PLJ 2000 Judgments

PLJ 2000 Karachi 217 (DB)

Present: rana bhagwan das and sabihuddin ahmed, JJ. HABIB BANK LTD.-Appellant

versus

REMIFAR (PAKISTAN) LTD. and 5 others-Respondents

h.c.as. Nos. 10 of 1994,146 of 1995 and First Appeal No. 69 of 1995, decided on 5.5.1999.

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

—S. 6--Limitation Act (IX of 1908), Arts. 181 & 183-Recovery of loans-Decree-Execution of--Limitation--Question of-One of the suits filed by the Bank was decreed by Special Court (Banking) and application for execution of said decree was filed before Court decreeing suit after more than five years from passing of final decree-Decree has been passed by Court other than High Court limitation for purpose of making application for execution could only be governed by Art. 181, Limitation Act, 1908, providing three years' period of limitation-Application for execution of decree passed after more than five years, was rightly dismissed being barred by limitation-Execution application filed after more than five years from date of passing of final decree, was also liable to be dismissed being barred by time as Art. 181, Limitation Act, 1908 providing three years' limitation was applicable instead of Art. 183 of the Limitation Act providing six years' limitation-Decree in third suit had been passed by High Court in exercise of its "original civil jurisdiction"--Article 183 of Limitation Act, 1908 provided six years' limitation for execution of decree passed by High Court in exercise of its ordinary original civil jurisdiction, application for execution of decree filed after more than five years, but before six years from passing of said decree, could not be dismissed as barred by time. [Pp. 220 & 221] A, B, C & D

Mr. Sajjad Halai, Advocate for Appellant (in H.C.As. Nos. 10 of 1994 and 1st Appeal No. 69 of 1995).

Nemo for Respondents (in H.C.A. No. 10 of 1994 and 1st Appeal No. 69 of 1995).

Mr. hammad Zubair Qureshi, Advocate for Appellant (in H.C.A. No. 146 of 1995).

Mr. hafaat Hussain, Advocate for Respondent (in H.C.A. No. 146 of 1995).

Date of hearing: 21.4.1999.

judgment

Sabihuddin Ahmed, J.-The above three appeals directed against different orders passed by learned Single Judge of this Court have been heard together and are being disposed of together as they involve a some what common question of law. Before addressing the aforesaid question, however, it may be necessary to capitulate the basic facts relevant for understanding the controversy.

1. H.C.A. No. 10 of 1994 arises out of an order of a learned Single Judge dated 20.12.1993 in favour of the Respondent No. 1. It appears that the Respondent No. 1 had borrowed some money from the appellant Bank against the security of mortgage of immovable property. They filed Suit No. 95 of 1977 on the original side of this Court under Order 34, Rule 4, C.P.C. and in the alternative for recovery of Rs. 102, 472.95 together with costs and interest. Judgment was pronounced in favour of the appellant on 22.3.1982 which was followed by a preliminary decree. A final decree was passed on 20.4.1986. The appellants, however, filed an application for execution only on 5.8.1991 i.e. more than 5 years after final decree. This application came to be dismissed vide impugned order dated 20.12.1993 on the ground of being time-barred which has been called in question through this appeal.First Appeal No. 69 of 1995 arises from Suit No. 29 of 1984 which was filed by the appellant Bank against the respondent for recovery of 499,043 in the Special Court (Banking) for Sindh and the Respondent No. 1 applied for leave to defend the same. The leave application of the respondent was dismissed by the learned Presiding Officer and consequently a final decree was made in favour of the appellants on 29.10.1987. About 5 years thereafter i.e.in October, 1992, the appellant applied for execution of decree, but the aforesaid application was also dismissed vide order of the Banking Court dated 13.7.1995, on the ground that it was barred by limitation. Aggrieved by the said order the appellant has preferred this appeal.

2. The facts of H.C.A. No. 146 of 1995 appear to be that the appellant had advanced some money to the Respondent No. 1 and upon a suit for recoveiy of the aforesaid amount (Suit No. 384 of 1983) obtained a final decree of Rs. 2,754,971 against the Respondent No. 1 from this Co rt on 7.9.1988. The respondent failed to make payment despite attempts on thepart of the appellant to recover and eventually the appellant preferred Execution Application No. 53 of 1994 on 19.5.1994 i.e. after more than 5 years of the decree. The office raised an objection that it was barred by limitation, but such objection was overruled by a learned Single Judge on 18.9.1994. However, upon an application for review by the judgment-debtor the same learned Judge after detailed consideration of the legal position reviewed his earlier order on 17.4.1995 and dismissed the application on the ground that it was barred by limitation. This order has been called in question through the above appeal.

3. It may be observed that in all the above three appeals a common question of law i.e. whether the execution applications were rightly dismissed on account of statutory bar of limitation is involved. Admittedly such applications Were filed after three years of the decree, but within six years thereof. In other words the common question involved appears to, be whether Article 181 or Article 183 of the Schedule to the Limitation Act is applicable, in the circumstances.

4. Against the above-stated background it may be observed that the facts of 1st Appeal No. 69 of 1985 are somewhat distinguishable from those in the other two appeals. Admittedly the decree was passed by the Presiding Officer Special Court (Banking) for Sindh and the execution application was also preferred before the same Court. Article 183 of the Schedule to the Limitation Act prescribes a period of six years for filing an application for execution of a decree of the High Court in the exercise of its "ordinary original civil jurisdiction" from the date when the right to enforce judgment, decree or order of the Court accrues. The other Article i.e. 182 relating to enforcement of decrees or orders of Courts other than this ourt,prescribing six years limitation was deleted from the statute book in 1973 upon the enforcement of Law Reforms Act, 1972. An amendment was made in Section 48, C.P.C. which provides that no fresh application presented after the expiration of six years from the date of decree shall be entertained. A Five Members' Bench of the Honourable Supreme Court in the case ofMehboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 has, however, authoritatively laid down that Section 48 does not apply to the first application for execution of a decree and the residuary Article 181 of the Schedule to the Limitation Act providing for a three years' limitation period is applicable to decrees made by Courts other than High Court. In the circumstances there could be no doubt that limitation for the purpose of making an application for execution could only be Governed by Article 181 and no other provision of law. As such the application was plainly barred by limitation and rightly dismissed. This appeal, therefore, must fail.

5. With respect to the two other appeals, Mr. Sajjad Halai emphatically argued that the decrees having been made by this Court in the exercise of its "ordinary original civil jurisdiction" the appellants were under an honest and bona fide belief that Article 183 was applicable and an application for execution of a decree could be filed within six years of the date of decree. Learned counsel argued that the aforesaid Article continues to remain on the statute book and could not be assumed to be redundant.

6. Mr. Halai is indeed correct to the extent that Article 183 to the Limitation Act still forms part of the law operative in Pakistan. The question, however, is whether the impugned decrees can be held to have been made by this Court in the exercise of its "ordinary original civil jurisdiction".

7. The above-quoted expression has been the subject-matter of a substantial amount of forensic controversy in different contexts through various judgments of superior Courts including this High Court and the Honourable Supreme Court of Pakistan. Indeed certain observations in judgments of this Court including Razzak v, Usman PLD 1975 Kar. 944; State Life Insurance v. S.A. Aziz Rizvi PLD 1986 Kar. 79 and of the Hon'ble Supreme Court in Ahmed Khan v. Chief Justice and Judges of the High Court of West Pakistan PLD 1968 SC 171 tend to support Mr. Halai's point of view. Nevertheless as correctly pointed out by Mr. Shafat Hussain learned counsel for the Respondent No. 1 in H.C.A. No. 146 of 1995 the controversy has been put to rest by the Honourable Supreme Court in Mian Akbar Hussain v. Aisha Bai PLD 1991 SC 985 which is directly applicable to the matter in issue. In the aforesaid case their Lordships have held in " unequivocal terms that while trying suits where the subject-matter exceeds a certain pecuniary value in the Districts of Karachi this Court exercises District Court jurisdiction as distinguished from the "ordinary original civil jurisdiction" of the High Court. Therefore, Article 183 is not applicable to applications for execution of such decrees; Article 182 having been repealed and Section 48, C.P.C. being not applicable to first application, the first application for execution of a decree must be filed within three years from the date of the decree in terms of the residuary Article 181. In view of the above authoritative pronouncement of the Honourable Supreme Court, which is binding on us, we must hold that the application in Suit No. 99 of 1977 on the original side of this Court was filed beyond the prescribed period of Limitation. H.C.A. No. 10 of 1994, therefore, must be dismissed.

8. As regards Mr. Halai's contention that the appellants were under an honest and bona fide belief that the law provided a six years' limitation period for filing an execution application it could have perhaps been possible to condone the delay on the basis of bona fide mistake of law in view of the reported decisions some of which are at variance with each other. This, however, could have been possible only if a power to condone delay was available under the law and has been duly invoked. Admittedly Section 5 of the Limitation Act has not been extended to applications for execution of decrees nor was Mr. Halai in a position to urge so.

9. The position in Suit No. 384 of 1983, out of which H.C.A. No. 146 of 1995 arises, however, appears to be somewhat different. Though this suit was also field on the original side of this Court the Banking Companies (Recovery of Loans) Ordinance, 1979 had come into existence by that time. Under Section 6 of this Ordinance, a claim by Banking Companies against borrower in respect of or arising out of a loan was triable exclusively by a Special Court. The expression "Special Court" has been defined in Section 2(f) and in respect of cases where the outstanding amount of loan exceeds Rs. 1 million has been stated to be "the High Court in the exercise of its original civil jurisdiction". vidently, therefore, the matter could be tried by the High Court, not in its capacity as the principal Civil Court of original jurisdiction for the Districts of Karachi, but, as a Special Court under the Ordinance which was competent to try banking suits exceeding the pecuniary value of Rs. 1 million for the entire province.'The judgment of the Honourable Supreme Court in Mian Akbar Hussain's case PLD 1991 SC 985 would, therefore, not be applicable to this particular matter. Moreover, in view of the fact that jurisdiction was conferred by the Ordinance upon the High Court and not upon Judge acting as persona designata the decree was passed by this Court in the exercise of its original civil jurisdiction. We are, therefore, of the view that Article 183 would be attracted to the facts of this particular case.

In view of the above discussion H.C.A. No. 10 of 1994 and 1st Appeal No. 69 of 1995 are liable to be dismissed and .C.A. No. 146 of 1995 is liable to be allowed and the impugned judgment therein is recalled. The execution application in the last-mentioned case may be decided by the learned Single Judge on merits.

(T.A.F.) Order accordingly.

PLJ 2000 Karachi 222 (DB)

Present: dr. ghous muhammad and ata-ur-rehman, JJ.

CENTURY LINKS DEVELOPMENT CORPORATION (PVT.) LTD.-Petitioner

versus

KARACHI CANTONMENT BOARD through CANTONMENT 'EXECUTIVE OFFICER and 2 others--Respondents

Constitutional Petition No. D-800 of 1999, decided on 8.7.1999. (i) Cantonments Act, 1924 (II of 1924)--

—-Ss. 10, 117, 178-A & 179-Constitutional petition-Proposed building plan for raising construction on plot was approved by Cantonment Board which was Competent Authority to approved said buil ling plan-While construction was in full progress according to approved plan, Cantonment Board without any notice, intervened and forcibly stopped work and some portion of structure was also demolished contending that construction beyond ground plus one floor shall not be raised unless No-Objection- Certificate was issued by Station Headquarter of Cantonment-Status- Once construction plan was approved by Competent Authority according to law, presumption and logical conclusion would be that Authority must have done so by keeping in view ground realities and the relevant legal provisions-Authority having already permitted construction of a building with ground floor plus twelve floors on a plot in immediate vicinity of plot in question, failure of said Authority to accord permission up to nine floors to petitioner was patently discriminatory and repugnant to concept of equality before law-Imposition of condition to seek No-Objection Certificate from Station headquarter for construction beyond first floor being totally extraneous to law, and completely without jurisdiction, could not be sustained- [Pp. 228 & 229] A, C, E & F

(ii) Discretion-

—Meaning and exercise of—Once there was more than one possible manner to take an action, an exercise of law discretion would mean that

particular permissible option was exercised which was in best interest of <person who was seeking State functionary to exercise discretion-Any iscretion which vested in an executive functionary had to be exercised reasonably, justly, fairly and not arbitrarily, unreasonably and in a manner totally extraneous to law and statute. [Pp. 228 & 229] B & D

Mr. Shahenshah Hussain, Advocate for Petitioner. Mr. Naimur Rehman, Dy. A.G. (on Court's Notice). Nemo for Respondents. Date of hearing: 8.7.1999.

judgment

Dr. Ghous Muhammad, J.-The petitioner, a private limited company, established for carrying on the business of Developing, Civil Engineering and Town Planning has sought the following reliefs in this petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973:--

"(1) Declaration that the petitioner is entitled to construct building consisting of ground plus nine floors on Plot No. ST-2, Main Shahrah-e-Faisal, Karachi under the provisions of Cantonments Act.

(2) Declaration that the order/letter dated 3.11.1998 of Respondent No. 2 is illegal and void.

(3) Direction to Respondent No. 2 to issue No-Objection Certificate to the petitioner to construct the building consisting of ground plus nine floors on the aforesaid plot in case this Hon'ble Court comes to a conclusion that letters dated 18.9.1995 and 8.1.1998 did not amount to requisite N.O.C. and that such N.O.C. was requirement of law.

(4) Direction to Respondent Nos. 1 and 2 to refrain from interfering with the construction of the building up to Nineth floor on Plot No. ST-2, main Shahrah-e-Faisal, Karachi by the petitioner."

Briefly stated the Respondent No. 1 i.e. Karachi Cantonment Board is the competent Authority to approve the building plan in respect of land falling in a cantonment area. It is the case of the petitioner that it purchased a Commercial Plot Bearing No. ST-2, Shahrah-e-Faisal from its owner Mst. Soham Ali Somy videconveyance deed dated 20.5.1997. This plot vests in the Karachi Development Authority. It would also be relevant to mention here that the father of Mst.Soham Ali Somy who was the earlier owner of the plot in question had enquired from the Respondent No. 3 (Military Estates Office, Karachi) about the status and the right to construct on the plot in question. The Respondent No. 3 submitted a reply vide letter dated 18.9.1995 and this letter has come on record as Annexure 'B', which reads as under:

NO. DR. 15/ST-2/12 MILITARY ESTATES OFFICE, KARACHI CIRCLE, 252, SARWAR SHAHEED ROAD, KARACHI CANTT.

Dated the 18th September, 1995 To, Station Headquarters, Karachi.

Subject: COMMERCIAL PLOT NO. ST-2. MAIN SHAHRAH-E-FAISAL. DRIGH ROAD. KARACHI.

Please refer Station Hqs. Letter No. 2118/208/Q-2, dated 6.7.1995.

This office is not in knowledge of any construction process by Army on subject plot of land. As for right of ownership on the plot by the applicant, the statement is correct on the following grounds:--

(i) It was decided in the meeting held on 14.9.1972 attended among others by General Tikka Khan, HJ., HQA, S.Pk and Chief of Army Staff and Mr. Jam Sadiq Ali, Minister Local Government, Government of Sindh (copy attached Annexure 'A') to hand over 150' wide strip of land from the land of Bk No. 44, (opposite Naval Flats) along the Workshop up to Saddar Police Station to K.D.A.

(ii) GHQ, QMB's Branch (Qtg. Dte) Letter No. 3615/16/QTg-IA, dated the 19.9.1972 conveyed decision of GHQ for the transfer of 150' wide strip of land to K.D.A. (Copy attached Annexure 'B').

(iii) In the meeting held on 4.10.1972 attended among others by Major-General Asghar A. Khokhar, QMG decision was taken to hand over 150' wide strip of land immediately to K.D.A. (refers pages 4 and 5 of the minutes attached Annexure 'C' and extract of the minutes Annexure 'D').

(iv) The 150' Wide strip of land was handed over and transferred to K.D.A. immediately, formal handing/taking over was completed on 24.4.1974 (vide Annexure 'E').

(v) This-fact was also confirmed in the meeting held on 20.6.1974 attended among others by QMG Major-General Asghar A. Khokhar (vide Annexure 'F').

(vi) Since K.D.A. was allowed auction 150' wide strip of land, the auction f plots was done by K.D.A. in term of plan, the subject plot forms ST-2 of the lay out plan (attached Annexure 'G').

In the light of above the subject plot does not vest in Ministry of Defence, it rather vests in K.D.A. which had rightly disposed of the same through public auction and executed leasehold rights in favour of applicant. Consequently the applicant continues to have bona fide rights to raise construction at site without any obstruction without any further NOC from Army.

The Respondent No. 2, Station Headquarters, Karachi vide its letter dated 18.5.1995 also confirmed the ownership of the said plot of Ms?. Soham Ali Somy and the Respondent No. 2 gave its no objection for construction on the site vide letter dated 21.5.1996. Copies of these two letters have come on record as Annexures 'C and C-l'. It is a case of the petitioner that although no N.O.C. was required in view of what was stated in the letter dated 18.5.1995 (supra) the petitioner was also informed by the Respondent No. 2 about the re-issuance of the NOC vide letter dated 8.1.1998 (Annexure 'D') which reads as under:

Station Headquarters, Karachi Cantonment Telephone; 5604704 2118/208/Q-2, 8th January, 1998.

M/s. Centuiy Links Development Corporation (Pvt.) Ltd., Karachi.

Copy to: Military Estate Officer, Karachi.

Subject: N.O.C. FOR CONSTRUCTION ON PLOT NO. ST-2 (COMMERCIAL) ON MAIN SHAHRA-E-FA1SAL.

(1) This is to inform you that N.O.C. in respect of above plot issued videthis Office Letter No. 2118/208/Q-2, dated 18th May, 1996 was suspended videthis Office Letter No. 2118/208/Q-2, dated 12th March, 1997 under the orders of competent authority. However, now the approval has been accorded for NOC videGHQ Letter number 3615/16/40 Qtg-lA, dated 16th December, 1997 and Headquarters 5 Corps Letter Number 231/2/IC-24/q(P), dated 29th December, 1997 and Headquarters Karachi Logistics Area Letter ber 116/3 Kci/St-2/47/Q-2, dated 8th January, 1998. The petitioner submitted its proposed building plan for raising construction for ground plus nine floors to Respondent No. 1 for approval. The plan was approved by Respondent No. 1 but in the approval letter dated 21.8.1998 it was mentioned that construction beyond ground plus one floor should not be raised unless N.O.C. was issued by the Respondent No. 2. The petitioner reiterated its position that this condition of obtaining another N.O.C. for construction beyond first floor was not valid and also started raising construction and completed the basement, plus ground plus mezzanine and the 1st floors in the form of a structure by sending about Rs. 150 million. It is alleged that while the construction was in full progress, Respondent No. 1 without any notice intervened and forcibly stopped the work and some portion of the structure was also demolished. The petitioner approached the Respondent No. 1, to find further details and reasons for its alleged illegal action but no satisfactory reply was given. The apprehension of the petitioner is that if the existing construction is further demolished or damaged by the Respondent No. 1 and/or the construction is not allowed to be resumed the project will be totally ruined and the back which has advanced the finance facility to the petitioner is also not inclined to re­schedule the loan unless the construction is restarted. It was also disclosed that in October, 1998 the Respondent No. 2 permitted construction of a building known as I.B.M. Towers up to 12th floor on a Commercial Plot Bearing No. ST-8 which is near to the building site in question on the Main SRiahrah-e-Paisal. The petitioner has filed list of nine buildings (under construction/constructed) including Sea Breeze and Ceasar's Towers (16 stories each) on Main Shahrah-e-Faisal between Aisha Bawani School and Kashif Centre in vicinity of the plot in question.

In order to save it from further adverse action the petitioner filed Suit No. 395 of 1999 and obtained an interim stay order restraining the Respondent No. 1 from interfering with the construction work. This suit is still pending. It will also be relevant to reproduce the further development as mentioned in paras 12 and 13 of the petition which are reproduced hereinbelow:

"12. The Respondent No. 1 which is Defendant No. 1 in that suit filed counter-affidavit to the aforesaid application of the petitioner and also produced with it a copy of the letter dated 3.11.1998 of Respondent No. 2 showing that request of the petitioner to reconsider the permission from Ground + 1 to 9 has not been acceded to'. This was startling disclosure as this letter was never sent to or received by the petitioner. According to Respondent No. 1 since the petitioner did not have N.O.C. from Respondent No. 2, they are not entitled to construct beyond ground plus one floor and that they had to stop construction under the order of Respondent No. 2. A copy of letter dated 3.11.1998 is filed herewith as Annexure 'A'.

1. That the petitioner submits that Respondent No. 2 has already given its N.O.C. to construct the plot in question and subsequent cancellation of the N.O.C. or refusal to give the N.O.C. by Respondent No. 2 is illegal, void and mala fide inter alia on the following grounds."

Notices of this petition were served on the respondents as well as learned Dy. A.G. We have heard the learned counsel for the petitioner as well as Mr. Naim-ur-Rehman, the learned Dy. A.G. Neither any intimation was sent by the Respondents Nos. 1 and 3 nor they appear to contest the matter. The Respondent No. 2, however, deputed a senior clerk Fateh Jung who made oral statement that the matter has been referred to the learned Attorney-General for opinion but he has neither produced any, authority letter or written request for adjournment nor any law officer was deputed to place the view-point of the Respondent No. 2.

The only point involved in this petition is as to whether any NOC from the Respondent No. 2 is required or could be a condition precedent for construction a building duly approved by the Respondent No. 1. This petition is admitted and arguments heard. The learned counsel for the petitioner submitted that:--

(a) The Cantonment Board is the competent Authority to sanction a building plan and that it is was not permissible to put the condition of N.O.C. from the Station Headquarters;

(b) there is no provision in the Cantonments Act for 'No-Objection' from the Station Headquarters;

(c) assuming for the sake of argument, if such N.O.C. necessary it was already there in terms of its letters dated 18.9.1995 and 21.5.1996 and no further N.O.C. was required;

(d) that once N.O.C. was given by the Station Headquarters, the same could neither be withdrawn nor the Station Headquarters could interfere with the construction of the subject plot;

(e) the conduct of respondents is discriminatory towards the petitioner inasmcuh as they have permitted construction of various multi-storied buildings in the area where the plot in dispute is situate.

We have perused the Cantonments Act (II of 1924) and enquired from the learned Deputy Attorney-General as to whether the Respondent No. 1 while approving the plan for construction could have imposed a condition for obtaining a No-Objection Certificate from the Respondent No. 2 i.e. the Station Headquarters Karachi Cantonment. The learned Dy. A.G. frankly conceded that nothing in law backs the impugned condition but he casually remarked, "perhaps the apprehension of the Respondent No. 2 is regarding its security". As observed earlier the Respondent No. 2 has chosen not to come forward to contest the petition. Even otherwise once the plan was approved according to law the presumption and logical conclusion would be that the Respondent No, 1 must have done so by keeping in view the ground realities and the relevant legal provision. Hence the remarks of the learned Dy. A.G. require no further comments. There is nothing in law which clothes the Respondent No. 1 with powers to impose a condition to obtain a No-Objection Certificate from the Respondent No. 2 in relation to construction. In this respect it would not be out of place to seek support from Amanullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092 wherein a Full Bench of the Hon'ble Supreme Court was pleased to observe that the imposition of conditions which have no statutory backing is completely without jurisdiction, unlawful and mala fide. The Respondent No. 1 is functioning as a statutory authority and in approving plans and imposing conditions therein had exercised a discretion. However, it is now settled law that any discretion which vests in an executive functionary has to be exercised reasonably, justly, fairly and not arbitrarily, unreasonably and in a manner totally extraneous to law and the statute (see Chairman, RTA v. Pak Mutual Insurance Co. PLD 1991 SC 14). In our view the veiy imposition of the impugned condition to see a No-Objection Certificate from Station Headquarters, Karachi Cantonment for construction beyond the first floor is totally extraneous to law, unlawful and completely without jurisdiction. The same cannot be sustained and is accordingly struck down. It is needless to mention here that the failure of a statutory functionary to accord approval and No-Objection Certificate once the citizen complies with all the formalities and requirements of law is also mala fide and violates the settled law pertaining to structuring the discretion. The law pertaining to discretion as settled by our Hon'ble Supreme Court is that once there is more than one possible manner to take an action, an exercise which is in the best interest of the person who is seeking the State functionary to exercise the discretion (see Federation of Pakistan v. Ibrahim Textile Mills Ltd. 1992 SCMR1898).

There is another aspect of the matter. The respondents have permitted construction of a building with ground plus 12 floors in October, 1998 on a plot in the immediate vicinity of the plot in question. The failure to accord the permission up to 9 floors to the petitioner is patently discriminatory and repugnant to the concept of equality before law which is the hallmark of our legal system. It also violates Articles 25 of the Constitution. In this respect we have been able to lay our hands on Saleem Akhtar Rajput v. K.M.C. 1994 CLC 211 wherein a Division Bench of this Court declared the denial of approval of six additional floors to the petitioner by the K.M.C. as discriminatory and violative of Article 25 since in the immediate vicinity other builders had been granted permission to construct additional floors. The judgment of this Court has been challenged in the Hon'ble Supreme Court which has been pleased to grant leave to appeal while suspending operation of the impugned Judgment. The leave granting order is reported as K.B.C.A. v. Saleem Akhtar Rajput 1993 SCMR 1451. In the leave granting order the reasoning adopted by the Hon'ble Supreme Court is that the application of Article 25 is not based upon any mathematical calculation and scientific exaction. It was suggested therein that the facts and circumstances of each plot in light of environmental hazards and availability of civic and easementary amenities varied at different period of times. These two judgments would have no application in the case since it was the competent Authority which have granted the approval of the plan whose failure to grant additional floors were challenged whereas in the present case the competent Authority i.e. the Respondent No. 1 has though approved the plan yet imposed a condition therein which is completely extraneous to the statute. Accordingly, the controversy in the Saleem Akhtar Rajput litigation is quite distinguishable to the matter at hand. The impugned condition also operates discriminatingly in the present case, thus violating Article 25 of the Constitution.

The petition is accordingly allowed and it is declared that the condition to obtain a No-Objection Certificate from the Respondent No. 2 for construction beyond the first floor is redundant, without jurisdiction, unlawful and is struck down. The Station Headquarters (Respondent No. 2) having already conceded (vide letter dated January 8,1998 (supra)) the right of the owner to raise construction on the plot in question is stopped from taking inconsistent stand. The petitioner has vested right to construct the building on the plot in question according to law and any interference by Respondent No. 2 with the on-going construction of the petitioner is illegal and detrimental to the right in properly which is prohibited under Articles 4 and 25 of our Constitution. The petitioner may carry on construction as per approved plan, without any obstruction or further approval from the respondents. However, the construction should be in terms of the operative bye-laws. Miscellaneous Application No. 2106 of 1999 also stands disposed of.

There shall, however, be no order as to cost. (T.A.F.) Petition allowed.

PLJ 2000 Karachi 230

Present: M. shaiq usmani, J. DABUR INDIA LTD.--Plaintiff

versus

HILAL CONFECTIONERY (PVT.) LTD.-Defendant

C. Misce. A. No. 73 of 1995 in Suit No. 14 of 1995 and C. Misce. A. No. 1906 of 1998 in Suit No. 227 of 1998, decided on 21.5.1999.

(i) Copyright Ordinance, 1962 (XXXIV of 1962)--

—S. 54--Trade Marks Act (V of 1940), Ss. 20(2) & 73--Plaintiffs were legal owners of copyrights of "Hajmola" candy wrappers in India-Contention raised by plaintiffs was that as Pakistan was signatory to Berne Convention, therefore, plaintiffs were entitled to copyright protection in Pakistan--Validity—Copyright in Pakistan was Governed under provisions of Copyright Ordinance, 1962 and under S. 54 of Copyright Ordinance, 1962, plaintiffs were entitled to such protection. [P. 243] G & H

(ii) Trade Marks Act, 1940 (V of 1940)--

—Passing off in traditional sense is primarily concerned with unfair competition between traders-Question of deception of public which may be caused by passing off goods is not of that importance because passing off action is normally not an action which is brought by a member of public on ground that such person was deceived but it is brought by traders because such trader fears that his trade will suffer from deception that is being practised on public-Tassing off' is question of trade rivalry rather than of deception and a case of dishonesty inasmuch as another party tries to take advantage of the efforts and expenditure made and incurred in developing a product by another party. [P. 237] A

1987 SCMR 1090 ref.

(Hi) Trade marks Act, 1940 (V of 1940)-

—Concept of spill over advertisement is that it is not a direct advertisement but one finds its way amongst people in different lands through media.

[P. 239] B

(iv) Trade Marks Act, 1940 (V of 1940)--

—Terms "unfair trade" and "unfair competition" are treated interchangeably—Both relate to interference with business of another by

2000 dabur india ltd. v. hilal confectionery (Pvr.) ltd. Kar. 231

(M. Shaiq Usmani, J.)

wrongful acts, including gleaning trade secrets by subterfuge by which goodwill of a business is appropriated or an unfair advantage gained.

[P. 240] C

(v) Trade Marks Act, 1940 (V of 1940)--

—Ss. 20(2) & 73--"Passing off" actions-Essential ingredients (i) a misrepresentation; (2) made by a consumers of goods or services supplied by him; (4) which is calculated to injure business or-goodwill of another trade and (5) which causes actual damage to a business or goodwill of trader by whom action is brought or who will probably do so.

[Pp. 240 & 241] D

(vi) Trade Marks Act, 1940 (V of 1940)--

—S. 20(3)~"Trans passing off'--Where attempt of a trader is to initiate is dishonest and deliberate and is with a view to make unlawful gains, thenobviously it will fall in category of "trans passing off'-Where element of dishonestly and deliberate attempt to do is missing, then same may not be a "trans passing off. [P. 241] E

(vii) Trade Marks Act, 1940 (V of 1940)-

—Ss. 20(2) & 73-CivU Procedure Code, 1908 (V of 1908), O.XXXK, Rr. 1 & 2~Interim injunction-Trade mark of plaintiff was not registered in Pakistan but had a Trans Border Reputation in so far as Pakistan was concerned-Products of plaintiffs were very well known in Pakistan due to spill over advertising and introduction of satellite television-Trade mark in dispute was registered by someone else in Pakistan and same was acquired by defendants-Validity-Plaintiffs had made out their prima facie case for trans passing off and suffering of considerable loss by them, was also established-Balance of convenience was entirely in favour of plaintiffs and element of reciprocity also existed as the concept of Trans Border Reputation was recognised under law of the country of plaintiffs-­ Interim injunction was granted in circumstances. [P. 242] F

(viii) Trade Marks Act, 1940 (V of 1940)-

—Ss. 20(2) & 73~Civil Procedure Code, 1908 (V of 1908), O.XXXIX, Rr. 1 & 2~Interim injunction-Trans Border Reputation of a trade mark-Failure to point out element of dishonestly in use of such trade mark by defendants-Effect-Defendants had been using disputed mark since 1988 for a different product and same was being done openly and not surreptitously-Disputed trade mark was registered in name of defendants despite opposition of plaintiffs-Element of dishonesty was not at interlocutory stage-Where plaintiffs failed to show that concept of Trans Border Reputation was recognised in their country the element of reciprocity was missing-Plaintiffs having failed to make out a prima facie case of passing off as well as infringement, interim injunction was refused in circumstances-

[P. 243] I

Mr. Sharifuddin Pirzada with Hassan Irfan Khan, Advocates for Plaintiffs (in Suit No. 14 of 1995).

Mr. Khalil Qazilbash,Advocate for Defendants (in Suit No. 14 of 1995).

Mr. Hassan Irfan Khan, Advocate for Plaintiffs (in Suit No. 227 of 1998).

Mr. Khalil Qazilbash, Advocate for Defendants (in Suit No. 227 of 1998).

Date of hearing: 21.5.1999.

judgment

By a common order I propose to dispose of the applications in both the above suits since the point of law and to some extent the facts are also similar. However, the facts of these two cases have been narrated separately.

Suit No. 14 of 1995

Brief facts of the case are that in the year 1972 plaintiffs adopted the trade mark Hajmola in relation to ayurvedic digestive Churan tablets. It is contended by the plaintiffs that since then they have used this trade mark extensively and continuously. Thereafter, since February, 1989 the plaintiffs also started using the said trade mark Hajmola in relation to digestive candies. They also adopted artistic and distinctive wrappers in relations to Hajmola digestive candies, for different flavours. The plaintiffs claim to be the legal and equitable owners of copyright in the said artistic work and thereby claim an exclusive right to use of all features of the Hajmola candies wrappers. It is stated by the plaintiffs that by virtue of membership of India and Pakistan of the Berne Convention for the protection of Artistic and Literary Works 1884 and the Universal Copyright Convention, 1952 and Section 54 of Pakistan Copyright Ordinance, 1962 these wrappers etc. are also to be deemed to be published in Pakistan in a like manner as in India. The trade mark Hajmola had also been registered in U.K. in 18.4.1980 and in India on 2.8.1972. There are various other products of the plaintiffs under the Hajmola trade mark for which the applications for registration arepending in India. The application dated 21.11.1993 for its registration in Pakistan is also pending in Pakistan as well as In Bangladesh.

The plaintiffs contend that the goods with the mark of Hajmola as well as under the wrappers mentioned above are extensively sold in India, U.K. U.A.E. Kuwait, Omman etc. They say that these goods are freely available in Pakistan as they find their way into these countries through various channels. They also say that they have incurred considerable expenditure on advertisement of their products. Consequently, due to selling and continuous user extensive advertising and large sale the plaintiffs' trade mark Hajmola and Hajmola Candies Wrappers A and B have acquired good will and reputation and have become distinctive of the goods and business of the plaintiffs and the traders in Pakistan as in other countries mentioned above by now recognize and associate the trade mark Hajmola as well as the original Hajmola Candies wrappers A and B with the products originating from the plaintiffs only. They state that in addition to the reputation of their trade mark Hajmola and the Hajmola Candies Wrappers in Pakistan through the availability and sale of its goods the reputation goodwill of the mark has also spilled over to Pakistan through other circumstances such as extensive foreign travel by Pakistani populace throughout the Middle East and even in the Common Wealth countries.

It is contended by the plaintiffs that the defendants is also engaged in the business of manufacturing and sale of similar kind of candies and they seem to have adopted the trade mark Hajmola and Candies Wrappers for three flavours at least, as that of plaintiffs. The defendants also seem to have adopted the trade mark Hajmola in identical logo scripts and with the identical device as appearing on plaintiffs' Hajmola Candies Wrappers and has adopted copyright design get up devices as that of plaintiffs Hajmola. The plaintiffs contend that the use by the defendants of the Hajmola marks and the wrappers is bound to create confusion or deception amongst members of the purchasing public which will be induced to believe that the goods of the defendants originate from the plaintiffs. This according to the plaintiffs would amount to passing of the goods and or business of the defendants as that of the plaintiffs. According to the plaintiffs, the defendants by deliberately adopting Hajmola trade mark and by coying its distinctive wrapping are acting dishonesty with mala fide motive to encash the goodwill and reputation attached to the plaintiffs' Hajmola mark and Hajmola Candy Wrappers. The plaintiffs claim that due to this act of the defendants they are suffering great loss and hence seek injunction as prayed.

On the other hand the defendants in their verbose pleadings contend that it was in the year 1985 when Mr. Ali Muhammad the then soleproprietor of Hilal Confectionery, Hyderabad started manufacturing and selling sweets, candies, toffees, chocolates and other allied products falling in Classes 30 and 5. Then in the year 1985 in order to distinguish their products the said Hilal Confectionery started use of worel mark Hajmola on the distinctive wrappers sweets, candies. Thereafter, in 1988 the said sole proprietorship concern was converted into a private company named Hilal Confectionery (Private) Limited and it continued to business of producing sweets candies under the trade mark 'Hajmola' with the distinctive wrapping. The defendants contend that they have spent a great deals of money on advertising of their products and due to large scale use of Hajmola mark alongwith the device and the wrapping these have become distinctive for sweets candies or distinctive tablets produced by the said firm or the company and that others such as the plaintiffs are now trying to dishonestly partake of such reputation. They contend that if the other parties are allowed to use the mark and their distinctive wrapping it would create confusion in the mind of the public and would result in their being deceived. The defendants deny the contentions of the plaintiffs that their goods are distinctive of the mark and that they have been in Pakistani market for a long time. Towards the end of their written statement the defendants somewhat, as an afterthought have added that this mark was registered under No. 78160 on 4.11.1982 for Unani Medicines in Class 5 in the name of M/s. Khamisani Sons Agencies and Suppliers Karachi who have assigned the said mark by an assignment deed dated 6.8.1995 to the defendants. The defendants therefore now claim to be registered proprietor of this mark as well.

Suit No. 227 of 1998

The plaintiffs in this suit claim to be a multi-national company based in Japan and state that they are the owners of Trade Mark 'Hitachi' with a circular design which is a mark known all over the world. In Pakistan also they claim to have registered this mark as Registration No. 21541 in Class 7 dated 27.2.1954, No. 21542 in Class 9 dated 27.2.1954, No. 21543 Class 11 dated 27.2.1954 and No. 83716 in Class 14 dated 12.8.1984. However relevant registered trade mark for purpose of this suit is Trade M?rk No. 21541 in Class 7. The plaintiffs contend that they have spent million on advertising of their mark the world over and according to them it is by now a household word practically every where and also in Pakistan. They say that they have by now acquired a reputation and goodwill in respect of this mark.

In spite of the fact that the plaintiffs under the law are entitled to exclusive use of this mark, the defendants adopted the word 'Hitachi' alongwith some other features of the mark used by the plaintiffs and applied for its registration through Application No. 105531 in Class 7 dated 25.1.1990 in respect of all kinds of fitters. This application proceeded towards registration and when published in Trade Mark Journal the plaintiffs field a notice of opposition with a view to oppose the registration of the trade mark in the name of defendants. The plaintiffs, upon learning that the defendants had also registered the level of design under the Copyright Ordinance, 1962 they moved a rectification app ; cation against the said Copyright Registration No. 3286-COER before the Copyright Board. This Application was allowed and the Copyright Board ordered the expunging of the word Hitachi from the said Copyright Registration. The defendants then appealed from the order of the Copyright Bonrd which is pending before the Lahore High Court

In the opposition proceedings to the registration of the trade mark by the defendants the plaintiffs provided all the necessary proofs and evidence but even then the learned Assistant Registrar of Trade Marks rejected the opposition application and allowed the application of the defendants for registration of the mark 'Hitachi' to proceed to registration. The orders of the Assistant Registrar of Trade Marks where then appealed from by the plaintiffs in Miscellaneous Application No. 15 of 1996 in this Court which is still pending. The plaintiffs submit that the adoption of the Hitachi mark by the defendants is illegal and is in imitation of the plaintiffs' mark. The plaintiffs also submit that apart from infringement of the mark by the defendants they have also committed the tort of 'passing off inasmuch as they are trying to pass off their goods and business as if it was of the plaintiffs. The plaintiffs therefore pray for an injunction to restrain the defendants from continuing the use of the trade mark 'Hitachi'.

In so far as the Defendant No. 1 are concerned they have preliminary objections to the filing of this suit in that they say that suit is not maintainable under Sections 21 and 20(2) of Trade Marks Act, 1940 as the plaintiffs till recently had never used the word mark Hitachi or the circular device for brake oil fluid in Class 7 whereas the plaintiffs are by now the registered proprietor of the trade mark Hitachi for oil filters and for brake oil fluid. The defendants further contend that they have been using this mark since 1988 alongwith the oval device and have spent considerable large sums on publicity and their sale and turn over has been continuously increasing since 1988 and now the mark has become distinctive of their goods. They therefore, have acquired reputation and goodwill in this mark. They say that in order to protect their rights in the mark they applied for its registration and in spite of its opposition by the plaintiffs this mark has now been registered as Trade Mark No. 105531 on 25.1.1990 in Class 7. They submit that plaintiffs' mark Hitachi has only been used for electric or electronic goods or generators or its parts in Pakistan and there is no connection between the goods for which the mark is used by the plaintiffs and the goods for which the said mark is used by the defendants. They also submit that the plaintiffs are not the registered proprietors or user of the mark Hitachi in Pakistan for oil filters or in any other goods of this description in Class 7 and that their registration covers different goods such as generators or machinery or electronics goods. The defendants, therefore, claim exclusive use of the mark 'Hitachi' since they are the registered proprietors thereof. They, thus, submit that the plaintiffs are not entitled to the injunction restraining them from using the mark 'Hitachi' for oil filters and for brake oil fluid.

Having narrated the facts of both suits, I can now proceed to deal with the applications in the two suits being C.M.A. No. 73 of 1995 and C.M.A. No. 1906 of 1998. Through these applications the plaintiffs in both these suits seek to restrain the use of their respective marks by the defendants pending decision in the suits. Dealing with Suit No. 227 of 1998 first, I find that it is an admitted position that the Defendant No. 1 is the registered proprietor of the mark Hitachi for oil filters in Pakistan. It is also an admitted position, which is apparent from the description in the plaint of the specific goods, that the mark is registered in Class 7 and that it does not cover oil filters. As to what were the consideration of the Assistant Registrar for arriving at a conclusion that the plaintiffs were entitled to registration of the mark Hitachi for oil filters even though it is obviously a very well-known mark, it is not for me to decide at this stage in this application. This issue is subject-matter of Miscellaneous Appeal No. 15 of 1996. It seems to me that no injunction has been granted to the plaintiffs in this miscellaneous application restraining the registration of the mark in favour of the defendants and consequently, the registration in favour of the defendants was not stopped. Under the circumstances, I feel that deciding of this application would in effect mean deciding the main issue in the miscellaneous application itself, which I would not venture to do. Consequently, in my view, this application is not maintainable in so far as the ground of infringement is concerned. Once a mark has been registered its registered proprietor has exclusive right to its use because if it were otherwise then there would be no purpose in registration of a trade mark in the first instance. It is true that such registration does not constitute final appropriation of the mark by the applicant and it can be challenged either in appeal or under the provisions of Trade Marks Act. But till that happens the use of a mark by a registered proprietor cannot, by any stretch of imagination, be regarded aa infringement of the mark in question. Indeed it will be contradiction in terms. But the plaintiffs have yet another weapon in their arsenal, they have made an alternate plea of "passing off', which I shall proceed to discuss now.

It is here that there is a common ground between these two suits, since the claim in Suit No. 14 of 1995 is entirely based on passing off. But it is not the passing off of the ordinary variety that the plaintiffs in both suits have urged. They claim that their marks are what may be called a "well-known marks" giving rise to a different kind of passing off.

Now passing off in the traditional sense is primarily concerned with unfair competition between the traders. The question of deception of the public which may be caused by the defendants palming of the goods is not of that importance because passing off action is normally not an action which is brought by a member of the public on the grounds that he was deceived but it is brought by the traders because he fears that his trade would suffer from the deception that is being practised on the public. It is, therefore, a question of trade rivalry rather than of deception. It is also a case of dishonesty inasmuch as another party tries to take advantage of the efforts and the expenditure incurred in developing a product by another party. Industrial espionage is a fact of life so is a general practice of imitation in the world today. In this connection it may be appropriate to reproduce a passage from Salmond in his Jurisprudence as approvingly cited in 1987 SCMR 1090, whereby the right to the exclusive use of a mark that has been created by somebody is described:

"He who by his skill and labour establishes a business acquires thereby an interest in the goodwill of it, that is to say, in the established disposition of customers to resort to him. To this goodwill he has an exclusive right which is violated by anyone who seeks to make use of it for his own advantages, as by falsely representing to the public that he is himself carrying on the business in question. Special forms of this right of commercial goodwill are rights to trade names and trade marks. Eveiy man has an exclusive right to the name under which he carries on business or sells his goods~to this extent at-least that no one is at liberty to use that name for the purpose of deceiving the public and so injuring the owner of it He has a similar right to the exclusive use of the marks which he impresses upon his goods, and by which they are known and identified in the market as his."

Hitherto a party could claim exclusive use of a trade mark on two grounds. One because of being a registered proprietor of the mark and two, being a user for a long time. It is for his reason that there is a stamp of "territoriality" on the law of trade mark not only in Pakistan but elsewhere as well. The inherent parochialism that has led to the imprint of territoriality with which Trade Mark Law is imbued is based on protectionism, that is the desire to protect the local industries from inclusions by foreign entrepreneurs. From the Nationalist point of view this was a laudable feature of this Act in the times when the means of communication were not so wide-spread, when a common man was not exposed to goods used or manufactured in foreign lands. However, in the recent past particularly after the Second World War due to communication implosion it has now become possible for big multinational corporations to project their goods through television, satellite and now even through internet to the remotest corners of the world. They are, therefore, able to acquire a reputation and goodwill in their mark amongst people who probably have never even seen their goods and even before they begin to trade in those countries. This is the first crack in the edifice of "territoriality" that had been built round the law of trade marks. The world is trying to reconcile to this changed situation and through various conventions at the International levels, ideas have been floated to give recognition to what has come to be known as Veil-known marks'. One such convention is the Paris Convention which now recognizes doctrine of well-known marks. Here it may be appropriate to reproduce a paragraph from a book called 'Famous and Well-Known Marks and International Analysis" by Frederick W. Mosterfc

"The doctrine of well-known marks recognizes an important and growing exception to the doctrine of strict territoriality. Sometimes, the doctrine of well-known marks has been only grudgingly, reluctantly and inconsistently applied in some nations. But the pressures of global trade, as reflected in the 1994 Gatt trips Agreement, have made vigorous implementation of the well-known marks rule a high priority in almost every nation."

What has in fact happened is that there is yet another kind of reputation which has taken shape that is now commonly known as "Trans Border Reputation". This reputation has now come to be accepted in most countries of the world but not so in Pakistan so far. There have been cases in Pakistan where oblique references have been made to well-known trade marks and on occasions their importance has been recognized but there has not been so far any acceptance of Trans Border Reputation in Pakistan. It is, however, otherwise in India where initially view had always been that an action for passing off cannot succeed unless the plaintiff carries on a business relating to the trade mark in the relevant jurisdiction. The first attack on this principle was launched in the case of Scotch Whisky Association v. Mohan Meakin Ltd., 1993 IPLR (1863) in which the learned Judge observed as follows:

"I must express my reservation about the observations made by the Court of appeal (in the Budweiser case) that action of passing off cannot be maintained unless the plaintiffs establish that the business activities are carried out at the place of action. It is possible that the plaintiffs may suspend their business activities for short duration and ti^at fact would not destroy the right of plaintiffs to the action when there is invasion of the reputation of the goodwill acquired over years."

However, this decision did not Constitute an authority for the proposition that an action for passing off may lie even when no goods have been sold in India but this was not the end of the onslaught on the principle of territorialily'. The next case of importance in India was that of Katnal Trading Company v. Gillette U.K. Ltd. 1988 IPLR 135, where the Court came to the conclusion that famous and well-known marks could acquire a reputation in India even though they were not sold in the country. While deciding this case the Court relied on the fact that the mark "Yardley\ was well-known in India, because of the advertisement in foreign newspapers and magazines that were circulated in India and that a large number of Indians travelled abroad and had the opportunity to use the goods, and thus, they carried the impression of those goods in their minds leading to development of a reputation for those goods in India. This was recognition of the concept of spill over advertisement that is to say, not direct advertisement but one that finds its way amongst people in different lands through media. In yet another case, that is of William .Grant & Sons v. McDowell & Co. Ltd., reported in 1994 FSR 690, the question of Trans Border Reputation was again considered and the learned Judge observed as under

"These cases recognise that the reputation of a trader, trading or carrying on business in another country, can travel to a country where he has had carried n» business. The trader's trans border reputation can be on the basis of extensive advertisements and publicity. Such a trader could obtain an injunction where he was not trading, so as to protect his reputation. The Indian Courts also recognize the existence of trans border reputation."

Considering that emergence of the concept of the Trans Border Reputation arises from spill over advertising and extensive travel, there is no reason why this concept should not be accepted in Pakistan as well. If anything, the Pakistanis are more avid travellers than the Indians. In any case in the modern day and age one cannot ignore the fact that worldwide advertising campaign has a tremendous impact on the minds of people. What has now happened is that whereas initially reputation in respect of a mark depended entirely on the actual physical sale of trading in those goods under that mark in the country in question but now it has begun to be accepted that reputation can take root even through impression that the individuals carry in their minds. It is true that reputation has always been an incorporeal object but the fact that now it is the impression in the minds of people that counts, it has become all the more incorporeal.

Having, thus, come to a conclusion that there is such a thing as Trans Border Reputation' which the trade mark law in Pakistan ought to recognize, if only to be in tune with the rest of the world, the question that arises is what are the characteristics of passing off in a situation where Trans Border Reputation exists. In the earlier days passing off merely entailed a person trying to sell of something as if it was of someone else. There was thus an actual competition in the market between the erring trader and the original trader to see their goods but in case of a mark that has a Trans Border Reputation there is usually no competition of all in fact more often than not what happen is that on one side there is a giant and on the other a puny little trader. The small traders, the world over, particularly in the third world countries and also amongst the emerging economic tigers try and use the well-known marks with Trans Border Reputation to launch themselves into business. What they in fact do is to use the well-known mark as a spring board for marketing their products. The question is, is it a wrong for them to do so or should it be condoned as merely an attempt to become known by attaching themselves to a well-known mark much as a young ambitious person would attach himself to a famous person to gain prominence? Does such a small trader in such an event commit tot of passing off? Does it Constitute unfair trading? Unfair trade is defined in Corpus Juris Secundum asunder:

"Unfair trade: The terms 'unfair trade' and 'unfair competition' are treated interchangeably. Both relate to interference with the business of another by wrongful acts, including gleaning trade secrets by subterfuge by which the goodwill of a business is appropriated or an unfair advantage gained."

As regards passing off, the classical ingredients of passing off were laid down by Lord Diplock in the House of Lords case of Erven Warnink B.V. and another v. J. Townend & Sons (Hulf) Ltd., reported in 1980 RDC page 31. The relevant passage is as under:

"My Lords. Spadding v. Gamage and the later cases make it possible to identify five characteristics which must be present in order to create a valid cause of action for passing off: (1) a misrepresentation (2) made by a trader in the course of grade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business of goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and (5) which causes actual damage to a business orgoodwill of the trader by whom the action is brought of (in a quia time action) will probably do so."

Looking at these two authoritative definitions of passing off and unfair trade and juxtaposing it with the feeble attempt of a small trader to launch his products by hanging to the coat-tails of a giant, one would find that the attempt of such trader does not fall within these two definitions at all because what these two definitions collectively emphasize on is loss suffered by one person due to act of deception by another in attempting to sell his goods as that of the said person with a view to gain unfair advantage. But in this confrontation between an elephant and a mouse as it were, deception is not the issue at all, which has hitherto always been regarded as the corner-stone of a passing off action. When a small trader copies the mark of a giant trader he is not doing it to deceive the public, he is only doing it to become known. Nor is the public deceived either. People these days relish the idea of buying clothes and other goods with take designer labels knowing that these are fake. They do it only to keep up with the Joneses, as it were. The moment one sees a counterfeit mark of label of a famous or well-known mark one knows instantly that it is counterfeit because of difference in quality and the appearance, but one still buys it because today we live in a culture where appearances count. Nor for that the matter the giant trader suffers any particular loss because of this imitation as the market for his goods is different and that remains unaffacted by counterfeiting at a lower level.

The issue in case of Trans Border Reputation is not deception but the frayed corporate ego of the giant trader. It is his desire to maintain the exclusively of his goods being sold under his mark that impetes him to prevent its use by the ordinary traders. Would then such use by a small trader in a different countiy, of a mark with a trans border reputation constitute passing off in the traditional sense? I think not passing off in such a situation has to be re-defined and may even be given a new name to distinguish it. For lack of any better word I will term it "Trans Passing-off'.

But this is not to say that small traders should be given a free rein imitate well-known marks with impunity. One has, thus, to distinguish between various traders who indulge in such act and this is where the element of 'dishonesty' assumes importance. If the attempt of the trader to imitate is dishonest and deliberate and is with a view to making unlawful gains then obviously it will fall in the categoiy of 'Trans Passing-off but if the element of dishonesty and deliberate attempt to do this is missing then it may not. Incidents of dishonesty could be (this list is by no means exhaustive) adoption of well-known mark surreptitiously as opposed to openly or adopting by one who is neither a manufacturer nor a user and does it only for onward sale. What is, therefore, important to see is the intention of the offending party in indulging in such an act. Needless to say that this will always be a question of fact. There is yet another aspect that needs to be considered when 'Trans Passing-off is the issue, that is of 'reciprocity'. Now it is not unusual in the history of the world trade that imitation has been restored to by traders, offend with the backing of Governments of their countries, to launch themselves in the world market. Indeed Japan, which today is a leading industrial country, in the earlier years after the Second World War was well known for imitating the western famous marks/products. The so-called Asian tigers, who rose to prominence recently also indulged in imitation often with Government backing. The question is whether the industrial/corporate giants of this world should be permitted to steam roll over every small time trader in smaller countries if they, ever attempt to hang on to their coat-tails. The answer would be yes; if they do so dishonestly. But I would add that the small trader should be restrained only if the country of the giant trader recognizes the concept of 'Trans Border Reputation'. What in effect it means is that there ought to be reciprocity. It will be travesty of justice if one was to bind oneself hand and foot before the onslaught of the industrial giants and not expect their countries to reciprocate in the same manner. I would, therefore, hold that if the entrepreneur/manufacture relies on Trans Border Reputation to prevent the offending party from using its mark then such party must show that the concept of Trans Border Reputation is also recognized under that country's laws. This may be done inter alia, by citing of reported judgments from the Courts of these countries.

Dealing with Suit No. 14 of 1995 in this perspective, I find that the plaintiffs have brought sufficient evidence on record to show that the word Hajmola has a Trans Border Reputation in so far as Pakistan is concerned. The products with Hajmola mark are veiy well-known in this country due to spill over advertising and the introduction of the satellite television which beams Indian programmes in practically every home in Pakistan. The plaintiffs have been able to show that they have been user of this mark for a longtime and that the defendants have only acquired trade mark 'Hajmola' through assignment only recently i.e. 6.8.1995 and that too, after the filing of this suit. Clearly the trade mark was acquired by the defendants only to lend themselves some credibility. But the very fact that they have acquired the trade mark recently and that it was registered by some one else in Pakistan in 1982 is an indication of the fact that the defendants were not the users of this mark for as long as they claim. I find that the attempt of the defendants to take advantage of the Trans Border Reputation of the plaintiffs mark is clearly dishonest which is manifested in the manner in which they have sought to acquire the trade mark after filing of this suit and surreptitiously using it so longprima facie, therefore, I find that the plaintiffs have made out a case for 'trans passing-off particularly because it has been shown by the plaintiffs that the element of reciprocity also exists inasmuch as the concept of 'Trans Border Reputation' is recognized under the Indian law, which is borne out by the case-law cited above. I also find that the plaintiffs stand to suffer considerable losses because of the attempt by the defendants to pass off their goods as that of the plaintiffs. The balance of inconvenience is, therefore entirely in favour of the plaintiffs. In so far as plaintiffs' copyright in respect of Hajmola Candy Wrappers A and B, as shown in the plaint, is concerned, plaintiffs claim that by virtue of their being legal owner of this copyright in India, under Berne Convention, to which Pakistan is a signatory, they are entitled to protection of the said copyright even in Pakistan. In Pakistan copyrights are Governed under Copyright Ordinance, 1962, relevant portion of Section 54 whereof reads as under:

1. Power to extend copyright to foreign works.-d) The Central Government may, by order published in the official Gazette, direct that all or any of the provisions of this Ordinance shall apply-- (a) to works first published in a foreign countiy to which the order relates in like manner as if they were first published within Pakistan.

Considering that the Central Government has through International Copyright Order, 1968 extended the application of Copyright Ordinance, 1962 to "any work first published in a countiy mentioned in the Schedule (which includes India) in like manner as if it was first published within Pakistan". I find that there is sufficient force in the argument of learned counsel for plaintiffs, Mr. Pirzada's and I, therefore, hold that the said copyright of plaintiffs is entitled to protection under the law of Pakistan. The result of the above discussion is that I would allow C.M.A. No. 73 of 1995 in Suit No. 14 of 1995 as prayed.

In so far as the Suit No. 227 of 1998 is concerned, again examining it in the same perspective I am convinced that the plaintiffs have brought sufficient evidence on record to show that their mark as Trans Border Reputation but what they have not been able to show is that there is an element of dishonesty in so far as the defendants' use of his mark for oil filters is concerned. The fact remains that the defendants have been using this mark for oil filters since 1988 and that he has been doing it openly not surreptitiously inasmuch as he applied for and obtained registration of the mark after having been subjected to opposition by plaintiffs. While it is possible that the defendant has used the mark as a spring board to attract attention, but whether there is an element of dishonesty in it or not is something that is not possible for me to determine finally at this interlocutory stage. This will obviously require further evidence. Moreover, the plaintiffs have not shown that the concept of Trans Border Reputation is recognized by the Japanese Law, hence the element of reciprocity is missing. It is, therefore, apparent to me that a prima facie case of trans passing-off has not been made out by the plaintiffs as against the defendants. I have already held that the plaintiffs have not been able to make out a case for infringement. I would, therefore, dismiss C.M.A. No. 1906 of 1998 in Suit No. 227 of 1998.

(T.A.F.) Order accordingly.

PLJ 2000 Karachi 244 (DB)

Present: nazim hussain siddiqui, C.J. and ghtjlam rabbani, J.

FARUKH DIN and others-Petitioners

versus

GOVERNMENT OF SINDH and others-Respondents

C.Ps. Nos. D-541, 567, 639, 647, 678, 679, 680, 735, 736, 737, 795, 796, 797, 798 and 799 of 1999, decided on 6.10.1999.

(i) Board of Intermediate and Secondary Education, Larkana--

—-Vol. Ill, R. 22~Constitutional petition-Detection of mistake in result at a later stage-Rectification-Education Board, in view of its authority under Vol. Ill, R. 22 of Board of Intermediate and Secondary Education, Larkana issued such notification in respect of candidates to deposit their marks/pass certificates issued to them and to receive fresh certificates without opportunity of being heard to the candidates-Validity-Where such notification was issued after full-fledged inquiiy, nothing was wrong in that notification-Education Board had jurisdiction to rectify mistake detected at later stage-Where at the time of enquiry proceedings it was not known to the Authorities that as to who were those andidates, who were involved in committing forgery in record of Board, question of affording opportunity of being heard to candidates, before enquiiy proceedings were initiated, would not arise at all-After issuance of such notification, show-cause notices were issued to candidates to explain their position but none of them seriously contested findings of such enquiiy report and merely relied upon techncialities-High Court, after having seen original registers, was of opinion that forgery was committed and interpolations were made therein-Enquiry ommittee had, thus, rightly noted that rubbing, cutting and overwriting were common features in ledgers, tampering with documents was done with connivance of staff of Board-Where any right emanated from forgery, fraud and misrepresentation, such was not a legal right-Constitutional petition was dismissed in limine in circumstances. [P. 249] A & B

Mr. Abrar Hassan, Mr. Farced A. Dayo, Mr. Gul Bahar Korai, Mr. Ghulam Qadir Jatoi and Mr. M.L. Shahani, Advocates for Petitioners.

Mr. Iqbal Raad, A.G. Sindh.

Mr. Illahi Bux. M. Kehar, Advocate for Respondents Nos. 1, 2 and 3.

Dr. Mehboob All Shaikh, Chairman, Board of Intermediate and Secondaiy Education, Larkana (in person).

Barkat Alt Mehar, Assistant Controller of Examinations H.S.C. Secret, BISE, Larkana.

Date of hearing: 13.8.1999.

judgment

Nazim Hussain Siddiqui, C.J.--This judgment will dispose of Constitutional Petitions Nos. D-541, 567, 639, 647, 678 to 680, 735 to 737, 795 to 799 of 1999. In all these petitions, common questions of facts and law are involved.

1. The facts relevant for decision of these petitions are that a group of candidates of Pre-medical, who could not get the admission, addressed a joint complaint to Governor of Sindh, levelling serious allegations against the officials of the Board of Intermediate and Secondaiy Education, Larkana, including Mr. Ghulam Sarwar Thahim, Chairman, Mr. Khalid Saifullah Chachar, Controller of Examinations, Mr. Imdad All Mehar, Assistant Controller, H.S.C. and Mr. Zahiruddin Dawoodpota, Senior Superintendent. It was alleged that exalted marks were awarded to a few candidates to favour them. Further, it was alleged that those "privileged candidates" paid one lac rupees each to said officials to get the marks tampered and the result altered in their favour to bring them in the position to selection to Professional Medical/Engineering Colleges.

2. In order to examine the ahove allegations, a Committee, consisting of three officials, was set up for holding preliminary enquiry and the Committee, after spot inspection and examination of record of the specified favoured students, arrived at the conclusion that there were massive malpractice, including forgery and falsification of the record. Mr. Ghulam Sarwar Thahim, the Chairman, was asked to proceed on leave and Mr. Khalid Saifullah Chachar, Controller of Examinations, Mr. Imdad Ali Mehar, Assistant Controller, H.S.C. and Mr. Zahiruddin awoodpota were placed under suspension vide order dated 24.7.1998. Thereafter, aCommittee was constituted comprising of Mr. Khadim Hussain Junejo, retired Sessions Judge, adviser to Sindh Ombudsman, as Chairman, and Dr. Allah Rakhio Butt, Professor, Department of Library and Information Science, University of Sindh and Mr. Mehmoodul Hassan Khokhar, Controller of Examinations of B.I.S.E., Sukkur as Members. After holding enquiry, the Committee submitted its report in September, 1998.

The terms of reference for the Committee were: TERMS OF REFERENCE

Terms Nos. 1 and 2.-(i) To check thoroughly record examinations especially Intermediate Annual/Supplementary Examinations 1997 (Pre-Medical and Pre-Engineering) Parts I and II, compared Award Lists and Ledgers and find out inconsistencies/discrepancies. To list out all such results in which tampering and interpolation in record has taken place.

(ii) To prepare new merit list of Pre-Medical and Pre-Engineering Examination of 1997 based on actual results established after enquiiy. To suggest ways and means by which the actual deserving candidates may be accommodated in place of those who have been favoured dishonestly."

1. The Committee in its report disclosed the names of the students, who got inflated marks as posted in ledger. It also mentioned the actual marks of those candidates. The factual position regarding the inflated marks of the petitioners and their actual marks is as follows:

Muhammad Pathan Farha Agha d/o. Agha Sanaullah Hameeda Begum d/o. Syed Mithal Shah Ambar d/o. Agha Khan Shabir Ahmed s/o. Ghulam Hyder Muharam Ali s/o. Gazi Khan Shahzado s/o. Sikandar Ali Ahmed Hussain s/o. Ameer Ali Shah Shahida d/o. Shafi Muhammad Shah

830

867 853

842 850

844 844 841

859

800

837 814

770 818

800 786 801

805

1. 88978 Tariq All s/o. Ghulam 873 814

Muhammad

| | | | | | | --- | --- | --- | --- | --- | | 11. | 52582 | Meena d/o. Lachman Das | 823 | 794 | | 12. | 89270 | Deedar Ahmed s/o. Rehmatullah | 851 | 817 | | 13. | 50521 | Farzana d/o. Raja Gh. Hussain | 825 | 790 | | 14. | 55772 | Ghulam Asghar s/o. Ahmad Bux | 862 | 808 | | 15. | 55839 | Rafique Ahmed s/o. Muhammad Qasim | 880 | 844 |

1. The Committee in its report stated that it had to confine and concentrate largely on the two sets of documents, namely, Award List and the Ledger, as at that time answer scripts were not available and were allegedly disposed of in April, 1998. The Committee in its report, stated:

"There are glaring examples of tampering of the results. For example in many cases as mentioned above the marks in Award Lists don't tally with the marks entered in the Ledgers. There are several examples of insertion of marks in the award by the persons other than the examiners with mala fide intentions. The rubbings, cuttings and overwritings are the common features in the Ledgers. In many cases the marks posted in Ledger No. 1 (Original) don't tally with Ledger No.\ 2 (Duplicate). There are also examples of Double Award Lists in which the marks of favoured candidates have been increased."

1. The petitioners have challenged the Notification, bearing No. BISE/HSC(S)/LRK/-121, dated 31.3.1999, issued by the Board. of Intermediate and Secondary Education, Larkana, which is as follows:

"NOTIFICATION

'In pursuance of Resolution No. 1 passed by the Board in its meeting held on 1.3.1999, it is notified for the information of all concerned that having the authority vested under Board's Rule No. 22 of Volume III, the Result of HSC Part II, Annual Examination of 1997 announced on 24.9.1997, in respect of those 69 candidates, who were reported by the Enquiiy Committee are awarded 'actual marks' obtained by them in the said examination and as determined by the Enquiry Committee.

They are instructed to deposit their Marks/Pass Certificates issued to them and receive fresh Marks/Pass Certificates in lieu of actual marks obtained by them as per list attached.

All concerned are requested to give this notification wide publicity.

PROF. IRSHAD ALI SOLANGI, Controller of Examinations."

1. Petitioners, Ms. Farzana, Deedar Ahmed, Meena Kumari, Tarique Ali, Rafique Ahmed and Ghulam Asghar have also challenged the order dated 29.4.1999 of Principal and Chairman, Selection Board, Chandka Medical College, whereby their admissions were cancelled for submitting incorrect/false marks-sheets.

2. M/s. Abrar Hassan, M.L. Shahani and Ghulam Qadir Jatoi argued the case of the petitioners and Mr. Ghul Bahar Korai adopted their arguments.

3. Mr. Abrar Hassan contends that said notification is illegal, as it was issued without affording an opportunity to the petitioners of being heard. According to him, the other students continued to enjoy their admissions and only a few were selected for punitive action. Mr. M.L. Shahani has argued that said notification is based upon void enquiry as the same was conducted in violation of principles of natural justice and no sow- cause notices were issued to the petitioners while the enquiry was being conducted. He also argued that the respondents could not recall, revoke,rescind, amend or cancel the earlier Certificate issued to the petitioners, more particularly, when they were duly verified. Mr. Ghulam Qadir Jatoi submitted that the petitioners were admitted on merits and they were not heard before the issuance of the impugned notification.

4. As against above, learned counsel for the respondents contend that the petitioners had not secured the marks, as shown in the Mark-sheets and the actual marks secured by them were, as have been shown above. They also argued that on the basis of inflated marks and forged documents, they succeeded in getting the admission and that Marks Certificates were verified by the same officers, who in fact, fabricated and inflated the marks for showing favour of the petitioners. It is also urged on behalf of the respondents that the petitioners violated the norms of admission with impunity. They also argued that by the acts of the petitioners, the students who were higher up in the merit list, were deprived from seeking their admission.

5. In support of the petitioners, learned counsel for the petitioners cited, (1) Faiza Malik v. Chairman, Board of Intermediate and Secondary Education, Lahore and 2 others PLD 1992 SC 324; (2) Mrs. Anisa Rehman v.PIAC and others 1994 SCMR 2232; (3) Jawad Habib v. Secretary Education Department, Government ofN.W.F.P., Peshawar and Gathers 1998 MLD 17; (4) Punjab Engineering College Chandigarh v. Dharminder Kumar Singhal and others 1990 AIEC 75 (SC).

12.In case of Faiza Malik, which was also about inflated marks and forgery, it has been observed that if either examinee or the concerned relation or friend comes forward and take responsibility of having done that which is unfairly placed at the door of the examinee, the latter might on proper statement, a convincing one, be absolved of the responsibility. Ratio of above case is that whether the examinee could be absolved of the responsibility regarding inflated marks and forgery. In the case of Anisa Rehman, scope of maxim audi alteram partem was considered. In case of Jawad Habib, it was observed that though rule of locus poenitentiae was available to the authorities, yet, an order could not be undone and withdrawn if it had taken legal effect and had created certain rights in favour of an individual. In case of Punjab Engineering College, Chandigarh, the following was observed:

"4. Cases like these in which admissions granted to students in educational institutions are quashed raise a sensitive human issue. It is, unquestionably true that the authorities who are charged with the duty of admitting students to educational institutions must act fairly and objectively. If admissions to these institutions are made on extraneous considerations and the authorities violate the norms set down by the rules and regulations, a sense of resentment and frustration is bound to be generated in the minds of those unfortunate young students who are wrongly or purposefully left out."

1. Common ground of attack in these matter is that before the issuance of the impugned notification, the petitioners were not heard. It is noted that the Board, in view of its authority under Board's Rule 22 of Volume 3, had issued said notification in respect of concerned 69 candidates to deposit their Marks/Pass Certificates issued to them and to receive fresh certificates. Nothing was wrong in this notification and it was issued after full-fledged enquiiy. It was always within the jurisdiction of the Board to rectify the mistake detected at later stage. The question of affording opportunity of being heard to the petitioners before the enquiiy proceedings were initiated did not arise at all as at that time it was not known to authorities that as to who were those candidates, who were involved in committing forgeiy in Board's record. This notification could only be issued after completion of the enquiiy. After issuance of notification, show-cause notices were issued to the petitioners to explain their position. It is significant to note that none of the petitioners seriously contested the findings of Enquiiy Report and merely relied upon the technicalities. We have sen the original registers. It is evident that forgeiy was committed and interpolations were made thereon. As noted by the Enquiry Committee,rubbing, cutting and overwriting are the common features in the Ledgers.Tampering of documents was done with the connivance of the staff of the Board, the petitioners alleged right emanates from forgeiy, fraud and misrepresentation. It is not a legal right. The legal right is one, as generally understood, which is enforceable before Courts. It is based upon Statute and is invoked for having secured interest.

2. The petitioners by their above act, on the one hand, committed fraud and, on the other, deprived the deserving candidates from seeking admission, who were higher up in the merit list. We are of the view, that a wrong impression has been created, particularly among the students, that after getting admission in the College by fair or foul means, nothing would happen to them. It needs to be dispelled forthwith. Indiscipline in educational institutions shall be curbed. The arguments that most of these petitioners have cleared their First M.B., B.S. Examination and nothing would be achieved, if they, at this stage are deprived from pursuing their studies, is based upon wrong notion, as, on one hand, it would increase corruption and, on the other, inefficiency. Interest of individual is subservient to the Society.

Similarly Constitutional Petitions, Bearing Nos. 127, 168, 177, 182 of 1998 were filed at Circuit Bench, Larkana and were dismissed. In Petitions Nos. 168, 177-and 182 of 1998, which were decided on 1.2.1999, having taken into consideration the cases reported as (1) Chairman, Board of Mining Examination and Chief Inspector of Mines and another v. Ramjee, AIR 1977 SC 965; (2) Union of India and another v. Tulsiram Patel AIR 1985 SC 1416; (3) R.S. Dass v. Union of India and others, AIR 1987 SC 593; (4) Abdul Qadir and others v. The Settlement Commissioner and others PLD 1991 SC 1029; (5) Rehana Mehmood and 3 others v. Azad Government and 5 others 1997 MLD 2874, the following was observed:

"From the perusal of the above case-law it is evident that there is a clear distinction between the two situations, one where the right of such hearing is statutory and the other where such right is claimed on the principles of natural justice. In the former case such right is almost absolute, while in the latter case it is not so and exclusion of such right could be express or implied. Reverting to the facts of the present case it is clear that there was no statutory right subsisting in favour of the petitioners but they have attempted to set up such claim on the principles of natural justice. In the facts and circumstances of this case we find that when only correction in the Marks Ledger has been made by the Respondents Nos. 1 to 3 on the basis of genuine and authentic record of each candidate, the petitioners on the pretext of violation of any principle of natural justice cannot claim any such right."

1. Accordingly, we hold that the above petitions are not maintainable and the same are dismissed in limine.

(T.A.F.) Petitions dismissed.

PLJ 2000 Karachi 251

Present: S. ahmed sarwana, J. FOUR SQUARE ENTERPRISES-Plaintiff

Versus

KARACHI BUILDINGS CONTROL AUTHORITY-Defendant

Suit No. 877 and Civil Miscellaneous Applications Nos. 6468 and 5616 of 1997, decided on 17.1.2000.

Specific Relief Act, 1877 (I of 1877)--

—Ss. 42 & 54--Civil Procedure Code, 1908 (V of 1908), O.VII, R. 11-Sindh Buildings Control Ordinance (V of 1979), S. 20-A~Suit was filed without first giving notice to defendant/Authroity under S. 20-A, Sindh Buildings Control Ordinance, 1979, since no suit could be filed against efendant/Authority except after expiiy of sixty days' written notice delivered to or left at the Office of Authority, suit filed by plaintiff was not maintainable-Mandatory provision of law having not been complied with plaint was rejected especially when plaintiff had not come up before Court with clean hands and had no cause of action against defendant/ Authority- [Pp. 254 to 257] A, B, C, D & E

Mr. M. Aziz Malik, Advocate for Plaintiff. Mr. Naimur Rehman, Advocate for Defendant. Dates of hearing: 9 and 23.9.1999.

judgment

Pursuant to an application dated 3.5.1997 by Al-Kehkeshan (Pvt.) Limited through its Director Kamran Feroze karachi Building Control Authority (K.B.C.A.) on 23.6.1997 approved a building plan for construction of a building proposed for Plot No. 21-A, Central Commercial Area, Block-2. P.E.C.H.S., Karachi, consisting of Basement + Ground + 1/3 left + 4 Upper Floors only (Commercial). In response to Al-Kehkeshan's application dated 30.6.1997, KBCA by letter dated 3.7.1997 issued a No-Objection Certificate for sale and advertisement of shops and offices in the Project "Four Square Shopping Mall" to be built on the said plot. Thereafter, on 5.7.1997 Messrs Four Square Enterprise through its sole proprietor Haji Tayyab allegedly on the basis of a sale-deed dated 19.6.1997 in his favour filed the present suit for Declaration and perpetual injunction inter alia, seeking a declaration that the attempts made by K.B.C.A. on 4.7.1997 for demolition of plaintiffs structure, resistance in the completion of construction work and progress and interference in the plaintiffs user and enjoyment thereof and the threats advanced for cancellation/withdrawal/withholding approval of NOC wree illegal, mala fide, collusive, unlawful, discriminatory, without jurisdiction and that the plaintiff was the owner of the abovementioned property and entitled to use and enjoy the same and a Perpetual Injunction restraining through improper means, that under the umbrella of ad interim order plaintiff was carrying on the construction in violation of the approved building plan and that K.B.C.A. be allowed to carry out its statutory duty in accordance with law. On 1.10.1997 K.B.C.A. filed another application under Order VII, Rule 11, C.P.C. (C.M.A. No. 6468 of 1997) challenging the maintainability of the suit as the plaintiff had not given the mandatory two months' notice required under Section 20-A of Sindh Buildings Control Ordinance, 1979 (SBCO, 1979). The matter was listed for hearing on several dates but was adjourned for one reason or the other. Finally, on 1.4.1998 the Court modified the^bd-interim order to the extent that it permitted K.B.C.A. to take action Against the plaintiff in case they raised any construction in violation of the approved building plan and consequently on 13.7.1998 C.M.A. No. 6023 of 1997 of K.B.C.A. was disposed in terms of the said order.

Mr. Naimur Rehman, learned counsel for K.B.C.A. in support of his application under Order 7, Rule 11, C.P.C. submitted that the notice required under Section 20-A of SBCO, 1979 had not been given by the plaintiff and -as such the suit was not maintainable. In support of his argument he cited AIR 1949 PC 143; PLD 1976 SC 785; PLD 1992 Karachi 71, PLD 1995 Karachi 399. He further submitted that in the application under Order XXXIX, Rule 4 (C.M.A. No. 6023 of 1997), K.B.C.A. had clearly stated that the suit was mala fide, that the plaintiff had not started any construction over the site and had filed photographs of the site showing that at the relevant time only digging of the foundation was in progress which had not been denied by the plaintiff. Accordingly, the suit filed by the plaintiff was incompetent as there was no question or occasion for K.B.C.A. to issue any notice or threat to pull down any construction which was not in existence.

In reply to the aforesaid argument, Mr. M. Aziz Malik, learned counsel for the plaintiff, submitted that suit was maintainable if Sections 20 and 20-A of SBCO, 1979 were read together. He elaborated that Section 20 states that no legal proceedings shall lie against the Government or the authority or any person if anything is done in good faith under the Ordinance; therefore, if an act by K.B.C.A. is not done in good faith, a suit would be competent. In support of his argument he submitted that the plaintiff had alleged in the plaint that K.B.C.A. Officers had acted with mala fide intention and not as required by law, and therefore, the suit was competent. He further submitted that under Section 21-A(3) of SBCO 1979, the Karachi Building and Town Planning Regulations, 1979, were applicable to all approved plan and construction and Regulation 16(1) of the said Regulations required that if the building works are commenced or carried out contrary to the provisions of the Regulations, the concerned authority shall issue a nnt.ire t.n t.hp person who is carrying out such building works. However, instead of serving any notice K.B.C.A. Officers arrived at the site and attempted to pull down the construction which was contrary to law and therefore, the suit was competent. He relied upon 1998 MLD 1771 in support of his argument. Mr. Malik further submitted that pendency of the suit is itself a notice and filing of the suit should be deemed to be sufficient notice under Section 20-A of SBCO, 1979. He referred to the cases reported in 1985 SCMR 24. 1987 CLC 13 and 1993 CLC 349 in support of his contention.

I have heard and considered the arguments of Mr. Naimar Rehman, learned counsel for K.B.C.A. in support of his application for rejection of the plaint and Mr. M. Aziz Malik, Advocate for plaintiff against the same.

To understand the argument of Mr. Naimur Rehman that Notice under Section 20-A, SBCO, 1979 is mandatory it would be pertinent to first A reproduce the provisions of Section 80, C.P.C. as it stood prior to the amendment in 1962:"80. No suit shall be instituted against the Government, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to or left at the office of:~ (c) in the case of a suit against a State Government, a Secretary to that Government or the Collector of the district.

and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left."

In the case of Government of the Province of Bombay v. Pestonji Ardeshir Wadia and others AIR 1949 Privy Council 143 at 146 their Lordships observed as follows:

"[16] The provisions of Section 80 of the Code are imperative

and should be strictly complied with before it can be said that a notice valid in law has been served on the Government. In the present case it is not contended that any notice on behalf of plaintiffs 2 and 3 was served on the Government before the filing of the suit For these reasons the suit against the Government must be held

to be incompetent and the appeal fails." Further, Section 273(i) of the Cantonments Act, 1924 states that: "no suit shall be instituted against any Board or against any Member of the Board in respect of any act done or purported to have been done in pursuance of this Act until the expiration of two months after notice in

writing has been left at the office of the Board........ ". The Supreme Court of Pakistan in Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785, held that in the absence of two months' prior notice required under Section 273(1), the suit was not competent. Similarly Article 131(1) of K.D.A. Order, 1957, reads as follows:

"131. Notice of suit against Authority, etc.-(l) No suit shall be instituted against the Authority or any member or any person associated with the Authority or against any servant of the authority or against any person or persons acting under the direction or authority of the Chairman or of any officer or servant of the Authority, in respect of any Act purporting to be done under this Order or the Rules or Regulations made thereunder until the expiration of one month from the delivery of a written notice at the Authority office or the place of abode of such member, officer, servant or person, stating the cause of action, the name and place of the intending plaintiff, and the nature of the relief sought."

The above provision has been considered in several judgments of this Court and in all of them the Court has held that the requirement of a notice is mandatory and the suit would be barred for want of notice under Article 131 of K.D.A. Order, 1957 (See Zainab Hajiani v. AL-Hilal Cooperative Housing Society and 2 others PLD 1978 Karachi 848, Pakistan Railways v. Karachi Development Authority and 5 others PLD 1992 Karachi 71 and Zia-ur-Rehman Alui v. Allahabad Cooperative Housing Society Ltd. and 2 others PLD 1995 Karachi 399.

Now Section 20-A of the Sindh Buildings Control Ordinance, 1979, reads as follows:

"20-A. Notice for institution of suit.-No suit shall be filed against the Authority or any of its employees in respect of anything done or purported to be done by the Authority or such employee under this Ordinance except after expiration of sixty days next after notice in writing has been delivered to or left at the office of the Authority or employee as the case may be."

The woi'dings of Section 20-A, S.B.C.O., 1979 reproduced above are in essence similar to wordings of the unamended Section 80, C.P.C. Section 273(i) of the Cantonments Act, 1924 and Article 131(1) of K.D.A. Order, 1957. In view of the various judgments reproduced above, it can be said without any hesitance that no suit can be filed against K.B.C.A. except after expiration of sixty days' written notice has been delivered to or left at the office of KB. C. A.

The cases of Sjed A\hor Tmam Razvi v. Mst. Salma Khatoon 1985 SCMR 24 is in respect of Notice to transfer of ownership as envisaged under the West Pakistan Urban Rent Restriction Ordinance, 1959 and of

Muhammad Bux v. Karim Bux 1987 CLC 13 relied upon by Mr. Malik is in respect of notice for vacating the premises under Section 14 of Sindh Rented Premises Ordinance, 1979. Both statutes were enacted to regulate the relationship between landlord and tenant, are distinguishable and cannot be applied to the present circumstances of the case where a notice is required to be given to a statutory authority. The case of Syed Monawar Ali v. Tariq 1993 CLC 349 cited by the learned counsel is irrelevant as it relates to Section 12 of the Specific Relief Act.

In view of the above, it is clear that this suit is not maintainable as the plaintiff did not give the required notice Under Section 20-A of SBCO, 1979.

It is pertinent to note that in the application under Order XXXIX, Rule 2, C.P.C. (C.M.A, 6023 of 1997) K.B.C.A. had clearly stated that no construction at site was in progress at the time the suit was filed and in support had also attached photographs of the Site showing excavation work going on in preparation for laying the foundation of the building. The plaintiff filed a counter-affidavit against the said application but did not any where contradict or refute the said statement of fact or that the photographs filed by K.B.C.A. were not of the property in question showing its condition as alleged. Mr, Malik, learned counsel for the plaintiff, in his argument stated that no show-cause notice had been issued by K.B.C.A.; however, he added that the officers of K.B.C.A. had visited the site and threatened to pull down the construction. I fail to understand how K.B.C.A. Officers could pull down or demolish any construction when only digging of the site for laying the foundation was in progress and no tangible construction was in existence. The plaintiff not having denied or challenged the photographs filed by K.B.C.A. it is, prima fade, evident that the allegations made by the plaintiff in the plaint that the officers of the K.B.C.A. threatened to demolish and seal the premises are incorrect and cannot be believed. It appears that the plaintiff made these false allegations in the plaint in order to fabricate a cause of action for filing the suit with the ulterior motive to carry out illegal construction under the umbrella of an ad interim injunction which is a common practice followed by builders in Karachi which I have noticed from innumerable suits that have come up for hearing before me. I have no doubt in my mind that the plaintiff has come to this Court with unclean hands and had no cause of action against K.B.C.A. and the plaint is liable to be rejected on this ground also.

In light of the above discussion, the application under Order VII, Rule 11, C.P.C. filed by K.B.C.A. is hereby granted and the plaint rejected with special costs of Rs. 10,000 to be paid by the plaintiff within 15 days from the date of this Order to K.B.C.A. which shall use this amount for purchase of a computer for their Legal Department.

As a result of rejection of the plaint, the application under Order XXXLX, Rule 2(3) (C.M.A. 5616 of 1997) filed by the plaintiff has become infructuous and is dismissed as such.

At this stage it is pertinent to mention that in their application under Order XXXIX, Rule 4, C.P.C.. filed on 17.9.1997 K.B.C.A. had asserted in para. 4 of the application that the Administrator of K.M.C. as Chief Executive of K.B.C.A. in his letter dated 16.12.1993 had objected to the Plan submitted by Dr. Naseer A. Shaikh because the plot had been granted to the latter for purpose of running a hospital and had declined to change its use as a hospital-cum-commercial-cum-residential building. Further, on 1.4.1998 the Interim Order was modified and K.B.C.A.. had been granted permission to ensure that the construction was strictly in accordance with the law and within the four corners of the Building Control Rules and Regulations. Accordingly, K.B.C.A. is directed to submit a report within two months abut the action taken by them in respect of the said plot and the construction thereon. Further, as change of the use of the plot has apparently been allowed by K.B.C.A., the Report shall also state the provision of law under which the change in use was sanctioned togather with the name of the person with designation who sanctioned the same.

Compliance Report to be submitted within two months.

To come up for consideration of the compliance report on 13th March, 2000 when K.B.C.A. shall also produce the relevant file of the plot from the date of first allotment and all subsequent transfers including various applications for approval of construction plans thereon.

(T.A.F.) Order accordingly.

PLJ 2000 Karachi 257 (DB)

Present: ghulam rabbani and S.A. rabbani, JJ. ABDUL BASIT ZAHID and another-Appellants

versus

MODARABA Al-Tyarah & two others-Respondents

CMA No. 2050 of 1999 and CMA No. 296 of 2000 in 1st Appeal No. 38 of 1999, decided on 22.5.2000.

(i) Administration of justice--

—Counsel for Respondent has furnished his affidavit wherein he has no objection If application for restoration is granted and appeal is heard and decided on merits. [P. 262] A

(ii) Banking Companies (Recovery of Loans, Advances Credits & Finances) Act, 1997 (XV of 1997)--

—S. 18--O. XII R. 9 & O. 1 & R. l--Leanred counsel for appellant, has submitted that matter was fixed in month of November, 1999 and same was adjourned to a date to be fixed by office—At later time, according to him, he visited Roster Branch of High Court and noted 23rd December, 1999 in his case diary as next date of hearing of appeal-However, matter was taken up on 9th December, 1999 and it was dismissed for non- prosecution-Learned counsel then appearing for appellant learnt about dismissal and moved an application-He has submitted a photo copy of case diary to support contention that case was noted therein for 23rd December, 1999-He submits that learned counsel for appellant has been making appearance in appeal regularly and his non appearance, so also of appellant, on said date was neither willful nor intentional but due to reason stated by him-He has placed reliance of case of Municipal Committee, Rawalpindi vs. Raja Muhammad Sarwar Khan (1968 SCMR 817) and Raza Ali vs. Ahemd Saeed Khan (1983 CLC 1230)-Held : Matters should be decided on merits and technicalities should always be over looked to do justice to the parties-Following this golden principle, in circumstances of case, we allow this application, subject, however, to payment of cost in sum of Rs. 25,000/- to Respondent within 15 days~On such payment, appeal shall stand restored to its original position to be proceeded further accordingly to law. [P. 259] A

Mr. Muhammad Aziz Khan, Advocate for Appellant. Mr. Mansoorul Arifin, Advocate for Respondent No. 1. Mr. Salim Salaam Ansari, Advocate for Respondent No. 2. Date of hearing: 22.5.2000.

order

The appellants have prayed through this application that this appeal, which was dismissed for non-prosecution on 9th December, 1999, be restored to its original position. The application is supported by an affidavit of the counsel for the appellant.

This application has been resisted by Respondent No. 1 whose Chief Manager has filed a counter affidavit vehemently opposing the grant of this application.

Mr. Salim Salaam Ansari, counsel for Respondent No. 2, has furnished his affidavit wherein he has stated that he has no objection if the application for restoration is granted and the appeal is heard and decided on

merits.

It is also pertinent to note that Mr. Mansoorul Arifin, counsel for the Respondent No. 1, has also furnished his affidavit to controvert the contentions of the appellant as well as the contentions of the counsel for the Respondent No. 2. The appellant has submitted his rejoinder affidavit.

Learned counsel for the appellant, in his arguments, has submitted that the matter was fixed in the month of November, 1999 and the same was adjourned to a date to be fixed by office. At later time, according to him, he visited the Roster Branch of this Court and noted 23rd December, 1999 in his case diary as the next date of hearing of this appeal. However, the matter was taken up on 9th December, 1999 and it was dismissed for non-prosecution. Learned counsel then appearing for the appellant learnt about the dismissal and moved the instant application. He has submitted a photo copy of his case diary to support his contention that the case was noted therein for 23rd December, 1999. He submits that the then learned counsel for the appellant has been making appearance in this appeal regularly and his non-appearance, so also of the appellant, on the said date was neither wilful nor intentional but due to the reason stated by him. He has placed reliance of the case of Municipal Committee, Rawalpindi v. Raja Muhammad Sarwar Khan (1968 SCMR 817) and Raza All v. Ahmed Saeed Khan (1983 CLC 1230). Learned counsel for Respondent No. 2 has also supported the prayer of the appellant and stated his no objection to the grant of the instant application.

Learned counsel for the Respondent No. I has vehemently opposed the prayer of the appellant. The first objection raised by him is regarding maintainability of this application. According to him, in case of dismissal of the appeal, the same could only be re-admitted by invoking Rule 9 of Order 41, CPC. Next, he submitted that this appeal was listed in the cause list issued for 9th December, 1999, which is deemed to be a constructive notice to learned counsel for the appellant and the appellant himself, therefore, absence for whatever reason stated by the learned counsel for the appellant cannot be condoned. To substantiate this plea, he has placed reliance on the case of Bundu Shah & others v. Wilayatullah (1985 SCMR 1305). Further, he submitted that in case, 23rd December 1999 was noted as the next date of hearing by the counsel for the appellant in his case diary, how the instant application was moved earlier i.e. on 18th December, 1999 and that no source has been disclosed as to how it dawned upon the appellant or his counsel that the appeal was dismissed on 9th December, 1999. As to no objection stated by the learned counsel for the Respondent No. 2, he stated that the appellant and the Respondent No. 2 were defendants in the suit and have common interest.

Be that as it may, it is a universally accepted principle of the law that matters should be decided on merits and technicalities should always be over looked to do justice to the parties. Following this golden principle, in the circumstances of the case, we allow this application, subject, however, to payment of cost in the sum of Rs. 25,000/- to the Respondent No. 1 within 15 days. On such payment, the appeal shall stand restored to its original position to be proceeded further accordingly to law. CMA No. 2050/99 stands disposed of in the above terms. (T.A.F.) Orders accordingly.

PLJ 2000 Karachi 260

Present: DR. GHOUS MUHAMMAD, J. A & B BEVERAGE SHAMA LABOUR UNION KARACHI-Petitioner

versus

SINDH LABOUR COURT No. 3 and another-Respondents

C.P. No. 472 of 1998, decided on 25.11.1999

Contempt of Court Act, 1973 (LXIV of 1973)--

—S. 3 Constitution of Pakistan (1973), Art. 199-Contempt of Court proceedings against respondent (Presiding Officer of Labour Court) for trying to find fault with remand order of High Court instead of following directions of High Court-Perusal of contemnors' reply to notice of contempt would indicate that he made observations which were uncalled for-Respondent was obliged to follow remand order in letter and spirit which he failed to do-High Court instead of framing charge under the law of ontempt thought it proper to recommend action against respondent (Presiding Officer Labour Court) on administrative side, in as much as, that respondent was dismissed on 19.9.1992 after inquiry on corruption charges when he was on the strength of High Court as Addl. District and Ses ions udge-Respondent thereafter managed to obtain dismissal order set aside from the then Chief Minister but so far he is not recognized as judicial officer by High Court and was not allowed to resume duty-Government of Sindh thereafter, posted him as Presiding Officer Labour Court-High Court thought it unfortunate that such person has been assigned vital task of deciding matters under Labour Laws-High Court, therefore, ordered that office should send a copy of judgment to Chairman Labour Appellant Tribunal for information as well as to Chief Secretary and Secretary Law, Government of Sindh to consider whether respondent who was still reputed to be corrupt deserves to be retained in Service. [Pp. 262 & 263] A & B

1980 PLC (C.S.) 694 ref.

Mr. Shahenshah Hussain, Advocate for Petitioner. Mr. Abdul Hafeez, Advocate for Respondents. Date of hearing: 15.11.1999.

judgment

The petitioner, a registered Trade Union, is aggrieved by the order dated 1.10.1998 passed by Mr. Qamar Ahmed Shaikh, the Presiding Officer, Sindh Labour Court No. 3 (Respondent No. 1).The Respondent No. 2 is a private limited company. According to the petitioners therein members were employees of the Respondent No. 2.

The petitioners had earlier filed CP No. S. 3/1995 in this Court against the order dated 24.11.1994 which was set aside and the matter was remanded to the Respondent No. 1 for decision afresh in the light of the observations made in the judgment dated 15.4.1995.

Now the grievance of the petitioner is that the Respondent No. 1 ignored the directions/observations of this Court and decided the case in a way not permissible under the law.

I heard the learned counsel for the parties and perused the record.

Learned counsel for the petitioner mainly urged that the remand order had been passed on merits, but the Respondent No. 1 instead of following the directions of this Court in the remand order tried to find fault with them and thus his approach was unwarranted and amounts to contempt of this Court.

Vide order dated 3.6.1999, Office was directed to issue contempt notice to the Respondent No. 1. In this reply the alleged conteniner (Mr. Qamar Ahmed, Shaikh), denied having committed any contempt or violation of the orders passed by this Court, although he also stated as follows :

"3. That I respectfully submit that the facts given in paras 31, 32, 33, and 34 of the judgment dated 15.5.1998 are based upon only the fact that the factory was closed 3 years ago and that is admitted position as a result of the permission granted by the order of the Court and therefore at this stage that point was also to be considered. Moreover at the time of decision of this case when the matter was remanded back to this Court for re-consideration, that fact perhaps, was not brought before the Hon'ble High Court as per directions contained in the order at page 9, line 8 by which it has been observed that:

"The Labour Court has, therefore, to be satisfied that such a move on the part of the employer is genuine and not mala fide with the object of getting rid of the workmen. In the event of contest to an application under Section 11-A by the workmen of their Union, the Court is obliged to examine all relevant facts to ascertain that there are real circumstances justifying the closure or termination of employment. The Court has also to see that the workmen also get what they are entitled to under the shape of their wages and benefits."

and therefore I respectfully submit that it was not due to any mala fide but a bona fide one and in that regard I would respectfully submit that such point No. 5 was also taken out and decided alongwith other points at the time of judgment."

So far as the impugned judgment is concerned, I am satisfied that the Presiding Officer Labour Court 3 did not apply his mind, to the observations/directions of this Court after remand, and passed the impugned order. Therefore, in the interest of justice the impugned order is set aside and the matter is remanded to the Labour Court No. V for disposal afresh according to law.

So far as the show-cause notice and the reply are concerned, it would be relevant to reproduce Paras 31 to 34 from the Order passed after remand of the case, by Mr. Qamar Ahmed Shaikh, Presiding Officer, Labour Court No. 3, Paras 31, 32, 33, and 34 read as under :--

"31. It is evident that in view of the said established facts as mentioned in paras 22 to 29 above, there is no scope or question at all at this stage, of this Court either granting or refusing any permission to the Applicant, either for closing down any establishment or for terminating the services of any workmen of the Applicant, as neither any establishment nor any workmen of the Applicant exist at this stage. In fact such permission having already been granted almost four (4) years ago and having been fully acted upon, it has become a completely past and closed matter, not capable, in any manner, of being, re-opened at this stage in view of the irreversible nature of the realities of the situation.

It appears that the said facts and documents mentioned in para 4 of this Order, were not brought to the notice of the Hon'ble Single Judge of High Court because, otherwise, this case would not have been remanded and the union's Constitutional Petition would have been declared to be infructous.

Had the said facts and documents been brought to the notice of the Hon'ble Single Judge of the High Court, there would also have been no occasion to cite in the Judgment, the two rulings of the Indian Supreme Court which lay down that closure should be real and genuine and not merely a pretence. There can be no doubt, in view of the said facts and documents mentioned in Para 4 herein before, that the closure in the Applicants case was real genuine and complete in every respect as envisaged in the said two Indian rulings.

In view of the foregoing, I find not option but to dispose of the above application accordingly.

A bare perusal of the above hardly leaves any doubt in my mind that the alleged contemner made the observations which are uncalled for. He was supposed to follow the remand order in letter and sprit which he failed to do. However, instead of framing the charge under the law of contempt, it would be proper to recommend action against the Presiding Officer on administrative side, the reason being that Mr. Qamar Ahmed Shaikh was dismissed on 19.9.1992 after due inquiry on corruption charges when he was on the strength of this Court as Additional District and Sessions Judge, but thereafter he managed to obtain the dismissal order set aside from the then Chief Minister Sindh (Mr. Liaquat Jatoi) but so far he is not recognised as a judicial officer by this Court and was not allowed to resume duty. Therefore, the Government of Sindh posted him as the Presiding Officer Labour Court 3. There is absolutely no doubt that he is still reputed to be corrupt and it is very unfortunate that such a person has been assigned the vital task of deciding the matters under the Labour Laws. In the judgment passed by a Division Bench of this Court, authored by me in Service Appeal No. 11 of 1997, Muhammad Sagheer Rana us. High Court of Sindh (un-reported) it was held as follows :

"9. On the point regarding lack of specific allegations touching upon controversial integrity we feel that in matters of corruption no direct evidence would normally be available. In MuhammadSuleman Junejo v. Chief Secretary Sindh,. 1980 PLC (CS) 694 it was held that in cases of corruption and malpractice by a civil servant, it is the reputation that travels far and wide; direct evidence is hardly possible as the litigant who pays illegal gratification and gets his work done is not expected to come forward and give evidence and in this regard the adverse general reputation is enough to take action

1. We are passing through hard times where the society and values have fundamentally deteriorated and there are rampant allegations of corruption against the members of the subordinate judiciary. It is an unfortunate situation where the protectors of the rights of the citizens of this country are found unscrupulously involved in acts of corruption and malpractices. In the light of the prevalent circumstances it is more desirable for the Chief Justice of the Province who is the highest judicial functionary of the Province, to enjoy more liberal powers to check the subordinate members of the judiciary, stringently and effectively...

2. As already explained in para 11 above, when taking action against member of the subordinate judiciary regard must be had to his overall general reputation, reputation of being corrupt, merit of the judgments and orders passed by him, and complaints generated against him by lawyers and litigants. Regard must also be had to the periodic reports of all the Sessions Judges under whom the particular Judge may have worked. In this respect, weight must also be given to the comments given by the Judges of the superior Courts (when hearing appeals/revisions) upon the judgments/orders of the Judges of the subordinate courts under appeal/revision... It is therefore ordered that office should send a copy of this judgment to the learned Chairman Labour Appellate Tribunal for information as well as to the Chief Secretary and the Secretary Law, Department, Government of Sindh to consider whether Mr. Qamar

Ahmed Shaikh who is still reputed to be corrupt deserves to be retained in service. Orders accordingly.

(A.A.) Order accordingly.

PLJ 2000 Karachi 267 (DB)

Present: sabihuddin ahmad and S.A. rabbani, JJ.

ATLAS AUTOS GROUP LABOUR UNION through its GENERAL SECRETARY-Petitioner

versus

REGISTRAR OF INDUSTRYWISE TRADE UNIONS/MEMBERS, NATIONAL INDUSTRIAL RELATION COMMISSION, ISLAMABAD

and another-Respondents C.P. No. D-144 of 1993, decided on 19.1.2000.

Industrial Relations Ordinance, 1969 (XXIII of 1969)-

—S. 10~Constitution of Pakistan, 1973-Art. 199--Direction of respondent relating to issuance of registration certificate in favour of petitioner TradeUnion-Such direction was, however, withdrawn subsequently, on application of rival union--Vah'dity--Respondent greatly erred in treating the matter as something akin to adverse litigation and proceeded onassumption that rival trade union might be prejudiced in case registration certificate was granted without hearing it-Direction of respondent relating to issuance of registration certificate would indicatethat no defect was found in petitioners application for registration-- However, if respondent subsequently comes to know that petitioner had been registeredd in ontravention of requirement of law he would always make complaint to full Bench of National Industrial Relations Commission-Respondent was directed to issue certificate of registration to petitioner on receipt of order of Court. [P. 270] A

PLD 1975 Kar. 320; 1998 PLC Lah. 500; Mr. Ashraf Hussain Rizvi, Advocate for Petitioner. Mr. Amjad Hussain, for Respondent No. 2. Date of hearing: 19.1.2000.

judgment

Sabihuddin Ahmad, J.-The admitted facts appear to be that the petitioner applied for registration as an Industriwise wise Trade Union to the Respondent No. 1 videapplication dated 7.7.1992. It appears that on 18.8.1992 the Respondent No. 2, which is a rival Trade Union, preferred certain objections, registration of the petitioner. The petitioner was apprised of these objections on 4.11.1992 and the matter was fixed for hearing on 15.11.1992. According to the petitioner while their representative appear before the Respondent No. 1 on that day nobody appeared for the objector and after a copy of the objections having been made available to such representatives the matter was adjourned to 28.11.1998. On the adjourned date as well no appearance was made on behalf of the objector/Respondent No. 2 and consequently the Respondent No. 1 passed an order, the operative part whereof reads as under :--

"As the objector has not appeared and there is nothing on record for reason of his failure to appear, his application, as stated above, is dismissed for non-appearance and non-prosecution. The applicant union is hereby registered. A formal certificate of registration is issued in favour of the applicant union."

2. Nevertheless it appears that pursuant to the aforesaid order an entry regarding registration of the petitioner had been made in the Register of Unions and a proper certificate of registration was submitted before the Respondent No. 1 for signature on 30.11.1992, the Respondent No. 1 instead of signing the same recorded an order that on 29.11.1992 at about 1.00 p.m., he received an application dated 25.11.1992 from the Respondent No. 2/Objector seeking adjournment of the hearing on 28.11.1992 but this application had not been transmitted to him till the order dated 28.11.1992 regarding issuance of formal registration certificate was passed. Consequently. He decided to issue notices to the parties for appearance. Thereafter by a further order dated 4.1.1993 the respondent set-aside the "exparte" order dated 28.11.1992, the petitioner has called in question the aforesaid order dated 4.1.1993 through this petition.

1. Mr. Ashraf Hussain Rizvi, learned counsel for the petitioner, primarily argued that once a registration certificate had been directed to be issued by the Respondent No. 1 videorder dated 28.11.1992 he had no power to review his earlier order and such registration could only be cancelled under Section 10 of the Industrial Relation Ordinance by order of the Appellate Authority, which in the instant case would be Full Bench of the National Industrial Relations Commission. He placed reliance on a Division Bench judgment of this Court in National Bank of Pakistan, PeoplesFederation vs. National Industrial Relations Commission (PLD 1975 Karachi 320). Moreover he contended that on general principles the petitioner lost locus poententiae to recall the order dated 28.11.1992 in as much as it conferred vested rights upon the petitioner. Finally he argued that the Respondent No. 2 had no locus standi to object to the petitioners registration and the Respondent No. 1 was not justified in recalling his order merely to hear the Respondent No. 2. Reliance was placed, inter alia, on a recent pronouncement of the Honourable Supreme Court in Essa Cement Industries Workman Union vs. Registrar of Trade Union (1988 PLC Labour 500).

2. No appearance was made on behalf of the Respondent No. 1.

3. Mr. Ali Amjad, learned counsel for the Respondent No. 2, on the other hand, without demurring, the proposition of law laid down, in the Division Bench decision of this Court, candidly conceded that if a registration certificate had actually been issued, the Respondent No. 1 indeed had no power to cancel the same. He nevertheless pointed out that in the instant case there was nothing on record to indicate that the certificate in question had actually been issued and therefore, the respondent did have locus poententiae. He pointed out that under Section 9 of the Industrial Relations Ordinance, a Registrar was empowered to issue a certificate of registration (in the case a Full Bench of the NIRC) in terms of Section 22(b)(2) was empowered to cancel the registration of a Trade Union. Since no registration certificate had actualy been issued, the question of cancellation could not arise. Mr. Rizvi attempted to meet the argument by contending that a certificate had been duly signed but the petitioner had not been able to obtain a copy thereof. While there is nothing on record to substantiate Mr. Rizvi's assertion and it appears that the order dated 1.12.1998 was passed before signing the certificate. We are doubtful whether the Respondent No. 1 after having passed a clear order that a formal certificate be issued still retained the power to recall such order. Alternatively Mr. All Amjad argued that any authority performing quasijudicial functions and enhanced the power to recall exparte orders passed by it, and indeed his view is supported by authority. The crucial question, nevertheless, is whether the order dated 28.11.1998, can be treated as an exparte order. There seems to be great force in Mr. Rizvi's last contention that the Respondent No. 2 had no legal right to be heard at the stage of the petitioner's application for registration as a Trade Union and the law on this question has been authoritatively settled by the Honourable Supreme Court in Essa Cement Industries Workers Union vs. Registrar Trade Union, and it may be pertient to quote the following observations of Mamoon Kazi, J. :--

"It, therefore, follows that neither the employer nor a trade union already existing in the same establishment can claim locus standi to challenge the decision of the Registrar merely on the ground that no opportunity of hearing was provided to it or an objection raised by it before the Registrar was not considered before such decision."

1. In view of the above we are of the opinion that the Respondent No. 1 gravelly erred in treating the matter as some thing akin to adversary litigation and proceeded on the assumption that the Respondent No. 2 might be prejudiced in case the registration certificate was granted without hearing him. Obviously the order dated 28.11.1998 direct issuance of a registration certificate indicates that the aforesaid did not find any defect in the petitioner's applicant for registration, though he took an unusually long time to finalise the matter. In any case if the Respondent No. 1 subsequently come to know that the petitioner has been registered in contravention of the requirement of law he could always make a complaint to the Full Bench of the NIRC.

For the foregoing reasons we would allow this petition and direct the Respondent No. 1 to issue a certificate of registration to the petitioner as soon as the copy of this order reaches him.

(A.A.) Petition accepted.

PLJ 2000 Karachi 270

Present: rashid A. razvi, J.

GOVERNMENT OF PAKISTAN, MANPOWER DIVISION, MINISTRY OF

LABOUR, through DIRECTOR GENERAL OF NATIONAL TRAINING

BUREAU ISLAMABAD-Plaintiff

versus

ADAMJEE INSURANCE CO. LTD.-Defendant Civil Suit No. 91 of 1989, decided on 6.12.1999.

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

—S. 20-Delay in giving award-Effect of--Matter was referred to arbitrators on 1.10.1986 with direction to give award within four months from date of entering upon reference-Though in case of delay, arbitrators were bound to obtain extension of time from Court, but till September, 1999, they did not make any such request-Held : Arbitration proceedings were abandoned and stood frustrated/terminated without giving award.

[Pp. 273 & 274] A & B

(ii) Contract-

—Contract for building construction—Mobilization advance—Claim to-­ According to terms of mobilization advance, defendant/surety was required to pay plaintiff amount not exceeding Rs. 2,070,205/- upon demand in writing—It was also stipulated in performance bond that same shall remain in full force and effect and in no way, it will release surety from any liability under bond-Held : Such advances are madeparticularly in respect of building construction in order to enable the contractor to commence the execution of work-Held Further : No defence was available to defendant not to pay amount of mobilization bond to plaintiff after the required certificate was placed before them- Amount of mobilization advance was decreed with 14% interest till its realization. [P. 279] E & F

(iii) Contract--

—Contract for building construction-Breach of-Performance Bonds-­ Amount agreed to be paid in~Claim for-Held : Claim for such amount was dependent on terms and condition of contract between employer and contractor. [P. 279] D

(iv) Contract Act, 1872 (IX of 1872)-

—S. 74-Contract~Breach of~Performance Bonds-Amount agreed to be paid in~Claim for-Plaintiff s claim was that as result of deserting construction project by defendant and re-awarding its contract to another contractor, it suffered loss to tune of about 80 to 90 lacs rupees-Plaintiff neither proved that to whom subsequent contract was awarded nor placed on record copy of subsequent contract nor showed as to how much amount was agreed to be paid to subsequent contractor nor any document was placed on record to show the completion of project through subsequent contractor resulting in payment of excess amount over and above agreed to be paid to defendant-Held: Plaintiff was not entitled for whole amount of four performance bonds-Suit was partly decreed. [P. 279] E & F

1 All E.R. 976; PLD 1999 SC 1; 1999 MLD 1600 rel. AIR 1979 Calcutta 44; PLD 1976 Karachi 644; PLD 1964 SC 311; AIR 1970 SC 891; 1983 SCMR 2252; 1989 SCMR 370; PLD 1996 Karachi 182 ref.

Mr. Samiuddin Sami, Advocate for Plaintiff. Mr. Jamil Khan, Advocate for Defendant. Dates of hearing: 22.9.1999 & 23.11.1999.

judgment

This is a suit for recovery of Rs. 43,67,991.00 arising out of four performance Bonds and one Mobilisation Advance Guarantee executed by the defendant on behalf of Oasis Builder, Karachi.

The brief facts of the plaintiffs case are that on 2nd April, 1984, the Ministry of Labour and Manpower, Government of Pakistan awarded a contract for building construction, renovation, repairs work for National Training Project, Karachi to a contractor, namely, Oasis Builders Limited, Karachi (hereinafter referred to as OBL). The construction/renovation works were to be carried out at Karachi. One of the terms of the Contract was that OBL was required'to furnish either unco; Jitional Bank guarantees or Bond in furtherance of such contract. Accordingly, OBL arranged for the following Bonds, which were executed by the defendants :—

(i) Performance Bond No : HO-ENG-BOND-LNK-24/3/84 dated 25.3.84 for Rs. 13,28, 986/-.

(ii) Performance Bond No. HO-ENG-BOND-LNK-25/3/84 for Rs. 4,31,828/-.

(iii) Performance Bond No. HO-ENG-Bond-LNK-26/3/84 dated 25.3.84 for Rs. 162,487.50.

(vi) Performance Bond NO : HO-ENG-BOND-LNK-27/3/84 for Rs. 166,484.20.

(v) Mobilisation Advance Bond No. : HO-ENG-BOND-SFL-868/3/84 dated 19.3.84 for Rs. 2,078,205.00.

1. Subsequently, OBL committed default and, therefore, the plaintiff through various communications, called upon the defendant to pay the amounts mentioned in the Bonds. The said defendant failed to make the said payment or any part thereof, the instant suit has been filed for recovery of the above amount. It will be pertinent to note that earlier OBL invoked arbitration proceedings under Section 20 of the Arbitration Act and as a result of the same arbitration proceedings were initiated whereafter the same were abandoned by OBL. The plaintiff has prayed for recovery of the aforesaid amount alongwith interest at the rate of 14 per cent per annum from 12.12.1984 as well as for the cost of the suit.

The defendant has raised Preliminary Objections to the maintainability of this suit in view of the arbitration proceedings. According to the defendant, the proper forum to decide the present controversy was that of arbitrator and unless the dispute is resolved between the owner nd the Contractor, the plaintiff is not entitled for the amount claimed in the suit. On merits as well, the defendant has denied the claim of the plaintiff. As a result of the above pleadings, 1. Is the defendant liable to make payment in respect of the Performance and Mobilisation Bonds which are subject-matter of this suit. If so, when ?

1. Whether Suit No. 739/84 has been disposed of or not. In eithercase, what is its effect, if any, on this suit ?

2. What is the effect, if any, on this suit or pendency of arbitration proceedings between the contractor concerned and the plaintiff.

3. Whether the plaintiffs are entitled to recover the amount from the defendants pending the arbitrators award ?

4. What is the effect of prders passed by this Hon'ble Court in CMA No. 5710/84 and CMA No. 277/85 dated 28.11.1984 and 8.4.1985 in Suit No. 739/1984 ?

5. Whether disposal of application under Section 20 of the Arbitration Act merge all interlocutory orders ?

6. What should the decree be ?

I have heard Mr. Samiuddin Sami for the plaintiff and Mr. Jamiul Khan, advocate for the defendant. The plaintiff has produced one Amir Ali Shah as Exh : 1, who had produced original of all the five Bonds and other communications exchanged between the parties. The plaintiff also produced another witnesses PW-2, namely, Abdul Hai, who has produced the record of the arbitration proceedings. On behalf of the defendant, DW-1, Abdul Ghafoor Nawaz was examined as Exh : 20. My findings are as follows :-- Issues Nos. 2. 3 and 4.

1. To begin with, I would like to discuss together Issues Nos. 2, 3 & 4 first which have lost importance due to lapse of time. In Paragraph 7 of the Plaint it is stated that this Court in Suit No. 739/84, which was filed under Section 20 of the Arbitration Act, 1940, vide its Order dated 1st October, 1986, referred the matter to the two Arbitrators to be appointed each by the plaintiff and the OBL. In cross-examination, it was admitted by PW-1 that the plaintiff appointed Mr. S.A. Nizami as its Arbitrator while Mr. A.Q. Halepota was appointed as Arbitrator by OBL. Thereafter, it is not clear as to what happened to the arbitration proceedings. All that was contended by the Plaintiff is that the said proceedings were abandoned by OBL and on Award was passed by the Arbitrators. Ali these facts have not been denied by the defendant's witness.

2. According to the provisions of the Arbitration Act, 1940, the Arbitrators were required to conclude the proceedings and to give Award within 120 days after entering upon the Reference. In case of any delay, they were required to obtain extension of time from this Court. No such order has been placed by either of the parties before this Court. From October, 1986 to September, 1999, is a period spread over thirteen years, which leads me to

hold that arbitration proceedings were abandoned and stood frustrated/ terminated without giving award. 6. In the aforesaid circumstances, and since there is no award in the filed, the plaintiff was entitled to file and maintain the instant suit. Issues Nos. 5 & 6.

1. Insofar Order dated 28.11.1984 in Suit, No. 739 of .1984 (Exhibit 22) is concerned, it, was an ad interim injunction. However, on 8th April, 1985, by consent of the parties, CMA 5710 of 1984 was disposed of whereby the Plaintiff was restrained from raising demand for encashment of the Performance Bonds and Mobilisation Bond pending disposal of that Suit. Subsequently, on 1st October, 1988 the said suit was disposed of and the matter was referred to two Arbitrators as mentioned above, with the direction to give Award within four months from the date of entering upon Reference. Nothing was said about the ad interim injunction passed by this Court in that suit on 28.11,1984 and 8th April, 1985. thus the legal position which emerges is that there was no prohibitory injunction in the field, restraining the Plaintiff to raise demand for encashment of the Bonds. Both the issues are answered accordingly.

Issue No. 1 :

1. Both the learned Advocates have argued this matter at length. It is the case of the plaintiff that they are entitled in law for the amount as mentioned in the five Bonds. Mr. Sarrii has placed reliance on the following cases :--

(i) Edward Owen Engineering Ltd. v. Barclays Bank International Ltd. & others (1978) I All E.R. 976).

(ii) Texmaco Ltd. v. State Bank of India & others. (AIR 1979 Calcutta 44).

(iii) Jamia Industries Ltd. uk. Pak Refinery (PLD 1976 Kar. 644).

(iv) National Construction Company v.«. Aiwan-e-Iqbal (PLD 1994 S.C. 311).

(v) M/s. Trapore and Co. v. M.S. V/O Tractor Export Moscow (AIR 1970 S.C. 891).

1. It was contended by Mr. Jamil Khan, Advocate for the defendant, that unless the question of default and thereafter the question of damages are decided in the arbitration proceedings, the plaintiff is not entitled to encash the Bonds as a matter of right. He has attempted to distinguish difference between Performance Bond and Mobilisation Bond. He has placed reliance on the following cases :--

(i) McDonald Construction vs. Pakistan Services Ltd. (1983 SCMR 2252).

(ii) Pakistan Engineering Consultants vs. PIA (1989 SCMR 370).

(iii) Zeenat Brothers (Put.) Ltd vs. Aiwan-e-Iqbal Autfiority & others r. 388).

(iv) Platinium Insurance Company iJd. vs. Daewoo Corporation Shaikhupura (PLD 1999 SC 1).

1. In order to appreciate arguments of the parties, it would be relevant if the conditions of the Performance Bonds, namely, Exh : 2, Exh : 3, Exh : 4 and Exh : 5 are reproduced. For brevity sake, the terms and conditions of only exhibit 2 are reproduced hereinfter, as it is common and same in all other documents/bonds :-- " ...... NOW THE CONDITION of the above-written Bond is such

that:

(a) if the Owner shall certify in writing that the Contractor has duly performed and observed all the terms, provisions, conditions and stipulations of the Contract on the Contractor's part to be performed and observed according to the true purport, intent and meaning thereof, or if upon the written certificate of the Owner that the Contractor has committed a default under the Contract with or without any further statement of the particulars of such default, the Surety shall pay to the Owner without reference to the Contractor such sum not exceeding the amount of this Bonds as the Owner shall demand in writing, then and in either such event, this obligation shall be null and void but otherwise shall be and remain in full force and effect but no alteration, in the terms of the Contract made by agreement between the owner and the Cotractor or in the extent or nature of the Works to be constructed, completed and maintained therein and no allowance of time by the Owner or the Consultants/Engineer under the Contract nor any forbearance of forgiveness in or in respect in any matter or thing concerning the Contract on the part of the owner or the said Consultants/Engineer shall in any way release the Surety from any liability under the above- written Bond ..... "

1. Mobilization advance bond was produced in the evidence as Exh: 6 which was not been called in question. Its main contents read as follows :— " ...... NOW THE CONDITION of the above-written Bond is such that:- (a) if the Owner shall certify in writing that the entire Mobilization Advance has been recovered from the Contractor, or (b) if upon the written certificate of the Owner stating that Mobilization Advance or any part thereof is due to the Owner under the Contract and has not been paid back to the Owner, the Surety shall pay to the Owner without reference to the Contractor such sum not exceeding the amount of above-written Bond as the Owner shall demand in writing, then and in either such even this obligation shall be null and void but otherwise shall be and remain in full force and effect but no alteration in the terms of the Contract or the conditions on which the Mobilization Advance is paid, made by the agreement between the Owner and the Contractor or in the extent or nature of the works and no allowance of time by the Owner or the Constultants/ Engineer under the Contract nor any forbearance or forgiveness in or in respect of any matter or thing concerning the Contract or the Mobilization Advance on the part of the Owner or the said Consultants/Engineer shall in any way release the Surety from any liability under the above-written Bond "

2. PW-1 Amir All Shah in his evidence categorically stated that the O.B.L. after receiving amounts of Mobilization advance of Rs. 2,078,205/- did not start the work and abandoned the project. It was also stated by him that the plaintiff tried his best to locate the whereabouts of O.B.L but could not accused. As a result, the entire work of construction was assigned to some other contractors after a lapse of more than a year which resulted in escalation of price of the construction material. PW Amir AM Shah has further stated that" the claim in our suit is in respect of loss suffered by the plaintiff. In case the Oasis Builders has carried out this performance the plaintiff would have saved about Rs. 80 to 90 Lacs." This plaintiffs witness was extensively cross-examined. However, he was not able to produce the completion certificate of the project, although he claimed that the project was- completed by another contractor. The defendant's witness Abdul Ghafoor Nawaz has deposed that the plaintiff was not entitled for the amount prayed as the arbitration proceeding did not terminate into an award. This question I have already dealt within the earlier part of this judgment. No other plea was raised in his entire deposition disentitling the plaintiff from claiming the reliefs as prayed.

12-A. Insofar as Mobilization Advance (Exh. 6) is concerned, it was an amount paid to the O.B.L. to start the construction work. It is not the case of the defendant that no such amount was paid to the O.B.L. Such advances are made particularly in respect of building construction in order to enable the contractor to commence execution of the work. According to the terms of Mobil i/ation advance, the defendant company/surety was required to pay the owner/plaintiff, the amount not exceeding Rs. 2,070,205/- only upon demand made by them in writing. It was further stipulated in the performance bond that the ^,ame shall remain in full force and effect and in no way it will release the surety from anyliability under the above-written bond, therefore, no defence is available to the defendant not to pay the amount of Mobilization bond to the plaintiff after the required certificate was placed before them.

1. The four performance bonds (Exh. 2 to Exh, 6) were in respect of the performance of the contractor in concluding the project. In this case the plaintiff was required to file a written certificate of the surety/defendant that the contractor has committed a default under the contract with or without any further statement; thereafter, surety was to pay the owner, the amount not exceeding as mentioned in the four bonds. In the case of Messrs. -Platinum Insurance Company Limited (supra), it was held, inter-alia that "a Performance bond is executed on behalf of a contractor is order to ensure that the contractor works is completed. And in case of failure the surety to execute the performance bond is to indemnify the employer". Both the performance bond and Mobilization Advance Bonds were compared by the Hon'ble Supreme Court in the case Platinum Insurance, whereafter it was held that the Performance Bond was conditional. In the instant case, perusal of the four performance bonds indicate that it was dependent on the performance of Messrs. O.B.L. In the case of Zeenat Brothers (supra) the nature of Mobilization bonds and performance bonds were considered, v/hereafter it was held as follows : "Resume of the above cause law will indicate that in our country, there exists and additional reason to stay enforcement of a bank guarantee, that is, the case of "injustice" but in exceptional cases. Besides, the two conditions of fraud and injustice, there is third ground available to a plaintiff .or .contractor to resist enforcement. particularly in the case of performance bond which is in the nature of penalty in view of Section 74 of the Contract Act. This question came up for consideration before a learned Single Judge of this Court. Mr. Zafar Hussain Mirza, J. (as his Lordship then was) in the case of Messrs Jamia Industries Limited v. Messrs Pakistan Refinery Limited PLD 1976 Karachi 644 where in a bank guarantee was furnished by the plaintiff for Rs. 5,00,000 encashable in case of any default in the due performance of all or any of the obligations under a contract executed between the plaintiff and the defendant. The learned Judge while referring to the dictum laid down in the case of Province of West Pakistan v. Messrs. Mistri Patel & Co. and another PLD 1969 SC 80 held that even if a breach was committed by the plaintiffs, the defendants could not, ipso, fact, appropriate the whole amount...."

(Emphasis added)

1. The cases cited from both the sides mostly pertains to the decisions interlocutory applications. The cases Kargil International (1996) 4 All E.R. 563) and its appellate decision reported in (1998) 2 All E.R. 406) arises from the question of payment resulting from the execution of performance bond. The case of Edward Owen (1978) 1 All E.R. 976) alongwith other English cases were also considered. In the case of Kargil Supra) the issues involved were whether the defendant is entitled to make a call for full amount of the performance bond in the case of breach of contract, whether he suffered loss or not. Lord Marison, J. of Queens' Bench answered the same in the following manner :--

In my view, the answer to the question which have been asked to determine are as follows (1) whether the defendant was entitled to make a call for the full amount of the performance bond, if the breach of breaches of contract (a) caused no loss to the defendants, (b) some loss to the defendants which was less than the amount of the performance bond, (c) caused some loss to the defendant which was equal to or greater then the amount of the performance bond. Yes, in all cases. (2) Whether, in the event of the defendant having obtained payment under the performance bond as a result of any such call as it was entitled to make the defendant was entitled to retain (a) all of the moneys received by it (b) only such amount as was equal to the amount of the loss suffered by it; or (c) some other, and if so what, amount. The answer is (b).

(Emphasis added)

1. Entitlement to claim a certain amount as damages or loss suffered consequent to a breach of contract either agreed for a particular sum through a contract or for the loss suffered as a breach of contract v/as considered by the Supreme Court in several cases. Recently this Court has also considered forefeitures of advance payment as agreed in a contract for the loss suffered; in the case of Transocan Asia Ltd. v. Rice Export Corporation of Pakistan (1999 M.L.D. 1600 at 1603) in the following manner:—

It was also argued that mere mentioning of any penalty in an greement will not authorise a party for forefeiture of earnest money. Reliance was placed on Section 74 of the Contract Act and on the case of Province of West Pakistan v. Messrs Mistri Patel & Co. and another (PLD 1969 SC 80). Mr. Javed Faruqi, as against this, has cited cases of Syed Sibte Raza and another v. Habib Bank (PLD 1971 S.C. 743) and Messrs. Aslam Saeed & Co. v. Messrs Trading Corporation of Pakistan Ltd. (PLD 1985 SC 69). In the case of Mistri Patel & Co. (supra), a suit was filed before this Court claiming for the recovery of Rs. 72,405.30 being the earnest money which was dismissed mainly on the ground that the plaintiff was not entitled to sue for the recovery of some promised amount of earnest money. The letters patont appeal filed against the order of a learned Single Judge was dismissed with costs. In that case, no cash amount was deposited as earnest money but an unconditional Bank Guarantee was furnished with the Government of Sindh with the stipulation that on the failure of the firm to fulfil its obligation, the agreed earnest amount will be paid by the bank. It was held by the Hon;ble Supreme Court, while interpreting Section 74 of the Contract Act that it deals only with the right, to receive; a reasonable compensation from the party who has broken a contract and not the right to forefeit what has already been received by the aggrieved party...." The claim for the amount as agreed in the performance bonds is dependent on the terms and conditions of the contract between the employer and the contractor.

1. The plaintiff has claimed that as a result of the acts of the O.B.L. in deserting the construction project and as a result of re-awarding of the contract to the other contractor, the plaintiffs have suffered loss about 80 to 90 lacs rupees; however,, during cross examination, their witness was not able to disclose as to whom the contract of the project in question was awarded to after the O.B.L. abandoned the same. No copy of contract entered between the plaintiff and subsequent contractor was placed on record. It was not shown as to how much amount was agreed between the plaintiff and the subsequent contractor. At the same time no substantial documents were placed on record to show that the project in question was successfully completed by the subsequent contractor which resulted in payment of excess amount over and above the agreed contract money with O.B.L. Therefore, in my considered view the plaintiffs are not entitled for the whole amount as accepted by the defendant in the total of all the four performance bond which comes to Rs. 20.89,786,40. In the aforesaid circumstances, the plaintiff is not entitled for the whole amount of the aforesaid four performance bonds. Issue No. 7.

2. As a result of above discussion, this suit is decreed to the following extent with costs :-

(i) For the amount of Mobilization advance i.e.Rs. 20,78,205.00. (ii) Against the performance bond a sum of Rs. 5 Lacs.

The plaintiff shall also be entitled for interest at the rate of Rs. 14% per annum from the date of suit till realization.

(S.A.K.M.) Suit partly decreed.

PLJ 2000 Karachi 280 (DB)

Present: dr. ghous muhammad and abdul ghani sheikh, JJ. MUHAMMAD NISAR DOSSA and 5 others-Appellants

versus

MUHAMMAD HUSSAIN DOSSA and 16 others-Respondents

H.C.A No. 150 of 1997, decided on 28.4.1999.

Companies Ordinance, 1984 (XLVII of 1984)--

—-Ss. 10 & 79-Election of Directors of Company-Contention by appellants was that Official Assignee had reduced number of Directors-Held : Official assignee did not change number of Directors already fixed by him for purpose of election-Directors so elected in election were seven and could not be said to be in violation of S. 178(1) of Companies Ordinance, 1984-Number of Directors was not reduced by Official Assignee and election was validly held according to order of High Court. [Pp. 282 to 284] A, B & C

PLD 1997 Kar. 432 and 1991 CLC 589 ref.

Mr. SherAfgan, Advocate for Appellants. Shahanshah Hussain, Advocate for Respondents Nos. 1 to 6. S. Zubair Shah, Advocate for Respondents Nos. 7 to 17. Date of hearing: 28.4.1999.

judgment

Dr. Ghous Muhammad, J.—This High Court Appeal is directed against the order dated 21.5.1997 of a learned Single Judge of this Court passed in Judicial Miscellaneous No. 174 of 1996.

The dispute relates to a public limited company called "Jupiter Textile Mills Limited," the shareholders of which may be divided into three groups namely Dada Group, M.H. Dossa Group and Nisar Dossa Group. Out of the total shares in that company 29.19 per cent, is held by Dada Group, 33.18% by M.H. Dossa group and 36.06% by Nisar Dossa Group. The company was incorporated on 26.7.1995 and is engaged in the business of manufacturing textile items of spinning, weaving and dyeing.

The aforesaid there groups were running the company but subsequently they developed differences with the result that Dada Group filed petition under Section 290 of the Companies Ordinance, 1984 being J.M. No. 174 of 1996 in this Court, making the members of the remaining two groups as the spondents. It appears that in the said petition an application was also moved by the petitioner for appointment of a Commissioner for taking over the business of the company from the third Group i.e. Nisar Group and to call an extraordinary meeting of the shareholders and conduct the election of the Board of Directors. This application was supported by M.H. Dossa Group but was opposed by Nisar Dossa Group.

A learned Single Judge of this Court having noted that the last election to the Board of Directors, was held on 29.8.1993, appointed by order dated 27.8.1996 the Official Assignee as Commissioner with power to call a meeting of the Board of Directors to fix the number of directors as provided under Section 178 of the Companies Ordinance, 1984 and then to call Annual General Meeting of the Company and to hold elections as provided under the Companies Ordinance.

Pursuant to the order dated 27.8.1996, the Official Assignee issued notices to the parties for 12.9.1996 on which date all the existing seven Directors attended. Out of them four Directors proposed that number of Directors be fixed at ten whereas the three Directors suggested that it should be fixed at nine. The Official Assignee agreed with the view of the majority and decided that the number of directors would be ten. The Official Assignee called the annual general meeting on 12.10.1996 at 10.30 a.m. at the registered office of the Company and the Secretary of the Company was asked to issue notices on or before 16.9.1996. It was further decided by the Official Assignee that the proxies would be deposited with him during office hours. Notice of the extraordinary general meeting was issued to members informing them that annual general meeting would be held on 12.10.1996 at 10.30 p.m. under the Chairmanship of the Official Assignee. The Secretary of the Company also issued notice to the members as required under Section 178 of the Companies Ordinance. On 12.10.1996 the Official Assignee visited the registered office of the Company. As many as 23 members attended the meeting. Muhammad Aziz Haji Dossa, who belonged to Nisar Dossa Group allegedly attempted to preside over the Annual General Meeting but the Official Assignee invited his attention to the order, dated 27.8.1996 and informed him that under the order it was his function to preside over the meeting. It was then that all the five members of Nisar Group who were present there left the office in protest. The election was conducted by the Official Assignee with the assistance of the Secretary of the company and seven directors all belonged to Dada and M.H. Dossa Groups were elected. The result of the election was announced at once vide notice dated 12.10.1996. the Official Assignee also reported to this Court on 15.10.1996 in the compliance of the order dated 27.8.1996.

The report of the Official Assignee was objected to by Nisar Dosa Group but a learned Single Judge vide his order dated 21.5.1997 overruled the objections and accepted the report, of the Official Assignee. The appellant belonging to Nisar Dossa Group have assailed this order.

I heard Mr. Sher Afgan the learned advocate for the appellants, Syed Zubair Shah the learned advocate for the respondents from Dada Group and Mr. S. Shahenshah Hussain, the learned Advocate for the respondent from M.H. Dossa Group. It will be relevant to mention here that a time-barred High Court Appeal No. 163 of 1996 was filed against the order dated 27.8.1996 but that was withdrawn on 25.9.1998 and as a result the order dated 27.8.1996 assumed finality.

It has been vehemently argued by Mr. Sher Afgan that the Official Assignee was not competent to ohair and conduct the meeting and that he had no authority to reduce the number of directors.

Taking up the first contention relating to the power of the Official Assignee to chair and conduct the meeting, it will be relevant to produce the following portion from the order dated 27.8.1996 :

"Under the circumstances by consent of Mr. Zubair Shah and Mr. Shahenshah Hussain, the Official Assignee is appointed as Commissioner with powers to call a meeting of the Board of Directors to fix the number of directors as provided under Section 178 of the Companies Ordinance and then call on Annual General Meeting of the Company and to hold election as provided under the Companies Ordinance."

It is crystal clear from the above-quoted para, of the order that the Official Assignee was invested with all the requisite authority for the purpose of election of directors of the company in question. He was authorised to call a meeting of the Board of Directors to fix the number of directors, to call the Annual General Meeting of the Company and also to hold elections. The word 'hold' has been defined in Legal Thesaurus as "assume authority, assume command, be master of, have a firm grip on, have the charge of, have under control hold in one's grasp" etc. It would also be pertinent to refer to the following meaning of the word "Hold" as given in Black's Law Dictionary (Sixth Edn.), page 731:6. To administer, to conduct or preside at, to convoke, open and direct the operations of, as to hold a Court, hold pleas etc.

1. To prosecute, to direct and bring about officially, to conduct according to law, as to hold an election."

When the Official Assignee was empowered to hold election, he had the authority also to chair the meeting and to complete the process of election. He had to be in full command of the situation and to be incharge of every stage comprised in the process of election. The purpose to appoint the Official Assignee was to ensure that election to the Board of Directors was held fairly and free from any influence and it was, therefore, necessary that the Official Assignee should have presided over the meeting. The move by one of the directors to take over the charge and conduct the meeting himself was to frustrate the object of the order dated August 27,1996. There is thus no force in the contention of the learned counsel for the appellant that the Official Assignee was not empowered to chair and conduct the meeting.

The learned counsel for the appellant placed reliance upon a judgment of this Court reported as Naveed Textile Mills (PLD 1997 Karachi 432). According to the fact of that case two limited companies were run and controlled by the different groups of persons who were related to each other. One group attempted to take control of the company run by another and this resulted in filing of civil suit and other legal proceedings. After having carefully gone through this judgment we do not find thus anything in support of the appellant. On the contrary the following para in that judgment supports the respondents :

"However because we are of the view that there was a good deal of acrimony between the parties and a fair dispensation was the crying need of the situation, we had through the short order, in our own discretion allowed the Official Assignee not only to supervise but to preside over the forthcoming meeting, something which does not detract from the proposition of law which we have just discussed."

We now come to the next contention of the learned counsel for the appellant that the Official Assginee had no authority to reduce the numbers of directors. The learned counsel referred to Section 178(1) of the Companies Ordinance, 1984 and relief upon a judgment reported as Iqbal Alam and others v. Plastic Rafter Put. Ltd., in 1991 CLC 589. It will be useful to reproduce Section 178(1) of Companies Ordinance as follows :

"178.~(1) The directors of a company shall, subject to Section 174, fix the number of elected directors of the company not later than thirty-five days before the convening of the general meeting at which directors are to be elected, and the number so fixed shall not be changed except with the prior approval of a general meeting of the company."

This objection does not seem to have been taken before the learned Single Judge. However, from the report submitted by the Official Assignee it is evident that he fixed the number of directors to be ten in consultation with all the directors and also proceeded to elect them accordingly. The members of Nisar Dossa Group were participating in the election but at the eleventh hour when one member of that, group namely Haji Aziz Dossa was not] allowed to preside over the Annual General Meeting, they left the office of the company in protest. Under such a situation election to the Board of

Directors was held and seven directors were elected. It. cannot, therefore, be urged on behalf of the appellant that the Official Assignee reduced the number of Directors. The appellants themselves created such a situation when one of them, in the first instance tried to preside over the Annaul;General Meeting in violation of the order dated 27.8.1996 and thereafter all of them bycotted the election. The appellants are now trying to take advantage of their own wrong by taking up such plea. We find that election to the Board of Directors was held validly according to the order dated 27th August, 1996 which was complied by the Official Assignee. The case-law (supra) relied upon by the learned counsel is not applicable to the facts of the case. The relevant provisions of Section 178 quoted above do not come into play so far as the facts of the instant case are concerned. The Official Assignee did not change the number of directors already fixed by him for the purpose of election. The fact that the directors so elected in the election conducted by him were seven cannot be said to be in violation of Section 178(1) in the circumstances of this case. Moreover, the number of elected Directors is also according to Section 178 of the Companies Ordinance.

The upshot of the above discussion is that this appeal fails and is dismissed with costs.

(T:A.F.)Appeal dismissed.

PLJ 2000 Karachi 284 (DB)

Present:muhammad roshan essani and abdul ghani shaikh, JJ.

ABDUL MAJEED-Petitioner

versus

GOVERNMENT OF SINDH through SECRETARY FOOD DEPARTMENT, KARACHI and 2 others-Respondents

C.P. No. D-436 of 1997, decided on 26.2.2000.

(i) Contempt of Court Act, 1976 (LXIV of 1976)

—Ss. 3 & 4-Contempt proceedings-Contemner. a Government official- Validity-Representation by State Counsel in contempt proceedings wasnot permissible under law.[P. 286] A

(ii) Contempt of Court Act, 1976 (LXIV of 1976)--

—-Ss. 3 & 4-Sindh Foodgrains (Licensing Control) Order, 1957, cl. (10)--Contempt proceedings—Cancellation of food grains licence—Plea raised by petitioner was that license was cancelled in derogation of order passed by High Court in Constitutional petition—Validity—Where petitioners were found guilty of contravention of cl. (1) of Sindh Foodgrains (Licensing Control) Order, 1957, licenses of petitioners were rightly cancelled and contempt application against alleged contemner who was Rationing Controller and Licensing Authority was dismissed with costs, [Pp. 291 & 296] B & E

(iii) Contempt of Court-

—Contempt of Court is a weapon which is to he used sparingly and always with reference to administration of justice where ex-fade some contempt of Court has been committed. [P. 294] C

Re. Ramsay LR 3 PC 427; 32 CWN 1442; 881C 725 and AIR 1918 Cal. 9 >8 ref.

(iv) Contempt of Court Act, 1976 (LXIV of 1976)--

—-Ss. 3 & 4-Contempt proceedings-Scope-No bar exists in moving theCourt in order to bring a case of contempt of Court to the notice of Courtfor taking action against an alleged contemner or contemners, such right, however, cannot be misused with malicious intention to cause harassment to others. [P. 295] D

AIR 1952 Cal. 919 ref.

Syed All Ahmed Taqui, Advocate for Petitioner.

Mian Khan Malim, Additional Advocate-General, Sindh.

Respondent No. 3 in person.

order

Muhammad Roshan Essani, J.-By this application under Section 3/4 of the Contempt of Court Act, the petitioner Abdul Majeed has sought action under Contempt of Court against the alleged contemner Abdul Malik Sial, Rationing Controller, Hyderabad, by auctioning his entire property and also by putting him in civil prison.

1. The brief facts, as disclosed by the petitioner in his affidavit, are that he filed a petition in the year 1997 being C.P. No. D-436/97 against the respondents for causing victimization and unnecessary harassment to the petitioner. After the service of notice, the Respondent No. 3 appeared in Court. The Sate Counsel placed on record a letter dated 29.9.1997, issued by the Respondent No. 1 to the Respondent No. 2. In the light of the aforesaid letter the Respondent No. 3 made a statement that the allocation of quota to various Chakkis (Grinding Flour Mill) was made in a fair and transparent manner after consultation with the representatives of the Chakki (Grinding Flour Mill) owners. The Respondent No. 3 made a statement in Court that he will act according to the spirit of the above letter and allocate quota equitably. He further stated that supply of wheat to the petitioner has already been restored.

3.In the light of the above statement, advocate of the petitioner stated that he was satisfied and he did not press the petition, which wasdisposed of. It is averred in the affidavit that after the order dated 21.10.1998, passed by this Court, only 100 bags of wheat were supplied by the Respondent No. 3 to the petitioner and thereafter the supply of wheat was stopped for no fault of the petitioner. Therefore, on 17.11.1998 a legal notice was served by the petitioner upon the Respondent No. 3 for non- supply of quota in the similar manner and according to similar procedure as it was supplied to other Chakkis (Grinding Flour Mill). He was also informed that his act amounted to Contempt of Court.

4.The respondent/alleged contemner-instead of mending his ways and rectifying his acts and deeds, issued a show-cause notice to the petitioner on 23.11.1999 and on 11.12.1998, he cancelled the licence of the petitioner, although the petitioner personally appeared before the respondent No. 3 and furnished his explanation with regard to the charges levelled against him inthe notice but in spite of the explanation furnished by the petitioner the Respondent No. 3 did not pay any heed to it. The petitioner, may a time, visited Respondent No. 3 but he was insulted and was asked to exhaust his remedy before the Court for the supply of wheat.

5.Finding no other way-out and due to contemptuous languageused by the Respondent No. 3 against the Court, the petitioner filed application under Section 3/4 of the Contempt of Court Act, 1976 on14.1.1994, in pursuance of the notice issued by this Court the respondent/alleged contemner appeared before this Court. He did not engage any counsel but he was represented by the State Counsel, which is not permissible under the law in the contempt proceedings. It is further averred that the respondent/alleged contemner filed his parawise comments and twisted contempt case into alleged non- compliance of certain orders and he also levelled false charges against the petitioner.

7.On 9.2.1999 this Court while disposing of the aforesaid application restored the license of the petitioner, which was illegally cancelled by the Respondent No. 3/contemner. The contemner restored the license after one month from the order of this Court mentioning 13.2.1999 asthe date of its restoration in the office order fraudulently. After the restoration of licence, the Respondent No. 3/contemner did not supply a single bag of wheat to the petitioner title the date of filing of the present application. The order of this Court was thus flouted by the Respondent No. 3/contemner malafidely. It was, therefore, urged that he may be proceeded for the contempt of Court.

8.The Respondent No. 3/alleged contemner filed his comments with the statement of Additional Advocate-General, Sindh. The petitionerfiled his counter-affidavit whereby the assertions made in the statement were denied and the facts mentioned in the contempt application stated hereinabove were reiterated. The Respondent No. 3/alleged contemner filed his affidavit-in-rejoinder to the counter-affidavit of the petitioner alongwith the statement of Additional Advocate-General, Sindh.

1. In the counter-affidavit the Respondent No. 3 contemner has denied the allegations levelled against him and he stated that no violation of this Court's order dated 9.2.1999 was made by him. In compliance of the order of this Court dated 21.10.1998, 100 bags of wheat were supplied to the petitioner on 2.11.1999 and even in the past no supply was stopped, details whereof have been given in the counter-affidavit. He further stated that theAdditional Advocate-General was contempt to represent the Government as the petitioner had violated the orders and acted in contravention of the rules x. framed by the Government. The contents of Government letter dated 31.10.1998 were correct one and it could be verified from the Government of Sindh, Food Department, Karachi, in regard to the correctness of the letter dated 31-10-1998. The photocopies whereof were filed as Annexures 'B' to 'B/4' It was stated that the quota of the petitioner was withheld due to the fault of the petitioner and it was not stopped as per the orders of the Deputy Director Food.

10.The petitioner failed to prove from the electricity consumption bills and non-maintenance of accounts that the wheat supplied to him at the subsidized rate was grinded at his Chakki (Grinding Flour Mill). In this context, the Respondent No. 3/alleged contemner has also filed a tabular statement.

11.The Respondent No. 3/alleged contemner further stated that he did not commit any contempt of this Court but he complied with the orders of this Court as well as the Government in its letter and spirit. He stated that the petitioner has filed the present application malafidely and dishonestly by suppressing the true and material facts. We have heard Syed Ali Ahmed Taqvi, learned counsel for the petitioner and the Respondent No. 3/alleged contemner in person.

1. The perusal of record shows that on 21.10.1998 C.P. No. 436/1997, filed by the petitioner, was disposed of by this Court and following order was passed :— "Mr. Ahsanul Haq Siddiqui, for the Petitioner. Mr. Mian Khan Malak, Additional Advocate-General, Sindh, alongwith Abdul Malik Abbasi, Rationing Controller, Hyderabad.

The learned Addl. A.-G. has placed on record a letter dated 29.9.1997 from the Respondent No. 1, addressed to the Respondent No. 2, expressly stating as under :—

'The main objective of the Department is to ensure availability of wheat flour at reasonable rate either through old or new units and not to patronise any class. The Regional Office should, therefore, mainly concentrate on this and see that all the units are accommodated in just and fair manner.'

The Respondent No. 3, who is present in Coxirt states that allocation to various Chakkis is made in a fair and transparent manner after consulting the representatives of Chakki owners and assures that the respondents will act according to the spirit of the above letter and allocate quota equitably. He further states that supply to the petitioner has already been reserved.

Mr. Ahsanul Haq Siddiqui is satisfied with the above undertaking and does not press the petition, which is disposed of the above terms.

14.During the pendency of the petition, 200 bags of wheat were supplied to the petitioner in the month of October, 1999 and after the announcement of judgment reproduced hereinabove further 100 bags were supplied to the petitioner on 2.11.1998 vide Office Release Order No. 43/004291 dated 2.11.1998. The respondents received a letter Bearing No. SOF(l)28(230)/98 dated 18.12.1998 from Government, contents whereof are reproduced hereinbelow in extenso :--

"The Director Food, Sindh, Karachi.

Subject: RELEASE OF WHEAT TO CHAKKIS OF HYDERABAD DISTRICT.

In view of the report given by the Committee, following decisions have been taken which should be implemented with immediate effect and compliance report on regular basis.

(1) Henceforth what to Chakkisbe released on the basis of functioning stones only.

(2) All efforts be made to avoid misuse of Government subsidized wheat and its grinding be tied-up- with electric units consumed.

Sd/-

GHULAM ABBAS DETHO)

SECTION OFFICER FOOD-

FOR SECRETARY TO GOVERNMENT

OF SINDH."

1. As per prevailing rules the petitioner had to prepare/maintain full account of the receipt of wheat and its products. In the meanwhile the respondents received a policy decision from the Government of Sindh vide is Letters Nos. SOIF(l)-28 (49)/98-99 dated 31.10.1998 and No. FP-DR(ASP)/ 98/2488 dated 12.11.1998, the contents whereof are reproduced hereinbelow for ready reference :--

"The Director Food, Sindh, Karachi.

Subject: NON-SUBMISSION OF ELECTRICITY BILL BY THE FLOUR MILLS AND CHAKKIS.

It has been reported that some of the Flour Mi\s/Chakkisowners after getting wheat allocation from the Food Department officials do not grind the same straightaway sell the wheat in the market or to their counterparts at higher rates. This is clear cut violation of the Government policy which results late higher price of Atta, an essential item of daily consumption.

1. In order to have effective check over the grinding, it has already been decided that the Flour Mills and Chakkis would maintain proper record including the bills of electricity units consumed by them as it would help in checking whether Government subsidised wheat release to them is grinded fully or not. The Food officials showing any slackness in this regard shall be constituted to be involved with the black-marketers of wheat and disciplinary action shall be taken against them accordingly.

2. If the Flour Mills or Chakkisdo not supply proper record or electricity bills, their wheat quota should be salshed by 50% immediately and saving made on this account should go to the Government.

3. In case wheat quota is not released to Flour Mills/Chakkis or the same is not utilised by them due to any reasons, then that much quantity of wheat should remain as saving and not diverted to any other mill/Chakki. List showing the manes of such flour mills/Chakkis showing non-ulitized wheat released be intimated at the end of each month regularly. Please ensure strict compliance and send weekly progress reports without fail.

Sd/-

SECTION OFFICER FOOD-1 For SECRETARY TO GOVT. OF SINDH."

"The Rationing Controller Hyderabad.

The District Food Controller, Dadu Thatta and Badin

Subject: NON-SUBMISSION OF ELECTRICITY BILL BY THE FLOUR MILLS AND CHAKKIS.

Enclosed please find herewith photostat copy of the letter of Section Officer Food-I, Government of Sindh, Food Department, Karachi, forwarded by Director Food Sindh, Karachi, on the above-cited subject.

Please ensure strict compliance of the directives mentioned in the above-cited letter and send weekly progress report without fail for onward submission to Government/Directorate.

Encl. : As above.

Sd/-

DEPUTY DIRECTOR FOOD, HYDERABAD REGION."

1. In accordance with the policy of the Government started checking so that flour mills and Chakki (Grinding Flour Mill) maintain proper record including the bills of electricity units consumed by them as it would help them in checking whether Government subsidized wheat supplied to them was grinded fully or not. If the Flour Mills or Chakkis (Grinding Flour Mill) did not maintain or supply the proper record of electricity bills, the consumption of wheat quota could be slashed by 50% immediately and saving make on in this count could revert to the

Government.

17.The petitioner was accordingly directed to produce electricity bills with regard to grinding of wheat supplies to him during previous months so that it could be verified with electricity consumption in regard to his grinding of wheat already supplied to him.

18.The petitioner produced paid-up bill of electricity of his Chakki (Grinding Flour Mill) for the month of July, 1998 and August, 1998 wherein following consumption of electricity units was shown :--

S. No.MonthConsumption used.

1.July, 199830 Units

2.August, 199840 Units

19.The above mentioned electricty consumption was less than the required consumption. The data supplied by the respondents is reproduced herein below :--

S. MonthWheat Electricity Bill Less Units

Supplied Consumption Produced

1.July, 1998 250 875 30 845

2.August, 1998200 700 40 660

20.The above tabular statement referred herein shows that the petitioner failed to prove grinding of Government subsidized wheat which was supplied to him. It appears that he disposed it of in open market.

1. In view of the above facts and circumstances the respondents called an explanation from the petitioner vide Letter No. 3033 dated 23.11.1998 regarding misuse of Government subsidies wheat. In the meantime, the Food Inspector of the area also visited the 'Chakki' (GrindingFlour Mill) of the petitioner on 10.11.1998 and 11.11.1998 and reported that the petitioner did not maintain account of receipts and disposed of Government subsidized wheat. Accordingly, show-cause notice was issued to him vide letter No. RC.HYD/98/3034 dated 23.11.1998 which was servedupon the petitioner on 24.11.1998 The petitioner did not furnish the required explanation withi seven days. He also failed to appear before the respondent^, though opportunity of personal hearing was afforded to him. The Respondents found him guilty of the ntravention of the Foodgrain (Licensing Control) Order, B 1957 for non-submission of the paid-up electricity bills and also for misusing Government subsidized wheat. He was, therefore, held liable for action under the Sindh Food Grain (Licensing Control) Order, 1957. The Respondent No. 3/contemner being Rationing Controller, Hyderabad, and Licensing Authority, in exercise of the powers conferred upon him under Clause 10 of the Sindh Foodgrain (Licensing Control) Order, 1957 ordered cancellation of the foodgrains Licence No. A/219 for dealing in wholesale business and food grains Licence No. F/21 to carry-out retail business with immediate effect vide his office Order No. RC/Hyd/98/4046 dated 11.12.1998.

2. The petitioner did not file any appeal against the said order of Respondents No. 3 as provided under Section 10 of the Sindh Foodgrains (Licensing Control) Order, 1957. Section 10 is reproduced hereinunder I extenso :—

"10. If any person holding a licence under this order contravenes any condition of the licence, then without prejudice to any other action which may be taken against him his licence may be suspended for a specified period and cancelled by the Licensing Authority or by the Director Food after due notice.

An appeal against suspension or cancellation of the licence by the Director Food shall lie to Government by the Deputy Director, Food to the Director Food and by the Director Food Controller, Rationing Controller to the respective Deputy Director Food within thirty days of the issue of the order appealed against.

The decision of Government, the Director Food and Deputy Director Food, as the case may be, shall be final, (Amended on 25th November, 1971)."

1. Instead of moving the appropriate authority as mentioned hereinabove the petitioner sent a legal notice dated 17.11.1998 to the respondents wherein he claimed entitlement of at least 4000 bags of subsidized wheat per annum. The respondent replied to the petitioner whereby he was advised to exhaust his remedy before the forum as stated hereinabove, but he failed to do so. The petitioner instead of filing appeal before the appropriate authority filed the present M.A. 52/99 (contempt application) before this Court in this case.

2. Before dilating upon the controversy of the parties, it will be

pertinent to reproduce herein under the operative part of the order of this Court passed on MA 52/99 dated 9.2.1999:

"We have heard the Additional Advocate-General as well as the Respondent No. 3, who is present in the Court. Respondent No. 3 in

J(his parawise comments disputes the fact that the petitioner appeared before him in response to the show-cause notice and that

any reply was received by him in writing. His stand is that he had i'ssue^ a show-cause notice upon a report, filed by his Field Staff

regarding the alleged irregularities committed by the petitioner and in due course of law the petitioner's licence was cancelled. We are of the opinion that this a disputed question on fact and cannot be assessed in the writ jurisdiction of this Court. However, in our opinion, it would be fair in the given circumstances to accord the petitioner another chance to appear before the Respondent No. 3 and submit a proper reply as well as his justification, which he has pleased today before us. Consequently, till this exercise is completed, cancellation of the licence of the petitioner is suspended. As suggested by the learned counsel for the petitioner, the petitioner shall appear on 20.2.1999 before the Respondent No. 3 and shall submit his detailed reply to the show-cause notice, issued to him by the Respondent No. 3. In accordance with the accepted proof of natural justice the Respondent No. 3 is directed to impart a fair hearing to the petitioner and adopt the correct procedure. With these observations, the present miscellaneous application is disposed of."

26.In pursuance to the above order of this Court, the respondents restored the foodgrain licence of the petitioner vide their letter No. RC/Hyd/99/387 dated 13.12.1999.

27.The petitioner submitted his reply to the show-cause notice No. CR/Hyd/98/3034 dated 23.11.1998 on 18.12.1999 but he failed to produce requisite documents and record. He was again afforded an opportunity to produce documents as mentioned in the letter No. RC/Hyd/99/442 dated 22.2.1999. In the said letter, the petitioner was required to appear before the Respondent No. 3/contemner on the same day at 3.30 p.m. for personal hearing alongwith the required documents.

28.The petitioner appeared and produced stock register, electricity consumption bills for the months of August to November, 1998 alongwith his written statement dated 23.2.1999. He undertook to produce the electricity consumption bill for December, 1998 on 24.2.1999. He admitted in his statement that he neither issued any cash memo, nor sent any fortnightly report to the concerned authorities.

1. It will be pertinent to reproduce herein under the relevant portion of the comments filed by the respondents, for the sake of convenience :--

"The reply furnished by the petitioner and subsequent his written statement have not met the requirements of the basic show-cause notice and whatever documents etc. furnished have been verified thoroughly and found not satisfactory on the following grounds :--

The petitioner has produced only stock register which on verification has been found to contain numberless errors (Photostat copy placed as Annexure "W") which shows the maintenance of register is an afterthought and manipulated and does not contain any verification note as claimed by the petitioner in Para 6 of his reply to the show-cause notice, Annexure "S", As for production of other record viz. Cash memo. etc. he has failed to produce and had even admitted its non-maintenance in his written statement Annexure "U".

He was required to provide proof in respect of delivery of fortnightly reports which he claimed to have been providing in para. 3 of his reply Annexure "S" but himself had denied submission of the same in his written statement Annexure "U".

The electricity bills produced by the petitioner have been verified and it is strange to note and consumption is not in accordance with the Government subsidized wheat supplied to him. The agreed formula by the Roller Flour Millers and Chakkiowners is that 3.5 to 4.5 units are consumed in grinding of one bag of 100 kgs. of wheat and accordingly the consumption of electricity per 100 bags works-out to- 350 to 450 units but the position evident from the bills furnished by the petitioner as against the wheat supplied to him, is very much differential as would be evident from the position submitted hereunder :--

Months Government Electric Units Electricity units

wheat supplied required to beconsumed as per

in bagsconsumed copies of bills

provided by the petitioner

| | | | | | --- | --- | --- | --- | | 8/98 | 200 | 700 | 40 | | 9/98 | 200 | 700 | X | | 10/98 | 200 | 700 | 40 | | 11/98 | 100 | 350 | 33 |

The perusal of the above tabular statement is very much clear that the petitioner has not grinded the Government subsidized wheat as the average consumption of electricity is in between astonishing and un­believable."

1. It is well settled that the committal for contempt of Court is a weapon, which is to be used sparingly and always with reference to Administration of Justice, where ex-fade some contempt of Court has been committed.

31: In the case of Re. Ramsay LR 3 PC 427 it was observed that it must be borne in mind that the offence of contempt of Court is purely sui generis and that the punishment for it involves in most cases in exceptional interference with the liberty of the subject and that, too, by a method or process which would, in no other case, be permissible or even tolerated.

1. In the case of Amulyaratan v. Amulya Chandra reported in 32 CWN 1242 it was held that the law relating to contempt of Court invests the Court with absolute power. It is, therefore, more necessary that it should he exercised with great caution and not without ample materials before it.

2. Again in the case of KM. Bason v. AH. Skone reported in 88 1C 725 it was observed that the High Court must always exercise its powers of punishing people for contempt, and when the occasion arises, it deals with such questions in the interest of the public, bearing in mind that the greater power it possesses, the more caution it is necessary to use in exercising it. In other words the Court does not interfere where the offence is of a slight or trifling nature and it only interferes where there is a real attempt to obstruct the course of justice.

3. In the case of Tarit Kanti Biswas reported in AIR 1918 Cal. 988 it was observed by Sanderson, C.J. (as he then was) that the jurisdiction, which the Court has in respect of a contempt of Court should be exercised with great care and it should only be exercised when the case is beyond all reasonable doubt, and this should especially be the case when the proceedings are at the instance of the Court itself.

4. Ordinarily, there is no bar in moving the Court in order to bring a case of contempt of Court to the notice of the Court for taking action against an alleged contemner or contemners. But this right cannot be misused with malicious intentions to cause harassment to others. In the case of Tarafatullah v. S.N. Maitra (AIR 1952 Cal. 919), itwas observed by Chakravartti, J. (as he then was) as follows :--

" This Court is and has always been jealous of its authority in public interest and will, I hope, always continue to be so. It will regard persons who bring to its notice cases of violation of its orders as persons who aid the administration of justice. But it cannot tolerate being misled by accusation against wrong parties and cannot allow its time to be wasted by proceedings which ought not to have been initiated at all in respect of the parties against whom they are directed."

"It appears from the books that it is the practice on the Crown side in the High Court in England to award costs to the respondents in a contempt proceeding if the charge is not established. Where the person charged with contempt is proved to have done the act complained of and the question merely is whether it amounted to contempt or not it may not always be proper to make an order for costs even if the decision be in favour of the respondent. But where, as in the present case, no connection with the persons charged with the acts complained of has been attempted to be established, it isobviously fair and proper that the person so unreasonably treated should be indemnified in costs."

37.In this case, the petitioners were three in number and the Rulewas against five persons who were Government officers. The rule wasdischarged and the petitioners were directed to pay costs."

38.The upshot of the above discussion is that the application under Section 304 of the Contempt of Court Act, 1976 moved by the petitioner, merits no consideration and it is accordingly dismissed.

(T.A.F.)Petition dismissed.

PLJ 2000 Lahore I (DB)

Present: IHSAN-UL-HAQ CHAUDHBY AND maulvi anwak-ul-haq, JJ.

CHAIRMAN BOARD OF INTERMEDIATE & SECONDARY EDUCATION, LAHORE-Appellant

versus

SAIRA BANO-Respondent I.C.A. No. 214 of 1999, decided on 21.9.1999.

(i) Calendar of the Board of Intermediate and Secondary Education, Lanore--

—Chap, n, Para, 7 & -Interpretation of statutes-Law Reform\ Ordinance, 1972 (XII of 1972), S. 8~-Intermediate Examination-Respondent failing in Economic of Part I Examination—Candidates failing in one subject only have to appear in fail subject of Part I alongwith all the subjects, of Part II in the following annual examination-Respondent appeared in failed paper of Part I examination but did not appear ib Part n Examination on account of alleged Ulnes8--Repso&dent having passed in foiled paper sought permission to appear in Part II Examination but was not allowed to do so-Single Bench of High Court in exercise of constitutional jurisdiction allowed her interim relief to appear said examination which she, however, passed-Validity-Single Bench's judgment appeared to be influenced by reading of Para 23 of the Rules which is wrong interpretation of the^ such candidates only who pass all subjects of Part I in one go but were unable to appear in examination of Part II in the year following-Para 23 of the Rules thus, would not cover case of respondent who admittedly failed in one subject in Part I examination, therefore, it was mandatory for her to take examination said subject alongwith all subjects of Part II of the intermediate-Nothing was brought on record to suggest that any discrimination had been resorted to in enforcement of said Rules- Impugned judgment of Single Bench was set aside and responden t on payment of requisite fee was directed to be allowed by appellant to take Part I and Part II examination of Intermediate in immediate following annual or supplementary examination to be conducted by appellants for said course. [Pp. 4 & 6] A, C

(ii) Calendar of the Board of Intermediate and Secondary Education, Lahore-

—Chapter II, Rr. 7, 21 & 23-Law Reforms Regulation Ordinance, 1972 (XII of 1972) S. 3--Repsondents failure to appear in Part II Examination of Intermediate-Respondents claims to be ill at relevant time disabling her to appear in said examination-Plea of illness must contain nature of illness, duration of illness, details of medications, particulars of medical practitioner who might have attended respondent and admission record of hospital which respondent might have been admitted-No such particulars having been stated either in application or in affidavit attached thereto, disability through illness could not be presumed.

[P.5]B

Mr. Shahid Waheed, Advocate for Appellant.

Mr. Muhammad Naeem Chaudhry, Advocate for Respondent.

Date of hearing: 15.9.1999.

judgment

Maulvi Anwar-ul-Haq,J.--This I.C.A. calls in question the judgment dated 26.2.1999 of a learned Single Judge in Chambers whereby Writ Petition No. 32269 of 1997 was allowed. The respondent, a student of a local college sat in the Intermediate Part I examination in the year 1996. She was declared fail in the subject of Economics and under the Rules framed by the appellant Board in such an eventuality a student has to take the examination in the fail subject of Part I alongwith all the subjects of Part II in the following annual examination, which in the present case was held in the year 1997. The respondent submitted admission forms for appearing in the said annual examination in the subject of Economics Part I and all the subjects in Part II. She was allowed to do so and as allocated Roll No. 15767. She did appear in the subject of Economics of Part I, but did not take examination in any of the subjects of Part n. It is an admitted fact that she did pass the examination of Part I in the subject of Ecomicis. Thereafter, she insisted that as, according to her, she fell seriously ill and could not appear in any subject in Part II, she be permitted to take the examination of Part II only. This request was rejected being against Rule 7 notified vide Notification No. 10/95, which lays down that a candidate failing in any subject in Part I shall have to appear in the same alongwith the annual examination of Part n while Rule 15 provides that no candidate will be allowed to appear only in Part I examination. The respondent challenged this action through writ petition. She also moved application (C.M. 2/97) for interim relief. The learned Single Judge directed issuance of the result card of Part I forthwith and allowed the respondent to appear in Part II examination with single fee. This examination was held in November 1997 and it is again an admitted fact that the respondent did pass all the subjects in the said examination. The writ petition came up for final hearing on 26.2.1999, when it was allowed. Now this appeal.

1. Mr. Shahid Waheed, learned counsel for the appellants submits that the impugned judgment is violative of the Rules competently framed by the appellants for the Intermediate Examination and applied to all the candidates without any discrimination. Mr. Muhammad Naseem Chaudhry, learned counsel for the respondent, on the other hand, supports the impugned judgment.

2. We have gone through the records with the assistance of the learned counsel for the parties. The factual position, emerging therefrom, is in accord with the narration of facts made above. We find that the impugned judgment does not tend to declare the Rules notified vide Notification No. 10/95 and clarified vide Notification No. 14/97 to be ultra vires. The learned Single Judge has reproduced the relevant Rules in the impugned judgment and the conclusions recorded therein are based on the interpretation made by the learned Single Judge in Chambers of the said Rules. It appears that the judgment is influenced by the reading of para 23 of the Rules. The learned Single Judge has found that the case of the respondent is covered by the said Rule and that the said fact entitles her to the relief prayed for by her in the writ petition. The Rule is reproduced here:-- "J This is clear from Para 7 of the judgment which is reproduced as under: -

"Petitioner's case would be covered by para 23 which stipulates that if a candidate passes Part-I but does not appear in Part-II Examination, his result in Part-I shall remain intact for a period of two years. This provision appears to have been added for those candidates who for one reason or the other are unable to appear may not be deprived of their success in Part-I Examination. But this benefit is available for two years only and petitioner did appear within the stipulated period of two years. She, therefore, could not be denied the right to appear in Part-II Intermediate Examination."

1. We find ourselves in respectful disagreement with the above interpretation of para 23 of the Rules. The said para is not to be read in isolation but is to be read alongwith other relevant paras of the notification so as to read all provisions in harmony. In case para 23 is found to be susceptible to the above interpretation then it would tantamount to completely destroying the other provisions of para 7 (originally and as clarified in Notification No. 14/97), para 21 which requires tabulation of results on the basis of results of Part I and Part n on cumulative basis and its consequences provided in para 22 thereof. In our opinion (the only rationale behind the said para 23 is that) it caters for the cases of such candidates only, who pass the Part I examination in one go i.e. they pass all the ubjects of Part I in a given examination but are unable to appear in the examination of Part n in the year following. The provision has obviously been made to enable such candidates to appear in only the Part n examination as they are the ones who fulfil the condition for appearing only in Part n examination and are further entitled to avail two chances to do the same. This is why the period of two years has been provided for preserving their results of Part I, so that the result could be tabulated after the candidate had ppeared in Part 11 examination in accordance with the provisions of the said notification. Any other interpretation of the said para 23 would set all the provisions of the notification at naught Resultantiy, we hold that the said para 23 does not cover the case of the respondent, who admittedly failed in one subject in Part I examination and thus it was mandatory for her to take the examination in the said subject alongwith all the subjects of Part n of the Intermediate.

2. Now we take up the question as to what would be the consequence of non-observation of the provisions of paras 7 and 21? The consequence would be that the concerned candidate would be declared to be fail in the entire examination i.e. Part I and Part n. The appellants, therefore, acted in accordance with the Rules while declaring the respondentfail in the Intermediate examination concerned and disallowing her to take only the examination of Part n.

3. The matter, however, does not end here. We find that he Rules contained in the above two notifications are silent as to a bona fide case of hardship. A situation might occur that for reasons beyond his or her control a candidate is unable to take examination in all or any of the subjects of Part II alongwith the subject or subjects in which he or she might have failed in Part I. This makes the present a controversy of fact. We find that the respondent filed an application on 8.10.1997 (Annex. D to the W.P.). In fact the application was filed on behalf of the respondent by her father. In this application, the reason given is reproduced as under:-

.\appear

Another application is Annex. D/l to the writ petition repeating the same plea in English. Both the applications were rejected by the Principal of the Islamia College, Cooper Road, Lahore, and the Controller of Examinations of the appellants respectively directing that the only way out is that the respondent should appear in Part I and Part n again. Alongwith the writ petition affidavit of the respondent was also her father has been filed and in both the affidavits (Annex. B and C to the W.P.) it has been stated that the respondent fell seriously ill before commencement of the said examination. The learned Single Judge in Chambers, has observed that no counter-affidavit was filed by the appellants. We are afraid in the facts and circumstances of the present case, it was neither required nor expected of the appellants to file a counter-affidavit to the said affidavits. One thing is absolutely clear on the face of the record i.e.the said allegation lacks material particulars:--

Le,(i) Neither in the applications referred to above nor 'in the affidavits, there is any mention of the nature of illness;

(ii) there is no mention of the duration of illness;

(iii) there are no details of the medications, if any administered to the respondent during the alleged illness;

(iv) no particulars of any practitioner who might have attended the respondent are available. Needless to add that no medical certificate has been filed on record till date; and

(v) no admission records of any hospital to which the respondent might have been admitted have been filed.

