—He has approached High Court with unclean hands by concealing of fact-Non-joinder of parties is also an important factor to dismiss this petition. [Pp. 432 & 933] A & B

Mr. Muhammad Aftab Atom, Advocate for Petitioner. Mr. Rehanul Hassan Farooqui, Advocate for Respondent Date of hearing: 24.3.1998.

judgment

Muhammad Roshan Essani, J.-The petitioner through this petition has sought the following reliefs:-

(a) To declare that respondent i.e. • Vice-Chancellor N.E.D. University of Engineering, and Technology, Karachi has acted in excess of his jurisdiction and power by disallowing the admission of the petitioner on merits seat on the ground that he has passed his first year examination of Inter Science from the Hyderabad Board.

(b) To order and direct the respondent Vice-Chancellor to admit the petitioner in the Textile Engineering Course of 1997-98

Session in first year in accordance with open merit at N.E.D. University of Engineering and Technology, Karachi.

Briefly stated the facts leading to above reliefs as stated in the memo, of petition are that the petitioner was born at Karachi on 7.5.1979, and acquired domicile and P.R.C. Certificate from the Deputy Commissioner, Karachi (West). His father expired at Karachi on 12.7.1997. The petitioner passed his Secondary School Examination from the Board of Secondary Education, Karachi in the year 1994, and secured 566 marks out of 850 and he was placed in "B" Grade. In the year 1997 the petitioner passed his Intermediate Examination in Science Group from the Board of Intermediate Education, Karachi with improvement and secured 878 marks out of 1100 and was placed in Grade "A".

According to petitioner, he being eligible for admission to the First Year of Textile Engineering Course in terms of the rules laid down in the prospectus issued by the respondent, he applied for such admission on the prescribed form to the said course. It is averred that his name was included in the merit list of the candidates for admission but subsequently, he was refused admission. The petitioner met with the Chairman of the Admission Committee of the respondent for admission, who also refused to give him admission on the ground that he has passed his First Year Examination from the Board of Intermediate and Secondary Education, Hyderabad, therefore, he was not eligible for admission. The petitioner has further averred that he appeared in the annual examination of Intermediate after obtaining the permission from the Karachi Board and passed the said examination from the Board of Intermediate and Secondary Education, Karachi and Chairman of the Admission Committee of the respondent has wrongly denied admission to him. He has prayed that the order refusing admission by respondent is in excess of his authority and he has prayed for direction be issued to the respondent to admit the petitioner in first year of the Textile Engineering Course of 1997-98 in N.E.I. University of Engineering and Technology, Karachi.

On 11.2.1998 this petition was admitted to regular hearing.

The respondent had filed their comments disputing the facts that the petitioner had not passed his H.S.C. (Pre-Engineering) Parts I and n Examination from the Board of Intermediate and Secondary Education, Karachi, so as to qualify for admission in category 12.2.2(a), as prescribed in the prospectus and that the contents of admission form are false and incorrect. The petitioner has also suppressed the fact that he has requisite qualification. As per prospectus the petitioner was required to pass H.S.C. Parts I and n Examination from Karachi Board, whereas he had passed the same from the Hyderabad Board of Intermediate and Secondary Education which fact he has concealed in the memo, of petition. Mere improvement from Karachi Board is not enough to qualify him to apply for admission as it does not dispense with the condition in the prospectus. According to the respondent, the petitioner was not eligible to be admitted in N.E.D. University at the cost of other eligible candidates. The respondent further in his comments has stated that the petitioner had deliberately submitted incomplete documents along with the admission form which included original Mark Sheets of H.S.C. Parts I and II Examination. Had these documents been submitted earlier the name of the petitioner would not have been included in the merit list The registration number was issued to the petitioner on 20.10.1997 and his name was included in merit list on 20.11.1997 before the scrutiny of the necessary documents. The interview of the petitioner was held on 2.12.1997 when it transpired that he had passed his H.S.C. Parts I and Part n form Hyderabad Board in 1996 and had only improved three subjects i.e. Islamic Education (first year), Pakistan Studies and Physics paper n theory from Karachi Board in the year 1997, therefore, name of the petitioner was deleted and he was disqualified to apply for the admission in N.E.D. University of Engineering and Technology.

On 11.2.1998 when this matter came up before us no one appeared for the respondent and we passed the following order:-- '

"This is the second call in the case and time now is 12.25 P.M.

For the reason set out in the ordered, dated 23.12.1997 this petition is admitted to regular hearing. No notices, however, to the respondents need issue because the respondent is already represented. Replies to be exchanged according to the rules within three weeks. Because this is a student's case requiring prompt disposal, regular hearing is fixed on 5.3.1998. To come up accordingly.

(2) This is an application for interim relief. If the petitioner is not allowed ad interim permission in terms prayed for and if the petition ultimately succeeds, this would become a case of hardship. The application is allowed but the petitioner would attend classes and pursue course of study at his own risk and subject to the decision of this petition."

We have heard the learned counsel for the parties and have perused the pleadings. We are not impressed by the arguments advanced by the learned counsel for the petitioner.

The Rule 12.2.2.(a) of the prospectus of the N.E.D. University of Engineering and Technology, Karachi 1997-98 speaks about total number of seats reserved for candidates who are permanent residents of Sindh Province and have passed Higher Secondary Certificate (Pre-Engineering) Part I and Part n Examination and made improvement, if any, from Board of Intermediate and Secondary Education, Karachi is 500. These seats have further been divided in different disciplines. The candidates who pass the •H.S.C. Examination from the Board of Intermediate and Secondary Education, Hyderabad have 22 seats. The Mehran Engineering University Jamshoro is basically meant for the candidates who belong to interior of Sindh and have passed their, H.S.C. Parts I and II Examination from the Board of Intermediate and Secondary Education, Hyderabad, but as per reciprocal arrangement, some seats are reserved in Karachi for the candidates of Hyderabad, as against the seats reserved in Mehran University for the candidates of Karachi. The petitioner applied for admission in category 12.2.2(a) as is evident from his admission form. He offered himself to compete with the candidates of Karachi Board by suppressing the fact that he had cleared 7 out of 8 papers in H.S.C. Part 1 and 6 out of 8 papers in H.S.C. Part II, Examination from the Board of Intermediate and Secondary Education, Hdyerabad as is evident from his marks sheet issued by Hyderabad Board. This by itself disqualifies him to apply for admission under category 12.2.2(a) of the prospectus mentioned above.

The documents filed by the respondent further reveal that the last candidate at serial No. 500 is Miss. Aisha Tabbasum who has been allowed admission. She has secured 883 marks whereas petitioner has secured 878 marks. He even otherwise, having less marks had no right of admission. He has approached this Court with unclean hands by concealing facts. Apart from what is stated above the petitioner merits dismissal on account of non­joinder of the parties who are likely to be affected in the event, this petition was allowed. The student who has got the admission in place of the petitioner would have lost her seat without being heard.

For the aforesaid reasons we see no merit in the petition and consequently the same is dismissed.

By a short order, dated 24.3.1998 we had dismissed this petition and these are the reasons for the said order.

(T.A.F.) Petition dismissed.

PLJ 1999 Karachi 433 (DB)

Present; alimuhammad baloch and ikram ahmed ansari, JJ.

Sayed SHAHAN AURANGZEB-Petitioner

versus

PRINCIPAL OF LIAQUAT MEDICAL COLLEGE AND CHAIRMAN, SELECTION BOARD, L.M.C., JAMSHORO

and 3 others-Respondents

Constitutional Petition No. D-1204 of 1996, heard on 17.9.1998.

(i) Educational Institution-

—Admission in medical college-Cancellation of—Admission of student was cancelled on ground that marks sheet submitted by him was found to be bogus and tampered with on reverification-Show-cause notice was issued to student--Student did not reply—Admission of student was cancelled— Marks sheet submitted by student at time of admission was found to be manipulated and not based upon record available with Board of Intermediate and Secondary Education-Effect-Where student had obtained admission on manipulated and incorrect marks certificate and admission was cancelled at earliest opportunity on verification of his certificate, decision of cancellation of admission was maintained.

[Pp. 437 & 438] A & C

(ii) Educational Institution--

—Admission to medical college-Bogus and manipulated marks sheet was submitted by candidate-Delinquent persons including candidates who maneuvered to forge certificate-High Court desired that such delinquent persons should be brought to book, so that they be punished. [P. 438] B

Mr. S. Jehangir Hussain Shah, Advocate for Petitioner. Mr. Muhammad Salim Samoa, A.A.G. for Respondents Nos. 1 and 2. Mr. Ahmed Mi M.Memon,Advocate for Respondents Nos. 3 and 4. Date of hearing: 17.9.1998.

judgment

Ali Muhammad Baloch,J.--The petitioner Syed ShahanAurangzeb, had passed higher secondary certificate Parts I and II, examinations of 1995 from the Board of Intermediate and Secondary Education, Hyderabad under Seat No. 69321. He had produced a markscertificate before the Principal Liaquat Medical College, who was also the Chairman of Selection Board of admission to first year M.B.,B.S., classes, showing that he had secured 786 marks. That marks certificate was issued to the petitioner by the Board of Intermediate and Secondary Education, Hyderabad as Marks Sheet No. 025900 of Book No. 259 on 30.1.1996.

On the basis of such certificate, petitioner was admitted to first year M.B..B.S, class as he was found eligible to admission on the basis of the number of the marks secured by him from District Sanghar, in comparison to other candidates under the policy and provisions prevailing at that time for admission to First Year M.B.,B.S., course of Liaquat Medical College. The petitioner deposited the fees on 6.3.1996 and started attending the classes for the Session 1996-97.

On 14.5.1996, the admission allowed to the petitioner was cancelled by the Selection Committee, and such order was passed and copy thereof was communicated to the petitioner. The reason for the cancellation of the admission of the petitioner was that when the marks certificate submitted by the petitioner at the time of admission, was sent to the Controller of Examinations Board of Intermediate and Secondary Education, Hyderabad, for re-verification, the Controller had informed the Selection Committee that the said marks certificate was bogus and tampered, as the actual marks secured by the petitioner were 770 and not 786 as mentioned in the certificate produced by the petitioner at the time of admission.

Before cancellation of admission of the petitioner the Principal and the Chairman of the Selection Committee, Liaquat Medical College, Jamshoro, had issued a show-cause notice to him under the rules mentioned in the prospectus of the College. The petitioner did not care to reply to the said show-cause notice within the stipulated period of 14 days. The petitioner was called upon to return his College Identity Card, Library Books if outstanding against his name.

The petitioner challenged such order of the Selection Committee cancelling his admission by this petition on 24.7.1996 contending that since the petitioner had been allowed admission after looking into the documents, and that the original documents submitted by him were verified on the spot on the date of interview by the Committee and, therefore, the impugned order was mala fide, illegal, against natural justice and that it had taken away the legal right of the petitioner. The petitioner also challenged that there was no forgery committed by the petitioner, that he had not committed any interpolation in his marks and that since he was attending the classes, the cancellation of his admission at that stage was illegal. He made the following prayers in the petition:-

"(a) Declare that the OfBce Order No. LMC/Admission-5261/63, dated 14.5.1996 is mala fide and without lawful authority.

(b) Grant Permanent Injunction restraining the Respondent No. 1, from acting from the abovesaid order.

(c) Cost of the petition.

(d) Any other relief which this Honourable Court deems fit and proper."

The petition was admitted on 9.12.1996 as the petitioner's counsel had relied on the authority reported in 1989 MLD 1903. On a Miscellaneous application moved by the petitioner, petitioner was permitted to appear in the classes on his own risk and cost and it was also ordered on 14.1.1997 that his result will not be declared till further orders by this Court.

The Respondent No. 4, Controller of Examinations, filed his counter-affidavit, specifically denying that the petitioner had secured 786 marks and contended that the confirmed marks secured by the petitioner were 770 and that on such marks he was not entitled to the admission and that the certificate produced by the petitioner showing 786 marks was not correct and that it was a manipulated one. It was also pleaded that the petitioner was provisionally admitted and that on verification of his actual marks he was not found entitled to the admission and, therefore, his admission was cancelled. It was expressly contended that on verification of the marks sheet form the board it was found that the petitioner produced a manipulated marks sheet, with the intention to defraud the selection committee and that the petitioner had thereby usurped the right of somebody else who lost the privilege of getting admission in his place. The Controller of Examinations placed on record the actual marks certificate, which was sent to College Authorities by the Board of Intermediate and Secondary Education, Hyderabad on their request, which showed that the petitioner had secured 770 marks. In a rejoinder affidavit, the petitioner reiterated his position and alleged that the respondent Controller of Examinations had relied on a false marks certificate showing 770 marks which was, according to him, managed by the respondents.

In obedience to the order of this Court, dated 19.2.1998, an inquiry was held by the Principal Liaquat Medical College Jamshoro in which the tampered marks sheet was to be compared with the official record, after due notice to the petitioner. The Principal mentioned in his subsequent order passed by him in obedience to the directions of the Court, that the petitioner was called upon to obtain a fresh marks sheet from the board and produce the same before the Enquiry Committee. The Controller of Examinations Board of Intermediate and Secondary Education, Hyderabad was also called to attend the Enquiry. The petitioner obtained a fresh marks certificate which was issued by the Board of Intermediate and Secondary Education, Hyderabad. The fresh marks certificate was produced by the petitioner at the time of enquiry and it showed that his marks were 770, which as a corollary proved that the certificate showing number of marks as 786, had been result of tampering. In subsequent comments filed by Respondent No. 1, the marks of the petitioner were found to be the result of tampering, as given in the following table:--

"Marks Tampered in S.S.C. Part I as under:-

| | | | | | | | --- | --- | --- | --- | --- | --- | | English Paper I | | Urdu Paper I | | Chemistry Paper I | | | Actual | Tampered | Actual | Tampered | Actual | Tampered | | 51 | 57 | 82 | 87 | 51 | 56 |

After such inquiry and second order further comments were filed by the Principal and Chairman of the Selection Committee, in which it was again held that the petitioner was not entitled to the admission as he had failed to bring any proof that he had originally obtained 786 marks and that his actual marks being 770, he was not entitled to admission according to the merit list of the candidates of District Sanghar, to which he belonged, as he had lesser marks than other candidates.

When this case came up before us for regular hearing we directed the Respondent No. 3/Controller of Examinations of the Board of Intermediate and Secondary Education, Hyderabad to produce the original Marks Sheet/Register containing the marks of the petitioner relating to this case. Ultimately we directed the personal appearance of the Chairman of Board of Intermediate and Secondary Education, Hyderabad. On 16.9.1998, Professor Ms. Mustajab Zohra, the Chairman of the Board of Intermediate and Secondary Education, Hyderabad alongwith Hafiz Arshad, the Controller of Examinations in Board of Intermediate and Secondary Education personally appeared and brought the original register in which the marks obtained by the petitioner in the relevant examination were tabulated. The other original record brought by the Chairman and the Controller of Examinations was the tabulation sheet, in respect of the subjects in which the petitioner had appeared, and the tabulation sheet showed in words the actual marks obtained by the petitioner in the relevant subjects. These original documents were produced in Court on the suggestion of the learned counsel for the petitioner as his contention was that there might be some manipulation in the original record of the board as according to him the total number of marks obtained by the petitioner was 786 and that the record could prove that they have been manipulated to show as 770. We checked the record produced by the Professor Ms. Mustajab Zohra, the Chairperson of the Board of Intermediate and Secondary Education, Hyderabad and the Controller of Examinations, Hafiz Arshad, who both were satisfied with correctness of the entries in the record. We were also convinced after inspecting the original record that there was no mistake nor any manipulation, and that in fact the petitioner had obtained only 770 marks in his examination and the certificate issued to him showing the total number of the marks to be 786 was a manipulation and was not based on the record available with the Board of Intermediate and Secondary Education.

In fact after the order passed by this Court on 19.2.1998, the enquiry report submitted by the Principal in response to the Court's directions was enough to be relied upon by the Court for dismissing the petition but since there was a mention in the inquiry report that Controller of the Examinations had not cooperated and had not appeared before the Principal, with the record, we thought there was possibility of the fact that some employees of the Board of Intermediate and Secondary Education, were involved in the racket of issuing incorrect certificates, we had taken up on ourselves to check the record. We had heard this matter on 17.9.1998 when the counsel for the petitioner Syed Jehangir Hussain Shah, had taken our leave not to be present next day as he had to leave for America, but the father of the petitioner Syed Ibrahim Shah, attended, on the next day. He was present during the proceedings of the inspection of the record and had participated in the proceedings and replied to the queries of the Court He was shown and confronted with the original ledger, the tabulation forms, the original entries in respect of the marks obtained by the petitioner. His explanation was merely that first certificate containing total marks 786 was also issued to the petitioner by the Board, therefore, it could not be wrong.

We were satisfied on careful examination of the abovenamed record as well as the statement made by the Chairman and the Controller of Examinations of the Board of Intermediate and Secondary Education, Hyderabad, that the first certificate bearing total marks of 786 must have been manipulated by the petitioner in collusion with some of the employees of the Board. Therefore, we leave it to the Chairman of the Board to find out a thorough enquiry which may be ordered by herself, or if the Chairman R considers it necessary, she may get the investigation carried out through police so that delinquent be punished and the name of the prestigious institution like the Board of Intermediate and Secondary Education, be vindicated. If the evidence be available, all persons including the candidates who maneuvered the forged certificates, be brought to book. We expect that the Chairman shall be strict and vigilant in this respect, to avoid such happenings in future.

Since we have come to the conclusion that petitioner had obtained admission on a manipulated and incorrect marks certificate and that his admission was cancelled at the earliest opportunity on the verification of his certificate, we do not agree with the view taken in the case of Wasim Ansari v. Liaquat Medical College, reported as 1989 MLD 1903. We cannot allow the petitioner to continue his studies obtained by him on the basis of a manipulated marks certificate, nor can we quash the decision of the Principal and the Chairman of the Selection Committee. Petition is, therefore, dismissed with costs.

As regards the absence of the Chairman on the last date of hearing before us, for which we had issued a contempt notice, she has placed before us the explanation and unconditional apology, which we accept and discharge.

(T.A.F.) Petition dismissed.

PLJ 1999 Karachi 439

Present: raja qureshi, J. Messrs SHAHEEN CONSTRUCTION COMPANY-Applicant

versus

RIAZ HUSSAIN and another-Respondents

Civil Revision Application No. 107 and Civil Miscellaneous Application No. 1187 of 1998, decided on 29.9.1998.

Establishment of the Office of Ombudsman for the Province of Sindh Ordinance (IX of 1991)-

-—S. 19-Application for interim injunction against order of Provincial Ombudsman—Order of Provincial Ombudsman was challenged in appeal before Governor which was rejected-Constitutional petition in High Court was also dismissed-Petition for leave to appeal before Supreme Court was dismissed as withdrawn-Civil suit was filed in respect of same matter-Trial Court refused interim stay but Appellate Court granted same-Status-Where orders passed by Ombudsman had attained finality up to level of Supreme Court order passed by Appellate Court in terms of granting injunction was not warranted by law-Revision Accepted.

[P. 443] A, B & C

Mr. Talmiz Burney and Dilwar Hussain, Advocates for Applicants. Nemo for Respondents. Date of hearing: 29.9.1998.

order

Impugned in this revision is an order passed by the learned 1st Additional District Judge, Karachi (East) in Civil Miscellaneous Appeal No. 21 of 1998 on 30.4.1998.

Respondents were directed to be served through substituted service by way of publication in the "Daily Jang" at the cost of the applicant. On 15.9.1998 service against the respondent was held good and it was consented to by the Respondent No. 2 that these revisions may be admitted, heard and disposed of on the next date of hearing. On 18.9.1998, these revisions had been partly heard but a peculiar aspect occurred whereby the learned counsel for the applicant had informed that an appeal against the order of the Honourable Provincial Ombudsman of Sindh had been filed before the Governor of Sindh. Consequently, office was directed to enquire from the Provincial Ombudsman Secretariat, Sindh as to the outcome of the appeal filed before the Governor of Sindh. Report from the Provincial Ombudsman Secretariat has been received, dated 25th September, 1998 confirming the decision of the Ombudsman passed in Case No. POS-33835/98-A. Suchappeal has been rejected by the Competent Authority and correspondence to »,, such effect has been conveyed in confirmation of rejection of the said appeal, videGovernor's Secretariat Letter No. GS/39-5/97(SO-IV)/449, dated 20.6.1997.

Coming to the controversy in the present proceedings, it would be profitable to place the background in respect of the controversy being agitated in these proceedings. It seems that the applicants are Builders and Developers and are exclusive owners of Plots of land bearing Nos. A-65, A-68 and A-69 situated in Block No. 10, Gulshan-e-Iqbal Scheme No. 24, Karachi by virtue of the order of allotment dated 4.6.1997, which had been issued in favour of the applicant in lieu of the Plots Nos. A-44, A-45 and A-46, situated in Block 10, Gulshan-e-Iqbal, Karachi. It further seems that the Respondent ifNo. 1 was able to engineering and manage in obtaining one of the plots, which stood violative of the orders passed by the Provincial Ombudsman Sindh on 25.10.1993. Such violation was accordingly brought to the notice of the Ombudsman seeking safeguard of the properties of the applicant. It further seems that the Respondent No. 1 had filed an application before the Ombudsman to be joined as a necessary party having interest in the _, proceedings, which was accordingly allowed by virtue of the fact that the Respondent No. 1 had claimed to be purchaser of Plot No. A-65, out of the said three plots. Record reveals that pleas of the respondent were dismissed for non-prosecution and it was held by the Honourable Ombudsman that the Respondent No. 1 apart from being a fictitious person has, in fact, been set up by land grabbers in connivance with public functionaries working in the office K.D.A. For the purposes of ready reference, Para. 7 of the order passed by the Honourable Ombudsman is reproduced in extenso hereinunder:-

"(7) It may be noted that these alleged encroachers (1 Muhammad Murad, 2 Zamir Ahmed, 3. Razaullah and 4. Riaz Hussain) had also moved a miscellaneous application on 18.1.1996 for being impleaded as interveners. They claimed that they had purchased these plots from Al-Mehran Builders. The interveners, however, placed nothing on record to show that Messrs Mehran Builders had any thing to do with those plots and had proprietary rights in them. There was also nothing on the record of K.D.A. to show that these plots had ever been allotted to, or were in any way in possession of, Al-Mehran Builders. It is also worth noting that the name of Intervener No.3 is Razaullah but the documents on which he relies are in the name of Raza Muhammad (page 18-20 of intervener's file). All these four interveners set up as front men by some unscrupulous builders who are in collusion with some corrupt elements in K.D.A. Land Department to grab the plots. All these four interveners could not be found on the addresses given by them in their application and could not be served on these addresses (these addresses are of the plots in question). They (or some persons posing for them) did appear before Shah Mansoor Alam (Director-General of Ombudsman's Secretariat) a couple of times but they could not establish their identity or their bona fides and according to Shah Mansoor Alam they appeared to be of the category of labourers and not of the type who could purchase these plots. Even so, they vanished and did not appear before me when summoned and it was found that they were not residing on the addresses given in their petition (the addresses are of the plots in question). If they were bona fide interveners they would have been residing, as per the claim in their application, on the plots in question. In the alternative, they would have given their current addresses if they had shifted their residence. They are clearly set up by land grabbers with the collusion of the corrupt elements in the Land Department of K.D.A. As such, their application for being impleaded in these proceedings was dismissed for non-prosecution on 9.12.1996 vide order at paras. 178-179 of the note sheet. It is evident that this application should also be deemed to have been dismissed on merits as well."

Being aggrieved by the findings of the Honourable Ombudsman, the Respondent No. 1 seems to have invoked Constitutional jurisdiction of this Court by filing Constitutional Petition No. 678 of 1997. Such petition was dismissed in limine by a Division Bench of this Court, headed by the Chief Justice, vide order, dated 26.3.1997. Things do not appear to have settled here. It further seems that the Respondent No. 1 had yet filed petition before the Honourable Supreme Court of Pakistan being Civil Petition for Leave to Appeal bearing No. 124-K of 1997. The learned counsel has placed a copy of the order passed on 3.6.1997 by a Bench of the Supreme Court of Pakistan in the said petition, wherein the Respondent No. 1 sought permission to withdraw the said petition before the Supreme Court of Pakistan. For the purposes of ready reference, order passed by the Honourable Supreme Court of Pakistan in Civil Petition No. 124 of 1997 is reproduced in extenso hereinunder:--

"Order Mr. Farooq H. Naek, learned counsel for the petitioner after addressing for some time, sought permission for withdrawal of the petition for approach competent forum.

The petition is dismissed as withdrawn.

Sd/-MUNAWAR AHMED MIRZA, J.

Sd/-KHALEL-UR-REHMAN KHAN, J."

The respondent having failed before the Honourable Ombudsman Sindh, before this Court and having withdrawn their petition before the Supreme Court of Pakistan appear to have agitated the same issue by way of filing a Civil Suit No. 567 of 1997 in the Court of the learned Vlth Senior Civil Judge, Karachi-East, without joining the present applicant as a necessary party to the proceedings. In the said proceedings an application under Order 39, Rules 1 and 2, C.P.C. was also filed seeking an injunction in favour of the Respondent No. 1. The said suit was resisted by the present applicant on factual as well as legal plain. At the very out set, it appears that the learned Civil Judge had granted an order of status quo, ex parte, and thereafter, when the application under Order 39, Rules 1 and 2 came to be dealt by the Senior Civil Judge, the same stood dismissed. Aggrieved by the order of dismissal, the Respondent No. 1 seems to have filed Civil Appeal bearing No. 21 of 1998 before the Court of the learned 1st Additional District Judge, Karachi East Upon hearing, the learned Additional District Judge, Karachi (East) had set aside the order, dated 19.3.1998, passed by the learned Senior Civil Judge, Karachi (East) and allowed the application filed by the respondent under Order 39, Rules 1 and 2, C.P.C. The applicant feels aggrieved by the order passed in the appeal, which is impugned in the present revision application. It has been contended by the learned counsel for applicant that the matter having gone right up to the apex Court of this ~"Country and thereafter, stood resolved. No proceedings could either have been entertained or for that matter adjudicated by the Court of Civil Judge specially in the light of the Bar contained under Section 29 of the Sindh Ordinance IX of 1991. For the purposes of ready reference Article 29 of theSindh Ordinance is to the following effect: -

"29. Bar of jurisdiction.--No Court or other authority shall have jurisdiction-- _

(1) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Ordinance; or

(b) to grant an injunction or stay or make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Ombudsman."

Consequently, the learned counsel for the applicant contended that an appeal, which is provided under the Statute had also been filed by the respondent before the Governor of Sindh. Such appeal is said to have been dismissed by the Governor of Sindh. In compliance of Section 32 of Sindh Ordinance No. 1 of 1991, this aspect of dismissal of appeal by the Governor of Sindh stands confirmed and fall in the line with the submissions made by the learned counsel, vide correspondence, dated 25.9.1998 addressed to the office of this Court. The said correspondence is also accompanied with an order of rejection by the Governor of Sindh. The learned counsel further submitted that the order of the Ombudsman had been totally disregarded and once such an order had been passed and once finality had been attained in respect of the said order, a suit in relation to the same controversy would be barred by law and, therefore, the learned 1st Appellate Court ought not to have passed an order, which is impugned in this revision. He further canvassed that the principles for grant of injunction were not satisfied so as to warrant an order of a nature that has been passed by the Appellate Court. The said order was canvassed to operate in deprivation to the applicant in respect of his properties, which, according to the learned counsel, defeats the principles of natural justice, as well as mandate of the Constitution.

Having considered the submissions made by the learned counsel and having ascertained that the orders passed by the Honourable Ombudsman attained finality. Having further examined the aspect that the controversy in issue had attained finality at the level of the apex Court of this country. The orders passed by the Appellate Court in terms of granting an injunction was not warranted by law.

Keeping in view the findings arrived at by the Honourable Ombudsman in respect of the Respondent No. 1, the Appellate Court, ought to have been careful, especially when the same was being resisted by the applicants on the strength of the orders firstly passed by the Honourable Ombudsman Sindh, then passed by a Division Bench of this Court headed by the Chief Justice followed by an order of the Supreme Court of Pakistan as well as rejection of an appeal against the order of the Honourable Ombudsman by the Governor of Sindh. These proceedings appear to be nothing short of but an instrument of black mail so as to subject the applicant to harassment in terms of deprivation of their property.

Having said as much, the present revision application succeeds. The impugned order passed by the Appellate Court is set aside. At this stage, the learned counsel for the applicant contends that in view of the order passed, the suit, which has been initiated may also be ordered to be dismissed. I would be reluctant to dismiss the said suit in the present proceedings. It will, however, be open to the learned counsel to place this order before the learned Trial Court seeking such dismissal as is being sought herein. The learned Trial Court is expected to deal with such application at an appropriate time in accordance with law.

This disposes of the aforesaid revision application alongwith the listed application.

(T.A.F.) Revision accepted.

PLJ 1999 Karachi 444 (DB)

Present: hamid ali mirza AND ZAHID kurban alavi, JJ. RIYAZ QASlM-Appellant

versus

Messrs AMA (PVT) Ltd.—Respondent

High Court Appeal No. 221 of 1997, decided on 23.6.1998.

(i) Advocate--

—An Advocate is an officer of Court but he is required to act with due diligence and care in the discharge of his professional duties as a clientalways reposes confidence in counsel that his interest shall be fully protected and looked after with diligence and circumspection.

[Pp. 446 & 447] A

(ii) Civil Procedure Code, 1908 (V of 1908)-

—S. 12(2) read with O. 7, R. 11 and O 9, O. 13--Allegation of fraud or mis­ representation-Appellant moved application under O.VTI, R. 11, C.P.C. for rejection of plaint and for setting aside decree under O.EX, R. 13, C.P.C. on ground of fraud etc.-Status—No fraud or misrepresentation was practised or committed by respondents in procuring judgment and decree-Application under S. 12(2), C.P.C. was not competent.

[P. 447] B

(iii) Civil Procedure Code, 1908 (V of 1908)--

—S. 12(2) read with Art. 162 of Limitation Act (IX of 1908)-Review~ Application for review could be filed within 20 days under Art 162, Limitation Act, 1908 from date of decree or order-Application not filed within prescribed period was time-barred. [P. 448] C

Mrs. Salima Nasiruddin, Advocate for Appellant Mr. Zamiruddin Ahmad,Advocate for Respondent. Date of hearing: 4.6.1998.

judgment

~-v

Hamid Ali Mirza, J.--This is a High Court Appeal under Section 3 of Law Reforms Ordinance, 1972 as amended by Ordinance X of 1980 against the order of learned Single Judge dated 16.10.1997 dismissing an application under Order 12(2), C.P.C. filed by the appellant against the judgment and decree, dated 17.1.1995 passed by this Court in Suit No. 1200 of 1989 (Messrs AMA (Put.) Limited v. Riyaz Qasim) Brief facts of the case are that the respondent/plaintiffs filed suit for recovery of Rs. 13,60,967 against the appellant/defendant on 21.10.1989, the appellant/defendant filed written-statement on 16.1.1990, and the issues were settled by this Court on 7.10.1990. The appellant/defendant filed an application under Order 7, Rule 11, C.P.C. on 14.9.1992 as C.M.A. No. 1447 of 1992 which was dismissed on 29.11.1992 thereafter, the suit was fixed for evidence on 29.3.1993, 19.4.1993, 26.5.1993, 29.11.1993 and 19.1.1994, however, on 17.1.1995 respondents' witness Azmat Ah" was present in the Court for cross-examination when neither the appellant/defendant nor his counsel was present and they were also absent on the last date of hearing and the respondents/plaintiffs stated not to produce any other witness consequently their side was closed and as the appellant/defendant and his counsel were absent therefore their side was also closed and on the basis of unrebutted affidavit-in-evidence of the respondents/plaintiffs, the suit was decreed. The appellant/defendant filed C.M.A. No. 3475 of 1995 under Section 5 of Limitation Act, C.M.A. No. 3476 of 1995 under Order 9, Rule 13, C.P.C. and C.M.A. No. 3477 of 1995 for stay of execution No. 23 of 1995 which applications were heard by the learned Single Judge of this Court and all the three applications were dismissed on 18.11.1996 thereafter the appellant/defendant filed J.M. Application No. 471 of 1996 under Section 12(2), C.P.C. on 4.12.1996 which was also dismissed by this Court on 16.10.1997 and then present appeal has been preferred on 30.10.1997 against the order, dated 16.10.1997 and judgment and decree dated 17.1.1995.

We have heard the learned counsel for the parties and perused the record and proceedings of the case.

The appellant in his application under Section 5 of Limitation Act sought condonation of delay on the grounds that the appellant and his counsel had no knowledge about the judgment and decree dated 17.1.1995 till 20.6.1995 and that the appellant/defendant had been seriously ill from December 1994 to June 1995 and his doctor had advised him to resume his work from 20.6.1995 on which date he filed the said application. The appellant/defendant in his application under Order 9, Rule 13, C.P.C. has sought setting aside of decree passed against him on the grounds that learned counsel for the appellant/defendant could not attend the Court due to oversight as she missed the case mentioned in the cause list and that she bona fide believed that the case was likely to be fixed for evidence and further learned counsel could not contact the appellant till 20.6.1995. The learned Single Judge in the order, dated 18.11.1996 has observed:-

"Article 164 of the First Schedule to the Limitation Act prescribes a period of 30 days for an application by a defendant for an order to set aside a decree passed exparte from the date of the decree or where the summon was not duly served when the applicant has knowledge of the decree. In the present case since the defendant after due service of summons actually contested the suit and was represented by counsel bis case shall fall within the first part of the time period prescribed for making an application. On fact it may suffice to say that though the ex parts judgment was passed on 17.1.1995, decree was actually drawn on 13.3.1995 and the period of limitation shall start running from 14.3.1995 and expire on 12.4.1995 whereas the instant application was moved on 20.6.1995 and is, thus, is barred by 68 days. Under the law in order to succeed in an application for condonation of delay within the meaning of Section 5 of the Limitation Act, a party is required to explain the delay of each day beyond the period of limitation. In this case there is a general and vague statement that the counsel missed to notice the date in the cause list without any reference to the weekly list or monthly list issued by the roster. Likewise the defendant himself in his affidavit in support of the application for condonation of delay as well as application for setting aside the exparte decree did not mention as to the period of his illness, the nature of his ailment and his disability to move about or to communicate with his counsel. It was only after a counter-affidavit was filed on behalf of plaintiff that the defendant took the stand that he could not keep in touch with the counsel for the reason that he was suffering from hepatitis and was seriously ill and produced the medical certificate for the first time on 31.8.1995. Even in this affidavit he did not disclose the precise date of his confinement to bed and did not state whether he was completely disabled from moving about or communicating with his counsel through a letter or on phone. In my view the plea set upon on the face of it does not ring true and seems to be after thought and engineered in order to meet the situation. To my mind the defendant has been negligent and at any rate not diligent in prosecuting his defence by remaining away from the Court proceedings and loosing contact with his counsel. In any case the certificate from a private practitioner in the absence of any reliable and tangible evidence to show that he was confirmed to bed and incapacitated is of no assistance and thereby the defendant failed to make out a sufficient cause for the condonation of delay in making the application for setting aside the ex parte decree. On this ground alone his application under Section 5 as well as application for setting aside the exparte decree are liable to be dismissed.

Adverting to the second ground, namely, the counsel having missed the case from the cause list, no doubt there is an affidavit of the counsel it is adequately controverted by the counter-affidavit of the defendant. It is true that an Advocate is an officer of the Court but he is required to act with due diligence and care in the discharge of his professional duties as a client always reposes confidence in the counsel that his interests shall be fully protected and looked after with diligence and circumspection. It is pertinent to note that the suit was listed for hearing on 17.1.1995, it did not occur to the counsel despite a lapse of more than five months to take care of the brief and find out from the office of the Court as to the fate of the suit. The ground advanced for setting aside the decree is, thus, neither bona fide nor tenable at law. It would be unjust and inequitable to deprive a decree holder of his right under a decree such plea which is not substantiated by adequate evidence and manifestation of conscious discharge of duties. Since a valuable right has accrued to the decree-holder by reason of negligence and default on the part of the defendant it cannot be lightly snatched."

The learned Single Judge in the order, dated 16.10.1997 reasons of which were given on 20.10.1997 has observed:-

"I have considered the submission of the learned counsel for the parties and have gone through the material placed with the case as well as the applications and orders mentioned hereinabove. The suit of the plaintiff was decreed by the Court. The evidence so adduced was considered by the Court. The applications for condonation of delay, for setting aside the ex parte order and for stay of the execution proceedings filed by the defendant/JD were already rejected by the Court. The forum available to the defendant was actually to file appeals against the orders but he did not file the appeals against the orders which have attained finality. The evidence of Azmat Ali was recorded by the Court who produced the authority in the Court, therefore, contention of Mrs. Salima Nasiruddin that the person who has appeared in Court was not authorised by the company is not tenable in law. The purpose of the application, according to me, is only to delay the proceedings so that the plaintiff/DH may not be able to get fruits of the decree which was prepared on 13.3.1995. Learned counsel for the defendant has not substantiated his contention that any tangible material has been produced to show that any fraud has been committed with the Court or there was any misrepresentation of facts."

The appellant/defendant has not given particulars of fraud and misrepresentation in his application moved under Section 12(2), C.P.C. and had not stated about fraud and misrepresentation in the application under Order 9, Rule 13, C.P.C. Admittedly, the appellant was served with the summons, put in his appearance, filed written statement, issues were settled by the Court, he moved an application under Order 7, Rule 11, C.P.C. for rejection of plaint on the ground which he has agitated before us that the said application was dismissed as said above and thereafter, he moved an application under Order 9, Rule 13, C.P.C. for setting aside the judgment and decree dated 17.1.1995 which, too, was dismissed alongwith an application under Section 5 of Limitation Act as said above. The facts stated above do not reveal that any fraud of misrepresentation was practised or committed by the respondents/plaintiffs in procuring the judgment and I decree from this Court, therefore, application under Section 12(2), C.P.C. would not be competent.

The judgment and decree in the instant suit was passed on 17.1.1995, the application under Order 9, Rule 13, C.P.C. alongwith application under Section 5 of Limitation Act was filed on 20.6.1995 which applications were dismissed on 18.11.1995 and application under Section 12(2), C.P.C. was filed on 4.12.1996, which has been held to be not maintainable as neither fraud nor misrepresentation nor want of jurisdiction could be proved, therefore, the extended period of limitation on the said _ grounds as provided under Article 181 of Limitation Act would not be available to the appellant, as through the said application under Section 12(2) C.P.C. appellant has asked for review or setting aside of the judgment and decree as well as order passed on an application under Order 9, Rule 13, C.P.C. for which Article 162 of Limitation Act would be attracted, which application could be filed within the period of 20 days from the date of decree or order but the same was not filed within prescribed period hence, it would be time-barred under Article 162 of Limitation Act. Reference may be made to Muhammad Iqbal and another v. Muhammad Alamgir and others 1990 SCMR 1377 wherein their Lordships have observed:--

"As regards the fraud and misrepresentation, the Court held that neither fraud, nor misrepresentation was made out and hence the extend period of limitation on that ground under Article 181 of the imitation Act was not available. This finding would amount in factto rejection of the application on merits so far as the claim under

Section 12(2), C.P.C. was concerned. The other prayer for review of the order was held to be barred by time by applying Article 173 of the Limitation Act.

Reference may also be made to Government of Sindh and another v. Ch, Fazal Muhammad and another PLD 1991 SC 197 at page 201, para. 13 their Lordships of Supreme Court have observed:--

"Further, as will appear from the above-quoted paragraph, the appellants did not plead any such facts or raised any such grounds in the appeal also. Therefore, it was not open to them to raise the same again ia an application under Section 12(2), C.P.C. This will be against the rule of finality. It is also not the case of the appellants that they were prevented from raising pleas or grounds raised in the application under Section 12(2), C.P.G. because of any fraud or misrepresentation on the part of the respondents. They cannot be allowed to have resort to the provisions of Section 12(2), C.P.C. for their own acts of negligence of omissions. Such a course, if allowed, will erode the finality of proceedings, in spite of the decision of the final Court. This could not be the intention of the legislature as the same would be against public policy."

In the circumstances no exception to the orders passed by the learned Single Judge could be taken in this appeal as the appellant has no case on merits as well as the applications moved by him were time-barred. Accordingly we do not find merits in this appeal which is dismissed in liminealongwith the listed application. These are the reasons in respect of short order pronounced on 4.6.1998.

(TA.F.) Appeal dismissed.

PLJ 1999 Karachi 449

Present: SHABBIR AHMED, J. Mahar ALAM GOHAR-Applicant

versus

Mst. HUMA QAISER and 4 others-Respondents

Civil Revision Applications Nos. 36 and 171 of 1996, decided on 10.8.1998.

Civil Procedure Code, 1908 (V of 1908)--

—-S. 47--Decree--Execution of-Donee/petitioner on basis of gift of house in his favour filed suit for possession and mense profits against occupants of house against whom decree was passed in earlier suit-Done/petitioner had alleged in his suit that he needed the house for his own occupation as he was residing in a rented house and that occupants/judgment-debtors had a house of their own-Suit filed by donee/petitioner was decreed by Trial Court holding that donee/petitioner was not bound by compromise decree passed in earlier suit, but such findings of Trial Court were reversed in appeal by Appewte Court below-Donee/petitioner had filed revision against dismissal of his suit by Appellate Court below-­ Donee/petitioner was successor-in-interest of donor/decree-holder in whose favour decree for possession was passed in earlier suit-Suit filed by donee/petitioner was also for possession of house in dispute—Matters relating to execution, had to be enforced through execution proceedings and not by a separate suit for the reasons that subsection (1) of S. 47, C.P.C. regulated forum for enforcement of rights that subsection (1) of S. 47, C.P.C. forum for enforcement of rights under decree which had barred fresh suit in respect of such matters-Court, under S. 47(2), C.P.C. could treat a suit as a proceedings under S. 47, C.P.C. subject to question of limitation or jurisdiction-Even if suit filed by donee/petitioner was not maintainable, Trial Court could be directed to treat suit as proceedings under S. 47, C.P.C. [Pp. 454 to 456] A & B

Mr. Zia Qureshi, Advocate for Applicant. Mr. BadarAlam, Advocate for Respondents. Date of hearing: 4.6.1998.

judgment

I propose to dispose of the above revision applications by common order as the same have arisen out of the impugned judgment, dated 30th November, 1995 passed by the learned EXth Additional Sessions Judge, Karachi East, in Civil Appeal No. 127 of 1994 filed by Mst. Huma Qaiser and others (hereinafter referred as the respondents) against Mehr Alain (hereinafter referred to as the applicant).

The facts, which are relevant for the purpose of disposal of these revision applications, are that the respondents brought a Suit (No. 2226 of 1978) for declaration, permanent and mandatory injunction in respect of House No. H-l/3, Malir Township, Karachi (hereinafter referred to as the suit house) against Karachi Development Authority and one Rafiqur Rahman. The said suit was compromised between the respondents and said Rafiqur Rehman on 5.12.1981 and the decree was drawn on 30.9.1984. The terms of the compromise relevant for the disposal of the present applications are (i) that Rafiqur Rehman was admitted to be the allottee/lessee/owner of the said house, (ii) the respondents were allowed to remain in occupation of the suit house till the construction of their own house (iii) if she remarries, she will vacate the house.

The Execution Application No. 30 of 1986 was filed for execution of the decree on the ground of re-marriage by respondent Huma Qaiser in the year 1984, one of the terms for vacation of the house by the respondents under the decree.

The Court dismissed the said application by order, dated 11.8.1998 as the learned Judge was of the view that the decree was unexecutable and in case of violation of terms of compromise, it gives fresh cause of action. Rafiqur Rehman gifted the suit house to his brother Mehar Alam, the applicant.

The applicant on the basis of the gift in his favour filed Suit No. 162 of 1991 for possession and mense profits in Jie Court of 1st Senior Civil Judge, Karachi East, against the respondents. In the said suit, the applicant maintained that he needs the house for his own occupation as he is residing in a rented house. The respondents have been residing in the suit house under a compromise arrived at between bis brother and respondents on certain terms and conditions. The respondents flailed to abide by the terms of the compromise and rendered themselves liable for ejectment from the house. The respondents have their own house. The applicant also claimed mesne profits at the rate of Rs. 500 per month.

The respondents contested the suit of the applicant. In their written statement, they had taken legal, as well as factual pleas. On legal pleas, they have pleaded that the suit is hit by law of estoppel; not maintainable in law; under valued, the applicant has no cause of action to bring the suit On facts they have denied that the applicant was living in a rented house. They have maintained that the applicant owns two houses in Dastagir Colony and Gulshan Hadeed. They have also challenged the gift in his favour by Rafiqur Rehman. They have admitted the filing of suit against Rafiqur Rahman, which was compromised and decree was drawn, in terms thereof. They further pleaded that the Execution Application No. 30 of 1998 was filed which was dismissed videorder, dated 11.8.1988. They have admitted that House No. 3/1, Malir Township is owned by them, which consists of five shops and one room. They have also denied the claim from mesne profits.

Out of the pleadings of the parties the learned Trial Court framed the following issues:--

(1) Whether the compromise decree, dated 30.9.1984 passed by the learned Hlrd Senior Civil Judge, Karachi in Civil Suit No. 2226 of 1978 between Mst. Huma Qaiser and others v. Rafiqur Rehman and others is binding on plaintiff Mehar Alam Gohar, if so, whether he is legally estopped from challenging such decree by way of the present suit?

(2) Whether the present suit is maintainable and is liable to be dismissed with costs?

(3) Whether the plaintiff has any cause of action against the defendants?

(4) Whether the suit has been grossly under valued?

(5) Whether Rafiqur Rehman who had entered into a compromise with the defendants as stated in Issue No. 1 above has gifted the disputed premises to the plaintiff, if so, its effect?

(6) Whether Rafiqur Rehman who had entered into compromise with the defendant, has gifted the disputed premises to the plaintiff?

(7) Whether the Defendant No. 1 is liable to pay mesne profits to the plaintiff at the rate of Rs. 4,200 per annum for the use and occupation of the disputed premises by the defendants?

(8) What should the decree be?

The parties in support of their case adduced the evidence at the trial before the learned Senior Civil Judge, who after considering the evidence brought on record decided the issues in favour of the applicant and the suit was decreed. The learned Senior Civil Judge was of the view that the applicant was not bound by the compromise decree in Suit No. 2226 of 1978.

The respondents preferred an appeal against the decree, which was registered as Appeal No. 127 of 1997, and was heard by the learned Kth Additional District Judge, Karachi (East), who maintained the findings of the Trial Court on factual issues except on mesne profits and came to the conclusion that the decree in Suit No. 2226 of 1978 was binding on the applicant. Consequently he held that the applicant cannot file the suit without getting a declaration that the decree in above suit is not binding on him. The finding on mesne profits was also reversed.

It may be pointed out that while setting aside the judgment and decree, the learned Additional District Judge observed that the appellants have not been given any period to construct their own house, under the decree. They may be given reasonable time to construct their own house and vacate the suit house and permitted the appellants to construct their house within two years, by observing as underp­in my view this would be unjust and improper if any reasonable time is not provided to the appellant to construct their own house and vacate the house in question. Although the compromise decree does not provide any period and in my view the same has been done inadvertently, a considerable and reasonable time should be given to the appellant for constructing their own house so that the law and spirit of the compromise decree is fulfilled. Therefore, in my view the period of two years would be sufficient for the appellants to construct their own house. The appellants are, therefore, directed to construct their own house within two years from today."

Resultantly, the appeal filed by the respondents was allowed by the judgment, dated 30.11.1995 which has been impugned by both parties through these revision applications.

The applicant has come in revision against the dismissal of his suit, whereas, the respondents have challenged the directions of the learned Additional District Judge whereby the respondents were given time to construct their own house within two years, through the above revision application.

I have heard the learned counsel for the parties and also perused the record and proceedings of the matter including the proceedings of Suit No. 2226 of 1978 and Execution Application No. 30 of 1988.

Mr. Zia Qureshi, learned Advocate for the applicant maintained that the learned Additional District Judge erred in holding that the decree between the respondents and Rafiqur Rehman was binding on the applicant; he contended that the applicant was not a party to the proceedings, as such, the decree between the respondents and Rafiqur Rehman was not binding on him. The applicant can file a separate suit on his own right, as he acquired the ownership right by way of gift.

The learned counsel for the respondents supported the impugned judgment and contended that learned Additional District Judge's view is correct that suit cannot be filed unless the applicant obtains a declaration that the terms of the decree were violated, thus, the applicant cannot maintain a suit for possession.

