PLJ 2002 Judgments

PLJ 2002 Karachi 1 (DB)

[Hyderabad Circuit Bench]

Present: MusHffi alam and muhammad moosa K. laghari, JJ. MUHAMMAD HUSSAIN SHAIKH and others-Petitioners

versus

UNIVERSITY OF SINDH and others-Respondents C.P. No. D-530 of 2000, decided on 30.1.2001.

(i) University of Sindh Act, 1972 ( / of 1972)--

—S. 23-Constitution of Pakistan (1973), Art 199-Employees of University-­Reversion of petitioners to their respective previous grades-Validity-Jurisdiction of High Court-Promotions were indiscriminately and disparately granted to petitioners by .Vi&e-Chancellor on eve of his transfer despite the fact that some of the employees were not yet ripe for promotion for want of required length of service as provided under relevant rules—Promotions were, thus, granted in a perverse and perfunctory manner and in derogation of relevant rules, whereby other eligible employees felt deprived of their due right-Action of syndicate to constitute committee to review such promotion was therefore, quite bona /Icfe--Jurisdiction of High Court under Art. i99 of the Constitution was mtant to be exercised in the aid of justice and not to perpetuate ill gotten gains-Petitioners being civil servants, jurisdiction of High Court has been excluded under Art. 212 of the Constitution, therefore, Constitutional petition was not maintainable and was dismissed for lack of jurisdiction.

[Pp. 5, 7 to 9] A, B, D & E

(ii) General Clauses Act, 1897 (X of 1897)-

—-S. 21-Locus poenitentiae, rule of-Applicability-Rule of poenitentiae would not be applicable in cases in which basic order was illegal-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 become irrevocable and it is past and closed transaction-Perpetual rights cannot be gained,on the basis of illegal order-Where promotions were obtained by petitioners in illegal manner, action taken by Authority in reviewing such illegal promotions was valid and justifiable in as much as, vested rights had not accrued to petitioners. [F. 7] C

1999 SCMR 1004; 1999 NLR T.D. 1; 2000 PLC (C.S.) 1260; PLD 1992 SC 201; 1999 SCMR 2883 and 1999 MLD 3425 ref.

Syed Fasahat Hussain Rizvi, Advocate for Petitioners.

M/s. P.M. Amer and Kamaluddin, Advocates for Respondents Nos. 1 and 2.

Mr. Masood Noorani, Addl. A.G. Sindh for Respondents. Date of hearing: 30.1.2001.

order

Muhammad Moosa K. Laghari, J.--The petitioners through this petition have called in question the proceedings undertaken by the Syndicate of the University of Sindh Jamshoro in pursuance of "the decision taken by the Syndicate in it's meeting dated 04.12.1999 for review of the fitness of the petitioners for the posts held by them and prayed for declaring the said proceedings as null and void and further prayed for grant of injunction.

1. The petitioners are officers employed in the University of Sindh, and claim to have been promoted in BPS-18 aid above from 16.1.1999. According to the petitioners under the provisions of Gindh University Act, 1972, Syndicate was the authority competent for appointment to the posts in BPS-17 and above which is to be made on the r3 commendations of Selection Board. It has been claimed by the petitioner that the selection board held a

meeting on 2nd/3rd January 1999 and authorized the Vice-Chancellor to decide the promotion cases of officers on the basis of seniority-cum-fitness for filling the available vacant posts. It is pleaded that the Vice-Chancellor having been duly authorized to grant promotion to the deserving officers, acted in pursuance of the above decision. It was further pleaded that even otherwise Vice-Chancellor had the authority under the law to pass any orders that he considered proper for all the Officers of University as provided U/S. 14(3) of the said Act of 1972. The petitioners claim that they were rightly granted promotions but the Syndicate in its meeting held on

04.12.1999 illegally referred the matter of promotions to Sub-Committee consisting of three members namely Mr. Justice Hamid Ali Mirza, the then Judge of this Court, Dr. A. Q. Mughal, and Professor Dr. Saeed Ahmed Soomro, for re-examination of such cases. However, after the elevation of Mr. Justice Hamid Ali Mirza, to the Apex Court the Syndicatethrough its Resolution No. 3 passed on 29.04.2000 reconstituted the said Sub-Committee consisting of Mr. Justice Muhammad Ashraf Leghari Dr. A.Q. Mughal, Prof. Asif Ali. G. Qazi, and Prof. Dr. Saeed Ahmed Soomro. The petitioners were eventually required vide notices dated 18.11.2000 to appear before the Board. Feeling aggrieved by the said notice the petitioners have approached this Court to invoke the Constitutional jurisdiction.

1. In pursuance of the notice issued to the Respondents, Parawise comments have been filed on behalf of the respondents whereby the actions of the respondents have been justified. It has been averred that functions of the Selection Board as required U/S. 23(r) of the University of Sindh Act, 1972 were only to recommend the names to the Syndicate for appointment to the posts in Grade 17 and above the authorization given to the then Vice-Chancellor by the Selection Board vide its Resolution No. 11 dated 2/3.1.1999 was to the extent of delegation of the powers vested in it viz: to recommend the names of suitable cases/persons to the Syndicate. It was stated that even delegation of powers of Selection Board to the Vice-Chancellor was questionable, what to say about the Selection Board authorizing the Vice-Chancellor to finally decide the cases of officers instead of recommending their cases to the Syndicate. It has further been stated that on receipt of complaints from some employees of Sindh University who were aggrieved and affected by the illegal promotions granted by the then Vice-Chancellor, Syndicate appointed committee to re-examine the cases of the promotees and submit its report to the Syndicate. In compliance of the said decision, the petitioners were required to appear before the Syndicate on

25.11.2000 but they failed to avail the chance of hearing. The committee considered the cases of all the promotees and after examining their record and evaluating their fitness, decided to revert the petitioners including few others to their respective previous grades. Consequently reversion orders of all concerned were issued on 2.12.2000 and thus implemented. It was further pleaded that the Syndicate being executive body of the University possessed by the employees by way of mis-representation and/or in violation of rules and regulations. It appears that on being reverted to their substantive posts the petitioners filed contempt applications, which are also listed for hearing. We have heard Mr. Syed Fasahat Hussain Rizvi, learned counsel for the petitioners Mr. Kamaluddin learned counsel for the Respondents Nos. 1 & 2 and Mr. Masood A. Noorani, learned Additional Advocate General Sindh. Learned counsel for the petitioners has contended that cases of the petitioners were considered by the Vice-Chancellor in view of the powers delegated to him by a Resolution of the Selection Board vide Item No. 11. He further contends that the resolution of the Selection Board was further affirmed by the Syndicate in its meeting held on 2nd/3rd January, 1999. He submits that in pursuance of the above resolution the petitioners were rightly promoted and the orders of promotipn were acted upon. Learned counsel for the petitioners further submits that since the promotion orders had already been acted upon and, therefore, the promotions which were granted by the Syndicate were not subject to any Review. He has next contended that no power of Review was available to the Syndicate under the provisions of the Sindh University Act and since the power of Review was a substantive power which cannot be exercised unless provided in the statute itself. He therefore, submitted that all the actions in reverting the petitioners were unlawful, having been motivated by malice and as such were liable to be declared null and void. Learned counsel further argued that this Court was competent to scrutinize the actions of Syndicate by exercising its Constitutional jurisdiction, which were taken in excess of authority. In support of the above contentions learned counsel has relied upon the following case law: (i) 1999 SCMR 1004. (ii) 1999NLRTD(Lab)01. 8. In the authority referred at Sr. No. (i), their lordships of the Honourable Supreme Court were pleased to hold that once the competent authority conceded the regularisation of service of a civil servant by virtue of Section 13 of the Act, it created valuable rights in favour of the civil servant which, under the rule of locus poenitentiae, could not be reversed by taking contradictory pleas at different times before different forums. 9.There is no cavil with the above propositldn of law, however, the facts and circumstances of the case in hand are quite different. In the cited case the competent authority had earlier regularized the services of the civil servants. But at belated later stage, a plea was taken that the employees were adhoc/temparary. in these sircumstances, honarable Supreme

authorities was not justified as the valuable rights had been created in favour of the petitioners. In the instant case the promotions were granted in an illegal manner, in flagrant violation of law/rules and the Vice-Chancellor acted in excess of his authority and beyond the powers delegated to him.

1. In the citation referred at Sr. No. (ii) above, the Honourable Supreme Court was pleased to hold that jurisdictional defects are not immune from scrutiny by the High Court under Article 199 of the Constitution. However, it may be observed that this was a case in respect of registration of trade union and had absolutely no relevancy with the facts and legal provision involved in the present position. It will not be out of place to mention that precisely it was not the question before the Hon'ble Apex Court as to whether the jurisdiction under Article 199 can be exercised, notwithstanding the bar contained under Article 212 of the Constitution.

2. With utmost respect to the law cited by the learned counsel, as discussed in the preceding paras, we are of the considered view that the authorities referred here-in-above are distinguishable and not applicable to the present case. Conversely learned counsel for the respondents challenged the maintainability of this petition on the ground that the petitioners being employees of the Sindh University were Civil Servants, and could seek remedy from the Sindh Services Tribunal, if they are aggrieved by any order relating to the terms and conditions of their service. He submits that as a matter of fact the petitioners are aggrieved of the orders of their reversion which cannot be agitated in Constitutional jurisdiction. He further contended that the Selection Board was vested with powers to recommend the person to be appointed/promoted in Grade-17 and above. The recommendations made by the Selection Board were to be placed before the Syndicate which was competent authority to take final decision. Learned counsel argued that the Selection Board was not competent to authorize.the Vice-Chancellor beyond the powers vested in it, whereas in this case the Vice-Chancellor has not only exercised the powers of the Selection Board but the Syndicate too; which obviously, was not warranted by the law. If it is pretended to be so, the very functioning and existence of the Syndicate will be rendered redundant. He contended that Ex-Vice-Chancellor on expiry of the terms of his service approved the promotions of the petitioners and got issued such orders on the basis of favouritism. Since the promotions were unjust and contrary to rules, it gave rise to the complaints by the officers who were deprived of their due promotions. The proceedings of review were undertaken bonafidely, in order to rectify the wrong.