In the absence of any of the said particulars, we are of the firm opinion that the bald allegations contained in the affidavits need not have been rebutted at all. The appellants in their comments denied these allegations of serious illness by claiming lack of knowledge. Although the provisions of CPC applicable to the pleadings particularly Order Vffl, Rule 5 CPC do call upon a defendant to make a specific denial, but at the same time the said provisions also call upon a plaintiff to give particulars where necessary. Had the respondent given some particulars and substantiated her claim by filing some medical certificate, the appellants could have been in a position to get the authenticity of the same verified and then admitted or denied the same.

1. In the present I.C A a detailed statement had been filed on behalf of the respondent signed by herself, her father as also her learned counsel. We find that in reply to para 4 again the same bald allegation has been repeated i.e. she was seriously ill and again neither any particulars nor any documents have been given to enable us to adjudicate upon the sufficiency of the said cause entitling the respondent to the extra-ordinary relief granted to her in the impugned judgment, whichprima facie is in disregard of the Rules referred to above, the vires or validity whereof has neither been challenged nor has the same been adjudicated upon in the impugned judgment.

2. We can, of course, visualise the quandary in which the respondent stands placed, but when the notification contained Rules for all the candidates and there is nothing on record to suggest that any discrimination has'been resorted to by the appellants in the enforcement of the said Rules, in these circumstances, we find ourselves unable to place therespondent at an advantageous position and than those to other candidates, who are subject to the said Rules.

3. We, therefore, allow this I.C.A. and set aside the impugned judgment. The respondent shall, however, on payment of requisite fee etc. be allowed by the appellants to take Part I and Part II examination ofIntermediate in the immediately following annual or supplementary xamination to be held by the appellants for the said course.

(A.A.J.S.) Appeal accepted.

PLJ 2000 Lahore 6 [Rawalpindi Bench Rawalpindi]

Present: mian allah nawaz, J.

Mst. ALLAH RAKHI and others-Petitioners

versus

DEPUTY SETTLEMENT COMMISSIONER JHELUM and others-Respondents

Writ Petition No. 52/R of 1981, decided on 5.8.1999.

(i) Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975)--

—S. 2-Constitution of Pakistan (1973), Art. 199-Competency of Deputy Settlement Commissioner to examine record in his custody and decide whether any document was forged-Deputy Settlement Commissioner being custodian of settlement record was competent to examine record in his custody to determine whether any document was forged-Petitioners who claimed to be purchasers of evacuee plots in question, in open auction, were admittedly proved to be in possession of forged document and they even failed to prove that any price of land had been paid by them-Deputy Settlement Commissioner's order to the effect that documents in possession of petitioners were forged and that they had not paid any price of land was, thus, eminently correct, just and was fully commensurate with ground-realities of case. [P. 10] A

(ii) NaturalJustice-

—Principles of~Deputy Settlement Commissioner had admittedly issued notices to petitioners but instead of appearing before him they approached Court of plenary jurisdiction to frustrate said notices- Petitioner, were again served notices after dismissal of their claim by Court, of plenary jurisdiction, to adduce evidence in support of their claim but they did not avail that opportunity-There being no violation of principle of natural justice, constitutional petition on basis, thereof, was thus, not competent. • [P. 11] B

(iii) Scheme for Management and Disposal of Available Urban Properties, 1977--

—-Para 2, 3-Constitution of Pakistan (1973), Art. 199-Remedy available to petitioners-Order of dismissal of Constitutional petition would not preclude petitioners from moving application under scheme for Management and Disposal of Available Urban Properly 1977, if they were so advised-Competent Authority would be well within its rights to examine question of entitlement of petitioners and genuineness of document of transfer deed issued to them. [P. 11] C

PLD 1991 SC 691; 1990 CLC 1174; 1989 SCMR 819; Wade and Phillip

Constitutional Law, 5th ed. P. 313; (1963) 14 C.B. (N.S. K&L 366) PLD 1981 SC 225; 1984 SCMR 143 ref.

Mr. Bashir Ahmad Ansari, Advocate for Petitioners.

Malik Muhammad Afzal and Mr. Samad Mehmood, Respondents.

Date of hearing; 29.7.1999.

judgment

Mst. Allah Rakhi/Petitioner No. 1, Sheikh Ghulam Muhammad/Petitioner No. 2 and Ch. Muhammad Latif/Petitioner No. 3, through this Constitutional petition seek to call in question the validity of order passed by Deputy Settlement Commissioner/Notified Officer/Deputy Administrator Residual Properties/Jhelum dated 4.7.1981.

1. Facts, briefly stated, giving rise to this application are that Petitioner No. 1 purchased urban evacuee vacant plot falling in Khara No. 241-242 measuring one Kanal 10 Mariasfor a sum of Rs. 22,613/- including settlement fee. Petitioner No. 2 similarly purchased another open plot in auction falling in Khasra No. 243-244 measuring 16 Marias48 sq.ft. for a sum of Rs. 12,202/- including settlement fee. Ch. Muhammad Latif/ Petitioner No. 3 also purchased an open plot bearing No. B-V1-3-S-I measuring 8 Marias for a sum of Rs. 6,030/- including settlement fee. Original transfer orders were issued to the petitioners on 15.9.1960. Permanent transfer deeds were issued to them on 18.3.1964, 7.6.1964 and 18.3.1964 respectively. Statedly, the petitioners were already in possession of the aforesaid properties; that Petitioner No. 1 had installed a band-saw machine on the disputed plot; that Petitioner No. 2 had constructed some sheds on his plot while Petitioner No. 3 installed a band-saw machine on his plot transferred to htm. This was, however, not the end of the matter. Ch. Muhammad Zaheer and 6 others/Respondents Nos. 3 to 8 moved an •pptteatkm before Settlement Commissioner Rawalpindi/claiming that they were auction-purchasers of plot No. B-VI-3-S-5; that the transfer documents in favour of the petitioners were sham and bogus. This application was sent to Deputy Settlement Commissioner, Jhelum.

2. Resultantly, notices were issued to the petitioners to explain as to how they have come into possession of the plots mentioned above. Not liking the notices, the petitioners instituted two suits before the Court of plenary that the Deputy Settlement Commissioner had no

jurisdiction to probe into the allegations of P.T.Ds. The learned trial Court was pleased to stay the proceedings before the Deputy Settlement Commissioner. Ultimately their suits were dismissed by the learned Trial Court and their appeals to met the same fete. In this scenario, proceedings, tofora the Deputy Settlement Commissioner, restarted and parties were ask\ to adduce evidence in support of their respective claims. The ~~petitioners~~ did Mt do so. Consec-uently, the Deputy Settlement Commissioner found that the documents of transfer relied upon by the nttitionars were forged, bogus and were simple fraud. He came to these awMihutoiM in the following tomst

'After going through the file carefully I have consulted the other record of the Department concerning the said P.T.Ds. It is surprising to not\ that there is no paper worth the name regarding the proceeding ef Reservation of the plot in dispute. If one sees the documents with naked eyes, one can easily grasp that the documents are setf-explanatory regarding their in genuinenity. There is no proper order for the transfer of the properties, the documents notice for transfer k silent about its despatch No. The P.T.Ds are shown to he signed on one date, and the height of matter is that the three P.T.Os set forms were issued to the Jhelum Office by the HcMMUfoartors in 1988 as it is verified by the Lahore office vide its letter No. 2221-AX-X-OF/77 dated 25th August, 1977, whereas the •aid P.T.O. forms have been shown to be signed on 15.9.1960. It is strange enough to note when the P.T.Os form were not printed even, in year 1960 how they could have been signed in the year 1960. The P.T.D. forms are of not even of the Government Printing Press these are seams to be printed by some Private Printing Press as these are sot tallying with P.T.D. Registers printed by the Government the entries made in the P.T.O., and P.T.Ds are also fake and not initialled by any of the Settlement Department The P.T.Ds are also not getting any support from the CSC-IV and CSC-V Registers.

Mirza Atta-ur-Rehman in number of cases before the Martial Law Authorities and before Settlement Authorities has categorically admitted that he had been signing Anti-dated documents after his retirement from the service. There is a gang of rackeeters who had been preparing such documents out side the Settlement Department than within the conveyance of some officials of the Settlement Department they had been smuggling the forged documents in to the Department The other most important factor is that in all the cases there is no payment at all. In nut-shall, the result of my discussion is that the said documents are the result of fraud, forgery, fabrication, there is no competent order by any of the Settlement Department Officer all the orders are Anti-dated. The signatures have been signing the papers after their retirement from the service and as such are of no value. By doing this the respondents have tried to grab the valuable property of the Department, though already sold to petitioners.

1. Learned counsel for the petitioners in support of this petition raised two fold grounds:

Firstly, that after the promulgation of Evacuee Properly and Displaced Persons (Repeal Act XIV of 1975); that Deputy Settlement Commissioner had no jurisdiction whatsoever to allow respondents' application. On the strength of the above contention, it was submitted that questioned order was wholly without jurisdiction.

Secondly, that the applicants had not been afforded opportunity of hearing in this case and so the impugned order passed in violation of principle of natural justice and no body should be condemned un-heard. Learned counsel for the respondents, however, supported the impugned order by reling on Muhammad Baron and others v. Member (Settlement and Rehabilitation) Board of Revenue, Punjab and others (PLD 1991 S.C. 691) and S.K. Masood and 3 others v. Special Committee through Member, Board of Revenue and others (1990 C.L.C. 1174).

1. I have heard the learned counsel at length, perused the record and attended to their rival submissions very carefully. Now I will proceed to deal with them in succession. As regards, the first point, suffice it to say, the same is clinched by rule enunciated in PLD 1991 S.C. 691. The point as raised over here, was raised there and dealt with by His Lordship MA Zullah (the then Chief Justice of Supreme Court) in the following terms:

"Where, therefore the High Court in its extraordinary jurisdiction under Article 98 of the Constitution had come to the conclusion, that the orders of the Deputy Settlement Commissioner verifying the claims of certain persons were illegal and without jurisdiction, it was held that "it could legitimately refuse to set aside the order of the Officer on Special Duty (Central Record Office), even though the latter was clearly without jurisdiction". Putting this observation in juxtaposition to the present case; if the allotments relied upon by the appellants made by the Settlement functionaries were illegal and without jurisdiction and indeed if they are also based on fraud and forgery, In that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth millions by its own order, the High Court could not in exercise of its discretionary (Writ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Raunaq Ali the latter was clearly without jurisdiction."

His Lordship went on to say:

For all the above reasons, this Court is not bound to set aside the order of the High Court, even if it suffers from an infirmity, which otherwise not only advances justice between the main parties but also is fair and proper, vis-a-vis the interest of innocent purchasers. The effect of this restraint on the part of this Court would be that if the order of the High Court is upheld, it would means that the remand order would be operative by virtue of the second part of Section 2(2) and the functionaries concerned would give effect to it notwithstanding any jurisdictional or other defect in the order of Board of Revenue."

I had opportunity to examine the aforesaid question from different angle in S.K Masood and 3 others v. Special Committee through Member, Board of Revenue (Settlement and Rehabilitation) and Secretary to Punjab Government and others (1990 C.L.C. 1174). Relying upon Shamrooz Khan v. MuhabatKhan (1989 S.C.M.R. 819), it was held that the Deputy Settlement Commissioner/person who was custodian of the settlement record was competent to examine record in his custody and decide whether any document was forged.

1. Applying the above rules to facts of the case in hand, it was not difficult to agree with conclusions of Deputy Settlement Commissioner that the documents of transfer in favour of the petitioners were forged and spurious documents. It was not denied that these were scribed on unofficial papers, were not part of settlement record and carried forged signatures; that no price of the land had even been paid by the petitioners. For the afore-stated reasons, it is clear that impugned order was eminently correct, just and was fully commensurate with the ground-realities of the case. In-so-far second contention is concerned, it is well known proposition of law contained in Wade and Phillips Constitutional Law, 5th Edition at page 313 in the following words:-

"An equally elementary principle of justice is that no party ought to have his case decided without being afforded an opportunity of hearing the case which he has to meet as well as stating his own case. "Even God Himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam', says God, Svhere art thou? Hast thou not eaten of the three that thou shouldst not eat". In Cooper v. Wandsworth Board of Works (1963), 14.C.B. (N.S. K&L. 366), the Court held invalid a demolition order justifiable in itself, which was made by the Board without giving notice to the owner of the properly or affording him an opportunity of being heard. There is, however, no obligation, unless a statute so provides, that a hearing should be oral; Local Government Board v. Arlidge ante. Even in a Court of law evidence may in proper circumstances be given by affidavit."

The same principle was reiterated in Dawood Cotton Mills Ltd. v. Guftar Shah and another (P.L.D. 1981 S.C. 225) and The Chairman Employees Old Age Benefit Institution and others v. M. Ismail Munawar (1984 SCMR 143).

1. Applying this rule to the facts of the case in hand, it is quite clear that Deputy Settlement Commissioner had issued notices to petitioners; that they had not filed any reply and instead approached the Court of plenary jurisdiction to frustrate the said notices; that their challenge before the first Court as well as appellate Court failed, that when the Deputy Settlement Commissioner restarted the proceedings and opportunity was afforded to them to adduce evidence in support of their documents they did not avail that opportunity. Even before me, learned counsel for the petitioners was not able to pin-point any material showing that the petitioners had not paid a single penny as a price of the plot transferred to them. This clearly lends unshakable support the conclusions of learned Deputy ettlement Commissioner. The contention that the impugned order of the Deputy Settlement Commissioner is in violation of principle of natural justice, has no merit whatsoever. For the aforesaid reasons this petition is bound to fail and is hereby dismissed without any order as to costs.

2. While parting with this order, I am inclined to observe that this order shall not preclude the right of petitioners from moving application under Scheme Management of Disposal of Available Properties, 1977, if they are so advised. Learned counsel for the respondents even conceded that the genuineness of the documents relied upon by respondents were not decided by the Deputy Settlement Commissioner. In this scenario, if the petitioners move the competent authority for transfer of the properties to them, the learned competent authority will be well within its powers to examine the question of entitlement of the petitioners and genuineness of documents of transfer issued to the respondents.

(A.P.) Petition dismissed.

PLJ 2000 Lahore 12

Present: SHEIKH ABDUR RAZZAQ, J. SheikhMUHAMMAD ASHRAF-Petitioner

versus Mst. BILQEES AKHTAR and 4 others-Respondents

C.R. No. 2137 of 1988, heard on 16.7.1999.

Specific Relief Act, 1877 (I of 1877)-

—S. 42-Civil Procedure Code, 1908 (V of 1908), S. 115~Suit for declaration and injunction that plaintiff was owner in possession of property in question, and injunction to the effect that he being not party to ejectment application, order of ejectment passed against tenant was not binding on him—Plaintiff s suit for declaration was dismissed but bis prayer that ejectment order was not binding on him was granted—Appellate Court, however, dismissed plaintiffs suit in toto including his prayer that ejectment order was not binding on him-Validity-Plaintiff was never proved to be in possession of property in question, nor the same was proved to have been purchased by him-There being no need to implead plaintiff as party in ejectment petition, the same was binding on him-Plaintiff, however, interms of Art. 120, Limitation Act 1908 had got period of six years after rejection of his objection petition against execution of ejectment order-Suit filed by plaintiff beyond six years was thus, patently time barred-Judgment and decree of Appellate Court dismissing plaintiffs suit, thus, did not warrant interference.

[Pp. 15 & 16] A, B

Ch. Inayatullah Khan, Advocate for Petitioner. Mr. Abdul Wahid Chaudhry, Advocate for Respondents Nos. 1 to 3. Mr. Amjad Hussain Syed, Advocate for Respondent No. 4. Date of hearing: 16.7.1999.

judgment

Briefly stated the facts are that property No. S-1-76-S-21 was allotted to Syed Yousaf Ali predecessor-in-interest of defendant/Respondent No. 5 Muhammad Sabir vide allotment order dated 30.9.1953 on the basis of his possession. As a result of some administrative order, the number of property transferred to defendant/Respondent No. 5 was changed from S. 1-76-S-21 to 8-1-114-8-28(2). Later on Muhammad Sabir defendant/ Respondent No. 5 alienated the property referred above to Mst Maqsooda Begum defendant/Respondent No. 4 vide sale-deed dated 15.2.1967 who alienated the same in favour of Muhammad Ashraf plaintiff/petitioner videsale-deed dated 24.2.1973, that similarly Mst. Inayat Bibi predecessor-in-interest of defendants/Respondents Nos. 1 to 3 was allotted property No. S-1-114-S-28 by the Settlement Commissioner vide order dated 20.6.1966. Later on Mst. Inayat Bibi filed an ejectment petition against Muhammad Sabir who was occupying the said properly as a tenant which was decided in her favour. The stand of the plaintiff/petitioner Muhammad Ashraf is that as he had purchased property from Muhammad Sabir and as he was not made a party in the ejectment petition, so the said order of ejectment is not binding on him. He thus filed a suit for declaration and injunction to the effect that he is owner in possession in his own right of property No. S-l-114-S-28-(2) purchased vide sale-deed dated 24.2.1973 and eviction order is not binding upon him. As a consequential relief he prayed that the defendants/Respondents Nos. 1 to 3 be permanently restrained from interfering with his possession over said property.

1. The defendants/Respondents Nos. 1 to 3 contested the said suit contending that plaintiff/petitioner had purchased the property with defective title knowingfully that the person selling property had no title to pass on to him. They further asserted that they are rightful owners of the property in dispute and have obtained order of ejectment in accordance with law. They also contested the suit on various legal grounds and prayed for the dismissal of the suit.

2. From the divergent pleadings of the parties the trial Court framed the following issues:—

3. Whether the plaintiff is owner in possession in his own right of property No. 8-1-114-8-28(2) purchased on the basis of sale- deed dated 24.2.1973? OPP

4. Whether the impugned ejectment order is illegal void, in effective qua the plaintiffs right? OPP

5. Whether the suit is frivilous and vexatious, if so whether the Defenants Nos. 1 to 3 are eutiteld to special costs U/S. 35(a) CPC?OPD. Whether the suit is barred by time? OPD

6. Whether the suit is not legally competent? OPD

7. Whether the plaint is liable to be rejected U/O. VII, Rule 11CPC?OPD

8. Whether the plaintiff has no locus standi to file the present suit? OPD

9. Whether the plaintiff has come to the Court with unclean hands? OPD

10. Whether the suit is hit by provisions in Section 12(2) CPC? OPD

11. Whether the suit is not maintainable in view of provisions of Sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, 10. Whether the suit is hit by principle ofresjudicata? OPD

12. Whether the suit is collusive to the extent of Defendant No. 5 and of the plaintiff. If so to what effect? OPD

13. Relief.

14. In support of his stand plaintiff/petitioner examined PW-1 Kh. Aman Ullah, PW-2 Maqsood Farooqi, PW-3 Syed Muhammad Ayub, PW-4 Haji Muhammad Iqbal, PW-5 S. Yamin, PW-6 Abdul Rashid Patwari and recorded his own statement as PW-7. He also brought on record documents Ex.P-1 to P-5. In rebuttal defendants/Respondents Nos. 1 to 3 examined Abdul Rashid DW-1, and Imtiaz Ahmad Rathor DW-2. They also brought on record documents Ex.D-1 to Ex.D-21 as well as judgment reported as (1974 SCMR 454) Mark-A and sale-deeds Ex.CW-1/1-3, and thereafter closed their evidence.

15. After going through the evidence produced by the parties, the trial Court decreed the suit of the plaintiff to the extent that ejectment order could not be pressed into service for seeking his ejectment. However his prayer to the extent that he be declared owner in possession of the suit property was dismissed. Both, the plaintiff/petitioner and defendants/Respondent Nos. 1 to 3 felt aggrieved of the judgment and decree of the trial Court and filed two separate Appeals Nos. 113/88 and 114/88. As both these appeals arose out of same judgment and decree so these have been disposed of by the single judgment whereby the appeal filed by plaintiff/petitioner has been dismissed and that of defendants/Respondents Nos. 1 to 3 has been accepted. The plaintiff/petitioner has felt aggrieved of the said judgment and decree of the learned Addl. District Judge, Lahore dated 20.12.1988 and filed the instant Civil Revision.

16. Arguments have been heard and record perused.

17. Learned counsel for the plaintiff/petitioner has made three fold submission. His first submission is that initially property bearing No. S-l- 76-S-21 was allotted to Syed Yousaf Ali vide allotment dated 30.9.1953 and P.T.D. was issued in his favour on 21.3.1960, that later on due to administrative reasons the suit property was given No. 8-1-114-8-28(2), that Muhammad Sabir defendant/Respondent No. 5 being successor in interest of original allottee Syed Yousaf Ali sold his share in favour of Mst. Maqsooda Begum defendant/Respondent No. 4 vide sale-deed dated 15.2.1967 and which share was later on purchased by the present laintiff/petitioner vide sale-deed dated 24.2.1973, that Mst.Inayat Bibi predecessor-in-interest of defendants/Respondents Nos. 1 to 3 being owner of property No. S-l-114- S-28 could not seek his ejectment from property bearing No. 8-1-114-3-28(2) in the garb of ejectment order passed in respect of property bearing No. S-l- 114-8-28.

His second submission is that ejectment order could not be got executed qua him as he was in possession of the suit property in his independent capacity. His third submission is that finding on Issue No. 4 returned by the Appellate Court is not in accordance with law and the suit was not time-barred.

1. The only point which require determination is if plaintiff/ petitioner had purchased any property No. 3-1-114-8-28(2) on the basis of sale-deed dated 24.2.1973. There is no doubt that Muhammad Ashraf plaintiff/petitioner purchases some property from Mst. Maqsooda Begum vide sale-deed dated 24.2.1973 who in turn had purchased the said property from Muhammad Sabir defendant/Respondent No. 5 videsale-deed dated 15.2.1967. Muhammad Sabir defendant/Respondent No. 5 claims to have been allotted the said property by carving out the same out of property No. S-1-76-S-21. According to the evidence brought on record property No. S-l-76-S-21 hereinafter to be described as properly No. 21 was transferred to Syed Yousaf Ali predecessor-in-interest of Muhammad Sabir defendant/ Respondent No.

2. Similarly property No. S-1-114-S-28, hereinafter to be called as property No. 28 was allotted to Mst. Inayat Bibi predecessor-in-interest of defendants/Respondent Nos. 1 to 3 by the Settlement Commissioner vide order dated 20.6.1966. There is nothing on the record to show if property No. S-21 was over sub-divided or its number was changed from S-21 to properly No. 28(2). No evidence to prove such assertion has been adduced by the plaintiff/petitioner Muhammad Ashraf. On the other hand he examined S. Yamin (PW5), Assistant of Excise and Taxation Department who brought record pertaining to properly No. S-1-144-S-28 and did not utter a single word to prove that any properly with No. S-l-114-S-28(2) also existed. He also examined Abdul Rashid (PW6) who brought the record pertaining to properties No. S-1-76-S-21 and No. S-1-114-S-28 and deposed that there was no record relating to property No. 28(2). This witness i.e.PW-6 was also examined as DW-1 by the defendants/Respondents Nos. 1 to 3 and he categorically deposed that property No. S-1-76-S-21 was never changed with 8-1-114-8-28(2). It is thus proved that property No. S-21 and S-28 are two different properties and none of said properties was given No. S-28(2) as asserted by the plaintiff/petitioner. It is thus proved that plaintiff/petitioner was never in possession of any property No. S-1-114-S-2S(2) in his own right. It is also pertinent to point out that vide order dated 20.6.1966 Settlement Commissioner Lahore ordered that House No. 21 (i.e. S-1-76-S-21) shall stand transferred to Muhammad Sabir/defendant/Respondent No. 5 and house No. S-1-114-S-28 shall stand in the name of Mst. Inayat Bibi. The findings of the Courts below on said score are unexceptionable and are hereby maintained.

3. So far as second submission is concerned, suffice it to say that as there existed no property No. S-28-(2) and the plaintiff/petitioner is in possession of property transferred to Mst. Inayat Bibi, predecessor-in- interest of Respondents Nos. 1 to 3, so the ejectment order is binding on him and there was no need to implead him a party. The findings on this issue render by the appellate Court is maintained.

4. So far as the question regarding limitation is concerned, admittedly ejectment order was passed on 3.1.1974. The plaintiff/petitioner filed objection petition on 5.10.1974 which was rejected on 31.1.1975. According to Article 120 of the Limitation Act, the plaintiff/petitioner had got a period of 6 years after the rejection of objection petition to file suit Admittedly the instant suit was filed on 2.6.1981. Even if the period of six years is counted from the rejection of his objection petition on 31.1.1975, he could file the instant suit by 30.1.1981. The suit having been filed on 2.6.1981 is patently time-barred.

5. The up shot of above discussion is that the Appellate Court has passed the impugned judgments and decrees in accordance with law. There is no force in this revision petition and the same is hereby dismissed.

(A.A.) Revision dismissed.

PLJ 2000 Lahore 16 (FB)

Present: IHSAN-UL-HAQ, NAJAM-UL-HASSAN KAZMI AND

moulvi anwar-ul-haq, JJ. MUHAMMAD AHMAD SIDDIQUI and 11 others-Appellants

versus COLLECTOR. LAHORE DISTRICT, LAHORE and 4 others-Repsondents

I.C.A. No. 257 of 1993 in W.P. No. 5585/90, decided on 28.6.1999. (i) Land Acquisition Act, 1894 (I of 1894)-

—S. 17~Law Reforms Ordinance, 1972 (XII of 1972), S. 3--Urgency within meaning of S. 17, Land Acquisition Act 1894—Mode to determine— Jurisdiction of Courts to determine factum of urgency or otherwise-­Provincial Government or Commissioner was although judge of facts, as to whether land was required for public purpose and also that there was urgency within meaning of S. 17, Land Acquisition Act 1897, yet Courts would always be duty bound to see that during course of such procedures authorities concerned had applied their mind or not-Facts of case indicated that right from the start process of acquisition was invoked and carried on maliciously in as much as Commissioner did not even wait for initial process to be completed and issued proclamation interms of 8. 17 of the Act-Factual position was that land was acquired by private Housing Society for profitoring and admittedly out of acquired land each member of society approximately appropriated 15 plots each-Entire process, thus, suffered from malice in fact as also malice in law-Commissioner was bound to hold enquiry where company had asserted urgency for invoking provisions of S. 17, Land Acquisition Act 1894 but no such enquiry was conducted-Impugned proceedings, thus, exhibited lack of transparency in process of decision making, therefore, power of judicial review, under Art. 199 of the Constitution would extend to see whether or not such had been arrived at by public functionaries concerned in a manner which did not contravene fundamental rights or constitutional guarantees- Impugned notifications in terms of S. 17, Land Acquisition Act 1877 were, thus, declared to be without lawful authority and as such void. [Pp. 20, 21 & 22] A, C & D

(it) Mala fide-

—Mala fide being not an abstract phenomena has to be specifically alleged and proved-Whatever was done in violation of law could not he deemed to have been done in good faith and what was not done in good faith was mala fide. [P.21]B

PLD 1983 Lah. 178; PLJ 1984 Kar. 55; AIR 1970 SC 984; 1993 SCMR 1673; PLD 1988 Lah. 49; PLD 1976 Lah. 747; NLR 1999 Tax 89 ref.

Mr. Muhammad Raftq Shad and Syed Mansoor All Shah, Advocates for Appellants.

Rana Muhammad Arif, Addl. A.G. and Sh. Ziaullah, Advocate for Respondents.

Date of hearing: 25.5.1999.

judgment

Moulvi Anwarul Haq, J.-This judgment will dispose of I.C.As. Nos. 257, 354, 475, 476,477 and 642 of 1993 as the same have arisen out of judgment dated 16.6.1993 passed by the learned Judge in chamber dismissing the writ petitions filed by the appellants alongwith several other

writ petitions.

1. The Respondent No. 6, stated to be a society registered under the Cooperative Societies Act, 1925, applied on 16.12.1987 to the District Collector, Lahore, for acquisition of an area of 6312 Kanals 11 Marias of land situate in Villages Malikpur, Shajpal and Shevepura, Tehsil Lahore Cantt. In pursuance of this application a notification under Section 4 of the Land Acquisition Act was issued by the Collector, Lahore, on 30.8.1988 informing the likelihood of acquisition of 1385 Kanals 5 Marias land in the said three villages. Later on the said notification was modified vide notification dated 22.2.1989 and area, proposed to be acquired, was enhanced to 3091 Kanals 6 Marias. This comprises of 1547 Kanals 16 Marias in Shevepura and 1543 Kanals 10 Marias in Malikpur. This was followed by another notification issued on 5.4.1989 and this time the area proposed to be acquired came to 4326 Kanals 17 Marias comprising 2221 Kanal in Malikpur and 2105 Kanals 17 Marias in Shevepura. Thereafter another notification was issued on 17.8.1989 whereby 474 Kanals 22 Marias of land in Malikpur and 12 Kanals 19 Marias of land in Shevepur were excluded. It appears that the Commissioner, Lahore, was convinced about the urgency of the matter and vide notification dated 27.8.1989 it was declared under Section 17(4) of the Land Acquisition Act, 1894 that provisions of Sections 5 and 5(A) of the said Act shall not be applicable. This notification was issued in respect of a total area of 3506 Kanals12 Marias comprising 1583 Kanals 4 Marias in Malikpur and 1923 Kanals8 Marias in Shevepur. A declaration was issued under Section 6 of the said Act by the Commissioner vide notification dated 5.9.1989. At this juncture the appellants herein filed writ petitions questioning the said acquisition as also the mode in which it was proceeded with. During the pendency of the writ petitions the Land Acquisition Collector announced and published Award No. 3 of 1990 on 27.5.1990 whereby the assessed compensation. A perusal of the award reveals that ultimately a total area of 2533 Kanals 4 Marias was acquired comprising 1491 Kanals in Malikpur and 1042 Kanals 4 Marias in Shevepura. This short-fall in the area to be acquired, occurred as according to the award out of the area proposed to be acquired 345 Kanalsand 3 Marias in Shevepur, was foxind to be owned by the Central Government while the said Society reported to have purchased 628 Kanals5 Marias by private negotiation and on its request this area was also excluded. As stated above the writ petitions, filed by the appellants, were dismissed by a learned Single Judge of this Court vide the impugned Judgment

2. Syed Mansoor AM Shah, Advocate, led the arguments on behalf of the appellants. He argued that setting up of a private housing scheme is not a public purpose for which land would be acquired under the provisions of Land Acquisition Act, 1894. With reference to the bye-kws of the Respondent No, 6 it was argued that it has been set up by private individuals with a motive to make profit. It was particularly argued by the learned counsel that the said bye-laws enable a member to have more han one plot. This according to the learned counsel, is an attempt at enrichment by abuse of the process of law. Learned counsel also questioned the invoking of Section 17 of the said Act by the Commissioner as, according to him, in the circumstances of the case, there was no urgency involved. In the course of his arguments the learned counsel also sought to distinguish the various judgments referred to and relied on by the learned Single Judge in chamber in the impugned judgment. Sh. Zia Ullah, learned counsel appearing for the respondent Society tried to support the judgment under appeal relying upon the various pronouncements referred to therein.

3. We have gone through the records with the assistance of the learned counsel for the parties. The argument that setting up a private housing scheme is not a public purpose within the meaning of the Land Acquisition Act 1894, was also pressed before the learned Single Judge, who was pleased to repel the same bring upon the following cases:--

(i) Muhammad Mushtaq Ahmad Khan and 2 others v. The Assistant Commissioner, Sialkot and 3 others (PLD 1983 Lahore 178); <ii) Dr. Muhammad Nasim Javed vs. Lahore Cantonment Housing Society Ltd., through the Secretary Fortress Stadium Lahore Cantt. and 2 others (PLD 1985 Lah. 552); (iii) Mullah Ghulam Mi & others vs. Commissioner of Karachi and 2 others (PLJ 1984 Karachi 55); and

(iv) Ratilal Shankara Bhai vs. State of Gujrat and others (AIR 1970 S.C. 984).

Learned counsel for the appellants has taken us through the said judgments. We find that in the case of Muhammad Mushtaq Ahmad Khan supra the acquisition was for the purpose of construction of a grid station by Wapda and not for a private house scheme. In Mullah Ghulam All's case supra the land was acquired for the construction of a road. In Ratilal Shankara Bhai's case supra the appeal to the Supreme Court had been filed against a matter decided by the High Court of the State of Gujrat. The legislature of the said State had enacted Gujrat Unification and Amendment Act 1965 and therein public purpose for acquisition of land was defined to include a housing scheme which the said Government from time to time undertook for the purpose of increasing accommodation for citizens. He was further provided that the definition will also include by such scheme undertaken from time to time with the previous sanction of the Government by a local authority or company. It was on the basis of said legislative enactment that the said case was decided. However, the case of Dr. Muhammad Nasim Javed supra pertains to a housing society and a learned Single Judge of this Court held therein that setting up of a housing colony is a public purpose. We may here refer to the case of Federation of Pakistan vs. Province of Punjab (1993 S.C.M.R. 1673), wherein Mr. Justice Muhammad Afzal Lone (as his lordship then was) was pleased to observe at page 1678 of the report "there is no doubt that the acquisition of the land for a housing scheme formulated by the Board of Revenue Employees Housing Society Ltd. is a public purpose". His lordship further observed "by public purpose is meant an object or aim in which the general interest of the community a\ compared with the interest of an individual is involved". In view of the said observations of the Supreme Court which somewhat confirm the observation of this Court in the case of Dr. Muhammad Nasim Javed supra, the argument that the setting up of a private housing scheme is not a public purpose by itself does not hold water. However, we have to see as to whether the machinery of law, which but for the Constitutional protection provided to it under proviso to Article 24 of the Constitution, is a process for depriving a citizen of bis property eompulsorily, can be allowed to be invoked by a group by whatever name called, for personal benefit. The answer is certainly no and we seek support from the observations of Mr. Justice Irshad Hassan Khan (as his lordship then was) in para 14 of the said report at page 562, which is to the following effect:

"In view of the ratio laid down in the aforementioned cases, the legal position which emerges is that the acquisition for Co-operative House Building Society may serve a public purpose. It, however, depends upon circumstances of each case whether or not such an acquisition is for a public purpose."

The detailed facts leading to the filing of the writ petitions by the appellants have already been stated above. The Commissioner feeling satisfied about urgency of the matter issued the notification holding that provisions of Section 5 and 5(A) of the Land Acquisition Act shall not apply and directed issuance of a declaration under Section 6 of the said Act. The effect of the said notification is that the appellants were deprived of their right to file objections to the proposed acquisition. A perusal of the comments filed by Commissioner Lahore Division would show that the Collector expressed his concern about the provisions of bye-laws of Respondent No. 4 authorising purchase of 20 shares by any member of the society. The Collector was assured by the society vide letter dated 30.8.1989 that a resolution has been passed on 16.8.1989 to the effect that no member of the society was going to be allotted more than one plot It was on this assurance that the Collector forwarded the case to the Commissioner for issuance of a declaration under Section 6 of the said Act Respondent No. 4 has also, in its comments, relied upon the said resolution. We called upon the learned counsel for Respondent No. 4 to lay information as to what is the actual position regarding the plots and their allotment We must note here that the learned counsel has been very fair in laying the correct information, according to which there are 1294 plots of one Kanaleach and 1971 plots of two Kanalseach. These plots stand allotted to 224 members. It will thus be seen that notwithstanding the sizes of the plots even going by the number and assuming that the plots have been equally distributed amongst the said 224 members, each member is holding 15 plots. This is manifestly against the assurance given by Respondent No. 4 to Respondent No. 2, which led him to by-pass procedure under Section 5 and 5(A) of the Act and straightaway issued a declaration under Section 6 of the Act. It will further be seen that it was the said assurance which led the Land Acquisition Authorities to the conclusion that the acquisition was for a public purpose and this is apparent from the comments filed by the Commissioner as well as Respondent No. 4.

1. It is true that the Provincial Government or the Commissioner, as the case may be, is to be judge of the fact as to whether the land in required for public purpose and also that there is urgency within the meaning of Section 17 of the Act, as held by the learned Single Judge on the basis of the pronouncement relied upon by him in the impugned judgment However, it is equally true that the Courts will always be duty bound to see that during the course of said procedures the authorities concerned have applied their mind or not. In the above referred case reported as 1993 S.C.M.R. 1673, it was thus observed at page 1679 by the Supreme Court-

"Under Section 6, on consideration of a report submitted to the Commissioner under Section 5-A or Section 40 and compliance with other provisions of Part VU of the Act (which included Sections 39 and 40) if he is satisfied that the land is needed for public purpose or for a company he may a declaration to that effect. It is noteworthy that enquiry under Section 40 is factual in nature in which hearing is given to the objectors. It is a channel to place information before the Commissioner for his satisfaction to enable him to have a correct perception of the situation before making a declaration that the land is needed for a public purpose and consequently its acquisition is warrantable, but the satisfaction of the Commissioner should be deliberate and arrived at after due care and proper application of mind to the facts appearing on the record."

1. On the admitted facts of this case, we find that the Commissioner llowed himself to be misled by Respondent No. 4 on the basis of a report ubmitted by Collector him which in its turn was based on mis­ representation on the part of Respondent No. 4. The learned Judge in Chambers was impressed by the factum of publication of the award during the pendency of the writ petitions, however, no gain saying the fact that present lis commenced before the publication of the award and ultimately after the notification issued by the Commissioner under Section 17(4) of the said Act

2. Another fact apparent on the face of record is that the Land Acquisition Authorities moved in the matter in a mechanical manner and the only urgency, as apparent on record, was for pushing through the process of acquisition without complying with the duties imposed upon them by law. It is really a matter of concern that the Collector and the Commissioner faithfully following the former's report gave a declaration that the land is required for public purpose when no less than 345 Kanals in the revenue estate of Shevepura was owned by the Central Government. It is true that a note is normally made in the relevant notification that said land will be excluded but does it mean that this provision absolves the said functionaries of the duty of applying their mind and looking into the matter with open eyes. Our answer is in negative. Involvement of a few kanals of land scattered here and there and the omission of officials to note the same is understandable, but where the land not to be included comes to almost 10% of the land notified, then the only inference that can be drawn is that the officials did not even care to go through the records, what to speak of making an enquiry in the manner prescribed by law.

3. Mala fide or malice, of course, is not an abstract phenomena. There is no cavil with the proposition that the mala fides are to be specifically alleged and proved. However, there are cases where distinction has been sought to be drawn between malice in law and malice in fact. Whatever is done in violation of law cannot be said to be done in good faith and what is not done in good faith is mala fide, Reliance is placed on the case of Malik Ghulam Mustafa Khar and others vs. Pakistan and others (PLD 1988 Lahore 49).

4. In the present case, we find that right from the start the process was invoked and carried on maliciously. Respondent No. 4 did not even wait for initial process to be completed and in all probability being assured that the process will be carried through, issued invitations through attractive brochures to join hands to share the windfall of profits that was expected, i without any limits. The said functionaries did express concern but by mis­representation, the concerns were smothered and the process was pushed through. The factual position very fairly stated by the learned counsel for Respondent No. 4 leaves no manner of doubt that the entire process suffer from malice in fact as also malice in law. We also find that no enquiry was conducted within the meaning of Rule 10. of the Punjab Land Acquisition Rules 1983, as confirmed by the learned Additional Advocate-General, on our query during the course of arguments. The said Rule is couched in mandatory language and requires the Commissioner to hold an enquiry when a company asserts urgency for invoking the provisions of Section 17 of the said Act, No explanation has come forward on the record for the said lapse.

5. For all that what has been stated above, the impugned proceedings appear to be, to use the quotation in the case of Muhammad Akbar and 7 others vs. The Commissioner, Rawalpindi Division and 2 others (PLD 1976 Lahore 747), tantamount to robbing Peter to pay Paul, which as expressed by his lordship in the said report is Robinhood's Philosophy but is not part of the law. We may also refer here to the observations of Supreme Court in the case of Collector Customs, Excise & Sales Tax, Peshawar and three others vs. M/s. Flying Kraft Paper Mills (Put.) Ltd. Charsada (NLR 1999 Tax 89), which although given in a matter pertaining to taxation, yet are aptly applicable to the present case as well. It has been observed therein "the situation, thus, exhibiting lack of transparency in the process of decision-making, the power of judicial review, under Article 199 of the Constitution, does extend to see whether or not such had been arrived at by the public functionaries concerned in manner which did not contravene the fundamental rights or the Constitutional guarantees". Resultantly, we allow D these ICAs and setting aside the impugned order, accept the writ petitions of the appellants and declare the impugned notifications to be without lawful authority and as such void.

(A.A.) Appeals allowed.

PLJ 2000 Lahore 22 [Rawalpindi Bench Rawalpindi]

Present:ch. ljaz ahmad, J. SEDCO FOREX INTERNATIONAL-Petitioner

versus

MUHAMMAD NAWAZ and others-Respondents

C.Rs. Nos. 173 to 180 of 1999, heard on 26.7.1999. <!>

Civil Procedure Code, 1908 (V of 1908)-

—O. I, R. 10(5) & S. 115-Limitation Act, 1908 (K of 1908), S. 22-Proceedings against added party-Commencement of-Proceedings against added party would be deemed to commence only on service of summons on him--ProceedingB against newly added party would be deemed to commence against him when he was so made party as per terms of S. 22, Limitation Act 1908. [P. 26] A

(ii) Civil Procedure Code, 1908 (V of1908)--

—-S, US-Documents to be filed alongwith revision petition-Effect of non- filing of necessary documents—Petitioner was required to have filed all necessary documents with revision petition in terms of S. 115(2) C.P.C-- Petitioner did not filed document, and even amended plaint was not filed by petitioner alongwith revision petition-Petitioner did not attach agreement executed between him and one of respondents in absence of which High Court could not come to definite conclusion whether he was proper party or necessary party or was proforma defendant—No body should be entitled to get benefit of bis own negligence--In absence of documents relied upon by petitioner himself it would be very difficult to determine status of petitioner as agent-Principal, therefore, it would be difficult to determine liability and obligation of petitioner qua respondents-Documents relating to cause of action having not been attached with revision petition, parties inter-se liabilities as also their status as to who were proper necessary or proformaparty would be difficult to determine—Issues having already been framed and case having been fixed for evidence of parties, it would be in interest of parties to avoid multiplicity of litigation, therefore, Trial Court was directed to conclude trial within specified period, [Pp. 27 & 28] B, C

PLD 1982 SC 345; PLD 1985 SC 153; NLR 1981 Lah. 56; PLD 1992 SC (AJK) 6; PLD 1975 Lah. 425; PLD 1973 SC 507; 1986 CLC 2350 ref.

Saleem Zulfiqar Khan, Advocate for Petitioner.

Mr. Khuram Khan Panni, Advocate for Respondents.

Date of hearing: 26.7.1999.

judgment

I intend to decide Civil Revision No. 173 of 1999, C.R. No. 174/99, C.R. No. 175/99, C.R. No. 176/99, C.R. No. 177/99, C.R. No. 178/99, C.R. No. 179 of 1999 and C.R. No. 180/99 by one consolidated judgment having similar facts and law.

1. The brief facts out of which the present revision petitions arise are that Respondents Nos. 1 to 11 filed suits for the recovery of compensation and damages against Respondent No, 12 on 18.7.1993 before the Court of Civil Judge 1st Class, Islamabad. The Respondent No. 12 filed written statement in November, 1993. The Respondent No, 12 mentioned certain documents in para No. 2 of the written statement but the Respondent No. 12 did not attach any document with written statement. The Respondents Nos. 1 to 11 filed application for inspection of documents which was allowed by the trial Court vide order dated 29.9.1995. The Respondents Nos. 1 to 11 filed application under Order 1 Rule 10 C.P.C. for impleading the petitioner as respondent on 14.10.1996. The learned trial Court allowed the application vide order dated 1.12.1997. The petitioner received summons from the trial Court for appearance on 10.12.1998 and filed an application under Order 7 Rule 11 CPC for rejection of plaint against the petitioner on 15.12.1998 which was dismissed by.the trial Court vide order dated 3.5.1999, hence the present revision petitions.

2. The learned counsel of the petitioners contended that the Respondents Nos. 1 to 11 amended plaint stated that cause of action accrued to them firstly on 11.8.1991 and secondly on 20.3.1993. Respondent filed the application for impleading the present petitioner as respondent on 14.10.1996, therefore, the same is liable to be dismissed as time-barred as is envisaged by Article 36 of the Limitation Act. The aforesaid Article prescribed period of limitation to file the suit within two years. Admittedly the Respondents Nos. 1 to 11 did not file application for impleading the petitioner within two years. He further stated that the petitioner eemed to be as respondent on the date when the application of the Respondents Nos. 1 to 11 was accepted by the trial Court vide order dated 1.12.1997 as is envisaged by Article 22 of the Limitation Act. He further stated thatsummons were received by the petitioners on 12.10.1998, therefore, date of filing the application must be 12.10.1998 as is envisaged by Order 1, Rule 10(5) CPC. In support of his contention he relied upon (PLD 1982 S.C. 345) Hayat and others versus Amir. He summed up his arguments that the judgment of the trial Court is in violation of the law laid down by the Hon'ble Supreme Court of Pakistan in Hakim Boota and another versus Habib Ahmed and others (PLD 1985 S.C. 153).

3. The learned counsel for the Respondents Nos. 1 to 11 contended that applications of the petitioners have not been finally decided by the trial Court, therefore, revision petitions are not maintainable before this Court. He relied upon the last para of judgment which is to the following Act: "Moreover, question of limitation is question of law and facts so it is proper in the case in hand that the case be decided after proceeding the evidence of the parties. The petition stand dismissed."

On the basis of aforesaid findings of the trial Court the learned counsel for the Respondents Nos. 1 to 11 contended that the applications filed by the petitioners are still pending adjudication, therefore, revision petitions are not maintainable. He further stated that the Respondent No. 12 filed written statement and para No. 25-A of the written statement reads as under.

"The Respondent No. 12 has assumed no responsibility to the plaintiff under Articles 27, 31 and 33 of the agreement dated 31.10.1998."

1. He further stated the aforesaid agreement is executed between the petitioner and Respondent No. 12. The contents, of which reveals the relationships between the petitioner and Respondent No. 12 are of principal and agent. He further stated that the trial Court after considering all the case law cited by both the Courts below has given the findings against the petitioner on the well known principle the question of limitation is a mixed question of law and facts, therefore, revision petitions are not maintainable before this Court. He relied upon NLR 1981 Lahore page 56 N-A Sheryar versus Conferee Limitation. He further stated that the aforesaid suits are filed by the Respondents Nos. 1 to 11 consisting of 135 families. He further stated that as mentioned above Respondent No. 12 filed written statement and mentioned certain documents in para No. 2 but Respondent No. 12 did not attach any document alongwith the written statement. The Respondents Nos. 1 to 11 filed an application for inspection of documents which was allowed by the learned trial Court on 29.9.1995, therefore, question of limitation does not arise on the well known principle that nobody should be penalized by the act of the Court. The judgment cited by the learned counsel for the petitioner is distinguished on facts and law. He further stated that aforesaid agreement between the petitioner and Respondent No. 12 reveals that they assumed their liabilities jointly and severally to compensate the Respondents Nos. 1 to 11. He further stated that both the petitioner and Respondent No. 12 obtained insurance coverage, therefore, it is admittedly constructive liability of the petitioners and Respondent No. 12, therefore, the petitioner is necessary and proper party. In support of his contention he relied upon PLD 1992 S.C. AJK 6. He summed up his arguments that the issues have already been framed and the case is fixed for evidence of the parties.

2. The learned counsel for the petitioner in rebuttal stated that order of the trial Court clearly reveals that the application of the petitioner is dismissed, therefore, the contention of the respondent's counsel has no force. He relied upon PLD 1975 Lahore 425. The other contention of the learned counsel of respondents have also no force as the same relate to merits of thesuit which cannot be considered at this stage.

3. I have given my anxious consideration to the contentions of the learned counsel of the parties. The learned counsel of the respondents has raised a preliminary objection that the revision petition is not maintainableas the impugned order is interlocutory order. The preliminary objection raised by the learned counsel of the respondents has no force as the principle laid down by the HonT)le Supreme Court in M/s. National Security Insurance Company Ltd. 's case 1999 SCMR 718 and the relevant observation is as follows: --

P.L.D. 1973 S.C. 507 (Bashir Ahmed's case). 1986 C.L.C. 2350 (Muhammad Nasir's case).

"The expression case decided does not necessarily mean the decision of the entire suit. It may relate to decision of a interlocutory matter requiring a judicial mind."

The aforesaid proposition of law is also supported by the following judgments:-

P.L.D. 1973 S.C. §07 (Bashir Ahmed's case). 1986 CLC 2350 (Muhammad Nasir's case).

It is also established proposition of law that proceedings against added party deemed to commence only on service of summon on him as is envisaged by Order 1, Rule 10(5) C.P.C. It is also settled proposition of law that A proceedings against newly added party deemed to commence against him when he was so made a party as is envisaged by Section 22 of the Limitation Act. The Bon'ble Supreme Court has considered this proposition of law in Hayat'scase P.L.D. 1982 S.C. 167 and observed as under:

"As such we are of the view that the relevant date is the one on which the application was filed and not the one of which it was accepted and the order of the Court impleading a new person a party to the suit must be deemed to have effected from the date on which the application to implead the party was filed."

The Hon'ble Supreme Court has laid down principle that cases must be decided on merits instead of technicalities. I am fortified by the judgment of Hon'ble Supreme Court in Mst Sardar Begum's case 1993 SCMR 363 and the relevant observation is as follows:

"We may observe that the recent judgment rendered by this Court in the cases of Said Muhammad and the Pakistan Waterand Power Development Authority (Supra) that party should not be denied relief on account of technicalities under the Procedural law, as the same are framed for the purpose of regulating the legal proceedings, they are intended and designed to foster the cause of justice rather than to defeat it."

I am also fortified by the judgment of the Hon'ble Supreme Court in Muhammad Ismael's case N.L.R. 1980 Civil (S.C.) 44. The Hon'ble Supreme Court has also laid down principle that after addition of Article 2-A in the Constitution the cases must be decided on merits instead of technicalities. P.L.D. 1989 S.C. 532. In the present case admitted facts are as follows:-

18.7,1993. Respondents Nos. 1 to 11 filed a suit for the recovery of compensation and damages against Respondent No. 12.

November, 1993. Respondent No. 12 filed written statement without attaching documents with the written statement except mentioned certain documents in para 2 of the written statement.

Respondents Nos. 1 to 11 filed application for inspection of documents.

29.9.1995. Inspection was allowed to Respondents Nos. 1 to 11.

14.10.1996. Respondents Nos. 1 to 11 filed application to implead the petitioner as respondent.

1.12.1997. Application was accepted. 10.12.1998. Petitioner received summons.

15.12.1998. Petitioner filed application under Order 7, Rule 11 C.P.C. for rejection of the plaint against the petitioner.

3.5.1999, Application was dismissed.

It is pertinent to mention here that it is the duty and obligation of the petitioner to file all the documents with the present revision petition by virtue of Section 115(2) C.P.C. The petitioner did not file all the documents and even the amended plaint was not filed by the petitioner alongwith the revision petition. The petitioner filed C.M. No. 899-C of 1999 to place on record certified copy of the amended plaint which was accepted vide order dated 26.7.1999. The learned counsel of the respondents also produced written statement today in Court during his arguments on behalf of Defendant No. 2 (present petitioner). It is admitted fact that the petitioner was impleaded as party in the aforesaid suit by the trial Court vide order dated 1.12.1997 which was not challenged by the present petitioner before this Court. It is also admitted fact that the petitioner did not attach agreement executed between the petitioner and Respondent No. 12 before this Court. The order dated 1.12.1997 accepting the application of Respondents Nos. 1 to 11 also did not reveal the contents of Articles 27, 31 and 33 of the aforesaid agreement while accepting the application of Respondents Nos. 1 to 11. The petitioner relied upon para 27 of the amended plaint that cause of auction accrued to the Respondents Nos. 1 to 11 firstly on llth August, 1991 and finally on 20.3.1993. In the absence of the aforesaid agreement to come to a definite conclusion whether the petitioner is a proper party or necessary party, in case the petitioner is not necessary party and is only pro forma defendant then the aforesaid principles laid down by the Superior Courts are not attracted. It is also settled proposition of law that no body should be entitled to get benefit of his own negligence. The petitioner himself failed to attach all the document and the orders of the trial Court with the revision petitions on the basis of which as mentioned above it is difficult to come to just decision that the petitioner is a proforma defendant or necessary or proper party because without the perusal of aforesaid documents it is very difficult to determine the status of the petitioner whether the petitioner is an agent or principal, therefore, it is difficult to determine the liability and obligation of the petitioner qua Respondents Nos. 1 to 11. It appeal's that Respondent No. 12 has obtained licence from Government of Pakistan with certain conditions, subsequently petition executed agreement dated 31.10.1990 with Respondent No. 12 as a drilling contractor without recording evidence. It is very difficult to determine their inter se liabilities as well as who is proper, necessary or proformaparty. It is also admitted fact that issues have already been framed and the case is fixed for evidence of the parties. In this view of the matter it is in the interest of the parties to avoid multiplicity of litigation it was proper to direct the trial Court to conclude the trial within four months even at the cost of day to day proceedings till 26th November, 1999.

(A.A.) Order accordingly.

PLJ 2000 Lahore 28

Present: SHAIKH ABDUR RAZZAQ, J. MUHAMMAD ANWAR-Petitioner

versus

SARDAR KHAN and others-Respondents

C.R. No. 1632 of 1984, heard on 23.7.1999.

Adverse Possession-

—Entry in record of rights as "Ghair Dakheel Koran" not paying any lagan to anyone-Effect-Mere fact that defendant have been occupying land as "Ghair Dakheel Koran" and not paying any "lagan" to any one including original owner would not mean that they had acquired proprietary rights in respect of land in question-Entries in Record of Rights to effect that defendants/tenants had not been paying any "lagan" would not indicate that they had become owner on account of adverse possession-Mere non­payment of rent does not alter nature of tenancy-Tenant must show that be had done something more to deny landlord, title—Law assumes that tenancy of land once entered upon continue, until determined in one of the ways, provided for by statutory enactment-To claim adverse possession clear and unequivocal evidence of assertion of hostile title would be necessary-No such evidence having been produced by defendants their claim based on adverse possession was not warranted.

[Pp. 31 & 32] A

1968 SCMR 1040 and 1968 SCMR131 ref.

Mirza Hafeez-ur-Rehman, Advocate for Petitioner.

Ch. Muhammad Anwar Bhindar, Advocate for Respondents.

Date of hearing: 23.7.1999.

judgment

Briefly stated the facts are that plaintiffs/Respondents No. 1 to 5 filed a suit for possession of land measuring 35 Kanals 9 Marias comprising of Khasra Nos. 616, 617, 618, 619, 621 Khatooni Nos. 422 to 426, Khata No. 190 as shown in record of rights for the year 1968-69 and situated in Estate of Mauza Danga Tehsil Pasroor District Sialkot against the defendants/petitioner and defendants/Respondents Nos. 6 to 16 on the ground that the property in dispute belong to their father namely Lai Din and after his death had fallen to their share and as such they were shown the owners of the land under dispute. They further asserted that the predecessor-in-interest of the petitioner and defendants/Respondents Nos. 6 to 16 were cultivating the land in dispute as tenant at will and on account of relationship they were not paying any rent to plaintiffs/Respondents No. 1 to 5 as well as their predecessor-in-interest namely Lai Din.

1. The defendant/petitioner and defendants/Respondents Nos. 6 to 16 contested the suit and maintained that suit was time barred, that under the Act of 1913 Lai Din, predecessor-in-interest of plaintiffs/Respondents Nos. 1 to 5 was to be enrolled as a voter, therefore the land was mutated in his name as a Benamiownership, that land jointly purchased was privately partitioned and they were in possession of their share as owners. In the alternative they claimed, the protection of their title by adverse possession.

2. Contentions of the parties culminated into following issues:-

3. Whether the land in dispute is owned by the plaintiffs?

4. Whether the defendants are in possession of the land in dispute as tress passers?

5. Whether the suit is within time?

6. Whether this Court has jurisdiction?

4-A. Whether the father of the plaintiffs was a Benamidar?

4-B. Whether the defendants have become owners by adverse possession? and

4-C. Whether the ancestors of the defendants occupied the suit land as tenants-at will? If so, the effect thereof?

1. Relief.

2. In support of their stand one of the plaintiffs Respondents Nos. 1 to 5 Sardar Khan appeared as PW-1 and after bringing on record documents closed their evidence. Similarly one of the defendant Sultan Ahmad/petitioner are Respondents Nos. 6 to 16, appeared as DW-1 and dosed their evidence.

6, After going through the evidence produced by the parties the trial Court dismissed the suit vide judgment and decree dated 19.11.1975. The plaintiffs/Respondents Nos. 1 to § felt aggrieved against the said judgment and decree and filed an appeal which was accepted by the learned Additional District Judge, Sialkot vide judgment and decree dated 30.9.1984. Hence the civil revision.

1. Arguments have been heard and record perused.

2. Contention of the learned counsel for the defendant/petitioner is that according to revenue record produced by the plaintiffs/Respondents Nos. 1 to 5, it is evident that the petitioner and predecessor-in-interest of Respondents Nos, 6 to 16 have been occupying the suit land being in their capacity as 'Chair Dakheel Koran' and they have not been paying any rent produce to Lai Din predecessor-in-interesi of the plaintiffs/Respondents Nos. 1 to 5, that this fact alone proves that they ha A been in possession of the suit land as owner. He further argued that if this contention does not find favour with this Court then they have acquired the proprietary rights being in adverse possession of the suit a land as they have been coming in possession of the same for the last more that SO years. He thus submitted that, first appeEate Court has not passed the impugned judgment and decree in accordance with law and the same be set aside and that of trial Court be restored.

3. Conversely the impugned judgment and decree has been supported by the learned counsel for the plaintiffs/Respondents Nos. 6 to 16. He contended that according to the revenue record which is available in the form of documents Ex.P-1 to P-4, it is proved that suit land existed in the name of Lai Din predecessor-in-interest of plaintiffs/Respondents Nos. 6 to!6, that predecessor-in-interest of defendants/petitioners and Respondents Nos. 6 to 16 have been shown to be in possession as Ghair "Dakheel Koran Ba Sharah Bila Lagan", but this fact will not clothe them either with the rights of ownership or claim owner-ship on account of adverse possession. He contended that after the death of Lai Din the suit laud was mutated in the name of plaintiffs/Respondents Nos. 1 to 5 being legal heirs of Lai Din and the defendants/petitioner and Respondents Nos. 6 to 16 or their predecessor-in-interested never objected said mutation of inheritance. He further argued that defendants/petitioner and Respondents Nos. 6 to 16 had been occupying the land with their prior approval and as such their possession is permissive one which fact defeat their claim of ownership. He further asserted that mere non payment of rent or Bataion assertion of ownership could not change the nature of possession which was permissive in its inception into adverse possession and relied upon Fazal Ghani and others vs. Khitab Gul and others (1968 SCMR 1040(2), He further asserted that entry in record of rights (Jamahandis) "Ba Sharah Malikan Bawaja Kabza" by itself is not sufficient to constitute adverse possession. Such entry is not unequivocal assertion of a hostile title and therefore, one has to interpret this entry in each particular case in the light of facts and circumstances of that case. He further asserted that mere entry as "Chair Dakheel Koran Bila Lagan' does not mean that defendant/petitioner and Respondents Nos. 6 to 16 had become owners on account of adverse possession and placed reliance upon Lola and another vs. Mst. Jante (1968 SCMR 131). He thus submitted that Impugned judgment and decree has been passed in accordance with law and tibe fwMon petition being devoid of any force be dismissed.

4. Instant suit hm teea filed uy pMetxfFs/Respondents Nos. 1 to 5 claiming themselves to be owners of the suit land being successors in interest of Lai Din who was owner of the suit ^property. It is evident from record that suit land was purchased by Lai Din vide Mutation No. 626 dated 16.12.1929 Ex.P-1. On the death of Ld Din mutation of his inheritance No. 1360 dated 27.9.1966 Ex.P-2 was sanctioned in fevour of plaintiffs/Respondents No®, 1 to 5. The record further reveals that the suit land was mortgaged by the present plaintiffs/Respondents Nos. 1 to 5 vide Mutation No. 567 dated 18.5.1969 Ik.P-3. However this land was got redeemed by the plaintiffs/Respondents Nos, 1 to 5. It is also evident from Jamabandi of 1951-52 that Lai Dm has bees shown its owner whereas predecessor-in-interest of defendants/petitioner and Respondents Nos. 6 to 16 have been shown to be tenants over the same. Same is the position during the year 1960-61 as Jamabandi for the said year Ex.P-6 also discloses them to be tenants over the suit land without paying any Lagan. This position continued till 1968-69, as is evident from Jamabandi Ex.P-9. They have also been shown as such even in the khasra Gardawari pertaining to the land in question.

5. The stand of plaintiffs/Respondents Nos. 1 to 5 stands controverted by the defendants/petitioner and espondents Nos. 6 to 16 as they claimed themselves to be owner of the same on tbe ground that they have not been paying any Laganto the original owner. Lai Din and after his death to his heirs/plaintiffs/Respondents Nos. 1 to 5. The mere fact that efendants/petitioner and Respondents Nos. 6 to 16 have been occupying the land as "Ghair Dakheel Koran"and have not been paying any Lagan either to Lai Din or to his heirs i.e. Plaintiffs Nos. 1 to 5, does not mean that they have acquired proprietary rights, in respect of suit land. ntries in record of rights (Jamabandis) to the effect that tenants had not been paying any Lagan, does not mean that they have become owner on account of adverse possession. The mere non payment of rent does not alter the nature of the tenancy. The tenant must show that he bad done something more to deny the landlord's title, for, the law assumes that a tenancy of land once entered upon continues until determined in one of the ways provided for by statutory enactment. In such case, therefore, dear and unequivocal evidence of the assertion of a hostile title is necessary. Mere non payment of rent or a mere entry in the Jamabandishowing that rent was being paid at the rate of proprietor's share of the revenue and chesses, is not such dear evidence, or, the entry is equally capable of being explained on other grounds consistently with the subsistence of the relationship of landlord and tenant It is possible that no rent was being claimed, as predecessor-in-iuterest of defendant/ petitioner and Respondents Nos. 6 to 16, were real brothers of Lai Din. Thus the mere fact that no rent was being paid by the petitioner and Respondents Nos. 6 to 16, does not mean that they have become owner on account of adverse possession and reliance is placed on (1968 SCMR 131) (supra). The impugned judgment and decree of the appellate Court is unexceptionable. There is no force in this civi] revision and the same is hereby dismissed.

(A.A. J.S.) Revision dismissed.

PLJ 2000 Lahore 32

Present: MAULV1 ANWAR-UL-HAQ, J. Mst.KANIZ BEGUM-Petitioner

versus

Mst. SUGHRA BEGUM and others-Respondents

Writ Petition No. 5143 of 1983, heard on 26.7.1999. (i) Land Reforms Regulations, 1959 (M.L.R. 64)-

—Para 35~Constitution of Pakistan (1973), Art 199-Mutation of gift in favour of son-Possession of land in question in lien of gift was handed over to donee-Donor after 10 years of attestation of said mutation (donee having died meanwhile) applied that mutation of gift was violative of M.L.R. 64 and therefore, same be reviewed~Such application was dismissed by Collector but Additional Commissioner in revision allowed that mutation be reviewed-Board of Revenue, however, set aside order of Additional Commissioner and restored that of Collector whereby, application for review of mutation had been dismissed-Validity-No violation of M.L.R. 64 had in fact taken place in as much as while reporting said mutation donor had reported that he was transferring his entire land in village in question-Concerned official whose duly it was to check up record for purpose of entering mutation also reported that entire land was being gifted away and if few kanal,were later found to have been left out of such was not intentional violation on the part of donor but was omission by officer who entered mutation in question-Such omission could ever be deemed to constitute violation of MLR 64- Board of Revenue and Collect had correctly concluded that no violation of M.L.R. 64 stood proved. [P. 34] A

(ii) Land Reforms Regulation (MLR 64)--

—-Para 25-Constitution of Pakistan (1973), Art. 199-Power to declare any transaction as offending the provisions of M.L.R. 64--Power to declare any transaction to be violative of Land Reforms Regulation 1959 (M.L.R. 64) vested in Land Commission or Land Commissioner appointed there- under-Jurisdiction of Civil Court as also other Tribunal/Authorities wasexpressly excluded. [P. 34] B

1994 SCMR 1035 ref.

Mr. Hassan Ahmad Khan Kanwar, Advocate for Petitioners. Ms. Sadia Malik, Advocate for Respondent No. 1. Mr. M.A. Ghaffar-ul-Haq, Advocate for Respondents Nos. 15. Date of hearing: 26.7.1999.

judgment

One Sher Muhammad Baig s/o. Sikandar Baig was owner of land measuring 578 Kanals 5 Marias.On 21.2.1962 he got a report entered with Patwari that he has gifted away his entire land to his son Muhammad Afzal Baig and that he has delivered possession to him. Mutation No. 10 was accordingly entered. A note was made on the mutation that the donor has gifted away his entire land in the village to the donee and is left with no land. The mutation was accordingly attested and incorporated into the revenue record. Muhammad Afzal Baig died on 11.1.1971. His death was reported to the Patwari on 5.11.971 who entered Mutation No. 78. The said land was mutated in favour of his widow Mst. Sughran Begum (1/4), Mst. Hayat Bibi, mother i 1/3) and Sher Muhammad Baig, father (5/12). The mutation was attested on 11.1.1971.

1. On 13.4.1972 i.e.almost 10 years after the attestation of Mutation No. 10, said Sher Muhammad Baig filed an application for review of Mutation No. 10 on the ground that it was violative of the provisions of MLR 64. The learned Collector dismissed the said application on 14.10.1975 holding that no violation of MLR 64 has taken place. The said Sher Muhammad Baig filed a revision petition (under Section 164 of the West Pakistan Land Revenue Act, 1967). The Additional Commissioner (Consolidation), Multan allowed the said revision videorder dated 19.8.1977 and directed that the mutation be reviewed as according to him an area of 12 Kanals 10 Marias was left out of the said mutation. Mst. Sughran Begum, the widow of said Muhammad Afzal Baig, the donee filed a revision which was heard by a learned Member (Revenue), Board of Revenue, Punjab, Lahore who allowed the same on 10.9.1983 and set aside the order of the Additional Commissioner.

2. Mr. Hassan Ahmad Khan Kanwar, Advocate argues that the provisions of MLR 64 as well as MLR 115 have an overriding effect and are to be enforced by all the Authorities.

3. I have gone through the record available on the file of this writ petition. I find that in the first instance there is in fact no violation of the MLR 64. As stated above, while reporting Mutation No. 10 Sher Muhammad Baig donor stated that he is transferring his entire land in the village. The concerned official, whose duty it was to check up the record for the purpose of entering the mutation also reported that the entire land is being gifted away. If a few Kanals were later found to have been left out it was not an intentional violation on the part of the donor but was an omission by the officer who entered the mutation. Such omissions can never be said to constitute violation of MLR 64. The learned Collector as well as the learned Member (Revenue), Board of Revenue very correctly concluded that no violation of MLR 64 stands proved. On the other hand, it was the duty of the jsaid Authorities to correct the mutation and also enter the remaining few Kanals of land that were not mentioned in the mutation in the first instance.

4. I find the above noted arguments of the learned counsel also to be without force. The matter as to who can take cognizance of violation of MLR 64 carne up before the Supreme Court in the case of Mst. Asiha Bibi vs. Nazir Ahmad and 10 offers (1994 SCMR 1035). The following observations of tiiis Court while deciding RSA No. 16/81 and Cross Objection No. 6114- C/81 were upheld:- , "the power to declare any transaction as offending the provisions of (Land Reforms Regulation, 1959 vested in the Land Commission or I the Land Commissioner appointed thereunder and the jurisdiction •' I of the Civil Court as well as the other Tribunals/Authorities was ] expressly excluded."

It was further observed by the Supreme Court:-

"There being no mistake apparent on the face of record, the Revenue Officers in the exercise of their review could not set aside the earlier order of attestation of mutation thereby annulling the solemn transaction of sale entered into between the vendor and the vendees in respect of the valuable landed property, moreso, on the grounds regarding which the jurisdiction expressly vested in the Land Commission or their subordinate officers are not in any other forum including the Civil Court. Since the hierarchy of Revenue Officers act in different capacities under different laws, it appears that Revenue Officer also being vested with the powers of Land Commissioner reviewed the mutation on grounds available under Martial Law Regulations, and the whole exercise was conducted under this mistaken belief. There is no denying the fact, that when an officer acts under different statute he has to strictly follow the procedure embodied therein and cannot exercise his powers availing the provisions of other statute. Apparently, the Revenue Officer while exercising his powers of review under the Land Revenue Act could not simultaneously act under Martial Law Regulation concerned."

1. For all that has been stated above, the present writ petition is dismissed with costs.

i A.A. I Petition dismissed

PLJ 2000 Lahore 35

Present: ch. ijaz ahmad, J.

MUHAMMAD ARSHAD KHAN-Petitioner

versus

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and other-Respondents

W.P. No. 4349 of 1999, heard on 8.7.1999.

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

----3. 2-A-Civil Procedure Code (V of 1908), O. 1 R. 8-Constitution of Pakistan (1973), Ails. 2-A, 25 & 199~Petitioner seeking increase in salaries of employees of National Insurance Corporation and all other Government Institutions 100 per cent to 140 per cent claiming that Government having increased salaries of the class of employees, action of Government was violative of Art. 25 of the Constitution-Maintainability of Constitutional petition—Constitution being based on trichtory, each organ of state is independent, of each other, thus, having no authority to usurp powers of other organ of state—Government has prerogative to formulate policies which were determined generally with reference to domestic needs, their priorities and multitudes of other factors of which Government was sole arbiter in exercise of its Executive Authority-Decision to increase salaries of employees of particular department would fall in realm of Policy making-Such policy decisions were binding on sub- ordinate authorities as a matter of duly-High Court thus, has no urisdiction to take role of legislature or Policy maker-Petitioner had filed writ petition in representative capacity without fulfilling requirement of 0.1, R. 8 of C.P.C., therefore, Constitutional petition was liable to be dismissed on such count also-Writ petition was also liable to be dismissed as the same related to terms and conditions of service, therefore, Service Tribunal in terms of S. 2-A, Service Tribunals, Act 1973 has exclusive jurisdiction in such matter-Constitutional petition was, thus, not maintainable in circumstances. [Pp. 37 & 38] A, B

1991 SCMR 1041; 1998 SCMR 91; 1998 SCMR 2280; PLD 1996 Lah. 499;PLJ 1998 Lah. 985; PLD 1993 SC 473; PLD 1975 SC 667; 1978 SCMR 327; PLD 1975 SC 506; PLD 1973 Lah. 500; 1999 SCMR 894; 1998 SCMR 1603 and PLD 1980 SC 153 ref.

Mr. Sarfraz All Khan, Advocate for Petitioner. Mr. Sher Zaman, Dy. A.G. for Pakistan. Mr. Ghulam Haider M-Ghazali, Addl. A.G. Date of hearing: 8.7.1999.

order

The petitioner has filed this writ petition with the following prayer:-

(i) the said Act of the Government increasing the salary of one class of the persons but denying the same to the other classes of the persons equally placed may kindly be declared as unjust, unfair, unwarranted, un-Islamic, discriminatory and violative of

Constitution 1973.

(ii) and the respondents may kindly be ordered to increase the salary of the employees N.I.C and of all other Government institutions 100% to 140%.

(iii) Any other relief and or writ deemed fit in the eye of the Court may also be issued or passed in the vindication of the grievance referred to above.

The learned counsel of the petitioner contended that similar organizations Le. National Bank of Pakistan like the petitioner's Corporation have already increased salaries of their employees but the respondents did not increase the salary of the employees of the petitioner's Organization/Corporation, therefore, action of the Respondents is in violation of Article 25 of the Constitution, He relied upon J.A Sherwani's case 1991 SCMR 1041. He further states that this Court has ample power under Article 199 of the Constitution to give directions to the respondents to enact the rules for the purpose of increasing salaries of the employees of the petitioner's organization/Corporation. He relied upon 1998 SCMR 91 Federation of Pakistanus.' Sh Abdul Aziz 1898 SCMR 2280 Khalid Mehmood Wattoo's case P.L.D. 1996 Lahore 499 Imtiaz Hussain Qazami's case PLJ 1998 Lahore 985 Haftz Mazhar Hussain'scase.

1. The learned Deputy Attorney General contended that the petitioner is employee of Insurance Corporation which is controlled by the Federal Government, therefore, writ petition is not maintainable after the addition of Section 2-A of the Service Tribunals Act 1973. He also relied upon the aforementioned case of Khalid Mehmood Wattoo's case.

2. The learned Addl. Advocate General contended that Article 25 of the Constitution is not attracted as the petitioner's Organization has its own independent entity whereas the other Organizations i,e. banks having their own independent status. He further stated that petitioner has filed writ petitionprobono publico, therefore, writ petition is not maintainable.

3. The learned counsel of the petitioner in rebuttal stated that the respondents have not passed any final order against the petitioner, therefore, petitioner has no alternate remedy to agitate the matter before the Service Tribunal. He further stated that petitioner filed this writ petition to give directions to the respondents to increase the salaries of the employees of the petitioner's Corporation by enacting rules similar to the other Organizations like banks etc.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties. It is settled proposition of law that it is for the legislature to legislate and amend the laws and it is for the Courts to interpret such laws as to make them practicable. Our Constitution is based on trichotomy as the principle laid down by the Hon'ble Supreme Court in Zia-ur-Rehman's case P.L.D. 1993 S.C. 473. The Hon'ble Supreme Court has laid down ground norms that the superior Courts have only power to interpret the law and have no power whatsoever to enact the laws. Each of the organ of the State is independent of each other and has no authority whatsoever to usurp power of the other organ of the state. It is the pre­ rogative of the Government to formulate the policies. These policies are determined generally with reference to the domestic needs their properties and multitudes of other factors of which the Government is the sole arbiter in exercise of its Executive Authority. The decision taken, falls within the realm of Policy Making. These policy decisions are binding on the subordinate authorities as a matter of duty and the High Court has no jurisdiction as mentioned above to take the rule of Legislature or policymaker. I am fortified by the following judgments of the Hon'ble SupremeCourt:-

P.L.D. 1975 S.C. 667 (Government of Pakistan vs. Zameer Ahmad Khan)

1978 SCMR 327 (Zameer Ahmad Khan vs. Government of Pakistan)

It is also settled proposition of law that reasonable classification is permissible as the principle laid down by the Hon'ble Supreme Court in Brig. F.B. Mi's case P.L.D. 1975 S.C. 506. This principle was also affirmed by the Hon'ble Supreme Court in J.A, Sherwani's case 1991 SCMR 1041. The petitioner has filed writ petition in representative capacity without fulfilling the requirement of Order 1 Rule 8 of C.P.C., therefore, writ petition is liable to be dismissed as the principle laid down by this Court in P.L.D. 1973 Lahore 500. The judgment cited by the learned counsel of the petitioner is distinguished on facts and law as the learned counsel failed to cite even a single citation in which this Court has given direction to enact the Rules or I frame policies or increase the salaries. The writ petition is also liable to be I dismissed as the matter relates to the terms and conditions of the petitioner after the addition of Section 2-A of the Service Tribunals Act, 1973 as the principle laid down by the Hon'ble Supreme Court in the following cases:-

1999 SCMR 894

1998 SCMR 1603

The writ petition is also not maintainable as the matter relates to the terms and conditions of the petitioner as the principle laid down by the Hon'ble Supreme Court in Iqan Ahmad Khurram's case P.L.D. 1980 S.C. 153.

In view of what has been discussed above this writ petition has no

merit and the same is dismissed.

PLJ 2000 Lahore 38 [Multan Bench Multan]

Present: dr. munir ahmad mughal, J. MALKA BEGUM-Petitioner

SITARA BEGUM-Respondent

C.R. No, 684-D of 1988, decided on 5.5.1999.

Specific Eelief Act, 1877 (I of 1877)—

-S. 12-Limitation Act (IX of 1908), S. 28-CivU Procedure Code (V of 1908), S. 115--Suitfor specific performance on basis of agreement to sell-P.T.O. was admittedly issued to predecessor of defendant on 3.7.1963 while P.T.D. was issued on 28.1.1970-Possession of plaintiff was since 1947-Suitwas filed by plaintiff on 30,1.1982-Possession of plaintiff was, thus, of more than 12 years and plaintiff considered herself in adverse possession since 3.7.1963—Agreement to sell was although inadmissible in evidence yet the same could be lawfully referred to ascertain nature of possession sought to be disturbed-Supreme Courts judgment in MaqboolAhmad's case (1991 SCMR 2083), whereby S. 28, of Limitation Act 1908, was declared to be repugnant to injunctions of Islam in so far as the same provides for extinguishment of right in property at determination of period prescribed for instituting suit for possession of property in question-Decision of Supreme Court had to take effect from 31st of August 1991, therefore, on that date S. 28, Limitation Act 1908 would cease to have effect-Plaintiff was, thus, left with no umbrella of adverse affect—Judgment of Appellate Court dismissing plaintiff's suit though for different reason could not revised in circumstances. [P. 42] A, B

AIR 1923 Lah. 495; 232 PLR 1911 ref. Ch. Ali Bahadar Khan, Advocate for Petitioner. Khan Ameen-ud-Din Khan, Advocate for Respondent. Date of hearing: 8.4.1999.

judgment

This is a revision petition against the judgment and decree dated 29.6.1988 passed by the learned Additional District Judge, Multan where the judgment and decree dated 13.2.1988 passed by the learned Civil Judge has been set aside.

1. The facts necessary for disposal of the present revision petition are that Qamar-ud-Din the predecessor-in-interest filed NCH Form with Settlement Authorities for the transfer in his favour of the lower portion of House No. 135 Ward No. 3, Shujabad being an independent portion since 1947. Abdul Sattar and Abdul Ghaffar the predecessor-in-interest of the respondents were residing on the first storey of the said house. They filed CH Form for the transfer of the said property, Abdul Sattar and Abdul Ghaffar fraudulently and with the connivance of the Settlement Staff got transferred the whole property in their favour Qamar-ud-Din came to know of to and was to file an appeal but Abdul Sattar came forward and offered that he should not file appeal, and that he shall give them the portion in their possession, on the price of the Settlement Department. Subsequently an agreement to sell dated 3.7.1963 was also executed to the effect that held (1/2) portion of the property in dispute will be transferred to Qarnar-ud-Din after obtaining the PTD from the Settlement Department, and he also admitted in the said document that Qamar-ud-Din is in possession of the property in dispute when he received Rs. 750/- as transfer price of the portion in possession of Qamar-ud-Din. The agreement to sell was written by a petition writer, and Abdul Sattar predecessor-in-interest of the respondents signed the same and received the consideration. The PTD was issued to Abdul Sattar and Abdul Ghaffar in 1970, but they did not comply with the agreement to sell, and the petitioners remained in possession of the said portion adverse to the interest of the predecessor of the respondents filed a suit for declaration that the plaintiff is owner in possession on the basis of adverse possession and also prayed for permanent injunction restraining the defendant from interfering in their possession. The suit was resisted by the respondents. On divergent pleadings of the parties the following issues were framed: -

(i) Whether the suit is not maintainable in its present form?

(ii) Whether this Court lacks jurisdiction to entertain the present suit?

(iii) Whether the suit is bad for non-joinder of the necessary parties?

(iv) Whether the plaintiffs have no cause of action?

(v) Whether the plaintiff is owner in possession of the suit property?

(vi) Whether the plaintiff is entitled to permanent injunction as consequential relief?

(vii) Relief.

1. Parties led their evidence and after hearing the arguments the learned Civil Judge decreed the suit on 13.2.1988. That the respondents preferred an appeal which was accepted by the learned Additional District Judge on 29.6.1988.

2. The learned counsel for the revision petitioner has contended that the agreement dated 3.7.1963 could not be dubbed as illegal merely because the PTD was issued in the year 1970, and that the sale could not be completed because of the respondent's failure to obtain PTD in time and that the agreement dated 7.3.1963 was quite valid as the respondents had already obtained PTO in the year 1959.

3. On the other hand the learned counsel for the respondents has submitted that the agreement dated 3.7.1963 was invalid and illegal.

4. I have given due consideration to the valuable arguments on both sides.

5. The reasoning of the learned Civil Judge on issue Nos. 5 and 6 were:-

"PTD (Exh:D-l) was issued to the defendants on 28.1.1970 and even then there being no action taken by them against the plaintiff indicates the intention that the defendants or the predecessor of the defendants did not consider themselves the owners of the lower portion while PTO had been issued earlier on 7.12.1959, However, DW-2 has stated that Adul Sattar died 3/4 years back. The of this witness was recorded on 22.9.1986 which shows that he was alive prior to the institution of suit and he did not proceed against the plaintiff or their predecessors for taking possession and why he remained silent during his life time hence agreement dated 3.7.1963 is found valid. Now the question is as to whether on the basis of this agreement the plaintiff can be declared owner. It is an accepted legal position that merely on the basis of an agreement no title is transferred. PTD was issued on 28.1.1970 while the suit was instituted on 30.1.1982 i.e. after 12 years. The agreement is dated 3.7.1963 (Ex.P.l) thus by all means the possession of the pliantiff over the disputed property is since more than 12 years. According to DW-1 the plaintiffs had taken the plea of possession over 12 years in their reply to the application of ejectment in which the plaintiffs were respondents and they have taken the defence plea that on account of adverse possession they have become owners and that in AIR 1923 Lahore 495 it has been observed that even if agreement to sell is un-registered, the defect of documents is removed by lapse of 12 years adverse possession."

1. The reasoning of the learned Additional District Judge, Multan for setting aside finding of trial Court on Issues Nos. 5 and 6 were as under:-

"It was argued by the learned counsel for the respondents that since the respondents had become the owners by adverse possession for a period of more than 12 years, therefore, not only the suit for declaration as to title was maintainable, but also they had otherwise acquired the title to the property in suit by way of adverse possession. But I must say that they did not claim their title on this scope in the relief claimed in the suit, although in the body of the plaint they had mentioned that they had become its owner by adverse possession. The learned trial Court did not frame any issue on the above subject and since during the long period taken in completion of proceedings in trial in the above suit, the respondents did not press the Court for framing the issue on the above controversial point, I see no reason now to order the afresh trial on the above point. The parties have already led their evidence in support or against their respective claim and plea in the suit, and there is nothing on the side of respondents to show that they had been in possession of property in suit openly and in hostility to the title of the appellants. The learned trial Court was, therefore, not justified in holding that they had perfected their title to the property in suit by adverse possession. The observation of the learned trial Court on Issue No. 5 also was to the affect that the agreement in dispute did not creat any title to the property in suit in favour of the respondents. Therefore, the learned trial Court ought not have decreed the suit even at the point of possession of the respondent over the property in suit. The learned trial Court did not observe that the possession of the respondents was ever hostile or adverse and the simple possession over the property in suit in no way perfects the title of any person may be found in its possession for a period of more than 12 years. The evidence led through the PWs 1 to 4 also lacks of the facts constituting the adverse possession."

1. The facts admitted on the record are that P.T.D. was issued on 7.12.1959. Agreement to sell is dated 3.7.1963, P.T.D was issued on 28.1.1970. Possession of the petitioner is since 1947. Suit was filed on 30.1.1982. Thus the possession of the petitioner was of more than 12 years and they considered them owners in adverse possession since 3.7.1963. No doubt the agreement to sell in this case was inadmissible to prove title, it could yet be lawfully referred to ascertain the nature of possession soug ht to be disturbed. The dictum laid down in the case of Qadir Bakhsh and other v. Manga Mai and others (AIR 1923 Lahore 495) observed as under:-

"We think that in this case the deed of sale may be referred to for the sole purpose of determining the nature of the possession taken by the respondents in 1888. On doing so we find that this document supports the finding arrived at by the learned District Judge to the effect that the mortgagees' possession in 1888 was not as mortgagees but under colour of a deed of sale. This deed of sale, not having been registered, created no title in favour of the respondents, thus leaving them in the position of trespassers and as their possession has extended for over a period of twelve years, they have now become full owners of the land and their possession cannot be disturbed. It was held in 232 P.L.R. 1911, that a mortgagee can set up adverse possession if his possession at its inception was that of trespasser."

1. This dictum is of no help to the petitioner in view of the judgment passed by the Hon'ble Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Maqbool Ahmad v. Hakoomat-e-Pakistan (1991 SCMR 2083) whereby it was held that Section 28 of the Limitation Act, 1908 (Act No. DC of 1908) is repugnant to the Injunctions of Islam in so far as it provides for extinguishment of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said property. It is further held that the said decision of the Hon'ble Shariat Appellate Bench shall take effect from 31st of August, 1991 and on the said date Section 28 aforesaid shall also cease to have effect.

2. The result is that the petitioner is left with no umbrella of adverse possession. In this view of the matter, though for a different reason, the judgment of the learned Additional District Judge cannot be revised. The civil revision is dismissed.

(A.A.) Revision dismissed

PLJ 2000 Lahore 43

Present: MAULVI ANWAR-UL-HAQ, J. FEROZE DIN-Petitioner

versus MEMBER BOARD OF REVENUE etc.-Respondents

W.P. No. 605 of 1986, heard on 13.9.1999. Displaced Persons Land Settlement Act, 1958 (XLVII of 1958)-

—-S. 14-B--Constitution of Pakistan (1973), Art. 199-Proprietary rights in land vesting in local Muslim owner-Settlement of occupancy rights- Mode of payment of compensation to owners-Where proprietary rights in land vested in local Muslim owners and occupancy rights therein has been settled under the provisions of Displaced Persons (Land Settlement) Act 1958, then compensation would be payable to landlords by Chief Settlement Commissioner and that to from compensation pool—Private respondents to whom rights of occupancy were conferred were under no obligation, whatsoever, to pay any compensation-Petitioner's grievance that Chief Settlement Commissioner had not paid compensation to petitioner who admittedly was proprietor of land in question, was of no consequence, in so much as, constitution petition having arisen out of matter of ejectment, no relief could be provided to petitioner—Petitioner, however, if so advised, should approach Chief Settlement Commissioner for award of compensation in accordance with law—Impugned order does not suffer from any defect calling for interference by High Court in exercise of its constitutional jurisdictional. [P. 44] A, B

NLR 1984 SCJ 179 ref.

Mr. Hassan Ahmad Khan Kanwar, Advocate for Petitioner. Nemo for Respondents. Date of hearing: 13.9.1999.

judgment

This writ petition calls in question the order dated 21.12.1985 of Respondent No. 1 whereby he dismissed the revision petition filed by the petitioner against the order dated 11.6.1985 of Respondent No. 2 who allowed the appeal of the private respondents against the order dated 28.8.1983 of A.C./Collector, Pasrur Sub-Division and dismissed the ejectment petition filed by the petitioner against the private respondents.

1. The admitted facts of the case are that the suit land was owned by the petitioner/his predecessors-in-interest. The occupancy rights vested in non-Muslim evacuees. These were treated as evacuee property and upon the constitution of the compensation pool under the Displaced Persons (Land Settlement) Act, 1958 formed part of the said pool. Ultimately these rights were conferred upon the private respondents in lieu of their verified claims.

The Collector, Pasrur Sub Division decreed the suit of the petitioner solely on the ground that the private respondents had not deposited the compensation in accordance with the provisions of Section 114 of the Punjab Tenancy Act, 1887. On appeal Respondent No. 2 corrected the manifest legal error as the said Section 114 does not apply to the evacuee properties on its own terms. These provisions were made applicable to evacuee properties by Section 14-B added to the Displaced Persons (Land Settlement) Act, 1958 by virtue of the Amending Act XXXVI of 1974. According to the said provisions of law where the proprietary rights in the land vested in the local Muslim owners and the occupancy rights therein have been settled under the provisions of the said Act of 1958, then the compensation will be payable to the landlords by the Chief Settlement Commissioner and that too from the compensation pool. The private respondents, therefore, were under no obligation whatsoever to pay any compensation. I may add here that in the limine hearing the learned counsel for the petitioner had relied upon the case of Ashraf and others vs. Addl. Deputy Commissioner (C)/Addl. Settlement Commissioner (L) and others (NLR 1984 SCJ 179). The said report is a leave granting order and a perusal of the same makes it a case completely distinct from the case in hand in view of the admitted facts of the case narrated above. No other point has been urged.

1. Learned counsel for the petitioner makes a grievance that even the Chief Settlement Commissioner had not paid any compensation to the petitioner who admittedly was the proprietor of the land. I am afraid in this petition which has arisen out of a matter of ejectment no relief can be provided to the petitioner. However, if so advised, the petitioner should approach the Chief Settlement Commissioner/competent authority for award of compensation in accordance with law.

2. The impugned order does not suffer from any defect calling for interference by this Court in exercise of its Constitutional jurisdiction. The writ petition is accordingly dismissed with the above observations.

(A.A.) Petition dismissed.

PLJ 2000 Lahore 44

Present: SAYED ZAHID HUSSAIN, J. SULEMAN KHAN-Petitioner

versus

SH. ABDUL RAZZAQUE etc.~Respondents

W.P. No. 623 of 1984, heard on 28.7.1999.

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

—-O.XXIII, R. 3-Constitution of Pakistan (1973), Art. 199--Parties having selected course of action and having led the course to adopt certain procedure could not later on turn and challenge authority orjurisdiction of Tribunal-Petitioner had chosen to participate in proceedings before respondent Court without any objection, thus, taking chance for favourable order-Petitioner would be estopped, thereafter, to raise objection to jurisdiction, or authority of said Court when its decision had gone against him-In matters arising under Art. 199 of the Constitution, conduct of person invoking jurisdiction of High Court was of vital significance and importance-High Court in its discretionary jurisdiction can decline relief, even though, order in question, was without juri sdiction-Concurrent findings of Courts, below could not be interfered with the aid of piece of evidence which was disputed by the otherwise. [Pp. 46 & 47] A & B

PLD 1969 Lah. 365; PLD 1981 SC 571; PLD 1986 SC 542; 1985 CLC 451 ref. Malik Yousuf Farooq, Advocate for Petitioner. Mr. S.M. Rashid, Advocate for Respondent No. 3. Date of hearing: 28.7.1994.

judgment

Order dated 12.11.1983 of the learned District Judge, Faisalabad, whereby, he dismissed the revision, filed by the petitioner, against order dated 13.1.1983 of the Chairman, Union Council No. 212, Faisalabad, has been challenged through this petition under Article 199 of the Constitution.

1. An application alleging non payment of Rs. 1400/- was sent to Chairman, Union Council No. 212, Chak No. 38, Faisalabad at the instance of Respondent No. 3 by his brother, who was serving in Pakistan Army. The petitioner entered appearance before him. uring the course of proceedings t was agreed by the parties that the matter will be decided on oath of any of the persons nominated with the consent of the parties, namely, Ali Nawaz, Imam Din, Wajid Ah" Khan and Fazal Elahi. This oath was to be taken in the mfesque on Holy Qur'an in the presence of the parties. It was agreed that if the petitioner was unable to comply with the same he would pay Rs. 1,420/- to the present Respondent No. 3. This undertaking was not honoured by the petitioner, as a result whereof, he was found liable to pay Rs. 1,420/- to Respondent No. 3. A revision was filed by the petitioner before the learned District Judge, Faisalabad, which was dismissed vide order dated 12.11.1983. Hence this petition.

2. It is contended by the learned counsel for the petitioner that there was no proper constitution of the Conciliation Court in accordance with law; that the order of the Conciliation Court is beyond its pecuniary limits; and that Respondent No. 3 did not appear personally before the Conciliation Court. It is further contended that a letter written by Wajid Ali to the Chairman, Union Council has not been taken into consideration while deciding the matter. It is thus contended by the learned counsel that the order of the Conciliation Court is without jurisdiction and lawful authority.

3. As against this, the learned counsel for Respondent No. 3 contends that none of the points urged by the learned counsel for the petitioner has any merit for the simple reason that the petitioner submittedto the jurisdiction of Respondent No. 2 participated in the proceedings without any objection and when the order went against him he turned round and challenged the same. It is contended by him that as the petitioner had agreed for decision on oath which he failed to honour, he is not entitled to any relief in writ jurisdiction.

4. Undisputedly, the petitioner appeared before Respondent No. 2, took part in the proceedings and suggested a course of action to be followed by him for decision of the case. This was a voluntary act on the part of the petitioner, from which, he cannot resile. No objection was raised by him as to the competency of Respondent No. 2, be it regarding the pecuniary limit of his jurisdiction or its proper constitution. In Abdul Wahab and others v. Habib Mi and others (PLD 1969 Lahore 365), it was held that a party asking the Court to adopt a particular mode for decision of a case, cannot be allowed to resile later on. In Muhammad Sharif and another v. District Judge,Sahiwal and others (PLD 1981 SC 571), it was held that having selected a course of action and having led the Court to adopt a certain procedure, the party on account of his conduct could not seek relief from the High Court in its Constitutional jurisdiction. Similar view was taken in Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 SC 542). It was held that a party who suggests a course of procedure to be followed by a tribunal for decision in the matter, cannot later on turn round and challenge the authority or jurisdiction of the tribunal in the matter. In Muhammad Hussain Jaffari v. Mst. Maryam Bibi and 2 others (1985 CLC 451) the proceedings of Conciliation Court were found suffering from want of jurisdiction. However, the order impugned was not interfered with in exercise of discretionary jurisdiction of the Court under Article 199 of the Constitution.

5. In the present case, the petitioner had chosen to participate in the proceedings before Respondent No. 2 without any objection. He took a chance for a favourable order. He is estopped to raise any such question now, when it has gone against him. In matters arising under Art. 199 of the Constitution it is the settled law that the conduct of a person invoking the jurisdiction of this Court is of a vital significance and importance. It is not that all orders challenged before this Court in writ jurisdiction ought to be interfered with. The Court can decline the relief, even though, order may be termed as one without jurisdiction as held in Muhammad Hussain Jaffari'scase (supra).

6. The contention of the learned counsel that letter written by Wajid Ali Khan has not been adverted to by Respondent No. 1, has no substance. The said letter has been duly taken note of by the learned District Judge. The authenticity of such a letter was found not beyond doubt. Concurrent findings of the two Courts cannot be interfered, with the aid of such a piece of evidence which is disputed by the other side.

In view of the above, this petition is dismissed with no order as to

costs, (A. A..) Petition dismissed.

PLJ 2000 Lahore 47

Present: tanvir ahmad khan, J.

PUNJAB PHARMACY EDUCATION FOUNDATION through its CHAIRMAN-Petitioner

versus

SECRETARY HEALTH, GOVERNMENT OF PAKISTAN, ISLAMABAD and 2 others-Respondents

W.P. No. 22602 of 1996 heard on 31.5.1999. Educational Institutions--

----Constitution of Pakistan (1973), Art. 199-Affiliation with Pharmacy Council of Pakistan—Rejection of petitioner's affiliation application— Validity-Constitutional petition merits dismissal on ground that petitioner had not approached High Court with clean hands~In prospectus as also in press clippings appended with constitutional petition, impression had been conveyed that Punjab Pharmacy Educational Foundation had already got affiliation-Petitioner in his constitutional petition has also admitted such aspect-To cover the same it has been stated that the same was published inadvertently Such-­ factual misgiving had certainly misled general public-Criminal case in that regard has also been registered against petitioner for deceiving public and preparing false ocuments-Pakistan Pharmacy Council has to hold inquiry that institution affiliation of which was sought had all the requirements for the same and thereafter reference would be made by the Council with its recommendation to Federal Government-Inquiry committee had reported that petitioner was neither having laboratory nor other requirements envisaged under relevant law-Ground of malafide against respondent had simply been levelled in a bald manner- Petitioner, on account of exaggerated claim created impression of affiliation of his institution among people at large and succeeded in charging colossal amount of fee-Such calculated planned venture to deceive general public by giving impression of affiliation in sacred field of education is highly deprecated—Petitioner, thus, failed to make out case on merits-Discretionary relief was denied to petitioner on account of his questioned conduct. [Pp. 48 to 52] A, B, C & D

1996 SCMR 341; 1996 CLC 64; AIR 1993 SC 2178; AIR 1974 SC 1389; (1975) 1 SCR 173; PLD 1974 SC 151; PLD 1975 SC 236; 1998 SCMR 2268 ref.

Mian Sarfrazui Hassan, Advocate for Petitioner.

Sh. Anwar-ul-Haq, D.A.G. and Fauzi Zafar, A.A.G. for Respondents.

Date of hearing: 31.5.1999.

judgment

Petitioner through this Constitutional petition has taken exception to the order dated 21.11.1996 issued by Respondent No. 3 Secretary Pharmacy Council of Pakistan rejecting his application for affiliation with the Council.

It is the case of the petitioner that Sandal Educational Foundation of Kamalia was duly registered under the Societies Act 1860 with the Assistant Registrar Joint Stock Companies Lahore. This Society, according to the learned counsel, has opened many educational institutions in different cities through out the Province. Sandal Education Foundation has also established an institution under the name and style of Punjab Pharmacy Educational Foundation for the purpose of protection of education in the field of Pharmacy. The petitioner accordingly submitted an application to the President Pharmacy Council of Pakistan Islamabad on 19.9.1993 for its affiliation.

Grievance is made through this Constitutional petition that the respondent in an arbitrary manner has rejected the affiliation application through impugned order dated 21.11.1996. It is also argued that whole exercise of rejection of petitioner's application has been conducted in a mala fide manner without application of independent mind and without advancing any reason at all. A further argument has been advanced that under Section 19 of the Pharmacy Act 1967, it is the Federal Government which is to grant the approval, while in this case, application has been rejected by the Pharmacy Council of Pakistan without having any legal sanction at all.

Learned Deputy Attorney General has taken a preliminary objection that the petitioner has not approached this Court with clean hands as he through advertisements tried to play fraud upon the public at large as an impression was conveyed that the petitioner's Foundation had already got affiliation under the Pharmacy Act 1967. He has further stated that a High powered committee visited the petitioner's place and was disappointed as no facility whatsoever was available at the place. The tall claims made by the petitioner in his application all proved bogus. Reference has also been made to the registration of criminal case against the petitioner.

I have considered the contentions and have gone through the documents appended with this petition. This writ petition merits dismissal on the ground that the petitioner has not approached this Court with clean hands. In the prospectus as well as in the press clippings appended with this petition impression had been conveyed that the Punjab Pharmacy Educational Foundation had already got affiliation. In this respect reference is made to the following statement printed in the prospectus:

"There institutions were set up in accordance with the Pakistan educational policy and the rules and regulations laid in the

Pharmacy Act 1967. In addition to it. it has been affiliated with central pharmacy council of Pakistan." (underline is mine)

Petitioner in his Constitutional petition in para 7 has also admitted this aspect. To cover up the same it has only been stated that the same was published inadvertently. This factual misgiving has certainly misled the general public. In this regard a criminal case was also got registered vide FIR No. 203-93 at Police Station Garden Town on 25.9.1993 under Section 420/468/471/406 PPC read with Section 16 of M.P.O.

As far as the merits are concerned Sections 18 & 19 of the Pharmacy Act 1967 would be relevant which are reproduced as under:-

"Approval of Examinations.--Any institution or authority, including a Provincial Council, which holds an examination in pharmacy, may apply to the Central Council for approval of the examination for the purpose of qualifying a person for registration as a pharmacist under this Act. .

(2) The Central Council, if it is satisfied after such enquiry as it may think fit that the examination for the approval of which an application has been made under sub-section (1) is in conformity with this Act and the regulations, shall approve the examination and, by notification in the official Gazette, declare it to be an approved examination for the purpose of qualifying a person for registration as a pharmacist under the Act.

1. Approval of courses of study.-(l) Any institution or authority which conducts a course of study in pharmacy may apply to the Central Council for approval of such course of study for the purpose of admission to an approved examination.

(2) The Central Council, if it is satisfied after such enquiry as it may think fit that the course of study for the approval of which an application has been made under sub-section (1) is in conformity with this Act and the regulations shall submit the application together with its recommendation to the Central Government and shall, upon the approval of the course of study by the Central Government, declare it, by notification in the official Gazette, to be an approved course of study for the purpose of admission to an approved examination."

The reading of these sections brings one to an irresistible conclusion that the role of Pharmacy Council of Pakistanis of pivotal nature. It is the Pakistan Pharmacy Council which has to do all work prior to the affiliation by holding an inquiry that the institution affiliation of which is sought, is having all the requirements for the same. If the Council is satisfied then in that eventuality, reference is made by the Council with its recommendation to the Federal Government. The role of Pakistan Pharmacy Council is not simply of a post office as argued by the learned counsel that after the receipt of the application submitted for affiliation, the same would be forwarded to the Federal Government without any process.

It is not denied that the private sector can play an effective role in the field of education but it cannot be permitted to provide substandard education at a heavy cost to be borne by the students and their parents. In 1996 SCMR 341 (Rahimyar Khan College of Education through Principal and another vs. Islamia University of Bahawalpur through Vice-Chancellor and 3 others), the Hon'ble Supreme Court observed as under:

"There can be no cavil with the proposition that the citizens of this country should be enabled not only to become literate but also to improve their educational proficiency. It is, however, equally imperative that the institutions which come in this field, should play their role in a be-fitting manner. Mere fleecing of people desirous to achieve excellence or providing them short cuts to obtain high degrees, without requisite knowledge, cannot be countenanced. Heavy responsibility, therefore, falls on the shoulders of the functionaries or the University to ensure that affiliation is granted to only such institutions as can deliver goods in a perfect and laudable manner. If any institution is found lacking in this behalf, the University authorities will be justified in refusing affiliation thereto. It is discretionary with the University to grant or withhold affiliation and if discretion is exercised judiciously, it cannot be taken exception to by any one".

In 1996 CLC 64 it has been held as under:

"The right to seek education could be classified as fundamental right as it is relatable right to life. A person has a right to establish an institution but it does not carry a right to have it recognized. For purposes of recognition it has to conform to the conditions laid down in the relevant law and the same cannot be dubbed as unreasonable restriction."

In this regard reference to AIR 1993 SC 2178 would be apt wherein it was observed as under:

"We must, however, make it clear, and which is of crucial importance herein, that the right to establish an educational institution does not cany with it the right to recognition or the right to affiliation. In St. Xaviers College v. State of Gujarat (1975) 1 SCR 173); (AIR 1974 SC 1389) it has been held uniformly by all the nine learned Judges that there is no fundamental right to affiliation. Raym CJ., stated that this has been the consistent view of this Court'. They also recognised that recognition or affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and or/affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significance The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory in the interest of general public upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of students. Since the recognising/affiliating authority is the 'State', it is under an obligation to impose such conditions as part of its duty It cannot allow itself or its power and privileges to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion no Government authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions." (Underline is mine)

Here in the case in hand an inquiry committee comprising of Senior Officers visited the place and found nothing. Even the tall claims as already stated made by the petitioner proved futile. Learned Deputy Attorney General is right in saying that the petitioner made all these claims due to his political manoeuvring mentioning the name of Minister as well as Director General Health Services as its patron. The inquiry committee has reported that the petitioner is neither having any laboratory nor other requirements envisaged under the law.

As far as the ground of mala fide is concerned the same has simply been levelled in a bald manner without any specification as required by the dictum of Hon'ble Supreme Court reported Federation of Pakistan vs. Saeed Ahmad (PLD 1974 SC 151) wherein it was held as under:

"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, there 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. Mala fides must be pleaded with particularly, and once one kind of malafides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched 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."

It is pertinent to mention here that before satisfying the requirements the petitioner in view of the exaggerated claims created an impression of affiliation of the Institution among the people at large which amounts to putting cart before the horse. The petitioner in this manner has succeeded in charging colossal amount as according to the Constitutional petition itself more than 1000 students had already been registered and the fees have been charged from them. This calculated planned venture to deceive the general public by giving impression of affiliation in the sacred field of education is highly deprecated.

Resultantly I am of the view that the petitioner failed to make out a case on merits. Apart from this even if the stance taken by the petitioner is admitted even then I am not inclined to exercise my discretion in view of the conduct demonstrated by the petitioner. Reliance in this respect is placed upon Nawab Syed Raunaq Mi etc. vs. Chief Settlement Commissioner and others (PLD 1973 S.C. 236) and Messrs Airport Support Services vs. The Airport Manager Quaid-e-Azam International Airport Karachi and others (1998 SCMR 2268). For what has been stated above the writ petition is dismissed with no order as to costs.

(A.P.) Petition dismissed.

PLJ 2000 Lahore 52

Present: MALIK MUHAMMAD QAYYUM, J. A. RAZZAQ & CO.-Petitioner

versus GOVERNMENT OF PAKISTAN etc.-Respondents

W.P. No. 13446 of 1999, decided on 21.9.1999. (i) Imports and Exports (Control) Act, 1950 (XXXIX of 1950)-

—-S. 3-Export Policy Order 1998, Sched. l»Constitution of Pakistan (1973), Art. 199-Governments power to allow or prohibit import and export of any goods-Limitations-Government in exercise of its powers can allow or prohibit import or export of any goods subject to the rider that notification issued by it in that behalf would operate prospectively and cannot affect those rights vesting in a person on basis of contracts entered into or other step taken for export and import, both on principle of promissory estoppel and theory of vested rights—Where petitioner had entered into contract and had opened letters of credit there was no prohibition in any law for export of poppy seeds from Pakistan-Valuable rights of importer cannot be defeated on basis of notification which could not materially vary terms and conditions of licence to disadvantage of importer-Notification of specified date would be of prospective operation and would be ineffective against rights of petitioner who would be allowed to export poppy seed, of quantities mentioned in contract a letter of credit. [Pp. 57 & 58] B & C

1986 SCMR 916; 1986 SCMR1917; 1997 SCMR 503; PLD 1997 SC 315; 1992 SCMR 1652 ref.

(ii) Interpretation of Statutes--

—-Notification-Effect-Notification cannot have any retrospective effect and the same operates prospectively unless there was clear provision to that effect in legislation itself-Rights which accrued to or vested in a person on account of his having taken some action on basis of contract or policy cannot be taken away by issuing notification. [P. 55] A

Mian Abdul Ghaffar, Advocate for Petitioner.

Kh. Saeed-uz-Zafar, D.A.G and A Karim Malik, Advocate for

Respondents.

Date of hearing: 14.9.1999.

judgment

This judgment shall dispose of W.P. No. 13445/99 and W.P. No. 13446/99 in both of which common question is involved.

1. The facts giving rise to this petition are that the petitioner company is engaged in import and export of various goods from Pakistan to India. It entered into a contract with the Indian importers for the export of 1500 metric tons of poppy seeds valuing 10,50,000 US$. Out of aforesaid 231 metric tons were supplied by the petitioner in consignments the price whereof was remitted by the importer to Pakistan through Prime Commercial Bank Limited Jodia Bazar, Karachi. According to the averments made in this petition when the goods arrived in India there was a problem • regarding the clearance of the exports and the importer had to invoke the Constitutional jurisdiction of High Court of Punjab and Haryana at Chandigarh by filing Writ Petition No. 18471/98 which was allowed by the said Court primarily on the ground that the rights vesting in an individual cannot be taken away by issuing a Notification which cannot operate retrospectively.

2. It is common ground between the parties that in the Import and Export Order 1998-99 there was no prohibition on export of poppy seeds as it did not fall under any three of the schedules to the Export Policy Order 1998-99 issued in exercise of the powers conferred by Section 3 of the Import and Export (Control) Act, 1950. However, the aforesaid order was amended by the Government through Notification No. SRO 28(i)99 dated 14.1.1999 whereby poppy seeds were included in schedule 1 of the Export Policy Order with the result that export of poppy seeds was completely banned.

3. As already noted the petitioner had before 14.1.1999.entered into a contract for export of 1500 metric tons of poppy seeds out of which 231 metric tons of poppy seeds has already been supplied. When the petitioner wanted to export other consignment of the poppy seeds Respondents Nos. 2 and 3 refused to allow the shipment on the basis of Notification No. SRO 28(i) 99 dated 14.1.1999. The petitioner represented against this action of the respondents pointing out that the petitioner had entered into a binding contract with the importer and the rights vested in the petitioner could not be denied by giving retrospective effect to the Notification dated 14.1.1999. On the representation of the petitioner the case was sent to Narcotics Control Division for issuance of no objection certificate for the export of poppy seeds. It has been averred in this petition that the matter was referred to the opinion to the Law and Justice Division which opined that no retrospective operation could be given to the Notification dated 14.1.1999 and therefore, the rights flowing therefrom could not be impaired or taken away. Notwithstanding the aforesaid the respondent did not allowed the petitioner to export the remaining of the contracted goods. This action of the respondents has been challenged by the petitioner by filing this petition.

4. It is contended by the petitioner's learned counsel that the export of poppy seeds was freely allowed under the Export Policy Order, 1998 under Section 3(1) of Import and Export (Control) Act, 1950 at the time when the petitioner had entered into a contract with the Indian Importer on 8.9.1998 and also established a letter of credit on 23.9.1998 and further that the petitioner had exported a part of the poppy seeds. His claim is that vested rights had come to accrue to the petitioner on the basis of the contract entered into between him and the importer at the time when there was no restriction on the export. It is claimed that the amendment made in the Schedule 1 of Export Policy Order 1998-99 through Notification dated 14.1.1999 has no retrospective operation so as to interfere with the rights of the petitioners or the contracts entered into prior to the issuance of said Notification.

5. In the report submitted by the respondents almost all the facts have been admitted. It has, however, been stated that till September, 1997 there was no restriction on export of poppy seeds from Pakistan. However, on the initiative of Pakistan Narcotics Control Division export of poppy seeds was banned vide Ministry of Commerce SRO 32(i)97 issued on 22.9.1997. While issuing the Export Policy Order, 1998 the poppy seeds could not be inadvertantly included in the list of items export of which was banned and this defect was rectified on 14.1.1999 by the Ministry by issuing the impugned notification.

6. Import to and export from Pakistan is governed by the Import and Export (Control) Act, 1950 under which is consonance with the trade policy the Government issues export policy order almost every year in terms of Section 3 of the Import and Export (Control) Act, 1950. It is not disputed that in Schedule 1 of the Export Policy Order, 1998 the poppy seeds do not figure anywhere in the list of goods export of which was banned. Consequently at the time when the petitioner entered into a contract for theexport of goods there was no ban on the export of poppy seeds. Export of a partial shipment was also allowed by the respondents themselves on 8.9.1998. It was much later on 14.9.1999 that the Export Policy Order was amended by Notification No. SRO 28(i)99 dated 14.1.1999 and export of poppy seeds was baned.

7. It is a settled position in law that a notification cannot have any retrospective effect and operates prospectively unless there is a clear provision to that effect in the legislation itself. The other settled proposition in law is that rights which accrue to or vested in a person on account of his having taken some action on the basis of a contract or a policy cannot be taken away by issuing a Notification. The Supreme Court of Pakistan in Federation of Pakistan v. Chaudhry Muhammad Aslam (1986 SCMR 916) which was a case relating to import of buses was pleased to observe that though the department possesses untramelled powers and could prospectively prohibit or control the imports all the same even such an extensive power has its limits. Vested rights cannot be allowed to be overridden unless it takes place by unequivocal words by an organ or authority competent to impair or override the vested rights. It was further observed as under:-

\If contracts had been bona fide and legally entered into and given rise to rights and liabilities enforcible at law then certainly vested rights had come into existence which could not be overridden even in the matter of import and export, except on express words of an authority competent to legislate retrospectively, competent to override or impair such vested rights. An agency or authority not empowered to override or impair vested rights cannot achieve that end simply by giving its dispensation in the form of a declaration.

Such a vested right was protected and preserved by invoking in aid the principle of promissory estoppel.

Similarly in Al-Samrez Enterprise v. The Federation of Pakistan(1986 SCMR 1917) the Supreme Court of Pakistan held the following:--

"If a binding contract was concluded between the appellants and he Exporter or steps were taken by the appellants creating a vested right to the then existing notification granting exemption, the same could not be taken away and destroyed in modification of the earlier one, on the ground that under Section 21 of the General Clauses Act the Government could exercise the power of modification.

It will he inequitable and unjust to deprive a person who acts upon such assurance of the right to exemption and expose him to unforeseen loss in the business transaction by suddenly withdrawing the exemption after he has made legal commitments. It is in this perspective that a right is created in his favour and a subsequent withdrawal of exemption cannot be given retrospective operation by an executive act to destroy this right.

Vested right was created and the transaction was not open to doubt as fraudulent and no attempt to evade the payment of duty was made.

Retrospective operation cannot be given to executive orders so to destroy contractual rights and obligations already accrued."

Reference may also be made to Taj Mahal Hotel Limited etc. v. Karachi Water and Sewerage Board etc. (1997 SCMR 503) in which it was observed that a Notification or an administrative order could not operate retrospectively to the disadvantage of a person affected by it. In Hashwani Hotels Limited v. Federation of Pakistan and others (PLD 1997 S.C. 315) it was laid down that the Notification and/or an executive order,; can only operate prospectively and not retrospectively. It was further held that:

"Reverting to the question, whether such a direction can affect the loan agreements which were already concluded prior to such direction, it may be observed that it is a well-settled principle of interpretation of a notification and/or an executive order that the same can operate prospectively and not retrospectively. This principle is equally applicable to a statute in the absence of any express or implied intendment contrary to it."

Reference may also be made to Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others (1992 SCMR 1652) in which it was laid down that a notification which purports to impair an existing or vested right or imposes new liability or obligation cannot operate retrospectively in the absence of legal sanction. If an authority is competent to make an order it has the power to undo it but the order cannot be withdrawn and rescinded once it has take legal effect and certain rights are created in favour of an individual. It was further held that the doctrine of promissory estopple was applicable in Pakistan against Government and its functionaries subject to following exceptions:--

(i) The doctrine of promissory estoppel cannot be invoked against the legislature or the laws framed by it because the legislature cannot make representation;

(ii) Promissory estoppel cannot be invoked for directing the doing of the thing which was against the law when the representation was made or the promise held out;

iii) No agency or authority can be held bound by a promise or representation not lawfully extended or given;

(iv) The doctrine of promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the properly or the reputation of the party invoking it; and

(v) The party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise.

In the present case there is no averment by the respondent that the petitioner has acted fraudulently nor the fact that he had entered into a contract with the importer and opened a letter of credit prior to coming into force of the Notification been disputed.

1. It follows from the above that the Government in the exercise of its powers under the import and Export (Control) Act, 1950 can allow or prohibit the import and export of any goods subject however to the rider that the notification issued by it in this behalf would operate prospectively and cannot affect the rights vesting in a person on the basis of the contracts entered into or the other steps taken for export and import, both on the principle of promissory estoppel and theory of vested rights.

2. In the present case it is not denied that at the time when the petitioner had entered into the contract and had opened the letters of credit there was no prohibition in any law for the export of poppy seeds from Pakistan. It has been contended by the respondents that it was due to an accidental omission. Even if that be so, a third person like the petitioner cannot be made to suffer for the fault of the respondent department. It is also interesting to notice that the import of poppy seeds in Pakistan is not banned. Furthermore, under the Narcotics Control Act, 1997 there is no bar for dealing with or being in possession of poppy seeds. Narcotic drug has been defined in Section 2 to mean coca leaf, cannabis, heroin, opium, poppy straw and all manufactured drugs, however, poppy straw means all the parts, except seeds, of the opium poppy after sowing. Reading the two definitions together it becomes clear that poppy seeds do not fall within iae definition of narcotic drug.

Before concluding this discussion it may be stated that the importer to whom the goods were sent by the petitioner faced a similar difficulty which resulted in filing of a Constitutional petition bearing No. 18876/98 before the High Court of Punjab and Haryana at Chandigarh. In that case too importer had been issued a licence for import of poppy seeds from Pakistan and certain other countries. Subsequently, however, notifications were issued by virtue of which the import of poppy seeds from Pakistan were banned. This was done by amending para-8 of the Foreign Trade Regulation Rules 1993. The High Court was pleased to hold that valuable rights of the importer cannot be defeated on the basis of a notification which could not materially vary the terms and conditions of the licence to the disadvantage of the importer in that case.

As a result of what has been stated above, this petition is allowed. The notification bearing No. SRO 28(i)99 dated 14.1.1999 is held to be only of prospective operation and would be ineffective against the rights of the petitioner who shall be allowed to export the poppy seeds of the quantities mentioned in the contracts/letter of credit.

No order as to costs. (A.P.) Petition allowed.

PLJ 2000 Lahore 58

Present: IHSAN-UL-HAQ chaudhry, J.

MEHMOOD KHAN--Petitioner

versus

GOVERNMENT OF THE PUNJAB through ADDL. CHIEF SECY., CIVIL SECRETARIAT, LAHORE and others-Respondents

W.P. No. 7002 of 1996, heard 20.7.1999.

(i) Floriculture (Training and Research) Punjab, Lahore Service Rides 1996-

—R. 1-Punjab Civil Servants Act (VHI of 1974), S. 8--Constitution of Pakistan (1973)--Arts. 199 & 212--Vires of Floriculture (Training and Research) Punjab, Lahore Service Rules 1996, assailed on the touchstone of Punjab Civil Servants Act 1974 and that respondent was not entitled to claim seniority on basis of impugned rules-Locus standi of petitioner to challenge impugned rules-Post on which respondent was appointed was created in 1987 at Lahore while the same post was created at Rawalpindi in 1989-Both posts were merged in 1992, whereafter Government had framed impugned rules-Petitioner neither challenged creating of impugned post at Lahore nor Rawalpindi rather he had no locus standi to object to lie same, therefore, for such simple reason, he was neither aggrieved person nor had any locus standi to challenge impugned service Rules-Petitioner's claim that rules in question, would benefit only respondent, was not valid for the reason that those rules were not transitory/temporary but the same were permanent and enacted for all time to come and applied to all incumbents-When looked from such angle, impugned rules were legal and notified by competent authority, therefore, no valid exception could be taken to the same-There was nothing on record even to drop as to the rules having been framed with malafide purpose-Impugned rules seemed to have been made in order to cover appointment to the post, which had come into existence as a result of re-organization-Governor enjoyed un-fettered powers to frame service rule and High Court has no jurisdiction to interfere in matters of policy.

[P. 62 & 63] A, C

(ii) Floriculture (Training and Research) Punjab, Lahore Service Rules 1996-

—R. 1-Punjab Civil Servants Act (V1H of 1974), S. 8-Constitution of Pakistan (1973), Arts. 199 & 212-Vires of Floriculture (Training Research) Punjab Lahore Service Rules 1996 assailed on the touchstone of Punjab Civil Servant Act 1974-Preliminary objection that rit was not competent and that petitioner should invoke jurisdiction of Punjab Service Tribunal, as and when any adverse order was made, which was competent to decide question of vires of rules also-Anxiety of petitioner to challenge impugned rules became clear from the fact that he had not suffered any injury as none of his terms and conditions of service had been adversely affected, therefore, he could not maintain appeal before Punjab Service Tribunal—When petitioner had no locus standi to challenge rules through appeal before Punjab Service Tribunal, he could not maintain Constitutional petition-Allegations of malafide were too general, unspecific and were made as per fashion, so as to attract constitutional jurisdiction. [P. 62] B

1991 SCMR 1041; 1990 SCMR 999; 1991 PLC (CS) 471; 1993 PLC (C.S) 354; PLD 1973 Lah. 140; 1998 SCMR 2280; 1998 SCMR 1948; PLD 1974 SC 151; 1981 PLC (C.S.) 29; 1988 SCMR 1453; PLD 1989 SC 262; PLD 1988 SC 155; 1998 SCMR 2254; 1990 SCMR 1524; 1994 SCMR 1033 ref.

Fiona Muhammad Arshad, Advocate for Petitioner. Rana Muhammad Arif, Addl. A.G. for Respondents Nos. 1 to 3. Mr. Masood Ahmad Riaz, Advocate for Respondent No. 4. Date of hearing: 20.7.1999.

judgment

The petitioner through this Constitutional petition has prayed for a declaration that the Notification dated 13.4.1996 is ultra vires of the Punjab Civil Servants Act, 1974 and the rules framed thereunder. The same has not been framed in accordance with the procedure. Directorate of Floriculture, Training and Research Punjab is not entitled to function as separate functional unit of Agriculture Department and that Respondent No. 4 is not entitled to claim seniority. The relevant facts are that the Governor of the Punjab made the new rules of Floriculture (Training and Research), Punjab, Lahore Service Rules, 1996 which were published in the notification dated 13.4.1996. The petitioner has challenged the same. The petition was admitted to hearing and notices were issued to the respondents, who have appeared and contested the petition.

1. The learned counsel for the petitioner argued that the Directorateof Floriculture was carved with a view to give benefit to Respondent No. 4. It is added that the Agriculture Department consisted of Research and Extension Wings and a large number of Horticulturists, are employed both the wings. It was added that Horticulture includes Floriculture, which now was being treated as separate department or Functioning Unit. The learned counsel with reference to the course of the Agricultural University submitted that the Floriculture as such did not exist, therefore, there was no independent Post Graduate Course for the same. It was added that Respondent No. 4 is junior to many of the officials working as Horticulturists in the Agriculture Department and by creating the Directorate of Floriculture Training and Research Punjab as independent Wing, the purpose was to promote him at the cost of others.

2. On the other hand, learned counsel for Respondent No. 4 argued that the rules cannot be challenged through a writ petition as the same were part and parcel of the terms and conditions. The Constitutional petition was barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. The petitioner if and when aggrieved could maintain an appeal before the Punjab Service Tribunal, which had the jurisdiction to decide the vires of the rules, also. It was added that the writ petition otherwise s not competent. It was explained that the petitioner has alkged as question of facts, which can be decided by the Punjab Service Tribunal. In this behalf reliance was placed on the cases of LA. Sharwani & others v. Govt. of Pakistan through Secretary, Finance Division, Islamabad & others (1991 SCMR 1041), Rana Muhammad Sarwar v. Govt. of Punjab through S.G.A &I. Department & another (1990 SCMR 999), Abdul Qaddus & others v. Govt. of Punjab & 266 others (1991 PLC (CS) 471), Muhammad Ashraf & others v.Govt. of the Punjab through Secretary L.G. & R.D. Department & 266 others (1993 PLC (CS) 354) and Shamim Mustafa Ansari & 170 others v. Govt. of Punjab through Chief Secretary Civil Secretariat, Lahore & 2 others (PLD 1973 Lahore 140). It is argued that mala fide was again question of fact, therefore, can be adjudicated upon by the Service Tribunal. In this behalf reliance was placed on the cases of Khalid Mahmood Wattoo v. Govt. of Punjab & others (1998 SCMR 2280) and Syed Mazhar Hussain Bokhari v. Secretary Govt. of Punjab L.G & R.D. Department, Lahore & others (1998 SCMR 1948). It was added that even otherwise the allegations of mala fide levelled in this petition were too general, unspecific and vague, so does not furnish basis for interference in the Constitutional jurisdiction. In this behalf reliance was placed on the case of The Federation of Pakistan through the Secretary, Establishment Div., Govt. of Pakistan Rawalpindi v. Saeed Ahmad Khan & others (PLD 1974 SC 151). It was added that the Governor enjoyed unfettered powers to frame service rules and no interference was possible, so long the rules were not violative of any provision of the Constitution or the parent enactment. The learned counsel relied upon the cases of Musharraf All v. The Province of Punjab & others (1981 PLC (CS) 29), Naimat Ullah Butt & others v. The Government of the Punjab through the Secretary Education, Lahore (1988 SCMR 1453), Falak Sher Khan & another v. Mukhtar Ahmad & others (PLD 1989 SC 262), Ch. Muhammad Insha Ullah & others v. Chief Conservator of Forests (P&E) Punjab & others (PLD 1988 SC 155) and Dr. Mrs. Shahnaz Akhtar, Associate Professor v. Govt. of N.W.F.P. through Chief Secretary, Peshawar & others (1998 SCMR 2254) in support of his contention. It was added that the petitioner had not suffered any legal injury and none of his existing terms and conditions of service had been adversely affected by these rules, therefore, he was not an aggrieved person. It was added that the future chances of promotion were not guaranteed, therefore, the petitioner had not a vested right which he sought to be enforced through this Constitutional petition. In this behalf reliance was placed on the cases of Falak Sher Khan & other v. Mukhtar Ahmad & others (PLD 1989 SC 262), Govt. of N.W.F.P., Health & Social Welfare Department v. Dr. Sh. Muzaffar Iqbal & others (1990 SCMR 1524) and Muhammad Arshad Saeed, DIG Police v. Govt. of Pakistan through Secretary, Establishment Div,, Islamabad & 29 others (1994 SCMR 1033). It was argued that the petitioner was fully conscious of the legal position that he cannot maintain petition, therefore, he has not claimed any relief for himself in the writ petition. It was added that the writ petition was not competent in view of the provisions of Article 212 of the Constitution of 1973. It was argued that the Government proceeded to appoint Director of Agriculture, Floriculture and Land Scapping at Lahore in the year 1987. This was under the administrative control of Director General Extension, Lahore while Director of Horticulture, Floriculture and Land Scapping, Rawalpindi was established in 1989. This office was under the administrative control of the Director General Research. The Respondent No. 4 was posted as Director in Rawalpindi office in the year 1990. It was explained that on 25.3.1992 Director, Lahore was placed under the administrative control of Additional Secretary Agriculture instead of Director General (Extension), Lahore while the Director Rawalpindi was placed under the administrative control of Additional Secretary on 12.5.1992. Thereafter on 26.5.1995 it was decided that the Director Agriculture, Floriculture and Land Scapping Lahore would work as Co-ordinator for Director of Horticulture and for Floriculture and Land Scapping Rawalpindi. It was on 1.7.1992 that both the offices were merged. The result was that the posts of Director Horticulture and Floriculture, Rawalpindi and Land Scapping Rawalpindi were abolished while the post of Director Agriculture for Floriculture and Land Scapping Lahore was re-designated as Director Floriculture and Training Research Punjabi Lahore. This necessitated framing of the rules challenged by the petitioner. It was argued that the rules were framed for all times to come and for every one as was clear from the context of the rules. It was argued that the petitioner when aggrieved from any order passed under these rules may challenge the said order or action and also rules.

3. Rana Muhammad Arif, learned Addl. A.G. argued that the establishment of offices of Director of Agriculture, Floriculture and Land Scapping, Lahore in 1987 and then Director of Horticulture for Floriculture and Land Scapping, Rawalpindi in 1998, was a policy decision. Similarly their merger and establishment of Director, Floriculture, Training and Research Punjab, Lahore was also a policy decision. The same cannot be challenged in the constitutional jurisdiction. The office of Director Floriculture, Training and Research Punjab, Lahore, having been established, therefore, framing of rules was necessary. It neither effected existing terms and conditions of the petitioner or anyone also nor their seniority in any manner.

4. I have given my anxious consideration to the arguments and gone through the record. The post of Director Floriculture at Lahore was created in 1987 while the Rawalpindi post was created in 1989. Both were merged on 1.7.1992. Now the Government has framed rules. The petitioner neither challenged the creating of the post of Director at Lahore nor Rawalpindi rather had no locus standi to object to the same, therefore, for this simple reason he was neither an aggrieved person nor had any locus standi to . | challenge the Service Rules, 1996. There was nothing common between the petitioner and Respondent No. 4.

5. Now coming to the petitioner's arguments on merits. It wasvehemently argued that the rules as framed would benefit only Respondent No. 4. The rules were not transitory/temporary but the same were permanent and enacted for all times to come and applied to all incumbents. If looked from this angle the rules were legal and notified by the competent authority, therefore, no valid exception could be taken to the same.

6. Now coming to the preliminary objection that the writ was not competent and the petitioner should invoke the jurisdiction of the Punjab Service Tribunal, as and when an adverse order was made, which was competent to decide the question of vires of the rules, also. Learned counsel in this behalf has rightly referred to the judgment in the case of I.A Sherwani and others (Supra). The anxiety of the petitioner to challenge the rules became clear from the fact that he had not suffered any legal injury as none of his terms and conditions of service had been adversely affected, g, therefore, he could not maintain the appeal before the Punjab Service Tribunal. He lost sight of the fact that if he had no locus standi to challenge the rules through an appeal before tke Punjab Service Tribunal then how he could maintain this petition? The allegations of mala fide are too general, unspecific and are made as per fashion. The learned counsel has rightly referred to the judgment of The Federation of Pakistan through The Secretary, Establishment Division, Govt. of Pakistan, Rawalpindi (Supra).

I 8. There is nothing on record even to drop a hint as to the rule j having been framed with mala fide purpose. The same clearly seemed to have been made in order to cover the appointment to the post, which had come into existence as a result of re-organization. The Governor enjoyed unfettered powers to frame service rules and this Court had no jurisdiction to interfere in the matters of policy. Learned counsel has rightly referred to the judgments in the cases of Musharraf All and Dr. Mrs. Shahnaz Akhtar (Supra).

1. The Floriculture is a vast subject. It is high time to recognise its importance and start Graduate and Post Graduate classes in the Agriculture University. It is needless to add here that the same has been recognized in United States and elsewhere long back as an independent subject. It consists of about 10 Courses for M.Sc. (Hon). Let copy of the judgment to be sent to the Secretary, Agriculture, Government of the Punjab and Vice-Chancellor, Agriculture University, Faisalabad for consideration and necessary action.

10.The upshot of this discussion is that there is no merit in this petition. The same is dismissed with no order as to costs.

(A.A.) Petition dismissed.

PLJ 2000 Lahore 63

Present: KARAMAT NAZER BHANDARI, J.

DR. ZAFAR ALI CHAUDHRY ASSOCIATE PROFESSOR PHYSIOLOGY DEP. K.E.M. COLLEGE, Lahore-Petitioner

versus

PUNJAB PUBLIC SERVICE COMMISSION LAHORE through its SECRETARY and others-Respondents

W.P. No. 4764 of 1998, decided on 16.8.1999.

Civil Service-

—Constitution of Pakistan (1973), Art. 199-Post of Professor of Physiology-­Petitioner claimed that he was the only candidate having requisite qualification of M. Phil in Physiology but respondent having obtained certificate of equivalence of his M.Sc Physiology from P.M.D.C. which was not valid was selected on basis of said certificate instead of petitioner who had the requisite qualification-Letter issued by P.M.D.C. in favour of respondent (selected candidate) travels beyond parameters laid down by Supreme Court in 2tib-un-Nisacase 1991 SCMR 536, whereby all that P.M.D.C. could do was that such qualification acquired by respondent was registered as per its record, but instead it had gone further to categorically state that Respondent's qualification M.Sc. (Physiology) from Virginaia Common Wealth University School of Graduate Studies (U.S.A) was equivalent to M.Phil (Pak) in status-Such exercise by P.M.D.C. was thus, patently beyond its jurisdiction-Another letter from P.M.D.C. addressed to another candidate informed him that his qualification of M.Sc. was not equivalent to M.Phil but the same was minor qualification-Contradiction in two letters, one addressed to selected candidate, and the other addressed to other candidate was glaring and obvious-No attempt was made by any of respondent to justify such contradiction-Provisions of Punjab Establishment Code give power of equating and assessing comparative worth of additional qualification to Administrative Department of Government and not to Public Service Commission or P.M.D.C.—Exercise of equivalnce done by P.M.D.C. and issue of letter to that effect in favour of respondent was, thus, without lawful authority—Public Service Commissions recommendation basis of letter issued by P.M.D.C. in favour of respondent was also illegal and without lawful authority as also notification of specified date appointing respondent to the post in question, and his consequential posting as such was of no legal effect- Post in question would be deemed to be still available-Public Service Commission was directed to proceed to make its final recommendation in accordance with law. [Pp. 67 68 & 69] A, B, C & D

1991 SCMR 536 ref.

Ch. Ghulam Hussain, Advocate for Petitioner. Mr. Muhammad Amin Lone, Asst. A.G. for Public Service Commission with A.R. Dy. Director (Legal Punjab Pak.). Mr. N.A. Butt,Advocate for Respondent No. 3. Mr. M. Nawaz Kasuri, Advocate for Respondent No. 4. Mr. Pervez I. Mir, Advocate for Respondent No. 5. Dates of hearing: 28.5.1999 & 7.7.1999.

judgment

This judgment will dispose of Writ Petitions Nos. 4764/98 and 1203/98/BWP as joint disposal is appropriate in view of the legal questions and facts involved. The second petition was instituted at Bahawalpur Bench but has been subsequently transferred to the Principal Seat at Lahore, for hearing alongwith the first petition. Reference to Annexures and parties hereinafter will be those mentioned in Writ Petition No. 4764/98 unless stated otherwise.

1. In dispute is the one post of Professor of Physiology required to be initially filed. Dr. Zafar Ali Chaudhry, petitioner in Writ Petition No. 4764/98 and Dr. Tanvir Ali Khan, Respondent No. 3 and Dr. Muhammad Azhar Khan, Respondent No. 4 (also petitioner in Writ Petition No. 1203/98/BWP) were contestants to the post, for which the Punjab Public Service Commission, Respondent No. 1, invited applications through advertisement (Annex "A"), hereinafter referred to as the Commission. Persons with following qualifications could apply:-

(i) MBBS Or equivalent Medical qualifications recognised by PMDC and the following postgraduate qualifications in the subject:-

D.Sc., Ph.D., FCPS., M. Phil (PAR OR EQUIVALENT QUALIFICATIONS RECOGNISED BY THE PMDC).

The last date for applications was 26.1.1998.

1. The case of Dr. Zafar Ali Chaudhry is that he was/is the only candidate having M.Phil in Physiology and the other two were not qualified. It is claimed that Dr. Tanvir Ali Khan obtained a certificate of equivalence of his M.Sc. Physiology from Pakistan Medical and Dental Council, (hereinafter referred to as PMDC), which was not valid in law, while Dr. Muhammad Azhar Khan's qualifications have not been equated by the Equivalence Committee constituted by the Government of Punjab, acting through ean, Post-Graduate Medical Institute, Lahore (Annex P/6). The interviews were held by the Commission on 12.3.1998 and the Commission recommended appointment of Dr. Tanvir Ali Khan to the exclusion of petitioner and Dr. Muhammad Azhar Khan.

2. Dr. Muhammad Azhar Khan's application was rejected initially by the Commission on 10.1.1998 and his appeal was rejected on 10.2.1998. He filed a Constitutional petition at Bahawalpur Bench (W.P. 749/98/BWP) which was disposed of as withdrawn to allow the petitioner to seek remedy from the Punjab Public Service Commission. His representation to the Chairman, Punjab Public Service Commission, was also rejected as a result of which he was not found eligible for interview. He, therefore, filed the petition as noted above, to question the rejection of his application and also to question the holding of interviews on 12.3.1998 and consequential proceedings to fill the post. It may also be noted that initially application of Dr. Tanvir Ali Khan was also rejected as in the opinion of the Commission, he was not holding the M.Phil Degree or its equivalent He, however, succeeded in appeal on the strength of a letter dated 2.3.1998, issued by the PMDC, on his application and addressed to him. It may also be noted that one time, the Commission referred this letter to the Punjab Government for ascertaining its value but, as asserted, without waiting for the reply from the Government, the Commission finalised its recommendation in favour of Dr. Tanvir Ali Khan, Respondent No. 3. It is in these circumstances that Dr. Zafar Ali Chaudhry instituted his constitutional petition praying that selection of Dr. Tanvir Ali Khan, Respondent No. 3, be declared as without lawful authority.

3. In its parawise comments filed by Respondent No. 2, it has taken no definite position on the issues involved. In fact the impression is unavoidable that Respondent No. 2, by design has avoided to take a dear stand. It has mostly rested itself by saying that the relevant paras relate to either Respondent No. 1 or Respondent No. 5. Respondent No. 3 of course, in his detailed written statement has justified his selection on the basis of fects showing Ms merit aad on the basis of letter dated 2.3,1998 written by PMDC under the signatures of Hafeezullah Khan, Assistant Secretary to the effect "that the qualification of Master of Science M.S. (Physiology) from Virginia Commonwealth University School of Graduate Studies (USA) is equivalent to M.Phi! (Pak) in status."

4. Respondent No. 4 has projected his case to show that he is the best qualified person on merits. He has also attached photo-copies of the various Articles and Research Papers written by him to substantiate his case. He has also attached copy of the Revised Degree issued by Islamia University dated 8.5.1998 to show that he has been admitted by the Syndicate to the Degree of Doctor of Physiology. There is, however, no denial that Equivalence Committee constituted by the Punjab Government through Dean, Post-Graudate Medical Institute, has not equated his foreign degree to M.Phil Physiology (Pakistan).

?. It is strenuously contended by Mr. Ghulam Hussain, Advocate, for Dr. Zafaur Ali Chandhry, that there is no authority in the Commission to equate the foreign degree/attainment of Dr. Tanvir Ali Khan to that of M. Phil (.Pakistan). He has further contended that even the PMDC constituted under Ordinance XXXII of 1962, has no such power. According to him PMDC can only register an additional qualification and leave the assessment of worth of so registered qualification with the Selecting Authority. For this purpose he has relied on Pakistan Medical and Dental Council v. Dr. Zeb-un-Nisa (399! SCMR 536). He has also contended that the Commission proceeded in ill host in recommending the name of Dr. Tanvir Ali Khan without waiting any reply from the Government on the question of certificate issued by PMDC which it itself sought. He has pointed out that under No. SGR.III 2-56/89, dated 16.8.1989, appearing at pages 57 and 58 of Punjab ESTACODE, it is Administrative Department of the Government of Punjab which can specify qualifications which are equivalent to the original qualifications so that the Punjab Public Service Commission is not misled.

1. In reply, Mr, N.A, Butt, Advocate, appearing for Dr. Tanvir Ali Khan, and Mr. Nawaz Kasuri, Advocate, appearing for Dr. Muhammad Azhar Khan, have refuted the above submissions and have reiterated their respective cases. Mr. Butt pointed out that earlier in 1986 this very qualification of Dr. Tanvir Ali Khan was equated by PMDC and the present exercise of equivalence is a mere repetition. He submits that if earlier equivalence remained unchallenged, there is no good reason why the same should now be permitted to be disregarded/challenged. Mr. Nawaz Kasuri, Advocate, has highlighted the qualifications of his client to show that he most appropriate person to be picked up for the post. He has emphasised the inconsistency of the Commission, in that, for the purposes of equation the Commission sent Dr, Muhammad Azhar Khan to the Health Department of Government of Punjab, while they asked Dr. Tanvir Ali Khan to approach PMDC for equation. He has also made the grievance that conduct of the Commission in the exercise has not been above board. Learned Assistant Advocate General has maintained that the selection has been made by the Commission in consultation with the Health Department and the same islegal.

2. The question as to the power of PMDC in matters of equation of various degrees/diplomas/courses came to be examined by the Supreme Court in the case of Pakistan Medical and Dental Council v. Dr. Zeb-un-Nisa (1991 SCMR 536). The ratio of the case is that PMDC is entitled to register additional qualification and cannot itself adjudge the comparative merit or worth of the so registered additional qualification. In the case Dr. Zeb-un- Nisa succeeded in the High Court in obtaining a writ petition directing PMDC to register her foreign academic qualifications as "Medium". On the appeal of PMDC, the Supreme Court held that there was no such provision by which her qualification could be categorised as "Medium" as the Medium" category did not exist either in law or in the Regulations. The Court held that in these circumstances, the High Court was not correct in issuing the writ petition. In this context the Court concluded in para-10 of the judgment and directed that:

"The comparative value of her additional qualification is to be adjudged by the selecting authority for the purposes of appointment or promotion."

1. it is clear that letter dated 2.3.1998 issued by PMDC in favour of Dr. Tanvir Ali Khan travels beyond the parameters laid down by the Supreme Court in the above judgment. All that the PMDC could do was that such a qualification acquired by Dr. Tanvir Ali Khan has been registered as per its records. Instead it has gone further to categorically state that "M.S. (Physiology) from Virginia Commonwealth University School of Graduate Studies (USA) is equivalent to M.Phil (Pak) in status". It is clear that above exercise is patently without jurisdiction. Initially respondent-Commission acted prudently in seeking advice from the Provincial Government on the value of this letter. It is not clear nor this Court has been explained during hearing as to what motivated the Commission to proceed to finalise its recommendation without waiting for reply from the Provincial Government. Attached with the reply of Respondent No. 4 (at page 31 of the reply) is another letter from PMDC dated 6.4.1998 written to one Dr. Syed Tanvir Hussain, Zaib Hospital Road, I-A, Block-W, Satellite Town, Bahawalpur- 63100, under the signatures of P.S. to Secretary, which is to the following effect:-

"I am directed to refer to your fax message dated 6th April, 1998 on the subject cited above and to inform you that M.Sc is not equivalent to M.Phil. It is considered as minor qualification. However, holder of such qualifications are eligible for appointment as Assistant

Professor in this subject, if persons with higher qualifications are not available."

The contradiction in this letter and the one issued to Respondent No. 3 is glaring and so obvious. No attempt whatsoever has been made by any of the learned counsel appearing for respondents to explain muchless justify the contradiction. P. 4 dated 3rd August, 1993 and P. 5 attached with rejoinder, are two letters of PMDC wherein the Council has been taking the position that comparative value of the qualification is to be adjudged by the appointing/selecting authority. This position is in accord with the Judgment B of the Supreme Court in the case of Dr. Zeb-un-Nisa (supra). Strangely ,^_ enough, in the case of Respondent No. 3 the Council did not deem fit to remain within the limits of the Supreme Court's judgment and as noted, weut ahead to categorically equate the qualification of M.S. (Physiology) to M.PM1.

1. An argument has been raised that the expression "selecting authority" used by the Supreme Court is causing confusion and this expression permits the Punjab Public Service Commission to adjudge the comparative value of the additional qualification. It has been argued that the Commission is only a recommendatory authority, while appointing/selecting authority is the Government. Mr. Ghulam Hussain, Advocate, submits that thus the Commission stands excluded from the expression and, therefore, cannot be a judge of the comparative qualification.

2. The precise question need not be determined in this case. For the purposes of this case, it is sufficient that the PMDC is certainly not the selecting authority and if it stands excluded, Respondent No. 3 will have to show the validity and legality of the certificate in terms of the Judgment of the Supreme Court. In this case the dispute between the Commission and the Government is not arising. It may, however, be observed that both are involved in the exercise of selection. While the Commission advises and recommends, the Government appoints. It has not been argued that the Commission or the Punjab Province is not bound by the provisions of ESTACODE referred to above. The provisions do give the power of equating and assessing the comparative worth of the additional qualification to the Administrative Department of the Government and not to the Commission and certainly not to PMDC. I will not further comment on this aspect because there is no controversy between the Commission and the Government in this case. It will be decided in an appropriate case, as and when it arises.

3. Another document attached with the rejoinder of Dr. Zafar Ali Chaudhry, is photocopy of the letter dated 13.2.1992 from PMDC to Secretary, Government of Punjab, Health Department, a copy of which was endorsed to Principal, Quaid-e-Azam Medical College and others. Since it is relevant to the controversy, it is advantageous to reproduce it:--

"Subject: REGISTRATION OF POSTGRADUATE QUALIFICA­TIONS:

\

It has been decided by the Council that in future the postgraduate qualifications shall be registered only as additional medical qualification according to the provision of Pakistan Medical and Dental Council Ordinance, 1962. The equivalence of post-graduate medical qualification will not be indicated on the Registration Certificate in accordance with the Ruling of Supreme Court of Pakistan.

Those doctors who are interested to get the relevant equivalence for the purpose of appointment under the Regulations of the Council, may do so through the respective appointing/selecting authority if so required by them."

The Judgment of the Supreme Court in the case of Dr. Zeb-un-Nisa (supra) was delivered on 14.11.1990 and this letter was issued on 13.2.1992, perfectly in accord with the above Judgment. Why the PMDC has changed its position in the case of Respondent No. 3 when it issued letter dated 2.3.1998, is known only to PMDC and its counsel in this case has made no attempt whatsoever to explain the inconsistency.

1. It therefore has to be concluded that the exercise of equivalence done by PMDC and issue of letter dated 2.3.1998 in favour of Respondent No. 3 was without lawful authority. Equally the Commissioner, Respondent No. 1 in acting upon the said letter without waiting for the reply of the Provincial Government also acted illegally and without lawful authority. Its recommendation in favour of Respondent No. 3 has also to be declared illegal and without lawful authority and also the notification dated 26.1.1998 appointing Respondent No. 3 to the post of Professor of Physiology and his consequential posting as such in Quaid-e-Azam Medical College. As a consequence, the post shall be deemed to be still available and, as in the case of Dr. Muhammad Azhar Khan, the Government of Punjab, Respondent No. 2, will refer the case of Respondent No. 3 for equivalence to the Equivalence Committee and after receipt of its report, the Commission will proceed to make its final recommendation for appointment to the post of Professor of Physiology. This exercise will be completed by Respondents Nos. 1 and 2 within two months.

2. Dr. Muhammad Azhar Khan having been denied equivalence by the Committee constituted by Administrative Department, his Writ Petition No. 1203/98/BWP stands dismissed. Dr. Zafar Ali's Writ Petition No. 4764//9S is allowed in terms of para-14 of this Judgment. Parties are left to bear their own costs.

(A.A.) Order accordingly.

PLJ 2000 Lahore 70 [Rawalpindi Bench Rawalpindi]

Present: MUHAMMAD AKHTAR SHABBIR, J. SAID MTOL\MMAD--Petitioner

versus

SULTAN AMJAD etc.—Respondents

C.R, No. 932 of 1999, decided on 2.9.1999.

Civil Procedure Code, 1908 (IV of 1908)--

—O.XXXIX, R. 2(3) & S. 115-Contempt of Court Act (LXIV of 1976), S. 3/4--Commitment of defendant that plaintiff would not be dispossessed nor house in question be dismantled megaHy-Plaintiff, suit was dismissed on such commitment—Subsequently, plaintiff moved application under O.XXXIX, R. 2(3) C.P.C. that defendant, in breach of their commitment had dismantled wall of his house-Defendants on appearance in Court made offer to the effect that if plaintiff states on oath that they had dismanted wall of plaintiff and violated commitment they be punished-Plaintiff stated on oath that defendants had dismantled wall of his house, on which defendants were convicted-Defendants, appeal was, however, accepted, their conviction was set aside and case remanded for decision afresh in accordance with law-Defendants could not wriggle out of their own commitment made in Court-Case under O.XXXIX, R. 2(3) C.P.C. was not made out-Case was, however, made out under S. 3/4 Contempt of Court Act 1976-Undertaking given to Court by a party or his counsel has exactly the same force as an order injunction granted by Court-Cumulative effect of S. 228 PPC and S. 5(4) of Contempt of Court Act 1976, would indicate that subordinate Courts have jurisdiction to convict any person for committing contempt of Court only in circumstances mentioned in S. 228 P.P.C.--Sub-ordinate Courts could, thus, punish for contempt of Court only where contempt was committed in the face of Court or its orders were disobeyed or disrespected—Such aspect of case was not adverted to by Courts below, therefore, Trial Court was directed to make reference to High Court. [Pp. 71, 73 & 75] A, B to C

PLD 1976 Lah. 580; 1990 P.Cr.L.J 1736.

Ch. Saifullah Warraich, Advocate for Petitioner.

Mr, Ghulam Haider M-Ghazali, Addl. A.G. for Respondents.

Date of hearing: 2.9.1999.

order

This revision petition tinder Section 115 C.P.C. arises out of the facts, that the petitioner had instituted a suit for permanent injunction against respondents in the Court of Civil Judge, Gujranwala alleging therein the plaint that he had constructed his house on the land of Skamlat Deh adjacent to the road and Kfaasra No. 864 in Mauza Ratta Dehtfaran, Tehsi! Noshera Virkan, District Gujranwala, and the respondent/defendants members of Qabza Group wanted to occupy the land of his house and to achieve their ends threatened him to dismentle the same. The petitioner prayed for restraining the respondents from occupying/dismentling his house, the respondents contested the same, and filed their written statement. During proceedings of the case the counsel for respondents/ defendants made a statement that the plaintiff would not be dispossessed nor the house be dismentled illegally on 14.10,1997. The trial Court in view of the undertaking given by the learned counsel for respondents dismissed the same as having borne fruit. Thereafter the respondents in violation of their undertaking dismentled the wall of the Havely of the petitioner.

1. The plaintiff/petitioner filed an application under Order 39 Rule 2(3) C.P.C. in the Civil Court. The respondents appeared in the Court to face the trial and made an offer to the effect that if the petitioner/plaintiff states on oath that they had dismentled the wall and violated the commitment they be punished. This offer of the respondents was accepted by the petitioner and he stated on solemn affirmation that the respondents had violated the commitment and dismentled his wall. The trial Court on thS statement of the petitioner convicted the respondents to undergo a sentence for two months and fine of Rs. 200/- vide judgment/order dated 4.11.1998.

2. The respondents feeling aggrieved preferred two separate appeals before the Appellate Court which came up for hearing before the learned Additional District Judge Gujranwala, who vide judgment date 10.6.1999, accepted the same, set aside the conviction of the respondents remanded the case with directions to the trial Court to decide the matter afresh in accordance with law after, inviting reply to the petitioner framing the issue with the observations; that no injunction order was passed by the trial Court nd Order 39 Rule 2(3) C.P.C. do not stand attracted to the facts of the case, and that the sentence of fine has not been provided in Order 39 Rule 2(3) CPC and provisions of Oath Act were not applicable as all the respondents were not present at the time of making the offer of oath.

4.I have heard the arguments of the learned counsel for the petitioner and learned Additional Advocate-General.

1. Admittedly no injunctive order under Order 39 Rule 2(3) C.P.C., was issued by the trial Court. The offer was made by the respondents to the petitioner who gave the oath accordingly. The respondents had bound down themselves and now they couid not wriggle out of their own commitment made in the Court. The after the undertaking given by one of the respondents Sultan and their counsel dismentled the wall of the house/ Havely. The case under Order 39 Rule 2(3) C.P.C. is not made out, However, it is contempt of the Court under Contempt of Court Act 1976. Section 3 of Contempt of Court Act; contemplated as under:-

"3. Contempt of Court.-"Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a wilful breach of a valid undertaking given to a Court; orders anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect of disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law of the due Course of any judicial proceedings, or to lower the authority of a Court or scandalize a Judge in relation to his office, or to disturb the order or decorum of a Court, is said to commit "contempt of Court":

Provided that the following shall not amount to commission of contempt of Court-

(i) fair comments about the general working of Courts made in good faith in the public interest and in temperate language;

(ii) fair comments on the merits of a decision of a Court made, after the pendency of the proceeding in a case, in good faith and in temperate language without impugning the integrity of impartiality of the Judge;

(iii) subject to a prohibition of publication under Section 9 or under any other law for time being in force, the publication of a fair and substantially accurate report of any judicial proceedings;

(iv) the publication of any matter amounting to a contempt of Court by reason of its being published during the pendency of some judicial proceedings, by a person who had no reasonable ground for believing that such judicial proceedings were pending at the time of the publication of the matter;

(v) the distribution of a publication, containing matter amounting to contempt of Court, by a person who had no reasonable ground for believing that the publication contained, or was likely to contain, nay such matter, (vi) a true a averment made in good faith and in temperate language for initiation of section or in the course of disciplinary proceedings against a Judge, before the Chief Justice of a High Court, the Chief Justice of Pakistan, the Supreme Judicial Council, the Federal Government or a Provincial Government;

(vii) a plea of truth taken up as defence in terms of clause (vi) in proceedings for contempt of Court arising from an earlier averment unless it is mendaciously false;

(viii) relevant observations made in a judicial capacity, such as those by a higher Court on an appeal or revision or application for transfer of a case, or by a Court in judicial proceedings against a Judge;

(ix) remarks made in an administrative capacity by any authority in the course of official business including those in connection with a disciplinary inquiry or in an inspection note or a character roll or confidential report; and

(x) a true statement made in good faith respecting the conduct of a Judge in a matter not connected with the performance of his judicial functions."

1. An undertaking given to the Court by a party or his counsel has exactly the same force as an order made or injunction granted by the Court. Once an undertaking is given in the Court by a party or on his behalf by his counsel he becomes bound to fulfil the same. A reliance can be placed on a case Mst. Kishwar Sultan Jehan Begum vs. Alsam Avals and 3 others P.L.D. 1976 Lahore 580 in this case Full Bench of the Lahore High Court observe:-

"2. An undertaking given to the Court by a party or his counsel has exactly the same force as an order made or an injunction granted by a Court; once an undertaking is given in the Court by a party or on his behalf by his counsel he becomes bound to fulfil the same. After the Court has sanctioned a particular course of action or inaction according to the statement of a party, the party places himself in a perilous situation if later he commits a breach of his undertaking, and such a conduct on his part amounts to contempt of Court. In Chaturbhujdas Parmanands v. Natvarlal Tribhovandas (1) it was held that if an undertaking is given and is duly recorded in the order of the Court, its breach is punishable as contempt of Court, If a order of the Court If a lawyer is acting in his capacity as counsel for a party and gives an undertaking, it is open to the Court to enforce the same even if it was given gratuitiously. An undertaking can be enforced even though the lawyer's conduct involves no misconduct Hamilton, J., observed in United Mining & Finance Corporation Ltd. v. Becker (1) that the jurisdiction may be invoked not only to secure honesty, in its moral sense, in Court officer, but also to secure the "proper and profession observation of undertaking professionally given". He added: "The conduct which is required of solicitors is to this extent perhaps raised to a higher standard than the conduct required of ordinary men, in that it is subject to the special control which a Court exercises over officers so that in certain cases they may be called upon summarily to perform their undertakings, even where the contention that they are not liable to perform them is entirely free from any taint of moral misconduct". It is also no justification that such an officer was not bound by the undertaking because he was not served with the order containing the undertaking. In re: Galwanized Tank Manufacturers' Association's Agreement (2) Megaw, P, said: "We would, however, emphasise that a company which has given an undertaking to the Court must be treated as having failed lamentably and inexcusably in its elementary duty if it Mis to take adequate and continuing steps to ensure, through its responsible officers, that those officers themselves, and anyone to whom they may delegate the handling of matters which fall within the scope of the undertaking, do not forget or misunderstand or overlook the obligations imposed by such undertakings." If a person, bound by an undertaking, acts in violation of the same though on the pretext that his action was backed by some legal advice, he renders himself liable for action. In re: Agreement of Mileage Conference Group of the Tyre Manufacturers' Conference Ltd. (3) certain tyre manufacturers had given an undertaking inter alia not to operate a certain scheme which the Restrictive Practices Court had declared contrary to public interest. A new scheme was devised and operated which was held to be a breach of their undertaking, they could not be said to have committed contempt because the breach had not been contumacious. The Court held that although reliance on legal advice might be a mitigating factor provided that it was reasonable to rely on such advice, nevertheless a contempt will still have been committed. Megaw, P., observed; We conclude ... that the breches of undertaking here were contempts of Court, even though it were to be shown that they were things done, reasonably and despite all due care and attention, in the belief, based on legal advice, that they were not breaches". Accordingly, we would bold that breach by a party of an undertaking given to a Court by him, or his counsel amounts to contempt of Court and is punishable brevi manu,and the party in contempt must wash choose to make. However, before exercising such a wide jurisdiction, the Court mus ensure that the undertaking was unambiguous and the breach was also clear beyond all reasonable doubt."

1. In the instant case learned counsel for the respondents made a statement as under:- On the above statement made by the counsel the Court disposed of the suit accordingly. It reveals that the counsel gave the undertaking which was binding on the respondents and the respondents thereafter dismentied the wall of the petitioner. In the light of the considered analysis of facts of the case and the seen perspective of the principle enunciated in the case afore-quoted judicial precedent it can be concluded that the respondents had committed contempt of Court.

2. The learned Addl. Advocate General when appeared on Court's call raised an objection that the Civil Judge had no jurisdiction to convict the petitioner under Contempt of Court Act. Now I take up this objection as under:-

"The petitioner had filed a petition under Order 39 Rule 2(3) of C.P.C. as observed that the petitioner was not desired under the above referred provision of C.P.C., the proper course would be to file application under Section 3/4 of Contempt of Court Act, so the petition would be deemed to have been filed under Contempt of Court Act. If this is the position then the Civil Court could not proceed under the provisions of Contempt of Court Act." Section 5 of the Contempt of Court Act reads as unden-

1. Jurisdiction.-d) A High Court or the Supreme Court, on its own information or on information laid before it by any person, may take cognizance of an alleged commission of contempt of the Court.

(2) The Supreme Court shall have the power to take cognizance of any contempt of itself or of any Judge of the Supreme Court alleged to have been committed any where and a High Court shall have the power to take cognizance of any contempt of itself or of any Judge thereof or of any other High Court or of any Judge thereof alleged to have been committed within the territorial limits of its jurisdiction. A High Court shall exercise the same jurisdiction in respect of contempt of Courts subordinate to it or to any other High Court as it exercises in respect of contempt of itself.

(3) Nothing contained herein shall affect the power of any Court to punish any offence of contempt under the Pakistan Penal Code (Act XLV of I860)." '

The bare reading of Section 228 PPC and Sub-section (4) of Section 5 of Contempt of Court Act, 1976 makes it clear that the subordinate Courts have jurisdiction to convict any person for committing contempt of Court only in circumstances in Section 228 PPC. Reliance can be placed in this context on case of Yar Muhammad vs. The State (1990 P.Cr.L.J. 1736). It is manifestly clear from the provisions of Section 3 and sub-section (4) of Section 5 of Contempt of Court Act and Section 228 PPC that the Subordinate Courts could punish for contempt of Court only where the contempt was committed in the face of the Court or its orders were disobeyed or disrespected.

1. This aspect of the case was not adverted to by the Courts below. Following the dictum laid down in the case referred to above it is held that the Civil Judge lacks the jurisdiction to try the contempt petition. He is directed to make reference to the High Court.

2. For the foregoing reasons this revision petition has no merits which is dismissed in lirnine with no order as to costs.

(A.A.J.S.) Revision dismissed.

PLJ 2000 Lahore 76

[Multan Bench Multan]

Present:SAYED NAJAM-UL-HASSAN KAZMI, J.

M/s. MUHAMMAD SHAFI-Petitioner

versus

SULTAN AHMAD-Respondent F.A.0.22 of 1994, heard on 28.9.1999.

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

—Ss. 47 & 145--Liability of surely for performance of decree or part thereof- Execution of decree-Furnishing of surety for payment of decretal amount—Respondent opted to act as surety on behalf of objectors for payment of decretal amount-Surety undertook to be bound for making payment of amount of decree and that his ersonal property inclusive of land and house could be used for recovery of amount-Objectors thereafter, opted not to press objection petition which was dismissed as withdrawn-Dismissal of objection petition as withdrawn would not mean that surety was discharged-LiabUity would arise under contract with decree-holder and undertaking to Court given in terms of order passed by Court-Surety having given undertaking and agreed to pay surety amount in event of default of judgment debtors, surely could not under law be allowed to escape consequences by raising frivolous and flimsy objections- -Decree-holder could successfully enforce decree against judgment debtors or in the alternative against guarantor-liability of guarantor being co-extensive with judgment debtors, decree-holder had a right to enforce decree straightaway against surety. [Pp. 78 & 79] A

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

-S. 47 & O.XXI, R. 58-Execution of decree-Second objection petition afterdismissal of first objection petition on the same grounds and in the same case—Respondent having earlier raised similar plea by filing objection petition against order of attachment of property which was dismissed by executing Court, his second objection petition on similar grounds, in same case was not maintainable. [P. 79] B

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

-—Ss. 12(2) & 47-Pendency of application under S. 12(2) against decree which was being executed-Effect-There being no stay against execution of decree, mere pendency of application under S. 12(2) C.P.C. would not suspend operation of decree passed by Court of competent jurisdiction-Trial Courts, decision whereby surely was discharged, being not warranted by law was set aside in circumstances. [Pp. 79 & 80] C, D

judgment

This order will decide F.A.O. No. 22 of 1994 which arises from order dated 26.1.1994 of the learned Civil Judge, Sahiwal.

1. Material facts out of which this appeal has arisen are that a suit for recovery of Rs. 9,99,838.91 was filed by the appellant under Order XXXW, Rule 2 C.P.C. against a Firm, Muhammad Amin, Muhammad T-qt'f, etc. which was decreed on 15.1.1987 by the learned District Judge, Sahiwal. Appellant filed an execution petition in the Court of learned District Judge which was transferred to the Civil Court Warrant for attachment of immovable property of judgment-debtors were issued. Five persons, namely, Nawazish AH, Mst. Razia Bibi, Tariq Amin, Javed Amin and Khalid Amin filed objection petition against the attachment and auction of the immovable properties of the judgment-debtors. During the pendency of the objection petition the objectors were required to furnish security bond. In pursuance of the order surely bond dated 12.9.1988 was furnished by Sultan Ahmad (respondent herein) who undertook to pay an amount of decree upto Rs. 11,00,000/- on behalf of the judgment-debtors, in case of decision against the judgment-debtors. This surety bond was duly accepted by the Court on 13.9.1988. .

2. Later objection petition was dismissed as withdrawn by the learned Civil Judge vide order dated 22.12.1988. In this situation, the appellant applied to the executing Court for the attachment of the properties of the respondent At this juncture an application dated 22.10.1991 was filed by the respondent seeking rescission of order of attachment of his property on the ground that the objection petition was not decided on merit and was withdrawn, therefore, his properly could not be attached. This application was dismissed by the learned Civil Judge vide order dated 26.10.1991.

3. Not satisfied with the earlier order the respondent repeated similar objections on 17.12.1992 and prayed that his surety be discharged as the objectors had withdrawn the objection petition. This application was allowed by the learned Civil Judge vide order dated 26.1.1994, impugned in the present appeal.

4. Learned counsel for the appellant argued that the respondent having furnished surety could not be absolved of his liability and was bound to pay the surety amount, in terms of the undertaking as the objection petition stood dismissed. It was added that the second objection petition was not maintainable in law. Learned counsel while referring to the provisions of Section 126 of the Contract Act and Section 145 C.P.C. contended that the

5. liability of guarantor is co-extensive with the judgment-debtor of which he could not be exempted but under erroneous assumption.

6. Learned counsel for the respondent vehemently opposed the appeal and argued that the appeal was not competent, the decree had been challenged under Section 12(2), C.P.C. which application was pending and therefore the decree being under could execution proceedings could not continue. Learned counsel submitted that the objection petition was allowed to be withdrawn with no order as to costs which would mean that the surety stood discharged. It was added that in any case the agricultural property of the respondent could not be attached nor the execution could be made against the respondent without determining that the judgment-debtor was a defaulter and that the amount of decree was due.

7. From the material annexed with this petition it is discernable that the suit for the recovery of Rs. 9,99,838.91 filed under Order XXXVII of C.P.C. was decreed on 15.1.1987. In execution proceedings warrants of attachment of the properties of the judgment-debtors were issued. At that stage objection petition was filed by the five objectors. The learned executing Court directed that the surety be furnished for the payment of decretal amount in the events of dismissal of objection etition. Accordingly with a view to have decision of the objection petition on merit the objectors utilized services of respondent who opted to act as a surety on behalf of the objectors for payment of the decretal amount. Resultantly surety bond dated 12.9.1988 was furnished. The executing Court recorded the statement of the respondent, which was to the effect that in the proceedings for executing the recovery of decretal amount of Rs. 9,99,838.91 objections have been filed and that the judgment-debtors would remain bound to pay the decretal amount and that if the objection petition would be decided against them and decretal amount would not be paid by them the surety would be bound for making payment of amount of decree and that his personal property inclusive of land and house could be used for recovery of the amount. On recording this statement satisfying that the surety was a man of means the executing Court accepted the surety bond.

8. Subsequently the objectors opted not to press the objection petition which was dismissed as withdrawn vide order dated 22.12.1988. The order passed by the learned executing Court on the withdrawal of the objection petition was to the following effect:

"In view of the statement of the learned counsel for petitioner recorded today, the application is hereby dismissed as withdrawn with no order as to costs. The file be consigned to record after completion."