The learned counsel for the respondents in support of the revision application filed by them contended that once the suit of the applicant was dismissed in appeal filed by the respondents, the learned Additional District Judge exceeded its jurisdiction by directing the respondents to construct their house within two years.

In the present case, facts are almost admitted. The suit filed by the respondents against Rafiqur Rehman ended in compromise, on the basis of which decree was drawn on 30.9.1984, whereby, said Rafiqur Rehman was declared owner of the suit house, the respondents were allowed to remain in possession of the house till they construct their own house. It is also an admitted fact that Execution Application No. 30 of 1998 for execution of the decree was filed, which was dismissed by order, dated 11.8.1998 as stated above. Said Rafiqur Rehman gifted the house in suit in favour of the applicant, who filed the suit for possession and mesne profits against the respondents.

The moot point in the present revision applications is whether relief for possession claimed by the applicant in his suit was a right granted under the decree, the reply hinges around the provisions of Section 47, C.P.C., which are as follows:—

"47. Questions to be determined by the Court executing decree.-(l)All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under the section as a suit or a suit as a proceeding and may, if necessary, order passed of any additional court-fees.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court."

There can be no doubt that decree for possession granted in favour of Rafiqur Rehman in Suit No. 2226 of 1978 is an executable decree. An executable decree for possession precludes fresh suit for possession of the property by concerned parties as ruled by Privy Council in the case of Sasi Sekhr Shwar Roy v. Lalit Mohar Maitra AIR 1925 PC 34.

In the case of Abdul Wahid v. Abdul Ghani and others PLD 1963 Kar. 990 it was held that if a decree grants certain rights to the parties, there can be no doubt that those rights have to be enforced in the execution proceedings and not by a separate suit, as matters relating to the execution of such rights are matters relating to the execution of decree.

In the present case, the applicant Mehar Alam Gohar's position is representative interest of the decree-holder, namely, Rafiqur Rehman in whose favour there is a decree of possession in Suit No. 2226 of 1978. The present suit is also for possession. The matters which relate to execution of such rights, have to be enforced by the execution proceedings and not by a separate suit, for the reasons that sub-section (1) of Section 47, C.P.C. regulates the forum for enforcement of rights under the decree which bars fresh suit in respect of these matters.

One of the important pronouncement on this point is to be found in the case of Murari Lai v. L. Debi Saran and another AIR 1956 All. 555 from Indian jurisdiction, wherein it was held that "if a decree grants certain rights to the parties, there can be no doubt that those rights have to be enforced in the execution proceedings and not by a separate suit, as matters relating to the execution of such rights are matters relating to the execution of the decree".

The facts of the above case were that on Lala Debi Saran alongwith another person obtained a lease on a monthly rent of a piece of land for fixed term of 5 years and thereafter, constructed 5 shops on it The original owner (Zamindar) granted Theka to Lala Murari Lai in respect of the some properties including the property which had been given on lease to Lai Debi Saran. After the expiry of term of lease in favour of Debi Saran, Lala Murari filed a suit against him for his ejectment, from the leased land which was decreed. Lala Debi Saran was given right under the decree to remove the material of the construction which had been built by them on the leased land. Appeal filed by Lala Debi Saran before the District Judge was dismissed. He filed second appeal in the High Court and also filed an application for stay of the execution of the decree till disposal of the appeal. High Court did not stay the execution and authorised the decree-holder to take possession of the land together with its structure but in order to safeguard the rights of Lai Debi Saran directed the decree-holder not to demolish the construction till disposal of the appeal. The decree-holder entered into possession of the land together with construction on it but he did not demolish the construction in pursuance of the order of the High Court.

Appeal was also dismissed by the High Court and appellant Lala Debi Saran was allowed one month time for removing the material from the date of decree of the High Court. He made an application after expiry of one month to Executing Court asking for its assistance to remove the material on the ground that he had not been permitted to remove the structure within the period of one month by the tenant who were in possession of the land. The application was dismissed and Lala Debi Saran was directed to bring a regular suit for the enforcement of his claim. In pursuance of said direction, he filed a suit against the decree-holder, his tenants and also Zamindar who had originally granted the lease in favour of the Lala Debi Saran and subsequently the Theka in the name of Murari Lai. In this suit Lala Debi Saran claimed that he be allowed to remove the material which had been constructed by him from the land and also claimed decree for Rs. 1, 500 as damages suffered by him due to non-removal of the material.

The Trial Court dismissed the suit on the ground that it was barred by Section 47 of C.P.C. as well as Section 11, C.P.C. The Appellate Court did not agree with decision of the trial Court. It was of the opinion that neither Section 47 nor Section 11, C.P.C. was applicable to the present case and allowed appeal and remanded the case for disposal according to law. The remand order was challenged before the High Court. The High Court set aside the order of remand of the Appellate Court as the High Court was of the view that Section 47, C.P.C. bars the suit.

In the present case, a decree for possession in favour of Rafiqur Rehman was granted in Suit No. 2226 of 1978. The execution application was filed. The Executing Court dismissed application for execution as stated above. Applicant Mehar Alam Gohar is the representative in interest of said Rafiqur Rehman. The suit filed by the applicant, in fact, was in respect of right granted under a decree, as such, the suit of the applicant was barred under the provisions of Section 47(1), C.P.C. and such rights have to be enforced by the execution proceedings only

The applicant had also claimed mesne profits due to non-delivery of possession by the respondent, it may be contended that this relief could not have been granted to him in execution proceedings. In my view the relief for mesne profits is consequential to the relief for possession flow from it The applicant can claim mesne profits in the execution proceedings subject to Under the provisions of Section 47(2), C.P.C., it is open to the Court to treat a suit as a proceeding under Section 47, C.P.C. subject to question of limitation or jurisdiction. In view of this provisions, even if, a suit is not maintainable the trial Court can be directed to treat it as proceedings under Section 47, C.P.C. and to decide the same subject to question of limitation and jurisdiction.

In the present case, it would be appropriate in the circumstances of the case, to direct the lower Court to treat the suit of the applicant as proceedings under Section 47, C.P.C. subject to the question of limitation or jurisdiction. Consequently, the above applications'are allowed. The findings of both the learned Courts are set aside. The matter is remanded to the learned Senior Civil Judge with direction to treat the suit of the applicant as proceedings under Section 47, C.P.C. subject to limitation and jurisdiction and the same be disposed of according to law. The parties are allowed to bear their own costs.

(T.A.F.) Order accordingly.

PLJ 1999 Karachi 456

Present:RANA BHAGWAN DAS, J. SAMPAT and another-Petitioners

versus

SUFAID KHAN and others-Respondents

Civil Revisions Nos. 7 of 1994 (Larkana) and 168 of 1985 (Sukkur), decided on 3.9.1998.

(i) Civil Procedure Code, 1908 (V of 1908)--

—S. 96--Conflict of judgment between trial Court and Appellate Court-It is settled proposition in law that in the event of a conflict of judgment between trial Court and Appellate Court, ordinary, view taken by Appellate Court has to be preferred unless same could be shown on face of record that finding of fact of Appellate Court was not supported by material evidence on record; that conclusion drawn by Appellate Court was patently illegal; that view expressed is against settled norms for appreciation of evidence or judgment on face of it was perverse. [P. 460] A

<ii) Civil Procedure Code, 1908 (V of 1908)-

-—S. 9-Civil Court-Jurisdiction-Question of-Civil Court is a Court of plenary jurisdiction and entitled to examine decisions and orders passed by Special Tribunals unless such jurisdiction is expressly barred and provided such Tribunals acted within four corners of authority vested in them and within limits of statute under which such Tribunals are created. [P. 463] B

Mr. Abdul Hameed Khan, Advocate for Petitioners.

Mr. Moohan Lai, Advocate for Respondents Nos. 1 to 3.

Mr. Sher Muhammad Shar, Asstt. A.G. for Respondents Nos. 4 to 8.

Dates of hearing: 10 and 11.8.1998.

judgment

The revision petition is directed against the Appellate Court's judgment, dated 10.6.1985 whereby he set aside the judgment and decree, dated 13.10.1983 passed by Senior Civil Judge, Larkana decreeing the suit of the plaintiffs/petitioners for declaration and permanent injunction.

1. Facts of the case in nutshell are that in satisfaction of verified claim of deceased Amir son of Ujagar father of the plaintiffs suit lands were allotted to the plaintiffs some times in 1957. As some of the lands so-allotted were Muslim properties these were excluded from such allotment. According to the plaintiffs Defendant No. 1 Shitab son of Noor Bakhsh was illegally holding claim in the name of Shitab son of Roora posing himself to be the said person but actually the said claim was bogus and obtained by fraudulent means and mis-representation. He managed to get lands allotted against his claim on the basis of transfer of Produce Index Units from Tehsil Chunia to District Larkana and obtained allotment without any date. Plaintiffs approached Deputy Commissioner/Deputy Rehabilitation Commissioner, Tj<rkqna questioning the allotment of the lands in favour of Defendant No. 1 who as delegatee of the Chief Settlement Commissioner under Section 10 of the Displaced Persons (Land Settlement) Act, 1958, cancelled the allotment of Defendant No. 1 obtained in the name of Shitab son of Roora with a direction that the resumed lands be allotted to the plaintiffs whereupon suit lands were allotted to the plaintiffs on or about 7.8.1961. Later the record of rights was duly mutated in their favour and they continued to remain in • possession of the lands, enjoyed the produce and paid land revenue , assessment to the Government. Plaintiffs further averred that the claim of Defendant No. 1 in the name of Shitab son of Noor Bakhsh was originally settled in Tehsil Chunia District, Lahore but after cancellation of the bogus ' claim he managed to get the suit lands allotted against his claim on the ' strength of alleged transfer of Produce Index Units from Tehsil Chunia to f District Larkana and manipulated the allotment without any date. Plaintiffs rchallenged the allotment of suit lands in favour of Defendant No. 1 before Deputy Collector, Larkana who by his order, dated 18.1.1967 dismissed their t appeal. Aggrieved by such order of Defendant No. 4, plaintiffs preferred a ^ revision petition to the Commissioner Khairpur Division and both the e parties regularly attended the office of the said defendant. In such g proceedings stay order was granted in favour of the plaintiffs. It is further the case of the plaintiffs that Defendant No. 5 referred the matter to Deputy Commissioner, Lahore as well as Central Record Office, Lahore for h clarification but no report was received till 1971-72. In the meantime the post of Commissioner, Khairpur Division was abolished and after creation of Sukkur Division they approached the office of Commissioner, Sukkur Division and were informed about a week before the institution of the suit that their papers were not traceable. Plaintiffs feared that Defendant No. 1 was responsible for misplacement of the papers of their revision petition who started threatening to oust them by raising claim of ownership over the suit lands of which he was only a Hari and paying Zamindarishare to them. During the pendency of revision petition he had even got the suit lands mutated in the Record of Rights with the assistance of Mukhtiarkar Dokri who was, thus, made a party to the suit. As the private defendant threatened to remove entire Rabi crop without paying Zamindari share to the plaintiffs and since the papers of their revision petition were purportedly not traceable they were constrained to file a suit for declaration and permanent injunctions seeking the following reliefs:--

(a) To declare that the plaintiffs are the owners of the suit property and its allotment in favour of the defendants is illegal, subsequent and ah initio void.

(b) To grant a permanent injunction against the defendants restraining them from interfering with the possession of the plaintiffs over the suit property.

1. The case as set up by Defendant No. 1 Shitab in his written statement is that he being a genuine claimant had obtained the allotment of lands against his duly verified claim and never posed to be Shitab son of Roora as alleged. He denied that allotment against his claim was cancelled at any time as alleged. He disputed the allotment of suit lands in favour of the plaintiffs and asserted that he is in possession thereof with record of rights standing in his name. He admitted that his claim was duly registered in Tehsil Chunk District Lahore with assertion that part of his claim was transferred to District Larkana on or about 16.4.1960. Accordingly allotment of suit lands was confirmed against his hona fide claim as he was a temporary allottee in prior possession of lands. Defendant averred that the plaintiffs made an application to Mukhtiarkar Dokri for the grant of share of produce claiming to be allottees of the suit lands but it was rejected vide order, dated 24.7.1962 as they were not the allottees of the suit lands. Likewise another application by plaintiff Sampat claiming to be allottee of the suit lands was rejected by Assistant Rehabilitation Mukhtiarkar, Larkana vide order, dated 5.1.1963. He filed an appeal from the order, dated 24.7.1962 before Deputy Collector, Larkana which was dismissed on 9.12.1964. Plaintiffs second application addressed to Mukhtiarkar and Assistant Rehabilitation Commissioner, Dokri against the allotment in favour of Defendant No. 1 was dismissed vide order, dated 12.4.1966 taking the view that Defendant No. 1 had superior claim over the plaintiffs who may be allotted other lands. Plaintiffs appeal from the order, dated 12.4.1966 before Deputy Collector/Deputy Settlement Commissioner, Larkana was dismissed vide order, dated 18.1.1967. They preferred a revision application before the Settlement Commissioner (Land), Khairpur against the order of D.S.C.CL.). Larkana, dated 18.1.1967 which was heard in presence of the parties and their counsel and dismissed on 23.10.1967. Thus, the matter was finally decided by the Settlement Commissioner (Lands), Khairpur in favour of Defendant No. 1 and could not be challenged before the Civil Court whose jurisdiction was barred by law by reason of Sections 22 and 25 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred as Act, 1958) as such orders were final and absolute. All other allegations with regard to misplacement of revision papers were denied including any reference to the Deputy Commissioner or Central Record Office, Lahore. Sharing of Zamindari share with the plaintiffs was specifically denied and disputed with an averment that Defendant No. 1 has been in possession of the suit lands as owner by reason of valid allotment in his favour and undisturbed enjoyment of produce. Allotment of lands against the claim of Amir son of Ujagar in favour of plaintiffs was questioned on the premise that other heirs of deceased Amir were still residing in India. Pleas with regard to jurisdiction of the Civil Court and non-maintainability of the suit were also raised. No written statement was, however, filed on behalf of official Defendants Nos. 2 to 6.

2. Pleadings of the parties were reflected in the following issues:--

(i) Whether the allotment of the suit property in favour of the Defendant No. 1 is illegal, subsequent and inoperative?

(ii) Whether the plaintiff is prior and legal allottee of the suit property?

(iii) Whether the orders in favour of the Defendant No. 1 by Settlement Authorities are illegal, mala fide and ultra vires?

(iv) Whether the plaintiff is in possession of the suit property?

(v) Whether this Court has no jurisdiction?

(vi) Whether the suit is not maintainable under the Settlement i Laws?

(vii) Whether the suit is barred by the provisions of Section 42 of the Specific Relief Act ?

(viii) What should the decree be?

1. In support of their suit, plaintiffs examined Syed Ali Nasir (Rehabilitation Tapedar) P.W. 1, Din Muhammad (Kamdar) P.W. 2and plaintiff Sampat P.W. 3, while Defendant No. 1 examined Safaid Khan D.W. 1, Haji D.W. 2 and Amir Bux D.W. 3.

2. On assessment of the relevant evidence, Trial Court decided Issues Nos. 1 to 4 in favour of the plaintiff and Issues Nos. 5 to 7 in negative. Consequently their suit was decreed with costs.

3. This judgment and decree was challenged in Civil Appeal No. 57 of 1983, which was heard by an Additional District Judge, Larkana who set aside the same and dismissed the suit. Learned Appellate Court found Issues Nos. 1 to 4 in favour of the appellant and on legal issues came to the conclusion that in view of the finality attached to the orders passed by Settlement Authorities by virtue of Sections 22 and 25 of Act, 1958, Civil Court had no jurisdiction to entertain the suit. There is no specific finding with regard to maintainability or otherwise of the suit in terms of Section 42 of Specific Relief Act. It is as against this judgment that the present revision was filed.

4. It is settled proposition in law that in the event of a conflict of judgment between the Trial Court and the Appellate Court, ordinarily, the view taken by Appellate Court has to be preferred unless it could be shown on the face of the record that such finding of fact is not supported by material evidence on record that the conclusion drawn is patently illegal; that the view expressed is against the settled norms for appreciation of evidence or the judgment on the face of it is perverse.

5. In the present case it would appear that the petitioners while seeking declaration of title in their favour are seeking a negative declaration with regard to ownership right and interest of the respondent to the suit land without directly or indirectly assailing various orders passed by Rehabilitation and Settlement Authorities passed more than a decade before the institution of the suit except the last order passed by Settlement Commissioner (Land), Khairpur, dated 23.10.1967. In law, petitioners might be justified and legally entitled to seek a declaration of their right to property as envisaged by Section 42 of the Specific Relief Act. I have serious reservations whether they were entitled to seek a negative declaration as to the entitlement of Respondent No. 1 without directly or indirectly impugning variety of orders passed in relation to the suit lands in his favour.

6. A glance at the averments in the plaint tends to show that both the parties are claimants under the provisions of Displaced Persons (Land Settlement) Act, 1958 and allotted suit lands at different items in satisfaction of their claim. On their own showing petitioners had challenged the allotment of suit lands in favour of respondent Shitab son of Noor Bux before the Settlement and Rehabilitation hierarchy under the provisions of Act, 1958 but without any success. After failing to obtain relief from Assistant Rehabilitation Commissioner, Dokri as well as Deputy Collector/Deputy Rehabilitation Commissioner, Larkana vide order, dated 18.1.1967 admittedly they preferred a revision petition before the Settlement Commissioner (Land), Khairpur Division against the order of Deputy Rehabilitation Commissioner, Larkana on appeal under Section 11(1) of the Rehabilitation Act, 1956 read with Section 18 of act, 1958, and obtained a stay order but without any ultimate success. In order to overcome this difficulty petitioners dishonestly pleaded that after the shifting of office of Commissioner, Khairpur Division to Sukkur they were made to believe by the office of Commissioner, Sukkur Division that the papers relating to their revision petition were misplaced and were not traceable. Indeed this averment is belied by the material documents placed on record by the contesting respondents who have placed on record a certified true copy of the order passed by the Settlement Commissioner (Land) Division dismissing the revision petition on 23.10.1967 after hearing their counsel and the parties. Even after such categorical written statement by respondent Shitab petitioners did not care to challenge the validity and correctness of such order which has been seriously impugned during the course of arguments before me at this stage. No doubt, trial Court had settled an issue whether orders passed in favour of Respondent No. 1 by Settlement Authorities are illegal, mala fide and ultra vires whether the civil Court had no jurisdiction to entertain the suit, such issue in fact is not borne out from the averments in the plaint and appears to have been erroneously settled at their instance. In fact respondent Shitab had divulged such orders in his written statement which are deemed to be valid, legal, bona fide and passed with jurisdiction. Furthermore, it transpires from the evidence of petitioner's witness Syed Ali Nasir, Rehabilitation Tapedar that the allotment of Shitab son of Roora was cancelled videorder, dated 18.1.1967. Indeed it is an order passed by Deputy Collector and Deputy Settlement Commissioner (Larkana), which refers to an order of cancellation of allotment in favour of petitioners by Assistant Rehabilitation Mukhtiarkar, Larkana, dated 5.1.1963 which had never been challenged. On the other hand petitioner Sampat in his evidence asserted that Deputy Commissioner, Larkana had cancelled the claim of Shitab son of Roora in 1961 whereafter the suit lands were allotted to him in the same year. Above order was intentionally and deliberately suppressed by the petitioners in the plaint in order to persuade the Civil Court to pass a decree in their favour. Having chosen to adopt this novel attitude, I am of the view that they cannot be permitted to impugn and assail such acts on the part of Rehabilitation and Settlement Authorities before this Court for the first time without appropriate pleadings. In this regard I am also of the opinion that the petitioners cannot succeed in their suit for declaration and injunction on • the weakness in the case of respondent Shitab by pointing out that extract from RL-II or that their Khatooni papers do not bear any date. Authenticity ' of such documents, however, remains in tact.

7. Adverting to the possession of suit lands it is an admitted ' position that respondent Shitab and after his death his legal heirs have ! remained in physical possession and enjoyment of the suit lands from the ' very beginning. Indeed the stand taken by the respondents is that they r remained in possession and enjoyment of the suit lands in their own right as allottee and transferee thereof in satisfaction of their verified claim, while ^ the case set up by the petitioners is that deceased Shitab was in possession of j the suit lands as their Hariand giving zamindari share of the produce to e them for a very long period. No evidence from the Record of Rights or g otherwise has been placed on the record to substantiate this position. On the contrary various documents exhibited in evidence by contesting respondents tend to show that petitioner's complaint for recovery of Zamindari share ^ from the respondents failed before Mukhtiarkar, Dokri as well as Deputy Collector, Larkana. Their representation before the Assistant Rehabilitation Commissioner Dokri impugning the allotment of suit lands in favour of respondent Shitab as well as their appeal before the Deputy Collector/ Deputy Settlement Commissioner (Land), Larkana also failed right up to the level of Settlement Commissioner, Khairpur videorder, dated 23.10.1967. Only possible inference that can be justifiably raised is that the respondents have remained in possession of the suit lands in their own right.

8. The matter does not end here. Respondent Safaid Khan son of late Shitab has been able to produce the evidence relating to mutation in the Record of Rights in his favour in addition to a good number of land revenue receipts right from 1961 to 1983 when his evidence was recorded. This circumstance furnishes an additional factor for believing that the petitioners at no point of time remained in possession of suit land as wrongly asserted. They are, thus, not entitled to the relief of injunction as well, and their suit has been rightly dismissed.

9. Learned counsel for petitioners vehemently contended and was at pains to persuade me that the Appellate Court committed a gross illegality by holding that the Civil Court had no jurisdiction to entertain this suit or that it could not examine the vires of various orders passed by Settlement and Rehabilitation Authorities. In this connection, he relied upon cases reported as Sultan Mehnwod v. Government of West Pakistan PLD 1964 SC 302, Hamid Hussain v. Government of West Pakistan 1974 SCMR 356, Shaft Muhammad v. Government of Sindh PLD 1993 Kar. 410, Abdul Sartor v. Settlement Commissioner PLD 1981 Kar. 413.

10. On the other hand learned counsel for the contesting respondents referred to Majid Ali Naqvi v. Additional District Judge Ex-Offitio Settlement and Rehabilitation Commissioner 1970 SCMR 375.

11. In Sultan Mahmood's case which was essentially an appeal arising out of service matter of a Government servant, reliance is placed on the paragraph expressing the view that order of Government can be proved by producing original or certified copy of order. It was further observed that letter containing reference to order having been already passed is not legal proof of order. In Hamid Hussain's case Supreme Court laid down that jurisdiction of Civil Courts even if barred and conferred upon Special Tribunals, Civil Courts being Courts of ultimate jurisdiction, have jurisdiction to examine acts of such forums to see if such are in accordance with law, or illegal or even mala fide. In Abdul Sattar's case Zafar Hussain Mirza, J. (as his Lordship then was) speaking for the Division Bench expressed the view that finality attaches to orders passed by Settlement Authorities only when order is passed with jurisdiction, within four corners of Act and in respect of matters Settlement Authorities are empowered under Act to determine. In Shafi Muhammad's case learned Single Judge of indh High Court expressed the view that bar of jurisdiction under Sections 22 and 25 of the Act, 1958 was not attributed in suit having been filed after repeal of Act XXVIII of 1958.

12. On the other hand in Majid Ali Naqvi's case Supreme Court declined to entertain the question of jurisdiction of Settlement Commissioner as it had not been raised in the Court of first instance and there was no evidence on the record to show as to whether the Settlement Commissioner had been properly authorised by the Chief Settlement Commissioner to hear the revisions.

13. There can be hardly any cavil with the proposition of law laid down by the Superior Courts. There is consensus of opinion that Civil Court is a Court of plenary jurisdiction and entitled to examine the decisions and orders passed by Special Tribunals unless such jurisdiction is expressly barred and provided such Tribunals acted within four corners of the authority vested in them and within the limits of the statute under which they are created. At any rate, this issue having not been agitated before the trial Court and there being no averment challenging the validity and legality of varit ,y of orders passed by Settlement and Rehabilitation Authorities, this question cannot be raised for the first time before the Revisional Court. Learned counsel strenuously urged that this being a question of law can be raised at any stage but it is not so because it is mixed question of fact as well as law and expression of opinion on the question of jurisdi tion would necessarily have nexus to the examination of the factual aspect of the case.

14. No other point was urged in support of the revision appli ation and in my view learned Appellate Court was legally right in disturbing the findings of fact and taking a different view form that of the trial Court which does not suffer from any legal infirmity.

15. For the aforesaid facts and reasons there is no merit in this revision petition which must fail and is accordingly dismissed with costs.

PLJ 1999 Karachi 463

Present:dr. ghous muhammad, J.

HASSANUL HAQUE AGHA-AppeUant

versus Mrs. SAEEDA BEGUM-Respondent

First Rent Appeals Nos. 932 and 1070 of 1986, decided on 5.6.1998.

Cantonments Rent Restriction Act, 1963 (XI of 1963)--

—S. 17(2)(i) Explanation-Tenant-Ejectment of~Default~Ground of- Tenant was bound to pay rent of premises according to law-No duty of landlord to contact tenant for payment of rent-Even if landlord had shifted to some unknown place, that would not absolve tenant of his obligation to tender rent-Tenant is legally bound to deposit the same in the office of Rent Controller to avoid the risk of default. [P. 467] A

Mr. Muhammad Ahsan Shaikh, Advocate for Appellant Mr. Afzal Nabi, Advocate for Respondent. Date of hearing: 25.2.1998.

judgment

This judgment will dispose of these two appeals having arisen out of identical judgments passed by the learned Additional Controller of Rents, Clifton Cantonment, Karachi whereby the Rent Case No. 31 of 1985 and 32 of 1985 filed by the respondent for eviction of the appellants from two shops on the ground floor of building bearing No. 2-C "B" Commercial Area, Defence Housing Society (hereinafter referred to as the demised premises) were allowed on 28.11.1996.

1. The ejectment was sought by the respondent on two grounds namely default in payment of rent and personal bona fide requirement of the respondent. Issue No. 1 was decided in the affirmative while Issue No. 2 regarding bona fide requirement was decided in the negative. The appellant was directed to hand over vacant possession of the demised premises within two months. The order was challenged before this Court in R.As. Nos. 932 of 1986 and 1070 of 1986 which were disposed of by a common judgment, dated 20.3.1991 by Saleem Akhtar; J. (as he then was). The appeals were allowed and eviction of the appellant on the ground of default in payment of rent was set aside. The respondent preferred leave to appeal before the Honourable Supreme Court in C.As. 260-K and 261-K of 1991 which were admitted to examine the following arguments noticed in the order for grant of leave to appeal:--

"In support of the above petitions, Mr. Abdul Hafeez Pirzada, learned Senior Advocate Supreme Court appearing for the petitioner, has urged that the learned Judge in Chamber, while reversing the order of the learned Rent Controller, has not taken into consideration Explanation to subsection (2) of Section 17 of the Cantonment Rent Restrictions Act, 1963, hereinafter referred to as the Act, which contemplates deposit of rent with the office of the Controller in case of refusal to accept. According to him, refusal to accept a money order will also amount to refusal in terms of above explanation as to warrant deposit of rent with the office of the Controller."

1. These two appeals were disposed of by the Honourable Supreme Court on 12.11.1992 and the matters were remanded to this Court. The operative part of the judgment reads as under:--

"In this case no clear finding can be given at this stage that the High Court was not conscious of the legal position as contained in Explanation to subsection (2) of Section 17 relied upon by the learned counsel. The following observation in the impugned judgment is relevant in this behalf: 'The rent was not deposited in Court as required but such deposit was made....'

The underlined expression, 'as required', does show that the requirement regarding deposit of rent by virtue of explanation to Section 17(2) or otherwise by virtue of the law declared by the Superior Courts from time to time, was in the mind of the learned Judge in the High Court when deciding the appeal. Therefore, there does not seem to be much force in this argument of the learned counsel. We, however, feel that if the change of address by the landlady was known to the respondent his insistence on sending money orders at the old address might reflect on the question of his bona fides. Similarly if the land lady failed to intimate the tenant about the change of her addresses intentionally to mislead or dodge him or otherwise by this omission on her part he remained unable to send money orders to her on the changed address and/or to adopt other methods for example, deposit with the Rent Controller this might reflect on the bona fides of the landlady. For further examination of the bona fides of both sides we deem it necessary to remand the case to the High Court as the discussion part of the impugned judgment is deficient on these aspects. Accordingly, these appeals are allowed and the case is remanded to the High Court for fresh decision of the appeals."

1. Now the crucial question is whether attempt made by the appellants to tender rent by money orders to the respondent is covered by the Explanation to Section 17(2)(1) of the Act XI of 1963. It would be relevant to reproduce Section 17(2)(i) as well as Explanation as under:--

"17. Eviction of tenant. --(2) A landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and the Controller may, after giving the tenant a reasonable opportunity of showing cause against the application, make an order directing the tenant to put the landlord in possession, if he is satisfied that-

(i) the tenant has not paid or tendered to the rent to the landlord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent, or in the absence of such agreement, within sixty days following the period for which the rent is due; or

Explana.tion.-li'or the purpose of clause (i) the rent remitted by the money order to the landlord or in case landlord refused to accept the rent, deposited in the office of the Controller having jurisdiction in the area where the building is situate, shall be deemed to have been duly tendered."

1. The ingredients of the above subsection when read with Explanation are as follows:-

(i) That the Rent Controller may order ejectment if he is satisfied that the tenant has not paid or tendered the rent to the landlord even due.

(ii) But in case tenant proves that the rent was remitted by money order to the landlord the presumption would be raised that it was duly tendered and also.

(iii) Or in case the landlord refused to accept the rent and it is deposited in the office of the Controller having jurisdiction.

1. The crucial words in subsection 17(2)(i) are has not paid or tendered the rent to the landlord. In the context it would appear that the first part of subsection 2(i) implies that the rent has not been paid when the landlord was willing to receive. The second part of the subsection 2(i) would indicate that he tenant would escape the liability to be ejected if he on his part shows that he has tendered the rent to the landlord. It has been decided that the tender of rent can be proved by direct evidence of witnesses but if the means suggested in the Explanation are adopted a mandatory presumption would be raised about the tender of rent. See Muhammad Siddique v. Abdul Harmed PLD 1976 Kar. 696.

2. Learned counsel for the appellants vehemently urged that the appellants had been making all efforts to tender rent from November, 1984 to September, 1985 and for that period rent was remitted through money orders which were returned by the postal authorities as the respondent had shifted to some other place without intimating the appellant about her new address. Therefore, according to learned counsel attempts to remit the rent through money orders clearly show that there was no willful default on the part of the appellant. In support of his submissions, he relied upon Mrs. Almas Abdul Rehman Bhamani v. Begum Hamida Nizam PLD 1991 Kar. 315, Gulrez A. Shaikh v. Lt. Col. (Retd.) Qadir Saeed 1992 MLD 1632, Province of Punjab v. Abdul Hafeez 1992 ALD 514 and Younus Rizwani Shaikh and others v. Pakistan State Oil Co. Ltd. PLD 1988 Kar. 238.

3. Learned counsel for the respondent submitted that the question of mala fide and/or bona fides is not at all involved as according to him, once the money orders were returned it amounts to refusal and then in that situation, the appellant was bound to deposit the rent in the office of the Rent Controller in view of the Explanation to Section 17(2) (i). In support of his submission he relied on Smt. Vidaya Bai and others v. Moorajmal 1980 SCMR 267, Muhammad Siddiq v. Abdul Harmed PLD 1976 Kar. 966, Din Muhammad v. Pirji Nisar Ahmad 1984 CLC Kar. 696, Messrs Shahzad Ice Factory and 2 others v. Judge Banking-II, Lahore and another PLD 1982 Lah. 92, Mrs. Alima Ahmed v. Ameen All PLD 1984 SC 32 and Baboo Khan v. Maqbool Ahmed 1984 CLC Kar. 2599.

4. It is well-settled legal principle that the tenant is bound to pay rent according to law. It is not the duty of the landlord to contact the tenant for payment of rent. Assuming that the respondent had shifted to some unknown place even then this will not absolve the appellant of his obligation to tender rent I am of the view that since it amounted to refusal to accept rent, instead of remitting the same through money orders for nearly 10 months he could have conveniently deposited the rent in the office of the learned Rent Controller and that could have been taken to be a valid tender. In response to a question put by this Court as to why rent had not been deposited with the Rent Controller when the appellant came to know that for November, December and January the money orders were being returned by the postal authorities, he submitted that such repeated attempts indicate bona fide of the appellant. There is no explanation available on record for not following the provisions contained in the Explanation as mentioned above. Therefore, in my humble view the wilful default has been proved and repeated futile attempts made by the appellant to remit rent through money orders reflect adversely on his bona fides. Therefore, I see no reason to upset the following finding of the learned Rent Controller:-

"Although both the parties have discussed the point of default at length in their pleadings. But an impartial analysis thereof reveals that the opponent has no case of his defence at all. Simple fact is that whatsoever the circumstances should have been the opponent would have deposited the rent in the Court. The refusal of the applicant to accept the rent through money orders or her deliberate failure to inform her new address to the applicant are not valid excuses, since in such circumstances the opponent should have resorted to deposit the rent in the Court. Still more significant aspect of the opponent's case is that he very well know the provisions of law, which is quite evident from his regular despatch of rent through money orders, but he negligently overlooked the other part of the similar provisions of the law which is regarding deposit of rent in the Court if the opponent was unable to tender the rent through money order. Mere despatch of rent through money order does not at all absolve the opponent from the consequences of default. I, therefore, feel no hesitation in holding that the opponent has committed clear default in the payment of rent."

The other ground for seeking eviction of the appellant was the personal bona fide requirement which was decided against the respondent and no appeal was preferred. Therefore, only the ground of default has been discussed.

The upshot of the above discussion is that these two appeals having no merits are dismissed with costs. The appellant in both the appeals is directed to vacate the demised premises and hand over possession to the respondent within 60 days, but that would be subject to payment of rent according to law.

(T.A.F.) Appeals dismissed.

PLJ 1999 Karachi 468 (DB)

Present: rana bhagwan das and ghulam nabi soomro, JJ. KM. MUNIR and 2 others-Appellants

Versus

NATIONAL BANK OF PAKISTAN and others-Respondents

Constitutional Petition No. D-574 and First Appeal No. 7 of 1992, decided on 15.10.1998.

(i) Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979)-

—-S. 12-Constitutional petition u/A. 199 of Constitution of Pakistan, 1973- Maintainability-Question of-Appeal before High Court against order of Special Banking Court having been found competent, Constitutional petition with regard to same order of Special Banking Court, could not be maintained as alternate and effective remedy provided by law had actually been availed of. [Pp. 469 & 470] A

(ii) Civil Procedure Code, 1908 (V of 1908)--

—-S. 48-Decree-Execution of-First execution application having been dismissed as withdrawn, fresh application could have been maintained within aggregate period of six years from date of decree and not from date of dismissal of first application. [P. 470 & 471] B

Mr. Shahanshah Hussain, Advocate for Appellants.

Nemo for Respondents Nos. 1 and 3.

TasawarAli Hashmi, Advocate for Respondent No. 2.

Date of hearing: 15.10.1998.

judgment

Rana Bhagwan Das, J.--This judgment shall dispose of the aforesaid Constitutional petition as well as First Appeal arising out of an order, dated 12.3.1984 passed by the Special Court for Banking, Karachi in Execution against the petitioners/appellants pertaining to ex parte decree passed against Karachi Properties Investment Company Limited and its guarantors inclusive of the petitioners in Suit No. 95 of 1981 filed for recovery of Rs. 6,90,106.90.

1. By the impugned order Special Court for Banking dismissed the objections filed by the petitioners/judgment-debtors to the execution application and directed issuance of writ of attachment against their properties as incorporated in the application for execution. Interestingly on the same day there is another order passed by the learned Banking Court dismissing the objections filed by the petitioners for the reasons that they had failed to furnish any security equivalent to the amount awarded by the decree as ordered by the Special Court on 27.1.1992. First Appeal No. 7 of 1992 was directed against the order dismissing the objections of the appellants and allowing execution application whereas in Constitutional petition also identified! orders were impugned. Both the cases were filed before this Court on one and the same day i.e. 11.3.1992.

2. During the pendency of the cases but after a lapse of more than six years petitioners/appellants moved a miscellaneous application under Order I, Rule 10, C.P.C. seeking an order to implead the Executive Director, Banking Policy and Regulation Department, State Bank of Pakistan, for the reasons that the Government of Pakistan had appointed the proposed respondent as the Custodian under the provisions of Rehabilitation of Karachi Hotel Project, 1985 vide para. 3 of the Martial Law Order 105 authorising the Custodian to take over the management and administration of the project with all powers to determine and discharge its liabilities. A notice was ordered on this application but the record does not indicate whether a notice was actually issued to the proposed respondent. Learned counsel for the petitioners appears to be under the impression that since these C.M.As. were listed for hearing before D.B.I, on the last date of hearing perhaps the notice was duly served. In any event, we have heard the learned counsel on these C.M.As. as well as the main case.

3. In view of the order proposed to be passed, it is not at all necessary to implead the Executive Director, State Bank of Pakistan as respondent in the proceedings because Karachi Properties Investment Company has not come forward with any appeal or a Constitutional petition. It is only at the behest of the guarantors for the repayment of loan/finance granted for the project that the present petition as well as appeal were filed before this Court. In any event, the decree-holder is entitled to enforce the decree against the guarantors and for the time being abandon to enforce it against the principal debtor whose assets now vest in the Custodian appointed by the Federal Government.

4. Adverting to the maintainability of the First Appeal, we find that Section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 provides an appeal by any person aggrieved by any order, judgment, decree and/or sentence of a Special Court before this Court with the only exception that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court. Needless to over-emphasise, the impugned order passed in this case has decided the fate of execution pplication by dismissing the objections raised by the petitioner/J.Ds. culminating in a direction for issuance of writ of attachment with regard to their properties. After passing of this order, the petitioners are left with no defence before executing Court, therefore, for all intents and purposes, it is a final order which disposes of the execution before the Court as a whole. In our view, the order impugned before us does not tantamount to an interlocutory order barring the maintainability of an appeal. Having held above, we are of the view that since the appeal is found to be competent before this Court, petitioners cannot maintain Constitutional petition with regard to the same order as alternate and effective remedy is provided by law which has been actually availed of in this case.

5. Learned counsel for the appellants pointed out that part from other objections taken before the Special Court main objection pertains to the bar of limitation inasmuch as the decree was passed on 29th February, 1984 whereas execution application on which the impugned order passed was filed before the Court on 22.6.1991. Mr. Tasawar All Hashmi, learned counsel for respondent/decree-holder sought to agitate that First Execution Application No. 42 of 1987 having been withdrawn decree-holder could maintain the fresh application under Section 48, C.P.C. and it is not bit by subsection (1) of Section 48, C.P.C. For the sake of proper appreciation of controversy with regard to the limitation, Section 48, C.P.C. may be reproduced hereunder:-

"48. Execution barred in certain coses.--(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of six years from--

(a) the date of the decree sought to be executed, or

(b) where the decree or any subsequent order directs any payment of money or the delivery of any properly to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed.~(&) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of six years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within six years immediately before the date of the application; or

(b) to limit or otherwise affect the operation of Article 183 of the First Schedule to the Limitation Act, 1908)."

1. A plain reading of the abovequoted provision of law tends to show that the period of six years prescribed in this provision of law shall commence from the date of the decree sought to be executed which time is not enlarged by reason of withdrawal of the first execution application. We are of the view that fresh application could have been maintained within an aggregate period of six years form the date of decree and not from the date of dismissal of the first application. In case it be so, the fresh/present application filed before the Executing Court is patently beyond time and hit by this provision of law. Learned counsel for the decree-holder/respondent has not been able to cite any provision to the contrary in support of his submission that the second application could be maintained within a period of six years from the date of dismissal of the first execution application. Obviously the provisions of clause (b) of subsection (1) of Section 48, C.P.C. are not attracted in the case in hand. Even the provisions of subsection (2) clause (a) cannot be invoked because no act of fraud or force preventing the execution of decree at the behest of the petitioners has been urged. Reliance is placed on Full Bench judgment of the Supreme Court reported as Mehboob Khan v. Hassan Khan Durrani PLD 1990 SC 778.

2. For the aforesaid facts and reasons, First Appeal No. 7 of 1992 is allowed and impugned order set aside while Petition No. 574 of 1992 dismissed as incompetent and improperly constituted.

(T.A.F.) Order accordingly.

PLJ 1999 Karachi 471'(DB)

Present: all muhammad baloch and sabihuddin ahmed, JJ. Messrs MASTER SONS«Appellant

versus

Messrs EBRAHIM ENTERPRISES and another-Respondents

High Court Appeal No. 64 of 1988 connected with Nos. 73, 88 and 89 of 1988, decided on 13.7.1998.

(i) Customs Act, 1969 (IV of 1969)--

—-S. lie-Responsibility of warehouse keeper-Question of bailment etc- Where goods were in possession of warehouse keeper, but beneficial interest remained vested with owner of goods, an obligation in equity amounting to a trust would be created and matter would be covered by one of recognized exceptions to the privily rule-Customs Act, 1969 having limited liability of warehouse keeper to a particular extent, question of liability could not be decided on basis of ordinary law of bailment. [Pp. 478 to 480] B & C

(ii) Statutes-Interpretation of-

—Definition of an expression as contained in one statute could not be used for the purpose of interpreting that expression in another law unless two statutes were iupari materia.[P. 476] A

Mr. Amanullah Khan (in H.C.As. Nos. 64 and 73 of 1988) and Iqbal Akhtar, Advocate for Appellants (in H.C.As. Nos. 88 and 89 of 1998).

Mr. Iqbal Akhtar, Advocate for Respondent No. 1 (in H.C.As. Nos. 64 and 73 of 1988).

Mr. Amanullah Khan, Advocate for Respondent No. 1 (in H.C.As. Nos. 88 and 89 of 1988).

Mr. Yawar Farooqui, Advocate for Respondent No. 2 (in all Appeals).

Date of hearing: 28.4.1998.

judgment

Sabihuddin Ahmed, J.--These four appeals arise out of a common judgment of a learned Single Judge of this Court, dated 22.12.1987 in Suits Nos. 781 of 1981 and 32 of 1982 whereby each of the suit was decreed against the common Defendant No. 1 in the sums of Rs. 1,230,000 and Rs. 158,328 respectively, and was dismissed against the common Defendant No. 2. The facts of the two suits were almost identical and may be briefly mentioned.

1. The plaintiffs in the two suits (hereinafter referred to as owners) imported certain goods which were stored in the bonded public warehouse of the Defendant No. 1 (hereinafter referred to as the warehouse keeper) who had insured all the goods stored in their warehouse (including those belonging to the owners) with the Defendant No. 2 (hereinafter referred to as the insurers). Apparently this was done pursuant to a Circular No. 2 of 1979, dated 22.1.1979 issued by the Collector of Customs which reads as under:-

"All the Bonders holding public/private Bonded warehouses are advised to furnish a comprehensive Insurance Cover for the goods lying in their warehouses. This should include protection against fire, theft, pilferage and damage due to floods and pledged with the Collector of Customs, Appraising. The Insurance Policy should be for C & F value of the goods warehoused including element of Customs duty and other taxes and should be deposited in the Bond section of this Customs House within thirty days from the date of issue of this Circular. Failure to do so within the specified period will result in the cancellation of the licences without any further notice."

Though copies of the Insurance Policies have not been placed on record, they seem to cover, as contended by the owners and not disputed by the other parties "the property of the insured or held in trust by them. Admittedly premium was initially paid by the warehouse keeper but subsequently the owners were charged the premium by warehouse keeper for the value of their goods so inured.

1. On 21.5.1981 a fire broke out in the warehouse as a result of which all the goods belonging to the owners were destroyed. According to the owners they lodged their respective claims with both the warehouse keeper and the insurer and upon failing to receive satisfactory response, filed these two suits. The above facts are not senously disputed. In the two suits declaration to the effect that the plaintiffs were entitled to recover specific sums of money, jointly and severally from the two defendants (warehouse keeper and insurer) was prayed for and costs and interest was also claimed. In Suit No. 32 of 1982 it was also prayed that the insurer be restrained from making payment of the amount claimed by the owner to the warehouse keeper.

2. Apart from raising certain technical objections as to maintainability of the suits, the warehouse keeper mainly contended that the fire was only accidental and not on account of their negligence and as such they were not liable for the loss sustained by the owners under Section 116 of the Customs Act The main thrust of the insurers contention was that there was no privity of contract between them and the owners and as such no liability could be attached to them. It may be stated here that admittedly the warehouse keeper have also filed a Suit bearing No. 123 of 1982 for recovery of the same insured in respect of goods covered by the insurance policy.

3. Both these suits were consolidated and tried together though Suit No. 123 of 1982 filed by the warehouse keeper against the insurer proceeded separately. The following issues were framed:-

(1) Whether the suit is incompetent ar;d not maintainable as against the defendants?

(2) Whether the suit is barred by and under Sections 21, 42, 54 and 56 of the Specific Relief Act?

(3) Whether the plaintiffs claim is untenable and exaggerated?

Evidence was led by the plaintiff/owner, but the defendants i.e. the warehouse keeper and the insurer only preferred to rest their case on legal pleas. The learned Single Judge decided the case by an elaborate judgment, dated 27.2.1988, after discussing the arguments of the parties decreed Suit No. 32 of 1982 for the amount of Rs. 1,58,328 and Suit No. 781 of 1982 for Rs. 12,51,525 against the warehouse keeper. As against the insurer, both suits were dismissed on the ground that there was no privity of contract between the owner and the insurer and that matter does not fall within the exceptional categories of cases where even a stranger to a contract could sue for the benefit reserved for him under the contract.

1. The owners as well as the warehouse keeper appear to be aggrieved by the aforesaid judgment. In H.C.As. Nos. 64 of 1988 and 73 of 1988, the owners have assailed the finding of the learned Single Judge to the extent to which the suit against the insurer was dismissed. In H.C.A. Nos. 88 and 89 of 1988, warehouse keeper has called in question the respective decrees against him in the two suits contending that he was not liable.

2. Mr. Amanullah Khan, learned counsel for the appellant/owners in the first two appeals has argued that the insurance policy in question was obtained to protect the insurable interest of the owners of the goods held in trust by the warehouse keeper. Even the premium relating to the extent of the value of the goods had been charged by the warehouse keeper from the owners. They being beneficiaries of the contract of insurance were entitled to sue upon it irrespective of the fact that technically they were not parties to such contract Moreover, he contended that instead of insuring the goods themselves the appellants allowed the warehouse keeper to insure such goods and therefore, the latter would treated as an agent. He referred to para. 12 of the impugned judgment, wherein the learned Single Judge himself, after referring to certain Indian precedents summed up the correct legal position in the following words:-

"In a case reported in AIR 1942 Cal. 251 it is held, that there are two exceptions to the general rule that a stranger to contract which reserves a benefit for him cannot sue upon it. The first exception is where the contract between the parties is so framed as to make one of them as trustee for other. In such case latter may sue to enforce the trust in his favour and no objection can be taken to his being stranger to the contract. The other exception covers those cases where promiser, between whom and the stranger, no privity exists, by his conduct and by acknowledgment or otherwise constitutes himself as agent of the third party. It was held, that in the case coming in the first exception, the third party is allowed to sue entirely on the footing that the instrument created a trust in their favour. Similar view was taken in AIR 1973 Cal. 401 wherein it was held, that though the common law principle is generally applicable in India with the effect that only the party to the contract is entitled enforce the same, but where an obligation in equity amounting to trust arising out of contract exists, the beneficiary has a right to sue."

1. Learned counsel, nevertheless, contended that the learned Single Judge went wrong in law in proceeding to hold further that warehouse keeper was neither an Agent nor a trustee of the owner so as to bring the case within the recognised exceptions to the general rule whereby even a stranger to a contract has a right to use. Indeed the legal proposition so ably stated in the abovequoted except from the impugned judgment is entirely unexceptionable. The question whether the warehouse keeper/Defendant No. 1 could be considered an agent or a trustee however, requires a some­ what detailed examination.

2. On the question of agency the learned Single Judge has very rightly observed that the relationship of principal and agent need not be expressly constituted but can be brought about by implication of law on a particular situation arising or from the necessity of the case. He has further referred to the contention that implied authority of the warehouse keeper to obtain insurance of the goods can be inferred from the fact that the owners actually paid or agreed to pay the premium to the extent of the value of their goods and, therefore, the owners could enforce the contract of insurance under Section 226 of the Contract Act. The learned Single Judge, however, was persuaded to hold that the wherehouse keeper did not insure the goods under instruct was from the owners but only pursuant to a circular from the Collector of Custom (quoted in para. 2 above). He, therefore, concluded that the warehouse keeper charged the premium from the owners only by way of consideration for keeping the goods in an insured warehouse.