3. Learned counsel referred the following case law in support of his arguments:- (i) 2000 PLC (C.S.) 1260. (ii) PLD 1992 S.C. 207.

(iii) 1999 SCMR 2883. (iv) 1999 MLD 3425.

1. Mr. Masood A. Noorani, learned Additional Advocate General Sindh has also seriously objected to the maintainability of this petition and has contended that since the alternate, adequate and efficacious remedy was available to the petitioners before the Services Tribunal, the jurisdiction of this Court was specifically barred under Article 212 of the Constitution. We have perused the documents brought on record, anxiously considered the arguments advanced at the bar, and minutely perused the case-law. According to the provisions contained U/S. 23(r) of the Sindh University Act, 1973 -the Selection Board, was authorized to consider the promotion cases and recommend the same to the Syndicate. Thus, it emerges that Selection Board was meant for the purpose of scrutinizing the cases for promotion of the officers on the basis of seniority-cum-fitness. The merit was to be ascertained on the basis of the appraisal of their A.C.Rs. However, under no provision of law, the Selection Board was authorized to delegate its powers to the Vice-Chancellor, as such it appears that the Selection Board exceeded its authority by further delegating its powers to the Vice-Chancellor. We find that the Syndicate in its meeting has approved the minutes of the meeting of the Selection Board meaning thereby impliedly, that at the most Syndicate has approved the Resolution to the extent that Vice-Chancellor will exercise the powers of Selection Board. Nowhere from the minutes of the Syndicate meeting it reveals that the Syndicate in its meeting held on 2/3.1.1999 authorized the Vice-Chancellor not only to select the candidates for promotion but to take a final decision on behalf of the Syndicate. The Office Orders whereby the petitioners were granted promotion also speak of authorization given to the Vice-Chancellor by the Selection Board vide Resolution No. 11 dated 2/3.1.1999 and approved by the Syndicate vide Resolution No. 20 dated 16.1.1999.

2. On perusal of the documents it is abundantly clear that the entire function was performed by the Vice-Chancellor alone. The office Orders of promotion were mostly issued on 23rd and 24th July, 1999 and in some cases even on 26th, 27th and 28th July, 1999. Alongwith the comments a copy of the notification dated 24.7.1999 has been filed by the respondents which reveals in exercise of powers vested in him U/S. 23(1) of the University of Sindh Act, 1972 the Government appointed Dr. R. A. Shah as Vice-Chancellor w.e.f. 27th July, 1999 and the said notification purportedly was received by fax at Sindh University on 24.07.1999 at 18.20 hours. Taking into consideration above facts, the argument advanced by the learned counsel appearing for the respondent i.e. University of Sindh contending thereby that no receipt of such notification on 24.7.1999, the then Vice- Chancellor passed subsequent orders of promotion which were issued in excess of authority, on the basis of favouritism tentamounting to malice in law and colourable exercise of powers, has much force. More particularly, when on having seen at a glance, we noticed that the promotions were indiscriminately and disparately granted to even those officers, who were not yet ripe promotion for want of required length of service as provided under the rules. This factum was evident from the material placed on the record and was not controverted by the petitioners.

3. From the above discussion it is abundantly clear that the promotions were granted in a perverse and perfunctory manner, and in derogation of the relevant rules, whereby other eligible employees felt deprived of the due rights. In this view of the matter the action of the Syndicate to constitute the committee to review the cases of promotion, was quite bona fide. The said committee was given a task to scrutinize the cases of all the promotees and decide their cases strictly in accordance with the rules and regulations after providing those officers an opportunity of hearing. Thus there was nothing illegal in rectifying a wrong.

4. With regard to the contention raised by learned counsel for the petitioners to press into service the rule of locus poenitentiae, we may observe that according to the provisions contained Under Section 21 of the General Clauses Act an authority which can pass an order is entitled to vary, amend, add to or rescind that order. However the powers of receding usually can be exercised, till a decisive step is taken. Nevertheless, this rule will have no application, in case the orders have been acquired in an illegal manner. Since we have arrived at the conclusion that the promotions were obtained by the petitioners in an illegal manner, we are of the considered view that the action taken by the Syndicate was just, fair and proper. It is an undisputed fact that the petitioners were giving notice to appear before

""Syndicate but they chose not to appear. It is not the case of petitioners that they were condemned unheard. It has been repeatedly held that the rights which have been acquired in an illegal manner cannot be termed to be vested rights to attract the rule of locus poenitentiae.

1. The law is now settled that the rule of locus poenitentiae will not be applicable in the cases in which the basic order is illegal. The locus poenitentiae is the power of receding till a decisive step is taken but it 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. The said principle was laid down by the Honourable Supreme Court in the case of The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another V. Jalaluddin, PLD 1992 SC 207. In the above titled case certain employees were granted Grade-11 on the basis of incorrect information. However, when the real facts came to the notice of the Appellants, they withdrew the said letter and the action was approved by their lordships of HonTble Supreme Court. It was observed as under: -

The principle of locus poenitentiaewas invoked by the learned Tribunal in aid of the respondents. Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under Section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. The order under which the payment was made to respondent had no sanction of law. Locus poenitentiae is power of receding till a decisive step is taken. But 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. While referring to the above-cited case, same rule was followed by the Apex Court in the case of Ardeshir Cowasjee v. Karachi Building Control Authority (KMC) 1999 SCMR 2883 and it was observed as under: "In our view the principle of locus poenitentiae is not attracted to the present case, interalia, for the reasons, firstly, the appellants were not the authority which had approved Respondent No. 5's building plan in violation of the above provisions of the Order and the Regulations. Secondly, since the above approval was in contravention of the provision of law, the above illegal action/order cannot be treated as irrevocable or past and closed transaction. It may also be stated that as the order of approval of the plan is illegal, perpetual rights cannot be granted on the basis of the same. Thirdly, Respondent No. 5 was put to notice before it started its construction work to the effect that the approval obtained by it for a highrise building is in violation of the provisions of the public-at-large. The above contention, therefore, also fails."

2. In the case of Abdul Hague Indhar v. Province of Sindh 2000 SCMR 907. The Honourable Supreme Court while affirming the above proposition of law was pleased to observe as under:- "As it has been observed hereinabove that extension of 30 years' lease of the Forestry was allowed by the Chief Minister contrary to the relevant law, therefore, the competent Authority had the jurisdiction to rescind the orders of extension operating in favour of petitioners."

3. It is well settled that the jurisdiction conferred on this Court under Article 199 of the Constitution is meant to be exercised in the aid of justice, as was held by the Hon'ble Supreme Court in the above cited case of Abdul Haque Indhar. Their lordships of the Hon'ble Supreme Court while reiterating the principles laid down in PLD 1973 S.C. 230 (Nawab Syed Raunaq All and others), 1995, SCMR 305 (Market Committee, Multan through its Administration and another V. Muhammad Sabir), and PLD 1997 S.C. 304 (Khiali Khan v. Haji Nazir and 4 others) were pleased to observe in the aforementioned case that the Constitutional jurisdiction cannot be exercised to perpetuate the ill-gotten gains.

4. Apart from the merits as discussed above, we may also observe that undisputedly the petitioners are covered by the definition of 'Civil Servants' as provided under Sindh Civil Servants Act, 1973 and are amenable to the jurisdiction of the Sindh Civil Services Tribunal. The jurisdiction of the High Court or for that matter any Court is barred under Article 212 of the Constitution in all matters relating to the terms and conditions of a civil servant.

For the foregoing reasons we have arrived at an irresistible conclusion that the petition is misconceived and is not maintainable. The same is accordingly dismissed in limine alongwith all the listed applications. These are the reasons for the short order dated 30.01.2001, whereby this petition was dismissed.

(A.A) Petition dismissed.

PLJ 2002 Karachi 9

Present: anwar mansoor khan, J. UNITED BANK LTD., KARACHI-Plaintiff

versus M/s. AZMAT TEXTILE MILLS LTD. KARACHI and 9 others-Defendants

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

—O.XXXVII, Rr. 2 & 3-Suit for recovery of loan amount on basis of negotiable instrument—Negotiable instrument in question not produced in Court-Plaint in suit does not seek to recover money against any Bill of Exchange but the same has been filed seeking to enforce payment against Agreement of Financing, which admittedly has never been acted upon— However, receipt of money against exports/bills having not been denied by defendants, principal mount could be recovered but only on proof that Bills of Exhcange had been refused by consignee—Plaintiffs having bought negotiable insturment for value, unless document-in-original was produced, plaintiff (bank) could not claim amount against said bill- Original bill being not present, presumption would be that the same has been negotiated-Plaintiff s claim was rejected on the ground that price of bills was only payable on production of negotiable nstrument-Record, however, indicated that the payment in question, has already been made by defendant, in fact in excess of the amount claimed in suit, therefore, plaintiffs suit was dismissed with costs under S. 35 C.P.C. to defendants- Plaintiff was also burdened with special costs under S. 35-A of C.P.C. to be payable to defendants, [Pp. 12,13 & 15] A, B & C

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

—O.XXXVII, Rr. 2 & 3--Suit for recovery of loan amount-Officials of the plaintiff bank and the counsel were not aware of the law and the Banking practice and lapse on their part had caused colossol loss to the bank-­ Severe action was directed to be taken against officials and all concerned and loss if any, suffered by the bank on account of such officials and concerned persons should be recovered from such officials and persons concerned-Copy of judgment was sent to concerned officials for appropriate action against responsible officials. [P. 16] D

PLD 1997 SC 315; PLD 2000 SC 225 ref.