1. From the above order, the respondent tried to build up that his surety was discharged. This was not the legal position. The using of the words "no order as to costs" would mean that the objection petition was dismissed without imposing any costs either under Section 35 or Section 36-A C.P.C. It does not mean that the surety was discharged. As a matter of fact in accordance with the contents of surety bond and also the order under which the surety was furnished the surety was liable to pay the amount of decree if the objections would not be accepted and the judgment-debtors would fail to pay the decretal amount The only requirement was that the objections should not be accepted or were dismissed no matter the dismissal took-place as a result of voluntary withdrawal or under the order of the Court. In this case the objection petition was withdrawn which would obviously mean that the same was dismissed as not pressed. By not imposing costs for wasting the time of the Court the Court did not exonerate the respondent surety from Ms liability under the surety bond. The liability would arise under the contract with the decree-holder and undertaking to the Court given in terms of the order passed by the Court. Having given undertaking and agreed to pay the surety amount in the event of default of the judgment-debtors the respondent/surety could not under law be allowed to escape the consequences by raising frivolous or flimsy objections. The plea raised being totally devoid of merit could not have been entertained or allowed. Section 145 of C.P.C. provides that where a person become liable as a surety for the performance of a decree or a part thereof, the decree can be executed against him to the extent to which he had himself rendered personally liable, in the manner provided for the execution of decree and such person shall for the purposes of appeal be deemed to be a party within the meaning of Section 47 of C.P.C. In this view of the matter the appellant could successfully enforce the decree against the judgment-debtors or in the alternative against the guarantor. The liability of the guarantor being co­extensive with the judgment-debtors the decree-holder had a right to enforce the decree straightway against the surely. The objection petition on the face of it was frivolous and liable to be dismissed.

2. There is substance in the submission of the learned counsel for the appellant that second objection petition was not maintainable. It is observed that the respondent earlier raised similar plea by filing objection petition against the order of attachment of property with was dismissed by the executing Court. In view of the earlier decision the second petition was not otherwise maintainable, 11. As regards the argument about competency of appeal, it issssss observed that under Section 145 of CPC the surely is deemed as party and objector with meaning of Section 47 of CPC and thus appeal lies U/S. 104 of CPC against order deciding objection regarding executibility of decree against surely. The objection as to the executability of decree or discharge thereof having been raised by the surety and allowed by the executing Court the order would be appealable under Section 104 of C.P.C. The objection is untenable and is accordingly repelled. As to the objection that the decree was under cloud it is observed that there is no stay against the execution of the decree and, therefore, mere pendency of application under Section 12(2) of iC.P.C. wiU not suspend the operation of the decree passed by the Court of I competent jurisdiction.

3. Regarding the argument that default on the part of judgment- debtors has to be first determined it is true that the recovery of the amount against the surety would only take place if the judgment-debtors have been found to be defaulters in discharging liability under the decree. It is not the case of the respondent that the judgment-debtors have paid the decretal amount or a part thereof. This being so the judgment-debtors are admittedly defaulters and, therefore, the appellant could ask for execution of the decree against the surety. Be that as it may if the judgment-debtors have made any payment of the respondent has any proof of discharge of liability or a part thereof by the judgment-debtors he can raise objection before the executing Court which executing Court will positively attend and determine on merit In the absence of any proof as to the discharge of liability by the judgment- debtors the executing Court can legally proceed against the surety for the recovery of the amount to the extent of decree.

4. For the reasons above the impugned order of the learned Civil Judge suffers from material illegality, perversity of reasoning and error of jurisdiction hence the same cannot sustain.

5. Resultantly thus appeal succeeds, the impugned order is set aside and the objection petition filed by the respondent is dismissed. The case is sent back to the Court for further proceedings on the execution petition in accordance with law.

(A.A.J.S.) sssssssssss Appeal accepted.

PLJ 2000 Lahore 80 [Multan Bench Bench]

Present: bashir A. mujahid, J.

MUHAMMAD DIIDAR HUSSAIN and another-Petitioners

versus

CIVIL JUDGE/JUDICIAL MAGISTRATE SHUJABAD DISTRICT MULTAN and 3 others-Respondents

W.P. No. 8754 of 1999, heard on 30.9.1999.

Criminal Procedure Code, 1898 (V of 1898)-

—Ss. 156, 167, 169, 170, 173 & 190-Pakistan Penal Code, 860 (XLV of 1860), S. 302-Constitution of Pakistan (1973), Art 199~Complainant of murder case, during investigation was found to have himself committed murder of his brother while petitioner was involved falsely in that case-­Judicial Magistrate not only refused physical remand of accused (complainant) but ordered his discharge-Validity-Provision of S. 156 Cr.P.C. conferred statutory right to Police to investigate circumstances of alleged cognizable crime without requiring any authority from judicial authorities-Judiciary should not interfere in such statutory right, of Police-Only two options were available to Magistrate either to grant remand or to decline the same for reasons to be recorded and sending accused to judicial lock up; he had no authority or jurisdiction "to take cognizance and discharge accused in as much as S. 302 P.P.C was exclusively triable by Sessions Court debarring Magistrate from the same-Magistrate had to send case for trial to Competent Court i.e., Sessions Judge in Case of submission of final report under 8. 169, 170 and 173 Cr.P.C.-Magistrate while passing impugned order had not only exercised his power beyond his jurisdiction but also usurped jurisdiction/authority of Police/Investigating agency-Impugned order discharging accused was declared to be illegal, invalid, coram-non-judice having been passed without jurisdiction-Investigating Agency was directed to continue with investigation of case after associating accused-Judicial Magistrate would pass appropriate order on report if and when submitted by investigating officer in accordance with law.

[Pp. 83 & 84] A, B

PLJ 1996 Lah. 680; PLD 1987 SC 13; PLJ 1994 SC 281 ref.

M/s. Faqir Muhammad Ch. and M. Latif Khokhar, Advocates for Petitioners.

Mr. Khadim Nadeem Malik, Addl. A.G. for Respondents Nos. 1 ro 3. Mr. Sardar Mehboob, Advocate for Respondent No. 4. Date of hearing: 30.9,1999.

judgment

By way of this Constitutional petition order dated 7.9.1999 passed by Cr.il Judge/Judicial Magistrate, Shujabad/Respondent No. 2 whereby remand of Respondent No. 4 asked by the police in a case FIR No. 285/99 dated 7.8.1999 under Section 302/34 PPC, was disallowed and instead he was discharged from the case, has been called in question, having been passed without jurisdiction and lawful authority.

The brief facts of the case are that the petitioners were nominated accused in case registered vide FIR No. 285/99 dated 7.8.1999. They were arrested in the said FIR on 25.8.1999 and remained with the I.O. after getting physical remand for nine days and were interrogated. They were found innocent during the investigation and ultimately the report was prepared for their discharge on 4.9.1999 and was submitted before the Judicial Magistrate, Shujabad/Respondent No. 1, but the same was not allowed and the petitioners were sent in judicial lock up.

1. During the investigation, it was found that Muhammad Saleem, complainant of the case has committed the murder of his brother due to suspicion of illicit relations of bis brother with his wife and the petitioners were involved in the case falsely. Said Muhammad Saleem was arrested by the police and a written request for his physical remand was made to effect the recoveries and for further investigation. The report was placed before the Judicial Magistrate/Respondent No. 2 on 7.9.1999, who not only refused the grant of physical remand but also proceeded to discharge Muhammad Saleem, accused. The order of discharge has been impugned by the petitioners through this writ petition.

2. The learned counsel for the petitioners contends that the case registered under Section 302 PPC was exclusively triable by the Court of Sessions Judge and the Judicial Magistrate had no jurisdiction to discharge the accused. He could either grant the physical remand or could record the reasons for refusing; the same and should have sent the accused Muhammad Saleem in judicial lock-up, Eeliance has been placed on PLJ 1996 Lahore 680 titled Ska-dor Muhammad vs. Zafar Javid Awan, etc. to argue that the impugned order dated 7.9.1999 is illegal and without jurisdiction.

3. The learned Addl. Advocate General has also supported the contention of the petitioners and stated that it was an imperative for the police to prepare the report under Section 173 Cr.P.C. either way which should have been sent to learned Sessions Judge, who has the exclusive jurisdiction to try the offence under Section 302 PPC.

4. The learned counsel for the Respondent No. 3 has opposed the petition and argued! that the opinion of the Investigating Officer was not binding on the learned Judicial Magistrate and he could have passed an appropriate order by refusing the physical remand. The impugned order does not suffer any illegality.

5. I have considered the arguments advanced by the learned counsel for the parties and gone through the record.

6. It is evident from the record that the petitioners were found innocent by the Investigating Agency and the matter was placed before the competent authority for their discharge, but the Magistrate concerned/Respondent No. 1 disagreeing with the report sent the petitioners to judicial lock-up. Police in the meanwhile continued locating/tracing out the actual culprits as it was their obligatory and statutory duty to find out the offender because nothing could have been brought by the complainant party against the present petitioners and even ifthey had submitted the challan before the competent Court and before taking the cognizance by the said Court, nothing was to debar/prevent them to submit subsequent report in supersession of earlier one either on Investigating Officer's own initiative or on the direction of the superior police officers, as expounded in Aftab Ahmad vs. Hassan Rashid and 10 others PLD 1987 SC 13.

7. During the investigation sufficient material had been brought on record of the police regarding the guilt of Respondent No. 4 Muhammad Saleem, rather he had confessed his guilt to have murdered his real brother on suspicion of his illicit relations with his wife. Police had arrested him on 2.9.1999 and remand was obtained till 7.9.1999. Some incriminating material still had to be recovered from him so on the expiry of the remand period, extension in the same for 10 days more was prayed but the Judicial Magistrate/Respondent No. 2 not only disallowed the physical remand but also discharged the accused from the case.

8. Final report had not yet been submitted and the agency had yet to reach at logical conclusion/opinion by acting and performing their duties as provided under the law. Sections 156 to 173 O.P.C. provide the framework for the olice/Investigating Agency to find out the truth and to present the same before Court by way of admissible and acceptable evidence as it was undertaken to protect innocent and never to let guilty escape.

9. Section 156 Cr.P.C. conferred a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by Judiciary. In the case of Malik Shaukat Mi Dogar and 12 others vs. Ghulam Qasim Khan Khakwani and others (PLD 1994 SC 281) their Lordships set aside the order of the High Court whereby periodical reports about the progress of the investigation was called terming the same as interference by Courts in matter of police investigation before submission of the challan.

10. Remand of Respondent No. 4 (suspect) was asked for by the police as some material had to be recovered from him for completion of investigation and under Section 167 Cr.P.C. there were only two options with the learned Magistrate either to grant/allow the same or to decline for reasons to be recorded and sending the accused to the judicial lock-up. He had no authority or jurisdiction to take cognizance and discharge the accused as after amendment in Section 193 Cr.P.C. Section 302 PPC was exclusively triable by Sessions Court debarring the Magistrate from the same. He had to send the case for trial to the competent Court i.e. Sessions Judge in case of submission of final report under Sections 169, 170 and 173 Cr.P.C. as was held in the precedent case law referred to above by learned counsel for the petitioners.

11. While passing the impugned order the learned Magistrate has not only exercised beyond his jurisdiction but also usurped the jurisdiction/authority of the police/Investigating Agency.

Consequently, I accept this petition set aside the impugned order dated 7.9.1999 declaring the same illegal invalid, coram non judice having been passed without jurisdiction. The Investigating Officer is directed to continue with the investigation of the case after associating the accused and the learned Judicial Magistrate will pass an appropriate order on the report if submitted by the I.O. in accordance with law.

(A.A.J.S.) Order accordingly.

PLJ 2000 Lahore 84

[Multan Bench Multan]

Present: CH, LlAZ AHMAD, J.

MUHAMMAD IQBAL PTC TEACHER, GOVT. MAKTAB SCHOOL RAFIQABAD, DISTT. VEHARI-Petitioner

versus

DISTRICT EDUCATION OFFICER (EE) VEHARI and another-Respondents

W.P. No. 4754 of 1999, decided on 26.5.1999. Punjab Service Tribunals Act, 1974 (IX of 1974)--

—-S. 4-Constitution of Pakistan (1973), Arts. 199 & 212-Civil servants-­ Termination of services-Proper forum for seeking remedy—Jurisidction of High Court-Civil servants termination orders admittedly related to terms and conditions of their service, therefore, constitutional petition under Art. 199 was not maintainable by virtue of Art. 212 of the Constitution and S. 4 of Service Tribunal Act 1979--In the interest of justice and fairplay however, copy of writ petition was sent to Education Secretary who would look into the matter personally on humanitarian grounds and pass appropriate order strictly in accordance with law within one month after receiving order of High Court and also submit report to High Court. [Pp. 85 & 86] A, B

1998 SCMR 91; 1992 SCMR 1652; 1996 SCMR 1350; 1998 SCMR 91; 1999 PLC (C.S.) 548; PLJ 1999 SC 64; PLD 1980 SC 22; 1998 SCMR 91;

PLD 1998 SC 387; PLD 1989 SC 506; PLJ 1999 SC 64; 1992 SCMR 365;1994 SCMR 539; 1997 SCMR 167; 1997 SCMR 169 and 1990 SCMR 999 ref.

Mr. Tahir Mahmood, Advocate for Petitioner.

Mr. Khadim Nadeem Malik, A.A.G. for Respondents.

Date of hearing: 26.5.1999.

order

I intend to decide W.P. No. 4755/99; W.P. No. 4756/99; W.P. No. 4757/99; W.P. No. 4758/99; W.P. No. 4759/99; W.P. No. 4760/99; W.P. No. 4761/99; W.P. No. 4762/99; W.P. No. 4763/99; W.P. No. 4764/99 & W.P. No. 4765/99 by one consolidated order as having similar facts and law.

1. The brief facts giving rise to these writ petitions are that the petitioners were appointed as P.T.C. teacher in the year 1983. Respondent No. 2 issued show-cause notice to the petitioners on 1.12.1998 on the ground that the petitioners had been appointed with single order. Subsequently services of the petitioners were terminated by the respondents vide orders dated 4.5.1999.

2. Learned counsel for the petitioners contended that show-cause notice was issued to the petitioners that their appointments were illegal on the ground that they were appointed by one/single order; whereas termination orders reveal that services of the petitioners were not regularised. It is further contended that contents of show-cause notice and termination orders are contradicting each other, therefore, competent authority has not passed the order after applying its independent mind; that the competent authority in case of the petitioners is Deputy District Education Officer whereas the impugned orders have been passed by District Education Officer, therefore, impugned orders were passed by the incompetent authority. He relied upon (1998 SCMR 91); that petitioners should not be penalized by the act of public functionaries; that vested rights have been accrued to the petitioners as the petitioners were appointed in the year 1983; whereas the impugned orders were passed in the year 1999. This fact is sufficient to come to the conclusion that the respondents have passed the orders mala fide against the petitioners. He relied upon (1992 SCMR 1652); (1996 SCMR 350); that writ petition is maintainable even in presence of alternative remedy and relied upon (1998 SCMR 91); that the action of respondents is in violation of Efficiency and Discipline Rules, therefore, impugned orders are not sustainable in the eyes of law and relied upon (1999 P.L.C. (CS) 548). He summed up his arguments that the impugned orders are not speaking orders and are the result of malice and coram-non-judice.

3. Learned AAG., appeared on Court's call and contended that writ petitions are not maintainable by virtue of Article 212 of read with Section 4 of the Service Tribunal Act as the matter relates to the terms and conditions of petitioners. He relied upon Khalid Mehmood's case (PLJ 1999 S.C. 64). He urther stated that petitioners have alternative remedy before the Department to agitate the matter by way of representations/appeals before the competent authority. He summed up his arguments that the writ petitions are not maintainable even if the orders have been passed by the incompetent authority by virtue of Article 212 of the Constitution.

4. I have given my anxious consideration to the contentions of learned counsel for the parties. It is admitted fact that the termination orders are related to the terms and conditions of the petitioners, therefore, writ petitions are not maintainable by virtue of Article 212 of Constitution read with Section 4 of the Service Tribunal Act as the principle laid down by the Hon'ble Supreme Court in Yamin's case (PLD 1980 S.C. 22). It is pertinent to mention here that Yamin's case was decided by Full Bench of the Hon'ble Supreme Court whereas, the case cited by the petitioners' counsel was decided by two Hon'ble Judges of Hon'ble Supreme Court. Even otherwise Sh. Abdul Aziz's case (1998 SCMR 91) is distinguishable on facts and law as the point of jurisdiction was not raised and decided by the Hon'ble Supreme Court. The Hon'ble Supreme Court also considered this proposition of law in Muhammad Latifs case (PLD 1988 S.C. 387) and laid down the principle that the High Court has no jurisdiction to take the cognizance of the matter as is envisaged by Article 212 of the Constitution; thereafter this proposition of law was also considered in Abdul Wahab's case (PLD 1989 S.C. 506). The aforesaid proposition of kw is also supported by the judgment of Hon'ble Supreme Court in Khalid Mehmood's case (PLJ 1999 S.C. 64).

It is pertinent to mention here that Hon'ble Supreme Court has considered Abdul Aziz's case in Khalid Mehmood's case and laid down the principle that the High Court has no jurisdiction to take the cognizance of the matter with regard to the matter of terms and conditions of a civil servant and approved the following judgments:--

(1992 SCMR 366); (1994 SCMR 539); (1997 SCMR 167); (1997 SCMR 169); and (1990 SCMR 999)

The other citation cited by the petitioners' counsel are distinguishable on facts and law. These writ petitions have no merits.

In the interest of justice and fair play, let copy of these writ petitions be sent to Secretary Education, who shall look into the matter personally on humanitarian grounds and pass an appropriate order strictly in accordance jjjwith law, preferably within one month after receiving the order of this Court and also submit report to the D.R. (J) of this Court Disposed of.

(A.A.J.S.) Order accordingly.

PLJ 2000 Lahore 86 [Multan Bench Multan]

Present: maulvi ANWAR-UL-HAQ, J.

BARKAT ALI-Petitioner

versus

STATION HOUSE OFFICER P.S. SADDAR KABIRWALA etc.~Respondent8

Writ Petition No. 7196 of 1999, decided on 16,8.1999.

Pakistan Penal Code, 1860 (XLV of 1860)-

—Ss. 452, 506, 337-H(ii) & 34~-Constitution of Pakistan (1973), Art 199--Quashment of case registered against petitioner alongwith his son, wife and daughter-Dispute related to ownership and possession of house in question-Cross civil suits were pending between parties in Civil Court-­ Petitioner had filed declaratory suit while respondent had filed suit for possession of house in question-Petitioner claimed that dispute between parties being civil in nature, criminal case had been registered maliciously and as such ought to be quashed—Record of Criminal Case brought by Police Officer indicated that in-complete challan had been filed in Court and trial is to commence-Factual background stated by petitioner was borne out on record still Court felt under constraint not to interfere at such stage with investigation being carried on by concerned police-Court conducting trial could delve into present controversy- Petitioner was advised to file application before Trial Court for appropriate relief. [P. 88] A

PLD 1971 SC 677 ref.

Ch. Faqir Muhammad, Advocate for Petitioner. Mian Arshad Latif, Advocate for Respondent No. 2, Date of hearing: 12.8.1999.

order

The petitioner prays for quashment of a case registered against him alongwith his son, wife and daughter, vide FIR No. 79/96 dated 5.4.1996 under Sections 452, 506, 337-H(ii) and 34 PPC. The admitted position is that Mst. Nasim Mai, daughter of the petitioner was married to Muhammad Ishaque, the complainant of the said FIR, who divorced her on 24.12.1995. The dispute pertains to the ownership and possession of a house in the revenue estate of Bilawalpur, tehsil Kabirwala. According to the petitioner, the house belongs to him, where he was residing with his family and the said complainant was residing alongwith him as his 'Khana Damad', After the divorce, the said complainant left the house. The complainant, on the other hand, claims that the house belongs to him and has been illegally occupied by the petitioner and his family. In this back-ground the FIR has been registered with the allegation that the complainant had agreed to sell the said house to one Abdul Jabbar and when on the alleged date of occurrence, he went there to deliver the possession of the said house to the vendee, the petitioner and other members of his family mentioned in the FIR were occupying the house and the petitioner fired shots in the air while shouting that complainant should leave the house.

1. Learned counsel for the petitioner has brought to my attention the certified copy of cross civil suits pending between the parties. The petitioner has filed a declaratory suit while the said complainant/ Respondent No. 2 has filed a suit for possession in respect of the disputed house. Learned counsel for the petitioner insists that this is a civil dispute and the case has been registered maliciously and as-wren ought to be quashed.

2. I have gone through the records brought by the police officer. It appears that an incomplete challan has been filed in Court and trial is to commence. The factual background stated by the learned counsel for the petitioner apparently is borne out on the record, but still I feel under constraint because of the law declared by the Supreme Court in the case of Skahnaz Begum us. Hon'ble Judges of the High Court of Sindh & A Baluchistan (PLD 1971 S.C. 677), which has been consistently followed thereafter to interfere at this stage with the investigation being carried on by the concerned police. It will be more appropriate for the Court conducting the trial to delve into the controversy in question. The petitioner may, therefore, file an application before the learned trial Court for appropriate relief. With this observation, the writ petition is disposed of.

(A.A.J.S.) Order accordingly.

PLJ 2000 Lahore 88 [Multan Bench Multan]

Present: saved najam-ul-hassan kazmi, J. ASHIQ HUSSAIN-Petitioner

versus

NIAZ MUHAMMAD--Respondent

F.A.O. No. 23 of 1991, heard on 29.9.1999.

Cantonments Rent Restriction Act, 1963 (XI of 1963)--

..._s. 17(4) Proviso-Eviction of respondent from shop in question, on ground of personal use-Dismissal of ejectment application by Rent Controller on the ground that notice under S. 17, Cantonments Rent Restriction Act 1963 was not served-Validity-Proviso to S. 17(4) Cantonments Rent Restriction Act 1963, contemplates that if landlord required building which was rented out for running serai, hotel, lodging houses for personal business, he could do so after serving notice of two years upon tenant-Precise objection of tenant was that premises in question, was primarily let out for running hotel-To seek benefit of proviso to S. 17(4) of the Act respondent tenant was duty bound to prove that premises was being used as hotel, at the time of commencement of the Act or that the same was let out for hotel expressly, with consent in writing of landlord-In absence of any consent in writing, tenant could not claim any benefit of proviso-There being no written permission, tenant could not possibly be benefitted by proviso nor could object to maintainability of ejectment application on the plea that notice was not served-Ejectment application rnnld have been treated as notice-Ejectment application having been filed on 6.7.1987, Rent Controller could have decided the same on merit on 17.4.1991 as two years having expired after filing of ejectment application, which being notice, same could be deemed to have been validly instituted-Where pre-mature petition was filed and the same had mature during pendency of case, Rent Controller was not demanded of its power to decide the same on merit—There being sufficient evidence on record to prove bonaflde of landlord, Rent Controller fell in error in ignoring evidence and rejecting plea of personal use on flimsy ground- Order passed by Rent Controller suffered from misreading of record and perversity of reasoning, therefore, same was set aside and tenant was directed to hand over vacant possession of premises to landlord Svithin specified period. [Pp. 90, 91 & 92] A, B & C

1994 CLC 286; PLJ 1998 Kar. 268; 1979 SCMR 534; 1980 SCMR 339 ref.

Syed Muhammad Mi Gillani, Advocate for Petitioner.

Pir Muhammad Asif Rafi-ud-Din Shah, Advocate for Respondent.

Date of hearing: 29.9.1999.

judgment

This judgment will decide F.A.O. No, 23/91 which arises from order, dated 15.4.1991 of the learned Rent Controller, Multan Cantt.

1. Facts out of which this appeal arises are that appellant filed an application U/S. 17 of Cantonment Rent Restriction Act 1963, for the eviction of respondent from a shop, on the ground of personal use. It was claimed that the shop was purchased vide sale-deed, dated 15.12.1986, on purchase, notice dated 14.5.1987 was served upon the respondent who started making payment of rent and that the shop was required by the appellant for his personal use and occupation.

Respondent resisted the petition, claiming that the same was not maintainable as no notice U/S. 17 of the Cantonment Rent Restriction Act 1963 was served for seeking eviction from a hotel. It was added that the petition was premature and that the respondent had made certain improvements in the shop and also that the appellant was not in need of the shop.

1. Points at which the parties were at variance, were transformed in the following issues:-

2. Whether the ejectment application is not maintainable in view of preliminary object No. 1? OPR

3. Whether the ejectment application is premature? OPR

4. Whether the respondent has spent Rs. 50,000/- over the improvement of shoe in dispute. If so. its effects?

5. Whether shop in dispute is required by the petitioner for bis personal use bona fide and in good faith?

6. Relief.

7. The appellant produced in evidence Sarfraz Khan, AW-1, Faqir Ahmad AW-2, Qadir Nawaz AW-3 and while he himself appeared as AW-4. In defence, AH Muhammad Assistant Revenue Superintendent Cantonment Board appeared as RW-1, Imtiaz Ali Tax Clerk RW-2, Shahzad Anwar RW-3, Sabir Ah" RW-4 while respondent Niaz Muhammad appeared as RW-5.

8. The learned Rent Controller Multan Cantt, vide impugned order, dated 15.4.1991 dismissed the ejectment petition, on the ground that notice U/S. 17 of the Cantonment Rent Restriction Act 1963 was not served, and that the appellant failed to prove personal use.

9. Learned counsel for the appellant argued that no notice under proviso to sub-section (4) of Section 17 was required as the respondent did not prove that the property was rented out for running a hotel. Learned counsel submitted that even if a notice was required, the ejectment petition could be treated as a notice and on account of maturity of cause of action, the case should have been decided on merit. It was added that sufficient evidence existed on record to prove bona fide needs.

10. In reply, it was argued by learned counsel for the respondent that notice was mandatory, the personal use was not proved and that the findings did not suffer from any error of law.

11. With the assistance of learned counsel for the parties, the entireevidence was examined. The ejectment application was filed on the grounds that the shop was required in good faith by the appellant, for his personal use. It was his case, that the shop was purchased through a registered sale-deed, dated 15.12.1986, notice dated 14.5.1987 was served upon the respondent who started making payment of rent and that the appellant intended to carry his own business. The defence was that the respondent was running a hotel in the shop in issue and, therefore, without service of a notice under proviso to sub-section (4) of Section 17 of Cantonment Rent Restriction Act, the ejectment petition could not be maintained.

12. The first question to be attended is as to whether the property was rented out for the purposes of running a hotel. Proviso to Section 17(4) contemplates that if the landlord requires a building, which was rented out for running Srai hotel, lodging houses for personal business, he can do so A after serving notice of two years upon the tenant. The proviso also provides that if the building was not being used for the above purpose on the commencement of the Act, or was not let out expressly for any such purpose, it shall not be converted to any such purpose except with the consent in writing of the landlord. Precise objection was that the premises was primarily let out for running hotel. To seek benefit of this proviso, the respondent was duty bound to prove that the premises was being used as hotel, at the time of commencement of the Act or that it was let out, for hotel expressly, with the consent in writing of the landlord. In the absence of any consent in writing, the tenant could not claim any benefit of the proviso. In this case, the respondent did not claim or prove that the shop was let out, expressly for hotel purpose, with written consent of the landlord. Learned counsel for the respondent submitted that the shop was let out, by the previous owner. It was not denied that there was no written consent from the previous landlord or from the appellant. This being so, the plea was based on oral assertion With a view to have the benefit of the proviso, it was mandatory that the respondent should have produced written permission or document from the previous owner/landlord, or from the appellant, to make out a case that the premises was let out, expressly for hotel purpose. In the absence of any written permission, the respondent cannot possibly be benefited by the proviso nor could object to the maintainability of the ejectment petition on the plea that two years prior notice was not served. The learned Rent Controller, was influenced by the evidence, by which the respondent attempted to establish that he was using the premises as a hotel. This evidence was not helpful, for the reasons, that the subsequent user of the property as hotel was not material and in fact it was the basic purpose for which the property was let out which was relevant. Any subsequent conversion of the user by the tenant without the written consent of the landlord could not justify raising of objection to the maintainability of the ejectment petition, Since the respondent could not prove by any valid document that there was written consent, for the letting out of the shop, for hotel purposes, the plea raised was devoid of merit Reference can be mads to "Lt, Col. (Retd.) Muhammad Hassan Safdarvs, Malik Shabbir Ahmed and another" (1994 CLC 286) and "Kamil Khan and another vs. Government of Sindh through Deputy Commissioner, Sanghar and 22 others" (PLJ 1998 Karachi 268 (DB)) where similar view was taken. Even if any notice was required, the ejectment petition itself could have been treated as a notice. Reference can be made to "Aziz Begum vs. Faiyaz Butt" (NLR 1980 Civil (Lah.) 134). This being so, the ejectment having been filed on 6.7.1987, the learned Rent Controller, could have decided the same on merit, on 17.4.1991 as two years having expired after filing of ejectment petition, which being a notice, the ejectment application could be deemed to have been validly instituted. It is a settled rule, that if a premature petition is filed, and the same is matured during the pendency of the case, the Rent Controller is not denuded of its power to decide the case on merit. Reference can be made to "Abdul Razaq vs. Abdul Hamid" (1979 SCMR 534) and "Raj Muhammad and 11 others vs. Hqji Muhammad Zareen and 3 others" (1980 SCMR 339). It is also a rule, that the Rent Controller is competent to mould relief according to the changed circumstances. Reference can also be made to "Ms?. Amina Begum and others vs. Mehar Ghulam Dastgir" (PLD 1978 SC 220).

13. In this view of the matter, the Rent Controller, by treating the petition as a notice, could have decided the main petition on merit instead of non-suiting the appellant on technicalities.

14. As to the plea of personal use, the appellant was excepted to make statement on oath abut the personal need, and if the statement was consistant with the pleadings and nothing extracted in cross-examination,the question of personal use had to be considered in context with the protective clause which provides adequate checks against mala fide eviction. In this case, the appellant did appear in the witness box and deposed that the shop was required in good faith and bona fide manner for the personal use, he was not in occupation of any other shop, he wanted to run the business of 'Tikka Karahi', he was already working with his brother and brother-in-law and that he wanted to have a shop of his own to carry his independent business, as there was some dispute with the brother and brother-in-law. He was cross-examined in detail but the statement could not be shaken. Appellant's statement was also corroborated by the statement of other witness who deposed about his bona fide needs. The statement of AW-4 was consistant with the averments in the petition and the same could not be shaken or rebutted by any evidence worthy of credence. The evidence led by the respondents was mainly for the purpose of showing that the shop was being used as a hotel. It was also claimed that the appellant was running the business with his brother. Mere fact that the appellant was working with his brother would not debar him to have independent business in his own shop. Another plea was that the appellant intended to increase rent although it could not be proved that the intention was increase rent yet in law plea of intentions to increase rent cannot adversely effect the case for personal use, if the bona fide need is otherwise established on the record. Reference can be made to "Shamsul Islam Khan vs. Pakistan Tourism Development Corporation Ltd." (1985 SCMR 1996). There being sufficient evidence on the record to prove the bona fide of the appellant, the learned Rent Controller fell in error in ignoring the evidence and rejecting plea of personal use, on flimsy grounds. The order passed by the learned Rent Controller suffers from misreading of the record and perversity of reasoning.

15. For the reasons above, this appeal is allowed, the impugned order is set aside, the ejectment application is granted and an order of ejectment is passed against the respondent, directing him to deliver vacant possession of the shop to the appellant within three months.

(A.A.J.S.) Appeal accepted

PLJ 2000 Lahore 93

[Multan Bench Multan]

Present: maulvi anwar-ul-haq, J.

Mst. DAULAN alias THERAI and another-Petitioners

versus

SENIOR SUPERINTENDENT OF POLICE, DISTRICT VEHARI and 4 others-Respondents

Writ Petition No. 7214 of 1999, decided on 12.8.1999.

Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--

—S. 10/ll~Constitution of Pakistan (1973), Art. 199~Case of abduction for purposes of Zina registered against petitioners-Petitioners claiming to be married inter se joined investigation wherein they were found to have committed no offence~In subsequent investigation, however, they were found to be guilty under S. 10/11 Offence of Zina (Enforcement of Hudood) Ordinance 1979—Validity-Complamant in his F.I.R. had claimed petitioner lady to be virgin and 18/19 years of age-Subsequently, however,. he explained that she was married to specified person but 'Rukhsati' having not taken police, he had stated that she was 'kanwari'-Malice thus, could not be attributed to process of subsequent investigation-Record indicated that during subsequent investigations petitioner were not joined or they did not join-Relief claimed for constitutional petition as to declaration of subsequent investigations and F.I.R in question as illegal, ultra vires, without lawful authority and quashment of same could not be granted—Subseuqnet investigations, however, having been conducted in absence of petitioners and other accused persons while first investigation had been conducted in accordance with directions of order of High Court of specified date; subsequent Investigating Officers directed to give chance to petitioner and other accused persons to present their side of story and they should record their conclusions after evaluating version of petitioner party and any material which they produce in support of the same.

[Pp. 95] A, B

order

Respondent No. 5, a paternal uncle of Petitioner No. 1 lodged information with the police whereupon a case under Section 10/11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 was registered against the petitioners and others vide FIR No. 105/99 dated 15.3.1999 at P.S. Machhi Wala, District Vehari. The said FIR narrates that Noor Muhammad, the elder brother of the complainant resides with him who has five sons and a daughter (Petitioner No. 1) who is aged 18/19 years and is unmarried; that Petitioner No. 2 lives nearby and has developed illicit relations with Petitioner No. 1 and the former's mother Mst. Satto Bibi used to take Petitioner No. 1 to her house. On 8.3.1999 he found Petitioner No. 1 missing and was told by his wife that MstSatto Bibi had taken Petitioner No. 1 to her house. He started looking for Petitioner No. 1 when Bashir son of Balya and Faiz son of Basra told him that they have seen the petitioners alongwith some other persons going on a Tonga towards Machhiwala. The complainant apprehended that Petitioner No. 1 had been abducted for the purposes of Zina, He further stated that the accused persons had been promising him the return of Petitioner No. 1 hut have refused on the date he filed the report.

1. The matter was inquired into by Muhammad Akhtar, ASI P.S. Sadar, Vehari who found the case to be false videreport dated 6.5.1999. The matter was reinvestigated by Muhammad Afzal, S.I. P.S. Saddar who concluded that the accused persons alongwith the Nikah Khawan are guilty of the offence of committing/abetting the offence of Zina vide report dated 7.6.1999. The matter was once again investigated by Maqbool Ahmad, SHO, P.S. Machhiwala who agreed with the conclusion of Muhammad Afeal, Investigating Officer vide report dated 22.6.1999. The present writ came up before the Court on 2.8.1999. It was averred in the petition that the petitioners are lawfully wedded couple; that in the initial investigation they were found to be innocent; that an allegation was added that Petitioner No. 1 was earlier married to one Hussain s/o. Basara and that she has contracted a second marriage unlawfully. Notice was issued to Respondent No. 3 to produce the record. Today Respondent No. 3 is present with the record and Mr. Khalid Ashraf Khan Advocate has put in appearance for Respondent No. 3.

2. The main contention of the learned counsel for the petitioner is that in the original FIR the complainant who claims to be the paternal uncle of Petitioner No. 1 had mentioned that she is aged 18/19 years and is unmarried. Learned counsel insists that the later allegation is a concoction and the reinvestigation of the matter is mala fide. Learned counsel for Respondent No. 3, on the other hand, urges that a number of witnesses from the area as also the Nikah Khawan who had performed the Nikah of Petitioner No. 1 with Hussain son of Basara had appeared before the Investigating Officer and supported the said version of the complainant party and have been believed in the subsequent investigations.

3. It is true that at a glance the argument of the learned counsel for the petitioners is attractive but on a closer scrutiny of the case files produced by the said police officer I find that right away malice cannot be attributed to the process of investigation carried out by the two Investigating Officers referred to above. I find in the police file an unmarked paper bearing dated 14.5.1999 containing an explanation by the complainant of the case as to bis mentioning Petitioner No. 1 as unmarried. I may not here that the exact word used in the FIR is Kanwari. Now this vernacular word is used to describe a virgin as also an unmarried woman. ib the report dated 14.5.1999 the explanation is that since Rukhsati had not taken place after the Nikahwith Hussain s/o he was treating her as "Kanwari"and that is why he used the said word in the report This explanation although coming on record after about two months of the filing of the report may appear to be rather late but nevertheless it is on the record. The time factor, the effect the intent and the import of said explanation will be more appropriately appreciated and determined by the Court conducting the trial in the case. Another factor I have observed in the file is that during the subsequent investigation the petitioners were not joined or they did not join. Learned counsel for the petitioners had brought to my notice the case of Anwar Ahmad Khan vs. The State and another (1996 SCMR 24) and the noted judgment in the case of Shahnaz Begum vs. The Hon'ble Judges of the High Court of Sindh and Baluchistan and another (PLD 1971 SC 677) defining the parameters within which a Court can act during the course of investigation into an offence by the Investigating Agency. In the light of the said case law I am afraid the relief prayed for in the writ petition as to declaration of subsequent investigation and the said FIR as illegal and ultra vires and without lawful authority and quashment of the same cannot be granted. However, I feel that for some reason subsequently two investigations were conducted in the

absence of the petitioners and other accused persons while the first investigation was conducted in accordance with the directions contained in the order dated 7.4.1999 of this Court in W.P. No. 2881/99. According to kw laid down in the afore-referred judgments this Court can take correction measures and that would not constitute interference with the investigation of the case. Accordingly, I direct the subsequent Investigating Officers to give a chance to the petitioners and other accused persons to present their side of the story before them and they should record their conclusions after evaluating the version of the petitioners party and any material which they produce in support of the same. With these observations the writ petition is disposed of.

(A.A. J.S.) Order accordingly.

PLJ 2000 Lahore 98 [Multan Bench ltan]

Present: sayed najam-ul-hassan kazmi, J. Mst AZRA BIBI-Petitioner

versus

MUHAMMAD ASLAM and others-Respondents

W.Ps. Nos. 441 & 442 of 1999, decided on 21.9.1999.

Family Courts Act, 1964 (W.P. Act XXXV of 1964)--

—S. 5 & Sehed.-Constitution of Pakistan (1973), Art. 199-Suit for jactitation of marriage filed by petitioner was dismissed while that of respondent for restitution of conjugal rights was decreed by two Courts below--Validity--Petitioner in her suit claimed that she was never married to respondent and that she was wife of specified person while respondent alleged in his suit that petitioner was married to him~ Petitioner was, thus, raising plea which was negative in nature and onus would have been discharged the moment she had appeared in witness box and recorded her statement and thereafter, respondent was required to prove existence of any valid Nikah between petitioner aud himself-Perusal of evidence on record would show that respondent had miserably failed to prove any valid Nikah with petitioner-Respondent's statement in Court was contradictory to other witnesses who did not support him nor corroborated his statement-Court's below, thus completely ignored such important aspect of matter which had material bearing on plea raised by respondent-Father and other male members of petitioner's, family were conspiciously missing in alleged marriage of respondent with petitioner while other material witnesses were withheld for reasons not brought on record-No evidence worthy of consideration, thus, existed on record to assume existence of any valid marriage between petitioner and respondent-Petitioner was admittedly bring with specified person as his wife for the last few years which fact was not denied by father of petitioner-Evidence on record, thus, clearly indicated that findings recorded by two Courts below in dismissing petitioner's suit for jactitation of marriage suffered from glaring misreading and mis­ interpretation of evidence and perversity of reasoning, therefore, legally untenable-Petitioner's suit for jactitation of marriage was decreed while that of husband for restitution of conjugal rights was dismissed in circumstances. [Pp.100 to 103] A, B, C & D

Syed AsifRaza Gillani, Advocate for Petitioner.

Malik Muzaffar Qadir Thaheem, Advocate for Respondent No. 1.

Date of hearing: 21.9.1999.

judgment

These Constitutional petitions (Writ Petitions Nos, 441 of 1990 and 442 of 1999) arise out of two suite, one for jactitation of marriage aad the other for restitutions] of conjugal rights.

1. Petitioner Mst. Azra Bibi filed a suit for jactitation of marriage, claiming that she was married to Allah Bakheh soa of Shakm on 27.9,1903 in accordance with tenets of Islamic law which marriage was duly registered, as per requirement of Muslim Family Laws Ordinance, 19tJ" aad that Respondent No. 1 Muhammad Aslam, by involving her husband in a false criminal case, got arrest of the petitioner and her husband and in the custody of the police, forcefully obtained thumb-impressions on some papers which were subsequently claimed to be a Nikahnama and on the feasts thereof respondent started claiming marriage with the petitiooer though In point of fact she was never married to Respondent No. 1.

2. Respondent No. 1 contested the suit of the petitioner and also filed a suit for restitution of conjugal rights.

3. The two suits were consolidated by the learned Judge, Family Court, consolidated evidence was recorded and videjudgment dated 5,5.1998 suit for jactitation of marriage was dismissed while the suit for restitution of conjugal rights was decreed. Appeals filed by the petitioner met the same fate vide judgment dated 8.12.1998 of the learned Additional District Judge, Multan.

4. Learned counsel for the petitioner argued that the marriage of the petitioner with Allah Bakhsh was admitted while the marriage claimed by Muhammad Aslam respondent was disputed and that there was no evidence worthy of consideration to assume marriage between petitioner and Respondent No. 1 but learned Courts below without examining the evidence in proper perspective declined the relief to the petitioner for extraneous reasoning, ignoring that the petitioner was living with Allah Bakhsh since the marriage with him and that under the law if there were two claimants of marriage the one with whom the wife was living should be accused as a lawful husband.

5. Learned counsel for Respondent No. 1 defended the impugned judgments and maintained that there was no marriage of petitioner with Allah Bakhsh and that the learned Courts below correctly dismissed the suit of the petitioner.

6. Muhammad Ramzan, father of the petitioner, present in the Court on being asked did not deny that the petitioner was living with Allah Bakhsh since 1993 and that neither he nor any of his sons, witnessed the alleged marriage claimed by Muhammad Aslam (Respondent No. 1).

7. The submissions made by the learned counsel for the parties have been considered in the light of the material annexed with these petitions.

8. Deeper study of the judgments rendered by the learned Courts below give an impression that the two Courts concentrated more on the marriage of the petitioner with Allah Bakhsh instead of examining the evidence to find out if any marriage had ever taken place with Respondent No. 1. Another error committed by the Courts below is reliance on the alleged report of the expert as to the thumb-impressions, little appreciating that the thumb-impression was not material as the petitioner had herself stated that the thumb-impressions were obtained on blank papers, forcefully during the police custody when she alongwith her husband was arrested and this was her case that on the basis of such thumb-impressions Respondent No. 1 had started falsely pretending marriage with the petitioner.

9. The petitioner's suit was that she was never married to Respondent No, 1 and that she was wife of Allah Bakhsh. On the contrary Respondent No, I was making positive assertion that the petitioner was married to him. it was thus a situation where the petitioner was raising a plea which was negative in nature and onus would have discharged, the moment she had appeared in the witness box and recorded her statement and thereafter it would be for Respondent No. 1 to prove the existence of ny valid Nikah between the petitioner and himself. In so far as the marriage between petitioner and Allah Bakhsh was concerned it was an admitted fact. The reason being that the petitioner throughout stated that she was validlyAJ married to Allah Bakhsh. Allah Bakhsh was not a party in these proceedings. This being the position the marriage between petitioner and Allah Bakhsh was admitted fact on the part of petitioner while the alleged marriage between petitioner and Respondent No. 1 was under a serious dispute. In this background if one examines the controversy, it is observed that the respondent was under a heavy onus to establish that he was validly married to the petitioner.

10. Petitioner did appear in the witness box as PW. 1 and deposed that she was wife of Allah Bakhsh, her Nikah with Allah Bakhsh was valid, she produced NikahnamaEx-P.l, admitted her thumb-impression P. 1/1 and clearly stated that she was never marriage to Respondent No. 1. She was lso supported and corroborated by PW. 2 Muhammad Bakhsh son of Sardar. This witness deposed that the father of petitioner (Mst. Azra Bibi) was his maternal brother (son of maternal uncle). In view of the affirmative statement of the petitioner, the onus shifted upon Respondent No. 1 to bring on record all necessary material to prove performance of a valid Nikah.

11. The perusal of evidence of Respondent No. 1 will show that he had miserably failed to prove any valid Nikah with the petitioner. The first important factor is that Respondent No. 1 claims that his Nikah with petitioner took place on 10.4.1992. Nikahnama Ex-D.l was produced where the date of Nikah and registration of marriage is shown as 10.4.1992. Interestingly Talib Hussain who is shown to be witness of the alleged marriage between Respondent No. 1 and petitioner appeared as DW. 3 and stated that the marriage took place in October, 1992. There is hell of difference between April 1992 and October 1992. Matter does not end here. Statement of Ijaz Ahmad the other witness of appointment of Wakeel in Ex.- D,l shows that he claimed that the marriage took place 4^ years before his statement. His statement was recorded on 19.2.1997. If one goes back for 4^ years from 19.2.1997 the date of marriage according to this witness would be 19,8.1992 which too will not be in accord with the month/date of alleged marriage given in Ex.D.l. Respondent No. 1 himself appeared as DW.l and claimed that he was married 4 years before the date of his statement. His statement was recorded on 11.4.1996 and according to him he was married on 11,4.1992. Not only that the date of Nikah in Ex.-D.l is given as 10.4.1992 but also the statement of Respondent No. 1 as DW.l is contradictory to the other witnesses who did not support him nor corroborated his statement. The learned Courts below completely ignored this important aspect of the matter which had material bearing on the plea raised by Respondent No. 1.

12. DW. 1 (Respondent No. 1) while appearing as his own witness stated that on the Nikahnama Ex-D.l firstly he signed, then witnesses signed and thereafter thumb-impression of petitioner Mst. Azra Bibi was allegedly obtained. He admitted that Mst. Azra Bibi never thumb-marked in his presence. Talib Hussain DW. 3 who is alleged witness of the marriage stated that firstly he thumb-marked the Nikahnama and thereafter the petitioner thumb-marked it. Ijaz Ahmad DW. 4 took a different stand. The matter does not clinch here. Nikah Khawan DW. 2 claimed in his statement that he performed the Nikah and obtained signatures of witnesses in his presence. In his cross-examination he stated that he had obtained the thumb-impressions of the parties by going inside the house. On being cross- examined he admitted that he was illiterate, could not right Urdu and he could make very little reading. He admitted that columns 1 to 24 of Ex-D.l were not rilled up by him. He further admitted that the original register ofNikahnama was not produced in the Court nor he had brought it. He did not know Muhammad Hanif Nikah Khawan. He contradicted the earlier stand ofDW. 1 when stated that the parties first thumb-marked the Nikahnama and thereafter the witnesses did the same though DW. 1 (respondent) claimedthat he and his witnesses firstly thumb-marked and thereafter the document was sent to the petitioner for thumb-impression. Talib Hussain DW. 3 in his cross-examination stated that he did not remember what was the amount of dower. This was all about these witnesses who not only suffered from contradictions but also created serious doubt as to the alleged Nikah of Respondent No. 1 with the petitioner. The other witnesses, Faqir Muhammad, Noor Akhtar and Muhammad Zafar were not produced. It is also interesting to note that the father of the petitioner or the brother of the petitioner who were alive at that time were not shown to be either Vakeel, witness of Vakeel of the bride or a witness to the marriage, which makes the plea of marriage between petitioner and Respondent No. 1 more doubtful. It was thus a case in which Nikah Khawan on the face of it was not making any truthful statement, there was a big difference of the date and month of the marriage, claimed in the Nikah nama and deposed in the statements of DWs 2 to 4. Even in this regard there was contradiction between respondent's own stand and the stand of his witnesses. There were serious material contradictions as to the happening of other events in the four statements. There was a conspicuous missing of father and male member of the family of the petitioner in the alleged marriage of Respondent No. 1 while other material witnesses of Nikah nama was withheld for the reasons not brought on the record. In this situation there was hardly any evidence, worthy of consideration to assume of existence of any valid marriage between petitioner and Respondent No. I. It is also important to note that admittedly the petitioner is living with Allah Bakhsh since 1993 when she was married ito Allah Bakhsh and this fact was not denied by her father while appearing C|in Court. In this backdrop and the circumstances noticed supra, there is 1 substance in the submissions of learned counsel for the petitioner that jthe presumption of valid marriage will be in favour of petitioner and Allah Bakhsh. In this regard learned counsel got support from certain observations in the following quotations from Articles 1431 (531) and 1433 (533), Section I, Chapter IV of Fatawa-i-Kazee Khan Relating to Mahomedan Law, Volume I:-

1431 (531)., "An if each of them establishes proof by witnesses, to the effect that the woman belongs to him, and if the woman is in the hands of one of them, then the Kazee shall decree her to the man in possession."

"And if both of them establish proof by witnesses regarding marriage, and neither of them fixes the time of the marriage; then, if (father both of them have brought witnesses) the woman admits marriage with one of them, the Kazee shall decree her to the man in whose favour the admission is made; And some have said that the Kazee shall decree her to the person in whose favour she has made the admission; because the admission of the woman in favour of one of the two husbands is tantamount to possession by that husband; because if both of them have established proof by witnesses, whilest she is in the hands of one of them, the Kazee shall decree her to the man in whose hands she is,"

"1433 (533). And if two men claim to have married one and the same woman, and one of them has had intercourse with her, but she is living in the house of the other, then Sheikh Ool Imam Aboo Bakar Mahomed, son of Fuzul, says, that the owner of the house (in which the woman lives) is to be preferred."

1. In this view of the evidence on record the findings recorded by the learned Courts below suffer from glaring mis-reading, non-reading and misinterpretation of the evidence and perversity of reasoning and therefore, the same are legally untenable.

2. For the reasons above, these writ petitions are allowed, the judgments of the learned Courts below are declared to be illegal and without jurisdiction and are accordingly set aside. In result the suit for jactitation of marriage filed by the petitioner is decreed while suit for restitution of conjugal rights is dismissed.

(A.A. J.S) Petition accepted.

PLJ 2000 Lahore 103

[Multan Bench Multan]

Present: mrs. FAKHAR-UN-NlSA KHOKHAR, J.

ABDUL REHMAN and 3 others-Petitioners

versus

MUNICIPAL COMMITTEE, SHUJABAD through its CHAIRMAN and 3

others-Respondents

W.P. No, 7433 of 1999, decided on 31.8.1999.

Punjab Local Government Ordinance, 1979 (VI of 1979)--

—Ss. 68 & 69-Constitution of Pakistan (1973) Arts. 37 & 199-School established over waqf property-Demolition of schools and construction of shopping Plaza in place of those schools-Validity-Right to get education and enlightenment through education and knowledge is a fundamental right of every citizen-Basic law is that when a land was ear-marked or was being functioned by a welfare institution, whether the same was school or hospital, same could not be converted or allotted to any other scheme in as much as the same was meant for public purpose-Place where school in question was functioning could not be converted into shopping Plaza as the same was being used for the last 110 years as a school and would remain as a school having been donated for that purpose—Resolution of respondent whereby such place was to be converted for shopping plaza was not only violation of fundamental rights as guaranteed by the constitution, but also against public interest-­Impugned resolution was, thus, set aside being contrary to fundamental rights of citizens of Pakistan and also contrary to law relating to conversion land which was being run by a welfare institution i.e., school, to any other scheme or commercial plaza-Court also set aside tender published in daily newspaper in lieu of resolution for sale of building material and directed respondents and education authorities that building of school in question be reconstructed.

[P. 106] A, B & C

Sh. Faheem Ahmad & Mr. Mqjeeb-ur-Rehman Hashmi, Advocates for Petitioners.

Mr. Khadim Nadeem Malik, Addl. A.G. Punjab for Respondents. Mirza Aziz Akbar Baig, Advocate for Municipal Committee. Date of hearing: 31.8.1999.

judgment

This case be considered as admitted case.

1. Brief facts of the instant writ petition are that the petitioners being residents of Shujjabad City and are aggrieved persons as their children are studying in different classes in Municipal Committee Primary School for boys and girls near Railway Gate, Shujjabad and Municipal Committee Primary School for boys near Committee Mosque Gulistan, Shujjabad girls were studying in Girls School which building is taken over for construction of Model School for Boys have filed the instant writ petition. Their grievance is that the above said schools are being run for the last more than 50 years which were established upon the waqf property and are being managed by the respondents U/Ss. 68 and 69 of the Punjab Local Government Ordinance, 1979. The respondent Municipal Committee, Shujjabad through its Chairman moved a resolution No. 11 dated 16.1.1999 suggesting that both the above said schools shall be merged into a Boys Model School and two other Girls Primary Schools be merged into Girls Model School and shifted to the building of Municipal Committee Girls Primary School near Mosque Gulistan and the Girls Primary School be shifted and merged into another Girls Primary School situated at about 2\kilometers away from the present Girls Primary School. In lieu of their resolution the Municipal Committee through its Chairman got two buildings of Boys Primary Schools vacated and resolved to construct two shopping centers in place of these two schools and in this way published a tender notice in the daily newspaper for the auction of building material.

2. Contentions of the learned counsel for the petitioners are that population of Shujjabad Town is more than sixty thousands and the present schools are already in-sufficient proportion to the population of the area although the people have demanded more schools in the town. The Proposed resolution is passed without lawful authority under extraneous consideration to satisfy the ill designs of certain persons who want to take benefit through conversion of the school into plaza upon the site which is meant for school and the school, has already been running and functioning for the last about 50 years as one of the Hindus has given in waqf his property for school. This resolution is also a clear violation of Sections 68 and 69 of the Local Government Ordinance, 1969 and against the interest of the people at large, therefore, the Resolution No. 11 dated 16.1.1999 adopted by the Municipal Committee respondent be declared as illegal and without jurisdiction and even the tender issued on the basis of that resolution also be directed to be dropped and the Municipal Committee be restrained to construct shopping plazas on the site.

3. Learned counsel for the Municipal Committee submitted that the resolution is unanemously accepted by the house of Municipal Committee and the Councillors are not made party to it. The instant writ petition is not bonafidely instituted as a civil suit titled "Muhammad Saleem Akhtar Qureshi vs. Municipal Committee is pending adjudication before the Court of general jurisdiction, U/S. 153 of the Punjab Local Government Ordinance, 1979 the Government can suspend any resolution, therefore, the instant writ petition is not maintainable. Infact the Municipal Committee wants to merge two schools into one Boys Primary School and construct plaza on the demolished schools to get income to run these schools. The building of the Municipal Committee Primary School for Boys Railway Gate is 110 years old and it is in delepidated condition and it can drop any time. The expenditures of the school are Rs. 8,18,400/- and the students are 287. The expenses of Rs. 13,06,550/- show that there is no justification to run these schools, therefore, a new Model school is being build which will be free of fee and the books will also be supplied to the students who cannot bear the expenses of ducation. The expenditures to bear these expenses can only be met while building plazas on the place of schools.

4. From the perusal of record I have come to know that this Court appointed a local commission to inspect the building of the Municipal Committee Boys Primary School Railway Gate and Municipal Committee Boys Primary School near Mosque ommitteewala. Besides these two schools the Girls High Schools' building has been demolished by theMunicipal Committee and it is now being built for Boys Model School. Local Commission has placed on record copy of the Resolution No. 14 which is passed for building of Municipal School by the Committee and Resolution No. 11 is about merger of two Boys Schools into Boys Model School and two Girls Primary School into one Girls Model School. Annex:F is a report of the Assistant Education Officer about the building of the Boys Primary School Railway Gate to be in a dangerous condition, annex"H is another report as the place being congested and dirty. Report of the Local Commission s that he has visited the spot on 24.8.1999 in the presence of parties. Both the schools are situated in the most congested area of Shujjabad. Boys Primary School No. 1 and Boys Primary School No. 2 are on the left and right side of the main bazar. The building of Boys Primary School No. 1 is 120 years old, made of mud and kacha bricks and its condition is very delepidated and dangerous. Adjacent, to this new building a 22 rooms school is under construction and in this school both the schools will merge while the building of Boys Primary School No. 2 is 20 years old and it is made by pacca bricks but the floors are not cemented and it is not in such a condition to be demolished it, can only be renovated. The Girls Primary School has been demolished. The proposed place of ths Girls Primary School is measuring 6 Kanalsand 3 Marias which is \ kilometers away from the main chowk and city and is under process.

5. I have heard the learned counsel for the parties. Shujjabad being a backward place with the population of sixty thousands need more schools as these areas generally suffers from illiteracy and poverty. The right to get education and enlightenment through education and knowledge is the fundamental right of every citizen. The basic law is when a land is airmarked or is being functioned by a welfare institution whether it is a school or hospital cannot be converted/or allotted in any other scheme since it is meant for public purpose.

6. Learned counsel for the petitioners has produced a photo-state copy of mutation whereby a non-muslim has donated his land for the construction of school Railway Gate which will be demolished ultimately as its building is in a very poor condition and there is every likelihood of its falling to the ground but the land in no way can be converted into shopping plaza as it is being used for 110 years as a school and it will remain as a school. The impugned resolution is not only a violation of the fundamental rights as granted by the Constitution of Islamic Republic of Pakistan, 1973 but also entirely against the public interest. It is unfortunate to note that a non-musiim is donating his property for functioning of a school and the muslim representatives of sixty thousands of people are converting the same to the building as plaza.

7. Therefore, I accept this writ petition, set aside the impugned resolution No, 11 being contrary to the fundamental rights of citizens of Pakistan, also contrary to the law relating to the conversion of land which is being run over by a welfare institution i.e. a school, to any other scheme or commercial plazas, also set aside the tender published in the "Daily Nawa-e-Wao,t" in lieu of the resolution for sale of building material and direct the espondents and toe education authorities that the building of the Municipal Committee Primary School for boys railway gate be demolished and it be re­ constructed as a Girls High School. So far as the other Municipal Corporation Boys Primary School near mosque Committeewala is concerned, according to the report of the local commission the building only needs renovation. This school shall remain as a boys Primary School and the respondents and the relevant authority may renovate the same. So far as the building of New Model School is concerned, the respondents may continue building the same but they shall not convert the building or land of both the afore-said schools into plazas.

8. There are hundreds of people present in Court and they unanimously submit that they also want to raise funds on self finance basis to get the school of girls reconstructed and re-build and for renovation of the second school near Mosque Committeewala they may raise funds under the supervision of the Municipal Committee and get the High School for girls build on the land of Municipal Committee Primary School railway gate at the earliest opportunity and get the building of Municipal Committee Boys Primary School near mosque Committeewala renovated.

(A.A.J.S.) Petition accepted.

PLJ 2000 Lahore 109

Present: ghulam mahmood qureshi, J.

MUNAWWAR JAMIL-Appellant

versus Mst. NOSHI (NISHAT) GILLANI and 3 others-Respondents

F.A.O. No. 188 of 1998, heard on 5.4.1999.

(i) Civil Procedure Code, 1908 <V of 1908)-

—-O.XXXIX, Rr. 1, 2-Copyright Ordinance (XXXIV of 1962) Ss. 17 & 65-- Infringement of Copyright-Entitlement to grant of interlocutory relief-­ Three essential ingredients, which were necessary for grant of interlocutory relief i.e. prima facie case, balance of convenience and irreparable loss were missing, therefore, order passed by Additional District Judge does not suffer from any illegality or infirmity-Plaintiff was, thus, not entitled to any interlocutory relief. [P. 113] C

PLD 1977 Lah. 687; PLD 1967 Lah. 967 ref. (ii) Copyright Ordinance, 1962 (XXXIV of 1962)--

—-Ss. 6,17 & 65--West Pakistan Civil Courts Ordinance (H of 1962), S. 6(2)- Jurisdiction under Copyright Ordinance 1962-Adjudication by Additional District Judge-Competency-Provision of S. 6(2) Copyright Ordinance 1962, indicates that District Judge could assign his functions to Additional District Judge who while discharging those functions would exercise same powers as those exercised by District Judge-District Judge under S. 15, West Pakistan Civil Court's Ordinance 1962 can by written order direct that any Civil business cognizable by bis Court and the Courts under his control would be distributed among such Courts in such manner as he thinks fit-District judge and Additional District Judge can both hear cases in original jurisdiction-If District Judge was assigned his functions which were vesting in him as judge of District Court i.e., Principal Civil Court of original jurisdiction, then Additional Distric Judge would also have the same powers in exercise of functions assigned to him-Hearing of case under Copyright Ordinance, 1962, by Additional District Judge was, thus, valid and within his powers. [P. Ill] A

(lit) Copyright Ordinance, 1962 (XX3OV of 1962)--

—Ss. 17 & 65--Infringement of Copyright-Plaintiffs acquiescence--Effect--Averment in plaint clearly showed that infringement of plaintiffs right was in his knowledge and rather be acquiesced in said infringement-Plaintiff, therefore, was not entitled to question the same by invoking jurisdiction of Court- Complained of material having been got published y defendant before the same was got published subsequently by plaintiff, he could not complain of copyright infringement in circumstances.

[P. 112] B

Rana Farman Ali Sabir, Advocate for Appellant.

Mr, Faisal Hanif Chaudhry, Advocate for Respondents.

Date of hearing: 5.4.1999.

judgment

This appeal has been directed against the order dated 20.7.1998 through which application under order 39 Rules 1 and 2 read with Section 151 C.P.C. for grant of temporary injunction, was dismissed.

1. The appellant instituted a suit for declaration and permanent injunction under the Copy Right Ordinance & Act The brief facts relevant for disposal of the present appeal as averred by the appellant are that the appellant/plaintiff is author of book published as titled "DEKHO YEH MERAY ZAKHAM HAIN" and the said book has been published by Al-Hamad Publications on 5.5.1998 and is available in the Market for sale since then. It is further averred that in the end of May, 1998 the appellant/plaintiff came to know that the respondent/Defendant No. 1 trying to publish a book titled "UDAS HONAIY KE DIN NAHEN HAIN" wherein she also included 47 poems and lyrics which is the poetry of the appellant/plaintiff and which has already been published in his above titled book "DEKHO YE MERAY ZAKHAM HAIN". Whereupon the appellant/plaintiff served a legal notice to Respondent No. 1 and Abbas Tabish and Ahmad Jamal-ud-Din owner of Al-Razzaq publications/distributors on 25.5.1998 through which they were requested not to publish the poetry of the appellant in the name of Respondent No. 1. It is further averred that Respondent No. 1 also served a legal notice to the appellant on 27.5.1998 and alleged that the appellant alongwith Safdar Hussain, Proprietor of Al-Hamad Publications on the alleged piracy regarding the book of Respondent No. 1 and infringing the copyrights which she attained under the law. It is further alleged that after receiving of the notice Respondent No. 1 got printed her book in the last week of May, 1998 but the printing date shown on the book was March, 1998 which was back dated and in her above said book Respondent No. 1 copied about 47 poems and lyrics o the appellant which has already been published in his book titled 'DEKHO YE MERAY ZAKHAM HAIN". Respondent No. 1 filed the written statement and also reply to the application filed by the appellant under Order 39 Rules 1 and 2 read with Section 151 C.P.C. Wherein she denied the contents of the plaint and also the application for interim injunction. The learned trial Court vide its detailed order dated 20.7.1998 dismissed the application of the appellant for grant of temporary injunction. Hence this appeal.

2. In response to pre-admission notice, Mr. Muhammad Hanif Chaudhry, Advocate has entered appearance on behalf of the respondent. The case has bees heard at some length and the same is being decided as notice case. Learned counsel for the appellant has contended that the Addl. District Judge under Section 85 of the Copyright Ordinance, 1962 is not competent to adjudicate upon the matter and only the District Judge has got jurisdiction under Copyright Act to adjudicate upon the matter. He further contended that the Respondent No. 1 did not deposit the book in the office of the Director General Public Relations Press Branch, Lahore Department of Govt. of Punjab whereas the appellant has deposited his book to the said department 9.5.1998 and in this way the respondent has violated the mandatory provisions contained in Registration of Printing Press andPublication Ordinance, 1990, The prayer made by the appellant is to the effect that the respondents may be restrained from printing, publishing and selling the next/further edition of the book \Udas Honay Key Din Nahain Hain" in any manner In future till the final decision of present appeal and suit. Learned counsel for the appellant, during arguments, has also referred to page 175 of the Moon Digest of June, 1998 wherein it is mentioned that in both the books "DEKHO YE MERAY ZAKHAM HAIN" and "UDAS HONEY KAY DIN NAHEIN HAIN" near about 40 similar had been published.

3. Conversely, learned counsel for the respondent has contended that due to some dispute between the Writer and Printer Publisher of Al- Haraad Publications, Mr. Safdar Hussain who was interested for publishing her book and negotiation to publish the same failed, the appellant in collusion with the above said publisher and in order to blackmail Respondent No, I instituted the present suit. He further contended that the appellant has got no case and the order passed by the learned trial Court is perfectly just and correct.

4. I have heard the learned counsel for the parties and have also perused the record. The contention of learned counsel for the appellant that under Section 65 of the Copyright Ordinance, 1962 only District Judge is competent to adjudicate upon the matter and not the Addl. District Judge, has got no force. Section 6(2) of the West Pakistan Civil Courts Ordinance indicates that the District Judge could assign his functions to an Additional District Judge, who in the discharge of those functions shall exercise the same powers as the District Judge. Similarly under Section 15 the District Judge can by a written order direct that any civil business cognizable by his Court and the Courts under his control" shall be distributed among such Courts in such manner as he thinks fit. Section 17(1) of the said Ordinance II of 1962 contemplates that the District Judge and the Addl. District Judge both can hear cases in original jurisdiction. If the District Judge is assigned Ms functions which are vesting in him as Judge of a District Court i.e. Principal Civil Court of original jurisdiction then the Addl. District Judge shall also have the same powers in the exercise of functions so assigned to him. Reference may be made to Abdul Samad vs. Muhammad Alt and another (PLD 1977 Lahore 687) wherein the Division Bench of this Court has held as under:

"It is to be remembered that the Code of Civil Procedure by itself does not create the Civil Courts. See Dost Muhammad and another vs. Rais Satik and another, These Courts, so far!as relevant for our case, are created by the West Pakistan Civil Courts Ordinance n of 1962. The statute which creates civil Courts also makes certain provisions quite new and different from those of the Code of Civil Procedure in the matter of assignment of functions by the District Judge or the distribution of his business to Additional District Judge (on which the Code of Civil Procedure is rather quite silent or not comprehensive).

1. The points raised by learned counsel for the appellant, therefore, in the light of the above discussion has no force. In para 7 of his plaint the appellant has mentioned as under:

"That the Defendant No. 1 wrote many letters to plaintiff from time to time to write the poems and lyrics on specific subjects for her which she claimed as her poetry. These letters shows that the defendant No. 1 is not a poetess actually behind her poetry plaintiff is actual poet of said poetry which was published in the name of Defendant No. 1."

The averment in the plaint clearly shows that so called infringement of the appellant's rights was in his knowledge and rather he acquiesced to the said infringement. In PLD 1967 Lahore 967, Begum Zainab Tiwana's case a Division Bench of this Court has held that a party which has acquiesced in an erroneous order or irregular proceedings or even defective jurisdiction is not entitled to question it subsequently by invoking a high prerogative jurisdiction. The Book of Mst. Noshi Gillani, Respondent No. 1 "UDAS HONAIY KE DIN NAHEN HAIN" was published in March, 1998 whereas the book of Munawwar Jamil, appellant came in market in May, 1998 and it appears that the dispute relates to the publication of second edition whereas from the pleadings of the parties it appears that the appellant is aggrieved of the publication of the book "UDAS HONAIY KE DIN NAHEN HAIN" written by Respondent No. 1. The provisions contained under Section 60(2) of the Copyright Ordinance, 1962 reads as under:

"Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author or the publisher, as the case may be, appears on copies of the work as published, or in the case of an artistic work, appeared on the work when it was made, the person whose name so appears or appeared shall, in any proceedings in respect of infringement of copyright in such work, be presumed, unless the contrary is proved to be the author or the publisher of the work, as the case may be."

1. The bare reading of the above section shows that in the present case three essential ingredients which are necessary for grant of interlocutory relief i.e. prima facie case, balance of convenience and irreparable loss are missing so the order dated 20.7.1998 passed by the learned Addl. District Judge does not suffer from any illegality or infirmity. This appeal is devoid of any force and the some is dismissed.

i A.A.) Appeal dismissed.

PLJ 2000 Lahore 113

Present: bashir A. mujahid, J.

ABDUL HAMEED-Petitioner

versus

Mr. MUHAMMAD TAMAR HAYAT GONDAL

MAGISTRATE SECTION 30 BHALWAL DISTT. SARGODHA

and another-Respondents

Writ Petition No. 2978/97, heard on 19.5.1999. Criminal Procedure Code, 1898 (V of 1898)--

-—S. 169--Constitution of Pakistan (1973), Art. 199--Cancellation of Criminal Case on Police report-Validity—Accused persons named in F.I R. have not been impleaded as party in writ petition although they were necessary party and passing an effective order in their absence would adversely affect their interest in so Car as they were actual beneficiaries of impugned order and valuable right having been accrued in their favour-Order of discharge however, being administrative order would not be amenable in appeal or revision-There was no bar for filing of private complaint on the same facts by complainant even before the same Court, if it has jurisdiction to try the matter, which has to be decided in judicial proceedings-Petitioner, if so advised, can file private complaint in Court of competent jurisdiction, which if filed must be decided within specified period from the date of its receipt. [P. 114] A

1997 SCMR 304; 1993 SCMR187; PLD 1985 SC 62; 1991 PCr.LJ 1075 ref.

Q.M. Salim, Advocate for Petitioner.

Mr. Bashir Ahmad Ch., A.A.G. for Respondent.

Date of hearing: 19.5.1999.

judgment

Through this writ petition order dated 14.12.1996 passed by the Magistrate for cancellation of case registered vide FIR No. 288/96 under Section 382/452/148/149 PPG and Section 14 of Offences Against Property (Enforcement of Hudood) Ordinance No. VI of 1979, at Police Station Kot Momin, District Sargodha, on police report has been impugned on the ground that the learned Magistrate has passed this order in a mechanical manner without application of his independent judicial mind. Reliance has been placed on Mat. Amtul Mobin olios Mst. Mobin Karim vs. Magistrate Illaqa South Cantt. Lahore (1991 P.O.L.J. 1075).

1. I have considered the arguments of the learned counsel. It has been noticed that the accused persons named in the FIR have not been impleaded as party in the present writ petition. They are necessary party and passing an effective order in their absence may adversely affect their interest as they are actual beneficiaries of the impugned order and valuable right has been accrued in their favour. Although the order of discharge, being an administrative order, is not amenable in appeal or revision petition, yet there is no bar for filing of private complaint on the same facts by the complainant even before the same Court, if it has jurisdiction to try the matter, which is to be decided in judicial proceedings. Reliance is placed upon Muhammad Sharif and 8 others vs. The State (1997 S.C.M.R. 304), ArifAli Khan and another vs. The State and 6 others (1993 S.C.M.R, 187) and Bahadur and another vs. The State and another (PLD 1985 S.C. 62).

2. I am not inclined to proceed any further in the matter in the absence of the necessary parties. The petitioner/complainant, if so advised, may file a private complaint in the Court of competent jurisdiction, which if filed shall be decided within a period of six months from the date of its receipt

This petition stands disposed of accordingly. (A,A.J.S.) Order accordingly.

PLJ 2000 Lahore 114

Present: MUMTAZ ALi MlBZA, J. MUHAMMAD MASCOD-Petitioner

versus

S.S.P. RAWALPINDI etc.-Respondents W.P. No. 928 of 1999, decided on 20.4.1999.

Criminal Procedure Code, 1898 (V of 1898)—

—S. 154-Constitution of Pakistan (1973), Art 199-Registration of criminal case against police officers-High Court did not feel persuaded to direct registration of criminal case against Police Officers for the reason that the same was ultimately going to he exercise in futility-Petitioner's best interest would be served by directing him to file private criminal complaint in Court of competent jurisdiction and to seek justice for himself rather than running after police and begging for justice from them-Even if criminal case.was directed to be registered against police officials by High Court, it has now been well established that High Court could not assume unto itself the role of investigator or to control and regulate investigation by and at the hands of Police-Most efficacious remedy in such situation for petitioner would be to file private complaint rather than directing registration of criminal case against Police officials through the police itself-Petitioner was, however, advised to file private complaint if he so felt against police officer's concerned in Court of competent jurisdiction. [Pp. 115 & 116] A, B

PLD 1978 Lah. 1323 nf. Malik Rob Nawaz Noon, Advocate.

order

The petitioner through the instant Constitutional petition seeks a direction to Respondent No. 2 to register a criminal case against Muhammad Ramzan ASI, Muhammad Ilyas ASI and other Foot Constables of Westridge Police Station on the alleged ground that the said police officials caught hold of the petitioner alongwith his Tractor-Trolly and gave him merciless beating for his refusal to offer them illegal gratification. The petitioner has also alleged in the petition that the aforesaid police officials also resorted to firing at the petitioner with fire-arms and injured the petitioner. It has been alleged in the petition that the aforesaid illegal acts on the part of the said police officials constituted cognizable offences against the said police officials. The petitioner has further alleged that with a view to doing justice to him by registering a criminal case against the delinquent police officials the petitioner approached Respondents Nos. 1 and 2 but that the said respondents paid a deaf ear to the petitioner's request made for the purpose as they were in league with the concerned police officials and were affording them full protection for their illegal acts. The petitioner's learned counsel Malik Rab Nawaz Noon in this background of facts has approached this Court for the afore-sated direction to register a criminal case against the above named police officials.

1. Having heard Malik Rab Nawaz Noon, learned counsel for the petitioner at some length, I do not feel persuaded to direct the registration of the case against the above-named police officials as I am conviced that the registration of the case against the police officials notwithstanding the same is ultimately going to be an exercise in futility. For this view of the law which I take I am fortified by the legal position enunciated in TLD 1978 Lah. 1323' (Mst. Bashiran Bibi vs. SHO P.S. Shorkot and another) in which his Lordship Mr. Justice Muhamamd Afzal Zullah, as his Lordship then was, came to the conclusion that directing registration of a criminal case by the police against the police officials is not an effective remedy for the purpose of the person aggrieved as the police officials who in such an eventuality would be investigating the case against their own fellow colleagues would frustrate and defeat the case in the very first few zimnieswhich the police is bound to record. His Lordship in the circumstances, therefore, was driven to the conclusion that in a situation such as this, the best course is to direct the person aggrieved to file a private complaint before the Court of competent jurisdiction as in his Lordship view, this way, the complainant shall be in a much happier position to control the proceedings of the case before the criminal Court as opposed to the aforesaid position where he shall be a helpless spectator thrown at the whim and the will of the hostile police officials. Much water has flowed underneath the bridges since the year 1978 but there has been no improvement in\ the working of the police hierarchy. Their methods of operation where they become interested and biased continue to be as crued and ruthless as they were way back in 1978. Respectfully following the law as laid down in TLD 1978 Lahore 1323 (supra) 1 am, therefore, of the view that it shall be in the best interest of the petitioner to direct him to file a private criminal complaint in a Court of competent jurisdiction and to seek justice for himself rather than running after the police and begging for justice from them. Even if a criminal case is directed to be registered against the police officials by this Court it has now been well settled by a preponderance of judicial pronouncements that this Court cannot assume unto itself the role of an investigator or to control and regulate the investigation by and at the hands of the police. When such is the situation, the most efficacious remedy for the petitioner is to file a private complaint rather than directing registration of a criminal case against the police officials through the police itself.

2. For all the aforesaid reasons, I am not inclined to issue the writ as asked for. The petitioner may, if he feels so advised file a private complaint in a Court of competent jurisdiction. The Constitutional petition is disposed of with these observations and in the above terms.

(T.A.F.) Order accordingly.

PLJ 2000 Lahore 117 (FB)

[Multan Bench Multan]

Present: IHSAN-UL-HAQ chaudhry, karamat nazis bhandari and mian saqib nisar, JJ.

MIAN ARIF SAID-Petitioner versus

REGISTRAR LAHORE HIGH COURT LAHORE and others-Respondents

W.P. No. 18001 of 1998, heard on 1.4.1998.

Legal Practioners and Bar Council Act, 1973 (XXXV of 1973)-

—S. 27(c)-Constitution of Pakistan (1973), Art 199(5)--Administrative or consultative order of High Court-Competency of writ petition to challenge such orders-Petitioner's application for licence to practice as advocate of Lahore High Court was declined by Punjab Bar Council for the reasons that High Court in terms of S. 27(c), Legal Practitioners and Bar Council Act 1973 had not granted requisite approval-Validity-­ Judicial orders of Supreme Court and High Court on jurisdictional plane were already protected from exercise of writ—Administrative/executive or consultative function/orders and acts have also been saved under sub- Article (5) of Article 199 of the Constitution-Plain reading of sub-Article (5) of Art 199 and settled rules of interpretation would indicate that High Court cannot be deemed to be conferred with two distinct characters i.e., one judicial, which is immune from writ and the administrative one which is amenable to writ-All actions, acts and orders made by High Court or Supreme Court or any judge thereof, in exercise of powers and functions in the office, could not be subjected to writ-Under S. 27(c) Legal Practitioners and Bar Council Act 1973, requisite approval is to be obtained from High Court and not from any individual judge of that Court so mentioned by designation or otherwise, not even from any judge performing duties of "Administrative Judge"-Order passed is always of the High Court, not by a judge having character different than of High Court-No individual judge has been mentioned by name or designation to act as a person interms of S. 27-K Legal Practioners and Bar Council Act, 1973, for grant of necessary approval, rather mention of High Court conspicuously dispels any such impression-No writ could be deemed to be competent if otherwise it was untenable only on account of the fact that petitioners had no remedy-No writ was, thus, competent against administrative/consultative order of High Court in terms of Art. 199(5) of the Constitution. [Pp. 123 to 127] A to F

AIR 1994 SC 2599; PLD 1964 SC 64; PLD 1996 SC 324; Black's Law Dictionary 5th edition; PLD 1997 Pesh. 93; PLD 1976 SC 135; 1991 MLD 2546; PLD 1998 SC 103; PLD 1998 SC 161; PLD 1997 SC 426; PLD 1997 SC 12; PLD 1988 SC 103 ref.

Syed SfansoorAli Shah, Advocate for Petitioner. M/s. Rana Muhammad Asif, Addl. A.G., Khawaja Saeed-uz-Zafar, D_A.G. and Malik Azam Rasool, Advocate for Respondents. Date of hearing: 1.4.1998.

judgment

Mian Saqib Nisar, J.--The instant one as also Writ Petitions Nos. 1653/99, 4849/90, 26109/98 and 14168 of 1995 raises, similar legal question, therefore, the same are being disposed of together.

1. The key proposition involved in all these cases is regarding competency of writ petitions in terms of Article 199(5) of the Constitution of Islamic Republic of Pakistan 1973. As in our view, the legality of the actions impugned in these petitions could only be gone into if the answer qua competency of the petitions was in the affirmative, therefore, we have proceeded to decide this issue first

2. The common facts involved in all of the cases except W.P. No., 14168/95 are that the petitioners had applied for a licence to practice as an Advocate in the Lahore High Court, under the provisions of Section 27(C) of the Legal Practitioners and Bar Councils Act 1973 this licence was declined to the petitioners by the Punjab Bar Council for the reasons that the Lahore High Court in terms of the aforementioned provisions has not granted the requisite approval, which was a condition precedent for granting exemption. It may be pertinent to state here, that the reason for refusal of approval, in the respective cases are different Petitioners are aggrieved of the above and have challenged the order/action of this Court, which according to them, is administrative in nature. It has been prayed that the same be declared as illegal and unlawful. The High Court, has been impleaded as respondent through Registrar of the Court, alongwith Punjab Bar Council.

3. In W.P. No. 14168/95, the grievance voiced is, that the petitioner a junior clerk in the High Court establishment, was compulsorily retired, whereas persons junior to him were promoted to the post of senior Clerk. In this petition, inter alia, the "Administrative Judge" and Registrar of this Court have been arrayed as respondents. The relief claimed is, that the order dated 2.7.1991 of this Court, compulsorily retiring petitioner from service, be declared as without lawful authority and jurisdiction. It is further prayed that certain benefits and emoluments depending upon relief, be granted to the petitioner.

4. From the above factual backdrop, it is vivid that in all these petitions, directly or indirectly orders/actions of this Court in exercise of its administrative power (not judicial orders) have been assailed. It is for such reasons that the question of competency of these petitions in view of Article 199(5) of the Constitution has arisen as a fundamental issue.

5. While addressing this Court on the above proposition, Mr. Mansoor Ali Shah Advocate, by making reference to the provisions ofArticles, 175, 202, 203 and 208, submitted that this Court has two distinct and distinguishable characters, one, the judicial and the other administrative. He has frankly conceded, that the judicial determination by the High Court cannot be challenged under Article 199. However, he emphatically maintained that the administrative actions/orders of a Judge of High Court are always amenable to writ and sub-Article (5) of the above Article would not operate as a bar against the exercise of such jurisdiction. In order to build up his arguments, learned counsel stated that under Article 175, the High Court exercises such jurisdiction which has been conferred upon it, either by the constitution or under any law. The constitution, besides its judicial status also envisages the administrative powers/functions of the High Court. Moreover, there are various laws which empower the High Court to exercise certain jurisdiction, both judicial and administrative. Resultantly, there are two spheres in which the High Court exercises its jurisdiction, one which is clearly identifiable and ascertainable from the constitution viz. power to make rule under Articles 202 and 208 and the authority of superintendance and control over the subordinate Courts in terms of Article 203. In addition, and in pursuance of rules made under Article 208, on the administrative side, the High Court, also has the power of recruiting, transferring, terminating services of its officers/ employees and is further vested with the authority of transfers/postings, etc. of judicial officers subordinates to it It is in this context submitted that if while exercising the above powers or performing any other administrative functions, any illegality or error of jurisdiction is committed, then the same can always be assailed before and corrected by this Court in exercise of its judicial functions under Article 199.

6. In support of the above contention, learned counsel has referred to shorter Constitution of India, (twelfth edition) by Durga Das Basu, page 577 and had submitted that the administrative order of the High Court could validly be challenged on its judicial side. He has laid much stress on a case from the Indian jurisdiction reported as AIR 1994 S.C. 2599 the relevant paragraph of this judgment is reproduced as below:-

The order that the first respondent challenged in the writ petition filed by him before the High Court was an order passed by the Court on its administrative side. By reason of Article 226 of the Constitution it was permissible for the appellant to move the High Court on its judicial side to consider the validity of the order passed by the Court High Court on the administrative side and issue a writ in that behalf. In the writ petition the first respondent was obliged to implead the High Court for it was the order of the High Court that was under challenge. It was therefore, permissible for the High Court to prefer a petition for special leave to appeal to this Court against the order on the writ petition passed on its judicial side. The High Court is not here to support the judicial order its Division Bench passed but to support its administrative order which its Division Bench set aside. We find therefore, no merit in what may be termed the preliminary objection to the maintainability of the appeal."

1. Learned counsel further relied upon the case reported as Muhammad Mohsin Siddique vs. Government of West Pakistan, (PLD 1964 S.C. 64) and stated that the order of the administrative Judge of the High Court was challenged in the writ and the question involved was, whether such an order could be so assailed. Writ was disallowed by the Division Bench. But an appeal before the Honourable Supreme Court was accepted, the order was set aside and the proceedings/actions against the appellant (in that case) were quashed.

On the strength of above, it is submitted that the order passed by this Court under Section 27(C) of the Legal Practitioners and Bar Council Act 1973, in refusing to grant the requisite approval to the petitioner for exemption is an administrative order and sub-Article (5) would not come in the way to challenge such an order. Besides, it is also the petitioners' case, that in pursuance of the above provision, the administrative judge of this Court acts as the "persona designate" and not as a High Court, consequently, his action/order are not immune in writ.

1. In writ petition No. 14168/95, by making reference to the HighCourt, Establishment (Appointment and condition of service) Rules, it is empathetically stated, that under the said rule, undoubtedly, the Administrative Judge, has acted as a "persona designata" therefore, in view of the judgments even from our own jurisdiction such an order could be impugned under Article 199. Mr. Hamid Khan, the other learned counsel, who had argued on behalf of the petitioners, also candidly conceded that no writ would be competent against any judicial order of this Court But he was discreet in answering to a question, if the same would be ompetent against an administrative order and stated that if such an order flowed from the administrative/executive functions of the High Court itself, perhaps the writ would not be tenable, but if a Judge of this Court acts under any other law in an administrative capacity, the position would be otherwise. More or less, his contention also is that writ against the Judge of the High Court, would lie if he acts as & persona designataunder the law.

However, Mr. Hamid Khan, has taken a different stance, vis-a­ vis the role of this Court while acting under Section 27(C) ibid which according to him, is not one in its "administrative capacity", but of a consultative nature. He has relied upon the various provisions of the Legal Practitioners and Bar Council Act, 1973 particularly Sections, 10(l)(b), 27(c), 34(a), 37(2)(3), 41(4), 42(2), 44(1) and 45, and argued that the role of the High Court or its judges under the said law has different shades, but under Section 27(C), it is precisely consultative. He by relying upon the case reported as Al-Jehad Trust etc. vs. Federation of Pakistan, etc. (PLD 1996 S.C. 324), stated that the consultative status of the High Court can always be ubjected to the judicial review. In order to elucidate his submissions, he has drawn our attention to the meaning of the word "approval" appearing in Section 27(C) by reference to Blacks Law Dictionary 5th edition and the case reported as Aftab Ahmed Khan Sherpao versus Sardar Farooq Ahmed Khan Leghari and others (PLD 1997 Peshawar 93). As the word connotes "consent", "sanction" "granting", etc, therefore, according to him, it is purely consultative in contract to administrative.

1. In addition to the above, Mr. Hamid Khan, advocate has also made reference to Article 199(1)-C and stated, that for the purpose of enforcement of fundamental right, any aggrieved person may make application on which a direction in writ can be issued to any person or "Authority". According to him, the provisions of Sub-Article (5) of Article 199 only excludes "person" from the ambit of writ jurisdiction and not the Authority, which is a conscious omission, therefore, when an order which is administrative in nature, has been passed by the High Court and violates any fundamental right of a citizen, a writ would be competent, because then the High Court would be acting as an "Authority" and not as a person.

13 In pursuance of a notice issued by this Court under the provisions of Order XXVII-A Khawaja Saeed-uz-Zafar, learned Deputy Attorney General put his appearance, while the High Court was represented by Mr. Azam Rasool, Advocate and for the respondent, learned Addl. Advocate General was before us. They have resisted the propositions propounded by the petitioners' side and forcefully submitted that irrespective of the fact whether this Court acts in either of its judicial, administrative, or in consultative capacity, it is immune from a writ under Article 199 of the Constitution.

1. Analyzing the submissions made by both sides, we find that the judgments relied upon by the petitioners from the foreign jurisdiction have no application to or nexus with the instant cases, firstly because there are no analogous or parallel provisions in the Indian Constitution on the subject and secondly, as admitted by both the counsel for the petitioners that even if the provisions of sub-Article (5) were not there, still no writ would lie against the judicial order of this Court. This also is the view of the Indian Supreme Court where provisions peri materia to sub-Article (5) of our Constitution are not available, meaning thereby that the true purpose of this sub-article is more pointed towards protecting the non-judicial actions/orders/steps of this Court, rather that its judicial orders. Mr Mansoor Ah' Shah laid considerable emphasis on the case reported as PLD 1964 S.C. 64 to contend that our apex Court had also interfered in the orders of the Administrative Judge of the High Court, which was passed by a Division Bench, on a reasoning of competency. Therefore, no immunity to such order can be claimed. On the deeper analysis of said judgment we find no force in this contention. The judgment clearly contemplates, that the order originally passed and assailed, which was the foundation of the case was Quasi judicial in nature, though passed in exercise of administrative function. The administrative Judge in the High Court did not express any positive view on the case, but came to the conclusion that the retention of Mr. Mohsin Siddiqui, in the judicial Department would be of no useful purpose. According to the said judgment, even the order admitting the appeal, was founded on the assumption that what was sought by the petitioner in that case, was not for quashment of order of administrative Judge, but of the proceedings before the District Judge, which had resulted in an order of his removal from service. From the relief granting para of the judgment, it is undoubtedly, clear that by allowing appeal, it was directed that the writ should be issued from the High Court quashing the proceedings before the District Judge, throughout In no way, it was held or could be conceived, that the order of the administrative Judge was declared or held to be amenable to writ jurisdiction. This judgment was based upon the principle, that if the basic order is void, and declared to be so, any further proceedings or order based thereon would have no effect

2. The contention from the petitioner's side that the administrative function of the High Court can be subjected to writ, can lead to ludicrous situations which can be well illustrated.

According to Article 199(5) which is reproduced below: (5) In this Article, unless the contest otherwise requires:-

"person" includes any body politic or corporate any authority of or under the control of the Federal Government, or of a Provincial Government, and any Court of tribunal, other than the Supreme Court, a High Court, or a Court or tribunal established under a law relating to the Armed Forces of Pakistan."

It is clear that the Supreme Court of Pakistan has also been excluded from the definition of the word: "person" clubbed, together with the High Court Undoubtedly, it is inconceivable that the order of the Supreme Court on its judicial side can be challenged before the High Court in writ, irrespective of sub-Article (5). Now if the interpretation of the petitioners that administrative order of the High Court can in writ be challenged is accepted, the same rule would also apply to the Supreme Court, situation may arise where a full Court of the Apex forum takes a non-judicial decision than on the basis of above reasoning a single judge of this Court may issue writ to quash the same which would be just preposterous. This also applies to the administrative decision taken by the Full Court of a High Court, particularly, when the same Judge/Judges are party to such a decision. There can be numerous examples cited to show fallacy of such an interpretation. If the same rule is allowed to prevail, rules made by the Supreme Court, under Article 191 and by the High Courts, under Articles 203 and 208 are not safe from attack and may become subject of every days' litigation leading to a hazardous situation.

1. To our mind the judicial orders of the Supreme Court and the High Court on jurisprudential plane, were already protected from the exercise of writ It is only the administrative/executive or consultative functions/orders and acts which in fact have been saved under this Sub- Article. By plain reading of sub-Article (5) and by applying settled rules of interpretation, High Court cannot be deemed to be conferred with two distinct characters i.e. one judicial, which is immune from writ, and the other administrative which is amenable to the writ

2. Where a Judge of the High Court, acts as a Court, for and on behalf of the Court, it is the Court by itself and has complete and absolute immunity, which is not dependent on the kind of jurisidction, he exercises. It is for this reason, that when a Judge of this Court acts as a Company Judge under the company Laws, or as a Judge dealing exclusively with the bank cases under relevant law he acts as High Court though conferred with a special power to decide the case of a particular nature. His orders are not amenable to the writ

3. In this behalf the following passage from the case reported as PLD 1976 SC 135 can be reproduced with advantage.

'However, the question is whether such proceedings are barred by virtue of the definition of 'persov m given in paragraph (5) of Article 199 which definition excludes the Supreme Court as well as the High Court from its purview. It seem that intention of the Constitution-makers is to exclude, from the writ jurisdiction of the High Court, all actions/acts and orders made by the High Court, or the Supreme Court or by any Judge thereof in the exercise of the functions and powers of his office."

From the above, it is clear enough that all actions, acts and orders made by the High Court or the Supreme Court or any Judge thereof in exercise of the powers and functions in the office, cannot be subjected to the writ. It may be pertinent to state here that the Division Bench of this Court, in a case reported as Messrs Nusrat Elahi, etc. vs. The Registrar, Lahore High Court, etc. (1991 MLD 2546 (Lahore)) while considering the question of the like nature, had come to the conclusion that even the administrative order of the High Court, passed in respect of its employees cannot be challenged by filing Constitutional petition.

1. In a recent judgment reported as Muhammad Ikram Chaudhry, etc. vs. Federation of Pakistan, etc. (PLD 1998 S.C. 103), almost the entire case law on the subject has been considered, discussed and summarized as under.

"There seems to be unanimity of view among the superior Courts on the question that a High Court or the Supreme Court cannot in exercise of its Constitutional jurisdiction under Article 199 of the Constitution interfere with an order passed by another Judge or another Bench of the same Court"

1. Similarly, in Malik Asad Ali, etc. vs. Federation of Pakistan, through Secretary Law and Parliament Affairs, Islamabad (PLD 1998 S.C. 161) it has been held in unequivocal and clear terms that

"While the orders passed by a Judge, in exercise of the jurisdiction of the Court, cannot be called in question under Article 199 of the Constitution, the act of a Judge performed in his personal capacity did not enjoy this protection. This difference between the Judge acting as a Court and a Judge in his personal or individual capacity is not only real but is necessary to preserve."

It has been further held that"

"The actions of the Judge which relate to the performance of his duties and functions as a Judge of the Court or as a member of the Court cannot be brought under challenge under Article 199 of the Constitution before the High Court On such actions of a Judge of superior Court are amenable to the jurisidction of the High Court under Article 199 of the Constitution, which he performs in his personal capacity having no nexus with his official functions as a Judge of the Court."

It is thus abundantly clear that if the order of a Judge of this Court is in terms of his official duty as a Court, obviously, no question of its challenge through the writ jurisdiction would arise. Under Section 27(C) of the Legal Practitioners and Bar Council Act 1973 the requisite approval is to be obtained from the High Court not from any individual Judge of the Court so mentioned by designation or otherwise, not even from any Judge performing duties of an "administrative Judge". The order passed is always of the High Court not by a Judge having a character different than of a High Court.

1. Now attending to the arguments pertaining to "personadesignata, it may be stated that if due to distribution of work, a Judge has been assigned duty to act as a High Court for the purpose of Section 27(C), it cannot be said that such person is "persona designata": The expression "persona designata" has not been defined in our statute books. However, according to its meaning given in Law Lexicon with Legal Maxims", (second edition) page xxiv and in the hand Book of Legal terms and phrases, page 531, respectively it means:-

"A person pointed out or described as an individual as opposed to a person ascertained as a member of a class or as filing a particular character"

"The expression "persona designata" means a person described in the status or legal instrument by his official designation, and the be, any function of the High Court, executive, judicial, or even consultative, the basic point to be noted is, whether the act or the order is of the High Court or otherwise. If it is so, irrespective of the natures of jurisdiction, no writ would lie. The case reported as PLD 1996 S.C. 324, referred to by the learned counsel, in the facts and circumstances has no relevance. Firstly, in the said judgment, the scope of Article 177 and Article 193 of the Constitution, were considered, wherein the consultative role of the respective Chief Justices, was being examined. Here, the question is quite different. It may be pertinent to state here that the Legal Practitioners And Bar Council Act 1973, form its closer study, itself creates a distinction between the High Court and the role of a Judge of the High Court when he is a part of different Committees constituted thereunder.

1. The other arguments of Mr. Hamid Khan, that under the provisions of Article 199(1)(C), the expression "Authority" is distinct from the "person" within the contemplation of Article 199(5), therefore, whenever the question involved is regarding the enforcement at fundamental rights and violation is attributed to the High Court, writ would be competent. This submission has been well answered by the Deputy Attorney General, that Article 199 has in fact conceived the High Court as a "person" not as a Authority. It is for this reason that the expression person has been specifically and separately denned. Besides, if the argument of learned counsel for the petitioner is accepted, it would mean that even the judicial orders passed by the High Court alleged to be in violation of fundamental rights, could be challenged in the writ calling the High Court as "Authority". This is in sharp contradiction of the earlier argument of learned counsel that no writ can lie against the judicial order passed by the High Court

2. The final submission from the petitioners' side that as no other/ further remedy is available to them, therefore, the provisions of sub-Article (5) should be construed in a way, permitting the invocation of writ, cannot be allowed because, if this sub-Article is interpreted as suggested by the learned counsel it would tantamount to reading into the Constitutional provisions something which is not permissible under the law Reference can be made to the cases reported as PLD 1997 SC 426 and PLD 1997 SC 32.

3. It may also be stated that no writ can be held to be competent if otherwise it is untenable only on account of the fact that the petitioners have no remedy. View of the Honorable Supreme Court on this point as envisaged by PLD 1998 SC 103, is undoubtedly clear.

"The factum that the aggrieved party may have no other legal remedy simpliciter will not bring his case within the purview of Article 199 of the Constitution, if, otherwise. It does not fall within its compass."

1. Before parting, we may however, observe that the Court may onsider the desirability of providing some methodology for reconsideration f the cases by a larger number Judges if an order under Section 27(C) has been passed by a Single Judge. Likewise, the remedy of appeal can also be provided to the employees of this Court by making necessary amendment in the rule for the cases like the one forming background Writ Petition No. 14165 of 1995.

In view of the above, holding that the writ petitions are not competent under the provision of sub-Article (5) of Article 199 of the Constitution, we hereby dismuw the same with no order as to costs.

(A_A.) Petitions dismissed.

PLJ 2000 Lahore 127

Present: SHAIKH ABDUR RAZZAQ, J. MUHAMMAD KHAN ete.-Petitioners

versus

MUHAMMAD NAWAZ etc.-Respondents C.R. No. 616 of 1994, accepted on 25.3.1999.

Civil Procedure Code, 1908 (V of 1908)-

—S. US-Conditional gift in favour of donee by her father who further gifted away property in favour of defendant/readoner-Donee was limited owner and could not alienate property to anybody else-Ground of challenge by Respondent No. 1 to 4-Validity & scope-Imposition of condition in mutation No. 3387 dt 7.12.1941 to effect that Mst. "M" was entitled to usufruct of land till her life is void, and she is complete owner of suit land-Instant case is case of transfer of corpus of property as she was handed over possession, so the words" are to be treated according to well established principles of Shariah to be ineffective and void, as any condition sought to be attached by donor which is derogatory to passing of exclusive ownership in the donee is treated as void—Gift made remains valid and condition is ignored--Transfer by her by way of gift Mutation No. 1026 dt. 18.8.1973 in favour of defendant/petitioner is absolutely valid—Held: Conclusion arrived at by Courts below is based on misreading and non-reading of evidence which justified interference by High Court-Petition accepted.

[P. 130] A & B

Syed Qalb-i-Hussain, Advocate for Petitioners.

Sh. Zamir Husain, Advocate for Respondents Nos. 1 to 9.

Ex-parte for Respondents Nos. 10 and 14.

Date of hearing: 25.3.1999.

judgment

Instant civil revision is directed against the judgment and decree dated 10.10.1994 passed by the learned Additional District Judge Chakwal, confirming the judgment and decree dated 14.1.1991 passed by the learned Civil Judge 1st Class Talagang.

1. Briefly stated the case of plaintiffs/Respondents Nos. 1 to 4 is hat Noor Khan deceased (predecessor~in-interest of the parties) was owner of land measuring 118 Kanals and 5 Marias, described fully in the plaint He gifted the said land in favour of her daughter Mst. Mehr Bharri vide Mutation No. 3387 dated 7.12.1941 subject to the condition that she will enjoy its usufruct till her life. However, later on Mst Mehr Bharri gifted the said land to Muhammad Khan defendant/petitioner vide Mutation No. 12026 dated 18.8.1973. The plaintiffs/Respondents Nos. 1 to 4 contend that she being a limited owner could not-gift the land to Muhammad han defendant/petitioner, as such said mutation is illegal, void and ineffective upon their rights and they are entitled to claim 62 Kanals out of that land. They further alleged that Noor Khan died on 18.12.1980 and mutation of his inheritance has been sanctioned in their favour on 10.2.1981. They requested the defendant/petitioner to treat said Mutation No. 12026 dated 18.8.1973 as illegal, void and hand over the possession of land measuring 62 Kanals to them. As their request was not accepted, hence the instant suit

2. The defendant/petitioner contested the suit and raised various preliminary objections. He asserted that Mst Mehr Bharri was competent to gift the suit land in his favour and plaintiffs/Respondents Nos. 1 to 4 have no locus standi to file this suit

3. From the divergent pleadings of the parties, the trial Court framed the following issues:--

4. Whether the suit is within time?

1-A. Whether the suit is not maintainable in its present form? OPP.

1. Whether the Mutation No. 12026 made by Defendant No. 2 in favour of Defendant No. 1 is illegal and in operative on the rights of the plaintiff? OPP.

2. Whether the plaintiffs have been estopped to file this suit? OPD.

3. Whether the suit is bad because of preliminary objection No. 3 of the written statement? OPD

4. Whether the defendants are entitled to special costs? OPD.

5-A. Whether the suit abated under Ordinance No. Xm of 1983? OPD.

1. Relief.

2. In support of their contentions, the plaintiffs/Respondents Nos. 1 to 4 examined PW-1 Bashir Ahmad, PW-2 Ghulam Muhammad and again examined Bashir Ahmad as PW-3. They also brought on record documents Ex.Pl to P5. In rebuttal, the Defendant No. I/petitioner examined DW-1 Muhammad Khan, DW-2 Allah Yar and DW-3 Ahmad Khan.

3. After going through the evidence produced by the parties, the trial Court dismissed the suit of the plaintiffs/Respondents Nos. 1 to 4 on 10.2.1987. They filed an appeal against the said judgment and decree, which was accepted and suit was remanded to the trial Court on 13.6.1988. The trial Court was directed to record additional evidence. In compliance of said direction, statements of PW-4 Muhammad Khan and DW-4 Noor were recorded. The trial Court then decreed the suit vide judgment and decree dated 14.1.1991 which was upheld by the appellate Court vide judgment and decree dated 10.10.1994.

4. Arguments have been heard. Record perused.

5. It is admitted fact that'land measuring 118 Kanals 5 Marias was gifted by Muhammad Khan deceased in favour of his daughter Mst. Mehr Bharri vide Mutation No. 3387 dated 7.12.1941. The dispute relates to the condition attached to said gift A perusal of said mutation reveals that she was given the said land till her life. The stand of plaintiffs/Respondents Nos. 1 to 4 is that as Mst. Mehr Bharri was given the suit property till her life, so she being a limited owner, could not further alienate the same vide Mutation No. 12026 dated 18.8.1973. That the said mutation being void, the land reverted to Muhammad Khan Le.donor. That as Muhammad han died on 18.12.1980 and they got their share out of his other estate, similarly they are also entitled to claim 62 Kanals out of the suit property.

6. Conversely, the stand of learned counsel for the defendant/'petitioner is that alienation by Mst. Mehr Bharri vide Mutation No. 12026 dated 18.8.1973 is perfectly legal, as she was exclusive owner of the suit land. His stand is that alienation of land vide Mutation No. 3387 dated 7.12.1941 is legal and the condition attached is void.

7. The only point which requires determination is, if in the given circumstances Mst. Mehr Bharri became an exclusive owner of property by virtue of mutation of Gift No. 3387 dated 7.12.1941 or she was a limited owner. There is no doubt that Muslim Law contemplates gift of corpus as well as of usufruct of property. The answer to the question, whether in a given case, gift is of corpus of property or of usufruct of the property, is to be found ascertaining the intention of the donor from the document of gift or the statement made, if any, or the circumstances surrounding the grant of the property. It is well established that if the corpus of property is gifted hen attaching of any condition derogatory to the gift i.e. transfer of absolute ownership to the donee, is treated as void. This proposition also finds support from paragraph 164 of Mahomedan Law by Sir D.F. Mullah, which lays down as follows:

"164. Gift with a condition.--When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it"

Thus the imposition of condition in Mutation No. 3387 dated 7.12.1941 to the effect that Mst. Mehr Bharri was entitled to the usufruct of land till her life is void, and she is a complete owner of suit laud. Again the instant case is a case of transfer of corpus of property as she was handed over the possession, so the words" eijU^crr^t "or" cT-»Jjt "are to be treated according to the well established principles of Shariah to be ineffective and void, as any condition sought to be attached by the donor which is derogatory to the passing of the exclusive ownership in the done is treated as void. The gift made remains valid and the condition is ignored. Reliance is placed on Abdul Hameed etc. vs. Muhammad Mohyuddin Siddique Raja etc. (1998 AC 1), Nawab Amjad All Khan vs. Mst. Mohammadee Begum (1867) Mors. LA. 517), Mst. Kaneez Bibi and another vs. Sher Muhammad and 2 others (PLD 1991 SO 466), Said Akbar and others vs. Mst. Kakai (PLD 1975 SC 377) and Farid (Represented by heir) vs. Mst. NurBibi (PLD 1970 Lahore 502).

1. The upshot of above discussion is that Ms. Mehr Bharri was an exclusive owner of the suit property which she acquired vide Mutation No. 3387 dated 7.12.1941 and the condition attached thereto is void. Thus transfer by her byway of gift Mutation No. 12026 dated 18.8.1973 in favour of Muhammad Khan defendant/petitioner is absolutely valid. The conclusion arrived at by the Courts below is based on misreading and non-reading of 0 evidence which justifies interference by this Court Accordingly, revision petition is accepted and the impugned judgments and decrees are hereby set aside. Consequently, suit filed by the plaintiffs/Respondents Nos. 1 to 4 fails and stands dismissed.

(B.T.) Petition accepted.

PLJ 2000 Lahore 130

Present: SAYED NAJAM-UL-HASSAN KAZMI, J. SHAGUFTA ANWAR-Petitioner

versus

Mian ZULFIQAR and others-Respondents

W.P. No. 5662 of 1998, heard on 3.5.1999.

West Pakistan Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)-

—S. 13--Constitution of Pakistan (1973), Art 199--Application for ejectment of tenant for personal use of premises-Ejectment application was dismissed by Rent Controller but granted by Appellate forum-Validity - Evidence on record produced by landlord clearly indicated that two grown-up sons of landlord were of marriageable age and he required to accommodate Ms sons after their marriage in rented portion of house which was part and parcel of house occupied by landlord himself—Such evidence having not been controverted by tenant through cogent evidence was sufficient to prove that landlord required property in question, in good faith for accommodating need of his sous who were to be married- Appellate forum, after considering evidence on record had come to conclusion that rented portion was required in good faith and bonafide manner by landlord because of need of bis elder son, whom he intended to marry—Findings recorded by Appellate forum on question of personal use do not suffer from any misreading of evidence on record or any error of law-No ground was thus, made out for interference in constitutional jurisdiction. [Pp. 132 & 133] A

Mr. ALA. Butt, Advocate for Petitioner.

Rana Muhammad Sarwar, Advocate for Respondents.

Date of hearing: 3.5.1999.

judgment

This Constitutional petition calls in question order, dated 12.2.1998, passed in appeal by the teamed Additional District Judge Lahore.

1. Respondent No. 3 filed a petition U/S. 13 of Punjab Urban Rent Restriction Ordinance seeking eviction of the petitioner from a portion of bungalow No. 7, Block-G, Gulberg-II, Lahore on the ground of default in payment of rent, damage and personal use. Relationship of landlord and tenant was admitted but however, the ejectment petition was resisted on merit by denying allegations of default, damage and personal use.

2. The learned Rent Controller, vide order, dated 31.5.1997 dismissed ejectment petition but in appeal ejectment was allowed on the ground of personal use.

3. Learned counsel for the petitioner argued that Respondent No. 3 was in possession of sufficient accommodation and that the plea of bona fide eed was not established and also that the learned Rent Controller hasdismissed the petition for cogent reason which was incorrectly disturbed in appeal by the learned Additional District Judge.

4. In reply, it was argued, that the respondent was in occupation of a small portion of the property comprising of two bed rooms, one bath and one drawing/dyning room and that he required the rented premises in good faith for accommodating his son who was at marriageable stage. It was argued, that at the time when ejectment was filed, one son of the respondent had attained the marriageable age but now the other son of the respondent had also grown-up and the respondent intended to marry him. It was added that the three families could not be accommodated in two bed rooms and, therefore, the portion of the premises, in occupation of the petitioner, comprising two bed rooms, one drawing/dyning, leaving rooms and servant quarters was required in good faith and bona fide manner by the respondent

5. The respondent, with a view to prove bona fide need, produced Abid Zia, AW-1, Abdul Haq AW-2 and himself appeared as AW-3. AW-1, deposed that the rented premises was required by the respondent for the purpose of his son. Similar statement was made by AW-2 who maintained that the son of Respondent No. 3 was to be married and accommodated in a separate accommodation Respondent No. 3 himself appeared as AW-3 and deposed that the existing accommodation was insufficient to cater the need of three sons. He deposed that his one son was in M.A. final and that he wanted to marry his son and, therefore, the rented premises was equired for the use of son. He was thoroughly cross-examined but nothing could be extracted which could be said to be adverse to the plea of personal use. At present, one of the son of respondent has completed M.A., the other has completed Charted Accountancy and the third is yet to complete education. The respondent, presently intend to marry two sons. His present' accommodation is two bed rooms alongwith baths and drawing/dyning which obviously could not be said to be sufficient to cater the needs of two additional families. The two portions being part of the same property and contiguous to each other can be used as one house and can thus be sufficiently utilized for accommodating the need of two sons who are being married. As against the evidence of the espondent, the petitioner produced Yawar Hayat RW-1 who stated that he did not know the respondent personally. RW-2 Muhammad Shaukat admitted that the respondent had three sons, the age of his elder son was 20/22 years and that he was in service. He further admitted that the younger son of respondent was 18 years old. Petitioner himself appeared as RW-3 and claimed that therespondent did not require the rented premises. In cross-examination, he did not deny that the respondent had three sons and one of the son was aged 22 years.

6. The evidence on record is thus sufficient enough to prove that the respondent required the property in good faith for accommodating the need of his sons who are to be married.

7. The learned Additional District Judge, after considering the evidence on record, also came to the conclusion that the rented portion was required in good faith and bona fide manner by the respondent because of the need of his elder son, whom he intend to marry. Findings recorded by the learned Additional District Judge on the question of personal use do not suffer from any misreading of the evidence on record or any error or law. No ground is thus made out for interference in Constitutional jurisdiction.

8. For the reasons above, this petition being without substance is dismissed. Petitioner is, however, allowed a period of four months to deliver vacant possession of rented premises to Respondent No. 3.

(T A.F.) Petition dismissed.

PLJ 2000 Lahore 133

[Bahawalpur Bench Bahawalpur]

Present: sayed najam-ul-hassan kazmi, J. LIAQAT ALI and 3 others-Appellants

versus MUHAMMAD AKBAR and another-Respondents

F.A.O. No. 39 of 1991, heard on 21.5.1999.

Civil Procedure Code, 1908 (V of 1908)-

—0XLL, R. 23-A & O.XLDI, R. l~Suit for pre-emption-Dismissal of suit by Trial Court-Appellate Court framing issue on 'talb-i-isshad'and remanding case—Validity-Suit was instituted during period of interregnum, when there was no statutory law of pre-emption-'Talb-i-ishhad' had to be proved in accordance with rule laid down by Supreme Court in PLD 1994 SC 1-Record showed that Trial Court did not frame any issue on question oftalb-Plea. of talb' having been vehemently raised in appeal, same necessitated framing of additional issue on talb-i-ishad--Appellate Court having felt that existing issues were not comprehensive or that some issues needed re-settlement, mere framing of additional issue or re-casting of additional issue could not be made ground to remand case-Remand would be only possible if judgment was reversed on merit-Reference could be made to OJtLJ, R. 23-A C.P.C.-Additional issue having been framed in appeal, Appellate Court should have recorded additional evidence by itself, under O.XLJ, R. 28 C.P.C. or could secure evidence through Trial Court, by keeping appeal pending-Remand of case, however, was neither warranted nor proper-Appellate Court should not remand case in routine as the same would lead to un­necessary frustration among parties as also to their agonies-Appropriate and approved course would be that Appellate Court should itself decide appeal by recurring additional evidence if necessary—Impugned order to the extent of remanding case was set aside-Appellate Court would allow evidence in support of additional issue of talb and after recording evidence should decide appeal on merits in accordance with law.

[Pp. 134 & 135] A, B

PLD 1994 SC 1 ref.

Mr, Bashir Ahmad Ansari, Advocate for Appellants. Mr. Azmat Kamal Mirza, Advocate for Respondents. Date of hearing: 21.5.1999.

judgment

This appeal arises from remand, order, dated 1.7.1991 passed in appeal by the learned Additional District Judge Jhelum.

1. Facts necessary for the disposal of this appeal are that respondent filed a suit to pre-empt sale of land measuring 45 Kanals 13 Marias,on the grounds of being co-sharer. The sale which was pre-empted, was effected through Mutation No. 2028 dated 25.4.1989 while the suit was instituted on 2.9.1989.

2. Appellant resisted the suit and raised number of objections, legal as well as factual After issues and evidence, the learned Civil Judge dismissed the suit on 25.11.1990.

3. Feeling aggrieved, respondent went in appeal which was accepted and case remanded. The learned Additional District Judge, framed- an additional issue on the question of talb-e-uhhad and remanded the case for decision after recording evidence. Against this order, the present appeal has been preferred.

4. Learned counsel for the appellant argued that the case could not be remanded simply on the ground that an additional issue had been framed and in any case, if the appellate Court feels necessity of further evidence it could be recorded in appeal.

5. Learned counsel for the respondent has not opposed this proposition of law and has no objection to the decision of the appeal by the learned Additional District Judge himself. He, however, submits that since the plea oftalbwas taken for the first time in appeal and the issue has been framed in appeal, therefore, the respondent has a right to lead evidence.

6. From the facts noted supra and also the material on record, it is evident that the sale was effected through mutation dated 25.4.1989 which was pre-empted in the suit instituted on 2.9.1989. Admittedly, this was a period of interregnum, when there was no statutory law of pre-emption. It is disputed by the learned counsel for the parties, that Talb-e-Ishhad has to be proved in accordance with the rule laid down by the Hon'ble Supreme Court, in the case of "Haji Rana Muhammad Shabbir Ahmad Khan vs. Governmentof Punjab Province, Lahore" (PLD 1994 SC 1). It is also apparent from the record that the learned trial Court did not frame any issue on the question of talb as apparently, this issue was not seriously urged. Be that as it may, the plea of talb was vehemently raised in appeal which necessitated the framing of additional issue.

7. It is a settled rule, that if the appellate Court, feels that the (Hrisring issues are not comprehensive or that some issue needs resettlement then mere framing an additional issue or recasting of the additional issue cannot be made a ground to remand the case. Remand is only possible if the judgment is reversed on merit. Reference can be made to Rule 23-A of Order 41 CPC. Since the additional issue was framed in appeal the appellate Court should have recorded additional evidence by itself, under Order 41, Rule 28 of CPC, or it could secure the evidence through the trial Court, by keeping the appeal pending. Remand of the case was neither warranted nor proper. It is repeatedly observed that the appellate Court should not remand the case in routine as it lead to unnecessary frustration among the parties and also adds to their agonies. The appropriate and approved course is that the appellate Court shall itself decide the appeal by receiving additional evidence if necessary.

8. For the reasons above, this appeal is partly allowed, and the impugned order, to the extent of remanding the case is set aside. The learned Addl. District Judge shall allow evidence in support of additional issue of talb and after recording evidence, he should decide the appeal on merit and in accordance with law and keeping in view the rule given in the judgment noted tupra.

9. Parties shall appear before the learned Additional District on 15.6.1999 who shall decide the appeal within six months with intimation to the Additional Registrar of this Court

(TA.F.) Case remanded.

PLJ 2000 Lahore 135

[Multan Bench Multan]

Present:shaikh abdur razzaq, J. MUHAMMAD ARSHAD-Petitioner

versus CHAIRMAN ZILA COUNCIL, SAHIWAL-Respondent

W.P. No. 3946 of 1999, decided on 6.5.1999. Punjab Local Government Ordinance, 1979 (VI of 1979)-

—S. 166--Constitution of Pakistan (1973), Art 199-Remedy of appeal available to petitioner-Petitioner instead of availing remedy of appeal filing constitutional petition--Maintainability--Detachment of Tehsil Arifwala form Zila Council Sahiwal and attachment with Zila Council Pakpattan-25 per cent staff of Zila Council Sahiwal had to be shifted to Zila Council Pakpattan-Such decision was taken in meeting chaired by commissioner-Validity-Order in question was passed regarding distribution of staff from Sahiwal to Pakpattan, which was administrative order passed under the chairmanship of Commissioner of concerned division—Subsequent order of specified date whereby service of affected staff was placed at the disposal of Chairman Zila Council Pakpattan was passed by chairman Zila Council Pakpattan-Appeal against subsequent order would lie before commissioner of concerned division-Efficacious remedy in the form of appeal being available to petitioner, constitutional petition was not maintainable in circumstances. [P. 136] A

Rana Tqj Muhammad Khan, Advocate for Petitioner. Date of hearing: 6.5.1999.

order

Instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed for declaring order dated 22.4.1999 passed by the Chairman Zila Council, Sahiwal/respondent to be illegal, unlawful, null and void of no legal effect qua the rights of the petitioners.

1. Briefly stated the facts are that consequent upon the detachment of Tehsil Arifwala from Zila Council Sahiwal and attachment with Zila Council Pakpattan, 25% of the Staff of Zila Council Sahiwal has to be shifted to Zila Council Pakpattan. The said decision was taken in a meeting chaired by the Commissioner Multan Division, Multan, on 25.2.1995. This order was agitated vide W.P. No. 1766/99 which was dismissed on 13.1.1999. As a result of said decision dated 13.1.1999, the services of the petitioners have been placed at the disposal of Chairman Zila Council Pakpattan for further posting.

2. The impugned order has mainly been assailed on the ground thatthe same is in continuation of order dated 27.2.1995 which as passed under the Chair of Commissioner, Multan Division, Multan, so appeal cannot be heard and disposed of by the Commissioner, Multan Division, Multan, and as such instant writ petition is maintainable.

3. A perusal of the record shows that order dated 27.2.1995 was passed regarding distribution of staff from Sahiwal to Pakpattan. It was an administrative order which was passed under the Chair of Commissioner, Multan Division Multan. Instant order dated 22.4.1999 Annexure 'B' has been passed by the order of Chairman Zila Council, Sahiwal. According to Section 166 of the Punjab Local Government Ordinance, 1979, an appeal against this order dated 22.4.1999 lies with the Commissioner, Multan Division, Multan.

4. Since an efficacious remedy in the form of an appeal to the Commissioner Multan Division, Multan, is available with the petitioners, so the instant writ petition is not maintainable and is hereby dismissed.

(T.A.F.) Petition dismissed.

PLJ 2000 Lahore 137

Present: shaikh abdur razzaq, J. BEGUM BIBI-Petitioner

versus

MUHAMMAD ISHAQ-Respondent

Civil Revision No. 1177 of 1999, dismissed on 29.7.1999.

Civil Procedure Code, 1908 (V of 1908)-

—S. 115—Sale of land-Suit by petitioner alleging that she never sold said land-Dismissal of-Revision against-Alleged sale deed was executed on 0.7.1997 whereas instant suit was filed on 14.12.1985—Onus to prove that sale deed was result of fraud, was on plaintiff/petitioner, but she neither appeared herself nor made any effort to cause production of original sale-deed on record~PW-3 produced by her admits that he was not one of persons who examined said document-Trial Court as well as appellate court have fully discussed evidence brought on record by parties- -Plaintiff/petitioner has failed to prove that she never executed sale deed in dispute-Impugned judgments neither appear to suffer from infirmity or any irregularity-Petition dismissed. [P. 139] A to B

Ch. Muhammad Tufail Kasuri, Advocate for Petitioner. Date of hearing: 29.7.1999.

order

Instant revision petition is directed against the judgment and decree dated 10.5.1999 passed by the learned Additional District Judge, Kasur, whereby the confirmed the judgment and decree dated 15.5.1991 dismissing the suit of the plaintiff/petitioner.

1. Briefly stated the facts are that plaintiff/petitioner claims herself to be owner of land measuring 27 Kanals 7 Marias described fully in Para No. 1 of the plaint. She alleges that she never sold the said land to the respondent vide- sale-deed dated 20.7.1977 and that the said sale-deed has been procured by producing some fake lady before the Sub-Registrar. The efendant/respondent contested the suit wherein he raised various preliminary objections and also controverted the contentions of the plaintiff/petitioner on merits.

2. From the divergent pleadings of the parties, the trial Court framed the following issues:--

3. Whether the suit is within time? OPP

4. Whether the suit has been under valued for the purpose of Court fee and jurisdiction? OPD

5. If Issue No. 2 stands proved then what is the correct valuation of the suit for the purpose of Court fee and jurisdiction? OPPs.

6. Whether the plaintiff has not come to the Court with clean hands? OPD

7. Whether the plaintiff has no cause of action for the present suit? OPD

8. Whether the suit is barred under Section 42 of the Specific Relief Act? OPD

9. Whether the suit is mala fide! If so whether the defendant is entitled to recover special costs under Section 35-A CPC? OPD

10. Whether the registered sale-deed dated 20.7.1977 is illegal, void and based upon fraud? OPP.

11. Relief.

12. In support of her stand plaintiff/petitioner examined PW-1 Muhammad Yaqoob, PW-2 Sabir Hussain, PW-3 Sher Muhammad S.I. and PW-4 Muhammad Ramzan H.C.. She also brought on record documents Ex.P-4 to P-7. The defendant in rebuttal examined himself as DW-1 and Muhammad Saeed DW-2 and Bashir Ahmad as DW-3.

13. After going through the evidence produced by the parties the trial Court dismissed the suit of the plaintiff/petitioner vide judgment and decree dated 15.5.1991. The plaintiff/petitioner felt aggrieved of the said judgment and decree and filed an appeal which was dismissed on 10.5.1999. Hence the instant civil revision.

14. Arguments have been heard and record perused.

15. Contention of learned counsel for the plaintiff/petitioner is that defendant/respondent claims to have purchased the suit property from the plaintiff/petitioner vide sale-deed dated 20.7.1977, that the defendant/respondent had not brought on record said original sale-deed which tells upon his bona fide, that she moved an application before appellate Court for allowing additional evidence in the form of producing original sale-deed and report of Handwriting Expert which was not allowed vide order dated 11.10.1995, that she also moved an application for amendment of the grounds of appeal which also did not find favour with the appellate Court and was dismissed on 7.11.1995, that she also moved an application for comparing the thumb-impression of plaintiff with her alleged thumb-impression on sale-deed but the same was not allowed, that the petitioner was a lady so it was incumbent upon the trial Court to allow her said application, that she also moved an application wherein she proposed issue No. 8-A whereby onus of the same was placed on the defendant/respondent, as it was the duty of the defendant/respondent to prove that he had obtained the land through sale-deed which application was also dismissed, that had Issue No. 8 been framed as proposed by her and onus placed properly, the findings would have been otherwise. He thus submits that all these points need consideration \nd the revision petition be admitted for regular hearing.

16. A perusal of the record shows that alleged sale-deed was executed on 20.7.1977 whereas the instant suit has been filed on 14.12.1985. It remained pending in the trial Court till 15.5.1991. Thereafter the appeal remained pending for about 8 years as the same was dismissed on 10.5.1999. During the pendency of the suit in the civil Court, the plaintiff/petitioner never agitated that the onus of Issue No. 8 had not been placed properly and it was during the pendency of appeal that an application for recasting Issue No. 8 in the form of 8-A was moved, which was not accepted. The plaintiff/ petitioner did not agitate the orders dated 11.10.1995 and 7.11.1995 whereby the application for additional evidence as well as application for amendment of memo, of appeal were rejected. The onus to prove that sale-deed dated 0.7,1977 was the result of fraud and mis-representation, was on the plain off/petitioner. Admittedly the plaintiff/petitioner neither appeared herself nor made any efforts to cause the production of original sale-deeds on record which is said to have been in the possession of defendant/ respondent On the other hand the plaintiff/petitioner has examined PW-3 Sher Muhammad SI to prove that sale-deed does not contain her thumb- impression. He admits that he was not one of the persons who had examined the said document and prepared the report The plaintiff/petitioner also did not appear in the Court to controvert the contention of the respondent and to support her contention that she never appeared before the Sub-Registrar at the time of execution of sale-deed referred above. The trial Court as well as the appellate Court have fully discussed the evidence which has been brought on record by the parties. The plaintiff/petitioner has failed to prove that she never executed the said sale-deed in favour of the defendant/ respondent Be that as it may, Section 115 of the Civil Procedure Code applies to cases, involving illegal assumption, non exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which do not, in any way, effect the jurisdiction of this Court; no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction. As erroneous conclusion of law or fact is liable to be corrected in appeal, but revision will not be competent on such a ground, unless in arriving at such conclusion, an error of law is manifestly shown to have been committed.

17. Neither any such aspect has been put forth or highlighted, nor is seemingly available, so, as, to attract or entail provisions of Section 115 Civil Procedure Code, which thus, can, neither, come into play nor press into service. Judgments and decrees, now sought to be impeached and set at naught are accordingly, unexceptionable as the same neither appear to suffer from infirmity or any irregularity, what to speak of material irregularity, nor perversity or arbitrariness.

18. Hence viewed from any angle, revision petition merits dismissal and is, hereby dismissed, with no order as to costs.

(MYFK) Petition dismissed.

PLJ 2000 Lahore 140

[Multan Bench Multan]

Present: SYED jamshed ALI, J.

Mst. AZIZ FATIMA-Petitioner

versus

PROVINCE OF PUNJAB through its CHIEF SECRETARY and others-Respondents

W.P. No. 7450 of 1996, heard on 8.4.1999.

Punjab Education Department (School Education), Rules, 1997-

—Sched-Column 7 (Method of Recruitment) to the post of Secondary School Teachers (S.S.T.)--Constitution of Pakistan (1973), Arts. 199,212- -Elementary School Teachers-Promotion of such teachers to the post ofSecondary School Teachers was 50 per cent by initial recruitment while 50 per cent were reserved for in service school teachers—Grievance of teachers related to amendment under column 7 (Method of Recruitment) whereunder only those candidates would he eligible for Recruitment who were bonafide residents of District where vacancies existed—Other grievance of petitioners was that contrary to aforesaid rule, vacant posts of Secondary School Teachers in district were some time, fixed in through method of appointment by transfer instead of considering in service Elementary School Teachers to said vacant posts-Art 212(2) of the Constitution was attracted to the first relief claimed by petitioners- Petitioners however, stated that if they were allowed the other relief claimed they would not be pressing for the primary relief claimed by them i.e. that the rules do not permit appointment to the post of Secondary School Teachers by transfer and that such relief was not hit by Art. 212 of the Constitution-Respondent, counsel had conceded that in accordance with the method prescribed in Rules appointment by transfer to the post of Secondary School Teachers should not be made; he under took to ensure that in future all vacancies of Secondary School Teachers would be filled in strictly in accordance with the rules from Elementary School Teachers of the district in which such vacancies occurred-Such undertaking of respondents counsel satisfied petitioners-Constitutional petition was disposed of in accordance with such undertaking of respondents. [Pp. 141 & 142] A &B

1993 PLC (C.S.) 1322; 1995 SCMR1053 ref.

Syed Ijaz Hus&ain Karbalai and Mr. Muhammad Amin Mcdik, Advocates for Petitioner.

Mr. Tahir Haider Wasti, A.A.G. for Respondents Nos. 1 to 6. Syed Murtaza Mi Zaidi, Advocate for Respondents Nos. 7 to 10. Date of bearing: 8.4.1999.

judgment

This judgment will dispose of Writ Petition Nos. 3948 of 1992 and 9320 of 1997 as the grievance in all the petitions is common.

1. The petitioners are Elementary School Teachers and in the matter of their service are governed by the Punjab Education Department (School Education) Rules, 1987 amended from time to time. The next ladder from them is the post of Secondary School Teachers (S.S.T). The method of recruitment to the post is 50% by initial recruitment while 50% are reserved for the in service school teachers. The primary grievance in these petitions is against the amendment made in these rules by way of the notification dated 27.7.1991 whereby under column 7 (Method of Recruitment) to the post of Secondary School Teachers (S.S.T) the following note was added: -

"Only these candidates will be eligible for recruitment who are bonafideresidents of District where the vacancies exist"

1. Another grievance of the petitioners is that contrary to the aforesaid rule, the vacant posts of S.S.T's in district are some times filled in through the method of appointment by transfer instead of considering the in service E.S.Ts for appointment as S.S.Ts to the said vacant posts.

2. According to the learned counsel for the petitioners this note is ultra vires of Articles 25 and 27 of the Constitution. It is further contended that the cadre of E.S.Ts was a divisional cadre and appointment to the post of S.S.T. (against the quota of E.S.Ts) used to be made on divisional basis. It is complained that the effect of this note is that a person who may be far junior in District Khanewal may be appointed as S.S.T. earlier then a senior E.S.T. in Multan District Reliance is being placed on judgment dated 21.1.1996 rendered by this Court in Writ Petition No. 420 of 1994. It was observed in this judgment that there was no scope for filling in the vacancies of S.S.Ts by appointment by transfer from other districts.

3. As far as the first relief claimed by the petitioners is concerned, prima facie, bar of Article 212(2) is attracted and the learned counsel for the petitioners in all these cases state that in case they are allowed the other relief claimed, they will not be pressing for the primary relief claimed in these petitions.

4. The other grievance that the Rules do not permit appointment to the post of S.S.T. by transfer and the relief claimed is not hit by the bar of Article 212 of the Constitution. Reference may be made to Khaliq-uz-Zaman Chaudhry, Civil Judge, 1st Class, Lahore etc. vs. Govt. of Punjab (1993 P.L.C. (C.S) 1322), wherein it was held that the departmental authorities could be compelled to make appointments in accordance with the rules and bar of Article 212 of the Constitution will not apply. Reference may also be made to Federation of Pakistan through Secretary Government of Pakistan, Establishment Division Islamabad and 2 others versus Abdul Rashid (1995 S.C.M.R. 1053). In this precedent case, the Hon'ble Supreme Court held that appointment by transfer cannot be made against a post which is 100% promotion post

5. The learned Assistant Advocate-General conceeds that in accordance with the method prescribed in Rules appointment by transfer to the post of S.S.T should not be made. He undertakes to ensure that in future all vacancies of S.S.Ts will be filled in strictly in accordance with the rules from the E.S.Ts of the district in which the vacancies occure. This undertaking of the learned Assistant Advocate-General satisfies the learned counsel for the petitioners.

6. This writ petition is, accordingly, disposed of in the light of the undertaking of the learned Assistant Advocate-General.

(AA.J.S.) Order accordingly.

PLJ 2000 Lahore 142

[Multan Bench Multan]

Present:ali nawaz chowhan, J. GHULAM HAIDER and 3 others-Appellants

versus FAIZ MUHAMMAD and another-Respondents

R.S.A. No. 26 of 1981, heard on 28.9.1999.

Punjab Pre-emption Act, 1913 (1 of 1913)-

—S. 15-Civil Procedure Code (V of 1908), S. 100--Plaintiffs suit for pre­emption related to part of property to which their right of pre-emption extended and they had paid Zar-e-Panjam to the extent thereof plaintiffs however, prayed that if they were found entitled to any further relief same might also be granted to them-Trial Court decreed the whole suit-­Appellate Court, however modified judgment and decree of Trial Court and granted judgment and decree to the extent to which plaintiffs right of pre-emption extended--Validity--Plaintiffs had claimed right of pre­emption to the extent to which their superior right extended-Plaintiff's prayer, that if they were entitled to any further relief, same may be granted to them was prayer of general nature which could not be given weight in suit for pre-emption-Trial Court was in error in decreeing entire suit in favour of plaintiffs while becoming oblivious of limited claim more specifically set up by plaintiff-Defendant, plea that plaintiffs suit was for artial pre-emption and, thus, unsustainable was replied in as much as, plaintiffs themselves had kept their entitlement to the extent of specified Khatas which gave presumption that they in their hearts, of heart were feeling that vendees (defendants) had better claim as compared to them in rest of Khata numbers—Judgment and decreed passed by First Appellate Court, whereby plaintiffs suit had been decreed to the extent to which their superior right extended and which in fact they had claimed, suffered from no illegality nor the same was suit for partial pre-emption, therefore, judgment and decree in question, do not call for interference by High Court. [Pp. 145 to 147] A, B & C

PLD 1970 SC 299 ref.

Mr. Mufhtaq Ahmad Hashnti, Advocate for Appellants. Ch. Ishan-Ullah, Advocate for Respondents. Date of hearing: 28.9.1999.

judgment

This is RSA against the judgment and decree in a pre-emption suit passed by the learned District Judge, Dem Ghazi Khan dated 15.2.1981. Previously, the suit of the present appellant was decreed on 9.2.1980 by the learned Civil Judge, Dera Ghazi Khan. The learned District Judge vide his judgment and decree had modified the judgment of the trial Court

1. Brief facts of the case are that the sale in question pertains to 258 Kanals 8 Marias of land comprised in Khata Numbers 384, 355, 356, 341, 357 and 366 situated in the revenue estate of village Gaddi Janoobi. Ostensible price was fixed at Rs. 64,084/-. The plaintiff/pre-emptor claimed that he was a co-sharer in Khata No. 355/356 and out of the sale property could pre-empt 46 Kanal 12 Maria having been sold out of these Khatas.He also claimed that the ostensible sale price was purposely shown excessive to defeat his superior right of pre-emption. He prayed that besides the property measuring 46 Kanals and 12 Marias located in 355/356 of which e was a co-sharer if he were found entitled to any other right that too should be given to him.

2. The vendees/respondents raised the preliminary objections pertaining to insufficiency of Court Fee, that the suit was for partial pre­ emption. However, it was maintained by the vendees that the consideration fixed at Rs. 64.084/- was actually paid.

3. Besides the present appellants, the rival pre-emptors also filed pre-emption suits which were dismissed and they have not come in appeal before this Court

4. The learned trial Court had formulated the following issues:

(1) Whether any of the suits is insufficiently stamped? OPD

(2) Whether any of the suits has been instituted for the benefit of the vendee and is benami? OPD

(3) Whether any of the pre-emptors is estopped to suit? OPD

(4) Whether the suit land has incorrectly been described in the plaint? OPD

(5) Whether all the suits are bad for partial pre-emption, if no to what effect? OPD

(6) Whether the pre-emptors have a superior pre-emptive right qua the vendees and whose right is superior inter se the pre- emptors? OP Pre-emptor.

(7) Whether the sale price Us. 64,084/- was fixed in good faith and actually paid? OP Vendee

(8) If not then what was the market value of the suit land at the time of sale in suit? OP parties.

(9) Relief.

1. The learned trial Court had decided Issues 1 to 4 the negative and 5 against the defendant.

2. The matter was taken up in appeal before the learned District Judge, D.G. Khan by vendees who while deciding Issues 1 and 5 came to the conclusion that the pre-emptor was only entitled to claim the possession of 46 Kanals 12 Mariasof land out of the transaction against the payment of Rs. 13,300/- and accepted the appeal to this extent. While modifying the judgment and decree of the trial Court which had decreed the whole suit One of the grounds which prevailed with the learned District Judge was the Court fee which had been paid by the appellant and which was only against land measuring 46 Kanals 12 Marias ultimately decreed by the learned District Judge in his favour.

3. Against the judgment and decree so modified by the learned District Judge dated 15.2.1981, this regular second appeal has been filed and the vendee has also filed a revision petition. These are being disposed of together through this judgment.

4. According to the learned counsel the first appellate Court while modifying the judgment and decree of the trial Court had placed reliance on an unproved mutation pertaining to another Muaza and which was appended not by the vendees as their document but by the rival pre-emptor and came to the conclusion that the vendees were owners in the Mauza under reference. Hence, there has been not only misreading of evidence but an unproved document had defeated the case of the plaintiff who was not given the chance of rebuttal. That even otherwise, a mutation document does not carry presumption of truth. That this document related to a period which was subsequent to the period of the sale in question. That besides there is a gap of 16 years between he date of sanctioning of the said mutation and the sale in question. Regarding the deficiency in the Court fee it is the case of the appellant that no opportunity has given for making up of the deficiency of the Court fee which was a legal right

5. The learned counsel appearing on behalf of the respondents/ vendees refers to paras 3 to 5 the plaint which reads as under: He contends that the plaintifis had pkced restriction on their rights to the extent of only 46 Kanals and 12 Marias of land and had spoken of their superior right of pre-emption gua Khata Nos. 355 and 356 only and had paid the 'Zar-e-Par\jam ' to the extent thereof.

6. The re-production of the relevant paragraphs of the plaint and the conduct of the plaintiff with respect to the Zar-e-Panjam and the court fee reflect that the plaintiff only claimed his right in the Khatas Nos. 355 and 356 measuring 46 Kanals, 12 Maras. His rayer that if he was found entitled to any further relief, it may also be given to him, is a prayer of a general nature and cannot be given weight is a suit of pre-emption. The learned trial Court was in error in decreeing the entire suit in favour of the plaintiff/ appellant while becoming oblivious of the limited claim more specifically set up by the plaintiff.

7. It was anyhow argued by the learned counsel for the appellant that if the plaintiffs were owners of two Khatas, the presumption was that they were also co-sharers in the village, whereas this was not the case of the vendees who were totally outsiders.

8. The vendees in this case have filed the revision petition on the basis of the argument that on account of the judgment and decree of the first appellate Court, it was patent that the suit of the plaintiffs/appellants was for partial partition and hence ought to have been dismissed.

9. This plea was raised before the first appellate Court and was not accepted. While disposing of Issue No. 5, the learned District Judge had made reference to a mutation of inheritance bearing No. 5450 dated 3.1.1957 in respect of the lands in Mauza/village under reference. This mutation was mentioned in another Mutation No. 354 (Ex.P-16) of another village. The inference drawn was that videMutation No. 5450 of 3.1.1957 reflected in Ex.P-16, the defendants/vendees were owners in the village and had qual rights with the pre-emptor in respect of the rest of the Khasra numbers. The learned first appellate Court justified making such a reference on the ground that an undisputed and authentic document from revenue record could be relied upon if found in the case file.

10. While the plaintiffs in this case had been focusing on the two Khatas i.e. 355 and 356. The vendees had not established through evidence their ownership in the village till the discovery made by the learned first appellate Court The observation, therefore, made in this connection by the learned first appellate Court were assailed here. But the learned counsel for the appellant forgot the fact that an most essential duly of a Court is the discovery of the truth and if there is something on record from which truth spells out and there is no dispute about it, the evidence can be used by the Court in arriving at a just conclusion.

11. The question, therefore, to be seen is whether this was a suit for partial pre-emption and hence un-sustainable or not The answer is in the negative. Because the plaintiffs themselves have kept their entitlement to the extent of Khatas Nos. 355 and 356 which gives a presumption that they in B their hearts of heart were feeling that the vendees had a better claim as compared to them in rest of the Khata numbers. However, this aspect of the case remained shrouded except for the discovery made by the first appellate Court.

12. The case of Malik Hussain and others vs. Lola Roam Chand and others, PLD 1970 SC 299, has been referred and the relevant portion of which is reproduced below in extenso:--

"It was held in that case that the answer to this question will depend upon whether the pre-emption has been claimed under statute. Dealing with the question of right of pre-emption under the statute law, it was observed as under.-

"The right of pre-emption is one of substitution even in the case of pre-emption under statute law, unless the statute itself has made a departure in this regard to any extent As for instance, the Punjab Pre-emption Act, 1923, provides that the Court itself may, in certain circumstances, fix the price to be paid by the pre-emptor instead of the price entered in the deed of sale and purported to have been paid by the vendee as consideration for the transaction. From the doctrine that the right of pre-emption is one of substitution, it follows that, unless the statute conferring the right of pre­emption otherwise provides, the pre-emptor must take over the whole bargain, that is to say, the pre-emptor must seek pre-emption of the whole of the subject matter of the sale and pay the entire price paid by the vendee as consideration. This, however, is subject to certain limitation which, at any rate, do not include the vendors' defective or want of title. It is not necessary to detail here all those limitations. Suffice it to say by way of example that a re-emptor is not bound to seek pre-emption of the whole of the property sold and pay the full sale price if his right of pre-emption extends over only a portion of the property sold or if a portion of the property is capable of pre-emption and the other is not In case of any such limitation, partial pre-emption on payment of proportionate price may be permitted as of necessity and not because the pre-emptor wants it It is noticed that in the present case the pre-emptors' right of pre-emption is not subject to any kind of limitation: their right of pre-emption extends over the whole of the lands sold, and no part of the lands is incapable of pre-emption."

From the above observation, it is clear that ordinarily the pre-emptor must take over the whole bargain and he must seek pre­emption of the whole of the subject-matter of the sale and pay the entire price paid by the vendees as consideration. There are, however, certain exceptions wMch according to the view taken in this decision do not include the vendor of defective or want of title and it is not open to the pre-emptor to give up the claim as he likes. In the light of the above observations it is dear that the respondents' case does not fall within the limitation specified in this decision. The partial pre-emption can only be permitted if it is as of necessity and not because the pre-emptor wants it"

1. In this case as well the plaintiffs were not sure about their right in the land other than in Khatas Nos. 355 and 356 and understood their limitation which they did not highlight through evidence and this was also not highlighted by the other side except for the discovery made by the first appellate Court

2. Under the circumstances of this case, this Court is, therefore, of the view that the judgments and decrees passed by the first appellate Court suffer from no illegality nor this was a suit for partial pre-emption and hence the judgments and decrees impugned do not call for interference by this Court The appeal and revision are dismissed with no order as to costs.

Order accordingly.

PLJ 2000 Lahore 148

Present:tassaduq HUSSAIN jilani, J. M/s. VULCAN COMPANY (PVT.) LJMITED--Petitioner

versus

COLLECTOR OF CUSTOMS etc.-Respondents Writ Petition No. 1734 of 1973, decided on 6.12.1999.

(i) Locus poenitentiae, Principle of-

-—Constitution of Pakistan (1973), Art. 199~Principle of locus poenitentiae- Applicability-Principle of locus poenitentiae could not be stretched to protect orders and actions in derogation to law which had caused injustice on the face of record-Air-Conditioners having been imported by petitioner, he was liable to pay customs duty to the tune of specified amount, however, same having not been charged due to in-advertance, he could be burdened with fine in terms of S. 167 (8)(b) of Sea Customs Act 1878 and the same was well within ambit of law to which no exception could be taken in exercise of constitutional jurisdiction. [P. 155] E

PLD 1973 S.C. 236; PLD 1991 SC 691; PLD 1992 SC 207 ref. Sea Customs Act, 1878--

— -Ss. 39 & 167-Imports and Exports (Control) Act (XXXIX of 1950), S. 3(1)--Constitution of Pakistan (1973), Art 199--26 Air Conditioners imported by petitioner were deemed to be liable to Customs duty and Sales Tax but the same having been imported in January 1966, such duty and tax could not be recovered on account of period of limitation having been elapsed, however, petitioners were made liable to pay specified amount as penalty--Validity--Provision of S. 39, Sea Customs Act 1878, mandates that in case Customs duty or charge payable was not paid or had been erroneously refunded, same had to be paid by person charged oh demand being made within three years of relevant date-Relevant provision for imposition of fine, however, is S. 167(8)(b) of Sea Customs Act 1878~No exception could be taken to imposition of fine in as much as facts alleged were not disputed by petitioner in 90 far as import of 26 Air-Conditioners and two compessors on basis of import licence of specified No : issued originally in favour of respondent Hospital was concerned-Such licence was meant for import of three Air-Conditioners for Hospital concerned-Attmept by petitioner to seek protection of S. 39, Sea Customs Act 1878 was not tenable, firstly, because said section was confined to customs duty and other charges and not to imposition of fine under S. 167, Sea Customs Act 1878; secondly, that expression used in the section "relevant date" would be the date when such fact came to notice of authorities that petitioner had evaded duties and taxes through misrepresentation and; thirdly, petitioner seeking equitable jurisdiction of Court must demonstrate equity before seeking any relief-Constitutional jurisdiction of High Court could not be used to perpetuate ill-gotten gain to which petitioner was not entitled at relevant date-Import licence issued in favour of respondent Hospital for three Air Conditioners was wrongfully used by petitioner for importing 26 Air Conditioners, therefore be was not entitled to claim exemption from fine. [Pp. 151,153 to 155] A, B, C & D

Sh. Zia-Ullah, Advocate for Petitioner.

Sh. Izhar-ul-Haq, Advocate for Respondents.

Dates of hearing: 29.11.1999 & 1.12.1999.

judgment

Through this Constitutional petition, the petitioner has challenged the order dated llth of July, 1973 passed by Respondent No. 3 vide which petitioner's revision against the order dated 10th of February, 1973 was dismissed and it was held that 26 Air-conditioners imported by the petitioner were liable to custom duty and sales tax but since the goods were imported in January, 1966, those cannot be recovered on account of period of limita­tion having been elapsed, but the petitioners are liable to pay Rs. 60,000.00 as penalty under Section 167 (8b) of the Sea Customs Act, 1878.

1. Facts in brief are that M.S. Sir Ganga Ram Hospital, obtained Licence No. 565810 dated 16.6.1965 for the import of three air-conditioners of the value of Rs. 29.000/- Before the air-conditioners could be imported, on account of urgency the M.S. Sir Gaoga Ram Hospital, obtained three air-conditioners from Messrs Vulcan and Company Ltd. and handed over the afore-referred licence to it so that it could import the 3 air-conditioners in lieu of the ones, the Hospital had obtained. On the basis of this import Ucence, Messrs Vulcan and Company imported 26 window type air-conditioners and 2 compressors in the name of the Hospital. The Custom House Appraiser, released the air-conditioners without the customs duty and the sales tax on the misconception that the air-conditioners were imported for Hospital and exempt from levy of afore-referred taxes in view of SRO 997(K) dated 4th of August, 1960. On 3rd of September, 1970 the Collector Customs issued a notice to the petitioner to the effect that on queries it had been found that petitioner had obtained licence for import of three air-conditioners of 1\ tons, 5 tons and 3 tons capacities from M.S. Sir Ganga Ram Hospital whereas petitioners imported 26 air-conditioners of 1.5 H.P. 2 H.P. and 2.5 H.P. and two compressors which were not in accord with the import licence. It was further revealed that petitioner had finalized the transaction with the shipper before the issuance of licence to M.S. Sir Ganga Ram Hospital; that since the air-conditioners were not in accordance with the conditions of licence and were not imported for Ganga Ram Hospital, the importers had contravened the provisions of Section 19 of Sea Customs Act, 1878 read with Section 3(1) of I&E (Control) Act 1950. They were therefore, punishable undei of Sea Customs Act, 1878 read with Section 3(3) of " a t 1950. After due notice to the petitioner, the Collector Customs held i Hat r\ ^itioner evaded sales tax leviable on these air-conditioners amounting to Rs. 44,270.88 by hoodwinking the custom authorities. A fine of Rs, 60,000.00 was imposed on the petitioner. Petitioner filed appeal against the said order which was dismissed on 10.2.1973 and his revision also met the same fate vide the impugned order dated 11.7.1973.

2. Learned counsel for the petitioner has challenged the impugned orders of the custom authorities on the following grounds:-

(i) That under Section 39 of the Sea Customs Act, 1878, time limitation for recovery of any amount under the Act is three years and it is not, denied that the recovery of custom duties and other taxes was time barred. If that be the position and principal amount cannot be recovered, no penalty could have been imposed for non-payment of the principal amount;

(ii) that 26 air-conditioners and two compressors subject matter of this petition were imported on an import licence in the name of

M.S. Sir Ganga Ram Hospital and the fine if any, has to be imposed on the Hospital and not the petitioner, (iii) that the custom authorities having once cleared the goods without custom duties are estopped to recover the same on the principle of locus ponetentiae.

1. Learned counsel for the Customs department, on the other hand, has opposed the petition by submitting that on the import licence in the name of Sir Ganga Ram Hospital, only three air-conditioners of the capacities specified therein were mentioned and the import of 26 air- conditioners and two compressors was untenable in law and petitioner has rightly been proceeded against He contended that the imposition of penalty of Rs. 60,000.00 is not linked with the custom duties and sales taxes. Section 39 of the Sea Customs Act provides a period of limitation for the recovery of the afore-referred taxes whereas petitioner has been imposed a penalty under Section 167 of the Act to which no exception can be taken.

2. Heard. I have given anxious considerations to the arguments addressed at the bar and have also gone through the relevant law.

3. To better appreciate the points mooted in this petition, it is necessary to refer some of the provisions which have an important bearing on the case. Section 39 of the Sea Customs Act, reads as under:

"Section 39(1),--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 an officer of customs which he is required by or under this Act to answer. and such document or statement is untrue 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 collusion, the full amount of customs duty or charge payable is not paid or where any such duly or charge, after having been levied, has owing to any such reason, been erroneously refunded, the person chargeable with duty or charge so short paid, or to whom such refund has erroneously been made, shall, on demand being made within three years from the relevant date, pay the deficiency or repay the amount paid to him in excess; and the Customs Collector may refuse to pass any goods belonging to such person until the said deficiency or excess be paid or repaid."

\

The afore-referred provision of law mandates that in case the custom duty or charge payable is not paid or has been erroneously refunded, the same has to be paid by the person charged on demand being made within three years of relevant date. However, it does not relate to the imposition of fine to which the relevant section is Section 167 sub-para 8(b) which is to the following effect-Section of this Act to

Offences. which offence has Penalties.

Reference.

(b) If any goods, the importation and Such goods shall be liable

exportation of which is for the time being to confiscation; and any

prohibited or restricted under this Act, be person concerned in any

imported into or exported from Pakistan such offence shall be liable

country to such prohibition or restriction; to a penalty not exceeding

or five times the value of the

goods.

1. In the comments submitted by the M.S. Ganga Ram Hospital, it has been specifically denied that the petitioner-company was ever authorised to import air-conditioners on behalf of Hospital. The stand taken by the Hospital authorities in Para No. 6 of the comments is as under:

"That the answering Institution purchased the three Air conditioners of the capacities as mentioned in para 5 above and in lieu of those Air-conditioners, the Answering Institution managed to provide for the import licence of the same value and of the same Units to M/s. Vulcan Co. Ltd. The licence was also transferred with the prior approval of Imports and Exports Authority to the petitioner company and as such the imports affected against that licence are the imports by the petitioner-company and not by the Answering Institution. The Answering Institution had no concern with the imports against the said import licence as it was the liability of the P. Company to import the goods specified in the Import Licence. It is further denied that the Answering Institution had ever ordered for the compressors and the air-conditioners as imported by the petitioner. Company against the said import licence. Only three air-conditioners as specified in para 5 above were agreed to be installed in the Hospital and in lieu of those air-conditioners the petitioner-company was granted import licence of the same description and not otherwise.

It was further reiterated in para 16(xi) as under:

"That the good covered under the Bill of Entry were never delivered to the Answering Institution as the Answering Institution had already obtained the three Air-conditioners of the above specification in lieu of the import licence issued to the petitioner-company in the account of Answering Institution and the authorization was for the import of Air-conditioners only in respect of those Air-conditioners which were supplied by the petitioner-company to the Answering-Institution."

The afore-referred stand of the M.S. Sir Ganga Ram Hospital is borne out from record as well and Annexure-A to the comments is a letter dated 9th of July, 1966 from M.S. Sir Ganga Ram Hospital, Lahore to the Deputy Controller, Import and Exports, wherein the former had sought the advice of the latter as to whether it could have the three air-conditioners (costing Rs. 29,000/-) for which they had been granted permission to import through the petitioner-company installed from the read stock of the company as those were available with the petitioner-company and they were prepared to do the same on the same costs as quoted. Annexure-B is the reply of the Office of Controller of Imports and Exports dated 13th of August, 1965 which is to the effect that, "this office has no objection if Air-conditioners are obtained from Messrs. Vulcan Company Ltd. Lahore."

Annexure-C (to the comments of respondent Hospital) is a letter dated 9th of June, 1965 from Vulcan and Company Limited to the M.S. Sir Ganga Ram Hospital, Lahore wherein the import licence issued in their favour in lieu of the three Air-conditioners has been acknowledged and even the price mentioned in this letter (Rs. 29,000/-> is the same as mentioned in letter of M.S. to the petitioner-company (Annexure-A) with the comments referred to above. This letter reads as under:

"The Medical Superintendent, Sir Ganga Ram Hospital, Queens Road, Lahore.

Dear Sir, We are pleased to advise you that, we have informed by the Chartered Bank, Lahore vide their letter dated 19.6.1965, that Import Licence No. 565810 for Rs. 29.000/- has been issued in our favour, in your account which is valid upto 18th December, 1965, towards the import of Air-conditioners for your Hospital.

We shall therefore, request you to remit the payment of our Bill No. 5000 enclosed herewith in triplicate for Rs. 38.590/- and oblige, to enable us to notify the Letter of Credit in favour of our

Principals.

Thanking you we remain.

Yours faithfully, for Vulcan Company Limited.

The afore-referred resume of facts emanating from correspondence between the petitioner-company; the respondent-hospital and between the Deputy Controller Imports and Exports clearly shows that the import licence in question was transferred in the name of the petitioner-company to import the three Air-conditioners which it supplied to the respondent Hospital valuing Rs. 29,000.00. The import of 23 Air-conditioners and two compressors which were in excess of the authorization stipulated in the licence was unauthorised and petitioners were liable to be proceeded against under Section 167 sub-section 8(b) of the Sea Customs Act, 1878.

1. A notice was given by the Collector Customs to the petitioner to which he replied in writing and the contentions raised in reply were duly considered by the Collector whereafter he was imposed a penally of Rs. 60,000.00. The effect of Section 39 of the Sea Customs Act, referred to above was duly taken note of and that precisely is the reason that petitioner was not charged with the custom duly amounted to Rs. 44,270.88. So far as the penally amount which is impugned herein is concerned, no exception can be taken to it as the facts alleged are not disputed by the petitioner in so far as the import of 26 Air-conditioners and 2 compressors on the basis of 1import Licence, No. 565810 issued originally in favour of respondent Hospital is concerned. That this licence was meant for import of only three Air-conditioners for Hospital as manifest from petitioner-company's own letter addressed to M.S. Sir Ganga Ram Hospital wherein it was held:

"We are pleased to advise you that we have been informed by the Chartered Bank, Lahore vide their letter dated 19.6.1965 that import licence No. 565810 for Rs. 29,000/- has been issued in our favour, in your account, which is valid up to 18th December, 1965 towards the import of Air-conditioners for your Hospital."

This has not been controverted by the petitioner by filing any rejoinder. The attempt by the petitioner to seek protection of Section 39 of the Sea Customs Act is not tenable firstly because the said section is confined to the custom duty and other charges and not to the imposition of fine under Section 167 of the said Act Secondly, the expression used in the Section "relevant date" would mean the date when it comes to the notice of the authorities that the petitioner had evaded the duties and taxes through misrepresentation. Thirdly, petitioner is in the equitable jurisdiction of the Court and he must demonstrate equity before he seeks any relief. The Constitutional jurisdiction of this Court cannot be used to perpetuate an ill gotten gain to which petitioner was not even entitled at the relevant time. This is in line with the law kid down by the Hon'ble Supreme Court in Nawab Syed Raunaq Mi etc. vs. Chief Settlement Commissioner and others (PLD 1973 Supreme Court 236) wherein at page 258 and 259, it was held as under:-

"An order in the nature of a Writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order ought to be set aside had occasioned some injustice to the parties. If it does not wrong any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."Acting on this principle, a writ of certiorari has been refused by the Courts in the following cases because to grant it would have had the effect of allowing the technicality of the law to cause unjust enrichment which it was the policy of the law to avoid or would have resulted in the confirmation of a certificate obtained wrongly by suppressing material facts or would have sustained an order of allotment which the petitioner had obtained by suppression of material facts within his knowledge or would have resulted in perpetuating an injustice which had been done to the respondents by an incorrect order passed against them or would result in perpetuating a manifestly illegal order or would debar the taxing authorities from initiating proceedings because the requisite time for such initiation had expired."

This principle was reiterated in Muhammad Baron and others vs. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 Supreme Court 691) wherein at page 697, it was observed as under:"Where, therefore, the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution 1962, had come to the conclusion, that the orders of the Deputy Claims Commissioners verifying the claims of certain persons were illegal and without jurisdiction, it was held that, "it could legitimately refuse to set aside the order of the Officer on Special Duty (Central Record Office), even though the letter was clearly without jurisdiction. "Putting this observation in justa-position to the present case; if the allotments relied upon by the appellants made by the settlement functionaries were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth millions by its own order, the High Court would not in exercise of its discretionary (writ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Raunaq Ali the letter Vas clearly without jurisdiction","

1. Coming to the point that petitioner was not importer and that the import licence being in the name of M.S. Sir Ganga Ram Hospital, the fine if any should be recovered from Hospital, I am afraid, the petitioner is estopped to raise this argument as admittedly, it was the petitioner who imported 26 Air-conditioners and two compressors. Mere use of the import D licence issued in favour of M.S. Sir Ganga Ram Hospital which was meant only for three air-conditioners cannot be taken as a defence by the petitioner in the face of his own admission and the facts emanating from record. The principle of locuspoenitentiaeis a well recognized principle of Constitutional law and it has bees held by this Court as well as by the Hon'ble Supreme Court that an order once passed, cannot be recalled if certain rights have been created in favour of a person. This principle cannot be stretched to protect orders and actions indentation to law which have caused injustice on the face of record. In the instant case, in view of the value of the air-conditioners imported by the petitioner, it was liable to pay custom duty to „ the tune of Rs. 44,270.88. However, since by inadvertence, it was neither \" charged nor the afore-referred amount was paid, they could be burdened with fine not exceeding five times of the value of the goods as mandated under Section 167 sub-para 8(b) of the Sea Customs Act, 1878. The imposition of fine, is therefore, well within the ambit of law. In The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another vs. Jalauddin (PLD 1992 Supreme Court 207), the Hon'ble Supreme Court at page 210 observed as under:

"Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order."

1. For what has been discussed above, there is no merit in this petition which is dismissed.

(AJU Petition dismissed.

PLJ 2000 Lahore 157

Present: CH. LlAZ AHMAD, J. MUHAMMAD RAFIQUE-Petitioner

versus

AMIR SHAHZAD and others-Respondents

Civil Revision No. 1169-D/98, dismissed on 5.4.1999. (i) Adverse Possession-

—S. 115 of C.P.C.--Revision--Plea of adverse possession-Plea of adverse possession is not tenable and against Islamic Injunction-Mere entries in revenue record would not support plea of adverse possession. [P. ] C & D

1996 MLD 1263; 1991 SCMR 2063; NLR 1992 Civil 363; NLR 1994 Civil 695; NLR 1992 CivU Law Judgment 48 rel.

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

—S. 115~Sale-deed~After proper appreciation of evidence of oral as well as documentary evidence that sale deed and mutation on basis of same goes unchallenged-It is well settled law where a land conveyed is described by boundaries as well as by areas same will be treated to have been conveyed. [Pp. 161 & 162] A

AIR 1926 Patna 257; PLD 1958 Lah. 569; PLD 1965 S.C. 274, 1986 CLC 1267 and 1990 CLC 110 rel.

(iii) Jurisdiction-

—S. 115 of C.P.C.—Revision—Reversal of finding by Appellate Court-­ Appellate Court is possessed with jurisdiction to reverse findings of trial Court on question of fact—It is established law that findings on question of fact or of law how-so-ever erroneous the same may be recorded by a Court of competent jurisdiction-Revisional jurisdiction can only be invoked if findings suffer from jurisdictional defect, illegality or material irregularity-- [Pp. 162 & 163] E

PLD 1949 PC 126 nl (iv) Mutation-

—S. 115 of C.P.C.--Revision-Mutation-Entries in revenue record-Mere entry in revenue record would not support plea of adverse possession-­Possession must open overt and hostile to knowledge of true owner. [P. 162] C

1973 SCMR 284.

(v) P.T.L-

—8. 115 of Civil Procedure Code, 1908~Revision~Entries in taxation department about possession-Entries were made without notice to parties concerned and no presumption of absolute genuineness could be raised. [P. 162] B1982 CLC 1770 rel.

Ch. Muhammad Din Ansari, Advocate for Petitioner. Syed Munir Hu&aain, Advocate for Respondents. Date of hearing: 5.4.1999.

judgment

The brief facts giving rise to this revision petition are that the respondents/plaintiffs filed a suit for possession regarding land in question measuring 12 Mario\ 112 »qft. Bearing Property No. B-V1-17-R-9-A/4 situated outside Kot Peeran within the limits of Municipal Committee Kasur. The title of the plaint reveals that the land in question was originally owned by the Lahore Prince of the Church of India. Respondent No. 5/Defendant No. 2 purchased this property from the said Church through its General Attorney namely father J.D. Aurthor videsale-deed dated 9.9.1981; thereafter Mutation No. 4931 was also sanctioned and attested in the name of Respondent No. 5/Defendant No. 2 on 5.10.1981; Respondent No. 5 sold away the property in-question to Respondents Nos. 1 to 4 for consideration of Rs. 25,QOO/- vide sale-deed dated 5.8.1982. The • petitioner/Defendant No. 1 filed a suit for permanent injunction against Respondent No. 5/Defendant No. 2 which was disposed of by learned Civil

Judge, Kasur on 19.7.1984 to this effect; that Respondent No. 5/Defendant No. 2 should not dispossess petitioner from the suit property illegally and in an unlawful manner. The petitioner took possession of the suit property illegally and Respondents Nos. 1 to 4/plaintiffs filed a suit for possession against the petitioner and Respondent No. 5/Defendant No. 2 on 6.3.1985. Petitioner/Defendant No. 1 controverted the allegations levelled in the plaint while Respondent No. 5/Defendant No. 2 was proceeded ex parte on 15.4.1985. Out of the pleadings of the parties the trial Court framed the following:-

ISSUES:

1. Whether the plaintiff has no cause of action for the present suit? OPD

2' Whether the suit is barred by limitation? OPD

1. Whether the defendants are entitled for special costs U/S. 35-A ofCPC?OPD

2. Whether the plaintiffs are owner of the suit property, if so,whether they are entitled to have possession of the same? OPP

4A, Whether the Defendant No. 1 is in adverse possession of thedisputed land since last 25 years? OPD-1 4B. Whether the Defendant No. 1 has become owner of thedisputed land by having adverse possession over the disputedland? OPD-1.

1. Relief.

The learned trial Court dismissed the suit vide judgment and decree dated 20.9.1989; Respondents Nos. 1 to 5 being aggrieved by the judgment and decreed of the trial Court filed an appeal before the learned District Judge, Kasur, who entrusted the same to learned A.D. J., who accepted the appeal vide judgment and decree dated 1.6.1998; hence the present revision petition.

1. The learned counsel for the petitioner contended; that judgments of both the Courts are at variance; he further stated that 1st Appellate Court reversed the findings of Issues Nos. 1 & 4 without adverting to the reasoning of the trial Court; that 1st Appellate Court reversed the findings on Issues Nos. 1 & 4 by misreading of evidence on record; that 1st Appellate Court misread the evidence on record; that 1st Appellate Court mis-construed the documentary evidence as well as the oral evidence; that the etitioner/defendant is in possession of the land in-question for more than twenty five years without any interruption, therefore, he has become owner of the property on the well known principle of adverse possession; that judgment of 1st Appellate Court is against the law and acts; thatrespondents/plaintiffs could not prove their ownership qua the land in question on the ground that the espondents/plaintiff have got registered sale-deed from Mutation No. 4931 dated 5.10.1981 in which only the share of Khasra number has been given qua the disputed property but the learned 1st Appellate Court did not advert to this aspect of the case at all; that Respondent No. 5 sold land in favour of Respondents Nos. 1 to 4/plaintiffs through registered sale-deed mentioned the property number which was not mentioned in the first sale-deed but the 1st Appellate Court did not advert to this aspect of the case; he summed up bis arguments that contents of plaint reveal that the petitioner/defendant occupied the suit land three years before challenging the suit; whereas Allah Din-PW. 3 admitted in his evidence that the petitioner is in possession of the suit property from twenty to twenty two years; that the petitioner produced sufficient oral as well as documentary evidence on record to prove the version of the petitioner whereas the respondents failed to bring on record sufficient evidence to prove their ownership; the suit is barred by time by virtue of Article 142 of the Limitation Act but the 1st Appellate Court wrongly relied upon Article 144 of the Limitation Act, therefore, findings of learned A.D.J. is not sustainable in the eyes of law.

2. Learned counsel for respondents contended that title of the property was specifically described in the head note of the plaint and paragraph 1 of the plaint; whereas the petitioner did not deny this fact. Subsequently in written statement; that descreption of the property in-question was specifically mentioned in the 1st sale-deed executed by Respondent No. 5 by G.D. Aurthor and mutation was attested on 5.10.1981; that Respondent No. 5 sold the land to Respondents Nos. 1 to 4 with the same descreption of the property alongwith the property number and the mutation was also attested in favour of respondents; that the grounds mentioned in the memorandum of revision petition and the contentions of petitioner's counsel are beyond the pleadings of the parties, therefore, the contention of petitioner's counsel has no force on the well known principle that parlies cannot go beyond their pleadings. He relied upon (1985 CLC 373); (1989 CLC 651). He further stated that both the Courts below have given concurrent findings of fact against the petitioner qua the adverse possession; that grounds of adverse possession is not available to the petitioner's counsel as the same has been declared against the Injunction of Islam by the Hon'ble Federal Shariat Bench of Supreme Court; that grounds for adverse possession is not available to the petitioner on the ground which must be in the knowledge of the opposite party but the petitioner failed to bring on record sufficient evidence to show that it was in the knowledge of the respondents; that the petitioner is in possession of the disputed property as a owner. He further stated that on Court's question DW. 5 stated as follows :-- He further stated that learned trial Court wrongly relief upon Article 142 of the Limitation Act beyond the pleadings of the parties on the ground of tenancy; that petitioner has field suit against Respondent No. 5 mentioned the same property on 19.1.1982, therefore, petitioner is estopped to controvert the same on the basis of the well known principle of estoppel and waiver. The entries in the Excise and Taxation Department register are made without notice to the parties concerned and no presumption of absolutely genuiness can be raised in respect thereof.

In rebuttal petitioner's counsel stated that learned 1st Appellate Court did not advert to the question of limitation and the 1st sale-deed executed by J.D. Aurthor mentioned above, reveals that he has sold share of the Khata without determination of specific part of properly; suit cannot be

decreed in favour of Respondents Nos. 1 & 2.

1. 1 have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is admitted fact that property in- question was sold by G. Aurthor vide sale-deed dated 5.9.1981 in favour of Dilawar Masih/Respondent No. 5/Defendant No. 2, who specifically described the property in-question in the contents of sale-deed with Specific Number of the property.