3. To examine the import of the above circular it may be pertinent to keep into consideration the statutory obligations of a warehouse keeper in respect of safe custody of goods under Section 116 of the Customs Act, which reads as under:--

"116. The warehouse keeper in respect of goods lodged in a public warehouse, and the licensee in respect of goods lodged in a private warehouse, shall be responsible for their due receipt therein and delivery therefrom, and their safe custody while deposited therein, according to the quantity, weight or gauge reported by the officer of customs who has assessed such goods, allowance being made, if necessary, for deficiency in quantity on account of natural loss as provided in Section 110:

Provided that no owner of goods shall be entitled to claim from the appropriate officer or from any keeper of a public warehouse, compensation for any loss or damage occurring to such goods while they are being passed into or out of such warehouse, or while they remain therein, unless it be proved that such loss or damage was occasioned by the wilful act or neglect of the warehouse keeper or of an officer of customs."

It is quite clear from the above quoted provision that a warehouse keeper is not required to insure the goods entrusted to him by the Act and it is evident from the proviso that the keeper of a public warehouse is only liable for loss or damage to goods arising out of his own act or negligence. Evidently he is not required to indemnify the owner against accidental losses occurring while the goods were in his custody.

1. It, therefore, appears that the circular in question might have been issued by way of an advice in the general public interest to protect property stored in bounded warehouse but it was not, strictly speaking relatable to the statutory obligations of warehouse keeper. Obviously, when the law only makes the latter liable to the extent of loss caused by own negligence, the Collector could not through a circular direct him to obtain an insurance cover in respect of goods in which he had no interest, at his own cost and seek indemnity for the owner against accidental losses.

2. It may also be pertinent to refer to the standard No Objection Certificate issued by the warehouse keeper filed as Annexures "A" to "C" in H.C.A. No. 88 of 1988. These certificates contained the condition of storage and inter alia, provide that the goods would be stored at the sole risk of the owners and that the owners have represent that they are fully insured. The facts nevertheless remain that the terms of the circular were adhered and honoured by all parties. The warehouse keeper despite being under no legal liability obtained an issuance cover for the goods in which the owner and not the keeper had an insurable interest against accidental losses as well. The premium was paid by the owner himself. Therefore, even if, there was no specific direction by the owner to obtain such policy, by agreeing to pay the premium the act of the warehouse keeper was apparently ratified. Such ratification by the owner of something done to protect his own bona fide interests could also create the principal agent relationship in terms of Section 196 of the Contract Act. It appears that this aspect of the case escaped the attention of the learned Single Judge.

3. With reference to the second exception the learned Single Judge proceeded to hold that the warehouse keeper was a bailee and not a trustee of the owners of the goods. In doing so he relied on the definition of bailment of contained in Section 148 of the Contract Act and that of trustee in Section 3 of the Specific Relief Act and went on to hold that a trustee was only a person in whom the trust property is absolutely vested. Since the title to the goods in the instant case was not expressly or impliedly transferred to the warehouse keeper, the latter coild not be considered as trustee and, therefore, the exception of the general rule was not attracted.

4. With profound respects to the learned Single Judge we find ourselves unable to subscribe to the above view. In the first instance, it is settled law that unless a particular expression is defined in a statute it must be given its ordinary dictionary meaning. If authority is needed one may refer to a Division Bench judgment of this Court in the case of Kazi Abdul Mqjeed v. Province ofSindh PLD 1976 Kar. 600. Moreover, the definition of an expression as contained in one statute can be used for the purpose of interpreting that expression in another law unless the two statutes are in part materia. It would, therefore, be entirely inappropriate to refer to the definition of the expression trust as occurring in the Specific Relief Act for the purpose of construing a principle of a Contract Law. Moreover it appears that the learned Single Judge overlooked the fact that the definition of the expressions "Trust" and "Trustee" occurring in Section 3 of the Specific Relief Act are contained in the following language:--

"Trust includes every species of express, implied or constructive fiduciary ownership; trustee includes every person holding expressly, by implication, or constructively a fiduciary character", (underlining by us)."

It is evident from the bare reading of the above that the word "includes" as distinguished from the word "means" signifies that the definition is not exhaustive. Moreover, the expression "trustee" includes any person holding a fiduciary character whether expressly or constructively.

1. If resort to provisions of some statute was necessary to determine the import of the expression "trust", perhaps the only relevant law was the Trusts Act, 1882, which inter alia deals with the creation of private trusts and rights and obligations of trustees. Sections 5 and 6 of the Act prescribe the mode in which trusts are created. Chapter 9, however, deals with obligations in the nature of trust and Sections 94 and 95 appearing in this Chapter reads as follows:--

"94. In any case not coming within the scope of any of the preceding sections, where there is no trust, but the person having possession of property has not the whole beneficial interest therein, he must hold the property for the benefit of the persons having such interest, or the residue thereof (as the case may be), to the extent necessary to satisfy their just demands.

1. The person holding property in accordance with any of the preceding sections of this Chapter must, so far as may be, perform the same duties, and is subject, so far as may be, to the same liabilities and disabilities, as if he were a trustee of the property for the person i or whose benefits he holds it:"

2. A reading of the aforesaid provisions would demonstrate that even where there is no trust in the strict technical sense, the mere possession of a property by a person not having the entire beneficial interest therein creates a constructive trust and the person holding such property is, by the mandate of Section 95 subject to the same liabilities as if he were a trustee of the property for the person for whose benefit he holds it.

3. In the case of Allah Wasaya v. Sardar Shah PLD 1984 Lah. 59, there was a dispute over some property between the respondent Sardar Shah and one Mst. Amana Bibi. Litigation at the level of second appeal efore the High Court was terminated through a compromise whereby the respondent's ownership as to the property was acknowledged by the legal heirs of Mst. Amna Bibi, but the respondent was bound to sell the entire land to the applicant Allah Wasaya who was a relative of Amna Bibi for an agreed amount. Upon failure of the respondent to effect such sale, the applicant filed the suit for specific performance and injunction, but the plaint was rejected on the ground that the applicant was not a party to the compromise agreement and had no locus standi to file the suit. After surveying the law relating to the doctrine privity of contract and trust, the learned Single Judge held that though no trust in terms of strict requirements of Sections 5 and 6 was created, the applicant, though not a party to the compromise, had dear beneficial interest in the property and an obligation in the nature of trust had been created in terms of Section 94 of the Trust Act. In favour of the applicant and the respondent was a trustee thereof. His case, therefore, clearly fell under recognised exception to the doctrine of privity and he could file a suit to enforce his rights of purchasing the land upon payment of the agreed amount.

4. In the above context it may also be pertinent to refer to a couple of English cases. In Waters v. Monarch Fire and Life Insurance Company 1856 VE&B 890 where the plaintiff was a warehouse keeper and had stored in his warehouse goods belonging to him as well as those belonging to his customers. He obtained a policy of insurance covering "goods in his warehouse and goods entrusted to or on commission therein". No charges were made to the Customers for insurance nor were they informed of the existence of such policy. The goods were destroyed by fire and while defendant-insurance company agreed to compensate the plaintiff for the loss of his own goods, they declined to do so as far as the goods of other customers were concerned. However, the Queens Bench held that even though no charges for insurance were paid, a kind of voluntary trust had been created and equity will enforce such a voluntary trust. It was further observed that the expression "trust" was not used in a technical sense of passing legal interest in the property, but in the mercantile sense i.e. that the plaintiffs were accountable to the owners. One may pause here to mention that in the present case even premium for the insurance has been charged to the plaintiff/owner which makes the case better. The view taken in Waters case was approved by the House of Lords in the relatively recent decision in Hapburn v. A. Tomlinson (Hauliers) Limited 1996 A.C. 451. In this case the respondents were carriers of goods belonging to certain cigarette manufacturer and had insured them with the appellant, they were brought to the warehouse of the owner at night time, but the gates of the warehouse were not properly secured by the owners employees and resultantiy they were stolen away during night before being unloaded. The respondent sued for the value of the goods but the appellant pleaded that under the policy hey were only liable to indemnify the respondents to the extent of their own loss and since no loss had accrued to the respondents they were not liable to pay anything. Approving the above decision and holding that the policy in question covered goods and not merely the liability of the respondent, the House repelled this contention.

5. In view of the above, we are of the view that the expression 'trust" as used in the doctrine enunciated in para. 7 above, enabling a beneficiary to sue without being a party to contract has been used in a broad liberal and not a technical sense. It covers obligations in equity amounting to trusts which are treated as constructive trusts even in the Trust Act Otherwise, it would be highly inequitable to hold that while a person who transfers title to his property but only reserves certain benefits therein for himself may be able to enforce an obligation created by the other for his benefit, but would not be able to do so when he retains ownership rights for himself. In the circumstances we are inclined to hold that when the goods in question were in the possession of the warehouse keeper but beneficial interest remained vested with the owner an obligation in equity amounting to a trust was created and the matter was covered by one of the recognized exceptions to the privity rule.

6. The learned Single Judge appears to have arrived at the opposite conclusion upon the consideration that the contract between the owner and the warehouse keeper was on of bailment. Indeed there can be no cavil with the proposition that the latter was a bailee of the goods in question. With profound respect however, we are unable to share the view that the concept of bailment are inconsistent with that of trust. The concept of bailment has been explained in Halsbury's Laws of England, Fourth Edition, Vol. II page 1501, where bailment has been defined in the following words:-

"A bailment, properly so-called, is a delivery of personal chattels on trust, usually on a contract, express or implied, that the trust shall be duly executed, and chattels redelivered in either their original or an altered form, as soon as the time or use for, or condition on, which they were bailed shall have elapsed or been performed."

It would thus, appear that an obligation in equity amounting to a trust is implicit in every contract for bailment and a bailee of the goods is subject to the same obligations as a trustee. In view of the above we are unable to sustain findings of the learned Single Judge to the effect that the appellant/owner had no locus standi to sue Respondent No. 2. However, the extent of liability of such respondent would depend upon terms of the issuance policy and the question whether the contract of issuance was duly performed which is subjudice in Suit No. 123 of 1982.

1. Coming to H.C.As. Nos. 88 and 89 of 1992 preferred by the warehouse keeper, Mr. Iqbal Akhtar has mainly contended that, under proviso to Section 116 of the Customs Act the appellant was only liable to compensate the owner of the goods for losses arising out of the appellants own negligence and not from any accidental loss to the goods. He relied upon the proviso to Section 116 of the Customs Act which reads as under: -

"Provided that no owner of goods shall be entitled to claim from the appropriate officer or from any keeper of a public warehouse, compensation for any loss or damage occurring to such loss or damage was occasioned by the wilful act or neglect of warehouse keeper or of an officer of customs."

The learned counsel contended that the liability of the warehouse keeper having been defined by special law the learned Single Judge erred in deciding the question of liability on the basis of obligations arising under the ordinary law of bailment. He further submitted that in the absence of any specific allegation and evidence to the effect that the goods were destroyed owing to negligence of the warehouse keeper, the learned Single Judge erred in holding that the burden was upon the warehouse keeper to prove absence of negligence or that such negligence could be -> assumed to exist.

1. Mr. Iqbal Akhtar Khan is indeed correct to the extent that when a special law, i.e.Customs Act limited the liability of the warehouse keeper to a particular extent, the question could not be decided on the basis of the ordinary law of bailment We have indeed noticed that the question of application of Section 116 has not been examined by the learned Judge.

2. The matter, however, does not end here. Despite there being no statutory duty to compensate the owner for loss of goods owing to accidents during the period of bailment or to insure the goods against such risks, the fact remains that the appellant/warehouse keeper did obtain an insurance policy to cover, not only his own goods but also those held "in trust" by him, against accidental losses. The owner also agreed to pay his share of the insurance premium. This arrangement was made quite independently of the duties of a statutory bailee under the Customs Act. It arose out of a contract between the parties which was legal and enforceable. Assuming that the _ goods were destroyed through pure accident, the owner having paid the insurance premium covering such risk is indeed entitled to be indemnified. The warehouse keeper was inaeed committed to compensate the owner in case the amount is disbursed bj the insurer. He could have invoked the third _ party procedure under Rule 138 for determination of the liability of the "\" latter. However, he chose to file Suit No. 123 of 1992 for recovery of the total amount of sum assured against the Respondent No. 2/insurer. Mr. Yawar Farooqui states that certain defences have been taken up by the insurer and it is inter alia contended that the Insurance Company is not liable to pay on •\ account of certain breach of the conditions of the contract of insurance on the part of the warehouse keeper. The record of the case is not before us and we are unable to comment. However, in case this is so, the insurance company may be absolved but the warehouse keeper might be liable to compensate the owner for breach of contract in failing to remit the premium received. It would, therefore, have been proper to try both the suits simultaneously so that the question of liability of the warehouse keeper or insurer could be finally decided.

3. In view of the above we would allow all the four appeals and remand the two suits to be tried by a learned Single Judge alongwith Suit No. 123 of 1982. The learned Single Judge shall be free to allow parties to lead additional evidence in case he considers it necessary for disposal of the suits.

(T.A.F.) Appeals allowed.

PLJ 1999 Karachi 481

Present: shaiq usmani, J. A. MERDITH JANES CO. LTD.-Plaintiff

versus

CRESCENT BOARD LTD.-Respondent

Judicial Miscellaneous Nos. 25 of 1997, decided on 14.9.1998.

Arbitration (Protocol and Convention) Act, 1937 (VI of 1937)--

—Ss. 5 & 7--President of Liverpool Cotton Association made compulsory appointment of Arbitrator under rules of Liverpool Cotton Association Limited to act on behalf of defendants-Arbitrators gave their award under which defendants were directed to pay damages together with interest and costs-No appeal was filed by defendants to Technical Award Committee against the award-Defendants filed objections that since admittedly arbitrators did not have sight of a contract form signed by both parties, Arbitrators were not seized of jurisdiction and that the date of determination of breach of contract was not correct—Status— Defendnats had not denied the existence of contract-Objections being beyond the scope of S. 7 of Arbitration (Protocol and Convention) Act (VI of 1937) suit was decreed in terms of the award. [Pp. 483 & 484] A & B

Mr. Qamar Abbas, Advocate for Plaintiff.

Mr. Qadir H. Sayeed, Advocate for Respondent.

Date of hearing: 12.8.1998.

judgment

This is a suit for enforcement of foreign award under Section 5 of the Arbitration (Protocol and Convention) Act, 1937 (hereinafter referred to as the Act). By a short order, dated 12.8.1998 I directed that the Award be filed and decreed the suit in terms of the award. Following are the reasons for it

The facts of the case are that the parties entered into a contract, dated 3.5.1994 which was made subject to bye-laws and rules of Liverpool Cotton Association Limited (hereinafter referred to as L.C.A.) of which both parties were the members at the relevant time. The contract was made out on a standard form of contract and under it the plaintiffs agreed to sell 700 metric tons of C/S raw cotton 1993/94 type Tanya to the defendants at 82.50 cents (U.S.) per Ib. Out of this 500 metric tons were to be shipped in June, 1994 and the balance 200 M/T in July, 1994. The payment under the contract was to be effected by Letter of Credit which was to be opened and fully operable by 15.5.1994 for the June shipment and by 15.6.1994 for the July part or the Seller i.e. Plaintiff had the right to close out the contract at part or market price.

Dispute arose between parties due to failure of defendants to open and forward the Letter of Credit as per terms of the contract. The plaintiffs, therefore, in accordance with rules of L.C.A. appointed Mr. W.D. Farrar as their Arbitrator but the defendants failed to appoint their Arbitrator in spite of being invited to do so several times. Consequently, an application was made to the President of L.C.A. in accordance with rules of L.C.A. for compulsory appointment of an arbitrator to act on behalf of the defendants. The President L.C.A. then after due notice to defendants appointed Miss H.S. Anderson to act as an Arbitrator for the defendants. Thereafter, the defendants participated in the Arbitration and after hearing parties and due deliberations the Arbitrators gave their award, dated 24.7.1995 under which the defendants were directed to pay the plaintiffs US 54,579.25 together with interest and costs. Under the rules of I.C.A. the defendants could appeal to Technical Appeal Committee against the award within thirty days but even though the defendants did give notice to appeal within time, they did not pay the requisite fees under L.C.A. Rules. Accordingly, no appeal was formally made and the award became final and binding on both parties.

The defendants have filed objections to the award, which are elaborate and copious and go beyond the scope of Section 7 of the Act, which deals with conditions of enforceability of a foreign award and the objections that can be raised against it. For case of reference this section is reproduced below:--

"7. (1) In order that a foreign award may be enforceable under this Act it must have-

(a) been made in pursuance of an agreement for arbitration which was valid under the law by which it was governed, (b) been made by the Tribunal provided for in the agreement or constituted in manner agreed upon by the parties, (c) been made in conformity with the law governing the arbitration procedure, < A) become final in the country in which it was made, (3) been in respect of a matter which may lawfully be referred to arbitration under the law of British India (Pakistan).

and the enforcement thereof must not be contrary to the public policy or the law of British India (Pakistan).

(2) A foreign award shall not be enforceable under this Act if the Court dealing with the case is satisfied that-

(a) the award has been annulled in the country in which it was made, or

(b) the party against whom it is sought to enforce the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case, or was under some legal incapacity and was not properly represented, or

(c) the award does not deal with all the questions referred or contains decisions on matters beyond the scope of the agreement for arbitration:

Provided that if the award does not with all questions referred the Court may, if it thinks fit, either postpone the enforcement of the award or order its enforcement subject to the giving of such security by the person seeking to enforce it as the Court may think fit.

(3) If a party seeking to resist the enforcement of a foreign award proves that there is any ground other than the non-existence of the conditions specified in clauses (a), (b) and (c) of sub-section (1) or the existence of the conditions specified clauses (b) and (c) of sub­section (2), entitling him to contest the validity of the award, the Court may, if it thinks fit, either refuse to enforce the award or adjourn the hearing until after the expiration of such period as appears to the Court to be reasonably sufficient to enable that party to take the necessary steps to have the awarded annulled by the competent Tribunal."

Notwithstanding numerous points raised by the defendant in the objections filed by them, the learned counsel for the defendants Mr. Qadir H. Sayeed very candidly and indeed gallantly conceded that basically he wanted to urge only two points, which he did quite forcefully.

Mr. Sayeed, firstly, contended that since admittedly the Arbitration did not have sight of a contract form signed by both parties, they were not seized of jurisdiction and hence, the award is invalid ab initio. Secondly, Mr. Sayeed's contention was that the Arbitrators had determined the date of breach of the contract to be 21.7.1994 whereas it should have been 17.6.1994 since the defendants had intimated the plaintiffs through a fax, dated 17.6.1994 that they were willing to amicably settle contract owing to unexpected imposition of import duty on raw cotton by the Government of Pakistan. According to Mr. Sayeed if the dated of 17.6.1994 had been chosen the alleged losses of plaintiffs would have been reduced considerably due to difference in price of cotton on the two dates.

In so far as the objection regarding non-sighting of the contract form duly signed by parties is concerned, it will be advantageous to reproduce the paragraph 8 of the Award on which the defendants rely for their contention. It reads as under:-

"Neither the Buyers nor the Sellers dispute the existence of this contract, in spite of the Arbitrators having no sight of the contract form signed by both parties."

A plain reading of this paragraph would show that in raising their objections the defendants have merely relied on the latter part of paragraph ignoring the first part. Read as a whole the paragraph would show that the parties had waived the production of the signed contract and had admitted the existence of the contract It would, thus, appear that the defendants have merely torn the said portion of the paragraph out of contract to arrive at an erroneous conclusion. In any case nowhere in the objections filed by the defendants they have denied the existence of contract. In so far as non-signing of the contract is concerned while dealing with an arbitration award under L.C.A. rules in the case of Ralli Brothers & Company Ltd. v. Muhammad Amin Muhammad Bashir Ltd. reported in 1987 CLC 83, a Single Bench of this Court has held that signing of such contract is not necessary. The relevant portion is reproduced below:-

"By virtue of membership of Liverpool Cotton Association which provides for arbitration between the members there exists an arbitration agreement between the parties. In these circumstances, even if the parties have not signed any agreement for arbitration or the defendants have refused to sign the contract note sent by the plaintiff containing arbitration clause, the existence of arbitration agreement between the parties cannot be denied."

In so far as the date of breach of the agreement is concerned, it is a question of fact and it is well-settled that Courts cannot go behind the award. Defendants remedy in this regard was to appeal against the award as provided in L.C.A. Rules. Having not availed of that remedy, the defendants cannot urge at this stage a point that is entirely a question of fact.

Finally I feel it is pertinent to mention here, that if Pakistan is to attain some respectability in the commercial world, it is necessary that trans national commercial agreements must be honoured and judicial process must not be used merely to delay the implementation of such agreements or judicial or quasi judicial decisions passed in disputes arising from such agreements. I, therefore, find no merit in the objections to Award raised by defendants and accordingly direct that the award, dated 24.7.1995 be filed. In so far as the suit is concerned, I decree this suit in terms of the said award.

(T.A.F.) Suit decreed.

PLJ 1999 Karachi 484

Present: ABUL INAM, J. STATE LIFE INSURANCE CORPORATION OF PAKISTAN-Plaintiff

versus

Messrs BIBOJEE SERVICES LIMITED and another-Defendants

Suit No. 242 of 1978, heard on 14.4.1998.

(i) Companies (Managing Agency and Election of Directors) Order 1972 (II of 1972)--

—-Arts. 4 & 6(2)(b)-Contention that after promulgation of Companies (Managing Agency and Election of Directors) Order, 1972, Managing Agency stood terminated and its obligation in respect of purchase of shares of company also stood extinguished-Status-Provisions of Art 4 of Companies (Managing Agency and Election of Directors) Order, 1972, provided that though all agreements or contracts entered by Managing Agency had ceased to hold their respective offices, yet under Art 6(2)(b) of said Order, rights and liabilities of a company or a managing agent, did not extinguish-Contention repelled. [P. 490] B

(ii) Contract Act, 1872 (IX of 1872)-

—S. 56-Agreement~Performance of-If performance impossible-Status- After execution of agreement, Province of East Pakistan having seceded from Pakistan and having assumed status of an Independent State of Bangladesh, part of agreement required to be performed by defendants at a future date had become impossible-Held : Said part of agreement, had become void as contemplated under provisions of S. 56 of Contract Act, 1872. [P. 489] A

(iii) Contract Act, 1872 (IX of 1872)--

----- S. 73--Contract--Breach of-Effect-In estimating loss and damages arising from breach of contract, means and measures which existed for remedying the inconvenience caused by non-performance of contract, were to be taken into account-Party claiming damages on account of breach was required to take steps for mitigating damages that had arisen on account of breach of contract-Plaintiff was entitled, as far as possible, to be put in the same position as it would have been in case the contract had not been breached. [P. 491] C

Mr. Irtaza Hussain Zaidi, Advocate for Plaintiff.

Mr. AS. Finger and Dr. Pervez Hasan, Advocates for Respondents.

Date of hearing: 14.4.1998.

judgment

This is a suit for recovery of Rs. 36,47,103.09 filed by Messrs State Life Insurance Corporation of Pakistan. The brief facts as stated in the plaint are that the plaintiff is a statutory corporation constituted under Article 11 of the Life Insurance (Nationalization) Order, 1972. Under the President Order 10 of 1972, all assets and liabilities appertaining to the life insurance business of all insurance companies in Pakistan stood transferred and vested in the plaintiff and one such insurance company was Eastern Federal Union Insurance Company Limited (hereinafter referred to as "EFU") whose assets and liabilities stood vested in the plaintiff by virtue of the said President's Order. It has been averred by the plaintiff that Defendant No. 1 at the relevant time was managing agent and in control of two companies, namely, Janana De Malucho Textile Mills Ltd. and Galfra Habib Limited (hereinafter referred to as "JDL" and "GHL" respectively). The Defendant No. 2 is a shareholder/director/chairman of Defendant No. 1 and so also the chairman/director/ shareholder of each of the two aforesaid companies Le. JDL and GHL. The Defendant No. 2 in addition to his personal liability to the plaintiff is liable in his personal capacity for and in respect of the dues outstanding against Defendant No. 1 to the plaintiff. The defendants approached EFU for sale of 34,667 ordinary shares of JDL @ Rs. 40 per share for a total sale consideration of Rs. 13,86,680 and 80,000 shares of GHL @ Rs. 8 per share for a total sale consideration of Rs. 6,40,000, in terms of agreement, dated 2.2.1970 executed between EFU and Defendants Nos. 1 and 2. The said agreement, inter alia, reads as under:--

"(a) Against delivery of duly transferred shares of JDL and GHL, EFU was to pay to the defendants the total sale consideration of Rs. 20,26,680 for sale/purchase of the aforesaid shares;

(b) The defendants under the said agreement re-purchased the said shares for the same consideration unconditionally and the time for repayment of the agreed sale price by the defendants to EFU and the delivery of each lot of the two shares there against being at future dates mentioned in the said agreement;

(c) EFU was guaranteed by the defendants an agreed minimum return of 10% of the face value per annum. The dividends, if any, received from the respective companies were deemed to be paid to arms this guaranteed minimum return of 10% and in case of deficiency, the defendants undertook to make up and pay such deficiency, if any.

(d) The guaranteed minimum return or any deficiency there against was to be paid by or before the 31st March, of each calender year, the first payment of the said return was, however, to be for about two months payable on or before 31.3.1970 and thereafter, each year on or before 31.3.1975;

(e) The defendants, under the agreement, were to pay the agreed purchased price and take delivery of the said repurchased shares of JDL and GHL in the following manner-­ CD first one-third lot from each shares on or before 31.3.1973;

(ii) second or the next one-third similar lot on or before the 31.3.1974; and

(ii) the remaining or the balance one-third on or before 31.3.1975."

In terms of the aforesaid agreement, EFU paid the total sale consideration of Rs. 20,26,680 to the Defendant No. 1 and received duly transferred shares of JDL and GHL which having been simultaneously repurchased by the defendants were retained/kept by the plaintiff as security for payment of its dues. During the course of holding of the said shares as security in respect of shares of JDL there was an accretion by way of 32,933 ordinary shares of face value of Rs. 10 each, 22,530 preferential ordinary shares of face value of Rs. 10 each, of JDL shares and 37,180 shares of face value of Rs. 10 each of Babri Cotton Mills, an affiliate company of JDL. The case of the plaintiff further is that the defendants, jointly and severally, failed/refused/neglected to pay the amount due and payable by them on the agreed dates i.e. 31.3.1973, 31.3.1974 and 31.3.1975 with the result that entire repurchase price of Rs. 20,26,680 is due for payment by the defendants to the plaintiff in addition to interest thereof from the respective due dates. On demand having been made by the plaintiff for payment of repurchase price, in terms of the agreement, the defendants acknowledge their liability by writing letters on 1.9.1971, 7.9.1971, 25.11,1971, 7.4.1972 and 8.4.1972. It has further been averred by the plaintiff that part payment of plaintiffs dues was made by the defendants under the agreement details of which are given in para. 12 of the plaint. On failure of the defendants to abide by the terms of the aforesaid agreement, legal notices, dated 7.6.1975 and 2.2.1978 were served by the plaintiff on the defendants but the defendants failed to pay any heed to it. Hence this suit.

The defendants were served and filed their written statement wherein they have denied their liability to pay the said amount The defendants in their written statement have contended that there was no agreement for repurchase of the shares and it was only an agreement to sell and purchase the shares in future. The plaintiff in the event of non-performance by the defendants of their obligation under the agreement, if any, had option to sell the shares in open market and in case they were unable to recover the amount for which they had agreed to sell the shares, the defendants could have been required to make the deficiency. It has further been averred by the defendants in their written statement that the suit is barred by limitation as it was stipulated in the agreement that the defendants were to buy-back the first lot of one-third shares on or before 31.3.1973, likewise the second lot of one-third shares was to be repurchased by the defendants on or before 31.3.1974 and the remaining one-third was required to be repurchased on or before 31.3.1975. The cause of action, therefore, in respect of the first lot of one-third shares accrued to the plaintiff on 31.3.1973 and similarly for the second and third lot of shares on 31.3.1974 and 31.3.1975 and the suit having been filed in the year 1978 is, therefore, barred by limitation as period prescribed for filing the suit is three years as provided in Article 115 of the Limitation Act, 1908. The case of the defendants is that a suit for damages or a suit for specific performance of the contract should have been filed and the suit in its present form is not maintainable. The liability of Defendant No. 1 to pay the suit amount has been denied as by virtue of Sections 4 and 5 of the President's Order No. 2 of 1972 the defendants' capacity as managing agent came to an end with effect from 15.1.1972. In so far as liability of the defendants to repurchase the shares of GHL, it is the case of the defendants that the agreement for this purpose stood frustrated as GHL was registered with the Registrar Joint Stock Companies for the Province of East Pakistan (as it then was). In this regard the defence of the defendants is that before the maturity of the agreement in respect of repurchase of shares, East Pakistan due to armed intervention of India, seceded from Pakistan and assumed the status of a sovereign State.

On the basis of pleadings of the parties, following consent issues were framed:-

(1) Whether the suit in the present form is maintainable?

(2) Is the suit of the plaintiff within limitation?

(3) What is the effect of secession of West Pakistan upon the agreement?

(4) What is the effect of P.O. No. 2 of 1972 upon the contractual obligations of Defendant No. 1?

(5) Whether the defendants failing to make the required arrangements upon termination of the Managing Agency by the operation of P.O. 2 of 1972 were not bound to buy-back the shares within 30 days under clause 9 of the agreement and if so what is its effect?

(6) Whether the plaintiff was not obliged under the Agreement with the defendants to sell the shares in the open market under clause 8 on the alleged default of 30 days of the defendants and if so, what is its effect?

(7) Did the shares stand repurchased by plaintiff on 2nd February, 1970 simultaneously with the sale by them in favour of the plaintiff and was the plaintiff holding the shares as security for the payment of the alleged price?

(8) Whether the defendants liability stands admitted by them as alleged in para. 9 of the plaint?

(9) On what account and to what effect the payments referred to in para. 12 of the plaint were made?

(10) What is the amount due to the plaintiff, if any?"

The plaintiff examined one M. Yahya Amiwalla as Exh. 5 who reiterated the contents of the plaint whereas the defendants examined Saleem Masud as Exh. 6.

I have heard Mr. Syed Irtaza Hussain Zaidi for the plaintiff and Dr. Pervez Hassan for the defendants.

My findings on the aforesaid issues are as under:-Issue No. 1.

Not pressed by the Advocate for the defendants. Issue No. 3.

It is an admitted position that after execution of agreement, dated 2.2.1970 (Exh. 5/1) the Province of East Pakistan, on account of armed Indian intervention seceded from the State of Pakistan and assumed the statute of an independent State. Part of the agreement required to be performed by the defendants related to repurchase of shares of GHL by the defendants and as such contention of learned counsel for the defendants is that the agreement, dated 2.2.1970 to the extent of repurchase of shares of GHL by the defendants became void as on account of secession of East Pakistan the agreement in so far as it relates to the purchase of shares of GHL became impossible. My attention in this regard has been drawn by the learned counsel for the defendants to Section 56 of the Contract Act which, for sake of reference, is reproduced below:-

"56. Agreement to do impossible Act.-An. agreement to do an act impossible in itself is void.

Contract to do act afterwards becoming impossible or unlawful. A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful."

Section 56 of the Contract Act deals with agreements performance of which by a promisor is impossible in itself and as such agreement is void. It also encompasses within its ambit such agreements performance of which becomes possible at the time of execution of the same on account of subsequent events provided such impossibility or unlawfulness was not within the knowledge of the promisor. As stated above, a part of the agreement pertains to purchase of shares by GHL by the defendants at a future date and certainly the defendants could not have visualised that on the date of its performance East Pakistan would secede from the State of Pakistan. Such being the position, I hold that the effect of secession of East Pakistan on the agreement which is subject-matter of this suit is that in so far as the same related to the purchase of shares of GHL the agreement became impossible and, as such, is void as contemplated under the provisions of Section 56 (ibid). In any event, it is an admitted position that Defendant No. 1 was managing agent of JDL only and, as such, did not incur any liability in respect of repurchase of shares of GHL under the agreement which is subject-matter of this suit.

Issues Nos. 4 and 5

It has been urged by the learned counsel for the defendants that I under the provisions of President's Order 2 of 1972, the Defendant No. 1 | which was a managing agency stood terminated and as such obligation of Defendant No. 1 in respect of purchase of shares of JDL stood extinguished. Under Section 4 of the President's Order 2 of 1972, all agreements or contracts entered into by a company with its managing agent stood terminated forthwith and the managing agent and directors of the company nominated by the managing agent ceased to hold their respective offices but 8 under Section 6(2)(b) of the president's Order 2 of 1972 rights and liabilities of a company or a managing agent did not extinguish and there is no force/substance in the contention of the learned counsel for the defendants that on promulgation of President's Order 2 of 1972 obligations of Defendant No. 1 under the agreement stood extinguished and they were not bound to buy-back the shares within thirty days under clause 9 of the agreement

Issue No. 6

The learned counsel for the defendants has urged that under clause 8 of the agreement in case of default to perform contractual obligations by the defendants, the plaintiff was entitled to sell all the said shares including the right and bonus shares in open market without any notice or reference to the defendants at their (defendants) risk and cost and to recover the balance, due from them. It is further contended by the defendants' counsel that, admittedly, first breach of the agreement occurred on 31.3.1973 when the defendants failed to repurchase the shares from the plaintiff by making payment in respect of first lot of shares and as such a duty was cast upon the plaintiff, under Section 73 of the Contract Act, to mitigate the alleged loss on account of default of the defendants by selling the shares in question in open market. For the sake of convenience, Section 73 of the Contract Act is reproduced hereinbelow:-

"73. Compensation for loss or damage caused by breach ofcontract.-When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.

Compensation for failure to discharge obligation resembling those created by contract-When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.

Explanation. In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account."

A bare reading of Section 73 of the Contract Act demonstrates that when a contract has been breached the party who suffers by such breach is entitled to receive from the party who has committed such breach the compensation for any loss or damage caused to him but under the explanation to Section 73 of the Contract Act, in estimating the loss and damage arisen from a breach of contract the means which existed of remedying the inconvenience caused by non-performance of the contract are to be taken into account meaning thereby that the party claiming damages on account of breach is required to take steps for mitigating the damages that have arisen on account of breach of contract. In case of breach of contract, the plaintiff is entitled, as far as possible, to be put in the same position as it would have been in case the contract had not been breached. Under explanation to Section 73 of the Contract Act a duty is cast upon the plaintiff to take steps to mitigate the loss/damages. A perusal of clause 8 of the agreement (Exh. 5/1) reveals that plaintiff was at liberty to sell the shares in question in open market in case of breach of the agreement by the defendants, but no evidence has been led by the defendants to prove that on account of failure of the plaintiff to sell the shares in question in open market, to what extent the damages could have been mitigated. In fact, the statement of the witness of the defendant is completely silent on this point. In any event, the obligation of the defendants to pay compensation in case of breach of agreement cannot be termed to be conditional on plaintiffs selling the shares in question in open market in case of breach of agreement as under clause 8 of the agreement it was discretionary with the plaintiff to do so.

Issue No. 7

It has been contended by the learned counsel for the defendants that the agreement, dated 2.2.1970 executed between the plaintiff and defendants is simple agreement of sale of the shares by the plaintiff to the defendants and there is no simultaneous resale of the same between the parties. It has further been urged by the defendants' counsel that the plaintiff was not holding the said shares with them as security for payment of the sale price of the shares in question. Clause 7 of the agreement between the parties in clear terms stipulated that the defendants shall right shares issued in respect of the said shares in the manner and on the dates specified in the said agreement. It is, in my view, in fact a buy-back agreement in respect of the shares in question and as such there is no force in the contention of the learned counsel for the defendants that the said agreemen does not ostulate repurchase of the shares in question by the defendants. Since the obligation under the agreement in respect of buy-back the shares in question was on a future date there is no escape from the conclusion that the same were held by the plaintiff as security for the payment of repurchased price of the shares in question.

Issues Nos. 2. 8 and 9

It has been contended by the learned counsel for the defendants that under Clause 7 of the agreement the defendants were required to repurchase the shares in question in three different lots on 31.3.1973, 31.3.1974 and 31.3.1975 on payment of proportionate agreed sale consideration. According to the learned counsel for the defendants, in the given facts of this case three successive breaches of the agreement have occurred. The first breach in respect of first lot occurred on 31.3.1973, second breach on 31.3.1974 and the third and the last breach has occurred on 31.3.1975 and as such separate and independent cause of action in respect of successive breaches has accrued to the plaintiff and period of limitation for each of the breach shall be reckoned from the date of such breach. In this view of the matter, it is urged by the learned counsel that at least to the extent of the breach, which occurred on 31.3.1973 and 31.3.1974, the claim of the plaintiff is barred by limitation as the suit having been filed on 19.3.1978 is barred under Article 115 of the Limitation Act, 1908 which provides a period of three years for filing a suit for compensation for breach of contract. On the other hand, contention of Mr. I.H. Zaidi, learned counsel for the plaintiff is two-fold. Firstly, it has been urged by the learned counsel for the plaintiff that the defendants vide their letter (Exhs, 5/3 to 5/5) have admitted their liability to pay the amount outstanding against them. I have perused the aforesaid three letters and find that all these letters are in respect of forwarding cheques by the defendants to the plaintiff for payment of dividend and as such the same cannot be termed to be an acknowledgment in writing of the claim of the plaintiff against the defendants. Furthermore, all these three letters were written by the defendants to the plaintiff in the year 1971 and as such even if the same are to be treated as an acknowledgment of liability, such letters cannot bring the suit of the plaintiff within the limitation as in case the period of limitation is calculated from the date of writing of these letters, the claim of the plaintiff would become time-barred in the year 1974. Secondly, it has been contended by Mr. I.H. Zaidi that the defendants have made part payment, to the plaintiff on the dates as mentioned in para. 12 of the plaint. Such payments were made by the defendants to the plaintiff between 24.7.1970 and 30.4.1975. The defendants in their written statement have specifically denied such payments being part payments towards the claim of the plaintiff. It has been stated by the defendants in their written statement that the payments referred to by the plaintiff in their written statement were towards payment of dividends. Such being the position a duty was cast upon the plaintiff to prove through cogent evidence that such payments made by the defendants were towards part-payments of plaintiffs dues in respect of ooo-payment of sale consideration of the repurchased shares under the agreement which the plaintiff has flailed to do. I am, therefore, of the considered view that the payments indicated in para. 12 of the plaint do not bring the suit of the plaintiff within the limitation to the extent of plaintiff's daim in respect of payment of repurchased price of the lot of shares which due.

Having held above that the obligation of the defendants in respect of repurchase of shares of GHL stood frustrated in view of fall of East Pakistan, the claim of the plaintiff in respect of repurchase of shares to the extent of GHL is not maintainable. In so far as the claim of the pi«intifr in respect of repurchased price of shares of JDL, I am of the considered view that claim of the plaintiff in respect of payment of repurchased price for first two lots of shares due on 31.3.1973 and 31.3.1974 is barred by limitation.

In view of the above discussion, this suit is decreed against the defendants, jointly and severally for a sum of Rs. 4,62,226.66 being repurchased price of the third lot of shares plus agreed minimum return of 10% per annum of the face value of shares of JDL from 31.3.1975 till filing of the suit. The plaintiff shall also be entitled to mark-up and/or equalizer in depreciation of money value from the date of filing of the suit till its realisation and cost of the suit.

Orders accordingly.

PLJ 1999 Karachi 493

Present:mushtaq ahmed memon, J. M/S. VINDER TEXTILE MILLS LTD.-Plaintiff

versus

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN-Defendant

Suit No. 721 of 1995, heard on 13.8.1998.

Malafides"

—"Malafides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because their is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of malafides-Ashas been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), malafides must be pleaded with particularity, and once one kind of malafides is alleged, no one should be allowed to adduce proof of any other kind of malafides is alleged, no one should be allowed to adduce proof of any other kind of malafide nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging malafidesbe allowed a roving enquiry into the files of the Government for the purpose of fishing out some kind of a case.

[P. 500] B

Reliance PLD 1974 SC 151, Reference, PLD 1969 SC 14

(ii) Banking Companies (Recovery of Loans, Advances, Credits & Finances) Act, 1997 (XV of 1997)-

—S. 9(l)(a)-Qanoon-e-Shahadat Order, 1984, Art. 129--Presumption by court-Neither a technical person has been examined by plaintiff nor have any details been stated to show if various items, mentioned in the list of imported machinery could not be used as Spinning Unit in the absence of items mentioned in list of locally manufactured machinery-Article 129 of Qanoon-e-Shahdat Order, 1984 provides that Court is obliged to presume that machinery covered by two facilities could not be used separately for reason that grant of both the facilities was sanctioned through common document, such presumption shall be too far fetched and cannot be drawn in the absence of some tangible proof- [P. 498] A

(iii) Principle of Res-ipsa Loquitor—

—Evidently, burden to prove conditions for inviting tenders and acceptance thereof is upon plaintiff and principle res ipsa loquitor is not attracted to the present case-Necessary conditions for applicability of principle of resipsa loquitor have been narrated in the judgment of Pakistan Steel Mills Corporation vs. Malik Abdul Habib (1993 SCMR 848) in the following terms:"Res ipsa loquitur means that the things speak for themselves—This doctrine applies firstly, when thing that inflicted damage was under sole management and control of defendant and secondly, that occurrence is such that it would not have happened without negligence and thirdly, that there must be no evidence as to why or how the occurrence took place." [P. 501] C

1993 SCMR 848 ref.

Mr. Saalim Salam Ansari, Advocate for Plaintiff. Mr. Azizur Rehman, Advocate for Defendant. Date of hearing: 12 and 13.8.1998.

judgment

Mushtaq Ahmed Memon, J.-In this suit for damages the following prayer is made :--

"(a) To declare that the defendants has not fulfilled their commitment in disbursing the LMM loan;

(b) to declare that due to refusal to disburse the said loan, the plaintiffs were not bound to lift the machinery;

(c) to order that a loss has been caused to the plaintiff in the sum of Rs. 64.45Millions;

(d) to order that damages to the extent of Rs. 90.00 Millions has been caused to the plaintiff;

(e) to declare that no loan is liable to be repaid by the plaintiff.

(f) to declare that the guarantees issued by the sponsoring Directors stand cancelled.

(g)to grant cost of suit; and

ih) any other order/orders, relief/reliefs that this Hon'ble Court may deem fit and proper on the facts and circumstances on the case.

The facts leading to the filing of present proceedings, as stated in the plaint, are that the plaintiff, a limited company, had applied to the defendant, a Banking Company established under the Industrial Development Bank of Pakistan Ordinance, 1961, for grant of finance to establish a Spinning Unit at Vinder District Lasbela. The said request was granted by the defendant through Sanction Letter dated 16.12.1991 in the terms that the defendant agreed to issue bank grantee for machinery proposed to be imported under supplier's credit in foreign currency equivalent to Rs. 119,771 million. Besides, the defendant agreed to provide financial assistance in the sum of Rs. 10 million, under the LMM Scheme, with the arrangement that Rs. 8 million were to be obtained by way of refinance from the State Bank of Pakistan whereas the remaining sum of Rs. 2 million were to be provided by the defendant-bank from its own resources. According to the plaint, despite grant of the two facilities for separate amounts, the same were so inter­linked with each other that the grant of one in the absence of the other would render the first meaningless. It is further averred in the plaintiff that the plaintiff from its own funds had acquired land for the project and had raised construction thereon which had cost it a sum of Rs. 20 million approximately. Besides, the plaintiff claims to have invested Rs. 33 million for establishing Letter of Credit to import machinery for the project. The laintiff claims to have already invested a sum of Rs. 60 million towards the project. In relation to the imported machinery, the required guarantee was issued by the defendant and the foreign manufactured machinery had arrived at Karachi Port during March, 1993. As regards the local currency | finance, it is stated that the defendant Bank had failed to disburse the same. While explaining the default, it is averred in the plaintiff that the payment, in terms of the LMM Scheme, had to be made directly to the local supplier of achinery after selection through the process of inviting tenders. The plaintiffs case is that the tenders were called by it with the approval of the defendant-Bank on 9.6.1992 and bid was received from one M/s. Rehan Engineering Foundry Industries which was forwarded for approval to the' defendant-bank with its own recommendation. The tender was allegedly ' rejected without any justification and with the mala fide intention of evading the commitment earlier made by the defendant. Pursuant to the rejection of tender the plaintiff again invited fresh tenders which were recommended for acceptance to the defendant but to see the same fate. The plaintiff was then advised to locate a manufacturer approved by the defendant. It is further the case of the plaintiff that despite sub-mission of quotation by approved manufacturers, the defendant decline to accept the offer and to release the finance under LMM Scheme. It is averred in the plaint that the mala fides of

the defendant were evident from the fact that it had approved offers by the _ same manufacturers for supplying similar nature of machinery to two other entitles namely. Marhaba Textile Mill Limited and Ravi Textile Mill Limited. Despite the identical nature of offer contained in the tender of M/s. Rehan Engineering Foundry Industries, the defendant had refused to approve the tender for supply locally manufactured machinery to the plaintiff. Besides it is urged that the plaintiff had arranged bridge financing from different financial institutions for meeting the part of investment undertaken to be arranged by its sponsors and promoters. However, the

defendant with the mala fide object of causing loss to the plaintiff, refused to grant its no objection for the bridge financing and rather got advertisements published in tie Newspapers in relation to the imported machinery which was lying for clearance at Karachi Port with the result that the various banks and DFIs who had earlier agreed to grant bridge financing, backed out of their commitments making it impossible for the plaintiff to proceed with completion of its project which, in terms of the feasibility report, had to be completed within 22 months. With such background the present proceedings have been filed for recovery of damages alleging loss having been suffered by the plaintiff to the extent of Rs. 154.45 million.

In the written-statement the defendant-bank has denied the plaintiffs claim and it is urged that the two facilities were independent from each other and the rejection of tenders forwarded by the plaintiff was not tainted with mala fides and was justified in terms of the understanding between the parties. It is further the case of the defendant that the plaintiff had itself committed breach of the understanding between the parties. The allegations that the plaintiff had invested Rs. 60 million towards the project or that any loss was caused to it have been denied.

1. On the pleadings of the parties, the following issues were settled on 19.5.1996 by this Court :--

(1) Whether or not the two financial facilities granted by the defendants under the Letter of Sanction dated 16.12.1991 are inter-linked and connected for the purposes of release ? If so, what is the effect of non-release of ILM Funds by the defendants ?

(2) Whether the plaintiffs have made huge investment of 60.00 Millions towards the Construction of Factory Building in furtherance of the project in question and opening of requisite L/Csetc.?

(3) Whether the inability to got the Imported Machinery released from Customs was due to non-release of funds and non- cooperation of the defendants ? If so what is the effect ?

(4) Whether the defendants acted with malice in constantly rejecting the tenders submitted three times by the plaintiffs for purchase of locally manufactured machinery ? If so what effect ?

(5) Which of the party committed breach o Agreement/ understanding ?

(6) Whether the plaintiffs suffered losses as alleged ?

(7) Whether the defendants are liable to pay the damages claimed in the suit ?

(8) What should the decree be ?

The plaintiff has examined one Syed Farrukh Mateen, Ex. 16, as its sole witness whereas the defendant, too, has examined its Manager, Settlement Department, Syed Asif Ali Shah, Ex. 17, as its only witness. Prior to recording the evidence, admitted documents were brought on record as Ex. 5 to Ex. 15. The two witnesses were duly cross-examined.

1. I have heard the learned counsel for the parties and with their assistance perused the record. My finding on the issues is as follows :-

ISSUE NO. 1.

1. In relation to this issue, both the learned counsel have referred to the respective pleadings and the deposition of the two witnesses besides the Sanction Letter dated 16.12.1991, Ex. 5. The assertion from the side of the plaintiff in plaint and the examination-in-chief of the witness, Syed Farrukh Mateen, has been disputed by the defendant and its witness, the said material can, merely, be termed as word against word and does not advance the case of either of the parties. Reference has further been made to the Sanction Letter, Ex. 5, contend that a perusal of the lists of machinery covered by the two facilities shows that the two faculties were in separable and utilization of either of the finances without availing the other was meaningless. The said contention of the learned counsel for the plaintiff cannot be accepted in the absence of positive evidence in the behalf. Neither a technical person has been examined by the plaintiff nor have any details been stated to show if the various items, mentioned in the list of Imported machinery, Annexure-II to the Sanction Letter, could not be used as Spinning Unit in the absence of the items mentioned in the list of locally manufactured machinery, Annexure II-A to the sanction Letters. The learned counsel for the plaintiff has referred to Article 129 of Qanoon-e-Shahdat and contends that this Court is obliged to presume that the machinery covered by the two faculties could not be used separately for the 'reason that the grant of both the faculties was sanctioned through common /^document. I am afraid, such presumption shall be too far fetched and cannot jbe drawn in the absence of some tangible proof. Indeed, the Sanction Letter, JEx. 5, refers to the requirement of finances by the plaintiff for setting up a inew Spinning Unit. However, the possibility of the machinery, covered by jthe LLM Scheme not being imminently necessary for operation of project, icannot be ruled out. In any event, the learned counsel for the defendant has [pointed out that this issue stands decided in J.M. No. 01/1994 field by his Iciieni under Section 39 of the IDBP Ordinance for recovery of the facility amount. The said proceedings filed by the defendant came to be decided through judgment dated 19.2.1996 wherein the following observation is (contained :--

"As pointed out earlier, local currency component of the finance has nothing to do with the commencement of the project as in the first instance it was for the respondents to import the machinery which having been Imported has not been cleared by them from the Customs despite a lapse of almost four years."