Mr. Nafees Siddiqui, Advocate for Plaintiff.

M/s. Kamal Azfar and M. Saleem Thepdawala, Advocates for Defendant No. 1.

Mr. Salim Salam Ansari, Advocate for Defendants Nos. 2 to 8. Aziz-ur-Rehman, Advocate for Defendant No. 9. Date of hearing: 14.3.2001.

judgment

The present case has come up for final arguments in view of the order dated 23.2.2000, where it was so ordered, upon the statement of the counsel, that no evidence is required as the documents filed are all admitted documents. This suit has been filed by the plaintiff for recovery of Rs. 230,030,462.00. The said suit was filed before the Banking Tribunal No. 2 Karachi originally on 26.7.1994 under the Banking Tribunal Ordinance, 1984. The suit was filed was initially against the Defendants Nos. 1 to 8 namely, M/s. Azmat Textile Mills Ltd. and the Director/ Guarantors of the finances stated to have been granted by the plaintiff to the said defendants. It transpires, that subsequently, the Defendant No. 1 instead of seeking third party proceedings, moved an application for impleading the branch of IFIC Bank at I. I. Chundrigar Road Karachi as a party in these proceedings. By consent of the plaintiffs, the said branch of IFIC Bank was made a party and arrayed as Defendant No. 9, in the present proceedings. The consent thus obtained was in respect of the IFIC bank being liable to pay certain sums of money in respect of exports made by the Defendant No. 1 to M/s. Azmat Bangladesh Ltd. Infact, thereafter, the plaintiff found it necessary to also amend the pleadings in the plaint, wherefore para-3,11,12 and 13 were added to the plaint I shall discuss these addition subsequently, however the first issue that has to be tackled is as to whether there is finance, that may be due and payable by the defendant or not.

The facts of the case as has pleaded by the plaintiff in the amended plaint, filed per order dated 2.12.1996, is, that two facilities were granted by the plaintiff to the Defendant No. 1, the facilities being as follows:-

(a) FAPE Rs. 20 Million (b) FBP (A) I. Rs. 60 Million. The first facility namely, FAPE-I, was granted under the State Bank of Pakistan's Refinance Scheme for Export Shipment. This facility was a "Pre Shipment Facility", which was to he secured against the delivery of documents and return of money against the exports made. The procedure, a followed under such a facility, usually is, that upon payment being made for the purpose of exports the same is secured by confirmed letter of credit. Upon the shipment being made, the borrowers are bound to hand over the documents of title/shipment to the bank, who in turn, acts in accordance with the instructions of he customer as also the letter of credit, already with the bank, to secure the credit from the consignee. In the event the documents are rejected, the same are returned to bank, who can then on the basis of the executed Bill of Exchange, claim refund/repayment of the finance lent/disbursed to them. In the event the documents are accepted by the consignee, the payment is liable to be recovered from the said consignee on the expiry of such period as may be mentioned on the Bill of Exchange by the bank.

For the purposes of such a facility, amazingly an agreements has stated to have been entered into, for the sale and purchase of commodity, being an agreement dated 6.1.1991 filed alongwith plaint as Annexure-D. Such agreement could only be where there is a facility under the mark up system and which is provided in Annexure-II, to BCD Circular No. 13. However, where there is purchase of Export Bills or negotiations of letter of credits. Annexure-II to BCD Circular No. 13, (l)(b)(i), financing is on exchange rate differential in case of foreign currency bill, or (b)(ii), commission or mark down in case of rupee bills. In addition, the same Annexure-EI in (I) (c), states that financing could also be granted on exports under the State Bank of Pakistan, Finance Scheme and the scheme for financing locally manufactured machine against Services Charges/ Concessional Services Charges and nothing more. This is an agreement which seeks to purchase commodities and is categorically mentioned in the said agreement that the customer has agreed to sell to the bank raw material, finished/goods/spares/machinery etc. The goods that are sought to be purchased, are those which are mentioned in the agreement, whereas admittedly this is a case in which, there is infact no sale and purchase of any commodity. The finance is by lending/purchase of Export Bill and which is covered by Annexure-II and could be on commission, by mark down in price or on exchange rate differential or on services charges. None is the case here.

It seems that on officer of the bank has ever bothered to look up the law and only act on certain printed forms that are placed before customers for the purpose of execution and filling up the documentation so that they may not be taken up as not having acted to take sufficient documents to secure the credit. This is not a credit, it is financing and in the manner as provided by BCD Circular No. 13. The bank is bound to act in accordance with the all circulars as has been held in the case of Hashwam Hotels Limited versus Federation Of Pakistan and others (PLD 1997 S.C.315).

It is clear from the record therefore, that no sale having been effected, such could only be treated as a "Financing by Lending" or a 'Loan' within the categorical stipulation of law and as provided in Annexure-I to BCD Circular No. 13, where it is categorically provided, that loans shall only bear services charges and which is supported by Annexure-E[ where financing in respect of export refinance, is shown to be only on service charges and nothing else. Such services charges have not also been claimed in the present case.

The second finance i.e.(FBP), Finance against Bill Purchase which is covered by Annexure-H to BCD Circular No. 13 and which could have been only on the basis of exchange differential in case of foreign currency bill. These were foreign currency bills against a limit fcranted in Pakistan rupees. A foreign currency bill', implies that the payment to be received was in foreign currency and that, it is against the export made, i.e the export proceed against the Letter of Credit. Such is also a loan and therefore, no mark up can also be granted under these facilities, notwithstanding the agreement that has been filed alongwith plaint, being Annexure E dated 6.1.1991. This is also an agreement that seeks sale of certain law raw material/spares/finishing/gpods/machinery etc, which, admittedly there is none. The agreement of financing that has been entered into ought to have reflected that what was the actual transaction and required to be done. Thus there should have been an agreement for purchase of bills as provided by law and without a buy back, as the same could not be bought back. These bills purchased in fact, would be the purchase of the "Bill of Exchanges", drawn by the Exporter (the customer of the bank), by the bank, for acceptance by the consignee. The face value of the Bill of Exchange is not paid by the bank but the bill is bought by marking down the price by an agreed percentage of the value. It is this marked down price that is paid by the bank to the customer. Thus the bank has already earned on the proceeds to be recovered. It is the bank who has to recover the amount from the consignee. The Bill of Exchange has to be presented for payment in accordance with the law for the time being in force. Where after presentation, the Consignee refuses to accept the Bill of Exchange and due protest is lodged, on the basis of the Bill of Exchange executed by the customer, the bank could proceeded against the drawer, namely, the customer. Thus it is the Bill of Exchange, which is the negotiable instrument under the Negotiable Instruments Act. The plaint in suit does not seek to recover money against any Bill of Exchange, but has been filed seeking to enforce payment against an Agreement of Financing, which in fact, admittedly has never been acted upon. However, as the receipt of money against the exports/bills have not been denied by the Defendants, as such, the principle amount could be recovered, but only when it is shown that the Bills of Exchange have been refused by the consignee. This is not the case of the Plaintiffs. Infact they have bought the negotiable instrument for value. Unless the document in original is produced, the bank cannot claim the amount against the said bill. I had asked Mr. Nafees Siddiqui as to whether the Bills are available, which was replied after seeking instructions

from the officers of the bank present, that the originals were not available, If the Originals were available, possibly the present suit could have proceeded on the assumption that the bills have been rejected, but again such is not the case here. I had also given a day for this fact, but nothing was produced. The claim thus against the bill, even if they were disbursed could not be given, as the payment was made by the bank for the purchase of valuable documents against which the amount due could be recovered from the consignee. The Bill of Exchange are set out in sets of two or more as required by the L/C. However there is only one original. The original is negotiable. Thus if not paid by the consignee, it could be negotiated against the drawer. The suit that has been filed does not seek to claim under the Bills of Exchange. If the original bill is not present it has to be presumed and that too without exception that the same has been negotiated. Upon negotiation, the amount mentioned on the face of Bill is deemed to have been received. There is no stipulation in the plaint to suggest that it is otherwise.

Mr. Nafees Siddiqui has shown to me Annexures J to J-10 stating that by these messages, it is clear that the consignees have refused to accept the Bills. This is a communication from the Corporate Branch of the Plaintiff. If there was a refusal, the original bill of exchange would have been returned. Infact, without the Bill of Exchange and other shipping documents, the goods exported against the Letter of Credit could not have been released. The Bill has not been produced. I am not inclined to accept the fact that the customer is liable as against the amount paid for Bills purchased unless the originals are produced. Otherwise such has not been pleaded. I would therefore reject the claim on the ground that the price of the bills are only payable on production of the negotiable instrument.

There can be nothing more glaring that the utter negligence shown by the officials of the bank in allowing such finances or disbursing money or making payments without appropriate documents to support such finances. The pleadings show utter lack of application of, both, the officials of the bank and the counsel. The officials of the bank ought to have known as to why they had paid the amount to the customer. The counsel ought to have drafted the pleadings in light of the law for the time being in force. Infact the negligence by the counsels shown at the initial stage could have been rectified at the time when the counsels were changed. Infact the pleadings were altered, and which was not required. By the amendment the bank has admitted having negotiated the bills, in that per the agreement between the Plaintiff and IFIF Bank, the dues of the defendants were taken over by the said bank on behalf of Azmat Bangladesh Ltd. The Plaintiffs could not claim under this head. If it would have been realized by any officer or subsequent counsels, that the plaint was incorrectly drafted, it should have been amended. Law prescribes the procedure. I am amazed, that even today, no one seemed to be prepared on the question. Infact the manner in which transactions in respect of export trade is conducted was also not known. It

present in Court. This is shameful. How could a bank of this size function without proper legal assistance.