Respondent No. 5/Defendant No. 2 sold the same to Respondents Nos. 1 to 4 with property number alongwith descreption to the following effect: - The petitioner also filed suit against Dilawar Mehmood/Respondent No. 5 with the specific number of property alongwith descreption on 19.1.1982. The title/head note of the plaint and para 1 of the plaint of present suit also described the property in question but the petitioner did not controvert this fact in reply of para 1 of the plaint. The learned 1st Appellate Court, after proper appreciation of evidence of both the parties oral as well as documentary evidence has given findings of fact in the following terms:-

"It is proved that the appellants have become owners of the suit property by virtue of sale-deed dated 5.8.1982 Exh. P. 5 as well as mutation Exh. P. 6 attested on its basis. These documents remain unchallenged till today and hold the field. Findings of learned trial Court on this issue are set aside and the issue is decided in favour of the appellants."

Respondents Nos. 1 & 4 described the property in-question in head note of the plaint which is valid by virtue of Order 7, Rule 11 CPC. It is settled proposition of law where a land conveyed is described by boundaries as well as by areas, if there is a difference between the boundaries and the area, it is settled law that the land actually comprised within the boundary will be treated to have been conveyed. I am fortified by (AIR 1926 Patna 257). The aforesaid proposition of law is also supported by the following judgments:

"Sarwar'g case (PLD 1958 SLC. 569); U.B.L. India's case (PLD 1965 S.C. 274); Mst. NasimAkhtar's case(1986 CLC1267); and Muhammad Suleman'a cose (1990 CLC 110).

The 1st Appellate Court after proper appreciation of evidence decided Issue No. 4-A; 4-B in favour of respondents. It is settled proposition of law that entries in Excise and Taxation Department's register are made without notice to the parties concerned and no presumption of absolutely genuineness can be raised in respect thereof. I am fortified by Mian Muhammad Amin's case (1982 CLC 1770). D.W. 5 on Court's .question has admitted in the following terms:The findings of the 1st Appellate Court is in accordance with the judgment of Hon'ble Supreme Court in Muhammad Hakim's case (1973 SCMR 284) and the relevant observation is as follows:--

"the mere entry in the revenue record would not, therefore, support the plea of adverse possession. It is well settled that adverse possession must open overt and hostile to the knowledge of the true owner, if the person alleging such possession is to perfect his title by prescription."

I am also fortified by Abdul Ghafoor's case (1996 MLD 1263) Section 28 and Article 144 of the Limitation Act has already been declared against the Injunction of Islam by the Hon'ble Shariat Appellate Bench of the Hon'ble Supreme Court in Maqbool Ahmed's case (1991 SCMR 2063). The learned 1st Appellate Court also decided Issue No. 2 after proper appreciation of evidence in favour of respondents and in accordance with the principle laid down by the superior Courts; the findings of 1st Appellate Court is in accordance with the judgment of Hon'ble Supreme Court in Noora's case (NLR 1992 Civil 363); Afzal Khan's case (NLR 1994 Civil 695) and the relevant observation is as follows:--

"that the lawful owner of property cannot be non-suited on plea that opponent was in adverse possession for more than 12 years." Reference can also be made in Shah Muhammad's case (NLR 1992 Civil Law Judgments 48).

1. As regards the findings of learned A.D.J. on Issues No. 4; 4-A; 4-B; Issue No. 2; Issue No, 3 and Issue No. 1, it may be noticed that in his capacity as appellate Court, the learned A.D.J. possessed the jurisdiction to come to his own conclusion, on the basis of evidence adduced before the trial Court by the parties and resultantly he could competently reversed the findings of the trial Court on the question of facts involved in aforesaid issues. It is established proposition of law that findings on question of fact or of law, howsoever erroneous the same may be, recorded by a Court of competent jurisdiction, cannot be interfered with by the High Court, in exercise of its revisional jurisdiction, under Section 115 C.P.C. unless such findings suffer from jurisdictional defect, illegality or material irregularity. I am fortified by the judgment of Privy Council (PLD 1949 PC 126) and the relevant observations is as follows:

"This section empowers the High Court to satisfy itself upon three matter--

(i) that the order of the subordinate Courts is within its jurisdiction;

(ii) that the cage is one in which the Court ought to exercisejurisdiction;

(iii) that in exercise jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."

In view of what has been discussed, no jurisdictional defect has, of-course, been pointed out in this case and similarly no legal infirmity in the impugned judgment has been alleged. The upshot of above discussion is that there is no merit in this present civil revision which is accordingly dismissed with no order as to costs.

(SJV.) Petition dismissed.

PLJ 2000 Lahore 163

Present: MAULVI ANWAR-UL-HAQ, J. NAWAB KHAN etc.--Petitioners

versus

REHMAT BIBI etc.-Respondents

C.R. No. 1188 of 1996, heard on 21.9.1999. Muhammadan Law-

—West Pakistan Land Revenue Act, 1969 (XVII of 1967), S. 42-Limitation Act 1908 (DC of 1908), S. 3--Death of Muslim male owner-Mutation of inheritence was attested in favour of mother and sisters of deceased while collaterals were left out from inheritence--Courts below dismissed plaintiffs (collaterals) suit on ground of bar of limitation and estoppel-­Validity-Appellate Court had correctly maintained that mutation in question was illegal and void for the simple reason that after satisfying shares of mother and sisters of deceased, residue had to go to collaterals, therefore, Revenue Officer had no authority to exclude collaterals from inheritence-Court below had incorrectly found that suit having been filed after 33 years of attestation of mutation was barred by time-­Notwithstanding effect of death of deceased owner, parties being co-owners in land in question, were in joint possession thereof--No ouster of plaintiffs having been pleaded and established they would be deemed to be owners in possession of land in question from the moment inheritence was opened under Muslim Law-No adverse possession and no bar of limitation could thus, be pleaded against plaintiffs-There was also no limitation for filing suit in respect of void mutation-Presence of some of collaterals, at the time of attestation of mutation in question would not amount to acquiescence/estoppel in as much as they were in possession of property in question-Option lay with plaintiff to agitate-against mutation when they felt threatened by adverse entries in revenue record--Judgments and decrees of Courts below in dismissing plaintiffs suit suffered from material irregularity and illegality, therefore, same were set aside while plaintiffs suit was decreed.

[Pp. 165 to 167] A, B, C & D

PLD 1990 SC 1; PLD 1994 SC 462; PLD 1987 SC 453; 1969 SCMR 341; PLJ 1985 Lah. 1; PLD 1971 SC 762 ref.

Mr. Maqsood-us-Salam Khan Joyia, Advocate for Petitioners. Sh. Naveed Sheharyar, Advocate for Respondents. Date of hearing: 21.9.1999.

judgment

The admitted facts of this case are that Ghulam Rasool son of Khushi Muhammad was the last male owner of the suit land. He died on 11.9.1955. He was survived by his mother Mst. Rehmat Bibi, four sisters, namely, Fatima Bibi, Nazir Begum, Amina Bibi and Basbir Bibi and collaterals Nawab Khan, Jalal and Muhammad Khan sons of Molu, real brother of Khushi Muhammad. Molu and Khushi Muhammad are sons of Mala. Mutation No. 323 of inheritance of Ghulam Rasool was entered on 15.11.1955 and was attested on 25.11.1955. For reasons not discernable from the said mutation (Ex.D. 1) the land was mutated only in favour of the mother and the said sisters of Ghulam Rasool. On 28.11.1988 the petitioners filed the present suit claiming to be the owners of l/6th share in the estate of said Ghulam Rasool. The respondents filed a written statement objecting that the suit was barred by time. On merits it was admitted that the petitioners are the progeny of Molu, the brother of Khushi Muhammad, father of said Ghulam Rasool.

1. The learned trial Court framed the issues and evidence of the parties was recorded. The learned trial Court avoided to answer Issue No. 6 and holding the suit to be barred by time and further holding that the defendants are estopped by their conduct from filing the suit, dismissed the suit vide judgment and decree dated 8.7.1992. Feeling aggrieved the petitioners filed an appeal which was heard by a learned Additional District Judge, Mandi Bahauddin. The learned Additional District Judge held as a fact that the mutation was illegal and void but concurred with the findings of the learned trial Court as to limitation and estoppel and proceeded to dismiss the appeal videjudgment and decree dated 8.2.1996.

2. Learned counsel for the petitioners contends that both the judgments and decrees under appeal suffer from material irregularity on the part of the two Courts below. Learned counsel for the respondents, on the other hand, has tried to support the impugned judgments.

3. I have gone through the record, certified copies whereof are appended with the Civil Revision, with the assistance of the learned counsel for the parties. It has been correctly held by the learned Additional District Judge that the Mutation Ex.D. 1 was illegal and void for the simple reason that after satisfying the shares of the mother and sisters of Ghulam Rasool, the residue had to go to the petitioners and the Revenue Officer had no authority to exclude the petitioners from inheritance. Now this being the admitted position, it is to be seen as to whether the question of limitation has been correctedly decided. I find that both the learned Courts below have simply stated that the suit has been filed after 33 years of the attestation of the mutation and it is, therefore, barred by time. The written statement is silent and so are the two impugned judgments as to which particular provision of law of limitation governs the suit of the instant nature. The suit could have been dismissed only under Section 3 of the Limitation Act, 1908.The said provisions of law makes it mandatory that in case the suit is filed eyond the period of limitation prescribed in the Schedule to the said Act, the same shall be dismissed. The learned Courts below have failed to point out as to what is the period prescribed for the present suit under the chedule to the Limitation Act, 1908 and how is the suit found to have been filed beyond that period of limitation. The record, on the other hand reveals that notwithstanding the effect of death of Ghulam Rasool the parties are co- owners in the suit land and are in joint possession thereof. This position is evident from the certified copies of the Register Haqdaran Zamin for the years 1955-56, Ex.P. 3, 1965-66 Ex.P. 4, 1967-68 Ex.P. 5, 1971-72 Ex.P. 6, 1975-76 Ex.P. 7,1979-80 Ex.P. 8 and 1983-84 Ex.P.

4. Besides under the law the moment a Muslim owner dies, his estate passes on to the legal heirs in accordance with the Quranic injunctions. No mutation or any other act of State or individual is required for acquisition of the proprietory rights by inheritance (reference be made to the case of Ghulam All and 2 others vs.Mst. Ghulam Sarwar Nagvi (PLD 1990 SC 1). Thus apart from the fact that even prior to the death of Ghulam Rasool the petitioners were co-owners in the suit land. They became owners thereof to the extent of their Muslim Law share and are enjoying possession as Muslim Law co-heirs. Unless and until the respondents were first to plead and then to prove ouster of the petitioners and acquisition of title by them by way of adverse possession, the suit could never have been held to be barred by time. Even otherwise, there is no limitation for filing the suit in respect of a void mutation. The learned Appellate Court has itself held the mutation to be void. I draw support from this conclusion from the case of Moolchand and 9 others vs. Muhammad Yousuf (Udhamdas) and 3 others (PLD 1994 SC 462) and Haji through his Legal Heirs and others vs. Khuda Yar through his Legal Heirs (PLD 1987 SC 453).

5. Coming to the question of estoppel the learned Courts below have found Issue No. 2 in favour of the Respondents for the reason that one of them i.e. Nawab Khan was a marginal witness of a sale-deed whereby 25 Kanals of the suit land were-sold by the respondents in favour of Phalia Sugar Mills. This document is Ex.D. 2 on the record and registered on 4.12.1988, i.e. during the pendency of the suit which was filed on 28.11.1988. It is a settled proposition of law that knowledge of the contents of the document cannot be attributed to a person attesting the same as a witness. Reference is made to Askiq Hussain etc. vs. NisarALi etc. (1969 SCMR 341). Even if it be assumed that Nawab Khan was aware of the contents of the sale-deed the same could not have put him on any alert as the total land forming estate of late Ghulam Rasool is 88 Kanals while the sale is in respect of only 25 Kanals i.e. well within the share of the respondents.

6. So far as the presence of Jalal Khan, the predecessor-in-interest of Petitioners Nos. 4 to 8 at the time of mutation is concerned, the same is also of no legal effect. In the first instance he did protest against the exclusion of the reversioners and in the second the possibility cannot be ruled out that the petitioners opted to remain quiet as they continued to be in possession of the suit land alongwith the respondents as co-sharers/co- heirs. In such an eventuality option lay with them to file the suit as and when they felt threatened by the adverse entries in the Revenue record. Reference be made to the case of Shamas-ud-Din vs. Mst. Jewan and others(PLD 1985 Lahore 1).

7. Sh. Naveed Sheharyar, learned counsel for the respondents finally referred to the case of Ahmad Din vs. Muhammad Shaft and others (PLD 1971 SC 762) to contend that the presence of Jalal Din at the time of mutation would bar the present suit and would also make the same time barred. It appears that head note(a) of the said report is rather misleading. The ratio of the said judgment of the apex Court is that the mutation of inheritance in the said case was decided under the Rehabilitation and Settlement Scheme and the matter was within the exclusive jurisdiction of the Rehabilitation authorities. In the said context it was held that the Civil

Court had no jurisdiction to decide the said matter. It was thus held that the mutation having been decided by an Authority having exclusive jurisdiction, the suit was not competent and the question of limitation was also decided with reference to the basic fact that the mutation was held to be with jurisdiction. In the present case the learned Additional District Judge has held and rightly so that the mutation was illegal and void. The matter, therefore, is governed by the later dictum of the Supreme Court in the cases of Moolchand and 9 others and Haji through his Legal Heirs and others supra.

1. As a result of the above discussions I find that the impugned judgments and decrees suffer from material irregularily, in fact the learned Courts below have refused to exercise the jurisdiction vesting in them on a wrong decision of the questions of kw involved in the suit and as such the same are not sustainable. This Civil Revision is accordingly allowed. Both the judgments and decrees impugned herein are set aside. The result is that the suit of the petitioners stands decreed. The parties are left to bear their own costs.

(A~A.) Revision accepted.

PLJ 2000 Lahore 167

Present: tassaduq hussain jilani, J.

MUHAMMAD RIZWAN FAYYAZ-Petitioner

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE-Respondent

Writ Petition No. 1371 of 1999, decided on 26.8,1999.

Punjab Boards of Committee of Chairman IntermediatePart System Examination Rules-

—Rr. 7, 25, 26 & 28--Constitution of Pakistan (1973), Art 199-Petitioner's Intermediate Examination result was compiled by combining marks obtained in part I and Part II of such examination-Petitioner had obtained 100/100 marks in Mathematics Paper of Part-I but did not appear in Mathematics paper of Part II—Petitioner having secured more than 66 Marks was declared to have passed Intermediate Examination-Petitioner's application for permission to appear in Mathematics, paper of FSc-Part II only, so as to improve his marks was turned down by respondent-Validity-Petitioner having been declared successful in Intermediate Examination, he could not as per Rules appear in subject of Mathematics Part n Paper alone-Petitioner if wanted to improve his Division had to appear in all papers of Part II in terms of R. 28, of Punjab Boards of Committee of Chairman Intermediate Part System Examination Rules-No illegality in the act of respondent in refusing petitioner to appear in Mathematics, Paper Part II alone, had been pointed out-Petitioner, however, would be entitled to appear in all papers of Part II in terms of Rule 28 of Rules. [Pp. 172] A, B

Dr. A. Basit, Advocate for Petitioner.

Sh. Shahid Waheed, Advocate for Respondent.

Date of hearing: 17.3.1999.

judgment

Petitioner Muhammad Rizwan appeared in Part-I Annual F.Sc. Examination cleared all the subjects and secured 100 marks in the subject of Mathematics. In Part-II F.Sc. Examination he did visit the Examination Hall but, according to him, he could not attempt the Mathematic Paper as he was under a dizzy spell and was accordingly given zero "0" marks in the said paper. The Board of Intermediate and Secondary Education considering his performance in Part-I and Part-H Examinations announced the result and declared him pass even in Mathematics Paper as the result was announced by calculating the marks obtained in a subject both in Part-I and Part-II Examinations i.e. 66% marks. (He obtained 100/100 marks in Mathematics Paper of Part-I). As the petitioner was desirous of admission in a professional College he applied to the Board for appearing in Mathematic Paper of F.Sc., Part-II which request was turned down. Hence this petition.

1. Precise contention of the learned counsel for the petitioner is that a bare reading of Rules 25 and 26 of the Punjab Boards Committee of Chairman Intermediate Part System Examinations Rules would indicate that the petitioner has a right to appear in the subject he could not appear on account of indisposition as he had cleared all other subjects.

2. Learned counsel for the Board on the other hand submitted that under the Board of Intermediate and Secondary Education Examination Rules the result of F.Sc. Examination has to be compiled by combining the marks obtained in Part-I and Part-II of F.Sc. Examinations and if a candidate obtains 300 total marks in a Part-I or Part-II Examinations and 33% marks in individual subject, he would be considered as pass and he cannot re­ appear in the subject; that in case petitioner wishes to improve his division he has to appear in all the subjects of Part-II, F.Sc. Examination.

3. I have considered the submissions made by both the learned counsel and have also gone through the relevant rules.

4. For a better appreciation of the point in issue it is necessary to 1refer to some of the rules of the Board of Intermediate and Secondary Education Rules (Punjab Boards of Committee of Chairman Intermediate Part System Examinations Rules) which are as follows:-

5. A bare reading of Rules 7, 25 and 26 of the Board referred to above would indicate that to pass the Intermediate xamination in a subject, the marks obtained in Part-I and Part-II of a particular subject have to be counted and if a candidate obtains 33% marks in a subject he would be declared as pass provided he has 300 luarks in Part-I or Part-II in the aggregate. A candidate having less than 33% marks would be declared as having failed. Admittedly, the petitioner received 100 out of 100 marks in Mathematics Paper Part-I but could not appear in Mathematics Paper Part- II on account of his not feeling well at the relevant time. But while determining the final result i.e. Part-I and Part-II in the said subject, he obtained more than 66% marks. Thus he cleared the subject and was declared so. In aggregate also it is not denied that he has secured which more than the minimum numbers required. In these circumstances as per the Rules he could not appear in the subject of Mathematics Part-II Paper alone. If he wanted to improve his division, he has to appear in all the papers of Part-II in terms of Rule 28 referred to above. The afore-referred rovision is at para materia with the Examination Regulations framed by the University of the Punjab for Master of Arts/Science (Part-I & II) Examination (Chapter-X), Relevant para of Regulation No. 22 is as under:

"The candidates of MA/M.Sc. who want to improve their third division be allowed to appear in Part-I and Part-II Examination together or in Part-II Examination only at their option."

1. In the afore-referred circumstances I do not find any illegality in he act of the respondent Board in refusing the petitioner to appear in athematics Paper Part-II alone. If he wants to improve his division, he may ppear in all the Papers of Part-II in terms of the afore-referred rules.

2. For what has been discussed above there is no merit in this petition which is hereby dismissed, (A.P.) Petition dismissed.

PLJ 2000 Lahore 173

Present: M. javed buttar, J.

Mst. MUQQADAS AKHTAR and another-Petitioners versus

PROVINCE OF PUNJAB through SEC. EDUCATION DEPARTMENT GOVT. OF PUNJAB, LAHORE and anothers-Respondents

Writ Petition No, 10063 of 1998, heard on 20.4.1999.

Punjab Civil Servants Act, 1974 (VIII of 1974)--

—S. 9--Constitution of Pakistan (1973), Arts. 199 & 212--Appointments of school teachers-All appointments made were during 1995-96 barring 18 teachers (whose names were mentioned) stood cancelled by general order of competent Authority-Validity—Impugned order did not name individuals whose services had been terminated-Order of termination did not say that appointments in question, were bogus, it merely said that approval, for appointment, given in 1995-96 have been found to be bogus-­No order which does not name civil servant whose services were being cancelled or terminated could be deemed to be an order in the eye of law— When there was no order in existence cancelling/terminating appointments/services of Civil Servants by name, said civil servants could not approach Punjab Service Tribunal in appeal against non-existing order, therefore, bar as cxintained in Art. 212(2) of the Constitution in regard to jurisdiction of High Court was not attracted to facts of present case-Services of petitioners could not be deemed to have been cancelled in as much as impugned order did not give the name, of those whose appointments had been cancelled-Petitioners were, thus, declared to be in service and action of Head masters/Incharge of schools, stopping petitioners from performance of their duties as teachers on basis of impugned order was declared to be without lawful authority-­Department, however would be at liberty to proceed against petitioners, if so desired, on individual basis, under relevant law. [Pp. 176 & 177] A & B

Ch. Muhammad Rafiq Warriach, Advocate for Petitioners.

Mr. Ashtar Ausaf Ali, Advocate General Punjab with Mr. Naeem Sadiq, Advocate for Respondents.

Date of hearing: 20.4.1999.

judgment

This judgment shall dispose of Writ Petitions Nos. 10063, 13325, 13324, 13323, 13322, 13321, 11438, 25636, 24773, 24709, 24223, 17935, 13761, 19880, 19491, 20541, 20517, 20294, 20246, 18747, 18299, 18686, 18685, 17984, 17983, 19483, 19484, 19256, 13486, 12969, 13339, 10911, 10727, 12268, 13487, 13724, 10982, 10753, 10621, 10908, 13582, 11715,13553, 18982, 19923, 25418, 12810, 13743, 13326, 13327, 13328, 13511, 11334, 13564, 12970, 19458, 11313, 23368, 13347, 10761, 23334, 20592, 11431, 12119, 24228, 23643, 19588, 23860, 12968, 11432, 23089, 24022, 11096, 20835, 23368, 18912, 19588 and 19080 of 1998 and Writ Petitions Nos. 1548, 856, 857, 5704, 1800 and 1063 of 1999 as the same order is impugned in all these petitions.

1. Learned Advocate General in these petitions, at the very outset, submitted that some of the petitioners in these petitions have approached he Punjab Service Tribunal and have availed the remedy of an appeal and, therefore, those writ petitions are liable to be dismissed on this score alone. Learned Advocate General has also produced the list of such petitioners. The list produced by Advocate General shows that Parveen Akhtar Petitioner o. 6 in Writ Petition No. 20835/98, Shakila Bano Petitioner No. 2 in Writ Petition No. 18912/98 and Abida Parveen Petitioner No. 1 in Writ Petition No. 13776/98 have filed appeal before the Punjab Service Tribunal. As they have already availed the remedy of an appeal before the abovesaid forum, therefore, Writ Petitions Nos. 20835,18912 and 13776 of 1998 to their extent stand dismissed.

2. The facts, in brief, as alleged in all these petitions are that the petitioners having been appointed as PTC teachers in the years 1995/1996, were performing their duties as teachers in various schools when the impugned order dated 3.4.1998 was passed by the Deputy District Education Officer (W), Tehsil Sheikhupura to the effect that except the within mentioned 18 teachers, all the appointments made during 1995-96 stood cancelled with immediate effect and a general direction was also issued to all the DOs/headmistresses that barring those 18 teachers, all other such teachers may be discharged from their respective schools. The said order of Deputy District Education Officer (W), Tehsil Sheikhupura has been impugned by the petitioners in these petitions and it is contended on their behalf that on the basis of this general order, the respective Headmasters/Incharges of the schools have stopped the petitioners from the performance of their duties as PTC teachers although the services of none of them have been terminated on individual basis and no such order terminating the services of any of the petitioners, naming them as such, on individual basis, has been passed by any competent authority and the petitioners' services cannot, in kw, be deemed to have been terminated through the impugned order, which does not even name the individuals whose service are supposed to have been terminated.

3. On the other hand, learned Advocate General, while opposing all these petitions, has argued that these petitions suffer from jurisdictional defect due to the bar as contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 and that as the appointments of the petitioners were found to be bogus after detailed scrutiny, therefore, their appointments have rightly been cancelled by the respondent-Deputy District Education Officer.

4. The impugned order /toes not name the individuals whose services have been terminated and through the said order it is being deemed that the appointments of the petitioners, who are civil servants, have already put in more than V« years of service, have been cancelled. It is a noval order which is reproduced below:

'OFFICE OF THE DEPUTY EDUCATION OFFICER (WOMEN) SHEIKHUPURA

ORDER No. 277/E.I Dated 3.4.1998

Subject; CANCELLATION OF PTC APPOINTMENTS

As per verification made by the Deputy Commissioner/ Chairman Distt Recruitment Committee, Sheikhupura, vide his Office No. AEB/2113 dateo 27.3.1998, the approvals/proceedings made for appointment of PTC teachers, issued during 1995-96 have been declared bogus except the following (18) candidates, therefore, all other appointments of PTC teachers made by this office during 1995-96 are hereby cancelled with immediate effect All the DDO's are requested that in exception of the following lady PTC teachers, if any teacher is working in your school/jurisdiction showing the appointment during the year 1995-96 may be discharged from the school considering bogus on under intimation to this office, moreover a certificate stating that no such teacher is working in your school may also be supplied to this office, failing which the head of institution/DDO's will be held responsible for all the consequences.

List of (18) kdy PTC candidates whose approval/ proceedings have been verified by the Deputy Commissioner, Sheikhupura are as under.-

Sr.No. Name with parentage.

1. Mst. Fouzia Batool d/o. Syed Shabbir Hussain.

2. Mst. Farhat Khurshid d/o. Muhammad Din.

3. Mst. Sobia Iram d/o. Khalid Mehmood.

4. Mst. Zahida Parveen d/o. Muhammad Ramzan.

5. Mst. Surriya Anwar d/o. Muhammad Anwar.

6. Mst. Rubina Kousar d/o. Muhammad Shukat

7. Mst. Tahira Yasmin d/o. Muhammad Khan.

8. Mst. Shakila Asmat d/o. Asmat Ullah.

9. Mst Fouzia Ibrahim d/o. Hafiz Muhammad Ibrahim.

10. Mst. Farzana Ihsan d/o. Muhammad Ihsan.

11. Mst. Anwar Jahan d/o. Muhammad Sadimio

12. Mst Farida Bashir d/o. Bashir Ahmad.

13. Mst. Nasira Anwar d/o. Syed Anwar Hussain.

14. Mst. Riffat Afea Cheerna d/o. Muhammad Ismail.

15. Mst. Shahzadai Ghazala Iram d/o. Ghulam Rasul.

16. Mst Shafqat Naheed d/o. Muhammad Aslam.

17. Mst.Rahat Shahzadi d/o. Ah' Akbar.

18. Mst. Fouzia Fahim d/o. Muhammad Ismail.

Deputy Distt: Education Officer, (Women) Tehsil, Sheikhupura."

1. The appointments made about »/4 years ago during 1995 and 1998 of all the P.T.C. Teachers in District Sheikhupura, who are hundreds in number, are said to have been cancelled through the impugned order. The present petitions have also been filed by hundreds of such P.T.C. Teachers. The order narrates that the same is being passed because the Deputy Commissioner/Chairman, vide his letter dated 27.3.1998, has declared that the approvals/proceedings made for the appointment of the P.T.C. Teachers during 1995-96 have been found to be bogus except those of the eighteen (18) mentioned in the impugned order. No material has been brought on the record to show that as to how the Deputy Commissioner came to the conclusion that the appointments of hundreds of these P.T.C. Teachers, made during the years 1995/96, were bogus. The order also shows that the Competent Authority/Deputy District Education Officer (W), Tehsil Sheikhupura has passed the impugned order of cancellation of all these appointments merely on the basis of the above said letter dated 27.3.1998 of the Deputy Commissioner, Sheikhupura. The order does not show that the Deputy District Education Officer, the Competent Authority, has acted independently or has held any inquiry in regard to the genuineness or non-genuineness of the said appointments. The application of mind by the Competent Authority is missing. This is not the end. The impugned order does not even bother to name the P.T.C. Teachers whose appointments are being cancelled, through the impugned order. All these teachers have been getting their salaries paid by the Education Department for the last a/4 years and though the impugned order it is being described that their appointments stand cancelled as the approvals given for their appointments in the years 1995/96 have been found to be bogus by the Deputy Commissioner. The order does not say that the appointments were bogus. It merely says that the approvals for the appointment given in the year 1995/96 have been found to be bogus and the detail as to how the same have been found to be bogus is not forthcoming. In these circumstances, it is not understandable as to how the appointments of all these hundreds of P.T.C. Teachers are being said to have been cancelled through the impugned order which does not even name \ the said P.T.C. Teachers. No order which does not name the civil servant whose services are being cancelled or terminated can be said to be an order in the eye of law, cancelling/terminating the appointment/service of the said civil servant. In answer to a query posed by this Court, learned Advocate General, Punjab, has tried to argue that the civil servants whose services are being terminated have not been named in the impugned order because the same are not traceable as most of them were working in ghost schools. The explanation is not understandable. All these employees have been paid their salaries for these years and, therefore, to say that they have not been named in the impugned order because they cannot be traced is merely the ill-instruction given to the learned Advocate, General, Punjab, by the Education Department. In these circumstances, when there is no order in existence cancelling/terminating the appointments/services of civil servants by name, the said civil servants cannot approach the Punjab Service Tribunal in an appeal against a non-existing order, therefore, the bar as contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 in regard to the jurisdiction of this Court is not attracted to the facts of this Court.

2. In view of the above mentioned all these Constitutional petitions are accepted and it is declared that through the impugned order, the services of the petitioners have not been cancelled as the same does not have the names of those whose appointments have been cancelled. Consequently the petitioners are declared to be in service and the action of the Headmasters/Incharges of the schools, stopping the petitioners from performance of their duties as P.T.C. Teachers, on the basis of the above said impugned order, is declared to be without lawful authority. It is, however, clarified that the department is at liberty to proceed against the petitioners, if so desired, on individual basis, under the relevant law and under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975.

(A.P.) Petition accepted.

PLJ 2000 Lahore 177

[Multan Bench Multan]

Present: tassaduq hussain jilani, J. MANZOOR AHMAD-Petitioner

versus

ZAFARIQBAL etc.~Respondents Writ Petition No. 291 of 1992, heard on 9.3.1998.

(i) Colonization of Government (Lands) Punjab Act, 1912 (V of 1912)--

—S. ID-Constitution of Pakistan (1973), Art. 199-Horse breeding tenancy-­Allotment of land comprised in such tenancy-Mode of allotment-Horse breeding tenancy is not heritable tenancy, however, after the death of lessee with a good horse/mare breeding record, tenancy should be allotted to heirs of deceased in preference to any other applicant-No heir wduld become entitled to allotment after death of original breeder merely because of bis daim of inheritance; good record of up-keep of horse/mule is, however, a condition precedent-Nomenclature of such scheme would show that scheme is primarily meant for remount breeding and good record of up-keeping of animal was sine qua non for any claim for its allotment. [P. 179] A

<ii) Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)-

—S. 10-Constitution of Pakistan (1973), Art 199~Horse breeding tenancy-Mode of allotment of such tenancy-Two sons of last allottee claimed horse breeding tenancy of their father-In ignoring eldest son of last tenant, District Remount Officer had given weighty reasons and had recommended, younger son (respondent) as "sarbrah" on grounds which were supported by record-Neither in body of petition nor in argument, any material had been brought to dislodge finding of fact arrived at which had been maintained by commissioner in appeal and Board of Revenue in revision-Selection of tenants being in discretion of Provincial Government, High Court could not substitute its findings with finding of Tribunal of competent jurisdiction unless order in question, was shown to be corum-non-judice or had been passed in derogation to law and relevant rules—Petitioner was, thus, not found entitled to relief claimed.

[P. 181] B

PLD 1976 SO 435 ref.

Mr, M.R. Khaiid Malik, Advocate for Petitioner.

M/s. Tariq Zulfiqar Ahmad Ch. and Rana Taj Mehmood Khan, Advocates for Respondents, Date of hearing: 9.3.1998.

judgment

After the .death of Ghulara Farid son of Lai Khan, an allottee of the Horse Breeding tenancy, the District Remount Officer on 18.7.1983, recommended the name of his wife Mst. Sahiba Bibi for allotment and proposed Zafar Iqbal, her son as "Sarbrah" for maintaining the bound animal and for meeting the obligations of the terms and conditions of the tenancy. Concurring with the said recommendation, the Deputy Commissioner/ Collector Sahiwal, allotted the said tenancy in the name of Zafar Iqbal vide order dated 5.1.1986 for four years. The petitioner challenged this order in appeal which was dismissed on 5.6.1991 and his revision before the Board of Revenue met the same fate vide order dated 28.11.1991 which is impugned herein.

1. Learned counsel for the petitioner has assailed the finding of the three Courts below on the ground that the recommendation of the District Remount Officer is against the record; that the Deputy CommissionerCollector was not bound by the same; that Mst. Sahiba Bibi was not an allottee and she could not have surrendered the tenancy in favour of Zafar Iqbai, her son and that petitioner being the eldest son of the deceased breeder and as all the legal heirs i.e. Mst. Balqees Begum, Mst Hafeez Fareed, Mst. Shahnaz Farid and Khalid Farid have surrendered their claim in favour of the petitioner, he has a better claim this his step-mother Mst. Sahib Bibi.

2. Learned counsel for the respondent on the other hand, has defended the impugned judgments by submitting that Mst. Sahiba Bibi was the first wife of the deceased breeder Ghularn Farid; that she had been permanently living in Chak No. 99/9-L Tehsil Sahiwal; that during the said period, she was actively involved in the upkeeping of the bound animal and was also associated by her son Zafar Iqbal as Ghulam Farid, the original breeder was bedridden during the last eight years (on account of paralysis) preceding his death; that there is material on record that Zafar Iqbal was associated with her deceased father in the maintenance of the bound animal; that Mst. Kaniz Bibi has also surrendered her claim in his favour and that the affidavit dated 16,9.1992 a copy of which was placed before the Deputy Commissioner, indicated that the deceased had nominated Zafar Iqbal for the maintenance of the animal in question.

4- Heard. I have given anxious thoughts to the arguments addressed at the bar.

1. The horse breeding tenancy is not heritable tenancy in the strict sense. However, a reading of memo. No. 868-C dated 19th February, 1951 from the Board of Revenue addressed to Deputy Commissioners Sahiwal and Multan would indicate that after the death of a lessee with a good horse/mule breeding record, the tenancy should be allotted to the heirs of the deceased in preference to any other applicant. A heir does not become entitled to allotment after the death of the original breeder merely because of his claim of inheritance, a good record of up keep of the horse/mule breeding is a condition precedent. This is so because the very nomenclature of the scheme would show that this is primarily meant for remount breeding and a good record of the up keeping of the animal is sina qua non for any claim for its allotment In Muhammad Asghar vs. Mst. Sofia Begurn and another (PLD 1976 Supreme Court 435), the nature of the scheme and the criterion of tenancy of breeding after the death of the original breeder came up for consideration and at page 447, the Hon'ble Supreme Court observed as under:

"This grant of the tenancy, as its very name implies, was made for remount breeding. Indeed, this was the sole purpose behind the grant of the tenancy by the Government. Under its Statements of Conditions, before entering into possession of the land allotted to him, the tenant is required to produce a mare which I s fit for breeding-remount for the army and which has been approved by an Officer of the Government appointed for the purpose. The tenant is bound to regularly breed from the mare, horses and/or mules as the officer appointed to supervise the remount breeding operations shall, from time to time, direct, utilising only the services of a horse or donkey stallion selected by the said officer. He is not permitted to sell or otherwise transfer the progeny of the mare except to the Government at such price as may be determined by the officer concerned. It is his duty to maintain and manage the mare and its progeny to the satisfaction of the officer appointed to supervise remount breeding operations. This presupposes that only those who are considered suitable to discharge these obligations of the remount breeding operations are eligible for the allotment This is a condition precedent and the choice is confined to those who are considered suitable and have thus qualified for the allotment"

In the case in hand, the District Remount Officer after considering the respective claims of Mst. Sahiba Bibi widow of the deceased breeder and Mst. Balqees, the second widow of the deceased breeder, recommended Mst. Sahiba Bibi and opined as unden--

"Sahib Bibi:- She is the 1st wife of deceased breeder Ghulam Farid who has through out been living permanently in Chak No. 99/9-L Tehsil and District Sahiwal since the time she got married management of bond animals not only during the life time of her husband Ghulam Farid but even after his death of 4.1.1983. During the entire period of this tenancy especially during the last eight years or so when Ghulam Farid had paralysis and was living in the said Chak with her son Zafar Iqbal. She was helped and actively associated by her son Zafar Iqbal in this regard. As a proof thereof Zafar Iqbal produced the following documents before the DRO:~

(a) Bound mare covering certificate.

(b) Montgomery Horse Breeders Association Annual subscription receipts for the period from 1976-77 to date.

Manzoor Ahmad the eldest son of deceased breeder did not bother much in the management of bound animals and instead was found to be more interested in becoming Lumberdar of Chak No. 99/9-L rather than any thing else. As a result thereof he has been appointed Lumberdar of this Chak w.e.f. 11.4.1983. He has very poor knowledge of breeding and management of horses and hence Not considered suitable.

In view of the fore-going facts it is recommended that the tenancy situated in Chak No. 99/9-L may please be allotted to Sahib Bibi the 1st widow of the deceased breeder Ghulam Farid w.e.f.4.1.1983. It is further proposed that her son Zafar Iqbal be appointed

her Sarbrah with a sole purpose of assisting her in fulfilling the obligations of this Remount Breeding Tenancy as heretofore."

The afore-referred recommendation of the DRO was endorsed by the Deputy Commissioner and the appeal filed against the said order was dismissed by the Commissioner Multan and the Revision filed before the Board of Revenue also met the same fate. In not recommending the second wife i.e. MsL Balqees, the DRO had given a very cogent reason and he was of the view:

'She has her house at Lahore where she has been permanent living throughout She had no association with the management of bound animals either during the life time of her husband Ghulam Farid or afterwards."

In ignoring the eldest son of Mst. Sahiba Bibi Le. petitioner, the District Remount Officer had given weighty reasons and had recommended Zafar Iqbal the younger son as "Sarbrah"on the grounds which are supported by record. Neither in the body of the petitioner nor during arguments, any material has been brought to dislodge the finding of fact arrived at which have been upheld by the Appellate Court (Commissioner) and the Revisional Court (Board of Revenue). Even otherwise, the selection of tenants is a discretion of the Provincial Government and this Court cannot substitute its finding with the finding of the Tribunal of a competent jurisdiction unless it is shown that the order is corum-non-judice or has been passed inderrogation to the law and the relevant rules.

For afore-referred reasons, I do not find any merit in this petition which is hereby dismissed with no order as to costs.

(A_A_) Petition dismissed

PLJ 2000 Lahore 181

Present:MUHAMMAD NASEEM CHAUDHRI, J. NAZAR MUHAMMAD-Petitioner

versus

DEPUTY COMMISSIONER etc.-Respondents

Writ Petition No. 7067 of 1998, heard on 16.12.1998.

Punjab Land Revenue Act (1967)-

—S. 161—Cancellation of Mutation by Deputy Commissioner in exercise of powers conferred upon him by Provincial Government under Notification dated 18th June (1985) No. 1590-89/1071-L.R. IV-Extent and validity of order passed thereunder-No doubt Deputy Commissioner of a District is representative of state-However, he cannot project his power beyond substantive and procedural law of province-Section 161 of land Revenue Act, 1967 has to steal eminence-Power and authority to set law in motion is linked with substantive jurisdiction without which proceedings cannot be initiated by Deputy Commissioner and consequently processed with~No doubt he has supervisory jurisdiction over his subordinates yet he cannot trespass into jurisdiction of any other officer-There are watertight compartments of jurisdiction as contained in Section 161 of Land Revenue Act. 196? for preference and hearing of appeals in revenue hierarchy-Notification dated 18.6.1989 does not empower Deputy Commissioner to entertain application and to pass impugned order dated 2.4.1989 and his constant assertion about bis jurisdiction in the matter-­Deputy Commissioner's order declared as coram nonjudice-

[P. 186 & 187] A

Malik Ijaz Hussain Ghorcha, Advocate for Petitioner.

Syed ZulfiqarAli Bokhari, Asstt. A.G. for Respondents Nos. 1 and 2.

Mr. Zafar Iqbal Chohan, Advocate for Respondent No. 3.

Date of hearing: 16.12.1998, judgment

One Faujdar son of Bahar All died issue less and mutation of inheritance Bearing No. 787 was attested by the Revenue Officer, Bhakkar on 2.3.1998 in favour of Ms paternal cousin Nazar Muhammad petitioner. Claiming to be the son of Faujdar deceased; Akhtar Ali Respondent No. 3 preferred the appeal before the Assistant Commissioner/Collector, Bhakkar against the aforesaid order dated 2.3.1998 which is still pending.

1. However, Akhtar Aii Respondent No. 3 also submitted an application before the Deputy Commissioner, hakkar/Respondent No. 1 on 2.4.1998 for the cancellation of aforesaid Mutation No. 787 attested on 2.3.1998 on the ground that Nazar Muhammad had no relationship with Faujdar and that he (Akhtar Ali) was his son. On 2.4.1998 Akhtar Ali alongwith his 32 witnesses, out of whom one is named as Muhammad Rafique, appeared. The Deputy Commissioner/District Collector, Bhakkar expressed the opinion that the witnesses produced before him were the persons of advanced age. After recording the version of Akhtar Ali the Deputy Commissioner, Bhakkar declared Mutation No. 787 attested on 2.3.1998 as inoperative and passed the order that the same shall not be entered in the record of rights. He also directed the Assistant Commissioner/Collector. Bhakkar to pass the detailed judgment after hearing the parties.

2. Feeling aggrieved Nazar Muhammad petitioner filed this Writ Petition No. 7067/98 to get declared the aforesaid impugned order dated 2.4.1998 as null, void, without lawful authority and inoperative on the grounds that he was not summoned and heard by the Deputy Commissioner, Bhakkur and that the appeal against the attestation of Mutation No. 787 sanctioned on 2.3.1998 was pending before the Assistant Commissioner/Collector, Bhakkar. In the writ petition he incorporated the material of his reliance whereby he claimed to be the paternal cousin of Faujdar deceased and denied the relationship of Akhtar Ali Respondent No. 3 with the deceased.

3. The comments were called from the Deputy Commissioner, Bhakkar who admitted about the Sling of ao application by Respondent No. 3 for cancellation of disputed mutation before him. He admitted the passing of the impugned order and took up the stand that he was competent to pass such an order as he had the jurisdiction to review the mutation under Notification No. 590:89/1071-LR/TV dated 18.6.1989 issued by the Board of Revenue Punjab, Lahore. He maintained that the impugned order dated 2.4.1998 passed by him was not contrary to kw. He expressed that the present writ petition was premature as no final order regrading disputed mutation has since been passed. He also expressed about the relationship of Akhtar Ali Respondent No. 3 with Faujdar deceased and also intimated this Court about the pendency of a civil suit before the learned Senior Civil Judge, Bhakkar. He added that Mutation No. 787 dated 2.3.1998 was sanctioned by the revenue field staff incorrectly which was rightly declared as ineffective by him on 2.4.1998 and his order restraining the revenue field staff to implement the same was perfectly valid. He added that the final order has still to be passed by the Assistant Commissioner/Collector, Bhakkar in the appeal pending before him. The writ petition has also beenresisted by Akhtar Ali Respondent No. 3.

4. The matter was under process. Vide order dated 1.12.1998, I passed the order for the personal appearance of Malik Mazhar Farid, Deputy Commissioner, Bhakkar before this Court on 16.12.1998 with the observation that in this case an important matter is to be considered as to whether the order of the sanction of mutation by the Revenue Officer has to be considered in appeal by the Assistant Commissioner/Collector, Bhakkar or any remedy is available before the .Deputy Commissioner/District Collector, Bhakkar which revolved around the important dispute with respect to the substantive jurisdiction of the District Collector in the revenue hierarchy as the Deputy Commissioner, Bhakkar is asserting his jurisdiction in the matter in the comments. However, on 16.12.1998 a copy of the order ated 10.12.1998 passed by the Deputy Commissioner, Bhakkar was placed before this Court which was added to this file. Through the said order dated 10.12.1998 the Deputy Commissioner, Bhakkar reviewed the impugned order dated 2.4.1998 and himself set-aside the same. Due to the aforesaid order dated 10.12.1998 Malik IJaz Hussain Ghhorcha, Advocate for Nazar Hussain writ petitioner withdrew this petition when it was recorded that obviously the parties are at array at the appellate stage because the appeal is pending before the Assistant Commissioner/Collector, Bhakkar and the same shall be disposed of in accordance with law.

5. As such I passed the order for the disposal of the writ petition as withdrawn.

6. Even though actually I have passed the order for the disposal of the writ petition as withdrawn due to the passing of the order dated 10.12.1998 by the Deputy Commissioner, Bhakkar, I have chosen to disposeof the controversy involved in this writ petition on merits as the same is that of public interest litigation and will be a source of convenience to the land owners in the Province wherein the substantive jurisdiction of the Deputy Commissioner/District Collector has been challenged and questioned in the aforesaid circumstance.

7. Section 42 of the Land Revenue Act, 1967 deals with the procedure for making of that part of periodical records which relates to the land-owners. Under sub-section (6) of this Section 42 of the Act the mutation of inheritance, purchase, mortgage, gift or acquisition of any right otherwise is sanctioned by the Revenue Officer after the entries made by the Patwariin the Register of Mutations are placed before the Revenue Officer. It is a matter of common knowledge that a Revenue Officer is either a Tehsildar ora Naib Tehsildar who can sanction a mutation of the instant nature. Against the order of the Revenue Officer an appeal is competent before the Collector when the order is made by an Assistant Collector of either grade; the appeal is competent before the Commissioner when the order is made by a Collector and the appeal is preferred before the Board of Revenue only on a point of law when the order is made by the Commissioner. A perusal of Section 161 of the Land Revenue Act, 1967 has made out that the DistrictCollector/Deputy Commissioner stands eclipsed therefrom and thus the vires of the sanction of Mutation No. 787 on 2.3.1998 by the Revenue Officer could not be analysed, dissected and considered by the District Collector. This being the position he could not cancel the Mutation No. 787 dated 2.3.1998.

8. At this stage 1 deem it proper to reproduce as under Notification dated 18.6.1989 referred to and relied upon by the Deputy Commissioner, Bhakkar so that the true picture emerges:™

"GOVERNMENT OF THE PUNJAB REVENUE DEPARTMENT NOTIFICATION:

Lahore, dated the 18th June, 1989.

No. 1590-89/1071-LR.IV. In supersession of Government of the Punjab, Revenue Department's Notification No. 454-B/87/818-LR.IV, dated the 10th May, 1987, the Governor of the Punjab, inexercise of the powers under sub-sectio\ |i) of Section 16 of the Punjab Laud Revenue Act, 1967, is pleased to confer all the powers of Collector under the said Act upon the Assistant Commissioners, to be exercised within the area of their respective jurisdiction, subject to the control and supervision of the District Collectors concerned. The following cases will, however, continue to be taken cognizance by District Collector directly:--

(i) Appeal against the orders of Assistant Collector 1st Grade in cases of partition;

(ii) Correction in revenue records;

(iii) Sanction for review of mutations;

(iv) Suspension and remission of Land Revenue;

(v) Creation of demand of Land Revenue; and

(vi) Appointment or removal of Headmen (Lambardars).

By Order of the Government of Punjab

Sd/-

Additional Secretary, Government of the Punjab, Revenue Department

No. 1590-89.1073-JV.

A copy is forwarded for the information and necessary action to:~

1. All the Commissioners of Divisions in the Punjab.

2. All the Additional Commissioners (Rev) in the Punjab.

3. Secretary (Settlements), Board of Revenue, Punjab. '

4. Director Land Records, Punjab, Lahore.

5. Director Punjab Revenue Academy, 161-C, Peco Road, Township, Lahore.

6. All the Deputy Commissioners in the Punjab.

7. Settlement Officers, D.G. Khan and Rajanpur.

8. The Managing Director, Cholistan Development Authority, Bahawalpur.

9. All the Assistant Commissioners in the Punjab.

10. The Political Assistants, D.G. Khan Rajanpur; and

11. The Additional Deputy Commissioner (General), Lahore City and Lahore Cantt

12. Registrar, Board of Revenue, Punjab;

13. Librarian, Board of Revenue, Punjab, Lahore;

14. Private Secretary to the Minister for Revenue, Punjab, Lahore.

Sd/-

Additional Secretary, Government of the Punjab, Revenue Department.

1. The Deputy Commissioner, Bhakkar is under the impression that he baa the over all supervisory jurisdiction upon his subordinates in the District and can analyse and look into an order passed by them. With all the regards I would express that he is mistaken and his view is simply based on conjectural hypothesis which cannot be approved by giving the weight to the same. No doubt the Deputy Commissioner of a District is the representative of the State. However, he cannot project his power beyond the substantive and procedural law of the Province. Section 161 of the Land Revenue Act, 1967 has to steal the eminence. The power and authority to set the law in motion is linked with the substantive jurisdiction without which the proceedings cannot be initiated by the Deputy Commissioner and consequently processed with. No doubt he has the supervisory jurisdiction over his subordinates yet he cannot trespass into the jurisdiction of any other officer. There are water tight compartments of jurisdiction as contained in Section 161 of the Land Revenue Act, 1967 for the preference and hearing of the appeals in the revenue hierarchy. The Notification dated 18.6.1989 does not empower the Deputy Commissioner to entertain the application and to pass the impugned order dated 2.4.1989 and his constant assertion about bis jurisdiction in the matter. I am tempted to express that even the pecuniary jurisdiction or the territorial jurisdiction of the Presiding Officer has to play the legal role. Keeping in view the mandatory provisions of Section 161 of the Land Revenue Act, 1967 the jurisdiction of the Deputy Commissioner, Bhakkar to entertain and decide the application 2.4.1998 made by Akhtar Aii Respondent No. 3 has not been incorporated/finds mention in the Land Revenue Act, 1967. It is simply surprising that the Mutation No. 787 was sanctioned on 2.3.1998 in favour of Nazar Muhammad writ petitioner, while on 2.4.1998 the miscellaneous application was filed by Akhtar AM Respondent No. 3 before the Deputy Commissioner, Bhakkar who without issuance of any notice to the adverse party i.e. Nazar Muhammad and without hearing him condemned him unheard and passed the order declaring the aforesaid Mutation No. 787 dated 2.3.1998 as inoperative and restrained its entry in the record of rights. The law of land does not provide any djcjiptpjoy. of the aforesaid nature i.e. pendency of the said appeal before the Court of competent jurisdiction Le. Assistant Commissioner cum Collector Bhakkar and entertainment of the miscellaneous application by the. Deputy Commissioner, Bhakkar and its disposal on merits. In case the summary order dated 2.4.1998 is approved there would be administrative choag ira the society leading towards judicial anarchy in the revenue hierarchy. I would express that such a working must be avoided by the Deputy Commissioner, Bhakkar who has also to keep in mind the shape of scale of justice. Under Section 163 of the Land Revenue Act the Deputy Commissioner was himself competent to review his own order dated 2.4.1998 which has been reviewed by him vide order dated 10.12.1998 and lias been set-aside. The stand taken by the Deputy Commissioner/District Collector, Bhakkar in the comments that he could "review" the order dated 2.3.1998 about the attestation of Mutation No. 787 by the Revenue Officer is devoid of legal force as he can review bis own order or that of his predecessor-in-accordance with law and not that of any subordinate including fee Revenue Officer(s). He has no supervisory jurisdiction of the aforesaid asserted nature in view of Section 163 of the Land Revenue Act, 1967 dealing with the provisions of "Review". Further his stand is also against the policy of the Government as the powers have been divided and decentralized through the issuance of the aforesaid Notification dated 18.6.1989 read with Section 161 of the Land Revenue Act, 1967 for the convenience of the land owners. ! would express that this interpretation should not be taken in bad taste especially when the Deputy Commissioner/District Collector, Bhakkar has himself corrected his own order dated 2,4.1998 through the passing of order dated 10.12.1998 as he could review Ms ownorder. He has proceeded in the matter at his own end to redress the grievance of the writ petitioner and I would express that "all is well that ends well'.

2. In consequence it is declared that against the sanction of a mutation under Section 42 of the Land Revenue Act, 1967 the appeal has to be preferred before and beard by the Assistant Commissioner/Collector, Bhakkar and the Deputy Commissioner/District Collector, Bhakkar has no jurisdiction to entertain any application and to pass the impugned order dated 2.4.1998 which was simply coram-non-judice from the date of its announcement.

3. No order as to costs.

(T.A.F.) Orders accordingly.

PLJ 2000 Lahore 187 (DB)

Present:MUNIR A. SHEIKH AND TASSADUQ HUSSAIN JlLANI, JJ. flq/i NOOR-UL-HAQ-Petitioner

versus COLLECTOR OF CUSTOMS and others-Respondents

W.P. No. 4293 of 1990, heard on 22.5.1997.

Customs Act, 1969 (IV of 1969)-

—Ss. 168 & 180-Constitution of Pakistan (1973), Art. 199--Seizure of goods under S. 168, Customs Act 1969—FaOure to give show-cause notice within stipuled period of two months--Effect--Non-recording of reasons in order f extension of time-Validity-Seizure of goods could be either of two forms Le., either customs Authorities could take goods away and keep them under their own custody or where the same was not possible, could be kept with owner after obtaining bond for their safe custody-Period for seizure, however, should not be prolonged-Customs Authority must give show-cause notice for confiscation of goods in question, within two months of seizure failing which, person from whom goods were recovered would earn right to be restored possession of those goods—Such period of two onths could be extended for reasons to be recorded in writing- Collector of customs could not abdicate his authority to sub-ordinate functionary and pass mechanical order; he has to justify extension by reasons—Orders of extension of specified date by Collector of Customs could not be deemed to be orders within meaning of proviso to sub­ section (2) of S. 168, Customs Act 1969-No show-cause notice having been issued within period of two months of seizure as contemplated in law orders in question, were not sustainable in law—Owner of goods thus, had earned right for return of goods, in question-Non-compliance of S. 168(2) Customs Act 1969, would create light of return of goods, however, would not absolve delinquent from liability of fine if the same was warranted in law-Subject matter of petition was directed to be returned to petitioner. [Pp. 192 to 195] A, B, C, D, E & F 1983 C.L.C. 786; 1983 P.Cr.L.J. 2481; 1993 C.L.C. 1663; 1991 S.C.M.R. 647; PLD 1990 Kar. 412; 1986 C.L.C. 77; PLD 1973 S.C. 49; PLD 1956 Pesh. 7 ref.

Mr. S.M. Zafar, Senior Advocate Supreme Court with Malik Muhammad Arshad, Advocate for Petitioner.

Mr. Izhar-ul-Haq Sheikh, Advocate with Khan Muhammad Virk, Advocate for Respondents.

Dates of hearing: 21.5.1997 and 22.5.1997. judgment

Tassaduq Hussain Jilani, J.-Through this Constitutional petition the petitioner has called in question the Show Cause Notices issued to him pursuant to the search and seizure made by the Customs Authorities after the raid and it is prayed that the goods seized by them may be returned to the petitioner as the respondents failed to issue Show Cause Notices within the period stipulated in Section 168(2) of the Customs Act, 1969.

1. Brief facts giving rise to the filing of. the instant petition are that on a source report that smuggled auto spare parts are lying at the store of the petitioner, a raid was conducted by the Customs Authorities, search of the godown was carried out, a truck bearing No. QAD 9822 full of imported smuggled auto spare parts was found parked there, the driver of which ran away, the persons present at the godown could not give any proof of valid import of the afore-referred articles, a case was registered vide FIR No. 356/89 dated 19.11.1989 under Section 156/157/89(1)/178 of the Customs Act 1969 PS Misri Shah Lahore. A memo, of recovery and seizure qua the articles was prepared and having seized, the same, these were kept at the same godown under a bond obtained from one Haji Jalal. The same day a notice was given to the Driver and the Cleaner of the truck under Section 171 of the Customs Act. On 22.11.1989 yet another FIR (No. 362 dated 22,11,1989 PS Misri Shah) was registered against the owner of the godown wherein the details of the smuggled goods found in the godown were given. A separate recovery and seizure report of the same date was prepared with regard to these goods, No Show Cause Notice was served under Section 180 of the Customs Act witlun two months as mandated under Section 168. The Collector of Customs extended the period for two months vide order dated 11.1.1990 (in case Fffi No. 356/89 seizure dated 18.11.1990) and for one month vide order dated 13.1.1990 (in case FIR No. 362/89 dated 22.11.1989). This period was further extended 01 18.2.1990 (FIR No. 356/89) and 1S.2.1990 (FIR No. 362/89) for one month in both the afore-referred cases. After completion of inquiry two Show-Cause Notices dated 13.2.1990 and 18.3.1990 were issued in respect of the cases registered which have been challenged through the instant petition.

2. Mr. S.M. Zafar, Advocate, learned counsel for the petitioner while referring to the provisions of Section 168 of the Customs Act submitted that as the Customs Authorities had failed to issue Show Cause Notice under Section 180 of the Customs Act within two months of the seizure of the goods, the said goods are liable to be returned to the petitioner in terms of sub-section (2) of Section 168 referred to above. He further argued that the so-called order of extension passed by the Collector Customs dated 11.1.1990 does not assign "reasons"'and therefore, is not an order in the eyes of law and in absence of a valid order extending time, the period of two months having elapsed without any notice under Section 180 of the Act, the petitioners areentitled to return of the goods seized. With regard to extension of time in eizure in FIR No. 362/89 dated 23.11.1989 under Section 178/157/90/89(1)/156 of the Customs Act 1969 PS Misri Shah of Lahore he submitted that initially the period was extended for one month which expired on 12.2.1991 whereas the second extension in this case was granted on 18.2.1990 and that too without "reasons" which order could not have been passed as this was passed after the extended period had expired and notduring the currency of the extended period. In support of his submissions, he relied on Ilam Khan vs. Government of Pakistan and 3 others (1983 CLC 786), Shah Madar Khan and 2 others vs. SHO PS Kamokey and 2 others (1983 P.Cr.L.J. 2481), M/s. Latif Trading Company vs. Government ofPakistan (1993 CLC 1663) and Joint Secretary Central Board of Revenue (Customs) and others vs. Raja Nazar Hussain and others (1991 SCMR 647).

3. Learned counsel for the Customs Department Mr. Izharul Haq Sheikh, Advocate defended the action of the Customs Department by submitting that the order dated 18.11.1989 was not a seizure in the eyes of law and that the goods were only detained for the purpose of inspection at the godown and it was only on 23.11.1939 that the order of sizure was passed. Ha further submitted that Section 168 of the Customs Act does not control provisions of Section 180 of the Act and, therefore, the proceedings and adjudication to be made under the latter section cannot be stultified for non-compliance with any provision of Section 168 of the Act In support of the pleas he relied on Abdul Zahir and another vs. Director General Pakistan Coast Guard$ and 4 others (PLD 1990 Karachi 412) and Af/s. Yousaf Re-Rolling Mills v. Collector of Customs (Appraisement) Karachi and another (1986 CLC 77).

4. Having heard learned counsel for the parties and having gone through the precedent case law to which reference has been made at the bar we are of the view that following questions have been mooted for consideration of this Court in the instant case:-

(i) Whether the orders of seizures dated 18.11.1989 (in case FIR No. 356/89 PS Misri Shah Lahore and dated 22.11.1989, in case ftR No. 362/89 PS Misri Shah) were seizures within the contemplation of Section 168(2) of the Customs Act or the goods in question were merely detained by the Customs Authorities?

(ii) Whether in absence of recorded "reasons" which the law enjoins, the order dated 11.1.1990 (R-12) in seizure relating to (FIR No. 366/89 PS Misri Shah Lahore) extending period for two months and the order dated 13.1.1990 (R-13) in seizure relating to FIR No. 362/89 PS Misri Shah Lahore for extending the period could be deemed to be the orders under proviso to sub-section (2) of Section 168 of the Act?

(iii) If no Show Cause Notice is issued under Section 180 of the Customs Act within two months of the seizure of the goods in question and if there is no valid order for extention within the said period either, is the petitioner entitled to the return of the goods seized?

To better appreciate the points in issue it is necessary to reproduce Section 168 of the Customs Act which reads as under

"Seizure of things liable to confiscation.--^) The appropriate officer may seize any goods liable to confiscation under this Act, and where it is not practicable to seize any such goods, he may serve on the owner of the goods or any person holding them in his possession or charge an order that he shall not remove, part with or otherwise deal with the goods except with the previous permission of such officer.

(2) Where any goods are seized under sub-section (1) and no show- cause notice in respect thereof is given under Section 180 within two months of the seizure of the goods, the goods shall be returned to the parson from whose possession they wert seized:

Provided that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by period not exceeding two months.

3) The appropriate officer may aeizs any documents or things which in his opinion will be useful m evidence in any proceedingsunder this Act

(4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs."6. A bare reading of the orders dated 18.11.1989 and 22.11.1989 would show that these orders were in fact seizure reports pertaining to the foods in question. In the parawise comments submitted by the Assistant Director Intelligence and Investigation (Customs and Excise) Lahore these orders have been described as seizures. This is corroborated by the fact that these seizures were followed by notices issued by the seizing officer the same day under Section 171 of the Customs Act This notice is R-7 with the parawise comments (at page 143) and these notices can only be issued after the seizure has taken place. Section 171 reads as under:

"When seizure or arrest ig made, reason in writing to be given:-When anything is seized or any person is arrested under this Act, the officer or other person making such seizure or arrest shall, as soon as may be, inform in writing the person so arrested or the person from whose possession the things are seized of the grounds of such seizure or arrest."

The attempt by the learned counsel for the Customs Department to describe the orders as detention orders of the goods in question is not only in conflict with the comments submitted and the material on record but the word "detention" is alien to Section 168(2) of the Customs Act under which admittedly the respondent authorities had proceeded against the petitioners.

1. Argument of the learned counsel for the respondent is also contrary to the law laid down in Messrs Yousuf Re-Rolling Mills vs. Collector of Customs (Appraisement) Karachi and another (1986 CLC 77) wherein at page 83 it was held as under:

"Since two different sxpressions, namely, "Detention" and "Seizure" have been used in the Act and as not only these expressions appear to be somewhat different connotations, but further the consequences of seizure have been specifically detailed in the Act, while no such consequences in relation to detention have been spelt out or indicated in the Act, the inference suggested is that the Legislature has used the two expressions in different senses. The Supreme Court of Pakistan, in Zia-ur-Rehman's case (PLD 1973 SC 49) has held that use of different expressions by the Legislature in different clauses of the same article was indicative of different intentions, and observed in this behalf as follows:

"It is a well-established rule that we have to gather the intention of the law-maker from the words used by it; and if it has in two clauses of the same Article and different words, then it follows that its intention is not the same. Particularly, when such a conclusion also Appears to be in consonance with reason and just"

1. The "seizure\ of goods can be either of the two forms i.e. either the Customs Authorities may take the goods away and keep them under their own custody or where the same is not possible, can be kept with the owner after obtaining bond for their safe custody. In Ham Khan vs. Government of Pakistan (1983 CLC 786) at page 788 it was held as under:

"However, seizure of goods under the section may take place either by physical taking over of such goods by the Customs Officer or where physical taking over of the goods is not possible or practicable it may be affected by serving on the owner of the goods or any person holding these goods in possession or charge an order that he shall not remove, part with or otherwise deal with the goods except with the previous permission of such officer. The effect in both the cases is same, namely, the owner or the person in possession of goods is deprived of the right to deal with goods in any manner."

1. Coming to the question whether the orders dated 11.1.1990 and 13.1.1990 extending the time by two months and one month respectively are orders in terms of Section 168(2) of the Customs Act, it is necessary to reproduce the orders which are given below:

"GOVERNMENT OF PAKISTAN COLLECTORATE OF CUSTOMS, CUSTOMS HOUSE, LAHORE ORDER

Dated: 11.1.1990

In pursuance of the powers conferred upon me under Section 168(2) of the Customs Act, 1969,1 hereby grant an extension of two months as requested by the Deputy Director, Intelligence and Investigation (Customs and Excise) Lahore, vide his letter C.No. I.I.B (Cus) 207/89/28 dated 4.1.1990, in case FIR No. 356/89 dated 19.11.1989, for the purpose of issuance of show cause notice and completion of inquiry/'investigatioQ.

Sd/-

(MUHAMMAD AKMAL) Collector (Customs)"

"GOVERNMENT OF PAKISTAN COLLECTORATE OF CUSTOMS, CUSTOM HOUSE LAHORE ORDER

Lahore, dated the 13th January, 1990.

In pursuance of the powers conferred upon me under Section 168(2) of the Customs Act, 1969, I whereby grant an extension of one month as requested by the Deputy Director, Intelligence and Investigation (Customs and Excise) Lahore, vide his letter C.NO. I.I.B. (CUS) 209/89/79 dated llth January, 1990, in case FIR No. 362/1989 dated 23.11.1989, for the purpose of issuance of Show Cause Notice and completion of inquiry/investigation.

Sd/-

(MUHAMMAD AKMAL)

Collector (Customs)

(Lahore)."

Wither regard to FIR No. 362 of 1989, this period was further extended for one month on 18.2.1990 but this time reason was given i.e. "since the inquiry/investigation has not been finalized and as requested by Deputy Director".

1. A deeper look at Section 168 of the Customs Act would show that the intention of law makers appears to be that the period for seizure should not be prolonged and that the Customs Authorities must give a Show Cause Notice for confiscation of the goods in question within two months of seizure failing which the person from whom the goods were recovered earns a right to be restored the possession of those goods. This period of two months can be extended as provided in sub-section (2) but the order of extension has to be justified by "reasons to be recorded in writing". The Collector of Customs cannot abdicate Ms authority to a subordinate functionary and pass mechanical order, he has to justify the extension by reasons. Even if the reasons are not contained in the order the reasons may be part of the relevant file indicating conscious application of mind on the part of the Collector. In the instant case neither the orders extending the period contain any reason nor the relevant file has been produced to show that the concerned Collector had passed those orders after a conscious application of mind and had reasons to do the same. Even in the comments submitted and during arguments no reference was made to the reasons for extending time. In answer to para (c) of the grounds in the amended writ petition the reply given is as under:

"Here in this case, as discussed in the preceding paragraph (a) the date of seizure of goods is 22.11,1939 when the search was completed and when recovery-cum-seizure memo was prepared. Thereafter, on request made by the competent officer firstly on 11.1.1990 and secondly on 13.2.1990, the Collector of Customs granted extension of period of one month for the first time on 16.1.1990 videorder dated 13.1.1990 and another one month for the second time on 18.2.1990 vide order dated 18.2.1990 after recording reasons warranting extension of time in both the orders."

The so-called orders of extension dated 18.1.1990 and 22.1.1990 by the Collector Customs cannot be deemed to be orders within the meanings of proviso to sub-section (2) of Section 168 of the Customs Act This is in line with a judgment of the Karachi High Court reported in Abdul Zahir and another vs. Director General Pakistan Coast Guards and 4 others (PID 1990 Karachi 412) at page 418 it was held as under:

'Where the law requires that reasons shall be recorded for the passing of an order such reasons, if the order be judicial, must of necessity be found in the order itself and the order has 'to be a speaking order, if not the same would suffer from an error apparent on the face of the record and thus fall short of satisfying the requirement of law. Mere reference in the order to the request for the passage of the order, the request incorporating due justification or reasons, would not make such reasons to be part of the order because "the contemplated reasons are to be found within the order itself and not beyond. In cases of Quasi-judicial orders, requiring "reasons to be recorded in writing", as here, the only plausible difference can, perhaps, be that while reasons in writing must still be recorded, the relevant order may be retained on the file and a formal communication of extension may be addressed separately. Even this is not the ease in these proceedings and a purely subjective satisfaction on the part of the Collector clearly falls short of the statutory requirement. On this score, we do not find the Collector's order of extens" (<•• to be valid or sustainable."

In an earlier case reported as Dr. Sher Bahadur Khan Panee, Deputy Inspector General of Prisons, Northern Range, Peshawar vs. The Government of West Pakistan, through the Chief Secretary, West Pakistan Government, Lahore and another (PLD 1956 WP Peshawar 7) a Division Bench of the said Court had declared the order to be of no legal effect where "public grounds" had not been given in the order which the relevant law mandated.

PLJ 2000 Lahore 196

Present: sayed najam-ul-hassan kazmi, J.

RAUF YOUSAF-Petitioner

versus

BAHADUR ALI, MEMBER NIRC, LAHORE and 2 others-Respondents

W.P. No. 27740 of 1997, heard on 15.11.1999. Industrial Relations Ordinance, 1969 (XXIII of 1969)-

—S. 22-D-Constitution of Pakistan (1973), Art. 199-Alternate remedy of appeal being available against order in question, petitioner did not avail the same and filed Constitutional petition instead-Maintainability- Petitioner in the first instance was required to have exhausted remedy of appeal which was available to him against order in question—Petitioner, however, having been pursuing matter in question in Constitutional petition, limitation for filing appeal had expired-Appellate Bench of National Industrial Relations Commission would, therefore, consider such aspect of the case in relation to limitation sympathetically and should condone delay in filing appeal by deducting from limitation the time spent by petitioner in pursuing his remedy in Constitutional petition. [P. 197 ] A

Ch, Riaz Ahmad, Advocate for Petitioner.

Mr. Muhammad Sahir All, Advocate for Respondents.

Date of hearing: 15.11.1999.

judgment

In the course of hearing of this petition, it was observed that the order passed by NIRC was not challenged in appeal, though the appeal was maintainable under the provisions of Section 22-D of Industrial Relations Ordinance, 1969.

1. Learned counsel for the petitioner did not deny that no appeal was filed, though the remedy of appeal was available against order of which the petitioner was aggrieved. Learned counsel explained that since the Full Bench of NIRC had expressed some opinion in other case, therefore, petitioner, in good faith, opted to challenge the order directly in the Constitutional petition, instead of exhausting the remedy of appeal against the said order.

2. Mere fact that Full Bench of NIRC had decided certain other fases on the subject and had expressed opinion, would not mean that the petitioner should file the Constitutional petition, directly instead of availing the alternate remedy. The appellate jurisdiction includes the jurisdiction to determine the issue, afresh by taking in consideration legal and factual controversy. If the petitioner feels that his case is distinguishable or that earlier view was not correct, petitioner can address his arguments to persuade to the Bench, for a different view, in accordance with law. Be that as it may, in the presence of available alternate remedy of appeal, writ petition cannot be entertained. The petitioner shall, therefore, in the first instance, avail the remedy of appeal, which if filed will of course, be decided on its own merit and in accordance with law, by considering all the objections which the petitioner was raised in this writ petition. Be that as it may, since in this case the petitioner had been pursuing the matter in the Constitutional jurisdiction and during this period, the limitation for filing of appeal expired, the appellate Bench of NIRC, shall, therefore, consider the question of limitation sympathetically and shall condone the delay due to the consumption of time in pursuing the matter in the writ petition. Learned counsel for the respondents frankly conceded that if a request for condonation of delay is made, respondents will not oppose the same and will welcome the decision on merit.

3. This petition is, therefore, disposed of with the observations that the petitioner may avail the remedy of appeal, which appeal, if filed, shall be decided on merit and in accordance with law by the appellate Bench of NIRC, by taking sympathetic view in condonation of limitation.

(AA.) Order accordingly.

PLJ 2000 Lahore 197

Present: sayed najam-ul-hassan kazmi, J. MUHAMMAD SHARIF-Petitioner

versus BAHADUR ALJ, MEMBER NIRC, LAHORE and another-Respondents

W.P. No. 2186 of 1998, heard on 15.11.1999.

Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—S. 22-D--Constitution of Pakistan (1973), Art 199~Constitutional petition-Mai ntainabilily-No appeal was filed against order in question, though remedy of appeal was available-Petitioner's plea that Full Bench of NIRC having expressed some opinion in other case, petitioner in good faith opted to challenge order in question, directly in constitutional petition instead of exhausting remedy of appeal against said order-Such plea was repelled in as much as presence of available alternate remedy of appeal, writ petition could not be entertained-Petitioner would therefore, in the first instance, avail remedy of appeal, which if filed would of course be decided on its own merit in accordance with law, by considering all objections which petitioner had raised in constitutional petition- Petitioner had been pursuing matter in question in constitutional petition and during that period, limitation for filing appeal had expired—Appeal Bench of NIRC would, therefore, consider question of limitation sympathetic call and should condone the delay due to consumption of time in pursuing matter in constitutional petition.

[Pp. 198 & 199] A, B

Ch, Riaz Ahmad, Advocate for Petitioner.

Mr. Muhammad SahirAli, Advocate for Respondents.

Date of hearing: 15.11.1999.

judgment

In the course of hearing of this petition, it was observed that the order passed by NIRC was not challenged in appeal, though the appeal was maintainable under the provisions of Section 22-D of Industrial Relations Ordinance, 1969.

1. Learned counsel for the petitioner did not deny that no appeal was filed, though the remedy of appeal was available against order of which the petitioner was aggrieved. Learned counsel explained that since the Full Bench of NIRC had expressed some opinion in other case, therefore; petitioner, in good faith, opted to challenge the order directly in the Constitutional petition, instead of exhausting the remedy of appeal against the said order.

2. Mere fact that Full Bench of NIRC had decided certain other cases on the subject and had expressed opinion, would not mean that the petitioner should file the Constitutional petition, directly instead of availing the alternate remedy. The appellate jurisdiction includes the jurisdiction to determine the issue, afresh by taking in consideration legal and factual controversy. If the petitioner feels that his case is distinguishable or that earlier view was not correct, petitioner can address his arguments to

" persuade to the Bench, for a different view, in accordance with law. Be that as it may, in the presence of available alternate remedy of appeal, writ petition cannot be entertained. The petitioner shall, therefore, in the first instance, avail the remedy of appeal, which if filed will of course, be decided on its own merit and in accordance with law, by considering all the objections which the petitioner has raised in this writ petition. Be that as it may since in this case the petitioner had been pursuing the matter in the Constitutional jurisdiction and during this period, the limitation for filing of appeal expired, the appellate Bench of NIRC, shall, therefore, consider the question of limitation sympathetically and shall condone the delay due to the consumption of time in pursuing the matter in the writ petition. Learned counsel for the respondents frankly conceded that if request for condonation of delay is made, respondents will not oppose the same and will welcome the decision on merit.

1. This petition is, therefore, disposed of with the observations that the petitioner may avail the remedy of appeal, which appeal, if filed, shall be decided on merit and in accordance with law by the appelkte Bench of NIRC, by taking sympathetic view in condonation of limitation.

(AA) Order accordingly.

PLJ 2000 Lahore 199

Present: mrs. FAKHAR-UN-NiSA khokhar, J. MUHAMMAD LATIF-Petitioner

versus

SHAMS-UD-DIN etc.-Respondents

W.P. No. 6707 of 1997, heard on 2.12.1999. Punjab Pre-emption Act, 1991 (IX of 1991)-

—-S. 34--Punjab Pre-emption Act (I of 1918), S. 15--Constitution of Pakistan (1973), Art. 199-Suit for pre-emption decreed on 21.6.1986 on basis of compromise-Appeal against such judgment and decree was accepted on 10.11.1986 and case was remanded for decision afresh—Judgment and decree of Appellate Court having been assailed in revision the same was accepted by High Court-Defendant's application for rejection of plaint on the basis that judgment and decree dated 21.6.1986 being null and void should be set aside--Trial Court and Appellate Court unanimously maintained that one decree was passed in favour of pre-emptor prior to crucial date 31.7.1986, case would deal with by the old pre-emption law Le., Pre-emption Act 1913--Validity-Provision of S. 34(2) Punjab Pre­ emption Act 1991 deals with two type of cases, that is where decree was passed before target date and where decree was not passed before target date of 31.7.1986 and makes it clear that where judgment and decree was passed before target date, notwithstanding anything contained in the Act, for the proceedings, if any, relating to such cases and appeals, notwith­ standing repeal of that Act (1 of 1913) be governed and continued in accordance with provisions thereof-Plaintiffs case was fully covered by S. 34(2) Punjab Pre-emption Act 1991—Proceedings in plaintiffs case would continue according to old law (I cf 1913), notwithstanding repeal thereof-No interference was warranted in judgments of Courts below wherein rejection of plaint was refused. [Pp. 201 & 202] A & E

1992 SCMR 1129 ref, Mr, Muhammad Nazir Jaiyua, Advocate for Petitioner. Mr. KhaiidAseer Chaudhry, Advocate for spondents. Date of hearing: 2,12.1999.

judgment

Brief facts of the iastant Writ Petition are that Shams-ud-Din respondent filed a suit for possesison through pre-emption in respect of 20 Kanals situated in Mauza Peero Tehsil and District Jhang. This suit was contested by the present petitioner by filing a written statement The suit was decreed on the basis of a compromise vide judgment and decree dated 21.6.1986 on a statement made by Malik Haqnawaz Khokhar, learned counsel for the respondents. This judgment was assailed in appeal before the learned District Judge, Jhang. The appeal was accepted on 10.11.1996 and the case was remanded for decision afresh by Rao Muhammad Hayat Khan, learned Additional District Judge, Jhang. The judgment of the learned Addl. District Judge was assailed in Civil Revision No. 85-L/87 which was accepted by my learned brother Gul Zarin Kiani, J. vide judgment dated 18.4.1993. The case was remanded to the learned Appellate Court to make an enquiry whether any power of attorney was given to Malik Haqnawaz Khokhar, Advocate to enter into a compromise on behalf of the respondents in that case. The learned District Judge, Jhang vide judgment and decree dated 10.7.1995 set aside the judgment and decree passed by the learned trial Court holding that the compromise decree dated 21.6.1986 was not binding upon the defendant and remanded the case to the learned trial Court to decide afresh according to law. On 26.10.1995 the present petitioner gave an application under Order VII, Rule 11 CPC and prayed for rejection of the plaint on the basis that the judgment and decree dated 21.6.1986 stands set aside being nuH and void. The learned trial Court vide order dated 26.10.1995 rejected the application and appeal was filed before the learned Addl. District Judge, Jhang. The same was dismissed vide order dated 7,12.1995, Both the Courts below unanimously held that once a decree was passed in favour of the pre-emptor prior to crucial date of 31.7.1986 the case will be dealt by the old Pre-emption Act, (1 of 1913). Both these judgments and decrees are under chailei ge in the instant writ petition.

1. The contention of the learned counsel for the petitioner is that the findings of both the Courts below are nullity in the eye of law and those are liable to be set aside, as it is proved by the remand order passed by Mr. Justice Gul Zarin Kiani and the order of the learned District Judge dated 10.7.1995 that the learned counsel Malik Haqnawaz Khokhar had no power of attorney to enter into % compromise. The judgment based on the compromise was set aside by the learned Appellate Court after an enquiry as directed by the High Court Therefore, the compromise decree dated 21.6.1986 was a nullity in the eye of law and since no decree can be passed after the target date of 31.7.1986, therefore, the learned Courts below lacked jurisdiction.

3, The learned counsel for the respondent submits that Section 34(2) of the Punjab Pre-emption Act 1991 now protects the cases of pre­ emption in which a decree is passed. He relied on Muhammad Sharif vs. Muhammad Sharif (1992 S.C.M.R. 1129) where it is held that the plaint in pre-emption suit having been rejected, his suit would revive under provision of Section 34(b), Punjab Pre-emption Act, 1991 — Plea of being a co-sharer in Khata, however, was yet to be determined as neither the Appellate Court nor the High Court had decided the same — Such plea would, therefore, be open for decision at the appropriate level — Order of High Court was set aside and the case remanded to High Court for fresh decision in accordance with law.

1. I have heard the learned counsel for the parties and have carefully perused the record and the law.

2. The suit for pre-emption was filed on 5.3.1985. It was decreed on the statement of one Malik Haqnawaz Khokhar, Advocate on 21.6.1936, who appeared only on that day. The appeal was preferred against the impugned judgment and decree passed by the learned trial Court and was accepted on 10.11.1986 by Rao Muhammad Hayat Khan, the then learned District Judge, Jhang. The case was remanded to the learned trial Court to decide the same afresh in accordance with the law. The respondent referred a revision petition which was decided by Mr. Justice Gul Zarin Kiani and the same was accepted and the judgment of the learned District Judge was set aside with the direction to the learned District Judge to rehear the appeal after enquiry as to whether the appellant gave power of attorney to Malik Haqnawaz Khokhar, Advocate to enter into the compromise in the pre­ emption suit and the consent decision was binding upon him. The learned District Judge vide judgment and decree dated 10.7.1995 held that the appellant had never given any power of attorney to Malik Haqnawaz Khokhar, Advocate to enter into a compromise in the pre-emption suit and the consent decision is not binding upon him. He accepted the appeal, set aside the impugned judgment and decree and remanded the case to the learned trial Court for fresh decision, where the application under Order VII, Rule 11 CPC was given which was rejected vide order dated 26.10.1995 passed by the learned trial Court and in revision videorder dated 7.12.1995 passed by the learned Addl. District Judge, Jhang. The provisions of Section 34(2) of the Punjab Pre-emption Act, 1991 are reproduced below:

"34.02) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (1 of 1913) in which judgments and decrees had been passed before the 1st day of August, 1986, farther proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof."

1. Now it is quite clear that this Section deals with two cases in which decree passed before the target date and decree not passed before the target date of 31.7.1986 and the provisions of this Section make clear that in the cases where the judgment and decree was passed before 1.8.1986 notwithstanding anything contained in this Act, further proceedings, if any, relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof. Muhammad Sharif vs. Muhammad Sharif (1992 S.C.M.R. 1129) does support the provisions of Section 34(2) of the Punjab Pre-emption Act, 1991 that the further proceedings could still be continued under the old Act notwithstanding its repeal. The Hon'ble Supreme Court has further substantiated the words "judgments and decrees" and held that the word "judgment and decree" used in Section 34(2) of the Punjab Pre-emption Act, 1991 is not qualified to imply judgment and decree passed only in favour of plaintiff pre-emptor. The new provision of law override the rule laid down by a number of judgments of this Court. The impugned judgment and decree thus cover both the cases Le. those passed for and against the plaintiff pre-emptor.

2. Moreover, Section 34(2) of the Punjab Pre-emption Act, 1991 is also clear that all the cases and appeals filed under the Punjab Pre-emption Act, 1913 (1 of 1913) in which judgments and decrees had been passed before the 1st day of August, 1986, further proceedings if any relating to such cases g and appeals shall notwithstanding the repeal of the said Act by governed and continued in accordance with the provisions thereof. The respondent's case is fully covered by Section 34(2) of the Act Procee dings in the case shall continue according to the old law notwithstanding the repeal of the said Act.

3. In view of what has been stated above no interference in the concurrent findings of both the Courts below is called for. Finding no substance in the instant writ petition the same is dismissed.

4. No order as to costs.

(A.A.) Petition dismissed.

PLJ 2000 Lahore 202

Present: MAULVI ANWARUL HAQ, J. Mst.SAKINA BIVI etc.-Petitioners

versus

Mst. BIBI etc.~Respondents

Civil Revision No. 1642 of 1995, dismissed on 23.6.1999.

Civil Procedure Code, 1908 <V of 1908)™

—S. 115~Suit for declaration-Disposal of—Appeal against—Acceptance of— Revision against-Admitted fads ars all petitioasrs are full sisters of last male owner A.D. and respondents are his residuries--Judgment of A.D.J. does not suffer from any of defects—Record discloses an intense deliberate effort by petitioners to dis-inherit respondents, who are otherwise entitled to inherit under Muslim Personal Law—A.D.J. has applied correct law, which of course is law of land even now—Petitioners have not been able to point any mis-reading of record—Impugned judgment cannot, be set aside by applying law in vacuum-No grounds to interfere with impugned judgment-Petition dismissed.

[Pp. 207 & 209] A to D

Mr. A.K. Dogar, Advocate for Petitioner.

Mr. Mehdi Khan CJiohan, Advocate for Respondent.

Dates of hearing: 31.5.1999, 2, 3, 9 and 18.6.1999.

judgment

The petitioners, who are all daughters of Kalu, filed a civil suit. It has been averred in the plaint that the suit land was owned and possessed by Allah Ditta son of Kalu, who was real brother of Petitioners Nos. 1 to 4 and consanguine brother of Petitioners Nos. 5 and 6. The name of the mother of Petitioners Nos. 1 to 4 and the said Allah Ditta is Sharif Bibi while of Petitioners Nos. 5 and 6 was Rani. According to the plaint, Petitioners Nos. 1 to 4 inherited 2/3rd share from the suit estate as full sisters being sharers while Petitioners Nos. 5 aad 6 inherited the residue l/3rd being consanguine sisters as residuries. Respondents are successors of Muhammad Yousaf son of Muhammad, a collaterals of Allah Ditta. The Revenue Officer attested Mutation No. 318 on 31.8.1977 treating the petitioners to be full sisters of Allah Ditta and giving them 2/3rd as sharers and giving the residue to the said Muhammad Yousaf. With the said averments, it was prayed that the said mutation be declared a anility in the eye of law and it be declared that the petitioners are the owners in possession of the suit land to the exclusion of the respondents.

1. The respondents filed a written statement claiming the suit to be barred by res judicata, as the suit filed by Shabbir Hussain, who had impleaded all the parties to the present lis as defendants, was dismissed on 5.11.1978 and the said mutation was declared to be valid. It was averred that Petitioners Nos. 5 and 6 themselves got the mutation entered and it was attested in their presence. The mutation had since been incorporated in the revenue records. On merits, it was replied that the alleged relationship of the Petitioners Nos. 5 and 6 with Allah Ditta is not admitted. It was, however, admitted that Allah Ditta was the owner and he died issueless. The mutation was asserted to be valid. The learned Civil Judge framed the following issues:-

"1. Whether the plaintiffs are owners in possession of the suit land? OPP

1. Whether the Mutation No. 318 is illegal, void and in­ operative upon the rights of the plaintiffs? OPP

2. Whether the plaintiffs have got no cause of action and locustandi?OPD

4.Whether this suit is time-barred? OPD

1. Whether this suit is bad for misjoinder of the parties? OPD

2. Whether the plaintiffs are estopped by their act and conduct to file the suit? OPD

3. Whether this suit is bit by res-judicatal OPD

4. Whether this suit is not maintainable in its present form?

OPD

1. Whether this suit is not properly valued for the purposes of Court fee and jurisdiction? If so, its effect? OPD

2. Whether the defendants have become owner in possession of the suit land on the basis of adverse possession for more than 12 years? OPD

10-A. Is the report of local commission liable to be set aside? OP-Petitioners/Defendants.

10-B. Have the respondents/plaintiffs wilfully and knowingly disobeyed the injunetive orders of the Court dated 17.9.1990? OP-Petitioner/Defendants.

1. Relief."

Evidence was recorded. The learned trial Court recorded a judgment which, to say the least, is queer. The discussion on Issues Nos. 1 and 2 gives the impression that the learned trial Court did not believe the evidence of the petitioners to the effect that Petitioners Nos. 5 and 6 were consanguine sisters of Allah Ditta, However, towards the end the trial Judge says that the matter reconsidered treating the Petitioners Nos. 1 to 4 as sharers and Petitioners Nos. 5 and 6 as residuries. Under the relief clause, he did not even grant any relief. He simply said that the matter be reconsidered and it is not understandable who is to reconsider the matter. The respondents filed an appeal, which was heard by a learned Additional District Judge, Kharian. The appellate Court took note of the inconsistency between the said conclusion and the discussion of the evidence by the trial Court as also the manner in which the suit was disposed of. He discussed the evidence threadbare and came to the conclusion thai all the petitioners are full sisters of Allah Ditta and consequently held the mutation to be valid. The appeal was allowed and the suit of the petitioners was dismissed on 24.5.1995.

1. It may be added here that the judgment of the learned Additional District Judge takes note of the argument of the learned counsel for the respondents that even if it be deemed that the Petitioners Nos. 5 and 6 are consanguine sisters then they shall <siand excluded by the full sisters and the residue of l/3rd in any case will go to the respondents. Some treatise on Islamic Law including Mulla's Muhammadan Law were relied.

2. Against the said judgment of the learned Addl. District Judge present civil revision has been filed. The elaborately drafted memo, of this civil revision proceeds to attack the finding recorded by the learned Additional District Judge on the merits of the case. The petitioners insisted that Petitioners Nos. 5 and 6 are consanguine sisters of Allah Ditta, Interestingly the above referred argument of respondents noted in the impugned judgment stands conceded in the grounds, wherein a complaint has been made that it was only Petitioners Nos. 1 to 4, who were entitled to get the enure 2/3rd and Petitioners Nos. 5 and 6 should have been excluded. The prayer made in the civil revision is to the effect that the impugned judgment of the learned Additional District Judge be set aside and that of the learned Civil Judge be restored. The civil revision was admitted to hearing vide order dated 5.9.1995 on the submission of the learned counsel for the petitioners that the record lias been misread. Some dates were fixed in the year 1996 and one in the year 1997 when the case was adjourned on the request of the learned counsel for the petitioners. On 28.6.1997 C.M. No. 1 of 1997 was filed praying to urge additional grounds enumerated in the said C.M. This C.M. came up on 30.10.1997, when it was allowed subject to all just exceptions.

3. Mr. A.KL Dogar learned counsel for the petitioners has nothing to say about the judgment of the learned Additional District Judge on the facts pleaded and the evidence produced on record and read by the learned Additional District Judge. He has, however, vigorously argued the additional grounds taken vide the said C.M. 1/97. His contention is that the suit land belonged to Kahi and when Kalu died Allah Ditta and all the six petitioners were alive being his children as also his widow Sharaf Bibi. According to the learned counsel l/8th of the land was to go to the said widow while out of the remaining 7/8, 1/4 will go to Allah Ditta and 3/4 to the" petitioners. Similarly on the death of Sharaf Bibi her estate will go to Allah Ditta and Petitioners Nos. 1 to 4. Mr. Mebdi Khan Chohan, learned counsel for the respondents has seriously objected to the grant of said C.M. According to him the said additional grounds are not available to the petitioners. 7. I have gone through the records with the assistance of the learned counsel for the parties. Mr, A.K. Dogar opened his arguments with reference to the case of Federation of Pakistan through Secretary Law and Parliamentary Affairs, Islamabad vs. Muhammad Ishaque and another (PLD 1983 S.C. 273). This is the judgment that ultimately led to the enactment of Punjab Muslim personal Law (Shariat) (Amendment) Act 1983 (Act XIII of 1983). Learned counsel contended that by virtue of the said judgment and the legislative enactment following it, custom was done away with completely. As a result of the said judicial and legislative pronouncement, the matter of inheritance will revert back to Kalu, the father of the petitioners and the devolution of Kalu's estate upon Allah Ditta to the exclusion of petitioners shall be deemed to be void. Learned counsel then cited the case of Mst Amina Begum and others vs. Mehr Ghulam Dastgir (PLD 1978 SC 220) for the proposition that the Court should not hesitate in moulding the relief according to the circumstances and the law of the land on the date when it gives its decision where there is change "subsequent to the institution of the suit". For the said proposition, the learned counsel also relied on the case of Mst. Salma Abbasi and others vs. Ahmad Suletnan and two others (1981 CLC 462). This was judgment by Mr. Justice' Ajmal Mian (as his lordship then was). His lordship observed at page 472 that "a Court is competent to grant a relief though not specifically prayed for, or it may grant a relief on a ground other than relied upon in the plaint provided the same can be made out from the averments in the pleadings and the evidence on the record and provided it is not inconsistent with the plaintiffs pleading and that there is no element of surprise to his adversary'. The learned counsel relied on the case of Haji Abdullah Khan and others vs. Nisar Muhammad Khan and others (PLD 1965 S.C. 690) to argue that it is the duly of the Court to apply the law applicable to the admitted or proved facts itself. The learned counsel then cited the case of Mst. Farida and 2 others vs. Rehmat Ullah and another (PLD 1991 S.C. 213), wherein the Supreme Court took note of the fact that the Government of N.W.F.P. had not enacted a law as done by the Government of Punjab in pursuance of the command contained in the case of Ch, Muhammad Ishaque supra. It was observed with reference to the case ofMuzaffar Khan vs. Roshan Jan (PLD 1984 S.C. 394) that "whenever dispute comes before the Court of law with regard to succession to the estate of a Muslim deceased, he will be deemed to have died under the domain of Muslim Law, even if the death and taken place before coming into force of the West Pakistan Muslim Personal Law (Shariat) Application Act of 1935". Learned counsel finally in sequence of his arguments to bring home the additional grounds sought to be taken by him cited the case of Shahro versus Mst. Fatima and others (P.L.D. 1998 Supreme Court 1512). In the said case Mitha the last male owner died in 1936 leaving a widow and two daughters. However, his brother Bahadur managed to get his entire estate mutated in his favour on the representation that he is the sole heir. The said ladies filed a suit claiming their share to which they are entitled under the Islamic Law. It was held that entries in the revenue records do neither create nor extinguish title but are mere evidence thereof. The judgment of this Court allowing the said ladies their share in the estate of Mitha was upheld.

4. There is no cavil with the authorities cited by the learned counsel. However, the pronouncements were made in the facts and circumstances of the respective cases. When confronted with the pleadings, the evidence thereon, the grounds of appeal and of the civil revision, Mr. A.K. Dogar relying on the case of Budho and others vs. Ghulam Shah (PLD 1963 S.C. 553) argued that the petitioners can take any plea at any time even if it be inconsistent with the case set-up in the plaint. A portion read out by the learned counsel from Budho's case supra appearing at page 562 of the report did give this impression. However, on a fuller reading of the judgment, argument of the learned counsel comes down to the ground. In the said case the plaintiffs claimed title as heirs of the last male owner i.e. Mu^a Khan. They also averred that the said Musa Khan had executed three wills in their favour and then there was a reference to an agreement/settlement inter-se the plaintiffs. Those two pleas were held not to be inconsistent for obvious reasons that the titles were flowing from the same source i.e. Musa Khan. One thing very clearly emerges from the said judgment is that whatever pleamay be it has to be based on some facts and under the law the said facts are to be pleaded. One test laid down by their lordships to adjudge inconsistency is that a plaint which contains both the facts could not be verified as true by a plaintiff. I asked Mr. AX. Dogar to demonstrate that even if I were to allow him to amend his plaiut how would he mention the facts on the basis whereof be is trying to raise additional grounds in the plaint, in order to enable me to see whether his clients can verify the plaint containing the said facts. Learned counsel after making some efforts conceded that he cannot state the said facts mentioned in his additional grounds without alleging that the mutation in favour of Allah Ditta was void and that he was not the owner of the entire suit land. The learned counsel thus on his own showing is unable to plead the facts alongwith the facts already contained in the plaint and to get them verified on oath by his clients. Needless to add that law is to be applied by the Courts to the facts on record proved or admitted. In the present case, the admitted facts are that the last male owner was Allah Ditta and the proved iacts are that all the six petitioners are his full sisters and the respondents are his residuries. This Court is hearing a civil revision against the judgment of the learned Additional District Judge. Law of the land governing the said jurisdiction lays down some parameters within which the same is to be exercised. I have to adjudge the validity of the judgment on the basis of pleadings and reading of the evidence by the learned lower Courts. I have to see whether on the basis of facts admitted

and proved in the present case the learned Additional District Judge has recorded a correct finding in accordance with law. I find that the judgment of the learned Additional District Judge does not suffer from any of the defects mentioned in Section 115 CPC to enable me to interfere with the same. It may be mentioned here that the suit was filed on 16.9.1990. Learned counsel for the petitioners after citing the aforementioned judgments has not been .able to point out the change that has taken place in law after the filing of the suit to which I must give effect I may also point out here that even assuming that all the facts on which the additional grounds are based had been duly pleaded and evidence led accordingly, on the words of the law applicable i.e. Section 2-1 of the West Pakistan Muslim Personal Law (Shariat) Application

Act 1962, the male heir referred to therein will be Allah Ditta, who acquiredzz the agricultural land before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act 1948 as admittedly Kalu died in the year 1940. A word needs to be said here about the conduct of the petitioners, I am of the firm opinion that the petitioners ladies do not qualify for the special status in law accorded to the acts and transactions of illiterate and] Parda Nasheen ladies. The record discloses an intense deliberate effort byjC the ladies to dis-inherit the respondents, who are otherwise entitled to) inherit under the very law Le. of Holy Qur'an and Sunnah of Holy Prophet (p.b.u.h.) which the learned counsel for the petitioners is trying to propound. To begin with the mutation in question was got entered by Hussain Bibi and Makhan Bibi petitioners. These ladies went to Patwari in the company of Shabbir Hussain a son of one of the petitioners and stated that Allah Ditta is owner of the land and he has made a will giving away 2/3 share to all the sisters and 1/3 to the said Shabbir and his two brothers. However, the attempt did not materialize and the estate was distributed in accordance with Islamic Law therefore a suit was got filed by the said Shabbir Hussain etc. which was contested and was dismissed videjudgment and decree dated 16.1.1983 Exh.D.18. It was thereafter that the present suit, which represents the ingenuity of its draftsman, was instituted to knock out the collaterals. I find from the record that the ladies have been vigorously following the suit and the proceedings arising out of it on the basis of the pleas contained in the plaint.

1. Mr. Mehdi Khan Chohan, learned counsel for the respondents in order to substantiate his objections to the grounds of C.M. has relied on the case of Secretary to Government (West Pakistan) now N.W.F.P. Department of Agriculture and Forests, Peshawar and 4 others vs. Kazi Abdul Kafil (PLD 1978 B.C. 242), where their lordships have held that a party cannot beallowed to withdraw an admission made in the written statement by way of amendment. According to the learned counsel, the petitioners have admitted that last male owner was Allah Ditta and the land belonged to him and it was on this premises the suit was filed and it was proceeded with. He next relied on a case from Supreme Court of Azad Jammu and Kashmir, wherein the pronouncement similar to one made by our Supreme Court was made. Next the learned counsel relied on the case of Government of West Pakistan (now Punjab) through Collector, Bahawalpur vs. Haji Muhammad (PLD 1976 S.C. 469), wherein it has been held that where a plea of act has not been pleaded no case should be founded on such a plea. The said observations were further confirmed by the Supreme Court in the case of Binyameen and 3 others vs. Ch. Hakim and another (1996 S.C.M.R. 336). Reliance has also been placed on the case of Atlantic Steamer's Supply Company vs. m.v. Titisee and others (PLD 1993 S.C. 88), wherein their lordship observed that an amendment changing the complexion of the case and causing prejudice to the other party cannot be allowed. earned counsel for the petitioners has been unable to meet the said objections of the learned counsel for the respondents fortified by the above said authoritative pronouncement on the subject.

2. The upshot of the above discussion is that the learned Additional District Judge has applied correct law, which of course is the law of the land even now, to the proved and admitted facts before him. Learned counsel for the petitioner has not been able to point any misreading of the record. In Dfact, as stated above, the impugned judgment as it is, has not been challenged. The learned Additional District Judge has acted within the bounds of his jurisdiction and has committed no irregularity while exercising the same. The impugned judgment cannot be set aside by applying the law in vacuum, when on the proved and admitted facts of the case a legal and valid judgment in accordance with law applicable has been passed. No grounds exist enabling this Court to interfere with the impugned judgment The civil revision is dismissed with costs.

(MYFK) Petition dismissed.

PLJ 2000 Lahore 209 (DB)

Present: mian allah nawaz and nasim sikandar, J J. I.G. POLICE PUNJAB etc.-Appellants

versus

YOUSUF HAROON etc.»Respondents

I.C.A. No. 1287 of 1998, decided on 14.6.1999.

(i) Punjab Police Rules, 1934-

—Rr, 12.15 & 12.16~Law Reforms Ordinance, 1972, S. ^-Constitution of Pakistan, 1973-Art 25 & 199-Selection of Inspectors in Punjab Police- Deficiency in height and chest and reference to Government for necessary action-Writ against-Acceptance of-Appeai (ICA) against-Every citizen how-high-soever, must be accorded equal treatment with similarly situated persons-Doctrine of equality was not correctly applied in case of respondents by High Court-Rule 12.16 prescribes qualifications for direct appointment of Inspectors-Power to appoint Inspectors lies with D.I.G.-Rule 12.15 provides that recruit shall not be more than 25 years of age or less than 18 years of age at time of enrollment and shall have minimum height of 5 feet 7 inches and formal chest measurement of 33 inches with an expansion of \ inches-Competent authority has to finally weigh physical standard required for appointment of a recruit- Boards exercised their power within frame work of law and legally found that respondents did not have required height and so were not qualified to be appointed as Inspectors-No doubt under rule 12.15, DIG is possessed of power to give relaxation to respondents, but such power falls within domain of discretionary jurisdiction of Administrative authorities/ competent authority declined to exercise this power-Impugned orders set aside-Appeals accepted. [Pp. 214 to 217] A to G & I to J

1991SCMR 1041 ref.<ii) Words and Phrases-

—"Discretion"~Discretion of a judge is law of tyrants; it is always unknown; it is different in different men; it is casual and depends on constitution, temper and passion-At best it is often caprice-In the worst it is every vice, folly and passion to which human nature can be liable. [P. 217] H

36 MO 263, 278 ref.

Mr. Ashlar Ausaf All, Advocate-General for Appellant. Mr. M.D. Chaudhri, Advocate for Respondent No. 1. Malik Muhammad AzamRasool, Advocate for Respondents.

Dates of hearing: 22.4.1999, 3.5.1999, 5.5.1999, 10.5.1999 and

13.5.1999.

judgment

Mian Allah Nawaz, J.-This judgment will concern three Intra-Court Appeals Nos. 1287/98, 1361/98 and 1363/98. First one calls in question order passed by learned Single Judge dated 22.10.1998. Second and Third appeal assail two orders of learned Single Judge dated 25.11.1998. First appeal arises out of W.P. No. 7649/98; second appeal emanates from W.P. No. 19416/98 and third one comes from W.P. No. 18177/98. The appellants, in all the three Intra-Court appeals, were respondents in the aforesaid petitions. Respondent No. 1 in the first intra-Court Appeal, is Yousaf Haroon son of Mian Abdullah Haroon r/o. Mohallah Islam Park, Railway Road, Khanewal. Second appeal is against four respondents namely Muhamma4 Khan son of Bati Khan, resident of village Fattuwala Tehsil Phalia District Mandi Baha-ud-Din, Khalid Hussain son of Ch. Muhammad Hussain resident of House No. 2-S-58, B. No. 22 Sargohda, Nasir Ah' Saqib son of Muhammad Nawaz r/o. Zeeshan General Store near Church, Gojra Road, Jhang and Shafqat Nadeem Chaudhry s/o. Haji Ata Muhammad r/o. Ideal Grammer School, Choong Multan Road, Lahore. Sole respondent, in the third Intra-Court Appeal, is Shahid Ikram son of Muhammad Ikram r/o. Gulshan Town, Hassanpura Sialkot City. The aforesaid respondents' writ petitions were allowed by learned Single Judge of this Court on 22.10.1998 and 25.11.1998 respectively. Since all these I.C.As flow from similar background and raise common questions of law, these are being decided through single judgment

1. Facts, briefly stated, giving rise to the afore-noted appeals are as follows. Punjab Public Service Commission (briefly described as Commission) invited applications for holding written/oral test for appointment of 300 Inspectors in Punjab Police. This happened vide an advertisement in daily Nawa-i-Waqt, Lahore dated 28.9.1997. In response to it, the respondents submitted their applications alongwith necessary documents; appeared in written test as well as oral interview and came out with flying colours. ResultantJy, their names were recommended to competent authorities for their appointment This was, however, not the end of the matter. To their misfortune, a complaint was lodged that some of candidates had manipulated their entry in examination after securing false certificates, with regard to physical standard, from medical officer and so the appointment orders (if issued) be recalled. Consequently, Divisional Boards were constituted by the Provincial Government comprising concerned D.I.Gs/Police Range, concerned Superintendents of Police and Medical Superintendents of the concerned Headquarters hospitals or his representatives. The task, assigned to these Boards, was to measure the height and chest of candidates/recommended by the Commission. In result, the respondents were examined by the, so constituted Boards, and were found deficient in height and chest On account of the aforesaid findings, the matter was referred to the Provincial Government for necessary action. This occurred on 17.8.1998, Dissatisfied, Yousaf Haroon filed W.P. No. 7649/98, Muhammad Khan and three others moved W.P. No. 19416/98 while Shahid Ikram instituted W.P. No. 18177/98. Writ Petition No. 7649/98 came up for hearing before our brother Dr. Munir Ahmad Mughal, J. His Lordship was pleased to accept the petition in the following terms:

"It is also a fact that five candidates were granted exemption to four candidates for 2" in deficiency in chest and one Khalid Mehmood Tabassam of Lahore Range deficiency in height by 1" vide letter No. SE-1/2873-82/E.I/93 dated 16.5.1993 and endorsement No. 5169-5233/F.n dated 18.5.1993 (Mark 'A') by the Inspector General of Police.

In this view of the matter the petitioners are entitled to be treated equally before law and to equal protection of law without any discrimination. The writ petition is allowed with no order as to costs."

1. Remaining two writ petitions were listed before our brother Ihsan-ul-Haq Chaudhry, J., and were allowed on 25.11.1998. It will be useful to reproduce the relevant portion of the judgment:

"The impugned order conveyed to the petitioners makes no sense particularly as to the deficiency pointed out. The same has been issued mechanically without applying mind, therefore, no order in the eye of law.

Now coming to the deficiency in height. The admitted position on record is that the scale supplied by the Government to the Health Department are different from one supplied by the Police, therefore, the alleged deficiency in the height of the petitioners namely, Shahid Ikram in Writ Petition No. 18177/98 and Khalid Hussain, Nasir AJi Saqib and Shafqat Nadeem Chaudhry in Writ Petition No. 19416/98 could not be furnish basis for withdrawal when the Health Department was using the official scale for measurement of the height of all the Civil Servants and appointees referred to for medical check-up. This order cannot be sustained when a petition has already been accepted by one learned Single Bench of this Court and the treatment meted by these petitioners was discriminatory, therefore, the impugned order of Respondent No. 2 to their extent are liable to be set aside straightaway.

Now coming to the petitioner Muhammad Khalid Malik in Writ Petition No. 17255/98 and Muhammad Khan Petitioner No. 1 in Writ Petition No. 19416/98. The deficiency has heen noted in respect of the chest Respondent No. 1 was ill advised to straightaway withdraw the recommendation in respect of them. The action should have heen taken after giving them opportunity of being heard, therefore, the impugned order of the Commission is set aside as being violative of the principles of natural justice. However, the Commission will he at liberty to proceed against these two petitioners in accordance with law as decided by the Hon'ble Supreme Court in the case of Zakir Ahmad (supra)"

1. Mr. Ashtar Ausaf All, learned Advocate-General, inter-alia urged as follows:--

Firstly, That the learned Single Judge had erred in kw in applying the doctrine of equality as embodied in Article 25 of the Constitution; that respondents in these Intra-Court appeals were accorded equal treatment by the competent authorities; that all successful candidate including respondents (recommended by the Commission) were subjected to physical test by a Board constituted by the Provincial Government; that their height and chest were measured by the District Health Officer in the presence of D.I.G. and S.P. On the above line of reasoning, it was stressed that the doctrine of equality was fully adhered to in the case of respondents; that instance of relaxation made in 1993 could not be pressed into service in recruitments of Inspectors in 1998.

Secondly, That the physical standards as laid down in Rule 12.15 of Police Rules 1934, were condition precedent for appointment of an inspector and his induction in the police force; although the D.I.G. was empowered to relax the above standard in special cases; yet relaxation of aforesaid condition was within the discretionary power of D.I.G. and to be made in special circumstances/event. On this tine of approach, it was stressed that the action of the Provincial Government/culminating into withdrawal of the recom­mendation by the Commission/was un-exceptionable.

Thirdly, That the Rule 12.16 of the Police Rules was to be read alongwith Rule 12.17 and appendix 12.16; that the authority of the Surgeon was to give a certificate with regard to height, eye-sight, speach and hearing of the candidate, his freedom from physical defects, organic or contagious disease, or any other defect or tendency likely to render him unfit Sub-rule (2) of Rule 12.6 even empowered/empowers the Superintendents of Police to reject those candidates whose general standard of physique and intelligence was/is un-satisfactory. This empowerment clearly demonstrated that physical standards were to be checked by Police Authorities and not by Health Authorities whose role was of facultative character.

Fourthly, That learned Single Judge had not correctly construed relevant rules namely, 12.15,12.16 and appendix 12.16.

1. On the contrary, Khawaja Saeed-uz-Zafar, Advocate, learned counsel for respondent, supported the impugned order. He contended that under Rules noted above, it was the function of Health Officer/authorities to measure the height/chest of respondents and this was outside the powers of Police authorities to do so. On this line of approach it was suggested that the Government had no business to constitute Boards and that the said Boards had no business to measure the height and chest of the respondents. Reliance was placed on Rule 12.15 and Rule 12.16 of Police Rules, 1934. According to learned counsel, the expression District Health fficer and Civil Surgeon employed in the above rule clearly fix the responsibility of Health Authority to measure the chest and height of recruits. Lastly, it was submitted that under Rule 12.16, the Deputy Inspector General had Authority to relax the physical standard as set down therein in special cases; that the respondents had appeared in written examination as well as oral test\ successfully; that the respondents were post graduates; that on these facts the learned D.I.G. should have exercised his discretion of relaxation in their favour and condoned if there was any minor deficiency in chest and height of respondents. Reliance was placed upon heraz Ata Ullah Khan (minor) through his real material uncle v. Nasir Ahmad KJian & others (1993 C.L.C. 945), Chairman, Regional Transport Authority, Rawalpindi vs. Pakistan Mutual Insurance Company Ltd. (PLD 1991 S.C. 4), Chaudhry Shujaat Hussain vs. State (P.L.J. 1995 S.C. 396) and Abdul Razzaq Rathore v. The State (PLD 1992 Kar. 39).

2. From the foregoing narration of facts, circumstances and arguments of the parties, the following questions arise for considerations- CD Was the doctrine of equality, as embodied in Article 25 of the Constitution, applied to the facts and circumstances of the case in band?

(2) Is/are the Health Authorities namely Civil Surgeon/D.H.O./Medical Officer competent to measure height, chest of successful candidates and Boards, constituted by the Province of Punjab, to undertake that exercise were incompetent?

(3) Were the respondents entitled to benefit of relaxation of conditions of height and chest under Rule 12.16 of Police Rules?

1. In so far Point No, 1 is concerned, it is free from difficulty. The doctrine of equality, as contained in Artide 25 of the Constitution, enshrines the golden Rules of Islam, It states that every citizen, no matter how-high-soever he is, must be accorded equal treatment with similarly situated, persons. It, so, means that similarly situated people should be treated equally. However, it is well known that this dause does not prohibit the treatment to citizen by State on the basis of reasonable classification. This Artide came up for consideration before Supreme Court in Brig. (Retd.) F.B. All and others vs. The State (PLD 1975 S.C. 506) wherein it was held:

"The concept of the 'equal protection of laws; which is derived from the American Constitution is not susceptible of any exact definition." In other words", as stated by the editors of American Jurisprudence, Vol. 12, page 409, "no rule as to protection of laws that wUl cover every case can be formulated and no test of the sype of cases involving such a clause of the Constitution can be infallible or all-inclusive. Moreover, it would be impracticable and unwise to attempt to lay down any generalization covering the subject; each case must be decided as it arises." Be that as it may, the only generalization that is possible is that it means "subjection to equal laws applying to all in the same circumstances" but this does not mean that laws must affect every man, woman and child alike. This guarantee does act forbit discrimination with respect to things that are different nor does it prohibit classification which is reasonable and it based upon substantial differences having a relation to the objects or persons dealt with and to the public purpose sought to be achieved. It guarantees equality and not identity of rights.

The principle is well recognized that a State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a dass. In fact almost all legislation involves some kiad of classification whereby some people acquire rights or suffer disabilities which others do not What, however, is prohibited under this principle is legislation favouring some within a class and unduly burdening others. Legislation affecting alike all persons similarly situated is not prohibited. The mere fact that legislation is made to apply only to a certain group of persons and not to others does not invalidate the legislation if it is so made that all persons subject to its terms are treated alike under similar circumstances. This is considered to be permissible classification."

This view was reiterated in Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), Aziz Begum v. Federation of Pakistan (PLD 1990 S.C. 899) and LA. Sherwani v. Government of Pakistan (1991 SCMR 1041).

1. Tested on above touch stones, we are in no manner of doubt that in the instant cases respondents were treated equally by the appointing Authority and doctrine of equality was not infracted in any manner. Ourbrother Munir Ahmad Mughal, J., with due respect of him, did apply the rule of equality by pressing into service the examples of relaxation inappointment of Inspectors in 1993 and did not notice that no relaxation had been made in the exercise of recruitment of respondent in 1993 at all. This being the position we are very clearly in our mind that the doctrine of equality was not correctly applied. In view of the above, we are not able to uphold the decision of our brother Munir Ahmad Mughal, J. in Writ Petition No. 7649/98.

2. Stage is, now, set to answer Question No. 2. It hinges upon interactions of Punjab Police Rules 1934 namely Rule No. 2.1, 12.6, 12.8, 12.15, 12,16 and 12.17. These are contained in Volume-II. Rule 12.1 specifies the competent authorities to whom the power had been delegated to make appointment of Inspectors of Police, ASIs, S.Is, Without any doubt, the power to appoint Inspectors lies with D.I.G/A.I.G. Government Railways Police and A.I.G. Member Additional of police. The aforesaid authorities are to make appointment within parameters laid down by above rules. Rule 12.6 prescribes the qualifications for direct appointment of Inspector/Sub- Inspector, Its sub-rule (2) postulates that appointment shall be made on the recommendation of Punjab Public Service Commission. It urther ordains that Commission will hold the examination of candidates. Its sub-rule (3) lays down that a candidate shall possess good moral character, must be between 18 to 25 years age; that candidate must be graduate. Rule 12.15 provides that recruit shall not be more than 25 years of age or less than 18 years of age at the time of enrollment and shall have minimum height of 5 feet 7 inches and formal chest measurement of 33 inches with an expansion of 1 \ inches. It also embodies the power of D.I.G. to relax the aforesaid condition in case of special caste and classes which supply desirable recruits whose height is less than prescribed standard. It can be safely said that this rule is very important and embodies physical standards for appointment of recruits as Inspectors. Rule 12.16 is also significant. It is as follows:

"12.16: (1) Every recruit shall, before enrollment, be medically examined and certified physically fit for service by the Civil Surgeon. A certificate, in the prescribed form (No. 64), signed by the Civil Surgeon personally, is an essential qualification for enrollment (vide fundamental Rule).

The examination by the Civil Surgeon will be conducted in accordance with the instructions issued by the Medical Department and will test the eye-sight, speach, and hearing of the candidate, his freedom from physical defect, organic or contagious disease or any other defect or tendency likely to render him unfit, and his age. The candidate must strip for examination, a lying covering being allowed except when the examination is being completed, and any candidate who refused to do so must be rejected. The condition of police service make it necessary that the medical examination of candidate should be strict Candidate shall be rejected for any disease or defect which is likely to render them unfit for the full duties of a police officer.

Superintendents are themselves responsible for rejecting candidates whose general standard of physique and intelligence is unsatisfactory; only those candidates should be sent for medical examination whom the superintendents has accepted as being upto the required standard in these respects."

It says that every recruit shall, before enrollment, be subjected to medical examination and certified to be physically fit for service by Civil Surgeon. Its sub-rule (2) empowers the superintendents of police to reject the candidates who do not fulfil the physical criterion and do not possess reasonable intelligence. Superintendents of police are thus, empowered not to send such candidate for medical test Rule 12.17 applies when a candidate has crossed the above stages. The recruit is sent to Line Officer who shall put him in the charge of Chief Drill Instructor.

1. From the above analysis, it thus becomes clear that Rules 12.15 and 12.16 clearly lay down the physical standards of a recruit to be inducted to police force as Inspector. Summarily, these rules postulate that height of a recruit be 5 feet-7 inches and his chest must be of 33 inches and his age must be 18 to 26 years. The competent authority to make appointment is Deputy Inspector General of Police Assistant Inspector General/Govt. Railways Police and Assistant Inspector General/Provincial Additional Police. The afore-stated physical condition/standard/criteria are condition precedent for the appointment of successful candidates as recruits/Inspectors. This view is completely fulfilled by Rule 12.16 which empowers Superintendents of Police to reject candidate whose standard of physique and intelligence is unsatisfactory, and to send only those candidates for medical examination whom the Superintendent of Police has accepted as being upto the required standard in this respect It, thus, confers power on Superintendents of Police (not competent authority) of full discretion to assess the Physical standards of successful candidates and deny them medical examination. In the face of this rule can it be said that Civil Surgeon/DHO/Medical Officer are not only authorities to measure the height and chest of a candidate and the competent authority is not bound to accept their opinion/result. It is common ground that the competent authority as already noted is D.I.G. The association of Superintendent of Police and Health authorities in the task of appointment of Inspectors is of facilitative nature. Even Superintendent of Police is empowered to reject the candidate on the touch-stones of physical standards and intelligence. Seen from the above prospective we are of considered view that it is the competent authority which has to finally weight/adjudge physical standard required for appointment of a recruit No doubt the role of Health authority is of facilitative nature and is of weight and we are clear in our mind that the Boards, constituted by the Government of Punjab/comprising DIG/competent authority/S.P./D.H.O. were lawful and constituted by Provincial authority/Government of Punjab. Hence, these Boards, exercised their power within the frame work of law and legally found that the respondents did not have the required height and so were not qualified to be appointed as recrutis/Inspectors. It is significant to note that these boards designated competent authority, S.S.P. and concerned Medical Officer.

2. The only question now left for consideration as to whether on the facts of the case in hand, the respondents were entitled to relaxation of Rules 12.15 and 12.16. No doubt, under Rule 12.15, the D.I.G. of Police/competent authority is possessed of such power. However, power is strictly circumscribed to a case of special castes and classes which can supply the desirable recruits, whose height does not come upto the prescribed standard. Rule 12.15 is as follows:

"12.15. (1) Recruits shall be not more than 25, or less than 18 years of age, eat the time of enrollment, and shall have a minimum height of 5"-7" and normal chest measurement of 33", with expansion of lh". These physical standards shall not be relaxed without the general or special sanction of the Deputy Inspector-General. A general reduction of the standard may be allowed by Deputy Inspector General in the case of special castes or classes, which provide desirable recruits, but whose general height does not come up to that prescribed. In such cases a standard of chest measurement and general physique shall be fixed, which will permit the enlistment of strong and well proportioned youths of the class in question.

Conceptually, the power of relaxation falls within the domain of discretionary jurisdiction of Administrative authorities. Before we proceed further to understand its nature, we are tempted to quote saying of a great English Judge Lord Camden: The discretion of a Judge is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends on Constitution, temper, and passion. At best it is often caprice. In the worst it is every vice, folly and passion to which human nature can be liable". State vs. Cummings, 36 MO 263,278." From the above we follow that discretionary jurisdiction is power of Administrative authority/Judicial authority to adopt a way or decide a matter according to his own sagacy or prudence and opinion. It is true that the Courts have initiated the role whereby this power has been structured within parameters of fairness. Nevertheless, exercise of this power rests upon the opinion of Administrative Judge. Briefly speaking it is not dispensable. The power is given on account of complex nature of the jurisdiction. This is almost an odium. What we find is that competent authority declined to exercise this power and dealt with every successful candidate including respondents with equal treatment. Seen ! from above spectrum that the action of Government of Punjab in constituting Boards and the exercise taken by them was dearly legal and no exception can be taken to it.

1. For the foregoing reason, we are not able to sustain decisions of the learned Single Judges dated 22.10.1998 and 6.11.1998. As a result of the above discussion, these appeals succeed with the result that the orders passed by the learned Single Judges in Writ Petitions Nos. 7649/98, 19416/98 and No. 18177/98 are hereby .set aside and the afore-noted petitions filed by the respondents are hereby dismissed. There shall be no order as to costs. (MYFK) Appeal accepted.

PLJ 2000 Lahore 218

Present: tassaduq hussain jilani, J. Mian MUHAMMAD JAHANGIR etc.--Petitioners

versus GOVERNMENT OF PUNJAB etc.»Respondents

W.P. No. 6676 of 1998, decided on 30.4.1998.

Constitution of Pakistan, 1973-

—Arts. 4, 23 & 24-Cantonments Act, 1924 (II of 1924), S. 45-Qanun-e-Shahadat, 1984 (10 of 1984), Art. 114--Challenge to construction of Flyover mainly on grounds that the same was violative of Art. 4 of the Constitution; that petitioners having lease hold rights for 90 years were entitled to easement rights relatable to property in question; that Flyover being partly built on cantonment area and partly on Gulberg side, therefore, joint committee for considering such project was imperative; and that respondents, be restrained to raise such construction on principle of promissory estoppel-Validity-Art. 24 of the Constitution imposes constitutional restriction on law of eminent domain and state retains power to acquire property of its subjects for public purpose-­Where any project or scheme was actuated by laudable considerations of public welfare, if the same leads to general convenience of public; if project in question, engenders commercial activity to the benefit of public at large; and if its impact, on environment was considered to be positive then said project must have precedence over individual rights-Questions that Flyover was un-necessarily long or that the same had been designed to help particular individual were questions of fact requiring leading of evidence calling for factual inquiry which exsrcise could not be undertaken in Constitutional petition-Question of mala fide though raised in petition has not been explained-General allegations of mala fide could not be entertained in constitutional petition and presumption of regularity was attached to official acts-Joint committee in terms of S. 45, Cantonments Act could not be constituted in as much as S. 45 being enabling provision could not have binding effect and that Cantonment Board had no objection to construction of Flyover in question, being public welfare project-Project in question being actuated by Public purpose could noi be thwarted by invoking principle of Promissory Estoppel-Authority had given undertaking that property for construction of Flyover would aot be acquired without due process of law and that question of adequate compensation would be decided by competent Authority within a month-Constitutional petition against project in question was thus, not maintainable in circumstances.

[Pp. 223 to 227] A to G

PLD 1969 SC 223; 1992 MLD 2259; 1996 CLC 1914; 1994 SCMR 923; PLD 1992 Lah. 462; PLD 1983 SC 243; PLD 1993 Kar. 67; 1991 MLD 1112; 1995 CLC 1012; 1992 MLD 200,1993 SCMR 1451; PLD 1974 SC 151; PLD 1991 SC 546 ref.

Mr. A.K. Dogar and SyedZameer Hussain, Advocates for Petitioners.

Mr. Azmat Saeed, Advocate for L.D.A.

Kh. Muhammad Sharif, Advocate General Punjab and Sh. Anwarul-

Haq, D.A.G. for Cantonment Board.

Dates of hearing: 21, 22, 23, 24 and 28.4.1998.

judgment

This judgment shall dispose of Writ Petitions Nos. 6576/98 and 6080/98 as they challenge the construction of Flyover at Cavalry Ground Railway Crossing, Lahore.

1. In Writ Petition No. 6576/98 petitioners are occupants of some of the shops in the Cavalry Ground Shopping Centre as lessees for 90 years lease for commercial purposes and claim that in terms of the lease-deed and the plan of the commercial area (Annexed with the said lease-deed at page 10 of the petition) they are entitled to enjoy the metalled road and 150 feet open space, the construction of the Flyover and the retaining wall of 50 feet width underneath the Flyover has the effect of reducing the open place, narrowing the main road and affecting the business of the petitioners adversely. It was contended that the length of the proposed Flyover is approximately 1600 meters which is three times the length of Mian Mir Bridge on the Mall for which there is no justification.

2. In Writ Petition No. 6080/98 petitioners are owners of houses in Gulberg-III and have challenged the construction of the Flyover on the ground that the same is unjustifiably long and that the acquisition of 3.25 feet land on either side of the road from inside the houses of the petitioners is not tenable in law.

3. During the course of arguments a lady (Mrs. Sherin Khalid Qureshi) having a house in the neighbourhood of the petitioners was also heard. She expressed grievance with regard to the Flyover in question which was similar in nature.

5, In support of these petitions learned counsel for the petitioners Mr. A.K. Dogar, Advocate assisted by Syed Zameer Hussain, Advocate have made following submissions—

(i) that the impugned action is violative of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 as the proceduremandated in law is not being followed;

(ii) that the petitioners entered into lease agreement with the Cantonment Board for 90 years and are entitled to the easement rights relatable to the properly in question and those rights cannot be interfered with through the construction of the Flyover, (iii) that the National Engineering Services Pakistan (NESPAK) had given a plan in which the flyover is 600 meters in length which is acceptable to the petitioners and the length of the proposed construction being 1600 meters is too long and the project on that account is not only more expensive but would have adverse affects on petitioners' vested rights referred to above. He elaborated that by impugned construction the consumers would be deprived of free access from one shopping center to the other through the main road and parking space in front of the parking centres would be reduced from 40 feet to 15 feet;

(iv) that as the Flyover is partly being built on the Cantonment area and partly on the Gulberg side; the former side being owned by the Cantonment Board Constitution of a Joint Committee for considering the project in terms of Section 45 of the Cantonment Act is imperative without which the respondents cannot proceed with the project in hand;

(v) that the construction and design of Flyover is product of malice inasmuch as its length has been increased to benefit of Respondent No. 5 whose son has shop in the Shopping Centre;

(vi) that the respondents may be restrained to raise the construction on the principle of promissory estoppel.

In support of the afore-referred submissions learned counsel relied on the following judgments:--

(i) PLD 1969 SC 223 (ii) 1992 MLD 2259 (iii) 1996 CLC 1914 (iv) 1994 SCMR 923 (v) PLD 1992 Lahore 462 (vi) PLD 1983 SC 243.

1. Learned counsel for the petitioners in Writ Petition No. 6080/98 Sh. ZiauDah Khan, Advocate raised following points—

(i) that by construction of the Flyover in question petitioners' right to live, right to property and right to privacy are being affected;

(ii) that the earlier plan submitted by NESPAK was approved by the World Bank. It is a shorter Bridge and less expenditure.

1. Khawtya Mvihair\mad ffharif, the learned Advocate General while opposing the petitions submitted as under™

(i) that the points raised called for factual inquiry which exercise cannot be undertaken in the Constitutional jurisdiction of this Court;

(ii) that the right to properly is subject to law and that an individual right is subject to the rights of society as a whole.' There was a general demand for the construction of Flyover. The project in hand is a public welfare project and cannot be interfered with on pleas which raise disputed questions of fact He added that every public welfare project entailed some inconvenience at a particular point of time but ultimately it leads to the welfare of the greatest number.

In support of his submissions he relied on the following judgments:—

(i) PLD1993 Karachi 67 (ii) 1991 MLD 1112 (iii) 1095 CLC 1012 (iv) 1992 MLD 200

Coming to the question of compensation the learned Advocate General submitted that the moment the land is acquired the question of compensation would be decided by the competent authority within a month of the initial notification issued for acquisition.

1. Learned counsel for Lahore Development Authority Mr. Azmat Saeed, Advocate made the following submissions:--

(i) that the petitioners cannot invoke the principle of promissory estoppel in the facts and circumstances of the instant case;

(ii) that the project in hand has been initiated on the demand of general public and on the report of TEPA and no mala fide can be attributed to it;

(iii) that the Cantonment Board in its recent meeting has not opposed the construction of the Flyover, and the entire project is being funded by the Provincial Government and there is no need to constitute a Committee in terms of Section 45 of the Cantonment Board Act;

(v) Referred to the feasibility report submitted by Halcrow Fox and Associates, which was approved by the World Bank in 1993, submitted that it had recommended a width of 27 feet (single road) keeping in view the quantum of traffic at that time whereas the present Flyover has the width of 49 feet (double road) keeping in view the report of the TEPA which was submitted in December, 1997. He added that the length recommended is not 1600 meters but only 790 meters and the project has deigned in terms of the feasibility report submitted by NESPAK in December, 1997. Referring to the height of the project learned counsel for LDA controverted the contention of Mr. A.K. Dogar, Advocate that the height of the project is unusually high. According to him the project has a vertical clearance of 20 feet high and not 34 feet high as contended by the learned counsel for the petitioners. In this connection he referred to Annexure-A of "PC-I proforma for the Construction of Flyover at Cavalry Ground Railway Crossing, Lahore" a copy of which has been placed on record by him. Repelling the allegation of mala fides and any benefit gained by Respondent No. 5 on account of the proposed design, learned counsel for LDA has placed on record an affidavit filed by the Chief Engineer TEPA to the effect that Lt General Javed Nasir was nominated a Chairman of the Technical Committee for the Cavalry Ground Flyover videNotification No. LDA/PS/CE/TEPA/254 dated 28.2.1998 whereas the PC-I was approved on 9.1.1998 i.e. before Respondent No. 5's nomination as Chairman of the Technical Committee.

1. Sh. Anwarul Haq, the learned Deputy Attorney General who had entered appearance on Court call was directed to establish contact with the Cantonment Executive Officer. Having sought instructions he submitted that the Cantonment Board has no objection to the construction of the proposed project as it is a public welfare project and that being so there is no need for constituting a Committee under Section 45 of the Cantonment Act.

2. I have heard learned counsel for the parties and have also given anxious thoughts to the arguments addressed at tike bar.

3. It is not denied that with the passage of time the traffic had increased manifold necessitating the construction of a Flyover. During the course of arguments learned counsel for the petitioners fairly conceded that the project in hand is a public welfare project. However, their only objection was to the design of the proposed construction as according to them it was unnecessarily long and its height was unjustiably high. In the comments submitted by the respondents it has been clarified that the length is not 1600 meters as alleged by the petitioners in para 4 of the petition (Writ Petition No. 6576/98) but only 979 meters and that the width of the Flyover is 49 feet as there is a double road on the Flyover, that the height of the project is not more than 20 feet (Annexure-A PC-1 Proforma page 33) and that the Flyover is being constructed in terras of the plan approved by the National Engineering. Services Pakistan (NESPAK) which is evident from PC-I Proforma a copy of which has been placed on record as Mark-A and signed by me.

The learned Advocate General and the learned counsel for the LDA submitted during the course of arguments that acquisition of private properly would be minimal and would primarily be on the Gulberg side of the proposed project and that the same would not be acquired without due process of law. Sub-clause (2) of Article 24 of the Constitution imposes a Constitutional restriction on the law of eminent domain and the State retains the power to acquire property of its subjects for a public purpose. Notwithstanding the fair concession on the part of the learned counsel for the petitioners quathe public welfare aspect of the project in hand a bare reading of the PC-I Proforma would show that the authorities concerned had examined the project not only from economic angle (PC-I Proforma for Construction of Flyover at Cavalry Ground Railway Crossing, Lahore, page 71) but also its environmental aspect Highlighting the environmental impact of the project it has been explained (at page 14 of the said Proforma) as under:

"A road/structure is recognized as a vital part of social and environmental system as it is related with the factors which influence life style,, mobility, economic well being, ecology and the social environment. A well designed structure is the best for road users by any traffic criteria or by any useful environmental criteria -Social or Physical.

Environment Interface:

The Flyover is set in urban environment. The area under the environmental influence of the project is primarily urban. Primary impact zone of the Project consists of accessible centers of population and Industrial areas.

In the immediate vicinity of Flyover which will provide accessibility to business centres, light industries and business will be attracted. The slum land use will change into residential and commercial land uses. Land holdings will register a rise resulting in the economic well being of the people.

Change in Pollution:

(i) The Flyover will reduce the local pollution per engine by increasing speed, removing the congestion somewhat further from neighbourhood properties as hydrocarbons diffuse into the atmosphere therefore local effects are much less.

The diversion of traffic to the Flyover facility will reduce traffic intensity on the present alternate routes and remove congestion of traffic from the densely populated areas. It will cause improvement in level of service on the existing routes and relatively improve the environments in the neighbourhood thereof."

if a project or a scheme is actuated by laudable consideration of public welfare, if it leads to general convenience of the public, if it engenders commercial activity to the benefit of public at large and if its impact on

ft environment is considered to be positive then the said project must have precedence over individual rights. In Karachi Building Control Authority vs. Saleem Akhtar Rajput (1993 SCMR 1451) it was observed, at page 1455, as under.

It is now an internationally recognized principle that if there is conflict between a personal right and environment, the personal right must yield in favour of environment"

1. The questions that the Flyover is unnecessarily long or that it has been designed to help a particular individual are questions of fact requiring leading of evidence calling for factual inquiry which exercise cannot be undertaken in a Constitutional petition. It has been further explained in para 5 of the comments (in WP No. 6576/98) that the cost of the construction of the currect project is loss than the earlier proposal submitted. In ground A of the comments submitted (in WP No. 6080/98) it has been submitted that the question of constructing the underpass was also considered and it was found that the estimated cost of the underpass was amounting to Rs. 395 million whereas the cost of the present project is Rs. 283 million. This data about the cost has not been controverted by filing rejoinder on behalf of the petitioners.

2. Coming to the question of mala fides and the allegation that Respondent No. 6 being Chairman of the Technical Committee of the Flyover has got the same extended upto the patrol pump to save his personal interest I find that it has no where been explained in the petition as to how Respondent No. 5 or his son would be benefited by the length of the Flyover. I find that PC-I Proforma for the design was submitted in December, 1997 and the project was approved by the Provincial Development Working arty (PDWP) on 9.1.1998 whereas Respondent No. 5 was appointed as Chairman of the Technical Committee for the Cavalry Ground Flyover vide Notification No. LDA/PS/CE/(TEPA)/254 dated 28.2.1998. An affidavit to that effect has also been placed on record by the Lahore Development Authority. That being so it cannot be said that the length of the Flyover has been extended for somebody's personal interest General allegations of mala fides cannot be entertained in a Constitutional petition and presumption of regularity is attached to official acts. As held in Federation of Pakistan vs. Saeed Ahmad (PLD 1974 SC 151), at page 170-

"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, there 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 vs. Begum Agha Abdul Karim Shorish Kashmiri (1), 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 nor 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.

"Mala fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of law are also mala fides. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by anyone of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. Thus action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken mala fides.But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorised by the law but for the personal aggrandisement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken."

1. So far as the argument that a Joint Committee in terms of Section 45 of the Cantonment Act should have been constituted is concerned, the same is not tenable for two reasons. Firstly, it is an enabling provision and cannot have a binding effect as expression used in Section 45 of the Act is as under

"45. Joint action with other local authority.--(l) A Board may--(a) joint with any other local authority--

(i) in appointing a joint committee for any purpose in which they are jointly interested and in appointing a chairman of such committee."

Secondly, the learned Deputy Attorney General having contacted the Cantonment Executive Officer has explained that the Project being a public welfare project and funded by the Provincial Government the Cantonment Board has no objection to the construction of the Flyover in question.

1. Learned counsel for the petitioners laboured hard to bring home the point that the petitioners having used the open space for a considerable length of time had acquired easement rights and that the respondents are estopped to build the Flyover on the principle of promissory estoppel. I am afraid the argument is not tenable for following reasons:-

(i) By virtue of Section 108 of the Cantonment Act "(g) all streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements, and things existing on or appertaining to streets" vest in and belong to the Cantonment Board. The said Board has given consent for the project in hand over the street which belongs to it;

(ii) the petitioners who have shops in the Cavalry Ground Shopping Centre and would having parking area (20.6 feet on either side) in terms of the plan. No dimension of the parking area has been spelt out in lease-deed protection of which they could claim as of right (Annex-A in WP 6576/98). Both sides of the Shopping Centres would continue to enjoy the benefit of service road although it has been divided into two parts 30 feet wide on each side;

(Hi) As laid down in Pakistanthrough Secretary Ministry of Commerce and 2 others vs. (PLD 1991 Supreme Court 546) the doctrine of promissory estoppel is subject to certain limitations, and is not an absolute right.

1. The project in hand being actuated by a public purpose cannot be thwarted by invoking the afore-referred principle.

2. The learned Advocate General has stated in Court that so far no property has been acquired and when need be it would not be acquired without due process of law and that the question of adequate compensation would be decided by the competent authority within a month of initial notification of acquisition. In view of the categorical statement made by the learned Advocate General no further comment is called for with regard to this aspect of the matter.

3. For afore-referred reasons Both the Writ Petitions Nos. 6576/98 and 6080/98 are dismissed with no order as to costs.

'A. A.) Petition dismissed.

PLJ 2000 Lahore 227

Present: tassaduq hussain jilani, J. MUHAMMAD ILYAS-Petitioner

versus

HOME SECRETARY ete.--Respondents

W.P. No. 11918 of 1996, decided on 19.5.1998. (I)

Constitution of Pakistan(1973)--

---•An. 199--High Court during course of proceedings felt that terms and conditions of lower rank in Police Departments were appaling and merit serious re-consideration--It was high time that Government should pay due consideration to that aspect to re-surrect the lost image of an institution which had been entrusted to protect lives, property, liberty and honour-Copy of judgment was directed to be sent to Inspector General of Police for bringing such matter to notice of Chief Executive of tfa e P rovi nee for appropriate action. [P. 232] B

PLD 1969 S.C. 507 ref.

(ii) Punjab Civil Servants Recruitment and Relaxation of Upper Age Limit Rules 1976--

—R 3--General Clauses Act (X of 1897), S. 21-Constitution of Pakistan (1973), Art. 199—Entitlement to relaxation of age limit-Petitioners brother having died in Police encounter with terrorists, he was recommended for appointment as A.S.I. in relaxation of rules-Petitioner being over-rage by 6 years and 9 months, Chief Minister approved relaxation in upper age limit upto 6 years and 10 months-Subsequenlty, however, relaxation in age limit was withdrawn-Validity-Initial order passed by Chief Minister in favour of petitioner relaxing his upper age limit was not supported by any provision of law or rules-Same had rightly been withdrawn and no exception could be taken to the same-Authority which has power to pass order, retains power to withdraw, modify or rescind the same until such time, a decisive step had been taken pursuant to order in question-No effective step had been taken in petitioner's favour in as much as no appointment order had as yet been issued and no right had been created violation of which could warrant interference under Art. 199 of the Constitution-Age relaxation could not be given beyond 5 years in any case-Such concession, however, would not be considered for recruitment to Police Force-There being no merit in petitioner's claim, he was not entitled to the relief claimed by him.

[P. 230] A

Ch. Naseer Ahmad Bhutto, Advocate for Petitioner. Mr. Khursheed Anwar Bhindar, learned Addl. A.G. with Azam Salman, Dy. Secy. Home Deptt. for Respondents.

Date of hearing: 1.4.1998.

judgment

Petitioner's real brother, Muhammad Ashfaq a Police Constable No. 11571, died in a Police encounter with terrorists on 26.4.1995. On the application move by the petitioner, he was recommended for appointment as ASI in relaxation of rules. As the petitioner was over age by 6 years and 9 months, the matter was referred to the Chief Minister, Punjab who videorder dated 17.4.1996 Annexure-F with the petition, relaxed the age. The letter reads as under

"On presentation of the enclosed application, Chief Minister has been pleased to approve the relaxation in upper age limit up to six years and ten months, in favour of Mr. Muhammad Ilyas r/o. Sheikhupura, to enable him to seek employment as A.S.I. in Punjab Police.

1. Further necessary action may kindly be taken accordingly."

Notwithstanding the afore-referred sanction, the petitioner was not appointed as ASI.

1. The grievance being voiced through this petition, is that the elatives of other two police officials who were killed in the same incident have duly been accommodated and the petitioner has been discriminated against despite the order passed by the Chief Minister for relaxation of age limit

2. In the comments submitted by the Inspector General of Police, Punjab, it is not denied that the petitioner is real brother of Muhammad Ashfaq who laid down his life in a police encounter with terrorists on 26.4.1995; that the relatives of other two officials who were killed in the same encounter have been duly accommodated and that petitioner holds a Master's degree but the stance being taken by the respondents is that the Provincial Cabinet in its meeting dated 13.8.1990 had imposed a ban on granting of age relaxation for recruitment to the Police force.

3. Learned Additional Advocate General, on the other hand, has opposed the petition by making a reference to Punjab Civil Servants Recruitment and Relaxation of upper age limit Rules, 1976, to contend that the relaxation could be granted only if the case falls within the ambit of Rule 3 of the said Rules which is to the following effect:

Rule 3. Notwithstanding anything to the contrary contained in any rules applicable to any post or service:--

(i) In the case of the candidates from Schedule Castes and Under­developed Areas, for a period of ten years with effect from the commencing day of the Interim Constitution of the Islamic Republic of Pakistan, the upper age limit shall be relaxed by 3 years;

(ii) in case of a person whose services under Government have been terminated for want of vacancy the period of service already rendered by him shall for the purposes of upper age limit under any rule, be excluded from his age; and

(iii) in the case of Ex-Defence personnel, the interval between the date of their release from the Defence Forces of Pakistan, including the Mujahid Force and the date of re-employment in a Civil Department subject to a maximum of seven years and the whole of the period of service rendered by them in such Forces shall for the purposes of upper age limit under any rule, be excluded from their age;

(iv) in the case of a person who has rendered national service under the Pakistan National Service Ordinance, 1970, the period actually spent by him in such service shall, for the purpose of upper age limit prescribed under any rule, for appointment to any service/post be excluded from his age;

(v) in the case of a candidate already working as a Government Servant, the period of his continuous service as such shall for the purpose of upper age limit prescribed under any service rules of the post for which he is a candidate, be excluded from his age."

1. I have heard learned counsel for the parties and have given anxious thoughts to the arguments addressed at the bar.

2. The practice to honour the sons and next kith and kin of those police officials who lay down their lives while on duty particularly in encounters is very old. Governments from time to time, have made rules and taken decisions to that effect The last Cabinet decision in this regard in the Province of Punjab was taken in November, 1991 and finds mention in Services and General Administration's letter No. Cabinet-11/1 -21/91 Entry No. 2033/PS-91 dated 10.12.1991, para No. 2 of which reads as under:

The important qualifying clause of the afore-referred decision was that the appointment was to be made in accordance with the educational qualification and the relevant rules and regulations. Though, the petitioner is real brother of a "Shaheed Police Constable" and is academically qualified for the appointment for the post in question yet he was admittedly overage by six years and ten months. At one point of time, the Chief Minister, Punjab granted relaxation of upper age limit in his favour but when he was apprised of the relevant rules, he withdrew the sanction. Besides Rule 3 of the Punjab Civil Servants Recruitment and Relaxation of upper age limit Rules, 1976, referred to in para No. 5 above, there is a Cabinet decision dated 30.8.1990 which was communicated to all the departments in the Services and General Administrations Letter dated 10.9.1990 which in clause 3 mandates as under:

(iii) "Age relaxation shall not be given beyond five years in any case. This concession shall not be considered for recruitment to the Police Force,"

The Government of Punjab, reiterated the general relaxation of upper age limit by five years in respect of all candidates for vacancies in BPS1 to BPS 15 under the administrative control of the Punjab Government and Autonomous bodies excluding the Police Department. This is apparent from the Government of Punjab Services and General Administration's letter dated 9.5.1994 a copy of which has been placed on record by the learned Additional Advocate General, Punjab. A bare reading of the afore-referred provisions of rules and the Cabinet decision taken, would show that the initial order passed by the Chief Minister in favour of the petitioner relaxing his upper age limit was not supported by any provision of law or rules. The same had rightly been withdrawn and no except can be taken to the same. An authority which has a power to pass an order retains the power to withdraw, modify or rescind the same untill such time, a decisive step has been taken pursuant to the order in question. In the instant case, no effective step had been taken in petitioner's favour inasmuch as no appointment order had as yet been issued and no right had been created violation of 'which could warrant interference under Article 199 of the Constitution. The Principle of locus poenitentiae is couched in Section 21 of the General Clauses Act and has been elaborated at length by an instructive judgment of the Hon'ble Supreme Court in Pakistan, through the Secretary, Ministry of Finance vs. Muhammad Himayatullah Farrukh (PLD 1969 Supreme Court 407) wherein at page 412, it has been observed as under.

"There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of Section 21 of the General Clauses Act, locus poenitentiae, Le., the power of recalling till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights.

In the present case, the order fixing the basic salary of Rs. l.OOO/- per mensem for the respondent Himayatullah Farukhi was made by the President on the 1st of October, 1959 when the 1956-Constitution had been abrogated and the country was governed by the Laws (Continuance in Force) Order, 1958. Under Clause (11) of Article 6 of that Order, which was introduced by the Laws (Continuance in Force) (Six Amendment) Order, 1960, it was provided that nothing in that Article or in any rule or enactment relating to conditions of service, shall be construed to limit or abridge the power of the President or a Governor to deal with the case of any person in the service of Pakistan in such manner as may appear to him to be just and equitable, provided that where anything in this Article or in any such rule or enactment is applicable to the case of any person, the case shall not be dealt with in any manner less favourable to him that provided by this Article or the rule of enactment. Acting under this provision the President in the exercise of his supra-constitutional powers fixed the salary of the respondent at Rs. 1,000/- per mensem, notwithstanding the fact that his earlier representation for the same purpose had been rejected by the Prime Minister of Pakistan. The Order of the President was duly communicated to the Ministry of Communications and the respondent and its implementation thus ensured became a part of the terms and conditions of the service of the latter (Himayatullah Farukhi) relating to his remuneration. By the time that the President made the 2nd order on the 26th of August, 1962, revoking the earlier one, the Constitution of the Islamic Republic of Pakistan, 1962 had been enforced which contained a protective provision in Article, 178 thereof, that the terms and conditions of service of a person in the service of Pakistan as regards his remuneration and age, shall not varied to his disadvantage. The President's subsequent order was, therefore, void on that basis."

1. For afore-referred reasons, I do not find any merit in this petition which is dismissed. However, while parting with this judgment, I am constrained to remark that the terms and conditions of the lower ranks in Police Departments are appalling and merit serious reconsideration. No doubt against the Department, there are complaints of corruption; of fake police encounters; of tyranny and of torture and custodial deaths on account of which there has been a serious loss of credibility. But no institution is without its share of blacksheeps. This department, is no exception. However, let those controversial officers in the ranks not cloud our perception about the institution a whole. Unfortunately, on account of various factors, this institution tike many others has been neglected and resultantly it has failed to deliver to an extent which is expected of it. In an age of high inflation and rising costs of living, they are condemned to live at a salary on which it is hardly possible to make the two ends meets. Most of them even today are provided with .303 rifles to confront kalashnikov, uzi and other sophisticated weapons. No wonder when a genuine encounter takes place, the Department has pay its toll. But the police officials who die, their families are mostly given nothing except few hundred thousand rupees. It is hardly a compensation or consolation for a widow, a minor son and any other relative who not only loses an earning hand but identity and a little status that they enjoyed (on this account) in this badly status conscious society. It is high time that the Government should pay due consideration to this aspect to resurrect the lost image and the lost morale of an institution which has been entrusted to protect our lives, property, liberty and honour. A copy of this judgment shall be sent to Inspector General of Police, Punjab who shall bring this matter to the notice of the Chief Executive of the Province for an action that he may deem appropriate.

(A.A.) Petition dismissed.

PLJ 2000 Lahore 232

Present: TASSADUQ HUSSAIN JlLANI, J. AMJAD ALI KHAN-Petitioner

versus DEPUTY COMMISSIONER, MIANWALI and others-Respondents

W.Ps. Nos. 26208 & 28742 of 1997, heard on 8.10.1998. (i) General Clauses Act, 1897 (X of 1897)--

—S. 21--Constitution of Pakistan (1973), Art. 199--Locus poenitentiae, principle of--Essentials-Authority in terms of principle of locus poenitentiae has power to rescind or withdraw an order but such right or authority is qualified authority, before certain rights have been created in favour of a party. [P. 235] A

(ii) Petroleum Rules 1985--

—-R. ISO-Constitution of Pakistan (1973), Art. 199--No objection certificate granted by Deputy Commissioner for installation of Petrol pump-Subsequent withdrawal of such no objection certificate—Competency--Petitioner having been issued no objection certificate one year prior to impugned notice, had started construction and major part of project in question was complete-Deputy Commissioner in such circumstances had no authority to rescind no objection certificate in question—Petitioner in answer to objection of respondents that he had installed Petrol Pump within crossings of roads in question, had placed on record affidavit to the efect that he would leave 20 feet wide space on both sides of Petrol Pump from his own land and would maintain grossy plot over the same and would not run any restaurant-Such affidavit would be enough to allay apprehension of respondent authorities-Petitioner if at any stage dishonours undertaking given before High Court, Authorities would be at liberty to withdraw no objection certificate or Board of Revenue might net extend lease in question-Rival Constitutional petition was filed after more than one year of issuance of no objection certificate against issuance of the same-Such petition having been filed on account of business rivalry was hit by laches-Notice for cancellation of no objection certificate issued by Deputy Commissioner was set aside in circumstances.

[Pp. 235 to 237] B To D PLD 1969 SC 407, Law Notes 1969 SC 25; 1995 SCMR 705 ref.

Malik Noor Muhammad Awan, Syed Iqbal Hussain, Advocates for Petitioner, Dr. M. Mohyuddin Qazi, Advocate for Petitioner in W.P. No. 28742 of 1997.

Mr. Muhammad Nawaz Bhatti, Addl. Advocate General for Respondents.

Date of hearing: 8.10.1998.

judgment

This judgment shall dispose of Writ Petitions Nos. 26208 Amjid Alt Khan Niazi vs. The Deputy Commissioner Mianwali etc. and 28742 Haji Zia Ullah Khan vs. M/s Shell Pakistan Ltd. and others of 1997 and Criminal Original No. 133-W/98 Haji Zia Ullah Khan vs. Amjid All Khan Niazi as they raise common questions of law and facts.

1. Facts as given in Writ Petition No. 26208/97 are that, the petitioner Amjid Ali Khan Niazi was leased out six Kanals of land by the Board of Revenue vide order dated 19.12.1995 (for a period of five years) on the recommendation and at the price fixed by the District Price Committee vide letter dated 4.12.1995 at the rate of Rs. 2,000/- per Acre for installation of a Petrol Pump. Pursuant to the grant of afore-referred lease, in 1996, the petitioner applied to Barmah Shell Company for the grant of requisite licence. On 18.9.1996, the Barmah Shell Company wrote a letter to the

Deputy Commissioner, Mianwali for the grant of No Objection Certificate. On 23..9.1996, the Deputy Commissioner, Mianwali, called for the comments of Superintendent of Police; Executive Engineer Highway; Executive Engineer Buildings Department; District Forest Officer; Executive Engineer Canals and Civil Defence Officer, Mianwali. The concerned departments granted the N.O.C. whereafter the Deputy Commissioner, on 22.10.1996 issued N.O.C. on the basis of which, the Barman Shell Company issued licence to the petitioner. On 4.11.1997, the Deputy Commissioner, issued a show cause notice to the Regional Manager, Shell Pakistan Ltd. Faisalabad that as the Superintending Engineer, Highways had objected to the location of the Petrol Pump in question at the proposed site, why the N.O.C. issued on 20.10.1996 may not be withdrawn.

1. The issuance of this show-cause notice has been challenged in this petition inter-alia on the ground that the Deputy Commissioner, Mianwali having once issued the N.O.C. had become functous officio and he has no power to withdraw the same; that the only relevant provision through which, the licence can be cancelled is resort to R»le 130 of the Petroleum Rules, 1985 which is not applicable to the facts and circumstances of this case; that the Deputy Commissioner, has not applied his mind and has merely acted on the advice of the Superintending Engineer Highways; that the site in question is not a crossing at the Highways; that after the issuance of N.O.C. the petitioner was allowed to raise constructions and he has almost completed the Petrol Pump with a cost of almost 30/35 lacs; that it would be unfair and unjust to withdraw the sanction at this belated stage and that the impugned notice has been motivated by political consideration as petitioner's father had lost to a sitting M.N.A. in the last general elections.

2. Learned Additional Advocate General, on the other hand, has supported the impugned notice by submitting that petitioner had obtained State land at extremely low price; that the N.O.C. had wrongly been issued; that the site in question is not suitable for the installation of a Petrol Pump and that there being no jurisdictional defect, the Writ is not competent

3. In Writ Petition No. 28742/97, the petitioner submitted that he wanted to install a Petrol Pump in the vicinity; that he had given application on a prior date on 15.2.1995 to the Deputy Commissioner but the said application was not processed; that the petitioner in Writ Petition No. 26208/97 had got State land leased out in his favour and had got issued N.O.C. for installation of a Petrol Pump by exerting political influence as his father was then a sitting Minister; that the site qua which the N.O.C. had been issued was not fit for installation of a Petrol Pump and the Deputy Commissioner, had rightly issued show-cause notice for withdrawal of the

N.O.C.; that under Section 20 of the General Clauses Act, the right is available to a public functionary to rescind or withdraw the earlier rder. In the afore-referred circumstances, it was prayed that the N.O.C. issued on 20.10.1996 and 23.11.1995 in favour of Respondent No. 5 (petitioner in Writ

Petition No. 26208/97) may be declared illegal, discriminatory and without lawful authority.

1. Heard. I have given anxious thoughts to the arguments addressed at the bar.

2. It is not denied that the Board of Revenue, had granted lease of State land for five years at a price fixed by the District Price Committee, that the Board can refuse to extend the lease and can enhance the money, that prior to issuance of No Objection Certificate, the Deputy Commissioner, Mianwali had made a reference to all the concerned departments and it was only on a positive note from all of them that he issued N.O.C. dated 20.10.1996. It is further not denied that after the grant of N.O.C. petitioner started construction of the Petrol Pump. The respondents have alleged that till the filing of this petition, the petitioner had only done some earth work whereas the petitioner says that the entire work is almost complete. At no stage, the respondent authorities gave an application for appointment of a commission to ascertain the factual position. The Deputy Commissioner, Mianwali has sought to cancel the N.O.C. at the instance of Highway department which earlier on had granted N.O.C. more than a year back. In the afore-referred circumstances, the question which crops up for consideration is, as to whether at this belated stage, the Deputy Commissioner was competent to rescind the earlier N.O.C. There is no avail to the proposition that in terms of principle of locus-poenitentiae an authority has the power to vary, rescind or withdraw an order but this right or authority is a qualified authority before certain rights have been created in favour of a party. In Pakistan, through the Secretary, Ministry of Finance vs. Muhammad Hamaytullah Farukhi (PLD 1969 Supreme Court 407), the Hon'ble Supreme Court held as under:

"There can hardly be any dispute with the .rule as laid down in these cases that apart from the provisions of Section 21 of the General Clauses Act, locus poenitentiae, Le. the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass the orders to retrace the wrong steps taken by them. The Authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken illegal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."

The petitioner (in WP No. 26208/97), having been issued N.O.C. a year prior to the impugned notice, had started construction and major part of the project in question is complete. In these circumstances, the Deputy B Commissioner has no authority to rescind the NOC. Notwithstanding the afore-referred legal position, on a query made by this Court, the Deputy

Commissioner (who appeared in Court today) admitted that no action has been taken against those who were instrumental in issuance of N.O.C. or grant of the lease. He was however, asked as to whether in the event of cancellation of N.O.C. would the Government be prepared to compensate the petitioner for the money spent at the site, the Deputy Commissioner replied in the negative. With such credentials and conduct of the respondent authorities, it would be un fair to the petitioner to withdraw the N.O.C. In Burmah Shell Oil Storage & Distributing Co. Pakistan Ltd. and another versus The Deputy Commissioner (District Magistrate) Karachi (Law Notes 1969 S.C. 25), the No Objection Certificate issued by the Deputy Commissioner was withdrawn on the objection of the local residents as it was contended that the installation of a Petrol Pump would prove nuisance for the area. The order of the Deputy Commissioner was upheld by the Sindh High Court but on an appeal filed by the Burmah Shell Company, the August Supreme Court, set aside the order of the High Court; allowed the appeal and observed at page 29 as under: -

"But the real point that arose in the case and which was pointedly made the subject of grievance by the appellants in Writ Petition was missed by the learned Judges. It was that the suspension of the "No Objection Certificate" could not affect the operation of the licence for the storage of petrol which the appellants had duly obtained although on the very basis of the "No Objection Certificate". While it was necessary to obtain the certificate from the District Authority or if it refused to give it from the Central Government under Rule 115(5) of the Petroleum Rules for getting the licence for the storage of the Petrol; the continued validity of the licence did not depend on the certificate itself. In fact, the District Authority became functious officio in that respect after it issued the certificate. It does not under the law have any powers to control the operation of the licence during the period for which it is granted. The suspension or the revocation of the "No Objection Certificate" was thus a futile effort if it was intended also to stop the operation of the storage licence. Similarly, even assuming that the suspension was rightly made although the High Court itself agrees that it was not so after the stage for locus poenitentiae for the respondent was over, the respondent had no power to stop the installation and construction of the pump which hud been started after due sanction by relevant authorities. This part of the order of the respondent was obviously without any legal authority."

The afore-referred view was reiterated by the Hon\ble Supreme Court in Hqji Ferozedin vs. Tlie District Magistrate Lahore and another (1995 S.C.M.R. 705).

. 8. To meet the objection of the respondent authorities that the

(petitioner had installed the Petrol Pump within the crossings of the roads in (question, and that on both sides no empty spaces have been left, the petitioner has placed record an affidavit to the effect that he shall leave 20 feet wide space on both sides of the Petrol Pump from his own land and shall maintain a grossy plot over the same and shall not run any restaurant This affidavit should be enough to allay the apprehension of the respondent authorities. If at any stage, the petitioner dishonours the undertaking given before this Court, the respondent authorities shall be at liberty to withdraw the N.O.C. or the Board of Revenue may not extend the lease.

1. The preliminary objection raised by the learned Additional Advocate General, Punjab that the Writ is premature as only a show-cause notice was issued for cancellation of N.O.C. is not tenable as in thecomments submitted, the Deputy ommissioner, has almost decided the matter and has finally observed that the respondent authorities shall not permit the petitioner to run the Petrol Pump, In this view of the matter, itwould be futile to send the petitioner back to the Deputy Commissioner.

2. In Writ Petition No. 28742 cf 1997, the petitioner has challenged the issuance of N.O.C. granted by respondent authorities on 20.10.1996 nter-alia on the grounds that the site in question is not suitable for the installation of a Petrol Pump; that he had applied earlier for installation of a Petrol Pump near the site in question; that the Deputy Commissioner, without passing any order on the said application had issued N.O.C. in favour of Respondent No. 6 which was not tenable. The petitioner filed this Writ petition on 13.12.1997 i.e. after a lapse of more than one year of the issuance of the N.O.C, He never pursued the application and started agitating about the issuance of N.O.C. granted to Respondent No. 6 only when a notice was issued to the latter for cancellation of the afore-referred N.O.C. which he challenged in Writ Petition No. 26208/97. The District Magistrate appearing in Court on Court query, submitted that the site where this petitioner wants to install the Petrol Pump is only at a distance of 50 feet from the one which is subject matter of the earlier Writ Petition. Prima-facie, the instant petition has been filed on account of business rivalry and is also hit by laches.

3. In the afore-referred circumstances, the Writ Petition No. 26208/97 is allowed. The show-cause notice dated 4.11.1997 issued by the Deputy Commissioner, Mianwali is set aside with no order as to costs.

4. For reasons given in para 9 above, the Writ Petition No. 28742/97 is dismissed.

5. As the main petitions have already been disposed of, no further action is called for in Criminal Original No. 133-W/98. This is also dismissed.

(A.A.) Order accordingly.

PLJ 2000 Lahore 238

Present: tassaduq hussain jilani, J.

M. ZAFAR ABBAS-Petitioner

versus

COMMISSIONER FAISALABAD DIVISION, FAISALABAD and others—Respondents

Writ Petition No. 5075 of 1996, heard on 9.10.1998.

(1) Constitution of Pakistan, 1973-

—Art. 199—Appointments-Petitioner although was highly qualified for the posts in question he was ignored and respondents were appointed for political considerations-Validity-Manner in which recruitment process was carried out had evaded sanctity of ppointments made-Irregulrities reflecting adversely on entire process were that advertisement was given only in one Urdu daily and last date for receipt of applications was only five days period for filing applications; that all respondent's except one did not apply within cut-up-date; most of the applications were un-dated and some of them were addressed to Chief Minister instead of competent Authority while the others were submitted through M.P.A's which fact would lend credence to allegation that political influence was exerted to secure favourable appointment orders in favour of respondents; respondent appointees had been given un-usually high marks in interview—Appointments against state jobs were as per settled law not the personal bounty of person in authority but have to be given to those who qualify on merit-Appointments of respondents do not reflect bona fide exercise of power on the part of Divisional Recruitment Committee- Appintments impugned herein were, therefore, set aside and commissioner concerned was directed to initiate de novo exercise for determining merit afresh and issue appointment orders according to law-­ Commissioner was also directed to ensure that advertisement for the post would be given in two national dailies; that there should be gap of three weeks between the date of advertisement and last date for receipt of applications-Date and time of interview should be given inadvertisement—Only those would be eligible to apply who had acquired their basic qualifications required for the said post prior to cut-up-date of prior applications—Commissioner was directed to complete entire exercise by 30th November 1998. [Pp. 241 & 242] A, B

(ii) Constitution of Pakistan, 1973--

—Art, 199-Judicial review of Administrative action-Extent of-Public functionaries many a times act beyond the call of their duty resulting in usurpation of rights of people-There were frequent instances when merit was tinkered with in as much as, functionaries of the state who were entrusted with the task of making appointments on merit accommodate political favourites which has evaded public confidence in concerned institutions-Public functionary who abuses his lawful authority in utter disregard to his mandate of office cannot claim protection of "action taken in good faith"--Tainpering with official record and accepting applications of candidates after cut-up-date for extraneous consideration was not bona fide exercise of lawful authority vested in commissioner, therefore, he was burdened with cost of Rs. 10.000/- which would be paid to petitioner as costs for agony and mental torture and for having incurred cost of filing constitutional petition—Copy of judgment was sent to Accountant General Punjab who would ensure that such amount was deducted from commissioner's salary and paid to commissioner.

[P. 243 & 244] C, D 1993 SCMR 1287; AIR 1965 SC 1293; 1993 SCMR 639 ref.

Mr. A.D. Nasimr Advocate for Petitioner.

M/s. Sh. Ziauddin Ahmad and Hafiz Tariq Naseem, Advocates for Respondents.

Mr. Muhammad Nawaz Bhatti, Addl. A.G. for Respondents Nos. 1 to 6.

Dates of hearing; 8/9.10.1998.

judgment

Pursuant to an advertisement published in the daily "Khabrain" dated 17th March, 1995 on behalf of Mr. Riaz Ahmad Khan, the then Commissioner Faisalabad Division Faisalabad, inviting applications for appointments against twelve posts of Civil Sub-Engineers, petitioner alongwith others applied for the posts in question. The last date for receipt of application, as given in the advertisement was 22.3.1995 but no date for interview was indicated. As per petitioner, his application was diarised at Serial No. 94; that he was subjected to interview on 28.3.1995; that he secured highest marks in academic qualifications and that notwithstanding his higher merit respondents were appointed for political considerations. In para 6 of the petition petitioner has referred to Annexures, J, K, L, M and O to indicate that instructions had been received from the Office of the Chief Minister wherein it was indicated that the recommendees of various MPAs and MNAs should be accommodated for the appointments in question. In the comments submitted by the Commissioner Faisalabad it is admitted that the petitioner secured 70 marks in qualifications (which was the highest) but he could not qualify in interview as he had only obtained three marks out of twenty. It was further averred that appointments were made strictly on merit and on the recommendation of the Divisional Recruitment Committee. In the written statement submitted by Respondents Nos. 17 to 20 allegations of political influence in appointments have been denied and it has been mentioned that the appointments were made strictly in accordance with the merit.

1. Learned counsel for the petitioner in support of this petition submitted that the respondents who have been appointed did not even apply in time for the posts in question; that they were much below the petitioner in academic qualifications; that they were given unreasonably higher marks in interview only to deprive the petitioner of his right to be appointed and that the respondents got appointments in violation of merit and this Court in the Constitutional jurisdiction can annul the appointments to ensure that the merit prevails. He relied on Aziz Ahmad vs. Chairman Board of Intermediate & Secondary Education Gujranwala (PLJ 1997 Lahore 1844).

2. The learned Additional Advocate General as also the learned counsel for the respondents, on the other hand, have defended the impugned appointments on the grounds that the same were made strictly on merit and no exception can be taken to that; that the petitioner has an alternate remedy of approaching the departmental authority; that the respondents having been appointed after due interview and having served the department for more than two years cannot be terminated and that the petition having no merit is liable to to be dismissed. Heard. Record perused.