The learned counsel for the plaintiff has pointed out that an Intra Court Appeal has been filed against the said judgment passed in J.M. No. 01/1994. However, it is conceded that the operation of the judgment has not been suspended. It is not disputed before me that the said finding has been recorded by a Court of competent jurisdiction or that the two parties hereto were party to the said proceedings. In the circumstances, the assertion of the learned counsel for the defendant that the consideration of this issue is barred by resjudicatacannoi be termed without force. The issue is answered accordingly.

ISSUE NO. 2.

1. The learned counsel for the plaintiff has referred to the averments contained in the plaint to the effect that the plaintiff has already invested a sum of Rs. 60 million towards the project. The averments in this behalf contained in para-6 of the plaint which is to the following effect :

"6. That the plaintiffs company from its own funds acquired land for the project at Vinder Industrial Estate District Lasbella, invested 33.00 Millions for establishing L/C, and started the civil works of the building in October, 1992, and the civil works is almost complete upto the roof and the 98% of the flooring work done thus incurring cost of 20.00 millions. The total investment of sponsors according to scheme approved by IDBP was 45.00 millions and Directors sub­ordinated loan was 7.5 millions. However, the plaintiffs have already invested Rs. 60.00 millions towards the project."

The above averments have been denied in the written-statement. The plaintiffs witness in this deposition, Ex. 16, has urged that a sum of Rs. 33 million has been invested by the plaintiff before establishment of the Letter of Credit whereas the total amount of investment which has gone waste is to the extent of Rs. 67 millions. The assertion made by the plaintiff's witness, as above, was disputed in the cross-examination as well as in the evidence of the defendants witness, Syed Asif Ali Shah. he plaintiff has not produced any evidence of the expenditure of Rs. 33 million before establishment of Letter of Credit nor have any details thereof. Likewise, the details of construction have also not been brought on record nor has any Architect or Property Valuer been examined to assess the cost of the construction raised so far. From the side of the defendant, it has been urged that construction raised by the plaintiff is incomplete and even the flooring and casting of proof has not been done. Indeed, such position is admitted by the plaintiff's witness in his cross-examination where he says "the structure of the building where the machinery had to be installed is not yet complete." It is an established position of law that in a claim for damages, loss has to be proved with exact details by the claimant; and, the material available on record of this case cannot be termed sufficient to entitle the plaintiff to a positive finding. The investment alleged by the plaintiff has to be proved in view of denial by the defendant. The plaintiff, however, has failed to adduce any positive evidence to record a tacit finding in this behalf. The plaintiff, thus, has failed to prove this issue.

ISSUE NO. 3.

1. Regarding this issue, the contention of the learned counsel for the plaintiff is that the imported machinery could not be got released by the plaintiff on account of ad-interim order of attachment passed on 8.9.1994 in

J.M. No. 01/1994 at the behest of the defendant. After such attachment, in pursuance of order passed by the Court, documents pertaining to the imported machinery were handed over to the defendant who, therefore, is responsible for non-release of the machinery. It is an admitted position that a huge amount of damurrage has already accumulated on account of non-release of the machinery which is lying in bonded warehouse. The explanation, in reply, is that the liability to have the Imported machinery cleared was initially upon the plaintiff and the defendant was not obliged in law or under the arrangement contained in the Sanction Letter, Ex. 5, to get the machinery released. The release of machinery involved payment of demurrage, customs duties, wharfage, etc. and such liabilities have now swelled to an enormous figure as beyond Rs. 250.00 million. Even the judgment in J.M. No. 01/1994, Ex. 16/1, shows that the amount of said liabilities stood at Rs. 191.007 million as on 30.6.1996. The plaintiff has not shown any material to fix the responsibility for release of the Imported machinery upon the defendant or to provide funds to have the same released. The imported machinery had arrived at Karachi Port in March, 1993 according to the averments contained in para-7 of the plaint. Even if it is accepted that the plaintiff could not apply for release of the goods after the order of ad-interim attachment dated 8.9.1994, sufficient time was available to it for securing release of the machinery prior thereto. My finding on Issue No. 3 is, therefore, in the negative.

ISSUE NO. 4.

1. On behalf of the plaintiff it is urged that the defendant has acted with malice in repeatedly rejecting the tenders for supply of locally manufactured machinery. Besides, the averment in the plaint to the effect that the defendant had approved the tender submitted by the same supplier of locally manufactured machinery in relation to two other projects of similar nature, the remaining averments of malice and mala fide intention are merely general and vague. It is quite a settled proposition that details of facts taken maliciously are required to be pleaded. For a person alleging malafides, it is necessary to show that the person responsible for taking action has been motivated with the object of causing hurt to the complainant or to benefit one-self. Indeed, action taken for collateral purpose or any colourable exercise of authority or for committing fraud of the law is also included in mala fide acts. As regards proof of mala fide action, the following passage from the judgment in Federation of Pakistan v. Saeed Ahmed Khan (P.L.D. 1974 SC 151) may be reproduced with advantage :

"Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because other is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of The Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri(P.L.D. 1969 SC 14), mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides not should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."

In the present case I am constrained to note the particulars of mala fides or malcie are lacking. Even with regard to the assertion that similarly machinery was approved to be supplied by the same manufacturer/supplier is not proved. The defendant has denied all the allegations contained in the plaint in this behalf and it is pleaded that the tenders procured by the plaintiff were rejected for valid reasons. Such position, according to the defendant, was accepted by the plaintiff who, itself, had invited fresh tenders. The plaintiff has also not produced the procedure which was agreed between the parties for inviting tenders or that the requirement of inviting tenders was agreed between the parties at all. The learned counsel for the plaintiff has referred to principle of res ipsa loquitur and submits that sufficient material is available on record to hold that the defendant had agreed to disburse the facility granted under LMM Scheme directly to the supplier of local machinery if approved by it. While it is manifest from the record that the procedure for inviting tenders to approve the supplier of machinery had been agreed between the parties, the limitations on the authority of the defendant to reject the tenders cannot be found from the record. Evidently, the burden to prove the conditions for inviting tenders and acceptance thereof is upon the plaintiff and the principle res ipsa loquitur is not attracted to the present case. The necessary conditions for applicability of the principle of res ipsa loquitur has been narrated in the judgment of Pakistan Steel Mills Corporation v. Malik Abdul Habib (1993 SCMR 848) in the following terms :--

"Res ipsa loquitur means that the things speack for themselves. This doctrine applies firstly, when the thing that inflicted the damage was under the sole management and control of the defendant and secondly, that occurrence is such that it would not have happened without negligence and thirdly, that there must be no evidence as to way or how the occurrence took place."

Moreover, the learned counsel for the defendant has rightly urged that the existence of contract has to be established by the plaintiff for claiming any damages. In view of my findings on the subsequent issues, plaintiff fails on this count as well. My finding on this issue, therefore, again is in negative.

ISSUES NOS. 5. 6 and 7.

1. These three issues are proposed to b& taken up together. On behalf of the plaintiff, its learned counsel has referred to the following clause contained in the Sanction Letter, Ex. 5 :—

Disbursement Schedule:

Local Currency Assistance Under LMM-SBP Scheme:

Local currency assistance of Rs. 10.000 million (Rs. 8.000 million under SBP Scheme for LMM and Rs. 2.000 million from Bank's own resources) shall be disbursed in installments or in full to the local machinery supplier for purchase of locally manufactured machinery in accordance with the Bank's procedure for purchase of locally manufactured machinery. The disbursement will be made keeping in view 1.5 times security coverage after opening of letter of grantee by the Bank."

According to the learned counsel, the local currency finance under the LMM Scheme was undertaken to be disbursed by the defendant in accordance with the procedure for purchase of locally manufactured machinery prescribed by the defendants. In reply to my querry, the learned counsel has conceded that the procedure referred in the above-quoted term of the Sanction Letter is not available with the plaintiff nor has it been produced. I am afraid, the explanation for non-production of the above-referred procedure of defendant-bank is insufficient and could have easily been summoned form the defendant itself. For such purpose, the plaintiff could have summoned concerned officer of the defendant-bank as witness or could have sought production thereof under Order XI. Rules 15 and 16, CPC. Even the defendant's witness, in his cross-examination, could be asked to produce the relevant material. The LMM Scheme prepared by the State Bank of Pakistan, in any event, is a duly notified scheme which could have been procured and produced, for, the procedure prescribed by the defendant-bank cannot be in deviation of the general scheme provided by the State Bank of Pakistan. Regrettably, however, the plaintiff has not chosen to have the necessary material produced leading to an adverse presumption. The production of said material could facilitate determination of the extent of defendant's authority to reject tenders. The plaintiff in order to establish breach of the alleged contract or understanding was required to clearly establish the terms agreed between the parties. On the available material. I am unable to find that terms of agreement settled between the two parties and it is not possible to record finding about any breach having been committed. Indeed, for claiming damages onus to prove loss lies upon the plaintiff who cannot succeed without producing evidence is positive terms. In this respect reliance can be placed on the case of Syed Ahmed Seed Kirmani v. Muslim Commercial Bank Limited (1993 SCMR 441) wherein Saleem Akhtar, J., as he then was, speaking for the Court, has held as follows :

"A party claiming damages suffered due to breach of contract must establish the contract, the breach thereof and the extent of damages. The onus is on the plaintiff and without discharging it he cannot succeed. Section 73 of the Contract Act prescribes the rule for assessing the damages suffered due to breach of contract. Only such damages can be recovered which naturally arise in the usual course of things from the breach of the parties at the time of making the contract knew that loss or damage in likely to result from the breach. Another principle which is to be kept in mind while assessing damages is that whether the plaintiff was in a position to mitigate the damages and has neglected to avail of it As discussed above the appellant has failed to prove the agreement with the Egyptian Embassy, the rate of rent and the date of occupation. The appellant as stated by him is a man of status and resources but he has not proved what steps he had taken to mitigate the damages. It was contended and held by the learned trial Court that as the bank failed to pay the entire loan, the appellant could not be compelled to repay the loan received by him. In the facts of the case such an observation cannot be justified by any principle of law. A party can be relieved of his obligation under a contract where there are covenants which are conditional and the performance of one is dependent on the performance of the other. There is no such conditional or reciprocal promise between the appellant and the respondent."

The law stated in the said judgment is very dear and no cavil can be had thereto. The plaintiff, in the present case, has failed to discharge its burden of establishing or bringing on record the terms settled between the parties and therefore finding abut breach thereof cannot be recorded. The Sanction Letter, Ex 5 admittedly, does not contain any covenant which could be stated to have been violated by the defendant In view of the said finding. I do not consider it appropriate to expatiate further on the issue and to determine if any breach of the terms contained in the Sanction Letter was committed by the plaintiff. In view of my said finding Issues Nos. 6 and 7 are rendered infructuous. In any event, I am constrained to record that the plaintiff has again failed to establish the details of any losses allegedly suffered by it nor has been able to produce material sufficient to saddle the defendant with liability to pay any damages.

ISSUE NO. 8.

In view of the findings recorded herein above, the plaintiffs suit fails which, in the result, is dismissed. The parties are, however, left to bear their own costs.

(AAJS)

PLJ 1999 Karachi 504

Present:sabihuddin ahmed, J. FATEH MUHAMMAD through Legal Heirs-Applicant

versus

Mst. HAJRA and others—Respondents

C.R.A. Nos. 143 of 1997/Kar. and 277 of 1994/Hyd., decided on 7.9.1998.

(i) (XXVIII of 1958)-

—S. 21(2) & (4)~No inherent power of review vested in statutory Tribunals, such power must be vested by law—Held: Order passed after omission of review jurisdiction would be without jurisdiction and coram nonjudice.

[P. 507] A

(ii) Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958)--

—S.lO-Property-Transfer of-Question of-Earlier judgment of High Court indicated that part of building wherein portion in question was located was transferred to respondent, however, nothing in such judgment would indicate that portion in question, was transferred to respondent who was laying claim on portion-Order of Additional Settlement Commissioner including compromise application unmistakably showed that respondent was never allotted or was in exclusive possession of portion in question-­ Finding of First Appellate Court to the effect that property, in question, belonged to respondent was based on no evidence, therefore, same was set aside while that of trial Court was restored though for somewhat different reasons. [Pp. 508 & 509] B & C

Mr. Kazi MunawarAli, Advocate for Applicant.

Respondent in person.

Dates of hearing: 17 and 18.8.1998.

judgment

The brief facts leading to the filing of this revision application are that the predecessor of the applicant one Fateh Muhammad, who was allotted a portion on the first floor of House No. E/2841 Fort Area, Hyderabad, by the Settlement Authorities. The respondents were residing in a cell which, according to the applicant was a part and parcel of the portion allotted to him. The original orders of allotment to do not appear to be available on the record. However, it appears that the predecessor-in-interest of the applicant Fateh Muhammad and that of the respondents Abrar Hussain preferred that claims to the aforesaid Cell (disputed property) by way of revision which was decided by the Additional Settlement Commissioner, Hyderabad vide order, dated 16.12.1961. The relevant part of the order reads as follows :--

"Mr. Abrar Hussain is in occupation of the Cell which is situated right below portion of the building which has been transferred to Mr. Fateh Muhammad. The Cell cannot be treated as independent units and transferred to the occupants thereof. I am, therefore, not inclined to transfer the Cell in occupation of Mr. Abrar Hussain to him. His revision is, therefore, not allowed.

Mr. Fateh Muhammad is claimant displaced person and has been transferred a portion of the building above the cell. As the cell is part and parcel of the building I transfer it to Fateh Muhammad alongwith the house on his C.H. From. He will pay extra-evaluation price of the cell provided it has already been included in the transfer price, which has been charged from him."

1. It appears that one Mr. Ghularn Haider Baloch, who was not a party to the revision application, but was an occupant of another part of the building appb'ed for review of the above order, dated 19.12.1961. In the title of the aforesaid order, the date of the original order has been mentioned as 12.12.1961 and not 19.12.1961. This error which has given rise to considerable controversy subsequently. However, as candidly conceded by Mr. Qazi Munawar Ah' only appears to be a typographical mistake. Any way by order, dated 28.2.1962, the Additional Settlement Commissioner, reviewing his earlier order, ordered as follows :--

1 exclude the Cell from the transfer order of Fath Muhammad. The cell and the appurtenant to the building will be distributed according to the instructions of the Chief Settlement Commissioner."

1. It seems that no instructions were received from the Chief Settlement Commissioner and no fresh order for transfer of the cell was passed. In the meantime the applicant arrived at an understanding with Mr. Ghulam Haider Baloch at whose behest the order, dated 28.2.1962 was passed and a compromise application was submitted before the Additional Settlement Commissioner, who vide order dated 12.12.1966, orders as follows :

"In view of the compromise arrived at between the parties, the same is hereby accepted, hence this application is disposed of in terms of the compromise arrived between the parties.

1. Subsequently a P.T.D. was issued to the applicant on 28.11.1974. Initially the cell was not included in the P.T.D. but upon an application submitted by the applicant, contended that in view of the compromise recorded on 21.12.1966, the original order stood restored, the P.T.D. was amended on 2.4.1976 so as to include the disputed cell as well. In 1977 the applicant, contending that the respondents were his statutory tenants filed proceedings for their ejectment before the Rent Controller. The respondent denied the landlord and tenant relationship. The Rent Controller as well as this Court found in favour of the applicant. In the meantime the respondent filed First Class Suit No. 353 of 1981, seeking a declaration to the effect that the addition in the P.T.D. transferring the disputed cell to the applicant was fraudulent and without jurisdiction, that the cell was still available for transfer and, by way of consequential relief a direction to the Defendant No. 3 (Additional Deputy Commissioner), Hyderabad to transfer the same to the respondent. The respondent also preferred a petition for leave to appeal before the Honourable Supreme Court against the judgment of this Court in F.Rj. No. 42 of 1984, which was dismissed by the Honourable Court with the observation that if the respondents' suit was decided in their favour they could always obtain repossession of the property.

2. The applicant in their written statement questioned the maintainability of the suit and the bona fides of the respondent alleging that the suit was only a counter-blast to the ejectment application filed by the respondent. The respondent asserted their title to the disputed property on the basis of the P.T.D. The fact that the order of the Additional Settlement Commissioner, dated 19.12.1961 allotting the disputed property to the respondent had been reviewed by a subsequent order, dated 28.2.1962 was not denied. However, the applicant asserted that the review application was only filed by Ghulam Haider Baloch (Respondent No. 5) and did not confer any rights upon the contesting respondent and the matter between the applicant and Respondent No. 5 having been compromised, the applicant could not claim any interest in the property. The allegation of concealment of facts was emphatically denied.

3. Ghulam Haider Baloch, the Respondent No. 5 who was not initially arrayed as party to the suit was joined upon an application made by him. He filed a written statement alleging that the cell (disputed property) was not independently transferable unit and was attached to his house and not that of the applicant. He contended that it had been duly transferred to him and such transfer had attained finality. Explaining the compromise with the applicant he contended that the same related to another cell. After recording evidence and hearing the parlies the suit was dismissed by the trial Court. The Respondent No. 4 preferred and appeal against the judgment of the trial Court, dated.23.12.1993 and the Vlth Additional District Judge, Hyderabad by his judgment, dated 31.8.1994 partially allowed the same inasmuch as though the relief claim by the Respondent No. 4 were declined, it was held that the disputed property belonged to Respondent No. 5.

4. Aggrieved by the aforesaid order the applicant preferred this revision application. Interestingly it is contested only by the Respondent No. 4 and the Respondent No. 5 through served did not enter appearance. Mr. Kazi Munawar Ali, learned counsel for the applicant in the first place contended that the suit having been dismissed by the trial Court and no appeal or cross-objection against the decree having been preferred by the Respondent No. 5 there was no justification for the Appellate Court to decide in his favour. He also questioned the findings of the Appellate Court as to fraud and mis-representation said to have been committed by the applicant in obtaining allotment of the disputed plot. Moreover, he argued that the Respondent No. 5 having compromised the dispute with the applicant and such compromise having been duly recorded by the Additional Settlement Commissioner, the aforesaid respondent was estopped from claiming title to the disputed property and the Appellate Court acted with material irregularity in recording of finding in his favour. As regards Respondent No. 4 learned counsel contended that the claim of such respondent had been initially rejected by the Additional Settlement Commissioner vide order, dated 19.12.1961 against which on further appeal or legal proceedings were preferred, as such the aforesaid respondent could not take advantage of review application preferred by another party.

5. Elaborating bis submissions and explaining the factual background, Mr. Kazi Munawar Ali argued that the claim of the Respondent No. 4 to the disputed property was specifically rejected in the order, dated 19.12.1961 and such order having not been questioned further had attained finality id so far as the aforesaid Respondent No. 4 was concerned. Indeed the same was reviewed at the behest of the Respondent No. 5, but only to the extent that the disputed property was excluded from the allotment made in favour of the applicant but no rights were conferred either upon the Respondent No. 4 or the Respondent No. 5. Moreover, upon the matter having been compromised between the applicant and the Respondent No. 5 the dispute between the parties giving rise to the order, dated, 28.2.1962 stood resolved and accordingly the order, dated 19.12.1961 stood revived.

6. I regret I cannot subscribe to this contention. Under the order, dated 28.2.1962 the property was not allotted to any of the parties. It was only excluded from the entitlement of the applicant and was required to be allotted in accordance with law. Assuming that the order was lawfully made the contesting parties could not nullify the same by their volition. Moreover, while the applicant has contended that the order related to the disputed property, which admittedly is and has been in possession of the Respondent No. 4, the compromise application signed by the applicant and the Respondent No. 5 submitted before the Additional Settlement Commissioner on 26.9.1966 speaks of a cell in the joint possession of the applicant and the Respondent No. 5. The aforesaid compromise, therefore, is of no leal effect as far as the disputed property is concerned. In the alternative, however, Mr. Kazi Munawar Ah' argued that the order, dated 28.2.1962 was without jurisdiction inasmuch as the power of review available to the Additional Settlement Commissioner had ceased to remain available as a consequence f Ordinance II of 1962, promulgated on 13th January, 1962, whereby sub­ section (2) and Section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, were deleted. Learned counsel indeed appears to be correct. It is settled law that there is no inherent power of review vesting in statutory Tribunals and such power must be conferred by law. After the omission of the provisions conferring review jurisdiction upon the Additional Settlement Commissioner, order passed was indeed without jurisdiction and coram non judice. Consequently, I am constrained to hold that even if aforesaid order was not brought to the notice of the Authority at the time of issuance of the P.T.D., it makes no difference whatsoever and hence, the latter cannot be set aside on the ground of having been obtained through fraud or mis-representation.

7. Attacking finding of the Appellate Court to the effect that the disputed property belonged to the Respondent No. 5, Mr. Kazi Munawar All argued that no evidence had been led by the aforesaid respondent at the trial to indicate that the disputed property was ever been allotted to him. He did not even prefer an appeal against the judgment of the trial Co rt, but the learned Appellate Court by merely relying upon a judgment of this Court, dated 20.8.1974 dismissing Constitutional Petition No. 87 of 1967, proceeded to record the aforesaid finding. I have gone through this judgment which seems to indicate that part of the building was transferred to Respondent No. 5, however, there is nothing to indicate that the cell in question was also part of such allotment. In fact, the orders of the Additional Settlement Commissioner, dated 28.2.1962 and 22.12.1966 as well as the compromise application, dated 27.9.1966 unmistakably show that the Respondent No. 5 was never allotted or was in exclusive possession of the disputed property, learned counsel, therefore, appears quite right in asserting that the finding of the First Appellate Court to the above extent, were based on no evidence and required to be set aside.

8. With respect to the Respondent No. 4, Mr. Munawar Ah" argued that the claim of the aforesaid respondent had been conclusively rejected by order, dated 19.12.1961 as the cell in question could not be treated as an independent will not be transferable as such to any person. This order had attained finality and the matter could not be reopened after issuance of a P.T.D. in favour of the applicant. Moreover, he contended that as far as the claim of the aforesaid respondents was concerned there was a concurrent finding of fact by the Court below, which could not be questioned by the said respondent in this revision applicant. Notwithstanding the above contentions I requested the aforesaid respondent (who was not represented by her counsel) and her son Nizam Ali, to point out what basis she was seeking transfer of the properly in her favour and whether the order, dated 19.12.1961 suffer from any legal infirmity.

9. In the first instance Niazmuddin reiterated theat the P.T.D. was granted in favour of the applicant only because the order in review, dated 28.2.1962 was fraudulently suppressed and it was not correct to say that the order, dated 19.12.1961 had been set aside. He contended that the finding of both the Courts below to the effect that what was reviewed was not the order, dated 19.12.1961 but some other order, dated 12.12.1961 to such effect the contention appears well-founded and in fact Mr. Munawar Ali candidly conceded that the order, dated 19.12.1961 was indeed reviewed and the date 12.12.1961 only appears to be a typing mistake. I am, therefore, dearly of the opinion that the findings of the Courts below to the effect that another order, dated 12.12.1961 had been reviewed were premised on conjecture and not supported by any evidence. Indeed if the order in review was legally sustainable the applicants could not lay any claim to the disputed property, Nevertheless in view of my finding that it was conn non judice, erroneous findings of the Courts below are not of much help to the respondent. I invited the Respondent No. 4 to seek legal assistance and point out any infirmity in the order, dated 19.12.1961, She stated that she was unable to afford counsel. I even requested Advocates present in Court whether they would be able to render any voluntary assistance, but they expressed inability on the ground of unfamiliarity with the Settlement laws. In any case no infirmity could be found or was pointed out with regard to the order, dated 19.12.1961. It must, therefore, treated as a final order competently passed.

10. In any event even if I were to hold that the aforesaid order was competent reviewed, it would be of no help to the respondent. At best it could be assumed that the property continued to remain available for disposal till the appeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, therefore, the Evacuee Property Displaced Persons Laws (Repeal) Ordinance, 1974 by operation of Section 3(1) of the Ordinance. The property stood transferred to the Provincial Government for disposal according to the scheme prepared by the Government. No such scheme made after 1974 enabling allotment in favour of the Respondent No. 4, was brought to my notice. Consequently, in either case the Respondent No. 4 cannot claim right or interest in the aforesaid property and as such their suit must fail.

11. In view of the above I would allow this application for revision, set aside the order of the Appellate Court and restore that of the Trial Court through for some what different reasons. There will be no order as to costs.

(T.A.F.) Revision accepted.

PLJ 1999 Karachi 510

Present:SHAIQ USMANI, J, ELECTRIC LAMP MANUFACTURER OF PAKISTAN-Plaintiff

versus

GOVERNMENT OF SINDH and 2 others-Defendants

Civil Misc. Application No. 470 of 1998 in Suit No. 1570 of 1997, decided on 21.8. 1998.

Colonization of Government Lands (Sindh) Act, 1912 (V of 1912)--

—-S. 36-Civil Court-Ouster of jurisdiction by Section 36 of Colonization of Government Lands (Sindh) Act; 1912-Whether perpetual in nature- Where in matters of allotment or grant of lease of land, there is an obvious avowed or express interference in favour of a particular person by a superior Government official or a person holding an important political office, in supersession or relaxation of Rules to detriment of another person, pursuance of departmental remedies provided under relevant statutes, would be an exercise in futility because of increasing trend of obsequiousness amongst Government officials-Such officials hearing appeal/review, are likely, to be hesitant to apply their minds to cases judiciously in view of intimidating influence of their departmental or political superiors-Ousted jurisdiction of Civil Courts, by Section 36 of Coloriizatiou of Government Lands (Siiidb.) Act, 1912 would not be barred in such circumstances. [P. 515] A & B

Mr. Nadctni Akhtar, Advocate for Plaintiff. Mr. Khalil-ur-Rekman,Advocate for Defendant. Date of hearing : 21.8.1998.

order

This is an application under Order 7, Rule 11, C.P.C. whereby Defendant No. 4 seeks rejection of the plaint on grounds that this suit is barred under Section 36 of the Colonisation of Government Lands (Sindh) Act, 1912 (hereinafter referred to as the Act).

The facts of the case as brought out by the plaint are that Survey Nos. 179 and 489 of Deh Gujro, Taluka and District Karachi measuring 21 Acres and 13 Ghuntas were acquired by associates of plaintiff on or about 26.1.1948 through a sale-deed from its owner who was a Hindu. Since the Hindu owner migrated from Pakistan, the properly was declared evacuee property and that the sale in favour of plaintiffs association was confirmed only in 1957, videorder, dated 10.10.1957 of Additional Custodian (Judicial) Evacuee Property, Karachi. Thereafter, the plaintiff enjoyed peaceful possession of the entire property except for a brief interlude when his ownership of part of his property that is 80 Acres under Survey No. 89 became disputed at the time of renewal of lease. Nevertheless, the lease was finally renewed on 20.10.1976 for further period of 30 years with effect from 9.. 12.1968 but in respect of 15 Acres and 21 Ghuntas. However, these disputes, irrelevant for purpose of decision of this application, about 8 Acres of his property were finally resolved by 11.12.1990 and the plaintiff since then had unquestioned title to the said 8 Acres as well. The plaintiffs troubles began when the Chief Minister of Sindh at the time unilaterally and illegally allowed the application of Defendant No. 3 for allotment of 35 Ghuntas (4235 sq. yds.) of prime land in Deh Gujro District East, vide, letter, dated 12.4.1996 at Rs. 200 per sq. yard. Defendant No. 3's application was then marked to Defendant No. 1 for necessary action. After doing the normal rounds in the corridors of bureaucracy the application reached the Secretary, Government of Sindh, Board of Revenue, Land Utilization Department who in exercise of power under Section 10(1) of the Act directed the leasing of an area of 0.35 Ghuntas from Deh Gujro District East Karachi to the Defendant No. 3 at a throw away price of Rs. 100 per sq. yrds. when the prevailing market price of the land was about 30,000. The Secretary wrote to the Deputy Commissioner, Karachi East, that is Defendant No. 2, on 23.4.1996 as under :—

"In exercise of the powers conferred under Section 10(i) of the Colonization of Government Lands (Sindh) Act, 1912 read with condition No. 3(2) of the statement of conditions notified on 12.5.1975, the Government of Sindh in Land Utilization Department with the prior approval of the Chief Minister, Sindh, has been pleased to lease out an area of 0.35 Ghuntas from Deh Gujro District Karachi East 011 99 years in favour of Hcy'i Shaukat Islam subject to availability of land at the rate of Rs. 100 per sq. yrds. (!) for commercial, industrial and residential purposes in relaxation of condition No. 14 (ibid) and existing ban."

It is evident from the above letter that the area where the said 35 Ghuntas of land has been leased to Defendant No. 3 had not been specified, yet the Defendant No. 3 proceeded to illegality occupy on 6.10.1996 a substantial portion of plaintiff's land arid upon enquiry maintained that he had done so under the directive of the Chief Minister.

Later upon change of Government an enquiry was instituted by the Government of Sindh to probe into the validity of allotment of lands by the previous Government. Apparently the name of Defendant No. 3 figured prominently in the published list of the beneficiaries of such allotment. During the course of enquiry it was found that the land in question had been sold by Defendant No. 3 to Defendant No. 4 by way of sale-deed, dated 6.10.1997. Through this suit plaintiff claims title over the said land in occupation of Defendant No. 3/4, and prays for cancellation of title documents of the said defendants.

t

According to the plaint the plaintiff disputes the title of the Defendant No. 3/4 on the following grounds

"(a) The Preamble of the said Act mentions that the said Act is 6, to make better provision for the colonization and administration of Government Lands'. It does not apply to non-Government Lands or the land already leased out to any person by the Government; as in the case of Haji Shaukat Islam (Defendant No. 3) a portion of Survey No. 179 Deh Gujro was given to him which was already in possession of the plaintiff on 30 years lease, as is explained in subsequent paragraphs. <

(b)Section 3 of the said Act defines 'Colony' as an area to which the said Act shall be applied by order of the Provincial Government. It is submitted that the 35 Ghuntas allotted to Haji Shaukat Islam (Defendant No. 3) did not come under the definition of Colony.

(c) Section 4 of the said Act mentions that the said Act applies to certain types of Government lands notified by the Provincial Government. It is submitted that the 35 Ghuntas allotted to Haji Shaukat Islam (Defendant No. 3) did not come within the scope of Section 4 of the said Act and as such the said Act is not all applicable to the allotment made in him.

(d) Section 10(1) of the said Act lays down that 'The Board of Revenue subject to the general approval of the Government may grant land in colony to any person on such conditions as it thinks fit'. It is submitted that Syed Abdullah Shah, the then Chief Minister of Sindh, illegally purported to exercise in this matter powers conferred upon the Provincial Government under Section 10(i) of the said Act in spite of the fact that none of the provisions of the said Act, including Section 10(i), was applicable to the facts and circumstances of this case. This facts ; alone establishes collusion between Syed Abdullah Shah, the then Chief Minster of Sindh, and Haji Shaukat Islam Defendant No. 3) and other officers and the offence of ;corruption and corrupt practices as defined in Section 3 of the Ehtisab Act, K of 1997 prima facie appears to have been committed by all of them. ' '

(e) Section 10(2) of the said Act gives powers to the Provincial Government to 'issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants'. It is submitted that condition No. 14 was relaxed as well as existing ban prevailing at the relevant time was lifted in

this particular case was mentioned in Annexure 'P-3' without assigning any reason whatsoever for doing the same or for showing this concession of Hqji Shaukat Islam (Defendant No. 3)."

In so far as the Defendant No. 4 is concerned, in his application under Order VTI, Rule 11, C.P.C. for rejection of plaint, he has relied on various provisions of law, however, at the time of hearing his counsel's main thrust of the arguments was that this Court was no jurisdiction to try this suit under the provisions of Section 36 of the Act In effect Mr. Khalil-ul-Rehman, the learned counsel for Defendant No. 4 contends that under the statement of conditions notified under Sindh Government Notification No. KB-1/1/30/72/7096, dated 12.5.1975 as required by Section l<Xi) of the Act the Government (of Sindh) has absolute discretion in the grant of lease and selection of lessees. He then goes on to say that as held in the case of Muhammad Asghar v. Sofia Begum PLD 1976 SC 435 these "statements of conditions" so issued constitute statutory instruction having the force of law". Consequently, since the lease was granted to Defendant No. 3 by the Chief Minister, who is the head of Sindh Government, it was validly granted and the Defendant No. 4, having purchased the land by a sale-deed, has now a valid title to the said land. If the plaintiff had any objection to it their remedy lay in appealing to the Commissioner under Section 161 of Land Revenue Act, 1967 within the limitation period and if unsuccessful seek revision of the adverse orders under Section 164 of the said Act by Central Board of Revenue. But under no circumstances, the argues, the plaintiffs could approach the Court for this purpose as its jurisdiction is ousted by Section 36 of the Act, which reads as under :--

"Section 36. Jurisdiction of Civil Court barred as regards matter arising under the Act.--A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the matter in which the Provincial Government, Board of Revenue or Collection or any other Revenue Officer exercises any power vested in it or in him by or under this Act.

In response Mr. Nadeem Akhtar, the learned counsel for the plaintiff relied on the averments in the plaint that have been quoted above which basically relate to the land in question not being subject to the Act and to lack of authority of the Chief Minister to grant such lese and to his mala fide, which is manifest. He also relied on Section 9 of Civil procedure Code to show that the Civil Court will have jurisdiction to try the suit because of the fraudulent manner in which the lease was granted.

I am constrained to note that none of the counsels cited any authorities in support of their contentions and in fact did not give proper assistance to the Court.

Now it is settled law that a plaint an be rejected only if from the averments in the plaint the suit is found to be barred by any law and the defence put up by the defendants should not be the determining factor.

Needless to say that a similar criteria applies when determining whether a Court has jurisdiction in a matter or not In the plaint it is specifically averred that the action of the Chief Minister in approving the lease of land to Defendant No. 3 was unilateral and illegal inasmuch as he purposed to exercise powers under Section 10(1) of the Act, when the said Act was not applicable to this land. It is also averred that such act of the Chief Minister was mala fide inasmuch as he allowed the grant of lease at a rate much below the market value of the land and he did so in relaxation of condition 14. It is also averred that subsequently an enquiry was conducted about the irregularity in the grant of lease to Defendant No. 3. These averments prima facie point to the fact that the grant of lease to Defendant No. 3 was unusual and even possible irregular. The question, thus, arises that given the facts averred in the plaint, is the jurisdiction of this Court ousted by Section 36 of the Act ?

The question of ouster of jurisdiction under Section 36 of the Act has been considered in various reported cases though none of these were brought to my notice by the learned counsel for the parties. I give below brief excepts from some of these cases.

In the case of Karim Dad v. Arif and another PLD 1978 Lah. 679 it was held that :--

"............... Approached from this angle Section 36 of the (Act), which bars jurisdiction of Civil Courts should present no difficulty, inasmuch as that section will apply only where authorities concerned acted within the power and four corners of their jurisdiction and not where their acts are ultra vires or without jurisdiction or void or in excess of their jurisdiction."

In the case of Anjuman Tahirul Islam (Regd.) Sheikhupura v. Province of West Pakistan Punjab Province and 2 others PLD 1983 Lah. 294 it was held that :--

"......that if it can be shown that the order passed cannot be accommodated within the ambit of power of authority of a particular authority, the Civil Court would intervene. Similarly, the Civil Court can intervene in case of fraudulent and mala fide orders. In this view of the matter, jurisdiction of the Civil Court would only be ousted if it was found that the order passed by the statutory functionary lay within the ambit of its power and was neither based on fraud nor mala fides."

In the case of Muhammad Shaft v. Punjab Province 1982 CLC 55 somewhat differently and rather stridently was held that :--

"the jurisdiction of the Civil Court cannot be made dependant on the correctness of the litigants contentions. What is to be seen is whether the authority passing the order was empowered under the Act to pass such an order."

To summarise the above citations, it would appear that the Superior Coons nave been consistently of the view that the jurisdiction of Civil Courts is indeed ousted by Section 36 of the Act, save in circumstances where the person passing the order was not authorised to pass such an order or the order passed was based on fraud or mala fides. Indeed, I would go farther and say that where in matters of allotment or grant of lease of land, there is an obvious avowed or express interference in favour of a particular person by a superior Government officials or a person holding an important political

office, in suppression or relaxation of rules to the detriment of another person, the pursuit of departmental remedies provided under the relevant statute would be an exercise in futility because of the increasing trend of obsequiousness amongst the Government servants. Thus, such officials hearing the appeal/review are likely to be hesitant to apply their minds to V the case judiciously in view of intimidating influence of their departmental or political superiors. Consequently, I am inclined to hold that under such circumstances as well as jurisdiction of the Civil Courts will not be barred.In the instant case going by the averments in the plaint, as I must, I find that the allegations, to the effect that the Chief Minister of Sindh did not have the requisite authority to grant the lease and/or that in acting, thus, his motives were mala fide have been greatly emphasises. Moreover, it is apparent from the averments in the plaint that in grant of the lease of the suit land there was an avowed interference by the Chief Minister in favour of Defendant No. 3 in derogation of rules to the detriment of plaintiff. Consequently I am of the view that in these circumstances without an issue being cast with regard to jurisdiction and without evidence being led on that point it is not possible to hold at this stage that the jurisdiction of this Court is ousted under Section 36 of the Act. I, therefore, dismiss Civil Miscellaneous Application No. 470 of 1998.

(TAJ.) Appeal dismissed.

PLJ 1999 Karachi 515 (DB)

Present: NAZIM HUSSAIN SmDIQUI AND RAJA QURESHI, JJ. Messrs DIL-FEROZE (PVT.) LTD.--Applicant

versus

Mst. CHAMAN ARA BEGUM and 2 others-Respondents

High Court Appeal No. 16 of 1998, decided on 21.9.1998.

Civil Procedure Code, 1908 (V of 1908)--

—OJQDQX, Rr. 2 & 3-Interim injunction-Grant of~Prayer for-Owners raised building on their plot as per approved plan and petitioner had not raised any objection whatsoever for about two years and allowed the building to be constructed-Area in which building was constructed was commercial area and so many commercial high-rise buildings were built in same area and in immediate neighbourhood of house of petitioner- Petitioner, in circumstances, could not be allowed to hold grievance against owners who had constructed building especially when in the same neighbourhood several high-rise buildings of nearly same height had been constructed without any objection from plaintifif/petitioner-Even otherwise, petitioner lived in a different society and long distance existed between disputed property constructed by owners and property owned by petitioner-Petitioner, in circumstances, could not contended that building raised by owners of building would obstruct light and air of petitioner-Petitioner, in circumstances, had no prima facie case, nor balance of convenience was in her favour-No irreparable loss was also likely to be caused in case of refusal of injunction-Interim injunction could not be granted to Petitioner in circumstances.

[Pp. 520, 521 & 523] A to C

Mr. Mansoor-ul-Arftn, Advocate for Applicant. Mr. Muhamamd Younus,Advocate for Respondent No. 1. Mr. Iqbal Memon, Advocate for Respondent No. 2. Mr. Munib Ahmed Khan, Additional A.-G. for Respondents Nos. 3 and 4.

Date of hearing: 22.5.1998.

judgment

Raja Qureshi, J.-Impugned in this appeal is an order, dated 6.1.1998 passed on Civil Miscellaneous Application No. 6189 of 1997 in Suit No. 1173 of 1997 by a learned Sigh Judge of this Court. The operative part of the order is in the following terms :--

"In the circumstances, the plaintiff has made out a prima facie case to restrain the Defendant No. 1 from raising further construction on the subject property. However, looking to the interest of the third parties and for the reasons that the project has already been constructed by the Defendant No. 1 to the extent of basement plus lower ground plus ground plus three upper storeys. I am inclined to allow the Defendant No. 1 to complete the construction upto the third floor at its own risk and strictly in accordance with the I (first) plan approved through letter, dated 3.5.1995 but subject to the condition that all the parties in whose favour interest of any nature is now or has already been crated, shall be put on later notice about the present proceedings further clarifying that the construction upto the third floor is raised by the Defendant No. 1 as its own risk and shall be liable to be pulled down in the event of the plaintiff succeeding eventually without the third parties or the Defendant No. 1 claiming any reimbursement or compensation. The defendant No. 2 is restrained from issuing any completion certificate or no objection certificate allowing occupation of the building and is further required to ensure compliance with the above and that the building constructed over the subject property is not occupied or used for any purpose whatsoever during pendency of the suit With the above observations the application is disposed of. The costs shall abide the decree."

The appellants are owners of Plots Nos. 13, 15, 16 and 18 duly which are situated in Delhi Cooperative Housing Society Such amalgamated plots have been singly numbered as Plot No. 13 upon approval of amalgamation by the Competent Authority. Total area of Plot No. 13 is 6024 sq. yds. It seems that amalgamation of the aforementioned four plots was achieved by the appellant in due process of kw duly permitted by the Government of Pakistan, Works Division. Accordingly it further seems that amalgamation plans of the aforementioned four plots culminating into Plot No. 13 was also approved by the competent Authority. Thereafter, the said amalgamated Plot No. 13 was also converted into a commercial plot by the Competent Authority. Record further reveals that the plot of the appellant was declared commercial by the governing body of K-DA. after requisite consultation with the relevant agencies. The appellant having paid sale consideration to the previous owners of the plot also appear to have paid commercial charges, security fee, amalgamation fee and fee for obtaining No-Objection Certificate for sale and advertisement of the premises proposed to be constructed on the amalgamate commercial Plot No. 13 admeasuring 6024 Sq. yards. Record farther reveals that there are commercial buildings in the vicinity of the property of Respondent No. 1 such a Glamour-I, Firpo and Falcon, to which the Respondent No. 1 had not raised any objection for their conversion of tfaa^antiai plots to commercial or for that matter raising of commercial buiMing on the said plots.

The appellants had submitted their plans for construction of shop on tbe plot of land which stood duly approved by the K.B.C.A. The appellants had earlier submitted their building plans which were duly approved and thereafter, revised plans were also approved vide letters 8.3.1997 and 20.10.1997 respectively, by K.B.C.A. The appellant thereafter demolished the existing building and had established a booking office at the said plot in 1995, whereafter appellants started raising construction and the process of construction commenced in 1995. The appellant having commenced with the construction and having obtained no-objection certificate for advertisement and sale of shops and offices, also commenced with booking of the proposed construction being a question of common knowledge.

It was only on 22.9.1997 that the Respondent No. 1 had filed a Suit bearing 1173 of 1997 on the original side of this Court. The stand of the respondent was that she is owner of plot measuring 125 Sq. yards bearing Survey No. 5/46-B Survey Sheet No. 35-B/l, New Karachi Corporative Housing Society, Karachi. She had filed a sub-lease issued in her favour on 20.12.1993. Further position taken by the Respondent No. 1 was that the appellant was raising illegal construction on the plot of land opposite to their house and sixteen feet will has been raised just in front of her house. There seems to be exchange of notices between the appellant and Respondent No. 1. She had further claimed that amalgamation of plots was without notice to her as well as owners of adjourning properties. Consequently, she challenged the conversion of the plot into commercial and canvassed that she was being deprived of the right of air, privacy and easements coupled with the problem of water, sewerage, gas and electricity in the event the construction on the appellants plot is permitted. There further seems to be preliminary objection raised by the appellant after which site was inspected under the orders of the Court, and finally an order of restraint based on the aforementioned were sought against the appellant from raising further construction on the plot in question. She had stated that the project has already been constructed to the extent of basement plus lower ground plus ground and three upper storeys. It was in this background that the impugned order had been passed.

The learned counsel for the appellant has contended that the Respondent No. 1 was guilty of laches as she had allowed the appellant to raise construction right from 1995. It was further contended that the conversion of the plot from residential to commercial is the absolute prerogative of the Authority concerned and the Respondent No. 1 has no authority to raise any objection. Coupled with this, the learned counsel has strenuously argued that the Competent Authority had raised no objection to the construction. He has further contended that the Respondent No. 1 is living is a different society, whereas the plot of land in question is situated in Delhi Cooperative Housing Society, and there is at least 40 feet wise road between the two properties located in two different societies. Our attention has further been invited to an aspect that the entire Tariq Road has been declared and notified as commercial, and that the Karachi Water and Sewerage Board, Sui gas and Karachi Electric Supply have recorded their no objection for construction of commercial buildings on the said Tariq Road as well as the project of the appellant. The learned counsel has further contended that the sewerage lines, street and roads of the Society in which the Respondent No. 1 has her property are in no manner affected by the property of the appellant which is situated in altogether a different Society. Mala fides are attributed by the appellant against the Respondent No. 1. No objection was taken by the Respondent No. 1 in respect of a number of other buildings which have been constructed around the properly of the Respondent No. 1 In so far as compulsory spaces in respect of commercial properties is concerned on Tariq Road, the same was canvassed to have been waived by the Respondents Nos. 2 to 4 not only in respect of the property of the appellant but in respect of all the properties on Tariq Road, and consequently non of these properties have observed the compulsory space. It was contended that no prejudice whatsoever is being caused to the Respondent No. 1. The learned counsel has further stated that the regularization of the plan is not contrary to the provisions of Act, XXIV and Ordinance of 1977. The Ordinance admittedly has come into operation much after the regularization of the plan and does not operate retrospectively. In so far as Act XXIV is concerned the same was argued as not to apply as the building of the appellant was being raised strictly in accordance with the approved plan. It has lastly been contended that the construction which is regularizable in law, the same is not consequently prohibited. The counsel for the appellant has raised his attack on the aforementioned impugned order to the extent that the learned Single Judge has observed that construction could only be carried out in accordance with the original plan, and not in accordance with the revised approved plans. Such observation waa contended to be not warranted by circumstances, as the authorities had lawfully accorded waiver and approved the revised plain in October, 1997. His further contention is that merely having a prima facie case would not warrant the order of injunction that has been passed by the learned Single Judge as two other ingredients were absent in terms of irreparable loss and balance of convenience. Respondent No. 1 was contended to have kept quite for a period of two years, and in the event there was any violation, as now claimed by her then she ought to have raised the same in the first available opportunity. Commercialization of plots in question is stated to have taken place in the years 1983 and 1985. Reliance has been placed by the learned counsel for the appellant on 1995 SCMR 362 at page 377 para. 24 and para 28. Further reliance has been placed on 1989 MLD p. 1966 and 1989 MID 2987, PLD 1983 Kar. 11, PLD 1982 Kar. 425, PLD 1996 Sindh Statute p. 200 - and a Notification, dated 25.10.1997 promulgating an Ordinance whereby mendments have been inserted in Section 19 of Sindh Building Control Ordinance by way of addition of a proviso.

On the other hand the learned counsel for the Respondent No. 1 has contended that a prima facie case has been made out which has resulted into the passage of impugned order. Learned counsel also pointed out deviation in the process of construction which according to the learned counsel are not compoundable. Learned counsel for Respondent No. 1 further contended -a- that there are serious violations of Building Control Rules, Regulation and the law. He further contends that there has been violation of a nature which is non-compoundable and such violation are stated to be in non-compliance of the approved building plan. He has invited our attention to a technical expert report and has submitted that construction had to be raised by the appellant on the basis of the approved plan and further Respondent No. 2 is required to act in accordance with the Building Control Rules, Regulation and the Laws by virtue of being a Statutory Body. Prime duly of the Respondent No. 2 has been canvassed to be aimed at protecting the right and interests of public and to avoid waiver of transgression or violations. The Respondent No. 2 has supported the impugned order. Suppression of factual aspects has also been attributed to the appellant. Lastly the Respondent No. 1 has stated that the construction raised by the appellant has operated to deprive the Respondent No. 1 of her easement right like air, privacy besides affecting the civic amenities. Amalgamation of the plot and its consequent commercialization has been attacked by the Respondent No. 1 to be illegal. In so far as delay that had been occasioned by the Respondent No. 1 for raising her grievance, if any, against the illegal construction. Such delay is contended by the learned counsel for the Respondent No. 1 as to not come in the way of her grievance in respect of the construction being raised. The learned counsel for the Respondent No. 1 has relied on the citation Abdul Razzak v. K.B.CA. PLD 1994 SC pg. 512, wherein their Lordships have been pleased to hold that framing a housing scheme does not mean simplicitor levelling of the land and carving out plots, but also involves working out approximate requirement of amenities, water, electricity, gas, sewerage lines, street, roads etc. Such violation in consequence thereof every person is likely to suffer. Reliance further has been placed by the Respondent on the Architect reports as well as on 1989 CLC p. 1936,1989 CLC 2173,1990 CLC p. 83,1990 CLC 448,1990 CLC p. 1842 and lastly on PLD 1994 SC 512.