There is also on record a statement filed on 16.9.2000 by the plaintiff bank which shows five finances, namely, FAPE-II Gen. (Hyp), FAPE (Pledge)), FBP on A/c. PAD O?D ffiDC & NIFB. The plaint refers to only two finances, namely, FAPE & FBP. The FAPE-H & FAPE is under Annexure 'D\ that was for Rs. 20.000 Million. Where they have categorically stated that under the FAPE (General) a sum Rs. 14.937 Million were disbursed and have claimed a Buy Back Price of Rs. 26.301 Million at the rate of mark up 20% per annum. Mark-up for the cushion period and all the period upto 31.12.1991 has also been claimed. In addition to the penally to State Bank of Pakistan mark up on refinances to pay to State Bank of Pakistan. Insurance Premium, Central Excise Duties, Muqadam Charges and Liquidity Damages have also been claimed. In the case of FBP it is stated that in fact, Rs. 65404 Million had been disbursed which was in excess of Rs. 5404 Million from which account all Bill Purchases have been conducted and stated in the plaint In this case also rate of mark up has been claimed at 20% Mark up for the cushion period and for the period upto 31.12.1991 has also been claimed. Mark up on refinances paid to State Bank of Pakistan. Central Excise Duty and Liquidity Damages have also been claimed.

The total amount of disbursement made and admitted is Rs. 14.937 Million in the FAPE (General) and (Pledge) account I have already declined the claim of the sum of Rs. 65.404 Million in the FBP account. There is on record also, a statement filed by the plaintiff, as to the actual receipt of various sums. This handwritten statement was filed on 1.3.1996, in which an amount of Rs. 85.520.826.01 has been stated to have been received on account of the Defendant No. 1 and Azmat Trading Co. (Pvt.) Ltd. However, in the break-up it has been shown that in the present suit, a sum of Rs. 13,928,201.29 had been received at the rate of Rs. 24.5266 Credit income on A/c Exchange Difference and A/c interest on FDBP has been shown as received being Rs. 1.180.724.11 and 24,090,422.29 respectively. In the present case, therefore, the amount received by the bank admitted by them is Rs. 39,199,347.69, whereas actual liability determined in fact is only Rs. 14.937 Million. From the above, it is apparent that, it is infact the bank which has to pay to the defendants, a sum of Rs. 24,262,347.69 instead of the Defendants paying the amount claimed by the plaintiff. Infact it is claimed that after filing of the suit, a sum of Rs. 21,326,480.72 has been received. This, for the present I shall not be considering, as it is a claim by the Defendants without any documentary evidence. The calculation above is on the basis given by the bank and not at the rate of Rs. 36.9330 as agreed and reflected by order dated 1.3.1999. I have only calculated on the basis of the bank's own calculation on the basis of which in fact the customer/defendants has overpaid.

I shall now come to the question of Defendant No. 9 and its liability Admittedly, the goods that had been exported to Bangladesh have been claimed from the Defendants Nos. 1 to 8 in addition, they claim that same from the Defendant No. 9 per Memorandum of Standing dated 1.9.1994. The claim in the said Memorandum of Standing was that a total sum of US $ 11, 441,373.42 that was taken up by M/s. Azmat Bangladesh Ltd./IFIC Bank Ltd. Infact, this amount then, as discussed above cannot be claimed from the defendants or any of them. Such an agreement was entered into in Bangladesh. Admittedly an amount of Rs. 85,420,826.01 has been received from IFIC Bank Bangladesh, on 6.10.1996, on account of Azmat Textile Mills Ltd., the Defendant No. 1 and Azmat Trading Co. (Pvt.) Ltd., the Defendant No. 1 in Suit No. 1701 of 1997. Claim of other amounts having being received by the bank has also been made by the Defendants. This amount was received after the said agreement was entered into. Otherwise, also if there was any claim against IFIC Bank, it could only be in Bangladesh. IFIC Bank is not a 'borrower' or 'customer' within the meaning of the Banking Companies (Recovery of Loans, Advances, Credit & Finances) Act 1997, and could not be sued under the provisions of the Banking Companies (Recovery of Loans, Advances, Credit & Finances) Act 1997. In addition, under UCP 500, a branch of a bank in a different country cannot be sued, such is provided in Article 2 (iii) of UCP 500. UCP 500 controls all documentary credits. The claim against IFIC Bank is therefore otherwise also not maintainable. Under the circumstances the joining of the IFIC bank has not only been malicious, but the agreement to do so, by the plaintiff, it seems was, on a realization by the bank of the error on their part, that the claim against the Defendants Nos. 1 to 5 may not stand. It is therefore, that a para 3 of the amended plaint it is categorically stated that:"The Defendant No. 6 is IFIF Bank, who had taken over the management of Azmat Bangladesh Ltd. and liable to pay the suit amount as per agreement, the IFIC Bank has acknowledged the liability of Azmat Bangladesh Ltd, Photo copy of the agreement dated 1.9.1994 is annexed hereto as A-I."Further in paras 11, 12 & 13, the Plaintiffs have also admitted this position. Infact, it is categorically admitted that the documents had been delivered to IFIC Bank in Bangladesh. The Bills of Exchange, according to the Plaintiffs themselves therefore were accepted and payment was to be made under the Bill of Exchange by M/s. Azmat Bangladesh Ltd. as is categorically stated in para 12 of the plaint. Infact, therefore, the bank, is claiming from both the Defendants Nos. 1 to 8 and from M/s. Azmat Bangladesh Ltd., the same amount that cannot be done. In view of the above, and the factum of payment has already been made by Azmat Bangladesh Ltd. in fact in excess of the amount claimed in suit, the suit is dismissed with costs under Section 35 CPC TO DEFENDENTS the defendants or any one of them payable to the plaintiff. In view of the unnecessary harassment caused by the filing of the plaint and for false and vexatious claims made by the Plaintiffs against the defendants, Compensatory Cost under Section 35-A of the Civil Procedure Code, in the sum of Rs. 25,000/- is granted against the Plaintiffs payable to each defendants. In view of the dismissal of the suit, CMA 6157/2000 stands disposed of.

The actions of officers of the bank and the manner in which plaint has been drafted shows a horrific picture of the manner in which the banks are operating. On the one hand, after the judgment which delivered by the Hon'ble Supreme Court of Pakistan in the case of Dr. M. Aslant Khaki versus Syed Muhammad Hashim and 2 others (PLD 2000 S.C. 225), almost of the banks have, on one occasion or the others stated that the bank shall be put to severe loss. The loss caused is not because of lawful actions required to be done in accordance with the existence laws and the Islamic Provisions, but is caused because of the unjust, inequitable actions of the bank, in addition to their negligence and callous attitude. The banks are supposed to act diligently and all officers of the banks are supposed to act with caution and are required to know the law prevalent and all acts that have to be done by such officers has to be in accordance with such laws. In my view all the officers or any other persons, including counsels, concerned and dealing with the finances given under the present suit have been absolutely negligent and callous and have not even bothered to look at the case and manner in which they should present it before the competent Court. The facts contained in the plaint suit speaks volumes of the negligence of the bank officers and the approach, the high handedness of such persons who are an authority, who require the customers to sing or execute any document which they want. All the counsels should have looked into the pleadings as also the law, and should have taken proper and necessary steps to rectify the same if they were not proper. The officers as also the counsel were not aware of the law and the banking practice. Severe action should be taken against the officers and all concerned and if the bank has suffered any loss that has been caused by the present finances being granted/disbursed or by the order passed in this present case, it is those officials/persons concerned, who should be made liable for the entire amount. A copy of this order shall be sent to the President of the Plaintiff Bank also and Governor, State Bank of Pakistan as also to the Minister of Finance, Government of Pakistan and the National Accountability Bureau for appropriate action.

(A.A) Order accordingly.

PLJ 2002 Karachi 17 (DB)

Present: S.A. sarwana and anwar zaheer jamal, JJ. Heyi HAROON MANDRAH and another-Petitioners

versus

ABDUL RAHIM and 6 others-Respondents

Karachi Building and Town Planning Regulations, 1979-

-—Regulation. 24.~Construction of "multi-storied building being unauthorized, illegal and against approved plan was sought to be demolished through suit—Court directed authorities for demolishing the same-Intervenors application for withdrawal of impugned order on the ground that they had purchased flats constructed in that building and that they had applied for regularization of that building-Appliction of intervenors was incomplete and not in conformity with the relevant rules—Besides, builders and not intervenors were authorized to submit application for regularization—Builders having constructed three un­ authorized storeys and having constructed open space, such deviation could not be regularized-Earlier application of intervenors under S. 12(2) of C.P.C. was rejected, thereafter their application under S. 151 C.P.C. on the same ground was malafide being based on vexious claim Intervenors- and the counsel submitting such application were burdened with special costs. [Pp. 19 to 22] A, B, C & D

PLD 1994 SC 512; 2000 SCMR 1248; 1985 SCMR 333; 2000 CLC 925; PLD 1972 Kar. 341; 1991 MLD 2295 ref.