3. In view of the tenor of argument and the allegations levelled it was deemed necessary to requisition the record. Maqsood Ahmad, Admn. Officer, O/o Commissioner Faisalabad appeared with record on 1.4.1998 and 9.10.1998 and having seen the record made statement that as per record none of the appointees except Abdul Jabbar respondent applied for the posts. The respondents have not been able to rebut the said assertion through an affidavit. Notwithstanding this Court by way of abandoned caution checked each file and it was revealed that Respondent No. 7 Bashir Ahmad's application does not bear any date and is not diarised; that Respondent No. 8 Zafar Iqbal's application does not bear any date and is not diarised and is not addressed to any one; that Respondent No. 9 Farzand All's application is not dated and is not diarised; that Respondent No. 10 Azhar Mehmood's application is undated and is not diarised; that Respondent No. 11 Nabeel Ahmad's application is addressed to Secretary Punjab Local Government, is undated and undairised; Respondent No. 12 Imtiaz Ali's application is undated and undiarised and on top of it is written c/o. Amanullah Khan MPA; Respondent No. 13 Muhammad Sabir Javed's application is dated 18.3.1995 but is not diarised; Respondent No. 14 Muhammad Saleem's application is addressed to the Chief Minister of Punjab and is undated and undiarised; Respondent No. 15 Hassan Naseem's application is addressed to Additional Chief Secretary and is undated undiarised; Respondent No. 16 Mujahid Hussain's application is addressed to Chief Minister which is undated and undiarised; Respondent No. 17 Shakeel Ahmad's application is addressed to Chief Minister of Punjab, is undated and undiarised; Respondent No. 18 Muhammad Ijaz's application is addressed to Commissioner is undated and undiarised. Tauqeer Ahmad's application is also undated and undiarised. The only respondent whose application is properly diarised is Abdul Jabbar (Diary No. 36) which corresponds with the diary number mentioned in receipt register brought by Maqsood Ahmad, Admn. Officer of Commissioner Office. 1 have also gone through the merit list and find that the petitioner Zafar Abbas secured the highest marks in so far as academic qualifications were concerned notwithstanding the fact that he deserved additional marks (for his degree in Bachelor of Technology) which were denied to him despite an application made to the Commissioner which is Annexure-I with the petition. The break up of the marks given to the respondents and the petitioner is as follows:

| | | | | | | | --- | --- | --- | --- | --- | --- | | S, No. | Name of Candidate | Marks for Acad. Qua­lifications | Marks for Rural Basis | Marks of Interview | Total | | 1, | Shakeel Ahmad | 60 | 5 | 15 | 80 | | 2. | Muhammad Saleem | 58 | 5 | 16 | 79 | | 3. | Tauqeer Abbas | 68 | 10 | 5 | 78 | | 4, | Muhammad Ijaz | 63 | - | 14 | 77 | | 5. | Farzand All | 56 | 5 | 16 | 77 | | 6. | Azhar Mehmood | 56 | 5 | 16 | 77 | | 7. | Zafar Iqbal | 58 | 5 | 13 | 76 | | 8. | Bashir Ahmad | 58 | 5 | 13 | 76 | | 9. | Hassan Nasim | 59 | -- | 17 | 76 | | 10. | Mujahid Hussain | 58 | - | 18 | 76 | | 11. | Nabeel Ahmad | 56 | -- | 19 | 75 | | 12. | Irnitaz All | 60 | 5 | 10 | 75 | | 13. | Muhammad Sabir Javed | 58 | 6 | 12 | 75 | | 14. | Abdul Jabbar | 58 | - | 16 | 74 | | 15. | Zafar Abbas | 70 | - | 03 | 73 | | | (petitioner) | | | | |

1. The afore-referred resume and the manner in which recruitment process was carried out has eroded the sanctity of the appointments made. Following irregularities reflect adversely on the entire process:-

(i) That the advertisement was given only in the daily "Khabrain" of 17.3.1995 and the last date of receipt of applications was 22.3.1995 which means that only five days period was given for filing the applications;

(ii) All respondents except Abdul Jabbar did not apply within the cut-up-date;

(iii) most of the applications are undated and some of the applications are addressed to the Chief Minister of Punjab and there is nothing on record as to how those applications reached the office of the Commissioner Faisalabad Division Faisalabad. This lends credence to the allegation that political influence was exerted to secure favourable appointment orders in favour of the respondents;

(iv) the respondents-appointees have been given unusually high marks in interview. Law is now settled that appointments agsiast State jobs are not the personal bounty of a person in authority but have to be given to those who qualify on merit In Human Rights Case No. 104 of 1992 the Hon'ble Supreme Court took serious note of this and held as under

"While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Government, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice isprima-facie violative of the Fundamental Rights (Article IS of the Constitution) guaranteeing to every citizen freedom of profession.

Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith."

The afore-referred view was reiterated in Munawar Khan vs. Niaz Muhammad and 7 others (1993 SCMR 1287).

The Indian Supreme Court also was of the same view as in C. Channabasavaih and others us. State of Maysore and others (AIR 1965 Supreme Court 1293) it held as under:

"It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection before the law have any meaning and in our publk institutions are to inspire that confidence which m 7? we would be felling in our duty if we did not, even at the cast of considerable convenience to Government and the selected candidates do the right thing."

1. For what has been discussed above I am of the considered view that the appointments made do not reflect a bona fide exercise of power on the part of the Divisional Recruitment Committee. The appointments no made, which are impugned herein, are, therefore, set-aside and it is directed that the Commissioner Faisalabad Division Faisalabad shall initiate a de novoexercise for determining the merit afresh and issue appointment orders accordingly. While doing so he shall ensure that:

(i) Advertisement for the post is given in two national dailies;

(ii) there should be a gap of three weeks between the date' of advertisement and the last date for receiving applications. The date and time of interview should be; given in the advertisement;

(ill) Since for the appointments in question the out up date for receipt of applications was 22.3.1995, only those would be eligible to apply who had acquired their basic qualifications required for the said post prior to 22.3.1995;

(iv) the Commissioner shall complete the entire exercise by 30th November, 1998.

9, Before parting with the judgment it is imperative to refer to another recurrent phenomenon in our body politic. It is a matter of common observation that public functionaries many a times act beyond the call of their duty resulting in usurpation of rights of the people. In developing societies there are frequent instances when merit is tinkered with and functionaries of the State who are entrusted with the task of making appointments on merit accommodate political favourities which have eroded public confidence in the concerned Institutions. A public functionary who abuses his lawful authority in utter disregard to his mandate of office cannot claim protection of "action taken in good faith". This serious dereliction of duty calls for proper action on the part of the Courts so that such instances are not repeated and those suffered are provided some compensation. It was precisely for these reasons that while making a judicial review of ajirninistrative action Courts have burdened the delinquent officials with costs. In 'JUDICIAL REVIEW OF ADMINISTRATIVE ACTION" BY DE SMITH WOOLF AND JOWELL (FIFTH EDITION IN CHAPTER 19 AT PAGE 75) the Author refers to an observation of Professor Dicey who said "every m^n, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction as the ordinary tribunals". He adds that 'Dicey then alleges that the law reports of his time abounded with cases in which officials were brought before the Courts and made, in their personal capacity, liable to the payment of damages for acts done in their official capacity". For Dicey "the function of tortious liability here was principally to provide a mechanism for controlling Governmental power".

Recognizing the wisdom and rationable of awarding costs the Hon"ble Supreme Court in Khurshid AhmadNaz Faridi vs. Bashir Ahmad & 3 others (1993 SCMR 639), at page 642, observed as under:

"The object of granting such costs may be two fold, one, to compensate the aggrieved party, who in successful assertion/defence of his right, has been put to unnecessary litigation and harassment. The other object is to penalise a party who may have initiated any action or passed the order in complete disregard of the obvious and glaring acts with highhandedness, arbitrarily, mala fide or ulterior motive. Where a person acting in his official capacity in complete disregard of the dear records and documents and having no authority to pass order of a particular nature, passes such an order, then while setting aside such order the Court awards cost to be paid by him personally, it will be proper exercise of discretion."

1. In the instant case, tempering with the official record and accepting applications of the candidates after the cut up date for extraneous consideration was not a bona fide exercise of the "lawful" authority vested in the then Commissioner. Respectfully following the dictum laid down by the Hon'ble Supreme Court referred to above I am persuaded to burden the then Commissioner Faisalabad Division Faisalabad Riaz Ahmad Khan with a cost j)of Rs. 10.000/- (Rupees ten thousand only) which shall he paid to the petitioner as costs for the agony and mental torture and for having incurred the cost of filing this petition. A copy of this judgment shall be sent to the Accountant General Punjab who shall ensure that this amount is deducted from his salary and paid to the petitioner.

(A.A.) Petition accepted.

PLJ 2000 Lahore 244

Present: tassaduq hussain jilani, J. MUHAMMAD MASOOD JOYA--Petitioner

versus GOVERNMENT OF PUNJAB and others-Respondents

W.P. No. 5555/98, decided on 19.10.1998. Punjab Civil Servants Act, 1974 (IX of 1974)-

—S. 18-Constitution of Pakistan (1973), Art 199--Civil Servant-­Retirement--Withholding of pension for a period of more than one year-­Effect—Where inquiry was pending against civil servant and the same was not concluded within one year of his retirement, pension and gratuity must be sanctioned-Government through letter dated 17.9.1982 bearing No. S.O. (8)-E-12/82 has mandated that after retirement of Civil Servants, they being no longer civil servants, disciplinary proceedings against them would stand abated-Such mandatory provision being in the field, no justification existed either for Education Department or District Accounts Officer to withhold petitioner's pension and gratuity after his retirement-Civil Servant's retirement having been effected for more than one and a half year, Secretary Education was directed to ensure that petitioner's entire pension and gratuity was released within thirty days from disposal of constitutional petition-Petitioner, however, having suffered agony to collect his pension and gratuity for which purpose he had to incur extra expenses of filing constitutional petition, High Court burdoned Education Department with costs of Rs. 10,000 to be paid to

petitioner alongwith pension and gratuity. [P. 246] A

Ch. Muhammad Shafique, Advocate for Petitioner.

Mr. Khadim Nadeem Malik, Addl. Advocate General for Respondents.

Dates of hearing: 14.10.1998 & 19.10.1998.

judgment

The petitioner retired as District Education Officer on 31.3.1997 on attaining the age of superannuation. His pension was not released on the ground that some inquiry was pending against him. Learned Additional Advocate General who was asked to assist has appeared alongwith the Director Elementary Education, to submit that the case for the grant of anucpatory pension to petitioner has been prepared and sent to the District Accounts Officer on 17.10.1998. He has placed on record a copy of the fax message received from the Education Department which is being placed on record a_s Mark-A. He further submitted that today, the Director Education, present in Court, has informed him that in view of the mandatory provisions c: relevant rules and instructions, the case for remaining 20% of the pension has also been cleared by the department on 15.10.1998 and the petitioner shall receive the pension in due course.

2, Heard. Record perused.

3 When a Government servant retires, he is in a peculiar state of mind i.e. he is without any job, he has a family to settle and in this highly status conscious society, he has no status to bank on. It was perhaps, keeping in view :ius state of mind that the Government issued instructions which admirted.y are still in vogue which are to the effect that if the inquiry is not concluded within a year of Government Servant's retirement, the pension and gratuity must be sanctioned. This was so stipulated in Government of West PakisTjan Services and General Administration Department Section (XIII) Xo. Si R>58/7-47/65/S.C.XH dated 1st of February, 1967. Para No. 2 of the afore-referred letter reads as under:

"Pensions cases are generally deferred where a retired Government servant is likely to be dismissed or some recovery is expected to be made from him. It has been decided that the following action be taken in future:

(i) If a Government Servant is likely to be dismissed or it is expected that some recovery has to be made for loss caused to the Government, then pension and gratuity should not be sanctioned for a period of one year during which the administrative department should ensure that inquiry is finalized. At the end of this period, the pension and gratuity must be sanctioned even if the inquiry is not completed."

In further improvement of the afore-referred provision, the Government provided yet another relief in terms of letter dated 17.9.1982 Bearing No. S.O. (8)-E-12/82 Government of the Punjab, Services General Administration & Information Department (Secret Section) wherein it was mandated that," -

"Since after their retirement they are no longer Civil Servants, the disciplinary proceedings against them stand abated."

When confronted with the afore-referred memos/letters, the learned Additional Advocate General, Punjab was not in a position to controvert this legal position rather he conceded that this is the legal position.

1. In view of the afore-referred mandatory provisions of law, there was no justification for the Education Department or the District Accounts Officer to withhold petitioner's pension and gratuity after his retirement. More than one and a half years has lapsed since retirement. The period of one year after retirement was completed on 31.3.1998.

2. In the afore-referred circumstances, I am inclined to allow this Writ Petition and direct that the Secretary Education, Government of Punjab shall ensure that the entire pension and gratuity of the petitioner is released within 30 days from today. As the petitioner has to suffer agony to collect his pension and gratuity for which purpose, he had to incure the extra expense of filing of this Writ petition, I am further inclined to burdon the education department with a cost of Rs. 10,000/- to be paid to the petitioner alongwith the pension and gratuity.

(A.P.) Orders accordingly.

PLJ 2000 Lahore 246

Present: TASSADUQ HUSSAIN JlLANI, J. MUMTAZ HUSSAIN-Petitioner

versus

Mst. ZAIBUN-NISA-Respondent

Writ Petition No. 9789 of 1996, heard 23.9.1998. (i)

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

—S. 5 & Sched.-Constitution of Pakistan (1973), Art. 199-Suit for jactitation of marriage by wife decreed while that of husband for restitution of conjugal rights was dismissed-Plaintiff (lady) was herself best witness on question of m&a/i--Defendant did not produce evidence in rebuttal, although he took eight months to conclude his evidence-Order of trial Court indicated that when statement of witnesses of plaintiff were recorded, defendant, was present and he was given opportunity to cross examine them, which opportunity he did not avail-Defendant after several months filed application for re-summoning witnesses and another application for summoning Secretary Union Council concerned—Such applications were rightly dismissed by trial Court which found them to be meant for prolonging proceedings-Defendant's plea that evidence recorded in suit for jactitation of marriage could not read in suit for restitution of conjugal rights, was fallacious in as much as, suits had been consolidated and suit for jactitation of marriage was no longer civil suit stricto senso for having been included in schedule to West Pakistan Family Courts Ordinance, 1964 and such amendment having been made in procedure if the same had been effected during trial of suit; would have retrospective effect—There being no arbitrariness in judgment and decree or jurisdictional defect, interference in extra-ordinary jurisdiction was not warranted. [P. 249] A

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

—-S. 35-A-Constitution of Pakistan (1973), Art. 199--Defendant's conduct in prolonging the case from 1984 to 1998 had caused rigors of litigation, mental torture and agony on account of which plaintiff had lost best part of her youth and he involved her in litigation on account of which she could not many for all those years-High Court, however, on quantum cost, on account of defendant being low-paid employee, took lenient view and burdened him with cost of Rs, 10,000, which would be paid to plaintiff-Costs would be recoverable as arrears of land revenue.

[P. 250] B

Mr, Zahid Hussain Khan, Advocate for Petitioner.

Mr. Nadeem-ud-Din Malik and Mr, Zulfiqar Mi, Advocates for

Respondent.

Date of hearing: 23.9.1998.

judgment

Petitioner has challenged the judgment dated 2.6.1996 passed by Mian Muhammad Anwar, Judge Family Court, Chiniot whereby while dismissing suit for restitution of conjugal rights filed by the petitioner suit for jactitation of marriage filed by the respondent was decreed.

1. Facts in brief are that Mst. Zaibun Nisa respondent filed a suit for jactitation of marriage alleging therein that when she was six years old her mother was divorced by her father and she was sent to the house of her maternal father where here maternal uncle obtained her thumb-impressions on a blank paper when she was twelve years of age telling her to be an application for issuance of Identity Card; that after ten months of the said incident the maternal uncle of the respondent told her that he would marry her with the petitioner-defendant who is brother of the said uncle's wife; that she came back to her father's house where a week prior to the filing of the suit for jactitation of marriage the forged Nikah Nama was shown to her evidencing her nikah with the petitioner whereupon she had to file a suit for jactitation of marriage before the Senior Civil Judge/Judge Family Court Lahore and that the petitioner-defendant abducted the plaintiff-respondent and she was forced to withdraw the said suit. Her father got an abduction case registered against the petitioner-defendant and others. By order of this Court she was allowed to go with her father. She filed suit for jactitation of marriage and the petitioner-defendant filed suit for restitution of conjugal rights wherein it was claimed that the respondent-plaintiff was her legally wedded wife and that she be directed to join him. Both the suits were consolidated. In terms of the conflicting pleas following issues were framed:--

"1. Whether the plaintiff is legally wedded wife of the defendant? OPD.

1. Whether Nikah Nama in question is forged, fabricated, result of fraud, thus is illegal, void ineffective against the rights of the plaintiff? OPP

2-A. Whether the defendant is entitled to the decree for restitution of conjugal rights? OPP 3. Relief."

1. During trial the respondent-plaintiff produced four witnesses whereas petitioner-defendant produced only himself and a document Exh.Dl purported to be a statement made before the Judge Family Court at Lahore wherein she allegedly stated that she was wife of the petitioner. The learned trial Court decided all the issues in favour of the respondent-plaintiff.

2. Learned counsel for the petitioner has challenged the judgment and decree on the grounds that the petitioner was not allowed to cross examine PWs Nos. 2, 3and 4; that an application was made by the petitioner to summon the Secretary of the concerned Union Council to verify as to whether the petitioner's nikah with the respondent was solemnized or not Which was turned down without any justifiable reason; that another application was made for re-summoning the respondent-plaintiffs witnesses for the purpose of cross-examination but it was also dismissed; that the petitioner has been adversely affected on account of dismissal of this application; that the learned trial Court has not considered Exh.Dl for reasons which are not sustainable in law; that the evidence recorded in the uit for jactitation of marriage could not be considered in the suit for restitution of conjugal rights which irregularity vitiated the proceedings.

3. Learned counsel for the respondent-plaintiff on the other hand has defended the impugned judgment by submitting that the statement of the respondent-plaintiff was recorded oh 15.6.1995; that she was subjected to detailed cross-examination; that the statement of other witnesses were recorded on 25.9.1995 and that the opportunity was given to cross-examine the witnesses which he did not avail and a belated application was made with mala fide motive to prolong the proceedings. He lastly contended that the suit for jactitation of marriage is a family suit and the Civil Procedure Code would not be applicable.

4. Heard. Record perused.

5. Admittedly the respondent-plaintiff had filed suit for jactitation of marriage earlier on at Lahore. I have gone through the statement made by her before the learned trial Court wherein she gave a detailed description of the manner in which she was treated like a chattel and without her knowledge or consent a Nikah Nama was prepared. The moment she came to know about the said Nikah Nama she filed suit for jactitation of marriage and it is not denied that it was during the pendency of the said suit that a case of her abduction was registered vide FIR No. 198/94 dated 30.4.1994 on tie statement of her father. According to the respondent-plaintiff Exh.Dl was got recorded by the petitioner when she had been abducted by him and his companions. Exh.Dl, therefore, cannot be a conclusive proof of her having owned the Nikah,On question of Nikah she herself is the best witness, Petitioner-defendant did not produce evidence in rebuttal although he took eight months to conclude his evidence. I have gone through the order of the learned trial Court and find that when the statements of the witnesses were recorded petitioner was present and he was given opportunity to cross- examine them which opportunity he did not avail. This was on 25.9.1995. After several months i.e. 16.5.1996 he filed an application for re-summoning the witnesses as also the Secretary of the Union Council concerned to vouchsafe for the registration of the Nikah Nama. These applications were rightly dismissed by the learned trial Court as according to it the same were meant to prolong the proceedings. If the petitioner was genuine in his desire to cross-examine the witnesses who were already examined or to summon the Secretary Union Council he should have moved the applications in time. Even otherwise in the face of allegation that the Nikah Nama was forged and that she did not consent to Nikah the examination of Secretary Union Council was not relevant as he was not an eye-witness of the Nikah in question. Coming to the argument that the evidence recorded in suit for jactitation of marriage could not be read in suit for restitution of conjugal rights I am of the view that this argument is fallacious for two reasons, firstly, it is not denied that the suits were consolidated and, secondly, that the suit for jactitation of marriage is no longer a civil suit stricto senso as per the amendment made in the schedule to the Family rdinance. Learned counsel for the petitioner in the alternative tried to argue that since the amendment in the schedule came after filing of the suit, the same has retrospective effect. The law is settled that any amendment made in the procedure his retrospective effect.

6. In the afore-referred circumstances I do not see any arbitrariness in the judgment and decree or jurisdiction defect to interfere in the extraordinary jurisdiction of this Court.

7. While parting with this judgment I note that the petitioner procured Nikah Nama dated 1.3.1984 whereafter respondent-plaintiff had to file suit for jactitation of marriage. She was abducted and a case was registered against the petitioner and others. She was made to withdraw the suit She had to file second suit after her recovery which led to the passage of the impugned judgment and decree dated 2.6.1996 and even then petitioner was not satisfied and filed this Constitutional petition and dragged the matter. The respondent-plaintiff, who had to suffer the rigors of litigation, mental torture and agony from 1984 to 1998 has lost best part of her youthd on account of petitioner-defendant's conduct which involved the respondent in litigation and she could not marry for all these years. In these circumstances I am persuaded to burden him with cost. Coming to the quantum of cost, I note that he is police constable and on my query revealed that he is owner of one/two acres of land. Keeping his financial position in mind I take a lenient view and burden him with a cost of Rs. 10,000/-(Rupees ten thousand only) which shall be paid to the petitioner. The amount of costs shall be recoverable as arrears of Land Revenue.

8. This writ petition is dismissed in terms noted above.

(AA.) Petition dismissed.

PLJ 2000 Lahore 250

Present: tassaduq hussain jilani, J. STATE-Petitioner

versus LAHORE DEVELOPMENT AUTHORITY etc.-Respondents

Writ Petition No. 5581 of 1998, heard on 6.4.1998.

Constitution of Pakistan, 1973-

—Art. 199-Pakistan Penal Code (XLV of 1860), S. 321-Issuance of suo-motu notice to respondent, with regard to death of child on account of falling in un-covered manhole-Advocate General having established contact with Chief Executive of Province had submitted that Chief Minister had issued special instruction to all concerned to take effective pre-cautionary measures to forestall such incident and necessary amendments in law were also in the offing to punish delinquents; that Chief Minister had decided in failure whenever such death takes place,Government would pay Rs. 2,00,000 to bereaved family—District Magistrate would hold summary inquiry to confirm that death of child took place on account of lapse of concerned department or net-Advocate General having made categorical statement, no further action called for.

[P. 251] A

Khawaja Muhammad Sharif, Advocate-General for State. Mr. Azmat Saeed, Advocate for Respondent. Date of hearing: 6.4.1998.

judgment

On the news item in "The Daily News" dated 23rd of March, 1998 with regard to the death of & child on account of falling in the uncovered manholes, (named Tanveer Ahmad aged 4 years), this Court issued suo moto notice to the Director General L.D.A., the Managing Director WASA, the District Magistrate, Lahore, the Senior Superintendent of Police, Lahore and the learned Advocate General, Punjab. The learned Advocate General, Punjab having sought instructions, submitted that a case has been registered against the delinquent officials and Section 321-A, that the WASA officials have been directed to cover the uncovered manholes and that the Chief Minister Punjab has taken a very serious notice to the incident and has awarded compensation of Rs. 2,00,000/- to the bereaved family.

1. The death of a child on account of uncovered manholes is not a solitary incident There are several cases in which may families have lost their young ones on account of the inefficiency of the concerned officials. That such incidents do not recurre and the families who suffer such tragedies are compensated, the learned Advocate General was asked toestablish contact with the Chief Executive of the Province, so that a uniform policy decision is taken for the entire Province. Having established contact, the learned Advocate General, has submitted that the Chief Minister of Punjab has issued special instruction to all concerned to take effective pre­ cautionary measures to forestall such incident and necessary amendments in the law are also in the offing to punish the delinquents. He further submits that the Chief Minister Punjab had decided in future when-ever such a death takes place, the Government shall pay Rs. 2,00,000/- to the bereaved family. In this regard, the District Magistrate may hold a summary enquiry to confirm that the death of the child took place on account of the lapse of the concerned department or (which is entrusted to maintain the manholes) ornot.

2. In view of the categorically statement made by the learned Advocate General, Punjab no further action is called for. The suo moto proceedings are disposed of in terms noted above.

(A.A.) Order accordingly.

PLJ 2000 Lahore 252

Present: tassaduq hussain JlLANI, J. MUHAMAMAD SALEEM etc.-Appellants

veruss

MUHAMMAD ARIF KHAN etc.--Respondents

SA.O. No. 40 of 1994, decided on 11.3.1998.

West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)™

—-Ss. 13(6) & 15(5)--Strikmg off defence of tenant for non-deposit of rent- Tenant, failure to deposit rent on specified date in terms of time stipulated in Rent Controllers' order-Denial of relationship of landlord and tenant-Effect-Tenant had failed to deposit rent of specific month before specified date in terms of time stipulated in the order under mistaken belief that date so stipulated was holiday-Tenant in one of grounds of appeal had himself taken up plea that Courts were closed on that day while his counsel conceded before Rent Controller that Courts were not closed on that day-Default was thus, apparent on record and appeal of tenant was rightly dismissed in terms of S. 15(5) of West Pakistan Rent Restriction Ordinance against ejectment order passed by Rent Controller under S. 13(6) of the Ordinance whereby tenants defence had been struck off and his ejectment was ordered-Apart from default, tenant's conduct in denying relationship of landlord and tenant, being contumacious, Rent Controller could straightaway order ejectment when relationship of landlord and tenant stood established-Order of ejectment passed by Rent Controller and that of Appellate Forum would not call for interference in as much as, concurrent findings were neither against weight of evidence nor established law. [P. 254, 255 & 256] A to D

PLD 1969 SC 424; PLD 1978 SC 275; NLR 1979 Civil 239; 1978 SCMR 14;1989 SCMR 1399 ref.

Mr, Abdul Qadir Hashmi, Advocate for Appellants. Mr. Nazir Ahmad Siddiqui, Advocate for Respondents. Date of hearing: 11.3.1998.

judgment

This judgment shall dispose of SAO's Nos. 40 and 42 of 1994 as similar points of law and facts are involved.

1. Through this second appeal against the order, the appellant has challenged the order dated 29.9.1994 passed by Syed Irshad Hussain Abidi, learned Addl. District Judge, Multan, whereby, by way of striking off the defence of the appellant, he dismissed the appeal under Section 15(5) of the West Pakistan Urban Rent Restriction Ordinance, 1959.

2. Facts in brief are that respondents filed two ejectment petitions against the appellant-respondent quathe shops - subject matter of these appeals. The appellant-respondents denied the relationship of landlord and tenant, and took up the plea that the property is owned by one Muzaffar All Khan, that he was a tenant under him and the respondent-applicant had nothing to do with the property. In terms of the conflicting pleas, a preliminary issue was framed which was decided in favour of respondent-applicant on 8.7.1991 and on 12.9.1992, the learned Rent Controller directed the appellant to deposit the rent at the rate claimed (Rs. 75 in one case and Rs. 125/- in the other) by the 15th of every succeeding month from September, 1992. On 28.10.1992 appellant was directed to produce the receipts in accordance with the order dated 20.9.1992 on the next date, i.e., 3.12.1992. On this date, the learned counsel for the appellant conceded that the rent had not been deposited in terms of the order. The learned Rent Controller however, adjourned the case to 9.12.1992 with the following order:

"Learned counsel for the respondents has admitted that the rent in view of the order of this Court has not been deposited. Therefore, now for further proceedings, to come up on 9.12.1992."

On 9.12.1992, the learned Rent Controller was on leave, and the case was adjourned to 13.12.1992, on which date, the defence of the appellant/defendant was struck off for non-compliance of the order dated 20.9.1992. The afore-referred order of the learned Rent Controller was challenged in appeal. The learned appellate Court directed the appellants to place on record challan/receipts of the rent deposited in Court on or before 4.7.1994. The appellant did file the receipts from December 1993 to March 1994 and on 27.9.1994 he filed the receipt for the month of April, May and June 1994, but failed to file the receipts for the months of July and August. The learned appellate Court vide the impugned orders observed that the appellant had failed to comply with the afore-referred order and that the rent for the months of July and August 1994 had not been paid by him. It was further observed that rent for the month of February 1994 was deposited on 17.3.1994 and of March 1994 on 15.4.1994, which showed that the rent for these months was also deposited not within the stipulated period in terms of the order dated 4.1.1993. In these circumstances, acting under Section 15(5) of the Rent Restriction Ordinance, the learned appellate Court struck off his defence, and directed to hand-over the vacant possession of the disputed premises till 29.10.1994.

1. Learned counsel for the appellant has challenged the impugned order by submitting that the finding of the learned appellate Court with regard to non-deposit of rent for the months of July and August 1994 is factually incorrect, as the receipts have been appended by the appellant with this appeal as Annexures T' and 'Fl'; that the rent for the month of February 1994 was deposited on 17.3.1994 as 14.3.1994 and 15.3.1994 were holidays, and the appellants were under a misconception that 16.3.1994 was also a holiday. Relies on Abdul Ghafoor vs. Ahmad Kunhi (PLD 1969 Supreme Court 424) S.Pin Liu vs. Mrs. Nqjma Kazmi (PLD 1978 Supreme Court 275) and Muhammad Ishaq vs. Abdul Haq and another (NLR 1979 Civil 239) to contend that the non-deposit of rent in terms of the order passed under Section 15(5) of the West Pakistan Rent Restriction Ordinance would not entail the penalty of the striking off the defence and the only affect is that the stay would stand vacated.

2. Learned counsel for the respondents-applicants on the other hand submitted that the issue of landlord and tenant was decided on 8.7.1991 in favour of the respondents-applicants; that the appellants not only defaulted in making the payment of rent before the trial Court, but also before the learned appellate Court and their defence was rightly struck off; that the precedent case law which has been relied upon by the learned counsel for the appellants is no longer in the field, in asmuch as Section 15(5) of the Rent Restriction Ordinance was introduced latter than that and that there is no illegality in the impugned orders to merit interference.

3. Heard. Record perused.

4. A perusal of the record of the learned Rent Controller indicates that in terms of the conflicting pleas, a preliminary issue was framed by the Court on 12.3.1989 to the following effect:

(i) Whether the relationship of landlord and tenant exists between the parties.

Parties were directed to adduce evidence and the issue was decided in favour of the respondents-applicants on 8.7.1991. Learned counsel for the appellant admits that this order was neither challenged nor the said Muzaffar All who claimed ownership initiated any other proceeding to agitate the said claim. It was after this that the order dated 20.9.1992 was passed or deposit of the outstanding rent which having not been complied with, the defence was struck off. The learned Rent Controller struck off the defence for non-deposit of the rent. Neither in the body of the appeal nor it seems during arguments before the learned Additional District Judge the appellant ever challenged the finding that he had failed to deposit the rent in terms of the order of the Rent Controller. That being so, the learned trial Court had rightly passed the order under Section 13(6) of the Rent Restriction Ordinance sticking off appellant's defence. Coming to the impugned order of the learned appellate Court, I find that the learned appellate Court had proceeded in terms of Section 15(5) of the Rent Restriction Ordinance which reads as under

"The appellate authority admitting an appeal for hearing shall have the same powers to direct tenant to deposit the rent as are vested in the Controller under this Ordinance and if the tenant makes default in compliance with such an order, then if he is the appellant, his

appeal shall be dismissed summarily, and if he is the respondent, his defence shall be struck off."

Admittedly, the appellant had deposited the rent for the months of July and August 1994 and learned counsel for the respondent has readily conceded to that extent However, so far as the rent for the month of February 1994 is concerned, it is not denied that the same was not deposited before 15.3.1994 in terms of the time stipulated in the order under the mistaken belief that 16.3.1998 was the holiday. Surprisingly, even in ground "C" of the appeal, the appellant has taken up the plea that the Courts were closed from 13.3.1994 to 16.3.1994. About 16.3.1994 learned counsel for the appellant frankly conceded before this Court that it was not a holiday. That being so, the default is apparent on record and his appeal was rightly dismissed in terms of the afore-referred provision of law. The precedent case law to which inference has been made by learned counsel for the appellant would not be relevant in asmuch as, Section 15(5) was substituted by Ordinance IX of 1979 whereas judgments reported in PLD 1978 SC 275 and NLR1979 (Civil) 239 are of prior dates.

1. There is yet another aspect of the matter. The conduct of the appellant-defendant in denying the relationship of landlord and tenant has been contumacious. The learned Rent Controller could straightway order ejectment after 8.7.1991 when the relationship of landlord and tenant stood established. I am fortified in my view by a Judgment of the Hon'ble Supreme Court in Amanullah Khan (A Khan) vs. Chotey Khan (1978 SCMR 14) wherein at page 16 it was observed as under:

"The learned Single Judge in the High Court placed reliance on the case of Nisar Ahmad vs. Nazar Muhammad in declining to remand the case to the Rent Controller. However, it will not be necessary to examine the validity of the reasons given for and against the view for the case as it stands, it is an admitted position that the petitioner has defaulted in the payment of rent as he did not accept the respondent as his landlord. On this view of the matter, it would not have served any purpose to remand the case for the issue of default could not have been disputed.

On this view of the matter we see no substance in this petition which is dismissed."

Similar view was taken in AkbarAli Khan Mirza vs. The Additional District Judge (1989 SCMR 1399). In that case, the tenant and denied the relationship, issue was framed which was decided in favour of the landlord and the learned Rent Controller ordered ejectment, in appeal the learned Add! District Judge upheld the order, the Writ petition filed against the said order was dismissed and the August Supreme Court dismissed the petitioner for leave to appeal by upholding the High Court's judgment.9. For afore-refer red reasons, the order of ejectment passed by learned Rent Controller dated 13.12.1992 and that of the learned Additional District Judge dated 29.9.1994 do not call for interference as the concurrent findings are neither against the weight of evidence nor established law. The appeals having no merit, are hereby dismissed.

(A~A.) Appeal dismissed.

PLJ 2000 Lahore 256

Present: mrs. fakhar-un-nisa khokhar, J. MUHAMMAD BAKHSH ete.--Petitioners

versus

GHULAM YASIN etc.-Respondents

Civil Revision No. 756-D of 1998, heard on 16.12.1999.

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

—O.XLJ, Rr. 1 & 3, Ss. 151 & US-Parties in both suits filed by plaintiffs against defendants were the same however, disputed property was different-Plaintiffs on dismissal of both suit, wrongly placed both judgments and decrees, on two separate memo of appeals-Both appeals were dismissed--Validity-Appellate Court in slip-shod manner without holding inquiry rejected memo of appeal under O.XLI, R. 3 C.P.C. which was admitted to regular hearing by him and record of trial Court had been summoned where impugned judgment and decree did exist and it could be found out from record that appellant had really applied for certified copies of judgment and decree within requirement of O.XLJ, R. 1, C.P.C.-Court was bound to see whether party had obtained copies of judgment, and decree in time and placed the same within limitation or whether appeal was filed improperly-Court in such case cannot reject memo of appeal under O.XLI, R. 3 C.P.C.-Placing of wrong judgment and decree on memo of appeal appeared to be bona fide mistake-Court has inherent power to do justice and to redress wrong instead of trying to dispose of case on mere technicalities-Both memo of appeals were checked by Court officials and no objection was raised that judgment and decree were wrongly placed—Appellate Court could have decided and exercised its power ex-debito justice to do that real and substantial justice for administration of which Court had power to hold inquiry into bona fides of parties and that decree-sheet of case did exist on appeal decided by Appellate Court and if it did exist then party who was not at fault should not suffer-Judgment and decree passed by Appellate Court was set aside and case was remanded to Appellate Court to summon record of relevant ease and hold inquiry and on satisfaction that party was not at fault and misplacement of decree sheet was bona fide mistake, decide the appeal on merits after fulfilment of necessary legal formalities.

[Pp. 258 to 260] A to E PLD 1955 Lah. 487; NLR1992 CLJ 208 ref.

Hafiz Khalil Ahmad, Advocate for Petitioners.

Mr. Faiz Muhammad Bilal, Advocate for Respondents.

Date of hearing: 16.12.1999.

judgment

Brief facts and back ground of the instant Civil Revision are that Civil Suit No. 383/90 and Civil Suit No. 654/92 were filed by Muhammad Bakhsh etc. against the respondents. In both the suits parties were the same but disputed property was different Both were contested, issues were formulated, evidence was produced by the parties and videjudgment and decree dated 19.1.1994 passed by the learned trial Court both the suits were dismissed. The petitioner applied for copies of the judgment and decree on 20.1.1994 in both the suits and obtained the same on 6.2.1994 and filed appeal on 7.2.1994, but wrongly placed the judgment and decree on both the memorandum of appeals. The judgment and decree of Civil Suit No. 383/90 was placed on the memo of appeal of Civil Suit No. 654/92 and the judgment and decree of Civil Suit No. 654/92 was placed on the memo of appeal of Civil Suit No. 383/90. Both the appeals were' checked. No objection was offered by the office. Those were admitted to regular hearing on 9.2.1994 and vide judgment and decree dated 26.5.1994, one appeal in Civil Suit No. 654/92 was accepted and the case was remanded while the second appeal was fixed for arguments. On 14.6.1994 during arguments of parties, it transpired to the learned Court that judgment and decree is wrongly placed on both the memo of appeals. The petitioner filed an application supported by an application for condonation of delay on 22.6.1994 stating that both the judgments and decrees are wrongly placed on two separate memo of appeals, therefore, the record of the appeal (of Civil Suit No. 654/92 which stood decided and case was remanded) be summoned and may be allowed to be placed on its correct appeals. The application was replied and contested. The learned appellate Court without summoning the record vide judgment and decree dated 19.3.1998 dismissed the appeal for non-compliance of the provision of Order 41, Rule 1 CPC without discussing the merits of the case and without deciding the aforesaid application. The petitioner being aggrieved has challenged the same through the instant Civil Revision. Infact rejection of memo of appeal for non-compliance of Order 41, Rule 1 CPC is a decree which is appealable but in the instant case the valuation for the purposes of Court fee and jurisdiction is Rs. 400/-, therefore, Regular Second Appeal is hit by Section 102, CPC, therefore, the instant case is of Civil Revision. Reliance is placed on "Muhammad Latif vs. Mst. Ghulam Fatima and others" (PLD 1955 Lahore 487).

1. The arguments advanced by the learned counsel for the petitioner are that there was no negligence or omission on the part of the petitioner to obtain copies of the judgment and decree. He did obtain the certified copies of the judgment and decree on 9.2.1994, which unfortunately were inadvertantly placed by the clerk of the learned counsel on wrong memo of appeals. The learned appellate Court without even summoning the record and without satisfying itself that the petitioners' case was not a case of Order 41, Rule 1 CPC, straight away dismissed the appeal of the appellant. This judgment is not only erroneous but also perverse that grave injustice has been caused to the present petitioners.

2. Learned counsel for the respondents submits that the correct decree-sheet was not annexed with the memo of appeal. It came to the knowledge of the appellant on 14.6.1994, but he gave an application on 22.6.1994 and he was bound to explain the delay of each day. He further argued that where there are express provisions of law, then provision U/S. 151 CPC does not apply as the learned appellate Court could dispense with the judgment of the learned trial Court but could not dispense with the decree-sheet which is a mandatory provision of law, therefore the appeal was rightly dismissed.

3. I have heard the learned counsel for the parties and carefully perused the record. This fact is admitted by the learned appellate Court that the impugned judgment and decrees were placed wrongly on two memo of appeals filed between the same parties in different suits challenging Mutation No. 709 dated 28.11.1952 decided on 19.1.1994. It is really surprising that the learned appellate Court has not even read and perused the impugned judgment and decree passed by the learned trial Court and decided the appeal in Civil Suit No. 654/92 and also omitted to see that the correct judgment and decree was not placed with the appeal which was being accepted by the learned appellate Court and the case was remanded. When firstly the matter came to the knowledge of the learned appellate Court that the judgment and decrees are wrongly placed on both the memo of appeals in Civil Suit No. 654/92 and Civil Suit No, 383/90, it was necessary for the earned appellate Court to summon the record of the learned trial Court in Civil Suit No. 654/92 and satisfy itself whether the contention made by the petitioner in application that the impugned judgment and decree of the instant case is wrongly placed with the memo of appeal in Civ l SuitNo. 654/92 and further see whether the requirement of provisions of Order 41 Rule 1 CPC which are directory in nature stand satisfied or not, could have decided the application first and then decide the appeal. The learned appellate Court in a slip shod manner without holding an inquiry rejected the memo of appeal under Order 41, Rule 3 CPC, which was admitted to regular hearing by him and the record of the learned trial Court had been summoned where the impugned judgment and decree did exist and it could be found out from the record that the petitioner/appellant has really applied for the certified copies of the judgment and decree within the requirement of Order 41, Rule 1 CPC, "Mst. Ghulan etc. vs. Punjab Province" (NLR 1992 CLJ 208), it is held that inquiry is necessary to be held by the appellate Court to discover the truth as without it dismissal of appeal could not be upheld. The case was remanded for holding inquiry.

4. So far as the objection of learned counsel for the respondent is concerned that in view of express provision of Order 41, Rule 1 CPC, the provision of Section 151 CPC does not apply, I am afraid I am not convinced by the arguments advanced by the learned counsel for the respondent The Court in all matters is bound to hold an inquiry to discover the truth whether the party is at fault or nor Tatar and 2 others vs. Ahmad Bakhsh" (1991 MLD 506) and once record in appeal is summoned, it is always within the competence of the Court to see whether the party has obtained the copies of judgment and decree in time and placed the same within limitation or if the appeal is filed improperly, then the Court cannot reject the memo of appeal under Order 41, Rule 3 CPC "Mst. Ghulan etc. vs. Punjab Province" (NLR 1992 CLJ 208).

5. In th« instant case copy of the judgment and decree was filed within limitation but due to the mistake of the derk those were wrongly placed on two memo of appeals in which the parties were same and both the ruiti were decided on the same day. From a cursory look it seems a bona fide

6. So far as the application U/S. 151 CPC is concerned, application under Order 41, Rule 1 read with Section 151 CPC supported by an application for condonation of delay was given by the appellant, the provisions U/S. 151 CPC are intended by the legislature for advancement of the justice as all these rules framed under the Code of Civil Procedure do not allow to defeat the ends of justice. It is always the duty of a Judge to apply law and satisfy, itself for its just application. The Court must always avoid technicalities to defeat the ends of substantial justice. The Court has inherent power to do justice and to redress a wrong instead of heading to objections and trying to dispose of a case on mere technicalities.

7. In the present case both the memo, of appeals were checked by the Court officials. No objection was made that the judgment and decrees are wrongly placed. Both the appeals were admitted to regular hearing. The record of both the appeals were summoned. One appeal was decided on merits and was accepted and case was remanded to the learned trial Court. It is really surprising that the learned appellate Court did not find out that the appeal which is being accepted and remanded to the learned trial ourt does not bear the correct decree-sheet while the other appeal was pending adjudication the matter came to the notice of learned appellate Court. Once the matter came to the knowledge of learned appellate Court that there was no negligence on the part of the parties, it was the derk of learned counsel of the appellant just appending wrong decrees on wrong memo of appeals.

Since both the suits were decided on the same day between the same parties the decree sheet was drawn on the same day between the same parties it was a bona fide mistake of the clerk of learned counsel for the appellants unchecked by the learned counsel for the appellants who placed the wrong decree on wrong memos of appeals, the Court could have decided and exercised his power ex debito justice to do that real and substantial justice for the administration of which the Court had power to hold an inquiry into the bona fides of the parties and that decree sheet of the instant case did exist on the appeal already decided by learned appellate Court and if it did exist then the party who was not at fault should not suffer as the Court was already in knowledge that the appeal decided by it had a wrong judgment and decree appended with it how could the Court adopt contrary view in similar cases on similar matter. It is held in Wanda Kishore Singh vs. Ram Golam Sahu" Indian law Reports Calcutta Series 955 that the Court has inherent power and the existaut of the inherent power is to do justice based on sound judicial principles.

1. Therefore, I accept the instant civil revision, set aside the judgment and decree dated 19.3.1998 passed by the learned appellate Court and remand the case to the learned appellate Court to summon the record in Civil Suit No. 654/92, hold an inquiry and being satisfied that the party is not at fault and misplacement of decree is sheer bona fide mistake after fulfilment of necessary legal formalities may decide the appeal on merits.

2. Parties are directed to appear before the learned District Judge, Bhakkar on 20.1.2000

(A.P.) Case remanded

PLJ 2000 Lahore 260

Present: mrs. fakhar-un-nisa khokhar, J. Mst. GHULAM SAKEENA-Petitioner

versus

BASHIR AHMAD.etc.-Respondents

W.P. No. 14050 of 1994, heard on 9.12.1999.

Civil Procedure Code, 1908 (V of 1908)-

—Ss. 12(2), 96 & 115-Constitution of Pakistan (1973), Art 199~Order under S. 12 C.P.C.--Petitioner instead of filing revision filed appeal against acceptance of application under S. 12 C.P.C.--Appellate Court dismissed appeal being not maintainable-Validity-Appeal which had been wrongly filed instead of revision was within limitation, petitioner's case, therefore, was not hit by any law-Substantial justice could not be denied to any litigant on mere techncialities-Appellate Court had jurisdiction to convert the same into revision and decide case on merits after being satisfied that the case in question was not hit by any other law-High Court in exercise of constitutional jurisdiction set aside judgment of Appellate Court being out come of error of law-Case remanded to Appellate Court for decision afresh on merits in accordance with. [P. 262] A

PLJ 1983 Lah. 166:1985 SCMR 27; 1996 CLC 1696 ref.

Mr. KM. Virk, Advocate for Petitioner.

Mr. Abdul Sattar, Advocate for Respondent

Respondent No. 2 in person and also on behalf of Respondent No. 1.

Ex-parte for Respondent No. 3.

Date of hearing: 9.12.1999.

judgment

Brief facts of the instant writ petition are that the petitioner filed a suit for declaration against Respondent No. 3 for a direction to the revenue authorities to correct the entry in the revenue papers. The suit was contested by the Respondent No. 3 and it was decreed vide judgment and decree dated 14.1.1984 in favour of the petitioner. An application under Section 12(2) CPC was moved by the Respondents Nos. 1 and 2 namely B&shir Ahmad and Abdul Sittar against the petitioner for setting aside the judgment and decree dated 14.1.1984 on the basis of fraud, mis­representation and without notice to the petitioners. This application was contested, issues were formulated and evidence was led by both the parties. Consequently, the learned trial Court accepted the application, set aside the judgment dated 14.1.1984 vide order dated 9.4.1990. Feeling aggrieved against this order the petitioner instead of filing a revision filed an appeal before the learned appellate Court on 8.5.1990. The learned appellate Court vide order dated 29.6.1994 dismissed the appeal being incompetent with the observation that on an application under Section 12(2) CPC no right of appeal exists and the Court has no jurisdiction to convert this appeal into revision petition. The learned appellate Court cited "Gahna Khan vs. Mitha"(PLJ 19&3 Lahore 166).

1. Learned counsel for the petitioner has relied on "Karmat Hussain and others vs. Muhammad Zaman and others" where it is held that second appeal brought before the High Court exhibiting certain features which demonstrated that if fell within scope of interference under Section 115 CPC, High Court, should, in such case, exercise its jurisdiction under said provision of law. "Abdul LatifNiazi vs. Punjab Province through Collector, Multan" (1985 SCMR 27) on the same point, and "Lai Khan and another vs. Rehmatullah and 5 others" (1996 CLC 1696) where it is held that order U/S. 12(2) CPC is not appealable but is reviseable. The learned appellate Court has got power to convert any appeal into revision and vice versa provided such decision was not otherwise affected by any other law like that of limitation.

2. Respondent present in Court submits that the learned trial Court has accepted his application U/S. 12(2) CPC. Petitioner did not challenge the judgment of the learned trial Court in revision, therefore, it was rightly dismissed by the appellate Court

3. I have heard the learned counsel for the petitioner and respondent in person. It is very strange that the learned appellate Court has cited "Gahna Khan vs. Mitha" (PLJ 1983 Lahore 166) and has not read the judgment It is held in this judgment that although the order U/S. 12(2) is not appealable but reviseable but the appeal may be converted into revision provided it is not bit by any law.

4. I have seen the appeal which is wrongly filed within the limitation, therefore, the case of the petitioner was not hit by any law. The substantial justice cannot be denied to a litigant on mere technicalities. The learned appellate Court had jurisdiction to convert the same into revision and decide the case on merits after being satisfied that it was not hit by any other law. Therefore, I accept the instant writ petition, set aside the A judgment dated 19.6.1994 being the out come of error of law and remand the case to the learned District Judge, T.T. Singh to decide the case himself or entrust the same to other competent forum and direct the subordinate Court to decide this appeal purely on merits after fulfilling the legal formalities within one month of receipt of this judgment

5. Parties are directed to appear before the learned District Judge, T.T. Singh on 21.12.1999.

(AA) Case remanded.

PLJ 2000 Lahore 262

Present: TASSADUQ HUSSAIN JILANI, J. ABDUL RAUP-Petitioner

versus FEDERATION OF PAKISTAN etc.«Respondents

W.P. No. 17532 of 1998, heard on 10.12.1999. Chattered Accountants Ordinance, 1961-

—S. 27(l)--Charatered Accountants Bye-Laws 1983--ReguU18~ Constitution of Pakistan (1973), Art 199-Final Chartered Accountants Examination-Petitioner failed to appear in group-1 in 1995; in next final examination of 1996, he was absent again in group 1; petitioner was, however, given yet another chance to appear in Chartered Accountants Final Examination Group 1 in May 1997 and once again he could not dear the same-Petitioner claimed yet another chance but the same was declined in terms of Bye-Law 118--Validity--Second proviso to Bye-Law 118 would indicate that council of Chartered Accountants wanted to limit chances of re-appearance in one paper to two only-So far as vires of Chartered Accounts Bye-Laws, 1983 were concerned, same having been issued with prior approval of Federal Government, vires thereof could not be challenged-Restirction of chances/attempts by a student to pass intermediate and Final Examination of Chartered Accountants being directly connected with maintenance of standard of training and education in the field of chartered accountancy, same could only be provided through bye-law framed in accordance with the provision of S. 27 of the Ordinance-Petitioner having already availed two chances, be could not be allowed yet another chance to appear in one paper alone, be could however, if so wished, could appear in all the papers—As far hardship aspect of the matter, petitioner can prefer representation to council of Charter Accountants who might examine desirability of amending bye laws to accommodate hardship case.

[Pp. 265 & 266] A, B & C 1998 SCMR 2679 ref.

Mr. AkhtarMi Chaudhry, Advocate for Petitioner. Afr. Anwar Kamal, Advocate for Respondents. Date of hearing: 10.12.1999.

judgment

Petitioner joined the course of Chartered Accountants with M/s. Ch. Muhammad Naqi Faiz of Naqi Faiz & Company in terms of contract dated 2S.11.19S3, subsequently he entered into another training contract on 4.2.1987 with M/s. Eyas Saleem & Company through Muhammad Ilyas in accordance with the provisions of the Chartered Accountants Ordinance 1961, he cleared Chartered Accountants Intermediate Examination in the year 1987, appeared in the final Chartered Accountants Examination of 11/95, failed to appear in group-I but in group-H there was a 'referral' in the fflrd paper relating to Mercantile Law, in the next Final Examination of 5/96 he was absent in group-1, he was given yet another chance to appear in the Chartered Accountants Final Examination group-I in May, 1997 and once again he had 'referral' in group-I paper-Ill i.e. Auditing. Petitioner requested for permission to appear once again in the paper which request was declined on the ground that since he had second 'referral' in November 1997 he had to re-appear in full part of PE-1. This was vide letter dated 28.7.1998 issued by the Institute of Chartered Accountants of Pakistan Karachi (Respondent No. 3). The vires of this letter have been challenged through this Constitutional petition. In support of the petition learned counsel for the petitioner has made following submissions:-

(i) That the petitioner cannot be refused permission to appear in the failed paper as the same is not stipulated in Regulation 118 of the Chartered Accountants Bye-Laws, 1983 framed under the Chartered Accountants Ordinance, 1961;

(ii) that the petitioner is doing the chartered accountants course since 1984 and the syllabi, in the meanwhile, has undergone a change and it would be harsh if the petitioner is compelled to appear in full examination of PE-I.

1. Learned counsel for the respondents, on the other hand, submitted that in terms of the Chartered Accountants Bye-Laws 1983 framed under Section 27(1) of the Chartered Accountants Ordinance 1961,the Council of the Institute of Chartered Accountants of Pakistan with the pproval of the Federal Government had issued Bye-Laws which are mandatory. He referred to second proviso to Bye-Laws 118 to contended that the petitioner could dear the paper in which he had failed in two permissible chances and he having availed those chances could not claim any other chance to clear the examination. Further submitted that the only course open to the petitioner is to appear in all the papers. Contended that this provision to limit the number of chances was introduced to improve the quality of course and to discourage non-serious attitude of the students. He referred to the judgment of Hon'ble Supreme Court reported in Institute of Chartered Accountants of Pakistan, Karachi and others vs. Federation of Pakistan and others (1998 SCMR 2679) to contend that there being no jurisdictional defect in the order passed and the letter issued by the respondent authorities, therefore, no case for interference under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is made out.

3.Heard.

1. Petitioner has not challenged the vires of Bye-Laws framed by the Institute of Chartered Accountants of Pakistan. His only grievance is that Bye-Law No. 118 is being misconstrued by the respondent It is, therefore, necessary to refer to the said Bye-Law No. 118 which reads as under:

"Failure of candidates at examination.--A candidate who has failed to pass any examination, or group or part of examination, may offer himself for that examination or group or part of examination, as the case may be, on any subsequent occasion in such manner and within such period as the Council may determine:

Provided that a candidate who is successful in all papers except in one paper or a section of paper of a group or part thereof, he may, subject to approval of the Council, be allowed to take that paper or, as the case may be, section of a paper again instead of re­appearing in all papers:

Provided further that such candidate shall be allowed to clear the said paper or, as the case may be, section in two attempts by appearing in two immediate succeeding examinations."

1. According to the learned counsel for the petitioner second proviso to Bye-Law 118 does not envisage any penally, therefore, petitioner cannot be refused permission to appear in the appear concerned. A bear reading of second proviso to Bye-Law 118 would indicate that the Council of Chartered Accountants wanted to limit the chances of re-appearance in one paper to two only and the interpretation attempted to be canvassed by the petitioner's learned counsel would defeat the very purpose of the said Bye-Law. In Institute of Chartered Accountants of Pakistan, Karachi and others vs. Federation of Pakistan others (1998 SCMR 2679) reference to which has been made by respondents' learned counsel, the High Court of Sindh while declaring the relevant SRO intra vires (issued by the Council of Chartered Accountants for Pakistan in terms of which the number of chances for a student to pass the intermediate and final examinations of Chartered Accountants wers reduced to 8) had referred the matter to the Council and observed that the said act was oppressive and against the public interest. The Court further directed the Council to refix the said number of chances cot being less than twelve. The Hon'ble Supreme Court set-aside the afore-referred judgment and, at page 2694, observed as under:\

"It is, therefore, quite clear that the SRO was issued by the Council after the matter was considered at different levels for about five years. We are also the view that reasonable justification existed before the Council for fixing chances for the students to clear each of the two examinations (Intermediate and Final of the C.A.). Therefore, the decision of the Council fixing 8 chances for students to clear the Intermediate examination and another 8 chances to pass the Final examination of C.A. could not be interfered with by the High Court on merits, in exercise of its jurisdiction under Articled 199 of the Constitution."

The said SRO Le. SRO No. 147 (KE)/90 dated 29.7.1990 was, however, set-tside by the Hon'ble Supreme Court as the same was issued without complying with the conditions stipulated in Section 27(2) of the Chartered Accountants Ordinance, 1961 since it was issued without approval of the Government which is mandatory. However, so far as the vires of the Chartered Accountants Bye-Laws, 1983 are concerned these were issued B with the prior approval of the Federal Government and that precisely is the reason its vires have not been challenged by the learned counsel. In the same judgment the Hon'ble Supreme Court had commented not only on the power of the council to issue the Bye-Laws but also on the validity and rationale of second proviso to Bye-Law 118 under which the impugned letter has been issued by the respondent Institute. The August Supreme Court observed, at page 2696, as under

"However, the chances to clear such examination are restricted to only two attempts at the two immediately succeeding examinations under the second proviso to Bye-Law 118. Similarly, under Bye-Law 120 a student seeking admission to the Entrance Examination of the Institute is allowed only two attempts to pass the Entrance Examination. It is, therefore, quite clear that wherever the Council was of the view that it was necessary to restrict the number of attempts/chances by a student to clear certain examination under the Ordinance, it so provided through the bye-laws. The restriction of chances/attempts by a student to pass the Intermediate and Final Examination of C.A. being directly connected with the maintenance of standard of training and education in the field of chartered accountancy it could only be provided by the Council through a bye-law framed in accordance with the provisions of Section 27 of the Ordinance."

1. For what has been discussed above there is no merit in this petition which is hereby dismissed.

2. So far as the grievance of the petitioner qua the hardship aspect of the matter, if any, is concerned he can, as agreed by the learned counsel for the respondent Institute, prefer a representation to the Council, who may examine the desirability of amending the bye-laws to accommodate a hardship case expeditiously preferably within three months.

(A.A.) Petition dismissed.

PLJ 2000 Lahore 266

Present:tassaduq hussain jilani, J. M/s. SHEIKH SPINNING MILLS LIMITED-Petitioner

versus

WAPOA etc.--Respondents

W.P. No. 23077 of 1997, decided on 17.12.1999. (i) Electricity Act, 1810 (XI of 1910)-

—sb. 39-A, 26 & 26-A-ConsMtution of Pakistan (1973), Art 199-Tampering with electricity meter by petitioner where after petitioner's electricity was disconnected by respondent-Report of inquiry committee and disconnection of electricity was challenged before Electric Inspector but before awaiting his decision, constitutional petition was filed-Maintainability-Petitioner having Mmself chosen forum of Electric Inspector, he should purree that remedy available to him under law-No case for interference in writ jurisdiction was made out in facts and circumstances of case. [P. 270] A

(ii) Electricity Act, 1010 (XI of 1910)-

—-Ss. 26,26-A, 39, 39-A & 46--Criminal Procedure Code (V of 1898), S. 249- A--Constitutio0 of Pakistan (1973), Art 199-Acquittal of petitioner under S. 249-A Gr.P.C.-Effect of such acquittal on action taken by WAPDA with regard to disconnection of electrictiy-Petitioner's plea that he having been acquitted by Special Magistrate in terms of S. 249-A Cr.P.C., proceedings initiated pursuant to raid conducted including issuing of detection bill were redundant was not tenable in as much as meters were checked and action was taken for abstraction and consumption of energy under Section 26 and 26-A, Electricity Act whereas F.I.R. was lodged under Section 39 and 39-A, Electricity Act~ roivsion of S. 48, Electricity Act mandates that penal action taken under Section 39 to 47, would be in addition to, and not in derogation of, any liability in respect of payment of compensation or, in case of licensee, revocation of his license, or payment of penally in lieu thereof, which offender might have incurred-Judgment in criminal case would not affect action taken by respondent with regard to disconnection of petitioner's electricity or reference pending, if any before Electric Inspector. [P. 271JB & C 1987 CLC 1508; PLD 1995 Lah. 56; 1999 CLC 1591 ref .

Syed MansoorAli Shah, Advocate for Petitioner.

Mr. Muhammad Eyas Khan, Advocate for Respondents.

Date of hearing: 7.12.1999.

judgment

The petitioner is a textile company and engaged in the manufacturing and sale of yarn. On 22.9.1997, a team of the WAPDA officials headed by the Resident Magistrate comprising of Superintending Engineer and Executive Engineer concerned raided petitioner's mills premises and found that there was a tempering with the meter; that the electricity connection was disconnected and that the meters were also removed. A case videFIR No. 408/97 dated 22.9.1997 under Section 39-A of the Electricity Act read with Section 379 PPG was registered with Police Station Saddar Raiwind, Distirct Lahore. The petitioner was also issued a show-cause notice. The petitioner challenged the afore-referred action before the Electric Inspector. However, without waiting his decision, this Constitutional petition has been filed to challenge the afore-referred disconnection and made following prayers:--

"(a) That this Hontle Court may kindly declare the impugned action of disconnection of supply of electricity by Respondents Nos. 3 to 5 and the removal of meters as illegal and without lawful authority;

268 Lah.

M/s. sheikh spinning mills ltd. v. WAPDA (Tassaduq Hussain Jilani, J.)

PLJ

(b)

(0

that FIR No. 408 may graciously be quashed as it is based on mala fide alone;

that the Electric Inspector be directed to conduct the inquiry on the basis of the terms of reference mentioned in ground 'g\ of the petition;

(d) that till such time that the offence under Section 39-A of the Electricity Act is proved, it may kindly be declared that Section 26-A of the Act cannot be invoked;

(e) that Section 39-A of the Act cannot be pressed into service till a conclusive decision is arrived at under Section 26 by the Electric Inspector; and

(f) that Respondents Nos. 1 to 5 may kindly be directed to immediately restore the electricity connection of the petitioner- company;

Any other relief which this Hon'ble Court deems fit, fair and just may also kindly be granted to the petitioner."

1. The comments submitted on behalf of Respondent No. 4 (Executive Engineer) are to the effect that committee consisting of Superintending Engineer (Fifth Circle) Lahore, Executive Engineer (M&T Division) Lahore and the Executive Engineer Kotiakhpat Division Lahore checked the metering equipment on 9.9.1997 and observed as under.

Tetitioner had tempered with the MOI Knob and had drilled a hole in the housing of MDI knob and with acute prevision made threads on the lower outside portion of MDI knob and on the inner side of hole, by virtue of which MDI knob could be screwedout and screwed in by rotating the same in anti-clock wise and clockwise direction, thereby providing a free passage to the index of the meter and to the Disc of the meter. By adopting the method as explained above, KWH meter was prevented from recording true consumption and electricity was unlawfully abstracted by the petitioners. Electrical Engineer Mr. Mehr Ali Khan of the Mills and Manager Admn. Mr. Muhammad Mushtaq were also associated in the checking of the metering equipment and both the representatives of the mils, remained in the metering room right from the time of unlocking the metering room uptil relocking the metering room after checking the metering equipment, and the tempering was shown to both the officials of the mills but they declined to sign the report"

The afore-referred test check profoma prepared at site on 9.9.1997 has been annexed with the comments as Anncxure-R/I.

1. The petitioner was issued a show-cause notice for working out the detection bill which he received and thereafter the detection bill was worked out and duly served on the petitioner which amounted to Rs. 57,80,075.00. The petitioner has made part payment of the afore-referred amount and Rs. 38,92,514.00 still remains to be paid.

2. Learned counsel for the petitioner in support of this petition has made following submissions:--

(i) That the action taken by the respondents is mala fide as they demanded illegal gratification but on refusal the electricity was disconnected and the meter was removed;

(ii) that the allegation of theft could not be substantiated in trial of the case registered vide FIR No. 408 dated 22.9.1998 PS Saddar Raiwind referred to above, resultantly, the Magistrate 1st Class/Senior Special Magistrate WAPDA Lahore acquitted the officials of the petitioner company videjudgment dated 8.3.1999. The said acquittal is indicative of the fact that the petitioner company is not guilty of any theft;

(iii) that any action under Section 26-A of the Electricity Act is subservient to a finding under Section 39-A of the said Act and having failed, the proceedings initiated against the petitioner and the issuance of detection bill are not tenable in law.

In support of his submissions learned counsel for the petitioner has relied on The Chairman WAPDA and 2 others vs. Advisory Board Punjab Lahore and 2 others (1987 CLC 1503); Water & Power Development Authority and others vs. Mian Muhammad Riaz and another (PLD 1995 Lahore 56) and Khalid Pervaiz vs. Water & Power Development Authority through Chairman WAPDA & another (1999 CLC 1591).

1. Learned counsel for the WADPA, on the other hand, defended the impugned action on the grounds that the raid was conducted by a party consisting of senior officials of the WAPDA headed by a Resident Magistrate; that the tempering of meters was found at the spot and the officials of the petitioner-company refused to sign the report; that the actions under Sections 39-A and 26-A of the Electricity Act are independent and acquittal of the officials of petitioner company in criminal proceedings would not absolve of his civil liability under the Electricity Act and that the issues raised by the learned counsel for the petitioner i.e. as to whether the meters were tempered with and electricity was abstracted dishonestly as also the question that the detection bill is excessive 'of are disputed question's of fact which cannot be adjudicated upon in the Constitutional petition and the remedy open to the petitioner is to move the learned civil Court

2. I have heard learned counsel for the parties and have gone through the case law referred to above.

3. It is not denied that a team of WAPDA officials headed by the Magistrate comprising of Superintending Engineer, Executive Engineer and other officials raided petitioners' mills premises, the meters were checked and a case was registered (vide FIR No. 408 dated 22.9.1997 under Section 279 PPC read with Sections 39-A of the Electricity Act PS Raiwind, District Lahore). It was found by the raiding party that the meters were tempered with where-after petitioner mills' electricity was disconnected. Petitioner challenged the report and the disconnection before the Electric Inspector and without waiting for a verdict from him chose to file this Constitutional petition.

4. The question whether the petitioner has remedy to challenge the action taken by the WAPDA authorities before the Electric Inspector has been clinched by a Full Bench of this Court in case reported as Water and Power Development Authority and others vs. Mian Muhammad Riaz and another (PLD 1995 Lahore 56) wherein at page 71 it was observed as under:

"After making these elaborate provisions sub-section (6) provides that where any differences or disputes raise between a license and a consumer as to whether any meter maximum demand indicator or measuring apparatus is or is not correct the matter shall be decided upon application of either party by an Electric Inspector. The rest of the provisions contained in the sub-sections are consequential in nature. So the dispute which is referable is whether the meter or the measuring apparatus Hs or is not correct'. It is farther provided that before applying to the Electric Inspector under this sub-section the party intending to make a reference shall give to the other party not less than seven days' notice of his intention to make the reference to the Electric Inspector. Sub-section (7) thereafter provides that the licensee may place upon the premises of a consumer other meter, maximum demand indicator or measuring apparatus in addition to the measuring apparatus already placed upon the premises pursuant to the provisions of sub-section (1) for the purpose of ascertaining or regulating the amount of energy supplied or the number of hours during which supply is given, or the rate per unit of time at which energy is supplied to the consumer, or any other quantity or time connected with supply. The Explanation added to this sub-section provides that a meter shall be deemed to be correct if it registers the \ amount of every supplied or the electrical quantity contained in the supply, with the prescribed limits or error, and maximum demand indicator or other apparatus shall be deemed to be correct if it complies with such conditions as may be prescribed in case of any such indicator of there apparatus."

1. The petitioner himself chose a forum Le. Electric Inspector and he should purpose the remedy available to him under the law. No case for interference in the writ jurisdiction of this Court is made out in the facts and circumstances of this case.

2. Coming to the argument that since petitioner was acquitted under Section 249-A Cr.P.C. by the Senior Special Magistrate WAPOA (in caw FIR No. 408 referred to above), therefore, proceedings initiated pursuant to the raid conducted including issuance of detection bill are redundant is not tenable as the meters were checked and action was taken for abstraction and consumption of energy under Sections 26 and 26-A of the Electricity Act whereas FIR was lodged under Sections 39 and 39-A of the Act Section 48 of the Electricity Act mandates that the penal action taken under Sections 39 to 47 "shall be in addition to, and not in derogation of, any liability in respect of the payment of compensation or, in the case of a licensee, the revocation of his license, or the payment of penally in lieu thereof, which offender may have incurred'.

3. Before recording material prosecution evidence and relying on documents produced in defense at that preliminary stage\ the Senior Special Magistrate WAPDA acquitted the petitioners by resorting to Section 249-A Cr.P.C. I would not comment an further lest it may prejudice the case of either parly as learned counsel for the WAPDA submits that he has moved the concerned authorities for challenging the order of acquittal, suffice it to say, that the judgment passed by the Criminal Court does not affect the action taken by the respondent WAPDA with regard to the disconnection of petitioner's electricity or the reference pending, if any, before the Electric Inspector.

4. For afore refca-rad reasons this petition having no merit is dismissed.

(A.A.) Petition dismissed.

PLJ 2000 Lahore 271 (DB)

[Bahawalpur Bench Bahawalpur]

Preterit: mian allah nawaz and muhammad zafar yasin, J J.

ABDUL HAQ and 2 others-Appellants

versus

RESIDENT MAGISTRATE UCH SHARIF, TEH. AHMEDPUR EAST, DISTT. BAHAWALPUR and 6 others-Respondents

I.C A No. 49 of 1998/BWP, allowed on 6.4.1999.

Law Reforms Ordinance, 1972 (XII of 1972)-

—S. 3-Specinc Relief Act, 1877 (I of 1877) S. 9~Punjab Urban Rent Restriction Ordinance 1959, (W.P. Ord. VI of 1959) S. 13~Punjab Local Government Ordinance 1979, (VI of 1979), S. 166-Tenants of Municipal Committee-Dispossession of-Writ against-Dismissal of-ICA against--It is settled law that a tenant cannot be evicted from his tenement without due process of law- Appellants were tenants of Municipal Committee- But their shops were sold to respondents—Relationship between appellants and respondents was that of a landlord and tenants and was governed by provisions of Punjab Urban Rent Restriction Ordinance, 1959, but appellants were evicted from their tenement without any order from forum of competent jurisdiction—Action of dispossession was neither appealable U/S. 116 of ord. 1979, nor there was any other remedy available except U/S. 9 of Specific Relief, Act, which is not adequate-­ Appellants were put back to possession—Impugned order set aside-­ Appeal allowed. [Pp. 275, 277 & 278] A to E

Rana Sardar Ahmad, Advocate for Appellants.

Mr. M. Jafar Hashmi, Advocate for Respondents Nos. 2 to 4.

Mian Muhammad Bashir, Advocate for Respondents Nos. 5 & 6.

Mr. Niaz Ahmad Khan, AAG for Respondent.

Date of hearing: 16.2.1999.

judgment

Muhammad Zafar Yasin,J.-Through this Intra-Court Appeal under Section 3 of the Law Reforms Ordinance 1972, Abdul Haq and two others seek to assail the order passed by the learned single Judge of this Court dated 30.6.1998 dismissing the appellants' Constitutional Petition No. 2935/98/BWP in limine.

1. The dispute, in the instant litigation, pertains to shops Nos. 5, 7 & 18 situated in the urban area of Muhammadi Market, Municipal Committee, Ahmedpur East. These shops alongwith 21 other shops were built by Municipal Committee Ahmedpur East in the year 1981. (This date has been taken on presumptive basis; the record, however, does not furnish any concrete information with regard construction of aforesaid Market). The aforesaid shops alongwith others were rented out to different tenants on monthly rent and rent deeds were executed. Rent Deed of Appellant No. 1 dated 4.5.1981 regarding Shop No. 5 has been produced by Municipal Committee as Annex: 'X'. Since the appellants/other tenants were reluctant to increase the rent, the Municipal Committee decided to sell the shops by way of open auction. On 16.2.1992, vide Resolution No. 9/158, the Municipal Committee passed necessary resolution. The auction was so held on 25.2.1992. Since the sale of the above Market/shops had been made without seeking the prior approval/consent of the Provincial Government, subsequently a move was made to that effect. This move succeeded on 21.4.1996 when sanction was given ex post facto. In the aforesaid auction, disputed shops i.e. Shops Nos. 5, 7 & 18 had been purchased by Bashir Ahmad, Muhammad Arhsad and Riaz Ahmad herein Respondents Nos. 5, 6 & 7 respectively. It is to be noted that Bashir Ahmed had deposited the entire price of Shop No. 5 while Muhammad Arshad and Riaz Ahmad had committed that if the possession of respective shop was given to them, they will make the payment of entire balance sale price of the shops purchased by them.

2. Unfortunately, the tenants and the purchasers of said shops were locked into multiple litigation, which will be futile to be recapitulated. Suffice it to note that on 3.7.1996 Municipal Committee, Ahmedpur East issued notices to different tenants including appellants to deposit the arrears of rent, and surrender the possession of shops in their possession within seven days. However, the appellants/tenants did not comply with the aforesaid notices and continued agitating their grievances in different forums. The appellants alongwith other tenants filed a suit seeking declaration to the effect that Resolution No. 9/158 passed by the Municipal Committee terminating their tenancy is void and ineffective qua their possession as tenants. The suit was registered as No. 111/96. Alongwith the suit, the plaintiffs also filed application for temporary injunction. The trial Court confirmed temporary injunction on 28.7.1997. This order was challenged efore District Judge, Bahawalpur by Respondents Nos. 5 to 7. The learned Additional District Judge, Bahawalpur, vide order dated 19.5.1998 observed that since after the expiry of six months, the stay order under Rule 2(2-B) ofOrder 39 C.P.C. had lost its efficacy, therefore, the plaintiffs should again approach the trial Court for extension of the order. On 11.6.1998, Bashir Ahmad Respondent No. 5, Muhammad Arshad Respondent No. 6 and Riaz Ahmad Respondent No, 7 moved an application to the Administrator, Municipal Committee, Ahmedpur East and prayed for delivery of possession of the above noted shops to them on the ground that stay has lapsed. On the same date, the Administrator sent the matter to the Chief Officer who made a report in their favour and sent the matter for opinion of the Legal Advisor. In consequence, the Legal Advisor too agreed with the opinion of Chief Officer. On the same date, the Chief Officer put the matter before the Administrator, Municipal Committee for seeking the help of the police as well as the Magistrate. This report is dated 11.6.1998. Immediately, the Administrator, Municipal Committee, summoned the record and thereafter requested the Resident Magistrate/Magistrate 1st Class to furnish police assistance. The Resident Magistrate accordingly passed the order and provided necessary police force to Municipal Committee. In this way, the Municipal Committee on 15.6.1998 dispossessed appellants form Shops Nos. 5, 7 & 18 through the help of police force in the manner stated above.

3. Feeling dissatisfied with the above action/proceedings of their dispossession, the appellants filed Constitutional petition which was dismissed on 30.6.1998 in limine by me learned single Judge of this Court, hence, this Intra Court appeal.

4. The learned counsel for the appellants relied upon Muhammad Aslam vs. Station House Officer and others (1993 MLD 152) and Karam Dad & another vs. Azad Government of the State of Jammu & Kashmir and others (1980 CLC 1119) to contend that the appellants were tenants of the shops noted above, that neither the Administrator, Municipal Committee nor Resident Magistrate could dispossess them by the use of force without getting an eviction order from the Rent Controller. The learned counsel further submitted that the relationship between the appellants and Municipal Committee was that of landlord and tenant and was governed by the provisions of Punjab Urban Rent Restriction Ordinance, 1959. This being the position, according to the learned counsel, the Municipal Committee could not dispossess the appellants except by the order of the Rent Controller. On the strength of the above, it was urged that the proceedings on 15.6.1998 from the beginning to finish were totally void abinitio and have no lawful consequences.

5. Mr. Muhammad Jaffar Hashmi, Advocate/learned counsel for the Respondents Nos. 2, to 4 supported the impugned action/proceedings. He contended that writ of mandamus, in the context factually conflicting claims of parties, was not competent. According to him, the correct remedy available to the appellants was to move under Section 9 of the Specific Relief Act On the aforesaid line of arguments, it was suggested that the instant Intra-Court Appeal was not competent. Secondly, it was argued that the order passed by the Assistant Commissioner/Administrator Municipal Committee, dated 15.6.1998 is subject to incident of appeal under Section 66 of aforesaid Ordinance and so Intra-Court appeal was not competent under Section 3 of the Law Reforms Ordinance, 1972. Thirdly, it was stressed that the appellants have not come to the Court with clean hands; neither they paid the rent to the Municipal Committee nor they were paying it to the new purchasers and so they were not entitled to claim equitable relief under Article 199 of the Constitution. Reliance was placed on Muhammad Mansur All Sarkar vs. Dr. Kudrat Ali (1968 SCMR 244),Muhammad Mansha vs. Mst. Irshad and others (1994 MLD 136), District Evacuee Trust Committee, Hyderabad vs. Lakhano and 2 others (PLD 1973 Note 19), Raja Fidia-ur-Rehman and 4 others vs. Capital DevelopmentAuthority, Islamabad (1996 MLD 1573), Sailesh Kumar and another vs. Rama Devi (A.I.R. 1952 Patna 339), Punjab State Club Simla vs. Municipal Committee Simla (AIR 1959 Punjab 220), Sikandar and 2 others vs. Muhammad Ayub and 5 others (PLD 1991 SC 1041) and Hqji Muhammad Yousaf vs. Commissioner, Faisalabad Division, Faisalabad and another (1997 MLD 2384).

6. The learned counsel for the Municipal Committee as well as the learned counsel for Respondents Nos. 5, 6 & 7 submitted that the relationship between the Municipal Committee and appellants was not governed under the Urban Rent Restriction Ordinance but it was under the provisions of Section 122 of the Local Government Ordinance; that the Committee and already issued notices on 3.7.996, therefore, the appellants were simply trespassers. On the line of this approach, it was suggested that the Intra-Court Appeal is not competent. In reply, the learned counsel for the appellants urged that, although, the appellants had a remedy under Section 9 of the Specific Relief Act, yet, it was neither convenient nor was efficacious in nature. On this line, it was represented that invocation of Constitutional jurisdiction was justified.

7. From the foregoing pleas of the parties, three points merge for decision. Firstly, whether on the facts of the case in hand, the remedy available to the appellants under Section 9 of the Specific Relief Act was/is alternative adequate remedy and so is a bar to invocation of writ jurisdiction of thus Court? Secondly; whether the order passed by the Administrator, Municipal Committee, Ahmedpur East dated 15.6.1998 was appealable under Section 166 of Punjab Local Government Ordinance, 1979 and so the ICA filed over here is incompetent Thirdly, whether this Court has no power to order restitution of possession of afore-noted shops to appellants inexercise of Constitutional jurisdiction.

8. Asregard first point, it is settled that a tenant/lessee cannot be evicted from his tenement without due process of law. The earliest case, on this subject is Kunhi Komapen Kurupu vs. Changarachan Kandil Chembata Arnau12 M H C R 313). In this case it was held:

"In cases under that section a lessor, who had dispossessed otherwise than by due course of law a lessee whose term had expired, would be compelled to restore possession to the lessee. The plain object is to discourage proceedings calculated to lead to serious breaches of the peace, and to provide against the person who has taken the law into bis own hands deriving any benefit from the process. It was intended w obviate the effect of the possible application of English law to such cases. That law, as laid down in Harvey v. Bridges is that the freeholder, if entitled to eject the person in possession, may commit an indictable offence in doing so, and yet gain all the advantages of a legal possession and be perfectly secure against the action of the party assaulted."

Similar views were expressed in Full Bench case Wait Ahmed Khan and others i; Ajudhia Kandu (ILR (13) All. 537), Sofaeli Khan and another v. Wocpean Khan and another (9 W.R. 123) and Rudrappa Bin Snakppa v. Naningrao Ramchandra Kablikar and another (ILR 1905 Bom. 213).

1. Same question came before the Division Bench of Erstwhile High Court of West Pakistan in Azim Khan vs. State of Pakistan and another (PLD 1957 (W.P.) Karachi 892). In this case, Azim Khan/petitioner was a building contractor who was invited from Dehli, on the eve of partition, to execute certain emergent works for Government of Pakistan and was permitted to use a plot for the purposes of building and a Godown to store construction material and accommodate his staff. He completed the construction and Department asked him to vacate the plot. On 12.12.1950, petitioner prayed that plot be allotted to him on the payment of rent. This move was acceeded to. Subsequently, the Government needed the plot and so cancelled allotment and called upon the petitioner to vacate the premises. As the petitioner declined to do so, he was threatened with forcible eviction without employing process of law. Feeling aggrieved the petitioner filed Writ Petition No. 198 of 1956 which was allowed. The Division Bench held that petitioner was entitled to remain in possession till ejected in due course of law. Resultantiy writ was issued. The aforesaid rule was reiterated by the Apex Court in M, Ghani vs. M.A. Mullick & Brothers and 3 others (1973 SCMR 90) and Syed Mehdi Hasnain v. Muhammad Ayub and another (1970 SCMR 434).

2. The same point cropped up in Karam Dad and another vs. Azad Government of the State of Jummu & Kashmir and others (1980 C.L.C. 1119). In this case, the land measuring 14 Kanals, falling in the area of village Tangal Tehsil Nakyal District Kotii, was in possession of the petitioner. Respondent had filed a suit for possession of the land in dispute against petitioner in a Court of Sub Judge Kotli wherefrom it was withdrawn with a view to make a move for partition of land jointly owned by the parties. Accordingly, an application for partition was filed by Said Muhammad Khan respondent before the Assistant Collector 1st Grade. During the pendency of the said application, Said Muhammad Khan moved an application to Revenue Minister/alleging that demarcation had been made, that petitioner was not going to vacate the land in dispute. On this application, the said Minister asked Sub-Divisional Magistrate Nakyal to hand over the possession of the land in dispute to applicant and submit a report to him. In compliance with that order, tjie Sub-Divisional Magistrate ordered Naib Tehsildar to take the possession from the petitioner and hand it over to said Said Muhammad Khan respondent. The Naib Tehsildar accordingly complied with the aforesaid order and dispossessed the petitioner. Feeling dis-satisfied petitioner filed Writ Petition No. 37 of 1975 which was allowed by the Division Bench Azad Jammu & Kashmir High Court and possession of aforesaid land was restituted to petitioner. It will be pertinent to quote relevant passage from the said precedent:

"The respondents were unable to show under which provisions of law the impugned orders were made by them. However, a preliminary point has been raised by the learned counsel for Respondent No. 4 that the High Court is not competent to take up the matter in dispute as other remedy is available to the petitioner. No doubt, the petitioners could go to a Civil Court for the recovery of the possession of the land in dispute under Section 9 of the Specific Relief Act but the circumstances of the case are such that resort to a Civil Court for the restoration of possession is not a speedy and efficacious remedy available to them. As a matter of fact, the circumstances are such that the High Court in exercise of its writ jurisdiction must come to the help of the aggrieved persons who fell a victim to the highhandedness of the Officers of the Government who have acted illegally beyond their powers and as such the petitioners were deprived of their lawful possession through unlawful means adopted by Mr. Ghulam Abbas Nagina and others with the help of the police. There is no law of the land by which a Minister of the Government could make an order for ejectment of a erson from the land possessed by Mm as one of the joint owners. We may go to the minimum extent to say that such an order is not less than that of "Sikha Shahi' ( <Sv Li !ǣȥ ) one; which cannot be allowed to have its effects in favour of a party who was unduly supported by the officers of the Government in presence of rule of law under which for settlement of disputes between different members of the public, Courts are established by law to deal with such like cases."

We find no reason to differ with the aforesaid view and are inclined to follow it. Applying these rules to the facts and circumstances of the case in hand, it is thus, dear, without any dispute, that Appellants Nos. 1, 2 & 3 were tciLints of Municipal Committee, Ahinedpur East in Shops Nog. 5, 7 and 18; that the aforesaid shops were sold to Bashir Ahmed and Muhammad Arshad PJaz Ahmad on 25.2.1992; that the Government of Punjab granted the o aforesaid alienation on 25.6.1996; that Bashir Ahmed had made

the payment of price, while Respondents Nos. 6 and 7, purchasers had made payment of price partially and were prepared to pay the remaining price, if possession was given to them. On the aforesaid facts there is thus, no dispute thit relationship of landlord and tenant existed between appellants and Mujticipal Committee, Ahmedpur East in the first place and then between purchasers and appellants.

1. In so far, Section 122 of the Punjab Local Government Ordina^cs 1979, its bare reading will show that it deals with grant of licences an 3 leases in respect of any land, open space, building or a property/vesting in. nmnaged, maintained or controlled by the Local Council on such terms and conditions as may be provided in Bye-laws. Vide Resolution No. 9/158 dated 162 1992 the Municipal Committee decided to sell the shops in dispute; and it did sell the shops vide open auction on 25.2.1992 and the Respondents Nos. 5 to 7 had purchased the aforesaid shops. On these facts and the circumstances of the case in hand there is clearly no warrant for application of Section 122 of the Punjab Local Government Ordinance 1979. On aforesaid conclusions, it becomes clear to us that relationship between appellants and respondents was that of a landlord and tenants and was governed by the provisions of Punjab Urban Rent Restriction Ordinance, 1959; that the appellants were evicted from their tenement without any order from forum of competent jurisdiction. On the aforesaid analysis, we are clearly of the view that the provisions of Section 9 of the Specific Relief Act was/is not impediment in way of exercise of writ jurisdiction; that impugned actions/proceedings were not appealable under any provisions of Punjab Local Government Ordinance. Resultantly the actions of functionaries of the State are without lawful authority and redress the grievances of the appellants in exercise of extra-ordinary Constitutional jurisdiction is within the parameter of law.

2. Now we take up the second and third points. With regard to econd point, it is sufficient to say that the assailed actions/proceedings of the officer of the Municipal Committee including its Administrator and action of the Resident Magistrate dated 15.6.1998 were totally without jurisdiction and without any lawful authority. The learned counsel for the contesting respondents as well as learned counsel for the Municipal Committee had not shown us any provisions of law under which these actions were covered. Naturally these actions were not taken under the provisions of Punjab Local Government Ordinance at all. This being the position these actions were neither appealable under Section 166 of Punjab ocal Government Ordinance 1979 nor there was any other remedy available under the law against these actions except under Section 9 of q Specific Relief Act However, the remedy under Section 9 of Specific Relief Act, under the circumstances of the case is not adequate. The contention raised by the learned counsel for the contesting respondents as well as Municipal Committee are found to be of no consequence and hereby repelled.

3. As a result of the aforesaid conclusions we hereby allow this Intra Court Appeal, set aside the order of the learned Single Judge of this Court dated 30.6.1998 and allow Writ Petition No. 2935/98/BWP with grant of requested relief. The Assistant Commissioner/Administrator/Chairman Municipal Committee shall to put back the appellants in possession of their respective tenement within one month of the receipt of this order of this Court There shall be no order as to costs.

4. While parting with this order, we would like to observe that the purchasers/Respondents Nos. 5 to 7 and Municipal Committee, will be within their right to seek the eviction of the appellants from their tenement from the Court/Forum of competent jurisdiction and the respondents, if initate such action, the forum of competent jurisdiction will determine the controversy between the parties within the parameter of law and without any influence by any observation of this Court.

(MYFK) Appeal allowed.

PLJ 2000 Lahore 278 (DB)

[Rawalpindi Bench Rawalpindi]

Present:muhammad nawaz abbasi and amjad ali, JJ. GOVERNMENT OF PAKISTAN-AppeUant

versus M/s. AL-FAROOQ ROLLER FLOUR MILLS LTD.--Respondent

R.F.A. No. 68 of 1997, decided on 15.6.1999.

(I) Contract Act, 1872 (IX of 1872)--

—S. 73~Compensation for breach of contract-Essentials-Compensation under S. 73 Contract Act 1872 could be claimed only for breach of contract when damage was caused directly by breach of contract-Contracting party for his own default could not be allowed either to defeat relevant contract or claim better position without fulfilling its obligation-Breach of contract by a party has specifically to be proved and unless it was done, it would not be possible-on basis of general allegation to ascertain and pin point the person who had committed such breach-Plaintiff could not claim any sum as damages when due to his own negligence terms of contract had been breached-Plaintiff as per terms of contract had to provide facility of godown and residential accommodation to staff of defendant for specific period but if failed to provide the same-Plaintiff being negligent in performance of its obligation could not plead breach of contract by defendants-Default of plaintiff being apparent, it would be inequitable to allow plaintiff to get benefit of his wrong by enforcing the same as breach of contract against defendants-General principle under S. 73, Contract Act, 1872 is that only special damages arising in consequence to breach of contract are allowed and general damages usually concerning with non-pecuniary losses such as loss of reputation could not be estimated as special loss which is confined to injury caused to individual party as a result of breach—Damages due to breach of contract, would be governed by Section 73 of Contract Act, 1872 and plaintiff could get compensation for actual loss but general losses would not be permitted for such breach of contract-No compensation, however, could be given for any remote or indirect loss or damages sustained for breach of contract by reason of one's own default.

[Pp. 289 to 292] A to C

(iil Contract Act, 1872 (IX of 1872)--

---S. 73--Civil Procedure Code (V of 1908), S. 96~Contract for grinding of specif ed quantity of wheat-Non-fulfilment of terms of contract~Effect~ E vide nee on record indicated that only a small quantity of wheat was grinded by plaintiff Mills while major bulk of wheat was yet to be grinded and plaintiff Mills having not grinded wheat as per schedule for regular supply to defendants to cater their need forced defendants to make alternate arrangement-Plaintiff (Mills) having failed to discharge its obligation was not entitled either to special or general damages and could not claim only the amount of compensation for grinding of actual quantity of wheat-Judgment, and decrees of Courts below granting amages for remote and indirect loss or damages sustained for breach of plaintiffs own fault were set aside and case was remanded to trial Court or determination of actual compensation payable to plaintiff for total quantity of wheat grinded by plaintiff Mills alongwith liabih'ty of payment of telephone bills for actual use-Specified amount of security deposited by plaintiff would be returnable to him alongwith compensation for actual quantity of wheat grinded by it. [Pp. 292 & 293] D & E

1993 SCMR 441; PLJ 1993 SC 87; 1996 SCMR 193; PLJ 1996 SC 1568; PLJ 1996 SC 1353 ref.

M/s. 1 ulvi Anwar-ul-Haq, D.A.G. and Ch, Afrasiab Khan, Standing Counsel for Appellants.

M/s Ch. Khurshid Ahmad, and Mr. Qamar Riaz Hussain, Advocates for Respondent.

Date of hearing: 2.3.1999.

judgment

Muhammad Nawaz Abbasi, J.-By this common judgment we propose to dispose of Regular First Appeal No. 61 of 1997 filed by Al-Farooq Roller Flour Mills against the Federation of Pakistan and Regular First Appeal No. 68 of 1997 filed by the Federation of Pakistan against Al-Farooq Roller Flour Mills as both arise from a common judgment and decree dated 19.7.1997 passed by a Civil Judge 1st class, Rawalpindi.

1. For the sake of convenience and to avoid any confusion, the appellants and respondents in these cross appeals will be referred by their names as Al-Farooq Roller Flour Mills and Federation of Pakistan.

2. Al-Farooq Roller Flour Mills filed a suit for recovery of Rs. 2,55,72,262/- against the Federation of Pakistan through Secretary Defence and the Director General (Procurement) Pakistan Army on 21.1.1990. In the suit the amended plaint was filed on 19.4.1995 through the Managing Director of the Mills having its office at Khairpur Mirs Sindh.

3. The Federation of Pakistan required the services of flour Mills for grinding wheat for Pakistan Army through the Director General (Procurement) and thus the Federation invited tender for grinding of wheat. The tender submitted by Al-Farooq Roller Flour Mills for grinding of 40 thousand tons of wheat within one year with effect from 1.1.1989 at the rate of Rs. 10.95 per 100 kilograms was accepted. The management of the Al- Farooq Roller Flour Mills undertook the responsibility of construction of godown for the wheat and to make the Mills functional and in consequence thereof, the parties signed the agreement on 29.12.1988 according to which the total amount for grinding 40000 tons of wheat to be paid to Mills was Rs. 43,80,000/-. The charge of the Mills was taken over by Major Shahid Nazir an agent of the Federation who allegedly instead of running the affairsof the Mills smoothly adopted hostile attitude towards the management of the Mills and created such circumstances which did not allow the contract to be performed by the management of the Mills. It was pleaded that due to bad law and order situation in Khairpur region the management wanted to sell the Flour Mills but the said Major Shahid Nazir dissuaded the purchaser from entering into the bargain with the owners of the Mills. The hostility of said Major Shahid Nazir was brought to the notice of Ministry of Defence through the Director General (Procurement) but nothing was done. The correspondence made on behalf of the Mills with the Federation and the Director General (Procurement) regarding the grievance of management and owners of the Mills against Major Shahid Nazir and the affairs in the Mills was made part of the record. It was complained that the telephones installed in the Mills were misused by said Major Shahid Nazir and his colleagues and that the residential accommodation provided to Major Shahid Nazir by the management of the Mills in terms of the agreement was not occupied by him. It was added that the Flour Mills alongwith the staff was under the control of the Federation through Major Shahid Nazir who un-necessarily pointed out the defects in the machinery of the Mills. He neither associated any representative of the Mills nor informed the management about the total quantity of wheat brought to the Mills and how much wheat was taken back un grinded. It was pleaded that the complaints made by said Major Shahid Nazir to the effect that wheat was not being grinded as per specification were tainted with ulterior motives as the same were made without getting the samples testified from the laboratory in the prescribed manner. The Federation and the Director General (Procurement) on the basis of said reports made by Major Shahid Nazir terminated the contract on 20th May, 1989 and the said Major Shalu'd Nazir without associating the representative of the Mills and settling the affairs relating to shifting of ungrinded wheat and handing over the Mills in a proper manner to the management, abandoned the same in August, 1989 with the result that spare parts and stores of the value of about two Lac were misappropriated in the intervening period. The termination of the contract and non-payment of the bills for the wheat grinded by the Mills by the Federation made the owners of the Mills defaulter in payment of loans obtained from the Banks for installation of Mills and as a result thereof the suits of the creditor Banks, namely, I.D.B.P. and Habib Bank Limited against the Mills for recovery of loans were decreed against the Mills which was sold through auction in execution of the decrees for a nominal price. In nutshell, Al-Farooq Roller Flour Mills sought decree for the recovery of the following loses due to the breach of the contract through the suit for damages against the Federation.

The deposit as security Rs. 60.000/-

The expenses incurred on renovating the Mills Rs. Rs. 80.000/-

The total compensation for grinding the

wheat under the Agreement. Rs. 43,80,000/-

Unpaid telephone bills Rs. 1,32,262/-

Loss caused due to the Abandonment of the

Mills Rs. 2,00,000/-

Loss occasioned due to Dissuading the

prospective Buyers from purchasing the Mills Rs. 50,00,000/-

The loss for reputation of Mills due to illegal termination of the agreement and black listing of the plaintiff. Rs. 25,00,000/-

The damages due to mental anguish and

torture Rs. 25,00,000/-

Loss due to non payment of bills hy the Federation and in consequence thereof the taking over of the Mills by the creditors of the Plaintiff. Rs. 1,00,00,000/-

Total: Rs. 2,55,72,262/-

1. The appeal filed by the plaintiff before the Secretary, Ministry of Defence under the agreement was pending undecided at the time of filing of the suit.

2. The Federation of Pakistan and the Director General (Procurement) having denied the averments of the plaint in the written statement pleaded that inspection of Mills was carried out by the Board of Officers of the General Headquarters before execution of the agreement and although the Mills was not technically fit due to insufficient storage facilities yet being found suitable for grinding the wheat, the contract was signed. Since the Flour Mills was not in operation for the last two years before the execution of an agreement, therefore, the contract was entered into on the assurance given by the management of the Mills to make it in proper order but as per commitment neither the storage facility was provided within the stipulated time nor the Mills was fully made operation till the termination of the contract It was pleaded in the written statement that the plaintiff having failed to fulfil the contractual obligations caused loss to the defendant on account of defective grinding of wheat and the expenses of Rs. 5,980/- which was incurred on transportation of 974-729 tons wheat from Khairpur to Multan for grinding the same on failure of the Al-Farooq Roller Flour Mills to do the needful as its obligations. Thus, the Federation has deducted the loss born by it from the amount of security of Rs. 60.000/- of the Mills and the balance amount of Rs. 31,000/- was available for payment to Al-Farooq Roller Flour Mills.

3. The learned Civil Judge on the basis of pleadings of the parties framed the following issues: -

4. Whether the plaintiff has no cause of action? OPD

5. Whether the suit is not maintainable? OPD

6. Whether the suit is false, frivolous and vexatious as such the defendants are entitled to special costs U/S. 35-A of CPC?

7. Whether the plaintiff suffered heavy losses due to the illegal termination of the agreement and non-payment of the amount validly, contractually, legally due to the plaintiff? OPD.

8. Whether the plaintiff is entitled to a decree for recovery of Rs. 2,55,72,262/-? OPP.

9. Whether the machinery of the Mills was defective and not in operation conditions at the time of its taking over by the defendants? OPD

10. Whether the plaintiffs failed to provide to the Army Officers incharge of the Mills facilities stipulated in the contract between the parties? OPD

11. Whether the wheat grinded at the Mills produced below specification flour? OPD.

12. Relief.

13. Issues Nos. 1, 2, 3 and 4 were decided against the Federation of Pakistan and in favour of Al-Farooq Roller Flour Mills whereas Issue Nos. 5 was partly decided against the Mills and partly against the Federation. Issues 6, 7 and 8 where decided against the Federation. Consequently, under Issue No. 9, a decree to the tune of Rs. 1,75,50,000/- with interest at the rate of 14 per cent per annum from the date of institution of the suit till the actual payment was passed in favour of Al-Farooq Flour Mills and against the Federation through the judgment dated 19.7.1997. The remaining claim of the Mills amounting to Rs. 83,22,262/- was rejected and the suit to that extent was dismissed. The trial Court however fixed a period of three months for the payment of the decretal amount failing which decree would be executed.

14. The Federation and the Director General (Procurement) being aggrieved of the judgment and decree passed by the trial Court against them in the suit preferred Regular First Appeal No. 68 of 1996 where as Al-Farooq Roller Flour Mills being also not satisfied has filed Regular First Appeal No. 61 of 1997 for the grant of the decree of the claim made in suit in toto.

15. Learned counsel representing the Al-Farooq Roller Flour Mills the appellant in RFA No. 61 of 1997 and respondent in RFA No. 68 of 1997 raised the following contentions:- The agreement between the parties was executed after the inspection of the Mills which was found in perfect working condition at the time of possession, therefore, there was no justification for the termination of the contract on the ground that the Mills was not in working order;

(a) The trouble was started on taking over the charge of Mills by Major Shahid Nazir an agent of the Federation and the Director General (Procurement) who having close contact with the proprietor of Sultan Flour Mills, Multan was not happy with the contract of Federation with Al-Farooq Mills as earlier Sultan Flour Mills was sole contractor for grinding of wheat for Defence. He argued that due to the bifurcation of the quota of wheat of Sultan Flour Mills, the proprietor of said Mills was annoyed and consequently he in connivance with Major Shahid Nazir, Officer commanding created obstacles to the performance of contract by the Mills and made the situation adverse to the Mills with the result that the Federation and the Director General (Procurement) on the basis of the material provided to them by Major Shahid Nazir terminated the contract Learned counsel with reference to the letters written by the management of the Mills against Major Shahid Nazir to the Ministry of Defence and the Director General (P) submitted that the management of Al-Farooq Roller Flour Mills was not at fault and that Major Shahid Nazir, an agent of the Federation was responsible for breach of contract;

(c) that the contract was terminated on 20.5.1989 whereas the Mills remained in the control of the Federation till 9.8.1998 when it was abandoned by Major Shahid Nazir with information to the management and thereby caused loss to the Flour Mills;

(d) that out of 40000 tons of total wheat, only 974.726 tons wheat was lying ungrinded, which was later shifted to Sultan Flour Mills, Multan. The major quantity of the wheat having already grinded by the Al-Farooq Roller Flour Mills, the termination of contract was not legal and in consequence thereof, the Federation was responsible for the damages caused to the Mills.

The learned counsel has cited Saeed Ahmad Karmani vs. M/s. Muslim Commercial Bank, Islamabad (1993 SCMR 441), Deputy Collector of Central Land Customs, Peshawar and 2 others vs. Premier Tobacco Industries, Peshawar (1993 S.C.M.R. 447), Islah High School, Chiniot, through Province of the Punjab vs. Jawad Hussain (1996 S.C.M.R. 193), So/I Muhammad Ishaq vs. The Metropolitan Corporation, Lahore, through Mayor (PLD 1996 S.C. 737), Miss. Waheed Shaft vs. University of Engineering & Technology, Taxila, through Vice Chancellor and 3 others (PLD 1996 S.C. 747) in support of the contention that in case of breach of the contract of the nature between the parties, the losses other than the actual losses can also be claimed under Section 73 of the Contract Act, 1872.

1. The learned counsel next contended that the Mills was under the debt as loans were obtained from Industrial Development Bank of Pakistan and Habib Bank Limited, which fact was brought to the notice of the Federation and the Director General (P) with a request to make payment of bills but non-payment of the running bills resulted into default on the part of Al-Farooq Flour Mills in the payment of installments of loan to the creditors and consequently the Mills under the decrees was auctioned at a nominal price at the cost of heavy loss to the owners. Learned counsel in support of his arguments had placed reliance on certain documents and the statements of the witnesses appearing on behalf of Al-Farooq Roller Flour Mills. He argued that due to the fault of the Federation, the Mills of the value of Rs. 2,25,00,000/- was sold for a sum of Rs. 70,10,000/- after the termination of the contract. Learned counsel while developing his arguments contended that actual damages upon the breach of the contract can be claimed under Section 73 of the Contract Act whereas the damages of jKruara] jurfucejare .claimed jmdsr 4£>j>\,as£i j.e 4M? way && lessee is Jb^jsr^ the Al-Farooq Roller Flour Mills is a composite decree consisting upon the damages under Section 73 of the Contract Act as well as under the tort which is based on the claim for loss caused to the Mills due to the conduct of Major Shahid Nazir, the agent of Federation. He argued that since the application under Order I Rule 10 CPC for impleading Major Shahid Nazir as party was opposed by the Federation taking responsibility as his principal, tie damages under Section 73 of the Contract Act as well as under the tort cculd be claimed together from the Federation, therefore, the decree passed does not suffer from any factual or legal defect.

2. Conversely, learned Standing counsel contended that Al-Farooq Puller Flour Mills having failed to grind the wheat as per specification contained in the agreement, the contract was terminated to avoid any complications in the supply of grinded wheat to Pakistan Army in the filed at different places. He argued that the evidence adduced by the Mills as well as by the Federation in the suit strongly supported the action of termination of the contract. He added that the contract was for the grinding of wheat and no: for the taking over the Mills on lease, therefore, the claim of damage on the ground that the Mills being in the control of the Federation ever after termination of the contract, the purchasers were dissuaded by Major Shahid Nazir is not founded under Section 73 of the Contract Act, 1872. Learned Standing counsel contended that the personal bad relations of Major Shahid Na^ir with the management of Al-Farooq Flour Mills were neither part of the contract nor could be made a ground for claim of damages against the Federation under the contract. The Federation being principal of Major Shahid Nazir was only responsible for its acts in terms of the agreement with the Mills and not its private affairs in the individual capacity. He submitted that as per agreement, the Mills had to grind 400000 tons of wheat for which compensation to the tune of Rs. 43,80,000/- was to be paid to the Mills by the Federation and not Major Shahid Nazir and the Director General (Procurement) was responsible for the payment of bills for wheat grinded by the Mills and thus the contention of the learned counsel for the Mills that the running bills were not paid at the instance of Major Shahid Nazir is not borne out from the record. Learned Standing counsel argued that the balance amount of Rs. 31,038.86 of security lying with the Federation will be paid to Al-Farooq Roller Flour Mills if and when it is so desired. In nutshell, the case of the Federation as contended by the learned Standing counsel is that the claim of the Mills beyond the contractual amount was imaginary, fanciful and artificial. The crux of the matter was that the parties could not plead and claim anything out of the contract and that the claim relating to damages and assets of sale of Mills for less price in auction in execution of the decrees of the Civil Courts, neither could be claimed nor decreed. It was claimed that the total wheat supplied for grinding was 7950 tons, out of which 974.926 was lying at the spot ungrinded at the time of termination of contract, therefore, the claim of the Mills that total quantity of 40000 tons wheat was grinded is factually incorrect. He, in support of his arguments, contended that admittedly there were no storage facilities, therefore, no question of storage of wheat arose and that the total quantity of 40000 tons was required to be grinded within the period of one year and if the same had already been grinded at the time of termination of contract, the Mills should have filed a suit for recovery of compensation and not a suit for damages without any cause of action.

3. The salient features of the agreement dated 29.12.1988 Ex.P. 114 were that it had to commence from first January, 1989 and was to be ended on 31st December, 1989. The total quantity of the wheat to be grinded in the prescribed schedule during the period of one year was 40000 tons. The establishment and the labour of the Mills under the supervision of management of Mills were responsible to run the Mills. Except deputing an agent to supervise and control the grinding of wheat, no person was to be appointed by the Director General (P) to work in the Mills. The Director General (P), however, reserved the right of termination of contract at any time under clause-37 of the agreement In the event of any dispute, the aggrieved party had a right of appeal to the authority mentioned in clause-44 of the agreement i.e. Ministry of Defence and the decision was to be final.

4. We have heard the learned counsel for the parties at length and gone through the record with their help. The primary question for determination would be that in what manner what breach was committed by the Federation and the Director General (Procurement) and what loss was caused. The contract between the parties was only for the grinding of 40000 tons of wheat within a period of one year for the compensation of Rs. 43,80,000/- as grinding charges to be paid to the Mills by the Federation. As per evidence of Fazal Elahi, the Managing Director of Al-Farooq Roller Flour Mills, who appeared as a witness of the Mills, an amount of Rs. 60,000/- was deposited by the Mills as security and the staff of the Director General (P) vacated the Mills without handing over the same to the management in proper manner. He stated that an appeal was filed before the Secretary Defence on 17.10.1989, which remained pending undecided till filing of the suit. He further stated that Major Shahid Nazir, who was deputed by the Director General (P) in the Mills without having technical knowledge about the Flour Mills made complaints regarding defects in the Mills for ulterior motives. The witness giving the details of the correspondence, which was made on behalf of the Mills to the Federation against Major Shahid Nazir, stated that he acted maliciously against the Mills. However, the witness has not stated anywhere in his examination-in-chief about the total quantity of the wheat brought to the Mills and that what was grinded and what was left ungrinded when the agreement was terminated. In cross-examination, he stated that an order for the supply of 37000 tons of wheat was issued on 1.1.1989 and that as per schedule a specific quota was to be grinded in every month and the payment was to be made through running bills but the Mills was not paid any bill for the wheat grinded till termination of contract. He stated that it is not in his knowledge that what quantity of wheat was grinded from 1.1.1989 to 20.5.1989 and denied that only 520.250 tons were grinded whereas the Mills was required to grind 7950 tons of wheat during this period. He admitted that no record pertaining to the account of the wheat was available but denied the suggestion that wheat was not grinded as per schedule and in consequence thereof, the contract was terminated. According to this witness, two telephones bearing numbers 3290 and 3291 were under the use of Major Shaidd Nazir in the Mills and that an amount of Rs. 1,32,262/- in connection with telephone bills being payable by the Federation was not paid. He, however, admitted that this amount included the amount of the telephone bills prior to 1.1.1989. The witness further stated that the owners intended to sell the Mills due to bad law and order situation in Kahirpur and admitted that three suits were filed by the Creditor Banks in Sindh High Court at Karachi against the Mills for the recovery of loans taken for installation of the Mills. The Industrial Development Bank of Pakistan filed the suit in the beginning of 1989 whereas the Habib Bank Limited filed the suit in the year 19SS and another suit was filed by the said Bank in the beginning of year 1990 which were decreed and no appeal was filed against the decrees. He, however, has not given the date of auction of the Mills in consideration of the decrees in question, whether before or after termination of contract. He admitted that some amount of loan was returned and after making adjustment of the same the suits were filed against the Mills by the creditors.

15, The star witness of the Federation, namely, Major Shahid Nazir appeared as DW-1. He stated that outstanding bills of telephones installed in the Mills pertained to the period prior to 1.1.1989 and that total bill of Rs. 36726.45 of telephone No. 3291 and Rs. 75321.45 of telephone No. 3290 were unpaid. He stated that 180 tons wheat was required to be grinded daily under the agreement whereas the wheat was grinded within the range of maximum 85 and minimum 9 tons daily which was much below to the prescribed and that 974.729 kilograms ungrinded wheat was sent from the Mills to Multan after termination of the contract. He categorically stated that out of the total wheat brought to the Mills a quantity of 520.20 tons was grinded by the Mills from 1.1.1989 to 20.5.1989, and that it was not in his knowledge about the total quantity of wheat supplied to the Mills but 974.729 tons was lying un-grinded in the Mills when the agreement was terminated. He stated that except the ill-performance of the Mills in grinding the wheat and non-availability of godown for storage of wheat, there was no complaint against the Mills and that the Mills remained under the control of the Director General (P) till August, 1989, whereas the agreement was terminated in May, 1989. During this period, no representative of the owners of the Mills approached the Federation or the Director General (P) for taking over the Mills, however, a representative of the Mills gave a certificate, which is Ex.D/1. He denied any loss to the Mills-owners because of termination of the contract as well as late delivery of the possession. Similarly, he denied any loss to the Mills-owners for want of private sale of the Mills as the interested purchasers could not inspect the Mills during the period the Mills remained under the control of Federation.

1. The Managing Director of Al-Farooq Roller Flour Mills has made a general statement regarding the damages caused to the Mills whereas Major Shahid Nazir DW-1 has placed factual position with reference to the record. The Mills claimed damages on different account. The major claim of the Mills is that loss was caused due to the reason that despite availability of willing purchasers, the bargain for sale of Mills could not struck with them as Major Shahid Nazir did not allow the purchasers to enter into the premises of the Mills and subsequently the Mills was auctioned in satisfaction of the decrees at a very low price. Matte-ul-Haq Khalid PW-6, Mian Muhammad Luqman PW-8, Muhammad Amin PW-9, Dr. Muhammad Abbas Bokhari PW-1Q and Sardar Arif Rashid PW. 11 were produced by the Mills to establish the fact that they were interested in the purchase of the Mills but Security Staff did not allow them to enter into the premises of the Mills. Matte-ul-Haq stated that he has contracted Fazal Elahi on telephone who told Mm that the Mills was on contract with Pakistan Amry and Rs. 5Q,OQ,QGO/- was the yearly income. The price of the Mills was disclosed as Rs. 1,60,QO,000/-. Muhammad Luqman PW-8 stated that he alongwith Matte-ul-Haq PW-6 went to the Mills but could not go inside the Mills as the Security Staff of Pakistan Army was on the Gate of the Mills. Sardar Arif Rashid PW-11 stated that he had gone to inspect the Mills but could not do so because of the security. None of these witnesses stated about the proper negotiation for sale and purchase of the Mills and the offer and acceptance of price. Their evidence is only to the effect that they with a view to purchase the Mills had visited the same. According to these witnesses, they visited the Mills during April, 1989, when the agreement was still operative which was termination in May, 1989. Thus, the Security Staff would not allow a stranger to enter into the Mills and it would not be a ground that the Mills during the existence of the agreement to contend that the buyers were not allowed to visit the Mills and consequently the bargain could not be struck. This is noticeable that the Mills was under debt and the creditors much before the agreement of the Mills with the Federation filed the suits for recovery of loans as stated by the Managing Director of the Mills. The Mills undoubtedly being mortgaged with the creditor could not be sold as free of encumbrance and without the intervention of creditors for want of availability of deed of title with the owners. The evidence does not show that the Mills at any stage had moved the concerned Court or the creditors for the sale of the Mills for clearance of their dues and thus sale of the Mills through auction in execution to the decree could not be pleaded below the market value. The Mills being mortgage and under litigation only could fetch the maximum price through the public auction. The agreement was signed on 1.1.1989 when the Mills was already defaulter in repayment of loan and a suit for recovery of loan was filed against the Mills by the Habib Bank before the agreement in question. Consequently, the evidence produced by the Mills in support of its claim on this account is of no relevance and help and the same having no nexus with the agreement directly or indirectly was not recoverable in consequence to the alleged breach of the agreement

2. The contract between the parties was for grinding the wheat at a specif ed rate. The plaintiff sought composite relief for damages for breach of the contract and also for tort. The alleged breach of the contract, subject- matter of the suit and appeal was to be judged in the light of Section 73 of the Contract Act, 1872, which reads as under: -

"S. 73.--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.

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."

1. The compensation in this section can be claimed only for breach of contract when damage is caused directly by the breach. The statutory recognition to the rule for the recovery of damages for the breach of contract is different to that of general rule for damages and the damages not arising in the usual course of things from the breach cannot be claimed in consequence to the breach of contract. A contracting party for his owns default cannot be allowed either to defeat the contract or claim better position without fulfilling his obligation. The breach of contract by a party is specifically to be proved and unless it is done, it is not possible on the basis of eneral allegation to ascertain that who committed the breach. The plaintiff in such a suit cannot claim any sum as damages, which due to his own negligence happened. It is the duty of the plaintiff to take all reasonable steps to mitigate the loss and if some damages were caused to him for his own failure of performing his part of the contract, the damages for the breach of the contract either under Section 73 of the Contract Act, or under the tort cannot be granted. The agreement in the present case between the parties provided the right of getting the wheat to be grinded by the Federation from some other Flour Mills in case of failure of performance of contract by Al-Farooq Mills. The plaintiff alleged the breach of the contract due to Major Shahid Nazir an agent of the defendants whereas according to the defendants, the plaintiff failed to grind the wheat as per schedule with the result that the requirements of Armed Forces was not being fulfilled properly and further he failed to provide the facility of godown as well as residence for the agent of the defendants in addition to the technical defects in the Mills. However, none of the parties except making general allegation and counter allegation against each other has brought any cogent evidence in support of their respective contentions regarding the proper functioning of the Mills or its technical defects. The plaintiff having failed to provide the facility of the godown and the residential; accommodation to the staff of the defendants under the agreement failed to give effect to the contract in letter and spirit and thus, even if the Mills was functioning properly, it could not serve the purpose of defendants for want of godown facility and the accommodation for the residence of the staff of the defendants. The plaintiff being negligent in performance of his obligation could not plead breach of contract by the Federation. Major Shahid Nazir being responsible for the affairs of Federation in the Mills was under duty to look after the interest of the Federation to the best of his ability and was under an obligation to bring to the notice of his principal as well as to the plaintiff, the problems being faced by him. The plaintiff Mills instead of taking remedial steps for removal of such problems tried to convince the Federation through written complaint tl\at Major Shahid Nazir was hostile to the Mills and subsequently pleaded that the said Major Shahid Nazir was responsible for breach of contract. The default of Mills being apparent, it was inequitable to allow the plaintiff to get the benefit of his own wrong by enforcing it as breach of contract against the defendants. There is no cavil to the proposition that the damages either for breach of the contract or for tort are to be calculated in terms of actual loss and following the principle of restituti integram, the endure is to be made to place the injured person in the same situation as if the contract had been performed. The plaintiff in the present case was himself being guilty of breach of contract, as he did not fulfill the condition of providing the godown and accommodation to the staff of the Federation could not claim equity. Generally in case of breach of contract, the party who suffer loss by the said breach is entitled to recover the compensation from other party for the actual loss caused to such party but in such case, the party complaining breech must prove that he was always ready and willing to perform his part of the contract and committed no fault. The general principle under Section 73 of the Contract Act is that only special damages arising in consequence to the breach of contract are allowed and the general damages usually concerning with non-pecuniary losses such as loss of reputation cannot be estimated as special loss which is confined to the inquiry caused to an individual party as a result of breach. In the present case, the special loss is confined to the extent of actual compensation for grinding the wheat in the Mills in case of any breach, if was committed by the defendants. In case of u damages due to breach of contract, the matter would be governed by Section 73 of the Contract Act, 1872, and the plaintiff could get compensation for actual loss but in any case the general losses are not permitted for such breach of contract. The compensation for wheat, which was, left ungrinded or the wheat which was yet to be supplied for grinding can be calculated as special loss caused to the plaintiff or it may be called the pecuniary loss subject to proof of the breach of contract but the other losses allegedly caused in respect of sale of the Mills having no nexus with the contract and alleged breach could not be made part of the claim. The bargain of the sale and purchase of Mills being personal affairs of the Mills, was not related to the contract and, therefore, the plaintiff could not be allowed to take advantage of the omission of the defendants to produce evidence in addition to Major Shahid Nazir that no such customer visited the Mills or that no such sale was under proposal. Had the plaintiff at the trial pleaded that on the date of termination of the contract, the Mills was free from all encumbrances and had an offer for purchase for a certain price, the defendants could get the opportunity to rebut the same through evidence but tie Mills being mortgaged with the Banks at the relevant time could not probably be sold without the intervention of creditors and if the same would have done, it could create legal complications, therefore, the plaintiff in the circumstances could not be allowed to take advantage of his plea of sale of Mills for want of evidence of the defendants in rebuttal on record. Thus, the plaintiff was not entitled to the compensation either in the nature of restitution or as penalty for the alleged loss suffered by the plaintiff. The term 'compensation' is no doubt used for damages and is often measured with the rule of damages in terms of money and is paid as compensation for loss and injury sustained1 in consequence to the breach of contract. In the present case, no loss or injury was caused to the plaintiff as a result of termination of contract for grinding of wheat as it was not a contract of sale of Mills, which in case of breach would cause loss to the plaintiff. It being simply a contract of hiring the Mills for the grinding of the wheat for a fix period of one year, the maximum damages in case of any breach would be to the extent of actual compensation for the quantity of wheat, which was grinded. The loss claimed by the plaintiff under different heads cannot be said to be naturally arisen out of the contract in case of breach in the normal course, therefore, no damage can be assessed for any such speculated gain or loss. Consequently, the damages claimed under Issues Nos. 4 and 5 having no nexus with the contract, the same could not be claimed for the alleged breach of the contract The plaintiff was not debarred from negotiating the sale of Mill\ on seeking the permission in proper manner from the concerned authorities to get the Mills inspected by the interested parties but the same having not done, the speculated gain and loss without drawing a line between the night and day would be based on mere wishful thinking. We may observe that no compensation can be given for any remote or indirect loss or damages sustained for breach of the contract by reason of once own £ fault Admittedly, there was no proposal of sale between the owner of the Mills and a third party and mere desire of purchase by a person as shown in

the evidence without an offer and acceptance of price would not acquire the status of contract of sale to be made a source for claim of damages for loss on sale. It was incumbent upon the plaintiff to prove that the Mills despite being mortgaged with creditors could not be sold and the creditors had no objection for the sale of the Mills but the same having not proved on record, the presumption would be that no customer could intend to purchase such a property for any higher price to that of the price received through Court auction and thus the Mills in private sale would not fetch a better price as having declared defaulter by the creditors, they have filed suit against the plaintiff before the execution of the agreement by him with the Federation. The plaintiff, therefore, under the circumstances, could not sell the property without the permission of the Court concerned and discharging the liabilities of the creditors and consequently no such loss due to the alleged breach of the contract either could be claimed or granted to the plaintiff. In nutshell, except the amount of security and the actual compensation for grinding the wheat due under the agreement, no loss on account of purchase of Mills by perspective buyer and loss due to non-payment of bills or late handing over the premises to the owners of the Mills could be granted. The trial Court was misguided in awarding the losses to the plaintiff to the tune of Ra. 50,00,000/- an amount of sale of the Mills, Rs. 10,00,000/- due to non­payment of bills and loss of Rs. 21,90,000/- for ungrinded wheat and therefore, the findings on Issues Nos. 4,5 and 7 are reversed. There being no direct evidence of grinding of wheat below the specification, the defendants have not discharged the burden thereof, therefore, the findings on Issue No. 8 are upheld.

1. Notwithstanding the fact that the Mills was handed over to the Federation after its inspection which was operational, the plaintiff having failed to provide the essential facility of godown for storage of wheat as well as the accommodation for the staff of the defendants in terms of the agreement in addition to the failure of meeting the target of grinding the wheat as per schedule on a contractual obligation was himself defaulter and consequently the termination being the natural result, the Federation was within its right to avoid the contract through termination. The termination of contract in the present case had the effect of unmaking the same but the plaintiff without adopting the factual position on record filed the suit as a writ in water. The evidence shows that only a small quantity of wheat was grinded by the Mills and major bulk of wheat was yet to be grinded and the Flour Mills having not grinded the wheat as per schedule for regular supply to the Army Units in Pakistan to cater their need forced the Federation to make alternate arrangement Therefore, the Mills having flailed to discharge its obligation was not entitled either to the special or general damages and could claim only the amount of compensation for the grinding of the actual quantity of wheat The payment of the telephone bills relating to the period prior to the agreement was not the liability of the defendants. The commencement date of the contract was First of January, 1989, which remained enforced only for a period of about four and a half months and possession of the Mills remained with the Federation till August, 1990, therefore, payment of the telephone bills only from the date of taking over the possession of Mills till its delivery back to the Mills owner was the responsibility of the Federation.

2. The result of the foregoing discussion is that R.F.A. No. 68 of 1997 succeeds. The judgment and decree dated 19.7.1997 are set aside and the case is remitted to the learned Civil Judge for determination of the actual compensation payable to the plaintiff for the total quantity of wheat grinded by the Mills alongwith the liability of payment of telephone bills for the actual use. The amount of Rs. 60.000/- deposited by the plaintiff as security shall be returned to him alongwith the compensation referred to above, if any, to be paid to the plaintiff. The learned lower Court will make effort to dispose of the matter within two months. In the light of foregoing discussion, R.FA. No. 61 of 1997 is dismissed.

(A-A,) Case remanded.

PLJ 2000 Lahore 298

Present: karamat nazir bhandari, J.

Mst. TASNEEM KAUSAR-Petitioner

versus

H.B.F.C. through DISTT. MANAGER STREEL BAGH ROAD KASUR and another-Respondents

W.P. No. 13188 of 1998, allowed on 1.7.1999.

House Building Finance Corporation Act 1952--

-—S. 30-Constitution of Pakistan, 1973, Art. 199 r/w. Ss. 12(2), 151 & 0. 9, R. 13 of CPC-Application for sale of property mortgaged by petitioner for obtaining loan-Acceptance of ex parte-Application for setting aside ex parte order-Dismissal of-Writ against-Service was directed to be effect not in any special manner but in accordance with requirements of Order V of CPC-Respondent has not been able to show as to why other provisions of CPC, which are in accord with principles of natural justice and which go to promote and ensure proper administration of justice, should not be made applicable-It is true that petitioner could have appealed against ex-parte order U/S. 13(10) of Act, 1952 but lower Court seems to have erred in holding that this was only remedy available to petitioner— vailability of remedy of appeal does not exclude remedy of approaching Court for setting aside ex pane order, on sufficient ground, being shown-Lower Court has clearly failed to exercise jurisdiction on erroneous understanding of law-Held: Court below has jurisdiction to decide petitioner's application for recall of ex parte decree—Case remanded to Court below-Petition allowed. [P. 300] A to C

Ch. Arshad Mehmood, Advocate for Petitioner. Syed Fazal-ur-Rehman,Advocate for Respondents. Dates of hearing: 9.6.1999 and 22.6.1999.

judgment

On 13.11.1995 Respondent No. 1 filed an application under Section 30(l)(a) of the House Building Finance Corporation Act, 1952 (hereinafter referred to as the Act) for an order that the properly mortgaged by the petitioner for obtaining loan be sold and out of the sale proceeds, an amount of 2,26,320/- due from the petitioner be paid to Respondent No. 1. This application was allowed ex parte on 2.1.1996 on the ground that inspite of service through affixation, the petitioner did not enter appearance to contest the application. On or about 28.6.1997, the petitioner filed an application under Section 12(2), Order IX, Rule 13 and Section 151 of the Civil Procedure Code, 1908 (hereinafter referred to as CPC) for setting aside the ex-parte decree dated 2.1.1996. This application was contested by the respondent on the ground that the decree/order was passed under the House Building Finance Corporation Act, 1952 (hereinafter referred to as the Act; and there was no provision in the Act for such an application. The argument prevailed with the Court (Respondent No. 2) which after holding that the petitioner ought to have gone in appeal under Section 30(10) of the Act, dismissed the application on 23.6.1998. It is prayed in this Constitutional petition that the order dated 23.6.1998 be declared as without lawful authority and Respondent No. 2 be directed to decide petitioner's application n for recall of decree on merits.

1. In support of the petition, learned counsel has argued that for all purposes proceedings under Section 30 of the Act are judicial proceedings, these are conducted by a District Judge/Additional District Judge and these culminate in order which has been given the status of a decree under Sub­ section 19) of Section 30 of the Act. It is argued that merely because there is no specific provision providing for recall of the ex-parte order, does not mean that Respondent No. 2 has no jurisdiction to set aside an ex-parte order. Reliance is placed on the case of Muhammad Aslam Mirza versus Mst. Khurshid Begum (P.L.D. 1972 Lahore 603) and Mian Manzar Bashir and others versus M.A. Asghar & Co. (P.L.D. 1978 Supreme Court 231).

2. In reply, learned counsel for Respondent No. 1 has supported the impugned order by arguing that the petitioner could have challenged the ex- parte order dated 2.1.1996 by filing an appeal in this Court under Section 30(10) of the Act According to the learned counsel this was the only remedy available to a person proceeded ex-parteunder the Act

3. A detailed examination of Section 30 of the Act shows that it provides a complete although summary procedure for sale of mortgaged properly against the security of which a loan has been raised from the Corporation. Proceedings are conducted by the District Judge, which is the Court of original civil jurisdiction. Proceedings are adjudicatory in nature and subject to appeal under sub-section (10), finally decide the rights of the parties. As a consequence of the order, the mortgaged property is sold and the Corporation can realize its outstanding dues. In actual practice the District Judge conducts proceedings under Section 30 of the Act, by and large in accordance with the procedure laid down in Civil Procedure Code, 1908. As in this case the service was directed to be effected not in any special manner but in accordance with the requirements of Order V of the CPC., Learned counsel for Respondent No. 1 has not been able to show as to why e other provisions of CPC, which are in accord with the principles of natural justice and which go to promote and ensure the proper administration of just1 «, should not be made applicable.

4. In the case of H.M. Soya & Co., Karachi versus Wazir Ali Industries Ltd. Karachi and another (P.L.D. 1969 Supreme Court 65) the question before the Supreme Court of Pakistan was whether a stranger to suit was competent to file an appeal under Sections 96 and 104 of the CPC, if e was adversely affected by the order passed in a suit. It was argued that there was no provision permitting filing of appeal by the stranger. The Court held that-

"a stranger, to a suit or a proceedings is not prohibited by the Gede of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same."

1. Similarly the case of Muhammad Aston Mirza (Supra) supports the contention of the learned counsel for the petitioner. In this case the question was whether a Rent Controller acting under the provisions of Punjab Rent Restriction Ordinance, 1959, is competent to set aside ex-parte order. The matter was referred to Pull Bench and the majority decision was that the Rent Controller was competent to recall the ex-parte orders, even though there was no express provision like Order 9, Rule 13 CPC in the Ordinance. It may also be noted that in the present case the application was also made under Section 12(2) CPC. This provision in CPC incorporates a very positive and healthy principle viz. that a Court, tribunal or authority has an inherent jurisdiction to recall orders obtained from it by practicing fraud and misrepresentation. In the case of The Chief Settlement Commissioner, Lahore versus Raja Muhammad Fazil Khan and others (P.L.D. 1975 Supreme Court 331) it was held that such a power was inherently available to a court/tribunal of special or limited jurisdiction, independent of any statutory provision. There is no reason to refuse to apply this principle, to the facts and circumstances of the present case.

2. It is true, as has been held by Respondent No . 2 that the petitioner could have appealed against the ex-parte order under Section 13(10) of the Act but Respondent No. 2 seems to have erred in holding that this is the only remedy available to the petitioner. The availability of remedy of appeal does not exclude the remedy of approaching the Court for setting aside the ex-parte order, on sufficient grounds being shown. Respondent No. 2 has clearly failed to exercise jurisdiction on erroneous understanding of law.

3. For the above reasons, this petition is allowed and the impugned order dated 23.6.1998 is hereby declared to have been passed without lawful authority and of no legal effect It is further declared that Respondent No. 2 has the jurisdiction to decide the petitioner's application dated 28.6.1997 for recall of the ex-parte decree. This application shall be deemed to be pending and will now be disposed of expeditiously in accordance with law. The parties are left to bear their own costs.

(MYFK) Petition allowed.

PLJ 2000 Lahore 301 (DB)

Present:malik muhammad qayyum and jawwad S. khawaja, JJ. Syed NIZAM ALI and 2 others-Appellants

versus

GHULAM SHAH and another-Respondents

R.F.A No. 95/1999 and C.M. Nos. 10-C/98 and 2-C/99, allowed on 31.5.1999.

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

—S. 12(2) r/w. O. 23, R. 3~Suit for declaration and possession-Decreed to~ Appeal against-During appeal an application U/O. 23 R. 3 was filed by 3 appellants and general attorney of legal representatives of respondent which was allowed-Petition U/S. 12(2) CPC filed for setting aside of compromise—A power of attorney creates a fiduciary relationship between attorney and principal which requires attorney to act in the best interest of principal-Attorney was required to take care of property-His right to enter into a compromise with any person was only incidental to aforesaid power-Even otherwise, power to compromise does not by any stretch of reasoning, include power to surrender or relinquish rights without any quid pro quo-So called compromise, was not a compromise but a complete surrender-Purported compromise was also violative of main objective of power of attorney-S.M.A.A. had no authority to accept terms recorded in compromise—High Court was misled by misrepresentation made by parties-Impugned order set aside-Appeal restored-Petition allowed. [Pp. 304 &305] A to F

Mian Rafaqat All, Advocate and Mr. Taqi Ahmad Khan, Advocate for Appellant.

Date of hearing: 31.5.1999.

order

RFA 95/92 in respect of which these applications have been filed, arose out of a suit filed by Ghulam Shah against Syed Nizam All, Syed Muhammad Abbas, Syed AU-i-Muhammad (appellants in RFA 95/92) and Mst. Shah Zamani. The suit was decreed in favour of Ghulam Shah on 11.2.1992 by the Civil Judge 1st Class, Wazirabad, whereupon the aforesaid appellants filed RFA 95/92. During the pendency of the appeal, C.M. No. 2-C/97 was filed wherein it was stated that Ghulam Shah (Respondent No. 1 in RFA 95/92) had died during the pendency of the appeal. A prayer was made to bring on record the legal representatives of Ghulam Shah namely, Syed Haider Abbas, Syed Safdar Abbas, Syed Ali Abbas and Syed Akhtar Abbas. This application was allowed vide order dated 22.9.1997. Thereafter an application being C.M. No. 3-C/97 was filed in Court under Order 23, Rule 3 CPC. The application was signed by the three appellants and by Syed Muhammad Ali Abidi a purported general attorney of the above named legal representatives of Ghulam Shah Respondent No. 1. The application prayed for the acceptance of RFA 95/92 in terms of the compromise recorded therein. The salient feature of the compromise was that Syed Nizam All, Appellant No. 1, was to be declared the lawful owner of the properties listed in Paragraph No. 2 of C.M. No. 3-C/97 which were subject matter of RFA 95/92. The respondents as well as Appellants Nos. 2 and 3 surrendered their entire claim and right in the aforesaid properties in favour of Syed Nizam Ali Appellant No. 1.

1. RFA 95/92 was disposed of on the basis of the compromise and prayer contained in C.M. No. 3-C/97 vide order dated 28.10.1997 passed by a Division Bench of this Court comprised of Mr. Justice Munir A. Sheikh and Mr. Justice Dr. Munir Mughal. Before passing the aforesaid order the Court recorded the statement of Syed Nizam Ali Appellant No. 1, Syed Muhammad Ali Abidi as general attorney of the four legal representatives of Ghulam Shah and the statement of Mian Rafaqat Ali counsel for the Appellants Nos. 2 and 3. By means of the order dated 28.10.1997 the RFA 95/92 was accepted and the judgment and decree dated 11.2.1992 passed by the trial Court was modified. As a result a decree was passed in favour of Syed Nizam Ali Appellant No. 1 to the effect that he was declared owner in possession of the entire suit property and one house in Gujrat (mentioned in Paragraph No. 2 of the Order dated 28.10.1997) to the exclusion of the other parties to the appeal.

2. Ijaz Ahmed son of Muhammad Shaft has now filed an application being C.M. No. 10-C/98 under Section 12(2) CPC praying that the compromise recorded on 28.10.1997 be set aside and the appeal (RFA No. 95/92) be decided on merits. A similar application being C.M. No. 2-C/99 has been filed by Ch. Muhammad Amin with a prayer to the same effect as in C.M. No. 10-C/98.

3. Both Jjaz Ahmed and Sh. Muhammad Amin claim to have an interest in different portions of the property described in Paragraph No. 2 of rhig Court's order dated 28.10.1997. Jjaz Ahmed claims to have acquired title to a portion of the aforesaid property from Ghulam Shah through his general attorney Sh. Muhammad Iqbal. The applicant in C.M. No. 2-C/99 namely, Sh. Muhammad Amin claims that Ghulam Shah's attorney has executed an agreement to sell in his favour in respect of other properties decreed in favour of Ghulam Shah which are mentioned in Paragraph No. 2 of the order dated 28.10.1997.

4. Both the applicants have alleged that the purported compromise between the parties to the appeal was collusive, fraudulent and unauthorized. Various grounds have been set out in their applications to support their respective contentions. A joint reply has been filed to C.M. No. 10-C/98 by Syed Nizam Ali, Syed Muhammad Abbas and Syed All-i- Muhammad who were the appellants in RFA No. 95/92. No reply, however, appears to have been filed to C.M. No. 2-C/99 but learned counsel for the parties have been heard.

5. Out of the various grounds mentioned in the two applications filed respectively by Jjaz Ahmed and Sh. Muhammad Amin only two grounds relating to the authority of Syed Muhammad Ali Abidi will suffice for the purpose of disposing of C.M. No. 10-C/98 and C.M. No. 2-C/99.

6. Syed Muhammad Ali Abidi, who claimed to be the general attorney of Syed Haider Abbas, Syed Safdar Abbas, Syed Ali Abbas and Syed Akhtar Abbas, made a statement on their behalf whereby their entire rights and interest in the appeal as also the property subject matter of the appeal, were surrendered in favour of Syed Nizam Ali Appellant No. 1. The basis of the authority of Syed Muhammad Ali Abidi is a power of attorney dated 19.10.1995 executed at Amroha, District Muradabad, U.P., India. It bears the attestation of a Consular functionary of the High Commission of Pakistan in New Delhi.

7. The contents of the power of attorney are relevant. It is significant that the powers delegated to Syed Muhammad Ali Abidi, inter- alia, authorise him to take care of and preserve the property specified in the power of attorney the urdu word used being " ^Ji> ly$"- The attorney is further authorized to file suits etc., before any civil or criminal Court and to enter into a compromise " /J\\ "with any person. The applicants Ijaz Ahmed and Sh. Muhammad Amin have contended that the wording of the power of attorney did not authorize the attorney to surrender and relinquish the entire right, title and interest of his principals in the appeal and in the properties which were subject matter of the litigation between Syed Nizam Ali etc., appellants and Ghulam Shah Respondent No. 1.

8. The generally accepted and well recognized principle for interpreting powers of attorney is that the contents thereof should be strictly construed. No power or authorisation should be read into a power of attorney which is not expressly set out therein. If any authority is required for this well settled proposition of law, the cases of Muhammad Hussain vs. Bashir Ahmed (PLD 1987 Lah. 392), Haji Mitha Khan vs. Mst. Nafees Begum etc., (1995 CLC 896) and Muhammad Mehrban vs. Sadruddin & another (1995 CLC 1541) may be referred to. Additionally, it may be noted, a power of attorney creates a fiduciary relationship between attorney and principal which requires the attorney to act in the best interest of the

^principal. A party dealing with an attorney would, therefore, be imputed notice of this fiduciary overlay on an attorney's authority.

1. It is evident from the power of attorney available on record that Syed Muhammad Ali Abidi was required to take care of the property. His n right to enter into a compromise with any person was only incidental to the aforesaid power. Even otherwise, the power to compromise does not by any stretch of reasoning, include the power to surrender or relinquish rights without any quid pro quo. A power to surrender or relinquish could only have been expressly delegated by use of the word" j)^/f\\ 3 " or .some other term synonymous therewith which would unambiguously define the extent of the attorney's authority. The so called compromise, which was contained in C.M. No. 3-C/97 and which was then incorporated in the order dated 28.10.1997 was not a compromise, but a complete surrender and relinquishment of the rights of Syed Haider Abbas etc. The purported compromise was also violative of the main objective of the power of attorney whereby Syed Muhammad Ali Abidi was authorised to take care of and protect the property on behalf of his principals. Even otherwise, Syed Nizam Ali could not be the beneficiary of an agreement, which on its face, was unconscionably disadvantageous to Haider Abbas etc, knowing fully well the fiduciary capacity in which Syed Muhammad Ali Abidi was purporting to act and the limitations inhering in the said attorney as a result of such capacity.

2. In view of the aforesaid discussion, it is clear that Syed Muhammad Ali Abidi had no authority to accept the terms recorded in C.M. No. 3-C/97 or to make the statement which he made in Court on 28.10.1997.

12.' We have also noted from the above referred power of attorney that Syed Akhtar Abbas has not executed the same. The power of attorney recites that Syed Haider Abbas, Syed Safdar Abbas and Syed Ali Abbas, (who are the only executants of the same) are also general attorneys of Syed Akhtar Abbas. However, there is no document on record to establish the purported agency created by Syed Akhtar Abbas in favour of Syed Haider Abbas etc., or the extent of such authority or to show that the delegates had any power to further sub-delegate any of the powers granted to them. It is, therefore, clear from the record that Syed Muhammad AM Abidi had no authority whatsoever on behalf of Syed Akhtar Abbas, either to submit an application or to record a compromise on his behalf.

1. In view of the foregoing discussion, it is evident that the learned Bench, which passed the order dated 28.10.1997, was misled by misrepresentations made by the parties before the Court Ijaz Ahmed, as successor-in-interest of Ghulam Shah, claims a vested right in the suit property even though such interest may be hit by the rule of Us pendens if the appeal is decided against Ghulam Shah his predecessor-in-interest. On this basis he would be entitled to maintain the present application under Section 12(2) CPC to prevent him being deprived of his rights in the suit property otherwise than on the basis of a decision of RFA No. 95/92 on merits. Sh. Muhammad Amin would have a similar right although his title has not cyrstalised.

2. Syed Nizam Ali, etc., who have filed a reply to C.M. No. 10-C/98, have contended that flaz Ahmed has obtained a collusive decree dated 26.2.1992 in his own favour from the Civil Court at Wazirabad in a suit filed by him against Sh. Muhammad Iqbal the general attorney of Ghulam Shan. It is contended in the said reply that Ghulam Shah had died in 1990 and with his death the agency in favour of Sh. Muhammad Iqbal stood terminated. These facts may be relevant and could also provide a cause ef action to Syed Nizam Ali etc., to have the said decree dated 26.2.1992 set aside. However, that has no bearing on the decision of the applications C.M. No. 10-C/98 and C.M. No. 2-C/99 filed respectively by Ijaz Ahmed and Sh. Muhammad Amin.

3. In view of what has been discussed above, the aforesaid applications are allowed, the order dated 28.10.1997 is set aside and the appeal is restored to its original number. However, in order to preserve the lis the parties to the appeal as well as the applicants Jjaz Ahmed .and Sh. Muhammad Amin are directed to maintain status quo in respect of the suit properties in all respects.

(MYFK) Application allowed.

PLJ Lahore 306

Present: ItAJ'A MUHAMMAD KHUESHID, J. MUSHTAQ AIIMAD-Petitioner

versus . ABDUL HALEEM KHAN aad 4 others-Respondents

W.P. No. 12675 of 1999, heard oa 7.7.1999.

Constitution of Pakistan, 1973--

—-Art. 199-Suit for declaration-Application for producing additional evidence-Rejection of-Writ against-Matter is yet pending in trial Court and case has not yet been finally decided so as to assume finality of decision to attract constitutional jurisdiction of High Court—Even on merits in-advertence to produce documentary evidence cannot be allowed to be considered as a sufficient ground to allow production of documents which were available even at the time of institution of suit-Litigant should be vigilant and not indolent-Mere negligence on part of litigant cannot be allowed to reap a premium by him against other side which has been objecting to production of documents on ground that it was in order to delay proceedings so that aggrieved party may not be able to take possession which according to them was illegally taken away-Petition dismissed in lirnine.[P. 307] A to C

Syed Almas Haider Kazrni, Advocate for Petitioner. Date of hearing: 8.7,1999, order

This writ petition is filed in order to challenge the order dated 13.3.1999 passed by learned Civil Judge 1st Class, Kamalia, whereby, he rejected the application of the petitioner/plaintiff in a suit for declaration for producing additional evidence consisting of documents. It was observed by the learned Civil Judge while dismissing the application that the case was at the stage of arguments when the application for additional evidence was moved. This petition was moved to produce the certified copy of Mutation No. 8101 and the copies of judgment and decree of the Civil Court dated 27.3.1988 and the judgment and decree of the District Judge dated 22.5.1989 which could not be earlier produced through inadvertence. It was further observed by the learned Civil Judge that the inadvertence was not a good ground to allow the documents to be brought on record which were available at the time of institution of the suit to the petitioner/plaintiff and were never relied upon nor those copies were placed on record as required by Order XHI CPC. The belated production of those documents was allegedly to prejudice the case of the other party, and would prolong the proceedings unnecessarily. The revision petition was filed against the order of the learned Civil Judge which was also dismissed on 16.6.1999 by the learned Addl. District Judge, Kamalia on the ground that inadvertence was no cause for allowing the production of additional evidence when the same could be produced other-wise at the start of the trial.

1. I have considered the foregoing submissions and find that both the Courts below have concurred in dis-allowing the application for additional evidence by advancing cogent reasons. The matter is yet pending in the trial Court and the case has not yet been finally decided so as to assume the finality of the decision to attract the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. Even on merits, the inadvertence to produce the documentary evidence cannot be allowed to be considered as a sufficient ground to allow the production of documents which were available even at the time of the institution of the suit. The law requires that a litigant should be vigilant and not indolent while conducting the proceedings in a law Court. In the instant case, the petitioner was highly indolent to bring the documents in question on record in time although a little effort on his part would have prompted him to place those documents with the plaint at the time of institution of the suit, or atleast reliance should have been made if at all those documents were considered to be necessary for adjudication of the matter in dispute. The mere inadvertence or negligence on the part of a litigant annot be allowed to reap a premium by him against the other side which has been objecting to the production of the documents in question on the ground that it was in order to delay the proceedings so that the aggrieved party may not be able to take the possession which according to them was illegally taken away.

3. In view of the above facts, I do not find any good ground to interfere with the impugned orders in the Constitutional jurisdiction of this Court The petition is accordingly dismissed in limine.

C.M. No. 1/99. C.M. No. 2/99.

1. These petitions stand disposed of with the disposal of the main petition.

(MYFK.) Petition dismissed

PLJ 2000 Lahore 307

Present: IHSAN-UL-HAQ CHAUDHRY, J. ALTAF HUSSAIN HALLI etc.-Petitioners

versus

PROVINCE OF PUNJAB etc.»Respondents

Writ Petition No. 5725 of 1999, heard on 15.4.1999.

Punjab

Civil Servants (Appointment & Condition of Service) Rules, 1974--

—Rule 7(2)--Constitution of Pakistan, (1973), Art. 199-Notification regarding taking performance evaluation examination from English teachers-Challenge to-Rule 7(2) of Rules, 1974 is attracted at the stage of confirmation and such examination must be prescribed, but there is no provision for holding examination of type in dispute-Respondents cannot super impose terms and conditions in utter disregard of law and rules— We should first of all take into consideration interest of nation and then consider proposals from outside-We are not lacking anything but commitment and determination, "to improve lot of our people"~The day a head of department starts discharging his duty with determination, things would start improving in no time-Impugned notification set aside being illegal-Petition accepted. [Pp. 309 & 310] A to E

Mrs. Nasira Iqbal, Syed Zahid Hussain Bokhari, Ch. Alt Muhammad, Tariq Shakoor, Ch. Nseer Ahmad Bhutto, Hafiz Abdul Rehman Ansari, Mr. ArifCh. and Mahmood Ahmad Qazi, Advocates for Petitioners.

Rana Muhammad Arif, Addl. A.G. for Respondents.

Date of hearing: 15.4.1999.

judgment

It is proposed to decide Writ Petitions Nos. 5725, 5726, 6464, 6352, 6424, 5962, 5963, 6057, 6058, 6095, 6097, 6101, 6144, 6198, 6211, 6213, 6225, 6276, 6329, 6332, 6601, 6602 & 6549 of 1999 through this common judgment as the main questions of law and facts are involved.

1. The grievance of the petitioners is that the respondent has asked the petitioners and other English Teachers throughout the Province to take examination on 17.4.1999.

2. Mrs. Nasira Iqbal Advocate, learned counsel for the petitioners argued that the petitioners alongwith other have been appointed as English Teachers in a regular manner and as per letter of their appointments they are governed by the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 (here-in-after to be referred as 'Rules, 1974') as amended upto date. It is added that there was no provision, what-so-ever, either in the Civil Servant Act or Rules, 1974 for taking performance evaluation Examination. It is argued that the notification is discriminatory as the other teachers appointed in other subjects have not been made to undertake this examination. It is added that the whole exercise is illegal, mala fide and the purpose is to throw the petitioners on road and make appointments of own choice.

3. Mr. Zahid Hussain Bokhari Advocate, learned counsel for the petitioners in Writ Petition No. 6332/99 argued that the exercise is purposeless and resulted into lot of wastage of time and financial resources. It is added that there is no para meters for the examination.

4. Mr. Naseer Ahmad Bhutta Advocate, learned counsel for the petitioners in Writ Petition No. 6144/99 argued that mostly the teachers are trained and they have also done B.Ed. & M.Ed.

5. Mr. Mehmood Ahmad Qazi Advocate, learned counsel for petitioner in Writ Petition No. 6097/99 in support of contentions of the petitioners has placed reliance on Water and Power Development Authority vs. Irtiqa Rasool Hashmi and another (1987 SCMR 359), Director of Education (Schools) Lahore Region, Lahore and others vs. Muhammad Abbas (1998 SCMR 215) and Federation of Pakistan through Secretary Establishment Division, Islamabad and 2 others vs. Muhammad Raflque and others (1997 SCMR 1344).

6. On the other hand, Rana Muhammad Arif, learned Addl. A.G. argued that it is a policy matter. The purpose is only to evaluate the performance and nothing more. It is added that no adverse or punitive action would follow the examination. It is argued that all 17,000 English Teachers have been asked to take examination, therefore, it is not a ase of discrimination. It is added that the petitioners and all others were appointed on temporary basis, therefore, action can e taken against them. It is added that the examination is provided under Rule 7(2) of the Rules, 1974. Mrs. Nasira Iqbal dvocate, learned counsel for the petitioners while summing-up the arguments submitted that the position taken-up today in the mments and in the arguments on behalf of respondents is contrary to the notification issued to the petitioners to take examine. It is added that no other class of the teachers has been asked to take this i nation.

7. I have given my anxious consideration to the arguments and gone through the record. The main question for determination is whether Rules, 1974 provide for examination and if so at what stage? Learned Addl. A.G., in this behalf, has referred to Rule 7(2) of Rules, 1974 which reads as under:-

'7(1)

(2) No person shall be confirmed in a post unless he successfully completed such training and passed such Departmental Examination as may be prescribed."

It is dear from the plain reading of the said rule that it is attracted at the stage of confirmation and secondly that such training and departmental examination must be prescribed. The admitted position is that in the rules no such examination has been prescribed. Besides this there is no provision, whatsoever, for holding examination of the type in dispute. The undertaken given in the report that no adverse or punitive action would be taken on the basis of the result of this examination clearly proved that this examination is not the one provided for under Rule 7 of Rules, 1974. This also becomes clear that there is no merit in the argument that this exercise is purposeful.

1. The respondents cannot super impose the terms and conditions m utter disregard of the law and rules. They have to act and perform their duties strictly in accordance with law and rules.

2. One of the argument on behalf of the respondents was this exercise is being undertaken at the instance of World Bank. It was the duty of the respondents before undertaking such exercise to satisfy the legal requirements and also that whether it is of any use to the Nation. It is high time that we should first of all take into consideration the interest of the Nation and then consider the proposals made from out side, as the same may be either useless for our purpose or impracticable or even mala fide. This type of haphazard and unplanned effort instead of improving the system would result in further deterioration. The respondents, particularly Respondent No. 1, if serious to improve the education system for the benefit of the coming generations then has to work with missionary spirit, inspect the institutions in the far flung areas of the Province and also make his subordinates to discharge their duties honestly and diligently. The lot of the people cannot be improved by measures made while sitting in the 'temple of administration' without taking the situation at the grass root into consideration. We are not lacking anything but commitment and determination. I say with emphasize but the determination "to improve the lot of our people is the basic requirement". The day a head of the department

starts discharging his duty with a determination the things would start improving in no time. If a head of the department is of the view that he cannot reform and run the department efficiently and in accordance with the requirements of the time then he still accepts such assignment with no determination to make the system efficient then he is most dishonest person on the Earth and has no right to occupy the top slot. We should learn and follow the examples of others on the constructive side. New York about three years back known for its very high crime rate, which was attributed to social, economic and financial problems etc. The officials and citizens have accepted this indignity as their destiny. This is a matter of record that things started improving in short span of about three months with the determination of one person and all theories to justify high rate of crime started fading out. The crime rate appreciably went down. In this behalf reference can be made to an article published in Reader's Digest, June 1997 titled "Where the Police are winning". This is universal truth and not the law and order situation.

1. The upshot of this discussion is that this writ petition is accepted with no order as to costs. The result is that Notification dated 17th March, 1999 is set aside being illegal, mala fide and discriminatory.

(MYFK) Petition accepted.

PLJ 2000 Lahore 311 (DB)

Present: malik muhammad qayyum and ghulam mahmood qureshi, JJ.

DR. LIAQAT ALI--Appellant

versus

VICE-CHANCELLOR UNIVERSITY OF AGRICULTURAL FAISALABAD

etc.--Respondents

I.C.A. No. 1353 of 1998, heard on 25.5.1999.

Constitution of Pakistan, 1973-

—-Art. 199--Refusal for admission in M.Sc, Course-Writ against--Respondent was directed to give appellant admission on provisional basis through interim order-Finally writ petition was dismissed-Appeal against--Since appellant was admitted under an interim order and has completed his study, at this stage it would be inequitable and harsh to adjudicate entitlement of appellant for admission and give finding against him--Admission and completion of study under interim order was held to be taken as legal without touching appellant's eligibility for admission on merit following dictum laid down in 1997 SCMR 1845-Appeal allowed.

[P. 312] A

Mr. Ahmad Nawaz Wattoo, Advocate for Appellant. Kh. Abdul Hamid Butt,Advocate for Respondents. Date of hearing: 25.5.1999.

judgment

Ghulam Mahmood Qureshi, J.--The appellant after passing his DVM course in 1996 from the College of Veterinary Sciences, Lahore, applied for admission in M.Sc. Course on 15.11.1996 in University of Agriculture Faisalabad. He obtained 2284 marks out of 3860 and the CGPA is 2.59 in DVM Course. The above said college is affiliated with the University of Agriculture, Faisalabad. The admission was denied to the appellant on the ground that he had failed to obtain his nomination from Northern Area. Whereafter he proceeded to Gilgit (Northern Area) to get nomination as a student from that area, which was issued to him on 21.3.1997. The appellant filed Writ Petition No. 3000/97 challenging the action of the University Authorities about denial of his admission, which was dismissed on 7.12.1998. Hence this appeal.

1. Vide interim order of this Court dated 11.2.1997 the respondent was directed to give the appellant admission on provisional basis. The said interim order of this Court was made subject to final decision of writ petition filed by the appellant. Finally the writ petition was dismissed vide order dated 7.12.1998.

2. Admittedly the appellant has completed his course. The learned counsel for appellant has relied on 1997 S.C.M.R. 1845 to contend that in similar circumstances, Hon'ble Supreme Court of Pakistan did not interfere to undo the admission. In the reported case the affected person had completed four years course of MBBS under interim order.

3. The learned counsel for the University has conversely contended that since the admission was allowed to the petitioner provisionally and was subject to final decision of his Constitutional petition, which was finally dismissed, therefore, the appellant cannot take benefit of interim order, when his writ petition has finally been dismissed.

4. Since the appellant was admitted under an interim order of this Court and has completed his study, at this stage, it would be inequitable and harsh to adjudicate the entitlement of the appellant for admission and give finding against him. Without touching his eligibility for admission on merit and respectfully following the dictum laid down by Hon'ble Supreme Court in above said case, we are inclined to hold that the admission and completion of study under the interim order of this Court should be taken as legal for that purpose. This ICA is allowed. No order as to costs.

'(MYFK) Appeal allowed.

PLJ 2000 Lahore 312 (DB)

Present: malik muhammad qayyum and ghulam mahmood qureshi, JJ. ABDUL SATTAR etc.-Appellants

versus

MUHAMMAD RAMZAN etc.—Respondents

R.F.A. No. 288 of 1998, heard on 27.5.1999.

Punjab Pre-emption Act, 1991 (IX of 1991-

—S. 13~Suit for possession through pre-emption-Dismissal of-Appeal against--Talab-e-Muwathibat mean immediate demand by pre-emptor in sitting of meeting in which he has come to know of sale, declaring his intention to exercise right of pre-emption-According to statement of plaintiff himself there was delay at least of one day in making Talab-e-Muwathibat, which should have to be made before dispersal of Majlis-Judgment and decree of trial Court unexceptionable-Appeal dismissed.

[P. 315] A

1992 SCMR 1886, 1996 MLD 1415 ref.

Rana Abdul Rahim Khan, Advocate for Appellants. Mr. Muhammad YusufAsim, Advocate for Respondents. Date of hearing: 27.5.1999.

judgment

Malik Muhammad Qayyum, J.--This is pre-emptor's first appeal

from the judgment and decree of the trial Court dated 21.7.1998 dismissing their suit for possession through pre-emption against the respondents.

1. The dispute relates to 84 Kanals and 3 Marias of land situated in Mauza Kot Pindidas Tehsil Ferozewala District heikhupura which was owned by Jamil Khan and others, who alienated the same in favour of Respondents Nos. 1 and 2 in the ratio of 60 Kanal 3 Marias and 24 Kanals respectively for a sum of Rs. 5 Lacs through &registered deed of sale. The suit was instituted on 8.11.1995 and it was claimed that the pre-emptor- p lain tiff had superior right of pre-emption as they were co-sharers in the land; they had common source of irrigation and were the owners of contiguous laud. It was pleaded that the appellant-plaintiff learnt of the sale on 4.11.1995 and immediately proclaimed their intention to pre-empt the sale whereafter the registered notices were also sent.

2. The suit was contested by the respondents on various pleas inter alia that the respondents have waived their right of pre-emption; that no tclabs as required by law have been made and that the appellants-pre- ercptors do not possess superior right of pre-emption. On the pleadings of the parties learned Civil Judge framed the following issues:--

3. Whether the plaintiffs have got superior right of pre-emption? OPP

4. Whether the plaintiffs have waived their right of pre-emption? OPD

5. Whether the plaintiffs have not fulfilled the pre-conditions U/S. 13 of the pre-emption Act 1991, if so, its effect? OPD

6. Whether the plaintiffs have no cause of action and they are stopped by their words and conduct to bring this suit? OPD

7. Whether the defendants are entitled for special costs? OPD

8. Whether the sale-price is ostensible, if so, what is the market

value? OPP

1. Whether the sale-price mentioned in the transaction was fixed in good faith and actually paid? OPD

2. Relief.

3. In order to prove their case the appellants examined Bagh Ali, PW. 1, Muhammad Sarwar PW. 2, Jafar Ali PW. 3, Muhammad Azam PW. 4, Statement of Abdul Sattar one of the appellants was recorded twice once in affirmative and for the second time in rebuttal as PWs. 5 and 7 respectively. The evidence of the respondents comprises of the statements of Muhammad Hussain Patwari DW. 1, Ibrar Khan DW. 2 and Abdul Rehman DW, 3. Statements of Muhammad Ramzan and Miran Bakhsh respondents were recorded as DW. 4 and DW. 5. It may be mentioned that Respondents Nos. 1 and 2 had transferred the land in favour of their father Respondent No. 3 through Mutation No. 3086 sanctioned on 19.9.1995.

4. The learned Civil Judge after thorough appraisal of evidence on record came to the conclusion that the suit of the plaintiff was without any merit and dismissed the same. His judgment was primarily based upon his findings on Issue No. 3 under which he held that the appellants had failed to make 'Talab-e-Muwathibat'in accordance with law. The suit was dismissed on 21.7.1998.

5. Rana Abdul Rahim, learned counsel for the appellants argued with vehemence that the appellants had specifically pleaded that they came to know of the sale in a sitting on 4.11.1995 and on that very date proclaimedtheir intention to pre-empt the same. It was pointed out by the learned counsel that the appellants had examined as many as 5 witnesses to prove this fact and the findings to the contrary recorded by the trial Court were not borne out by the record.

6. We regret our inability to agree with the learned counsel. It is true that in para-4 of the plaint the appellants had specifically stated that it was on 4.11.1995 that in a meeting in the dera of Maqbool Ahmad theappellants had learnt through Muhammad Azam son of Ghulam Nabi and Muhammad Sarwar son of Muhammad Siddiq that the respondents had purchased the land and that in the same Majlis the appellants proclaimed their intention to pre-empt the sale and on the next date took alongwith them Jafar and Sarwar to the respondents and offered them consideration for the purchase of land which they refused.

7. Unfortunately for them, however, when the appellant Abdul Sattar appeared as his own witness as PW. 5 he made a contradictory statement and deposed that when he learnt in the dera of Maqbool Ahmad that the land in question had been sold to the vendees and on the next day he alongwith others went to the defendants and asserted his right of pre­ emption and asked for sale of the land to him.

8. It is significant to notice that though according to the statement of the plaintiffs own witness he came to know of the sale a day earlier but he gave out the intention to pre-empt not in the same sitting but on the next day.

9. Moreover, the appellant is contradicted in this behalf by the plaint itself wherein it was stated that on 4.11.1995 when he learnt of the sale he at once gave out his intention to pre-empt the sale but while appearing as a witness his deposition was that it was on the next day that he expressed his intention to pre-empt the sale. This inherent contradiction in the stand of all the appellants have remained unexplained. This state of evidence clearly supports the findings of the trial Court that the appellants had failed to establish through convincing evidence Talab-e-Muwathibat.

10. According to explanation to Section 13 of the Punjab Pre­emption Act, 1991 Talab-e-Muwathibatmeans immediate demand by a pre-emptor in the sitting of meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. The word immediate is of significance and clearly obviates any delay in making the demand. It is un-necessary to go into other evidence as according to the statement of the plaintiff himself there was delay at least of one day in making Talab-e-Muwathibat.In Zafar Ali vs. Zainul Abidin and another 11992 SCMR l&SQ) it was observed that the pre-emptor should immediately declare that he would exercise the right of Shufa against the sale. Such a declaration shall have to be before the dispersal of Majlis in which the plaintiff gains knowledge about the sale. To the same effect is the judgment in Akbar Khan v. Pehlwan (1996 MLD 1415). The judgment and decree of the trial Court is, therefore, unexceptionable.

In view of what has been stated above, this appeal has no merit and is, therefore, dismissed with costs.

(MYFKi Appeal dismissed.

PLJ 2000 Lahore 315

Present: jawwad S. KHAWAJA, J. GHULAM ALI-Petitioner

versus GHULAM MUHAMMAD and 3 others-Respondents

Civil Revision No. 507 of 1984, heard on 2.7.1999. Civil Procedure Code,1908 (V of 1908)--

—-S. 115--Suit for declaration-Decreed to-Appeal against-Dismissal of~ Revision against-It is well settled law that where Courts below have arrived at their findings through an erroneous process, their findings even though concurrent, are amenable to correction in revisional jurisdiction-Testimony of Patwari DW-1 has been wrongly disregarded by two Courts below and same has also been misread by lower appellate Court-Evidentiary value of Ex-D/1 has been illegally ignored-Petitioner's evidence of conduct to prove his relationship with Y has been omitted from consideration in violation of Section 50 of Evidence Act-­Lower appellate Court has based its decision on material which does not form part of record—Courts below have acted in exercise of their jurisdiction illegally-Children of a pre-deceased son or daughter of a propositus would be entitled to inheritance in place of such pre-doceitsea son or daughter-Impugned judgments set aside-Petition accepted.

[Pp. 321 & 322] A to D

Khawqja Muhammad Farooq, Advocate for Petitioner. Mrs, Farzana Shehzad, Advocate for Respondents. Date of hearing: 2.7.1999.

judgment

The matter in contention between the parties relates to the estate of one Yasin (deceased) comprising of land measuring 470 Kanals 16 Mariassituated in Mauza Faqirian. Tehsil and District Gujrat, more fully described in the plaint filed by the respondents.

1. The respondents namely Ghulam Muhammad, Nazir Ahmed, Mst. Fatima and Mst. Rasoolan, are the sons and daughters respectively of Yasin. It is their case that they are the only heirs of Yasin and as such, they alone are entitled to inherit his estate. The respondents further claim that Mutation No. 1352 dated 28.8.1979, which shows Ghulam Ali petitioner as legal heir to the extent of l/7th share in Yasin's estate, was illegally procured by Ghulam Ali with the connivance of the revenue staff. It is the respondents' contention that Ghulam Ali is the son of Mst.Daulan and has no relationship with Yasin. Ghulam Ali, on the other hand, claims that in addition to the respondents, Yasin had a daughter named Mst. Khadija who died during Yasin's lifetime. The petitioner claims to be the son of Mst. Khadija from her marriage with Abdullah. According to the petitioner, his father Abdullah married Mst. Daulan after the death of his mother Mst. Khadija during his infancy. He asserts that he is not the son of Mst. Daulan as alleged by the respondents.

2. Based on the pleadings, the trial Court framed the following threeissues:

3. Whether Mst. Khadija was any daughter of Yasin deceased andif proved, whether defendant was her son? OPD

4. If Issue No. 1 is proved whether the defendant is entitled toinherit the estate of Yasin deceased?

5. Relief.

6. The parties produced witnesses and also adduced documentary evidence in support of their respective contentions. Barring Khan Muhammad, Patwari, who appeared as DW-1, the other witnesses are the parties themselves or their relatives. These witnesses appear to be partisan and suppor the claims of the parties respectively producing them. The trial Court held that the oral evidence produced by the parties, was evenly balanced and this, indeed, appears to be the position except for two material circumstances. Firstly, it is important to note that Khan Muhammad, Patwari, who had entered the report proposing the mutation of Yasin's estate, was an independent witness whose testimony, discussed shortly bears the mark of a truthful witness. Secondly, there is an aspect of the petitioner's testimony, considered below, which is relevant but has been disregarded by the Courts below.

7. Khan Muhammad appear as DW-1 and deposed that he was the Patwari for Mauza Faqirian and that he had entered the report of Yasin's death and the pedigree table in respect of Mutation No. 1352. The said mutation is on record as Ex.D-1, Khan Muhammad further testified that it was on the basis of information given by Nazir plaintiff (Respondent No. 2 herein) that his Report No. 336 and the pedigree table had been entered by him in respect of the said mutation. He has been cross-examined and his cross-examination establishes him to be a credible, honest and truthful witness. He has neither hedged his testimony nor did he attempt to conceal or cover up the discrepancies in his report relating to the mutation. He acknowledged that Report No. 336 dated 9.7.1979 was entered by him in the rozenamcha in which initially the name Nazir Hussain as son of Yasin had been entered. He admitted that the name Hussain had been scored off and the name Ahmed had been substituted instead. He further admitted that the crossing out was not done by him and also that the mutation was not sanctioned during his tenure as Patwari. The entire cross-examination is directed towards the discrepancy between the name Nazir Hussain entered in Report No. 336 and its change to Nazir Ahmed. The cross- xaminationhas no: undermined the clear and unambiguous statement made by Khan Muhammad that it was the plaintiff Nazir (Respondent No. 2 herein) at hose instance the pedigree table was recorded by him on Ex.D-1. Khan Muhammad's testimony read with Ex.D-1 would be sufficient to prove an admission on the part of Nazir Ahmed that Ghulam Ali's mother Mst. Khadija was the daughter of Yasin.

8. I now refer to the testimony of Ghulam Ali which has been disregarded by the Courts below on the ground that he was an interested witness and also that he was only an infant when Mst. Khadija died and, as such, he was not in a position to give evidence of his relationship with Mst. Khadija or of her relationship with Yasin. The Courts below have not given any weight to his statement that he was brought up after his mother's death by his maternal grandmother Mst. Rabia who was the wife of Yasin and mother of Mst, Khadija. This testimony establishes conduct which is probative of the relationship between him and Yasin because of Ms£ Rabia, who was unrelated to Mst. Daulan would have had no reason to bring-up Daulan's son. On the other hand her house would be the natural sanctuary for her daughter's son, particularly, in view of Abdullah's second marriage to Daulan. Ghulam Ali petitioner has not been cross-examined on this aspect of his deposition although it would have been fairly straightforward for the respondents/plaintiffs to shake this testimony through questioning relating to Mst. Rabia and her household. They could also have sought the opportunity to lead evidence to negate Ghulam Ali's testimony. They, however, failed to do so. The fact, therefore, that Ghulam Ali was brought up by Mst. Rabia, the wife of Yasin, stands proved on the record. This fact itself would be relevant as conduct under Section 50 of the Evidence Act for the purpose of establishing Ghulam Ali's relationship with Yasin. At this juncture, I should add that learned counsel for the petitioner wanted the Court to attach probative value to the testimony of Mst. Daulan and Abdullah (who appeared as the petitioner's witness) under Section 50 of the Evidence Act. This contention, however, is misconceived because the statements of these witnesses do not relate to conduct.

9. I next advert to the mutation itself which, as noted, is Ex.D-1 on the record of the trial Court. It contains the pedigree table showing Ghulam Ali petitioner as the son of Mst. Khadija and Mst. Khadija as daughter of Yasin alongwith the respondents as sons and daughters respectively of Yasin. The fact that the mutation was sanctioned in a Jalsa-e-Aam is not denied by the respondents. In fact, their witnesses confirm that such Jalsa-e-Aam was held. They only deny that the mutation was sanctioned on the basis of oath taken by the Lambardar and other residents of the village, on the Holy Qur'an. The proceedings relating to Mutation No. 1352, starting from Report No. 336 made by the patwari on 9.7.1979 and ending with the sanction of the said mutation on 28.8.1979 are instructive. The order of the sanctioning officer records that the sons of Yasin namely Ghulam Muhammad and Nazir Ahmed have stated that Ghulam Ali is not the son of Mst. Khadija but is the son of Mst. Daulan while Ghulam Ali is recorded as claiming on oath on the Holy Qur'an that he is the son of Mst. Khadija. Other persons at the proceedings in the Jalsa-e-Aam including Allah Bukhsh, Lambardar, are shown to have sworn on the Holy Qur'an that Ghulam Ali petitioner was, in fact, the son of Mst. Khadija daughter of Yasin, and that Mst.Daulan was not his mother. It was on the basis of such statements recorded in the ordinary course of official work that the Mutation No. 1352 was sanctioned by the Assistant Collector. It is worth noting from these proceedings that the only controversy which came-up before the Assistant Collector during the aforesaid proceedings, was whether Ghulam Ali was son of Mst. Khadija or of Mst.Daulan. The contention that Mst. Khadya was not a pre-deceased daughter of Yasin, does not find any mention in the proceedings leading to the sanction of the aforesaid mutation. The register of mutations is an official register required to be maintained under the provisions of the Land Revenue Act. The functionaries of the Revenue Department are obliged, in the discharge of their official duties, to make entries in accordance with Section 42 of the Land Revenue Act relating to matters of inheritance and devolution of the properties of a deceased owner, in the process of sanctioning mutations. Consequently, by virtue of the provisions contained in Section 35 of the Evidence Act entries made in the register of mutations, relating to a fact in issue or relevant fact, would by themselves be relevant facts which could be proved and read in evidence. The entries in Ex.D-1, therefore, constitute valid evidence in respect of the facts in issue in the present case. In brushing aside Ex.D-1 and ignoring its contents the Courts below have acted illegally.