The learned counsel Mr. Iqbal Memon representing the Respondent No. 2 has stated that the Respondent No. 2 has approved the plans and the construction has been raised by the appellant within the framework of law. As such the position taken by the Respondent No. 2 is that the appellant could raise their construction to the extent of the approved plans by the Respondent No. 2.

The learned A^A.-G. has supported the appellant and has further submitted that in view of the violation,, if any, which have been compounded the order impugned in this appeal cannot be sustained.

Having considered the submission made by the learned counsel and having examined the record, we are of the view that admittedly the construction by the appellant had commenced in May, 1995 as per the proposed plan. The Respondent No. 2 had approved the building plan for basement, plus lower ground, plus upper ground plus three floors on this commercial plot measuring 6024 sq. yeds. It further seems that the Respondent No. 1 had not raised any objection whatsoever for nearly about two years and allowed the building of the appellant to be constructed. No breach of her right of easement was expressed, nor objection to the amalgamation or commercialization of the plot was raised by the respondent till such time that the construction of the appellant has reached a level of basement, lower ground, upper ground plus three floors.

A peculiar feature which cannot be ignored is that Tariq Road is a commercial area and so many commercial high rise buildings are there in the same area and in the immediate neighbourhood of the house of the Respondent No. 1. The Respondent No. 1 cannot be allowed to hold grievance against the appellant, especially when in the same neighbourhood several high rise buildings of nearly the same height have been constructed without any objection from the Respondent No. 1. There is yet another aspect which cannot be ignored that Respondent No. 1 is living in a different Society, and the distance between her 125 sq. yards properly and property of the appellant is 40 feet wide road. Having kept silent and allowing the appellant to continue with the construction till the entire structure of the building upto third floor had been completed the Respondent No. 1 had filed the suit As such by keeping quiet without raising any objection, the Respondent No. 1 appeared to have represented her no objection to the construction of the appellant. Eyes cannot be closed to yet another feature that a number of other 5/6 storeyed buildings have been constructed on the main Tariq Road in the immediate neighbourhood, but the Respondent No. 1 had not raised any objection to any one of them. All these commercial buildings about on the main Tariq Road, but no objection had been raised by the Respondent No. 1. Rejoinder-in-affidavit filed by the appellant reflects that KJ3.C A. has approved ground plus six floors building plan very recently oo as many as three other plots being Plot No. 39, Delhi Cooperative Housing Society, opposite to the appellant Building. Plot No. 110, Block 3, Bihar Cooperative Society, Alamgir Road has been commercialized and site plans are available and have been filed by the appellant. Plot No. 154-S, Block 2, P.E.C.H.S. in which permission has been filed by the appellant Plot No. 154-S, Block 2, P.E.C.H.S. in which permission has been granted for upio forth floor.

In further seems that Respondent No. 1 had filed a High Court Appeal No. 10 of 1998 challenging this very impugned order which was dismissed &swithdrawn on 26.3.1998. Such action on part of the Respondent No. 1 could result into drawing an inference that the order operating against the appellant was required to be set aside. Orders of the Chief Minister Singh on the summary allowing relaxation of restriction and the General Body Resolution No. 215 has also been filed by the appellant. At this stage reference could be made to para. 43 of Multi Lines Associates v. Ardesher Coioasjee 1995 SCMR p. 362. In accordance with the law laid down by the Supreme Court of Pakistan that any order passed by the Chief Minister or by the Authority to whom such powers are delegated are deemed to be orders passed by the Government. For the purpose of ready reference Para. 43 is reproduced hereinunder :--

"There is no cavil with the proposition that our Constitution contemplates parliamentary form of Government, in which executive head of the Government in the Province is the Chief Minister. In the Sindh Government's Rules of Business, 1986 while describing the powers of the Chief Minister it is provided that any order passed by the Chief Minister or any authority to whom he has delegated such power shall be deemed to be the order passed by the Government It is so stated in Rule 7, Part in of Rules of Business mentioned above. Such order of the Chief Minister cannot be called in question on the ground that it is passed in deviation of Regulations because there is no such division. It is a separate and independent statutory power of the Chief Minister which is to be exercised by him within the frame-work of the Sindh Building Control Ordinance, 1979, if it is not inconsistent with other provisions of the Ordinance. Rules and regulations are subordinate and delegated legislation deriving authority and legal cover from the provisions of the Ordinance. Regulation 16 of the Karachi Building and Town Planning Regulations relates to the powers of the concerned authority and prescribes procedure in case when building works are being carried out contrary to the provisions of the Regulations and in such case written notice is to be given to the person responsible for construction and if he fails to show sufficient cause to the satisfaction of the authority, then he can be required to demolish whole building or part thereof or bring construction in conformity with the Regulations or compound the offence and after realization of composition fee, construction can be allowed as permissible. Composition is allowed under Section 19 of the Sindh Buildings Control Ordinance, 1969 and the procedure is prescribed in the Regulations as mentioned above."

So far as commercialization of the plot in question is concerned, suffice it to say that such commercialization is a process adopted between the lessee and the lessor in respect of an area being predominantly commercialized and therefore, the respondent specialty living in a different society could not raise an objection of this nature.

Coming to the report of the Architect, the same was required to show whether construction by the appellant has been raised in accordance with the approved plan. In any case the Architect who was no required to give his opinion as to whether or not the construction was raised by the appellant was regularizable. However, we find that all violations alleged are regularizable and have been regularized. It was under these circumstances, that the K.B.C.A. has not raised any objection. In so far permission to raise the fourth floor is concerned, we find that on 3.5.1995 plans were approved upto the third floor and after the entire structure had been constructed on 20.10.1997 fourth floor was allowed to be constructed but after payment of fee for the additional floor.

The fact that Respondent No. 1 has remained silent for a period of more than two years allowed third party interest to be created, and further allowed the structure to be completed, the grievance of the respondent was that the construction without approval was being raised and has been raised by the appellant is violative of the approved plans which is not so, as per the stand taken by Karachi Building Control Authority. We further find that in so far as easementary right of Respondent No. 1 are' concerned, the same are not being affected as in this commercial city of Karachi with a 40 feet wide road between the plot of the Respondent No. 1 and the structure of the appellant, both located and situated in different societies, it would be hard to deprive the appellant of their property, in which third party interest have already been created, specially when the respondent has not been able to explain her silence for over a period of two years, and then subject the appellant to the litigation of an instant nature.

We further find that no-objection certificate of KW.S,B., K.E.S.C., hare been placed on record which indicates that civic amenities would not be affected. In so far as amalgamation is concerned we find that it is the Authority Commercializing a property, who could have raised such an objection. The dictum lain down in the Multi Line case by the Supreme Court of Pakistan would be applicable in the present set of circumstances, and the order impugned in this appeal would operate to the serious prejudice of the appellant We further find that the respondent has not taken a position whereby it could be said that the construction of the appellant has been designed in a manner that it would obstruct the light and air of the Respondent No. 1. A bare statement that light and air would be obstructed with no definite instance of obstruction having been pleaded, the Architect has also not, in any manner, supported the respondent that the construction of appellant would obstruct the light and air and other easement of the neighbours.

In view of the above facts, we are of the view that the very act of Respondent No. 1 of having waited to allow the appellant to raise construction till such time that the construction reaches the state of basement plus lower ground, plus upper ground, plus three floors when she elects to object to the construction being raised by the appellant.

In the above circumstances, Respondent No. 1 had no prima facie case, nor balance of convenience was in her favour. No irreparable loss was likely to be caused in case of refusal of injunction and the impugned order in the above stated terms was not justified. Learned counsel for K.B.C.A., and Additional Advocate-General have also supported the impugned order.

We, therefore, allow this appeal, and set aside the impugned order, dated 6.1.1998 with no order as to cost

(TAJ.)

Appeal allowed.

PLJ 1999 Karachi 523

Present: SHAIQ USMANI, J. Miss IRSHAD JEHAN-Plaintiff

versus

P.N.S.C.--Defendant

Suit Nos. 555 and 556 of 1989, decided on 25.9.1998.

Damages-

—Telephone operators in Pakistan National Shipping Corporation-­Dismissal from service-Challenge to--Plaintiffs dismissal from service was wrongful inasmuch as proceedings of Enquiry Committee were violative of principles of natural justice-Plaintiffs in circumstances were entitled to damages for mental torture and shock-Damages for mental shock and torture fell in category of general damages for assessment of which no definite method was laid down-Primary consideration of the Court, in such cases, should be to compensate plaintiffs so far as possible for injury caused to them-Consideration should also be given to status in life, age and nature of person to whom injury had been caused because people differ in their reaction and response to traumatic events—Plaintiffs who were women, underwent veiled harassment and unlawful Hignnigs^l during prime of their lives which could have unsettled them greatly particularly because they appeared to be highly strung-Shock was certainly not acute enough to derange them but it was grievous enough to deliberate them for quite sometime-Claim of plaintiffs to be quite out of proportion-Court determined amount of damages giving due regard to all considertions. [Pp. 529 & 530] A & B

Mr. Dastagir Ghazi, Advocate for Plaintiff.

Mr. Mushtaq Ahmed Shaikh, Advocate for Respondent.

Date of hearing: 21.6.1998.

judgment

By this common judgment, I propose to dispose of the above two suits since these involve similar question of fact and law. The facts of the case as per pleadings of parties are that the plaintiffs in the above two suits are inter se sisters who were employed by defendant Corporation as telephone operators in 1975. Both were dismissed on 19.12.1978 on the ground of misconduct, which orders they challenged before the Labour Court through the applications under Section 25-A of the I.R.O. 1969, which were allowed and the plaintiffs were reinstated. Appeals filed by the P.N.S.C. were dismissed on 19.1.1980 so also Constitutional Petitions Nos. D-161 and D-162 of 1980 by judgment, dated 25.2.1982. The plaintiffs were taken back in service in consequence of the above judgments. However, the plaintiffs were again charge-sheeted on 17.7.1985. Enquiry Tribunal comprising three senior employees of P.N.S.C. namely S.K.M. Rizvi as the President of the Enquiry Committee, Mr. S. Iqbal Ahmed and Mrs. Zubaida T. Burhani as the Members of the Enquiry Committee conducted the enquiry. The records show that the plaintiffs by notice, dated 11.8.1985 were directed to appear before the Enquiry Committee on 12.8.1985 at 2.30 p.m. and they were also allowed to bring any workman of P.N.S.C. establishment of their own choice as per Regulation 97(3) of P.N.S.C. (Service) Regulations, 1984 for their assistance. However, the plaintiffs by their letters dated 13.8.1985 asked the President of the Enquiry Committee to furnish to them the names of the witnesses to be produced copies of complaints, nature of evidence that would be led against them and the allegations that were likely to be made against them. The also stated that unless the aforesaid requirements were met any further proceedings by the Enquiry Committee would be prejudicial. In response to the above letters, the President of the Enquiry Committee through his letter, dated 21.8.1985 informed the plaintiffs that they had failed to appear before the Board of Enquiry. At the time on 15.8.1985 they were asked to appear on 25.8.1985 at 2.30 p.m. and were also informed that if they failed to appear ex parte action would be taken. The above letter was replied to by the plaintiffs by letters, dated 24.8.1985 again pressing for the informations earlier requested by them. The President of the Enquiry Committee against sent a letter dated 3.9.1985 stating therein that the plaintiffs were delaying the enquiry proceedings and avoiding to participate in the enquiry on one pretext or the other. The plaintiffs were assured that they would be given full opportunity of defence and to cross-examine the management's witnesses and bring any co-workers for their assistance in the enquiry but not an outsider. The plaintiffs were again asked to appear on 8.9.1985 at 2 p.m. In response to the above notice, the plaintiff sent their letters dated 8.9.1985 again requesting for the above information which was replied to by the President of the Enquiry Committee by letter dated 15.9.1985 wherein, inter alia it was stated that the statements of the management's witnesses would be recorded in presence of the plaintiffs, copies of all the papers documents produced by management during enquiry would be provided to them, the plaintiffs could bring any co-worker from P.N.S.C. for their assistance and they were again assured that they would be given full opportunity to cross-examine the witnesses. The were again called upon to take part in the enquiry on 22.9.1985 at 2.30 p.m. but the plaintiffs replied to this letter in similar view as earlier. The President of the Enquiry Committee by letter, dated 30.9.1985 forwarded copies of the complaints and asked the plaintiffs to appear on 8.10.1985, which was followed by the plaintiffs letter dated 1.10.1985 in which they had stated that they had not delayed the enquiry and they would furnish the names of their witnesses after the closing of the complaint's side. After theat the President of the Enquiry Committee by his letter dated 15.10.1985 forwarded the statements of the witnesses and fixed 21.10.1985 for the cross-examination of the witnesses by the plaintiff. In response to the above letter the plaintiffs sent their letters dated 17.10.1985 raising certain legal objections as to the legality of the enquiry. Thereafter the plaintiffs were served with the second show-cause notice, dated 12.12.1985 alongwith the report of the Enquiry Committee, dated 21.11.1985 which was replied to by plaintiffs through their letter dated 17.12.1985. Later plaintiffs sought an interview with Chairman of the defendants but they were seen by one of the Directors of defendants and the meeting was inconsequential. Ultimately the plaintiffs were dismissed from service by defendant's letter dated 5.1.1986. Thereafter, the plaintiff filed Constitutional Petition No. D-678 of 1986 and 681 of 1981 challenging their dismissal but these petitions were dismissed by a Division Bench of this Court with the remarks that their remedy lay in filing a suit for damages for alleged wrongful dismissal.

Based on the pleading following issues were settled.

(1) Whether the plaintiff was removed from service illegally, mala fidely and unjustly on the basis of vague charges, not recognized by law ?

(2) Whether proper procedure was not followed while removing the plaintiff from service ?

(3) Whether the termination of services, damaged the health and reputation of the plaintiff and also caused mental torture and marred the entire career of the plaintiff ?

(4) What should the decree be ?

The documents field by parties were admitted documents and there was no controversy as to their authenticity. The plaintiff in Suit No. 555 of 1989 examined herself hut plaintiff in Suit No. 556 of 1989 did not lead any evidence presumably because the plaintiffs evidence in both suits is similar. The defendant led evidence of two of their officials namely Mr. Mohibur Rehman, Raw, Personnel Officer (D.W. 1) and Mr. S.M. Sirajul Haq, Manger (D.W-2).

ISSUE NO. 1.

It is an admitted position that the service of plaintiffs in the defendant corporation was governed by the Pakistan National Shipping Corporation (Service) Regulation, 1984. Under Regulation 91, thereof the penalties provided for are as under :--

(a) Minor penalties:

(1) Censure;

(2) Withholding for a specific period promotion or increment; and

(3) Recovery from pay of the whole or any part of pecuniary loss caused to the Corporation by negligence or breach of an order.

Ob) Major Penalties :

(1) Reduction to a lower post or Grade or to a lower stage in a time-scale;

(2) Compulsory retirement;

(3) Discharge or removal from service;

(4) Dismissal from service.

(5) Since in this case the dismissal of the plaintiffs from service was on the grounds of misconduct, it will be advantageous to reproduce Regulation 92 sub-titled "Misconduct":--

(1) Misconduct means conduct prejudicial to good order or service discipline or contrary to the Discipline and General Conduct contained in Chapter VI of these Regulations.

(2) Without prejudice to the generality of sub-Regulation (1) above, the following acts and omission shall be deemed to constitute misconduct or breach of discipline :--

(i) Riotous or disorderly behaviour during working hours, or any conduct prejudicial to good order or service discipline or contrary to Corporation's rules or regulations or orders of a superior;

(ii) Acts of negligence or work or inordinate delay in performance of duly; (iii) Impertinence, insubordination, disobedience, or interference; (iv) Theft, fraud, or dishonesty in connection with the Corporation's business or property; (v) Causing willful damage to or loss of Corporation's business or goods or property;

(vi) Taking or giving bribes or any illegal gratification; (viii)Absence without permission, and continuous absence without satisfactory cause for more than ten days; (vii) Wilful commission or omission of an act against the interests of the Corporation; resulting in a loss to the Corporation; (ix) Wilful tempering with, theft or destruction of any records, documents or any other properly of the Corporation; (x) Favoritism, nepotism and wilful abuse of power; (xi) Striking work or inciting others to strike, in contravention of any law or rule having the force of law; (jtii) Engaging actively in smuggling, or in any commercial business or pursuit either on his own account or as agent for another;

(xiii) If an employee is corrupt or may reasonably be considered corrupt; (xiv) When an employee is engaged or reasonably suspected of being engaged in subversive activities; (xv) Drunkenness, fighting, gambling or indecent behaviour within the Corporation's premises. (xvi) If he is guilt of disclosure of official secrets to any unauthorised person;

(xvii) Habitual late attendance, malingering or go slow; (xvui) Any trade union or other activity during working hours which is likely to affect the normal functioning of the Corporation.

(xix) Improper and non-use of uniform on duty. Of these grounds the plaintiffs were charged with insubordination, misbehaviour, derogatory conduct, rude behaviour, wilful contravention of lawful orders by charge-sheet, dated 17.7.1985, all of which are reflected in Regulation 92 referred to above. Considering that a Division Bench of this Court has held in the case of Muhammad Aslam v. National Shipping Corporation reported in PLD 1979 Kar. 246 that the employer of a statutory corporation would be governed by general law of master and servant, it is obvious that service regulations made by the defendant corporation would govern the terms and conditions of such employers, and such regulations will be lawful. Consequently this issues is answered in the affirmative.

(xx) ISSUE NO. 2.

There is no doubt that considerable acrimony existed between the plaintiffs and the management of defendants in view of previous litigations between parties and the reinstatement of the plaintiffs by the defendants by orders of Court. However, that fact remains that subsequent to the charge-sheet dated 17.7.1986, the defendants followed the procedure laid down, by their service regulations and by law. Indeed the plaintiffs themselves, have not alleged in their plaint that the laid down procedure was not followed. Their only plea is that the Enquiry Committee did not provide them sufficient opportunity to defend themselves inasmuch as the plaintiffs were not provided with statement of witnesses, copies of complaints and that they were not provided with the opportunity to cross-examine the witnesses that appeared before the Enquiry Committee or those whose statements were taken to be complaints against the plaintiffs by the enquiry committee. So in fact the entire case of the plaintiffs is based on the alleged violation of principles of natural justice rather than the failure of the defendants to follow the procedure laid down for removal of the plaintiffs from the service. — —

While it is true that the witnesses and the complainants before the Enquiry Committee were not cross-examined, it was not due to any lack of opportunity provided in so far as the cross-examination of the witnesses produced before the Enquiry Committee was concerned. The facts of the case ^" as narrated above would show that the plaintiffs from the very beginning had adopted an intransigent approach in so far as the Enquiry Committee was concerned. They deliberately stayed away from the proceeding of the Enquiry Committee and conciliatory gestures from the committee were " -y" spurned. On one hearing i.e. on 21.10.1985, when the plaintiffs appeared before the Enquiry Committee, according to the report, the plaintiffs refused to cross-examine the witnesses. The relevant passage from the Enquiry Committee report is reproduced below :--

"On 21.10.1985, the telephone operators appeared before the Enquiry Committee. The four witnesses mentioned above were present and the telephone operators were asked to cross-examine them; but they flatly refused to cross examine them on the ground that the condition imposed by them earlier (that is, presence of Miss S. Maksood) be fulfilled in the first instance. On this, the members of the Enquiry Committee explained to them that the statements of all four witnesses were sent to them well in time in order to enable them to prepare their cross-questions and to produce their defence."

However, the above passage does reveal that the major complainant that is Mr. Maksood the Private Secretary to Chairman, Pharma Group of Companies, whose complainant in fact initiated the entire proceeding against the plaintiffs, was never examined in person by the Enquiry Committee. Merely her statement was relied upon to substantiate the charges against the plaintiffs. This statement too, as admitted by a defendants witness, was not recorded during the enquiry. Nor was Miss Maksood ever produced for cross-examination by the plaintiffs in spite of their insistence to this effect It was all the more necessary for her statement to be subjected to cross-examination because the plaintiffs had persistently denied having been asked to connect a call by Miss Maksood. P.W.-l, has denied that in her evidence as well. It would appear that the complaints by other witnesses were not of such gravity and even if it is held that the plaintiffs deliberately avoided cross-examining such other witnesses, even though opportunity for it was provided, their evidence could not have led to dismissal of the plaintiffs. It is the complainant of Miss Maksood which was the single most important piece of evidence of condemn the plaintiffs and yet it was not •«sted at the touchstone of cross-examination and in deed no opportunity for it was provided to the plaintiffs by the defendants. To that extent I hold that the statement of Miss Maksood relied upon by the defendants has no evidentiary value. Thus, I answer this issue in the affirmative and hold that the plaintiffs were wrongfully dismissed.

ISSUE NO 3.

In their plaints in two suits the plaintiffs have claimed damages under the following heading:

(1) For damages to the health of plaintiff.

(2) For mental torture and mental shock.

(3) For less of reputation, hence rendering them incapable of joining any other profession.

However, the plaintiffs apart from repeating the above breakdown in their affidavit-in-evidence have led no evidence to prove damage to their health and reputation. Nevertheless there is no doubt that the plaintiffs being single woman belonging to law income group in the society would have undergone considerable trauma due to wrongful dismissal from service. However, during the course of arguments there were considerable, hints at these unfortunate women having been subjected to sexual harassment. Though no evidence to this effect has been led for obvious reasons, the possibility of it cannot be obviated when to young women of their station in life work in an entirely male environment. Consequently, while there could be justification for claiming damages for mental torture and mental shock there is little justification or evidence for claiming damages to their health. As far as loss of reputation is concerned it is axiomatic that the job that they were employed in that is telephone operator, does not carry any particular reputation and dismissal does not render a telephone operator incapable of seeking similar job elsewhere Consequently, I answer this issue in the affirmative only with regard to titt claim for Tsental torture and mental shock and in the negative with regard to < iaim uu ter the other two headings.

ISSUE NO. 4.

Considering that I have already held that the plaintiffs dismissal was wrongful inasmuch as the proceedings of the Enquiry Committee were violative of principles of natural justice and that the plaintiffs ware entitled to damages for mental torture and mental shock, the question that remains to be decided is the extent of damages that is to be awarded to the plaintiffs. Damages for mental shock and torture fall in the category of general damages for assessment of which no definite method has been laid down. In such cases the primary consideration of the Court should be to compensate the plaintiff as far as possible for the injury caused. Here consideration should also be given to the status in life, age and the nature of persons to whom injury has been caused because people differ in their reaction and response to traumatic events. Somewhat similar views have been expressed very lucidly in the case of Sufi Muhammad Ishaque v. The Metropolitan Corporationreported in PLD 1996 SC 737 by which I am greatly fortified. In the instant case, these two women underwent veiled harassment and unlawful dismissal during the prime of their lives which could have unsettled them greatly particularly because they appeared to be highly strung. The shock was certainly not acute enough to derange them but it was grievous enough to deliberate them for quite some time. In their plaints they claim Rs. 30,00,000 for mental shock and mental torture, which I find to be quite out of proposition to the injury caused. In my view 5,00,000 to each of the plaintiffs would be an adequate compensation giving due regard to all the considerations enumerated hereinabove. I, therefore, decree both suits that is, Suit No. 555 of 1989 and Suit No. 556 of 1989 and award damages for Rs. 5,00,000 to each of the plaintiff.

(T.A.F.) Suit decreed.

PLJ 1999 Karachi 530 (DB)

Present: rana bhagwan das and ghulam nabi soomro, JJ.

HANIF BROTHERS-Petitioner

versus

FEDERATION OF PAKISTAN and others-Respondents .

Constitutional Petition No. D-150 of 1994, decided on 20.10.1998.

Customs Act, 1969 (IV of 1969)--

-—S. 32-Constitutional jurisdiction-Authorities by adjudicating claim and proceeding against petitioner, had neither acted in excess of authority nor without jurisdiction or in violation of law in process of hearing- Concurrent findings of Authorities could not be interfered with by HighCourt in exercise of Constitutional jurisdiction- [P. 535] A

Mr. Aziz A. Shaikh, Advocate for Petitioner.

Syed Tariq All, Standing Counsel for Respondent No. 1.

Date of hearing: 9.10.1998.

judgment

Rana Bhagwan Das, J.-In this Constitutional petition under Article 199 of the Constitution, petitioner seeks to impugne the original as well subsequent proceedings taken by Deputy Collector of Customs, Preventive (HQ), Collector of Customs (Exports) and Member, Judicial Central Board of Revenue as barred by limitation under Section 32(3) of ~ ~ Customs Act, 1969, ab initio void and of no legal effect. Prayer clause in the petition precisely reads as under:-

"(a) Declare that respondents have acted contrary to mandatory provision of Section 32, 156(1) and 180 of Customs Act, 1969 as well as failed expeditious compliance of directives of this Honourable Court without valid reason or explanation;

(b) declare that travel of sample and its test process without association of petitioner has got no probative value thus, enquiry/investigation of adjudication made on the basis of such test is against the Constitutional rights of petitioner as well as •—— contrary to principles of natural justice, therefore, of no legal effect and consequences;

(c) decree that original order passed by Respondent No. 3 was adjudged as without jurisdiction and lawful authority by superior Court, therefore, subsequent proceedings based upon \ the original order also suffer from same illegality;

(d)declare that the original as well as subsequent proceedings are barred by limitation under Section 32(3) of Customs Act, 1969 hence of no legal effect and ab initio void;declare that imposition of penalty by Respondent No. 2 under lause (14) of Section 156(1) of Customs Act, 1969 is wholly unjustified, arbitrary and unlawful as done without application of mind and due consideration of facts of the case;

(e) restrain the respondents from recovery of rebate amount and personal penalty amount imposed vide following orders:--

Order No.Rebate plus penalty amount.

SR2-6385/83 Rs. 988,190

SR2-7758/83 Rs. 1,024,362

SR2-2326/83 Rs. 1,055,934

SR2-13261/83 Rs. 1.056.900

Rs. 4.125.386

1. Facts in brief leading to the petition are that the petitioner exported a consignment of "Art Silk Sarees" to Singapore under different shipping bills in the year 1983 and claimed export rebate under SROs 384(l)/79 and 699(1)/80. It is the case of the petitioner that Deputy CoUector of Customs-Preventive after due verification of quantity and genuineness of quality and description in addition to pre-shipment inspection allowed rebate claimed on four shipping bills in all amounting to Rs. 27,50,257. It is averred that on 12.5.1983 a laboratory test was conducted by respondent Chemical Examiner to Government of Pakistan, Custom House without any information to the petitioner disputing the goods as composed of 100% pure silk against previously declared comprising of Synthetic Art Silk Yarn. Such laboratory test has been impugned for the reason that the petitioner was not associated in the process of testing which was essential and mandatory because requirement of notice under Section 26 of Customs Act was not \ adhered to. Upon findings of the laboratory test four show-cause notices in terms of Section 32 of the Customs Act were issued by Respondent No. 3 to the petitioner on 4.0.1984 calling upon him to deposit a sum of Rs. 27,50,257 fraudulently claimed and received by way of rebate and to show cause as to why penal action be not taken against them under clause (14) of Section 156 of the Customs Act. Petitioner did not furnish any reply to the show-cause notice nor did he appear in person but he was represented through Mrs. S.M.A. Askari, Advocate. Hearing before Respondent No. 3 culminated into four orders in original passed by Respondent No. 3 on 4.2.1985 requiring the petitioner to make good the payment of Rs. 27,50,257 within seven days in

addition to pay a penalty equivalent to the said amount as required in the notice.

1. The petitioner impugned the said order in Constitutional Petition No. D-85 of 1985 before this Court which came up for hearing before a Division Bench of this Court on 20.7.1989 when by consent impugned order was set aside and the case was remanded to the Collector of Customs (Preventive) Karachi for deciding the case expeditiously after hearing. On emand of the case from this Court, Collector of Customs (Exports) by four identical orders-in-original, dated 15.10.1991 dismissed the plea taken by the petitioner and held that the petitioner had misdeclared the Art Silk Sarees as Polyster Sarees which fact was fully established by a laboratory test through Analyst and Chemical Examiner. He held that the petitioner had fraudulently obtained duty draw back on export and was thus, liable to repay the amounts received by him alongwith penalty equal to 50% of the amount of duty draw back erroneously paid to him.

2. These orders were impugned in appeal under Section 193 of the Customs Act before the Member, Judicial Central Board of Revenue who passed order, dated 19.7.1993 dismissing the appeals by a common order after hearing parties counsel and scrutiny of the record. It is in these circumstances that the present petition was filed before this Court.

3. At the hearing main contention of the learned counsel for the petitioner is that the initial show-cause notice, dated 4.10.1985 issued by the Deputy Collector Customs is hit by limitation as prescribed by sub-section (3) of Section 32 of the Customs Act. Conversely Syed Tariq AH learned Standing Counsel took the position that this being a case of deliberate and intentional misdedaration of consignment sub-section (2) of Section 32 is attracted which prescribes a period of three years for issuance of notice from the relevant date.

4. For proper appreciation and resolution of the controversy raised in this petition, it may be necessary to reproduce Section 32 which reads as under:—

"32.--(l) If any person, in connection with any matter of customs.--

(a) makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever, or

(b) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, (knowing or having reason to believe that such document or statement is false) in any material particular, he shall be guilty of an offence under this section.

(2) Where, by reason of any such document or statement as aforesaid or by reason of some collusion, any duty or charge has not b^een levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within three years of the relevant date, requiring him to show cause why he should not pay the amount If specified in the notice.

(3) Where, by reason of any inadvertence, error or mis-construction, any duty or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within six months of the relevant date requiring him to show cause why he should not pay the amount specified in the notice.

(4) The appropriate officer, after considering the representation, if any, of such persons as is referred to in sub-section (2) of sub-section (3) shall determine the amount of duty payable by him which shall in no case exceed the amount specified in the notice, and such person shall pay the amount so determined.

(5) For the purposes of this section, the expression 'relevant date' means—

(a) in any case where duty is not levied, the date on which an order for the clearance of goods is made;

(b) in a case where duty is provisionally assessed under Section 81, the date of adjustment of duty after its final assessment;

(c) in a case where duty has been erroneously refunded, the date of its refund;

(d) in any other case, the date of payment of duty or charge."

1. Perusal of the orders passed by various authorities in the Customs hierarchy tends to show that there are concurrent findings to the effect that the petitioner had in fact exported Sarees made of Synthetic Knitting and deliberately declared them to be made of pure silk with a dishonest intention to obtain maximum amount of refund on such consignment. Reliance for this finding was placed on the laboratory test report prepared by the Analyst/Chemical Examiners expressing the view that the sample of dyed pieces on analysis is found to be compound of 100% pure silk.

2. Learned counsel for the petitioner vigorously assailed the Authenticity and evidentiary value of this report for the reason that the petitioner was not associated with the process of laboratory test and that the Chemical Examiner in the Customs Laboratory happens to be subordinate to the respondent authorities therefore, his opinion could not be free from influence. Be that as it may, this point was not directly agitated before the respondent authorities and it appears that e learned counsel for the petitioner impugned the authenticity of such report which was refuted for the reason that the samples were found to be duly sealed and signed by the parties. In case the samples available at the stage of hearing before the Collector of Customs were duly sealed and signed, identity of such samples could not be doubted. Dealing with the argument that the Chemical Examiner appeared to be an officer subordinate to the Collector of Customs and C.B.R. no request was made to the Collector for referring the samples to any other independent laboratory for a second opinion, therefore, the petitioner is legally estopped from raising this plea before this Court for the first time. Indeed it was open to the petitioner to ask for a second opinion which having not been solicited findings of fact cannot be disturbed by this Court in the exercise of its extraordinary jurisdiction.

3. Adverting to the contention that the show-cause notice, dated 4.10.1985 was hit by time limit prescribed in sub-section (3) which postulates a period of six months for issuance of such notice, suffice it to say that the facts and circumstances tend to show that this was a glaring case of mis-declaration of the consignment and acting upon such declaration the Custom Authorities allowed the claim for duty draw back which having been noticed, timely action was taken in terms of sub-section (3) which prescribes a period of three years from the relevant date for issuance of show-cause notice. Obviously this was not a case of inadvertence, error or mis­ onstruction in the matter of refund, therefore, sub-section (3) can hardly be invoked in the circumstances of the case. Relevant date has been defined to mean in any case where duty is not levied the date on which an order for the clearance of goods is made; in a case where duty is provisionally assessed under Section 81, the date of adjustment of duty after its final assessment, in a case where duty has been erroneously refunded, the date of its refund and in any other case the date of payment of duty or charge. In the present case duty draw back was refunded through pay orders, dated 10th March, 1983 computing the period of three years from this date being relevant notice, dated 4.10.1984 appears to have been issued well within time constraints postulated in law which cannot be held to be barred by limitation as contended. Reliance on the cases reported as Federation of Pakistan v. Ibrahim Textile Mills Limited 1992 SCMR 1898 and Muhammad Ashraf v. Deputy Superintendent Smuggling Squad (PLD 1977 Lah. 300 is, thus, completely misconceived being distinguishable on peculiar facts of this case.

4. Having held above, we proceed to examine the second contention raised by the learned counsel in support of the petition to the effect that there was inordinate delay in adjudication of the claim for this Court in the earlier petition while remanding the case to the Collector of 4 Customs had directed the decision expeditiously which was inordinately delayed. A plain reading of the order passed by the Collector of Customs leads to an irresistible conclusion that there was a large number of cases involving same points requiring the presence of a number of counsel which had to be adjudicated after due notice to all the parties concerned and after elaborate discussion of the points raised and agitated before him. In any _^ event direction by this Court did not fix any time limit for the decision, we are, therefore, not inclined to strike down such order on this ground alone as mere expediency of a case may not always mean a hasty and hurried decision without application of judicious mind. At any event, there has been no miscarriage of justice nor any prejudice caused to the petitioner who had already obtained the refund of duty draw back repayment whereof was not insisted upon during the course of hearing.

5. On a careful consideration of the points raised and material placed on record we are of the considered view that by adjudicating the claim and proceeding against the petitioner in the process of hearing, respondents neither acted in excess of authority nor without jurisdiction or in violation of law. For these reasons, there appears to be no substance in this petition which must fail and is hereby dismissed.

(T.A.F.) Petition dismissed.

PLJ 1999 Karachi 535 (DB)

Present:syed deedar hussain shah and anwar zaheer jamali, JJ. MUMTAZ ALI and others-Petitioners

versus

GOVERNMENT OF SINDH and others-Respondents

Constitutional Petition No. D-968 of 1997, decided on 14.9.1998.

(i) Constitution of Pakistan, 1973-

—Art. 199-Constitutional petition-Land auction notice was published in newspapers-Petitioners were cultivating land under auction-Petitioners filed Constitutional petition five days before such auction-Petitioners neither participated auction proceedings, nor they were prevented to participate in auction proceedings-Auction was held in open and public place-No violation of law was committed by Authorities-Constitutional petition which involved factual controversies, was dismissed in circumstances. [Pp. 540 & 541 ] C & D

(ii) Constitution of Pakistan, 1973-

—Art. 199—Constitutional petition-Government, as a matter of policy, decided to dispose of its surplus agricultural land and other properties through public auction-Petitioners were cultivating said land-Petitioners had no vested right in the land under auction-Provisions of Sindh Land Grant Policy were, thus, not applicable in circumstances.

[P. 539] A

Mr. Abdul Kadir Abro and Nasrullah Siddiqui, Advocates for Petitioners.

Mr. Zawar Hussain Jafri, Addl. A.G. for Respondents Nos. 1 to 7 and 9.

Mr. Naseem Qamar, Advocate for Respondent No. 8. Mr. Amir Hani Muslim,Advocate for Respondent No. 10. Date of hearing: 8.9.1998.

judgment

Syed Deedar Hussain Shah, J.--Case of the petitioners is that they are Hans of Agriculture Seed Farm situated in Deh Adilpur, Taluka and District Ghotki. This farm was established by the Government in the year 1960 so as to get better procurement and develop the seed for the purpose of Agriculture. Since then petitioners are cultivating the land measuring about 96 acres. According to petitioners, Respondent No. 1 issued notices in National Press details of which are given in the notices Annexures "A" and "A/1" to the petition for auction of Government plots and lands. Respondent No. 8, Sindh Privatisation Committee issued programme for public auction of the plots owned by the Government of Sindh. In this notice the agricultural land involved in this petition is also shown to be disposed of through public auction. According to petitioners after going through the newspaper they immediately approached the respondents and placed various representations mentioning that they are Haris of the Agriculture Seed Farm and intended to purchase the same. According to the learned counsel for the petitioners at the time of auction they were not allowed to take part in the auction, that proper publicity about the auction was not held and nobody was allowed by the respondents to enter the building wherein the auction was held; that the auction was held in violation of the Land Grant Policy of the Government. In support of the petition, petitioners have submitted Harap certificate issued by Farm Manager which bears counter-signature of Assistant Director and Deputy Director Agriculture Extension, Annexures "B/l" to "B/18". Their contention is that the petitioners had deliberately been deprived of their right to purchase the land which they were otherwise entitled to purchase.

Parawise comments on behalf of Respondent No. 8 and counter-affdavit on behalf of Respondent No. 10 were filed. According to parawise comments filed by Respondent No. 8, Government of Sindh as a policy matter decided to dispose of the Farmers Extension Service Centre situated at Adilpur Taluka Ghotki managed by Director-General, Agriculture Extension Sindh. In accordance with the directive of Prime Minister of Pakistan, the Government of Sindh constituted Privatisation Committee which was required to privatise two sugar mills and also to dispose of all surplus assets with the approval of Chief Minister through open, transparent and fair auction. Respondent No. 8 finalized the auction schedule and fixed the reserved price for different categories of land and plots as well as other terms and conditions of the auction including the condition that no Hari shall be affected by the purchasers except under the provisions of Sindh Tenancy Act and Rules made thereunder. In order to ensure transparency and attract buyers, auction schedule was published in International as well as National newspapers. A brochure was also published which contained all the details of the land which was to be auctioned and open auction was held daily at public place Baradari previously known as Polo Ground, Karachi from 1st November to 9th November, 1997 in which 127 persons participated in the auction. The auction was also given daily coverage by the National Press from 2nd November to llth November. The proceedings of auction were also recorded through video and audio in order to avoid any controversy. According to parawise comments 96 acres of Agriculture Extension Service Centre were to be disposed of at the reserved price of Rs. 20,000 per acre as fixed by the Government of Sindh and that tenancy of the petitioners in respect of the land is not affected by the auction. According to the comments the petitioners failed to participate in the auction and in any case there is no violation of fundamental rights of the petitioners. According to Respondent No. 8, the allegations levelled by the petitioners in the petition are false, baseless and without substance. The purchaser or any of the respondents cannot eject the petitioners or stop them from cultivation of the land without due course of law.

Muhammad Bachal Respondent No. 10 filed counter-affidavit in which he has stated that he and his relations are Harisof Agriculture Seed Farm and they have agricultural land in Deh Adilpur and his family members are Ham of Deh Changlani. The Agriculture Department, Government of Sindh invited bids from public for open auction of different Government lands inclusive of Seed Farms Ghotki the subject-matter of the petition. The auction was widely publicised in the National as well as International Press and fair transparent public auction was held from 1st November to 9th November, 1997 in which he participated. According to Respondent No. 10 petitioners were present in auction but they did not participate nor did they object to the auction and that there is no bar in law to dispose of agricultural land in the manner it has been auctioned. Petitioners has no rights which can be equated with tenancy rights. So far Harap certificates are concerned, they do not create tenancy except that farmers are cultivating the land. There is no violation of MLR-115 of Land Reforms Regulation, 1955. The reserve price for the land was Rs. 20,000 per acre while the Respondent No. 10 gave the highest bid of Rs. 1,40,000 per acre and was declared successful bidder by the Committee in presence of hundreds of people. Under the terms and conditions of the auction the successful bidder was required to deposit 25% of the bid amount with the Committee and through pay order and cash paid Rs. 33,60,000 towards 25% of the auction price on 5.11.1997.

Mr. Naseem Qamar contended that auction was held in fair and transparent manner at Baradari and everyone was allowed to participate in the auction and such programme of action was widely publicised and published in the newspapers; that the petitioners neither participated in the auction nor complied with the conditions notified by the Privatisation Committee in the press. Regarding contention of the petitioners that they being Haris cannot be ejected or deprived of the right of cultivation of land, learned counsel submitted that Respondent No. 8 has expressly provided that no Hari will be ejected by the purchasers and action if any will be taken strictly in accordance with law and under Tenancy Act, 1960. Lastly he urged that the petitioners have filed the petition with mala fide intention.

Mr. Amir Hani Muslim contended that Government of Sindh as a matter of policy decided to dispose of surplus agricultural land and plots and to privatise two sugar mills and Sindh Privatisation Committee held open and transparent auction at Baradari wherein Respondent No. 10 participated and offered highest bid of Rs. 1,40,000 per acre against the reserved price of Rs. 20,000 per acre. The Respondent No. 10 paid Rs. 33,60,000 towards 25% of the bid amount on 5.11.1997. According to the learned counsel even in the prayer clause of the petition factual controversies are involved which cannot be investigated or decided in a Constitutional petition.

In support of his contentions Mr. Hani relied upon the following case-law:--

(i) Estate Officer, Government of Pakistan v. Syed Tahir Hussain PLD 1962 SC 75, (ii) Majlis Intizamia v. Secretary to Government of West Pakistan PLD 1967 Lah. 709, (iii) Federation of Pakistan and 2 others v. Muhammad SabirKhan PLD 1991 SC 476, (iv) Khairuddin and others v. Settlement Commissioner and others 1988 SCMR 988.

Mr. Zawar Hussain Jafri, Additional Advocate-General for Respondents Nos. 1 to 7 and 9 contended that Respondent No. 8 held the auction after observing all necessary formalities by the Sindh Privatisation Committee at open place. The petitioners did not participate in the auction of their own accord and the present petition was filed 5 days earlier than the date of auction of the land and since factual controversies are involved, the petition is not maintainable.

We have gone through the material placed with the case and minutely perused the documents and case-law referred to by Mr. Amir Hani Muslim.

Annexure "A" to the petition is the notice issued by the Chairman, Sindh Privatisation Committee and published in Daily Dawn in which details of the entire Sindh Government Property were shown which was to be auctioned. The land of Agriculture Extension Service Centre Adilpur is also shown in this notice. According to the notice the auction purchaser has to deposit 25% of the bid amount at the close of auction. In the said notice it " ~ has also been provided that a person desirous of participating was required to deposit registration fee of Rs. 5,000. Petitioners in their petition have no where stated or produced any document to prove that actually they had gone to participate in the auction. The auction was held in open place like Baradari at Karachi and not in a building as alleged by the petitioners. The Harap certificates issued by the Farm Manager do not create any right in favour of the petitioners. Moreover, in unequivocal terms Respondent No. 8 has stated in parawise comments that petitioners, if they are Haris, will not _^ be ejected by the auction purchasers except with due course of law.

The provisions of Sindh Land Grant Policy on the face of it are not applicable in this matter because agricultural land involved in this petition is the Government property which as a policy matter Government decided to dispose of through public auction with other properties and the petitioners have no vested right in the land in question.

We have also minutely gone through the contents of the petition, parawise comments and the counter-affidavit filed by the Respondent No. 10. We find that nothing has come out in favour of the petitioners.

Now we would like to discuss the case-law referred to by Mr. Amir Hani Muslim learned counsel for Respondent No. 10. In PLD 1962 SC 75 respondent was served with notice so that he may vacate the Government accommodation occupied by him. That officer thereupon filed a petition before the erstwhile High Court of West Pakistan, Karachi Bench and a writ of certiorari to quash an order in respect etthe occupancy by the respondent was issued. Government being aggrieved and dissatisfied preferred an appeal before the Honourable Supreme Court. Leave to appeal was allowed by their Lordships of the Supreme Court with the following observations:--

"We express our agreement, and do so with respect, with the view that the best occupation by a Government servant of Government-owned premises allotted to him, Le. ear-marked for his occupation, can be no more than a tenancy-at-will, which may be terminated by the State at any time without cause shown."

In PLD 1967 Lah. 709 learned Division Bench of Lahore High Court has held that where a policy is laid down or directions given for guidance of the officers connected with a department without any statutory backing, no claim of a vested right can arise on account of such directions or rules.

In the case reported in 1988 SCMR 988 their Lordships of the Supreme Court have laid down the dictum that disputed question of fact could not be determined in Constitutional jurisdiction of a Court which is summary in its character.

In the last case reported in PLD 1991 SC 476 the observations of their Lordships are that questions of title of property and possession thereof could not be resolved except through proper trial. Case involving such questions did not qualify for entertainment in the Constitutional jurisdiction of the High Court. in this matter admittedly the agricultural land involved is owned by the Government of Sindh and the same was being maintained by the Director-General, Agriculture Extension, Government of Pakistan and Government of Sindh as a policy matter decided to dispose of the Government land, plots and other properties situated in the whole of the Province of Sindh including the Agriculture Extension Service Centre Adilpur. The Sindh Privatisation Committee published the notice of the auction giving full particulars of the properties including location, area and reserved price of the land and the condition of registration fee of Rs. 5,000 by any one aspiring to participate in the bid. Auction was held on 5.11.1997 and the Respondent No. 10 offered highest bid of Rs. 1,40,000 per acre. He also deposited Rs. 33,60,000 towards 25% of the total price of the land measuring 96 acres.

A perusal of the petition shows that even before the proposed auction, petitioners filed this petition on 31.10.1997 Le. 5 days before the auction. We are unable to believe the version of the petitioners that auction was held in a building and they were not permitted to take part in the auction whereas petition itself was filed 5 days prior to the auction which was held on 5.11.1997. The notice about the auction was published in the gjNational and International Press viz. Sindhi, Urdu and English newspapers. If the petitioners were serious to take part in the auction they should have paid the registration fee of Rs. 5,000 or sent sealed bids with pay order of 25% of the offered amount to the Sindh Privatisation Committee but there is no such proof or document available on the record.

Lastly there is assurance from Respondent No. 8 that the purchaser or any of the respondents cannot eject the petitioners and deprive them of the right of cultivating the land without due course of law.

The case-law referred to by Mr. Amir Hani Muslim is relevant and applicable to the facts of the present case which we respectfully follow. The petitioners have apparently no vested right to the land involved in the petition and there is no violation of any law so as to invoke the extraordinary jurisdiction of this Court. Apart from this factual controversies are involved in the petition which cannot be gone into by this Court in Constitutional jurisdiction.

Since the bid in favour of the Respondent No. 10 has been accepted, he has to pay up the balance amount to the Respondent No. 8 which comes n to more than Rs. one crore. The delay in payment has prejudiced the interest of Respondent No. 8 which was purely on account of pendency of this petition.

For the foregoing reasons we are of the considered opinion that the petition is devoid of merits which accordingly is dismissed with no order as to costs, alongwith pending application and recall the order, dated 9.12.1997.

On 8.9.1998 after hearing the parties the petition was dismissed in //mine by a short order. Above are the reasons for the same.

(T.A.F.) Petition dismissed.

PLJ 1999 Karachi 541 (DB)

Present: syed deedar hussain shah and sabihuddin ahmed, JJ. HABIB BANK LIMITED-Appellant

versus

MUHAMMAD ABBAS and 2 others-Respondents

H.C.A. No. 16 of 1991, decided on 18.6.1998.

Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979)-

--S. 6--Civil Procedure Code (V of 1908), O.XXXJV, R. 5 & O.XXXVII, R. 3-Lamitation Act (K of 1908), Art. 181-Final decree-Amount-Recovery of-Suit for-Limitation for filing application-Question of~Suit filed by plaintiff-Bank against defendants for recovery of amount was decreed and according to preliminary decree defendants were granted six months' time to make payment of decretal amount to plaintiff-Bank-Application for final decree was to be filed by defendants within period of three years from passing of preliminary decree, but defendants filed such application not only after expiry of prescribed period of three years, but after expiry of extended period of six months, without giving any plausible explanation-Application for final decree filed by defendant, was rightly dismissed by Court on ground of delay.