Mr. Ashiq Raza, Advocate for 18 Intervenors/Applicants. Mr. All Bin Adam Jafri, Advocate for Respondent No. 5. Date of hearing: 1.3.2001.

order

S. Ahmed Sarwana, J.-Mr. Jafri has received a copy of this Application and waives notice of the same.

On 09.05.1997 the petitioners who are residents of a building adjacent to Plot No. 47, Shah Latif Bhittai Road, Lyari Karachi filed this petition against Respondents Nos. 1 to 4, alleged owners/builders of Plot No. 47, Shah Abdul Latif Bhittai Road, Karachi, Respondent No. 5 (Karachi Building Control Authority), Respondent No. 6 (Karachi Metropolitan Corporation) and Respondent No. 7 (Government of Sindh) seeking a declaration that the construction of the multi-storied building on Plot No. 47, Shah Abdul Latif Bhittai Road Lyari Quarters Karachi was unauthorized, illegal and against the approved Plan and Building Regulation and an injunction restraining Respondents Nos. 1 to 4 from carrying out further construction and an order to Respondents Nos. 5 and 6 to demolish the unauthorized structure and construction.

On 16.2.2000 after hearing all parties, considering all the facts including the Commissioner's Nazir's various Reports of site inspection and the relevant law relating to the unauthorized construction in violation of the approved building plan the Court came to the conclusion that the Respondents Nos. 1 to 4 (builders) had raised construction in violation and contravention of the Karachi Building & Town Planning Regulations on Plot No 47, Shah Abdul Latif Bhitttai Road, Lyari, Karachi and consequently KBCA was directed to perform its statutory obligation with regard to the removal/demolition of the unauthorized construction raised on the Plot in violation of the approved Building Plan in accordance with the provisions of Section 7-A of SBCO, 1979 and submit a compliance report within a period of two months. On perusal of the Order Sheet, it appears that KBCA did not comply with the Order of the Court and did not demolish the unauthorized construction within the specified times as directed, whereupon a notice was issued to the Chief Controller Buildings to appear in person and explain the position. He submitted the reasons why the work could not be carried out which explanation was accepted and on 6.2.2001 after hearing all the parties present including the Advocate General on behalf of the Government of Sindh, KBCA was directed to carry out its statutory duty with necessary support from the local administration which was promised by the learned A.G.

On 13.2.2001 Mr. Ashiq Raza, learned Counsel for the Intervenors, filed an Application under Section 12(2) CPC (CMA 829/2001) on behalf of 18 Intervenors/Applicants for setting aside the order dated 17.5.2000 (actual date of the order is 6.2.2001) and stay the operation of Order dated 16.2.2000. After notice to the parties and hearing the Counsels at length, the application was dismissed by a detailed Order dated 20.2.2001 wherein it was pointed out that the builders had been granted permission for construction of a building consisting of Ground plus two floors whereas they had constructed Ground plus given floors and had also raised construction on the compulsory open space by obtaining status quo order from a Civil Court and the entire building was found occupied when the Nazir visited the building on 27.5.1999 indicating thereby that the Intervenors were in occupation of the flats in the building on the third, fourth and fifth floors during the Court proceedings as well as at the time the Petition was disposed of on 16.2.2000. The Intervenors also did not produce the Occupancy Certificate required under Section 6 of Sindh Building Control Ordinance, 1979, before occupation of the building. As no case under Section 12 (2) CPC was made out indicating that any fraud or misrepresentation had been committed and that the order was bad for want of jurisdiction, the Application was dismissed.

The same 18 Intervenors/Applicants have again filed this Application under Section 151 CPC requesting the Court to stay the operation of this Court's Order dated 16.2.2000 on the ground that the Intervenors have filed an Application with KBCA for regularization as well

as for Occupancy Certificate of the flats in dispute pending outcome of the Application and has further prayed that the Order dated 20.2.2001 be recalled. Mr. Raza submitted that the construction of the additional three floors was not such a serious violation which could not be regularized by KBCA. He added that the Intervenors had invested their whole life's savings in purchase of the said flats and on humanitarian grounds also their Application deserved sympathetic consideration.

In reply, Mr. Jafri, learned Counsel for KBCA, submitted that the order of demolition was passed on 16.2.2000 after due consideration of all aspects of the matter and on 20.2.2001 the matter was considered again and no ground for grant of any relief on the application of the Intervenors was found by this Court as a consequence of which the Intervenor's Application (CMA No. 829/2001) was dismissed. The learned Counsel further submitted that the Government of Sindh had imposed prohibition regarding regularization videGovernment of Sindh, Services & General Administra­tion Department Notification dated 20.07.1998 and consequently no regulari­zation of any unauthorized construction can now be permitted by KBCA.

We have considered the arguments advanced by Mr. Raza, learned Counsel for the Intervenors and those of Mr. Jafri, learned Counsel for KBCA. Under Regulation No. 24 of Karachi Building and Town Planning Regulation, it is the builder who is required to submit an Application for regularization of any deviation in the approved building plan and not the occupant of any premises which have been unauthorized constructed. It may be pointed out here that the power to regularize is intended and designed to be exercised when irregularity is of the nature which does not change the complexion or character of the original proposed construction as held in the case of Abdul Razak Vs. Karachi Building Control Authority and others (PLD 1994 SC 512). In this case by addition of three floors and covering the compulsory open spaces the entire complexion and character of the proposed construction has changed and therefore KBCA does not in our opinion has any authority to approve its regularization.

On perusal of the copy of the Application alleged to have been filed by the Intervenors with KBCA, it transpires that the same is incomplete as it does not contain the information required under Rule 24 of the Karachi Building and Town Planning regulation for approval of unauthorized construction carried out by a builder alongwith a upletion plan showing deviations made in the building plan from the sanctioned building plan through a licensed architect. The copy of the application has been signed in by the architect which shows the mala fide conduct of the architect also. The copy of "Notice of Completion and Permission for Occupation" alleged to have been filed by Intervenors also contains the signature of the architect on the Form is incomplete, consists of several blank spaces which are required to be filled and does not contain the signature of the builder who is the proper person to file the application. It is therefore clear that the said Application isj mala fide and has been filed to make out a deceptive basis for the present

application after dismissal of the previous on (CMA 829/2001) on 20.2.2001 and thereby obstruct KBCA in the performance of its statutory duly on delay the demolition of the illegal construction ordered by this Court as for back as 16.2.2000.

The argument of Mr. Raza that construction of additional three floors is not a such serious violation which cannot be regularized is based upon ignorance of law and lack of proper research. Had the counsel read the Sindh Building Control Ordinance, 1979, the Karachi Building and Town Planning Regulations and the Judgments of the Hon'ble Supreme Court of Pakistan and this Court on the question of regularization, he would not have advanced such an argument. Further, by advancing the above argument the Intervenors have admitted that the three floors have been constructed in violation of law which they have purchased. Mr. Raza should know that the Courts do not come to the rescue of a person who has committed a wrong or violated any law. His other argument that the intervenors had invested their whole life's savings in purchase of the said falts and the Court should therefore consider their application sympathetically again appears to be based upon ignorance of law. Under the principle of Caveat emptor it was the duty of the Intervenor to have verified the title of the vendor/builder before purchasing and occupying the premises. As the builder had constructed three floor in total violation of the approved Building Plan, Karachi Building & Town Planning Regulations and the provisions of the Sindh' Building Control Ordinance, 1979, he acquired no title therein and consequently could not transfer any title in respect of the flats on the said three floors to any person and any sale agreement in respect thereof would be void under Section 23 of the Contract Act, 1872 being violative of the provisions of SBCO, 1979. Consequently the Intervenors would not have any enforceable right or title in the premises purchased by them on the second, third and fourth floors of the Building in question (Muhammad Saleem v. Administrator, KMC, 2000 SCMR 1748).

It also appears from the documents filed and the arguments advanced by the learned Counsel that the intervenors at the time of purchase of flats did not act prudently by not engaging qualified lawyers who would have safeguarded their interest. Therefore they should have no cause for complaint for their own negligent conduct. In case they did engage advocates then their remedy for the loss suffered by them is against their advocates who acted negligently in doing their duty to their clients. (Bashir Ahmed v. Government of Punjab & Others 1985 SCMR 333). Mr. Raza should know that the Courts cannot ignore statutory law and judgments of the superior Courts in the administration of justice and pass orders on compassionate grounds in favour of a party who may have suffered financially by the acts of another person on account of his own negligent conduct. In the present case, the Court passed a considered Judgment on 16.02.2000 in accordance with the dictates of law which must be enforced by the executive organs of the State.

It has become a common practice that after a final Order/ Judgment has been passed by a Court requiring demolition of unauthorized construction, people often file Applications as Intervenors claiming relief on the ground that they were not aware of the proceedings and were consequently condemned unheard or that their right to be treated equally guaranteed by the Constitution is being violated by ordering demolition of their unauthorized construction when hundreds of unauthorizd constructed buildings in the city remain unnoticed and untouched without any action by the authorities concerned. It is like the claim of the criminal for acquittal on the ground that other criminals are not being punished (Muhammad Usman v. K.B.C. 2000 CLC 925). It is suprising that Mr. Raza does not know that two wrongs do not make one right. The argument that there are hundreds of buildings existing in the city which have been constructed in violation of the Building Laws and no action has been taken against them by the authorities does not mean that where violation of law is detected and brought before the Court, no action should be taken against the violator on the ground that other violators have not been punished. The violator of law when brought before the Court will have to undergo the process of law and face the consequences therefor in accordance with law, if found or proved guilty of violation. Such person must not be allowed to delay or frustrate the implementation of Court orders and judgments. If such misconduct is overlooked or permitted unchecked, it would disturb the entire equilibrium of society, create law and order situation resulting in total anarchy in the country which cannot be allowed under any circumstances.

The Application under Section 12(2) C.P.C. filed by the same 18 Intervenors was considered on merits and was dismissed by this Court on 20.2.2001. The Intervenors/Applicants should have asked the builder to file an Application with KBCA for regularization before buying the flats or while the Constitutional Petition was pending and should have mentioned this fact when they filed the Application under Section 12(2) C.P.C. but they did not do so. They cannot now by allowed to file a fresh Application under a different Section namely, Section 151 C.P.C. seeking the same relief on the frivolous ground of having filed an application for regularization which is apparently not maintainable in law. The Application isprima facie mala fide and vexatious and does not merit consideration.