10. The evidence of conduct in Ghulam Ali's evidence and the estimony of Khan Muhammad, Patwari, which clearly identifies Nazir espondent No. 2 as the source of his information relating to the heirs of Yasin, coupled with mutation Ex.D-1 and the official entries and proceedings leading to the sanction of the mutation, in my opinion, clearly establish Mst. Khadija to be the daughter of Yasin and Ghulam Ali to be the son of Mst. Khadija. On this basis, therefore, Ghulam Ali would be entitled to inherit l/7th share of Yasin's estate.

11. The trial Court has decided Issue No. 1 on premises which are wholly untenable in law. The proceedings, leading to the mutation, have been discarded by the trial Court in a cursory manner by holding that it was a result of a summary procedure and, therefore, much reliance could not be placed on it. The testimony of Khan Muhammad, Patwari, has been disregarded merely on the basis of his cross-examination wherein he admits that the name of his informant, originally mentioned in the mutation, was Nazir Hussain but thereafter was changed to Nazir Ahmed. It is on this basis that the trial Court concluded that Nazir Ahmed had not provided the information and pedigree table which finds mention in the mutation itself. The trial Court has not relied on the categorical deposition made by Khan Muhammad identifying Nazir plaintiff (Respondent No. 2 herein) as the source of his information on the basis of which he entered Report No. 336 and the pedigree table on the Mutation Ex.D-1. This clear statement by Khan Muhammad who, as noted above, is an independent witness, has only been countered by Nazir Respondent No. 2 who appeared as PW-3 and stated that he had not furnished any particulars in relation to the mutation to Khan Muhammad, Patwari. It is strange, indeed, that the trial Court has relied on the statement of the plaintiff himself as against the statement of an independent witness whose testimony as to the identity of Nazir plaintiff as informant, has not been shaken or undermined through cross-examination.

12. The reasoning of the lower appellate Court while considering and discarding the testimony of Khan Muhammad is also erroneous and legally untenable as discussed next.

13. The lower appellate Court has concluded that the Mutation Ex.D-1 shows that it was got recorded by one Nazir Hussain. This, however, is not correct. As discussed above, Khan Muhammad DW-1 has identified the plaintiff as the person at whose instance the entries relating to the heirs of Yasin, were made. The correct reading of Ex.D-1, in the light of the testimony of Khan Muhammad, Patwari, would be that it was the plaintiff Nazir who furnished the requisite information to the Patwari but his name was erroneously recorded as Nazir Hussain instead of Nazir Ahmed. By holding that one Nazir Hussain had got the mutation recorded, constitutes misreading of evidence. It is to be noted that it is neither party's case that some stranger by the name of Nazir Hussain provided the requisite information to Khan Muhammad. The case of the respondents is that Ghulam Ali had connived with the revenue staff to fraudulently procure Mutation No. 1352. In these circumstances, the finding of the lower appellate Court that one Nazir Hussain and not Nazir Ahmed provided the basis for the mutation Ex.D-1, is not sustainable.

14. The lower appellate Court also has relied on the statement of Nazir Ahmed plaintiff as opposed to the independent testimony of Khan Muhammad, Patwari DW-1. The learned Additional District Judge has further held that there is nothing in the proceedings recorded on the mutation register to show that the plaintiffs ever admitted that Mst. Khadija was the daughter of Yasin. The plaintiffs, according to the appellate Court, had denied this fact. It is evident from the proceedings esulting in the mutation that there is no denial by the plaintiffs of the first that Mst. Khadija was a daughter of Yasin. The only controversy finding mention in such proceedings was that the plaintiffs/respondents denied that Ghulam Ali was the son of Mst. Khadija. They asserted that he was the son of Mst. Daulan. This constitutes further misreading of the record by the lower appellate Court. The lower appellate Court has further asserted that "there is not a single independent witness to corroborate the testimony of the defendant". This observation is obviously incorrect as Khan Muhammad is an independent witness unrelated to the parties.

15. However, the most blatant error committed by the lower appellate Court is its reliance on a pedigree table which has not been exhibited in evidence. It is on the basis of this document that the Court below has come to the conclusion that Mst. Khadija is the daughter of Abdullah and not of Yasin. The lower appellate Court, as such, has committed material irregularity in the exercise of its jurisdiction.

16. The main contention of the learned counsel for the respondents was that Issue No. 1 was an issue of fact and the two Courts below had concurrently concluded that Mst. Khadija was not the daughter of Yasin. She, therefore, argued that this Court in revisional jurisdiction should not interfere in the concurrent findings of the two Courts below. In support of her contention she cited a chain of authorities which it is not necessary to discuss in detail because the general proposition of law stated by her is well established. Learned counsel for the respondents, in particular, made reference to the cases titled Muhammad Swaleh etc. vs. M/s. United Grain & Fodder Agencies (PLD 1964 SC 97), Ali Muhammad vs. Mst. Zahida Parveen (1992 CLC 2328), Muhammad Bux vs. Muhammad Mi (1984 SCMR 504) and Malik Faiz Alam vs. Malik Muhammad Arshad Khan and another (PLD 1986 SC (AJK) 64). I have gone through the said precedents and am in respectful agreement with the principles of law enunciated therein. The cited cases do not propound a mechanical rule to be adhered to in all cases regardless of the legality of the findings impugned in revision.

17. It is well settled law that where the Courts below have arrived at their findings through an erroneous process or by ignoring statutory rules of evidence or by reasoning which is not legally tenable, their findings even though concurrent, are amenable to correction in revisional jurisdiction. It is equally well settled that where there has been misreading or non-reading of evidence or where a Court deciding a question of fact relies on material hich does not form part of the evidence on record, its findings are not sacrosanct merely because such findings affirm or are affirmed by another Court, It would indeed be perverse to hold that a party wronged by one of the Courts below for any of the aforestated reasons, would be entitled to redress in revisional jurisdiction but a party wronged by both Courts would no: The only concurrent findings which in my humble opinion, will fall beyond the pale of revisional jurisdiction, would be those where the Court in revision concludes that the Courts below have acted legally in all respects while deciding the issues before them but have reached a conclusion different from the one which commends itself to the revisional Court. Concurrent findings on questions of fact will thus, not be interfere with in re visional jurisdiction only where such findings are arrived at legally and without material irregularity. In the present case, the decisions of the two Courts below recorded by them on Issue No. 1 do not meet the aforesaid cntc n.di

18. To sum up, the conclusions to be drawn from the above discussion are that (i) the testimony of Khan Muhammad, Patwari DW-1 has been wrongly disregarded by the two Courts below and the same has also been misread by the lower appellate Court; (ii) the evidentiary value of Ex-D-1 has been illegally ignored; (iii) Ghulam Ali's evidence of conduct to prove his relationship with Yasin has been omitted from consideration in violation of Section 50 of the Evidence Act and (iv) the lower appellate ourt has based its decision on material which does not form part of the record. In committing the foregoing errors, the Courts below have acted in the exercise of their jurisdiction illegally and with material irregularity. The findings of the two Courts below, therefore, are subject to correction in the exercise of revisional jurisdiction. I, therefore, have no hesitation in reversing the indings of the two Courts below and in holding that Issue No. 1 stood proved on the record in favour of Ghulam Ali petitioner/defendant.

19. 1 next come to Issue No. 2. The respondents had in their suit alleged that Ghulam Ali would not be entitled to inheritance in the estate of Yasin, even if Issue No. 1 was to be decided in favour of Ghulam Ali. This averment was based on a misconception as to the provisions of Section 4 of the Muslim Family Laws Ordinance. The said law stipulates that the children of a pre-deceased son or daughter of a propositus would be entitled to inheritance in place of such pre-deceased son of daughter. The trial ourt, 1therefore, rightly held that Ghulam All would inherit l/7th share in the estate of Yasin, if Issue No. 1 was decided in his favour. In the present proceedings, learned counsel for the respondents did not, indeed could not, dispute the legal position set out in the judgment of the trial Court.

20. In view of the above discussion, this revision petition is accepted and the judgment and decree of the trial Court dated 29.7.1981 and that of the lower appellate Court dated 11.1.1983 are set aside. As a consequence, the suit filed by the respondents is dismissed with costs throughout.

(MYFK) Petition accepted.

PLJ 2000 Lahore 322 (DB)

Present: RASHTO Aziz khan, C. J. and faqir muhammad khokhar, J.

COLLECTOR OF CUSTOMS, (Preventive) CUSTOM HOUSE LAHORE-Appellant

versus

Hqji FAZAL DIN and 4 others-Respondents

Customs Appeal No. 51 of 1998, decided on 7.6.1999.

Customs Act, 1969 (IV of 1969)-

—Ss. 156, 168, 171, 179 & 180-Cnfiscation of foreign gold from respondent's possession-Respondents were ultimately acquitted hy special judge customs—Appellate Tribunal Customs drew conclusion that gold rennies were not of foreign origin-Validity-Criminal proceedings before Court and confiscation proceedings before customs authorities were concurrent, independent and mutually conclusive—Question as to whether any seized goods were to be returned to persons from whose possession they were seized has to be decided by customs authorities and not by customs judge-Gold rennies admittedly have inscription/ embossing showing them to be of foreign origin-Respondents, failed to show by producing any documentary or other evidence to discharge initial burden that gold in question, had been achieved by process or other means having been employed in Pakistan-In absence of any evidence to the contrary, collector of customs was justified to draw inference that gold rennies were of foreign origin and were smuggled goods-A.S.I on partrol duty was justified in making search and arrest of respondent being Police Officer on patrol then reported the matter to officer incharge of Police Station concerned who conducted formal proceedings of seizure of goods in accordance with Sections 158, 161, 168 and 170 of Customs Act 1969-Order passed by Appellate Tribunal was set aside and that of Collector of Customs ordering seizure of goods was restored. [Pp. 324 & 325] A, B & C

1987 PCr.LJ 1789; PLD 1989 SC 377; 1997 SCMR 348; PLD 1986 SC 192; PLD 1969 SC 446; 1969 SCMR 208; PLD 1970 Pesh. 66; 1980 SCMR 114; PTCL 1994 CLC 322 (S.C.)

Mr. A. Nasim Malik, Advocate Legal Advisor of Customs for Petitioner.

Mr. Muhammad Hussain Ch., Advocate for Respondents. Date of hearing: 7.6.1999.

judgment

Faqir Muhammad Khokhar, J.--The officials of Police Station, Nawankot. Lahore, intercepted a Suzuki Van No. 87-Karachi-86 on 2.1.1988. The Respondents Nos. 1 to 5 were found to be its occupants. On search, 200 rentes of gold each weighing 10 tolas were found with inscription/ err. bass ing of the foreign origin. An ASI Lai Din reported the matter to the 5HG concerned. A case FIR No. 7/1988 dated 2.1.1988 under Sections 15c 1 59 157(2) of the Customs Act, 1969, was registered at the said Police Siiucn. The gold rennies were formally seized by the Inspector/S.fLO. A sh:•\•-cause notice dated 21.2.1988 was also issued to the Respondents Nos. 1 :,: 5 for confiscation.

'2 The Collector of Customs by order dated 3.5.1988 confiscated the >j_d t:id by imposing a penalty of Rs. 200,000/- each on all the five respondents. The appeal of the respondents was disposed of by order dated 27 2 1990 by the Member (Judicial), Central Board of Revenue, Karachi. The case was remanded to the Collector for a fresh decision after affording the respondents due opportunity to examine the members of the seizing agency cuad the witnesses of the case. Simultaneously, the respondents were tried and acquitted by judgment dated 10.10.1991 passed by the learned Special Judge (Customs), Lahore, by accepting their application under Section 265-K Cr.P.C. The case was re-decided by the Collector of Customs, Lahore, who by order dated 9.12.1995 confiscated the gold in question under Section 156(1X89) of the Customs Act, 1969. The Suzuki Car used for the purpose of carriage of the gold was also confiscated under Section 157(2,\ ibid with an option to its lawful owner to pay a fine of Rs. 10.000/- in lieu of confiscation of the vehicle. The respondents filed an appeal from order dated 9.12.1995 of the Collector of Customs, Lahore, which was accepted by the impugned judgment dated 20.5.1998 passed by the learned Customs, Central Excise and Sales Tax Appellate Tribunal, Islamabad.

1. The learned counsel for the appellant-Department argued that ASI Lai Din was the complainant who reported the matter to the SHO being Incharge of the Police Station. The gold rennies of foreign origin were actually seized by the appropriate officer of the police to which no exception could be taken. It was further submitted that the SHO being an officer not below the rank of Sub-Inspector was authorised in this behalf by virtue of Notification No. PRO 913(l)/86 dated 5.10.1986 issued by the Central Board of Revenue under Section 6 of the Customs Act, 1969. The learned counsel relied on the case of Raza A. Khan, Deputy Attorney-General, Peshawar v. Reghzi Gul (1987 P.Cr.L.J. 1789) (Peshawar) in support of his contentions.

2. On the other hand, the learned counsel for the respondents argued that it was Lai Din, ASI of Police who had seized the gold of the respondents and that under the SRO dated 5.10.1986, only an officer of the rank of Sub-Inspector and above could exercise the powers under Sections 158, 160, 161(1) and (2), 164, 165, 168(1) and (3), 172 and 174 of the Customs Act, 1969. It was further submitted that the mere fact that the goldrennies bore the foreign marking was not conclusive evidence of smuggled goods liable to confiscation. It was contended that the learned Special Judge (Customs), had already acquitted the respondents by accepting their application under Section 265-K Cr.P.C. Reliance was placed on cases ofFederal Government of Pakistan and others vs. Muhammad Sarwar (PLD 1989 SC 377) and Government of Pakistan through Secretary Finance, Islamabad and 3 others v. Abdul Majeed (1997 SCMR 348).

3. We have heard the learned counsel for the parties at length. The learned Appellate Tribunal below seems to have been swayed primarily by judgment dated 10.10.1991 of the acquittal of the respondents by the learnedSpecial Judge (Customs) under Section 265-K Cr.P.C.. The learned Tribunal rew conclusion as if the gold rennies were not of foreign origin. No effort was made nor any challenge was thrown by the respondents to show that the gold rennies were of municipal and not of foreign origin.

4. It is now well settled that the criminal proceedings before the Court and the confiscation proceedings before the Customs authorities are concurrent, independent and mutually exclusive. The other question as towhether any seized goods are to be returned to the persons from whose possession they were seized is to be decided by the Customs authorities and not by the Customs Judge under Sections 156(1X89), 168, 171, 179 and 180 of the Customs Act, 1969. Reference may be made to the cases of CentralBoard of Revenue and another v. Khan Muhammad (PLD 1986 SC 192), Adam v. Collector of Customs, Karachi and another (PLD 1969 SC 446), Mosam Khan and others v. The State (1969 SCMR 208) and The State v. Ghulam Jaffaretc. (PLD 1970 Peshawar 66) (F.B.).

5. The gold rennies admittedly bore the inscription/embossing showing them to be of foreign origin. The assay report of the Pakistan Mint had confirmed the purities of the gold as 999.00 per thousand pails. The respondents failed to show by producing any documentary and/or other evidence to discharge initial onus of proof that the gold in question had been achieved by process or other means having been employed in Pakistan. This was necessary in view of the provisions of Section 2(s), sub-section (1) Clause (89) and sub-section (2) of Section 156 of the Customs Act, 1969. In the absence of any evidence to the contrary, the learned Collector of Customs was justified to draw an inference that the gold rennies were of foreign origin and were smuggled goods. In the facts and circumstances of the case. " The question of the discharge of burden of conclusive proof hy the Customs Department as to the foreign origin of the goods did not arise.

6. We find that A.S.I, on patrol duty, was justified, in the situation, to take steps in making search and arrest of the respondents being a police iScer hy virtue of the provisions of Sections 51, 54 and 550 Cr.P.C. He reported the matter to the Inspector/Incharge of the Police Station who conducted the formal proceedings of seizure of the goods as required by the previsions of Sections 158, 161(1), 168(1) and (3) and 170 of the Customs _ Act. 1969, Reference may be made to the cases of Abdur Rauf Khan v. C:..-:rjr. Central Excise & Land Customs, Peshawar and 3 others (1980 SCNS 114) and State through Deputy Attorney-General, Peshawar v. Banda G~. zr.d 2 others (PTCL 1994 CL. 322) (S.C.) wherein it was held that the ~: ~ -s.er.Tce of notice under Section 171 of the Customs Act was not fatal to trie prosecution and seizure of contraband goods, if recoveiy memo menu: rung grounds of seizure was furnished to the accused. Needless to add "-".a: any officer of police the rank of Sub-Inspector is empowered by ~.;\i~Cation dated 5.10.1986 by the Central Board of Revenue to discharge .». the functions of\officers of Customs under the provisions of Sections 158, 1:0 161 is and (2), 164, 165, 168(1) and (3), 172 and 174 of the Customs A:t No e:sception could, therefore, be taken to the validity of seizure and subsequent proceedings/order dated 9.12.1995 of confiscation of goods by the Celector of Customs.

9 For the foregoing reasons, we accept the appeal and set aside the impugned judgment dated 20.5.1999 passed by the learned Customs, Central Lx:ise and Sales Tax Appellate Tribunal. Resultantiy, the order dated 5 12.1935 passed by the Collector of Customs shall hold the field. There shall be no order as to costs.

i A,A.1Appeal accepted.

PLJ 2000 Lahore 325

Present: nasim sikandar, J. MUHAMMAD ASLAM-Petitioner

versus

MUHAMMAD IBRAHIM etc.-Respondents

Civil Revision No. 561 of 1991, dismissed on 26.8.1999.

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

—S. 115-Suit for damages for malacious prosecution-Dismissal of~Appeal again-Acceptance of-Revision against-Enmity between parties, nomination of accused/respondent in FIR, their arrest or imminent threat; grant of bail by Court, submission of challan by police and acquittal of accused for aforesaid reasons are established on record- Therefore, subjective state of mind of petitioner could only be judged if he had opted to stand test of cross-examination which he avoided without any explainable reason-After previous enmity between parties had been admitted, it was for defendant/petitioner to establish "reasonable and probable cause" to prosecute—First appellate Court considered issue involved in perspective of evidence-No case for interference made out-­ Petition dismissed. [Pp. 328 & 329] A to C

PLD 1994 SC 476,1999 SCMR 700 ref.

Mr. Maqbool Elahee Malik, Advocate for Petitioner. Miss Farzana Shahzad Khan, Advocate for Respondent. Date of hearing: 8.7.1999.

judgment

Through this single order, I intend to dispose of Civil Revisions Nos. 561, 562, 563, 564, 565 and 566 of 1991.

1. The respondents in the above petitions on 20.9.1982 filed suits for damages for malacious prosecution to the tune of Rs. 25,000/- each. In the plaints submitted before the Civil Court, Shakargarh, it was inter-alia stated that they were agriculturists and educated persons coming from respectable families; that they were known to a gentleman Sahib Din son of Ibrahim with whom they had old relations; that the petitioners alongwith the afore­ said gentleman were present in the premises of Civil Court, Shakargarh when defendant got them arrested in a false case registered at his instance as FIR No. 54/81 for offences under Sections /434/148/149/506/323 of PPC. It was claimed that the some of the petitioners were arrested and humiliated at the hands of the police at the instance of the defendant and that they could secure their release only after remaining under detention for five days while the others had to get bail before arrest. It was further claimed that on the basis of an observation made by this Court, an application was filed under Section 249-A Cr.P.C. before Assistant Commissioner, Shakargarh which succeeded and the petitioners were discharged on 22.9.1981. The plaintiffs lastly alleged that they were prosecuted with a mala fide intention and without any legal justification and therefore were entitled to damages.

2. The suits were resisted on legal as well as factual basis. While the registration of the aforesaid case and the acquittal of the accused by Assistant Commissioner, Shakargarh was not disputed, it was claimed that mere acquittal on technical grounds did not entitle them to any damages. It was affirmed that the incident attracting punishments under the said provisions of PPC as reported to Police had actually happened and therefore the entitlement of the petitioners to any damages was contradicted.

3. On the pleadings of the parties issues were framed and their evidence recorded. The learned trial Court by way of its judgment and decree dated 17,12.1987 decided Issues Nos. 5 against the plaintiffs holding that they were not entitled to the decree prayed for. Earlier the learned trial Court expressed the opinion that all ingredients of malarious prosecution did not co-exist in the case of the plaintiffs and therefore they were not entitled to the decree prayed for. In the view of the trial Court, the plaintiffs had failed to prove want of reasonable and plausible cause or malice on the part of the defendant in prosecuting them as the damages caused on account of such prosecution. On the consideration of the evidence produced by the panics it was resolved that no damage to reputation of the plaintiffs was established and that the evidence produced by the plaintiffs lacked any weight or force.

4. The plaintiffs present-respondents however partly succeeded in appeal. The learned Addl. District Judge, Sialkot on 13.3.1991 allowed their suits to die extent of Rs. 5,000/- each as damages. In the process he found that all necessary ingredients of malicious prosecution were present in the cases before him. These ingredients being, that plaintiffs were prosecuted on criminal charge, that the prosecution terminated in their discharge, that prosecution terminated in their favour and that it was without reasonable an d probable cause. While finding for the plaintiffs the learned first appellate Court opined that bona fide belief of the defendant in getting the criminal case registered was subjective state of his mind but nevertheless the preserve of the reasonable and probable cause had to be adjudged objectively considering all aspect of the case. It was noted that the prosecution witnessessupported the plaints in all the material aspects and that the accused in the case were victimized and harassed on account of their enmity and that the case was a result of pre-meditation, consultation and deliberation. The learned first appellate Court finally concluded that there was no reasonable and probable cause for the prosecution of the plaintiffs on the aforesaid criminal charges which were motivated by malice. The learned first appellate Court also made a pertinent note of the fact that the defendant did not appear in the witness box to stand the test of cross-examination. Hence the award of damages to the tune of Rs. 5,000/-.

5. Parties have been heard.

6. Learned counsel for the petitioner vehemently contends that the first appellate order is not, sustainable at law inasmuch as it was totally based upon the acquittal order earlier recorded by the Assistant Commissioner, Shakargarh, In the view of the learned counsel mere factum of discharge of acquittal was not a good ground to award damages formalicious prosecution. According to him a reasonable and probable cause being available in the present case no damages could be awarded against the defendant/present petitioner. In this regard he refers to the fact that the police after proper investigation put up a challan against the accused and, therefore, it could not be said that either the incident did not happen at all or that plaintiffs were named in the FIR solely on account of there being an enmity between the parties. To support part of his contentions, learned counsel relies upon a reported judgment of 22nd June, 1883 by Court of Appeal Queens Division Bench in re: Abrath v. The North Eastern Railway Company.

7. Learned counsel for the respondent however, supports the impugned order. She claims that all essentials of malicious prosecution were present in this case and that the defendant prosecutor himself having avoided to take the test of cross-examination, the argument of lack of reasonable and probable cause could not be granted.

8. I will agree. A reasonable and probable cause as rightly found by the learned first appellate Court besides emerging from various physical situations also relates to condition of mind of the prosecutor at the particular time. The enmity between the parties, nomination of accused in the FIR, their arrest or imminent threat; the grant of bail by the Court, submission of challan by police and acquittal of the accused for the aforesaid reasons are established on record. Thereafter subjective state of mind of the petitioner could only be judged if he had opted to stand the test of cross-examination which he avoided without any explainable reason. Therefore, the presence of a reasonable and probable cause as evident from the aforesaid physical and perceptible aspects could conveniently be taken into account to know the state of mind of the defendant-prosecutor. In re: Mst. Khair-un-Nisa versus M. Ishaque (PLD 1972 S.C. 25), their Lordships referred with favour a judgment of Peshawar High Court reported as re: Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1959 (W.P.) Peshawar 81). In that case their Lordships observed that it was a boundend duty of a party personally knowing circumstances of the case to give evidence on his behalf and to submit to cross-examination. Further that non-appearance of a party as a witness would be strongest possible circumstance going to discredit the truth of his case.

9. Learned counsel for the petitioner is not correct in alleging that the impugned order is totally based upon the reason that the plaintiffs had been acquitted of the charge. As observed earlier the learned first appellate Court did take that fact into consideration but it would not be correct to say that the order allowing damages was solely based upon the said acquittal order. The view adopted by the first appellate Court finds support from re: Abdul Rauf v, Abdul Razzak and another (PLD 1994 SC 476) wherein their Lordships discussed the essentials to be established by a plaintiff in case of malicious prosecution. While explaining the term "malice" in malicious prosecution their Lordships observed that it was not spite or hatred against any individual but of malus animus and denotes the working of improper and indirect motives. Further that proper motive for a prosecution is the desire to secure the ends of justice and it should be show that the defendant was not actuated by such desire but by his personal feeling.

10. In a most resent judgment of the Supreme Court re: Subedar (Retd) Fazale Rahim v. Rob Nawaz (1999 SCMR 700) their Lordships re- affirmed their earlier view as far the factors in re: Abdul Rauf (Supra) were concerned which in the opinion of their Lordships needed to be proved by the plaintiff for a decree for malicious prosecution. All these factors appear available in this case.

11. As against the finding of the first appellate Court, the trial Court appears to have looked at things too casually. Its observation that the plaintiffs failed to prove want of reasonable and proable cause or malice was against the record. In fact the suits of the plaintiffs were rejected by using general remarks and without considering even the admitted facts. On the other hand, learned first appellate Court as observed earlier, considered the issue involved in the perspective of the evidence, the judgment of the acquitting Court as well as the fact that defendant had failed to stand the test of cross-examination. The case relied upon by the learned counsel for the petitioner is clearly distinguishable where the core issue remained direction of the Judge to the Jury to find whether the defendants had taken reasor-able care to appraise themselves of the facts of the case and whether they honestly believed in the correctness of the case which they laid before the Magistrate. In this case all necessaiy ingredients as discussed above by the:r Lordships in the case re: Abdul Rauf (Supra) were fully established on record After the respondents/plaintiffs had brought home enmity between the parties, the arrest and final acquittal read with the reasons of the acquittal order of the Magistrate the burden on them stood discharged. It may be noted that after previous enmity between the parties had been admitted it was for the defendant to establish the "reasonable and probable cause" to prosecute. The respondent having failed to assail discharge order or otherwise to bring home any reasonable and probable cause for the prosecution the impugned orders still appear favourable to him as the appellate Court, allowed only part of claimed damages.

12. No case for an interference having been made out, this revision shall be dismissed.

I }<. 1YF KI Petition dismissed.

PLJ 2000 Lahore 329

Present: shaikhabdur razzaq, J. MUHAMMAD YAR-Petitioner/Defendant

versus Mst. IFFAT SULTANA-Respondent/Plaintiff

C.R. No. 238 of 1995, heard on 2.6.1999.

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

—S. 115-Sale of land-Suit for declaration claiming that said sale is result of fraud-Dismissal of-Appeal against-Acceptance of—Revision against- Initially suit was filed through general attorney--But neither he appeared in Court, nor his power of attorney was brought on record—Any how another attorney appointed later on, was produced and examined in support of contentions of respondent-Stand of Respondent/plaintiff was that she never appeared before sub-Registrar at the time of execution of impugned sale deed, but she never appeared herself before trial Court- Petitioner has examined most important witness (Sub-Registrar) who categorically stated that he had attested sale deed and that a lady had appeared who was identified by Lambardar-His statement coupled with statements of other witnesses clearly prove that transaction in question had taken place and sale deed had been executed by respondent in favour of petitioner-Suit having been filed by respondent in year 1986, hence, it was incumbent upon her to bring on record documentary evidence o prove her possession over suit land at the time of filing suit, but she brought on record copy of Khasra girdawari pertaining to year 1983-84- Factum of possession of petitioner over suit land stands, proved even from evidence produced by respondent-Suit for declaration by respondent was not maintainable-Findings of trial Court are based on correct appreciation of evidence and appellate Court was not justified in reversing said findings-Petition accepted. [Pp. 336 & 337] A to D

Sh. Abdul Aziz, Advocate for Petitioner.

Malik Ghulam Siddique Awan, Advocate for Respondent.

Date of hearing: 2.6.1999.

judgment

This judgment will dispose of C.R. Nos. 238, 239, 240 and 199 of 1995 as common questions of law and facts are involved in all these petitions.

1. Instant civil revision is directed against the judgment and decree dated 22.1.1995 passed by the learned Additional District Judge Chiniot, hereby he reversed the judgment and decree dated 25.10.1993 passed by the learned Civil Judge Chiniot, whereby he dismissed the suit of the plaintiff/respondent filed against the defendant/petitioner.

2. Briefly stated the facts are that the plaintiff/respondent claims herself to be owner of land measuring 17 Kanals 16 Marias which has been described fully in the head note of the plaint. Her contention is that she never alienated the said land and the sale-deed dated 17.10.1985 in respect thereof and subsequent Mutation No. 363 dated 22.12.1985 are the result of fraud and forgery. She thus prayed that she be declared owner of the said land and as a consequential relief the defendant/petitioner be restrained from interfering in her possession and further alienation in any form. The suit was resisted by the defendant/petitioner who raised various preliminary objections and controverted/repudiated the contentions raised by the plaintiff/respondent. He asserted that the suit land was purchased by him vide sale-deed referred above and he is in possession of the same as its owner. He further asserted that the suit was not maintainable in its present form.

3. From the divergent pleadings of the parties, the trial Court framed the following issues:

4. Whether the suit is under valued for the purposes of Court-fee and jurisdiction? OPD.

5. Whether the suit is not maintainable in its present form? OPD.

6. Whether the suit is collusive? OPD.

7. Whether the plaintiff is estopped by his words and conduct to file the present suit? OPD.

8. Whether the plaintiff is owner in possession of the suit land, if so whether sale-deed dated 17.10.1985 and Mutation No. 363 are illegal, void and inoperative qua the rights of the plaintiff? OPP.

9. Rlief.

In support of her stand, the plaintiff/respondent examined PW-1 Masso and PW-2 Munshi Ghulam Muhammad her special attorney. Her learned counsel produced documents consisting of copy of sale-deed PI, copy of Mutation P-2, copy of Jamabandi P-3 and copy of khasra girdawari P-4. In rebuttal, the defendant/petitioner examined DW-1 Muhammad Shakeel Tehsiidar (Ex-Sub-Registrar), Mirza DW-2 and the defendant appeared himself as DW-3. His learned counsel produced documents Exhibits D-l to D-30 and thereafter closed his evidence.

1. After going through the evidence produced by the parties, the trial Court dismissed the suit of the plaintiff/respondent vide judgment and decree dated 25.10.1993. The plaintiff/respondent felt aggrieved of the said judgment and decree and filed an appeal which was accepted vide judgment and decree dated 22.1.1995. Hence the instant civil revision.

C.R. No. 239/95.

1. This civil revision is directed against the judgment and decree dated 22.1.1995 passed by the learned Additional District Judge Chiniot, whereby he reversed the judgment and decree dated 25.10.1993 passed by the learned Civil Judge Chiniot, whereby he dismissed the suit of the plaintiff/respondent filed against the defendants/petitioners.

2. Briefly stated the facts are that land measuring 41 Kanals 6 Marias was owned by the plaintiff/respondent who claimed that she had not alienated the said land videsale-deed dated 25.2.1986 on the basis of which Mutation No. 372 dated 6.4.1986 had been entered in favour of the defendants/petitioners. She asserted that she be declared owner of the suit land and the defendants/petitioners be restrained from interfering in her rights of ownership and further alienation in any form. The suit was resisted by the defendants/petitioners who raised various preliminary objections regarding the maintainability of the suit, locus standi of the plaintiff/ respondent and also controverted the stand of the plaintiff/respondent on merits.

3. From the divergent pleadings of the parties, the trial Court framed the following issues:

4. Whether the suit is under valued for the purposes of Court-fee and jurisdiction? OPD.

5. Whether the suit is not maintainable in its present form? OPD.

6. Whether the suit is collusive? OPD.

7. Whether the plaintiff is estopped by her words and conduct to file this suit? OPD.

8. Whether the plaintiff is owner is possession of suit land, if so whether sale-deed dated 25.2.1986 and Mutation No. 372 are illegal, void and in operative qua the rights of the plaintiffs? OPP.

9. Relief.

In support of her stand, the plaintiff/respondent examined Gaman PW-1 and Munshi Ghulam Muhammad her special attorney PW-2. Her learned counsel produced copies of documents Ex.Pl to P-4 referred earlier. In rebuttal, the defendants/petitioners examined Jafar Ali DW-1, Riaz DW-2 and one of the defendants/petitioners Muhammad Hussain appeared himself as DW-3. Their learned counsel produced documents Ex.D2 to D30.

1. After going through the evidence produced by the parties, the trial Court dismissed the suit of the plaintiff/respondent vide judgment and decree dated 25.10.1993. The plaintiff/respondent felt aggrieved of the said judgment and decree and filed on appeal which was accepted vide judgment and decree dated 22.1.1995. Hence this civil revision.

C.R. No. 240/95.

1. This civil revision is directed against the judgment and decree dated 22.1.1995 passed by the learned Additional District Judge Chiniot, whereby the reversed the judgment and decree dated 27.9.1994 passed by the learned Civil Judge Chiniot, whereby he dismissed the suit of the plaintiff/respondent filed against the defendants/petitioners.

2. Briefly stated the facts are that land measuring 48 kanals1 marlais alleged to have been purchased by the defendants/petitioners vide sale-deed dated 19.11.1985 regarding which Mutation No. 410 dated 31.3.1987 was sanctioned. The stand of the plaintiff/respondent is that she never alienated the said land vide sale-deed and mutation referred above and the said documents are false and fabricated. Her stand was controverted by the defendants/petitioners.

3. From the divergent pleadings of the parties, following issues were framed by the trial Court :

4. Whether the plaintiff has got no cause of action against the defendants in view of preliminary Objection No. 1 of the written statement ? OPD.

5. Whether the plaintiff is estopped by her words and conduct to file the present suit ? OPD.

6. Whether the suit is wrongly valued for the purposes of court-fee and jurisdiction ? OPD.

7. Whether the defendants are entitled to special costs U/S 35-A CPC? OPD.

8. Whether the suit is not maintainable in its present form ? OPD.

9. Whether the registered sale-deed dated 19.11.1985 and Mutation No. 410 dated 31.3.1985 is illegal against the facts collusive void, based on fraud and inoperative upon the rights of the plaintiff ? OPP.

10. If Issue No. 6 above is proved in affirmative then whether the plaintiff is entitled to the decree for declaration to the effect that she is owner in possession of the suit land described in the headnote of the plaint ? OPP.

11. elief.

In support of her stand, the plaintiff/respondent examined Ahmad Ali PW-1, Mukh:ar Ahmad PW-2 and Munshi Ghulam Muhammad PW-3 her special arrcrney. Her learned counsel produced documents Ex. PI to P3 and then cJ:s<d her evidence. In rebuttal, the defendants/petitioners examined Shahadat Khan DW-1 and Ahmad Ali DW-2. Their learned counsel produced documents Ex. D2 to D5 and then closed evidence.

1. After going through the evidence produced by the parties, the trial Court dismissed the suit of the plaintiff/respondent vide judgment and decree dared 27.9.1994. The plaintiff/respondent felt aggrieved of the said judgment and decree and filed an appeal which was accepted vide judgment and decree dated 22.1.1995. Hence this civil revision.

C.R. No. 199/95.

1. This civil revision is directed against the judgment and decree dated 22.1.1995 passed by the learned Additional District Judge Chiniot, whereby he reversed the judgment and decree dated 25.10.1993 passed by the learned Civil Judge Chiniot, hereby he dismissed the suit of the plaintiff/respondent filed against the defendant/petitioner.

2. Briefly stated the facts are that land measuring 75 kanals 12 marlas is alleged to have been sold by the plaintiff/respondent vide sale-deed dated 1.4.1986. Mutation No. 375 dated 30.4.1986 is alleged to have been incorporated on the basis of said sale-deed. The stand of the plaintiff/respondent is that she never alienated the said land in favour of the defendant/petitioner and the said transaction is the result of fraud. Her stand was controverted by raising preliminary objections as well as on merits.

3. From the pleadings of the parties, the trial Court framed the following issues:

4. Whether the plaintiff lacks cause of action and locus standi to file the Suit ? OPD.

5. Whether the suit is not maintainable in the present form ? OPD.

6. Whether the suit is under valued for the purposes of court-fee and jurisdiction ? OPD.

7. Whether the defendant is entitled to special costs ? OPD. Whether the defendant caused improvements on the suit land ? OPD.

8. Whether the plaintiff is owner is possession of the suit land and registered sale-deed No. 905 dated 1.4.1986 and Mutation No. 375 are illegal, void and inoperative qua the rights of the plaintiff? OPP.

9. Relief.

In support of her stand, the plaintiff/respondent examined Jafar Ali PW-1, Muhammad Ali PW-2 and her special attorney Munshi Ghulam Muhammad PW-3. Her learned counsel produced documents Ex. P 1 & P2 and thereafter closed evidence. In rebuttal, the defendant/petitioner examined Ch. Allah Diya DW1, Abdul Samee DW3, Muhammad Ramzan DW3 and he appeared himself as DW-4. His learned counsel produced documents Ex. D3 to D22.

1. After going through the evidence produced by the parties, the trial Court dismissed the suit of the plaintiff/respondent videjudgment and decree dated 25.10.1993. The plaintiff/respondent felt aggrieved of the said judgment and decree and filed an appeal which was accepted vide judgment and decree dated 22.1.1995. Hence this civil revision.

2. Arguments have been heard and record perused.

3. So far as C.R. Nos. 238 to 240 of 1995 are concerned, it is submitted by learned counsel for the defendants/petitioners that the plaintiff/respondent has assailed sal°-deed executed in favour of the defendants/petitioners on the ground that she never alienated the land vide sale-deeds referred in each transaction, that she filed suit through her general attorney Sardarzada Fazal Abbas, as is evident from the contents of each plaint, that admittedly, neither SardarzadaFazal Abbas was examined in the Court nor his general power of attorney was brought on record nor the plaintiff/respondent Mst. Iffat Sultana cared to get herself examined in any suit, that the plea of fraud raised by the plaintiff/respondent could only be substantiated if the plaintiff/respondent had appeared herself in Court, that the trial Court has non-suited the plaintiff/respondent mainly on Issues Nos. 2 and 5 in C.R. No. 238/95 which relate to the maintainability of the suit in its present for as well as to the effect if the plaintiff/respondent is in possession of the suit land etc., that the onus of proof of Issue No. 2 was on the defendants/petitioners who have discharged the onus by producing evidence which has not been rebutted. While elaborating his contention, he sub mined that suit for declaration could be filed only if it is proved that the plaintiff, respondent is in possession at the relevant time, that to prove her possession at the relevant time, the plaintiff/respondent has relied upon cop}' of Janiabandi Ex. P3 as well as copy of Khasra girdawri Ex. P 4 that a perusal of Jamabandi P3 as well as copy of khasra girdawari P4 clearly reveal that both those documents pertain to the year 1983-84; that adcJoedly the suit had been filed in the year 1986, so it was incumbent upon the plaintiff/respondent to bring on record documentary evidence prcving her possession over the suit land at the time of filing the suit, that the plaintiff/respondent failed to adduce any evidence to prove her possession over the suit land in 1986, as such the suit in its present form was ndt maintainable and the learned trial Court has rightly decided Issue No. 2 in favour of the defendants/petitioners and against the plaintiff/respondent. Ke farther contended that even possession of the defendants/petitioners is proved from the evidence produced by the plaintiff/respondent. So far as Ccdinp on Issue No. 5 are concerned, he submitted that the trial Court has very' elaborately discussed the said issue referring to the oral evidence as well sls documentary evidence produced by the parties. However, the learned Additional District Judge has neither discussed the evidence referred by the trial Court nor has given any reasoning for reversing the said findings. He farther contended that the documents produced by the defendants/petitioners clearly establish that the plaintiff/respondent had expected the said sale-deeds in favour of the defendants/petitioners. He specifically referred to the statement of Muhammad Shakil Tehsildar/Sub-Registrar (DW-1) who categorically stated that the sale-deed in each case was attested by him. He thus submits that the trial Court has rightly dismissed the suit of the plaintiff/respondent and judgment of the learned Additional District Judge merits reversal.

4. So far as C.R. No. 199/95 is concerned, it is submitted by learned counsel for the defendant/petitioner that the instant transaction was for Rs. 2,55,000/-, out of which a sum of Rs. 20,000/- was paid as earnest money, that sale-deed was executed on 1.4.1986 whereas earnest money of Rs. 20,000/- was paid on 15.11.1985, that Mutation No. 375 was sanctioned on 30.4.1986, that payment of amount has ben certified by the husband of the plaintiff/respondent Iffat Sultana, as ia evident from document Ex. Dl, that regarding this payment of earnest money, Rapt Roznamach Waqiatti No. 185 dated 12.3.1986 Ex. D7 has also been entered, that to rebut this stand of the defendants/petitioners, it was incumbent upon the plaintiff respondent to produce Muzaffar Abbas who was never produced, that similarly neither Sardarzada Fazal Abbas general attorney of the plaintiff/ respondent was produced nor his general power of attorney was produced or referred, as such the very institution of the suit is not in accordance with law. He further submitted that the trial Court has discussed Issue No. 6 which is relevant for the adjudication of the matter in dispute in an elaborate manner whereas the said judgment has been reversed by a slipshod order passed by the learned Additional District Judge. He also adopted the other arguments advanced by learned counsel for the defendants/petitioners in C.R. Nos. 238 to 241 of 1995.

5. Conversely, the judgments and decrees have been supported by earned counsel for the plaintiff/respondent.

6. It is evident from the facts stated above that in all civil revisions, ifferent pieces of land have been sold through different sale-deeds on the asis of which different mutations have been attested in favour of the vendees/defendants/petitioners. The stand of the plaintiff/respondent in all the suits is that she had not alienated the suit land and all documents are , the result of fraud and forgery. It is evident from the record that initially the suit was filed by the plaintiff/respondent through her general attorney Sardarzada Fazal Abbas. However, it is fact that neither Sardarzada Fazal Abbas appeared in Court nor his generally power of attorney was brought on record. It is also fact that later, on the plaintiff/respondent chose to appoint one Munshi Ghulam Muhammad as her special attorney, and it is he who has been produced and examined in support of contentions of the plaintiff/respondent. The plaintiff/respondent has challenged transactions on the plea of fraud and mis-representation. Her stand is that she never appeared before the Sub-Registrar at the time of execution/attestation of sale-deeds and some other lady was produced and the sale-deeds were got attested. The best evidence to prove this contention was the statement of the plaintiff/respondent herself. She neither appeared herself nor produced her initial general attorney Sardarzada Fazal Abbas. On the other hand, she produced one Munshi Ghulam Muhammad as her special attorney. To rebut her stand, the defendant/petitioner Muhammad Yar has examined the most important witness Muhammad Shakil Sub-Registrar DW-1 who categorically stated that he had attested the sale-deed in each case and that a lady had appeared who was duly identified by the Lambardar on whose identification he finally attested the sale-deed. Statement of Sub-Registrar coupled with the statements of other witnesses examined in each suit clearly prove that transaction in question in each suit has taken place and sale-deeds has been executed by the plaintiff/respondent in favour of the defendants/petitioners. Thus the findings of the trial Court on this score are based on correct appreciation of evidence and the learned Additional District Judge was not justified in reversing the said findings.

7. The suit filed by the plaintiff/respondent is also not maintainable on the ground that the suit for declaration could only be filed if it is proved on record that the plaintiff/respondent was in possession of the suit land at the relevant time. The suits have been filed during the year 1986, To prove her stand, the plaintiff/respondent has brought on record copy of khasra girdawri as well as copy ofJamabandi in each suit. A perusal of these documents reveals that these pertain to the year 1983-84. The suits having been filed in the year 1986, it was incumbent upon the plaintiff /respondent to bring on record documentary evidence to prove her possession over the suit land at the time of filing the suit. This has not been done and this fact alone proves that the suits for declaration were not maintainable. The factum of possession of the defendants/petitioners over the suit land stands proved even from the evidence produced by the plaintiff/respondent. The trial Court has very elaborately dealt with this aspect of the matter and has returned its findings. The said findings have been reversed by the learned Additional District Judge without referring and discussing the evidence brought on record and analyzed and scanned by the "_r^J Court, Thus, the finding of the learned trial Court on the question of maintainability of each suit recorded by the learned Additional District Judge are hereby reversed and that of the trial Court restored.

8. Similarly, the trial Court in each case has discussed the evidence regarding the execution of the sale-deed which has not only been discussed In its true perspective but has been ignored by the learned Additional District Judge while recording evidence under the relevant issue pertaining to the execution of the sale-deed in, each suit. The plaintiff/respondent has failed to substantiate her stand as discussed above.

9. The upshot of the above discussion is that all the civil revisions are accepted and the judgments and decrees passed by the learned Additional District Judge are set aside and that of the learned Civil Judge are hereby restored.

(MYFK) Petitions accepted.

PLJ 2000 Lahore 337

Present:raja MUHAMMAD KHURSHID, J. CH. MUHAMMAD ASHRAF and 4 others-Petitioners

versus

Mr. ATTA-ULLAH KAUSAR, (Learned) ADDITIONAL DISTRICT JUDGE, HAFIZABAD and 7 others-Respondents

W.P. No. 9037 of 1999, heard on 21.5:1999.

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

—O.XXIII, R. 3--Constitution of Pakistan (1973), Art. 199-Compromise deed between plaintiff and defendants whereby defendants had admitted claim of plaintiff is pending suit-Trial Court, therefore, on application of defendant cancelled compromise deed-Additional District Judge in revision, remanded case to trial Court for framing issue, and after recording evidence of any, to decide application of defendant, for setting aside compromise deed-Validity-Objection that remand order passed by Revisional Court showed that compromise allegedly entered by defendants was tainted with fraud and misrepresentation could not be gone into at random, but required some sort of evidence to sustain them— Revisional Court in the light of such facts, had rightly decided that compromise deed containing admission in favour of plaintiff could not be readily cancelled without determining grounds agitated in application moved by defendants for cancellation of compromise deed-Question of fraud and misrepresentation raised by defendants needed factual inquiry for which revisions! Court rightly directed trial Court to frame relevant issue, before deciding application for cancellation of compromise deed- Order passed by revisional Court being well within law and jurisdiction of that Court would not call for interference in Constitutional jurisdiction of High Court. [P. 339] A

PLD 1995 Lah 98; PLD 1993 Lah. 439 ref.

Mr. Munawar Hussain Bhatti, Advocate for Petitioners. Date of hearing: 21.5.1999.

order

This writ petition is directed against the order dated 15.2.1999 passed by Mr. Atta Ullah Kausar, learned Additional District Judge, Hafizabad, whereby he accepted the revision petition filed by the Plaintiff/Respondent No. 2 against the present petitioners, and remanded the case to the Court below for framing issues in the h'ght of pleadings of parties and also after recording evidence if any to decide the application submitted by the petitioners/defendants for setting aside the order passed by the learned civil Judge dated 21.10.1998, whereby the petition moved by the petitioners/defendants for setting aside the compromise deed was accepted and they were directed to file the written statement.

1. The brief facts are that a suit for declaration was filed by the Plaintiff/Respondent No. 2 and Respondents Nos. 3 to 6 in respect of the disputed property. During pendency of that suit, the present petitioners i.e. Defendants Nos. 3 to 7 entered a compromise mark 'C' whereby they admitted the claim of the Plaintiff/Respondent No. 2 but later on moved an application for the cancellation of the compromise deed with the prayer that they may be allowed to contest the suit after filing the written statement The said application moved by the petitioners/defendants was accepted by the learned trial Court and they were allowed to file written statement after setting aside the compromise which had earlier been entered by them. Feeling aggrieved of the aforesaid order of the learned trial Court, a revision petition was filed as aforesaid by the Plaintiff/Respondent No. 2 which was dismissed vide the impugned order.

2. The learned counsel for the petitioners has submitted that revision petition was not competent as other defendants in the case were not impleaded as party although they were necessary parties to the suit and the revision petition. Secondly it was contended that certified copies of the pleadings and other documents were not placed on record, while filing the revision petition and as such the same was incompetent. Reliance was placed on Bashir Ahmad vs. Abdul Wahid reported as PLD 1995 Lahore 98 and Faqir Muhammad and 48 others vs. Province of Punjab through Collector/ Deputy Commissioner, and4 others reported as PLD 1993 Lahore 439.

4, I have considered the foregoing submissions and find that no objection regarding the maintainability of revision petition on the grounds taken in this petition was raised and as such the same cannot be allowed in this petition particularly when the matter is yet pending and has not finally concluded in the Court below. The remand order passed by the learned re visional Court showed that the compromise allegedly entered by the petitioners/defendants in favour of the plaintiff/respondent was tainted with fraud and mis-representation. Apparently these pleas could not be gone into at random and required some sort of evidence to sustain them. It is in the light of these facts that the learned revisional Court had decided that compromise deed containing admission in favour of plaintiff/respondent A eouid not be readily cancelled without determining the grounds agitated in the petition moved by the petitioners/defendants for cancellation of the aforesaid compromise. The question of fraud and misrepresentation needed factual inquiry for which the learned revisional Court rightly directed the learned trial Court to frame relevant issue before deciding the application for cancellation of compromise deed. In such a situation, the order passed by the learned revisional Court is well within law and the jurisdiction of the aforesaid Court, and would not call for interference in the Constitutional jurisdiction of this Court. The writ petition is accordingly dismissed in liminf.

(A.A.) Petition dismissed.

PLJ 2000 Lahore 339 [Rawalpindi Bench Rawalpindi]

Present: SHAIKH ABDUR RAZZAQ, J. MAULA DAD--Petitioner

versus

FAZAL DAD-Respondent

C.R. No. 40/92, heard on 28.6.1999. Specific Relief Act, 1877 (I of1877)-

—-S. 42--Civil Procedure Code, 1908 (V of 1908), S. 155-Mutaiton of land by way of gift challenged by plaintiff to have been effected through fraud and misrepresentation-Trial Court decreed plaintiffs suit which was affirmed by Appellate Court--Validity-Parties were brothers inter sc-Daughter of plaintiff was married with son of defendants who were separated through divorce and relation of parties had become strained prior to entering specified mutation purportedly of gift-Possession of land in question, had admittedly not been given to defendant and same was still in possession of plaintiff-Fact of alienation by way of gift hardly appeals to reason when relation of parties were strained-Courts below having analysed, scanned and appreciated evidence in its true perspective, their judgments and decrees do not suffer from any misreading or non-reading so as to warrant interference in their concurrent findings. [P. 342] A

1998 SCMR 2124; 1995 SCMR 710; ref. Sardar Azmatullah Khan, Advocate for Petitioner. Mr. M.M. Azeem, Advocate for Respondent Date of hearing: 28.6.1999.

judgment

Instant Civil Revision is directed against the judgment and decree dated 9.12.19991 passed by the Additional District Judge, Jhelum whereby he confirmed the judgment and decree dated 30.4.1990 passed by Mr. Mazhar Hussain Chaudhary, Civil Judge, Jhelum.

1. Briefly stated the facts are that land measuring 43 kanalwas owned by the plaintiff/respondent The defendant/petitioner alleges that he acquired the same by way of Mutations No. 2158 & 2159 entered on 9.6.1986 and attested on 21.6.1986. The plaintiff/respondent filed suit for declaration whereby he challenged the said alienation of suit land vide mutation referred above on the ground of fraud and misrepresentation and further alleged that he was not in a fit mental condition to alienate the property referred above. The stand of plaintiff/respondent was controverted by the defendant/ petitioner wherein he raised some preliminary objection and further asserted that suit land referred above was mutated in his favour by way of gift mutation referred above.

2. From the divergent pleadings of the parties the trial Court framed the following issues :--

(i) Whether the plaintiff is estopped by his conduct and act to file the suit ?

(ii) Whether the plaintiff has no locus standi to file the suit ? (iii) Whether the suit is not maintainable in its present form ? (iv) Whether the plaintiff is owner in possession of the suit land ? (v) Whether the plaintiff is of un-sound mind ?

(vi) Whether the Mutations Nos. 2158 and 2159 were sanctioned in favour of the defendant through fraud and with the collusion of Revenue Officials and are therefore liable to be set aside ?

(vii) Whether the document dated 30.7.1987 was also result of fraud and misrepresentation and is liable to be cancelled ?

(viii) Relief.

1. In support of his stand plaintiff/respondent examined PW-1 Matloob Hussain, PW-2 Muhammad Aslam, PW-3 Mansab Khan, PW-4 Muhammad Sharif Constable, PW-5 Abdul Salam, PW-6 Noor Muhammad, PW-7 Raja Muhammad Aslam, Advocate and appeared himself as PW-8. In rebuttal defendant/petitioner examined DW-1 Tariq Mehmood, DW-2 Iffikhar Ahmad, DW-2/1 Zafar Iqbal Patwari, DW-3 Ali Ahmad, DW-4 Muhammad Siddique, and recorded his own statement as DW-5.

2. After going through the evidence produced by the parties, the trial Court decreed the suit vide judgment and decree dated 30.4.1990. Having felt aggrieved of the said judgment and decree the defendant/ petitioner filed an appeal which was dismissed vide judgment and decree dated 9,12,1991. Hence the instant civil revision.

3. Arguments have been heard and record perused.

4. The main contention of the learned counsel for t he defendant/ petitioner is that trial Court decreed the suit mainly on the ground that possession was not delivered by the plaintiff/respondent to the defendant/petitioner. He contends that as the property was jointly owned by he plaintiff/respondent and defendant/petitioner so there was no need of handing over the possession by the donor to the donee. In support of his contention he has relied upon AlifKhan vs. Mst. Mumta Begum and another (1998 SCMR 2124) and Muhammad Sadiq vs. Sardar and others (1995 SCMR 710). He further contends that trial Court had also relied upon document Ex. P-2 which is report alleged to have been lodged at the instance of defendant/petitioner. His contention is that trail Court was not justified in relying upon this report as he was not confronted with the contents of said report while he appeared as DW-5 in the trial Court He next argued that mutation of gift vide mutations referred was in accordance with law as plaintiff/respondent could alienate the property being of sound mind at the relevant time. He contends that according to Section 12 of the Contract Act a person who is usually of sound mind but occasionally of un-sound mind, may make a contract when he is of sound mind. He referred to the averments of plaint contained in Para No. 3 wherein plaintiff/respondent has contended that occasionally he had been facing the fits of insanity. He further contends that every person is presumed to be sane and as such if the plaintiff/respondent wanted to get the benefit of insanity he has to prove that he was insane when the mutations were entered on 9.6.1986 and were attested on 21.6.1986. He thus submitted that the trial Court as well as the first Appellate Court has not appreciated the evidence which has come on record in its true perspective.

5. Conversely the impugned judgments and decrees have been supported by the learned counsel for the plaintiff/respondent.

6. The plaintiff/respondent filed a suit for declaration whereby he challenged the Mutations Nos. 2158 & 2159 alleged to have been sanctioned on 21.6.1986. His main contention is that he was of un-sound mind when the alleged mutation was got entered and attested. The support his contention he has examined as many as 8 PWs including himself. To rebutt his said contention the defendant/petitioner has brought on record 5 DWs including statement of defendant/petitioner. The plaintiff/respondent has brought on record a Rapt Ex. P/2 alleged to have been got registered by the defendant/petitioner on 27.8.1986. This Rapt reveals that the plaintiff/respondent was of un-sound mind about two months prior to the said report. Conversely the stand of defendants/petitioner is that had the plaintiff/respondent been of un-sound mind the marginal witnesses DW-3 Ali Ahmad and DW-4 Muhammad Siddique would have not attested the said mutation. The statements of DWs-3 & 4 no doubt reveal that they were present at the time of attestation of said mutation. Their statements, however, throw ample light about the family relations of the parties. It is admitted by them that parties are brothers interse. They further admit that daughter of the laintiff/respondent was married with the son of the defendant/petitioner. They further admit that relations between spouses had become strained even prior to entering Mutations Nos. 2158 & 2159, as son of the defendant/petitioner had divorced his wife (daughter of the plaintiff/respondent). Again it stands verified even by PW-7 Raja . Muhammad Aslam, Advocate that possession of the property in dispute had " not been delivered to the defendant/petitioner and the same was still in possession of plaintiff/respondent. Again this fact hardly appeals to reason that plaintiff/respondent shall be alienating the land in favour of his brother by way of gift videmutations referred above when their relation are strained to the extent referred above.

7. The upshot of above discussion is that both the Courts have analysed, scanned and appreciated the evidence in its true perspective. The judgments and decrees do not suffer from any mis-reading or non-reading and as such revision petition fails and is hereby dismissed.

(A.A.) Revision dismissed

PLJ 2000 Lahore 343

Present:MUHAMMAD AKHTAR SHABBIR, J. Syed MAZHAR HAIDER and another-Petitioners

versus ALT AHMAD (deceased) through Legal Representatives—Respondents

Civil Revision No. 978 of 1999, decided on 28.6.1999.

Specific Relief Act, 1877 (I of 1877)-

—-S. 42--Civil Procedure Code, 1908 (V of 1908), S. US-Execution of general power of attorney and mutation of sale challenged through suit for declaration as being result of fraud mis-representation, collusiveness, without lawful authority, illegal and ineffective on rights of plaintiffs-­ Plaintiffs suit was dismissed by Trial Court while the same was decreed by Appellate Court-Validity-Execution of power of attorney having been denied by plaintiff, burden to prove the same would shift to defendant who had got benefit out of that document and was beneficiary of the same-Alleged attorney was close relative of beneficiary of alleged sale-­ Person who had signed receipt of loan as witness had admitted that the same was scribed by his clerk and that no consideration/money was passed in his presence-Scribe of receipt also admitted that no money was passed in his presence-Scribed though admitted to have written receipt of money, yet he had not signed that document-One of two marginal witnesses having not been produced, document in question, would not be deemed to have been proved in accordance with Arts. 17 and 79 of Qanun-e-Shahadt Order, 1984-Marginal witnesses of power of attorney having not been produced execution of power of attorney was not proved- Sale in question, on basis of invalid power of attorney was thus, without lawful authority and mutation of sale on basis thereof, was illegal and void--No material irregularity, jurisdictional defect and misreading or non-reading of evidence have been pointed out in judgment and decree of Appellate Court in decreeing plaintiffs suit, no interference in revisional jurisdiction was warranted. [Pp. 245 to 247] A, B & C

PLJ 1986 SC 526; 1997 SCMR 811; 1996 MLD 1123; ref. Mr. C.A. Rehman, Advocate for Petitioner. Date of hearing: 28.6.1999.

order

This revision petition under Section 115 CPC filed by Syed Mazhar Haider etc, petitioners, to call in question the judgment and decree dated 16.6.1999 passed by the appellate Court/Additional District Judge, Gujranwala, whereby, the judgment and decree dated 19.7.1999 passed by the Civil Judge, Gujranwala, dismissing the suit of the predecessor-in-interest of the respondents/plaintiffs was set aside.

1. Briefly stated the facts of the case are that Ali Ahmad, predecessor- in-interest, of the present respondents instituted a suit for eclaration with consequential relief of possession in respect of agricultural land measuring 35 karials 2 marks situated in Khasra No. 1031 to 1934, 1141, KhewatNo. 228 Khatoni No. 493/494, mauza Bhakhreyali Khalal, Tehsil and Distt. Gujranwala, challenging the execution of general power of attorney dated 23.1.1988 and mutation of sale No. 1656 dated 20.6.1988 by Petitioner No. 1 in favour of Petitioner No. 2 being so-called attorney of Ali Ahmad, predecessor-in-called attorney of Ali Ahmad, predecessor-in-interest of the respondents. He alleged in the plaint that the impugned power of attorney and mutation was result of fraud, misrepresentation, collusiveness, without lawful authority, illegal and ineffective on the right of the respondents/plaintiffs. The suit was contested by the petitioners/defendants, filed their written statements, raising some preliminary objections like non- maintainability of suit, insufficiency of Court fee, cause of action, estoppel etc. On the pleadings of the parties, trial Court framed various issues and after recording and appraising the evidence of the parties pro and contra, dismissed the suit with the reasoning that the plaintiffs/respondents had flailed to establish his case according to the averments of the plaint. Feeling aggrieved, Ali Ahmad, predecessor-in-interest of Respondents No. 1 to 5 preferred an appeal and the appellant Court/Additional District Judge, Gujranwala disagreeing with the findings of the trial Court, set aside the judgment and decree of the trial Court, accepted the appeal, decreed the suit and came to the conclusion that the defendants/petitioner could not prove the execution of power of attorney beyond and shadow of doubt vide judgment and decree dated 16.6.1999.

2. Learned counsel for the petitioners contended that the appellate Court had failed to take into consideration that the articulars of fraud were not proved by said AH Ahmad and he had admitted the obtaining of loan from the A.D.B.P. by mortgaging his land and defaulted in the payment of installments of loan. To clear this loan he asked Petitioner No. 2 to advance loan for the payment of his instalment to the Agricultural Development Bank of Pakistan. The Petitioner No. 2 showed his willingness to pay instalment of loan with the condition that in case plaintiffs fail to pay back the debt, then land would be sold to the petitioners. For that purpose the agreement to sell was to be executed and the amount of instalment paid by Petitioner No. 2 would be considered as earnest money. He further contended that power of attorney (Ex. Dl) a registered document and authenticity, presumption of truth was attached to the registered document; but the appellant Court failed to exercise jurisdiction and acted illegally inthe exercise of jurisdiction vested in it by ignoring the registered document He further argued that the appellate Court illegally assumed the role of finger print expert and could not give its findings in respect of the thumb marks affixed by the plaintiffs on the document, power of attorney. He further submitted that the appellate Court misread the evidence and omitted to consider the same which was very important and material and had direct bearing upon the merits of the case.

3. 1 have heard the learned counsel for the petitioner and also gone through the record. The case of the petitioner defendants in that Ali Ahmad, predecessor-in-interest of the plaintiffs/respondents was defaulter of ADBP and to dear that loan lie obtained money from petitioner/defendant No. 1. It was settled that if the respondents/plaintiffs failed to return money received from Petitioner No. 1, he will sell his land to him and this amount received by him would be considered as earnest money. If at all, it is true then the agreement should have been executed between Petitioner No. 1 and the Ali Ahmad but here on record the agreement to sell was executed between Petitioner No. 2 and Ali Ahmad. At the time of getting money from Petitioner No. 1, this Petitioner No. 2 was not in picture. It was not the condition that the land in dispute will be transferred or sold to Petitioner No. 2. Syed Mazhar Haider Petitioner No. 1 appeared as DW-6 in the Court and got his statement recorded. In his examiiiation-in-chief, he had not stated to the effect that there was any settlement between him and the plaintiffs that the amount obtained by the plaintiff from him would be considered as earnest money of the agreement to sell and no such agreement was executed between the parties. The only agreement executed which produced in evidence was Ex. D2 made between Petitioner No. 2 and Ali Ahmed, predecessor-in-interest of Respondents/plaintiffs Nos. 1 to 5 and from scanning of the said document such condition or settlement is not reflected. From the evidence to this extent It is established that Ali Ahmad deceased had received loan of Rs. 140Q0/- plus Rs. 9.000/- total Rs. 23,000/- and no other evidence was available to prove the receipt of Rs. 1,27,000/- as advance by the plaintiff. The power of attorney Ex. Dl was signed by Ch. Faryad Hussain Advocate who appeared as DWl. He admitted in his cross-examination that Ex, Dl. and D2 were written by his clerk and no consideration was passed in his presence. He had also admitted that the parties had not signed or thumb marked in his presence. The scribe of document Muhammad Zafar Ullah, Clerk of Faryad Hussain Advocate PW appeared as DW4. He admitted that he was not a petition-writer and had no licence of petition writing. He also admitted that no consideration was passed in his presence. The power of attorney was registered on 19.1.1998 but neither the Sub-Registrar who registered the document was produced to prove the endorsement by him on the document nor Muhammad Jamil who had identified the executant Ali Ahmad deceased was produced in evidence the execution of power of attorney and the receipt of Rs. 1,27,000/- and further amount Rs. 48,000/-. When a document, the execution of which is denied and doubtful then the burden to prove shifts on the persons who get benefit out of the document and the beneficiary of the power of attorney were Petitioners Nos. 1 and 2. It is pertient to mention here that Petitioner No. 2 is relative of Petitioner No. 1 and Petitioner No. 1 as DW-6 admitted in cross-examination that Petitioner No. 2 is his real uncle and father-in-law, j

The Hon'ble Supreme Court in case Sana Ullah vs. Muhammad Manzoor (PLJ 1986 SC 526) observed that in case the person who is alleged to have executed the document denied his signatures, his signatures can be proved by calling the person in whose presence the document was executed. "The signature of the plaintiff on Ex. Dl and D2 could be proved only by calling two attesting witnesses of these documents. The petitioners produced DW-1 Faryad Hussain Advocate who stated that the executant did not thumb mark in his presence, out of his evidence, the petitioners could not take any benefit. The DW4 claims to be the scribe of the document Ex. Dl and D2 but had not signed the same. Therefore, it cannot be believed that the document was written by him. The writer who writes the document is not an attested witness in the eyes of law and only Syed Gulzar Hussain Shah DW-5, one of the marginal witnesses appeared and other marginal witness Basharat Ali Shah was not produced in evidence The DW-5 was the marginal witness of Ex. D2 only and the document Ex. D2 was not proved by the petitioners in accordance with Articles 17 and 79 of Qanoon-e-Shahadat Order, 19S4, therefore, it was not a valid legal document. The marginal witnesses of power of attorney, namely, Haji Muhammad Shafi and Basharat Ali Shah had not been produced therefore, execution of power of attorney Ex. Dl was not proved firstly by non-producing marginal witnesses secondly, by non-producing Muhammad Jamil, Identifier and the Sub-Registrar, so the authenticity could not be attached to such documents. The Mutation No. 1656 dated 20.6.1988 was got entered by the attorney/Petitioner No. 1 in favour of Petitioner No. 2 on the basis of Ex. Dl, the power of attorney, which was not a valid document and the attorney had exceeded the authority because he had transferred the property in dispute in favour of his father-in-law/real uncle and in such case where the property of his principal is alienated by a general power of attorney in favour of those who are so closely related to the agent that ultimate beneficiary would be the agent himself of the property of the principal failing which the principal would be at liberty to repudiate the transaction and this principle was settled in case of Hqji Faqir Muhammad and others vs. Pir Muhammad and another (1997 SCMR 811). The dictum laid down hi the case of Haji Faqir Muhammad (supra) is applicable on all four corners of the present case as Ali Ahmad was alive at that time and he was kept in darkness. In his absence the mutation of sale in dispute was got attested by the attorney himself. What was the reason why the principal, owner of the property, deceased Ali Ahmad was not produced before the Revenue Officer at the time of attestation of the mutation of sale ?. Furthermore, the power of attorney was a general type and specifically no power to transfer the property in dispute was given by the executant to the attorney in his power ef attorney. It has been held in Basri vs. Abdul Hameed (1996 MLD 1123), that in a transaction of sale on the basis of the alleged power of attorney, the person who had been valio'ly authorized to alienate to another, had to satisfy the Court that at the time of entering into the transaction of sale of property, principal was not available and in absence of such evidence, transaction would not hold good unless it was established on the record that the same had been made with the knowledge and consent of the petitioner. In the present case, no evidence was brought on the record to establish that at the time of sale Ali Ahmad, predecesor-in-intereest of the plaintiffs was not available or could not be contacted. Therefore, the sale in question on the basis of invalid power of attorney was without lawful authority and mutation of sale was quite illegal and void. The appellate Court had discussed all the evidence and gave findings against the petitioners. Learned counsel for the petitioners failed to point out any material irregularity, jurisdictional defect and mis-reading or non-reading of evidence. The contentions raised by the learned counsel for the petitioners are misconceived and repelled. There is no illegality in the impugned judgment and decree dated 16.6.1999 passed by the appellate Court, hence unexceptionable.

1. For the foregoing reasons, I see no force in this revision petition which is dismissed in limine.

(A.A.). Revision dismissed.

PLJ 2000 Lahore 347

Present:MUHAMMAD AKHTAR SHABBIR, J. MUHAMMAD ILYAS KHOKHAR-Petitioner

versus

IHSAN ELAHI MUGHAL-Respondent

Civil Revision No. 466 of 1993, decided on 7.7.1999.

Arbitration Act, 1940 (X of 1940)--

—-S. 34 r/w. S. 115 of CPC-Suit for dissolution of partnership-Application u/S. 34 of Act, 1940 for referring matter to Foreign Arbitrator-Suit was dismissed under O. 7, R. 11 of CPC~Appeal against-Acceptance of~ Revision against-Under Section 34 of Act, 1940, any parly to proceedings, may at any time before filing a written statement can apply to Court for referring matter to Arbitration-Where a party appears in Court, obtains adjournments for filing written statement, such party deemed to have waived his right to refer matter to Arbitrator-Petitioner failed to apply to trial Court to refer matter to arbitration before filing of written statement or taking any other steps in proceedings-Furthermore, if a Court is convinced that it would be impracticable and impossible for parties to produce evidence before Foreign Arbitral Tribunal, it may refuse to stay legal proceedings in such circumstances under Section 34 of Arbitration Act, 1940-Lower Appellate Court taking into consideration legal and factual aspects of case reversed findings of trial Court committed no illegality or jurisdictional defect in impugned judgement-Petition dismissed. [Pp. 350, 352 & 353] A to C

PLD 1952 Dacca 22; 1984 CLC 1605; ref.

Mr. Mian Israr-ul-Haq, Advocate for Petitioner. Mr. Muhammad Zaheer, Advocate for Respondent. Date of hearing : 24.6.1999.

judgment

This revision petition under Section 115 C.P.C. has been filed by Muhammad Ilyas Khan petitioner to call in question the judgment and decree dated 21.12.1992 passed by Additional District Judge, Sialkot, whereby, the order dated 30.4.1988 passed by the Civil Judge, Sialkot, rejecting the suit for dissolution of partnership, instituted by Ihsan Elahi Mughal, was set aside.

1. The facts giving rise to the present revision petition are that Ihsan Elahi Mughal, plaintiff (respondent herein) entered into a partnership deed dated 1.6.1985 to carry on business of import and sale of surgical instruments, at Chicago U.S.A. or at such place or places the partners might agreed upon, and in pursuance of this agreement the plaintiff Ihsan Elahi Mughal supplied goods from Sialkot to the petitioner/defendant in U.S.A. who received the same but did not make payment of the bills on due dates. The plaintiff/respondent not only processed all the goods to him but also incurred expenditures thereon. The petitioner/defendant misappropriated the goods and failed to render the account of the same on repeated requests of the plaintiff. As such the plaintiff claimed that the partnership business had totally failed, destroyed and could not be carried on. The plaintiff prayed for the dissolution of the partnership deed and decree in the following terms—

(a) for a declaration that the partnership stands dissolved. In the alternative for dissolution of the partnership. For taking of accounts of partnership;

(b) for appointment of a receiver; and

(c) any other relief which the Court deems proper.

On 29.2.1988 the petitioner/defendant filed an application under Section 34 of the arbitration act read with Section 153 CPC, wherein, it had been contended that the agreement contained a Clause No. 12. According to which, all disputes, controversies etc, between the parties shall be referred to the Arbitration. In the light of this arbitration clause of the agreement it was asserted that the matter be referred to Arbitrator at the Polish Chamber of Foreign Trade in WARSAW, and so that suit shall not be maintainable. After getting reply from the plaintiff the Court rejected the suit under Order VH, Rule XI CPC vide order dated 30.4.1988.

3.Feeling aggrieved the respondent preferred an appeal and the learned Additional District Judge, Sialkot, vide judgment and decree dated 21.12.1992 accepted the same, set aside the order of the trial Court and remanded the case to the trial Court for decision afresh.

1. Learned counsel for the petitioner contended that the Appellate Court acted in the exercise of its jurisdiction illegally and with material irregularity, while reversing the findings of the learned trial Court, and that application under Section 34 of the Arbitration Act was filed by the present petitioner, without taking any step of proceedings of the Court. He further contended that initially th? case was adjourned for submission of Wakalat Nama on behalf of the petitioner/defendant He argued that the Appellate Court committed illegality by holding that the petitioner took all steps in the proceedings and no clear cut undertaking was shown by him. He further submitted that the defendant/petitioner entered appearance and applied for a copy of the application, so it could not be said to have taken steps in the proceedings and also the adjournment given by the lower Court for submission of Power of Attorney by the counsel of the petitioner/defendant would not have been treated to participation in the proceedings by the petitioner/defendant. He added that the Appellate Court also committed illegality while holding that reference of the matter be made to Foreign Tribunal for arbitration as per clause of the partnership deed, would have created hardship for the respondent/plaintiff. As he would not be able to pursue his case property and that this finding was clearly given in violation of the Law laid down by superior Court in Island Textile Mills Ltd. Karachi v. V/0. Techno expert and another (1979 CLC 307).

2. On the other hand learned counsel for the respondent/plaintiff forcefully controverted the arguments of the learned counsel for the petitioner, and supported the judgment of the First Appellate Court contending that the petitioner/defendant had waived his right for the stay of proceedings and sending the matter to Arbitration. He further contendedthat the petitioner/defendant did not apply to the Court for the reference ofthe matter to arbitration at the earliest opportunity, when he appeared before the Court.

3. 1 have hoard the arguments of the learned counsel for the partiesanxiously and studied the record minutely.

4. To begin with, relevant statutory provisions may be referred toSection 34 of the Arbitration Act, 1940 provides that:

"Where any party to an arbitration agreement or any other person claiming under his commences any legal proceedings against any other party to the agreement or any person claiming under Mm in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the Judicial Authority before which the proceedings are pending to stay the proceedings; if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings."

1. From the language of the statute it is quite clear that any party to the proceedings, may at any time before filing a written statement or taking any step in the proceedings can apply to the Court for referring the matter to the Arbitration and the defendant is under legal obligation to apply to the Court for referring the matter to the Arbitration must without any ado and before submitting to the jurisdiction of the Court inform the Court in an A unequivocal terms that he is going to insist upon the implementation of the Arbitration Clause, but were the party/defendant appears in the Court, obtains adjournments for filing written statement such party deemed to have waived his right and proceedings could not be stayed. Reliance can be placed in this respect on.

(i) Sadhan Kumar Battcherjee v. Sunil Kumar Bhattacherjee and others (AIR 1948 Calcutta 59).

(ii) New Bengal Shipping Company v. Eric Lancaster Stump (PLD 1952 Dacca 22).

(iii) Muhammad Idris and others v. Tobarak Hussain (PLD 1965 Dacca 260).

(iv) Mubarik Cotton Factory v. Messrs General Agencies, Multan (PLD 1980 Baghdadul Jadid 1).

(v) Akbar Cotton Mitts Ltd. v. Messrs VES/Ojanojo Objecdinye Tech/Amesh Export and another (1984 CLC 1605).

(vi) Messrs ASLO Marines Ltd. V.M.T. Magda and another (PLD 1985 Karachi 745.

(vii) Eckhardt & Company Marine GMBH, West Germany and another v. Muhammad Hanijf (PLD 1986 Karachi 138).

(viii)Uzm Export Import Interprises v. Iftikhar & Company Ltd. (PLD 1986 Karachi 1).

(ix) Messrs Alazizia Industries Uch-Sharif Road, Ahmadpur East v. Messrs Alfalah Insurance Company Ltd. and 4 others (PLD 1993 Lahore 306).

1. In case of New Bengal Shipping Company V. Eric Lancaster Stump (PLD 1952 Dacca 22) (supra) the defendant asked for adjournment of the case to file written statement and after that the defendant applied to the Court for the stay of the proceedings and his application was rejected on the ground that it was not filed at the earliest possible opportunity and the honourable Judges of the Dacca High Court observed as under :--

"On adjourned date defendant filed two applications one for further time for filing written statement and the other under Section 34 of the Arbitration Act for staying the suit. Objection petition was not confined to question of jurisdiction. It contained grounds on merits of case and was without reservation and all this amounts to step in proceedings and the suit was not stayed.

1. In Muhammad Idris and others' case (PLD 1965 Dacca 260) (supra), a Division Bench of Dacca High Court relaying on New Bengal Shipping Company v, Eric Lancaster Stump of Singapore held that :--

"An application for time to file written statement to certain circumstances might be regarded as amounting to steps in the proceeding within the meaning of Section 34 of the Arbitration Act and in this (Muhammad Idris's) case the petitioner did not ask for stay before taking any step in the proceedings and it was held that the filing of written statement is surely a kind of step taken in the proceedings and a prayer for time to put in written statement for the purpose of contest is surely another kind of step within the meaning of Section 34 of the Arbitration Act."

1. In case of Mubarik Cotton Factory (PLD 1980 Baghdadul Jadid 1) (supra) it was held that :--

"an early application for extension of time to file written statement amount to taking step in the proceedings and in this case ex parte proceedings were ordered and the defendant applied to set aside the ex parte proceedings through an application which was set aside on 15.9.1968 and thereafter, the application for stay was filed and during the pendency of the stay application adjournments were obtained thrice on 15.1.1968, 31.1.1968 and 16.2.1968 for a compromise. His lordship Mr. Justice Abdul Shakoor-ul-Islam who became the Chief Justice of the Lahore High Court afterwards; observed that while getting the adjournments on stay application for a compromise the party had submitted, to the "jurisdiction of the Court" and "did not" insist upon the implementation of the Arbitration Clause and thereafter the party was not entitled to ask for stay of proceedings.

1. In case of Akbar Cotton Mills Ltd. (1984 CLC 1605) his lordship Mr. Justice Saeed-uz-Zaman Siddiqui, Judge of Sindh High Court (now honourable Chief Justice of Supreme Court of Pakistan) observed that :—

"a party applying under section 34 of the Arbitration Act does not have a right to obtain stay of legal proceedings in Court. Such an order purely discretionary and in appropriate cases, the court may refuse to stay the proceedings inspite of an arbitral clause in the agreement between the parties which provided for reference of dispute to arbitration. No doubt the Court has to exercise this discretion in a judicious manner but the discretion conferred on the Court can neither be curtailed nor circumvented by means of agreement between the parties. It is true that ordinarily when a party has entered into an agreement of which the arbitral clause is an integral part, he should not receive assistance from the Court, if he resiles from it, but this does not mean that even in a case where the Court is satisfied that the very purpose and object of the arbitration would be frustrated or it is not likely to be achieved it will stay the legal proceedings and direct that parties to have recourse to arbitral clause. No doubt one of the commonly understood object of inserting an arbitral clause in commercial agreements is to avoid expenses and the conventional delays experienced in Court of law but the paramount and avowed object of the arbitration still remained the same namely the resolution of dispute between the parties in a fair, just and impartial manner. This letter stated objected cannot be ascribed in the name of less expensive and speedy mode to settle the dispute between the parties. Therefore, where the Court finds that a party to the dispute is not likely to get a fair just to impartial treatment of his cause in arbitration proceedings it may refuse to stay the legal proceedings in court brought in contravention of the arbitral clause in the agreement under Section 34 of the Arbitration Act."

1. In the present case the petitioner/defendant's counsel appeared in the Court on 5.1.1987 and filed his memo, of appearance and requested for adjournment of the case for filing his power of attorney and written statement. The power of attorney of the counsel for the petitioner/defendant was filed on 27.2.19S8 and requested for adjournment of the case for filing written statement. The case was adjourned for 6.3.1988 subject to the payment of costs. On that date the learned Presiding Officer of the Court was not present and the Reader adjourned the case to 9.3.1988. On that date application u/S. 34 of the Arbitration Act for stay of legal proceedings in the Court was filed. It means that the petitioner defendant submitted himself to the jurisdiction of the Court and obtained adjournments for filing of the written statement. These adjournments were a step into the legal proceedings as held in the cases referred to above. The dictum laid down in the said cases is applicable on all four of the present cases. The pplication under Section 34 of the Arbitration Act was not filed before the filing of the written statement or taking another steps in the proceedings. Following the principle settled in the case referred to above that applying for time to file written statement is an expression, "taking any other step in the proceedings" in accordance with the provisions of Section 34 of the Arbitration Act 1940.

2. The petitioner/defendant had failed to apply to the Court to g refer the matter to arbitration before filing of the written statement or taking any other steps in the proceedings. The contention of the learned counsel for the petitioner that the lower Appellate Court acted in the exercise of its jurisdiction illegally and with mala fide and that application under Section 34 of the Arbitration Act was filed quite in time without any delay is misconceived.

3. The second contention of the learned counsel for the petitioner that the agreement was executed by the parties and Arbitration Clause was inserted in the agreement by both the parties willingly and consciously through a foreign Tribunal and no party could rigour out from the arrangement on the plea of inconvenience. This argument was settled in case of Akbar Cotton Mills Ltd. 91984 CLC 1605) (supra)where in the agreement there was an Arbitration Clause that the dispute between the parties would be referred to Arbitraral Tribunal in Mascow, his lordship Mr. Justice Saeed-uz-Zaman Siddique (now Chief Justice of Supreme Court of Pakistan) observed that:

"In view of the above discussion I am of the view that inspite of the fact that at the time the plaintiff entered into agreement dated 7th August, 1970 without Defendant No. 1 they were aware that in the event of dispute or a claim by them in respect of the agreement, the dispute is to be referred to Arbitral Tribunal in Mascow, they were entitled to show in the application under Section 34 of the Arbitration Act filed for stay of their suit, that commencement of the arbitration proceedings in the foreign country would result in an esc pane, decision against them as all evidence in respect of the dispute is available at the place where legal proceedings is filed and that either by reasons of impracticability or the restrictions imposed by the government in matter of providing foreign exchange to individual citizen it would be impracticable, impossible for them to produce evidence before the foreign Arbitral Tribunal. If the Court is convinced, after hearing the parties in this behalf that the aforesaid reasons do exist it may refuse to stay the legal proceedings in such circumstances under Section 34 of the Arbitration Act"

The second contention of the learned counsel for the petitioner is also repelled, 15. The lower Appellate Court taking into consideration the legal and factual aspects of the case reversed the findings of the trial Court committed no illegality, and learned counsel for the petitioner has failed to point out any other illegality or jurisdictional defect in the impugned judgment, which calls for no interference.

For the foregoing reasons, there is no force in this revision petition which is dismissed.

(MYFK) Petition dismissed.

PLJ 2000 Lahore 354

Present: muhammad naseem chaudhhi, J. NOOR MUHAMMAD-Petitioner

versus S.H.O. POLICE STATION, KLUR KOT, DISTT. BHAKKAR

and 4 others-Respondents

W.P. No. 1915 of 1998, decided on 3.11.1999. <i)

Criminal Procedure Code, 1898 (V of 1898)-

—S. 102--Constitution of Pakistan (1973), Art-Search by police-Entry of house without permission-Sanctity of privacy-Trampling of norms & ethics-Dignity of man protected under constitution not given any weight by Police-Verses 27 and 28 of Surah Al-Noor—Whether Privacy could be disturbed under any law of land-Question of~Going into houses of others without permission is strictly forbidden in Islam-Home of a person is meant for rest, solace and peace-Sudden entry into homes of others leads to many afflictions and creates psychological problems particularly for females and minors who feel in-secure tor all times and simply go on pondering over irony of fate—Sanctity of privacy has been enjoyed and ensured by Holy Qur'an to extent that entry into a house without permission is forbidden as laid down in verses 27 and 28 of Surah Al-Noor-Accordiag to Article 14 of Constitution, 1973 dignity of man and, subject to law, privacy of home, shall be inviolable and no person will be subjected to torture for purpose of extracting evidence.

[Pp. 371, 379] F, G K

(ii) Criminal Procedure Code, 1898 (V of 1898)--

—S. 103-Search--Whether could be conducted without search warrant by a competent Court-Daparture from procedural law—Effect-Search Warrants have to be issued by competent Courts and obtained by Police/Executive authorities about aforesaid types of search on basis of relevant Search Warrants-Even under Article 22 of Prohibition (Enforcement of Hadd) Order, 1979 house cannot be entered and searched without any Search Warrant to be issued by competent Magistrate, Collector, Prohibition Officer for search of any intoxication- Section 103 of Cr.P.C. provides that search of house is to be made by Police in presence of two or more respectable persons of vicinity and occupant of house may attend proceedings—Wisdom behind is that sanctity stands attached to privacy of occupant of dwelling and search of every type is to be made in presence of citizens according to manner in incorporated in procedural law, [P. 375] H & I

(Hi) Criminal Procedure Code, 1898 (V of 1898)--

—S. 167(4)-Compliance of provisions of Section 167(4) Cr.P.C.-Adoption of. utmost protections with all seriousness in granting physical remands of convicts or under trials-Role of Courts to prevent extra-judicial killing by police-If physical remand is granted by a Magistrate a copy of order has to be forwarded to Sessions judge under Section 167(4) of Code of Criminal Procedure who can suo moto review same under Section 439-A of Code of Criminal Procedure—However, if physical remand is granted by a Special Court or an Executive Magistrate not under administrative control of Sessions Judge, he need not send a copy of order to him- Special Courts and Magistrate should note that utmost precautions are to be adopted with all seriousness and physical remand of a convict or an under trial prisoner confined in Jail in some other case must not be granted in routine and carelessly, otherwise they can also be held responsible/liable if any extra-judicial killing is effected afterwards by Police. [Pp. 406 & 407] DD & EE

(iv) Criminal Procedure Code, 1898 (V of 1898)-

—-Ss. 47 & 48-Constitution of Pakistan (1973), Arts. 4, 14 & 25--Search of a place-Practice of Police to enter houses of citizen without permission-Third degree methods and shoe heating with threats of murder in police encounters—Public complaints resenting police behaviour in vexing, taxing female members of inmates of house-Protection of law-Equality of citizens—Justification & validity of house trespass by police without permission, unabated enterence & showering of insult-Challenge to— Police practice deprecated-It is a common complaint these days that without any hesitation, without legal justification and just in routine police has made it a practice to enter houses of citizens and in such like cases family of absconder accused is vexed and taxed by making entry in house without permission under garb that absconding accused is present there—Even females are insulted by putting different questions to them--Pracucally family members viz.; children, old or young, males or females, married or unmarried etc. are called at Police Station who are made to sit there in a disgraceful manner upon whom insult is showered by different third degree methods who are also administered shoe beatings publicly and in Police Station-Even threats of murder in fake police encounters are issued and rather accused or his relatives are also eliminated in staged encounters also termed/known as Street Justice Method-In this regard aforesaid kind words of Holy Prophet (P.B.U.H.) contained in last Sermon (Khutba-tul-Hqjja-tul-Wida)have to be again referred to that "henceforth, offender himself will be responsible for offence; no son will be charged for father's crime and no father will be punished for crime committed by son"-Consequently police is not competent to enter house of a fugitive from law wherein he is not present/living while his nears and dears are putting up who have no concern with occurrence and not liable for occurrence-Held: There was no justification on part of respondent-SHO to enter house of petitioner as alleged by him and to shower insult on his family who has transgressed his authority.

[Pp. 366, 379, 381] E & L & M

(v) Criminal Procedure Code, 1898 (V of 1898)-

—Ss. 47 & 48~Search of a place-Procedure for-Mis-use of provisions by police-Perpetration of atrocities, entry without lawful manner and disruption of Chaddar and chaar Diiuan--Grievance generally voiced against police-Analysis of-No sanctity is provided to Chaddar and Chaar DJiyari-These sections do not empower Police to enter house through stretched Auto Ladders and scaling over walls without making demands to enter house through doors and by insulting, humiliating male, female occupants authorized to use premises-Held: No free hand can be given to police to misuse provision of Sections 47 & 48 according to its . whimsical hypothesis in Islamic Republic of Pakistan. [P. 378] J

(vi) Criminal Procedure Code, 1898 (V of 1898)--

—-Ss. 54 & 190-Arrest by Police-Blackening of faces and mishandling citizens-Tyranny, oppression and degenerating methods-Sign of bravery of a good Police officer-Transgression of authority not permissible under law-Salvation of degradation-Application of Section 190 Cr.P.C.-- Blackening of faces of accused and their family members/relatives, making them to ride on donkeys, getting their head, beard, eye brows, eye lashes etc, shaved, their old and young male and female members to sit in Police Station, their mis-handling creating shock-wave awful condition, taking off their shoes and making them to stand for hours in cold as well as in scorching heat according to available season, dragging them out bare-footed with their hands cuffed and handkerchief inserted in mouth etc. etc. are some of other degrading methods adopted by police through transgression of authority which are not permissible by religious commands, law of land and norms of legal ethics as well as human rights-Aforesaid degradation of human-beings are offences in criminal field for which private complaints in terms of Section 190 of Code of Criminal Procedure Code can be filed and even civil suits for recovery of damages can be instituted-It is generally expressed by some of autocratic Police Officers that they can arrest any person under Section 54 of Code of Criminal Procedure without warrant and for that matter they can enter/get ingress in any premises-Legally it is not so, which stands projected by aforesaid statutory provisions-Some times male, female, old young relatives of absconding accused are arrested, removed under Section 54 of Code of Criminal Procedure whose arrest is not shown in Daily Diary and out of them some are even crippled or elimenated- Habeas petitions filed and un-necessary expenses of imposed litigation have to be borne-Held: Arrest by Police U/S. 54 can be effected in accordance with law and private complaint can be filed alongwith civil suits for recovery of damages. [Pp. 384 & 388] P & R

(vii) Custodial Killing-

—Elimination of citizens at whims of Police-Deprivation of law and literty in violation of Art. 9 of Constitution of Pakistan, 1973-Trespassing houses, damaging property and removing innocent persons to unknown places for killing-Licence to killing people-Justification for such violence and oppression-During custodial killing being carried out by Police "Killed Person(s)" are never desirous and eager to murder Police officials as they are fettered/chained and thus helpless-Liberty and life of citizens cannot be disturbed, eclipsed by police by trespassing their houses, damaging property, removing same and unjustified killings--A very dangerous dimension to this proclivity to "act first, think later" had been added by licence-to-kill allowed to Police till recent past by Political authorities-Family members of persons meeting custodial death including minors, old persons and females have been left in lurch-Police cannot be granted authority of eliminating citizens at their own whims in violation of Article 9 of Constitution, 1973 wherein it is provided that no person shall be deprived of life or liberty save in accordance with law.

[P. 398, 401, 402] W, X, Y & AA

(viii) Extra-Judicial Killing-

—Removal of accused from judicial lock-ups and elimination by Police-- Intfirrogation of a prisoner, convict or under-trial-Obligation of District Magistrate and Superintendent Jail-Non-adherence of instructions mentioned in Appendix No. 25.58(1) of Police Rules, 1934 and giving free hand to police facilitating custodial killing-Application of Section 167 Cr.PC.—persons at helm of affairs got this extra-judicial killings performed by their subordinates up to rank of Sub-Inspector/Inspector Police without having any fear of God in their heart of hearts for which they shall have to account for at appropriate time-Day of Judgment- Some time genuine complaint is made that a convict undergoing sentence or an under trial prisoner being tried in Court premises or in jail in easels) is joined in investigation in some other case registered earlier or after his remittance to Jail or Judicial Lock Up as case may be who is taken, away to a Special Court or a Magistrate by Police-His physical remand is granted in routine-He is killed under custody and same episode that effort to rescue him was made by his friends etc., when he lost has life, is repeated~A prisoner, convict or under trial, cannot be interrogated without an order in writing from District Magistrate addressed to Superintendent of Jail-Physical remands are granted by Special Judges/the Area Magistrate or in his absence by Duty Special Judge/Duty Magistrate under Section 167 of Code of Criminal rocedure which must be allowed specifying days, maximum fifteen in number, with all seriousness containing cogent reasons and not in routine- Instructions mentioned in Appendix No. 25.58(1) (remands to police custody) of Police Rules, 1934 are not adhered to giving free hand to police facilitating custodial killings. [Pp. 402, 404, 405] Z, BB & CC

(ix) Judge-Last-

-—Oppression and repression by police-Final Arbiter and last judge- Question of--Only God, the Most High, is final Arbiter, Knower, Last Judge~At that most difficult and crucial time commands ordained by God and Sunnah of Holy Prophet Muhammad (p.b.u.h) shall be operative/ effective. [P. 412] MM

(x) Pakistan Penal Code, 1860 (XLV of 1860)--

—S. 216-Constitution of Pakistan (1973), Art. 199--Harbouring--Offence of-Registration of case by Police without making arrest of absconder accused-Unfounded allegations-Intention of Police to involve relatives of accused-Arrest without justification-High handedness and vexation causing to nears and dears of absconder accused-Validity-Generally cases under Section 216 Pakistan Penal Code are registered, but absconder accused is not arrested-Police would show that absconder accused made good his escape in presence of contingent of Police which is enough to falsify this type of allegation-Rather it casts lurking suspicion on working of Police as it is not possible that an absconder accused would run away in presence of Police officials especially when there is no encounter-This type of allegation or one expressed by respondent-police in comments about imparting of information by complainant of murder case that absconder accused was seen taking his meals with his father is adopted to justify Police to involve relatives of absconder accused to put pressure upon him to surrender as third degree methods are adopted and employed on nears and dears in this regard-Afore-said type of allegation made by complainant of murder case does not come within ambit of words harbour or conceal used in Section 216 Pakistan Penal Code—A case under Section 216 Pakistan Penal Code is registered to justify their action simply to vex concerned relatives involved in criminal case-They are arrested, but are not bailed out even though said Section 216 Pakistan Penal Code is bailable as their arrest is not shown in Daily Diary of Police Station in violation of Section 44 of Police Act, 1861.

[Pp. 365, 383] A, B, C, D & N

(xi) Police Act, 1861 (V of 1861-

—S. 44-Punjab Police Rules, 1934, Rr. 22.49(b) & 22.50-Constitution of Pakistan (1973), Arts. 4, 9, 14 & 25-Detention of male or female at a Police Station-Licence to Police and un-bridbed authority to humitate ridicule citizens-Requirements of law not fulfilled-Whether justified—An important aspect of matter in hand by expressing that a person, male or female, cannot be detained in any Police Station or at some other place unless he or she is required in a cognizable and non-bailable offence whose arrest is to be shown in Daily Diary of Police Station under Section 44 of Police Act, 1861 and under Rule 22.49(h) of Police Rules, 1934-However, arrest is not shown even though due to a wrong entry in Daily Diary a police officer can be dismissed under Rule 22.50 (para 1) of Punjab Police Rules, 1934-Police officers have not been given un-bridled authority to humiliate and ridicule citizens without any iota of evidence against them-Held: To call a person to Police Station without legal and factual justification, make him to sit there against his will, prima facie amounts to wrongful confinement and action needs to be taken against Police. [Pp.383 & 387] O & Q

(xii) Police Encounters—

—Taking of law by Police in its own hands-Unlocking handcuffs, driving accused to deserted places and opening of fire-Violence in Punjab Province by Police under connivance of superior offices-Foundation of administration of justice-Establishment of Independent agency- Sometimes law is taken in its own hands by Police-Grievance/complaint of public/affected party is that accused or their relatives are allegedly driven to deserted areas who are directed to unlock handcuffs and to run in darkness for becoming fugitive while during that process accused is shown to have been killed in an encounter-This ingredient of violence, had become a routine matter in our Province till recent past-News is generally got published in Print Medial and read by public that accused persons were being escorted by police for recovery of some incriminating article or pointedness of some place of occurrence during investigation of some case when his accomplices/relatives attacked convoy/police vehicle to get them released and accused died in ensuing encounter—No scratch is found on body of Police Officers-No mark of firing is seen on police vehicle-Accused even though chained/fettered are found dead at spot-It cannot simply be under stood as to how it is possible that every time fettered person(s) get killed, but not an injury/ scratch is received by any Police officer or by persons arriving there to get released helpless, hand cuffed person(s) and no mark of firing is seen on vehicle-Grievance of public that FIR is not registered against police and if it is registered then challan is not submitted as false and tainted investigation is conducted by fellow police officers and invariably accused are declared as innocent~In this respect an Independent Agency comprising retired Judges, retired Army Officers and retired Bureaucrates shall have to be constituted for - correct and forceful investigation which is foundation of administration of justice-It is happening so, as superior police officers not only defend subordinates, they also prompt them in matter—They do not restrain them. [Pp,391, 392 & 394 ] S, T, U & V

(xiii) Police force-Out of Turn Promotions-

—Accelerated promotions-Extra-judicial killing-Qualification of-Political patronage and promotions for lulling person chained and fettered-Rules of Special promotions according to Police Rules-Validity of out of turn promotions otherwise than due application of rules-Question of-Recommendations for out of turn/accelerated promotions have to be made and it is not provided that at whims of Political Authorities, as has happened in recent past, out of turn promotion shall be awarded immediately on happening of extra judicial killings-It speaks of political patronage in such type of custodial killings-Even otherwise accelerated promotion can be appreciated if there is real encounter and desperate persons have been arrested or even killed during encounter due to bravery of Police Official(s)--Without prejudice Court would express that killing of a person chained and fettered, and physically helpless in strict sense, cannot be termed to be an act of valour and bravery-According to Rule 13.19 Special Promotion can be awarded to recipients of Police Medals conferred by Federal Government-ln light of Rules incorporated in Chapter XV of Police Rules, 1934 cash awards and Commendation Certificates can also be granted-However, it can safely be expressed that custodial killings of past have not been liked, approved by citizens and thus accelerated promotions in lieu of same have not been viewed with commendation even though same are being enjoyed by benefitted non- deserving Police Officials. [Pp. 408, 409] II & JJ

(xiv) Police Officers-Gang of-

—-Threats of elimination-Extracting money from rich persons by issuing threats by police-Unsettled life of citizens and need of protection- Question of~There were various public complaints that aforesaid group of Police Officer minted/garbed huge amounts by issuing threats of elimination to different rich persons who had no option but to submit to their commands and demands-Hence it is high time to urge police to abandon role of Executor and Judge, because this could lead to a very chaotic situation. [P.. 407] HH

(xv) Police Promotion--

-—Killing of accused by police on plea of effecting recovery-Violation of Section 174 & 176 of Cr.P.C.-Elimination within statutory period of 24 hours of arrest including convicts and under trials—Free hand to police and overwhelming dissatisfaction and discontentment amongst citizens-Cause of--Police has coined strange type of method that accused were being taken for recovery of incriminating article(s) or pointedness of place of offence/murder-ln many cases within statutory period of 24 hours of arrest accused including convicts and under trials were eliminated/killed--No autopsy is made known to public-No inquest as required under Section 174 of Code of Criminal Procedure is prepared in some cases-No Judicial Inquiry is got conducted by District Magistrate in some of custodial killings under Section 176 of Code of Criminal Procedure-On contrary Police Officers were decorated and promoted-Officers recruited as Assistant Sub-Inspector or Sub-Inspectors or Inspectors have been promoted to rank of Inspectors, Deputy Superintendents of Police and Superintendent of Police within a period of less than a decade.

[P. 407] FF & GG

(xvi) Political Patronage-

—-House trespassing Extra-Judicial killing, blackening of faces by police-­Perpetration of brutalities under instructions/direction of big boss-Abdication of political pressure-Need of time-Court's feeling is that District Magistrate has to remain vigilant within his Civil District who has to check such brutalities-However, political patronage remained responsible for his indolence towards this conduct of Police-If these injustices are not checked, wrath of citizens may play havoc—It is commonly said that Boss is not always right, but Boss is always a Boss- Keeping in view both aforesaid sides it can well be expounded that commands for custodial killings and illegal orders of superior officers need not be obeyed by subordinates-Illegal ways adopted thereof by Superiors and Juniors with political patronage cannot be approved by law abiding citizens. [Pp. 410 & 412] KK, LL & MM

(xvii) Remand-

—-A prisoner, convict or under trial, cannot be interrogated without an order in writing from District Magistrate addressed to Superintendent of Jail-Physical remands are granted by Special Judges/the Area Magistrate or in his absence by Duly Special Judge/Duly Magistrate under Section 167 of Code of Criminal Procedure which must be allowed specifying days, maximum fifteen in number, with all seriousness containing cogent reasons and not in routine-Instructions mentioned in Appendix No. 25.58(1) (remands to police custody) of Police Rules, 1934 are not adhered to giving free hand to police facilitating custodial killings.

[P. 405] CC

Mr. Aziz Ahmad Malik, Advocate for Petitioner. Syed Zulfiqar All Bokkari, Assistant Advocate-General Punjab for Respondents.

Date of hearing: 2.11.1999.

judgment

One Abdus Sattar is the son of Noor Muhammad writ petitioner. Abdus Sattar was involved in a murder case. After fulfledged hearing he was convicted and sentenced to life imprisonment. Abdus Sattar filed an appeal before the High Court whose sentence was suspended on statutory ground and he was admitted to bail. Abdus Sattar is said to have committed an other murder who is required by the SHO Police Station Klur Kot, District Bhakkar as an accused of this case. According to Noor Muhammad petitioner he got published a citation of disinheritment with respect to his son Abdus Sattar in Daily Nawa-i-Waqt, Lahore oh 3.7.1997 and got himself dis-associated with him and seversed his relations thereof. According to him he and other family members have no concern with his son Abdus Sattar and his mis-deeds. Noor Muhammad petitioner filed this writ petition on 4.2.1998 against the SHO Police Station Klur Kot, District Bhakkar, Deputy Superintendent of Police, Klur Kot Circle, District Bhakkar, Superintendent of Police, Bhakkar, Deputy Inspector General of Police, Sargodha Range, Sargodha, Inspector General of Police Punjab, Lahore (Respondents Nos. 1 to 5) wherein he voiced the grievance to the effect that inspite of the fact that he has no connection with his son Abdus Sattar about whose mis-deeds he was not liable, the respondents-police were continuously bent upon terrorising, disgracing and creating havoc upon him and his family which was violative of the Constitution 1973, the law of the land and against the law of civilized society as will as the teachings and preaching of Islam. According to the petitioner in violation of the Police Rules, 1934 he and his family members are called to the Police Station, kept in habeas and are tortured mentally who even are threatened to be murdered in fake police encounter which have become an order of the day. According to him they are disgraced publically by making them sit in the Police Station and giving them the shoe-beatings. He maintained that even according to Sections 47 and 48 of the Criminal Procedure Code the procedure for the search of place for the person sought to be arrested has been given and even for the breaking open of Zanana legal protection to the womenfolk involving the 'Chaddar and Chardewari' is provided; yet the house is trespassed and it has become a common practice with the police to enter forcibly and to trespass the houses of the people and to torture the innocent inmates of the houses while the record of the police is always silent. The petitioner averred that he and his family members were facing the same misereies at the hands of the police which is supposed and designated to be a disciplined institution/force and which is not proceeding in accordance with law. He maintained that according to the Islamic Law as enunciated in the Holy Qur'an and Sunnah, the Constitution of the Islamic Republic of Pakistan 1973 and statutory law no one can enter in the house of others without prior permission, no one can be murdered/assassinated without any reason and without the order of a Qazi; but the Police is always bent upon threatening to murder, in Police staged encounters, the innocent family members of the accused and that the extra-judicial killings are on the increase. The petitioner refferred to "Khutba-tul-Hajja-tul-Wida" wherein our Holy Prophet Muhammad (peace be upon him) very kindly expressed that "no one would be responsible for the crime of the other; the son will not be liable for father's crime and the father will not be punished for the crime committed by the son"; while the respondents were out to ignore and violate the aforesaid kind and illuminating words. He maintained that without a search warrant the police could not enter his house while using auto-ladder fitted in the police vehicle and to the disrespect and disgrace of the womenfolk in the house and other family members and that the police was violating the privacy of his home. He alleged that the police, Police Station KLur Kot arrested him on 13.9.1997 without any arrest warrant or without registration of a criminal case against him. He maintained that he was arrested from Pull-Ill, Sargodha from the gate of Market Masque when he was going to offer his 'Maghrib' prayers and in this regard he referred to affidavits, fourteen in number of different persons, attached with this petition. He pleaded that he was taken to Police Station Klur Kot on 14.9.1997 and a case under Section 216 Pakistan Penal Code was registered against him allegedly for harbouring his aforesaid son Abdus Sattar. He denied the aforesaid fact on the ground that his son did not visit his house whom the refuge was never afforded by him. He maintained that he was admitted to bail but from 14.9.1907 onwards the Police had raided his house illegally twenty times without any entry in the official record who abused and insulted him, his wife and his three young daughters. He maintained that the police has no authority to trespass his house at any time and at its discretion being against Shariah, teachings of the Holy Prophet and the law of the iaitd as he and his family members are not responsible for the acts and mis-deeds of his son Abdus Sattar. He alleged that two days before the Eid-ul-Fitr he was taken to Police Station Klur Kot by local police wherefrom he was released later on after receiving the illicit gratification and that due to highhandedness of the police he was not in the position to effect the 'Rukhsati' of his daughter uhube marriage was scheduled to take place on 25.2.1998.

1. With the aforesaid background Noor Muhammad writ petitioner prayed that the respondent-police may be directed to act in accordance with law, not to harass him and his family members by launching illegal raidsthrough trespassing his house, making their movements limited by making them to sit in the Police Station, to humiliate them and to penalize them by effecting interference in their privacy or to injure their dignity in any manner whatsoever for the alleged nu's-deeds of his son Abdus Sattar for which he and his family members are not responsible.

2. In the circumstances of the matter I called for the comments from the Superintendent of Police, Bhakkar as well as the Inspector General of Police, Punjab, Lahore. I particularly mentioned in the relevant order that the comments to be prepared by the Inspector General of Police Punjab, Lahore shall be gone through by him and shall be signed by him. I had to pass the order because the aforesaid type of working of the Punjab Police is being brought to the notice of the Lahore High Court, Lahore in large number of cases wherein the nears and dears as well as the other relatives,acquaintances of the fugitive from law generally complain about their involvement in false cases thereof and showing disgrace, disrespect to them as well as causing of harassment and torture with threats of killings without legal and factual justification.

3. Mr. Jehanzeb Barki, Inspector General of Police, Punjab, Lahore sent the comments signed and obviously read by him wherein it is contained that Abdus Sattar son of Noor Muhammad writ petitioner is a proclaimed absconder and that Noor Muhammad was arrested oh account of harbouring his absconding son. He assured that no harassment shall be extended to Noor Muhammad petitioner against whom a case under Section 216 Pakistan Penal Code has been registered which is pending before the Area Magistrate. The Superintendent of Police Bhakkar as well as the S.H.O. Police Station Kalur Kot District Bhakkar submitted heir separate comments/report wherein they took-up the stand that Abdul Sattar son of Noor Muhammad was a fugitive from law who is involved in a murder case registered at Police Station Kalur Kot. They expressed there in that the information was imparted by Ahmad Nawaz complainant of murder case of FIR No. 150 registered on 18.6.1997 under Section 302 Pakistan Penal Code at Police Station Kalur Kot that Noor Muhammad (writ petitioner) and his son Abdus Sattar (absconder) were found sitting together and taking meals at Chah Gulbazvala within the area of Police Station Kalur Kot and that on its basis FER No. 216 dated 14.9.1997 was registered under Section 216 Pakistan Penal Code at Police Station Kalur Kot against Noor Muhammad writ petitioner. According to the said respondents-Police Officers thereafter the raid was conducted at the place the writ petitioner harboured his son which remained futile and that the petitioner was arrested from "Chandni Chowk" M.M. Road on 16.9.1997 who was found guilty and challaned to face the trial under Section 216 Pakistan Penal Code. The causing of harassment to petitioner and his family members was denied. However the under-taking was given that no illegal activity shall be extended in future to the petitioner and his family members. It was asserted that the writ petition was filed without legal or factual justification.

4. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate General and gone through the record before me. Learned counsel for the petitioner laid the emphasis that the petitioner and his family members are not liable for the mis-deeds of his son Abdus Sattar who has become a fugitive from law and whom he has disinherited through the publication of Notice dated 3.7.1997 in daily Nawa-i-Waqat Lahore. He added that for the crime allegedly committed by his said son the police cannot degrade, insult and humiliate other relatives by calling them to Police Station and disgracing them by adopting third degree methods. He continued that threats for murder in false Police encounter were made to the petitioner, his wife and daughters whereby they had lost the confidence and were panic striken who at present luckily are alive without any damage. According to him the Police has coined the method of extra-judicial killings whereby the accused and their relatives are being killed/eliminated without resort to judicial process whereby even after death penalty awarded by the Court of competent jurisdiction the appeals are maintainable before the High Court and Supreme Court and that the false Police encounters have no blessings from the religions commands and the law of the land which are rather negation of rule of law provided by the Constitution, 1973 and statutory law. He maintained that the Police registered FIR No. 216 dated 14.9.1997 under Section 216 Pakistan Penal Code on the information of the complainant of the murder case that petitioner's son Abdus Sattar was seen having meals with him at Chan Gulbazvala, which was simply false, while the Police itself did not take any step for the arrest of the absconder accused and that if the aforesaid type of information/allegation is given the weight then one or more cases can be registered daily against the petitioner and other family members on the information of the complainant of the murder case which would be naked source of harassment and disgrace. According to him registration of FIR No. 216 was the out come of mala fides and such a free hand may not be allowed to the Police. On the contrary learned Assistant Advocate General argued that Noor Muhammad writ petitioner is the accused of crime Case No. 216 registered on 14.9.1997 under Section 216 Pakistan Penal Code and the Police had the authority to proceed in the matter as he harboured and concealed his son Abdus Sattar, a proclaimed offender. He expressed that the denial of the Police about the unnecessary harassment may be considered enough and Noor Muhammad was rightly arrested. He referred to the under taking of the Police to the effect that the writ petitioner and his family shall not. be harassed. He added that there was no occasion to murder the petitioner and his family members and the apprehension is simply irrelevant. He maintained that a case under Section 216 Pakistan Penal Code can be got registered by a person from the public, if the information is imparted to the Police that any person has harbured or concealed any fugitive from law. My view is that the reasoning adopted by the learned counsel for the petitioner has to prevail. Generally cases under) Section 216 Pakistan Penal Code are registered, but the absconder accused is not arrested. The Police would show that the absconder accused made good his escape in the presence of the contingent of Police which is enough toj falsify this type of allegation. Rather it casts lurking suspicion on the working of the Police as it is not possible that an absconder accused would ran away in the presence of the Police officials especially when there is no encounter. This type of allegation or the one expressed by the respondent-police in the comments about the imparting of information by the complainant of the murder case that absconder accused was seen taking his meaJs with his father is adopted to justify the Police to involve the relatives of the absconder accused to put the pressure upon him to surrender as the third degree methods are adopted and employed on the nears and dears in this regard. The framers of Jaw (i.e. Section 216) made the same bailable and >, obviously the wisdom behind is to restrain the Police from working in anj ^ autocratic manner as the accused can be admitted to bail by the Police and iff produced before the Court, by it immediately as of right of the accused as contemplated under Section 496 of the Code of Criminal Procedure. It shall have also to be analysed as to whether taking of meals at Chah Gulbazwala by the absconder accused with his father (writ petitioner) allegedly seen by the complainant of the murder case comes within the purview of the words harbour or conceal as used in Section 216 Pakistan Penal Code. The dictionary meanings of the word Conceal are: keep secret to hide completely or carefully, act or state of hiding. The dictionary meanings of word harbour are: place of safety, or refuge or shelter, asylum. It is not narrated in the comments/report submitted by the respondents (Police) that in whose house the absconder accused was having the meals at Chah Gulbazwala. It is a matter of common knowledge that on one named Chah there are many houses of one Abadi. It cannot be expected that Abdus Sattar being Absconder accused would be provided meals openly by his father about whom he has got published a notice of disinheritment in daily Nawa-i-Waqat Lahore on 3.7.1997 while this writ petition was filed on 4.2.1998. Further there being no specification of the house in the comments/report wherein the meals were taken by Abdus Sattar absconder in the company of his father Noor Muhammad writ petitioner; the allegation of harbouring and concealment can well be termed to anomalous and prima facie without substance. Thus it can be expressed that the aforesaid type of allegation made by the complainant of the murder case does not come within the ambit D of the words harbour or conceal used in Section 216 Pakistan Penal Code. The SHO Police Station Kalur Kot District Bhakkar seems to have proceeded in routine for wrongful gain to put the pressure on Abdus Sattar absconding accused for his surrender as the petitioner and other female members of the family shall be humiliated and disgraced.

5. -The only irresistible conclusion which can be drawn from the aforesaid state of affairs and discussion would be that the contention of the writ petitioner is correct that all has been done to harass him and other family members to put the pressure for the surrender of the absconding accused Abdus Sattar. In this regard the taking of the petitioner and his family members to Police Station Kalur Kot and adopting third degree methods cannot be ruled out. Consequently the respondents are restrained from harassing and insulting the petitioner and his family members in any manner with respect to the offences/mis-deeds committed by Abdus Sattar absconder.

6. In the circumstances it is proper to examine case FIR No. 216 registered on 14.9.1997 under Section 216 Pakistan Penal Code at Police Station Kalur Kot, District Bhakkar. The Judicial File and Police File shall be requisitioned from the concerned quarters regarding which the separate order has been passed for compliance by the office.

7. It is important to note that the learned counsel for Noor Muhammad writ petitioner canvassed that such type of allegations/ assertions are being raised/made by the public against the police in different matters and it is in the fitness of the things that some authoritative view is enunciated by this Court. I agree with him. I feel that it is a matter wherein complete analysis, appreciation and dissection is made because the same would be a source of protection and convenience for the citizens being that of Public interest litigation. It is a common complaint these days that without any hesitation, without legal justification and just in routine the police has made it a practice to enter the houses of the citizens and in such like cases the family of the absconder accused is vexed and taxed by making entry in the house without permission under the garb that the absconding accused is present there. Even the females are insulted by putting different questions to them. Practically the family members viz.; children, old or young, males or females, married or unmarried etc. are called at the Police Station who are made to sit there in a disgraceful manner upon whom the insult is showered by different third degree methods who are also administered shoe beatings publicly and in the Police Station. Even the threats of murder in fake police encounters are issued and rather the accused or bis relatives are also eliminated in staged encounters also termed/known as Street Justice Method. Muss fuss emanates amongst the citizens against such type of working of the police which is creating big gulf between the public and the police which is not a happy sign towards the maintenance of positive texture of the society being against discipline whereby the respect of the UNIFORM of the Police Department is diminishing and decreasing which fact is also proving to be a conspicuous cause for the worsening of the law and order situation. Further the damage to the image and prestige of the police Department done in this manner becomes incalculable. I would express the view that the litigation of every type including the one in hand is not ths luxarious hobby of the citizens wherein sufficient fee is paid to the learned advocate(s) and the amount has to be spent on the preparation of the brief or making the journey etc. etc. It is only and only at the time when the shoe pinches the wearer that such type of writs are filed. Without prejudice it can safely be expressed that the nafarious acts/mis-deeds of a disobedient member of a family should not be a source of inconvenience, harassment and insult to the other family members and that also at the hands of the Disciplined Force of Police.

8. Justice in one sense or the other lies at the foundation of every human society, however., more or less civilized it may be. Justice has not to be provided by the Courts only. The scale of justice has also to be kept in the correct manner by all the pillars and Departments of the State. In the criminal administration the correct and fair investigation is the foundation of justice. If any Department does not act in accordance with law and plays the pan in the negative manner, the Judiciary has to play the important role in the Constitutional Jurisdiction. Islam signalized a momentous development in the affail's of mankind. Clashes of interests lead to actions that disturb the sociai balance. To bring the society back into a state of equilibrium, some sort of machinery has to be evolved for administration of justice which primarily aims at maintaining a balance between the rights of individuals or groups, Obviously the Judiciary has to play its role at such a juncture. With this background I have thought it. proper to tackle the dispute in hand and to give my findings keeping in view the religious commands, moral values as well as the Constitutional and statutory safeguards provided to the citizens of Pakistan.

9. I feel that it is matter wherein complete analysis, appreciation and dissection of the matter is made because the same would be source of. rotection and convenience to the petitioner and the general public/citizens.This judgment shall also project as to how the idea of good governance was ignored, violated and shattered before or after the institution of this writ petition during the month of February 1998. It is the proper stage to express that good governance can materialize, if there ib respect for the law of the land, 11. The separate homeland-Pakistan--was desired and achieved by the Muslims with the background of Islamic Ideology through multifarious sacrifices of migration, life, honour, economy etc. According to Article 2 of the Constitution of the Islamic Republic of Pakistan, 1973 "Islam shall be the State religion of Pakistan". Article 2-A of the Constitution, 1973 provides that the principles and provisions set out in the Objectives Resolution re­ produced in the Annexure have been made the substantive part of the Constitution and shall have effect accordingly. The Objective Resolution was inserted by Presidential Order No. 14 of 1985. The aforesaid Annexure (Article 2-A) is being reproduced in toto as under for the emergence of the true picture:

"CONSTITUTION OF PAKISTAN

ANNEX

(ARTICLE 2A)

The Objectives Resolution

(In the name of Allah, the most Beneficent, the most Merciful).

Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust;

This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan;

Wherein the State shall exercise its powers and authority through the chosen representative of the people;

Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;

Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and the Sunnah.

Wherein adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures;

Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;

Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

Wherein adequate provision shall be made to safeguard the legitimate interest of minorities and backward and depressed

classes;

Wherein the independence of the Judiciary shall be fully secured;

Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded;

So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards International peace and progress and happiness of humanity."

1. Our beloved country--PAKISTAN--is an Islamic State and not a secular State. Islam is the State Religion of Pakistan in view of Article 2 of the Constitution of the Islamic Republic of Pakistan. Under Article 31 of the Constitution, steps shall be taken to enable the Muslims of Pakistan individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to Holy Qur'an and Sunnah. Further State shall endeavour, as respects the Muslims of Pakistan to make the teachings of Holy Qur'an and Islamyiat compulsory, to promote unity and the observance of the Islamic moral standards, to secure the proper organization of Zakat, Ushr, Auqaf and mosques. Under Article 40 the State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic Unity. Only a Muslim not less than the age of 45 can be elected as the President of Pakistan under Article 41(2). Under Article 91 there shall be cabinet of Ministers with the Prime Minister (at present obviously the CHIEF EXECUTIVE) as its head, to aid and advise the President in the exercise of his functions. According to the proforma of Oath to be administered to the said office only a Muslim can contest and be elected as a Prime Minister of Pakistan. According to Article 203-C the Federal Shariat Coun of Pakistan has been constituted which under Article 203-D has been empowered either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or the Provincial Government, examine and decide the question whether or not any provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.). Under Article 203-F (3) Shariat Appellate Bench has been constituted in the Honourable Supreme Court of Pakistan to hear the appeals against the judgments of the Federal Shariat Court. According to Article 227 all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. Under Article 228 the Council of Islamic Ideology has been constituted which has the jurisdiction-to make recommendations as to ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with principles and concepts of Islam as enunciated in the Holy Qur'an and Sunnah, to advise as to whether a proposed law is or not repugnant to the Injunctions of Islam, to bring existing laws according to Injunction of Islam. In the Third Schedule of the Constitution, 1973 are published the approved proformas about the Oaths of office of the President, the Prime Minister (and both have to be Muslims), Federal Minister or Minister of State, the Speaker of National Assembly or Chairman of Senate, Deputy Speaker of National Assembly or Deputy Chairman of Senate, Member of National Assembly or Member of Senate, Governor of Province, Chief Minister or Provincial Minister, Speaker of a Provincial Assembly, Deputy Speaker of a Provincial Assembly and Member of a Provincial Assembly. All of them have to individually solemnly swear in addition to other undertakings that he will strive to preserve the Islamic Ideology which is the basis for the creation of Pakistan and that he will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan. According to the relevant proforma of the oath of office of Auditor General of Pakistan, Chief Justice of Pakistan or Chief Justice of a High Court or Judges of the Supreme Court or a High Court and the Chief Election Commissioner each of them has to solemnly swear to discharge the duties and perform the functions in accordance with the Constitution of the Islamic Republic of Pakistan in addition to other undertakings. In the proforma about the oath of office of the Chief Justice or Judges of the Federal Shariat Court each of them has to solemnly swear to discharge the duties and perform the functions to the best of ability and faithfully in accordance with law. While taking Oath of each of the aforesaid office all have to pray "May Allah Almighty help and guide me (Ameen)".

2. The frame of the Constitution of the Islamic Republic of Pakistan, 1973 is based on Islamic Ideology and no Article of the Constitution or any section of any codified law can be against the Injunctions of Islam. With this background a question arises at to how the Quranic verses and the Ahadith of the Holy Prophet (p.b.u.h.) can be ignored with respect to the grievance of Noor Muhammad petitioner voiced through the filing of this writ petition.

3. The Holy Prophet Muhammad (S.A) very kindly expressed in the lKhutba-tul-Hajja-tul-Wida'as under: -

"I am leaving in your midst some thing which if you held it fast will not let you go astray and it is the Book of Allah. Beware of exaggeration in religious matters. People before you have perished because of it."

Sunnah of Holy Prophet Muhammad (p.b.u.h.) is one of the sources of Muslim Law which comprises the sayings and actions of the Holy Prophet (p.b.u.h.). The Sunnah is the Commentary on the Holy Qur'an. As such the kind words of the Holy Prophet (S.A) narrated through 'Khutba tul Hajja tul Wida' are also to be followed by the Muslims in letter and spirit. At this proper stage it shall have to be seen as to whether any disobedient, indisciplined and accused person can make liable his family for his acts/mis-deeds/crime. In the Comments/Report the Police Officers have not mentioned any fact against the petitioner or his family members or any act of the petitioner or his family members to make them liable for any offence or mis-deed allegedly committed by Abdus Sattar accused of the

murder case who is the son of Noor Muhammad writ petitioner. I feel honoured to express that our Holy Prophet Muhammad (peace be upon him) in his last Sermon commonly known as 'Khuiba tulHajja tul Wida' has very kindly expressed as under for the guidance of the man kind:

"Hence forth the offender himself will be responsible 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."

1. I have to express my confirmed belief that no Muslim can and should are disobey the aforesaid sermon of our Holy Prophet Muhammad (p.b.u.h.) out of which the aforesaid portion has been quoted, not to speak of that the same is violated. I make bold in expressing that the disobedience of the aforesaid sermon has to be curbed with iron hand. We all havereligiously been taught as under:

"Stop the vice by your hands (force) and if not possible, then orally challenge him to desist and if you cannot do this much, at least denounce in your heart. This is sign of weak faith (Emaan)."

1. It is necessary to record that even under the statutory laws of our country only and only the accused himself is responsible for the offence committed by him and no near and dear, friend can be made to sail with the accused in the same boat. It is simply surprising that the innocent are made to suffer without any fault on their part. What a pity?

2. Now I take up the matter about the entry of the police in the house of the petitioner without permission of inmates who admittedly, as expressed in the comments/report submitted by the Police Officers, are not the accused of the murder case.

3. Asking permission to enter a house or a dewelling place is necessary as Islam sets great value on the privacy of home life. Privacy is the state of being let alone. It means freedom from human interference by any means. Going into the houses of others without permission is strictly forbidden in Islam. The home of a person is meant for rest, solace and peace. Sudden entry into the homes of others leads to many affilications and creates psychological problems particularly for females and minors who feel in­ secure for all the times and simply go on pondering over the irony of fate. It is necessary to record that some times even the cattle, tractor and other house-hold articles of the family are removed without preparation of memo of recovery which are either mis-appropriated or, handed over to others without any writing to the detriment of the owner(s). The house hold articles are also damaged.

4. Sanctity of privacy has been enjoyed and ensured by the Holy Qur'an to the extent that entry into a house without permission is forbidden as laid down in verses27 and 28 of Surah Al-Noor.

VerseJ?

"Oye who beh'eve! Enter not houses other than your own without first announcing your presence and invoking peace upon the folk thereof. That is better for you, that ye may be heedful"

Verse 28

"And if ye find no one therein, still enter not until permission hath been given. And if it be said unto you; Go away again, then go away, for it is purer for you. Allah knoweth what ye do."

Al-Qur'an 24: 27-28

1. These Quranic verses contain simple social injunction which, if acted upon, is calculated to save the society from trouble, suspicion and slander-mongering. It puts a stop to possible scandals and preserves the privacy of the houses which ought not be disturbed and intruded upon.

2. At this stage the Sunnah of our Holy Prophet Muhammad (p.b.u.h.) has to be referred to, which is a source of Shariah. It comprises the sayings and actions of the Holy Prophet Muhammad (p.b.u.h.) as well as the agreements entered in his presence with his blessings. The Sunnah is the treasury of wisdom which is at once a commentary on the Holy Qur'an and compliments to its teachings. Holy Qur'an gives aims while Sunnah provides the ways. The authority of Sunnah can be sure and definite. The Holy Prophet (p.b.u.h.) established law and order in the uncivilized country and gave them balanced Constitution and law which gave a workable ystem of Government bestowing the fundamental rights for the individuals and for the people as a whole. The Holy Prophet Muhammad (p.b.u.h.) guaranteed definite rights to individuals which are inviolable. Rule of law and equality of all before law secured the position of persons against possible aggression or tyranny on the part of the persons in authority. Hazrat Muhammad (p.b.u.h.) was sent to earth to establish the rule of God and a system both just and good so that it is a source of restoration of appiness, solace and satisfaction in the minds of mankind. The love for lie Holy Prophet Muhammad (p.b.u.h.) showers the harmony and beauty which pervade all things. The Ahadeeth of the Holy Prophet Muhammad (p.b.u.h.) have been collected by the companions and disciples of the time and are there in black and white for our guidance. On the subject and dispute in hand I feel honoured to reproduce as under some of the Ahadith from Sahee-Al-Bokhari Volumes VIII and K by Dr. Muhammad Mohsin Khan, Islamic University Al-Madinah--Al-Munawarah:

(I) "262. Narrated Abu Sa id Al. Khurdi (R.A;.-While Iwas present in one of the gatherings of the Ansar, Abu Musa came as if he was scared, and said, "I asked permission to enter upon Umar three times, but I was not given the permission, so I returned." (When Umar Came to know about it) he said to Abu Musa, "Why did you not enter?" Abu Musareplied, "I asked permission three times, and I was not given it, so I returned, for Allah's Apostle (S.A) said, "If anyone of you asks the permission to enter thrice, and the permission is not given, then he should return" Umer said, "By Allah! We will ask Abu Musa to bring witnesses for it." (Abu Musa (R.A) went to a gathering of the Ansar and said), "Did anyone of you hear this from the Prophet (S.A)?" Ubai bin Ka b (R.A) said, "By Allah, none will go with you but the youngest of the people (as a witness)" I (Abu Sa id) (R.A.) was the youngest of them, so I went with Abu Musa (R.A.) and informed Umar (R.A.) that the Prophet (8.A.) had said so.

(See Hadith No. 227 Vol. Ill)

(II) (14) CHAPTER.-If a man is invited, should he ask permission to enter at his arrival?

Abu Huraira (R.A.) said that the Prophet (S.A.) said, "(The invitation) in itself is his permission."

(El) 263. Narrated Abu Huraira (R.A.).-l entered (the house) alongwith Allah's Apostle (S.A) There he found milk in a basin. He said; "O Aba Hirr! Go and call the people of Suffa to me". I went to them and invited them. They came and asked permission to enter, and when it was given, they entered.

(See Hadith No. 459 for details)

(IV) 26. Narrated Abu Huraira (R.A.).-that he heard Allah's Apostle (S.A.) saying, "We (Muslims) are the last (to come) but (will be) the foremost (on the Day of Resurrection)". And added, "If someone is peeping (looking secretly) into your house without your permission, and you throw a stone at him and destroy his eyes, there will be no blame on you.

(V) 27. Narrated Yahya (R.A.).-Humaid said, "A man peeped into the house of the Prophet (S.A) and the Prophet (S.A.) aimed an arrow head at him to hit him." I asked, "Who told you that?" He said, "Anas bin Malik," (R.A.).

(See Hadith No. 258 & 259 Vol. 8)

(VI) 39. Narrated Abu Huraira (R.A.).-Abul Qasim (S.A) said, "If any person peeps at you without your permission and you poke him with a stick and injure his eye, you will not be blamed."

CVH) 38. (a) Narrated Anas (R.A.X-A man peeped into

one of the dwelling places of the Prophet (S.A.). The Prophet (S.A.) got up and aimed a sharp-edged arrow head (or wooden stick) at him to poke him stealthily.

(Vffl) 38. (b) Narrated Sahl bin Sa'd As-Sadi (R.A.).-A man peeped through a hole in the door of Allah's Apostle's (S.A.) house, and at that time, Allah's Apostle (S.A.) had a Midri (an iron comb or bar) with which he was rubbing his head. So when Allah's Apostle (S.A) saw him, he said (to him), "If I had been sure that you were looking at me (through the door), I would have poked your eye with this (sharp iron bar)". Allah's Apostle (S.A.) added: "The asking for permission to enter has been enjoined so that one may not look unlawfully (at what there is in the house without the permission of the people)."

(DC) 39. Narrated Abu Huraira (R.A.).-Abul Qasim (SA) said, "If any person peeps at you without your permission and you poke him with a stick and injure his eye, you will not be blamed."

1. It would be proper to insert one episode mentioned in Mukarraam-ul-Akhlaq Laabi Biqar Muhammad Bin Jaffar-Al-Khalaiti recorded in the case law printed as "Riaz Hussain versus SHO Police Station City Jhang" (PLD 1998 Lahore 35).

"Hazrat Umar (R.A) heard the singing voice from a house one night who entered the same by scalling over the wall. He also saw a lady and wine there. He uttered that he (the person) considered that he would show disobedience to God and would not be known? That person replied to the Amir-ul-Mominin (R.A.) not to proceed in haste as in case he had committed one sin he (Umar Ibni Khataab R.A.) committed three. First; that of spying. Secondly; entry in the houses is permitted from doors and he scalled over the wall and thirdly; God had ordained not to enter the houses unless permission had been given while no permission had been obtained. On that Umar (R.A.) admitted his mistake and did not proceed against that person who rather got the undertaking from him (person) to follow the right path."

1. The aforesaid incident has projected that even the Ruler, obviously Police in the instant case, cannot enter/trespass the house of any person and that before entry permission must be procured from the persons living therein.

2. Another story is told of Umar ibn al-Khataab (R.A) who when told that Abu Mihjan al-Thaqafi was drinking wine in his home with some of his companions, went to see. But when he entered the house, he found that Abu Mihjan was only with one man, whereupon Abu Mihjan said, "This is forbidden unto you, God forbade you from syping."

3. These examples establish the. principle under Islamic Law that man's inviolability must be protected.

4. In view of what has been expressed above the Muslims in Pakistan have to individually and collectively enable their lives in accordance

with the teaching and requirements of Islam as set out in the Holy Qur'an and Sunnah. In the light of the aforesaid Constitutional provisions; the aforesaid reproduced words of God in verses 27 and 28 of the Surah Al-Noor in Holy Qur'an and the aforesaid Ahadeeth have to be followed by every Muslim of every walk of life for all the times at all the places and obviously by every citizen of Islamic Republic of Pakistan belonging to any creed, religion, tribe, pillar of the State and every Department.

1. At this stage it would be proper to express that entry in the house of a stranger/citizen by the Executive Authorities including the members of the Police Force has been streamlined by different codified provisions of law. Chapter VII of the Code of Criminal Procedure deals with the process to compel the production of documents and other movable property and for the discovery of the persons wrongfully confined. Part-B of Chapter VH ibid deals with Search Warrants. Section 96 deals with the issuance of Search Warrants in case the documents, letters and telegrams, mentioned in Sections 94 and 95 are to be produced/recovered. Section 98 relates to the search of house suspected to contain stolen property, forged documents etc. Section 100 relates to the search for person wrongfully confined. Section 102 deals with persons in-charge of closed place to allowthe search. These provisions project that Search Warrants have to be issued y the competent Courts and obtained by the Police/Executive Authorities about the aforesaid types of search on the basis of relevant Search Warrants. Even under Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979 the house cannot be entered and searched without any Search Warrant to be issued by the competent Magistrate, Collector, Prohibition Officer for the search of any intoxication. Same is the provision under Article 20 of the Control of Narcotics Substance Act, 1997 according to which the Search Warrant is to be issued by the Special Court for search of a house when narcotic is alleged to have been kept/stored in a house and the same is to be recovered. According to Notification No. F. 19(l)/96-A.III dated 26.8.1997 issued by the Ministry of Law, Justice, Human Rights and Parliamentary Affairs, Government of Pakistan the Special Courts shall comprise the Sessions Judge posted in a District of the Province of Punjab. Section 103 of the Code of Criminal Procedure provides that the search of the house is to be made by the police in the presence of two or more respectable persons of the vicinity and the occupant of the house may attend the proceedings. The wisdom behind is that sanctity stands attached to the privacy of the occupant of the dwelling and search of every type is to be made in the presence of the citizens according to the manner incorporated in the aforesaid procedural law.

2. It is on the ground, stand and assertion that the absconding accused/fugitive from law is present and hiding himself in a house, owned/possessed by a stranger or a relative; that the police takes the liberty as of legal right/competence to enter the house without a search warrant In this regard Section 46 to 49 of the Code of Criminal Procedure are generally invoked and banked upon by the members of the Police Force/Executive Authorities which are being reproduced as under:-

"46. Arrest how made.--(l) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) Resisting endeavour to arrest police-officer. If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death of with transportation for life.

1. Search of place entered by person sought to be arrested.-If any person acting under a warrant of arrest, or any police-officer having authority to arrest, has reasons to believe that the person to be arrested has entered into, or is within, any place, the person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

2. Procedure where ingress not obtainable.--If ingress to such place cannot be obtained under Section 47 it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose and demand of admittance duly made, he cannot otherwise obtain admittance; Breaking open zenana-Provided that, if any such place is an apartment in the actual occupancy of a woman (not being the person to be arrested) who, according to custom, does not appear in public such person or Police Officer shall before entering such apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.

3. Power to break open doors and windows for purposes of liberation.--Any police officer or the person authorized to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who having lawfully entered for the purpose of making an arrest, is detained therein."

3L At this stage it would be proper to refer to the right of the police to invoke the provisions of the aforesaid Sections 48 to 49 of the Code of Criminal Procedure, 1898. The main grievance of the public, as also voiced in this writ petition, is that it has become a practice that the police enter any house on the assumption that without any search warrant the house can be searched under the aforesaid Sections 47/48 of the Code of Criminal Procedure to arrest the accused required by the police. In my view this is rough and wrong interpretation of the said codified procedural law. The said Sections 47 and 48 provide that on reasonable information such power can be exercised but sufficient time must be granted to the female inmates to withdraw there from (Zananu Place) and obviously keeping in view their honour and prestige.

r

1. It is to be conspicuously noted with all the seriousness that the demand is to be made by the Police to enter a house under Section 47 of the Code of Criminal Procedure. Further according to Section 48 of the Code of Criminal Procedure it is after notification of his authority and purpose and demand of admittance duly made by the Police who cannot otherwise obtain admittance that the outer or inner door or window of any home or place can be broken open to effect the entrance into such place for the arrest of the accused person(s). The meanings of word Demand according to concise Oxford Dictionary are "request made as of right or pre-emptorily, thing so asked, urgent claim" Thus it can safely be expressed that demand is polite. Interpreting within the above-said campus both Sections 47 and 48 of the Code cf Criminal Procedure provide that demand shall have to be made by the Police Officer from tiie persons residing in a house for free ingress to apprehend/arrest an accused. It is after the notification of his authority and purpose and demand of admittance duly made that the outer or inner door or windows can be broken by the Police to enter the premises to arrest the accused subject to the condition that a female not being the accused present therein shall be afforded the opportunity/chance to retire there from the relevant premises. I would express that even in the Code of Criminal Procedure enforced on 1st July 1898 the sanctity was attached to the privacy of a person validly occupying the premises to be searched. In the afore-said manner the demand is to be made i.e. permission is to be obtained to enter a house properly and according to the situation. It is after the refusal of the occupants to let the police enter the premises for the arrest of the absconding accused that the authority is notified, demand for admittance is made and thereafter in case of refusal: doors, windows of the house can be broken open and even at that time the females of home have to be provided the opportunity to withdraw before the doors, windows are broken open to arrest the accused. Thus in Sections 47 and 48 of the Code of Criminal Procedure it is clearly provided that the entry is to be made through the door after obtaining the permission and in case of denial the authority to break open the door, window can be exercised which means that the act of spying cannot be performed and the occupants cannot be surprised as is generally done by the Police. It would be proper and informative to refer to Section 49 of the Code of Criminal Procedure according to which a police who has lawfully entered the house for the purpose of making an arrest of an accused is detained therein is competent and authorized to break open any outer or inner door or window of any house or place in order to liberate himself or any other person. Thus the lawful entry shall play the legal role and steal the eminence about the entitlement/authority of the police for the use of power in this regard as weU. It follows that the police officer has to enter lawfully and not in an illegal manner by scaling over the walls or immediately breaking open the doors, windows without notice/demand as contemplated under Sections 47 and 48 of the Code of Criminal Procedure. At this stage it is proper to refer to maxim "A COMMUNI OBSERVANTIA NONEST RECEDENDUM" i.e. "where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done same would not be lawful." It would express that it is well recognized rule of construction that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This being the position the Police cannot trespass the houses, dwelling places and make the entry therein illegally i.e. according to unlawful methods. Keeping in view the cumulative effect of the aforesaid analysis of the statutory provisions find discussion, it can safely be interpreted that the Police as the representative of the Ruler cannot enter the house without making the demand of admittance in the house and if the inmate(s) of the house refuse in the matter the Police can use the force for breaking open the door(s)/window(s). However, if the entry is not in a lawful manner as projected above the same would not confer the right to the police to liberate themselves in the afore manner provided under Section 49 of the Code of Criminal Procedure who can be detained therein and apprehended as the accused for trespassing the house, dwelling and against whom the criminal legal proceedings can be initiated by invoking Section 154 of the Code of Criminal Procedure and investigation, started under Section 156 ibid by setting the law into motion. However, the grievance generally voiced against the Police is that no sanctity is provided to Chaddar and Chaar Diwari. These sections do not empower the Police to enter the house through stretched Auto Ladders and scaling over the walls without making demands to enter the house through doors and by insulting, humiliating the male, female occupants authorized to use the premises. I would record that no free hand can be given to the Police to misuse the provisions of Sections 47 and 48 of the Code of Criminal Procedure according to its whimsical hypothesis in the Islamic Republic of Pakistan.

2. It would be proper to record that the Code of Criminal Procedure was enforced on 1.7.1898 in English language during the British Rule. It would not be out of place to express that even at that time for the enforcement of the procedural law more than a century before the provisions in the said Sections 47 and 48 were incorporated for the protection of "Chaddar and Char Devon" about which the credit is being taken these days for the last about two to three decades by the Executive Authorities including the Police having the political patronage. After one century the aforesaid law has not been changed. Pakistan is an Islamic State wherein better values are expected to be maintained. Our Constitution, 1973 provides the safeguard of the honour and prestige of the citizens. Under Article 4 of the Constitution, 1973 "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 person for the time being within Pakistan". It is provided in Article 9 that no person can be deprived of life or liberty save in accordance with law. According to Article 14 of the Constitution, 1973 the dignity of man and, subject to law, the privacy of home, shall be inviolable and no person will be subjected to torture for the purpose of extracting evidence. It has been provided in Article 25 of the Constitution, 1973 that all citizens are equal before the law and are entitled to equal protection of the law. If some member of the family has shown dis-respect to the rule of law by committing any offence of eu-dinary, sensational or heinous nature that does not mean that other family members can be put to the ordeal of facing dis-honour, dis-respect and harassment in the alleged manner. In this regard the aforesaid kind words of the Holy Prophet (p.b.u.h.) contained in the last Sermon (Khutba-tul-Hajja-tul-Wida) have to be again referred to that "henceforth, the offender himself will be responsible 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". Consequently the police is not competent to enter the house of a fugitive from law wherein he is not present/living while his nears and deara are putting up who have no concern with the occurrence and not liable for ths occurrence.

3. The home of a person is the best shelter and place of peace for him and against the provisions of law no person can be vexed while he is staying therein. Even the birds also reach their homes/nests in the evening. The peace of the home cannot be isturbed by the police or by any stranger, Nobody can enter therein without permission. It is commonly expressed and observed that "East or West, Home is the Best". In one's home, to enjoy privacy is the right of the inmates. We take this to mean freedom from human interference by any means, but there are other elements of equal importance; protection from physical harm and restraint, freedom rom direction and peaceful enjoyment of one's surroundings. Arbitrary arrest at home interferes with peaceful enjoyment and involves irection which also is an invasion of privacy and the same cannot be allowed without factual, legal and formal justification as expounded supra.

4. At this stage it would be illuminating to refer to the word of the Right Honourable Alfred Denning one of the Lords Justices of his Majesty's Court of Appeal in England published in the Journal titled as "Freedom under the Law" by Stephen and Sons Limited, 1949. The relevant portion at page 103 is reproduced as follows:-

"The problem before us today is not so clear-cut. It is more subtle, as is to be expected in a more complex society; but it is in principle the same, and it must be solved by the Courts and not by a civil war. For today the executive have great powers over the lives and property of every one of us. No one will dispute that the powers exist, for Parliament has granted them, but the question is what remedy the Courts provide if they are mistised or abused.

AN ENGLISHMAN'S HOUSE IN HIS CASTLE.-Let us consider, then, the power to enter a man's house against his will; for this is a power which has been greatly extended of late. It is a power which we must watch with care, because, next to our personal freedom, we value most the freedom of our homes. 'An Englishman's house is his castle' we say; and our feelings about it were well summed-up by the great Earl of Chatham when he said "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail-its roof may shake-the wind may blow through it-the storm may enter-the rain may enter-but the King of England cannot enter-all his force dares not cross the threshold of the ruined tenement". These proud words take their legal origin from Magna Carta, when King John promised that no free man should be disseised of his free tenement except by the law of the land. The freedom of an Englishman's house was there put on an equal footing with his personal freedom."

1. The aforesaid positive words cannot be ignored as no free man should be deprived of the comfort of his very tenement except the law of the land, which in such like cases are flagrantly being violated through transgression of authority by the police officers. Legally the freedom of a house is on an equal fooling with the freedom of a person. It can, therefore, safely be deduced that if the Right Honourable Alfred Denning of United Kingdom believes in the aforesaid type of golden ideas why the same should not be adopted and followed in Pakistan and why much importance in negative form is granted to Sections 47 and 48 of the Code of Criminal Procedure enforced on 1.7.1898 during British Rule and can be amended in accordance with the religious commands of Islam, if not deleted or omitted.

37, However, no law allows to the police to interfere or by-pass the codified law. It would be proper to record that about the infringement of right, suffice it to express and observe that it is equipped with inherently in­ built fetters rendering it subservient to reasonable restrictions imposed by law. If it is the duty of any acquaintance or a relative of ugitive from law not to give shelter to the absconding accused, it is also the duty of the police not to enter in an autocratic manner the house on the basis of the figment of the brain coupled with the power/authority being enjoyed as reproduced supra. At this stage it can be expressed that iu a hot pursuit of a fugitive from law/absconder the police can enter the house of any person without demand of admittance i.e, without permission wherein the fugitive from law enters and intends/desires to obtain the shelter. In tSiat eventuality no objection is made or raised by inmates who may be even the close relatives of the absconding accused. Rather the help is provided and the cooperation is extended to the police whenever such an occasion arises. Even the persons of the vicinity not only take part alongwith the police officials towards the success of such a hot pursuit, the bold and brave acts of the members of the Police are approved and appreciated who have to perform their duty at the risk of their lives as the persons effecting the hot pursuit of the fugitive from law may have to face the firing at the hands of the said type of accused causing injuries or even death.

1. Section 100 of the Pakistan Penal Code is relevant in the matter according to which the right of private defence of the body extendeds to causing death or any other harm to the assailant if the offence which occasions the exercise of the right fee of any of the descriptions enumerated therein which are six la cumber and according to the description enumerated as sixthly "Aa assault with the intention of wrongfully confining a person under the circumstances which may reasonably cause him to apprehend that he be unable to have recourse to the public authorities for his release". Further under Section 101 Pakistan Penal Code, if the offence be not of any of the descriptions enumerated in the last preceding section (Le. Section 100 Pakistan Penal Code) the right of private defence does not extend to the voluntary causing of death to the assailants but does extend under the restrictions nsentioned in Section 99 Pakistan Penal Code to the voluntary causing to the assailant of any harm other than death. In the instant case in the comments the Police Officer has expressed that he has no intention to harass the petitioner and his family members. However, the filing and pendency of this writ petition at the instance of Noor Muhammad petitioner is not a part of luxrious litigation who by incurring the expenses of the writ petition had to spend the amount to maintain the dignity and honour of the family which fact is also relevant to give weight to the grievances voiced through the filing of this writ petition. As such it can safely M be expressed that there was no justification on the part of the respondent-SHO to enter the house of the petitioner as alleged by him and to shower insult on his family who has transgressed his authority. It shall not be out of place to record that it has become a common feature that at the direction of the Police Officers the subordinates and particularly the Police Constables cross the limits by trespassing the houses of the citizens as is in the present case. They trespass the houses of the citizens without any search warrant. As projected abovtj under the Islamic Law and according to the Code of Criminal Procedure as well as the Pakistan Penal Code without factual justification, without authority, without getting the permission of the flccuBant through the making of demand of admittance (entry) or without a search warrant no stranger including a Police Officer can enter the house of any person. The Police Officers should keep in mind that the citizens are showing the restraint and broad mindedness in such matters of the transgression of authority on their part. Otherwise, as expressed above, if any stranger including the member of the police force is confined in the house is beaten or injured in such circumstances projected in this writ petition, the inmates of the house/dwelling place would not be committing any offence. These are the days when the police should know that the people are becoming right conscious and the violation of legal and human rights shall not be tolerated by the citizens any more. Such a working of the police not only offends the law, the same is also violative of the religious commands, legal ethics and human rights. Such type of police working is breeding-up hatred amongst different groups/community/persons of country on one side and the Police on the other side and it is one of the reasons that law and order situation is worsening. In such like cases the working of some of the Officers/Officials of the Police Department is tarnishing its name as well as the working of the Executive as a whole.

2. The fact about the presence of the absconding accused in the house is not mentioned in the case-diary and at its own whims and choice the entry is made in the house of his relatives, friends as well as nears and dears. The odd hours are chosen to enter in the house. Some times the walls are scaled over. On some occasion the iron auto-ladder, which can be stretched, is used to enter the house through boundary wall to the annoyance of occupants. The womenfolk are not allowed to retire keeping in view the statutory provision incorporated in Section 48 of the Code of Criminal Procedure and the custom, practice of the family. In such state f affairs at times some mischief mongers, through impersonation in police uniform, trespass the houses and commit he dacoities when the neighbours do not dare to meddle in the matter lest the police may not feel offended and/or they may not be injured/killed. The result is that it plays havoc with the fortune of the family. In such circumstances it can be expressed that the aforesaid type of working of the police is also responsible for worsening the law and order situation. It is also breeding-up hatred amongst different groups/communities on the one side and the police on the other side which is not a happy sign keeping in view the individual and collective patriotic feelings. I am, therefore, tempted to express that the right to shelter is not a state charity nor condescending grace but basic share, as of right, in the happiness of humanity. Rather shelter is the root of happiness. The State, accordingly, is under a Constitutional mandate to create conditions in which fundamental rights guaranteed to individuals/citizens could be enjoyed by all. Thus this Constitutional Court is in a safe position to watch and pass/issue the writ in favour of the aggrieved party which is none else than the petitioner. The virtues and working of the Constitution are based on those who are called upon to work it and happen to be a good lot. It means that he police shall have to avoid such a working in the larger interest of the Nation. The Police have coined the method for putting the pressure upon the absconding accused for surrender by showing their entry in the house(s) of his relative(s) on the ground of his presence therein who is shown to have made good his escape even though strong contingent of Police is said to be present. A case under Section 216 Pakistan Penal Code is registered to justify their action simply to vex the concerned relatives involved in the criminal case. They are arrested, but are not bailed out even though the said Section 216 Pakistan Penal Code is bailable as their arrest is not shown in the Daily Diary of the Police Station in violation of Section 44 of the Police Act, 1861. The parents, brothers, sisters etc., are pressurized and tortured in illegal, absurd and abnoxious manners. However, an important aspect is ignored by the police that disobedient sons, brothers of the type of Abdul Sattar absconding accused of the murder case are source of insult, degradation and inconvenience to the family where many problems creep-up and ooz out due to their being out-laws. Even the sisters of the fugitives from law are divorced by their respective spouse. The engagements of the sisters and brothers are broken, unfolded. Ifthe family is educated the brothers and sisters studying in the educational institutions or pursuing respectable professions(s) have to face the sarcastic rebukes who even feel the difficulty to sit in the social gatherings and thus cannot find a respectable place in the society. On the one hand the petitioner stands ruined due to the bad habits of his accused son Abdus Sattar while on the other hand he alongwith other family members is being subjected to cruel and illegal treatment of the Police who, as such, is entitled to the discretion of this Constitutional Court.

3. 1 would be glossing over an important aspect of the matter in hand by expressing that a person, amble or female, cannot be detained in any Police Station or at some other place unless he or she is required in a cognizable and non-bailable offence whose arrest is to be shown in the Daily Diary of the Police Station under Section 44 of the Police Act, 1861 and under Rule 22.49(h) of the Police Rules, 1934. However, the arrest is not shewn even though due to a wrong entry in the Daily Diary a police officer can be dismissed under Rule 22.50 (para 1) of the Punjab Police Rules, 1934. Under Section 491 of the Code of Criminal Procedure the High Court has been empowered to issue the direction of the nature of a habeas corpus and pass the order that the person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law and also that a person is illegally or improperly detained in public or private custody within such limits be set at liberty. Under Article 199(l)(b)(i) the High Court may on the application of any person make an order directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is being held in custody without lawful authority or in an unlawful manner. Section 100 of the Code of Criminal Procedure empowers any Magistrate of the First Class or any Sub-Divisional Magistrate to issue search warrant about the recovery of any person whose confinement amounts to an offence who after recovery sLall be procuded before the concerned Magistrate and who may make such order as in the circumstances of the case seems proper. Thus without any legal justification no person can be detained by the police as agitated in the instant matter as neither petitioner and family members are named in any FIR nor their names have been mentioned in the daily diary of Thana. It is a matter of common knowledge that illegal detention of the citizens by the police has become an order of the day. Inspite of the legal restraint/check the police is travelling on the same path with good speed. These days the police, whose duty is to protect the life and liberty of the citizens and claim to be Mohafiz,is itself usurpring the same and has become a source of inconvenience for them which type of grievance has been voiced through the filing of this writ petition. To deprive a person of his liberty is a serious matter being violative of law, justice and fair play to which an exception has to be taken. All the citizens in urban or rural areas are entitled to the protection of this Court. Thus the petitioner and his family members cannot be asked to attend the Police Station due to the mis-deed/offence committed by his son Abdus Sattar who was fugitive from law at the time of the bringing of this writ petition.

4. Blackening of the faces of the accused and their family members/relatives, making them to ride on donkeys, getting their head, beard, eye brows, eye lashes etc. shaved, their old and young male and female members to sit in Police Station, their mis-handling creating shock- wave lawful condition, taking off their shoes and making them to stand for hours in cold as well as in scorching heat according to the available season, dragging them out bare-footed with their hands cuffed and handkerchief inserted in the mouth etc. etc. are some of the other degrading methods adopted by the police through transgression of authority which are not permissible by religious commands, law of the land and norms of legal ethics as well as human rights. The aforesaid degradation of the human-beings re offences in the criminal field for which private complaints in terms of Section 190 of the Code of Criminal Procedure Code can be filed and even civil suits for recovery of damages can be instituted. However, the important and ticklish question to be posed is as to who can dare do so ? The police is a disciplined force to which training is imparted and the aforesaid type of recalcitrant and autocratic attitude in criticized and objected to by the innocent aggrieved victims. Such a working of the police cannot be termed to be in accordance with the Injunctions of Holy Qur'an, Sunnah of the Holy Prophet (p.b.u.h.), dignity of a man and according to the public conscience. It is really Islamic in Islam which is the State Religion of Islamic Republic of Pakistan having the Constitution, 1973 with the aforesaid Islamic background wherein and whereby Islamic Ideology has to be preserved and followed ?

5. It is the will, discretion of the citizens to contact the Police Officers posted in a Police Station or their Superior Police Officers for the redressal and removal of their difficulties. The police may summon the person(s) whenever any matter is referred for report, viz; like the issuance of licence of fire arm/establishment of 'Sarai', cinema, holding of unfair etc. etc. as provided by the relevant Rules incorporated in the Police Rules, 1934. The power to investigate the criminal cases is incorporated in Chapter XXV of the Police Rules, 1934 Volume-Ill. The Investigating Officer can join any concerned person in the investigation to reach at the true, right conclusion as his fair and impartial investigation in terms of Section 4(1)1/160 to 166 of the Code of Criminal Procedure, 1898 is the foundation of Justice to be administered by the Court. For the purpose of the emergence of the true picture in the matter the relevant Rule 25.2. is reproduced as under :--

"25.2 (1). The powers and privileges of a police officer making an investigation are detailed in Section 160 to 175, Criminal Procedure

Code, Powers of Investigating Officers.--An Officer so making an investigation shall invariably issue an order in writing in Form 25,2, (I) to any person summoned to attend such investigation and shall endorse on the copy of the order retained by the person so summoned the date and time of his arrival at, and the date and time of his departure from, the place to which he is summoned. The duplicate of the order shall be attached to the case diary.

(2) No avoidable trouble shall be given to any person from whom enquiries are made and no person shall be unnecessarily

detained.

(3). It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to •discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."

44 As expressed above the Investigating Officer can summon any person concerned with the occurrence/case to join the investigation and in this regard he has to summon the person through a summons/notice. He cannot act and proceed in an autocratic manner as being projected in this judgment which revolves around the common complainant of the citizens in the matter. In Chapter XXV of Police Rules, 1934 the specimen of the Proforma to summon any person during the investigation has been provided/incorporated with has made out that on the whims of a Police Officer, without reasons, no person can be summoned by the police. Even the date, time for appearance and time for departure after conclusion of investigation to his extent has to be mentioned/noted therein, a copy of which has to be provided to that person. The specimen of the relevant Proforma is being reproduced as under for proper appreciation of the subject in hand:--

"POLICE RULES. 1934.

INVESTIGATION.

FORM NO. 25.2. (1).

ORDER TO REQUIRE ATTENDANCE AT INVESTIGATION UNDER SECTIONS 160 AND 175, CRIMINAL PROCEDURE CODE.

NAME Son of Caste, Resident of

Whereas the presence of the aforesaid person is necessary for the purpose of enquiry into the offence reported to have been

committed under Section—-at Police Station............ ; therefore the

said person is hereby directed to appear before the undersigned at

(place hour..,........ date......... ) there to give such information

relating to the said alleged offence as he may possess.

Signature and Designation of issuing Police Officer. Date Hour

Note :--

......mentioned in this order attended on at and

was permitted to leave on

at at.

Dated____________ .

Signature and Designation of issuing Police Officer."

\

1. The aforesaid Rule 25.2 and Proforma provided in Police Rules, 1934 have made out as to how a Police Officer/Investigating Officer has to involve himself in the investigation of a case who has to give paramount consideration to the convenience of the concerned 'persons' mentioned there in the rule who have to be summoned by him. He cannot vex any person through his removal by unlawful methods. However, it was pointed out that family members of the absconding accused, Abdus Sattar, were insulted, humiliated by forcible removal, making them to stand and to remain present in the Thana and that some of them were bekboured as well as given the shoe beating publically. It is unfair, illegal and against moral ethics. It is a common complaint during these days that the police has adopted the practice of bearing with shoes sticks, slape in public and police stations the other relatives of the absconding accused. Law of our land does not give this authority. Even the accused cannot be given the shoe beating or belaboured in public or secretly. If during such an illegal practice some injury is caused to the victim the police is criminally liable. Sections 337-Q to 337-U of the Pakistan Penal Code deal with the "Arsh" about different organs of body. Section 337-V Pakistan Penal Code covers the "Arsh" regarding uprooting of hair which in my view also includes shaving all the hair of the head, beard, moustaches eyebrows, eye lashes or any part of the body. The "Arsh" is to be determined according to the yard-stick provided in the aforesaid sections which is to be paid by any accused who may be member of the public or the public servant including the police.

2. To enjoy the protection of law and to be treated in accordance wi:h kw is the inalienable right of every citizen of Pakistan under Article 4 of the Constitution, 1973. The police officers have not been given un-bridled au"_honty to humiliate and ridicule the citizens without any iota of evidence against them. To call a person to Police Station without legal and factual jusuficadon, make him to sit there against his will,/>rima facie amounts to confinement and action needs to be taken against the Police. Q

3. It is also proper to refer to Section 54 of the Code of Criminal

Procedure which reads as under :--

'54. When police may arrest without warrant--(l) Any police officers may, without an order from a Magistrate and without a warrant, arrest :--

firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or crediable information has been received, or a reasonable suspicion exists of his having been so concerned;

secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breacking.

thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Provincial Governments;

fourthly, any person in whose possession anything in found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such

things;

fifthly , any person who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape from lawful custody;

sixthly, any person reasonably suspected of being a deserter from the armed forces of Pakistan;

seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Pakistan which, if committed in Pakistan, would have been punishable as an offence and for which he is, under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in Pakistan.

eightly, any released convicted committing a breach of any rule made under Section 565, sub-section (3);

ninthly, any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition."

1. The general impression amongst the Police Officers is that any person can be arrested by them without warrant It is generally expressed by some of the autocratic Police Officers that they can arrest any person under Section 54 of the Code of Criminal Procedure without warrant and for that matter they can enter/get ingress in any premises. Legally it is not so. Which stands projected by the aforesaid statutory provisions. Some times the male, female, old young relatives of the absconding accused are arrested, emoved under Section 54 of the Code of Criminal Procedure whose arrest is not shown in the Daily Diary and out of them some are even crippled or eliminated. The habeas petitions are filed and un-necessary expenses of imposed litigation have to be borne. To maintain the balance in the social set-up and in the larger interest of the citizens the un-fetterd powers cannot be allowed to be used by the Police or the Executive/Political Authorities at whose command also they have to proceed in the aforesaid illegal and un­ authorized manner.

2. During the arguments learned counsel for Noor Muhammad petitioner expressed the apprehension regarding extra judicial killing. Even though this complaint of the petitioner has not materialized and there is no killing of any person in the instant matter, yet it is in the interest of justice that the aspect about the authority and competence of the police to eliminate/kill any person, without submitting the case to the Ruler, (i.e. the JUDICIARY as one pillar of the State) is also considered, analysed, dissected and determined.

3. Homicide is the killing of human being by a human being. Homicide is of three categories; it may be premeditated, involuntary, or voluntary.

4. Homicide is either lawful or unlawful.

5. Lawful homicide or simple homicide includes several cases falling under the General Exceptions contained in Chapter IV of the Pakistan Penal Code. Lawful homicide may be divided, for the sake of convenience, into (1) excusable homicide and (2) justifiable homicide. "Excusable homicide" includes the following cases :--

(a) Where the death is caused by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution (Section 80 P.P.C.)Cb) When the death is caused by a child or a person of unsound mind or an intoxicated person (Sections 82, 83, 84 and 85 of

P.P.C.).

(c) Where the death is caused intentionally by an act done in good faith, for the benefit of the person killed when (i) he, or if a minor or lunatic, his guardian, has expressly or impliedly consented to such an act (Sections 87 and 88 P.P.C.) or (ii) where it is impossible for the person killed to signify his consent, or where he is capable of giving consent and has no guardian from whom it is possible to obtain consent in time for the thing to be done with benefit (Section 92 P.P.C.)

'Justifiable homicide" includes the cases where the death is caused:-

(a) by a person who is bound, or by a mistake of fact, in good faith, believes himself bound by law (Section 76 (P.P.C.);

Cb) by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be given to him by law (Section 77 P.P.C.);

(c) by a person acting in pursuance of the judgment or order of a Court of Justice (Section 78 P.P.C.). The execution of a lawful sentence of death do not constitute a legal offence.

(d) by a person who is justified or who by reason of a mistake of fact, in good faith, believes himself to be justified by law (Section 79 P.P.C.);

(e) by a person acting without any criminal intention to cause harm, and in good faith, for the purpose of preventing or avoiding other harm to person or property (Section 81 PPC); where the death is caused in exercising the right of private defence of person or property (Sections 100 & 103 P.P.C.).

1. "Unlawful homicide" is also known as "culpable homicide". Culpable homicide under the provisions of Pakistan Penal Code would be murder if the act by which the death is caused is done with the intention of causing death, or Secondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

2. The State punishes the culprits in order to achieve four ends namely; reformative, retributive deterrent and preventive. In other words, the accused are punished so that they are reformed, the complainant's vengeance is wreaked, the accused are put behind the bars or disabled for some time and are prevented from the commission of the offence and lastly the society including the accused is deterred from repeating the commission of an offence. Both personal and public sentiments demand that the person,who has made others suffer unjustly, should himself be made to suffer in return The principal objects of punishment, however, is the revention of offences.

3. Article 9 of the Constitution, 1973 being relevant has to be referred to, according to which no person shall be deprived of liberty or life save in accordance with law. At the time of advent of our religion Islam and coming into power, Holy Prophet uhammad (P.B.U.H.) gave the judgments about the disputes brought before him who even referred the matters to his companions (R.A.) for decisions who also gave the judgments. During the life time of the Holy Prophet (P.B.U.H), the Qazis (judges) werealso appointed who performed the functions of administration of justice. The aforesaid aspect has made out that the Executive of time had no exclusive authority to decide the disputes. Even if one person used the authority of Executive and Judicial powers simultaneously, the cases/disputes were resolved through Judicial authority, powers and functions and not by Executive authority. The Holy Qur'an and Sunnah is the source of law. Keeping in view this background, the Constitution of the Islamic Republic of Pakistan, 1973 has to be referred to according to which Islam is the State religion and the affairs of the State are to be run by its established three pillars, viz.; Parliament, Judiciary and Executive. In fact the purpose of a Constitution is not merely to create the organs of the State, but to limit heir authority, because if no limitation was imposed upon the authority of the organs there will be complete oppression resulting in chaos. The legislature has to frame the law, the judiciary has to interpret the law and administer the justice and Executive has to enforce the same. Thus according to our Constitution the criminal case or Civil suit cannot be decided without submitting the same to the Ruler who is none else that the Judiciary. The criminal cognizable cases including the murder cases are reported to the police. The investigation is conducted. Due to the jjrzma facie existence of the Charge, the challan is submitted before the Court. The trial is concluded. In case of conviction or acquittal the appeal/revision is provided. The death penalty is confirmed by the High Court The matter can be taken up to the Honourable Supreme Court of Pakistan. In cases relating to offences effecting the human body and human life (mentioned under Chapter XVI of the Code of Criminal Procedure), the mercy for remission or commutation of the sentences) can be preferred before and disposed of by the Provincial Government, Federal Government or the President under Section 402-C of the Code of Criminal Procedure Code; but it is with the consent of the victim or as the case may be, of his heirs; that the aforesaid authorities can suspend remit or commute any sentence recorded under the aforesaid Chapter XVI ibid.The death penalty is executed in Jail premises in the presence of the Jailor, Executive Magistrate 1st Class, Medical Officer and heiris) of the deceased. At that relevant time of execution of capital punishment, Police has no role to play. That is the prescribed procedure as to how the future of the accused as condemned prisoner/convict is decided. However, sometimes the law is taken in its own hands by the Police. The grievance/complaint of the public/affected party is that the accused or their relatives are allegedly driven to deserted areas who are directed to unlock the hand cuffs and to run in the darkness for becoming fugitive while during that process the accused is shown to have been killed in an encounter. This Ingredient of violence had become a routine matter in our Province till the recent past, 56. I have to express that in the recent past the accused under police custody were being killed by the Police without trial which is commonly known as 'Extra-Judicial Killing". Legally all citizens are equal in the eye of law and are entitled to equal protection of law under the constitution, 1973. No citizen can be condemned/killed unless convicted by a Court of competent jurisdiction and the convict has a right to appeal in the High Court and the Supreme Court With respect to the extra-judicial killings the news is generally got published in the Print Media and read by the public that the accused persons were being escorted by the police for the recovery of some incriminating article or the pointedness of some place of occurrence during the investigation of some case when his accomplices/relatives attacked the convoy /police vehicle to get them released and the accused died in the ensuing encounter. No scratch is found on the body of the Police Officers. No mark of firing is seen on the police vehicle. The accused even though chained/fettered are found dead at the spot It cannot simply be under stood as to how it is possible that every time the fettered person(s) get killed, but not an injury/scratch is received by any Police officer or by the persons arriving there to get released the helpless, hand cuffed person(s) and no mark of firing is seen on the vehicle.