[Pp. 549 & 550] A, B, C & D

Mr. A.R. Akhtar, Advocate for Appellant. Mr. Anwar Hussain, Advocate for Respondent. Mr. Makhdoom All Khan: Amicus curiae. Dates of hearing: 11 and 13.3.1998.

judgment

Syed Deedar Hussain Shah, J.--Appellant filed suit bearing No. 597 of 1983 against the respondents/defendants for recovery of Rs. 11,22,262.13 under Orders XXXIV and XXXVII, C.P.C. read with Banking Companies (Recovery of Loans) Ordinance, 1979. After institution of the suit respondents/defendants filed application under Order 37, Rule 3, C.P.C. for leave to defend the suit which was dismissed by the learned Judge sitting on the original side vide order, dated 29.1.1984. The preliminary decree in the suit was passed on 29.1.1984, granting the defendants six months time to make payment of the decretal amount, the period of six months expired on 29.7.1984. Appellant submitted C.M.A. No. 545 of 1989 on 5.11.1988 for final decree for sale of the mortgage property. After hearing the learned counsel for the parties, C.M.A. No. 545 of 1989 was dismissed by the learned Single Judge in Chamber vide order, dated 13.1.1991. Hence this High Court Appeal.

We have heard Mr. A.R. Akhtar, learned counsel for the appellant who contended that respondents had been promising to pay the decretal amount and in fact during the pendency of the application for the final decree between April, 1989 to August, 1989 respondent had made the payments. Moreover, respondent by letter, dated 26.3.1989 had promised to pay the decretal amount and specifically requested the appellant bank not to sell the mortgage property and had been making similar promises to the appellant to satisfy the decree as soon as possible and wanted more time for one year to make the entire payment due under the preliminary decree. That at the time of application for final decree the proceedings in suit itself were pending as such no period of limitation is envisaged under Order 34, C.P.C. or the Limitation Act for passing a final decree. That Order 34, Rule 5, C.P.C. provides for extension of time for payment of the decretal amount beyond six months at any time before any final decree is passed and this period is also not covered by law of limitation.

Mr. Anwar Hussain, learned counsel for the respondents contended that the application filed by the appellants was time-barred and was rightly rejected by the learned Judge. That objections filed by the respondents to the application for final decree do not amount to acknowledgment of liability. In any case acknowledgement had to be made before the expiry of the period of limitation. That in this case the preliminary decree was passed on 29.1.1984 and according to the period of limitation the same expired on 29.7.1987. That appellant in this case wants relief of final decree which relief in any case is barred by the provisions of Article 181 of the Limitation Act. The part payments made on or after 16.4.1989 were obviously made after the period of limitation had expired.

Mr. A.R. Akhtar, learned counsel for the appellant has referred the following case-law:--

(1) State Life Insurance v. S.A. Aziz Rizvi PLD 1986 Kar. 79, (2) Remannathan Chetty v. Alagappa Chetty and others AIR 1930 Mad. 528, (3) Muchi Dola Behera and others v. Jujisti Janai and others AIR 1935 Mad. 716, (4) Mst. Zubeda Bano v. S.M. Anwar Sethi and another PLD 1982 Kar. 216.

Mr. Anwar Hussain, learned counsel for the respondents cited:-

(1) Mian Akbar Hussain v. Mst. Aishabai and others PLD 1991 SC 985, (2) Sardar Abdul Majid Khan Lashari v. The Asia African Co. Ltd. 1972 SCMR 236, (3) Muhammad Qasim and others v. Moujuddin and others 1995 SCMR 218, (4) Naeem Finance Ltd. and another v. Bashir Ahmed Rafiqui Administrator Muslim Insurance Company Ltd. and another PLD 1971 SC 8, (5) Ideal Life Insurance Company Ltd. u. Haji Usman and 2 other 1982 CLC 2191, (6) Gojandhar Singh v. Kishen Jiwan Lai and others AIR 1917 All. 163, (7) Ram Nath u. Deokinandan Krishna and others AIR (34) 1947 All. 83, (8) Af.AL.Af. Chellyar Firm v. Maung Po Hmyin and others AIR 1935 Rangoon 239, (9) Balaram Naik v. Kanhai Bharan Mahapatra AIR 1916 Pat. 282(1), (10) Datto Atmaram Hasabnis v. Shankar Dattatraya 38 ILR Bom. 32, (11) Kaza Ramakotayya and others v. Nimmagadd xSitharamaswami and others AIR (33) 1946 Mad. 381, Keeping in view the important legal controversy of the matter, Court with the consent of the learned counsel appointed Mr. Makhdoom Ali Khan, Advocate as amicus curia who contended that the application filed by the appellant before the learned Single Judge for passing final decree was barred by Article 181 of the Limitation Act and learned amicus curia supports the order of the learned Single Judge and states at the bar that the present appeal is without merits and substance. Mr. Makhdoom Ali Khan, learned counsel relied upon the following authorities:-

(1) Fitzbolmes v. Bank of Upper India AIR 1927 PC 25, (2) Madan Teatres Ltd. v. Dinshaw & Co. Bankers Ltd. ThroughOfficial Liquidator AIR (32) 1945 PC 15, (3) Ram Nath v. Deokinandan Krishan AIR (34) 1947 All. 83.

It would be in all fairness, just and equitable to refer the preliminary decree passed by the learned Single Judge on 29.1.1984 relevant portion is as under:-

"It is hereby declared that the amount due on 30.6.1983 is a sum of Rs. 11,22,262.13 (Rupees eleven lacs twenty-two thousands two hundred sixty-two and thirteen paisas only) with simple interest at the rate of 14% per annum from 30.6.1983 till payment and cost of the suit.

That the defendants do pay into Court with six months or any later date upto which the time for payment may be extended by the Court, the said sum of Rs. 11,22,262.13 with simple interest at 14% per annum on the decretal amount from 30.6.1983 till payment and cost of the suit as taxed and shown below."

It would be pertinent to refer Order 34, sub-rules (1) and (5), C.P.C. which is as follows:--

"34(1). Parties to suits for foreclosure, and redemption.~Sub]ect, to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.

34(5) Final decree in suit for sale. -Where on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-Rule (3) of this Rule, the defendant makes payment into Court of all amounts due from him under sub-Rule (1) of Rule 4, the Court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, and or."

According to the First Schedule, Article 181 of the Limtiation Act provides which is as follows:--

"Article 181 Applications for Three years When the right to which no period of limitation apply accrues, is provided else-where in this schedule or by Section 48 of the Code of Civil Procedure, 1908."

In view of the preliminary decree passed by the learned Single Judge and its relevant portions referred to and reproduced hereinabove and the provisions of Order 34(1) and (5), C.P.C. and Article 181 of the Limitation Act we would like to discuss the case-law referred to by the learned counsel for the parties.

(1) State Life Insurance v. S.A Aziz Rizvi PLD 1986 Kar. 79. In this matter execution application was filed by the applicant/decree-holder against S.A. Aziz Rizvi, judgment-debtor for execution of the final decree, dated 10.1.1982 passed by a learned Single Judge of this Court. Office raised objections as to the maintainability of this execution application for want of jurisdiction and the learned Single Bench of this Court considering all the aspects was pleased to hold that execution application was maintainable which was subsequently entertained.

With due respect to the authority, in this matter final decree has not been framed by the Court and the application for passing of final decree was rejected by the learned Judge holding the same to be time-barred. Whereas in the case relied upon by the learned counsel for the appellant matter was submitted in the Court for execution of a final decree. Under the circumstances this case has no bearing to the present case and is not helpful to the case of the appellant.

The case of Ramanathan Chetty v. Alagappa Chetty and others AIR 1930 Mad. 528 a final decree in a suit dissolving partnership was passed on 14th January, 1915, it contained certain directions of interlocutory nature. An application to pass a final decree persuant to such direction was granted holding that the direction in the decree being of an interlocutory nature, the suit is still pending. Curgenven, took the view that no provision of Limitation Act was applicable to application in a pending suit and Article 181 was not attracted. In the main case relied upon by Mr. Akhtar i.e.Muchi Dola Behra and others v. Jujisti Janni and others AIR 1935 Mad. 716 it seems that while sitting in a Division Bench after few years even the same learned Judge did not appear to adhere to the same view. A preliminary decree in a mortgage suit was passed on 16th March, 1925 and time for redemption was allowed up to 16th June. The debt was not redeemed and a first application for passing a final decree was made on 10th February, 1927 but was dismissed on 3rd October, as the plaintiff/decree-holder did not take certain steps regarding issue of notice. The second application was made on 6th July, 1928 and was found to be late by 4 days. The application was dismissed as time-barred. The correctness of the finding of the trial Court as to the bar of limitation was not challenged and it was argued that the earlier application, dated 10.2.1927 ought to he treated as pending and the second application only a continuation of the first one. It was contended that most of the defendants had been certified that notices pursuant to the Court order and only a few of them remained unserved and such notice was not mandatory it was held that the applicant for final decree as against those judgment-debtors which have been served was not justified, however, the judgment of the trial Court was maintained in respect of those regarding whom the requisite steps had been taken. The above judgment, it may be observed proceeds on a different legal principles and does not help the appellant. On the other hand it tends to show that even the same learned Judge did not adhere to his earlier view, because if Article 181 was not applicable, the second application could not be dismissed at all.

Mst. Zubeda Bano v. S.M. Anwar Sethi and another PLD 1982 Kar. 216. In this matter a learned Division Bench consisting of Ajmal Mian and G.M. Korejo, JJ., (as their Lordships then were) after considering the provision of Order XXXTV, Rule 5, C.P.C. and Transfer of Property Act, Section 69 observed as follows: ~

"It may be noticed that under the above provision a defendant may approach the Court either (a) on or before the day fixed by the Court or (b) at any time before the confirmation of a sale made in pursuance of a final decree. In our view the phrase 'at any time' is of wide import as to include even a case in which no sale in fact has taken place in furtherance of a final decree. The emphasis is that a defendant if he wishes to apply to the Court should do so before the Court confirms the sale of the mortgaged property. If the Court has the power to pass an order after the sale before its confirmation, in our view, the Court has also the power to pass an order in a case, in which no sale has taken place."

With due respect to the authority in our humble opinion this authority is not relevant to the facts of the present appeal inasmuch as in this case appellants through criminal negligence have deliberately avoided to file the application for passing of the final decree within the time stipulated by the provisions of the statute. The application was filed after expiry of the period of three years which was rejected and as such final decree could not be passed. Therefore, this authority in our humble opinion is not helpful to the case of the appellants.

We would like to discuss the case-law referred to by Mr. Anwar Hussain, learned counsel for the respondents and learned amicus curiae.

Mian Akbar Hussain v. Mst. Aishabai and others PLD 1991 SC 985. Their Lordships of the Supreme Court in this matter have held that in execution of judgment and decree passed by the High Court of Sindh in civil suits provisions of Article 183, Limitation Act would not be applicable but Article 181 or 182 would apply. In this matter their Lordships of the Supreme Court after considering the provisions of Section 2(4) of the C.P.C. read with Article 181 of the Limitation Act, observed that execution of decree laid down by the Article 181 of the Limitation Act, is residuary Article and it applies to all matters in respect of which no period of limitation is provided.

Muhammad Qasim and others v. Moujuddin and others 1995 SCMR 218. Their Lordships of the Supreme Court after discussing the Order XII, Rules 17 and 19 of the C.P.C. and Articles 181 and 168 of the Limitation Act observed that order of dismissal of appeal for non-prosecution, dated 26.8.1989 was void and nullity, the appropriate Article applicable was Article 181 of the First Schedule to the Limitation Act and not Article 168 thereof.

Finance Ltd. and another v. Bashir Ahmad Rafiqui, Administrator. Muslim Insurance Company Ltd. and another PLD 1971 SC 8. In this case it is held that Article 181 of the Limitation Act is not appli­cable to the applications other than those falling under Civil Procedure Code.

Ideal Life Insurant Company Ltd. v. Hqji Usman and 2 others 1982 CLC 2191. In this case it has been held that the plaintiff did not apply for final decree under Order XXXIV, Rule 5, C.P.C. and after 9 years the defendants filed the application. The contention of the defendants was that plaintiffs have not applied for passing of a final decree and as after expiry of 8 years an application cannot be made. The preliminary decree is only a dead paper and could not be executed.

Gajadhar Singh v. Kishen Jiwan Lai and others AIR 1917 All. 163. In this matter it was held that an application for a decree absolute under Order 34, Rule 5, Civil Procedure Code is an application in the suit for a final decree and not an application for execution and is governed by Article 181 Schedule 1, Limitation Act.

Ram Nath v. Deokinandan Krishna and others AIR (34) 1947 All. 83. In this case it has been held that application, dated 24.1.1912 for preparation of the final decree in accordance with the preliminary decree of the Appellate Court was time-barred under Article 181 of the Limitation Act and no execution of the decree could take place on the application of 9.9.1941 as no final decree in accordance with the preliminary decree of the Appellate Court existed on that date.

M.ALM. Chettyar Firm v. Maung Po Hmyin and others AIR 1935 Rangoon 239. The dictum of this authority is that an application for final decree is not an application to enforce the preliminary decree. It is governed by Article 181 and not by Article 183.

Balaram Naik v. Kanhai Bharan Mahapatra AIR 1916 Pat. 282. In this matter is was held that application for final decree for foreclosure or sale is governed by Limitation Act under Article 181.Datto Atmaram Hasabanis v. Shankar Dattatraya 38 ILR Bom. 32. In this case it was held that an application for a decree absolute for sale of a mortgage charge under the terms of a consent decree, which provided for satisfaction of the decretal debt by installments, is an application under the Civil Procedure Code, Order XXXIV, C.P.C. is governed by Article 181, Schedule 1 of the Limitation Act. Such application must be made within three years from the time the right to apply accrues.

Kaza Ramakotayya and others v. Nimmagadda Sitharamaswami and minor by mother and guardian Mahalakshmamma and others AIR (33) 1946 Mad. 381. In this case it was held that Section 5 of the Limitation Act, has not been made applicable to an application for passing a final decree under Order 34, Rule 5, C.P.C. and, therefore, the Court has no power to condone the delay in filing such an application.

Saiyed Jawad Hussain v. Gendan Singh AIR 1926 PC 93. In this matter dictum laid down is that when an appeal has been preferred against a preliminary decree the time for applying for final decree runs from the date of appellate decree.

Fitahomes and another v. Bank of Upper India Ltd. AIR 1927 PC 25. Their Lordships of the Privy Council considering the decision of the case of Jawad Hussain v. Gendan Singh AIR 1926 PC 93 held that where there has been an appeal from a preliminary mortgage decree under Order 34, Rule 4 sub-rule (1) and the Appellate Court has not extended the time for payment, the period of three years within which under the Indian Limitation Act, 1908 Schedule 1, Article 181 an application for a final decree under Order 34, Rule 5, sub-rule (2) must be made, runs from the date of the decree of the Appellate Court, not from the expiry of the time for payment fixed by the preliminary decree.

Madan Theaters Ltd. v. Dinshaw & Co. Bankers Ltd. AIR (32) 1945 P.C. 15. In this case it was held that Order 21, Rule 2 only applies in execution and since execution does not begin until after a final order for sale has been passed the rule has no application when the question is whether or not a final decree for sale should be passed.

Ram Nath v. Deokinandan Krishna and others AIR (34) 1947 All. 83. In this matter it has been held that it is obvious that the application, dated 24.1.1942 for the preparation of the final decree in accordance with the preliminary decree prepared by the Court was beyond three years, clearly barred by Article 181, Limitation Act.

We have gone through the material placed with the case and have perused the order of the learned Single Judge rejecting the application under Order 37, Rule 3, C.P.C. filed by defendants vide order, dated 29.1.1984 in . pursuance thereof preliminary decree was passed on 29.1.1984 referred to " and reproduced hereinabove. According to the provisions of Article 181 of the Limitation Act the appellants were supposed to apply for final decree within a period of three years which should have been filed before 29.11.1987. The unfortunate aspect of the case is that officers of the appellants did not take proper care for filing the application under Order 34, Role 5< 3), C.P.C. for final decree within the prescribed time with the result tihat their application was rejected by the learned Single Judge vide order, dated 13.1.1991. For such delay no plausible explanation is forthcoming from tie functionaries of the appellants who are public servants and are supposed to look after and safeguard the interest of the Institution for which they are •erring, for which they are getting salaries and other benefits.

The contention of Mr. A.R. Akhtar, learned counsel that respondents made fresh promises to pay the dues of appellants and kept tbein on false hopes and subsequently made the payments of Rs. 40,000 as detaiied below:

On 16.4.1989 respondents paid Rs. 10,000 on 20.5.1989 paid Rs. 20,000 and on 30.8.1989 paid Rs. 10,000 but all these payments were made after expiry of a period of three years from passing of the preliminary decree wtacii was prepared on 29.1.1984 granting the defendants six months time to make the payment of decretal amount. The period of six months expired on 29.7.1984, under the circumstances application for final decree in any should have been filed before 29.7.1987 whereas the application was fled after the expiry period of three years and even payments mentioned were made after the expiry period of three years. The letter or if any written or made by the respondents in any written or made Iby tike respondents in any case with after the expiry of the period of three years. The contention of Mr. A.R. Akhtar, learned counsel is that respondents acknowledged the liability but record shows that acknowledgment was made after the expiry of the limitation. The appellants through tills appeal want to get the relief for final decree which under the draanstanices is clearly barred by the provisions of the Limitation Act.

The case-law referred to and discussed hereinabove in our humble opinion is not relevant and helpful to the case of the appellants whereas the case-law referred to and relied upon by the learned counsel for the respondents and the learned amicus curia is relevant, applicable and helpful to the case of the respondents. The very unfortunate aspect of the matter is that appellant/bank has been deprived of heavy amount alongwith interest for which the application of the respondents under Order 37, Rule 3 was dismissed and in pursuance thereof preliminary decree was prepared for which specific time was provided but the concerned officers of the appellant with their criminal negligence did not take proper efforts to get the final decree from the Court and consumed the time so that bank may lose their dues, proper and legal amount which was to be paid by the respondents for which they have mortgaged their valuable properties with the result that final decree could not be prepared and the respondents got themselves scot free from making the due payment to the appellant.

We are mindful of this fact but keeping in view the provisions of the Civil Procedure Code, Limitation Act and authorities of Indian Jurisdiction and our own High Court and the Supreme Court and the Privy Council we have no option except to hold that appeal is devoid of merits and substance which accordingly is hereby dismissed with no orders as to costs.

Before parting with this judgment we would like to express/desire that copy of this judgment may be sent to the President, Habib Bank Ltd. so that proper inquiry may be held and the concerned officers responsible for this criminal negligence may be taken to task and may be properly punished.

We are very thankful to the assistance rendered by the learned counsel for the parties and especially Mr. Makhdoom AU Khan amicus curiae. Without their able assistance we would not have been able to reach to this present conclusion.

On 13.3.1998 appeal was dismissed by short order and above are the reasons for the same.

(T.A.F.)

Appeal dismissed.

PLJ 1999 Karachi 550 (DB)

Present: rana bhagwan das and ghulam nabi soomro, JJ.

ABDUL WAHEED-Petitioner

versus

SETTLEMENT DEPARTMENT through SETTLEMENT COMMISSIONER, SINDH and 3 others-Respondents

Constitutional Petitions Nos. D-294 of 1984 and D-640 of 1985, decided on 21.10.1998.

(i) Evacuee Trust Property (Management and Disposal) Act, 1975 (XIII of 1975)--

—-Ss. 14, 8, 9 & 10-Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 4 & 10--Evacuee trust property-Transfer--Contention that Evacuee Trust Property attached to religious institution which could not be transferred by Settlement Authorities as evacuee property-Held : Chairman of Board before declaring property as Evacuee Trust Property being attached t o a religious institution, took into consideration Trust Deed executed in respect of property more than sixty years ago and other relevant documents—Chairman of the Board after hearing Departmental Representatives of Settlement Authorities as well as transferees arrived at the conclusion-Such conclusion, based on evidence on record, was immune from being challenged before Civil Court under S. 14 of Evacuee Trust Property (Management and Disposal) Act, 1975. [Pp. 554 & 555] A, B & D

Mr. Farman A. Hashmi, Advocate for Petitioners. Mr. Munib Ahmad Khan, Addl. A.G. for Respondent No. 1. Mr. M. G. Dastgir, Advocate for Respondents Nos. 2 and 3. Date of hearing: 21.10.1998.

judgment

Rana Bhagwan Das, J.--This judgment shall dispose of the aforesaid two petitions as common questions of fact and law are involved in both of them.

1. Property No. N.P.T. 2/67, Custodian No. 1-C-148/G-1, situated at Bhagnari Street, Joriya Bazar, Karachi and Property No. N.P. 13/55-1. C-681, situated in the same street were transferred to each of the petitioners respectively by Settlement Authorities in open auction sometimes in August, 19S6 and after payment of consideration in cash by both the petitioners P.T.Ds. were issued in their favour. P.T.D. in favour of petitioner Abdul Waheed was issued on or about 6.11.1970 whereas three P.T.Ds. were issued in favour of Abdul Salam sometimes in February, 1972. In C.P. No. 294 of 1984, an order, dated 29.1.1975 passed by Chairman, Evacuee Trust Property Board, Lahore, declaring the property as evacuee trust property was impugned by the petitioner in C.P.S. 25 of 1978 which was allowed by late Abdul Hayee Qureshi, J., (as he then was) vide judgment, dated 21.10.1978 for the sole reason that the impugned order was passed without notice to the petitioner and without affording an opportunity of hearing to him. By the said judgment, the case was remanded to Respondent No. 3 who upon hearing the parties and taking into consideration relevant evidence produced before him by order, dated 17.4.1983 declared the property as evacuee trust property being attached to religious institution. By the same order, he cancelled the P.T.D. issued in favour of the petitioner by the settlement authorities taking the view that such transfer could not be validated under the provisions of Evacuee Trust Property (Management and Disposal) Act, XIII of 1975. This order was impugned in revision before the Federal Government which was dismissed vide order, dated 30.1.1984.

2. In C.P. No. 640 of 1985, order declaring the property as evacuee trust property was passed by the Chairman, Evacuee Trust Property Board on 22.8.1984 which was impugned in revision petition before the Federal Government which came to be dismissed by order, dated 1.9.1985. It is in these circumstances that the abovesaid two petitions were brought before this Court, impugning the orders passed in original as well as revision jurisdiction as void, illegal and without lawful authority.

3. Mr. Farman A. Hashmi, learned counsel for the petitioner contended that city survey extract relied upon in C.P. No. 294 of 1984 showed that the property was inherited by succession, therefore, it could not be treated as property attached to a charitable and religious trust. His ground 'of attack in the connected petition is that the trust deed duly executed and registered sometimes in 1936 was not executed by the owners of the properties but by some trustees on behalf of the deceased. With regard to the Gazette notification, dated 15.7.1963 notifying various properties as evacuee trust property inclusive of the properties claimed by the petitioners and published in the extraordinary Gazette of Pakistan, dated 9.8.1963, learned counsel suggested that it could be ignored for the reason that the same was based on entries in the relevant records which by themselves were neither correct nor sacrosanct.

4. On the other hand, learned counsel for the contesting respondents urged that both the authorities acting under the provisions of Sections 8 and 10(2) of Act, 1975 acted on proper and legal assessment of evidence produced before them and they were competent to pass the impugned orders inasmuch as the properties were wrongly and unlawfully disposed of by Settlement Authorities which could not be validated by the respondents.

5. While Mr. Farman A. Hashmi relied upon the cases reported as Abdul Saleem v. Chairman, Evacuee Trust Property Board PLD 1975 Lah. 960, Masoom Mi v. Chairman, E.T.P.B.PLD 1989 Kar. 633, Distric Evacuee Trust Committee, Hyderabad v. Ismail 1990 SCMR 20, Mr. M.G. Dastgir while pointing out that the judgment reported as Abdul Saleem v. Chairman Evacuee Trust Property Board PLD 1975 Lah. 960 was expressly set aside as reported in 1990 SCMR 143, relied upon the cases reported as Evacuee Trust Property Board v. Rahim Khan and 3 others 1989 SCMR 1605, Divisional Evacuee Trust Property Board Committee, Hyderabad v. Deputy Commissioner and another reported in 1989 SCMR 1610, District Evacuee Trust Committee v. Mashraf Khan and 3 others 1989 SCMR 1636, Mst. Mariam Bi and 2 others v. The Islamic Republic of Pakistan PLD 1990 ar. 427, Secretary, District Evacuee Trust Property v. Qazi Habibullah and others PLD 1991 SC 586, Evacuee Trust Property Board v. Mst. Zakia Begum and others 1992 SCMR 1313 and Mst. Mariam Bi v. Islamic Republic of Pakistan and 5 others 1993 SCMR 515.

6. In order to appreciate the points in controversy in a proper perspective, provisions of Sections 8, 9 and 10 of Act XIII of 1975 may be reproduced with advantage.

"8. Declaration of Property as evacuee trust property.--(l) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.

(2) If the decision of the Chairman under sub-section (1) is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property.

(3) If a property is declared to be evacuee trust property under sub­ section (2), the Chairman may pass an order cancelling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof:

Provided that no declaration under sub-section (2) or order under sub-section (3) shall be made or passed in respect of any property without giving the person having interest in that property a reasonable opportunity of being heard.

1. Exemption of property in Trust Pool from process.--No evacuee trust property shall be liable to be proceeded against for any claim in any manner whatsoever in execution of any decree or order or by any other process of Court or other authority.

2. Validation of certain transfers.~(l) An immovable evacuee trust property,--

(a) if situated in a rural area and utilised bona fide under any Act prior to June, 1964, for allotment against the satisfaction of verified claims; and

(b) if situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool.

(2) If a question arises whether a transaction referred to in sub­ section (1) is bona fideor not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.

(3) If it is decided that a transaction referred to in sub-section (1) is not bona fide, the Chairman may pass an order cancelling the allotment of transfer of such property:

Provided that no decision under sub-section (2) or order under sub-section (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard."

1. Before dilating upon the case-law cited by the parties, it would be advantageous to scrutinize the impugned orders assailed in these petitions. A glance at the orders passed by Chairman, Evacuee Trust Property Board leads to a conclusion that before declaring the property as evacuee trust property being attached to a religious institution, he had considered material documentary evidence adduced before him. Such conclusion was arrived at after hearing the departmental representative as well as the petitioner in each of the cases. In C.P. No. 294 of 1984, learned Chairman was impressed by the entries in the property Register Card maintained by City Deputy Collector as well as the Gazette notification published in the Gazette of Pakistan as back as August, 1963. In the second petition, not only there were relevant entries in the Property Register Card maintained by City Deputy Collector, Karachi, the properties were mentioned in the Gazette notification duly published for information of all concerned. He also relied upon a Trust Deed executed by Messrs Mengrajh Kalomal and Golomal Jethanand creating the Trust as desired by the deceased. This Trust Deed mentions the properties involved in C.P. 640 of 1985 and the said deed was registered with ~~~ Sub-Registrar, Karachi, as far back as 23.1.1936, certified copy whereof has been placed on the record by the learned counsel for the petitioner in compliance with an order passed by this Court. The case of transfer of the properties in favour of the petitioners by settlement authorities did not fall within the category of cases where such transfer could be validated by the respondents within the meaning of Section 9 of Act XIII of 1975 inasmuch as not only the properties were disposed of through public auction such transfers were effected much after the crucial date, i.e. 30.6.1968. Learned counsel for the petitioners submitted that the entries in the records maintained by City Deputy Collector reflected the properties having been acquired by succession but we cannot legally enter into disputed questions of fact which have been concluded by concurrent findings of two quasi judicial authorities under the provisions of statute. Such conclusion apparently does not appear to be in conflict with the principles of appreciation of evidence nor in violation of the powers conferred on such authorities. Evidently, the orders are neither perverse nor do they suffer from mis-reading or non-reading of evidence. We are impressed by the Gazette notification published 1963 which was a public notice to all concerned including the t authorities who could not deal with the property under Section 4 i <i3) of the Displaced Persons (Compensation and Rehabilitation) AeJL Moreover, the Trust Deed was executed more than sixty-two years ago. WMc public notice published in the Official Gazette would fall within the purview of a public documents registered Trust Deed being more than 30 rears old can hardly be ignored and excluded from consideration. It is for this circumstance that the respondent authorities were justified in declaring the properties as evacuee trust properties within the meaning of the term. Such declarations are immune from being challenged before a civil Court under Section 14 of Act XIII of 1975, which would, however, not affect the Constitutional jurisdiction of this Court there being no other alternative and efficacious remedy available to the aggrieved parties.

2. Adverting to the case-law cited by the parties in Abdul Saleem's case (supra) Lahore High Court expressed the view that mere fact that revenue or tax leviable on property was exempted from realisation because art of income from property was expended on maintenance of temple would not prove that property was dedicated as trust. It was observed that since property was acquired by a Guru from his own private sources and inherited by his Chella there would be no presumption that property was religious trust property. This judgment was impugned before the Supreme Court and expressly set aside in 1990 SCMR 143. Masoom All's case decided by a Division Bench of this Court as well as the District Evacuee Trust Committee's case decided by Supreme Court are completely distinguishable on facts and not attracted in the case in hand, therefore, reliance on such castes is completely ill-advised.

3. As to the legal effect, impact and evidentiary value of the entries showing religious endowment the question was examined at length in the cases reported as Evacuee Trust Property Board v. Rahim Khan, Divisional Eiocuee Trust Property Committee v. Deputy Commissioner and District Evacuee Trust Committee v. Mashraf Khan by a Full Bench of Supreme Coon of Pakistan and the judgments were authored by Zafar Hussain Mirza, J. (as his Lordship then was). We may not be in a position to highlight the legal position in a better manner then the view expressed in the aforesaid judgments reported in 1989 SCMR 1605, 1010 and 1636 respectively. The relevant extract may be reproduced which reads as under­ lie that as it may, there is no evidence produced by the respondents to show that the property was entered in the name of a private owner. The learned Single Judge of the High Court, in his order, did not doubt that the property was shown in the official record as a religious endowment for the purpose of 'tikano' but the main reason that prevailed with the learned Single Judge was that this evidence in the form of entries in the Property Register maintained by the City Survey D partment, Hyderabad was insufficient to sustain a finding that the property was attached to evacuee religious charitable trust. In this behalf we may refer to Section 135-J of the Sindh Land Revenue Code, which was the law applicable at the time of the preparation of the record and Section 52 of the West Pakistan Land Revenue Act which is applicable now, under which a presumption of truth is attached to such entries in the official record. The obvious effect of such statutory provision is that the contents of the entries shall be presumed to be correct until the contrary is proved. The effect of production of this evidence, therefore, is that the onus of proof shifts to the respondents to prove the contrary, namely, that the property was not religious trust property. We are unable, therefore, to subscribe to the view taken by the learned Single Judge, having regard to the fact that no evidence whatsoever was produced by the respondents, that this evidence was insufficient to hold the property as attached to a religiouscharitable trust. It is well-settled that in civil proceedings the rule of decision is that preponderance of evidence decides the issue."

4. In Mariam Bi's case a Full Bench of this Court held that 'where a transferee of an urban evacuee trust property, which was attached to a charitable, religious or educational trust or institution, seeks validation of its ransfer in his favour in terms of Section 10 of Evacuee Trust Property (Management and Disposal) Act, 1975, he has to show (i) that property was utilised bona fide and was transferred against the satisfaction of verified claim, and (ii) that in respect of such property a Permanent Transfer Deed has been issued in his favour prior to June, 1968. If any of these conditions «^~Jare missing the transfer of such property cannot be validated under Section 10, Evacuee Trust Property (Management and Disposal) Act, 1975.

5. In Secretary, D.E.T.P.'s case, it was held by the Supreme Court as under:--

"If sufficient prima facie evidence was adduced for showing that the property in question was attached to a religious or charitable institution and this evidence was not displaced by any other reliable evidence, the burden of showing actual creation of trust on the party asserting that the property was attached to a religious or charitable trust was not essential and the matter could be decided on the rule of preponderance of evidence."

1. In Evacuee Trust Property Board vs. Mst. Zakia Begum,it was observed that "jurisdiction to determine, whether transfer of property in question, claimed to be evacuee trust property was bona fide or not, would be that of Chairman, Evacuee Trust Board whose decision would be final and could not be called in question in any Court.

2. Judgment reported in 1993 SCMR 515 upheld the judgment delivered by Full Bench of Sindh High Court in Mariam Bi's case.

i For the aforesaid facts and reasons and in view of the precedent dowra by the superior Courts, we find no merit in these petitions fail and are hereby dismissed.

(TJLFJ Petitions dismissed.

PLJ 1999 Karachi 557 (DB)

Present: alj muhammad baloch and ikram ahmed ansari, JJ.

PAKISTAN INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS ASSOCIATION (PIPRA)-Petitioner

versus

GOVERNMENT OF SINDH through DIRECTORATE OF

INDUSTRIES (REGISTRATION), KARACHI

and another-Respondents

Goostirotional Petition No. D-917 of 1995, decided on 24.9.1998. i

Registration Act, 1860 (XXI ofI860)--

-S. 20—Constitutional petition-Petitioners are lawyers and legal pmoJaoiiers, mainly practising on the side of Trade Marks, Patents, Industrial Designs, Trade Names and Copyright Laws-They formed an uion and applied for registration-Object of Association was to hold uac organise meetings, seminars, conferences, workshops etc. in the field rfindBtso-ial and intellectual property-Authorities refused registration of pesaQomers— Held: Since aims and objects of Association fell within purview of S. 20 of Societies Registration Act, 1860, Authorities were Seg&By obliged to issue certificate of registration to petitioners.

[P. 559 & 560] A & B

Mrs. .Vci'i/i S. Merchant, Advocate for Petitioner.

Mr. Muhammad Salim Sammo, Asstt. A.G. for Respondents.

Dale of hearing: 24.9.1998.

judgment

Ali Muhammad Baloch, J.--This petition has been filed by the Lawyers and Practitioners who claimed to be practising mainly on the side of Trade Marks. Patents, Industrial designs, Trade Names and Copyrights. They have formed an association and they want its registration under Section 20 of the Societies Registration Act, 1860 in order to give it a legal protection.

1. On 24.10.1994, the petitioners had moved an application alongwith the Memorandum of Association and other necessary documents before the Provincial Assistant Registrar, Joint Stock Companies, Government of Sindh. However, the Assistant Registrar turned down the request of the petitioner on 30.11.1994 informing them that the aims and objects of the Association did not fall under Section 20 of the Societies Registration Act, 1860. The petitioner explained their position to the Assistant Registrar by sending a detailed letter, dated 11.1.1995 but again their request was rejected on 19.3.1995. The petitioners thereafter had filed the present petition as they considered that action of the respondents in refusing the registration of the petitioners Association was without lawful authority against the provisions of law, arbitrary, mala fide, discriminatory and in excess of their jurisdiction and power. The following prayers were made in the petition:--

"(a) Declare that the action of the respondents in refusing the registration of the petitioner's Association is without lawful authority, and has no legal effect.

(b) Declare the action of the respondents is arbitrary, mala fide, discriminatory and is in excess of jurisdiction and power.

(c) Direct the respondents to forthwith register the petitioner's Association under the Societies Registration Act, 1860;

(d) Any other relief which this Honourable Court deems fit.

(e) Grant cost of the petition."

1. The petition was admitted to regular hearing on 30th May, 1995. Today, the learned counsel for the parties argued the matter. The main contention of the learned counsel for the petitioner is that under Section 1 of the Societies Registration Act, 1860 if 7 or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in Section 20 of the Act, may, by subscribing their names to a memorandum of association, and filing the same before the Registrar of Joint Stock Companies form themselves into a society under this Act. Section 20 of the Societies Registration Act further provides the subjects for which if a society was formed, may be registered by the respondents. For the convenience sake Section 20 of the Act is reproduced below:-

"The following Societies may be registered under this Act.--Charitable societies, (xxx) Societies established for the promotion of science, literature or the fine arts for instruction, the diffusion of useful knowledge, the (diffusion of political education) the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public or public museums and galleries of painting and other works of art, collection of natural history, mechanical and philosophical inventions, instructions or design."

1. The copy of the Memorandum of Association filed by the with the Respondent No. 2 has also been placed on record.

Number of persons, whose names are mentioned in the Memorandum to be tie associates of the Association, is 7, all of whom have signed the Memorandum, thus, fulfilling the necessary conditions as provided in Section 1 of the Act.

1. The aims and objects of the Association have also been specifically described in the Memorandum of Association. One of the objects of the Association serialised as (d) is as under:--

"(d) To provide latest information, research and developments in the field of Patents, Designs, Trade Marks and Copy Rights to the Members and public and for this purpose to hold and organize meetings, seminars, conferences, workshops etc. either alone or in collaboration with foreign/local or Government organization in the field of Industrial and Intellectual Property."

1. On of the subjects mentioned in Section 20 of the Act is: "societies established for the promotion of science, literature or the fine arts, for instruction, the diffusion of useful knowledge, ..."

2. The object of the Association provided by Section 20 as above does not appear to us to be in much conflict with the object of this Association enlisted at (d) reproduced above. Holding and organizing of meetings, seminars, conferences, workshops, etc. even if in the field of Industrial and Intellectual Property is not different from the promotion of literature of science or arts. The respondents have not specifically controverted this aspect of the case.

3. Many other aims and objects mentioned by the petitioners in their memorandum of association are also covered by the subjects mentioned in Section 20 of the Act. Learned Assistant Advocate-General appearing on behalf of the respondents wisely therefore, did not oppose the granting of this petition as he agreed with the views of the petitioners.

4. Not only this, but during the course of arguments the learned counsel for the petitioner placed before us two certificates showing that the Respondent No. 2 had registered two different associations, whose aims and objects were quite similar to the aims and objects of the present petitioners. This exercise was made to prove that the action of the Respondent No. 2 was discriminatory towards the petitioner and, therefore, without lawful authority and against the provisions of Constitution as well as law. Certificate of Registration of the said two societies were seen by the learned Assistant Advocate-General and after going through the contents of such certificates, which also showed the aims and objects of the Association provided with the Registration Certificate, conceded that it was a case of discrimination and further candidly conceded that the petitioner had a good case for registration of their association under the Societies Act. The examples of the two Associations earlier registered by the Respondent No. 2 are (1) Patent and Trade Marks Attorney's Association, and (2) The Pakistan Trade Marks and Patents Association.

5. Consequently, we have come to the conclusion that the petitioners have fulfilled the conditions provided by Section 20 of the Societies Registration Act, 1860 and the action of the Respondent No. 2 in roviding registration to other similar Associations and refusing the petitioners, is a discrimination and hence, a violation of the Constitution. The action of the respondents is, therefore, held to be arbitrary and discriminatory and, consequently, without lawful authority.

6. As a result, this Constitutional petition is allowed and the Respondent No. 2 is directed to issue the Certificate of Registration on performance of the usual formalities under the law. The necessary certificate be issued within a period of one month from the date of passing of this order. The learned Assistant Advocate-General, who is present, undertakes to inform the Respondents Nos. 1 and 2 of the passing of this order. (T.A.F.)

Petition accepted

PLJ 1999 Karachi 560

Present: rasheed A. razvi, J.

SULTANA BIBI and another-Plaintiffs

versus

KARACHI ELECTRIC SUPPLY CORPORATION through CHAIRMAN/MANAGING DIRECTOR and another-Respondents

Suit No. 1062 of 1991, decided on 13.10.1998.

Fatal Accidents Act, 1855 (XIII of 1855)--

—-S. 1-Worker in a mill-Died due to electrocution-Age 30 years-Claim of damages of Rs. 25,00,000/- Suit of plaintiffs decreed in sum of Rs. 14,40,000/- with 14% interest-Death was direct cause of electrocution, burden shifted upon Electric Company to prove that all care, caution and precautionary measures were taken to possibly avoid happening of any breaking of overhead wires-Defendant company had failed to shift that burden and it had fully been proved that deceased died due to negligence and wrongful acts of Electric Company and that it was not an act of God for which any concession could be extended to Electric Company-Court taking into consideration earning capacity of deceased and his age determined compensation which was to be awarded to legal heirs of deceased. [Pp. 565 & 566] A & B

Mr. Nasir Maqsood, Advocate for Plaintiff.

Mr. Abdul Saeed Khan Ghori and A.R. Siddiqui, (absent) for Defendants.

Date of hearing: 13.10.1998.

judgment

This is a suit for recovery of Rs. 25.: 00,000 (Rupees twenty-five lacs only) filed under the Fatal Accidents Act, 1855, by the widow as Plaintiff No. 1 and the mother as Plaintiff No. 2 of deceased Taj Muhammad who died due to electrocution on 25.4.1991.

1. Plaintiffs have filed this suit claiming monetary compensation for themselves as well as for the benefit of three minors, namely, Afzal, Saima and Amjad. The last son was born on 22.8.1991, four months after the death of the deceased. It is claimed in the plaint that late Taj Muhammad was of 30 years of age with good health and was working as a tailor/dyeing operator in Libert}' Silk Mills, S.I.T.E., Karachi and was earning a sum of Rs. 1,700 per month. It is also claimed in the plaint that he used to work overtime in the said in ill as well as doing tailoring job as part time and used to earn additional sum of Rs. 1,500 to 1800 per month; that he was a man of simple habits and used to care for his mother and other family members; that due to his habits and health, it was expected that he could have lived upto the age of SO years; that he died due to coming in contact with a live electricity wire which fell down on the abovementioned date resulting in the instant death; that the death was direct result of negligence, wrongful acts, carelessness and default in the performance of the duties on the part of Defendant No. 1. In such background, the plaintiffs have claimed a sum of Rs. 25 lacs as monetary compensation for the loss they have suffered as a result of death of their bread earner. They have also claimed interest at 15% per annum from the date of suit till realisation of the decretal amount with cost of the suit.

2. In its written statement, the Defendant No. 1, Karachi Electric Supply Corporation (K.E.S.C.) has denied that deceased Taj Muhammad died due to electric shock or due to negligence on the part of K.E.S.C. It was admitted that the complaint for broken wire was received by the Defendant No. 1 on telephone on 25.4.1991 at 8.30 a.m. through Deputy Commissioner, Karachi West and the wires were removed by 9.00 a.m. Reliance was placed on a police report. Defendant No. 2, National Insurance Corporation (N.I.C.) has also filed its written statement denying the averments of the plaint. However, it was admitted that it was a case of pure accident and an act of God. Both the defendants have prayed for dismissal of the suit with cost.

3. As a result of the abovementioned pleadings and by consent of the parties, following issues were framed by this Court on 3.5.1992:--

"(1) Whether the deceased Taj Muhammad died due to negligence of the Defendant No. 1?

(2) Whether the death of the deceased was the result of an accident or it was an act of God9

(3) Whether the defendants are liable jointly and severally to pay the damages/compensation to the plaintiffs and other statutory beneficiaries'7 If so, to what extent?

(4) Whether the plaintiffs and other statutory beneficiaries are entitled to cost and interest/profit at P.L.S. or mark up rate?"

4 1 have heard Mr Nasir Maqsood, Advocate for plaintiffs and Mr. Abdul Saeed Khan Ghori, Advocate for Defendant No. 1 It was argued by Mr. Nasir Maqsood that the plaintiffs have successful proved unnatural death of deceased Taj Muhammad due to electrocution and that the burden was shifted upon the Defendant No. 1 to show that all due care and caution was adopted by them in order to avoid such accident. He has referred to several portions of evidence and documents brought on record by the plaintiffs' witnesses namely. Sultana Bibi and Nazir Ahmed. On the other hand, Mr Abdul Saeed Khan Ghori has prayed for dismissal of suit while arguing that this Court should also take notice of the difficulties being faced by K.E.S.C., the technical aspects involved in maintaining the entire electric system of the city of Karachi comprising of more than 10 million people. In alternate, he has also argued that the claim of the plaintiffs is imaginary. Mr. Nasir Maqsood has relied upon the following cases:--

"i) Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Ltd. PLD 1959 (W.P ) Kar. 550, (ii) Mst, Sharifan and 5 others v. The Karachi Electric Supply Corporation Ltd. PLD 1981 Kar. 701, (ill) Barkat Alt Khan and another v. The Karachi Electric Supply Corporation Ltd. and another PLD 1983 Kar. 453, uO S Jqbal Hussain Jaffcry v. The Karachi Electric Supply Company 1994 GLC 1903,"

(v) Karim Bukhsh v. The Karachi Electric Supply Corporation \hrough Managing Director or Director 1997 CLC 507, •vi) .judgment dated 4,12.1997 in Mst. Rafiqan v. The Karachi Electric Supply Corporation Suit No. 1224 of 1989.

My findings on the above issues are as follows:-

Issues Nos. 1 and 2

1. I intend to deal both these issues jointly as they are inter related. ""? prove these issues Plaintiff No. 1, Sultana Bibi has examined herself as well as Nazir Muhammad son of Sain Muhammad who, as claimed, was present on the spot where the tragic accident occurred. According to this witness, he saw at about 8.30 a.m. on 25.4.1991 that the electric wire which was stretched overhead on the main road at Sector 4/F, Orangi Town, near Mominabad Police Station, suddenly fell down on road with a spark while some of the loose part of the said wire was hanging from the electric pole; that two persons, namely, Taj Muhammad and Badruzzaman were passing by the road when they came into contact with the broken wire lying on the road unattended and they immediately fell down. It was further stated by P.W. 2 that many people rushed towards the spot including the said witness and managed to isolate the said two persons from the electric wire with the help of wooden planks. As claimed by this witness, both the persons were taken to Abbasi Shaheed Hospital where they were pronounced dead. P.W. 1 Sultana Bibi has filed the Medical Certificate as Exh. P. 1 which shows that deceased Taj Muhammad died as a result of electric shock and cardiac respiratory failure. Death of deceased Taj Muhammad was not denied either in the cross-examination of P.W. 2 or in the evidence of Muhammad Anwar who deposed on behalf of K.E.S.C. It was argued by Mr. Nasir Maqsood that the evidence of Muhammad Anwar, D.W., is not worth consideration as he has admitted in his cross-examination that he was posted in the Spencer Building, for away from the place of incident and had no connection with the complaint ceD at Mominabad. D.W. 1, Muhammad Anwar, admitted in his cross-examination that both these persons died because of falling of wire which normally happens due to overloading, theft or interference by the consumer.

2. D.W. 1, Anwar Muhammad, who filed his affidavit in evidence Claiming to be fully conversant with the facts of the case did not disclose his designation and nature of job with K.E.S.C. It was not denied by him that deceased Taj Muhammad died as a result of accident due to electrocution. This witness has admitted that there is a test and inspection department in K.E.S.C. whose functions- are to regularly check the wries and to ensure their safety and worthiness. He has also admitted that for such purpose, records are being maintained at the M.N.L. Department of the K.E.S.C. but no such record was produced to show that the wire which broke down on the relevant day was earlier checked by the department responsible for maintaining these wires. The entire evidence of D.W. 1. is silent on this point Mr. Abdul Saeed Khan Ghori, attempted to argue that there was rainy season and it might have broken due to such reason. With regrets, I would like to observe that nowhere in the evidence it was even faintly suggested that there was rains in those days in that part of city. I have gone through the pleadings of both the parties as well as the evidence recorded. Nowhere, it was stated that there were rains.

3. For the first time, in the case of Iftikhar Hussain (supra) monetary compensation was granted under the Fatal Accidents Act, 1855 (hereinafter referred to as the Act, 1855) against the K.E.S.C. due to death of one Ikhlaque Hussain on the evening of 10th March, 1948 as a result of electrocution. It was held by a learned Single Judge of this Court, Qadeeruddin Ahmed, J. (as he then was) in his exhaustive judgment while referring to paras. 956 and 957 Volume XXIII, Halsbury's Law of England (pages 671-674), that in order to determine whether the defendant could prevent the wire from breaking down by taking reasonable precautions, the cause of accident has to be discovered and if it can be discovered and "tells its own story" of negligence on the part of defendant, further evidence is not required from the plaintiff because the inference is already clear. It was further observed that in such cases, the defendant is liable if he does not produce sufficient evidence to counteract the inference. In that case K.E.S. . had taken the plea that the wire which broke down was due to heavy rain in the city of Karachi. Despite that, the suit was decreed and monetary compensation was awarded to the plaintiffs. The case of Mst. Sharifan and BarkatAli Khan (supra) are the decisions of another learned Single Judge of this Court, Nasir Aslam Zahid, J. (as his Lordship then was). In both those cases, death was caused by electrocution as live wires had broken dov/n from the pole and were lying on the road. In the case ofBarket Ali Khan (supra), it was held by this Court, "When an electric wire of K.E.S.C. breaks, it is only K.E.S.C. which can give evidence about the exact reason for the breaking of wire, K.E.S.C. is under an obligation and also owes a duty to the public that electric poles are properly maintained and that requisite protective measures are taken so that in the case of a wire breaking, the electricity in the wire is automatically disconnected and the broken wire does not remain alive". It was further observed as follows:--

"In the absence of any evidence on record that K.E.S.C. had discharged their duty which they owed to the public in this regard, the presumption would be that proper maintenance and care had not been taken ..."