It is well established that Advocate are officers of the Court (Jalil Ahmad & Others v. Muhammad Ishaq & others. PLD 1972 Karachi 341 and Muhammad Yaseen Khan v. Azad Government ofJammu & Kashmir,1991 MLD 2295) and their duty to the Court has precedence over their duty to the client. (Muhammad Siddiq v. Mst. Ruqaya Khanum, PLD 2001 Karachi 60). Further, it is the duty of Counsel to research the relevant law thoroughly and advise their clients honestly. When a Counsel signs, files or submits to the Court any application it is assumed that the Application is not

\

unnecessary delay, that the legal contention therein are warranted by existing law and is not contrary to the clear provisions of the statute and the established law and practice. Had the Counsel done his research properly he would have come to the conclusion that the Intervenors had no right whatsoever in the property as discussed above and would not have filed this Application. It would not be out of place to mention here that if a Counsel succumbs to temptation of money offered by a client and takes up a brief without ascertaining true facts and researching the law he would be deemed to be a party to the vexatious claim and his duty to the Court would be subordinated to his duty to his client. (Muhammad Dawood Khan v. Elyas Ameen, PLD 2001 Karachi 20). In view of the above narration of fact and clear state of the law, it is crystal clear that the present Application is patently malafide and vexatious not only to the knowledge of the Intervenors but also of the Counsel who should have advised his clients accordingly and not filed the same. Consequently, the application is dismissed with special costs of Rs. 2000/- to be paid by each Intervenor within 30 days. As the Counsel did not advise his clients properly and filed a frivolous application, he is equally responsible for the consequences of the malafide and vexatious application. The cost shall therefore be shared between the Counsel and his clients equally i.e. one half of the costs shall be paid by the Counsel and other half shall be paid by the party. Mr. Jafri states that the costs instead of being paid to him by deposited with the Nazir of this Court who may be directed to utilize the same for meeting the expenses of the High Court Clinic. Ordered accordingly.

Office is directed to advise the Nazir to submit his report of deposit of the amount in Court on 10-4-2001.

(A.A) Order accordingly.

PLJ 2002 Karachi 22 (DB)

[Hyderabad Circuit]

Present: SHABBiR ahmed and muhammad mujeebullah siddiqui, JJ.

Haji MUHAMMAD KAMIL and another-Petitioners

versus

GOVERNMENT OF SINDH through Secretary Local, Department Government of Sindh and another-Respondents

C.P. No. D-87 of 2001, decided on 8.3.2001.

(i) Sindh Local Government (Election) Ordinance, 2000 (X of 2000)--

—Ss. 3 & 4~Constitution of Pakistan (1973), Art. 199-Delimitation-Bifurcation of town committee in two union councils-Jurisdiction of High Court-High Court in exercise of writ jurisdiction, cannot substitute de-limitation matters unless impugned order was found to be violative of provisions of law, however, impugned order of respondents bifurcating town committee into two union councils was violative of the provisions contained in Sections 3 and 4 of the Sindh Local Government (Election) Ordinance, 2000, therefore, interference in constitutional jurisdiction, would be warranted-Respondents, with changed delimitation have constituted union Government for a town which could not be done without doing violence to the language of law and express intention of the legislature-Where Legislature has provided for constitution of a town Government for town, respondents has no authority to constitute Union Government for town and thereby deprive the population of Town Committee, from the benefits of town Government and lower down status of Town Government to that of Union Government-Impugned notification was, thus, violative of the provisions contained in Sections 3 and 4 of the Sindh Local Government (Election) Ordinance, 2000 to the extent of delimitation at specified serial numbers and the same were struck down—Respondents were restrained from acting upon said portion of notification and holding any election in pursuance thereof.

[Pp. 35 & 36] A & C

(ii) Sindh Local Government (Election) Ordinance, 2000 (X of 2000)--

—Preamble-Constitution of Pakistan (1973), Art. 199-Very poor and confused drafting of Sindh Local Government (Election) Ordinance, 2000, having caused confusion, would necessitate that the same be drafted in such a manner that all the purposes of enacting the law and enforcing the scheme intended by legislature were achieved without any confusion and ambiguity—Law should be drafted in plain, clear, unambiguous and easily comprehensible language and should be consistent, while terms used therein should conform to the definition clause. [P. 36] B

Mr. Jhamat Jethanand, Advocate for Petitioners. Mr. Masood A Noorani, Addl. A.G. for Respondents. Mr. Naimatullak Soomro, Advocate for Intervenor. Date of hearing: 8.3.2001.

judgment

Muhammad Mujeebullah Siddiqui, J.--In this Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the following relief has been sought: - (i) Declaration that the orders of de-limitation passed by Respondent No. 2 as per Serial Nos. 15 and 16 at Annexure F having being passed without lawful authority and are of no legal effect.

(ii) Permanent injunction be issued restraining the respondents from acting upon the order of de-limitation passed by Respondent No. 2 and directing respondents to maintain the de-limitation as per Annexure E.

(iii) Any other relief this Honourable Court deems fit may be awarded.

The relevant facts as stated in the petition are that the Petitioner No. 1 is resident of Muhalla Shoukat Abad Qazi Ahmed Town, which is situated in Circule-II of Charge-II of last census block, while Petitioner No. 2 is resident of town Qazi Ahmed which is situated in Circle-I charge-n of the last census block. For the purpose of Sindh Local Government Elections Ordinance, 2000 (Sindh Ordinance X of 2000) the de-limitation proposals in respect of Qazi Ahmed were published by notification dated 10.10.2000, by the Respondent No. 1 as follows:-

| | | | | | | | --- | --- | --- | --- | --- | --- | | 15 | Union Council Kazi Ahmed TalukaDaulatpur. | | Circle-1 Charge 11 | 7691 | | | | | | Circle-2 charge 11 | 4462 | | | | | | Cirde-3 charge 11 | 4598 | | | | | | Part of Tapa Deran Deh Seendhal Kamal | 5362 | | | | | | Total | 22113 | | | | | | | | | | 48 | Union Council Qazi Ahmed. | Tapa Qazi Ahmed Deh Qazi Ahmed. | | | 11048 | | | | Tapa Mehrab Wai (whole) DehMehrabWai Deh Kunro | | | 3234 2057 | | | | Part of Tapa Deran Deh Deeran | | | 7033 | | | | Total | | | 23372 | | | | | | | |

Two or three persons filed the objections to the above delimitation proposals. The Respondent No. 2 heard the objections, reserved the orders and

subsequently passed the order of delimitation of Union Council Qazi Ahmed as under:

TABLE

| | | | | | --- | --- | --- | --- | | 15 | Union | Deh Qazi | 11048 | | | Council Qazi | Ahmed. | | | | Ahmed-I | Circle-I | | | | | Qazi Ahmed | 7691 | | | | Town | | | | | Total | 18739 | | 16. | Union | Circle-n | 4462 | | | Council Qazir | Qazi Ahmed | | | | Ahmed II | Town | | | | Taluka | Cirlce-III | 4598 | | | | Qazi Ahmed | | | | | Town | 7033 | | | Daulatpur | Deh Deeran | 5362 | | | | Deh Seendhal | | | | | Kamal. | | | | | Total | 12835 |

Being aggrieved with the changed de-limitation and the publication of notification in this behalf, the petitioners have filed this petition on the following grounds:--

(a) That none of the objectors before the Respondent No. 2 claimed the de-limitation as ordered by Respondent No 2, the order is illegal and liable to be ordered as such. That the de-limitation made as per Annexure-E were legal, convenient and in accordance with the provisions of Sindh Local Government Election Ordinance, 2000. The Respondent No. 2 has assigned no reason or modification to set-aside the said de-limitation and introduce the impugned de-limitation of his own. That the impugned de-limitation has illegally devided the town of Qazi Ahmed into two parts, the Respondent No. 2 had no authority to pass such orders. That the impugned de-limitation besides being illegal, unjustified is inconvenient and will create complications in the administration of the affairs of Qazi Ahmed Town. Mr. Masood Ahmed Noorani learned Additional Advocate General Sindh, has filed parawise comments alongwith the enclosures received from

Respondent No. 2. He has stated that the de-limitation proposals in respect of Union Council Qazi Ahmed was notified on 10.10.2000, by the Government of Sindh Local Government Department as mentioned in the petition at Sr. No. 15. (Reproduced in the earlier part of this judgment) and notification was never issued regarding de-limitatien proposals of Union Council Qazi Ahmed as mentioned in the petition against st. No. 48. It is further stated that two persons namely Syed Qurban Ali Shah and Abdul Qadir Unar filed objections against formation of Union Council Qazi Ahmed by the Deputy Commissioner and de-limitation Officer, before the Respondent No. 2 suggesting certain adjustments in Union Council Qazi Ahmed. Accordingly/ the Commissioner Sukkur Division heard the objections filed by both the petitioners and order of delimitation was made on 20.10.2000, which was communicated to the Secretary Government of Sindh vide letter dated 3.11.2000 which reads as follows:-

"To, The Secretary to Government of Sindh, Local Government, Rural Development & Katchi Abadi Department, Karachi Subject: DE-LIMITATION OF TOWN COMMITTEE QAZI AHMED. Initially the proposal for de-limitation of Town Committee Qazi Ahmed was made as under:-

(a) Circle-I of Charge II. 7691.

(b) Circle 2 of Charge II 4462.

(c) Circle 3 of Charge II 4598.

(d) Deh Seendhal Kamal5362.

Total 22,113.