4. The persons who arrive and attack/effect firing simply make good their escape and the matter is dropped. The fake/staged encounters organized by the Police are not accepted by the citizens and I would express that the same are rather not acceptable. It is said that extra-judicial killings are committed to gain out of turn promotions and to earn the medals which is not being taken in good taste by the citizens. The news published in the newspapers is read and fades from the minds and memory after some days.However, extra-judicial killings cannot and should not be taken lightly and an exception must be taken thereto. Rather the political personalities approved such a working and showered the laurels on the police officials showing the disputed feats for the reasons best known to them. It has to be expressed that it is the proper time that the police authorities are made conscious and careful and also advised to abstain from the aforesaid type of working which is practically performed by it which is also the complaint of the citizens. Thus it is the right time that the Government warns the police men to refrain from torturing innocent people and be prepared for stern action. In the eyes of law an accused is innocent, unless convicted. The trial of the accused is to be conducted and he cannot be eliminated in the aforesaid "Quick Fix Manner". It can safely be observed that no accused is devoid of the justice of the Court before which the case is to be submitted for trial and decision.

5. It is a matter of common knowledge that whenever and wherever there is an allegation against a Police Officer about the killing/ murder of a person-known as extra-judicial killing-the FIR is immediately registered by the Police, according to their own whims to the exclusion of the stand of the effected party and in case the concerned party/aggrieved party is desirous to get registered the FIR the plea is taken by the Police that the First Information Report about the occurrence had already been registered, the second First Information Report cannot be recorded and the concerned party may contact the concerned Police to get recorded its version. I am tempted to express that all this is done to save the skin of the Police Officers/ officials against whom the allegation of violation of law, i.e. commission of murder (extra-judicial killings) is made. Practically an FIR wherein the Police is not involved is not registered with that much promptness and speed as is done in a matter wherein a member of the police force is/are the accused according to the version of the heirs/relatives of the deceased. The grievance of the public is that the FIR is not registered against the police and if it is registered then challan is not submitted as false and tainted investigation is conducted by the fellow police officers and nvariably the accused are declared as innocent. In this respect an Independent Agency comprising retired Judges, retired Army Officers and retired Bureaucrates shall have to be constituted for the correct and forceful investigation which is the foundation of administration of justice.

6. Our Holy Prophet Muhammad (P.B.U.H) has professed the infliction of legal punishments impartially by discarding the distance and class of rich, noble and the weak people. Following hadith is reproduced in this context:

"778. Narrated Aisha (R.A.): Usama approached the Prophet (S.A.) on behalf of a woman (who had committed theft). The Prophet (S.A.) said, "The people before you were destroyed because they used to inflict the legal punishments on the poor and forgive the rich. By Him in Whose Hand my soul is! if Fatima (the daughter of the Prophet (S.A.) did that (i.e., stole), I would cut off her hand."

1. Who is Fatima (R.A.) and what is her status. She is the daughter of Holy Prophet Muhammad (P.B.U.H.) She is the wife of Ali-al- Murtaza (R~A.). She is the respected mother of Hazrat Hassan (R.A.) Hazrat Hussain (R.A.). She is the Head of females in the Heaven. Thus the Holy Prophet i P.B.U.H.) expounded the theory of equality before law.

2. The Holy Prophet (S.A.) has also said as under:-

"Do unto others that you would have been done unto you."

1. Even though the aforesaid bacon of light has the perennial nature which is to be necessarily followed and acted upon, yet the aforesaid type of brutalities and injustices were carried out and without prejudice it can be expressed that political patronage was responsible about this type of conduct of the Police which took itself above the law of the land. It can safely be xpressed that it had become an order of the day, violative of Article 25(1) of the Constitution, 1973 expounding the theory of equality of citizens which reads that "All citizens are equal before law and are entitled to equal protection of law".

2. Legally if there is an allegation of murder of a person his close relatives /heirs/one of the eye witnesses of the occurrence have the right that the First Information Report about the murder of the deceased is recorded in the Register of FIRs maintained under Rule 5 Chapter XXIV of the Police Rules, 1934 and the defence version of the killer (accused) has to be taken, recorded during the investigation under Sections 4(1)(L)/162 of the Code of Criminal Procedure which is to be proved during the trial. Legally the Investigating Officer cannot assume the role of a Judicial Officer. The correct legal position has been expressed above even though the poor, in-effective relatives of the victim have to keep quiet who can also file a private criminal complaint in terms of Section 190 of the Code of Criminal Procedure, but remain in-active and dis-interested. After all the State power has the upper hand!

3. God the greatest has bestowed life to a person as a trust (Amanat) and breach of trust (khianat) has not been allowed by Him. This is the reason that suicide through any form, viz; self immolation, taking of poison, hanging, firing etc. etc. has strictly been prohibited and declared as 'Haraam'.Suicide is a sin. If one cannot murder himself i.e. is not allowed to commit breach of trust regarding his own life by committing suicide, how he can commit "Khianat" in others life through murder/extra-judicial killings while no police man is injured or receives any scratch. Law cannot be illegally stretched to eliminate the persons without trial. Rather the law can be used for the betterment of the man-kind and not to eliminate the citizens and eclipse the moral, legal values.

4. It is also happening so, as superior police officers not only defend the subordinates, they also prompt them in the matter. They do not restrain them. I would quote without being disrespectful, that they may chastise/ admonish or even administer beatings to their children, kids for their betterment and good future; they do not check their subordinates from going astray and thus lower the prestige of the Department which is not happy sign as the same is widening the gulf between the Public and the Police. If we see the meanings of words 'Public' and 'Servant\ individually in the Dictionary and later on read together as 'Public Servant', we can well express as to how the 'Public' is helpless before the 'Public Servants' in such like episodes. It is recorded that too much familiarity breeds contempt and too much hatred is the foundation of crisis.

5. There is nothing more inviolable, sacred than man's life. Quranic verses are numerous in this respect. The Holy Qur'an commands that Believers should not kill the Believers intentionally. Some statements of Allah, the most High, are being reproduced as follows in this context:-

"178. Ye who believe! The law of equality Is prescribed to you In cases of murder. The free for the free, The slave for the slave, The woman for the Woman. But if any remission Is made by the brother Of the slain, then grant Any reasonable demand, And compensate him With handsome gratitude. This is a concession And a Mercy From yonr Lord. After this whoever Exceeds the limits Shall be in grave penalty.

(2.178)

1. If a man kills a Believer Intentionally, his recompense Is Hell, to abide therein (For ever): and the wrath And the curse of God Are upon him, and A dreadful penalty is prepared for him.

(4. 93)

1. We ordained therein for them: "Life for life, eye for eye, Nose for nose, ear for ear, Tooth for tooth, and unds Equal for equal." But if Any one remits the retaliation By way of charily, it is An act of atonement for himself. And if any fail to judge By (the light of) what God Hath revealed, they are (No better than) wrong-doers.

(5.48)

1. Those who Invoke not, With God, any other god, Nor slay such life as God Has made sacred, except For just cause, nor commit Fornication;--and any that .does This (not only) meets punishment

'(25.68)

1. About the aforesaid verses 25.68 Abdullah Yousaf Ali; great Scholar, has expressed the opinion that "Here three things are expressly condemned: (1) false worship, which is a crime against God; (2) the taking of life, which is a crime against our fellow-creatures; and (3) fornication, which is a crime against our self-respect, against ourselves. Every crime is against God. His creatures, and ourselves; but some may be viewed more in relation to one than to another. The prohibition against taking life is qualified; "except for just cause"; e.g. in judicial punishment for murder, or in self-preservation, which may include not only self defence in the legal sense, but also the clearing out of pests, and the provision of meat under condition of Halal; see n. 698 v.5".

2. In furtherance thereof verse 5.5. is reproduced as under:-

3. They ask thee what is Lawful to them (as food). Say: Lawful unto you Are (all) things good and pure; And what ye have taught Your trained hunting animals (To catch) in the manner Directed to you by God; Eat what they catch for you, But pronounce the name Of God over it; and fear God; for God is swift In taking account.

(5.5)

1. Following is the opinion of Abdullah Yusaf All in this regards:

"698. In the matter of the killing for meat, the general rule is that the name of the true God should be pronounced as rite in order to call our attention to the fact that we do not take life thoughtlessly but solemnly for food, with the permission of God, to whom we render the life back."

1. What to talk of the killing of a person without legal justification by any person including the members of Police the Al- Mighty God has provided the general rule for the pronouncement of His Name in the matter of slaughter for food so that the life is not taken thoughtlessly. What a quantum of care has been ordained by God, the most High?

2. According to Al-Qur'an "he who kills a human being unjustly has not killed only an individual, but has killed humanity". That is to say, he violated that social self which is the essence of humanity. Individual physical life has to be respected and secured, but is to be sacrificed when its preservation would stand in the way of the realisation of the social or the spiritual-self.

3. Following are some of the Ahadith pertaining to unjustified/Extra-Judicial Killings which are meant to explain the practical implications of the verses of the Holy Qur'an on the subject--

(I) "4. Narrated Abdullah (K.AJ.--The Prophet (S.A.) said, "The first cases to be decided among the people (on the Day of Resurrection) will "be those of blood shed."

(H) 2. Narrated Ibn'Unwr flLAJ.»AUah's Apostle (SA) said, "A faithful beiievery remains at liberty regarding his religion unless she kills somebody unlawfully."

OH) 1. Narrated 'Abdullah (RA).-A man said, "O Allah's Apostle! Which sin is the greatest in Allah's Sight?" The Prophet (S.A.) said, "To set up a rival unto Allah though He Alone created your". The man said, "What is next?" The Prophet (S.A.) said, "To kill your son lest he should share your food with you". The main said, "What is next?" The Prophet (S.A.) said, "To commit illegal sexual intercourse with the wife of your neighbour." So Allah Al-Mighly revealed in confirmation of this narration:

'And those who invoke not with Allah, any other God, Nor kill such life as Allah has forbidden except for just cause nor commit illegal sexual intercourse And whoever does this shall receive the punishment.'

(25:68)

(TV) 3. Narrated 'Abdullah bin 'Umar (RA).-One of the evil deeds with bad consequence from which there is no escape for the one who is involved in it is to kill someone unlawfully.

'And if anyone saved a life (from death)........ (5:32)

Ibn 'Abbas (R.A.) said, "Anyone who regards lulling prohibited unless for a reasonable cause (then it is as if) he saved the life of all mankind."

(V) 6. Narrated 'Abdullah fK.AJ.-The Prophet (S.A.) said, "No human being is killed unjustly, but a part of responsibility for the crime is laid on the first son of Adam who invented the tradition of killing (murdering) on the earth. (It is said that he was Qabil).

(VI) 7. Narrated 'Abdullah bin 'Umar (RA).-Tbe Prophet (S.A.) said, "After me (i.e. after my death), do not become disbelievers, by striking (cutting) the necks of one another.

(VH) 8. Narrated Abu Zur'a bin 'Amr bin Jarir (RA).-The Prophet (S.A.) said during Hajjat-al-Wada, "Let the people listen to me. After me, do not become disbelievers, by striking (cutting) the necks of one another."

(VHI) 9. Narrated 'Abdullah bin 'Amr (RA).-The Prophet (S.A.) said, "Al-Kaba'ir(the biggest sins) are: To join others (as partners) in worship with Allah, to be undutiful to one's parents," or said, "to take a false oath". (The subnarrator, Shu'ba is not sure) Mu'adh said: Shu\ba said, "Al-kaba'ir(the biggest sins) are: (1) Joining others as partners in worship with Allah, (2) to take a false oath (3) and to be undutiful to one's parents, "or said, "to murder (some one unlawfully).

(DO 10. Narrated Anas-bin-Malik (K.Aj.-The Prophet (S.A.) said, "The biggest ofAl-Kaba'ir (the biggest sins) are: To join others as partners in worship with Allah, (2) to murder a human being, (3) to be undutiful to one's parents (4) and to make a false statement," or said, "to give a false witnesses".

(X) 12. Narrated 'Ubada-bin-As-Samat (K.AJ.--I was among those Naqibs (selected leaders) who gave the pledge of allegiance to Allah's Apostle (S.A.). We gave the oath of allegiance, that we would not join partners in worship besides Allah, would not steal, would not commit illegal sexual intercourse, would not kill a life which Allah has forbidden, would not commit robbery, would not disobey (Allah and His Apostle), and if we fulfilled this Pledge we would have Paradise, but if we committed any one of these (sins) then our case will be decided by Allah.

(XI) 14. Narrated Al~Ahnaf-bin-Qais.~l went to help that man (i.e. Ali), and on the way I met Abu Bakar who asked me, "Where are you going?" I replied, "I am going to help that man". He said, "Go back, for I heard Allah's Apostle (S.A.) saying, "If two Muslims meet each other with their swords then (both) the Killer and the killed one are in the (Hell) Fire." I said, 'O Allah's Apostle! It is alright for the killer, but what about the killed one?" He said, "The killed one was eager to kill his opponent."

It is note-worthy that during the custodial killing being carried out by the W Police the "Killed Person(s)" are never desirous and eager to murder the Police officials as they are fettered/chained and thus helpless.

(XII) 17. Narrated Abdullah (K.A;.--Allah's Apostle (R.A) said, "The blood of a Muslim who confesss that none has the right to be worshipped but Allah and that I am His Apostle, cannot be shed except in three cases: In Qisas for murder, a married person who commits illegal sexual intercourse and the one who reverts from Islam (apostate) and leaves the Muslims."

(XHI) 21. Narrated Ibn' Abbas {H.AJ.~The Prophet (S.A.) said, "The most hated persons to Allah are three: (1) A person who deviates from the right conduct, i.e., an evil doer, in the Haram (sancturies of Mecca and Medina); (2) a person who seeks that traditions of the Pre-Islamic Period of Ignorance, should remain in Islam, (3) and a person who seeks to shed somebody's blood without any right."

(XIV) 49. Narrated 'Abdullah bin'Amr (RA).-The Prophet (S.A.) said, Whoever killed a Mu'akid (a person who is granted the pledge of protection by the Muslims) shall not smell the fragrance of Paradise though its fragrance can be smelt at a distance of forth years (of travelling)." 16. Narrated Anas-bin-Malik (RA).-A girl wearing ornaments, went out at Medina. Somebody struck her with a stone. She was brought to the Prophet (S.A) while she was still alive, Allah's Apostle (S.A.) asked her, "Did such-and- such person strike you?" She raised her head, denying that. He said for the tMrd time, "Did so-and-so strike your?" She lowered her head, agreeing, Allah's Apostle (S.A.) then sent for the killer and killed Mm between two stones.

It is to be recorded that Sunnah is a source of Shariah and a commentary on Qur'an and compliment to its teaching. Thus he (p.b.u.h) guaranteed definite right of life to the individuals which is inviolable. This Hadith is an example of the rule of law that the Holy Prophet (p.b.u.h.) himself gave the judgment and passed the order as a Judge/Ruler about capital punishment of the accused who was executed.

(XVI) 11. Narrated Usama-bin-Zaid bin haritha (R.A.). -Allah's Apostle (S.A.) sent us (to fight) against Al-Huraqa (one of the sub-tribes) of Juhaina, We reached those people in the morning and defeated them. A man from the Ansar and I c hased one of their men and when we attached him, he said, "None has the right to be worshipped but Allah." The Ansari refrained from killing him but I stabbed him with my spear till I killed him. When we reached (Medina), this news reached the Prophet (S.A.) He said to me, "O Usama! You killed him after he had said, "None has the right to be worshipped but Allah?" I said, "O Allah's Apostle (S.A.) He said so in order to save himself." The Prophet (S.A.) said, "You killed him after he had said, "None has the right to be worshipped but Allah." The Prophet (S.A.) kept on repeating that statement till I wished I had not been a Muslim before that day.

(Sahee-Al-Bokhari Vol. Vffl-DO

1. Minds are mesmerised by the grandeur and dignity of the Statutory laws while the Quranic Versusand Sunnah of our Holy Prophet Muhammad (p.b.u.h) are being ignored clearly conspicuously and intentionally"which are of immortal character. Article 227 read with Article 2-A of the Constitution, 1973 enjoin that all State laws and acts of State functionaries have to be examined on the touch stone of Holy Qur'an and Sunnah. Whenever they appeared to be in conflict and repugnant they have to be struck down by the Courts of the country.

2. With respect to the custodial killing of one Tahir Nafees alias Prince on 22.2.1998 a learned Single Bench of the Lahore High Court passed the order on 26.5.1999 on the writ petition filed by Mst, Ghazala Aziz, mother of the deceased, for the registration of a murder case against Abid Boxer SI/SHO Police Station Factory Area, Lahore, Ibrar Hussain Rizvi SI and six other Police officials. The aforesaid order dated 26.5.1999 was assailed in Intra Court Appeal No. 640 of 1999 which was dismissed in limine by a learned Division Bench of this Court headed by my learned brother Mian Allah Nawaz J. who made the following observations about the extra-judicial killings:

"It is hardly necessary to reiterate that our State is governed by a Constitutional dispensation embodied in the Constitution of 1973; that this Constitution guarantees the rule of law, defines and clearly enumerates the powers of various structural institutions of State. It is also true that Police is one of the most important law-enforcing agency of State. It weilds the coercive power of this State. The fundamental function of it is to prevent and detect the crimes. This institution is disciplined under the Police Act and is divisible into two senior and subordinate hierarchy, it ensures the security of its citizens to uphold the supremacy of law. Should this institution resort to custodial killing? We have no doubt to say that if the Police agency is permitted to do so this will tantamount to flagrant deviance form its charter and duties. This agency cannot, in our view, resort to custodial/extra-judicial killing of accused on\ the name of saving the society form their clutches. This will tantamount to destruction of objective for which this agency is created and will lead to a rule of Jangalinstead of rule of law by various institutions of State. In this context whatever has been stated above we are inclined to hold that recording of statement of Ghazala Aziz and registration of case against delinquent officials is not only within the parameters of law rather it is consistent with the fundamental character of police as law enforcing agency. In this view of the matter and considered from every angle, we find that the decision of the learned single Judge is eminently correct just and does not suffer from any legal or jurisdictional defect calling for interference. For the aforesaid reasons, this Intra-Court appeal is found to be devoid of any merit and is, accordingly, dismissed in limine."

1. I would incorporate an episode relevant to the custodial killing by referring to the hangman who informed the king that the noose does not fit the condemned man. What should he do? The hangman asked. No problem, the King said, find a man whom the noose fits and hang him. That was King's raw justice, life for a life. It was irrelevant whether the person hanged had committed the murder.

2. The episode may be doubtful; yet can never be taken in good taste any where.

3. Every body shall have to keep in mind that the Institutions are known and recognized by their traditions and not personal likings and dislikings as well as autocratic and brutal thoughts and deeds that the people of an Institution share among themselves. Aristotle writes in 'Nicomacbian Ethics' that "any open can become angry, that is easy, but to be angry with the right person, to the right degree, at the right time for the right purpose and in the right way, that is not easy."

4. When supremacy of law is ignored, justice and fair play vanish. Total commitment to rule of law is must to achieve political and economic stability. There cannot be two opinions that rule of law is sine-qua-non for good governance of a country and for its economic progress. When a citizen encroaches upon a legal right of a fellow citizens, he is guilty of breach of rule of law. he maintained.

5. The problem of the common man is more of economic. His prime concern is to feed his children, how to pay utility bills and how to survive as a human being. He is fed up with the political slogans and confrontation of political leadership which has lost credibility in his opinion. It is only the economic situation which can prove fatal for the Government if it gees out of control. If with this back-ground he has to face the brutalities at the Lands of the police, no body can save this country from the wrath of the citizens The police shall have to believe in and act for the rule of law as good governance cannot materialize without showing respect to the law of the land wherein there is no place for the custodial killings.

SO. Justice as described by the Oxford dictionary implies: "right and fair behaviour or treatment, also laws based on the principles of justice". In whatever way we may try to implement its principles, it will always stand for right and fair behaviour towards people. Justice demands that all citizens are provided with education, wealth is distributed fairly, and nobody is exploited Justice should be reflected in people's welfare, their economic and moral development and well-being. Citizens should feel sure that the law is there for their protection and not harassement. In the aforesaid perspective liberty' and life of the citizens cannot be disturbed, eclipsed by the police by trespassing their houses, damaging the property, removing the same and unjustified killings.

1. The man in the street expects that the police would round up the suspect without delay, probe the crime swiftly and professionally, gather all the evidence and then submit the case before the competent Court for trial. The whole concept of swift justice collapse irrevocably if there was even one weak link in the chain. The police, the prosecutors and the Court shall have to perform their respective duties diligently, honestly and expeditiously to make the concept of swift justice practicable and successfully. However, how the concept of speedy justice could be achieved, if the police would act in such an illegal and brutal manner? The impugned "Quick Fix" solutions have no blessing from the law of the land. This brand of crime control strategy, notably by eliminating rivals of their pay masters cannot be approved by religious commands, the Constitution, 1973 and the statutory laws as well as 'countersigned' by this Court and the subordinate Courts of general and special jurisdiction.

2. Epitomise the mockery the authorities had made of themselves in the name of law-enforcement In civilised countries, no matter how serious the offence, painstaking investigation precedes any arrest. A very dangerous dimension to this proclivity to "act first, think later" had been added by the licence-to-kill allowed to the Police till the recent past by the Political authorities. The customary probes into 'encounter killings' and false arrests are seen as the crude cover-ups that they are. But when political favourities are propelled into key positions and licensed to deliver without fear of accountability they can only justify their existence with performances of the kind witnessed in the (Punjab in the recent pas through custodial killings.

3. A judge is condemned if he acquits the not guilty. A judge is condemned if he convicts the guilty. A judge is condemned for haste if he passes judgments expeditiously. A judge is condemned for denial of justice if the verdict is delayed. How uncharitable of those who sit in judgment on the judges! How defenceless the judges who cannot defend their judgments, who cannot appeal against the extra-judicial judgments against their judgments!

4. The persons at the helm of affairs got this extra-judicial killing performed by their subordinates up to the rank of Sub-Inspector/Inspector Police without having any fear of God in their heart of hearts for which they shall have to account for at the appropriate time~The Day of Judgment May od forgive. They ignored the dictates of Almighty God s well as the kind sayings and deeds of our Holy Prophet Muhammad (Peace be upon him). The Caliph Umer (May God bless him) took the responsibility of the death of the dog dying of hunger on the bank of the river. Here the persons in authority closed their eyes towards the menace of extra-judicial killings in large number and kept deaf ears to the hue and cries of the effectees. The family members of the persons meeting the custodial death including minors, old persons and females have been left in the larch. The police cannot be granted the authority of eliminating the citizens at their own whims in violation of Article 9 of the Constitution, 1973 wherein it is provided that no person shall be deprived of life or liberty save in accordance with law. There are complaints that at the askance of the some persons on monetary considerations their adversaries and antagonists have been killed by the Police. We all should consider these matters with all the seriousness for the betterment of the law and order situation especially when extra-judicial killings have not brought the positive results in the relevant matters. The political patronage was provided to show the authority of the persons in power that it was too harsh in the matters of administration of the Province and on the other side there was panic, sense of deprivation in the minds of the citizens. Little brooks make the river. The aforesaid type of objectionable working offending religious commands, the law, violative of legal ethics brought bad name to the Government and eroded its prestige while the intelligentia gave every type of margin like silent spectator.

5. If this type of working of the police is approved then some day a member of group of the public annoyed with the working of any public servant including Police etc. etc., may take the law in his hands and wipe him out by killing him at his own whims and assessment that the police officer is a source of inconvenience causing disturbance in the society. That would obviously and practically be a source of imitation and thereafter enhancement of administrative choas and anarchy which has to be nipped and eclipsed at every cost from the country.

S6. One has to shiver in body by the idea that growing Police encounters may be cause for the aggrieved families or for the out laws even to organize and launch a counter-drive to stop the police on-slaughts in Punjab, The gang of notorious criminals may target the police officials involved in what they believe were fake encounters not only to take revenge bu; also kill the police morale. It is the truth that no motive is greater than the revenge. Most of the out laws and proclaimed offenders are convinced that if they are arrested they would face the fatal fate, Street Justice Method, without trial and, therefore, why not take the initiative to put the Police on the defensive. The training camps are operating in the country and the neighbouring States. The head on collusion would be unfortunate day. It would be hard for the police to find anything to boost their morale. As such it is right, high time for the Police to abandon the role of Judge and Executor, because this could lead to a very chaotic situation.

1. Generally the accused to be eliminated are taken to deserted places on the grounds of pointendness of the places of occurrence or recovery of incriminating material. This authority is invoked under Article 40 of the Qanun-e-Shahadat Order, 1984. However, with respect to the first ground/ reason for taking the accused, suffice it to express that the fact that the accused had pointed out the place where he killed the deceased to the Police Officer could not be said to be the discovery of a fact for the purpose of the attraction of Article 40 ibid. Further it simply looks unbelievable that before the reaching of the accused with the Police to a particular place he is eliminated by his won person(s). In come cases of removal of some relatives of the accused the habeas corpus petitions are filed and the defence plea is taken that they have not been arrested and confined; but the relatives of the alleged detenue raise the hue and cry that they have been killed by the police and infact their whereabouts are no more known afterwards. The arrest of those persons is not shown in the Daily Diary of the Police Station as contemplated under Section 44 of the Police Act, 1861 and under Rule 49(h) Chapter XXII of the Police Rules, 1934. It is known to all that some of the convicts and undertrials i.e. the prisoners were removed from Jails and Judicial Lock Ups in illegal and un-authorized manner and were eliminated. Obviously such a working cannot be adopted without the permission and encouragement of the Superiors and High Ups as well as without political patronage. All such type of killings offend the law of the land and Constitution, 1973 which are violative of legal ethics and human rights. Rather the pity is that no positive results could be achieved.

2. Some time the genuine complaint is made that a convict undergoing the sentence or an under trial prisoner being tried in Court premises or in jail in the case(s) is joined in investigation in some other case registered earlier or after his remittance to Jail or Judicial Lock Up as the case may be who is taken away to a Special Court or a Magistrate by the Police. His physical remand is granted in routine. He is killed under custody yj and the same episode that the effort to rescue him was made by his friends etc., when he lost his life, is repeated. A prisoner, convict or under trial, cannot be interrogated without an order in writing from the District Magistrate addressed to the Superintendent of Jail. In this regard Rule 14.21 from the Police Rules, 1934 is reproduced as under:-

"THE POLICE RULES, 1934

DISCIPLINE AND CONDUCT

CHAPTER XIV

14.21: (1) Powers to enter joz'Zs.--Gazette police officers may enter jails at the discharge of their duly.

(2) Subordinate police officers may enter jails only for the purpose of conducting operations for the identification of prisoners. When entering jails such officers shall be in proper uniform.

(3) No police officer is allowed to interrogate a prisoner without an order in writing from the District Magistrate addressed to the Superintendent of Jail.

Officers deputed for this purpose shall not be below the rank of assistant sub-inspector."

1. According to Rule 7 Chapter 27 of the Lahore High Court Rules and Orders Volume III "the District Magistrates should see that all lock ups within the Districts are efficiently managed, that prisoners confined therein are properly cared for and that rules are duly observed." Thus the permission to interrogate a prisoner in some separate/independent case in Jail can be permitted by the District Magistrate and not by any other Magistrate or trial Court It is after the interrogation of the prisoner that if need be, an order s assed by and procured from a Magistrate or the Special Court to fetch the accused for production before that Magistrate/Special Court to obtain the physical remand as contemplated under Section 167 of the Code of Criminal Procedure for joining the accused in the investigation.

2. According to Rule XVII forming part of the "Rules Regulating the management of and control over Judicial Lock UP and treatment of under trial prisoners' printed in Chapter 27 of the Lahore High Court Rules and Order Volume HI, the prisoners are received or taken out under the orders of the Magistrate and ohviously the trial Courts. The aforesaid Rule XVII is reproduced as under:

"XVIL Prisoners received or taken out under orders of Magistrates.— 11) Under-trial prisoners shall not be received into or removed from a Judicial Lock Up except on the written order of a Magistrate.

The order should be made on the prescribed form of warrant. Whenever a prisoner is sent out of the Lock-up, the officer in charge should, after making the necessary endorsement, send the warrant with him to the Magistrate for the purpose of having the return endorsement made thereon by the Magistrate, as noted on the form."

1. Obviously the aforesaid type of written order has also to be passed by the Court of Session comprising the Sessions Judge and the Additional Sessions Judges under his administrative control in respect of th matters cases pending before them and fixed on a date. Likewise all the Special Courts on the criminal side also proceed accordingly.

2. The physical remands are granted by the Special Judges/the rea Magistrate or in his absence by the Duty Special Judge/Duty Magistrate under Section 167 of the Code of Criminal Procedure which must be slowed specifying the days, maximum fifteen in number, with all the seriousness containing cogent reasons and not in routine. The Instructions mentioned in Appendix No. 25.58(1) (remands to police custody) of the Police Rules, 1934 are not adhered to giving free hand to the police facilitating custodial killings. Appendix 25.58(1) is of much importance which is reproduced as follows :—

"THE POLICE RULES, 1934

INVESTIGATION

APPENDIX NO. 25.58(1)

REMANDS TO THE POLICE CUSTODY

CHAP. XXV.

1) Before making an order of remand to police custody under Section 167 of the Code of Criminal Procedure, the Magistrate should satisfy himself that—

(1) there are grounds for believing that the accusation against the person sent up by the police is well founded.

(2) there are good and sufficient reasons for remanding the accused to police custody instead of detaining him in maintained.In order to from an opinion as to the necessity or otherwise of the remand applied for by the police, the magistrate should ascertain what previous similar orders (if any have been made in the case, and the longer the accused person has been in custody the stronger should be the grounds required for a further remand to police custody.

The accused person must always be produced before the Magistrate when a remand is asked for.

2) The following principles are laid down for the guidance of magistrates in the matter of granting remands, and Sessions Judges are required to see that they are carefully applied :-

(i) Under no circumstances should an accused person be remanded to police custody unless it is made clearly that his presence is actually needed in order to serve some important and specific purpose connected with the completion of the enquiry. A general statement by the officer applying for the remand that the accused may be able to give further information should not be accepted.

(ii) When an accused person is remanded to police custody the period of the remand should be as short as possible.

(iii) In all ordinary cases in which time is required by the police to complete the enquiry, the accused person should be detained in magisterial custody.

(iv) Where the object of the remand is merely the verification of the prisoner's statement, he should be remanded to magisterial custody.

(v) A prisoner, who has been produced for the purpose of making a confession and who had declined to do so, or has made a statement which is unsatisfactory from the point of view of the prosecution, should in no circumstances be remanded to police custody.

3) In any case when an accused person is remanded to police custody, the reasons must be recorded in the order of remand."

1. If the physical remand is granted by a Magistrate a copy of the order has to be forwarded to the Sessions judge under Section 167(4) of the Code of Criminal Procedure who can suo moto review the same under Section 439-A of the Code of Criminal Procedure. However, if the physical remand is granted by a Special Court or an Executive Magistrate not under the administrative control of the Sessions Judge, he need not send a copy of the order to him.

2. The Special Courts and the Magistrate should note that utmost precautions are to be adopted with all the seriousness and physical remand of a convict or an under trial prisoner confined in Jail in some other case must not be granted in routine and carelessly, otherwise they can also be held responsible/liable if any extra-judicial killing is effected afterwards by the Police.

3. The Police has coined the strange type of method that the accused were being taken for the recovery of incriminating Article (2) or pointed ness of the place of offence/murder. In many cases within the statutory period of 24 hours of arrest the accused including the convicts and under trials were eliminated/killed. In the way some unknown persons are told to have surprised the Police. Neither the vehicle is hit as it is not damaged, nor the Police is injured nor the invaders are injured, but the accused are found as deed. In most of the cases the citizens from the area came forward and say that the encounter was false and the victims were made to run who received the injuries on the back. No autopsy is made known to the public. No inquest as required under Section 174 of the Code f Criminal Procedure is prepared in some cases. No Judicial Inquiry is got onducted by the District Magistrate in some of the custodial killings under Section 176 of the Code of Criminal Procedure. On the contrary the Police Officers were decorated and promoted, the officers recruited as Assistant Sub-Inspector or Sub-Inspectors or Inspectors have been promoted to the rani of Inspectors, Deputy Superintendents of Police and Superintendent of Police within a period of less than a decade. Some have been decorated with Shoulder Promotion. They belong to influential families or related to Superior Officers in Police or other Departments or the Political Circles at their back who made their names in custodial killings. What a pity ? All of them forget that they have to face the day of judgment. Rather it is becoming an order of the day that even the adversaries are being got eclipsed in fake encounters and there are stories that all was done for monetary considerations at the askance of their pay masters. There were various public complaints that the aforesaid group of Police Officer minted/garbed huge amounts by issuing the threats of elimination to different rich persons who had no option but to submit to their commands and demands. Hence it is the high time to urge the police to abandon the role of Executor and Judge, because this could lead to a very chaotic situation.

4. If some stranger(s) killed the person under the custody of the Police or has taken him away therefrom and thus Police has not protected the accused under custody, are not police officers legally liable for negligence as well as under Sections 223, 225, 225-A and 225-B, Pakistan Penal Code ? However, it is a fact that no action is taken, initiated against the Police accused of it or against the persons surprising the Police escorting the accused. Rather the chapter is closed which obviously arises the lurking suspicion about the correctness, bona fides of such episodes of custodial killings.

5. It is in the fitness of things to touch the point of accelerated/out of turn promotions. Chapter XIII of the Police Rules, 1934 pertains to the promotion of the Police Officials. Rule 13.17 deals with Annual Confidential Reports which reads as under :--

THE POLICE RULES, 1934 CHAP. XHI. PROMOTIONS.

13.17: (1) Superintendents shall prepare and submit annually to the Deputy Inspector-General, after obtaining the District Magistrate's remarks thereon, reports in from 13.17 on the working of all Upper Subordinates serving under them. These reports shall be submitted to reach the Deputy Inspector-General on or before 15th January. (2) Reports shall be of three kinds, A, B and C, and shall be marked as such-

A reports:-- Reports in which for special reasons it is recommended that promotion be given irrespective of seniority.

8 reports:-- Reports in which it is recommended that promotion be given in the ordinary course of seniority.

C reports:-- Reports in which it is recommended that the officer be passed over for promotion or that the taking of departmental action on general grounds of inefficiency or unsatisfactory conduct be considered.

In 'A' and 'C' reports detailed reasons must be given for the recommendations made. 98. A perusal of the aforesaid Rule 13.17 has made out that in the Annual Confidential Report which is sent to the Competent Authority by 15th of January every year, the recommendations for out of turn/accelerated promotions have to be made and it is not provided that at the whims of the Political Authorities, as has happened in the recent past, the out of turn promotion shall be awarded immediately on the happening of extra judicial killings. It speaks of the political patronage in such type of custodial killings.

Even otherwise accelerated promotion can be appreciated if there is the real encounter and desperate persons have been arrested or even killed during the encounter due to the bravery of the Police Official(s). Without prejudice I would express that the killing of a person chained and fettered, and physically helpless in the strict sense, cannot be termed to be an act of valour and bravery. Rather the aforesaid extra-judicial killings created a sense of deprivation as well as insecurity amongst the citizens. Such frequent occurrences shattered the idea of good governance. It can safely be expressed that only the culture of competence, if established can root out corruption, mismanagement and nepotism. The Senior Officials were ignored and a group of Juniors became renowned and took pride for the Commission of such like disputed feats who not only succeeded in saving their skins but also got out of turn promotions and obviously due to political patronage. However, where there is genuine encounter the matter can be recommended for conferment of Medals and out of turn/accelerated promotions according to rules. According to Rule 13.19 Special Promotion can be awarded to recipients of Police Medals conferred by the Federal Government. In the light of the Rules incorporated in Chapter XV of the Police Rules, 1934 the cash awards and Commendation Certificates can also be granted. However, it can safely be expressed that the custodial killings of the past have not been liked, approved by the citizens and thus the accelerated promotions in lieu of the same have not been viewed with commendation even though the same are being enjoyed by the benefitted non-deserving Police Officials.

1. It is the proper stage to express that the District Magistrate has also to play his positive role to maintain the check and balance who can pass the order for the holding of Judicial Inquiry or registration of murder case with respect to extra-judicial killings and thereafter the law can be set in motion and the investigation can be conducted under Section 156 of the Code of Criminal Procedure. The administration of the Police through out the local jurisdiction of the Magistrate of the District is under his control and discretion. In this regard Section 4 of the Police Act, 1861 is referred to which is reproduced as under :--

POLICE ACT. 1861

1. Inspector-General of Police. etc.-The administration of the police throughout a general police-district shall be vested in an officer to be styled the Inspector-General of Police, and in such (Additional Inspector-General), Deputy Inspector-General and Assistant Inspector-General as the Provincial Government shall deem fit.

The administration of the police throughout the local .jurisdiction of the Magistrate of the District shall, under the general control and direction of such Magistrate, be vested in a District Superintendent and such Assistant District Superintendents as the Provincial Government shall consider necessary."

100.My feeling is that the District Magistrate has to remain vigilant within his Civil District who has to check such brutalities. However, the political patronage remained responsible for his indolence towards this

KK conduct of the Police. If these injustices are not checked, the wrath of the citizens may play havoc. My God shower his blessings on all the citizens of Pakistan.

1. It is important and necessary to express that police is a disciplined force. At the time of the recruitment of the members of police the training is imparted and the foremost idea of maintenance of discipline in inculcated. The said training is for the purpose of convenience and betterment of the Society as all the institutions in a Welfare State are for the welfare of its citizens. What do we live for, it if is not to make life less difficult for each other, but it involves the tremendous sacrifice. The Institutions have to give the citizens breathing space. The race for power revolving around autocratic attitude appear to have made those persons who bank upon the same as adopting the recalcitrant attitude, violative of law. uncharted freedom and exercise of power have always degenerated into moral stagnation which brought about the decline of many a brilliant culture and civilization of the world. It was to ward off such a danger to the community and the individuals that our Holy Prophet Muhammad (p.b.u.h) strictly exercised self-discipline with all its rigorous and hardships throughout the whole span of his (p.b.u.h) glorious life. By keeping restrained within own limits according to the rule of law, physically and mentally, the sunshine of happiness in the dark and dismal lives of the citizens can be brought. The prevailing gloom of frustration revolving around custodial killings can hardly be mitigated if the Police is allowed to act in an indisciplined and autocratic manner. No reforms, no improvement and for that matter, no discipline can be uper-imposed from without. Self- indiscipline is born from within. It emanates and flows from the very heart where the reality of conviction, the truthfulness of principles and the verity of faith and believe have their habitation. The golden motto "Discipline, Faith and Unity" projected and propagated by the father of the nation, Quaid-e-Azam Muhammad Ali Jinnah, has to be referred to which cannot be ignored by all the citizens and Institutions of the country including the Police. The need for discipline, personal and collective, of the type Quaid-e- Azam had exhibited all his life through his thoughts, conduct and behaviour has never been more pressing than it is today as the society is standing at the moral crises of principles of law where norms of good conduct are ruthlessly disregarded. Codified laws, rules and regulations framed with a view to ensure the convenience and promote the honour and respect of general public are being violated at will. Respect for law and solicitude for others' rights have been cast to the winds which is leading the nation away form patriotic thinking. The trend is that the pressure is either built by the police or through the police upon the adverse party which is a source of enhancement of polorization in the social set up. The Discipline is one of the basic pillars of National existence and without the same Faith and Unity cannot be achieved. Consequently it can be expressed that the self-discipline gives the best guarantee for a survival both individually and collectively and if this goal is attained the law and order situation can improve and the Police can attain the high pedestal.

2. This is the proper stage to refer to Chapter XIV of the Police Rules, 1934 under the Caption "Discipline and Conduct". A sort of Code of Conduct is incorporated there in and if the same is followed seriously, positive results can be achieved whereby such type of disputed episodes cannot occur. In this regard rule 14.4. is reproduced as under :--

"THE POLICE RULES, 1934 Chapter XIV DISCIPLINE AND CONDUCT

14.4--(1) Every police officer shall keep his temper thoroughly under control, shall act with courtesy on all occasions and shall not allow his composure to be disturbed by behaviour of others towards him.

(2) A police officer defending himself, or lawfully enforcing his authority, shall act with calmness and shall use as little violence as possible.

(3) Police officers usually act individually in the execution of their duty. The should remember, therefore, that on the behaviour of each individuals depends the reputation of the force and the degree to which the law-abiding section of the public will be willing to co­ operate against law breakers."

1. During the performance of the duly the public servants including the Police have to proceed and tackle the situation according to the relevant prevalent circumstances. Even the right of self-defence can be exercised by the Police while effecting the firing according to the situation. However, such an action and working is subject to the future scrutiny of the competent Court of law and no independent right as a Judge and Executor can be exercised by the Police thereof.

2. While the litigants are mortal, the litigation is immortal. The worldly laws can be changed and altered. However, the basic Islamic Laws are of perennial nature which have to be followed in the mortal world and shall have the same force at the time of esurrection/Day of Judgment. The fruits of good-deeds of faithfuls and the punishments (dreadful penalty) for mis-deeds/sins of wrong doers have been ordained by the Almighty God in His Book-Holy Quran. If His creature repents and works righteous deeds, God, the Most High, shall change the evils of such persons in the good as God is Oft-Forgiving, Most Merciful. A note of warning is that of utmost necessity that if any person/citizen/civil servant gets himself scot free and is not held liable during his service/life due to his own efforts or due to the defence and protection provided by others including the Superior Offices, who also manage promotions, laurels, prizes to the favourites, that does not mean that at the time of Resurrection he shall not face the accountability--With respect to "Haqook Allah" and "Haqook-ul-Ebaad". It is commonly said that Boss is not always right, but the Boss is always a Boss. Keeping in view both the aforesaid sides it can well be expounded that commands for

LL

custodial killings and illegal orders of the superior officers need not be obeyed by the subordinates. The illegal ways adopted thereof by the Superiors and Juniors with political patronage cannot be approved by the law abiding citizens. Only God, the Most High, is the final Arbiter, the Knower, the Last Judge. At that most difficult and crucial time the commands ordained by God and the Sunnah of the Holy Prophet ^M Muhammad (p.b.u.h) shall be operative/effective. May God, who is Oft~ Foreging, shower his Mercy on his creature in this world and on the Day of Judgment.

1. The fight between good and evil always continuous. We should expose discrimination in the Society instead of accepting it. We should resist oppression and spread the message of humanity in the Society. We must note that there is vast difference between living standards of people in the society and this gulf is increasing day by day. The remedy is that we all should familiarize the nation with the difference between true and false and guide it towards a just and prosperous society. The Institutions can play a vital and positive role in this regard.

2. All what has been pointed out and expressed in this judgment is a deep rooted disease and mere dressing it with bandages of knowledge would not cure it as the Deadly Diseases always requires drastic remedies. The Constitution, 1973 places stress on democracy, equity, rule of law and enjoins upon the State the duty to eliminate all forms of exploitation. The State is under a Constitutional mandate to create conditions in which fundamental rights guaranteed to the individuals could be enjoyed by all. It is a matter of common knowledge that coercion frightens, never refines; it wounds, never heals. To voice such a grievance the citizens have a constant companion. The Courts armed with Law and Constitution. The rule of law cannot be mere star twinkling in the sky. The risk of our time invade our inner being and ideology of social justice, putting the greed of the fair above the need of the many. The frame work of the Constitution, 1973 is to provide a decent standard of Me to the people and especially provide the security from cradle to grave. It is only tie education which equips the citizens to participate in achieving the objectives enshrined therein. We will make mistakes if we go forward, but doing nothing will be the worst mistake. It is the high time where it can be expressed that the compassion is injected by the police in its working.

(B.T.) Orders accordingly.

PLJ 2000 Lahore 413

Present: sheikh abdur razzaq, J. SULTAN MUBARIZ deceased through LEGAL HEIRS-Petitioners

versus

GUL MUHAMMAD etc.«Respondents

Civil Revision No. 761 of 1999, dismissed in limine on 27.5.1999.

Qanoon-e-Shahadat Order, 1984 (10 of 1984)--

—Art. 100 r/w. S. 115 CPC-Suit for declaration-Decreed to—Appeal against--DismissaJ of-Revision against-Allegedly document of sale-deed was executed on 19.2.1911 and thereafter it was never acted upon—There is no doubt that presumption of execution can be drawn in respect of document purporting to have been executed 30 years ago, yet this presumption is discretionary and not mperative—Court can refuse to apply presumption where evidence in proof of document is available or where evidence in proof of document has been produced but disbelieved- There is no satisfactory explanation, why document in question was not acted upon for last 81 years-It is evident from judgment and decree of trial Court that it has attached presumption of genuineness without carefully examining, analysing and scanning document which task has been carried out by trial Court-Impugned judgment is unexceptionable-­ Petition dismissed. [Pp. 415 & 416] A to C

Mr. Zahid Hussain Khan, Advocate for Petitioner. Date of hearing: 27.5.1999.

order

Instant civil revision is directed against the judgment and decree dated 12,2.1999 passed by the learned District Judge, Khoshab whereby he reversed the findings of the trial Court decreeing the suit of the plaintiffs/petitioners vide judgment and decree dated 23.10.1995.

1. Briefly stated the facts are that Sultan Mubariz-plaintiff/ predecessor in interest of the present petitioner filed a declaratory suit to the effect that he was owner of suit land measuring 15 kanal 17 Marias comprising Khawat No. 384/381 Khatuni No. 865 Khasra Nos. 91 and 92 according to Registrar Haqdaran Zamin pertaining to the year 1984-85, situated in village Dhadhar District Khushab. He further contended that the suit land originally belonged to Sner Baz father of defendants/respondents who sold the same to their grand father Noor Khan vide sale-deed dated 19.2.1911 which could not be got implemented in the revenue record for some unknown reasons, that he (predecessor in interest of the petitioners) came to know about a few days earlier that defendants/respondents had been incorporated as owners in possession of the suit land in the revenue record. He thus filed a suit for declaration to the effect that he is owner in possession of suit land being legal heir of Noor Khan and that defendants/ respondents have got no right over the suit land. He further prayed that the entries in Jamabandi be declared illegal, with a consequential relief of restraining the defendants/respondents to interfere in his possession.

2. The defendants/respondents contested the suit contending therein that disputed land was no doubt owned by Sher Baz, but the same was never sold to Noor Khan. They asserted that they were owners in possession of the suit land and the alleged sale-deed dated 19.2.1911 was a forged document. Preliminary objections of limitation, cause of action, locus standi, estopple maintainability of suit were also raised and special costs were also demanded.

3. The divergent pleadings of the parties gave birth to the following issues :--

4. Whether the plaintiff is owner in possession of the suit land and entries in revenue record are liable to correction ? OPP.

5. Whether the suit is time-barred ? OPD.

6. Whether the plaintiff has no cause of action and locus standi to file the suit? OPD.

7. Whether the plaintiff is estopped by his words and conduct ? OPD.

8. Whether the form of the suit is incorrect ? OPD.

9. Whether the suit has been filed just to harass the defendants and defendants are entitled to recover special costs u/S. 35-A of CPC ? OPD.

10. Relief.

11. In support of their stand plaintiffs/petitioners examined PW-1 Maula Bux and Sutlan Mubariz (predecessor in interest of the present petitioners) as PW-2. They also brought on record copy of field book for the year 1891-92 Ex. P-l, copy of field book for the year 1913-14 Ex. P-2, Copy of field book for the year 1977-78 Ex. P-3, copy of Jamabandi for the year 1913-14 Ex. P.-4, Copy of Jamabandi for the year 1977-78 Ex. P-5, copy of Jamabandi for the year 1988-89 Ex, P-6 and the original document dated 19.2.1911 Ex. P-7. In rebuttal the defendants/respondents examined Gul Muhammad DW-1 and Azhar Khan as DW-2. Their learned counsel brought on record copy of Jamabandi for the year 1988-89 Ex. D-l, Copy of Khasra Gardawari for the year 1987-91 Ex. D-2, copy of Khasra Gardawari for the year 1991-93 Ex. D-3, copy of Jamabandi for the year 1908-1909 Ex. D-4, copy of Jamabandi for the year 1913-14 Ex. D-5, copy of Jamabandi for the year 1992-93 Ex. D-6, copy of Khasra gardawari from Kharif 1994 Ex. D-7 and copy of application Ex. D-8.

12. After going through the evidence produced by the parties the trial Court decreed the suit vide judgment and decree dated 23.10.1995. The defendants/respondents felt aggrieved of the said judgment and decree and filed an appeal which was accepted vide judgment and decree dated 12.2.1999. Hence the instant civil revision.

13. Arguments have been heard and record perused.

14. It is submitted by the learned counsel for the petitioners that Sher Baz had alienated the suit land in favour of Noor Khan vide sale-deed dated 19.2.1911, that as the said document is more than 30 years old, so it shall be presumed that the same had been executed by Sher Baz in favour of Noor Khan and there was no need to adduce any further evidence to prove its execution, that the plaintiffs/petitioners through not bound to adduce any evidence to prove the execution of document Ex. P-7 yet produced PWs 1 and 2 who also proved the stand of plaintiffs/petitioners, that as such trial Court rightly decreed their suit, that however the appellate Court has wrongly reversed the said findings, that judgments being at variance, revision be admitted for hearing.

15. It is evident from the facts disclosed above that the trial Court decreed the suit attaching presumption of correctness to the document Ex. P-7 as contemplated by Section 100 of Qanoon-e-Shahadat. However the appellate Court did not see eye to eye with the reasonings of the trial Court and consequently reversed the said findings. The question arises, if the said presumption can be drawn in respect of instant document. Allegedly the said document was executed on 19.2.1911 and thereafter it was never acted upon. There is no doubt that presumption of execution can be drawn in respect of document purporting to have been executed 30 years ago, yet this presumption is discretionary and not imperative. The presumption mentioned in this Article is permissive and not imperative. Even if a document is 30 years old and is produced from proper custody, the Court is not bound to presume its genuineness. The Article shows that the Court "may presume" and not that it "shall presume", a document 30 years old and produced from proper custody to be genuine. The court can refuse to apply the presumption where evidence in prpof of the document is available or where evidence in proof of the document has been produced, but disbelieved.

It may also refuse to raise the presumption where it has reasons to believe the document to be a fabrication, or where grave suspicion attaches to it, e.g. where a document is suspicious on the face of it on account of erasures and rewriting. The effect of the presumption may be weakened by circumstances which tend to raise doubts as to the authenticity of a document.

1. In the instant case the petitioners have tried to prove the execution by examining PWs 1 & 2. However they have failed to give any satisfactory explanation for not getting the said document implemented for the last 81 years, as the suit was filed in 1992 in respect of document allegedly executed on 19.2.1911. They have tried to prove the execution ofsaid document Ex. P-7 by producing documents Ex. P-l to 6. A perusal of documents Ex. P-l to 6 clearly reveal that these have got to relevancy, so far as the execution of document Ex. P-7 is concerned. On the other hand the defendants/respondents have brought on record documents Ex. D-l to 7 which go to established their stand that they have been coming in possession of the land, a subject matter of document Ex. P-7.

2. Since the document dated 19.2.1911 was never acted upon during the last about 81 years and there is no satisfactory explanation for not doing so on the part of plaintiffs/petitioners, so no presumption as contemplated by Article 100 of Qanoon-e-Shahadat can be attached to such document. The presumption mentioned in this Article is permissive and not imperative. There is also no cavil to the proposition that question whether a presumption under Article 100 should not be raised is primarily a question for the trial Court. The appellate Court is slow to interfere with the discretion exercised by the first Court in raising or declining to raise the presumption under this Article, and it will not interfere unless the discretion B has been exercised arbitrarily, capriciously or perversely, or without the consideration of all the relevant facts and circumstances of the case, or unless the reasons given are prima facie unsound, or the first Court has raised the presumption in favour of the document apparently without carefully examining it. It is evident from the judgment and decree of the trial Court that it has attached presumption of genuineness without carefully examining analysing and scanning the document which task has been carried out analytically by the appellate Court.

3. The up shot of above discussion is that the judgment rendered by the learned District Judge, Khushab is unexceptionable and the same is up held. Resultantly revision petition fails and is hereby dismissed in limine.

(MYFK) Petition dismissed.

PLJ 2000 Lahore 417

[Rawalpindi Bench Rawalpindi]

Present: jawwad S. khawaja, J. TAUQIR AHMED SHAH--Petitioner

versus Mst. YASMEEN AKHTAR and 2 others-Respondents

W.P. No. 944 of 1999, decided on 19.7.1999.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

—-S. 5 & Sched.-West Pakistan Family Court Rules 1965, R. 22(3)—Civil Procedure Code, 1908 (V of 1908), O.XLI, R. l-- onstitution of Pakistan (1973), Art. 199-Petitioner did not challenge decree passed against him in respondent's suit for dissolution of marriage; only decree which he challenged was in suit for dower filed by respondent—Effect—Where two or more suits had been consolidated and decided by means of one judgment, affected party would have option to challenge all decrees passed on basis of consolidated judgment by means of one appeal provided if certified copies of all decrees, which were challenged in appeal were filed with appeal-Petitioner admittedly did not filed certified copy of decree for dissolution of marriage before lower Appellate Court—Even grounds of appeal showed that only challenge made by petitioner was in respect of decree passed against him in suit for recoveiy of dower and he did not challenge decree of dissolution of marriage on basis thereof— Provision of R. 22(3) Family Courts Rules 1965, made it obligatory on party preferring appeal against decree dissolution of marriage to file certified copy of such decree before Appellate Court-Filing of certified copies of all decrees in consolidated litigation at the time of preferring single appeal being essential requirement of law, could not be dispensed with by Appellate Court-In addition thereto, High Court would not interfere with impugned judgment which has been passed in accordance with law—Judgment of Appellate had been dismissed on account of failure to file certified copies of consolidated cases. [P. 418] A, B

1981 SCMR 585; PLD 1957 Pesh. 129; 1990 MLD 2094 ref.

Mr. Basharat Ullah Khan, Advocate for Petitioner.

Mr. Ajmal Kamal Mirza, Advocate for Respondent No. 1.

Date of hearing: 19.7.1999.

order

The facts constituting the background of the litigation between the petitioner and Respondent No. 1 have been set out in the judgment of the lower appellate Court and ^eed not therefore, be reproduced here. As a preliminary point, learned counsel for Respondent No. 1 has argued that the petitioner did not challenge the decree passed against him in the Respondent No. 1's suit for dissolution of marriage. The only decree, which he challenged, was in the suit for dower filed by Respondent No. 1.

1. Learned counsel for the petitioner referred to the case of Abdullah vs. Faqir Ullah (1981 SCMR 585) to contend where two or more suits have been consolidated and decided by means of one judgment, it was open to a party to challenge all decrees passed on the basis of the consolidated judgment by means of one appeal. The cited precedent thus supports the contention of the petitioner but only if certified copies of all decrees, which are challenged in the appeal, are filed with the appeal. In the instant case, admittedly, the petitioner did not file a certified copy of the decree for dissolution of marriage before the lower appellate Court. Furthermore, as contended by the learned counsel for Respondent No. 1 even the grounds of appeal show that the only challenge made by the petitioner was in respect of the decree passed against him in the suit for recovery of power and he did not challenge the decree of dissolution of marriage on the basis thereof.

2. Learned counsel for Respondent No. 1 further referred to Rule22(3) of the Family Courts Rules which makes it obligatory on a party preferring 'an appeal against a decree of dissolution of marriage to file a certified copy of such decree before the appellate Court which as noted above, has not been done in the present case.

3. The judgment in the case of Abdullah vs. Faqir Ullah, as such, is of no avail to the petitioner. On the other hand, learned counsel for Respondent No. 1 has cited the case of Muhammad Zaman vs. Inzar Gull (PLD 1957 Peshawar 129) and the case titled Allah Ditta v. Muhammad Shafi (1990 MLD 2094) to argue that filing of certified copies of all decrees in | consolidated litigation at the time of preferring a single appeal, is an ' essential requirement of law which cannot be dispensed with by an appellate Court. The arguments of learned counsel for Respondent No. 1 have merit and are supported by the precedent cases cited by him.

4. Learned counsel for Respondent No. 1 also contended that in writ jurisdiction this Court would not interfere with the impugned judgment which has been passed in accordance with law. This contention also has merit as I do not find the judgment of the lower appellate Court dated 3.3.1999 to be open to exception. For the foregoing reasons, this writ petition is dismissed with costs.

(A.A.)

Petition dismissed.

PLJ 2000 Lahore 419

Present: CH. LJAZ AHMAD, J. KHALID SAEED-Petitioner

versus

Hqji GHULAM RASUL etc.-Respondents

Writ Petition No. 10585 of 1999, disposed of on 11.6.1999.

Constitution of Pakistan, 1973-

—-Art. 199 r/w. S, 145 of Cr.P.C.-Agreement to sell-Handing over of possession to petitioner-Decision of respondent to sell property to third party and request to petitioner to hand over possession to said party-­Refusal to and suit for specific performance-Grant of interim relief to petitioner-Respondent filed application to initiate proceedings against petitioner U/S. 145 Cr.P.C.-Writ against-Mere anticipation of penal action by respondent does not give rise to cause of action for invoking Constitutional jurisdiction-Petitioner has alternative remedy to agitate matter before Respondent No. 2, therefore, petition is not maintainable-Magistrate has only issued notice to parties-Evidence has not been recorded-Therefore, it is too early to say that proceedings are illegal-No irregularity has been pointed out-Petitioner has concealed material facts from Court-Petition disposed of being not maintainable. [P. 421] A & B

PLD 1996 SC 246 ref.

Syed Tayyab Mehmood Jafi, Advocate for Petitioner. Date of hearing: 11.6.1999.

order

Brief facts out of which the present writ petition arises are that the petitioner and Respondent No. 1 and his sons executed an agreement to sell of the land measuring 18 Kanals owned by Respondent No. 1 and his sons for consideration of Rs. 4,00,000/-. Earnest money amounting to Rs. 2,10,000/- was received by Respondent No. 1 and his sons from the petitioner. The balance amount has to pay by the petitioner to the Respondent No. 1 and his sons at the time of registration of sale-deed. Respondent No. 1 and his son handed over possession of land in question to the petitioner. Respondent No 1 and his sons subsequently changed their mind and decided to sell the land to a third party and requested the petitioner to hand over the possession of the land in question to them. Petitioner refused to hand over possession of the land to the Respondent No. 1 and his sons. Petitioner being constrained by the aforesaid circumstances filed a suit for Specific Performance in the Civil Court Pattoki. Civil Court passed the restrained order in favour of the petitioner on 4.6.1999 in the following terms:

"Defendants arc restrained from alienating the suit land in any manner."

Respondent No. 1 being aggrieved by the aforesaid action of the petitioner submitted an application before Respondents Nos. 2 and 3 to initiate proceedings against the petitioner U/S. 145 Cr.P.C. Respondents Nos. 2 and 3 visited the premises of the petitioner on 8.6.1999 at about 3.00 p.m and informed him that his factoiy is being sealed by the Respondent No. 2.

Learned counsel for the petitioner contended that petitioner informed the respondents that the factory is owned by the petitioner and therefore there is no apprehension of breach of peace and ingredients of Section 145 is not attracted. He further stated that petitioner also informed the respon­dents that the petitioner has obtained the restraining order in his favour qua the land in question from the Civil Court but the Respondents Nos. 2 and 3 insisted that he should receive the notice U/S. 145 Cr.P.C. and should be remained at the premises and Respondent No. 2 will again visit the factory on 12.6.1999. Hence the present writ petition with the following prayer:

"So keeping in view the above mentioned circumstances, it is very humbly prayed that the Respondent No. 2 may very kindly be directed, not to seal the factory of the petitioner situated at Jamler Khurad Tehsil Pattoki and proceedings already initiated against the petitioner may also be declared unlawful, uncalled for and without any legal justification."

Learned counsel for the petitioner stated that there is no apprehension for breach of peace and the ingredients of Section 145 Cr.P.C. is not attracted. Therefore, proceedings initiated by the respondents is without lawful authority. He further stated that it is the duty and obligation of the public functionaries to act in accordance with law. Dispute between the petitioner and Respondent No. 1 is of a civil nature. Competent Civil Court has already taken cognizance of the matter. Therefore Respondent No. 2 has no jurisdiction to initiate the proceedings against the petitioner U/S. 145 Cr.P.C. He relied upon PLD 1996 S.C. 541 (Qazi Grain's case).

1. I have given my anxious consideration to the contention of the learned counsel for the petitioner and perused the record myself. It is admitted fact that the petitioner did not append application filed by the Respondent No. 1 before Respondent No. 2 U/S. 145 Cr.P.C. with the writ petition. He also did not append the following documents with the writ petition:-

(i) Order of the Respondent No. 2 on the application- of Respondent No. 1 and subsequent orders if any passed by him.

(ii) Report of Respondent No. 3.

It is also admitted fact as alleged by the petitioner that Respondents Nos. 2 and 3 visited the factoiy of the petitioner on 8.6.1999 but the petitioner did not filed any objection petition before Respondent No. 2 that the application filed by Respondent No. 1 is not maintainable as the ingredients of Section 145 Cr.P.C. is not attracted as the matter is already subjudice before the Civil Court regarding the land in question. He also did not attach notice issued by Respondent No. 2 to the petitioner alongwith writ petition. The case cited by the learned counsel for the petitioner is distinguished on facts and law. The relevant observation is as follows:

"In this case, proceedings remained pending for a long time but there was no breach of peace."

It is pertinent to mention here in the aforesaid case, the magistrate sent the application to the SHO concerned for inquiry and report. The SHO submitted his report. The Magistrate directed the parties to file written statement with regard to their claim. Respondent filed written statement denying the correctness of the application U/S. 145 Cr.P.C. and controverted the allegations levelled in the application U/S. 145. The Magistrate did not dismiss the application and directed the parties to produce the evidence. Respondent being aggrieved filed a revision petition against the order of the Magistrate before the Sessions Judge who accepted the same. The applicant being aggrieved by the order of the learned Sessions Judge preferred petition U/S. 561-A Cr.P.C. in the High Court which was also dismissed. The complainant filed appeal before the Hon'ble Supreme Court which was also dismissed. Petitioner did not file written statement before the Magistrate with the prayer that the application U/S. 45 Cr.P.C. be dismissed. Petitioner filed this writ petition without adopting the aforesaid procedure on apprehension that Respondent No. 2 must have passed the order against the petitioner. It is settled proposition of law that mere anticipation of penal action by the respondent does not give rise to cause of action for invoking Constitutional jurisdiction. I am fortified by the judgment of the Hon'ble Supreme Court reported as 1968 SCMR 317(2). Petitioner has alternative remedy to agitate the matter before the Respondent No. 2 under the provisions of the Criminal Procedure Code or agitate the matter before the Sessions Judge. Therefore, writ petition is not maintainable as the principle laid down by the Hon'ble Supreme Court in Ismail'scase PLD 1996 S.C. 246. It is also settled principle that Section 145 is self-contained and self explanatory and the Magistrate has to confine himself to the section only. I am of the view that at this stage the learned Magistrate has only issued notice to the parties and the petitioner has yet filed written statement before him. The evidence has not been recorded. Therefore it is too early to say that proceedings are illegal. No irregularity or illegality has been pointed out as the petitioner has not attached of the aforesaid documents with his writ petition. Meaning thereby petitioner has concealed the material facts from this Court. It is settled proposition of law that he who seeks equity must Come with clean hands. In view of what has been discussed above, the writ petition is not maintainable and the petitioner has alternative remedies as mentioned above to agitate the matter before the Respondent No. 2 or before the Sessions Judge, Therefore, the writ petition has no merit and the same is disposed of in the aforesaid terms.

(MYFK) Petition disposed of.

PLJ 2000 Lahore 422 [Bahawalpur Bench Bahawalpur]

Present: sayed najam-ul-hassan kazmi, J.

ZAKI AHMED-Petitioner

versus

MUNICIPAL COMMITTEE BAHAWALPUR through ADMINISTRATOR--

Respondent

Civil Revision No. 140-D of 1978, allowed on 16.6.1999.

Civil Procedure Code, 1908 (V of 1908)-

—S. 115~Suit for declaration-Decreed to-Appeal against-Acceptance of- Revision against-Undeniably appeal filed by respondent was barred by 4 months-Explanation was that decree was concealed which does not appear to be logical because suit was duly contested-Execution proceedings of decree were initiated in which functionaries of respondent had been appearing-They have been asking for time to comply with decree-If subordinate functionaries had failed to perform their duties or were negligent, matter was between authority and its employees and right accrued to petitioner could not condone delay without framing issue or recording evidence-Appellate Court fell in error for condoning delay in filing of appeal without proper inquiry and evidence-Impugned judgment set aside-Petitioner allowed. [P. 423] A

Mr. M. Shamshir Iqbal Chaughtai, Advocate for Petitioner. Nemo for Respondent. Date of hearing: 16.6.1999.

judgment

This judgment will dispose of C.R. No. 140-D/78.

1. Facts necessary for the disposal of this revision petition are, that the petitioner filed a suit for declaration to the effect that he was owner of the property in issue and that the order of cancellation of auction was unlawful and without jurisdiction. A decree for delivery of possession was also claimed. It was the case of petitioner that Plot No. 13/C was purchased by him from respondent in open auction, the entire price was paid through Receipt No. 41, the auction was confirmed on 17.2.1972. The petitioner ad become owner of the plot and that respondent, illegally cancelled the auction on 27.3.1972 without proper notice or opportunity of hearing to the petitioner. The suit was duly contested. After issues and evidence suit was decreed by the learned Civil Judge on 13.6.1977.

2. Petitioner applied for execution of the decree, notices were issued to the respondent, the functionaries of the respondents obtained many opportunities to obey the decree and after a considerable time filed an appeal which was accepted by the learned District Judge Bahawalnagar vide order, dated 14.5.1978. In this revision petition the order of the District Judge is in issue.

3. Learned counsel for the petitioner argued that the appeal was hopelessly barred by time, there was no good ground for condonation of delay but the learned District Judge illegally condoned the delay without any positive material. It was added that no issue was framed on the point of condonation of delay nor opportunity of evidence allowed and thus the delay was condoned on illegal assumptions.

4. No one has entered appearance on behalf of respondents, despite notice, hence proceeded against ex parte.

5. Undeniably the appeal filed by the respondents was barred by time. The delay was about four months. Explanation was that the decree was concealed. On the face of it the explanation did not appear to be logical. The suit was duly contested and decreed by the trial Court. Execution proceedings were initiated in which the functionaries of the respondents had been making appearance. They have been asking for time to comply with the decree. After lapse of time the appeal was filed. If the subordinate functionaries had failed to perform their duties or were negligent, the matter was between the authority and its employees and possibly the right accrued to the petitioner could not have been taken away. Be that as it may, the plea of condonation of delay was seriously contested, the learned District Judge could not condone it, without framing issue or recording evidence. Unless the facts asserted in the application were proved, delay could not possibly be condoned. Learned District Judge, therefore, fell in error for condoning long delay in filing of appeal without proper inquiry and evidence.

6. For the reasons above, this revision is allowed, the impugned judgment of the appellate Court is set aside with the result that the appeal of respondent shall be deemed to be pending before the District Judge who will make inquiiy and record evidence after framing issue on the question of sufficiency or otherwise of ground for condonation of delay and then decide the appeal in accordance with law. After recording evidence, the learned District Judge will determine, as to whether, the delay could be condoned.

(MYFK) Petition allowed

PLJ 2000 Lahore 423

Present: raja muhammad khurshid, J. USMAN SAROSH ALVI-Petitioner

versus ADDITIONAL DISTRICT JUDGE, LAHORE and 3 others-Respondents

W.P. No. 11970 of 1999, dismissed on 29.6.1999.

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

—-O.I, R. 10-Constitution of Pakistan, (1973), Art. 199-Allotment of House to Respondent No. 2-Suit against, impleading Respondent No. 2 as defendant-Withdrawal of suit with permission to bring a fresh suit- Fresh suit filed by petitioner excluding espondent Xo. 2 as defendant-­ Petitioner U/O. 1 R. 10 CPC for impleading Respondent No. 2 as party- Accpetance of--Revision against-Dismissal of--Writ against-Petitioner did not act conscientiously to omit Respondent No. 2 to be impleaded as defendant in subsequent suit although it was considered necessary to implead him in previous suit-Even on merits, Respondent No. 2 claims to be an allottee of house in question, he would deemed to be a necessary party because any order passed in his absence in Court below would prejudice his right of allotment etc.-Courts below have rightly impleaded Respondent No. 2 as necessary party-Petition dismissed. [P. 425] A

Mr. Iftikhar Ahmad Shah, Advocate for Petitioner. Date of hearing: 29.6.1999.

order

The petitioner is serving as Assistant Director in the FLA (BS-17) under the Interior Division, Islamabad, Government of Pakistan. He is in occupation of House No. 17/B, Wafaqi Colony, Lahore as its allottee. Previous to that, the aforesaid house was in possession of his mother who was also a Government employee and was its allottee. On her retirement, the house in question was allotted to the petitioner subject to the availability of a house of his entitlement. In the meantime, the house in question was allotted to Yasir Pirzada, Assistant Commissioner, Income Tax, Lahore i.e. Respondent No. 2. The petitioner filed a civil suit to challenge the aforesaid allotment in favour of Respondent No. 2. That suit was later on withdrawn with the permission to bring a fresh suit. In the aforesaid suit, Respondent No. 2 was made as a defendant but in the subsequent suit, Respondent No. 2 was excluded. Thereupon Respondent No. 2 filed a petition under Order I, Rule 10 CPC in the Court below for impleading him as a party to the suit. The aforesaid application was allowed by the learned trial Court vide its order dated 27.5.1999. A revision petition was filed against the aforesaid order which came up for hearing before Ch. Saeed Ahmad, learned Addl. District Judge, Lahore and the same was also dismissed vide order dated 9.6.1999. Hence this writ petition is filed by the petitioner to impugn both the orders.

1. It is contended in the writ petition that the petitioner is bona fide allottee of the house in question and that Respondent No. 2 had no right to seek allotment of the same house which stood allotted to him. In this regard, it was contended that Respondent No. 2 allegedly got the allotment in his favour by manipulating and manoeuvring in dubious manner and after his malicious connivance with Respondent No. 4 i.e.the Joint Estate Officer, Lahore. It was, therefore, contended that Respondent No. 2 was not a necessary party for the disposal of the suit below and as such, the learned trial Court fell in error to allow him to be impleaded as a party. The Revisional Court also allegedly illegally up-held the order passed by the trial Court without examining the fact that Respondent No. 2 had no right for allotment of the house which already stood allotted to the petitioner.

2. I have heard the learned counsel for the petitioner on the points raised above and have also gone through the material placed on record. It is an admitted fact that in the earlier suit, the petitioner had impleaded Respondent No. 2 as a defendant but that suit was withdrawn and the present suit was filed in which Respondent No. 2 was omitted to be impleaded as defendant. This shows that the petitioner did not act conscientiously to omit Respondent No. 2 to be impleaded as defendant n t he subsequent suit although it was considered necessary to implead him in the previous suit. Even on merits, Respondent No. 2 claims to be an allottee of the house in question and as such he would be deemed to be a necessaiy party because any order passed in his absence in the Court below would prejudice his right of allotment vis-a-vis possession to the house. As such, the Courts below have rightly concluded that Respondent No. 2 is a necessary party and that he has been rightly allowed to be impleaded as a defendant in the suit. The main case is yet pending and is not finally decided between the parties in respect of right of allotment qua the house in question. In such a situation, the matter has not yet attained finality as the same is subjudice before a Court of competent jurisdiction. In that event also, the writ petition would not be competent. The same is, therefore, dismissed in limine.

CM. No. 1/99 C.M. No. 2/99.

1. Since the main petition has been dismissed, therefore, these petitions become infructuous and are also dismissed.

(MYFK) Petition dismissed

PLJ 2000 Lahore 425

Present:jawwad S. khawaja, J. MUHAMMAD SALEEM-ULLAH-Petitioner

versus NATIONAL CONSTRUCTION COMPANY etc.-Respondents

Civil Revision No. 414 of 1993, heard on 7.7.1999.

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

—S. US-Companies Ordinance, 1984 (XLVII of 1984), Ss. 316, 358, 359 & 396--Suit for damages against respondent—During trial respondent went into voluntary liquidation-Application U/S. 316 of Ordinance 1984 for stay of proceedings of suit-Acceptance of--Revision against-A voluntary winding up retains its character as such unless High Court of its own motion or pursuant to an application, assumes supervision of voluntary winding up U/S. 396 of Ordinance 1984-No such application has been moved by any person, nor has High Court assumed jurisdiction in matter of winding up of Respondent Company-Section 316 of Ordinance, 1984, therefore has no application—Impugned order passed by trial Court on respondents' application constitutes a case decided and is, tu~.. efore, open to correction by High Court in exercise of revisional jurisdiction U/S. 115 CPC-Petition accepted. [P. 427] A & B

Mr. Zuliflqar All Bhatti, Advocate for Petitioner. Mian Muhammad Bashir, Advocate for Respondents. Date of hearing: 7.7.1999.

judgment

The facts relevant for the disposal of this petition are relatively simple. The petitioner on 26.10.1987 filed a suit against the respondent company seeking damages of Rs. 1.00 crore (Rupees one crore only). A written statement was filed by the respondent company in the he suit on 15.5.1988. Thereafter the company went into member's voluntary liquidation under Sections 358 and 359 of the Companies Ordinance, 1984. This happened pursuant to a resolution of the share-holders of the company dated 18.8.1990. A liquidator of the company was also appointed. The respondent company then filed an application before the trial Court on 12.3.1992 under Section 316 of the Companies Ordinance praying that the proceedings in the suit be stayed. In its application before the trial Court the company merely stated that the company had gone into voluntary liquidation and a liquidator had been appointed to affect its winging up.

1. The learned trial Court, vide its order dated IS.10.1992 accepted the application filed by the respondent company and ordered that the proceedings of the case be stayed. The said order also directed the petitioner to submit his claim before the liquidator. The sole ground which weighed with the learned trial Court was that a liquidator had been appointed. It is on this basis that the trial Court held that the suit could not proceed. It is the order dated 18.10.1992 which has been impugned by the petitioner in the present revision petition.

2. Learned counsel for the petitioner contends that Section 316 of the Companies Ordinance is applicable only to a winding up of a company by the Court or to a winding up subject to the supervision of the Court. He contends that a member is voluntary winding up envisaged under Sections 358 and 359 of the Companies Ordinance is not. a winding up by the Court nor is it a winding up subject to the Court's supervision.

3. Learned counsel for the respondent company on the other hand has argued that Section 316 is applicable even to a voluntary winding up. He has not been able to cite any provision of the Companies Ordinance to support his contention. Learned counsel for the respondent company further contended that the liquidator of the company had from time to time filed applications before this Court under Section 391 of the Companies Ordinance seeking extension of time for completing the winding up. He further stated that the High Court in its jurisdiction under the Companies Ordinance had allowed such applications and had extended the time for completing the winding up of the respondent company. On this basis he contended that the voluntary winding up of the respondent company became a winding up subject to the supervision of the Court. This contention of the learned counsel for the respondent is without force and cannot, therefore, be accepted. A voluntary winding up retains its character as such unless the High Court of it own motion or pursuant to an application assumes supervision of the voluntary winding up under Section 396 of the Companies Ordinance. It is evident from the record that no application has been moved by any person under Section 396 of the Companies Ordinance and nor has the High Court assumed jurisdiction in the matter of the winding up of the respondent company. Section 316 of the Companies Ordinance, therefore, has no application in the present case.

4. Learned counsel for the respondent company next contended that a revision petition to assail the impugned order was not maintainable. According to him the proper remedy for the petitioner was to approach this Court in its jurisdiction under the Companies Ordinance, 1984. This contention is also without force because the civil suit filed by the petitioner falls squarely within the competence of the Civil Court. The impugned order passed by the trial Court on the respondent's application under Section 316 of the Companies Ordinance constitutes a case decided and is, therefore, open to correction by this Court in the exercise of its revisional jurisdiction under Section 115 CPC.

5. In view of the above discussion this revision petition is accepted and the impugned order dated 18.10.1992 is set aside.

(MYFK) Petition accepted.

PLJ 2000 Lahore 427

Present: raja muhammad khurshid, J. NOOR AHMED-Petitioner

versus

I.G. PUNJAB, LAHORE-Respondent

W.P. No. 12432 of 1999, dismissed on 20.7.1999.

Constitution of Pakistan, 1973--

—Art. 199-Murder--Offence of-Petition for seeking direction for re-investigation of case through transfer application filed before respondent-Accused side has made repeated petitions for re-investigation of case which shows that it is creating hindrance and impediment in smooth flow of administration of justice-Occurrecne took place in 1997-One of accused is still at large and case has been sent to Court for trial-Transfer of investigation in this case has been declined by High Court in a previous W.P. and I.C.A. against that order having failed--It would be against interest of justice to make any further order directing police officials to enter into re-investigation-Petition dismissed. [P. 429] A

Ch. Muhammad Amin Jaued, Advocate for Petitioner. Mr. Waqar Saleem, Advocate for Complainant. Date of hearing: -20.7.1999.

order

The petitioner's son Sarfraz Faisal is one of the accused in a case registered under Section 302/324/34 PPC vide FIR No. 56/97 at P.S. City Toba Tek Singh. The petitioner has made this application seeking direction that the application regarding transfer of investigation pending before the respondent be directed to be disposed of in accordance with law.

1. The application is opposed on the ground that the petitioner had made another application for transfer of investigation but his prayer was declined in a Writ Petition No. 6883/99 filed by the son of the petitioner namely Muhammad Anwar, a brother of Sarfraz Faisal aforenamed accused in the aforesaid case vide order dated 23.4.1999. I.C.A. No. 329/99 was filed against the aforesaid order which too was dismissed by a Division Bench of this Court vide order dated 29.4.1999. It was, therefore, contended that the present petition is mis-conceived as previously another petition was instituted by Sarfraz Faisal accused (W.P. No. 22957/98) in which an order was made on 6.11.1998 by this Bench that the petition for re-investigationpending before D.I.G., Faisalabad be disposed of in accordance with law within a fortnight.

2. In this petition, it is contended that the aforesaid order was not complied with, therefore, the present petitioner i.e. father of the aforesaid Sarfraz Faisal has requested that the compliance of the aforesaid order be made and that the investigation be transferred. In this respect, it is contended that there is no legal bar for the re-investigation of the matter as held in PLD 1987 Supreme Court 13 Aftab Ahmad vs. Hassan Arshad and 10 others and PLJ 1993 Lahore 56 Sofia Begum vs. SHO, Police StationGarh Maharaja and 3 others.

3. Learned counsel for the complainant has, however, contended that the matter in respect of transfer of investigation has been finally closed on account of decision in the Intra Court Appeal against the order passed in W.P. No. 6883/99. Apart from that, it is alleged that one of the accused is till absconder and as such, repeated re-investigations cannot be undertaken particularly when the case has already been sent to the Court for trial. Reliance was placed on 1986 SCMR 1934 Riaz Hussain and others vs. TheState to show that the Hon'ble Supreme Court had condemned re- investigation in the criminal cases being a recent innovation always taken up at instance of influential people and favourable reports obtained in no way to assist the Courts in coming to correct conclusion. Same view was taken in NLR 1997 Criminal 185 Muhammad Yousafus. Inspector General of Police, Punjab, Lahore and 4 others.

4. I have considered the submissions made at the bar and have also gone through the record. It may he observed that each case has its own peculiar facts for taking decision in the best interest of administration of criminal justice and no clog or closure can be applied so as to stifle the provision of justice to the parties. It is, therefore, always open for a Court to see that the best possible order may be made to further and advance the interest of justice keeping in view the facts of each case. In the instant case, the accused side has made repeated petitions for the re-investigation of the case which shows that it is creating hindrance and impediment in the smooth flow of the administration of justice. The occurrence took place in 1997, whereas, one of the accused is still at large and the case has been sent to the Court concerned for trial. In such a situation, and particularly when further transfer of the investigation in this case has been declined by my learned brother Mr. Zafar Pasha Chaudhiy, J. vide his Lordship's order dated 23.4.1999 in W.P. No. 6883/99 and the Intra Court Appeal against that order having failed, it would be against the interest of justice to make any further order directing the police officials to enter into re-investigation or to make any fresh investigation or to dispose of any pending petition in thatrespect.

5. The writ petition being mis-conceived is dismissed.

(MYFK) Petition dismissed.

PLJ 2000 Lahore 429

Present: maulvi anwarul haq, J. NIAZ DIN-Appellant

versus MIRZA MUHAMMAD ISMAIL etc.-Respondents

R.S.A. No. 448 of 1980, heard on 5.7.1999.

(i) Registration Act, 1908 (XVI of 1908)--

—Ss. 74 & 75-Registration of sale-deed-Suit for declaration against-Decreed to-Appeal against-Acceptance of-Second Appeal against-Registrar has to "find" U/S. 75(1) of Act, 1908 that document was executed--It is this finding which enabled Registrar to make an order for registration of document, execution whereof is denied by executant/ appellant-Only piece of evidence relied upon by Registrar is alleged report of Finger Print Bureau to the effect that sale-deed bears thumb impressions of appellant-Order of Registrar does not disclose as to whether any opportunity was given to parties, particularly to appellant to file any objections or to examine alleged expert who had given said report-Order of Registrar for registration of sale-deed, declared to be without lawful authority being illegal and void—Appeal remanded to First Appellate Court to decide afresh. [Pp. 431 & 432] A & D

(ii) Expert opinion-

-—An opinion of expert cannot be proved unless and until, maker of opinion enters witness box and supports his opinion and subjects himself to cross-examination-A report is not admissible in evidence without examining the matter-A piece of evidence which is inadmissible could not be made basis of a finding-Order based on said report is without jurisdiction.

[Pp. 431 & 432] B & C

Ch. Mushtaq Masood, Advocate for Petitioner.

Ch. Muhammad Yaqoob Awan, Advocate and Ch. Muhammad Nasim Arshad, Advocate for Respondents.

Date of hearing: 5.7.1999.

judgment

Niaz Din, appellant was admittedly the owner of the suit plot. The respondent alleged that the appellant sold the suit plot to him and executed a sale-deed on 19.12.1973. The appellant denied the execution of sale-deed when it was put up before the Sub-Registrar. The respondent filed an application under Section 74 of the Registration Act, 1908 before the Registrar seeking compulsory registration of the sale-deed. This application was allowed by the Registrar videorder dated 2.7.1974 and he directed the registration of the sale-deed in accordance with Section 75(1) of the said Act. Feeling aggrieved the appellant filed a suit on 10.7.1974 seeking a declaration that the order dated 2.7.1974 is illegal and void and that the alleged sale-deed dated 19.12.1973 is the result of fraud, inadequacy of consideration and gross-misconduct. Initially the Provincial Government was impleaded as Defendant No. 2 in the suit and an injunction was claimed against the said defendant that it be restrained from registering the said sale-deed. It appears that on the very next day i.e.11.7.1974 the name of the said defendant was deleted. It was averred in the plaint that there had been a long litigation both on civil and criminal sides going on between the parties and there was no occasion for the appellant to have executed the sale-deed in question in favour of the respondent. He reiterated his denial that he had executed the said sale-deed dated 19.12.1973. Details of the litigation were also stated in the plaint. The respondent appeared in response to notice and filed his written statement wherein he asserted that the appellant had executed the sale-deed and that on his own request the thumb-impression was sent to an expert for his opinion as to whether the sale deed bears his thumb-impression or not. It was upon receipt of the said report that the Registrar passed the impugned order

2.The learned trial Court framed issues. Evidence was led by the parties for and against the issues so framed. The learned trial Court decreed the suit of the appellant. The respondent filed an appeal which was heard by a learned Additional District Judge, Faisalabad who allowed the same and consequently dismissed the suit of the appellant vide judgment and decree dated 19.4.1980.

1. I have gone through the record of the learned trial Court with the assistance of the learned counsel for the parties. The question involved in this R.S.A. is a short one as the learned Additional District Judge has opted not to go into evidence on record and to non-suit the appellant on the ground that the matter of execution could not have been gone into by the trial Court before actual registration of the sale-deed. In other words in the opinion of the learned Additional District Judge the suit was pre-mature.

2. Ch. Mushtaq Masood, learned counsel for the appellant contended that the impugned judgment is bad in law as the question of execution was the crux of the matter to uphold or otherwise the impugned order of the Registrar. Ch. Muhammad Yaqoob, Advocate and Ch. Muhammad Nasim Arshad learned counsel for the respondent have asserted that the suit was premature and the learned Additional District Judge had rightly closed his eyes to the evidence on record.

3. A bare look at Section 75(1) of Registration Act, 1908 would show that the Registrar has to "find" that the document was executed. It is this finding which enabled the Registrar to make an order for the registration of the document execution whereof is denied by the executant. I have gone through the order passed by the Registrar on 2.7.1974. The only piece of evidence, if it can be so called, relied upon by the Registrar is an alleged report by some D.S.P./Finger Print Bureau to the effect that the sale-deed dated 19.12.1973 bears thumb impressions of the appellant. This order does not disclose as to whether the parties had the notice of the report and whether any opportunity was given to the parties, particularly the appellant to file any objections or to examine the lleged expert who had given the said eport. Record of the trial Court had been summoned for hearing of the R.S.A. and this document does not appear on the record. The respondent did not produce any copy of the said report or the alleged expert who had given the same. Learned counsel for the respondent relied upon the case of Dil Muhammad and another vs. Sain Das and others (AIR 1927 ahore 396) for the proposition that where a report is filed in the Court and a party despite opportunity does not object to it or calls for the examination of the expert, then the report can be read without examining the expert, 6. I am afraid the proposition laid down in the aforesaid judgment is not correct. The law on the other hand, is that a report is an opinion of the expert and an opinion cannot be proved unless and until the maker of the opinion enters the witness box and supports his opinion and subjects himself to cross-exmination. Particularly with reference to the opinions of experts it is now a settled law thai, a report is not admissible in evidence without examining the maker. Reference may be made to the case of Allah Dino and 2 others vs. Muhammad Umar and 2 others (1974 SCMR 411). No other evidence was produced or is referred to in the impugned order dated 2.7.1974. In view of this there is nothing on the record to support the findings of the Registrar that the document dated 19.12.1973 was executed by the appellant. Learned counsel for the respondents have tried to argue that since the Registrar was not conducting the judicial inquiiy the rigours of Qanun-e-Shahadat Order, 1984 (corresponding to Evidence Act, 1982) would not be applicable. This contention of the learned counsel for the respondent is also without any force as per Article 1(2) of the said Order (corresponding to Section 1 of Evidence Act, 1982) the Order/Act applies to all judicial proceedings in or before any Court including the Court Martial, a Tribunal or other authority exercising judicial or quasi-judicial powers or jurisdiction. The proceedings before the Registrar if not strictly judicial cannot be said to be even not quasi judicial. The finding of fact was to be recorded as to the execution of the document by the person who had denied its execution. Needless to add that the inquiry referred to is to resolve the question within the meaning of Section 75 of the Registration Act, 1908. A piece of evidence which is inadmissible could not be made the basis of the said finding. The order is, therefore, without jurisdiction and is declared to be so.

4. The matter, however, does not end here. I find that the evidence was produced by the parties in support of their respective pleas after assertion of the respondent that the sale-deed was (words missing) by the appellant that it was not. The learned trial Court had recorded its findings with reference to the said evidence on the record. I also find that during the pendency of the present R.S.A., according to the learned counsel for the respondent, the document had been registered. The registration will have o effect on the rights of appellant in case judgment and decree of trial Court is upheld. That is to say the Registration will be subject to the result of appeal which is to be dealt with by the First Appellate Court with reference to factum of execution of sale-deed.

5. Resultantiy this R.S.A. is allowed. The order dated 2.7.1974 of the Registrar is declared to be without lawful authority and without jurisdiction being illegal and void inasmuch as it holds that the appellant had executed 'document dated 19.12.1973. It will be deemed that-the appeal filed by the respondent is pending. It will be decided on its merits by the learned First Appellate Court after considering the evidence on the record and the pros and cons of the judgment of the learned trial Court impugned in the appeal. The record of the case be immediately remitted to the Court of learned District Judge, Faisalabad who will himself take up the appeal and decide the same on its merits in the light of the above observations. The parties are directed to appear before the learned District Judge, Faisalabad on 20.7.1999.

(MYFK) Appeal allowed.

PLJ 2000 Lahore 433

Present: raja muhammad khurshid, J. MUHAMMAD NAZIR-Petitioner

versus

Mst.HAYATAN etc.—Respondents

W.P. No. 12897 of 1999, dismissed on 9.7.1999.

Civil Procedure Code, 1908-

—-O. XVII. R. 3-Closing of evidence-Revision against-Dismissal of-Writ under Art. 199 of Constitution of Pakistan against-Petitioner having been given numerous opportunities with a warning by giving him last opportunity to adduce his evidence, but nothing was done by him and as such provisions contained in O.XIII R. 3 CPC were invoked to dose his evidence-A litigant should be vigilant while conducting a case-Facts clearly reveal that petitioner was not only idolent but also negligent to examine his evidence at trial-Orders passed by Courts below do not suffer from any latent or patent legal defect so as to call for interference by High Court in its Constitutional jurisdiction-Petition dismissed in limine. [P. 434] A

Malik Khizer Hayat Khan, Advocate for Petitioner. Date of hearing: 9.7.1999.

order

This petition is filed to challenge the order dated 23.7.1998 passed by the learned Civil Judge, Sargodha whereby he closed the evidence of the petitioner/plaintiff under Order XVII, Rule 3 CPC. The petitioner filed a revision petition against that order, which was also dismissed by the learned Additional District Judge, Sargodha vide his order dated 18.5.1999; hence this petition is filed to challenge the orders of Courts below on the ground that dispute between the parties should be settled on merits after recording evidence and that the penal provisions contained in Order XVII, Rule 3 CPC should be sparingly used.

1. It is contended that penal provisions were not attracted because the parties had filed cases against each other, which were consolidated and the trial produced on the consolidated issues.

2. I have considered the foregoing submissions and find that the learned Civil Judge had closed the evidence of the petitioner/plaintiff on 23.7.1998 after giving numerous opportunities at the request of the petitioner/plaintiff. Last opportunity was given on payment of Rs. 50/- vide order dated 17.4.1998 and the case was fixed for 25.5.1998 for evidence of the petitioner/plaintiff. On that date also the case was adjourned at the request petitioner/plaintiff was not present nor any reasonable cause was shown for the absence of witnesses. The learned Civil Judge thereupon invoked the provisions contained in Order XVII, Rule 3 CPC and closed the evidence of petitioner/plaintiff and the respondent/defendant was directed to adduce his evidence. Earlier to the aforesaid date, the petitioner/plaintiff had obtained many adjournments for over one year.

3. The Revisional Court also considered the material placed on record and came to the conclusion that the learned Civil Judge had rightly passed the order dated 23.7.1998 as the petitioner/plaintiff had failed to produce bis evidence on several occasions.

4. It follows from the above that both the Courts below have given concurrent findings on the question of fact that petitioner/plaintiff having been given numerous opportunities with a warning by giving him last opportunity to adduce his evidence, but nothing was done by him and as such provisions contained in Order XVII, Rule 3 CPC were invoked to dose his evidence. It is the cardinal principle of law that a litigant should be vigilant while conducting a case. In the instant case facts mentioned above

clearly reveal that petitioner/plaintiff was not only indolent but also negligent to examine his evidence, at the trial. The orders passed by the learned Courts below do not suffer from any latent or patent legal defect so as to call for interference by this Court in its Constitutional jurisdiction. This petition being meritless is accordingly dismissed in limine.

(MYFK) Petition dismissed

PLJ 2000 Lahore 434 (DB)

Present:mian nazir akhtar & riaz kiyani, J. MUHAMMAD SALEEM CHOTIA, ADVOCATE-Petitioner

versus ZAFAR IQBAL AWAISI, ADVOCATE and 4 others-Respondents

W.P. No. 2233 of 1999, decided on 27.7.1999.

Pakistan Bar Council Appeal Rules, 1986-

—R. 5(iv)--Constitution of Pakistan, 1973, Art. 199-Declaration of petitioner as elected President of Bar Association-Appeal against alongwith stay application-Operation of impugned order suspended by single member of Appeal Committee-Writ against-Appeal Committee of Pakistan Bar Council has to consist of not less than three and not more than five members-Under Rule 3(iv) of Rules 1986, quorum for meeting of committee is one half of total number of members of Committee-For purposes of admission and grant of interim relief, appeal has to be laid before Appeal Committee and an order has to be taken according to majority view under Rule 5-This express provision leaves no room whatsoever for chairman of committee sitting singally to take any decision either for admission of appeal or grant of interim relief—Mere fact that other members of Committee were not readily available did not authorise chairman to violative rules and allocate to himself, functions of Appeal Committee—When law provides a thing to be done in & particular manner then it ought to be done in that manner-Impugned order declared to be without lawful authority-Petition accepted.

[Pp. 436 & 437] A & B

Ch. RiasatAli, Advocate for Petitioner.

Rai Muhammad Tufail Kharal, Advocate for Respondents.

Date of hearing: 9.7.1999.

judgment

Mian Nazir Akhtar, J.~Through this Constitutional petition the petitioner has challenged order dated 30.1.1999 passed by the Chairman Appeal Committee, Punjab, Pakistan Bar Council, whereby he had suspended order dated 29.1.1999, passed by the Executive Committee of the Punjab Bar Council.

1. The petitioner's learned counsel submits that by virtue of order dated 29.1.1999 the petitioner was duly declared elected as President of Bar Association, Minchanabad after drawing of lots. The aggrieved person Zafar Iqbal, Respondent No. 1 challenged the petitioner's election by way of an appeal before the Appeal Committee Pakistan Bar Council. The appeal was to be decided by the Appeal Committee consisting of 3 to 5 members as provided under Rule 3(iv) of the Pakistan Bar Council, Appeal Rules, 1986. The Chairman sitting singally took up the stay application filed by Respondent No. 1 and passed the following order:

"30.1.1999. Present:

Mr. Zafar Iqbal Awaisi, Advocate appellant in person.

The impugned order of the Executive Committee Punjab Bar Council dated 29.1.1999 has not been attached which according to the appellant has not been made available despite his best efforts. The application for dispensation duly supported by an affidavit is allowed. The appellant, however, shall append the certified copy of the impugned order within a week.

1. The appellant has been heard. The submissions made at the Bar and asserted in the memo of appeal are verified by the affidavits of the appellant as well as two Advocates. The appeal be registered and set down for hearing for a date to be fixed by the office. In the meanwhile, the operation of the impugned order of the Executive Committee, Punjab Bar Council dated 29.1.1999 shall remain suspended subject to notice for an early date."

The petitioner's learned counsel submits that the Chairman sitting singally was not competent to pass the impugned order which could have been passed only by the appeal Committee. He points out that quorum of the appeal Committee is half of the total number of members. He relies on the judgment reported as Syed Masroor Hassan vs. Muhammad Tariq Chaudhry and others (1991 SCMR 668) to urge that an elected member cannot be restrained from performing his functions. On the other hand learned counsel for Respondent No. 1 submits that initially the Chairman had passed the order because the other members were not available; subsequently the matter was taken up by the Appeal Committee and that the main appeal was likely to be decided in the near future.

1. There is considerable force in the arguments raised by the petitioner's learned counsel. Under the Pakistan Bar Council Appeal Rules, 1986 an appeal against an order or decision of a Provincial Bar Council or an Executive Committee of Provincial Bar Council has to be preferred before the Appeal Committee, constituted by the Pakistan Bar Council, under Rule 3 of the Rules. It has to consist of not less than three and not more than 5 members. The Pakistan Bar Council has to elect a Chairman from amongst the members of the Appeal Committee. Under Rule 3(iv) of the Rules the quorum for the meeting of the Committee is one half of the total number of members of the Committee. For purposes of admission and grant of interim relief the appeal has to be laid before the Appeal Committee and an order or decision of the Committee has to be taken according to the majority view. The relevant Rule 5 is reproduced below:

"5. Functions of the Appeal Committee,--(i) The appeal shall normally be laid before the Committee within (fifteen) days of receipt of an Appeal for admission of the appeal and grant of interim relief if prayed for.

(ii) For the admission of appeal and grant of interim relief it shall not be necessary to call a meeting of the Committee and it will be sufficient if the appeal is circulated amongst the Members of the Committee.

Every order or decision of Committee shall be taken by the majority.

(hi) The Appeal Committee shall hear the appeal, examine the record of the case, and record such evidence as it may deem necessary after providing opportunity of hearing to the parties. The Appeal Committee shall decide the appeal within two months and its decision shall be deemed to be the decision of the Pakistan Bar Council."

A bare reading of the above quoted rule makes it clear that the appeal, for

purposes of adr.ussion or grant of iut,cr.;u relief, had to be dealt with by the coubisuug 01 3 to b members arid LUat every order ui' uuusioii ul the Committee had to be taken in accordance with the view of the majority of the rdembers. This express provision leaves no room whatsoever for the Chairman of the Committee sitting singally to take any decision or pass any order either for admission of the appeal or grant of interim relief. The mere fact that other members of the Committee were not readily available did not authorise the Chairman to violate the rules and allocate to himself the functions of the Appeal Committee. Sub-rule (ii) of Rule 5 provides that for admission of appeal and grant of interim relief a formal meeting of the Committee may not necessarily be held and that the requisite order be obtained through circulation of the appeal amongst the members of the | Committee. When law provides a thing to be done in a particular manner then it ought to be done in that manner and all other modes of doing it stand excluded.

1. For the foregoing reasons the petition is accepted and the impugned order dated 30.1.1999 (Annexure 'F') passed by the Chairman, Appeal Committee/Respondent No. 5 is declared to be without lawful authority" and of no legal effect. Resultantly order dated 29.1.1999, passed by the Executive Committee, Punjab Bar Council, Lahore declaring the present petitioner to be successful stands restored and will hold the field subject to an order or decision of the Appeal Committee.

(MYFK) Petition accepted.

PLJ 2000 Lahore 437

Present: ISHAN-UL-HAQ CHAUDHRY, J.

Mrs. MAQSOODA SHABBIR-Petitioner

versus

PAKISTAN RAILWAYS BOARD through its CHAIRMAN HEAD QUARTER, LAHORE and others-Respondents

W.P. No. 2295/99, heard on 17.6.1999.

Contract Act, 1872 (IX of 1872)--

—-S. 2(h)--Constitution of Pakistan (1973), Art. 199--Catering contract to supply food to passengers-Petitioner's bid being highest was accepted, he deposited 25 per cent of bid amount as also requisite security-Petitioner was subsequently informed that his bid had been accepted-Respondents, thereafter, neither executed contract document nor delivered possession of Dining Car to petitioner in terms of contract-Respondents claimed that catering policy has been changed therefore, contract in question, could not be performed—Reasons furnished for inaction on the part of respondents, were after-thought, superficial and false pretext to defend constitutional petition in as much as petitioner was never informed that it was not possible to proceed with contract further and asked to secure refund of amount paid by it-Respondent also failed to produce any policy which had been formulated instead of system of letting out contract in question, through open auction-Petitioner's further reason in defence was that petitioner had offered such high price that it was not possible for it to perform the contract and maintain quality of edibles, such reason on the force of it was not genuine-Conduct of respondent's was classic case of dereliction of duty on the part of Railway administration-­Constitutional petition was allowed with costs of Rs. Fifty thousand which would be responsibility of respondents, themselves and recovered from them-Respondents were directed to decide fate of contract of petitioner expeditiously by specified date-Secretary Establishment was directed that forthwith proceeding under Efficiency and Discipline Rules were initiated against specified Railway Officers for inefficiency and misconduct resulting in loss to Railways-Chairman and General Manager were issued show-cause notice as to why they should not be proceeded and punished for contempt of Court as they have failed to grant contract in accordance with judgment of Supreme Court in Shaukat All's case PLD 1997 SC 342-Petitioner was also at liberty to initiate action against respondents in accordance with law.

[Pp. 440 & 441] A, B

PLD 1997 SC 32; PLD 1965 SC 83; PLD 1992 Lah. 305; 1978 SCMR 327; 1994 CLC 848 ref.

Mr. Abid Hassan Minto, Advocate for Petitioner. Mr. Masud Mirio, Advocate for Respondents. Date of hearing: 17.6.1999.

judgment

The relevant facts for the decision of this Constitutional petition are that the respondent processed the case for grant of contract of Dining Car attached with 107 Up and 108 Down Trains commonly known as Faisalabad Express running between Faisalabad and Karachi. The prospective bidders applied. Their cases were processed. The petitioner and others, who pre-qualified, were allowed to participate in the bid. They were required to deposit a sum of Rs. 50,000/- as security. The auction took place on 26th November, 1998. The petitioner was highest bidder for Rs. 13,55,000/- and accordingly deposited Rs. 3,38,000/- being 25% of the bid amount. In addition to this it was made also to pay a sum of Rs. 8.800/- as fee of the Auctioneer. It was thereafter that the petitioner was informed vide letter dated 27th November, 1998 that his bid has been accepted. The petitioner waited for the execution of the contract document and delivery of the possession of the Dining Car, so it could perform its part of the contract but respondents did not take any steps, therefore, they were reminded. Still the respondent paid a deaf ear to the demand of the petitioner and failed to perform their part of the contract. In this background the petitioner was compelled to file this Constitutional petition. The same come up for limine hearing on 12.2.1999 when it was admitted to regular hearing and notices were issued to the respondents, who were represented by Mr. Masud Mirza Advocate.

1. Learned counsel for the petitioner argued that the moment the bid of the petitioner was accepted on 27th November, 1998, the petitioner became entitled to the possession of the Dining Cars to perform its part of the contract. It is added that inaction on the part of the respondents is illegal and mala fide.

2. On the other hand, Mr. Masud Mirza Advocate argued that the process was started in pursuance of the judgment of the Hori'ble Supreme Court reported as Shaukat All etc. vs< Government of Pakistan through Chairman, Ministry of Railways etc. (PLD 1997 SC 342) but subsequently the policy was changed. It is added that a sitting lessee cannot resort to the _ Constitutional jurisdiction for enforcement of his right. In this behalf reliance is placed on M.A. Naser vs. Chairman, Pakistan Eastern ailways(PLD 1965 SC 83) and Pakistan National Shipping Corporation vs. Rent Controller, Lahore (PLD 1992 Lahore 305) besides the judgment of Shaukat Ali (Supra). It is added that contractual obligations cannot be enforced through Constitutional petition. In this behalf reliance is placed on Zamir Ahmed Khan vs. Government of Pakistan (1978 SCMR 327 and 1994 LC 84S). It is argued that in respect of the license or obligation arising therefrom no writ is competent. It is added that Railways did not proceed with the grant of contract license because the policy had gone under change. The whole effort of the Railway dministration is to improve the system and give the public better facilities. It is argued that the new policy has been framed, according to which the system of Dining Cars is1 being given up because it brought many evils with it and instead catering facilities to the public "are being provided on platforms.

3. Learned counsel for the petitioner while summing up the arguments submitted that it is the in action on the part of the respondents that the petitioner was compelled to invoke the Constitutional jurisdiction of this Court.

4. During the arguments on 16.6.1999 it was deemed in the interest of justice to hear the Chief Commercial Manager (CCM). Accordingly learned counsel for the respondents was directed to ensure his presence. He has appeared today. His statement has been recorded.

5. Learned counsel for the petitioner submitted that it is clear from the statement of the C.C.M. and the record of this case that the Railways administration is in no mood to honour its solemn commitment given to the Hon'ble Supreme Court and on the basis of which the judgment, in Shaukat Ali case was pronounced. It is added that there is no question of enforcementof any term and condition. It is explained that no new policy has been produced, therefore, it is only a false pretext. It is explained that provisions of catering service on the platform is without any merit as far the contract of the petitioner is concerned because the Faisalabad Express is non-stop train.

6. I have given my anxious consideration to the arguments and gone through the record. The matter upto the stage of acceptance of the bid of the petitioner processed strictly in accordance with rule laid down by the Hon\ble Supreme Court and undertaking given by the Railways Administration in Shaukat All's case but thereafter rule laid down was ignored altogether and the case of the petitioner was not finalized. It is clear from the statement of the CCM that this could not be done for the following reasons:-

(i) The new policy;

(ii) Pendency of the writ petition; and

(Ui) It was not possible for the petitioner to perform the contract in view of the higher lease money offered by him and this was likely to impair the standard of the food to be supplied to the passengers, therefore, the Railways Administration did not perform its part of the contract.

1. The reasons furnished for in action on the part of the respondents and particularly the CCM are afterthought, superficial and false pretext to defend this writ petition for the reasons: Firstly, the admitted position is that the petitioner was never informed that it is not possible to proceed with the contract further and asked to secure the refund of the amounts paid by it. This fact alone is sufficient to prove that the aforementioned reasons were only false pretext and an afterthought. The same have been put forward to get rid of this writ petition; secondly the respondents have failed to produce any policy which has been formulated instead of the system of letting out this contract through open auction. So much so even no draft of the such policy has been produced; thirdly, the reason advanced is that the petitioner . had offered such a high price that it was not possible for it to perform the contract and maintain the quality of the eatables. The reason on the face of it is not genuine because the petitioner insisted to perform the contract while the respondents were not allowing it to proceed with it. This conduct of the respondent is un-natural and the justification rendered is without any merit. Moreso, the respondents were not helpless in case the petitioner failed to supply the food articles in accordance with the specification. The contract could have been cancelled forthwith; and Fourthly the pendency of the writ petition is again a false pretext. This Court has not passed any interim order restraining the respondents to perform their legal duties. Moreover, the writ was filed not after two days but after waiting for more than two months.

2. It is a classic case of dereliction of duty on the part of the Railways Administration particularly CCM, who was to sign the contract. The result is that firstly the petitioner is waiting for the decision for the last 7 months, secondly the Railways got only Rs. 70,000/- per annum instead of Rs. 13,55,000/- and thirdly the Railways Administration failed to act as \ directed by the Hon'ble Supreme Court of Pakistan and that too on its own undertaking. It is not only a case of delay in the decision as to the rights of a party but a criminal negligence on the part of CCM. It became evident why the Railways is suffering huge losses every year and become a liability of the tate. This case atleast gives a clear indication that the basic reason is inefficient and negligent top brass who is responsible for the unfortunate state of affairs in the Railways.

3. The upshot of this discussion is that the writ is allowed with costs of Rs. 50,000/- which shall be the responsibility of the respondents themselves and recovered from them. The result is that:--

(i) the respondents are directed to decide the fate of the contract of the petitioner expeditiously by 30th June, 1999;

(ii> the Secretary Establishment is directed to ensure that forthwith E&D proceedings are initiated against Syed Gulrez Hashamey, Chief Commercial Manager, Pakistan Railway for inefficiency and mis-conduct resulting in loss to the Railways;

i.iii) the present Chairman, CCM and General Manager are issued notice to show-cause why they should not be proceeded and punished for contempt of Court as they have failed to grant the contract in accordance with the judgment of the Hon'ble Supreme Court in Shaukat All case and reiterated in the subsequent order dated 3.12.1998 passed in Crl. Org. Nos. 23-L/97, 24-L/97, 25-L/97 & 26-L/97; and livi the petitioner is at liberty to initiate action against the respondents in accordance with the law.

(A.P.' Petition accepted.

PLJ 2000 Lahore 441

Present: raja muhammad khurshid, J.

MUHAMMAD RASHID-Petitioner

versus

.MIAN MUHAMMAD WASEEM AHMAD, SENIOR SPECIAL MAGISTRATE and another-Respondents

W.P. No. 11340 of 1999, decided on 21.6.1999, Lahore Development Authority Act, 1975 (XXX of 1975)--

—S. 34--Constitution of Pakistan (1973), Art. 199-Petitioner's conviction for violation of provision of S. 34, Lahore Development Authority Act 1975--Validity-Order of petitioner's conviction showed that charge sheet was read out to him and he had made clean breast of having committed the offence-Petitioner as per contents of order of conviction had put up board in question, illegally to which he confessed, thus, he had committed offence mentioned in Section 34, Lahore Development Authority Act 1975~Petitioner, if aggrieved of impugned judgment, could avail relevant provisions of Criminal Procedure Code 1898 to impugn extent and illegality of sentence or avail revisional jurisdiction, if so, advised, if impugned judgment was allegedly without jurisdiction, perverse or illegal~Equally effective and efficacious remedy being Available to petitioner, petition under Article 199 of the Constitution was not maintainable. [P. 442] A

Mr. M.M. Arshad, Advocate for Petitioner. Date of hearing: 21.6.1999.

order

This writ petition is filed to challenge the order dated 13.4.1999 passed by Senior Special Magistrate Parks and Horticultural Authority, Lahore, whereby, upon confessional statement, the petitioner was convicted under Section 34 of the Lahore Development Authority Act, 1975 and sentenced to a fine of Us. 10,000/- or in default to undergo one month S.I. It is contended in this writ petition that the petitioner could not be convicted as he was only an employee of Co-operative Society known as Pakistan Cycle Industrial Co-operative Society Ltd.; that the complaint was ill-founded and did not make out any offence because there was an agreement between TIPA i.e. predecessor-in-interest of Parks and Horticultural Authority whereby, the poles and boarding signs could be installed at Chouburji Chowk and other places in Lahore; that agreement had expired on 28.2.1999 and was renewable within 30 days, however, the renewal was not made but the sign boards and poles were illegally removed and the petitioner was convicted as aforesaid.

1. Learned counsel for the petitioner has submitted that since it was a civil contractual liability, therefore, no criminal offence was made out so as to call for conviction of the petitioner under Section 33 or 34 respectively of the Lahore Development Authority Act, 1975. It is further contended that the provisions of those Sections were not attracted to the facts of the case and that the confessional statement was recorded after the signatures of the petitioner were obtained on a blank paper.

2. I have considered the foregoing facts and have also gone through the certified copy of the impugned order appearing at Page No. 17 as ,annexure 'B'. It shows that the charge-sheet was read out to the petitioner/accused who had made a clean breast of having committed the offence. A copy of the complaint is attached as annexure 'D' whereas, the copy of the sharge-sheet appears as page 22. The name of the petitioner is clearly written over there and a charge was specifically framed showing that he had put up a board and thereby violated the provisions contained in Section 33/34 of the Lahore -Development Authority Act, 1975. To that effect, the petitioner pleaded guilty and contended that he would not lead any defence. Likewise, the impugned order shows that the petitioner had put up a board illegally to which he confessed and as such committed the offence mentioned in Section 34 of the Lahore Development Authority Act, 1975.

The petitioner if aggrieved of the impugned judgment may avail the provisions contained in Section 412 Cr.P.C. to impugn the extent and illegality of sentence or in alternate avail the revisional jurisdiction, if so advised, if the impugned judgment was allegedly without jurisdiction, perverse or illegal. Since equally an effective and efficacious remedy is available to the petitioner under the ordinary law of the land, therefore, the petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not maintainable. It is accordingly dismissed in limine CM.. No. 1/99 stands disposed of with the disposal of the main petition.

(A.A.) ' Petition dismissed.

PLJ 2000 Lahore 443

Present:shaikh abdur razzaq, J. FAZAL-UR-REHMAN etc.-Petitioners/Defendants

versus

BEGUM SUGHRA HAQ-Respondent

Plaintiff C.M. No. 1-C of 1998 in C.R. No. 3420 of 1994, heard on 30.7.1999. Civil Procedure Code,1908 (V of 1908)--

—-0. VI, Rr. 14, 15 & 17 r/w. S. 155--Suit for specific performance-­ Acceptance of-Revision against-Application for amendment in grounds of revision as well as written statement filed by petitioner-Signing and verification of plaint are mere matters of procedure-Suit cannot be said not have been instituted because of defect or irregularity in matter of signing and verification of plaint—Suit cannot also be dismissed for absence of signature of plaintiff on plaint-Court is fully empowered to call plaintiff to sign plaint to do anyway with defect-On signing vakalatnama, at subsequent stage, and removal of defect, suit shall be deemed to have been instituted on date of presentation of plaint and its registration in office-Litigation remained pending in trial Court for seven years and in appellate Court for four years, but instant pleas were not raised during said period, neither these were raised during four years of institution of instant revision-If there was any defect in initial institution of plaint, it stood rectified-Objection raised by petitioner is only technical, particularly when substantial justice has been done between parties-Petition dismissed. . [Pp. 445 & 446] A to C

Mr. A. Karim Malik, Advocate for Petitioners/Defendants. Mian Nisar Ahmad, Advocate for Respondent/Plaintiff. Date of hearing: 30.7.1999.

judgment

Briefly stated the facts are that Mst. Sughra Haq plaintiff/ respondent on 6.1.1983 entered into an agreement to purchase with the defendant Sh. Abdur Rehman, predecessor-in-interest of Petitioners Nos. 1 & 2 for a sum of Rs. 90,000/- in respect of the property described fully in the plaint. She paid Rs. 10.000/- as earnest money and the remaining amount was agreed to be paid before or at the time of execution of the sal^-deed upto 30.6.1983. It was stipulated that if the remaining amount is not paid, the amount paid as earnest money would stand forfeited. Subsequently, the time for execution of sale-deed was extended upto 31.8.1983 and she further paid Rs. 15,000/- through a cheque which was also got encahsed. As the defendant/predecessor-in-interest of the petitioners failed to perform his part of contract and through sale-deed dated 8.9.1983 sold the suit property to defendant/Petitioner No. 3, so the plaintiff/respondent was constrained to file a suit for specific performance against the defendants/petitioners on 20.10.1983. After the death of Sh. Abdur Rehman, his legal heirs were impleaded and as such amended plaint was filed on 20.5.1989. The suit was resisted by the defendants/petitioners who filed their written statement on 17.12.1983. The trial Court framed as many as 8 issues and after recording evidence of the parties, decreed the suit vide,judgment and decree dated 19.3.1990. The defendants/petitioners felt aggrieved of the said judgment and decree and filed an appeal which was dismissed on 14.6.1994. Hence the instant Civil Revision.

1. During the pendency of Civil Revision, an application under Order 6, Rule 17 CPC has been moved by the petitioners for amendment of written statement as well as grounds of revision. The said application has been resisted by the respondent.

2. By this order, the said application is being disposed of.

3. Arguments have been heard and record perused.

4. Contention of learned counsel for the petitioners is that initially the suit was filed by the plaintiff/respondent through her husband Ata-ul- Haq asserting him to be her general attorney on the basis of general power of attorney executed on 15.5.1957. He argued that as the agreement in question was not in existence on 15.5.1957, so the plaintiff/respondent could not authorize her husband to file the instant suit, as such very institution of suit is defective. He next urged that amended plaint was filed on 20.5.1989 under the signature of Mst. Sughra Haq, but it will not make any difference as suit by that time had been time barred. He further canvassed that such grounds could not be taken either in the written statement or in the grounds of revision, that the amendment sought is not going to change the character of the suit/revision, so the amendment be allowed, that such amendments have been granted even at revisional stage unless a new subject-matter is sought to be added and placed reliance inter alia upon Mst. Rahitn Noor vs. Mst. Salim Bibi and 2 others (PLD 1992 SC 30), Ch. Abdul Rashid vs. Ch. Muhammad Tufail and others (PLD 1992 SC 180) and Qadir Bakhsh and 10 others vs. Kh. Nizam-ud-Din Khan and 4 others'(1997 SCMR 1267).

5. Conversely, application for amendment has been vehemently resisted by learned counsel for the plaintiff/respondent. His contention is that omission in the signatures of the pleadings or signature by a person not authorised is merely a defect of procedure and does not affect the jurisdiction of the Court and can be allowed to be corrected at any stage and placed reliance upon All India Reporter Ltd. Bombay with Branch Office at Nagpur and another vs. Ramchandra Dhondo Datar (AIR 1961 Bombay 292), MalikSajawal Khan vs. The Deputy Commissioner, Sargodha and another (PLD 1968 Lahore 527), Ghulam Mohi-ud-Din and another vs. Noor Dad and 4 others (PLD 19SS SC (AJ&K) 42) and Ismail and another vs. Mst. Razia Begum and 3 others (1981 SCMR 687).

6. The only point which requires determination is, if the proposed amendment can be granted or not.

S. Admittedly, the plaint was initially signed by Ata-ul-Haq, in his capacity as general attorney of M st. Sughra Haq. It is also fact that later on, amended plaint was filed on 20.5.1989 which was duly signed by Mst. Sughra Haq. Now even if there had been any defect in the initial institution of plaint, it stood rectified by filing the amended plaint, which was duly signed by Mst. Sughra Haq. It is also fact that the instant pleas were neither raised during the pendency of the suit which continued for about 7 years nor during the pendency of appeal which continued pending for four years. Now the instant civil revision was filed on 16.8.1994 and the instant application has teen moved on 22.9.1998 after a period of four years of the institution of the instant civil revision.

1. Learned counsel for the defendants/petitioners has referred to certain authorities, a perusal of which reveals that these are not applicable to the facts in hand and in no way advance their stand. Conversely, the authorities relied upon by learned counsel for the plaintiff/respondent apply to the facts in hand. The provisions contained in Order 6, Rules 14 & 15 CPC with regard to signing and verification of plaint are mere matters of procedure and if a plaint is not properly signed or verified but is admitted and entered in the register of suits, it does not cease to be a plaint and the suit cannot be said not to have been instituted merely because of the existence of mere defects or irregularities in the matter of signing and verification of the plaint. If defects in regard to the signature, verification or presentation of the plaint are cured on a day subsequent to the date of filing the suit, the date of institution of the plaint is not changed to the subsequent date. The date of institution of the suit or the date from which an amendment takes effect does not depend on the discretion of the Court. Of course, the Court has a discretion to allow or not to allow an amendment of the pleadings or the resigning or reverification of the plaint. Once the discretion is exercised, the amendment of the plaint relates back to the original date of the suit. In other words, the original date of institution of the suit is not affected by the amendments in the plaint or the'fresh signature or verification of the plaint and in this respect reliance is placed upon AIR 1961 Bombay 292 (supra). Again signing and verification of the plaint are mere matters of procedure and even if a plaint is not properly signed and verified, but it is admitted and entered in the register of suits, it does not cease to be a plaint, and the suit cannot be said not to have been instituted because of the defect or irregularity in the matter of signing and verification of the plaint. Reliance can be placed upon PLD 1968 Lahore 527 (supra). Again it is undenying that the suit cannot be dismissed for absence of signatures of the plaintiff on the plaint. This, again, is considered a formal defect, rectificable at any stage. The Court is fully empowered to call the plaintiff to sign the plaint to do away with the defect. In the instant case, even the Court has not ... to call the plaintiff as the amended plaint filed on 20.5.1989 has been duly " signed by the plaintiff Mst.Sughra Haq. It is on this premises that it is permissible to hold that on signing the vakalatnama, at subsequent stage, and removal of the defect, the suit shall be deemed to have been instituted on the date of presentation of the plaint and its registration in the office. I am fortified in this respect by PLD 1988 SC (AJ&K) 42. It is also fact that during the period of seven years when the litigation remained pending in the trial Court as well as during the period of four years when the litigation remained pending in the appellate Court, the plaintiff/respondent has all along been prosecuting the suit with diligence. Non signing of plaint by the plaintiff/respondent at proper stage in such circumstances is a mere irregularity and the objection raised is only technical, particularly when substantial justice has been done between the parties. Reliance is placed upon 1981 SCMR 687 (supra).

2. The upshot of the above discussion is that the petition moved under Order 6, Rule 17 CPC by the defendants/petitioners seeking the amendment in the written statement as well as grounds of revision is devoid of any force and is hereby dismissed.

(MYFK) Petition dismissed

PLJ 2000 Lahore 446

Present: DR. MUNIR AHMAD MUGHAL, J. Mrs. NILOFER SAEED-Petitioner

versus ARIF ASLAM KHAN and 4 others-Respondents

C.R. No. 417 of 1999, heard on 1.7.1999.

Arbitration Act, 1940 (X of 1940)--

—Ss. 14, 17, 30, 33--Civil Procedure Code, 1908, (V of 1908) O. IX, Rules 8 & 9 r/w S. 115—Application for making award as rule of Court—Dismissal for non-prosecution-Application for restoration-Acceptance of-Petition against-Role of Arbitrator is to settle dispute between parties amicably by avoiding all types of technicalities of procedural law, to provide a domestic forum for speedy disposal of disputes-It is admitted fact that parties have entered appearance before lower Court and there was no occasion for arbitrator to be present or prosecute conflict—O.IX Rule 9 CPC provides restoration of suit dismissed in default if applicant satisfies Court that there was sufficient causes for his non-appearance when suit was called on for hearing-Power to restore is discretionary and this discretion is judicial-Arbitrator was under impression that he was neither legally bound nor even to peruse application U/S. 14 of Act, 1940 and this impression was legally correct, sound and amount to sufficient cause for restoration of application-Revision petition dismissed.

[Pp. 451, 452 & 454] A to D

PLD 1963 SC 382, PLD 1957 SC (Pak) 186 ref.

Ch. Bashir Ahmad, Advocate for Petitioner.

Kh. Tariq Rahim and Mr, Saleem Abdur Rehman, Advocates for Respondents Nos. 1, 3 and 4.

Ch. Fazal Hussain, Advocate for Respondent No. 2. Miss Rukhsana Lone, Advocate for Respondent No. 5. Date of hearing: 1.7.1999.

judgment

This order will dispose of Civil Revision directed against the order dated 12.1.1999 passed by learned Civil Judge, Lahore, whereby the trial Court restored the Arbitration application under Section 14 of the Arbitration Act which was dismissed on 27.6.1998.

1. The background of the case is that the petitioner and Respondents Nos. 1 to 4 are the legal heirs of Brig (R) Muhammad Aslam Khan and Mst. Fardia Begum. In order to resolve the matter of distribution of assets of their parents, devolved upon them, the petitioner and Respondents Nos. 1 to 4 (Legal heirs 2 sons and 3 daughters) appointed Respondent No. 5 (Air Marshal (Rtd.) M. Asghar Khan) as Sole Arbitrator to decide all questions regarding inheritance, distribution and devolution in accordance with the provisions of law of sharia and in accordance with previous of the Arbitration Act, 1940 and that Respondent No. 5, the arbitrator gave an award on 4.11.1997 and filed an application dated 4.11.1997 (Annexure 'A') for making the award as rule of Court and this application was entrusted to Mr. Asmat Ullah Khan Niazi, Civil Judge, Lahore and that the legal heirs (petitioner and Respondents Nos. 1 to 4) joined the proceedings and on 19.6.1998, the trial Judge (Mr. Tahir Naeem, Civil Judge, Lahore) ordered Respondent No. 5, the arbitrator to file amended application as the application under Section 14 of the Arbitration Act, 1940 did not contain the names and addresses of the parties and that on 27.6.1998, no one appeared on behalf of Respondent No. 5 (the application before the trial Court) as such his application dated 4.11.1997 was dismissed for non-prosecution and that Respondents Nos. 1, 3 and 4 before the trial Court moved an application under Order 9, Rule 8, read with Section 151 C.P.C. to restore the application dated 4.11.1997 and the learned trial Court after hearing the arguments dismissed the application vide his order dated 18.7.1998 and that an amended application under Order 9, Rule 9, C.P.C. on behalf of Respondent No. 5 (Arbitrator) was filed on 29.7.1998 which was replied/contested by the petitioner and Respondent Nos. 2. Respondents No. 1, 3 and 4 did not contest. In the meanwhile, the case was transferred to the Court of Ch. Muhammad Latif, Civil Judge, Lahore. The trial Court accepted the application under Order 9, Rule 9, C.P.C. vide his order dated 12.1.1999.

2. Learned counsel for the petitioner has assailed the impugned order on the grounds that while dismissing the application for restoration, vide order dated 18.7.1998 the learned trial Court had observed that the petitioner shall be required to make his presence on every date of hearing either in person or through counsel or through authorized agent and no one appeared on behalf of the petitioner of the main petition on 27.6.1999 and that only the petitioner of the main petition can move an application for restoration and that the petitioner (petitioners who moved application for restoration) were made Respondents Nos. 1, 3 and 4 in the main petition, and were not entitled to move an application for restoration; and that on 29.7.1998, another application for restoration under Order 9, Rule 9, read with Section 151 C.P.C. was moved by Miss Rukhsana Lone, Advocate alleging to have been filed on behalf of the arbitrator but the application dated 29.7.1998 did not bear the signature of the arbitrator and the contents of the application were not supported by an affidavit of the arbitrator, which is a mandatory requirement of law and that no sufficient cause for non- appearance was stated in the said application and that the order dated 12.1.1999 was directly in conflict with the earlier order dated 18.7.1998 of the trial Court and the learned trial Court was not legally justified to review his earlier order dated 18.7.1998 and that the restoration of arbitration proceedings was time barred as the application was made on 29.7.1998.

3. On the other hand, learned counsel for the respondents have taken the stand that Respondent No. 5 was the sole arbitrator appointed by the parties to the award for the partition of the property and is real uncle of the parties who are the legal heirs of Late Brig. (Retd.) Muhammad Aslam Khan. He announced his award on 4.11.1997 and filed the same under Section 14(2) of the Arbitration Act. Thereafter, it was for the Court to process the same and to make the award rule of the Court under Section 17 of the Arbitration Act and that all the parties did appear before the Court to pursue their respective cause. The petitioner's brother, Respondent No. 2 only filed objections against the award under Sections 30 and 33 of the Arbitration Act, whereas Respondents Nos. 1, 3 and 4 supported the award to be made rule of the Court and to pass the decree and that the petitioner in the civil revision and Respondent No. 2 are in league with each other and are in physical possession of substantial part of the estate of the deceased than their due entitlement and thus in one way or the other are trying to prolong the proceedings and that when all the parties were present and the date was a formal date the application under Section 14 of the Arbitration Act could not be dismissed for the absence of the Arbitrator and that the application for restoration was filed by the Arbitrator on 25.7,1998 well in time.

4. In the case of Askfaq Ali Qureshi vs. Municipal Corporation, Multan and another (1985 SCMR 597), the Hon'ble Supreme Court of Pakistan observed as under:

"Apparently, the prevalent view is that as the provision of the law is meant to enable the parties to know that the award has been filed in Court so that they may file their objections, if any, within the time prescribed, a formal compliance in strict conformity with the relevant provision of law is not to be insisted upon when substantial compliance has been made of it. In keeping with this view where the fact of filing of the award by the Arbitrator had already been in the knowledge of the parties and their counsel had in response to notice issued by the Court appeared and taken time to file their objections, as in the present case, an insistence on a formal service of notice under Order XXIX would be 8 mere technicality, Even otherwise, an objection on this score had neither been taken before the trial Court nor in the memorandum of appeal before the High Court and was, therefore, only an afterthought not entitled to serious consideration.

As regards the duty of the Court not to act blindly on an award, which had weighed with the High Court, it is no doubt true that mere absence of objection was not altogether to absolve the Court from its responsibility of deciding whether the award was valid on the face of it."

1. Similarly, in the case of Sh. Mahboob Alam vs. Sh. Mumtaz Ahmad (PLD 1960 (W.P.) Lahore 601), the Hon'ble Supreme Court of Pakistan has stated the object and scope of Section 14 of the Arbitration Act 1940 as under:

"Coming now to the merits of this appeal, we will take-up the objections under sub-sections (1) and (2) of Section 14 together. Section 14(1) provides for a notice of the making of the award by the arbitrators. Section 14(2) provides that after the award is filed by the arbitrators the Court shall give notice to the parties of the filing of the award. Learned counsel for the appellant contends that in view of the use of the word "shall" in either o'' rhese two provisions, it is necessary to comply with them, and i« the absence of notice of the making of the award, or of the filing of the award, the award is as yet unenforceable and void. We see little force in these contentions when urged by a person who, after coming to know of the contents of the award, had filed objections to the award. The objection of the provision relating to notice of the making of the award is only to inform the parties that the award, has been made so that, they may file an application for the filing of the award. Such an application has to be filed within ninety days of the service of notice of the making of the award under Article 178 of the Limitation Act. Similarly, the object of giving notice of the filing of the award is to enable the parties to file an application for the setting aside of the award. Such an application has under Article 158 to be filed within thirty days of the service of the notice of the award. Had there been- involved any question of limitation as to an application for filing of the award, or as to an application for setting aside of the award, reliance upon the provisions to give notice would have been justified. But, in the present case, there was no application for filing the award at all and there was no objection on the ground of limitation to the application for setting aside of the award. No objection as to the absence of notice of the making of the award or of filing of the award can be taken by a party who has filed an application for setting aside of the award and the application has been entertained without any objection as to limitation. It is not contended that the appellant did not know of the contents of the award for he had filed objections after going through the award. Learned counsel for the appellant has relied upon judgments which lay down that the provisions of Section 14(1) and (2) are mandatory. They may be mandatory and may form a strong basis for repelling any objections on the ground of limitation, but. they cannot render an award void. Their effect would be that the Court would direct compliance with them but. when the object of the provisions has been served and the parties have knowledge of the contents of the award as well as of its filing there is no need of any formal notice (though its absence may be pleaded in reply to an objection on the ground of limitation). Learned counsel for the appellant urges that as long as there is no notice for filing of the award objections cannot be filed at all. We asked him to refer us to any provision to that effect in the Arbitration Act and he was unable to do so. An application for setting aside the award can no doubt be filed within thirty days of the service of notice of filing of the award, but there is no reason to suppose that even if notice has not yet been formally served, a party cannot put in an application for setting aside the award. Suppose in the present case this application for setting aside the award had succeeded. Could the respondent urge in the High Court that as notice of the award had not yet been served on the appellant, the whole proceedings were infructuous? He could not possibly be allowed to urge that. It is only the person on whom notice had not been served, who could make a grievance of it and he too could rely on it only in reply to a plea of limitation. We are at the same time of the opinion that the point under discussion can be decided even by reference to Section 17 of the Arbitration Act, which runs:

"17. Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with, the award."

In accordance with this section either the limitation for filing an application to set aside the award should have expired or such an application should have been made and rejected, and if it is rejected the Court has to proceed to deliver judgment in accordance with the award. This section does not say that as long as notice of filing of the award has not been served, the Court is not to deliver judgment."

6 The role of Arbitrator is to settle the dispute between the parlies amicably by avoiding all types of technicalities of procedural law but within the fcur corners of substantive law and to provide a domestic forum for \speecy disposal of disputes. This is done through persons in whom both the parses repose their trust. Therefore, the course that the Courts should generally follow is to encourage the settlement of dispute by this method wherever the parties have themselves agreed to do so. It is according to the scheme of Arbitration Act, 1940. There are three modes of arbitration:--

1 Arbitration with the intervention of the Court where there is no suit pending (Section 20).

121 Arbitration in a suit pending before a Court (Section 21). 3 > Arbitration without the intervention of the Court.

The present case falls in the 3rd category as the parties have themselves agreed to refer the matter to the Arbitrator/Respondent No. 5 and to this kind cf arbitration Ch. II of the Arbitration Act is applicable.

1. Further there are stages of all the categories, i i) Reference to the Arbitrator. (iii Making of award by the Arbitrator. i'iii.) To file the award in the Court.

In the present case, these three stages have passed. What I gathered from the contentions of the learned counsel for the petitioner is that the Arbitrator is being considered as one of the parties to the award. He was not a party to the award nor he is a party to the award. His role was that of an Arbitrator and he had an option to file the award in the Court which he has exercised and now the matter is in the Court between the parties to the award. The learned CivU Judge has very correctly appreciated in his order dated 12.1.1999 that the award under adjudication before the Court amongst legal heirs of Brig. (Retd.) Muhammad Aslam Khan and Mst. Fareeda Begum who happened to be parents of the parties, and that so far as objections as well as counter version of the parties inter-se, was, that was a matter of probe and may be depended on the evidence and on the verdict and that parties were legal heirs, the sole arbitrator was appointed and that law favoured adjudication on merits and that parties being Muslim as such no sooner prepositions passed away estate vested in the legal heirs there and then and no limitation ran against any of the legal heirs to the extent of its entitlement. The learned Civil Judge has also referred to the view of the Hon'ble Mr. Justice B.Z. Kaikaus in his dismissing judgment in the case of Imtiaz Ahmad vs. GhulamAli and 2 others (PLD 1963 Supreme Court 382) about the question as to whether too strict adherence to, helps course of justice? The Hon'ble Judge had observed:

"I must confess that having deall with technicalities for more than forty years, out of which thirty years are at the Bar, 1 do not feel much impressed with them. I think 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. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."

1. In the present case it is also admitted fact that the parties have entered appearance before the Court and even put forward their in view points with regard to its veracity, correctness or objection, there was no occasion for an arbitrator to be present or prosecute the conflict.

2. For disposal of this Revision Petition reference to S. 115 C.P.C, and Order 9, Rule 9 C.P.C. is relevant. Both these rovisions are reproduced as under:

"115. Revision.-(l) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with aterial irregularity, the High Court may make such order in the case as it thinks fit-Provided that, where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court, and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court:

Provided that such application shall be made within ninety days of the decision of the Subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months.

21 The District Court may exercise the powers conferred on the High Court by sub-section (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and tie amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.

3 If any application under sub-section (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.

4) No proceedings in revision shall be entertained by the High Court against an order made under sub-section (2) by the District Ccurt.

"Order EK. Rule 9.

"Decree against plaintiff by default bars fresh suit.--(l) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the pplication has been served on the opposite-party.

(3) The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1)."

The above rule provides restoration of a suit dismissed in default if the applicant satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing. The power to restore is discretionary and this discretion is of course judicial in its nature. Now what is "sufficient cause" it has not been defined in the statute or the rules framed under it. Thus I have to revert to the judicial pronouncement on the subject.

1. In the case of Kunwar Rajendra Bahadur Singh s. Rai Rajeshwar Bali and others (AIR 1937 Privy Council 276) the Privy Council observed:

"—Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the meaning of S. 5, Limitation Act, though there is certainly no general doctrine which saves parties from the results of wrong advice."

1. In the case of Sardar Muhammad Sadiq Khan and others vs. KB. Abdul Hayee Khan and others (PLD 1957 Supreme Court (Pak.) 186) the Hon'ble Supreme Court observed:

"'Sufficient Cause' in Order XXII, Rule 9, Civil P.C. need not be only of a physical nature. The impediment in the way of the party, on whom rests the duty of bringing the legal representatives on record, may be of a positive nature or even negative in character e.g. a substantial and bona fide doubt as to the necessity for acting under the above provision at all and consequentially as to the appropriate time for taking such action."

1. In the present case, the contents of the application under Order 9, Rule 9, C.P.C. show that the Arbitrator, Respondent No. 5 was under the impression that he was neither legally bound nor even to peruse the application under Section 14 of the Arbitration Act and this impression was legally correct. It has also been stated that the date 22.6.1998 was not the date of hearing. Both these grounds are factually correct, legally sound and amount to sufficient cause for restoration of the application under Order 9, Rule 9, C.P.C. which jurisdiction was vested in the trial Judge and thus he has exercised the jurisdiction fully vested in him by law. The impugned order is therefore maintained and the revision is dismissed, (MYFK) Petition dismissed.

PLJ 2000 Lahore 455

Present: ihsan-ul-haq chaudhry, J.

MUZAFFAR ALI KHAN ADDITIONAL DIRECTOR GENERAL (HORTICULTURAL) L.D.A LAHORE-Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY through DIRECTOR GENERAL

and 3 others-Respondents

Writ Petition No. 21786/96, accepted on 5.7.1999.

Punjab Civil Servants Act, 1974 (VIII of 1974)-

—-S. 9-Constitution of Pakistan (1973), Art. 199-Civil servant-Deputation-Repatriation-Civil servant being permanent employee was on deputation to Lahore Development Authority wherein he was permanently absorbed-Civil Servant was afterward repatriated to his parent department--Validity—Civil servant after absorption became permanent employee of Lahore Development Authority-Therefore, order of repatriation was without jurisdiction, void and passed without applying mind to facts, therefore, liable to be set aside—Civil Servant (petitioner) had vested right to continue in Lahore Development Authority after permanent absorption-Civil Servant, in any case, was entitled to hearing and show-cause notice before any order adverse to his service career was pas=ed--0rder of Civil Servant's absorption having been acted upon, respondent's have lost locus paenitentiae—Civil servant continued on bisis of injunction order in Lahore Development Authority till he retired from service-Civil servant having been absorbed in Lahore Development Authority on permanent basis became employee of the authority and ceise-d to be employee of Punjab Government, therefore, he could not be repatr-ated-Civil Servant being employee of Authority was entitled to pension and other benefits-Authority was directed to settle claim of petitioner 'Civil Servant) expeditiously.

[Pp. 456 & 457J A, B & C

199-2 ?LC C.S.) 1127; 1981 SCMR523; PLD 1955 F.C. 46; PLD 1964 SC 503; PLD 1969 SC 407; 1980 SCMR 268 ref.

.'.f r. Af.A Zafar, Advocate for Petitioner, /•/r. Azmat Saeed, Advocate for Respondents. Date of hearing: 5.7.1999.

judgment

The relevant facts for the decision of this Constitutional petition are that the petitioner was an employee of the Agricultural Department. He was sent on deputation to the respondents/Authority and afterwards made Additional Director General (Horticulture) with effect from 1 12.1993. The petitioner served to the entire satisfaction of all concerned, therefore; vide office order dated 16.9.1996 he was permanently absorbed in the L.D.A. as Add! Director General Horticulture (BS-20) with immediate effect. The grievance was that the petitioner was being seat back to Agr cultural Department. He filed this petition and also moved for temporary injunction. The writ came up for hearing 30.12.1996 when it was admitted to hearing and injunctory order was issued. The respondents have appeared and contested the petition.

1. The learned counsel for the petitioner argued that the petitioner was absorbed in the L.D.A. on permanent basis, therefore, he could not be repatriated. It is added that in any case no such order could be passed without show-cause notice and hearing the petitioner. It is added that the order was passed mechanically and in utter disregard of the injunction order issued by this Court on 30.12.1996, therefore, repatriation was void.

2. On the other hand, learned counsel for the respondents argued that after the dismissal of the People's Party Government the Care-takers directed that the appointments made by the previous Government without observing the merit, should be scrutinized and dispensed with. It is added that the order was passed in accordance with the policy of the Government.

3. I have given my anxious consideration to the arguments and gone through the record. It was not an appointment. In fact the petitioner was permanent employee of the Agricultural Department and was on deputation with the L.D.A. He after absorption became permanent employee of the L.D.A., therefore, the order of repatriation was without jurisdiction, void and passed without applying mind to the facts, therefore, liable to be set-aside. .The petitioner has a vested right to continue in the L.D.A. after his ^permanent absorption vide order dated 16,9.1996, therefore, in any case he was entitled to hearing and show-cause notice before any order adverse to his service career was passed. This is not all. The order dated 18.9.1996 having been acted upon the respondents have lost locus poenitentiae. In this behalf, reference can be made to the judgment in the case of Muhammad Nawaz vs. Federation of Pakistan and 61 others (1992 PLC (C.S.) 1127). The relevant portion reads as under.

"6. The Service Tribunal noted that in the case the competent authority, namely, the Director-General, Pakistan National Centre, passed the order, dated 15.11.1988, regularising the service of certain Programme Managers and the same competent authority confirmed the services of some officers on 3.1.1989 and that the two orders, having been passed competently, had taken effect and created valuable rights in favour of the persons mentioned in the orders and, accordingly, held that the cancellation of these two orders by the Ministry of Information and Broadcasting was, therefore, not valid and thus, allowed the appeals."

1. The Court vide order dated 30.12.1996 has restrained the respondents from passing any order detrimental to the present service of the petitioner. The respondents were appearing in this writ petition and represented, therefore, the impugned order dated 17,11.1997 could not be passed. It is relevant to mention here than the petitioner continued on the basis of the injunction order in the L.D.A. till 23.11.1998 when he retired form the service. He is now claiming pension and other benefits. Once the petitioner was absorbed in the L.D.A. on permanent basis on 16.9,1996 he became employee of the L.D.A. Thereafter he ceased to be an employee of the Punjab Government and, therefore, could not be repatriated. In this behalf, reference can be made to the judgment dated 20.1.1993 in Writ Petition No. 2880-S/1991, "Mian Muhammad vs. The Chairman, L.D.A. etc.", which was again L.D.A. case. The relevant portion of the judgment reads as Uider

"17. Once the policy decision dated 12.2.1990 was duly approved, the benefits accruing thereunder automatically extended to the petitioner and nothing else was required to be done. There is, therefore, no force in the submissions of the learned counsel for the respondents that the principle of animus reuertendi or locus poenitentiae was not applicable here. Also refer Raja Muhammad Nawaz v. Government of the Punjab (1981 SCMR 523), Shaltbaz v, The Crown (PLD 1955 F.C. 46), Lt. Col G.L. Battacharya v, TheState (PLD 1964 S.C. 503), Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 S.C. 407) and the State v. Muhammad Ismail (1980 SCMR 268), in which the law on the principle ofamius revertendi or locus poenitentiae has been authoritatively settled "

1. The upshot of the above discussion is that this writ petition is accepted with no order as to costs. The order of repatriation of the petitioner dated 17.11.1997 passed by Respondent No. 3 is declared illegal. The result is that the petitioner continued as an employee of the L.D.A. till his retirement, therefore, he is entitled to pension and other benefits. The respondents are directed to settle the claim of the petitioner expeditiously.

(A.P.) Petition accepted.

PLJ 2000 Lahore 457

Present: karamat nazir bhandari, J.

LAHORE DEVELOPMENT AUTHORITY hrough its DIRECTOR GENERAL and another-Petitioners

versus

COMMISSIONER, LAHORE DIVISION, LAHORE and another-Respondents

W.P. No. 34 of 1982, decided on 14.9.1999.

(i) Administration of Justice-

—Justness/unjustness of acquisition proceedings—Purpose of judicial view is administration of law-Finding of justness/unjustness of acquisition would not be relevant, otherwise Court would be acting as acquisition agency itself. [P_ 466] E

(ii) Punjab Acquisition of Land (Housing) Act, 1973 (VIII of 1973)-

—S. 14-Constitution of Pakistan (1973), Art. 199-Acquisition of land for housing project-Respondent land owner's application to Deputy Commissioner for withdrawal from acquisition was rejected-Collector had not yet submitted award of compensation for acquired land-­Respondent, before award was made, submitted appeal before Commissioner against Deputy Commissioner's refusal to withdraw from acquisition-Commissioner, while accepting appeal of respondents, excluded area owned by them--Validity-Provision of S. 14, Punjab Acquisition of laud Housing Act 1973 "did not authoiize Commissioner to pass impugned\Qrder as appeals, representations before him were not preferred against a\yard, therefore, order of Commissioner in cases which was not against award was without jurisdiction and thus, void, is as much as award was announced much after impugned orders of commissioner and also on additional ground that he had not adverted to question of limitation while deciding matter on merits. [Pp. 464 & 465] A, B & C

(iii) Punjab Acquisition of Land (Housing) Act, 1973 (VIH of 1973)--

—S. 19-Withdrawal from acquisition-Deputy Commissioner in terms of S. 19 of the Act VIII of 1973, could withdraw from acquisition only if Government or official Development Agency (as the case may be) had informed Deputy Commissioner in that behalf in writing—As per record constraint, Deputy Commissioner could withdraw only from the land of which possession had not been taken-No appeal/representation is provided against order of Deputy Commissioner under S. 19 of the Act-­ No appeal being competent, before Commissioner, his order in question, was completely without jurisdiction and thus, void-Right of appeal being creation of statute, has to be specifically conferred. [P. 465] D

(iv) Punjab Acquisition of Land (Housing) Act, 1973 (VIII of 1973)--

—Ss. 14 & 19-Constitution of Pakistan (1973), Art. 199-Acquisition of land for purposes of residential scheme-Deputy Commissioner on application of respondent landowners refused to withdraw from acquisition in respect of their land-Commissioner on appeal xempted land belonging to respondent land owners-Validity-Commissioenr did not have jurisdiction to set aside orders of Deputy Commissioners passed under S. 19 of the Act VIII of 1973-Iinpugned orders were thus, declared to be without lawful authority and of no legal effect. [P. 467] F

PLD 1973 SC 236; PLD 1991 SC 691; PLD 1982 SC 413; PLD 1990 SC 504; 1985 SCMR 1591; PLD 1997 SC 304; PLD 1991 SC 546; PLD 1995 Kar. 60; 1995 CLC 1606; PLD 1973 SC 236 ref.

Mr. Azmat Saeed, Advocate for Petitioners.

Mr. Muhammad Amin Lone, Asst, A.G. Punjab for Respondent No. 1.

Sardar Allah Nawaz Khan, husband of Respondent No. 2 in person.

Dates of hearing: 3.6.1999, 15.6.1999 & 26.8.1999. judgment

This Judgment will dispose of Writ Petitions Nos. 34/82, 3628/82, 2212/83, 1925/83 and 522/84, as common question of law, viz. the power of the Commissioner under Punjab Acquisition of Land (Housing) Act, 1973 (VIII of 1973) (since repealed by Punjab Acquisition of Land (Housing) (Repeal) Act, 1985, (Act XII of 1985), hereinafter referred to as the Act, to exclude the land and/or exempt from operation of a residential scheme, is involved. It would be advantageous if the facts of each ease are separately recorded in brief. But first the common facts.

1. The common facts in all but Writ Petition No. 3628/82 are that the petitioner, hereinafter referred to as LDA, is a statutory body created under the Lahore Development Authority Act, 1975 (Punjab Act XXX of 1975). The LDA framed a residential scheme known as Muhammad Ali Jchar Town Scheme, which was sanctioned by the competent authority on 3.8.1980. The scheme was notified under Section 13(3) of the Lahore Development Authority Act, 1975, in the Punjab Gazette of September 9, 19SO. The Land Acquisition Collector (Petitioner No. 2) in Writ Petition No 34/84 and respondent in other petitions), commenced proceedings. A notification under Section 4(i) of the Act was issued on 6.11.1980. Notice to persons interested as prescribed under Section 6 of the Act was issued in the Press on 15.12.1980. The possession of the land was taken over on 17.8.1981, The proceedings before the Land Acquisition Collector continued and resulted in the award dated 9.10.1982. The award dated 9.10.1982, besides dealing with various objections and difficulties of the land owners, also fixed the amount of compensation to be paid to the land owners.

2. In Writ Petition No. 34/82, the private respondent made an application to Land Acquisition Collector on 20.12.1980 for exclusion of an area of about 29 Kanalscomprising of Khasra No. 11125 and 11282 situated in Village Niaz Beg, Tehsil and District Lahore, on the ground that it was a garden ha\ing fruit bearing trees and was also part and parcel of the house. There is nothing on the file as to what happened to this application. However, the private respondent, in June, 1981, filed what is described as appeal/representation "under Section 14 of the Act with all other enabling provisions against the order of acquisition of land measuring 29 Kanals bearing Khasra No. 11282 in Village Niaz Beg, District, Lahore", before the Commissioner, Lahore Division, Respondent No. 1. This was registered as Appeal No. 335/81 and was allowed on 18.7.1981. The learned Commissioner ordered exemption of the land from acquisition. LDA, feeling aggrieved, has filed this Constitutional petition.

3. In Writ Petition No. 3628/82, Respondents Nos. 3 to 92 sought exclusion of their land measuring 75 Kanalssituated in Village Kark, Tehsil and District, Lahore, bearing Khasra Nos. 35 to 47, 365-min and 368-min from the housing scheme known as Sabzazar Scheme, which was prepared and included by the petitioner. As asserted, the Deputy Commissioner issued notification under Section 4(i) of the Act and the same was published in the Official Gazette on 10.2.1981. Notification under Section 13 of the Act was issued on 14.6.1981 indicating that the land was urgently required for the proposes of above housing scheme. The land was physically taken over by the petitioner in July, 1981. It is stated that possession of the land bearing the above khasra numbers was not taken over due to stay order. Private respondents filed a joint appeal under Section 14 of the Act against the order of acquisition of land. This appeal was contested, but was accepted by the learned Commissioner on 17.4.1982. It is this order which is impugned in this petition.

4. In Writ Petition No. 2212/83, Respondents Nos. 4 and 5, by way of an appeal/representation filed before the Commissioner in July, 1982, prayed for exclusion of Khasra No. 13178 measuring 5 Kanals 8 Marias from the acquired area. The Commissioner registered this as Appeal No. 482/82 and allowed the same on 29.1.1983. Against this order, the LDA has filedthis Constitutional petition.

5. In Writ Petition No. 1925/83, Respondent No. 4 sought, exemption/exclusion of land measuring 37 Kanals14 Marias consisting of Khasra No. 13176 situated in Village Niaz Beg by filing an application on 22.6.1981, before the Deputy ommissioner under Section 19 of the Act. The application was rejected by Deputy Commissioner, Respondent No. 2, on 6.7.1981. Thereafter, in October, 1981, Respondent No, 4 preferred an appeal before the Commissioner. This appeal was registered as Appeal No. 419/81 and was allowed on 15.5.1982. LDA, therefore, has preferred this writ petition against the order dated 15.5.1982.

6. In Writ Petition No. 522/84, application for exclusion of land was filed under Section 14 of the Act before the ommissioner. Another amended application under the same section for exemption of Khasra Nos. 13164, 13167, 13170, 13174 and 13175 was filed before the same Officer, viz. Commissioner. Vide order dated 18,6,1983, the Commissioner allowed this application and directed exclusion of the area from the scheme. Writ Petition No. 522/84 is filed by LDA and is directed against this order of the Commissioner. It may be noted that during pendency of writ petition, Mst. Roohi Zafar, filed an application (C.M. 1728/91) for being impleaded as respondent on the ground that she is the allottee of the developed plot and she has interest in the outcome of the litigation. Another application (C.M. 2206/92) for the same purpose was filed by Haroon etc. but was not pressed. At the time of hearing full opportunity was granted to these applicants to say whatever they want to say. Their case is in line with the case of LDA.

As indicated above, the primary question involved is the question of power/jurisdiction of the Commissioner to grant exemption. As noted, the memo presented before the Commissioner in each of the above cases was described as "appeal-representation". In some cases the appeal-representa- tion was expressed to have been filed under Section 14 of the Act, Mr. Azmat Saeed, Advocate, appearing for LDA-petitioner, has taken me to the provisions of the Act to submit that neither under Section 14 nor under any other provisions of the Act, the Commissioner could have passed orders of exclusion of the area or exempting the same from the scheme. He asserted with vehemence that the impugned orders are void.

1. In reply, Mian Nisar Ahmad, Advocate, appearing for private respondents in Writ Petition No, 522/84, has argued that the appeal/ representation was competent under Section 14 of the Act and the Commissioner could pass the impugned order, Ch. Muhammad Farooq, Advocate, appearing for Respondent No, 4 in Writ Petition No. 1925/83, has raised the further argument that even if the impugned order be described as void or illegal, this Court should withhold issue of the writ on the ground that impugned order does justice between the parties and cures and undoes grave injustice perpetuated upon the land owners under he oppressive provisions cf the Act. He has relied on large number of cases including Nawab Syed Raunaq All etc. v. Chief ettlement Commissioner and others (PLD 1973 S.C. 236); Muhammad Baran and others u- Member (Settlement and ehabilitation), Board of Revenue, Punjab, and others (PLD 1991 S.C, 691); Begum Shams-un-Nisa vs. Said Akbar Ahbasi and others (PLI) 1982 S.C. 413); Syed Ali Shah v. Abdul Saghir Khan Shenvani and others CPLD S.C. 504) and Muhammad Urnar u. Member, Board of Revenue and others (1985 SCMR 1591). By inviting attention to Annex R/l and R/2 attached with written statement of this respondent, he has further argued that with the offer and acceptance of the proposal, fresh agreement between the LDA and Respondent No. 4 has come into existence and in view of the agreement, LDA is precluded from challenging the legality of he Commissioner's order. He has relied on number of judgment including Khiali Khan v. Haji Nazir and others (PLD 1997 S.C. 304); Pakistan through Secretary Ministry of Commerce and others v, Salahuddin and others {PLD S.C. 546); Asif Iqbal v. Karachi Metropolitan Corporation and others (PLD 1995 Karachi 60); and Provincial Urban Development Board v. Mst, Shireena and others (1995 CLC 1608) to highlight the doctrine of promissory estoppel and to show that the doctrine is equally applicable to the facts and circumstances of this case.

2. Mr. Naveed Rasool Mirza, Advocate, appearing for Mst.Roohi, Zafar, while supporting the submissions of Mr. Azmat Saeed, Advocate, in avour of the petitions, argued that oniy Deputy Commissioner under Section 19 of the Act, could withdraw from acquisition under the order of Government or Official Development Agency and even if the appeal before Commissioner was competent, the appellate authority was bound by the same constraints which existed on the power of the Deputy Commissioner. Learned Assistant Advocate General opposed the petitions and contended that the Commissioner could pass the impugned orders. Other learned counsel appearing in the case have by and large followed and adopted the above arguments.

3. It would be advantageous to examine the provisions of the Act. The Act was enforced with the express purpose of making provisions for the acquisition of land for housing scheme in Urban and Rural areas of the Province. All lands situated within the Province were liable to acquisition, notwithstanding anything contrary contained in Land Acquisition Act, 1894. Section 4 empowers the Deputy Commissioner to issue a notification in the Official Gazette indicating the intention to acquire the land provided it appears to the Deputy Commissioner that the land was fit for any housing scheme. The Collector would thereafter give public notice of the substance of the Notification at convenient places in the locality. Upon the issue of the notification, the officials authorized by Deputy Commissioner could take certain preliminary steps regarding survey etc, of the land. After survey and marking of the land has taken place, a notice is issued under Section 6 to the persons interested indicating that the Government, intends to take possession of the land and calling upon the interested persons to lay their claims for compensation. The interested persons were also to be invited to appear before the Collector on a date, time and place fixed. The Collector then holds enquiry into the claims under Section 7 and makes an award indicating the true area of the land to be taken over, compensation and the amount thereof and the apportionment of compensation amongst the persons interested. The criteria for assessment of compensation is provided for in Sections 9 and 10 of the Act. The manner of payment of compensation is laid in Section 11. Under Section 12, when the Collector has made an award under Section 7, subject to the acceptance of the award by Government or the Official Development Agency, as the case may be, within a period of fifteen days from the date of announcement of award, take possession of the land which thereupon was to vest absolutely in the Government, or as the case may be, in the Official Development Agency. Section 13 deals with acquisition in cases of urgency. Section 14 deals with appeal and review and as the controversy turns around this section, the same is reproduced in full:

"14, Appeal and review.~The person entitled to compensation under the award and Government or the Official Development Agency, as the case may be, may accept the award and intimate their acceptance in writing to the Collector within the period described in Section 12.

(2) The Government, or as the case may, the Official Development Agency or any person aggrieved by an award of the Collector may within one month of such award appeal to the Commissioner. Where the affected party had no intimation of the award the appeal may be filed within six weeks of the award. The Commissioner may after giving the Government or as the case may be, the Official Development Agency and the persons affected by the award an opportunity of submitting any objection to the appeal and of being heard, make such order as he may deem fit, (3) The order of the Commissioner made on appeal shall be final and shall not be called into question in any Court.

(4) The Collector or the Commissioner either of his own motion or on an application made in this behalf by the Government, or as the case may be, Official Development Agency or any affected person may, at any time, review an order made by himself or his predecessor, in so far as it corrects an arithmetical, clerical or patent. error or mistake only.

(5) Any amount paid to any person who is found for any reason including fraud or misrepresentation not to be due or in excess of the amount he is entitled to under the award shall be recoverable as arrears of land revenue and the Collector shall call upon such person to refund it."

Sections 15 and 16 are not relevant. Under Section 17, the Government has been authorized to give directions to the Deputy Commissioner with respect to the exercise of his powers and the discharge ef functions under the Act and the Deputy Commissioner is required to be guided by and act in accordance with such directions. Section 18 empowers the Collector etc, to exercise the powers of a Civil Court in the matter of discoveiy and production of documents and summoning and enforcing the attendance of any person in manner stated in the section. Section 19 is material and relevant and is reproduced:-

"19. Powers to withdraw from acquisition proceedings.-The Deputy Commissioner shall be at liberty to withdraw from the acquisition proceedings of any land, notified under this Act, of which possession has not been taken:

Provided that Government or an Official Development Agency, as the case may be has informed the Deputy Commissioner in this behalf in writing:

Provided further that in case of non-acceptance of the award even as a result of the appeal made to the Commissioner the right of withdrawal from the acquisition may be exercised by the Government or an Official Development Agency, as the case may be.

Other sections (Sections 20 to 22) are not relevant.

1. From the language of Section 14(2) it is clear that the appeal to the Commissioner can be filed by the Government or the Official Development Agency or any person aggrieved from an award of the Collector. The appeal has to be filed within thirty days and if the affected party had no intimation of the award, the appeal could be filed within six weeks of the award. The Commissioner, after giving the Government, the Official Development Agency or the persons affected by the award an opportunity of submitting any objection to the appeal and of being heard, make such order as he may deem fit. This order of the Commissioner is made final under sub-section (3). Arithmetic and clerical errors or mistakes in the appellate orders could be corrected in review under sub-section (4).

2. Undisputedly the award was announced on 9.10.1982. The memos of appeal/representation in some of the cases were filed prior to the announcement of the award and even in cases in which they were filed subsequent to the award, the memorandum did not state that the appeal was being preferred against the award. In fact the tender of the impugned orders passed in each of the above cases shows that learned Commissioner was only concerned with exclusion of the area from the scheme. From this point of view, it is clear that Section 14 of the Act did not authorize the Commissioner to pass the impugned order as the appeals/representations before him were not preferred against the award dated 9.10.1982. In Writ Petition No. 1925/83, the appeal to the Commissioner was expressly filed against order dated 6.7.1981 by which the land owner's application dated 22.6.1981 filed under Section 19 of the Act for withdrawal from acquisition, was rejected. It is clear that no provision of the Act provides for filing of appeal in such cases. The order of the Commissioner, therefore, is without jurisdiction and as such void.

3. Mian Nisar Ahmad, Advocate, appearing for land owners in Writ Petition No. 522/84, has attempted to show that the appeal before Commissioner was competent under Section 14(2) of the Act as the decision to take over the land by virtue of notifications issued under Sections 4 and 8 is part of the award.

4. This argument has inherent weakness. As noted, the appeals/ representations were filed before the Commissioner before the announcement of award on 9.10.1982. In fact in Writ Petition No. 34/82, the Commissioner had allowed the appeal on 18.7.1981, an year before the award. In Writ Petition No. 1925/83, the appeal was allowed on 15.5.1982, about five months before the award. It is, therefore, incorrect to state that the Commissioner in these cases was hearing appeals against the award. In fact no occasion arose in these cases to file an appeal because no award had come into existence by that time. Similarly in Writ Petition No. 522/84 what was presented before the Commissioner on 16.6.1982, about four months prior to award, was "application under Section 14 and all other enabling provisions of the Punjab Acquisition of Land (Housing) Act, 1973" (Annex "G"). Annex "G/l" in this case is amended petition under Section 14 of the Act and bears the date 18.11.1983. In para-7 of the amended petition, reference is made to the announcement of award on 9.10.1982 and even if one leans in favour of land owners and attempts to construe this as an appeal under Section 14(2) of the Act against the award dated 9.10.1982, same will have to be held as barred by time as under Section 14(2), the appeal could be filed within thirty days or within six weeks at the most. It is well settled that decision on merits without adverting to the question of limitation is not permissible. I, therefore, hold that in all these cases, the impugned orders could not be said to have been passed under Section 14(2) of the Act. On this finding, the orders of the Commissioner will have to be held as void.

5. Now I come to Section 19. As noted, it is this section which authorizes the Deputy Commissioner to withdraw from the acquisition. Under proviso (1) the Deputy Commissioner can do so only if the "Government or Official Development Agency, as the case may be, has informed the Deputy Commissioner in this behalf in writing". The second constraint is that Deputy Commissioner could withdraw only from the land of which possession has not been taken. No appeal/revision is provided against the order passed by Deputy Commissioner under Section 19. Only land owners in Writ Petition No. 1925/83 invoked Section 19 but their application was rejected by Deputy Commissioner on 6.7.1981. Since no appeal lay before the Commissioner against this order, it has to be concluded that appellate order of the Commissioner dated 15.5.1982 in this case is completely without jurisdiction and, therefore, void. The settled principle of law that right of appeal is always a creation of statute, and has to be specifically conferred, has not been questioned by any of the learned counsel, and rightly so.

6. In view of the above finding, no occasion arises to examine the scope of appellate power. However, Mr. Naveed Rasool Mirza, Advocate, is not incorrect in submitting that even if appeal before Commissioner against rejection of application under Section 19 of the Act by Deputy Commissioner was competent, the Commissioner, as appellate authority, would suffer the same constraints as the Deputy Commissioner. There is nothing on file to show that the Government or Official Development Agency intimated about withdrawal from acquisition as laid down in proviso to Section 19. Without such intimation, even the Commissioner as appellate authority could not have passed the order of withdrawal. For this reason as well, the impugned order is illegal.

On the above finding, the impugned orders of the Commissioner are required to be declared as without lawful authority and as such of no legal effect. However, as noted above, learned counsel appearing for landowners, in particular, Ch. Muhammad Farooq, Advocate, appearing for Respondent No. 4 in Writ Petition No. 1925/83, has strenuously argued that this Court should ithhold issue of writ on the ground that the impugned order of the Commissioner does justice to the landowners. He has argued that his client's land is located in one corner of the Scheme and its exclusion will not adversely affect the Scheme. He has also raised the question of discrimination by pointing out that lands belonging to Mr. Tariq Sehgal and Malik Ghulam Mustafa Khar have been excluded and there is no reason by his client be treated differently. He has also referred to Annexures R/l and R/2, the offer made to his client by the LDA on 10.2.1992, and its acceptance by her on 15.2.1992 to show that the petitioner has itself resiled from its previous stance and should be disallowed from prosecuting this Constitutional petition against his client. This line of argument has been adopted by other counsel appearing for the landowners. In Writ Petition No. 34/82, husband of Respondent No. 2, claiming to be her attorney, also has placed on record the site plan to show that exclusion of the land will be just and proper.

1. It is true that the exercise of writ jurisdiction is discretionary and nobody can claim an order under this jurisdiction, as a matter of right. There is plethora of case law on the point. Similarly, there is ample case law for the proposition that exercise of jurisdiction under Article 199 of the Constitution is meant to promote justice. These norms and principles are well settled. The difficulty, however, arises in the application of these norms. In this case the application of principle is dependent upon a finding that theacquisition of land by LDA, even if it be legal and according to the provisions of erstwhile Act, is unjust. This would take me to the question as to whether this Court can return a finding of acquisition being "Unjust". If the purpose of judicial review is to administer law, and this cannot be disputed, I am of the view that a finding of justness/unjustness of the acquisition would not be relevant, because, otherwise this Court would be acting as the acquisition agency itself. In Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 S.C. 236), the verification of claims by the Deputy Claims Commissioner had been found to be illegal and on this finding, the High Court refused to set aside the order of Officer on Special Duty (Central Record Office), even though the latter was clearly without jurisdiction. It was in these circumstances that the Court held that the impugned order does not work any injustice. Applying this principle, I will have to hold that the order of the Deputy Commissioner refusing to withdraw from acquisition was illegal and the Commissioner's order, even though void, cured a manifest illegality and as such I refuse to quash the latter order.

2. It has not even been argued much less shown that the order of Deputy Commissioner in Writ Petition No. 1925/83 refusing to withdraw was illegal. On the contrary, the said order is perfectly legal since neither the Government nor the Official Development Agency intimated the Deputy Commissioner in respect of withdrawal from acquisition. In my humble view, therefore, the principle pressed into service by Ch. Muhammad Farooq, Advocate, is not applicable to these cases.

3. The claim of discrimination has been denied by Mr. Azmat Saeed, Advocate, on behalf of the petitioner by asserting that both M/s.Tariq Sehgal and Malik Ghulam Mustafa Khar were granted permission under Section 13 of the Lahore Development Authority Act, 1975, to privately develop the housing scheme and, in these circumstances, it is wrong to assert that their lands were simply excluded from the operation of the bcheme. Be that as it may, no material lias been placed on record by any oi the parties to make a definite finding, possible.

4. The argument based on the strength of Annexures R/l and R/2 is again of no avail inasmuch as this proposal and acceptance took place in 1992, well after a decade of the impugned void order of the Commissioner. It cannot save the void order nor render any legitimacy to the same. The subsequent development, however, may furnish an independent cause to the landowners who may proceed to enforce the agreement in accordance with normal law. I refrain from commenting any more on this aspect of the case lest it may prejudice the determination of any action which one or the other part}' may bring, on the strength of Annexures R/l and R/2.

5. For all the above reasons, all these petitions are allowed and the impugned orders in all these cases are hereby declared as having been passed without lawful authority and consequently of no legal effect. In the circumstances of the case, parties are left to bear their own costs. (A.P.)Petitions accepted.

PLJ 2000 Lahore 467

Present:SAVED NAJAM-UL-HASSAN KAZMI, J. MUHAMMAD AMIN BUTT-Appellant

versus

ABDUL RAZZAK-Respondent

S.A.O. No. 85 of 1998, heard on 7.5.1999.