1. The case of S. Iqbal Hussain (supra) was also decided by this Court wherein reference was made to the cases Lochgelly Iron and Coal Col. v. M. Mullen 1933 AC 1, Dnnoghue v. Stevenson 1932 AC 562, Buckland and Guildford Gas Light ami Coke Co. (1949) 1 KB, 410 and Halsbury's Laws of England, K.E.S.C held to be responsible for death of Syed Aley Hussain caused by electrocution U, was held by G.H. Malik, J. (as he then was) that where the wires which cause death were under the sole management and ontrol of the defendant and where it is an admitted position that the wire had broken and was Iviiig on the road when the deceased came into contact with it and was electrocuted and where the cause of such accident is not known, it is to be held that such accident would have not occurred in ordinary course of things if the defendant has used a reasonable care. It was further held that it is for the defendants to show, by evidence, that the accident may have occurred without negligence of their part. The above view was followed by another learned Single Judge of this Court Rana Bhagwan Das, J. in the case of Karim Bukhsh (supra) where following observations were made which are also relevant for determination of these two issues: -

"Be that as it may, it is evident from analysis of the statutory rules that it requires every electricity company to provide guard-wires, for disconnecting electric current from the live wire for safety reason, the result emanating from the accident, suggests that no such wires were provided. It may, therefore, on preponderance of evidence be concluded that the death of the deceased did not take place in the natural course or on account of her negligence but because of neglect, carelessness and improper maintenance of overhead lines and lack of safety measures for protecting the members of public from the perils of snapping of wires."

1. Recently, another learned Single Judge of this Court, Abdul Tnam. J. in the case ofRaftqan v. K.E.S.C. (Suit No. 1224 of 1989), decreed the suit of the plaintiff under the Act, 1855, since the plaintiff lost her husband due to electrocution in the vicinity of New Karachi. It was held, "It is sealed law that in such cases, all that the plaintiff is required to prove is that the deceased died as a result of electrocution by a live electric wire which was broken and was lying unguarded and unattended, death of deceased in such circumstances is apnma facie proof of failure on the part of defendant to take proper care because overhead wires if properly maintained, are not, ordinarily, expected to break down. The burden of proof of lacfr of negligence, in such circumstances, shifts on the defendant to show that it had taken all the precautionary measures to avoid any fatal injury to anyone".

2. In the instant case, the plaintiffs have discharged their burden successfully by proving that deceased Taj Muhammad died due to electrocution on 25.4.1991. No tangible or convincing evidence was led in rebuttal by K.E.S.C. to disprove such accident and to prove that they had taken all reasonable care and caution to avoid such accident. It is settled that where it is proved that the death was a direct cause of electrocution, the burden shifts upon K.E.S.C. to prove that all care, caution and precautionary measures were taken to possibly avoid happening of any breaking of overhead wires. In the abovementioned circumstances of the case, I am inclined to hold that deceased Taj Muhammad died due to negligence and wrongful acts of Defendant No. 1 and that it was not an act of God for which any concession could be extended to K.E.S.C.

Issues Nos. 3 and 4

10-A. Since I have held that the deceased died unnatural death due to negligence and wrongful acts of Defendant No. 1/K.E.S.C., it leads me to hold that Defendant No. 1 is liable to pay damages/monetary compensation to the plaintiffs. The plaintiffs have successfully proved that deceased Taj Muhammad was survived by these two plaintiffs and two minor sons and daughter as mentioned in para. 1 of the plaint being legal representatives entitled for monetary compensation as provided in Section 1 of the Act, 1855. There is no rebuttal to the case of plaintiff on both these points. Now, the question which requires determination is that as to what amount of compensation the legal representatives of deceased Taj Muhammad are entitled to receive from defendants for their wrongful and negligent acts. \"""

1. It has not been denied by the defendants that the deceased was getting a salary of Rs. 1700 per month from the factory and that in addition was earning a further sum of Rs. 1,500 to Rs. 1,800 per month as part- time/overtime In her affidavit in evidence, Mst. Sultana Bibi has claimed the said amount which is same as of her plaint. In such circumstances, it can be safely held that the deceased was earning Rs. 3,000 per month (Rs. 36,000 per annum). Again, it was not denied by the defendant that deceased Taj Muhammad was aged about 30 years and was having good health and simple habits. Therefore, it is expected in such circumstances that he may have lived for next 40 years (total age of 70 years). Reference is made to the case of Afzal Hussain v. K.T.C. PLD 1997 Kar. 253. Therefore, the plaintiff and other legal heirs have been deprived of the income of the deceased for fifty years. To sum up the above discussion, I am inclined to make the followingcalculations:--

(i) Gross income, on the basis of earnings Rs. 14,40,000 at the time of death, at Rs. 3,000 per month i.e. Rs. 36,000 per annum for 40 years:

(ii) Plus 20% expected aggregate and Rs. 2.88.000 increment in overall income for 40 years:

Total: Rs. 17.28.000

(iii) Minus l/6th on the basis of personal Rs. 2.88.000 expenses of the deceased:

Balance Rs. 14.40.000

1. As a result of the above calculations, suit of the plaintiffs is decreed in the sum of Rs. 14,40,000 (Rupees fourteen lacs and forth thousand only) with 14% interest from the date of suit till realisation and cost.J (T.A.F.) Suit decreed.

PLJ 1999 Karachi 567

Present: ikram ahmed ansari, J. Mst. TAJ IKRAM SAMIULLAH-Appellant

versus

GHULAM JILANI DOSSUL-Respondent

First Rent Appeal No. 133 of 1994. decided on 3 9.! 998, (i> Judgment--

-—A judge should be careful enough to see that only those facts are discussed in the judgment which can be found in the evidence on record and he should not have put down in the judgment anything that nuu not traceabie in record [P 572] A

(ii) Sindh Rented Premises Ordinance 1979 (XVII of 1979)--

—S 15''2>—Tenant--Ejectment of—Default -Ground of- Tenant on refusal of rent collector appointed by landlord to receive rent tendered rent through pay orders which remained undelivered due to some reasons-Tenant, deposited rent in Court, but Rent Controller ordered ejectment of tenant on ground of default in payment of rent Payment of rent having been proved through evidence on record, judgment of Rent Controller based on conjectures and surmises was set aside. (P. 572] A

<iii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—Ss. 15<2)ivii) & 20-Civil Procedure Code (V of 1908), O.VI, R. 17-Plea of personal bona fide need was not raised by landlord in his ejectment application, but was raised in affidavit-in-evidence of attorney and witness of landlord-Held : Rent Controller, in circumstances, ought to have refrained from entertaining and deciding question of personal requirement of landlord in his judgment-Provisions of Code of Civil Procedure, 1908 though were not applicable to proceedings for ejectment under Sindh Rented Premises Ordinance, 1979 but principles which were basis and foundation for administration of justice could be invoked to proceedings under Sindh Rented Premises Ordinance, 1979-Landlord who desired to add ground of personal bona fide need could file application in nature of Order VI, R. 17, Civil Procedure Code for amendment of his ejectment application. [Pp. 572 & 573] B & C

Mr Muhammad Raghib Baqi. Advocate for Appellant. Mr Faizuddin, Advocate for Respondent-Date of hearing . 28 4.1998

judgment

Through this appeal the appellant has challenged the judgment, dated 23.1 1994. passed by the learned Ilnd Rent Controller, Karachi (Central), in the proceedings of Rent Case No 94 uf 1991 Ghulam Jilam Dosul v. Mst. Tqj Ikram Samiullah, directing the appellant to hand over vacant possession of the case premises.

The brief facts of the case as submitted by the respondent in the eviction application, dated 7.2.1991 are that, earlier the similar eviction application dated 10.2.1990, being Rent Case No. 104 of 1990 was filed by the respondent against the appellant for her eviction on the ground of default in payment of rent; but in view of the contentions raised in the appellant's written reply dated 14.3.1990 the respondent had filed in those proceedings an application under Section 151 with reference to Order VI, Rule 17, C.P.C. but the said Rent Case No. 104 of 1990 was ultimately withdrawn with the permission of the Court to file fresh eviction application and as such the said Rent Case No. 104 of 1990 was dismissed as withdrawn. The submission of the respondent in the present Rent Case No. 94 of 1991 filed through his attorney, is that he is the exclusive owner of a double-storeyed building comprising of four independent Flats/Apartment, constructed on Plot No. D/48, Block No. "H", North Nazimabad, Karachi and the appellant since 10.6.1991 is his tenant in respect of a flat at the rental of Rs. 1,100 per month exclusive of gas, and electricity consumption charges. It is also stated in the eviction application that the appellant without any lawful excuse did not pay or offer the monthly rent of the said flat with effect from 1.4.1982 to 31.1.1991 and as such has rendered herself liable for eviction from the case premises being a deliberate and chronic defaulter in payment of rent. Hence the eviction of the appellant is sought from the case premises.

The appellant in her written reply, dated 16.3.1991 filed in the matter while raising the objection that the copy of General Power of Attorney granted by the respondent to his attorney, has not been produced in the matter and as such the authority of the Attorney, who filed eviction case on behalf of the respondent was denied. However, relationship of landlord and tenant between the parties and quantum of monthly rent was admitted but it was denied that the appellant either is chronic defaulter or has made herself liable for eviction from the case premises. She stated that rent for the months of December, 1981 and January to March, 1982 was paid and accepted by the respondent, however, when as per usual practice the rent for April, 1982 was sent to the respondent through pay order alongwith covering letter the same was refused to be accepted. Thereafter again rent for the months of April and May, 1982 was sent by pay order but that too was not received by the respondent and the said pay orders were returned to the appellant, even a personal attempt was made by the appellant and her husband to tender the rent to the rent collector of respondent but it was refused to be accepted on the pretext that owner/landlord had gone out of Pakistan. It is submitted that in the said circumstances the appellant was constrained to file Miscellaneous Rent Application No. 2793 of 1982 seeking permission of the Court to deposit rent due from her in favour of the respondent. The appellant even got notice issued to the respondent which was duly replied and copy of such reply alongwith copies of the pay order etc., have been filed in the matter. It is, therefore, submitted that neither the appellant committed default in payment of rent nor she is liable to be evicted from the case premises and that the eviction application be dismissed with direction to the respondent to pay compensation ten times of the monthly rent as contemplated under Section 17 of the Sindh Rented Premises Ordinance, 1979.

In support of his case the respondent's Attorney, Afasaruddin, filed his affidavit-in-evidence on 22.10.1991 reiterating the statement made in the eviction application and denying the adverse remarks of the appellant made in her written statement. In the said affidavit-in-evidence plea of personal requirement of the respondent for the case premises was also raised. The said witness was cross-examined by the learned Advocate for the appellant on 6 2 1992 and 29.2.1992.

In rebuttal the appellant on 20.4.1992 filed her affidavit-in-evidence, reiterating the statements made in her written statement and denying the adverse allegations made in the eviction application and evidence of witness of the respondent. She was cross-examined by the learned Advocate for Respondent on 4.12.1993.

After recording the depositions of the parties and hearing the arguments of learned Advocate of the parties the learned Controller framed the following points for determination :--

(11 Whether the opponent is a chronic defaulter in payment of rent and committed default as alleged by the applicant ?

(2) Whether the applicant requires the premises for his personal use?

(3) What should the order be ?

Mr. Afsaruddin, the attorney and witness of respondent, whose affidavit-in-evidence was filed in the matter, was cross-examined on 6th and 29th February, 1992 when he admitted that earlier respondent had filed against the appellant Rent Case No. 104 of 1994 alleging that the appellant had not paid rent since 1.4.1982 to 31.1.1991 but the said rent case was withdrawn and after five days of said withdrawal present case was filed. He has stated that he is not aware whether the respondent served upon the appellant, the legal notice dated 7.7.1982. He admitted that the appellant is the tenant of respondent since 1981. The witness denied that the appellant had sent Pay Order No. 125307, dated 8.4.1982 of Rs. 1,100. He also denied that the respondent refused or awarded to receive the pay orders, dated 8.4 1982, 45.1982 and 9.6.1982, respectively of Rs 1,100, Rs. 2,200 and of Rs. 3.300 filed with the written statement as Annexures 0/2, 0/5 and 0/8. He denied that in July 1982 the respondent came to know that the appellant is depositing rent in Court in Miscellaneous Rent Case No 2793 of 1982 He denied that the appellant has not, committed default in payment of rent. He also denied that either respondent did not raise the point of fhe personal need in respect of the case premises in the eviction application or that said plea has been raised by him in affidavit-in-evidence for the first time. He denied that the case has been filed against the appellant to harass and victimise her. Further cross of the applicant was reserved as the witness had undertaken to verify from the record if the payment of amount of Rs. 85,800 deposited by the appellant in favour of respondent in Court, therefore, the respondent's witness was recalled and cross-examined by the learned Advocate for the appellant on 29.2.1992, when he deposed that it has been verified that the respondent has withdrawn up to date rent in the sum of Rs. 92,400.

The appellant was cross-examined by learned Advocate for respondent on 4.12.1993 when she stated that she is the tenant of respondent in respect of the case premises, since 1.6.1981 at the monthly rent of Rs. 1,100. She stated that she did not pay rent, to the respondent directly but some today else collected rent from her She stated that at. the time of commencement of tenancy she had paid six months' rent and thereafter she paid monthly rent to the Rent Collector up to March, 1982, whereafter the Rent Collector refused to accept the rent from April 1982, therefore, she remitted rent by way of pay orders and ultimately she started depositing rent in Miscellaneous Rent. Case No. 2793 of 1982. She denied that she had no paid rent with effect from December. 1981 to March, 1992. She admitted to have sent the pay orders for Rs. 1,100, Rs. 2,200 and Rs. 3,300 vide Annexures "0.2", "0.5" and "0.8", with covering letter i.e. Annexures "0.3", "0.6" and "0.9", to her written reply. She denied to have committed default in payment of rent. As to the question of personal requirement of the case premises of the respondent it appears from cross-examination of the appellant that the question was put to her that "on what basis do you say that case premises is not required by the respondent (applicant) and others respondents' answer is that "the house, on ground floor of the building was vacated about one year ago and the applicant has re-let the same; but I do not know the name of the tenant, another flat of the said building on the first floor is lying vacant for the last 3 months. The third flat on first floor is also lying duly locked, as such in view of the abovestated facts I say that the premises in question is not required by the applicant for himself or for others."

After hearing the arguments of learned Advocate for the parties the learned Controller on 23.1.1994 passed the impugned judgment whereby Issues Nos. 1 and 2 have been answered in affirmative and as a result thereof it has been held that the respondent is entitled for vacant possession of portion of the ground floor of Plot hearing No. D/48, Block No. "H", North Nazimabad, Karachi.

While discussing the issues, the learned Controller has ignored the fact that in respondent's legal notice dated 7.7.1982 (Annexure "0.10" to appellant's written reply filed in the Rent Case) it has been stated that "you have failed to pay and/or tender the rent from April, 1982 till today", which proves that appellant had paid rent up to 31.3.1982. The learned Controller has further erred in ignoring the fact that for the relevant period rent was tendered by three pay orders and ultimately the appellant was depositing rent in Miscellaneous Rent Case No. 2793 of 1982 as abundant caution as the rent tendered through pay orders sent under Registered Post A.D. on 9.4.1982, 4.5.1982 and 9.6.1982 were returned undelivered on the pretext that the owner had gone out of Pakistan and as such the appellant had reasons to believe that the respondent with mala fide intention wanted to declare or them her as a defaulter in payment of rent. The learned Controller has further erred to ignore the fact that the opponent had objected to the new plea of personal bona fide requirement having been made for the first time only in the affidavit-in-evidence; which plea was not made in the ejectment application The learned Controller in his impugned judgment has erroneously observed that the appellant remitted rent through ' money order to the respondent which proved that she has not paid the rent through money order to the respondent which proved that she has not paid the rent in time to the applicant (respondent) and to save herself from the ground of default money orders were sent by her and also further to save herself from the said plea she started depositing rent in Court. He has further observed that the default is always a default although it should be a one day default, and that the contention of the opponent (appellant's) counsel that money order was returned refused on the ground that the owner is out of Pakistan is not liable for consideration on the legal plea that 'debtor should find the creditor".

I have carefully perused the pleadings of the parties and their documents and the impugned judgment and cannot resist but to say that the learned Controller has not only misread the pleadings of the parties and misinterpreted their evidence and as such has illegally held that the respondent is entitled for vacant possession of the portion on the ground floor of Plot bearing No. D/48, Block "H", North Nazimabad, Karachi which is the case premises in occupation of the appellant. The learned Controller has grossly erred in observing that the appellant had sent money order to the respondent as the case of the appellant in paragraph No. 9 of her written statement and paragraphs Nos. 9 and 10 of her affidavit-in-evidence is that with effect from 1.4.1982 she tendered rent to the respondent through pay orders sent through Registered A.D. Post, as per Annexures "0/2" to "0/9" filed with her written reply. Again learned Controller has erred in holding that there is no explanation about payment of rent for the months of December, 1981, January, February, 1982 specially when as per Annexure "0/10" filed with the written reply, the learned Advocate for respondent on 7.7.1982 in para. No. 2 of his legal notice has admitted and informed the appellant "that you have failed to pay and/or tender the rent from April, 1982 till today". In the light of the said admission of the respondent there was no occasion or reason for learned Controller to hold that the opponent (appellant) has failed to give any explanation for the alleged non-payment for the said months. With regard to the pu-p-.<ial tequirement of respondent in respect of the case premises the learned Controller failed to appreciate that in the eviction application no such plea was raised and that the said ground was urged and raised only in the affidavit-in-evidence of the respondent's witness, without seeking any amendment in the pleadings. The learned Controller failed to appreciate'that prayer of respondent in the eviction application was for eviction of appellant from the case premises on the ground of default only.

I am of the view that in dealing with the evidence on record the learned Controller should have been careful enough to see that only those facts are discussed in the judgment which can be found in the evidence on record and he should not have put down in the judgment anything that may not be traceable in the record. In the instant case, findings of the learned Controller are based on conjectures and surmises inasmuch as that he deduced that the appellant had failed to prove the sending of the money orders and their refusal by the respondent. In this case it is evident from the evidence of the appellant, that she had nowhere stated to have sent any money order to the respondent. Her case was that she had sent the pay orders with covering letters and they were returned to her with the endorsement on the envelope of covering letter that the owner/landlord has gone abroad As such after having failed to tendei the rent in accordance with the practice she had deposited all the rent due by filing miscellaneous rent case in a competent Court. Again with regard to the alleged personal requirement of the respondent it is evident from the eviction Application itself that such plea was not raised therein and it was only in the affidavit-in-evidence of respondent's attorney and witness that such a claim was made. In such a situation the learned Controller ought to have refrained from entertaining and deciding the question of personal requirement of the respondent in respect of the case premises in his impugned judgement.

I am of the considered opinion that through all provisions of Code of Civil Procedure are not applicable to proceedings in applications for eviction under the Sindh Rented Premises Ordinance, 1979; but the principles which are the basis and foundation for administration of justice can be invoked to proceedings under the said Ordinance and as such had the respondent desired to add the ground of personal requirement to this eviction application then during the pendency of the case an Application in the nature of Order 6, Rule 17 of Civil Procedure Code should have been filed and decided in the matter, which has not been done in the instant case.

The learned Advocate for the appellant in support of his contentions raised in the matter had cited the cases of Allah Ditta v. Mst. Rasoolan Bibi and 7 others 1976 SCMR 459 wherein it has been held that a judgment based on a question of fact which was not pleaded amounts to misreading of law and no relief can be granted in such situation. Another case cited by the learned Advocate for the appellant is the case of Mst Jana Bai v. Mst. Gulshan and another 1984 CLC 1061, wherein it has been held that the decision of the case cannot be based on the ground outside the pleadings of the parties and a decision can be given only on the case pleaded in the nmtuar ft has further been held that in such a situation the only course for a party to the case, seeking a relief not prayed for in the case itself is to seek an amendment of pleadings and without such amendment of the case the Court is not justified in granting a relief on a ground which is not made or pleaded in the plaint or application.

The learned Advocate for the respondent has failed to cite any judgment in support of his case or to rebut the above provisions of law.

In the light of the above discussion, the impugned judgment, dated 23.1.1994 passed by the learned Controller is set aside and this appeal is allowed, but with no order as to costs.

(TAJ1.) Appeal allowed.

PLJ 1999 Karachi 573

Present:rana bhagwan das, J. AJAZ ANIS-Plaintiff

versus

TARIQ ISA and 6 others-Defendants

Suit No. 675 and Civil Misc. App. No. 7119 of 1992, decided on 7.8.1998

Civil Procedure Code, 1908 (V of 1988)--

—O. XXXIX, Rr. 1 & 2--Interim injunction-A discretionary relief-Plaintiff failed to make out a strong, prima facie, case for attachment of amount of commission withheld under an interim attachment order passed by Court nearly sis years back-Plaintiff not only failed to make out a good, prima facie,case for grant of interim injunction, but balance of convenience and essential ingredients relating to irreparable injury was also not in his favour-Interim order issued in favour of plaintiff/petitioner was recalled in circumstances. [Pp. 578 & 579] A & C

Negotiable Instruments Act, 1881 (XXVI of 1881)--

—S. 5—Payment due under a Letter of Credit could not be stopped/restrained unless strong case of fraud, forgery or attaining wrongful advantage was established. [P. 579] B

Mr. Asghar Farooqi, Advocate for Plaintiff.

Mr. Kazim Hassan, Advocate for Defendants Nos. 1, 2 and 4 to 6.

Mr. Kamal Azfar, Advocate for Defendants Nos. 3 and 5.

Mr. Mem Azhar, Advocate for Defendant No. 7.

Date of hearing : 7.8.1998.

order

This is a suit for recovery of Rs. 60,75,405 seeking the following reliefs:-

(a) A money decree of Rs. 60,75,405 on account of plaintiffs share of commission under the contracts between the Mills and Defendant No. 3 or the amount of commission due on the previous contract i.e. Rs. 21,36,645.

(b) Alternatively on account of damages in the sum of Rs. 39,38,760.

(c) An injunction restraining the defendants from seeking the 10 per cent value of the last shipment under the previous contract and from collecting the 40 per cent, of the fixed commission of 2 per cent, under the new contract.

(d) Interest on both the sums aforesaid at the rate of 18 per cent, per annum from the date of suit until realisation.

1. It is the case of the plaintiff that Pakistan Steel Mills Corporation imports huge quantity of iron ore from various countries under contracts between foreign suppliers and the Mills which is mentioned through the supplier's local agents in Karachi, In 1986 Pakistan Steel Mills indicated that they would be inviting tenders for execution of contracts at Karachi between qualified bidders and the Mills for requisite supplies which in the present case was to be supplied by Defendant No. 3 based in London. With regard to the contracted supplies the plaintiff, later Unver Isa predecessor of Defendants Nos. 1 and 2 and the Defendants Nos. 4 and 6 resolved to act for their mutual benefit as agents of Defendant No. 3 for the purpose of securing the contract and monitoring it for successful completion by Defendant No. 3. The said defendant by its letter, dated 22.9.1986 appointed the plaintiff, later Unver Isa, Defendants Nos. 4 and 6 and another person as agents for the secured business with the Mills who were apprised of such appointment. After the process and scrutiny of tenders Pakistan Steel Mills accepted their tenders for the specified supplies for a period of five years commencing from 1987 to August, 1992. it is averred that on account of plaintiffs favourable position viz a viz Pakistan Steel Mills, it was agreed between the constituent parties that he shall receive 20% share out of 2% commission payable by Defendant No. 3 to joint venture with a view to cover the accruing expenses relating to performance of the contract while the balance was divisible among other partners. After the conclusion of contract and execution of formal documents at Karachi constituents opened the letters of credit while Defendant No. 3 commenced supplies to Pakistan Steel Mills. On such supplies, plaintiff claims his title to share of 2% on the commission as agreed by reason of having brought the Defendant No. 3 and Pakistan Steel Mills together for the execution of the contract. It is asserted that plaintiff received only a part of his commission in Pakistan though he was the managing constituent of the joint venture viz. a viz. Defendant No. 3 and the Mills. According to the agency agreement, plaintiff claims to be a partner of Defendant No. 6 and it was given effect to by all concerned. By reason of substantial investment and his contribution in securing the principle contract in favour of Defendant No. 3, he claims that the agency being coupled with interest required irrevocable character. It is averred that towards the conclusion of the contractual period between Defendant No. 3 and the Mills, the predecessor of Defendants Nos. 1 and 2 namely Unver Isa expired at Karachi. However, during his lifetime Uner Isa, Defendants Nos. 4 and 6 and another person made unholy efforts for ousting the plaintiff from the ongoing arrangement after the expiry of the initial contract in August, 1992. when new contract between Defendant No. 3 and Pakistan Steel Mills was anticipated. According to the plaintiff, continuation of agency after expiry of the contractual period was an implied term of the agency notwithstanding the change/alteration in the name of Defendant No. 6 by Defendant No.
2. It is grievance of the plaintiff that in October, 1991 late Unrer Isa in collusion with Defendants Nos. 3 to 6 and another person illegally excluded him from the operative arrangement and sought his substitution by another person, namely, Frooque Rahimtoola. Plaintiff contested this position ensuring the continuity of contract between the paraes so that the agency continued to receive due share of commission and to defray the expenses on account of new contract. Seriously agitating his exciiison from the residuary benefits, plaintiff seeks the deposit in Court by Pakistan Steel mills of the entire residuary amount for the purpose of seeming his claim.

3 In the counter-affidavit, Defendant No. 1 controverted the plaintiff's case that he made any efforts and inputs of substantial money and.- or time to secure the principal contract between Defendant No. 3 and Pakistan Steel Mills Corporation Limited. According to this defendant, Defendant No. 6 i.e Sarela Trading Company was exclusively owned by his late father Qazi Unver Kamal Isa who employed the plaintiff in the said company. He denied the existence of any agency coupled with interest as alleged and insisted that plaintiffs own documents reflected that his position was no better than an employee. Share in commission amount as claimed by the plaintiff is denied with an assertion that his father was compelled to dispense with the services of the plaintiff for reasons of criminal misconduct and embezzlement of funds. All other assertions are denied and specially disputed.

1. In the counter-affidavit by Defendants Nos. 3 and 5, it is urged that Defendant No. 3 was dealing with the contract for supply of iron ore to the Pakistan Steel Mills Corporation and that such imports are no longer handled by the local agents following the change in policy vide telex dated 16.1.1992 from the Pakistan Steel Mills. All allegations and assertions of the plaintiff are controverted with an averment that the Pakistan Steel Mills had awarded the contract not as a result of plaintiffs favourable position but in consequence of commercial and technical deliberations. It is said that both the defendants never treated the plaintiff as the Managing partner constituent but merely an employee of Defendant No. 6 Besides contract with Defendant No. 6 was not renewed due to the death of late Unver Isa and the refusal of Pakistan Steel Mills to appoint local agents.

2. Likewise Defendant No. 4 challenged the maintainability of the suit in view of the provisions contained in Section 69 of the Partnership Act and Order XXX of the Code of Civil Procedure. He has supported and fully corroborated the defence set up by Defendant No. 1. According to this defendant, plaintiff was employed on the basis of 20% share of commission to act as liaison with Pakistan Steel Mills. Copies of various letters exchanged between the plaintiff and late Unver Isa are filed to reiterate that the plaintiff had mis-appropriated certain sums of money whereupon his services were terminated by letter, dated 5th October, 1991.

3. Affidavit in rejoinder was filed reiterating the case set up in the plaint and rebutting the defence set up in the counter-affidavits.

4. At the hearing, learned counsel for the plaintiff referred to copies of various telex massages to reflect the impugned agency agreement between the plaintiff, later Unver Isa, Defendants Nos. 4, 6 and an unknown person for mutual gain for procuring contracts for supply of iron ore as local agents of the foreign exporter. According to the learned counsel, 26 vessels carrying iron ore sailed from Brussels to Pakistan and on each occasion letters of credit were opened equivalent to 105% of value of letter of Credit in respect of each consignment, of which 90% amount was recouped by Defendant No. 3 whereas 15% of the value of the consignment was retained by Pakistan Steel Mills for verification of quality as well as quantity of the consignment. According to learned counsel, commission at the rate of 2% was payable to off shore account controlled exclusively by Defendant No. 4 based at London. Such amounts were to be distributed between the constituents of joint venture i.e. Defendant No. 6 for the initial contract which was wrongfully substituted by Defendant No. 7 after the expiry of initial contractual period. Main thrust of the learned counsel for plaintiff is that as against total receivable share of US dollars 1,94,979 he received, U.S. dollars 1,15,844 on consignments shipped through first twenty vessels lea ing a balance of US dollars 79,135 whereas he did not receive any commission on account of the consignments shipped through last six vessels, hence this claim for a sum of Rs. 21,36,445 and alternately for damages amounting to Rs. 39,38,760.

5. On the aforenoted C.M.A. vide order, dated 22.10.1992 subject to furnishing security in the sum of Rs. 2,00,000 by the plaintiff garnishee i.e. Pakistan Steel Mills were restrained from remitting the amount in question to Defendant No. 3 till a specified date with was extended from time to time. By another order, dated 17.1.1993 passed at the behest of Mr. Kama! Azfar , Advocate for Defendants Nos. 1 and 5 Pakistan steel Mills were directed to deposit U.S. $ 90,000 with the Nazir of the Court being the amount equivalent to 2% value of the consignment.

6. On his part, Mr. Kama! Azfar, learned counsel for Defendants Nos. 3 and 5 with reference to paragraph 5 of the plaint contended that plaintiff claiming to be partner of an unregistered partnership and seeking entitlement to 20% share in the commission, his claim as set up in the plaint would be barred by Section 69 of the Partnership Act, that is any event according to plaintiffs own averments he has been overpaid and lastly, that plaintiff has no privily of contract with Defendant No. 2, therefore, he cannot enforce any right or interest in the property in suit against the said defendant Learned counsel referred to letter, dated 22.9.1986 addressed by Defendants Nos. 2 and 3 to Defendant No. 6 confirming the agreement between the said defendant and Defendant No. 6 act on its behalf as liaison between the said defendant and Pakistan Steel Mills for the contract of supply of iron ore from 1987 onwards and assuring that agreed fee for services at 0.75% of the net F.O.B. value of each cargo shall be made after full payment for the shipment was received. A reference is also made to the contract between Defendant No. 3 and Pakistan Steel Mills Corporation Limned for the supply of iron ore for a period of five years. Learned counsel also made a pointed reference to plaintiffs letter, dated 9.4.1988 addressed to his sisler Mrs. Nighat Mohsin reflecting evil intentions of the plaintiff with regard to the commission receivable by Sarela Trading Company and letter, dated 5lh October, 1991 written by Unver Isa to the plaintiff terminating his association with the Company and intimating Pakistan Steel Mills about this &<•\ to suggest that the plaintiff throughout the course of his employment with Defendant No. 6 was neither a partner in the share of commission nor instrumental in arranging the contract for supply of iron ore with Defendan No. 3. In fact he happened to be an employee of Defendant No. 6 who represented the interests of foreign exporter i.e. Defendant No. 3.

7. Learned counsel lastly contended that the Letter of Credit has a definite implication. It is mechanism of great importance in International trade and any interference with such mechanism is found to have serious repercussions on the International trade of this country. He relied upon Malta and another v. British Imex Industries Limited 1958 (1) All England Law Reports 262, (2) Power Curber International Ltd. v. National Bank of Kuwait1981 (3) All England Reports 607, Tarapore & Co. v. V.O. Tractors 1969 (1) Supreme Court Cases 233, Kohinoor Trading (Put.) Ltd. v. Mangrani Trading Co. 1987 CLC 1533, Allied Industries Hub (Pvt.) Ltd. v. China National Metals1989 MLD 2027 and Banque Indosuez Belgium v. Haral Textile Ltd. 1998 CLC 582.

8. Mr. Kazim Hassan, learned counsel for remaining defendants except Defendant No. 7 virtually adopted the line of arguments taken by Mr. Kamal Azfar, learned counsel for Defendants Nos. 3 and 5. On his part Mr. Moin Azhar, Advocate representing Pakistan Steel Mills submitted that this is primarily a dispute between the plaintiff and the defendants, to which, Pakistan Steel Mills is not a party. In fact the meant to say that Pakistan 1teel Mills as garnishee would abide by the lawful orders passed by this Court.

9. One examination of the record and proceedings containing various telex messages and photo-copies of letters exchanged between the parties it is difficult to hold with an amount of certainty that there was a joint agreement between the plaintiff, late Unver Isa and Defendants Nos. 4 and 6 as averred. Ex facie it seems that Defendant No. 6 has been acting as local agent for and on behalf of the foreign importer i.e. Defendant No. 3 for supply of iron ore to Pakistan Steel Mills Corporation Limited. There is a serious controversy between the paities with regard to the partnership of the plaintiff in the so-called arrangement between the parties relating to their respective shares in the amount of commission payable by Defendant No. 3 to Defendant No. 6. Tentatively it may be assumed for the time being and without deciding the issue conclusively that there was some liaison between the plaintiff and late Unver Isa relating to the contract for supply of iron ore by Defendant No. 3 to Pakistan Steel Mills.

10. Adverting to the point of view expressed by Defendant No. 3 seemingly Defendant No. 6 appears to be a sole proprietary concern owned and managed by Late Unver Isa and not a partnership in the joint venture i.e. Defendant No. 6. Indeed the question is not free from controversy and there is an area of difficulty in placing implicit reliance on the stand taken by the plaintiff in this suit. Various letters placed on record rather tend to reflect that his association with Defendant No. 6 was dismissed on serious charges of misconduct and criminal breach of trust. Be that as it my, at interlocutory stage this Court is not expected to express any definite opinion on the respective contentions of the parties as any expression of opinion is likely to prejudice the case of any of the parties. Suffice, however, to say that the plaintiff does not seem to have a vested legal right to any property or a legal character in order to entitle him to the relief of injunction which is purely discretionary and equitable in nature. It may, therefore, be safely observed that the plaintiff has hardly been able to make out a strong prima facie case for the attachment of amount of commission presently withheld under an interim attachment order passed by this Court nearly six years ago.

11. With regard to contracts and more so contracts with regard to establishment of Letter of Credit, it may be observed that such contracts must be preserved and their sanctity should not be lightly interfered with as suggested. Indeed payment due under a Letter of Credit cannot be stopped/restrained unless there be a strong case of fraud, forgery, or obtaining wrongful advantage from such contract. Indeed, the principle of law is well-settled that generally an irrevocable Letter of Credit cannot be dishonoured and the only exceptions are when any demand for payment is (fraudulent or where their is a challenge to the validity of the Letter of Credit. Indetd in Allied Industries case (supra) it was authoritatively held that an irrevocable Letter of Credit has a definite implication. It is a mechanism of great importance and any interference with such mechanism is bound to have serious repercussions on the International commitments in the comity of r;aU-":\s. In my view except und,er exceptional circumstances Courts are not entitled to interfere with such contracts. The view taken by Lord Denning MR is well-illustrated in Power Curber case (supra) as underw­it has been long established that when a Letter of Credit is issued and confirmed by a bank, the bank must pay it if the documents are in order and the terms of the credit are satisfied. Any dispute between buyer and seller must be settled between themselves. The bank must honour the credit."

12. In Bank Indosuez case (supra) the view taken by the Lahore High Court is that Letter of Credit is altogether independent from original contract between buyer and seller. On the basis of alleged breach of contract of sale, a purchaser cannot frustrate working of contract represented by a Letter of Credit. Working of Letter of Credit can only be interrupted if it is shown that one are other condition of Letter of Credit itself has been breached. A negotiating Bank or holder of negotiable instrument in due course has absolutely no concern with working/improper working of the original contract of sale.

13. Indeed plaintiff is neither a seller nor a buyer of the goods under the contract of import governed by a Letter of credit which are primarily governed by the Articles of Uniform Customs and Practice for Documentary Credits (1983) Revision). Needless to reiterate plaintiff is not a party to the contract between the foreign exporters and the local importer. No conclusive agreement between the parties binding Defendant Nos. 3 and 6 appears to exsit on the face of record. Reference to cases reported as Balagamwala Oil Mills (Put.) Limited v. Shah Karachi Trading AAG. PLD 1990 Kar. 1 and Mohiuddin v. Province of East Pakistan PLD 1962 SC 119 is thus, completely out of place and misconceived.

14. I am not inclined to dilate on the point raised with regard to the bar of maintainability in terms of Section 69 of the Partnership Act read with the provisions of Order XXX, C.P.C. as notwithstanding the averments in paragraph 6 of the plaint it is not the case of the plaintiff that there was actually a partnership between the parties. In the absence of any definite averments as to the existence of any partnership the question of its registration or otherwise need not be determined at this stage.

15. As regards letter, dated 9.4.1988 purportedly written by the plaintiff to his sister Mrs. Nighat Mohsin suffice it to say on defendants own showing his employment having come to an end no useful purpose would be served by deeper analysis of this aspect of the case.

16. In view of the factual and legal position discussed hereinabove I am of the clear view that the plaintiff failed to make out a goodprima facie case for the grant of interim order of the nature prayed by him. Balance of convenience and essential ingredient relating to irreparable injury also do not lean in his favour. C.M.A. is, therefore, dismissed and interim orders recalled.

(????) Petition dismissed

PLJ 1999 Karachi 580

Present: mrs. majida razvi, J.

Mst. Bffil KUTI--Appellant

versus

Mst. ATIQA KHANUM through Attorney KHURSHID AHMED BAIG--Respondent

F.R.A. No. 338 and Civil Misc. Application No. 990 of 1997, decided on 20.2.1993.

(i) Cantonment Rent Restriction Act, 1963 (XI of 1963)--

—S. 24-Earlier eviction application based expiry of tenancy agreement and default in payment of rent was dismissed by Rent Controller-Tenant died and appeal was filed against legal representatives which was also dismissed-Second case was filed on ground of subletting and non­payment of electricity bills-Landlady impleaded only one legal heirs of deceased tenant while remaining legal heirs were not made party—Case remanded with the direction that landlady should implead all legal heirs.

[Pp. 582 & 583] B & C

(ii) Civil Procedure Code, 1908 (V of 1908)-

—O. V. R. 20-Provisions of O.V, R. 20, Civil Procedure Code, 1908 being mandatory failure to comply with such requirements would nullify the whole proceedings. [P. 582] A

Sheikh P.M. Javaid, Advocate for Appellant. Mr. M. Rafi Shafqat, Advocate for Respondent. Date of hearing : 20.2.1998, order

The present appeal has been filed against the order, dated 6.11.1997 passed by the Additional Controller of Rent Clifton Cantonment, Karachi in Rent Case No. 157 of 1996 filed by the present respondent/landlady.

The brief facts are that the premises being Shop No. 4 in House No. 296, Gali No. 14/15, Punjab Colony, Gizri Road, Karachi was rented out to one late Abu Bakar vide tenancy agreement, dated 7.3.1982. In the first round of litigation the Respondent/landlady filed Rent Case No. 27 of 1983 before the Rent Controller Clifton Cantonment, Karachi on the grounds of expiry of tenancy agreement and default in payment of rent which was dismissed vide order, dated 18.4,1987 against which she filed F.R.A. No. 639 at 1987 before this Court and vide order, dated 22.4.1990 the order of the Rent Controller was set aside and the case was remanded back to the Rent Controller which was against dismissed vide order, dated 23.4.1991. In the tenant Abu Bakar died and the respondent/landlady again filed

F JLA. No. 434 of 1991 against the legal representatives of the said tenant, however, the said first rent appeal was dismissed vide order, dated 26.4.1992.

Again the respondent/landlady issued notices, dated 8.8.1996 to the legal representatives of the said tenant calling upon them to vacate the shop on the ground that they have made addition/alteration in the said shop without consent of the landlady and against the Cantonment Rules, and sub­letting and non-payment of KB.S.C. bills. The allegations made in the notices were denied vide their reply, dated 22.8.1996. It is claimed by the present appellant widow of Abdu Bakar that since the death of Abu Bakar she has been running the said shop with the assistance of her son Jumma Ibrahim and that the rent is being regularly despited in the trial Court and the respondent/landlady is withdrawing the same. According to the appellant/tenant she came to know about the pending proceedings in respect of Rent Case No. 157 of 1996 through some well-wishers on 24.11.1996 and filed the present appeal on 2.12.1997. Pre-admission notice of this appeal was issued to the respondent who filed objections and the appellant/tenant filed rejoinder to the said objections.

The contention of the learned counsel is that the rent application was filed in the name of a dead person and as such was not maintainable. He further argued that even if it is accepted that the application was filed against Muhammad Ramzan son of deceased Abu Bakar, the respondent/landlady knowing very well that there were other legal heirs also failed to implead all of them and in the absence of all the legal heirs the rent application was not maintainable. Next it was argued that the appellant/tenant's legal representative were never served and as such ex parte order was obtained by the respondent/landlady by misrepresentation. It was further argued that an application under Order 5, Rule 20 for substituted service was filed on 20.C ,1997 and the orders were passed on the same day without any notice to the other side and the service was held good by the learned Rent Controller on 7.10.1997 without complying with the ingredients of Rule 20 as the notices were not fixed on the Court Notice Board and the relied on the case of Mst. Atiya Masood v. Mrs. Mussarat Musaver and others PLD 1993 Kar. 676.

As regards to the first contention of the learned counsel that the rent application was filed against a dead person the same is not tenable as the application was filed against one of the legal representative i.e. Muhammad Ramzan son of deceased Abu Bakar. However, the contention of the learned counsel that and the legal heirs were not impleaded by the respondent/ landlady and the ingredients of Order V, Rule 20 were not complied has force.

The bailiff's report indicates that at the time when he went to serve the notice on the address of the disputed shop in the Rent Application the wife of deceased Abu Bakar refused to accept the said notice, this report should have put the respondent/landlady on notice that the widow of the deceased Abu Bakar is also one of the legal heirs but the respondent/landlady did not take any steps to implied her which proves the proceedings under shadow. In the case of Fazal Ahmed v. Ramzan Bibi 1984 CLC 2196, whereinafter the death of the tenant ejectment petition was filed against son of the deceased tenant without making widow a party it was held that the "tenant cannot be ejected from the premises on account of ejectment order passed against her son. The next contention of the counsel is that the ingredients of Order 5, Rule 20 were not complied with as the notices were not affixed on the Court Notice Board. He relied on the two judgments of this Court.

The first case relied on is that of Mst. Aliya Masood v. Mrs. Mussarat Musaver and others PLD 1993 Kar. 676 wherein order Were passed in the suit that the applicant be served with publication without reference to pasting of summon at the Court Notice Board and last known address of the applicant, whereas in executions proceedings orders were passed that notice should appear in an approved daily and a copy be affixed at the disputed premises" i.e. suit property which was in possession of the tenant. The service of notice appeared in the newspaper but summons were not affixed on the Court Notice Board nor on the last known address of the defendant and as such it was held that there was a clear violation of express provisions contained in Order 5, Rule 20, C.P.C.. requiring affixation of summons on the Court Notice Board and also on the last known address of the defendant and ex parte decree was set aside in revisional jurisdiction.

The second case relied on by the learned counsel is that of Fateh Gul v. M. Anwarul Huda and another 1987 CLC 635 (Kar.) wherein an application under Order 5, Rule 20, C.P.C.. was filed for substituted service through affixation on the tenant or through publication in newspaper and directions were issued accordingly. Notice was published in newspaper but the same was not affixed on the tenement as ordered by the Controller and on some conspicuous place in the Court house. It was held that "provisions of Order 5, Rule 20 are mandatory and the failure to comply with any requirement thereof nullifies the whole proceedings and the ex parte order were set aside". It was further observed that it is an elementary principle that if mandatory condition for the exercise of jurisdiction by a Court, Tribunal or Authority is not fulfilled, then the entire proceedings which follow become illegal and suffer for want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction.

There is not cavil to the proposition as held in the said judgments.

But the said cases are not applicable to the present case as the only prayer made in the application for substituted service was that service may be effected through publication in daily Nawai Waqat and the application is not even titled as to under what provision of law it was made.

In the instant case, although it is clear that the present appellant refused to accept the service and, thereafter, an employee of the appellant also refused since and twice pasting was effected by the bailiff of the Court from which it can be presumed that the present appellant had enough information that certain proceedings were pending. But then the said proceedings were only against one of the legal representatives. According to the counsel for the appellant, the respondent/landlady was well-aware that some of the legal heirs were running the disputed shop but no efforts were made to serve the said respondent/legal representatives. On the other hand, the counsel for the respondent/landlady submitted that several attempts were made to serve the present appellant as is evident from the bailiffs report but they purposely avoided to be served. Both the parties avoided/ neglected to correct the course of litigation.Considering the circumstances of the case, conduct of the parties and the case-law cited before me,, in my opinion, the best outcome for all the parties wiH be that appeal is allowed, the impugned order passed by the learned Rent Controller is set aside and the case is remanded back to the Rent Controller with the direction that the respondent/landlady be directed to implead all the legal heirs the list of which will be submitted by the present appellant/tenant and, thereafter, proceed accordingly to law.

Order accordingly. (T.A.F.) Order accordingly.

PLJ 1999 Karachi 583

Present: M. SHAIQ USMANI, J. HUSSAIN ALI MERCHANT-Plaintiff

versus

ISMAILIA GARDEN COOP. HOUSING SOCIETY LTD.-Defendant

Suits Nos. 432 of 1994, 759 of 1997, Civil Misc. Applications Nos. 1614 of 1995 and 4559 of 1998, decided on 23.9.1998.

(i) Civil Procedure Code, 1908 (V of 1908)--

—O. XI. R. 21-Provisions of O.XI, R. 21, C.P.C. are penal in nature-- It is settled that provisions of Order XI, Rule 21, C.P.C. being penal in nature, these are to be strictly construed--For this provision to be applicable, it is • necessary that:

(1) There should be a specific Order of the Court for filing of affidavit of documents.

(2) The defaulting party wilfully fails to comply with the order.

[P. 586] A

(ii) Civil Procedure Code, 1908 (V of 1908)--

—O.XI, R. 21-Purpose of O.XI, R. 21, C.P.C.-Purpose of Order XI, Rule 21, C.P.C. with regard to discovery of documents on oath is to compel the opposing party to disclose all documents that he relies on so that the other side is not surprised later-It also serves to nip the evil in bud, as it were, inasmuch as frivolous proceedings can be summarily disposed of at an early stage-But since the penally for non-compliance with this provision is so stringent, it is necessary that the penal provision must be strictly construed and the parly concerned must be non-suited only if the above mentioned ingredients are fully met-The tenor of law is such that it contemplates, purposeful avoidance or refusal by the party concerned to file the affidavit of documents with mala fide motives-If thus, mere technicality regarding the discovery, not being in accordance with a certain format, is allowed to non-suit a party, it will be travesty of justice.

[P. 586] B

Mr. Hussain M J. Merchant for Plaintiff (in Suit No. 432 of 1994 and C.M.A. No. 1614 of 1995).

Nemo for Respondent No. 1 (in Suit No. 432 of 1994 and C.M.A. No. 1614 of 1995).

Mr. Muhammad Ilyas Khan Advocate for Defendant No. 2 (in Suit No. 432 of 1994 and C.M.A. No. 1614 of 1995).

Mr. Muhammad Jamil Ahmed, Advocate for Plaintiff (in Suit No. 759 of 1997 and C.M.A. No. 4559 of 199).

Mr. Zia Qureshi, Advocate for Defendants (in Suit No. 759 of 1997 and C.M.A. No. 4559 of 1998).

Date of hearing: 23.9.1998.

order

In both the above suits applications under Order 11, Rule 21, C.P.C. were filed by plaintiffs whereby they had sought non-suiting of defendants since they allegedly failed to comply with orders of the Court for discovery of documents on oath. In Suit No. 432 of 1994 (hereinafter referred to as the first suit) C.M.A. 1614 of 1995 was heard on 15.6.1998, while in Suit No. 759 of 1997 (hereinafter referred to as the second suit) C.M.A. 4559 of 1998 was heard on 14.9.1998. Since both the C.M.As. involve similar question of law the reasons for dismissal are being given herein by a common order.