1. As per Government Notification No. SO (C-IV) LG-MC-H (8)/-120 dated 10.10.2000, the objections on the above mentioned de­ limitation proposal and other proposals of District Nawabshah were invited and objections were heard on 20.10.2000 at Nawabshah. The objections were heard at length and disposed of on merits keeping in view the prescribed parameters. Tow parameters are quite important and critical. (i) The population was required to be kept some where near average population of the district. The deviation upto tc the extent of 2% was permissible in exceptional cases. (ii) It was also required that in normal circumstances the tapas should not be broken. However, in exceptional cases, tapa can be broken but in no way a deh is to be broken.

The proposed Union Council Qazi Ahmed comprised as under:-(i) Full deh of Seendhal Kamal. (ii) Part of deh Qazi Ahmed. There were objections from Syed Qurban Ali Shall, Abdul Qadir and others that full deh Kazi Ahmed and deh Seendhal Kamal may be excluded (Copies of objections enclosed.) However, after listening to the,objectors and keeping in view the above mentioned parameters, the following order was passed:- "Union Council Kazi Ahmed has peculiar situation. The existing position of the Town Committee Kazi Ahmed is that it includes part of deh Kazi Ahmed and part of deh Seendhal Kamal. The de-limitation parameters are that the deh cannot be broken. There are two groups in Kazi Ahmed. One group is demanding inclusion of entire deh Seendhal Kamal and other group is demanding inclusion of entire deh Kazi Ahmed. The demand of each groups is according to his political convenience. In accordance with the de-limitation parameters, the following two Union Councils are formed:-

(a) Union Council Kazi Ahmed-I. Deh Kazi Ahmed (full) 11,048 Circle-1 of Kazi Ahmed Town, 7,691 Total. 18,739. (b) Union Council Kazi Ahmed II

1. Circle-2 of Kazi Ahmed Town. 4,462 Circle-3 of Kazi Ahmed Town. 4,598 Deh Deeran. 7,033 Deh Seendhal Kamal. (full) 5,362 Total 21,455.

It is, however, submitted that the Government may listen both the parties and pass orders as deemed proper.

Sd/-

Nisar Ahmed Siddiqui Commissioner Sukkur Division."

It is further stated in the comments filed by the Respondent No. 2, that the petitioner made representation before the Chief Secretary Sindh and Secretary Local Government. This representation was presented to the Chief Secretary Sindh on 13.11.2000, and finally summary was submitted by

of Sindh was pleased to reject the petition and maintain the de-limitation as notified vide gazette notification dated 21.11.2000. It has been submitted that after the rejection of representation, this petition has been made at a belated stage when the election process has already started and the nomination papers have been filed.

The Respondent No. 2 has filed copy of objection made by Abdul Qadir son of Haji Ghulam Hussain Unar before the Respondent No. 2. It is stated in the objection that it pertains to de-limitation proposals as regards Union Council Qazi Ahmed Taluka Daulatpur District Nawabshah shown at Sr. No. 48 of the de-limitation proposals. In respect of Union Council Qazi Ahmed at Sr. No. 48 it was stated that it was violative of the letter dated 25.7.2000 issued by Commissioner Sukkur division as well as the instructions in pursuance of the meeting held under Chairmanship of Senior Member Board of Revenue. Instructions were issued that no bifurcation of Tapa was to be made, but tapa has been bifurcated. It was further stated in the objection that the name of Union Council Qazi Ahmed at Sr. No. 48 be changed, as Union Council Pott Peeral, as Union Council Qazi Ahmed is already at Sr. No. 15 and if two Union Councils are allowed to exist with same names, it will create lot of problems in correspondence, administration and other matters. It was proposed in the objection that deh Qazi Ahmed be excluded from proposed Union Council Qazi Ahmed at S.r No. 48 and included in the new Union Council Qazi Ahmed. It was further proposed that deh Deeran is part of Tapa Deeran, therefor it be excluded from Union Council Qazi Ahmed and included in Union council Thatt. Mr Abdul Qadir further proposed that Tapa Patt Peeral consisting of deh Patt Peeral and Deh Seendhal Kamal by included in Union Council Qazi Ahmed by re-naming as U.C. Patt Peeral.

The, objection filed by Syed Qurban Ali Shah were in respect of delimitation proposals regarding Union Council Qazi Ahmed Taluka Daultpur District Nawabshah shown at Sr. No. 15 of the de-limitation proposals. It was stated that the de-limitation proposals were violative of the instructions issued by Commissioner Sukkur, and meeting held under the Chairmanship of Senior Member Board of Revenue, dated 25.7.2000 and 24.7.2000 respectively. Mr. Qurban Ali Shah also stated that Tapa has been by-furcated against the instructions. He pointed out that deh Seendhal Kamal is part of Tapa Deeran It may be allowed to remain as part of Deeran and excluded from Union Council Qazi Ahmed. It was further proposed that looking to the name of Union Council Qazi Ahmed, justice requires that Deh Qazi Ahmed which is situated in same Tapa Qazi Ahmed be included in Union Council Qazi Ahmed by excluding Deh Seendhal Kamal. The population of the proposed Union Council was as under: -

1. Town Committee Qazi Ahmed. 16753.

2. Deh Qazi Ahmed 11048

Copy of representation made to Chief Secretary Government of Sindh and Secretary Local Government of Sindh sent on 13.11.2000 by 10 persons including Petitioner No. 2 Haji Allah Bux Unar .has also been produced by Respondent No. 2. It is stated in this representation that no objector had suggested for deviding of Urban area into two portions, yet the learned Commissioner Sukkur Division on his own has un-necessarily devided the Urban area of Town Qazi Ahmed into two portions. By doing so the area of Town Committee Qazi Ahmed which consists of Circle-I, Circle-II and Circle-Ill of Charge II of Census Block have been un-necessarily devided though the basic principle and guidlines clearly direct for maintaining the Census Block circles and Census charges. It is further stated in the representation as follows:-

"It is further submitted that by dividing the town area of Qazi Ahmed City into two portions it has been dis-regarded that basis civic facilities such as water supply, severage, electricity, gas etc and other institutions like Hospital, Telephone or Telegraph and many other services which are running smoothly under one administration could never be effectively and paractically managed in this devided position."

On 8.3.2001, when the petition was being argued Mr. Naimatullah Soomro Advocate filed application U/O 1, Rule 10 CPC on behalf of Mr. Qurban Ali Shah son of Hussan Ali and Mr. Khan Muhammad son of Muhammad Saleh stating that Mr. Qurban Ali Shah is candidate for one seat of Muslim General. (Male) U.C, Qazi Ahmed I, whereas Applicant No. 2 is candidate of labour seat in U.C. Qazi Ahmed II. After narrating the facts already contained in the comments filed by the Respondent No. 2, they submitted that they may be joined as necessary party. They stated that the election Schedule has been notified and the process of acceptance of the nomination of the candidates has been completed on 5.3.2001, and the Petitioner No. 2 has also filed the nomination form of U.C. Qazi Ahmed which has been accepted and the Petitioner No. 2 has accepted the delimitation and thus is now estopped from challenging the same. It has been stated that not only Town Committee Qazi Ahmed but serval other Town Committees in District Nawabshah have been bifurcated.

In view of urgent nature of the proceedings, we allowed Mr. Naimatullah Soomro to address arguments on behalf of intervenors. Copies of the application were supplied to the learned Counsel for the petitioner and the learned A.A.G.

The Petitioner Haji Muhammad Kamil filed affidavit in re-joinder in reply to the comments and the application of intervenors. It is stated in the affidavit in rejoinder that Qazi Ahmed town Consists of Circle/I, II and III of Charge II as well as parties of two dehs Qazi Ahmed and Seendhal Kamal. This entire area of Qazi Ahmed is urban area from 1974 and the remaining area of two dehs is rural since then. It is further submitted in the affidavit in re­joinder that according to the provisions of Sindh Local Government Election

Ordinance (X of 2000), rules, regulations, instructions and guidlines issued there under, the urban and rural Union Councils had to be delimited separately and the most important parameter for delimitation is that the urban population was not to be merged with the rural population but the rural population could be amalgamated with the urban population. It is contended that under the impugned delimitation Qazi Ahmed town has been devided into two pieces and consequently the urban character of the Town has been finished.

We have heard Mr. Jhamat Jethanand learned counsel for the petitioner Mr. Naimatullah Soomro advocate for the intervenors and Mr. Masood A. Noorani Addl. A.G. for the Respondent Nos. 1, and 2.

The main contention raised,,by Mr. Jhamat is that under the provisions of Sindh Local Council Election Ordinance, 2000 (herein after referred to as Election Ordinance) A local area comprising a town is to be kept intact and in cannot be eliminated. However, if the competent authorities so deemed fit can include certain rural areas in the urban area in fresh delimitation. His contention is that in the proposed delimitation notified, inviting objections, although Qazi Ahmed was notified as Union Council instead of town Committee, but still limits of existing Town Committee were left intact. He has submitted that a part of deh Seendhal Kama! Tapa Deeran was already included in the limits of Town Committee Qazi Ahmed in the old de-limitation and in the proposed de-limitation entire Deh Seendhal Kamal was included in the proposed Union Council Qazi Ahmed appearing at Sr. No. 15 of the notification containing proposed delimitation. Another U.C. with the same name was notified at Sr. No. 48 comprising of Deh Qazi Ahmed Tapa (fazi Ahmed, Deh Mehrab Wai, Tapa Mehrab Wai Deh Kunro, part of Deh Deeran Tapa Deeran.' No body raised objection to the inclusion of entire existing limits of Town Committee Qazi Ahmed in Union Council Qazi Ahmed Taluka Daulatpur notified at Sr. No. 15, and the objections were raised to the inclusion of certain in rural areas in Union Council Qazi Ahmed-II. Objections were raised to the forming of Two Union Councils in the same name and it was proposed by Mr. Abdul Qadir that the name of Union Council Qazi Ahmed II be changed in order to remove the confusion. Mr. Jhamat has submitted that the Respondent No. 2 Commissioner Sukkur Division, has confused whole affairs and has changed the de-limitation op his own-in flagrent violation of the provisions contained in the Election Ordinance. In support of his contention Mr. Jhamat has taken us through the comments filed by the Respondent No. 2. Respondent No. 2 has submitted in the comments that U.C. Qazi Ahmed was notified at Sr. No. 15 and not at Sr. No. 48 of the proposed de-limitation. This statement is factually incorrect as the copy of proposed de-limitation has been produced to contradict the version. Mr. Jhamat has read the contents of the letter of Commissioner Sukkur Division dated 3.11.2000, addressed to the Secretary Government of Sindh Local Government, Rural Department

and Katchi abadi Department, in which it is stated that initially the proposal of de-limitation of Town Committee Qazi Ahmed was made as under:-

(a) Circle I of Charge H. 7691

(b) Circle II of Charge II 4460

(c) Circle III of Charge II 4598.