West PakistanUrban Rent Restriction Ordinance, 1959 (VI of 1959)--

—-Ss. 13, 14 & 15~Ejectment of tenant from shop in question on plea of personal use-Quantum of evidence-Landlord had established plea of personal use while respondent could not make out any case of mala fide-Tenant's plea of alleged intention to increase rent stood demolished by admission made by his witnesses who did not deny that no notice for increase of rent was ever issued—Witnesses of tenant were unaware of personal need of landlord or as to his business abroad-Landlord/landlady had proved bona fide in as much as she was running her garments business in foreign country-migrated to Pakistan purchased property in question and decided to run garments business in which she had experience and that she was not in occupation of any other shop, suitable to her needs, in same urban area and that such facts could not even be contradicted or denied in cross-examination by witnesses of tenant-­Relationship of landlord and tenant having been admitted, Rent Controller need not have looked into title deed or to criticise mode of sale--Only requirement in present case was to examine bona fide of landlord in regard to the use and occupation of shop-Statement of landlord in proof of his bona fide need was always consistent with pleading and nothing could be extracted in cross-examination, then bona fide was deemed to have been established-Dismissal of earlier ejectment application does not attract bar of Section 14 of the Ordinance VI of 1959-Plea of tenant relating to enhancement of rent as a defence against ejectment was not established-Plea of alleged increase in rent, however, could not reflect adverse to plea of bona fide if bona fide was established independentiy-Where finding of fact recorded by Appellate Court was perverse, suffered from legal infirmities, based on conjectures and surmises, was result of misreading or non-reading of evidence and was contrary to provisions of the Ordinance and rule laid thereunder, then the same could not be approved and could not be treated to be sacrosanet--Order of Appellate Court dismissing ejectment application was set aside while that of Rent Controller's ejectment order was restored.

[Pp. 471 to 474] A to F

NLR 1996 Civil (SO 499; 1977 SCMR 1062; PLD 1969 Lah. 327; 1989 SCMR 98; 1985 SCMR 1996; 1990 SCMR 544 ref.

Sh. Abdul Manan, Advocate for Appellant. Mr. Hakam Qureshi, Advocate for Respondent. Date of hearing: 7.5.1999.

judgment

This judgment will decide S.A.O. No. 85/98 and S.A.O. No. 86/98 as the same raise common questions of law and facts.

1. Muhammad Amin Butt and Abida Sultana Butt, appellants in the two appeals, are husband and wife, who filed two separate ejectment petitions for seeking eviction of respondents in these appeals, from the rented shops, on the ground of their personal use. S.A.O. No. 85/98 arises from the ejectment case filed by Muhammad Amin Butt while the other appeal (S.A.O. No. 86/98) arises from the ejectment case filed by Abida Sultana Butt.

2. In S.A.O. No. 85/98, the facts are, that the appellant applied for eviction of the respondent (Abdul Razzaq), from the shop, on the ground that the same was required by him for his personal use, to run the business of General Store. It was claimed that ever since the purchase of the property including the shop, the appellant was sitting idle, had nothing to do and that he wanted to carry his own business in the rented shop. It was also alleged that there was only one shop but the respondent used to obtain three receipts, to give an impression as if he was in occupation of three shops. In brief, the ejectment was claimed from the shop, which was one unit and according to the respondent it comprised of three shops. The ejectment was opposed, on the ground that the learned Rent Controller had no jurisdiction, the ejectment petition was not verified or signed in accordance with law, there were three shops which were wrongly described as one shop, the previous ejectment petition filed by the landlord was disuiibsud fui non-prosecution on 16.6.1991 and therefore, the second application could not proceed, the appellant was only interested in increasing the rent and getting Pagri, there was no bona fide need to occupy the shop and that the ejectment petition was filed without any cause of action. After evidence, the ejectment was allowed by the learned Rent Controller vide order dated 17.6.1997 but in appeal the order was set aside and ejectment petition dismissed by the learned Additional District Judge vide order dated 15.4.1998. This led to the riling of S.A.O. No. 85/98 by the landlord.

3. In S.A.O. No. 86/98, the facts are, that Abida Sultana Butt appellant applied for ejectment of respondent (Masood Alam Chishti) from a shop on the ground of her personal use. It was claimed that the appellants had been working in a Garments Factory abroad and had the experience in Garments Business and that the intended to open a Botique of Readymade Garments for ladies alongwith provision of Baby needs in the shop in question and, therefore, the shop was required by her in good faith for running her own business. It was added that although the respondent occupied one shop but he used to have two receipts by exerting pressure on the husband of the appellant to create an impression that he was occupying two shops, though in point of fact there was only one shop. The ejectment " petition was resisted on similar grounds as taken in the other case, namely, petition was not maintainable, not signed and verified in accordance with law. there were two shops but shown one in the ejectment petition, the intention was to increase rent and secure Pagri, earlier ejectment petition was dismissed for non-prosecution and therefore, the subsequent petition was not maintainable and that the ejectment petition was mala fide. After evidence learned Rent Controller allowed ejectment petition vide order dated 17.6.1997. In appeal order was set aside and the ejectment petition was dismissed vide order dated 15.4.1998 of the learned Additional District Judge, Lahore, which led to the filing of the present second appeal.

4. Learned counsel for the appellant argued that none of the ground which prevailed upon the learned Additional District Judge for reversing the findings of the learned Rent Controller were tenable in law and that the learned Rent Controller, vertually made it impossible for the appellant to ever apply for the ejectment on the ground of personal use, which view cannot be approved in law. It was added that there was substantial evidence on record to prove bona fide need which was considered by the learned Rent Controller but in appeal the learned Additional District Judge overlooked the evidence and proceeded on conjectures and surmises. It was contended that bona fide having been proved, the plea of alleged increase in rent was never considered to be a ground to adversely reflect the bona fide of the landlord. Learned counsel submitted that the purchase of the property for a smaller amount could hardly be a factor relevant in the adjudication of personal use causes under the rent laws.

5. In reply, it was argued by learned counsel for the respondent, that the appellant avoided stamp duty and as such, not entitled to discretionary relief, the preamble of the rent laws makes it obvious that the ordinance provided a safe-gaurd against mala fideeviction, the inaction of the landlord for 2\ years after the dismissal of earlier ejectment petition for non-prosecution would reflect adversely against the plea of bona fide, the increase of the rent in the past would speak heavily against the appellant, the property being located in Shad Bagh, there could be no possibility of a lady running a Botique in such area, the landlord had no funds to run the business and that the finding of fact recorded in appeal could not be challenged in second appeal and has to be given preference as against the findings of the learned Rent Controller.

6. The points raised by learned counsel for the parties have been given deeper considerations and the evidence on record has been examined with the assistance of learned counsel for the parties.

7. Appellants, in these two appeals, sought ejectment of respondents, on the ground of personal use. Appellant in S.A.O. No. 85/98, claimed that the shop was required by him for running his own business of General Store as on return from abroad he had no work. In the second appeal filed by wife of appellant in S.A.O. No, 85/98, judgment was claimed by the landlady for running Botique of Readymade Garments for ladito alongwith provision for Baby needs. She claimed to have been working in a Garments Factory abroad and having experience in this business. For proving the plea of bona fide, appellants in both the cases appeared as their respective witnesses and deposed that they were in need of the shop for running their own business. Muhammad Amin Butt, appeared as PW. 4 in his own case while Abida Sultana Butt appeared as PW. 3 in her own ejectment petition. As PW. 4, Muhammad Amin Butt deposed that he lived in Norvey for 16/17 years where he was running a General Store and that he required the shop in issue for running his own General Store. He further explained that he had no other vacant shop in his possession to carry tne requisite business. Detailed cross-examination was made but the statement could not be shaken. From the statement of PW. 4, appellant, it is obvious,that the appellant was previously living in Norvey, he had migrated to Pakistan, he intended to run his own business in Pakistan, he had no other business in Pakistan, he was not in occupation of any other vacant shop suitable to his needs and that he was desperately in need of the shop in issue. His statement was also corroborated by the evidence of PW. 1, PW. 2 and PW. 3. As against this, the evidence of RW. 1, RW. 2, RW. 3 and RW. 4 is mainly to the effect that the appellant wanted to increase the rent and that he was not in need of the shop. RW. 1, admitted in his cross-examination that he has no knowledge as to the personal use of the landlord. RW. 2, admitted in cross-examination that he did not know as to what the appellant was doing in those days and that he only knew that the appellant had been visiting Norvey. On being further examined he expressed his ignorance if the appellant had been running a General Store in Norvey and had the experience in this business. RW. 3 admitted that the landlord never issued any notice for the increase of rent. Respondent appearing as RW. 4 admitted that after 1991 appellant never issued any notice for the increase of rent. The evidence on record thus proved beyond doubt, that the appellant had established the plea of personal use and that the respondent could not make out any case of mala fide. The only plea of alleged intention to increase rent stands demolished by the admissions made by witnesses of the respondent who did not deny that no notice for the increase of rent was ever issued. So much so, witnesses of respondents were unaware of the personal need of the landlord or as to his business abroad. It is also observed that the learned Rent Controller did take note of the above circumstances and also the evlder.ce but the learned Additional District Judge completely mis-directed himself by being influenced from the factors which were neither relevant nor material.

8. In the other case, Abida Sultana Butt appellant herself appeared as P\V. 3 and made a detailed statement as to her personal need. She stated that she had been running a shop of garments in Norvey and that she had experience in this business. It was deposed by her that the building was purchased in 1990 and that except shop in issue she was not in occupation of any ether vacant shop and that the respondents despite commitment did not vacate the shop. She was also subjected to length cross-examination but the statement could not be shaken. PW-3 appellant was corroborated by PW. 1 and ?\V. 2 who deposed about the personal need of the landlady. As gainst this, RW. 1, RW. 2 and RW. 3 produced by the respondent claimed that the appellant did not need the shop and intended to increase the rent. RW. 1 admitted in cross-examination that Abida Sultana Butt appellant had been doing business in Norvey. In cross-examination he expressed his lack of knowledge if the appellant wanted to run garments business. RW. 2 also admitted that the landlady had been doing business of garments in Norvey. He expressed his lack of knowledge if the landlady was idle from 22.11.1990. So-much-so, he expressed his lack of knowledge in cross-examination, as to the personal need of the landlady.

9. The evidence and circumstances referred to hereinabove thus make it clear that the appellants had proved her bona fide. The facts as emerged from the evidence are that the landlady was in Norvey, she was running her garments business abroad, she migrated to Pakistan, purchased the properly and decided to run garments business in which she had the experience and that she was not in occupation of any other shop suitable to her needs in the same urban area and that the afore mentioned facts could not even be contradicted or denied in cross-examination by the witnesses of the respondent.

10. Interestingly, the learned Additional District Judge, was influenced by the argument that on the sale-deed in favour of the two appellants lesser stamp duty was paid and lesser price of the property was shown and from this he assumed that the ejectment petition was not bona fide. It was wrong consideration which influenced the learned Additional District Judge. In the first instance, the relationship of landlord and tenant was admitted and the respondent had nothing to do with the title deed of the property or the duty paid thereon. The purchase in favour of the appellants was through registered sale-deed and it was the duty of the Collector to see that the document was properly stamped. If in the subsequent sale-deed the property is sold for a lesser amount it does not lead to an inference that the same was done to avoid stamp duty. One can take judicial notice of the fact that for so many years there is a slump in the market, buyers are not available and one finds it difficult to dispose of the property according to his own choiced price. The sale at the lesser price could also be for the reason that the seller was in need of the money and therefore, he was willing to sell it at through away price. What-ever may be the circumstance, the fact remains that the sale-deed was drawn on a stamp paper according to the value given in the document and the Collector never objected that it was insufficiently stamped. This being so, it was none of the concern of the tenant to find fault in the title deeds on erroneous assumptions. It appears to be an example of chronic litigant, who with a view to harass the landlord, remains in search of frivolous objections to prolong the litigation by mis­directing the trial, with a view to continue stay in the property. The learned Rent Controller or the learned Additional District Judge were hardlj required to go into this question. Once the relationship of landlord and tenant was established and admitted, there was no reason to look into the title deeds or to criticize the mode of sale. Only requirement under Section 13(3)(a)(ii) of the Ordinance was to examine the bona fide of the landlord, in regard to the use and occupation of the shop and if the landlord had proved that he was not in occupation of any other shop, he was in need of the shop to run his own business, he had not previously got vacated a shop and rented out, then the question of bona fide had to be read in context with Section 13(4) of the Ordinance, which provides salutary check against any mala fide eviction. For this purpose, the statement of the landlord is always of paramount consideration and if the statement is consistent with the pleading and nothing could be extracted in cross-examination, then the bona fide is deemed to have been established. Reference can be made to M/s. F.K. Irani & Co. versus Begum Feroze(N.L.R. 1996 Civil (SO 499) and Juma Sher Versus SabzAli (1997 S.C.M.R. 1062). In this case the statements by the two appellants, were consistent with the pleadings, material facts necessitating eviction of tenant were highlighted, particulars of the bona fide needs were given, the appellants were idle, had the experience in the business for which the shops were required and that their statements could not be shaken in cross-examination and therefore, the issue of bona fide was rightly decided by the learned Rent Controller which was illegally reversed in the appeal by the learned Additional District Judge.

11. The argument as to the funds is wholly untenable, as in the present advance society where all the businesses are conducted with the active co-operation of financial assistance from Banking Institutions, the arrangement of funds can neither be a problem nor the landlord is expected to prove that he has already sufficient funds to run the business, inasmuch as the landlord, on vacation can arrange the funds necessary for the business, from his personal sources and also from the Banking Institutions. The ejectment petitions cannot be thrown away on such plea.

12. The argument, that the previous ejectment petition was dismissed for non-prosecution, but the subsequent petitions were filed after more than two years was hardly of any relevance. It is a settled rule, that the dismissal of ejectment petition for non-prosecution does not attract bar of Section 14 of the Ordinance VI of 1959. Reference can be made to GhulamMuhammad versus Khan Muhammad Sabar Lai (P.L.D. 1969 Lahore 327) and Abdul Salam versus Banaras Khan (1989 S.C.M.R. 98). Even the learned Additional District Judge as well as the learned Rent Controller repelled the objection as to the maintainability of the petitions due to the dismissal of earlier petitions for non-prosecution. Filing of the subsequent ejectment petition, after two years stands explained in the evidence, as according to the appellants, the respondent had been promising to vacate the shop which were not vacated despite commitments. In any case, filing of the ejectment petitions after two years of the dismissal of earlier ejectment petition could not lead to any adverse inference against appellant. The factum of bona fide needs has to be established on the existing evidence which as noted supra, proved beyond doubt, that the appellants are genuinely in need of the rented shops for their own business. The objection is, therefore, devoid of substance.

13. As to objection that one of the appellant has been visiting abroad frequently and that the lady appellant could not run the business in Shad Bagh, Lahore, the same are wholly without merit. It is not necessaiy for the landlord, to stay in the country or to remain idle, during the ejectment proceedings and if he had been visiting abroad in the past or in the course ofejectment proceedings, it could not be inferred that he was not in need of the shop. All that the landlord is expected to do is that on vacation of the shop he should occupy it within one month, use it for the purpose for which the ejectment was obtained and not to rent it out to any one else during the statutory period. If he fails to occupy, the tenant has right to seek restoration of possession in terms of Section 13(4) of the Ordinance. In this view of the provision of law, there is no substance in the objection raised. Similarly, it is a common knowledge that most of the Botiques, Beauty Parulers and other business concern are being run by the ladies, in important markets of the city. Even in the villages womenfolk work side by side with the men. The shops in issue are located in Shad Bagh, Lahore and at a place which is Commercial. There is hardly any bar or disability to run a Botique by a lady in such like place. Even otherwise, keeping in view the specific circumstances of this case, the objection become immaterial. The landlady, has proved to be working in Norvey and running a garments shop for about 15 years. In these circumstances, it is immaterial for her whether she works abroad or in her own home town. The objection is totally devoid of consideration.

14. Regarding plea of alleged demand for the increase of rent, the witnesses of the appellant admitted that no notice for increase of rent was issued by the landlord/landlady after 1991. Even the evidence is indicative of the fact that the previous increase was proportionate t:, the increase permissible in law. Be that as it may, the plea of alleged increase in rent or demand of Pagri cannot reflect adverse to the plea of hona fide if bona fide need is established independently. Reference can be made to Shatnsul slam Khan versus Pakistan Tourism Development Corporation Ltd. (1985 S.C.M.R. 1996), and Nisar Ahmad Khan versus oor Muhammad Khan and 6 others (1990 SCMR 544). In this case, the bona fide need has been independently established and therefore, the plea taken by the tenant was unworthy of consideration.

15. Regarding the finding of fact by the appellate Court, it is true that the findings of the appellate Court has to be given preference but if the findings are perverse, suffer from legal infirmities, based on conjectures and surmises, recorded by totally mis-reading and non-reading of the record and are contrary to the provisions of the ordinance and the rule laid thereunder,then the same cannot be approved and cannot be treated to be sacrosanct. In this case, as observed hereinabove, the learned Additional District Judge, proceeded on illegal assumptions, highly conjectural basis, mis-reading of therecord and against the provisions of law and that his findings are contrary to the evidence and facts proved on the record, hence the order passed in appeal cannot be approved.

16. For the reasons above these appeals are allowed with cost throughout, orders dated 15.4.1998 of the learned Additional District Judge in the two appeals are set aside, the orders of ejectment dated 17.6.1997 of the learned Rent Controller are restored and respondents are directed to vacate the shops within four months.

(A.P.) Appeal accepted.

PLJ 2000 Lahore 474

Present: TASSADUQ HUSSAIN JiLANI, J. ABDUL RAZZAQ etc.-Appellants

versus SULTAN MEHMOOD AKBAR etc.-Respondents

R.S.A. No. 12/97, heard on 20.8.1997.

Specific Relief Act, 1877 (I of 1877)--

—-S. 12-Civil Procedure, 1908 Code (V of 1908), S. 100-Suit for specific performance of agreement to sell-Concurrent findings of Courts below on basis of weight of evidence-Validity-Concurrent findings on sale consideration were correctly arrived at and they were not against weight of evidence-Defendants stand was evasive with regard to their assertions in written statement while it was proved in evidence that litigation had concluded; that upper portion of house in question, had gone to another party; that permanent transfer deed was ready for delivery and that the same had not been collected by defendants to avoid execution of agreement in question—Nothing was brought in evidence by defendants to show that transaction in question, was unconsciousable and oppressive, therefore, concurrent findings arrived at by two Courts below were well reasoned, supported by evidence on record, and being not against law, would not call for interference. [Pp. 481 & 482] A, B

1987 SCMR 249; 1994 SCMR 111; PLD 1994 S.C. 160; PLD 1995 SC 351; 1997 MLD 472; PLD 1975 Kar. 608; 1981 SCMR 953; NLR 1990 Civ. 555; 1991 SCMR 1510; 1991 SCMR 2415 ref.

Mr. Abdul Qadir Hashmi, Advocate for Appellants.

Mr. Habib-ur-Rehman Ansari, Advocate for Respondents.

Date of hearing: 20.8.1997

judgment

Through this regular second appeal, the appellants have challenged the judgment and decree dated 1.9.1987 vide which, respondent's suit for specific performance was decreed as also the judgment and decree dated 31.7.1997 passed by learned Addl. District Judge, whereby appellant's appeal against the judgment and decree of the trial Court was dismissed.

1. Facts in brief are that predecessor-in-interest of respondents Muhammad Sharif deceased filed a suit for specific performance quasuit property contending therein that Umer Din deceased the predecessor-in-interest of the appellants had agreed to sell the property in question for a consideration of Rs. 8,000/- vide registered agreement to sell dated 23.10.1969; received Rs. 4,000/- as earnest money and undertook to complete the sale as soon as the latter gets permanent transfer deed from the evacuee Deptt. It was further undertaken in the said agreement that if the upper story of the house in question is not transferred to the appellants-defendants, he would transfer the lower portion of the said house against a consideration of Rs. 6.000/- Lateron, as only the lower portion was transferred to Umer Din deceased, a new agreement dated 6.5.1970 was written which was got registered on 7.5.1970 evidencing receipt of the remaining Rs. 2,000/-. It was further alleged that litigation of the predecessor-in-interest of the appellant-defendant with other persons was concluded on 20.1.1977. After this, he did not obtain the PTD from the department to frustrate the case of the respondents-plaintiffs. In terms of the conflicting pleas of the parties following issues were framed:--

i

(1) Whether the Civil Court has no jurisdiction to entertain and try this suit? OPD

(2) Whether the suit is not properly valued for the purposes of Court-fee and jurisdiction; if so, what is the correct valuation? OPD.

(3) Whether the suit merits dismissal in view of preliminary Objection No. 3? OPD.

(4) Whether the suit is within time ? OPD.

(5) Whether the suit is vague and uncertain, if so, what is its effect? OPD.

(5A) whether the transaction in dispute is rescindable on account of being unconsciousable and oppressive? OPP.

(6) Whether the property is dispute has not so far been transferred to the plaintiff, if so, what is its effect? OPP.

(7) Whether the defendants received a sum of Rs, 6,000/- as sale money from the plaintiff, if so, what is its effect? OPP.

(8) Whether the plaintiff is entitled to the decree as prayed for? OPP.

(9) Relief.

Respondents-plaintiffs produced five witnesses, namely Abdul Rehman PW-1 a petition writer who scribed the written agreement; Mehmood-ul-Hassan PW-2 a marginal witness of the agreement; Ghulam Qadir Lumberdar PW-3, he identified the parties before the Registrar and Muhammad Hussain Special Attorney of Muhammad Sharif, deceased-plaintiff appeared as PW-4. He stated that in the year, 1969 predecessor-in-interest of appellants-defendants, received Rs. 4,000/- whereafter agreement Exh.Pl was executed in the year, 1974 and also received Rs. 2,000/- and executed second agreement Exh. P2. Only Rs. 2,000/- remained to be paid. The said agreement could not be given effect to as Umer Din deceased (predecessor-in-interest of appellants-defendants) had litigation over upper portion of the house in question with another party. He further stated in cross-examination that through his efforts PTD was got prepared but Umer Din deceased refused to collect it. Besides the afore-referred oral evidence, respondents-plaintiffs produced Exh. P3 which is an order of the Deputy Settlement Commissioner.

1. The appellants-defendants on the other hand, produced three witnesses. Shahid Rasul appeared as DW-1 who stated that umer Din had litigation with another party which had not as yet concluded and that PTD had not been issued in favour of Umer Din doceased. Muhammad Intizar appeared as DW-2 who also stated that Umer Din had a dispute over the suit property and according to his information PTD had not been issued in his favour as yet. Muhammad Abdul Razzaq one of the appellants-defendants appeared as DW-3. His statement is to the effect that litigation had not been concluded as yet quathe suit property and that PTD had not been issued in favour of Umer Din so far.

2. The learned trial Court vide the impugned judgment and decree, decreed the suit on the ground that the order dated 10.9.1977 Exh. P3 passed by Deputy Settlement Commissioner, indicates that he had ordered issuance of PTD in favour of Umer Din; that there is nothing on record to show that Umer Din was still engaged in litigation over the suit property with some other party which prevented him from obtaining the PTD; that the appellants-defendant's predecessor-in-interest purposely avoided to get the PTD to perpetuate possession over the property and further to avoid registration; that the prevailing market value of the suit roperty was between 20,000/00 to 25.000/- and the price written in Exh.Pl was purposely written less; that DW-3 has himself admitted that Rs. 8.000/- were entered into Exh.Pl and Exh. P2 although the bargain was struck of for Rs. 20,000/-; that respondents-plaintiffs were entitled to the performance of the agreement embodied in Exh.Pl and that with a view to achieve the said objective, they may approach the Settlement Authorities to get the PTD either in their name and if the registration is refused, they may approach the Civil Court for the said purpose.

3. Learned Addl. District Judge, affirmed the judgment and decree of the trial Court and dismissed the appeal by observing that litigation between Umer Din and another party qua the suit property was over in terms of which, the lower portion of the house in question was transferred to Umer Din and under Exh.Pl and Exh. P2, he is bound to transfer the same to the respondents-plaintiffs and that after the winding-up of the Settlement Department, the Additional Deputy Commissioner of the District, is a Notified Officer to work as Deputy Settlement Commissioner under Section 9 of the Disabled Persons Settlement Act vide Notification dated 29.6.1974.

4. Learned counsel for the appellants Mr. Abdul Qadir Hashmi with his usual eloquence laboured hard to argue that in terms of Section 6(d) of the Transfer of Property Act, the property in question could not have been transferred and therefore, the suit did disclose any cause of action; that the plaint merited rejection; that no permanent transfer deed having been issued in the name of the appellants-defendants, he could not enter into the agreement and therefore, the contract was void; that Settlement Laws having been repealed in 1974, he could not get PTD after that; that the respondents-plaintiffs should have first filed a suit for direction to the appellants defendants to obtain PTD and the suit for specific performance could only be filed latter and that the two concurrent finding of the learned lower Courts have led to grave miscarriage of justice. In support of the afore- referred submissions, learned counsel for the appellants has relied on Pirzada Amir Hussain and another us. Mrs. Shamim Shah Nawaz and another (1987 SCMR 249); Abdul Aziz and another vs. Abdul Rehrnan and others (1994 SCMR 111); Mst. Saieern Khatoon and another vs. The Deputy Settlement Commissioner/Authorised Officer and 2 others (PLD 1994 Supreme Court 160); Mian Iqbal Mehmood Banday vs. Muhammad Sadiq (PLD 1995 Supreme Court 351) and Muhammad Usman vs. Abdul Razzak and 3 others (1997 PLD Karachi 472).

5. Learned counsel for the respondents-plaintiffs who was on watching brief, accepted notice and submitted that the Settlement Department had passed an order in favour of the appellants-defendants in the year, 1969; that the PTD could have been issued as the litigation was over in year, 1977 but the appellants-defendants purposely avoided obtaining PTD with a view to prolong their possession over the suit property and to avoid execution of the same. Learned counsel has also referred to notification dated 29.6.1974 to contend that after the repeal of the Settlement Laws, the Additional Deputy Commissioner General had been appointed as Notified Officer to pass appropriate orders of the kind mentioned there. Pursuant to the said notification, the competent authority had prepared PTD which was lying in the office and it had not been collected purposely with a view to perpetuate possession and to avoid terms of the agreement enforcement of which was sought through the suit for specific performance. In support of the afore-referred submissions, learned counsel for the respondents- plaintiffs placed his reliance on Nasira Sultana vs. Habib Bank Ltd. And others (PLD 1975 Karachi 608) Ghulam Hussain vs. Mst. Farzana (minor) (1991 SCMR 953); Hakeem All Muhammad deceased through Mst. Razia Sultana etc. vs. Muhammad Sharif etc. (NLR 1990 Civil 555); Land Acquisition Collector and another vs. Afzal Shah (1991 SCMR 1510); (Retd) Group Capt. AM. Morad vs. Muhammad Azmatullah Sididqui and 3 others (1991 SCMR 2415) and Mst. Rehmat Bibi and others vs. Mst. Jhando Bibi and others (1992 SCMR 1510).

6. I have heard learned counsel for the parties and have also gone through the evidence certified copies of which have been appended with this appeal.

7. In none of the judgments to which reference has been made by learned counsel for the appellants, the issues which have been mooted in the instant case have been attended to. The case law therefore, is not of much help. For instance, in Pirzada Amir Hussain and another vs. Mrs. Shamim Shah Nawaz and another (1987 S.C.M.R. 249), the facts in brief were that the respondents in that case entered into an agreement to sell with petitioners qua an evacuee property in which PTD had yet been issued. On refusal of the latter to carry out the agreement, she filed a suit for mandatory .injunction seeking a direction to petitioners (before the Supreme Court) to obtain a permanent transfer deed. While the suit was pending, the permanent transfer deed was obtained whereafter, she filed a second suit for specific performance of the agreement in question. Both the suits were consolidated. The earlier suit was dismissed as having been infructuous (as PTD had been issued) but the latter suit was decreed against which petitioners filed regular first appeal in the High Court which was dismissed;they sought leave to appeal before the Hon'ble Supreme Court and one of the main point urged there was that the first suit for mandatory injunction having been dismissed by the trial Court, the second suit could not be decreed on grounds of principles of resjudicata.The leave was refused by the Hon'ble Supreme Court and it was observed at page 252 as under:

"It is correct that the first suit filed by the respondent side seemingly appeared to be for the enforcement of the agreement to sell but on deeper scrutiny it is observed that specific performance could not be asked by the plaintiff (of the agreement to sell) unless and until there would be vendee had taken a particular step, namely, of obtaining the permanent transfer documents. It was in this context, therefore, that instead of seeking the specific performance the plaintiff justifiably sought the assistance of the Court to compel in the first instance the would be vendee to obtain transfer documents from the Settlement Department. Without that the plaintiff could have been advised that the suit for specific performance might not be competent. And when during the pendency of that suit, the defendant obtained the transfer deed the said suit fructified and had become infructuous. Therefore, the trial Court rightly held it so."

The afore-referred observations of the Hon'ble Supreme Court were made while rejecting the plea of resjudicata raised by the defendants in the suit (against whom suit for specific performance had been decreed) and the possible objection with which the plaintiff could have been confronted with had he not filed the earlier suit.

In Abdul Aziz and another vs. Abdul Rehtnan and others (1994 SCMR 111), the suit for specific performance was dismissed by the trial Court; the appeal met the same fate and even the High Court, also did not grant the leave whereafter a review application was filed which was dismissed with the observation, that,"

"the grant of specific performance of agreement is a discretionary relief which can be refused even if the execution of agreement is proved. In the facts and circumstances of the case all the Courts have refused to exercise discretion in favour of the petitioners."

In Mst. Saleem Khatoon and another vs. The Deputy Settlement Commissioner/Authorised Officer and 2 others (PLD 1994 Supreme Court 160), the Hon'ble Supreme Court refused to interfere where the High Court had dismissed appellant's writ petition against the order of the Deputy Commissioner (Authorised Officer under the evacuee laws) whereby he had cancelled the allotments made in favour of the appellants on the ground that the same had been obtained by fraudulent means and were based on forgery committed in record of rights among other reasons and it was observed at page 161," This being the factual position learned counsel could not advance the case any further. We have no reason to differ with the High Court on the findings of fact in this behalf." The case referred to in Mian Iqbal MehmoodEanday vs. Muhammad Sadiq (PLJ) 1995 Supreme Court 351), has absolutely no nexus either on facts or on law to the present case. In Muhammad Usman vs. Abdul Razzak and 3 others (1997 MLD Karachi 472), a declaration was sought through a civil suit that PTD issued in favour of Defendant No. 2 was void and fraudulent and the same had been filed after the repeal of the evacuee and settlement laws without impleading the Provincial Government as a party. The suit was found to be incompetent by the learned Karachi High Court observing as under:-

"In view of the fact that the Evacuee and Settlement Laws were repealed on the 1st day of July, 1974 on the promulgation of the Evacuee Property and Disabled Persons Laws (Repeal) Act, 1975, I am of the view that for all intent and purpose Provincial Government was the necessary and proper party and that the Defendant No. 4, namely, the Deputy Settlement Commissioner, Karachi, had ceased to exist after 1st July, 1974, therefore, this suit is incompetent. It may be observed that no attempt was made by the plaintiff for all case numbers of years (from 1981 to 1969) to join the said necessary party. No effective or purposeful relief can be granted in its absence."

1. In the instant case, the facts are distinguishable. The appellants-defendants never denied having executed the agreement. In the written statement in preliminary Objection No. 6, it was pleaded as under:--

"that actually prevailing market price of the suit house is no way less than 20,000/-; whereas plaintiff wants decree forspecific performance of contract on payment of Rs. 8,000/-. The transaction being unconsciousable and oppressive is liable to be rescinded and the poor defendant be relieved of this operession. In view of the above submissions plaintiff have neither locus standi nor any cause of action to institute the suit."

DW-3 who is son of Umer Din deceased admitted the agreements Exh. PI and Exh. P2 and even conceded that the bargain was struck at Rs. 20,000/-although the amount written in the afore-referred agreement was Rs. 8,000/- and further that he never asked his father as to why lesser amount had been shown in the agreements. The execution of the agreements has therefore, not only been proved through the documentary evidence but also through the appearance of PW-1, the scribe PW-2 the marginal witness and PW-3 who was present at the time of registration of the documents in question. So far as the question of pendency of the litigation between Umer Din deceased and another party to which reference has been made in the agreement is concerned, the Special Attorney of plaintiff appeared as PW-4 and stated that the appellants-defendants could not succeed in the litigation against the other party and therefore the roof of the house in dispute was given to the other party. Respondents-plaintiffs also produced copy of the order of the Deputy Settlement Commissioner dated 10.9.1977 as Exh, P-3 which shows that in the presence of Umer Din deceased, it was directed that PTD be issued if there was no injunctive order passed by any Courts of competent jurisdiction. It was specifically pleaded in para 5 of the plaint that the litigation between the parties was over. The statement of the Special Attorney as also the averments made in the plaint have not been controverted by bringing any material on record to show that the litigation was pending on account of which appellants-defendants could not obtain PTD. During the course of arguments, learned counsel for the appellant was specifically asked as to whether the permanent transfer deed is lying in the office of the Additional Deputy Commissioner General/Notified Officer under the relevant law as asserted by learned counsel for the respondents-plaintiffs to which he did not make any specific denial and merely submitted that he is not aware of this. Surprisingly, despite the finding to that effect in para 8 of the judgment of the learned Appellate Court, there is no specific denial even in the body of the appeal.

In view of the foregoing analysis, this Court is of the considered view that the concurrent findings on Issue No, 7 have been correctly arrived at and they are not against the weight of evidence. On Issues Nos. 3 & 6, the stand of the appellants-defendants was rather evasive and it was proved in evidence that the litigation had concluded; that the upper portion of the house in question had gone to another party; that the permanent transfer deed is ready for delivery and that the same had not collected by the appellants-defendants with a view to avoid execution of the agreement in Question. On issues Nos. 5-A, nothing was brought in evidence by the appellants-defendants to show that the transaction was unconscionable and oppressive, in feet their own witness DW-3 admitted that the deed was struck at a greater price than shown in the agreement.

The argument of the learned counsel for the appellants-defendants that in absence of PTD and in view of Section 6-D of the Transfer of Property Act, the suit was not maintainable, is devoid of force. In Nasira Sultana vs. Habib Bank Ltd. and others (PLD 1975 Karachi 608), it was observed at page 616 as under:

"In any event the plaintiff in that case was quite prepared to accept transfer of such right, title and interest as may have been possessed by the defendant and I am with great respect to the learned Judge wholly unable to see reasonableness of the exercise of discretion against the grant of decree for specific performance against a defendant who had received full consideration, executed all and several documents including an irrevocable power of attorney to enable the plaintiff to have the plot transferred in his name either as purchaser or on behalf of the seller defendants,"

To say that, the agreement was void, ab initio is also against the law declared by the Hon'ble Supreme Court in (Retd.) Group Capt. AM. Morad w. Muhammad Azmatullah Siddiqui and three others (1991 SCMR2415) wherein at page 2416, it was observed, "There is no bar to a person agreeing to transfer or acquire jointly proprietary rights." The afore-referred view was again reiterated in Mst Rehmat Bibi and others vs. Mst. Jhandoo Bibi and others (1992 SCMR 1510) wherein at page 1513, it was held as under

"Otherwise too, he was unable to contest the proposition that the bar in Section 19 isagainst the alienation and not against the agreement and that being so the agreement could be enforced through specific performance after the grant of proprietary rights and this is what has happened in this case."

For what has been discussed above, the two concurrent findings arrived at by the learned Courts below are well reasoned, supported by the evidence on E> record and are not against the law declared therefore, does not call for interference. There is no merit in this appeal which is dismissed.

(A.A.) Appeal dismissed.

PLJ 2000 Lahore 482

Present: MUHAMMAD NASEEM CHAUDHRI, J. KHADIM HUSSAIN-Petitioner

versus DEPUTY COMMISSIONER HAFIZABAD ete.-Respondents

W.P. No. 23300 of 1998, heard on 13.10.1999.

Land Revenue Act, 1967 (WP Act XVII)--

—S. 161--Constitution of Pakistan (1973), Art. 199--Appeal against order of Revenue Officer-Sanction of mutation by Tehsildar and cancellation thereof by the Deputy Commissioner-Constitutional petition— Jurisdictional competence of D.C. to entertain application and decide same-Question of law-Determination of-If any interested person is aggrieved by order of sanction of mutation appeal is competent U/. 161 of Laud Revenue Act, 1967 before Collector when order is made by Assistant Collector of either grade-According to Notification dated 1.7.1991, appeal is maintainable before Assistant Commissioner exercising powers of Collector and not before District Collector—Careful perusal of Section 161 of Land Revenue Act, 1967 read with aforesaid Notification dated 1.7.1991 has made out that District Collector/Deputy Commissioner stands eclipsed therefrom and thus vires of order whereby impugned Mutation No. 6332 was sanctioned could not be examined and analysed by District Collector rather he was not competent to entertain miscellaneous application-Appeals incorporated in Section 161 of Land Revenue Act, 1967 are not within jurisdiction of District Collector-Held: Against sanction of mutation U/S. 42 of Land Revenue Act, 1967 appeal is to be preferred before and heard by Assistant Commissioner/Collector and Deputy Commissioner/District Collector has no jurisdiction to entertain any application and pass order which is simply coramnon- judicefrom date of its announcement. [Pp. 489, 490 & 491] A to D

Syed Shamim Abbas Bokhari, Advocate for Petitioner. Syed ZulfiqarAli Bokhari, AAG for Respondents Nos. 1 to 3. Rana Abdur Rahim, Advocate for Respondent No. 4. Date of hearing: 13.10.1999.

judgment

Mian Khurshid Ahmad son of Sardar Khan, Caste Rajput resident of Mianda Kot, Hafizabad was a hermaphrodite who was the owner of agricultural land situated in Mauza Hafizabad, Mauza Premkot and Mauza Dingran Wali, Tehsil and District Hafizabad. He lived in the house of Khadim Hussaia petitioner. He had no brother, was never married and neither eligible to marry and thus he had no wife and children. During his life time Mian Khurshid Ahmad is said to have bequeathed whole of his property in the name of Khadim Hussain petitioner, Mian Khurshid Ahmad died on 21.8.1998 whose dead-body was received by Khadim Hussain petitioner as he looked after him being his sister's son (Bhanja). The fact of his death was entered in the Register of Municipal Committee, Hafizabad through Khadim Hussain petitioner. With respect to the property situated in Hafizabad Mutation No. 16332 was entered at the request of Khadim Hussain which was contested by Bashir Ahmad Respondent No. 4 who claimed to be the brother of Mian Khurshid Ahmad deceased. This mutation was sanctioned on 30.9.1998 by the Tehsildar/Assistant Collector-I, Hafizabad in favour of Khadim Hussain petitioner wherein he particularly referred to a written deed of will in favour of Khadim Hussain petitioner. With respect to the properly situated in Mauza Dingranwali and Premkot respective Mutations No. 101 and 583 were entered by the Patwari which have not been sanctioned as yet and obviously there is no dispute thereof before this Court.

1. On 30.9.1998 Bashir Ahmad Respondent No. 4 made his miscellaneous application before the Deputy Commissioner, Hafizabad wherein he made the allegations of corruption against the Tehsildar about the sanction of the Mutation on 30.9.1998 in favour Khadim Hussain. He prayed for the cancellation of the said mutation. This matter was processed by the Deputy Commissioner/District Collector, Hafizabad before whom the documents were produced and the matter was argued at length by the learned counsel for the contesting parties i.e. Bashir Ahmad Respondent No. 4 in this writ petition and Khadim Hussain petitioner in this writ petition. The District Collector, Hafizabad passed the order dated 21.10.1998 whereby he accepted the application about the cancellation of Mutation No. 18332 attested on 30.9.1998, keeping pending the decision of the remaining mutations pertaining to the land situated in the remaining villages, sent the matter to the Assistant Commissioner, Hafizabad to hold the inquiry and directed him to submit the report within one month from the date of order through recording the documentary and oral evidence of the parties.

2. It would be proper to express that both Mutations Nos. 16332 and 16333 were entered about the land situated in Mauza Hafizabad but one Mutation No. 16332 was attested on 30,9.1998 as the property is ituated in Mauza Hafizabad. This feet has to be mentioned as in his impugned order dated 21.10.1998 the Deputy Commissioner, Hafizabad has mentioned both Mutations Nos. 16332 and 16333 while in fact about the whole of the property situated in Mauza Hafizabad Mutation No, 16332 stands sanctioned. Thus it is made clear that this judgment shall pertain to whole of he land situated in Mauza Hafizabad and left by Mian Khurshid Ahmad.

3. Feeling aggrieved by order dated 21.10.1998 Khadim Hussain petitioner filed this writ petition wherein he questioned the jurisdiction of the Deputy Commissioner/District Collector, Hanzabad by expressing that order dated 30.9.1998 about the sanction of mutation was appealable under Section 161 of the Land Revenue Act before the Assistant Commissioner (Collector) and that the matter could not be taken up on the same date (30.9.1998) by the Deputy Commissioner. He contended that the Deputy Commissioner did not figure anywhere after the sanction of the mutation on 30.9.1998 and that the impugned order dated 21.10.1998 was without jurisdiction, arbitrary and has been passed in glaring disregard of the provisions of law which was liable to be set-aside. He also touched the merits of his entitlement on the ground that Bashir Ahmad was not the real brother of Mian Khurshid Ahmad deceased and that he being his nephew in whose favour the well was executed was entitled to inherit the property.

4. In his report and comments the Deputy Commissioner/District Collector, Hanzabad took up the stand that the land situated in Municipal limits of Hafizabad City was transferred in the name of Khadim Hussain without any registered document and that only l/3rd property could be acquired by Khadim Hussain through will while the remaining property was to be inherited by the legal heirs of Mian Khurshid Ahmad. He expressed that he was competent to take the action on the application filed by Bashir Ahmad Respondent No. 4 and that the impugned order dated 21.10.1998 was perfectly justified and legal. He also took the stand that he was empowered to interfere on any application or take the suo motu action in regard to illegality/irregularity committed by the subordinate staff, tie maintained that against the impugned order dated 21,10,1998 the appeal was maintainable before the Commissioner, Gyjranwala Division, Gujranwala and that the petitioner can also joia In the inquiry sent by him to the Assistant Commissioner, Hafizabad. Basfair Ahmad Respondent No. 4 submitted the written statement wherein he took up the stand that the impugned order was legal and that he was the brother of deceased, 6. I have heard the learned counsel for the parties and gone through the record before me. Learned counsel for Khadins Hussain petitioner argued that Mutation-No. 16332 was sanctioned by the Tehsildar under Section 42(6) of the Land Revenue Act, 1967 and that the said order is appealable under Section 161 of the Land Revenue Act, 1967, He maintained that Notification No. 6399-91/41185-E(F)-IH dated 1.7,1998 lias made out that the powers of the Collector under the Land Revenue Act, 1967 have been conferred by the Government of the Punjab on the Assistant Commissioners except the District of Lahore to be exercised within the area of their respective jurisdiction subject to the control and supervision of the District Collector concerned and that in terms of Section 161 of the Land Revenue Act the appeal was maintainable before the Assistant Commissioner/Collector, Hafizabad, He added that the District Collector/ Deputy Commissioner, Hafizabad had no jurisdiction to entertain the application dated 30.9.1998 and to process with the same who had also no jurisdiction to suo-motuproceed in the matter. On the contrary learned Assistant Advocate General and the learned counsel for Respondent No, 4 laid the emphasis that under bis supervisory jurisdiction the District Collector, Hafizabad has the power to interfere into the matter. For the proper appreciation of the dispute in hand it would be convenient to reproduce as under Sections 42 and 161 of the Land Revenue Act, 1967:

"Section 42. Making of that part of periodical records which relates to land-owners.--(l) Any person acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a land-owner or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report Ms acquisition of right to the Patwari of the estate, who shali--

(a) record such report in the Roznamcha to be maintained in the prescribed manner, (b) furnish a copy of the report so recorded, free of cost, to the person making the report; and

(c) send & copy of the report, within a week of its receipt by him, to the Union Committee, Town Committee or Union Council within which the estate is situated.

(2) If the person acquiring the right is a minor, or is otherwise unable to report, his guardian or other person having charge of his property shall make the report to the Patwari.

(3) The Patwari shall enter in his register of mutations every report made to him under sub-section (1) of sub-section (2), and shall also make an entry in the Roznamchaand in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those sub-sections and has not been so made.

(4) The report made to the Patwari under sub-section (1) or sub­ section (2) or recorded by him under sub-section (3) shall be displayed in such manner as may be prescribed.

(5) If the Patwari fails to record or to display a report made to him under sub-section (1) or sub-section (2); the person making the report may make the report, in writing, to the Revenue Officer concerned and the Chairman of the Union Committee, Town Committee or Union Council in which the estate is situated, by registered post acknowledgment due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations.

(6) A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of whicii under the foregoing sub-sections, report should have been made to he Patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.

(7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order of decree of a Court, the Revenue Officer shall make the order under sub-section (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardarsor members of the Union Committee, Town Committee or Union Council concerned, whose signatures or thumb-impressions shall be obtained by the Revenue Officer on the register of mutations.

(8) An inquiry or an order under sub-section (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the inquiry, relates.

(9) Where a Revenue Officer makes an order under sub-section (6) in regard to the acquisition of any right, an entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of any entry in any record previously prepared, which, by reason of the acquisition, has ceased to be correct.

(10) If within three months of the making of a report of the acquisition of a right under sub-section (1) or sub-section (2), or the recording by the Patwari of an entry in the Roznamchaunder sub­ section (3) respecting the acquisition of any right, no order is made by the Revenue Officer under sub-section (6), he shall report the cause of delay to the Collector in the prescribed manner.

(11) The Revenue Officer shall, in the prescribed manner, send or cause to be sent, the gist of an order made by him under sub-section (6), to the person whose right is acquired, and also to the Union Committee, Town Committee or Union Council in which the estate is situated.

Section 161. Appeals.-S&ve as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a Revenue Officer as follows, namely-

(a) to the Collector, when the order is made by an Assistant Collector, of either grade;

(b) to the Commissioner, when the order is made by a Collector;

(c) to the Board of Revenue only on a point of law, when the order is made by the Commissioner: Provided that™

(i) when an original order is confirmed on first appeal, a further appeal shall not lie;

(ii) when any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner on further appeal, if any, to him shall be final.

Explanation.--() An order passed in review, modifying or reversing a previous order, shall be deemed to be an original order for the purposes of this section.

(2) An order shall not be confirmed, modified or reversed in appeal unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of or against the order appealed from.

1. Following is the Notification issued on 1.7.1991 by the Government of the Punjab (Revenue Department) published as NLR 1991 Punjab Statutes 22:

"Notification No. 6399-91/22185-E(F)HI dated the 1st July, 1991. In exercise of the powers conferred under sub-section (1) of Section 16 of the Punjab Land Revenue Act, 1967 (W.P. Act XVII of 1967) and in supersession of Government of the Punjab, Revenue Department's Notification No. 3773-82/1908 E(F) HI and No. 3773-82/1910-E (F) ffl dated 30.4.1982 and No. 1590-89/1071-LR.IV dated 18.6.1989 the Government of the Punjab is pleased to confer all the powers of Collector under the said Act upon (a) all the Assistant Commissioners in the Punjab except Assistant Commissioners of sub-division in Lahore District and (b) Additional Deputy Commissioners (General), Lahore City and Lahore Cantonment to be exercised within the area of their respective jurisdiction, subject to the general superintendence and control of the District Collectors concerned except the following cases which will, however, continue to be taken cognizance by District Collector--

(i) Appeal against the orders of Assistant Collector 1st Grade in cases of partition;

(ii) Correction in revenue records;

(iii) Sanction for review of mutations;

(iv) Suspension and remission of Land Revenue;

(v) Creation of demand of Land Revenue;

(vi) Appointment or removal of Headmen (Lamberdars); and

(vii) Allocation of Revenue Circles among Tehsildars and Naib Teshildars.

BY ORDER OF THE GOVERNOR OF PUNJAB

Sd/-

(Secretary)

Government of the Punjab Revenue Department.

No. 6399-91/22985-E(F)m

A copy is forwarded for the information and necessary action to:-

1. A}1 the Commissioners of Divisions in the Punjab.

2. All the Additional Commissioners (Revenue) in the Punjab.

3. Secretary (Settlements), Board of Revenue, Punjab.

4. Director Land Records, Punjab Lahore.

5. Director Punjab Revenue Academy, 161-C Peco Road, Township, Lahore.

6. All the Deputy Commissioners in the Punjab.

7. Settlement Officers, D.G. Khan and Rajanpur.

8. The Managing Director Choh'stan Development Authority, Bahawalpur.

9. All the Assistant Commissioners in the Punjab.

10. The Political Assistants, D.G. Khan Rajanpur.

11. The Additional Deputy Commissioner (General) Lahore City and Lahore Cantt.

12. Registrar, Board of Revenue, Punjab, Lahore.

13. Librarian Board of Revenue, Punjab, Lahore.

14. Private Secretary to the Minister for Revenue, Punjab, Lahore.

Sd/-

Additional Secretary

Government of the Punjab

Revenue Department."

1. It is proper to express that Section 42 of the Land Revenue Act, 1967 deals with the procedure for making of that part of periodical records which rektes to the land owners. Under sub-section (6) of the said Section 42 the mutation of inheritance, purchase, mortgage, gift or acquisition of any right otherwise is sanctioned by the Revenue Officer after the entry is made by the Patwari, verified by the Halqa Qanoongo and placed before the Tehsildar or the Naib-Tehsildar (Assistant Collector Grade-I/Grade-ED who can sanction a mutation. If any interested person is aggrieved by the order of the sanction of mutation an appeal is competent under Section 161 of the Land Revenue Act, 1967 before the Collector when the order is made by an Assistant Collector of either grade. According to the aforesaid Notification dated 1.7.1991 the appeal is maintainable before the Assistant Commissioner exercising the powers of Collector and not before the District Collector. The appeal is maintainable before the Commissioner when the order is made by a Collector and the appeal is preferred before the Board of Revenue only on a point of law when the impugned order is passed by the Commissioner. A careful perusal of Section 161 of the Land Revenue Act, 1967 read with aforesaid Notification dated 1.7,1991 has made out that the District Collector/Deputy Commissioner stands eclipsed therefrom and thus the vires of the order dated 30.9.1998 whereby the impugned Mutation No. 6332 ! was sanctioned could not be examined and analysed by the District Collector, Hafizabad (Respondent No. 1). Rather he was not competent to entertain the miscellaneous application on 30.9.1998. In the aforesaid Notification dated 1st July, 1991 the nature of the cases of which the District Collector can take cognizance have been enumerated who can proceed thereof on the judicial side. The District Collector cannot control the Revenue Officers so as to assume their role. This impression stands shattered in view of the very issuance of the said Notification dated 1.7.1991 whereby arrangement has been made about the conferment of powers of Collector on the Assistant Commissioners and rather about the exercise of powers of District Collector the water tight compartment of jurisdiction has been created/established by specifically enumerating his domain in the revenue hierarchy. The appeals incorporated in Section 161 of the Land Revenue Act, 1967 are not within the jurisdiction of the District Collector. There is the maxim "A communiobseruantia non est recedendum" Le. "where a thing was provided to be done in a particular manner it had to be done in that manner and if not done so would not be lawful". Perhaps the Deputy Commissioner, Hafizabad is under the impression that he has the over all supervisory jurisdiction upon his subordinates in the District in their judicial working as well by taking up all the matters at his own end. A District Head of every department has to control and supervise the working of his subordinates. However, the impression of the District Collector/Deputy Commissioner, Hafizabad is violative of good governance as the same can only materialise if the law of the land is respected by the civil servants. No doubt he is the representative of the State. However, he cannot be allowed to project his powers in this illegal manner. The impugned order dated 21.10.1998 is beyond the scope of the substantive and procedural statutory law. The important point to be kept in mind is that the power and authority to set the law in motion is linked with the substantive jurisdiction without which the application dated 30.9.1998 submitted before the Deputy Commissioner, could not be entertained and the proceedings could not be initiated and culminated. Due to the lack of jurisdiction about the processing with the application dated 30.9.1998 it can safely be held that the impugned order dated 21.10.1999 is without jurisdiction and thus illegal. A Deputy Commissioner has the supervisory jurisdiction over his subordinates yet he cannot trespass into the jurisdiction of any order such officer. The water tight compartments of jurisdiction have been enumerated in Section 161 of the Land Revenue Act, 1967 for the preference and hearing of appeals in the revenue hierarchy. The notification dated 1.7.1991 has conferred the power of Collector on the Assistant Commissioner within the territorial limits of his sub-division. Section 161 of Land Revenue Act, 1967 read with Notification dated 1.7.1991 has eclipsed the jurisdiction of the Deputy Commissioner, Hafizabad to decide the application dated 30.9.1998 made by Bashir Ahmad Respondent No. 4 before him. It is proper to express that Mutation No. 16332 was sanctioned on 30.9.1998 while the application for setting aside the same was directly moved before the Deputy Commissioner, Hafizabad on the same date and with a considerable speed the application was partly disposed of by setting aside the mutation and referring the matter to the Assistant Commissioner for holding the inquiry who was made competent to record the evidence of the parties. This novel method/procedure has not been provided in the Land Revenue Act, 1967. Against the order of mutation only and only the appeal is competent under Section 161 of the Land Revenue Act The supervisory jurisdiction of the District Collector cannot go to the extent of suo-motuaction. There are water-tight compartments of jurisdiction in all the departments. The jurisdiction of one subordinate Officer cannot be exercised by the Officer of the same department posted at the high pedestal. It is thus held that against the sanction of a mutation under Section 42 of the Land Revenue Act, 1967 the appeal is to be preferred before and heard by the Assistant Commissioner/Collector, Hafizabad and the Deputy Commissioner/District Collector, Hafizabad has no jurisdiction to entertain any application and to pass the impugned order dated 21.10.1998 which is simply coram-non-judicefrom the date of its announcement

2. At this stage I am tempted to express that Bashir Ahmad seems to have gone to the Deputy Commissioner/District Collector, Hafizabad due to mis-conception where the matter is pending and thereafter the matter remained pending before this Court In case of preference of appeal he may file the application under Section 14 of the Limitation Act for condonation of delay, on the ground of proceeding before the Deputy Commissioner, Hafizabad and defending this matter before this Court, before the Appellate Court in the revenue hierarchy which shall be considered and disposed of in accordance with law.

3. For what has been said above, I accept this writ petition, set- aside the impugned order dated 21.10.1998 dismiss the application filed by Bashir Ahmad Respondent No. 1 before the Deputy Commissioner/District Collector, Hafizabad and close the proceedings initiated before Mm. However, Bashir Ahmad petitioner may proceed in accordance with law through the preference of an appeal before the Court of competent jurisdiction as contemplated under Section 161 of the Land Revenue Act, 1967 which shall be disposed of in accordance with law without feeling prejudiced by this judgment In the circumstances the parties are left to bear their own costs.

(B.T.) Petition accepted.

PLJ 2000 Lahore 492

Present: ihsan-ul-haq chaudhky, J. ABDUL BASIT and another-Petitioners

versus MUHAMMAD ASHBAF DAR and another-Respondents

C.R. No. 902 of 1996, heard on 15.12.1999.

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

—S. 115 read with Section 12(2)--Arbitration Act, 1940 (X of 1940), Ss. 14 & 17~Judgment in term of award-Setting aside Arbitration Award on ground of fraud-Dismissal of application U/S. 12(2) C.P.C. by trial Court-Maintainability of application U/S. 12(2) and revision-Question of-Application U/S. 12(2) CPC was competent as no procedure has been provided under the Arbitration Act to challenge decree passed in terms of Award~If challenge is not to judgment, decree or order, but to award itself the remedy would be U/S. 30/33 of Arbitration Act and not under Section 12(2) CPC, but as Arbitration Act 1940 contained no provision for challenging such decree or order on ground of misrepresentation or fraud, application U/S. 12(2) C.P.C. was competent-Petition dismissed.

[P. 496] A

Mr. Ahmad Awais, Advocate for Petitioners.

Ch. Muzammal Khan, Advocate for Respondent No. 1.

Nemo for Respondent No. 2 Ex-parte.

Date of hearing: 15.12.1999.

judgment

The relevant facts for the decision of this Civil Revision are that the petitioners, who are husband and wife claimed to be owner of industry runs under the name and style of Kashma Aali Chemical Industries. The factory and the residential accommodation covered 8 Kanals of land situated in Mauza Khaki Tehsil Ferozewala District Sheikhupura. The Respondent No. 1 pleaded that he had agreed to purchase the property and the petitioners agreed to sell the factory, residential house and other piece of land for total consideration of Rs. 45 lac and executed agreement dated 8th of April, 1993. But the sale-deed could not be completed and registered as their three properties were mortgaged with the National Bank of Pakistan, Begum Kot Branch, Lahore. It was pleaded that the petitioners took up the position that the mortgage amount should be paid by the Respondent No. 1. The petitioners and the respondent ultimately agreed to resolve this dispute through Arbitration. Accordingly they executed agreement Ex.R. 5 dated 5.8.1994 whereby they appointed the Respondent No. 2 as the sole Arbitrator for resolving the controversy between the parties. The Respondent No. 2 gave his Award dated 30.8.1994 Ex.R.6. The Respondent the Arbitration Act for making Award rule of the Court. The notices were issued to the respondents for 30th of October, 1994. The petitioners appeared, submitted detailed reply and prayed that they have no objection of the Award being made rule of the Court

1. The learned trial Court in this view of the matter accepted the petition, made the Award rule of the Court and passed decree in terms thereof, according to which, the Respondent No. 1 was to pay a sum of Rs. 6,34,843.81. The petitioners thereafter moved an application under Section 12(2) CPC on 22nd of January, 1995. The same was contested by the Respondent No. 1.

2. The learned trial Court accordingly framed the following issues:-

3. Whether the petition is barred by time? OPD.

4. Whether affidavit filed alongwith the petition is not on behalf of the petitioners, if so, its effect? OPD.

5. Whether the petitioners are estopped by their words and conduct to file this petition? OPD.

6. Whether the petition under Section 12(2) CPC is not competent? OPD.

7. Whether the petition has not been properly filed, if so, its effect? OPD.

8. Whether the petitioners did not execute any Iqrar Nama for the appointment of the Arbitrator and the Arbitrator has conducted the proceedings without their knowledge? OPP.

9. Whether the petitioners did not appoint any Counsel in the ain case and the Vakalatnama as also the written reply, allegedly filed on their behalf, are forged, if so, its effect? OPP.

10. Relief.

11. The petitioners appeared as AW. 1 and AW. 2 while their son Abdul Aali appeared as AW. 3. The Respondent No. 1 examined Arbitrator as RW. 1 while Muhammad Amin and Amir, marginal witnesses of Ex.R.5, as RW. 2 and RW. 3 and himself appeared as RW. 4

12. The learned trial Court after hearing the arguments dismissed the application of the petitioners vide order dated 20.12.1995, now this revision which was admitted to hearing. Notices were issued to the respondents but the Respondent No. 1 appeared and contested the petition while the Respondent No. 2, Arbitrator, has been proceeded ex-parte.

13. The learned counsel for the petitioners argued that neither the petitioners agreed to refer the Arbitrator nor executed agreement Ex.R.5 nor engaged Abdul Khaliq Awan, Advocate to appear on their behalf in the application under Section 14/16 of the Arbitration Act nor signed the power of attorney and reply. It is added that it was-out and out the fraud played on the petitioners. It is added that the petitioners moved an application under Order XVI, Rule 14 CPC for calling Faqir Hussain, Waseeqa Nawees, Mukhtar Malik, marginal witness and Abdul Khaliq Awan, Advocate, who allegedly signed the written reply to the application as Court witnesses but the application was dismissed simply as it was direction case and the period of four months was expiring shortly.

14. On the other hand, Ch. Muzzammal Khan, Advocate for Respondent No. 1 raised preliminary objection to the effect that the revision is not competent against the order passed on the application under Section 12(2) CPC. In this behalf he has referred to "Muhammad Yasin vs. Sheikh Hanif Ahmed & 4 others" (1993 SCMR 437). It is added that the petitioners had not given any particular of the alleged fraud in the application under Section 12(2) CPC and also failed to adduce any evidence and even fraud was not alleged in the statements made by the petitioners and their son. It is added that the application under Order XVI, Rule 14 CPC was dismissed by detailed order dated 2.0th of December, 1995. The petitioners have themselves closed their evidence and thereafter the client produced some of the witnesses from the list submitted by him. He was not under obligation to call upon any other witness. It is added that the application was made after winning over the said three persons. Even otherwise, Malik Abdul Khaliq Awan, Advocate represented the petitioners, therefore, they should have produced him but they did not even include bis name in the list of witnesses. It is added that the agreement Ex.R.4 is not only signed by the petitioners but also thumb marked, therefore, the petitioners if genuinely denied the execution were bound to examine handwriting expert to prove their pleas but they did not make any effort and even name was not included in the list of witnesses.

15. The learned counsel for the petitioners while summing up the arguments submitted that the revision is competent In this behalf he has referred to "Government ofSindh and another vs. Ch. Fazal Muhammad and another" (PLD 1991 SC 1).

16. I have given my anxious consideration to the arguments and gone through the record, relevant provisions of law and precedent cases relied by the learned counsel for the parties. It would be seen from the arguments that the vital issues were Nos. 6 & 7. The petitioners appeared as AW. 1 and AW. 2 and examined their son as AW. 3. On the other hand, the Respondent No. 1 examined Muhammad Amin and Amir Ali, to prove Arbitration agreement Ex.R. 5 beside his own statement. It is relevant to record here that agreement consisted of two pages. The petitioners have not only signed the pages but also thumb marked. In the circumstances best evidence available to them was testimony of handwriting expert and Finger Bureau, which they did not avail. Their own statements coupled with the statement of their son were entirely insufficient to discharge the onus of Issue No. 6. Similarly they failed to prove that neither they filed the written reply Exh.R.3 to the application under Sections 14 and 17 of the Arbitration Act nor they engaged Mr. Abdul Khaliq Awan, Advocate to represent them before the learned Civil Judge. Here again hand-writing expert was the best evidence to show that written reply Exh. R. 3 and the power of attorney in favour of Malik Abdul Khaliq Awan, Advocate did not bear their signatures. The application under Section 12(2) CPC did not contain any detail of the fraud alleged by the petitioners. It is a just ten line's application, which is hardly made out a case under Section 12(2) CPC.

17. Now coming to the application under Order XVI, Rule 14 CPC for summoning three Court witnesses. Suffice to record here that the Respondent No. 1 was just to prove execution of the agreement Exh.R.5. This was done by him examining AW. 2 and AW. 3 besides his own statement He was not under any legal obligation to summon all the marginal witnesses and also the scribe of the document, therefore, their non-production by the Respondent No. 1 could not furnish basis for calling these persons as Court witnesses especially on the face of the plea of Respondent No. 1 that they have been won over by the petitioners. The arguments that the application was dismissed by the learned Civil Judge for the simple reason that it was a direction case and its disposal was to be made very shortly. The learned trial Court in so many words said that the petitioners were intentionally delaying the matter as is clear from the following portion of his order:-

18. Now coming to the Issue No. 2. The argument is that the application under Section 12(2) CPC was not supported by any affidavit of the petitioners themselves. It is argued that this was done mala fide to avoid comparison of their signatures. The learned trial Court has decided issues in favour of the Respondent No. 1 on the ground that even after the objection the petitioners have not rectified the defect. It is difficult to agree with this specially when the petitioners were not directed and allowed time to cure this defect Moreover, they have not relied on affidavit attached with the petition. This Court should have taken notice of this suit when the petition was presented without the affidavit at that juncture the learned trial Court might have refused to entertain that application under Section 12(2) CPC until and unless affidavit of the petitioners was not attached in support thereof. Findings therefore on this issue are not sustainable. It is another matter when after going through the petition and the way if was made, one gathered an impression that this was only an effort to prolong the dispute.

19. The argument that the application under Section 12(2) CPC was not competent and in any case revision is not maintainable. Learned counsel for the parties in this behalf relied on the cases of Muhammad Yasin vs. Sheikh Hanif Ahmad & 4 others (1993 SCMR 437) and Government of Sindh and another vs. Ch. Fazal Muhammad and another (PLD 1991 SC 1). It is clear from both the judgments that the application under Section 12(2) CPC is competent as no procedure has been provided under the Arbitration Act to challenge the decree passed in terms of the Award. The clear but distinction which has been brought out by these judgments is that if the challenge is not to the judgment, decree or order but to the Award itself the remedy would be under Section 30/33 of the Arbitration Act and not under Section 12(2) CPC but as Arbitration Act 1940 contained no provision for challenging such decree or order on the ground of misrepresentation or fraud, therefore, the application under Section 12(2) CPC is competent The application in the case in hand was of composit nature, therefore, it was competent Suffice it is to refer hereto the concluding portion of the judgment in the case of Muhammad Yasin vs. Sheikh Hanif Ahmad & 4 others (1993 SCMR 437) which reads as under

".... In both these judgments the question whether a decree passed on the basis of the award can be challenged by an application under Section 12(2) C.P.C was not considered. Sections 30 and 33 refer to only awards and not decree passed on the basis of the award. Under the Arbitration Act there is no provision for challenging such decree on the ground that it has been obtained by misrepresentation and fraud. Therefore, applicability of Section 12(2) CPC has not been excluded. In the present case the appellant had filed application under Section 33 of the Act and Section 12(2) C.P.C. It seems to be composite application for determination of the effect of the agreement as provided by Section 33 and challenging the decree on ground of fraud and misrepresentation. The application, therefore should have been considered on merits instead of dismissing it on technical ground that no application under Section 12(2) was maintainable. From the above discussion it is clear that in the facts and circumstances of the case application under both the provisions was maintainable. We, therefore, allow the appeal and remand the case for hearing on merits."

The application under Section 12(2) C.P.C. was competent, therefore, the revision is maintainable. No other issue was argued. The petitioners have failed to make out the case for interference in the revisional jurisdiction.

1. The upshot of this discussion is that the revision is dismissed with no order as to cost

(B.T.) Revision dismissed.

PLJ 2000 Lahore 497

Present: muhammad naseem chaudhri, J, MUHAMMAD SULEMAN-Petitioner

versus

ADDITIONAL DEPUTY COMMISSIONER (GENERAL), LAHORE CANTT.-Respondent

W.P. No. 12959 of 1998, accepted on 16.11.1999. (i)

Land Revenue Act, 1967 (W.P. No. XVII of 1967)-

—S. -^--Constitution of Pakistan (1973), Art. 199--Mutation-Sanction of-- Peutioner applied for sanction of mutation of plot transferred by Settlement Department in his name-ADC(G), despite receipt of report of re-verification of transfer order from Secretary (Settlement & Rehabilitation) did not sanction mutation-Constitutional petition- Ma: ntainability of—Denial of right of petitioner and refusal to sanction mutation by keeping matter pending for about three years had conferred right on petitioner to invoke help of onstitutional Court through filing of writ petition-Provisions of Art. 199 of Constitution 1973 confer very wide powers on High Court for enforcement of fundamental and legal rights— Aricle 199 of Constitution provides remedy for infringement of fundamental and legal rights of persons-However, condition precedent to granting of any relief under said Article of constitution depends on existing of fundamental and legal right of person and of infringement of r^ch right-Right which is foundation of Article 199 of the Constitution is personal and individual right-Legal right may be statutory right recognized by law-Person could be said to be aggrieved when person was denied legal right by some one who had legal duty to perform relating to that right-Held: Writ petition was maintainable. [P. 517] G

(ii) Land Revenue Act, 1967 (W.P. No. XVII of 1967)--

—S 42-Permanent transfer deeds and transfer orders issued by Settlement Department-Attestation of mutation-Substantive jurisdiction of D.C. & ADC (G)-Determination of~Control on subordinate Revenue Officers in terms of Section 14 of Act-Office order restraining Revenue Officers from sanction of mutations against P.T.Ds/T.Os issued by Settlement Department-Appointment of ADC (G) to exercise Powers of Revenue Officer in terms of Section 42(6) for attestation of mutations against P.T.Ds/T.Os issued by Settlement Department-Comeptency to sanction mutation-Vires of notification-Question of-In case powers of Circle Revenue Officers are allowed to be exercised by Additional Deputy Commissioner (General) as required and desired by Deputy Commissioner, aggrieved party of mutation, sanctioned or rejected by Revenue Officer under Section 42(6) of Land Revenue Act, shall lose one right of appeal as under Section 161 of Land Revenue Act, 1967 such party can prefer appeal before Collector after decision of mutation either way by Revenue Officer-Due to statutory law about right of appeal, order of Deputy Commissioner, with respect to matter in hand can safely be held to be violative of Art. 25 of Constitution, 1973 which provides that all citizens are equal before law and are entitled to equal protection of law- Violation of statutory law by Deputy Commissioner, cannot be allowed by High Court-Not only that his order is violative of statutory provisions contained under Section 42(6) is violative of statutory provisions contained under Section 42(6)(10) of Land Revenue Act, 1967 as Circle Revenue Officers are not being allowed to sanction mutations pertaining to matters of acquisition of title through P.T.Ds/T.Os, litigants/owners of aforesaid type of property are also losing right of appeal-As Assistant Commissioner (Revenue) finds no mention any where in Section 42 of Land Revenue Act who has been empowered by Deputy Commissioner in matter without any valid authority keeping in view Sections 14 to 17 of Land Revenue Act-Vires of mutation sanctioned by Assistant Collector Grade-I/Grade-H (Tehsildar/Naib Tehsildar) cannot be examined andalaysed by District Collector of any District in Province of Punjab-Rather he is not competent to entertain any appeal or even any miscellaneous application in light of Notification dated 1.7.1991-Power and authority to set law in motion is linked with substantive and procedural juridiction- He cannot interfere in jurisdiction enumerated in Sections 7, 17, 42 and 161 of Land Revenue Act, 1967-Jurisdiction of one Subordinate Officer cannot be exercised by officer of same department posted at high pedestal unless provided by statute which is lacking in instant matter-Helds Mutations are to be sanctioned by Circle Revenue Officers under Section 42 of Land Revenue Act, 1967 and that Office Order dated 4.5.1999 passed by Deputy Commissioner/Collector, appointing Additional Deputy Commissioner (General) Head quarters, to exercise power of Revenue Officer in terms of Section 42(6) of Land Revenue Act for attestation of mutations against P.T.Ds/T.Os issued by Settlement Department for District of Lahore with help of Assistant Commissioner/ Collector, and concerned Circle Revenue Officer is without jurisdiction, without authority, illegal and coram non judice-Held further:Deputy Commissioner/District Collector, is not competent to deviate from statutory provisions of Section 42 of Land Revenue Act-Petition accepted. [Pp. 513 to 517] A, B, C, D, E, F, H & I

Mr. Ahmad Awais Khurram, Advocate for Petitioner. Syed Zulfiqar Mi Bokhari, Assistant Advocate General for Respondent.

Date of hearing: 25.10.1999.

judgment

The facts entailing the institution of this writ petition on 30.6.1998 are as under:-

Muhammad Suleman writ petitioner being a displaced person claimed to be in possession of the piece of land measuring 1 Kanal situated in Mauza Kothay Pindi, Faisal Town, Lahore. He made the application for the transfer of the said plot to him before the Chief Settlement Commissioner Punjab, Lahore which was finally transferred to him under the orders of the Lahore High Court Lahore passed in previous Writ Petition No. 262-R of 1992 Sled by him vide Transfer Order No. 0000754 dated 11.4.1995. After the transfer of the said plot under his possession, Muhammad Suleman petitioner submitted an application on 9.8.1995 before the Additional Deputy Commissioner (General) Lahore Cantt./ respondent for entry in the revenue record and mutating the same in his favour. On the said application of the petitioner ADC (G) Cactt Lahore (respondent) through his letter dated 19.9.1997 sought re-verification of the said transfer order from the Secretary Settlement and Rehabilitation), Board of Revenue Punjab, Lahore who vide his letter dated 6.12.1997 verified the genuineness of the above mentioned transfer order. The petitioner approached the respondent many a times and requested him to do the needful and mutate the aforesaid plot under his possession in his favour. It is asserted that due to mala fides the matter about the sanction of the mutation is being put off on one excuse or the other and according to the petitioner he is wandering in be wilderness as his genuine grievance is not being redressed. It is reiterated by him that the action on the part of the respondent is mala fide, illegal and is causing undue mental and physical torture to him. He has invoked the Constitutional jurisdiction of this Court seeking the issuance of writ/direction against the respondent to act In accordance with law and mutate the plot in question transferred in his favour as far back as 11.4.1995

1. The Additional Deputy Commissioner (General) Lahore Cantt. submitted the comments who admitted the filing of the application by the writ petitioner for sanction of the mutation, referring the matter by him to the Secretary (Settlement and Rehabilitation), Board of Revenue Punjab, Lahore and re-verification by him vide letter dated 6.12.1997. He expressed that on receipt of re-verification order dated 6.12.1997 he directed the Tehsiid.aj-Cantt Lahore to inspect the site and to furnish the report which was received by him on 24.10.1998 which was being examined and thereafter the file of the petitioner shall be forwarded to the District Collector, Lahore for according the necessaiy permission for attestation of the mutation. He took the exception to the filing of this writ petition by expressing that adequate and efficacious remedy was available to the petitioner in the revenue hierarchy before invoking the extra-ordinary jurisdiction of the High Court.

2. The matter remained pending before this Court for a considerable time. On 20.10.19981 passed the order for sanction of the mutation by giving a Schedule of time. The ADC (G) Cantt Lahore sent a letter to the Deputy Commissioner, Lahore. On this the Deputy Commissioner, Lahore submitted his report who admitted all the facts of the writ petition, but expressed that according to the report of the Extra Assistant Commissioner (Revenue), Lahore Muhammad Suleman petitioner was in possession of an area of 17 Marios and 152 square feet as against an area of 1 Kanal claimed by him. He contended that it was possible for him to mutate the and to the extent of 1 Kanal.On this report of the Deputy Commissioner, Muhammad Suleman petitioner expressed before this Court that his' entitlement was on 1 Kanal of land while he was in possession of 17 Marias and 152 square feet as measured by the revenue staff and conceded that to that extent of that area the mutation may be sanctioned.

3. The present position is that the mutation has been sanctioned. In this view of the matter the writ petition stands fructified and obviously, disposed of.

4. Even though this writ petition has been disposed of having fructified I would like to dispose of the controversy involved in this petition on merits as the same is that of public interest litigation and will be a source of convenience to the land-owners/owners of immovable property within all the Civil Districts in Punjab and particularly in Civil District of Lahore as during the hearing of this writ petition many persons from the public had been appearing to hear the same and the learned Advocates also watched the same and some of them brought their difficulty of this very nature to the notice of this Court verbally that their mutations are also not being sanctioned. It is a dispute wherein substantive jurisdiction of the Deputy Commissioner/District Collector as well as the Additional Deputy Commissioner (General) Lahore Cantt and City Lahore/Collectors has to be determined with respect to the attestation of the mutations. I would express that to enter into litigation has never been liked in our social set-up. Since this matter has come to the notice of this Constitutional Court it is the right and ripe time to examine the law on the subject in the larger interest of the citizens (members of the public) who are clamouring that they are being vexed and taxed by the public servants of the revenue hierarchy.

5. At this stage it is proper to express that the learned AAG intimated this Court on 5.5.1999 that the Deputy Commissioner, Lahore is desirous to appear to bring certain facts to the notice of this Court. He was allowed and it was on 20.5.1999 that Mr . Fawad Hassan Fawad Deputy Commissioner assisted by Mr. Khushi Muhammad Nazir EAC(R) and Mr. Muhammad Waseem Naib Tehsildar appeared along with Syed Zulfiqar All Bokhari Assistant Advocate General who argued the matter before me bringing to my notice his over all control on his subordinate Revenue Officers in terms of Section 14 of the Land Revenue Act, 1967 which according to him empowered him to distribute the business as well as withdraw and transfer the cases. About his difficulty due to the irregular and some time illegal conduct of the Revenue Officers exercising the powers of the Assistant Collectors of the First Grade and Assistant Collectors of the Second Grade working under him, being a source of inconvenience to the general public; he expressed that he would move the Board of Revenue Punjab Lahore for streamlining and issuing the policy about the mutations against Permanent Transfer Deeds and Transfer Orders issued by the Settlement Department, Board of Revenue Punjab, Lahore. He handed over the copy of his office order dated 4.5.1999 restraining the Revenue Officers from sanction of mutations against PTDs/TOs issued by the Settlement Department and streamlining the matter through the Constitution of a Committee, He sent his letter No. EACR/364 dated 10.6.1999 afterwards to the learned Senior Member Board of Revenue, Punjab, Lahore and a copy of the same was produced by the learned AAG before this Court which forms pan of this petition. In this letter the Deputy Commissioner Lahore prayed to the learned Senior Member Board of Revenue Punjab Lahore to nominate the Collector, Lahore to exercise powers under Section 42(6) of the Land Revenue Act in respect of mutations against PTDs/TOs either himself or noninate any other Revenue Officer for the purpose for the total limits of Revenue District of Lahore.

7 . At t-hig stage it is relevant to refer to this aspect of the matter that there are water tight compartments of jurisdiction of Revenue Officers pos^d at different positions. Section 7 of the Land Revenue Act provides the classes of Revenue Officers and the same is reproduced as under for the sake

at convenience:-

Section 7. Classes of Revenue Officers.~(l) There shall be the following classes of Revenue Officers, namely:-

(a) the Board of Revenue;

(b) the Commissioner;

(c) the Collector;

(d) the Assistant Collector of the first grade;

(e) the Assistant Collector of the second grade;

(2) The Deputy Commissioner of the District or the officer performing for the time being functions as such, shall be the Collector thereof.

1. According to Section 4 containing different definitions "Revenue Court\ means a Court constituted as such under the law relating to tenancy as in force for the time being (sub-section 22) and "Revenue Officer" means a Revenue Officer having authority under the Land Revenue Act, 1967 to discharge the functions of a Revenue Officer (sub-section 239. For the proper appreciation of the dispute in hand Sections 8 to 18 are reproduced as under:-

Section 8. Appointment of Commissioners and Collectors.--For each Division there shall be a Commissioner, and in each District there shall be a Collector, who shall be appointed by Government, and who shall exercise throughout the Division or District as the case may be, all the powers, and discharge all the duties, of the Commissioner or Collector, as the case may be, under this Act.

Section 9. Additional Commissioners and Additional Collectors,--Government may appointment in any Division an Additional Commissioner or in any District an Additional Collector, who shall exercise throughout the Division or District concerned all or any of the powers and discharge all or any of the duties conferred or imposed on a Commissioner or Collector, as the case may be, by or under this Act, subject to the general supervision and Control of the Commissioner of the Division in the case of Additional Commissioner, and the Collector of the District in the case of Additional Collector.

Section 10. Assistant Collectors.-(l) Government may appoint to each District as many Assistant Collectors of the first and second grade as it may deem expedient.

(2) Government may place the revenue administration of a Sub- Division in a District in the charge of any Assistant Collector of the first grade appointed to that District and confer all or any of the powers of the Collector on such officer under sub-section (1) of Section 16.

(3) If any of the powers of a Collector, under this Act are conferred on an Assistant Collector they shall be exercised by him subject to the control of the Collector.

Section 11. Tehsildar, e£c.~The Chief Officer entrusted with the local revenue administration of a Tehsil shall be called the Tehsildar (which also includes a Mukthiarkar), who shall exercise such powers and discharge such duties of an Assistant Collector as may be expressly conferred or imposed on him by or under this Act.

Section 12. Certain appointments to be notified.-The appointment ,of all officers under this Chapter shall be by notification.

Section 13. Superintendence and Control of Revenue Officers.--(l) The Board of Revenue shall be subject to the control of Government.

(2) The general superintendence and control over all other Revenue Officers shall be vested in, and all such Officers shall be subordinate to, the Board of Revenue.

(3) Subject to the general control of the Board of Revenue, a Commissioner shall control all other Revenue Officers in his Division.

(4) Subject as aforesaid and to the control of the Commissioner, a collector shall control all other Revenue Officers in his District.

Section 14. Power to Distribute Business and Withdraw and Transfer cases.--(1) The Board of Revenue may, by written order distribute, in such manner as may be deemed fit, and business cognizable by any Revenue Officer under its control, and, by like order, withdraw any case pending before any such Officer, (2) The powers exercisable by the Board of Revenue under sub­section (1) may, by like order, and in like manner, be exercised by a Commissioner or Collector in respect of any business cognizable by, or any case pending before other Revenue Officers under their respective control.

(.3) Where a case is withdrawn by the Board of Revenue under sub­section (1), the Board may dispose of it itself, or, by written order, refer it for disposal to any Revenue Officer and where a case is withdrawn by a Commissioner or Collector, under sub-section (2), the Commissioner or Collector, as the case may be, may dispose of it himself, or by like order, refer it to any other Revenue Officer under his control.

(4) No Order under this section shall empower any Revenue Officer to exercise any powers or deal with any business which he would not be competent to exercise or deal with within the local limits of his own jurisdiction.

Section 15. Combination of Offices.-lt shall be lawful for Government to appoint one and the same person, being other wise competent according to law, to any two or more of the Offices provided for in this Chapter.

Section 16. Conferment of powers of Revenue Offwers.--(l) Government may, by notification, confer on any person all or any of the powers of a Commissioner or Collector under this Act, and may, in like manner, withdraw such powers.

(2) The Board of Revenue may, by notification, confer on any person all or any of the powers of an Assistant Collector under this Act, and may, in like manner, withdraw such powers.

(3) A person on whom powers are conferred under this section shall exercise those powers within such local limits, and in such classes of cases as Government or the Board of Revenue as the case may be, may direct and, except as otherwise so directed, such persons shall, for all purposes connected with the exercise thereof, be deemed to be the Commissioner, Collector or Assistant Collector, as the case may be.

Section 17. Functions of Revenue Officers. --Except where the class of Revenue Officers by whom any function is to be performed is specified in this Act, the Board of Revenue may, by notification, determine the functions to be performed under this Act by any class of Revenue Officers.

Section 18. Retention of powers by revenue officers on transfer,~ When a Revenue Officer of any class who has, under the provisions of this Act, any powers to be exercised in any local area, is transferred from that local area to an other as a Revenue Officer of the same or a higher class, he shall continue to exercise those powers in that other local area unless Government or the Board of Revenue, as the case may be, otherwise directs or has directed.

1. Without prejudice, at this stage, it can safely be expressed that keeping in view the water-tight compartments of jurisdiction if any Revenue Officer starts working/medelling/interferring according to his own whims or desire in the working of any other Officer competent in the matter and their actions are approved, I must record and express that there would be administrative choas in the society leading towards judicial anarchy in the revenue hierarchy which is not the intention of law and keeping in view this perspective of the matter the dispute in hand is being settled for the betterment and the convenience of the affected citizens.

2. Letter No. 2608-93/298/01-RU) dated 20.1.1994 issued by the Board of Revenue Punjab to the Deputy ommissioner/Collector, Additional Deputy Commissioner (GeneraD/Collector, Lahore Cantt. and Additional Deputy Commissioner (General)/Collector, I^ahore City was also submitted which is reproduced as under:-

Thone No. 353319. No. 2608-93/298/OIR(I)

Board of Revenue Punjab Lahore Dated the 20th Jan, 94.

From

The Board of Revenue, Punjab. To

1. The Deputy Commissioner/Collector, Lahore.

2. The Additional Deputy Commissioner (Gen.)/Collector Lahore Cantt

3. The Addl. Deputy Commissioner (Gen)/Collector, Lahore City.

Subject:VERIFICATION OF TRANSFER DOCUMENTS-CLARIFICATION THEREOF.

According to the previous practice the Transfer Documents were placed before the Verification Committee constituted for the purpose and after proper verification letters were issued by Secretary (S'R) to the concerned ADC(G) at Lahore with an endorsement to Tehsildar concerned, after re-verification of the validity of these letters from the offices of Secretary (S&R), at personal level.

1. In a meeting held in the office of learned MBR (J-HD/CSC which was attended by Deputy Commissioner, Lahore and ADC(G) Cantt. it was decided and announced that the role of the verification committee would be restricted to the issuance of certified copies of the original documents available on record.

2. Some confusion is still prevailing in the field offices at Lahore that the verification and re-verification letters would be issued from the Verification Committee at Board of Revenue level. This is clarified that no verification or re-verification letter is being issued nor will be issued to the field formations and only certified copies of the original documents available on record are being issued. The Revenue field offices may enter the mutation on the certified copies after their personal satisfaction and discretion. This office will be more than ready for any personal verification of certified copies/records for the facility f the field officers for the purpose of mutation.

Sd/-

Secretary (Settle: & REH)/

Chairman Verification Committee

Board of Revenue Punjab.

No. 2608-93/299/OIR(I).--A copy is forwarded to:-

1. All Deputy Commissioners in the Punjab; (except D.C. Lahore).

2. All Addl. Deputy Commissioners (Gen)/DSCs in the Punjab(except Lahore City and Cantt.) for information and similar further action.

Sd/-

Secretary (Settle: & REH)/

Chairman Verification Committee

Board of Revenue Punjab."

1. Order dated 4.5.1999 passed by Mr. Fawad Hassan Fawad Deputy Commissioner/Collector Lahore District with respect to the appointment of Dr. Pervez Ahmad Khan Additional Deputy Commissioner (General) Headquarters Lahore to exercise powers of Revenue Officer in terms of Section 42(6) of the Land Revenue Act, 1967 for the attestation of mutations against the PTDs/TOs issued by the Settlement Department for whole of the District of Lahore was also submitted which is reproduced as under:-

ORDER

In the wake of incident of burning of revenue record during riots on 12.1.1998, numerous complaints were received regarding presentation of bogus PTDs/TOs to the revenue field staff for mutation in the revenue record. In order to protect the interest of the State and to avert bogus entries in the revenue record, all circle revenue officers in the district were restrained from sanction of mutations against PTDs/TOs issued by the Settlement Department. Subsequently a committee was also constituted vide Order No. PA/26284 dated 7.12.1998 for the verification of such cases with the following composition:--

(i) Additional Deputy Commissioner (G) HQs. Lahore, (ii) Extra Assistant Commissioner (Revenue) Lahore, (iii) Revenue Officer concerned.

1. In partial modification of the above order dated 7,12.1998 and in exercise of powers vested under Section 14(2) & (3) of the Land Revenue Act, 1967, I Fawad Hasan Fawad, Deputy Commissioner/Collector, Lahore District do hereby appoint Dr. Pervez Ahmad Khan Additional Deputy Commissioner (G) Headquarter, Lahore to exercise poWers of Revenue Officer in terms of Section 42(6) of the Land Revenue Act for the attestation of mutations against the PTDs/TOs issued by the Settlement Department for the whole district He will be assisted by the Assistant Commissioner (Revenue), Lahore, and concerned Circle Revenue Officer.

2. This order shall supersede all previous instructions issued on the subject so far.

Sd/-

OFAWAD HASAN FAWAD) Deputy Commissioner/

Collector Lahore District.

Endst No, EAC(R)/10260 dated 4.5.1999.

Copy forwarded for information and further necessary action to the:-

1. Senior Member, Board of Revenue, Punjab, Lahore.

2. Commissioner, Lahore Division, Lahore, 3. Additional Deputy Commissioner (G) HQs, City and Cantt.

3. Additional Deputy Commissioner (Consolidation), Lahore.

4. Tehsildars City and Cantt., Lahore.

5. All Circle Revenue Officers in the District.

Sd/-(FAWAD HASAN FAWAD)

Deputy Commissioner/ Collector Lahore District."

1. With respect to the conferment of powers of Collector upon the Assistant Commissioners in Punjab except Assistant Commissioners of Sub-Divisions in Lahore District wherein the powers of Collectors have been conferred on Additional Deputy Commissioner (General) Lahore City and Lahore Cantonment; Notification No. 6393-91/22185-E(F)-III dated 1.7.1991 was issued and the same is reproduced as under being relevant thereof:

"Notification No. 6399-91/22185-E(F) III dated the 1st July, 1991. In exercise of the powers conferred under sub-section (1) of Section 16 of the Punjab Land Revenue Act, 1967 (W.P. Act XVII of 1967) and in supersession of Government of the Punjab, Revenue Department's Notification Nos. 3773-82/1908-E(F) III and No. 3773-82/1910-E(F)in dated 30.4.1982 and No. 1590-89/1071-LR.IV dated 18.6.1989, the Government of the Punjab is pleased to confer all the powers of Collector under the said Act upon (a) all the Assistant Commissioners in the Punjab except Assistant Commissioners of Sub-Divisions in Lahore District and (b) Additional Deputy Commissioners (General), Lahore City and Lahore Cantonment to be exercised within the area of their respective jurisdiction, subject to the general superintendence and control of the District Collectors concerned except the following cases which will, however, continue to be taken cognizance by District Collector:--

(i) Appeal against the orders of Assistant Collector 1st Grade in cases of partition;

(ii) Correction in revenue records;

(iii) Sanction for review of mutations;

(iv) Suspension and remission of Land Revenue;

(v) Creation of demand of Land Revenue;

(vi) Appointment or removal of Headmen (Lambardars); and

(vii) Allocation of Revenue Circles among Tehsildarsand Naib Tehsildars.

By ORDER OF THE GOVERNOR OF PUNJAB

Sd/-

Secretary

Government of the Punjab Revenue Department.

No. 6399-91/22985-E(F) III.--

A copy is forwarded for the information and necessary action to:-

1. All the Commissioners of Divisions in the Punjab.

2. All the Additional Commissioners (Rev) in the Punjab.

3. Secretary (Settlements), Board of Revenue Punjab.

4. Director Land Records, Punjab, Lahore.

5. Director Punjab Revenue Academy, 161-C Peco Road, Township, Lahore.

6. All the Deputy Commissioners in the Punjab.

7. Settlement Officers, D.G. Khan and Rajanpur.

8. The Managing Director, Cholistan Development Authority, Bahawalpur.

9. All the Assistant Commissioners in the Punjab.

10. The Political Assistants, D.G. Khan, Rajanpur; and

11. The Additional Deputy Commissioner (General) Lahore City and Lahore Cantt.

12. Registrar, Board of Revenue, Punjab.

13. Librarian Board of Revenue, Punjab, Lahore.

14. Private Secretary to the Minister for Revenue, Punjab, Lahore.

Sd/-

Additional Secretary

Government of the Punjab

Revenue Department.

1. During the proceedings it was brought to the notice of this Court that there are many matters pending before the District Collector/Deputy Commissioner, Lahore wherein the mutations haw not been sanctioned and that the matters are first being processed with by Mr. Khushi Muhammad Nazir Extra Assistant Commissioner (Revenue) and it is only on bis recommendation that the mutations pertaining to PTDs/TOs are being sanctioned.

2. The dispute brought before this Court is as to who is competent to sanction the mutations and as to whether the Deputy Commissioner/District Collector as well as the Additional Deputy Commissioner (General) Lahore Cantt. and Lahore City and the Assistant Commissioners posted in other Districts of the Province of the Punjab can interfere in the working of other Revenue Officers commonly designated as Assistant Collectors Grade-I and Assistant Collectors Grade-Ill i.e. Tehsildars and Naib Tehsildars by restraining them from sanctioning the mutations without their permission or taking up the matters at their own end in violation of the statutory law incorporated in the Land Revenue Act, 1967 and in the absence of any Notificatioiss of the Board of Revenue Punjab, Lahore.

3. The case of the petitioner and obviously other affected persons is that the matter is to be taken up under Section 42(6)(10) of the Land Revenue Act and that on the basis of verification or re-verification of the PTDs and Transfer Orders no clog can be put on the powers of the Revenue Officers in terms of Section 42(6) of the Land Revenue Act, 1967 even though the District Collector/Sub-Divisional Collectors have the supervisory control However, the stand of the Deputy Commissioner/Collector, Lahore is that under his supervisory jurisdiction he can interfere in the working of the Revenue Officers under bis administrative control to perform the duty of sanction of mutation under Section 42 of the Land Revenue Act and that he can appoint/nominate any other person than the Assistant Collector Grade- I Assistant Collector Grade-II for attesting the mutations. In this regard order dated 4.5.1999 passed .by the Deputy Commissioner/Collector, LahoreDistrict was referred to.

4. This is the proper stage to reproduce as under Section 42 of the land Revenue Act, 1967 as the controversy in hand revolves around and is to be settled in the light of the same:-

Section 42. Making of that part of periodical records which relates to landowners.-(l) Any person acquiring by inheritance, purchase, mortgages, gift, or otherwise, any right in an estate as a landowner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to ihepatwari of estate, who shall-

(a) record such report in the Roznamcha to be maintained in the prescribed manner;

(b)furnish a copy of the report so recorded, free of cost, to the person making the report; and

(c) send a copy of the report, within a week of its receipt by him, to the Union Committee, Town Committee or Union Council within which the estate is situated.

(2) If the person acquiring the right is a minor, or is otherwise unable to report, his guardian or other person having charge of bis property shall make the report to the patwari.

(3) ThepaOuari shall enter in his register of mutations every report made to him under sub-section (1) or sub-section (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid hich he has reason to believe to have taken place, and of which report should have been made to him under either of those sub-sections and has not been so made.

(4) The report made to the patwari under sub-section (1) or sub­ section (2) or recorded by him under sub-section (3) shall be displayed in such manner as may be prescribed.

(5) If the patwari fails to record or to display a report made to him under sub-section (1) or sub-section (2); the person making the report may make the report, in writing, to the Revenue Officer concerned and the Chairman of the Union Committee, Town Committee or Union Council in which the estate is situated, by registered post acknowledgment due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations.

(6) A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing sub-sections, report should have been made to the patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.

(7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order of decree of a Court, the Revenue Officer shall make the order under sub-section (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or Members of Union Committee, Town Committee or Union Council concerned, whose signatures or thumb-impressions shall be obtained by the Revenue Officer on the register of mutations.

(8) An inquiry or an order under sub-section (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the inquiry, relates.

(9) Where a Revenue Officer makes an order under sub-section (6) in regard to the acquisition of any right, an entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of any entry in any record previously prepared, which, by reason of the acquisition, has ceased to be correct.

(10) If within three months of the making of a report of the acquisition of a right under sub-section (1) or sub-section (2), or the recording by ihepatwari of an entry in the Roznamcha under sub­ section (3) respecting the acquisition of any right, no order is made by the Revenue Officer under sub-section (6), he shall report the cause of delay to the Collector in the prescribed manner. I'll) The Revenue Officer shall, la the prescribed manner, send or cause to be sent, the gist of an order made by him under sub-section. ('6) to the person whose right is acquired, and also to the Union Committee, Town Committee or Union Council in which the estate is situated."

1. It is important to note that Mr. Fawad Hassan Fawad Deputy Cominissioner/District Collector, Lahore is desirous that the mutations may be sanctioned by Dr. Pervez Ahmad Additional Deputy Commissioner i General) Headquarters, Lahore with the help of the Assistant Commissioner (Revenue) Lahore and the concerned Circle Revenue Officer. He issued office order dated 4.5.1999 in this regard. I would express that it is a Eiaoer essentially of law and propriety that a dispute is to be first disposed of by the Court of lowest grade. In the instant matter the Assistant Collector Grade-I/Grade-Hie. Tehsildar(Revenue) anANaib TehsildarRevenue) are the Revenue Officers within the purview of Section 42(6) of the Land Revenue Act, 1967 before whom the Patwari Halqa according to the allocation of Revenue Circles amongst them (Tehsildars and Naib Tehildars) has to place the papers for sanction of the mutation in terms of the said Section 42 of the Act. The aforesaid notification dated 1.7.1991 has empowered the District Collector/Deputy Commissioner for allocation of Revenue Circles amongst Tehsildars and Naib Tehsildars. A perusal of Sections 14 to 17 of the Land Revenue Act reproduced above has made out that the District Collector has not been made competent to transfer whole of the work of the Revenue Officer to an other Officer at high pedestal exercising the powers of Assistant Commissioner/Collector in the Province of the Punjab except the District of Lahore wherein the powers of Collector have been conferred upon Additional Deputy Commissioner (General) City Lahore and Additional Deputy Commissioner (General) Cantt. Lahore. If the office of Additional Deputy Commissioner (General) Headquarters, Lahore is different one from the office of the Additional Deputy Commissioner (General) City Lahore and the Additional Deputy Commissioner (General) Cantt. Lahore, he stands eclipsed in toto and absolutely as in Notification dated 1.7.1991 the Additional Deputy Commissioner General) Headquarters, Lahore has not been conferred the powers of the Collector, Lahore within his specific jurisdiction. However, if he is one of the aforesaid two officers of the revenue hierarchy he cannot exercise the said power as in view of my aforesaid reasoning he cannot be allocated this power of attestation of mutations and Assistant Commissioner (Revenue) Lahore finds no place any where in this regard who may have been appointed for the reasons best known to the Deputy Commissioner, Lahore. I would again express that the concerned Circle Revenue Officer who has been allocated the relevant Revenue Circle is competent to take up the matters of the mutations who obviously can pass the order in accordance with law by forthwith sanctioning or rejecting the mutation or by holding the inquiry and passing the appropriate order thereafter. A perusal of sub-section (10) of Section 42 of the Land Revenue Act, 1967 has made out that in case the mutation is not sanctioned in terms of sub-section (6) within three months of making of report of acquisition of a right, the Revenue Officer shall report the cause of delay to the Collector in the prescribed manner. This sub-section (10) has clearly projected that the District Collector cannot allocate the functions of a Circle Revenue Officer to the Collector i,e. ADC(G) City Lahore and Cantt Lahore. The class of Revenue Officer in terms of Section 17 of the Land Revenue Act, 1967 has been specified in Section 42(10) ibid which shall play the practical legal role. The matters have to be taken stepwise keeping in view the provisions of Sections 7, 17, 42 and 161 of the Land Revenue Act, 1967. However, on any transfer application the matter(s) for cogent reason(s) can be transferred to other Circle Revenue Officer. Even according to the Notification dated 1.7.1991 the District Collector can make allocation of Revenue Circles among Tehsildars and Naib Tehsildars, But all the duties of the Circle Revenue Officers cannot be allocated and this power cannot be invested to some other Revenue Officers at the higher pedestal.

2. This is the proper stage to refer to letter dated 20.1.1994 addressed by the Board of Revenue Punjab to all the Deputy Commissioners and other Officers of revenue hierarchy in Punjab. The Board of Revenue Punjab has specifically expressed that the role of the Verification Committee would be restricted to the issuance of the certified copies of the original documents available on record, that the revenue field officers may enter the mutations on the certified copies after their personal satisfaction and discretion and that the Board of Revenue will be more than ready for any personal verification of certified copies/records for the facility of the field officers for the purposes of mutation. This letter dated 20.1.1994 has specifically made out that the certified copies of the original documents available on record shall be issued and that the field officers in Civil District Lahore may proceed further to sanction the mutation. This letter dated 20.1.1994 contains the mode of application of Section 42 of the Land Revenue Act, 1967 regarding the sanction of mutations. Even the inquiry can be conducted by the Revenue Officer at his end while deciding the dispute/matter of mutation. It is simply surprising that whole of the exercise in the matter is being carried out to improve and enhance the powers of the Deputy Commissioner as well as the Additional Deputy Commissioner (General) Cantt Lahore and Additional Deputy Commissioner (General) City Lahore without substantive legal sanction of the relevant statutory law. An important point to be noted at this stage is that in case the powers of the Cirde Revenue Officers are allowed to be exercised by the Additional Deputy Commissioner (General) Cantt. Lahore and Additional Deputy Commissioner (General) City, Lahore as required and desired by the Deputy Commissioner, Lahore the aggrieved party of the mutation, sanctioned or rejected by the Revenue Officer under Section 42(6) of the Land Revenue Act, shali lose one right of appeal as under Section 161 of the Land Revenue Act, 1967 such a parly can prefer an appeal before the Collector after the decision of the mutation either way by the Revenue Officer, However, if the mutation issanctioned or rejected by the Collector he shall have to prefer the appeal before the Commissioner of the Division/Additional Commissioner (Revenue.) keeping in view the allocation of powers. Due to the statutory law about the right of appeal, order of the Deputy Commissioner, Lahore with respect to the matter in hand can safely be held, to be violative of Article 25 of the Constitution, 1973 which provides that all citizens are equal before law and are entitled to equal protection of law. If in other districts of the Province cf the Punjab the mutations of all types including the acquisition of title ce the basis of PTDs/TOs are being sanctioned by the Revenue Officers of the concerned circles, no discrimination can be allowed to take place in Civil District of Lahore on the basis of the order passed by the Deputy Commissioner, Lahore particularly when Section 17 of the Land Revenue Act. 1967 is relevant as the class of Revenue Officers by whom any function is tc be performed is specified therein. Under Section 42 ibid the mutations are to be sanctioned by the Circle Revenue Officers i.e. Tehsildars and Naib TehsiLdzrs according to the allocation of Circles by the Deputy Commissioner and not by the Collector assisted by a team. Article 4(1) of the Constitution 1973 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' If a Notification has been provided to the be issued under the aforesaid Section 17 ibid, that has to be followed in view of Article 4(1) of the Constitution 1973. I would express that the violation of the statutory law by the Deputy Commissioner, Lahore cannot be allowed by this Court. Not only that his order is violative of statutory provisions contained under Section 42(6)(1G.) of the Land Revenue Act, 1967 as the Cirde Revenue Officers are not being allowed to sanction the mutations pertaining to the matters of acquisition of title through PTDs/TOs, the litigants/owners of the aforesaid type of property are also losing right of an appeal as expressed and projected above. The acquisition of title in any form provides cause of action to the person acquiring the property and in the aforesaid Section 42 there is no specification that the mutations regarding acquisition of property through PTDs/TOs issued by the Settlement and Rehabilitation Department shall be treated in a different manner. Further the Assistant Commissioner (Revenue) finds no mention any where in Section 42 of the Land Revenue sAct who has been empowered by the Deputy Commissioner in the matter 'without any valid authority keeping in view Sections 14 to 17 of the Land D Revenue Act During the arguments it was brought to my notice that Mr. | Khusbi Muhammad Nazir Extra Assistant Commissioner (Revenue) Lahore 'working under the administrative control of the Deputy Commissioner, Lahore has to give Ms report and thereafter the disputes about the mutations are settled i.e. the mutations are either sanctioned/attested or rejected, I wonder as to how the said Extra-Assistant Commissioner (Revenue), Lahore can proceed in the matter when the same has to be taken

up by the Circle Revenue Officer.

1. It is proper to refer to famous maxim "A Communi Observantia nan est recedendum" which means that "where a thing was provided to be done in a particular manner it had to be done in that manner and if not so done same would not be lawful". It is proper to record that it is well recognized rule of construction that when a power is given to do a certain thing in any certain way that thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.

2. The apprehension of Deputy Commissioner, Lahore that the Revenue Officers may not pass the orders detrimental to the interest of the State on extraneous considerations need not be given the weight as he has to shorn' the skill of his own control over his subordinates so as to work in accordance with lav/, honestly and diligently. The expression of no- (•oafideaee of general nature in the working of the Circle Revenue Officers can neither be appreciated nor allowed or approved. If this idea is given the weight then one fine morning an other officer sitting at the higher pedestal of the revenue hierarchy may deprive the Deputy Commissioner/District Collector of bis powers on the basis of the expression of no confidence of the aforesaid type. The classes of Revenue Officers are mentioned in Section ? of he Laud Revenue Act, 1967 and all of them have to work within their own parameters in view of the statutory laws/rules/Notifications. The Circle Revenue Officer must be keeping quiet and silent being helpless as the subordinates of the Deputy Commissioner, Lahore as well as Additional Deputy Commissioner (General) City Lahore/Cantt Lahore whose Annual Confidential Reports have to be written by them. There is the common saying that "a boss may not be always right, but a boss is always a boss". What more can be expressed in this regard? There is no need to pass such orders which are without jurisdiction and do not form part of the statutory laws. The people face the inconvenience and the difficulties and it would not be out of place to express that the people of Civil (Revenue) District Lahore have already faced much of the inconvenience due to the passing and operation of the order under analysis and it is hoped that the same would be redressed and mitigated in future.

3. it is proper to express that Section 42 of the Land Revenue Act, 1967 deals with the procedure for making that part of periodical record which relates to the land owners in the Province of the Punjab. According to sub-section (6) of the said Section 42 the mutation of inheritance, purchase,mortgage, gift or acquisition of any right otherwise is sanctioned by the Revenue Officer after the entry is made by the Patwari,verified by the Halqa Qanungo and placed before the Tehsildar or the Naib

Tehsildar, Assistant Collector Grade-I or Assistant Collector Grade-II who can sanction or reject the mutation according to the allocation of revenue circles amongst them by the District Collector as mentioned in the aforesaid reproduced Notification dated 1,7.1991, If any interested person is aggrieved by the order of the sanction or rejection of a 0iutation an appeal is competent under Section 161 of the Land Revenue Act, 1967 before the Collector when the order is made by the Assistant Collector of either Grade. ccording to the aforesaid Notification dated 1.7.1991 read with Section 161 of the Land Revenue Act, 1967 the appeal is maintainable before the Assistant Commissioner (in Lahore ADC(G) City Lahore/Cantt. Lahore.? Exercising the powers of Collector and not before the District Collector. The appeal is rnairiainatle before the Commissioner when the order is made by a Collector and the appeal is preferred before the Board of Revenue only on a pom: of law when the impugned order is passed by the Commissioner. It. \vould be- proper to repeat that a careful perusal of Section 161 of the Land Revenue Act, 1967 read with the aforesaid Notification dated 1.7.1991 has made cut that the District Collector/Deputy Commissioner stands eclipsed therefrom. It would be proper to record the passing remark that the vires of a mutation sanctioned by the Assistant Collector Grade- /Grade-11 (Tehsi'.diir/'Xaib Tehsildar) cannot be examined and analysed by the District Collector of any District in the Province of the Punjab, Rather he is not competent to entertain any appeal or even any miscellaneous application in the light of the aforesaid otification dated 1,7.1993. In this regard reliance is placed on Nazar Muhammad versus Deputy Commissioner Bhakkar (1999 Law Notes Lahore 209), of which 1 am the author. The nature of the cases of which District Collector can take cognizance have been enumerated therein the said Notification dated 1.7.1991 who can proceed on the judicial side and can also pass the orders on the administrative side thereof. Under the aforesaid Notification dated 1.7.1991 the Deputy Commissioner can take cognizance of an appeal against the orders of Assistant Collector 1st Grade in cases of partition. I would express that the lav/ on the subject referred to above and seme of which has been reproduced has made out that the District. Collector and the Collector cannot control the Circle Revenue Officers so as to assume their judicial role. This impression stands shattered in view of the very issuance of the aforesaid Notification dated 1.7.1991 whereby the arrangement has been made about the conferment of powers of Collector on the Assistant Commissioners in the Province of the Punjab excluding the civil District of Lahore wherein the powers of Collector have been vested in the Additional Deputy Commissioner (General) City Lahore and Additional Deputy Commissioner (General) Cantt. Lahore. I would hold that about the

exercise of powers of District Collector the water-tight, compartment of jurisdiction have been established/created by specifically enumerating his domain in the revenue hierarchy.

1. With all the regards to Mr. Fawad Hussan Fawad Deputy Commissioner/District Collector, Lahore perhaps he is under the impression that he has the supervisory jurisdiction upon his subordinates in the District in their judicial working/powers as well as by taking up and transferring of the matters of sanction of mutations to the Additional Deputy Commissioner (General) City Lahore and Additional Deputy Commissioner (General) Cantt. Lahore in toto. I would express that a District Head of every department has been empowered to control and supervise the working of his subordinates. It is on this aspect of matter that he has to write the Annual Confidential Reports of his subordinates wherein he has to assess their general working. However, the impression of the Deputy Commissioner/District Collector, Lahore is violative of good governance which can materialise if the law of the land is respected by the civil servants. No doubt he is the representative of the State, However, he cannot be allowed to project his powers and authority in this illegal unauthorized manner. The important point to be kept in mind is that the power and authority to set the law in motion is linked with the substantive andprocedural jurisdiction. He cannot interfere in the jurisdiction of any other officer keeping in view the water-tight compartments of jurisdiction enumerated in Sections 7, 17, 42 and 161 of the Land Revenue Act, 1967. The jurisdiction of one subordinate Officer cannot be exercised by the Officer of the same Department posted at the high pedestal unless provided by the statute which is lacking in the instant matter.

2. No doubt this writ petition has been filed against the Additional Deputy Commissioner (General) Cantt. Lahore, yet the dispute is based on the order passed by the Deputy Commissioner, Lahore making the arrangement for sanction of mutations pertaining to the property acquired through PTDs/TOs issued by the Settlement and Rehabilitation Department empowering the Additional Deputy Commissioner (General) Headquarter Lahore to the exclusion of the Circle Revenue Officers practically. As such the -vires of the said order passed by the Deputy Commissioner Lahore have been dissected and analysed.

3. I deem it proper to refer to the plight of the writ petitioner. He made the application before the ADC(G) Cantt Lahore on 9.8.1995 for sanction of mutation which remained pending. The letter was sent on 19.9.1997 to the Secretary (S&R) Board of Revenue, Punjab, Lahore for verification of the title of the petitioner and the same was verified vide letter dated 6.12.1997. Thereafter the matter was referred to Tehsildar (Revenue Officer) for inquiry who submitted the report in favour of the petitioner. Even then the ADC (G) Cantt. Lahore sent the papers to the Deputy Commissioner Lahore seeking permission for sanction of the mutation. The substantive and procedural law incorporated in the Land Revenue Act, 1967 does not provide to face such an ordeal by the writ petitioner or any other citizen having the rights thereof.

4. The contention raised by the ADC (G) Cantt, Lahore respondent that the writ petition could not be filed as efficacious remedy is available to the petitioner in revenue hierarchy need not be given the weight, la this regard suffice it to express that against the order on the administrative side passed by the Deputy Commissioner, Lahore no remedy has been provided in the I .and Revenue Act, 1967. Further denial of the right of the petitioner j and refusal to sanction the mutation by keeping the matter pending for) about three years had conferred the right on the petitioner to invoke the help j of this Constitutional Court through the filing of this writ petition. I would j express that provisions of Article 199 of the Constitution 1973 confer very I wide powers on High Court for enforcement of undamental and legal rights. | It would be proper to express that Article 199 of the Constitution provides j remedy for the infringement of fundamental and legal rights of the persons, f G However, the condition precedent to the granting of any relief under the said Article 1 £9 of the Constitution, 1973 depends on existing of fundamental aad j legal right of a person and of infringement of such right. Further the right j which is the foundation of Article 199 of the Constitution is a personal and individuaJ right The legal right may be a statutory right recognized by law. A person could be said to be aggrieved when a person was denied a legal j rig h: by some one who had legal duty to perform relating to that right which j in thds :ase are the ADC (G) Cantt. Lahore and the Deputy Commissioner Lah ere Hence th'g writ petition is maintainable.

5. Consequently it can safely be held that the mutations are to be j sa^crc-ed by the Circle Revenue Officers under Section 42 of the Land j P-eve- ue Act, 1967 and that the office order dated 4.5,1999 passed by Mr. j Fawad Hassan Fawad Deputy ommissioner/Collector, Lahore District appcizizg Dr. Pervez Ahmad Additional Deputy Commissioner (General.) HKsad Barter, nhere to exercise the power of Revenue Officer in terms of j Secicr 42'6; of the Land Revenue Act for the attestation of mutations agairr. ±e PTDs/TOs issued by the Settlement Department for the District of Lah;re with the help of the Assistant mmissioner/Collector, Lahore j aj;d ecnserned Circle Revenue Officer is without jurisdiction, without) au\hor::y. illegal and coram-non-judice.

6. The only irresistible conclusion which can be drawn from the i aforesaid analysis of the matter and the discussion is that the Deputy j Commissioner/District Collector, Lahore is not competent to deviate from ! I the statutory provisions of Section 42 of the Land Revenue Act, 1967. It is j proper to express that whole of the dispute has been settled keeping in view j the convenience of the other citizens/land-owners whose mutations are not being sanctioned who have to enter the portal of this Constitutional Court. They have the same type of grievance and are entitled to the same legal facility and same relief. To enter into the litigation has never been liked in our social set-up. The pendency of the litigation quite in rife is already a source of inconvenience to the public at large. As such a copy of this judgment shall be sent with his covering letter by the Registrar of the Lahore High Court, Lahore to the Deputy Commissioner/District Collector, Lahore to proceed further in accordance with law as provided under Section 42 of the Land Revenue Act, 1967 whereby Circle Revenue Officers have to attest the mutations and, accordingly, they shall perform the said duty.

7. In consequence the Deputy Commissioner/District Collector, Lahore shall send all the pending mutations to the Circle Revenue Officers within a period of one month from the date of receipt of the copy of this judgment and the same shall be disposed of within a period of three months therefrom in terms of Section 42(6X10) of the Land Revenue Act, 1967 so that the difficulty of the concerned transferees/owners stands redressed. The complaint about the working of the Patwariswas brought to the notice of this Court shall be watched and dealt with iron hands and in this regards their transfers may be made to non-lucrative posts. Since it is a case of public interest litigation, there shall be no order as to costs.

(B.T.) Petition accepted.

PLJ 2000 Lahore 518

Present: DR. MUNffi AHMAD MUGHAL, J. SHAM1M AKHTAR-Petitioner

versus

GHULAM All-Respondent

C.R. No. 596-D of 1992, heard on 1.6.1999.

Dowry--

—S. 115 CPC--Reeovery of dowry-Suit for-Decreed by trial Court, set aside by Addl. District Judge through which he partly decreed suit-Appreciation of evidence-Revision against-From evidence it stood proved that defendant could not produce any evidence in rebuttal regarding fact of taking away of any article of dowry from house of respondent-defendant as witnesses produced by him, DW-2 has admitted that he was not present at time of taking away of articles by plaintiff and bis wife was present who has not been produced to acid test of cross examination-Statement of plaintiff has been fully corroborated by PW-2 who is neighbour and independent person and PW-3, her real brother, who was best witness regarding article of dowry in dispute because it was he who had given all these articles as her father had already died-Held: Both Courts below have either misread evidence or totally ignored proved evidence on record whereby there has been gross miscarriage of justice-Civil Revision accepted and suit decreed to extant of Rs. 21.416/-.

[Pp. 523 & 524} A & B

Mr. HamidAli Mirza, Advocate for Petitioner, Mr. Shah Muhammad Chaudhry, Advocate for f Date of hearing: 1.6.1999.

judgment

In this petition the petitioner has assailed u t dated 14.12.1991 passed by the learned Add! DiiL. • J whereby he set aside the judgment and decree of ihe u Jaranwaia dated 21.1.1991 through which he p '24

3, The learned Judge, Family Court decreed t Rs. 16.15-} -. The value of the articles which weie p\c the une c: marriage was deducted from the dam" 1 appeal in the Coun of District Judge and during the peu'I the r-a^ement of the respondent was recorded J a;- . whereir he repeated the names of articles which were ^I'rgetji >• petiucner and were in his possession and he was read,, t._t.m-The ".earned appellate Court virtually dismissed the s'.u •-' ?h« ezcep; to the extent of return of the aforementioni i'm-', judgment and decree dated 14.12.1991.

4, Learned counsel for the petitioner has hu- ... 7v 1U reascn:ng given by the learned appellate Court it spped s it, appellate Court and the respondent have bestowed a I petitioner by voluntarily making a statement and pabbu.f decree respectively, otherwise the judgment, goes to su,.,ky t could be passed in favour of the petitioner and that it a, that the respondent had himself stated in his staterujuf Appellate Court that the articles were given tothe petit one, her marriage and has nowhere stated about the taking lk n the petitioner and that it appears that the Coun was pul. _ I cause of the petitioner and that the lower Appellate pain in picking-up the minute but natural discrepanue' . evidence and claim of the petitioner. It is further s«hnrn be out of place to submit that the amount of Rs. 24 S I been fixed as though large but the amount could haAsr tt, the payment of Court fee which the petitioner could value of the articles of dower was in much excess of the amount claimed and that the lower Appellate Court has exercised a jurisdiction not vested in it and that the evidence of the petitioner has not been read in its true perspective.

1. On the other hand, learned counsel for the respondent has opposed the petition on the ground that revision is not competent as not rovided under the West Pakistan Family Courts Act, 1964. He further submitted that this Court cannot go into the inference drawn from certain facts by the two Courts below even if these were not correct or proper.

2. The objections of the learned counsel for the respondent are not legally sound as the suit for the recovery of dowry was instituted on 3.10.1989 and the judgment and decree was passed by the learned Civil Judge on 21.1.1991 and appeal was preferred before the learned District Judge on 14.2.1991 which was decided on 14.12,1991 and at the relevant time, the revision petition under Section 115 C.P.C, was fully competent as the item of dowry was not included in the Schedule to Section 5 of the West Pakistan Family Courts Act, 1964. The said Act was amended by the Act No. VII of 1997 which was enforced on 26.4.1997 whereby item of dowry was added at Sr.No. 8 of the said Schedule.

3. In the case of N.M. Khan and another vs. The Chief Settlement and Rehabilitation Commissioner, Pakistan Lahore and another (1970 SCMR 158), the Hon"ble Supreme Court of Pakistan observed that the question whether an inference follows from certain facts or not, is a question of law. It was further observed that where, therefore, the view that prevailed with the tribunals below had been influenced by an erroneous deduction from facts which manifestly could not support such an inference, reduced their decision to an arbitrary and illegal exercise of power and threw it open to review in writ jurisdiction by the High Court.

4. In the case of Manager Jammu & Kashmir State Property in Pakistan vs. Khuda Yar and another (PLD 1975 S.C. 678), the Hon'ble Supreme Court observed that the scope of revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respect inasmuch as, firstly, its discretionary jurisdiction may be invoked by the Court suo motu and, secondly, the Court may make such order in the case as it thinks fit.

5. In the present case, no evidence at all was existing on the record to substantiate the inference dx-awn by the learned Civil Judge whereby he reduced the amount claimed by the plaintiff and similarly, no reasonable man would draw the inference which was patently wrong as drawn by the learned Addl. District Judge.

6. Now the question is, should the case be remanded back to the trial Court to assess the evidence available on record correctly or to save the time of the parties to be assessed by me here/1 am of the considered opinion that as the High Court can in its revisional jurisdiction go into the question of fact as well, the assessment of the evidence in presence of both the learned counsel for the parties is in the ends of justice.

7. There is no controversy about the entitlement of the plaintiff to recover the cost of the articles of dowry. The only dispute between the parties is as to how much cost is payable by the respondent According to plaintiff, the cost of the said articles is Rs. 24,800/- and according to defendant, it is only to the calculated of a table, a bed, a cot and two chairs which according to the price mentioned in the list of articles of dowry comes to Rs. 2.400/-.

8. Basically, the burden of proof is on the plaintiff an d to discharge this burden, she was examined three witnesses including herself.

9. Petitioner/plaintiff Mst. Shamim Akhtar appeared as PW-1 who deposed that the dowry given by her parents was brought by her to the house of the defendant/respondent at the time of her Rukhsati and the said dowry is now in the possession of efendant/respondent and that her dowry included golden ornaments of the kind of ear rings l\ Tola, two finger rings of one Tola 12, silken bed, 17 pairs of cloths, two iron boxes (Paties), four plungs, four chairs, one Doli,one table, one pedestal fan, one iron, one sewing machine, 60 utensil (big and small) of the value of Us. 24,800/-. In her cross-examination, she deposed that the amount of Rs. 24,SOO/- included a finger ring, 8 pairs of clothes and a watch which was given by her parents to the defendant. She also deposed that the golden ring was of one Tola and the price of watch was Rs. 1,000/- and the price of 8 pairs of cloths was Rs. 800/-. She also admitted that she had used one pair of cloth which was given by the defendant and she has not yet used her own pairs of cloths. She also admitted that the list of the said dowry was not prepared at the time of marriage and that she did not remember the colour of the clothes. In her eposition in the cross-examination, she gave the details of the untensil as including one Paraat, a \AgDegcha, &Karahi,a Chhanana, a brass bucket, a Degcha, a jug, a lota, a thaal, six brass plates, six glasses and six cups etc. and that all the untensil were 60 in number including steel utensil. She deposed that the electric iron was foreign made. She had no knowledge of the manufacturing company of the pedestal fan and also of the sewing machine. She denied of having taken away with her when she was ousted the olden ornaments weighing 10 Tolas, silken clothes 30 pairs and a cash of Rs. 7,000/-. She specifically stated that it was incorrect that her parents had not given the said articles to her. She also stated that it was also incorrect that the iron boxes were not given to her or that no bed was given to her. She explained that the dowry was given by her brothers which she was stated as given by her parents.

10. PW-2 also stated that two boxes, four plungs, 12 beds, six untensils, a fan, a sewing machine, an iron, a Doli, ornaments, wearing cloths, four chairs and a big table were given. In his cross-examination, he deposed that the brother of the plaintiff had calculated the dowry and had told that it was of the cost of Rs. 24.800/-.

11. PW-3 Muhammad Aslam deposed that the dowry included 1\ Tola ear rings, two finger nngs of one Tola, a male finger ring of one Tola, 17 lady suits, 8 gents suits, 12 beds (six silken and six warm), four plungs, two iron boxes, a big table, four chairs, one Doli, 60 utensils, a fan, an iron, a sewing machine and a gents watch of the value of Rs. 24,800/-, He also deposed that when the defendant gave beating to the plaintiff and ousted her, she came only with the clothes that she had worne and nothing from the dowry had brought with her and when the defendant gave divorce to the plaintiff, he had not returned anything out of the dowry to her. All the articles were taken to the house of the defendant by the plaintiff at the time of her Rukhsati and the said articles are still in the possession of the defendant.

12. On the other hand, the defendant has examined himself as DW1 and stated in his examination-in-chief that the parents of Mst. Shamim had given to her in dowry a cot, two chairs, a table, a bed and 5/6 pairs of cloths. She had worn two pairs of clothes and took away three pairs of clothes alongwith her and that Rs. 4,OQO/- were taken from him by Muhammad Aslam, the brother of the plaintiff as expenses of the marriage. He further deposed that Muhammad Aslam brother of the plaintiff had beaten his parents in bis absence and took away all the clothes, an amount of Rs. 7.000/- and 30 pairs of silken Japanees suits alongwith them. The plaintiff also took with her five Tolas golden ornaments which were given by him besides five Tolas golden ornaments of his mother which were kept in the house. In his cross-examination, he admitted that he is nine class pass and had got the written statement dictated himself to the Advocate and had signed it after reading its contents and had not dictated about Rs. 4,000/- an4 ornaments as having taken away by the plaintiff. He also admitted that he had not lodged any FIR regarding the incident that the plaintiff and her brother had beaten his parents. He admitted that the articles given by the parents of the plaintiff were brought by her in his house. He stated that it was incorrect to suggest that the plaintiffs parents had given her 1 \ Tola ornaments and an iron box. He admitted that parents or heirs had given her four pairs of cloths. He stated that it was incorrect to suggest that the parents of the plaintiff had given 60 untensil, a sewing machine, a watch, an iron, 17 pairs of cloths to her and 8 pairs of cloths to him. He also admitted that the fact regarding taking away of the above articles, ornaments and beating was told to him by his parents. He also deposed that he took Panchyat in the year 1987-88 alongwith Ghulam Mustafa Exchairman Union Council, Abdul Hayee AST retired, Bashir Ahmad Awan and Ghulam Qadir Advocate and Muhammad AH.

13. Muhammad AM DW-2 has also appeared and stated that the articles of dowry given to the plaintiff were a cot, a bed, 4/5 suits, two chairs and a table. He also deposed that when the plaintiff side came to the house of the defendant to take divorce, they quarreled with his parents and took away the articles etc., in a box. He also deposed that they had brought Rs. 7,000/- with them in cash and the plaintiff took away ornaments and 30 Japanees suits. In his cross-examination, he admitted that when the plaintiff and her brother came to the house of the defendant and had taken away the articles and had beaten the parents of the defendant, he was not present at the spot, However, his wife was present there and she had told the whole story to him. He also deposed in the cross-examination that the defendant had given 5/6 Tolas ornaments and 10/15 suits. He also admitted it as correct that the articles and ornaments which were given by the defendant to the plaintiff were brought by her in the house of the defendant. He denied the uggestion that when the plaintiff went out from the house, she had gone empty handed.

14. This is the whole evidence on the record. Additionally, learned Addl. District Judge also recorded the statement of the appellant/defendant (now respondent in this revision petition) On 14.12.1991 in which he admitted that from out, of the dowry of the respondent (plaintiff-petitioner), a table, a bed, a cot, two chairs and a big table were with him.

15. Prom the above evidence, it stood proved that the defendant could not produce any evidence in rebuttal regarding the fact of taking away of any article of dowry from the house of the respondent-defendant as the witness produced by him namely, Muhammad AM DW-2 has admitted that he was not present at the time of taking away of the articles by the plaintiff and his wife was present who has not been produced as a witness, as had she been produced, she would have been put to the acid test of cross- examination. The statement of the plaintiff has been fully corroborated by PW-2 who is a neighbour and independent person and PW-3, her real brother, who was the best witness regarding the article of dowry in dispute because it was he who had given all these articles as her father had alreadydied.

16. In this view of the matter, the suit should have been decreed fully but there is also force in the argument of the learned counsel for the respondent that the Mst of dowry mentions of 3% Tolas ornaments while according to evidence on the record that has come from the side of the plaintiff, the weight is one Tola less. In this manner, the cost mentioned in the list of dowry being Rs. 11,000/- for 3\ Tolas, the cost of 2\ Tolas will come to Rs. 7.616/- and the total amount of dowry will come to Rs. 21.416/- after deducting the above amount

17. The above discussion shows that both the Courts below have either misread the evidence or totally ignored the proved evidence on the B record whereby there has been gross miscarriage of justice. As such, this Civil Revision is accepted, both the judgments and decrees of the Courts below are set aside and the suit of the plaintiff is decreed to the extent of Rs. 8 21,416/-. There is no order as to costs.

18. At this stage, learned counsel for the respondent has prayed for time to deposit the decretal amount in instalments. Time of three months is granted to the respondent to deposit the decretal amount of Rs. 21.416/-with the learned trial Court.

(B.T.) Petition accepted.

PLJ 2000 Lahore 524

Present: CH. LJAZ AHMAD, J. CH. MUKHTAR AHMAD-Petitioner

versus GOVERNMENT OF PUNJAB and others-Respondents

W.P. No. 5065 of 1999, heard on 10.6.1999.

Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)-

—S. 10-Constitution of Pakistan (1973), Art 25 & 199-Un-authorised occupants of Government land were offered to purchase land in their occupation on specified price determined by Board of Revenue—Petitioner was also one of occupants, and he had also approached Authority alongwith others for purchase of land under his occupation but inadvertently his name was left out-Petitioner's subsequent move to purchase land in his occupation did not bear fruit, therefore he approached High Court for redress of his grievance-Petitioner being co- applicant with others and application as a whole having been accorded sanction by Board of Revenue, coupled with admission of Authorities that his case was left out inadvertently, vested right had accrued to petitioner to be dealt with similarly as other co- applicants-Petitioners being ready to purchase land in question on basis of latest price assessed by District Price Committee, coupled with specified conditions, therefore, respondents were bound to sell the same on price fixed by District Price Committee—Action of respondent in refusing to implement its decision to sell the land excepting their from petitioner's name was in violation of Art. 25 of the constitution—Yard stick must be identical in identical cases- Discrimination and different treatment must be avoided to similarly placed persons-Respondents were directed to sell land in question, to petitioner at specified price alongwith conditions prescribed by them in other cases. [P. 527] A

PLD 1978 Lah. 912; PLD 1994 Lah. 3; PID 1975 Lah. 7; PLD 1995 SC 530; 1991 SCMR1041; 1996 CLC 1783 ref.

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

Mr. Muhammad Nawaz Bhatti, A.A.G. for Respondents.

Date of hearing: 10.6.1999.

judgment

The brief facts giving rise to this writ petition are that some residents of 'D' Block Satellite Town Sargodha (90 in numbers) submitted an application before the Chief Minister in September 1989 requesting for selling of state land lying vacant between the Railway Lane and their houses to the owners of respective houses. They undertook to pay the price of the land. The application received through Board of Revenue was processed and ultimately BOR/Govt of Punjab Colonies Deptt vide letter dated 27.6.1991 accorded sanction to the sale of total land measuring 27 Kanals and 12 Marias to the occupants of adjacent houses @ Rs. 20,000/- per Maria plus 10% Surcharge on account of sale by private treaty plus 50% penalty for un­authorised possession with certain conditions mentioned therein. The aforesaid letter was implemented by the respondents in letter and spint but the land in possession of the petitioner measuring 8 Marias & 156 sq.ft. was not included in the list prepared by the Revenue field staff. The petitioner preferred an application after four years of aforesaid sanction by the BOR which reveals that he also opted to purchase the land in question on the market price rate as per policy on the subject The BOR called for a report from D.C. Sargodha, who sent the same to Respondent No. 1 for necessary action/appropriate orders. The BOR Punjab required D.C. Sargodha to get XOC from the Municipal Committee and sent the same alongwith fresh sale price duly assessed by the District Price Assessment Committee. The case was forwarded to Respondent No. 1 through the Commissioner Sargodha on 13.3.1997 to the BOR to the following effect:

"2. It is mentioned that in view of the submissions made by the Deputy Commissioner Sargodha in his report bearing Memo No. 171/CA/UCC dated 20.2.1997 (copy enclosed), there appears to be no need for a fresh NOC from the Municipal Corporation Sargodha. As far as the market price of the land in question is concern, the sale of the land is recommended Rs. 26,000/- per Maria plus 50% penalty for unauthorised occupation plus 10% surcharge for sale by private treaty (instead of Rs. 20,000/-) per Mariasprepared by the Deputy Commissioner due to inflation in rates."

The D.C. also fixed the rate of the land in-question amounting to Rs. 28,000/- per marla in its meeting held on 24.7.1997. Now the respondents refused to implement and accept the aforesaid price and took the stand that th? case of petitioner be processed in accordance with the procedure laid down in Govt letter dated 8.7.1998 i.e. according to the new policy dated 8.7.1998.

1. Petitioner's counsel contended that petitioner is being penalized by the act of public functionaries as is evident from the letter of D.C. dated 7.5.1996 which revels that the instant case is of left over unit because the name of applicant was inadvertantly left over while carrying out survey by the Revenue field staff, therefore, petitioner is entitled to purchase the land in question at the rate prescribed on the application of the petitioner alongwith co-applicants and price was fixed @ Rs. 20.000/- per marla plus 10% Surcharge on account of sale by private treaty plus 50% penalty for un­authorised possession with certain conditions mentioned therein. He further stated that to avoid the litigation the petitioner is ready to purchase the land in question of price fixed by the Price Committee under the direction of MBR in its meeting held on 24.7.1991 fixed Rs. 28,000/- per marla alongwith the condition mentioned in aforesaid letter dated 13.8.1997. He relied upon the following judgments:

(PLD 1978 Lahore 912); and unreported judgment C.R, No. 2050-D/84; and C.R. No. 3394-D/94.

1. Learned AAG., contended that BOR as well as B.C. has no authority to sell the land in question through private treaty to the petitioner. He further contended that respondents have not passed any final order against the petitioner, therefore, writ petition is not maintainable that respondents are ready to process the case of the petitioner and fixed the price in accordance with the latest policy issued by the competent authority on 8.7.1998; that writ petition is not maintainable as the respondents have not passed any final order against the petitioner; that the price fixed by the Price Committee in the light of the meeting dated 24.7.1997 is not final which is subject to the final approval of MBR.

3-A. I have given my anxious consideration to the contentions of learned counsel for the parties. It is admitted fact that the petitioner alongwith co-applicants submitted an application before the Chief Minister Punjab in September 1989, the application was subsequently processed and ultimately BOR Punjab/Govt. of Punjab Colonies Department accorded sanction on 27.6.1991 and fixed the price amounting to Rs. 20,000/- per Maria plus 10% Surcharge on account of sale by private treaty plus 50% penalty for un-authorised possession with certain conditions mentioned therein. It is also admitted fact that the respondents prepared the list for un­authorised occupants as is evident from the letter of B.C. dated 7.5.1996 which reveals "that instant case is of left over unit because name of the applicant was inadvertantly left over while carrying out survey by Revenue field staff. This fact is sufficient to come to the conclusion that the petitioner is being penalized by the act of the public functionaries. It is also settled proposition of law that nobody should be penalized by the act of public functionaries as the principle laid down by this Court (PLD 1994 Lah. 3). It is admitted fact that petitioner has also submitted application to Chief Minister in September 1989; thereafter the BOR accorded sanction on 27.6.1991. The petitioner has accrued vested right, the contention of learned AAG that respondents shall consider the case of the petitioner in accordance with the latest policy dated 8.7.1998 has no force because as mentioned above the name of petitioner was not included in the list prepared by the revenue field staff of the respondents. The respondents did not take any action against the Revenue field staff till date. The respondents did not controvert that the petitioner did not sign the application submitted to the

Chief Minister in the year 1989, therefore, contention of learned AAG that land cannot be sold to the petitioner through private treaty has no force as the petitioner's case must be dealt with in the same manner as large number of seven persons whose cases had been finalised before the revised policy was enforced by letter dated 8.7.1998. If through no fault of the petitioner and on account of the in action on the part of the authorities, Ms application was not decided, he cannot be penalised, I am fortified by the judgment of the Division Bench of this Court, PLD 1975 Lahore 7. As Chief Minister has already granted permission and Board of Revenue has already sanctioned the case of petitioner alongwitb co-applicants in the year 1991, The respondents are harassing the petitioner without any justification, It is settled proposition of law that each and eveiy public functionaries are duty bound to act in accordance with law as is envisaged by Article 4 of the Constitution. The HonTjle Supreme Court has laid dowa guide lines for the public functionaries to act within the framework of Constitution and law in Zahid Akhtar's case (PLD 1995 S.C. 530). It is surprised to note that the case has not been placed before the M.B.R. for consideration, the subordinate has written the letter to D.C. and did not decide the controversy till date and the petitioner was constrained by the aforesaid circumstances to file present writ petition. Since the petitioner is ready to purchase the land on the basis of the i latest price assessed by the District Price Committee in the meeting held on j 24.7.1997, coupled with the conditions mentioned in the letter dated) 13.3,1997, therefore, respondents are bound to sell the same on the price) fixed by the District Price Committee and conditions laid down in the afore- j mentioned letter. It is also admitted fact that petitioner submitted application in September 1989 which was finally accepted on 27.6.1991 by the Member Board of Revenue. Certain rights have already been created in favour of petitioner. It seems to be well settled principle of law that a notification which purports to impair an existing or vested right cannot operate retrospectively meaning thereby notification must have a prospective effect, therefore, case of petitioner does not fall under the latest policy dated 8.7.1998. The action of the respondent is also in violation of Article 25 of the Constitution as the respondent failed to consider his case at par with his co-applicants. The yard stick must be identical in identical cases. It avoided discrimination and different treatment to similarly placed persons, I am fortified by the judgment of the Hon'ble Supreme in LA. Sherwani's case (1991 SCMR 1041). It is also settled law that nobody is allowed to get benefits of his own mis-deeds, therefore, respondents could not earn premium on their own in action. I am fortified by the judgment of this Court 1996 CLC 1783 (G.M. Malik's case).

In view of the aforesaid discussion, this writ petition is accepted with j no order as to costs. The respondents are directed to sell the land in question to the petitioner on the aforesaid fixed price amounting to Rs. 2.800/-alongwith the conditions prescribed in the letter dated 13.3.1997.

(A.P.) Petition accepted.

PLJ 2000 Lahore 528

Present: IHSAN-UL-HAQ CHAUDHARY, J.

ZAMIR AHMAD SHEIKH-Petitioner

versus

PAKISTAN RAILWAYS through CENTRAL MANAGER RAILWAY HEADQUARTERS OFFICER, LAHORE etc.--Respondents

W.P. No. 9175 of 1999, decided on 22.6.1999.

Constitution of Pakistan, 1973--

—-Art 199~President's Order No. (33 of 1962), Art. 3 [as amended by Transfer of Railway's (Amendment) Ordinance 1998]-Writ of quo- warranto—Appointment of Chairman Railways Board challenged to be void and illegal on the touchstone of Art. 3 of President's Order No. 33 of 1962 as amended by Transfer of Railway's (Amendment) Ordinance, 1998--Art 3(1) of President's Order No. 33 of 1962 (as amended) indicates that management of Railways is to be governed by Board consisting of Chairman and five members to be appointed by Federal Government while, sub-Article (2) thereof, provided that Secretary to Government of Pakistan Railways Division would be ex-officio Chairman of the Board and out of members mentioned in sub-Article 1 of Article 3 of the Order—Respondent having never been appointed as member Board of Directors of Railways, lacked one of the qualifications necessary to assume office of Chairman Railways, therefore, he could not assume office of Chairman as per provisions of Ordinance of 1998 also-- Assumption of Office of Chairman Railways Board by Respondent was thus, declared ultra vires of Art. 3 of Ordinance viz. Transfer of Railways (Amendment) Ordinance, 1998. [Pp. 531 & 532] A, B

1995 PLC (C.S.) 567; PLJ 1996 Quetta 57; 1997 SCMR169; 1998 SCMR 220; PLD 1986 Lah. 310; PLD 1994 SC 363; PLD 1998 SC 1; 1998 SCMR 1729;

1999 SCMR 819 ref.

Hafiz Tariq Nasim, Advocate for Petitioner. Sh. Anwar-ul-Haq, DAG for Respondents. Date of hearing: 21.6.1999.

judgment

The relevant facts for the decision of this Constitutional petition are that the petitioner is employed as Deputy Chief Controller of Purchase/CF, Pakistan Railways. The Authority decided to initiate disciplinary proceedings against him. He was accordingly served with a show-cause notice dated 9th ? February, 1999. He submitted the reply thereto. The matter is still under isideration. The petitioner filed a Constitutional petition, whereby he prayed that appointment of Respondent No. 3 as Chairman Railways Board as well as Authorized Officer of the petitioner may be declared void and illegal. It was also prayed that the show-cause notice and all the proceedings in pursuance of the same may be quashed. The writ petition came up for limine hearing on 24th of May, 1999, when it was decided to issue pre­admission intimation to the respondents for 14th of June, 1999 on the point of legality of appointment of the Respondent No. 3 alone. The arguments were heard at some length on this date on the point and the learned Deputy Attorney General requested for time to produce the notification of appointment of Respondent No. 3 as Chairman Railways Board. The case was adjourned to 15th of June, 1999 when the notification was not produced. The petition was admitted to regular hearing and the case was fixed for arguments for today.

1. The learned counsel for t he petitioner argued that the appointment of Chairman Railways Board is governed by Article 3 of the Presidential Order No. 33 of 1962, which was subsequently amended through the Transfer of Railways (Amendment) Ordinance, 1998, promulgated on 28th of January, 1998, according to which the Secretary to the Government of Pakistan Railways Division was to be the ex-officio Chairman of the Railways Board, It is argued that this Ordinance came into in orce on 28th of January, 1998 while the Respondent No. 3 was appointed as Additional Secretary on 28th of April, 1998 and he ex-officio became the Chairman. It is added that this Ordinance stood repealed after four months, therefore, appointment made under the same automatically stood rescinded and terminated and after the repeal of the Ordinance the Federal Government was under legal compulsion to make fresh appointment in accordance with the provisions of P.O. No. 33 of 1962. It is added that every citizen can file a Constitutional petition for issuance of writ of quo warranto. In this behalf reference is made to Article 199(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973 and reliance is placed on the judgments reported as Muhammad Afzal & others v. Gout, of Baluchistan through Secretary S & G.A.D. Quetta & 4 others (1995 PLC (C.S.) 567) and Ijaz Hussain us. Abdul Qayyum (PLJ1996 Quetta 57).

2. On the other hand, the learned Deputy Attorney General argued that the Courts are established and have the jurisdiction as vested in them in view of Article 175 of Constitution of 1973 while the jurisdiction of all the Courts in respect of service matters is barred under Article 212 of the Constitution of 1973. It is maintained with reference to Article 199 read with Article 212 of the Constitution of 1973 that the Constitution made it clear that in the matter of terms and conditions of service of a civil servant, jurisdiction of all the Courts including the High Court is ousted. It is added that the show-cause notice was issued by the Respondent No. 3 as Additional Secretary and for that reason the petitioner addressed the reply also to the Respondent No. 3 as Additional Secretary Railways. It is added that the objection not taken in reply to the show-cause notice, cannot be allowed to be aised in the Constitutional petition. The petitioner is now estopped by bis conduct. It is added that the petition is not competent under Article 212 of the Constitution. In this behalf reliance is placed on the judgments reported as Ayyaz Anjwn v. Government of Punjab, Housing & Physical Planning Department, through Secretary & others (1997 SCMR 169) and Javed Hussain Shah v. Oovt. of Punjab & others (1998 SCMR 220). It is argued that under Section 4 of the Federal Service Tribunals Act, 1973 now appeal is competent against the final as well as interlocutory orders. It is added that the term 'Authority' has been defined under Section 2(2) while the 'Authorized Officer' is defined under Section 2(3) of the Civil Servants Act, 1973. It is added with reference to Annexure-R/1 notification dated 30th of April, 1998 that the 'Authority' of the Civil Servants in Grade 20 to 22 is the Prime Minister while according to Column-4 of the same Secretary or Acting Secretary of the concerned Division is the 'Authorized Officer'. It is added that whether the Respondent No. 3 is validly appointed as Chairman or not, the same does not affect the position of Respondent No. 3 to act as Authorized Officer as he is an Additional Secretary. It is added that the jurisdiction of the Court is barred even if the action is mala fide as alleged by the petitioner. In this behalf reliance is placed on the judgments reported as Javed Hussain Shah v. Government of Punjab & others (1998 SCMR 220) and Sardar Asseff Ahmad Alt v, Mr. Muhammad Khan Junejo & others (PLD 1986 Lahore 310), wherein it was held that quo warranto cannot be issued on mere technicalities. It is added that as per Rule 5 of the E & D Rules, 1973 the Authorized Officer is not the final authority. He is simply to make recommendation to the Authority. In the end it is argued that repeal of the Ordinance, 1998 is of no legal consequence. In this behalf reliance is placed on the judgments reported as The Collector of Customs, Karachi & others vs. M/sNew Electronics (Put.) Ltd. & 59 others (PLD 1994 S.C. 363), Hakim Ali Zardari v. The State & another (PLD 1998 S.C. 1) and Riaz Ahmed v. The State (1998 SCMR 1729). It is argued that the way out for the petitioner is either to amend the petition or withdraw this petition and file fresh petition against the appointment of Respondent No. 3.

3. The learned counsel for the petitioner, while summing-up the arguments, submitted that although the petitioner has claimed more than one relief but he pressed into service only the relief of quo warranto as was evident from his arguments. It is maintained that as far this relief is concerned the Federal Servioe Tribunal has no jurisdiction or Authority as it is competent to deal with the matters of terms and conditions of service of a civil servant only. In this behalf reliance is placed on the judgment reported as Muhammad Yar Buttar & 4 others u Board of Governors, Overseas Pakistanis Foundation, Islamabad & other (1999 SCMR 819). It is argued that the argument as to the proceedings against the petitioner are utterly irrelevant and misdirected. The petitioner was not allowed to argue these points in view of the provisions of Article 212 of the Constitution of 1973 jurisdiction of this Court is barred.

4. I have given my anxious consideration to the arguments, gone through the record, relevant provisions of law, rules and the precedent cases. The petitioner had asked for two fold relief namely: declaring the appointment of ivespondent No. 3 as Chairman Railways Board illegal and void and secondly, for declaring the show-cause notice and proceedings in pursuance thereto, as illegal, void and without jurisdiction.

5. I first of all deal with the legal question as to whether the appointment of Respondent No. 3 is in accordance with law rather this is the only question involved in this writ petition. The appointment of Respondent No. 3 was made on 28th of April, 1998 as Additional Secretary (Incharge) Ministry of Railways, Islamabad, when the Ordinance of 1998 was in force, therefore, the appointment was governed by Article 3 as substituted by the Ordinance of 1998, which reads as under:-

"3. Constitution of Railways Board.~(l) For the management of the Railways in Pakistan there shall be a Railway Board consisting of a Chairman and five members to be appointed by the Federal Government.

(2) Secretary to the Government of Pakistan, Railways Division, shall be ex-offtcio Chairman of the Board, and out of members mentioned in clause (I):

(a) ..........................................................................................................

(b) ........................................................................................................

It is clear from sub-section (1) that the management of the Railways in Pakistan is to be governed by the Board consisting of Chairman and five members to be appointed by the Federal Government while sub-section (2) provided that the Secretary to the Government of Pakistan Railways Division shall be the ex-offlcio Chairman of the Board and out of members mentioned in Clause (1). The Respondent No. 3 was never appointed as member Board of Directors of the Railways, therefore, as he lacked one of the qualification necessary to assume the office of the Chairman Railways, he could not assume the office of the Chairman as per provisions of the Ordinance of 1998, also.

1. The argument that in any case the appointment of Respondent No. 3 as Chairman expired with the repeal of the Ordinance after the expiry of 120 days as per provisions of Article 89. The orders made and action taken during the period when the Ordinance was in force would remain intact and are saved by Article 264 of the Constitution of 1973, therefore, this argument on behalf of the petitioner is without any merit.

2. Now coming to the argument of the learned Deputy Attorney General on the question of bar of jurisdiction under Article 212. The petition came up for limine hearing on 24.5.1999. The learned counsel for the petitioner was categorically told that as far the issuance of show-cause notice and proceedings in pursuance thereto under the E & D Rules were concerned, this Court has no jurisdiction. However, if he wanted to press the relief of quo warranto then he may proceed. He accordingly challenged tbe appointment of Respondent No. 3 as Chairman Railways Board alone.

3. The learned counsel for the petitioner did not argue at all as to legality of the show-cause notice and proceedings under E & D Rules after he was told that this Court has no jurisdiction in these matters. In face of this the learned Deputy Attorney General continued arguing the points raised in the petition challenging the validity of the E & D proceedings.

4. Suffice it is to record here that this conduct of the learned Deputy Attorney General is most unbecoming of a Law Officer. So much so, he was confronted with the question that if somebody is to challenge the appointment of Respondent No. 3, could be maintain an appeal before the Federal Service Tribunal? The total reply given by him was that this is not the prayer, therefore, either the petitioner should amend the petition or withdraw this petition to file a fresh petition.

5. The learned counsel for the petitioner, while summing-up the arguments, referred to Clause-1 of the prayer of the wish where the petitioner had clearly challenged the appointment of Respondent No. 3 and prayed for declaring the same illegal and void, therefore, the above argument was without any merit.

6. The upshot of this discussion is that the assumption of Chairman Railways Board by the Respondent No. 3 is declared ultra vires of Article 3 of the Ordinance of 1998 by accepting this writ petition with costs. (A.P.) Petition accepted.

PLJ 2000 Lahore 532

Present: raja muhammad khurshid, J. MUHAMMAD BOOTA-Petitioner

versus

STATE and another-Respondents

W.P. No. 11564 of 1999, decided on 24.6.1999.

Pakistan Penal Code, 1860 (XLV of 1860)--

—S. 420/468/471/406-Constitution of Pakistan (1973), Art. 199-Registration of case under Section 420/468/471/406 P.P.C. in respect of transfer of tractor in quusuuu, in the mime of accused allegedly on basis of ibrged documents-Petitioner claimed tractor on superdari on the ground that he was actual owner of properly in question-Courts below directed that tractor in question, be given to accused on the ground that the same was registered in his name and that the same was recovered from his possession-Validity-Main case was yet pending and parties had also gone to civil litigation in respect of ownership of tractor in question--Genuine dispute regarding ownership in question was pending adjudication in Court of competent civil jurisdiction-Even criminal case was also pending in which final order is to be made whether or not transfer of tractor was made on forged documents or the same was genuine transaction—Matter in question, being pending before competent Courts of jurisdiction on criminal as well as civil side, impugned orders passed by trial Court and confirmed by revisional Court which were of transitory nature would not call for interference in constitutional jurisdiction of High Court particularly when it has been observed in order passed by revisional Court that tractor in question, stood registered in the name of accused and the same was recovered by Police from his possession-No ground was made out to interfere with impugned orders passed by trial Court and revisional Court respectively. [Pp. 534 & 535] A

Ch. Muhammad Zahoor Nasir, Advocate for Petitioner. Date of hearing: 24.6.1999.

order

A case under Section 420/468/471/406 PPC was registered at the report of Muhammad Boota petitioner in respect of transfer of the disputed tractor ultimately in the name of Muhammad Younas allegedly on the basis of forged documents prepared by one Umar Hayat. The petitioner applied for superdari of the tractor which was given to him vide order dated 10.3.1998 passed by the learned Haqa Magistrate. The other party filed a revision petition which was accepted and the matter was remanded for decision afresh after hearing the parties. Thereafter, another Magistrate vide order dated 17.5.1999 directed that the tractor be given on superdari to Muhammad Younas i.e.Respondent No. 2 on the ground that it was registered in his name. The petitioner filed a revision petition to impugn the aforesaid order of the Magistrate but his revision petition was dismissed on 16.6.1999 by the learned Addl. Sessions Judge, Ferozewala on the ground that since the recovery of the tractor was effected from Muhammad Younas i.e. Respondent No. 2 and the same stood registered in his name, therefore, the superdari was rightly given by the Magistrate vide his order dated 17.5.1999.

1. It is clear that the main case is yet pending and the parties have also gone in civil litigation in respect of ownership of the tractor in dispute. Learned counsel for the petitioner has submitted that the order initially passed by the Daqa Magistrate on 10.3.1998 was correct in the eyes of law as the same was passed in view of the investigation conducted by the police. However, that order was up-set in the revision petition by holding that the matter be re-determined after hearing both the parties and after hearing both the parties, the impugned order dated 17.5.1999 was passed by the Magistrate which was confirmed in the revision as pointed out above.

2. It is contended that the orders passed by both the Courts below suffer from patent illegality as Muhammad Boota i.e. complainant/petitioner was the actual owner of the tractor in question but was deprived of the same by preparing the forged documents by one Umar Hayat to whom the same was given for plying it after the petitioner was injured in an accident. The aforesaid Umar Hayat had agreed to pay profit to the petitioner out of the earning of the tractor but later on did not abide by the commitment although he was asked to render the account in October, 1997. The aforesaid Umar Hayat neither gave the profit out of earning nor did he return the tractor and »vent away after making a false promise that he would return the tractor after few days but did not do so tin now. In the meanwhile, the complainant/petitioner came to know that Umar Hayat aforesaid after hatching conspiracy with Liaquat Ali and Amanat Ali i.e. the named accused in the FIR committed forgery and got the papers prepared in their name and as such, committed fraud and mis-appropriation. Hence, the aforesaid case was registered in which the order of superdari aforementioned was passed Learned counsel for the petitioner has further contended that none of the ourts below had taken into consideration that the owner of the tractor was Din Muhammad who had obtained the same on credit from the bank andhad sold the same to the complainant/petitioner Muhammad Boota for which a sale receipt was executed on 13.12.1995. However, the tractor was admittedly not transferred to the name of the complainant/petitioner although the registration book was allegedly given to him, the photocopy of which is placed on record. The original was also shown during the arguments. It was, therefore, contended that the mere fact that the registration of the tractor was not in the name of the complainant after iu sale by Din Muhammad would not deprive the complainant/petitioner of his rightful ownership qua the tractor in question and as such, the impugned order, whereby, the superdari was given to Muhammad Younas claiming to be the owner of the tractor was wrongfully passed.

3. I have heard the learned counsel for the petitioner at length and have also gone through the record very carefully. The original registration book of the tractor in the name of Din Muhammad shows that the tractor was non-transferable. As such, the question would arise whether a lawful transfer of the tractor could be made to the petitioner/complainant by its original owner. On the other hand, Muhammad Younas i.e. Respondent No. 2 claims to be the owner and the tractor stands registered in his name after he had allegedly purchased it from Liaquat Ali aforesaid. In such a situation, there is a genuine dispute regarding the ownership of the tractor in question which is pending adjudication in the Court of the civil jurisdiction. Any observation on that point at this stage should be avoided lest it may prejudice the trial in the Court aforesaid. Even the criminal case is also pending in which final order is to be made whether or not the transfer of the tractor was made on forged documents or it was a genuine transaction. In such a situation and since the matter ispending before the competent Courts of jurisdiction on the criminal as well as civil side, therefore, the impugned orders passed by the fllaqa Magistrate and confirmed by the revisional Court which are of transitory nature would not call for interference in the Constitutional jurisdiction of this Court particularly when it has been observed in the order passed by the learned revisional Court that the tractor stands registered in the name of Muhammad Younas Respondent No. 2 and the same was recovered by th« p( lice from his possession.

4. In view of the above discussion, there is no good ground so as to interfere with the impugned orders passed by the learned fllaqa Magistrate dated 17.5.1999 and the learned revisional Court dated 16.6.1999 respectively. The writ petition is accordingly dismissed in limine.

CM. No. 1/99. C.M. No. 2/99.

1. Disposed of with the disposal of the main petition.

i'K.K.F.) Petition dismissed.

PLJ 2000 Lahore 535

[Multan Bench, Multan]

Present: SAVED ZAHID HUSSAIN, J. MUHAMMAD NAEEM-Petitioner

versus

DISTRICT COUNCIL PAKPATTAN-Respondent

Writ Petition No. 3707 of 1999, heard on 7.6.1999.

Constitution of Pakistan, 1973--

-—Art 199-Grant of contract for collection of tax on transfer of immovable property-Agreement between parties executed on 16.10.1998-Claim of respondent to deposit extra amount regarding period w.e.f. 1.10.1998-Writ against-Execution of agreement is admitted on both sides-Right to collect tax by petitioner flows from said agreement-It is simply a bilateral agreement entered into by parties of their own free will and volition-Remedy and forum for resolution of disputes arising there-from has been provided for in said agreement-Clause 24 of agreement leaves no manner of doubt whatsoever that parties had agreed for arbitral mode for resolution of disputes-Petitioner is bound by terms of Clause 24 of agreement-He has accordingly an adequate remedy available to him for redressal of his grievance-Petition dismissed being not maintainable.

[Pp. 536 & 537] A

Mian Arshad Latif, Advocate for Petitioner.

Ch. Skah Muhammad Din, Advocate for Respondent.

Date of hearing: 7.6.1999.

judgment

A contract for collection of tax on transfer of immovable property was granted to the petitioner for the year, 1998-99 i.e. 1.10.1998 to 30.6.1999 for an amount of Us. 81 lacs. Notice dated 8.10.1998 was issued to the petitioner as $o the acceptance of his hid as also for deposit of certain amounts. Formal agreement was thereafter executed hetween the petitioner and District Council, Pakpattan Sharif on 16.10.1998. The petitioner has since then been collecting tax as per agreement.

1. This petition was filed on 28.4.1999 with the prayer that:

"It is, therefore, respectfully prayed that action of the respondents in claiming extra amount regarding the period w.e.f,1.10.1998 to 15.10.1998 (15 days) during which period petitioners were not handed over the charge to recover the tax in question may he declared as illegal, unconstitutional, void, ultra vires and respondents may he directed not to claim the lease money from the petitioner for the said period and the amount already paid by the petitioner may he adjusted towards payment of lease money proportionately and the extra amount may be directed to be refunded."

1. It is contended by the learned counsel for the petitioner that the petitioner cannot he asked to pay for the period during which he has not made any collection of the tax. He relies on orders passed in W.P. No. 13419/95 and W.P. No. 14075/95 by a learned Single Judge of this Court.

2. As against this, the learned counsel for the contesting respondents has submitted that in the conditions of auction as well as in the agreement there is a specific clause for reference of any dispute between theparties to arbitration. Clause 24 of the agreement has been referred for this purpose. He relies on Mumiaz Ahmed v. Zila Council, Sahiwal through Administrator and others (1999 SCMR 117) in support of his contentions that writ petition in such an eventuality is not competent as the petitioner has an adequate remedy as agreed to by him per agreement. It is also contended that the rights and liabilities of the parties are determinable as per terms agreed by the parties and the petitioner can neither hack out from the same nor seek avoidance of liabilities through this petition.

3. The execution of agreement dated 16.10.1998 is admitted on both sides. Bight to collect the tax by the petitioner flows from the said agreement It is simply a bilateral agreement entered into by the parties of their own free will and volition. Remedy and forum for resolution of disputes arising there-from has been provided for in the said agreement. Clause 24 of the agreement leaves no manner of doubt whatsoever that the parties had agreed for arbitral mode for the resolution of the disputes. Plaving agreed for arbitration the petitioner is bound by the terms of Clause 24 of the agreement He has accordingly an adequate remedy available to him for the I redressal of his grievance.

4. Mumtaz Ahmed's case (supra) which arose in some-what identical circumstances also lays down that the petitioner could have invoked arbitration clause and referred the matter to arbitrator and could not have invoked writ jurisdiction in the matter. It may be noted that one of the petitions decided by the Hon'ble Supreme Court, relates to District Council Pakpattan Sharif. In view of the precedent case, reliance on order passed by a learned Single Judge of this Court in W.P. No. 13419/95 and W.P. o, 14075/95 is misplaced. Before the learned Judge of this Court neither the question of arbitration clause between the parties was raised nor considered, therefore, it cannot be treated as a precedent in the facts and circumstances of the present case.

5. For the reason that the petition is not maintainable in view of the arbitration clause in the agreement, and that writ jurisdiction is not meant to enforce/avoid contractual obligations, I have avoided to make any comment on the merits of the case, so that, the forum seized of the dispute may decide the same uninfluenced by any observation of this Court, 8. As a result of the above, this petition is dismissed as not maintainable. No order as to costs.

(MYFK) Petition dismissed,

PLJ 2000 Lahore 537 [Multan Bench, Multanj

Present: ghulam mahmood qureshi, J.

M/s. SHAHBAZ TRADERS-Petitioner

versus

ZILA COUNCIL MULTAN through its CHAIRMAN and 2 others-Respondents

Writ Petition No. 5250 of 1999, disposed of on 23.6.1999.

Punjab Local Council (Export Tax) Rules, 1980-

—-Rr. 14 & 15--Punjab Zila Council (Goods Exit) Tax Rules 1990, R. 16(3)-Lease for collection of export tax—Awarding of—Demand for deposit of 5% security-Petitioner deposited same but requested respondents to adjust amount in last instalment-Cancellation of lease-Writ against-Question of maintainability—Agreement being enforceable by law are contracts between parties under Section 2(h) of contract Act-Petitioner cannot go beyond accepted terms and conditions of lease-Petitioner if had any grievance could have invoked Arbitration Clause and referred matter to Arbitrator-Remedy by any of filing an appeal under Rule 14 and Revision under Rule 15 of Rules 1990 has also been provider\ which is not availed by petitioner—Constitutional jurisdiction of High Court cannot be ordinarily invoked to enforce contractual obligation-Petitioner was advised to seek remedy before competent forum-Petition disposed of being not maintainable. [Pp. 539, 540 & 541] A to D

1994 SCMR 1484,1999 SCMR 117 ref.

Mr. Muhammad Khalid Alvi, Advocate for Petitioner. Mr. Tahir Haider Wasti, A.A.G. for Respondents. Date of hearing: 23.6.1999.

judgment

The facts in brief are that M/s. Shahbaz Traders petitioner firm was awarded lease for the collection of export tax (goods exit tax) of Zila Council Multan for the period from 24.9.1998 to 30.6.1999 as being highest bidder. The bid was finalized for Rs. 11,45,00,000/-, A formal written agreement was also executed between the parties on 23.9.1998. The petitioner deposited an amount of Rs. 57,25,000/- as security being 5% of the total bid amount in addition to the earnest money which had been deposited at the time of holding of the auction. The petitioner requested the respondents that since the demand as well as the deposit of Rs. 57,25,000/- as 5% security is against Rule 16(3) of the Punjab Zila Council (Goods Exit) Tax Rules 1990 and that amount having been deposited under coercion and threat of cancellation of agreement/contract, the same may be adjusted towards the last instalment but the respondents did not pay any heed towards the request made by the petitioner and instead issued a notice dated 30.4.1999 for the deposit of last instalment which was challenged by the petitioner by way of filing W.P. No. 3810/99 against Zila Council Multan wherein the violation of above Rule was assailed. By an order dated 4.5.1999 it was directed by this Court that the amount of Rs. 57,25,000/- deposited by the petitioner firm as 5% and security be adjusted towards last instalment of the contract. The petitioner firm, however, deposited the last instalment amounting to Rs. 1,45,69,376/-. The lease of the petitioner was, however, cancelled on 5.6.1999 and the Zila Council took possession of all the Goods Exit Posts where the staff of the petitioner firm was working. This writ petition has been directed against the order dated 5.6.1999 whereby the Chairman Zila Council, Multan cancelled the lease contract awarded to the petitioner firm.

1. Syed Tahir Haider Wasti, learned A.A.G. has filed parawise comments on behalf of Respondents Nos. 1 and 2 and various preliminary objections regarding non-maintainability of the petition in view of-

(i) the existence of clause 27 of the agreement regarding mandatory reference to the Arbitrator;

(ii) approaching the Court by suppressing material facts and with unclean hands to avoid payment of remaining dues to it under a validcontract;

(iii) in presence of adequate and efficacious remedy available to the petitioner under the Punjab Local Government Ordinance, 1979 and the Rules made thereunder;

(iv) the petitioner has raised many disputed questions of facts which cannot be gone into and become subject matter of inquiry in the Constitutional jurisdiction;

(v) contractual rights and liabilities cannot be enforced in exercise of Constitutional petition.

Learned AA.G. has also contended that Writ Petition No. 3810/99 filed by the petitioner firm against the Zila Council has been dismissed in limine by my learned brother Faqir Muhammad Khokhar, J. on 15,6.1999 on merit. It was contended that the lease agreement was executed between the parties with their free will and consent and without any duress and pressure which was binding upon the parties. Learned A.A.G. in support of his arguments has relied on "Mumtaz Ahmad vs. Zila Council Sahiwal through Administrator and others" (1999 SCMR 117), "Hqji Muhammad Yousaf versus The Province of Punjab & others (PLD 1997 Lahore 674), "Malik Sakhi Muhammad and another versus Zila Council Rahimyar Khan & 2 others" (1998 CLC 1628).

1. Learned counsel for the petitioner in reply to the above objections regarding the maintainability of the writ petition, has relied on 1998 CLC 117 M/s. Wok Orient Power and Light Ltd. & another vs. The Government of Pakistan and another. On the other hand, the learned Assistant Advocate General has placed on record Fax copy dated 23.6.1999 and submitted that in CPLA No. 471/: )8 (Government of Pakistan and another vs. M/s. Wak Orient Power and Ligh Ltd. & another) leave to appeal has been granted by Hon'ble Supreme Court of Pakistan vide order dated 16.6.1998, wherein it is further ordered that the interim order passed in Chamber will continue. The learned counsel submits that by the above said order the order passed by the High Court in the above said case has been suspended. Therefore, at present the authority referred by the learned counsel for petitioner is not applicable to the facts of the present case.

2. I have heard the learned counsel for petitioner as well as the learned AAG at some length and also gone through the record. The execution of the agreement/contract has been admitted by the petitioner. The agreement being enforceable by the law are contracts between the parties under Section 2(h) of the Contract Act The petitioner cannot gobeyond the accepted terms and conditions of lease. The petitioner if had any grievance could have invoked Arbitration Clause and referred the matter to the Arbitrator. The Hon'ble Supreme Court of Pakistan in a recent judgment reported as Mumtaz Ahmad vs. Zila Council Sahiwal through Administrator and others (1999 S.C.M.R. 117) held as under.

"The petitioners had voluntarily executed the lease agreements without any duress, compulsion or threat and had uot only agreed to pay instalments for the months of July, August and September, 1997 alongwith other dues, but had actually deposited the same at the time of assuming work under the lease agreements. They were, therefore, not justified to take exception to those payment at the fag-end of the lease period. Any how, if they had any grievance, they could have invoked the Arbitration clause and referred the matter to the Arbitrator or file appeal under the relevant rules, but in view of the availability of these remedies, they could not have invoked the writ jurisdiction. Hence, the Intra Court Appeals filed by the petitioners were rightly dismissed and in consequence these petitions are dismissed."

The remedy by way of filing an appeal under Rule 14 and Revision under Rule 15 of the Punjab Local Council (Export Tax) Rules 1990 has also been provided which is not availed by the petitioner. Rules 14 & 15 reads as under:--

"14. Appeal.--(l) Notwithstanding anything contained in the Punjab Local Councils (Appeal) Rules, 1980, appeals against the assessments made and orders passed under these rules shall lie before:—

(1) The Taxation Officer, if the order is passed by the Tax Clerk or Tax Inspector;

(ii) the Chairman, if the order is passed by the Taxation Officer; and

(iii) the Commissioner, if the order is passed by the Chairman.

(2) The provisions of the Punjab Local Councils (Appeal) Rules, 1980 shall mutatis mutandis apply to all cases of appeals under these Rules.

1. Remsion.--(l) Secretary to Government of the Punjab, Local Government and Rural Development Department or anyOfficer specifically authorised by him in this behalf may call for and examine the record of any proceedings.

(2) On examining the record under this rule, the Officer mentioned in sub-section (1) may direct the authority to make further enquiry or may, in his discretion himself exercise any of the powers conferred on any Appellate Authority.

(3) No order under this rule shall be passed without affording an opportunity of being heard to the affected person.

(4) No proceeding by way of revision shall be entertained at the instance of any person who has a right of appeal under these rules or who has exercised the said right."

It is also well established principle of law that the Constitutional jurisdiction of the High Court cannot be ordinarily invoked to enforce contractual obligation. Reference may be made to "Raja Muhammad Ramzan and 21 others vs. Union Council, Bajnial and another" (1994 S.C.M.R. 1484).

1. In view of what has been discussed above writ petition is not maintainable. The petitioner may seek his remedy, if 30 advised, before the competent and proper forum.

2. With this observation this writ petition stands disposed of, (MYFK) Orders accordingly.