In the first suit (Suit No. 432 of 1994), which was a suit for declaration filed on 26.6.1994, the Defendants Nos. 1 and 2 filed their written statement on 14.12.1994. The Plaintiff then filed an application under Order 11, Rule 12, C.P.C. for discover of documents on oath by defendants. This application came up before the Additional Registrar of this Court on 13.2.1995 when the Registrar passed order for filing of affidavit of documents within two weeks. The defendants filed their affidavits on ' 1.3.1995, but the Additional Registrar noted that in his affidavit the Defendant No. 2, had not disclosed the documents. The Additional Registrar, however, did not reject the affidavit nor did he pass orders for filling a fresh affidavit in accordance with rule. He merely noted that the affidavit of I Defendant No. 2 were taken on record at the risk of Defendant No. 2. The plaintiff then filed application under Order 11, Rule 21 seeking to non-suit the defendants on the grounds that the defendants affidavits were not in accordance with rules and also that Defendant No. 1 had not disclosed all the documents. Both the defendants on their part deny the allegations of plaintiff and maintain that they had filed their affidavits in accordance with rules In so far as the second suit (Suit No. 759 of 1997) is concerned, it is a ^ suit for recovery of Rs. 4,10,8,200 filed on 31.5.1997. The defendants filed \ their written statements on 13.11.1997. Subsequently plaintiff filed an '' application under Order 11, Rule 12, C.P.C. which come up before Additional Registrar of this Court on 3.3.1998 when defendants filed an application under Section 148, C.P.C. seeking time to file objections to plaintiffs a application under Order 11, Rule 21. The Additional Registrar allowed time 7°to the defendants. When the application came up before Additional Registrar " again on 14.4.1998, the defendants filed another application under Section 148, C.P.C. seeking time but the Additional Registrar dismissed this application and fixed the matter for issues. It must be however, noted that ^ they alongwith this application the defendants also filed a statement, dated ' 14.4.1998, in which he stated that he relied on documents filed by the ^ plaintiffs alongwith his plaint and also on documents filed by them with their written statement. It is significant to note that the Additional Registrar \at no stage passed a specific order for filing of an affidavit of documents. The , ^ plaintiff then filed an application under Order, 11, Rule 12 seeking to non- 1 suit the defendants on the grounds that the defendants had failed to file j affidavit of documents. The defendants on the other hand maintain that since they relied on documents filed by them with their written statement and had filed a statement to this effect, upon rejection of their applications under Section 148, C.P.C. seeking time to file objections to plaintiffs applications for discovery of documents on oath, they were not bound to file any affidavit of documents. The fact, therefore, remains that the defendants had indeed indicated the documents that they relied upon through a statement but it was not done in accordance with rules.Before embarking on merits of the applications it may be advantageous to reproduce Order 11, Rule 21, C.P.C.

"Non-compliance with order of discovery.--Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution and, if & defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made accordingly."

By now it is settled that provisions of Order XI, Rule 21, C.P.C. being penal in nature, these are to be strictly construed. What then are the ingredients of this provision? It is clear that for this provision to be applicable, it is necessary that :--

(1) There should be a specific order of the Court for filing of affidavit of documents.

(2) The defaulting party wilfully fails to comply with the order.

The purpose of the provision with regard to discovery of documents on oath is to compel the opposing party to disclose all documents that he relies on so that the other side is not surprised later. It also serves to nip the evil in bud, as it were, inasmuch as frivolous proceedings can be summarily disposed of at an early stage. But since the penalty for non-compliance with this provision is so stringent, it is necessary that the penal provision must be strictly construed and the party concerned must be non-suited only if the above mentioned ingredients are fully met. The tenor of law is such that it contemplates, purposeful avoidance or refusal by the party concerned to file the affidavit of documents with mala fide motives. If, thus, mere technicality regarding the discovery, not being in accordance with a certain format, is allowed to non-suit a party, it will be travesty of justice. Somewhat similar views are expressed in the case of Mrs. Bilqees Rehman v. Anjum Hameed reported in 1988 SCMR 80, by which I am greatly fortified.

Viewing the applications in the two suits in the light of above observations of mine, it is clear that in the first suit the only objection of the plaintiff is that the affidavits were not in accord with the rules. All that was required was that the Additional Registrar should have directed the parties to file fresh affidavits. In the absence of such orders, the affidavits would be deemed to have been accepted by the Additional Registrar alleit at the risk of party concerned and the Court may draw adverse inference because of it at the time of trial. This would by no means constitute wilful failure of the defendants to comply with the orders of the Court.

In so far as the second suit is concerned even the first ingredient was missing, that is to say that there was no specific order by the Additional Registrar to file affidavit of documents and hence there was no question of failure to comply with the orders let alone wilful failure. In any case the defendants had filed a statement showing the documents they relied on. It may not have been incorrect format but it fulfilled the purpose of the provision of law inasmuch as the plaintiff became aware of the documents relied upon by the defendants for their defence. If, therefore, subsequently, at the time of trial the defendants rely on other documents besides the ones mentioned in their statement; as I have held earlier, adverse inference can be drawn by the Court.

I, therefore, find no merit in the aforesaid application being C.M.A. No. 1614 of 1995 in Suit No. 432 of 1994 and C.M.A. No. 4559 of 1998 in Suit No. 759 of 1997, and these are accordingly dismissed.

(TAJ1.) Application dismissed.

PLJ 1999 Karachi 587

Present: RAStfEED A. razvi, J. SHIFAATULLAH QURESHI-Plaintiff

Versus

FEDERATION OF PAKISTAN through SECRETARY/CHAIRMAN, 'railways, ministry of railways (railway board), ISLAMABAD-

Defendant Suit No. 192 of 1992, decided on 20.3.1998.

Limitation Act, 1908--

—-S. 14 Arts. 56 & 115-Limitation~Question of--Plaintiff after dismissal of his claim for recovery of amount of damage by defendant, instead of filing suit approached Wafaqai Mohtasib who accepting claim of plaintiff directed defendant to pay amount of damage to plaintiff-President of Pakistan, on appeal, set aside order of Wafaqi Mohtasib-Plaintiff filed suit for damages and permanent injunction after about 3 years and 10 months from dismissal of his claim by defendants-Plaintiff claimed that period spent in proceeding before Wafaqi Mohtasib should have been excluded-Held :~Period consumed during proceedings before Wafaqi Mohtasib or before President of Pakistan could not be excluded as provided under S. 14 of Limitation Act, 1908, because proceedings before Wafaqi Mohtasib and President of Pakistan did not constitute "civil proceedings"--In absence of any legal disability of plaintiff for not brining suit within time, suit was dismissed being barred by time.

[P. 593 & 595] A, B & C

Mr. Abdul Haleem Pirzada and Ghulam Gkous, Advocates for Plaintiff.

Mr. Akhlaq Ahmed Siddiqui, Advocate for Defendants. Dates of hearing: 10.12.1997 and 24.2.1998.

judgment

This is a suit for recovery of Rs. 8,69,000 for the work done by plaintiff for construction of Officers Flats at Karachi Cantt. Station and for damages for Rs. 38,69,000.

1. The case of the plaintiff is that he is an approved Government contractor and registered with Pakistan Railways as an "A" class contractor; that on 14 10.1985, Defendant No. 2 invited offers for the construction of four units Officers Flats in staff quarters; that the quotations submitted by the plaintiff, being the lowest, were accepted on 2.1.1986; that the Plaintiff started construction work which was required to be completed by 2.8.1987; that due to shortage of funds with the defendants, the functionaries of Pakistan Railways directed the plaintiff to slow down the pace of construction work as they were awaiting re-appropriation of budgetary grant; that the plaintiff continued with the work but in a slow manner and submitted running bills with the Defendant No. 2; that in the early 1988, thedefendant refused to pay the bills of the plaintiff as a result of which several J5t communications were addressed; that finally on 24.5.1988, the claim of the plaintiff was dismissed by the Defendant No. 2.

2. It is further the case of the plaintiff that after refusal of the defendants to make the payments, he approached Wafaqi Mohtasib who, after detailed hearing, passed order, dated 31.12.1990 directing the defendant to pay Rs. 8,69,900 against which Defendant No. 2 preferred a review application, which was also dismissed videorder, dated 23.4.1991. Thereafter, an appeal was filed by the defendants under Article 32 of the Establishment of the Office of Wafaqi Mohtasib(Ombudsman) Order, 1983 (hereinafter referred as Order 1983) which was accepted by the President and the recommendation of Wafaqi Mohtasib was set aside. This fact was intimated to the plaintiff vide letter, dated 27.2.1992 by the Ministry of Law, Justice and Parliamentary. Affairs, Government of Pakistan, Islamabad. Being aggrieved with the order of the President, the plaintiff filed the instant suit praying for the following reliefs:-

"(a) Restraining the defendants, their servants, employees, attorney/ies and/or any other person or person claiming on their behalf or through them, from withdrawing the amount of Rs. 8,69,000 from the Muslim Commercial Bank, Maisam Plaza Branch, Gulshan-e-Iqbal, Block No. 3, Karachi.

(b) Directing the defendants to pay jointly/severally, an amount of Rs. 38,69,000 to the plaintiff on account of the actual claim, losses, damages sustained by the plaintiff.

(0

(d)

1. The defendants filed their joint statement denying the right of the plaintiff to claim the suit amount and other allegations of the plaint. Legal objections were also raised to the maintainability of the suit on the ground, inter alia, that the suit is barred under Article 29 of the Ombudsman Order, 1983. As a result of the above pleadings, on 27.9.1992, following issues were adopted with the consent of the parties:-

"(1) Whether the defendant by pressing urgency for completion of the subject Contract within twelve months, vide letter, dated 2.1.1P86 (at Annexure "P. 1 to the plaint) caused the plaintiff to deploy his entire resources at the site ?

(2) Whether the functionaries of the defendants directed the plaintiff to slow down the pace of work for a few days on the pretext of non-availability of funds ?

(3) Whether the plaintiff reminded the Defendant No. 2 and his sub-ordinates seeking instructions to accelerate the pace of work and whether the defendants responded ?

(4) Whether the deliberate/intentional/negligent acts and omissions of the defendants and their functionaries caused severe mental torture/per plexities/material losses/damages/ embarassment to the plaintiff ?

(5) Whether the defendants/their functionaries caused the plaintiff to suffer persistent/recurring payment of wages to labour employed for the subject job ?

(6) Whether the plaintiff repeatedly required the defendants to arrange/supply funds for accomplishment of the subject job and whether the defendants failed to respond thereabout ?

(7) Whether the Defendant No. 1 is liable for the acts and omissions of Defendant No. 2 and its employees ?

(8) Whether the suit is not maintainable by virtue of Section 29 of the establishment of the Office of the Wafaqi Mohtasib (Ombudsman Order, 1983), since the plaintiff invoked the jurisdiction of Wafaqi Mohtasib ?

(9) Whether the representation made to the President of Pakistan was accepted ?

(10) Whether the suit of the plaintiff is frivolous and was filed with ulterior motives in order to restrain the defendants from encashing the Bank Guarantees ?

(11) Whether the plaintiff is entitled to the relief claimed ?

(12) What should the decree be ?"

1. On 16.1.1998, when this matter came up for hearing, the parties were directed to satisfy as to how this suit is maintainable on the ground of limitation and, secondly, whether Article 36 or Article 115 to the 1st Schedule of the Limitation Act, 1908 are attracted. In furtherance of the same, patties have filed, in addition to their oral arguments, written arguments. Article 36 provides a period of two years for filing a suit for compensation if any malfeasance, misfeasance or non-feasance is caused, independent of the contract. Article 115 provides a period of three years for filing a suit for compensation for the breach of any contract, express or implied not in writing nor registered and not provided in the Limitation Act. Since the amount claimed in the suit are in the nature for recovery of the work done and the remaining part is as an amount of damages for breach of contract, I am of the view that for the first amount Article 56 and for the damages Article 115 of the Limitation Act are attracted. Both these provisions provide a period of three years for filing a suit.

2. It was contended by Mr. Abdul Haleem Pirzada that for filing of the instant suit, the date to be reckoned is not the date of refusal of defendant to pay the amount i.e. 24.5.1988 but it should be 10.3.1992 when the plaintiff received letter from the Ministry of Law, Justice and Parliamentary Affairs through which the appeal filed by the defendants was accepted by the President. It was argued that since the matter was sub judice before the Wafaqi Mohtasib and thereafter, before the President of Pakistan, the intervening period should be excluded. Reliance was placed on the following cases:--

(i) Jagnath Marwari v. Kalidas Raha AIR 1929 Pat. 245.

(ii) R.M.N. Nagappa Chettiar v. Messrs Trojan and Company AIR 1948 Mad. 446, (iii) Abdul Ghafoor v. The Thai Development Authority PLD 1958 Lah. 169, (iv) F.A. Khan v. The Government of Pakistan PLD 1964 SC 520, and

(v) The Province of West Pakistan v. Muhammad Shraif PLD 1965 Lah. 513.

1. In the first case cited above a suit was filed for recovery of compensation where defendant raised a plea that the suit is barred by Article 36 of the Limitation Act, 1908. It was held by a Division Bench of Patna High Court that in a suit for compensation governed by Article 36 arising independent of the contract, the time provided is two years and that the time will not run f'ruin the act for malfeasance or misfeasance but from the time when the injury results. In the present suit, plaintiff is claiming damages arising out of a contract and, therefore, it is Article 115 of the Limitation Act, which governs the plaintiffs case and, therefore, the case of Patna High Court is of no help to him. Likewise, the case cited at Serial No. (u) above AIR 1948 Mad. 446 is also of no help to the plaintiff as in that case a suit was filed for damages for malicious insolvency proceedings where it was held that the stalling point of limitation in such a case is the date of order of annulment. In the case of Abdul Ghafoor (supra) the question involved was whether the suit was filed within the period of six months as provided under Section 75(3) of the West Punjab Thai Development Act, 1949. In that case, plaintiff had filed a suit for declaration against dismissal of his services. Prior to filing the suit, he filed appeal before the competent authority and after conclusion of the proceedings before the domestic tribunal, he filed the suit. It was held that the dismissal of his appeal by the superior authorities of the Thai Development gave him a fresh cause of action to maintain the suit. Reliance was placed on two Privy Council cases, namely Chandra Mani Saha and others v. Anarjan Bibi and others AIR 1934 PC 134 and Bassu Kaur and others u. Dhum Singh ILR XI (1889) All. 47.

2. Mr. Abdul Haleem Pirzada has vigorously argued that the rule laid down by Honourable Supreme Court in the case of F.A. Khan (supra) is fully attracted in the instant case. The question raised before the Supreme Court in that was that what is the time for a Government servant to challenge the legality of the order of his removal from service. In that case also as of Abdul Ghafoor (supra), the plaintiff before challenging his removal through a civil suit, preferred appeals and revisions before the departmental authorities. It was held that the starting point for limitation, in the circumstances of that case, started from the dates of the appellate order of departmental authority which confirmed the original order of plaintiffs dismissal. Reference was made to the cases of Abdul Ghafoor (supra) and Chandra Mani Saha (supra) and the following three propositions were laid down for including the time in the cases where appeal was filed by a plaintiff:--

"(i) when an appeal is filed the matter becomes sub judice and is reheard by the Appellate Court which does not act merely as a Court of error;

(ii) after there has been an appeal even through an Appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the Appellate Court;

(iii) the original and appellate proceedings are steps in one proceedings."

1. The rule laid down in the case of F.A. Khan was followed by a Divisions Bench of Lahore High Court in the case of Muhammad harif (supra).All the cases as mentioned earlier were noted. In that case, suit for specific performance of the agreement of lease was filed by the laintiff and in addition to the relief for damages. In that case, the grievance application of the plaintiff was dismissed by the concerned authority against which he filed review application before the Deputy Commissioner which was dismissed on 15.12.1953. It was agitated that the time will run from that day. It was held that second and fresh cause of action accrued to the plaintiff to sue the Government when his review was finally rejected and it was held that this suit falls within Article 115 of the Limitation Act. The ratio laid down in the cases as discussed hereinabove are not attracted in view of the facts of this suit as in those cases the plaintiffs were pursuing their remedy before the higher officers against the orders of the subordinates who by their subsequent orders endorsed the orders of their subordinates. These orders were passed in the same hierarchy. While in the instant case, the plaintiff approached the learned Wafaqi Mohtasib for redressal of his grievance. It was a different forum and authority invoked by the plaintiff and in no manner order of Wafaqi Mohtasib could be termed as an order of the superior Officer endorsing or setting aside his subordinate's order. This is a forum separately provided to such persons who are aggrieved with the acts or deeds of an agency. It is doubtful whether a claim in the nature of damages could be maintained before the authority of Ombudsman.

2. Section 9 of the Limitation Act, 1908 provides that the time once commenced to run will not cease to do so for any inconvenience r disability to sue or to be sued by reason of any subsequent event does not come within the saving of the statute. There is only one proviso to this section which provides that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues. Section 6 extends the period of limitation of a suit in case of legal disability. Similarly, in view of Section 18, time will run from discovery of fraud. Section 14 entitles a plaintiff for exclusion of time consumed in prosecuting ny civil proceeding either in a Court of first instance or a Court of appeal which was prosecuted with due diligence founded upon the same cause of action. Section 10 provides effect of acknowledgment in writing hich further extends time for brining any cause in a Civil Court. However, Section 23 provides that a fresh period will begin where there is a ontinuing breach of contract and in t»se of continuing wrong independent of the contract. None of these principles are attracted for the purpose of calculating the period of limitation in filing this suit. Admittedly, the plaintiffs claim was dismissed on 24.5.1988 and the instant suit was filed on 12.3.1992. The plaintiff was required to file the suit on or before 23.5.1991. The period consumed during the proceedings before Wafaqi Mohtasib or before the President of Pakistan is not entitled to the excluded as provided under Section 14 of the Limitation Act as these do not constitute civil proceedings. The time to file suit started running from the date 24.5.1988. There was no legal disability on the part of plaintiff for not bringing the suit within time.

3. The necessary conditions for applying provisions of Section 14 of the Limitation Act came up for consideration before a Division Bench of this Court in Kilachand Devechand & Co. (Private) Ltd. v. Messrs Sh. Mian Muhammad Allahbux PLD 1962 Kar. 510. The question in that case was as to whether the time started running from the date of the first award and whether the period spent in making the first award a rule of the Court and thereafter, time spent in pursuing the application for the execution of the decree is to be counted. The appeal against the order of a learned Single Judge of this Court was allowed and it was held as follows :-

It will be seen, therefore, that Section 14 of the Limitation Act comes into play if the following conditions are fulfilled :—

(a) That the plaintiff has been prosecuting another civil proceeding against the defendant;

Cb) that he has been prosecuting it with due diligence;

(c) that this proceeding is founded upon the same cause of action;

(d) that it is prosecuted in good faith; and

(e) that it does not bear fruit because the Court is unable to entertain it due to defect of jurisdiction or other cause of a like nature."

1. In the case of Messrs Haroon Textile Mills Ltd. v. Allah Ditto PLD 1972 Kar. 57, a suit for damages was filed by the respondent, who was an employee of the appellant and who developed asthema while serving in the appellants' Company. Earlier, the respondent initiated proceedings under the Workmen's Compensation Act, 1923, which was terminated by the judgment of this Court in Appeal No. 94 of 1964 disposed of on 9th September, 1965, whereafter he filed the suit. Objection was raised that the suit is barred under Article 22 of the Limitation Act. It was held by a Division Bench of this Court that filing of an application with the Factory Inspector for claim in tort can be no stretch of arguments be said to be a bona fide proceedings fit for the condonation of the delay under Section 14 of the Limitation Act. The rule laid down in the case of Kilachand Devechand (supra) was followed in the case of Asmy Trading Company v. Shahadra Ltd. PLD 1975 Kar. 209 where it was held that the plaintiff was not prosecuting the suit in the lower Court with due diligence and in good faith as the said plaintiff failed to serve a prior notice on the Registrar which omission was held to be a clear case of lack of diligence. By now, it is well-settled that in order to avail of the provisions of Section 14 of the Limitation Act, the plaintiff must show that he was diligently pursuing another civil proceedings whether in the Court of first instance or in a Curt of appeal against the same party bona fidely and that the Court for defect of jurisdiction or other cause of like nature was unable to entertain the same, (see Imdad All and 4 others v. Abdul Rashid and 6 others 1983 CLC 1346).

2. There is another way of looking at the matter. The plaintiff has based his suit on the cause of action accrued after grant of review application by the President and he is challenging the said order. It was pleaded by the learned counsel for the defendant that the suit is barred by Article 29 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 which reads as follows :--

"29. Bar of jurisdiction.-No Court or other authority shall have jurisdiction

(1) to question the validity of any action taken, or intended to b taken, or order made, or anything done or purporting to have been taken, made or done under this Order; or

(2) to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the order or at the instance of Mohtasib."

1. There are several cases wherein it was held that petition under Article 199 of the Constitution, 1973, challenging a decision/order of WafaqiMohtasib is not maintainable. In the case of P. LA. Corporation v. Wafaqi Mohtasib and 2 others PLD 1994 Kar. 32, a petition was filed challenging the order through which benefits were directed to be extended to an ex- employee of P.I.A. It was held by a learned Division Bench of this Court that there is a clear bar of jurisdiction of Courts under Article 29 of the Order, 1983 to question, among others, as to validity of any action taken by Wafaqi Mohtasib.Reference was also made to the case of International Cargo Handling Co. (Pvt.) Ltd. v. Port Bin Qasim Authority PLD 1992 Kar. 65 where an application under Order XXXLX, Rules, 1 and 2, C.P.C. filed in a suit was granted by a learned Single Judge of this Court wherein it was held, inter alia, that by virtue of Article 29 of the Order, 1983 jurisdiction of Courts is barred but where the order on the face of it is repugnant to law under which it was made or suffers for want of jurisdiction the Court may invoke its inherent jurisdiction in order to prevent injustice. In another case of a Division Bench of this Court, namely, Habib Bank Ltd., Karachi v. Messrs Pakistan Industrial Promoters (Pvt.) Ltd., Karachi and 2 others PLD 1996 Kar. 218, where a Constitutional petition under Article 199 of the Coosctution was filed challenging the orders passed by Wafaqi Mohtasib as well as President, the Court dismissed the same as not maintainable with tie foGowing observations :--

'11. In case where the matter falls within the jurisdiction of Respondent No. 2 and is resolved by invoking the provisions of the Order I of 1983, no Court would have jurisdiction to disturb such findings. When action is taken under a special statute it must fulfil the conditions of that statute in order to gain validity of the action so takpn. The instant case has been dealt with within the four corners of provisions of the Order No. 1 of 1983, as such, this Court, Article 199 of the Constitution, has no jurisdiction in the 15. As a result of the above discussion, I am of the considered view the scat is barred by virtue of Article 115 of the Limitation Act. In the instant suit, the plaintiff is impliedly challenging the order passed in appeal by the Preaiieat of Pakistan by showing the dates i.e. 14.10.1985 when for the first p™h? cause of action accrued as a result of acceptance of plaintiffs bid and lasdy on 27.2.1992 when appeal was allowed by the President, (see para., 24 of the plain i. Upon conclusion of evidence, it stands proved that the eroda! dale wtien the cause of action as provided under Article 56 or 115 accrued was 24.5. 1988 when his claim was rejected vide Annexure "P. 11" wbick reads as follows "It is also pointed out that in terms of Clause 25 page 4 of Special Conditions of Contract any increase in rate or any other compensation or price escalation or any claim is not admissible. Further as per Clause 16, page 3 of Special Conditions of Contract the claim has to be made within one week of the point arising whereas in his case it has not been complied with. The completion period of the word has also expired on 6.8.1987 and no extension in time limit has been granted In view of the above, the claim of the Contractor preferred by him vide his application No. Nil, dated 18.1.1988 is not tenable. The Contractor may, therefore, be informed accordingly and settled up as per Contract Agreement."

1. Admittedly, this suit was filed on 12.3.1992 after expiry of more than three years. I am of the considered view that the time consumed in a proceeding before Wafaqi Mohtasib is not entitled to be excluded. As a result of this discussion, suit is dismissed with no order as to cost

(T.A-F.) Suit dismissed.

PLJ 1999 Karachi 596

Present:M. L. shahani, J. ILAMUDDIN through Legal Heirs-Applicant

Versus

SyedSARFRAZ HUSSIAN through Legal Heirs and 5 others-Respondent

C.R. No. 19 of 1991, decided on 12.9.1997.

(i) Civil Procedure Code, 1908 (V of 1908)--

—S. 115--If applicant estopped himself from raising an issue before first appellate forum whether revision justified-Applicant neither filed cross-objection nor challenged issue before first Appellate Court-Applicant was estopped from challenging issue in revision.

[Pp. 598 & 599] A

(ii) Civil Procedure Code, 1908 (V of 1908)-

LS. 115-Revision-No findings perverse in law or misreading of evidence was found-Revision was not justified in the eyes of law. [P.599] B

Mr. Muhammad Ikram Siddiqui, Advocate for Applicant. Sh. Muhammad Usman, Advocate for Respondents. Date of hearing: 12.9.1997.

judgment

This Revision Application has been filed by the legal heirs of the original applicant against the judgment given by Vlth Additional District Judge, Karachi (East) on 12.1.1991 whereby the allowed Civil Appeal No. 39 of 1989 which arose from the dismissal of the Suit No. 3257 of 1978 filed by the respondent in the Court of VHth Civil Judge, Karachi (East).

The plaintiff/respondent approached the trial Court and stated that the applicant has raised construction of Jhuggi/room and donkey cart outside the house of the plaintiff/respondent, and prayed for the following relief :--

(a) By issuing mandatory injunction against the Defendants directing them to demolish and remove Jhuggi/Room and donkey cart outside of the plaintiffs house on the Western lane

(b) of Plot bearing No. GRE-672-Vn AE-663-G/1-A Garden East Clifton Road, New Town, Karachi.

(c) By issuing permanent and perpetual injunction restraining the defendants, their agents and servants from raising any sort of construction over any of the lanes attached to the Plaintiff Plot bearing No. GRE-672-VH-AE-663-G/1-A, and also from using the same as stand for Donkey Cart, or any other manner.

(c) Cost of the suit.

The claim of the plaintiff/respondent was resisted by the applicant/defendant. Several issues were raised including the issue for valuation, issue of limitation and non-maintainability under the Specific Relief Act The trial Court framed the following issues :--

(1) Whether the plaintiffs are the owners of the plot in question surrounded by four lanes on each side meant as passage for the use of the plaintiff ?

(2) Whether due to the defendants construction in the western lane of the plaintiff plot, the plaintiffs have been deprived from opening entrances, doors windows and ventilator on the Western lane ?

(3) Whether the defendant if using space of the plaintiffs house in such manners that it has become a nuisance for the plaintiff as alleged in paras. 5 and 6 the plaint and is also affects the privacy of the plaintiff?

(4) Whether the suit is maintainable in law what is the value of the subject matter of the suit ?

(5) Whether the suit is barred by limitation or under the Specific Relief Act?

(61 What should the decree be ?

The plaintiff/respondent examined himself and produced the plans and dosed bis side. The applicant/defendant examined himself and two other witnesses, namely, Nazeer Ahmed and Nooruddin and closed their side. The trial Court decided issues Nos. 1 to 4 against the plaintiff/respondent, however, on the Issue of limitation and maintainability of tike suit i.e. Issues Nos. 5 and 6, decision was given in favour of the plaintiff/respondent and dismissed the suit filed by the respondent/plaintiff.

In appeal the Appellate Court as follows :—

"The Advocate for the parties have agreed that following are the points for determination for this Court for the purpose of disposal of this appeal

(1) Whether there exits 20 feets lane on the Western side of the plot of the appellants.

(2) Whether the respondents have constructed upon portion of the land in front of the plot of the appellants and diminishes its value and utility."

The Appellate Court visited the site and stated as follows :~In the impugned judgment :--

"Moreover on my personnel inspection of the site I myself found that there is a lane on the western side of the plot of the appellants which is being used as passage and now a metal road has been constructed over there. I also found that the inhabitants of the houses by the side of the road adjoining with the plot of the appellants have also entered their houses by raising further construction and has reduced the width of the lane. The construction of these structures is such which clearly show that they were constructed separately and after the construction of the original structure of their houses. I also found that in front of the plot of the appellants there is a semi-constructed structure of the hutment of the respondents. This construction is adjoining with the front wall of plot of the appellants up to the side of the metal road, in the Western side of the lane."

After discussing the evidence the First Appellate Court reversed the finding of the trial Court and allowed the appeal thereby decreed the suit filed by the respondent/plaintiff.

That appellate judgment is now questioned in the revisional jurisdiction of this Court. This revision application was admitted. It was being fixed on several dates. Today, learned counsel for the applicant requested for adjournment but since the suit was filed in 1978 and since 19 years the cause is pending, therefore, I declined adjournment. Learned counsel for the applicant argued the case and his contention are as follows :--

(i) The suit is time-barred, the valuation is not property, the suit was hit by the principles of Specific Relief Act and, therefore, not maintainable. According to him, the First Appellate Court has not discussed those issues.

(ii) Learned counsel appearing for the respondent stated that the issues pertaining to the maintainability of the suit were decided in favour of the plaintiff/respondent. The applicant has not filed any cross-objections before the lower appellate forum,therefore, there was no occasion for the Appellate Court to examine those such issues. He has further stated that since the applicant acquired in the findings regarding maintainability of the suit before the First Appellate Court, now that the case has been decided against the applicant by the lower appellate forum, they are estopped from raising such issues before this Court. He has relied upon the judgment of Honourble Supreme Court in the case of Allah Yar Khan v. Mst. Sardar Bibi1986 SCMR 1957 and Uaquat Khan etc. v. Ghulam Muhammad PLD 1987 Pesh. 53 a judgment from Peshawar High Court in which it has been held that the findings of the trial Court, if not challenged before the lower appellate forum, could not be agitated in upper appellate/revision forum."

1 would, therefore, hold that since Issues Nos. 5 and 6 were decided against the applicant and he did not challenge the findings of the trial Court before the lower appellate forum, therefore, cannot agitate those issues

before this Court.

I find from the judgment that the First Appellate Court has held that the parties on the actual issues agree on the two points which has been quoted in the earlier part of this judgment. The lower Appellate Court also visited the site and in the earlier part of this judgment the findings have been recorded. Learned counsel for the applicant was unable to point out from the record that the findings of the First Appellate Court are perverse in law. or not sustainable on the basis of evidence so recorded. I would, therefore, hold that the findings of the Appellate Court are correct. Even otherwise, in case of the conflict in the judgment between the trial Court and the Appellate Court, the decision of the First Appellate Court is to be preferred in the revisional jurisdiction which is being exercised by this Court. This has been so held by this Court in the case of Mir Muhammad alia Mirai v. Ghulam Muhammad PLD 1996 Kar. 202.

Lastly it has been contended that the applicant has constructed room since 1956 and is in possession of the premises ever since then, therefore, suit so filed in 1978 is time-barred. I have already held that the issue of limitation has been decided against the applicant by the trial Court. Such issue was not agitated before the lower Appellate forum, therefore, I am not inclined to exercise the jurisdiction to examine such issue again. Issue of limitation is again a mixed question of law and facts. Since the decision has been given against the applicant by the Appellate Trial Court, and in view of the above cited judgments, I decline to reopen such issue in the revisional jurisdiction.

The upshot of the above discussion is that the Revision Application has no merits. It is dismissed with costs.

(T_A.F.) Revision dismissed.

PLJ 1999 Karachi 600

Present: rana bhagwan das, J. ABID ALJ and others-Petitioners

Versus

Syed KAURAL SHAH and others-Respondents

C.R. No. 9 of 1994, (Larkana) and 171 of 1985 (Hyd.), decided on 19.8.1998.

(i) Civil Procedure Code, 1908 (V of 1908)--

—S. 115 & O.VI, R. 2-Revisional jurisdiction-Petitioners produced certain documents to show that they were lawful occupants of piece of land in their possession but no such case having been pleaded such evidence is beyond their pleadings and, thus, inadmissible at law. [P. 603] A

(ii) Civil Procedure Code, 1908 (V of 1908)--

—S. 115-Revisional jurisdiction-Court in exercise of its revisional jurisdiction is not required to reappraise evidence unless shown that appreciation of evidence is whimsical, fanciful and perverse. [P. 603] B

(iii) Civil Procedure Code, 1908 (V of 1908)--

—S. 115~Revisional jurisdiction-Remand of case-Appellate Court dealt with all aspects of case agitated before it and substantially conclusion is justified by evidence on record-Facts of case do not warrant an order of remand. [P. 604] C

(iv) Civil Procedure Code, 1908 (V of 1908)--

—S. 115—Revision-Concurrent findings of fact-Such findings could not be set aide on the ground that application of evidence was not proper unless findings were not supported by legal evidence or were contrary to the settled principles of law or were perverse on face of record. [P. 604] D

(v) Limitation--

—Adverse possession against Government land-Limitation-Such possession must have been continuous, open, notorious, hostile and uninterrupted for a period over 60 years-Petitioner failed to substantiate lea of adverse possession-No infirmity in judgment of lower Court- Contention repelled. [P. 604] E

Mr. G.A. Shahani, Advocate for Petitioners. Nemo for Respondents. Date of hearing: 18.8.1998.

judgment

Short question involved in this revision petition under Section 115, C.P.C. is whether the two Courts below committed a jurisdictional error by decreeing the suit for possession and permanent injunction brought by respondent Syed Kaural Shah (since dead) survived by his two sons since joined as Respondents Nos. 1-A and 1-B.

1. Respondent filed a suit for possession and permanent injunction against the petitioners is respect of a plot of land measuring 8800 sq. ft. at Sita Road purchased by him in open auction from the Revenue Authorities sometimes in 1971. He averred that after the confirmation of auction proceedings by Deputy Commissioner, Dadu, he deposited the sale consideration whereupon a sale-deed was executed in his favour whereas he was already in possession of the suit land prior to the sale, it was his case in the trial Court that Petitioners Nos. 2 and 3 being bis followers and Respondent No. 1 as a neighbourer were allowed to settle in some portion of the plot in suit temporarily. According to him, petitioners used such portion for residential purpose by erecting Katcha construction thereon. In 1980 he oved Deputy Commissioner, Dadu for demarcation of the plot at whose direction Mukhtiarkar, Khairpur Nathan Shah in presence of the parties demarcated the land granted to him. Consequent upon demarcation, it was noticed that an area of 1216 S. ft. was in occupation of petitioner Abid All; 2688 S. ft. under occupation of petitioner Ghulam Asghar while 528 S. ft. in possession of petitioner Karim Bux. As in spite of repeated demands to vacate the suit land, petitioners kept him on false hopes and did not respond to his reasonable requests, he was constrained to file the suit before the Court of Civil Judge, Khairpur Nathan Shah.

2. On behalf of petitioners written statement was filed by Petitioner No. 3 which was adopted by other two petitioners expressing want of knowledge as to whether the respondent had purchased the plot in suit because he had not specified the location of the plot and its boundaries. They denied to be followers of the respondent and pleaded that they were residing at Sita Road, Station after having constructed their houses in Katchi Abadi for the last 18 years. It is their case that S.D.M., Khairpur Nathan Shah after visiting the site had directed the respondent that Katchi Abadi settlers should not be disturbed. Moreover, they claimed to be in adverse possession of the suit land. They raised legal pleas as weD in their pleadings.

3. Pleadings of the parties were reflected in the following issues :--

(1) Whether the plot in suit measuring 8800 S. ft. is owned by the plaintiff?

(2) Whether the defendants are in possession of the suit premises since 18 years ? If so, in what capacity ?

(3) Whether the plaintiff is entitled to the relief ?

(4) Whether the suit is maintainable in law ?

(5) Whether the Court has jurisdiction ?

(6) What should the decree be ?

1. At the trial of the suit respondent examined himself and P.W. Abdul Rasheed whereas the petitioners appeared as their own witnesses in addition to Lad Din, Muhammad Suleman and Muhammad Urs.

2. On assessment of the evidence on record, learned trial Court decided all issues in favour of the respondent and decreed the suit holding that Civil Court has the jurisdiction to try the suit and that the suit was maintainable at law.

3. Aggrieved by the judgment and decree petitioners filed Civil Appeal No. 53 of 1993 before learned District Judge, Dadu who after examination of record and proceedings and hearing the parties, dismissed the appeal with costs which has been impugned in the present petition.

4. Before the learned District Judge finding on Issue No. 1 was not assailed by the petitioners. With regard to the jurisdiction of the Civil Court, learned District Judge held that the suit for possession was maintainable by reason of Section 8 of the Specific Relief Act and that jurisdiction of the trial Court was not barred in terms of Section 172 of Sindh Land Revenue Act. As to the non-maintainability of the suit for want of sufficient description of the property in suit, learned Appellate Court expressed the view that maintainability of the suit could not be linked with "insufficient description of the property". On the question of acquiring title by prescription/adverse possession, Appellate Court expressed the view that the properly in suit was purchased in the year 1971 whereas the uit was filed in 1981 which was well within time. Prior to the purchase thereof by respondent, the property was owned by the Government and in order to claim adverse possession against the Government, party in possession has to prove his possession for more than 60 years which was not the case of the petitioners. As no other point was urged before the Appellate forum, learned District Judge concurred with the findings of Civil Court and found no merit in the appeal.

5. At the hearing, learned counsel for petitioners raised the following contentions :--

(i) That since the respondent did not seek declaration of his title, suit for possession simplicitor could not be maintained at law.

(ii) That the Appellate Court did not comply with the provisions of Order XLI, Rule 31, C.P.C. which enjoin upon it to formulate the points for determination; decision thereon and the reasons for such decision.

(iii) That the Courts below did not appreciate the plea with regard to adverse possession raised by the petitioners.

1. Adverting to the first contention raised on behalf of petitioners, suffice it to say that alongwith the plaint respondent submitted copy f order issued by Deputy Commissioner, Dadu Annexure "A", copy of treasury challan to prove the deposit of sale consideration Annexure "B", copy of the agreement to sell executed by Mukhtiarkar, K.N. Shah Annexure "C", copy of measurement certificate by Mukhtiarkar K.N. Shah Annexure "D" and copy of sketch of the plot showing the entire area in possession of the petitioners Annexure "E". In his evidence, respondent produced valid documentary evidence in support of his case including the confirmation of auction by Deputy Commissioner, Dadu, treasury challan, demarcation of the plot and the sketch map of the suit land in occupation of the petitioners. He also examined P.W. Abdul Rasheed Junejo, Clerk in the Officer of Mukhtiarkar, !LN. Shah who produced the papers relating to the property in suit in favour of the respondent Their evidence was duly scrutinized and appreciated by the trial Court which does not suffer from mis-appreciation, non-reading or mis-reading of the evidence on record. Since sufficient oral as well as documentary evidence was placed on record and petitioners had adequate opportunity to rebut the same, no fault can be found with the findings of fact recorded by the trial Court and affirmed by the District Court in the exercise of appellate jurisdiction. In any event, petitioners failed to show as to whether any serious illegality or material irregularity was committed by the Courts below by accepting the legal evidence placed on record by the respondent

2. Learned counsel was at pains to point out that the petitioners had produced certain documents from Secretary, Town Committee, Sita Road to show that the petitioners were lawful occupants of the piece of land in their possession but no such case having been pleaded, such evidence is beyond their pleadings and, thus, inadmissible at law. In any event, this point was not raised before the learned District Judge, therefore, this Court in the exercise of its revisional jurisdiction is not required to re-appraise the evidence unless it can be shown that the appreciation of evidence is whimsical, fanciful or perverse. Furthermore, since the petitioners did not challenge the title of the respondent to suit land it was not necessary to seek such declaration from the Court.

3. Reverting to the second contention raised by the learned counsel, it may be observed that the sole question for determination before the Appellate Court was whether the defendants were in possession of the property in suit for the last 18 years and, if so, in what capacity ? Occupation of the property in suit by petitioners was never disputed. On the contrary at the stage of evidence, petitioners set up a defence of their lawful ownership of their respective portions which was neither averred nor pleaded in their written statement. Even otherwise such defence could not be reconciled with the plea of the petitioners relating to acquisition of right by adverse possession. Indeed a person can be either owner of a property in his own right or by way of setting up adverse possession against the real owner. At any rate, Appellate Court substantially dealt with the points raised before him and no point was left untouched. It is evident from the judgment that the learned District Judge, was fully conscious of the matter involved in the appeal and his decision is founded on the basis of the material on record. Moreover, the provision of law as envisaged by Order XLJ, Rule 31, C.P.C. is obligatory as no adverse consequences are postulated in the event of non-compliance. It is only in suitable cases that the revisional Court may remand the appeal to the Court whose judgment has been impugned in order to enable it to record a fresh judgment in accordance with law. In the case in hand, since the Appellate Court dealt with all aspects of the case, agitated before him and substantially the conclusion is justified by the evidence on record, I am of the view that the facts of the case do not warrant an order of remand at this stage.

4. Likewise there is hardly any substance in the third contention with regard to the appreciation of plea of adverse possession raised by the petitioners. Indeed Both the Courts have dealt with this aspect of the case in a most rational manner and the petitioners cannot succeed on the so-called plea of adverse possession since the suit for possession was filed well within the period of limitation prescribed by law. As rightly pointed out, the petitioners did not claim to be in adverse occupation of the suit land against the Government. In law such possession must have been continuous, open notorious, hostile and uninterrupted for a period of over 60 years. It is obvious that the petitioners miserably failed to substantiate the plea of adverse possession raised by them, therefore, on this score also I find no infirmity in the judgments of the Courts below.

5. Needless to observe revisional jurisdiction is purely discretionary and intended to correct the errors of law committed in the exercise of jurisdiction. It is not the function of the revisional Court to re­ appraise the evidence to find out whether any different conclusion can be drawn. Surely concurrent findings of fact cannot be set aside on the ground that application of evidence was not proper. It is well-settled that concurrent findings may not be sacrosanct but the Revisional Court is generally slow in interfering with such findings unless such findings are not supported by legal evidence or are country to the settled principles of law or perverse on the face of record.

6. For the aforesaid facts and reasons revision petition must fail and is hereby dismissed with cots.

(T.A.F.) Revision dismissed.

PLJ 1999 Karachi 605

Present: rashid A. razvi, J.

flABIB BANK LIMITED-Applicant

versus

Messrs PAR CLOTH DYING AND PRINTING WORKS and 6 others-Respondents

Execution Application No, 76 of 1988, Civil Misc. Applications Nos. 2534 of

1997 and 557 of 1998.

(i) Civil Procedure Code, 1908 (V of 1908)-

—Ss 47--Application for execution of decree—It is a settled law that where an appeal is preferred against original decree and where a final order has been passed by Appellate Authority, decree of Court of first instance merges in decree of Appellate Court and, therefore, it is date of decree of Appellate Court from which time will run for filing an execution application. [P. 609] A

(ii> Civil Procedure Code, 1908 (V of 1908)--

—-S. 47--Execution of decree-One of objects of S. 47, C.P.C. is to enable Court to implement and execute its own judgments, orders and decrees— Provisions of Part II (Ss.36 to 74) and O. 21, C.P.C. are meant to provide speedy relief to parties or their representatives to the suit to resolve all questions pertaining to execution, discharge or satisfaction of decree by Executing Court and not through cumbersome proceedings of a separate 5UU-_________ ^ [P. 612] B

Iiiii Civil Procedure Code, 1908 (V of 1908)-

—S. 47 & O. 21. R. 62-Execution of decree-Section 47 is to be read in conjunction with Order XXI, Rule 62 C.P.C. and, therefore all questions relating to right, title or interest in attached property whether raised by claimant or by an objector are to be adjudicated upon and determined by Executing Court-If anything more was delivered to auction-purchaser of attached property, judgment-debtor would be entitled to release same in executing proceedings for that question fell within meaning of "satisfaction" of decree. [P. 615] C & D

Mr. Habibullah Jatoi, Advocate for the Decree-Holder.

Mr Syed Sami Ahmed Tirmizi, Advocate for Judgment-Debtor No. 1.

Mr. S.A Samad Khan, Advocate for the Intervenor S.I.T.E.

Mr. Abdul Wajid Wyne, Advocate for the Auction-Purchaser.

order

These are two applications; the first application is filed by the auction purchaser namely Faja Gohar Rehman under Section 47 of the Code of Civil Procedure, 1908, (C.P.C.) read with Section 151, C.P.C. (C.M.A. 2534 of 1997) for recovery of Rs. 40,00,000 from judgment-debtor No. 1 in an execution matter, where, admittedly the decree stands satisfied in view of the following facts.

The suit Bearing No. 604 of 1983 was filed by the decree-holder against the judgment-debtor No. 1 and its six other Directors which was decreed by this Court vide judgment, dated 3rd September, 1984 for a total amount of Rs. 36,61,324.24 with cost and future interest @ 13% per annum with quarterly rest. As a result of execution of the decree, all movable and immovable properties of J.D.I, were auctioned for a total sum of Rs. 13,000,000 (Rupees thirteen million only) which was purchased by the present auction-purchaser/applicant. Out of this amount, a total sum of Rs. 9,630,858 was paid to the decree-holder in Ml and final satisfaction of the decree which is being partly challenged by the J.D. No. 1. A total sum of Rs. 3,379,142 was lying with the Nazir of this Court but some more payments were subsequently made to K.E.S.C. and Suit Southern Gas Co. A report was called from the Nazir to ascertain the position of present balance after payments which reads as follows:-

"It is respectfully submitted that a sum of Rs. 1,30,00,000 (Rupees one crore thirty lac only) was deposited by auction-purchaser towards sale proceeds of mortgage property viz. Messrs Pak Cloth Dying and Printing Works Limited, out of which a sum of Rs. 1,30,000 had been paid towards Nazir's fee as per Court's order, dated 23.2.1995 and 22.3.1995 and outstanding dues against the abovesaid property, as well as Government dues are also paid vide order, dated 15.8.1995 detail mention below-

(1) K.E.S.C. Rs. 61,772

(2) Suit Gas Rs. 1,66,509

(3) Excise and Taxation Rs. 49,660

(4) S. Industrial Trading Estate Rs. 3,545

(5) Telephone Rs. 26.208

Total Rs. 3.07.694

It is further submitted that a sum of Rs. 96,30,858.52 was paid to decree-holder in terms of Court's order, dated 10.12.1995.

At present a balance of Rs. 29,36,447.48 (Rupees twenty-nine lacs thirty-six thousand four hundred forty-seven paisa forty-eight only) is lying vide L.P. No. 424/95-96."

The claim of the auction-purchaser is that his bid was accepted by this Court on 31.1.1994 and after depositing the entire sale price, the auction was finally confirmed by this Court on 31.5.1994; that on 1.6.1994, the J.D. No. 1 filed C.M.A. No. 833 of 1994 in the instant proceedings and obtained stay against the Nazir to proceed further in the auction matter; that sshaequeiitly, on 18.8.1994, J.D. No. 1 filed H.C.A. 27 of 1994 in which a learned Division Bench of this Court ordered maintenance of the stay order granted by this Court which continued till 10.4.1995 when the said appeal was dismissed; that again on 13.4.1995 a petition seeking leave to appeal was filed by the J.D. No. 1 before the Honourable Supreme Court, where again stay was granted which continued till 25.4.1995 when the petition seeking leave to appeal was dismissed. It is claimed by the auction-purchaser that since he was entitled to the delivery of the physical possession of the auctioned property on 30.5.1994 and was restrained by injunction orders granted by this Court and the Appellate Court which remained in operation till 30.4.1995 when finally possession was delivered to him, he is entitled to all benefits, rents and others profits arising therefrom. Therefore, he has lodged a claim of Rs. 40 lacs with 13% interest per annum for the following benefits and profits which were denied by the judgment-debtor:--"(2) <a: Received rent amounting to Rs. 4,50,000 (Rupees four lac fifty thousand only) for fifteen months from tenant Messrs S.A. Najeeb in terms of agreement, dated 1.7.1984 @ Rs. .30.000 p.m. (photo copy of attested copy of agreement hereto annexed and marked as "Al" to "A4").

•"hi Received Rs. 22.50,000 as earnings from the contractors who were running the production unit of the property @ Rs. 1.50,000 p.m. net payable to J.Ds.

»3'i It is further submitted that J.Ds. have caused financial loss amounting to Rs. 13 lacs to the innocent auction-purchaser by their illegal action. Details of loss are as under:-

J.Ds. managed to remove some machines listed in the inventory prepared by the official assistance and duly attested by them as per Supreme Court Order, dated 12.4.1995 and 13.4.1995. Value of the missing machines works out to Rs. 10 lacs. Value of the missing calendar of Pak origin provided by J.Ds. vide Annexure "T" filed with the application vide C.M.A. No. 1360 of 1997, dated 2.7.1997. Minimum value of Rs. 1,50,000 has been taken for other missing machines. (Copies of the Honourable Supreme Court Order, dated 12.4.1995 and 13.4.1995, inventory, officials assignee report regarding missing machines hereto annexed and marked as Annexures "Bl" and "B2", "Cl" to "C3" and "Dl" to "D2" respectively).