(d) Deh Seendhal Kama! 5362.

Total 22130/-

Mr. Jhamat has pointed out that the confusion on the part of delimitation authorities and particularly the Respondent No. 2 is apparent from the fact that in the proposed de-limitation notification, the name of Local Government, shown at Sr. No. 15 is Union Council Qazi Ahmed Taluka Daulatpur while, the learned Commissioner has stated in the letter dated 3.11.2000 that initially it was proposal for de-limitation of Town Committee Qazi Ahmed. Mr. Jhamat has vehemently argued that in the process of de-limitation the Respondent No. 2 lost sight of the distinction between the local Government having urban characteristic and the local Government having the rural characteristic. He misedup the issues and consequently applied the principle meant for rural Government tc the urban Government. Mr. Jhamat has pointed out that in his letter dated 3.11.2000 the Respondent No. 2 has described two parameters which were kept by him in view. The first, that the population was required to be kept some where near average population of the District And deviation upto the extent of 20 percent was permissible in exceptional cases and that secondly, in normal circumstances the Tapas cannot be broken, however in exceptional cases Tapa can be broken but in no way deh is to be broken. Thereafter Respondent No. 2 has stated that the proposed Union Council Qazi Ahmed comprised full dehof Seendal Kamal, part of deh Qazi Ahmed. Mr. Jhamat has further pointed out that the Respondent No. 2 has observed in his order that Union Council Qazi Ahmed has peculiar situation. The existing position of Town Committee Qazi Ahmed is that is include part of deh Qazi Ahmed and part of deh Seendal Kdmal. The delimitation parameter is that deh cannot be broken. There are two groups in Qazi Ahmed one group is demanding inclusion of entire deh Seendhal Kamal and others group is demanding inclusion of entire deh Qazi Ahmed. The demand of each group is according to his political convenience. Thereafter the Respondent No. 2 himself formed Union Council Qazi Ahemd No. I and U.C. Qazi Ahmed No. II bifurcating Qazi Ahmed town, in complete obligation of the provisions that a Town Government is to be established for Town. The result is that Qazi Ahmed town has been eliminated for the purpose of election and forming of Town Government. Town has been deprived of a Town Government and instead tvtfb Union Councils have been formed which are of rural characteristic. Urban population and Town Government have been degraded to rural population and union Government.

Mr. Jhamat in support of his contention has taken us through the various provisions contained in the Election Ordinance. JHe has referred to the provisions contained in Sections 2(6) 3, and 4 of the Election Ordinance, which read as follows: "Section 2(6) "Local Government" means a district Government, a city district Government, a taluka Government, a town Government and a union Government; 3. (1) For the purposes of this Ordinance- Local areas shall be districts, towns, talukas and Unions. the Government may, by, notification declare-- (i) any area comprising one or more dehx and in the case of an area with urban characteristic comprising one or more population census blocks delimited for the last preceding census to be a union; and (ii) any area to be a town, a taluka or a district. (2) As far as may be-- the area of a union shall be a territorial unity. the area of union shall not cross the limits of a town or a taluka; the area of a union in a taluka shall comprise a whole number of Tapas, or a Tapa may contain a number of whole unions; provided that in specific cases the Government may, for reasons to be recorded, waive the aforesaid condictions; (dj the area of a union in a city district or in a union with urban characteristic shall comprise a whole number of census blocks as delimited for the purpose of the last preceding population census; a taluka or a town shall comprise a number of unions as appropriate, and the population of unions within a district shall be similar. (3) Government or an officer authorized by it shall invite objections on proposals relating to delimitation of unions and after giving an opportunity of being heard dispose them of in such manner as may be deemed fit. 4. Constitution: (1) Subject to the provisions of this Ordinance, there shall be constituted-

(a) a district Government for a district.

(b) a city Government in a city district;

(c) a taluka Government for a taluka;

(d) a town Government for a town and

(e) a Union Government for a union.

(2) Subject to the provisions of this Ordinance, every local Government shall be a body corporate, known as the case may be, by the name of the district, taluka, town or union or by such name or number as the district Government may assign, and shall have perpetual succession and a common sale, with power to acquire and hold property, both moveable and immoveable, and transfer any property held by it, and to contract and to do all other things necessary for the purposes of its Constitution and may sue and be sued in its corporate name."

Mr. Jhamat has contended thatf the definition of Local Government contained in Section 2(6) of the Election Ordinance, it means district Government, a city Government, a taluka Government, a town Government, and a union Government. Under Section 3(l)(a) local aretf shall, be districts town, taluka and Unions. Under Section 4(l)(d) a town Government shall be constituted for a town. He has contended that the cumulative effect of the above provisions is that the existing towns prior to the promulgation of the election ordinance, have to remain intact and a town Government is to be provided to such town. Mr. Jhamat has submitted that under Section 3 (2)(c), area of a Union Council in a taluka shall comprise a whole number of tapas, or a tapa may contain number of whole unions, provided in specific cases Government may for reasons to be recorded waive the aforesaid conditions. While under Section 3(2)(d) the area of Union in city district or a union with urban characteristic shall comprise a whole number of census blocks as delimited for the purpose of the last preceding population census. According to Mr. Jhamat the Respondent No. 2 has mixed-up the provisions contained in Section 3(2)(c) with the provisions contained in clause (d) of sub-section (2) of Section 3. Instead of applying provisions contained under Section 3(2)(d) for delimitation of town committee Qazi Ahmed, whereby the whole number of census blocks for the purpose of last preceding population census was to be kept intact, has wrongly applied the provisions contained in Section 3(2)(c) which is in respect of Union in a taluka, and has to comprise of whole number of tapas. Mr. Jhamat has submitted that consequently, the delimitation made is violative of the provisions contained in the Election Ordinance, 2000, and therefore, the impugned notification dated 21.11.2000 is to be struck down to the extent of delimitations at Sr. Nos. 15 and 16 and fresh delimitation are to be notified wherefter the elections for the local Council may be held by way of by-elections and that the respondent may be restrained from holding the election in pursuance of the illegal delimitation of Qazi Ahmed town.

On the other hand Mr. Masood A. Noorani Addl. A.G, and Mr. Naimuttalh Soomro advocate for intervenor have supported the impugned

delimitation. They have also referred to the same provisions to which reference has been made by Mr. Jhamat. They have contended that it is provided in Section 3(2) of the Election Ordinance that the guidelines given therein shall be applied, as far as may be, meaning thereby that the Government has discretion to make deviation. There can be no cavail to the proposition. However both the learned advocates when confronted with the situation as to now population of Qazi Ahmed having a urban characteristic and having a town committee since 1974 can be deprived of a town Government as provided under Section 4(l)(d) of the Election Ordinance, 2000, could not give any satisfactory explanation. Mr. Noorani has contended that the petition Under Article 199 of the Constitution cannot be substitute for appeal. We entirely agree with the proposition that the petition under Article 199 of the Constitution is not a substitute of an appeal or revision. Mr. Noorani, next contended that the High Court in exercise of its writ jurisdiction cannot substitute its own finding on facts. We agree with this proposition of law as well. Mr. Noorani further contended that individual good is to be subordinated to the collective good. We agree with this proposition as well. However, we asked the learned advocates for the respondent and intervenor, whether collective good of the general public lies in having a town Government or Union Government, which is rural in characteristic and both the advocates had no option but to conced that a town Government shall be more effective in providing services and facilities to the general public as compared to a rural local Government. Mr. Noorani in support of his contentions placed reliance on the Judgment of Honourable Supreme Court in the case of Export Promotion Bureau and others Vs. Qaiser Saifullah (1994 SCMR-859), wherein it has been held that, a Constitutional jurisdiction is not designed and intended to be used as a substitute for a regular appeal or to be equated with a regular appeal. In a Constitutional petition the High Court cannot interfere with a finding of fact merely on the ground that the reasons which found favour with the authority whose order is under scrutiny were not such which would have been accepted by the High Court. The Constitutional jurisdiction can be invoked to rectify the jurisdictional defects. It is to be pressed into service against an order which is without jurisdiction or tainted with malice or is violative of a provision of law and not to correct a finding of fact. However, even in Constitutional jurisdiction the High Court may interfere with a finding of fact, if it is founded on no evidence or is contrary to the evidence."

He has next placed reliance on another Judgment of Houourable Supreme Court in the case of Karachi Ship Yard and Engineering Works Limited Vs. Abdul Ghaffar and two others (1993 SCMR-511) in which same principle has been proposed as cited above.

Mr. Noorani has further placed reliance on a Division Bench Judgment of Lahore High Court in the case of Muhammad Hayat Lak Vs. Punjab Local Councils Election Authority etc (NLR 1992 Civil 474), wherein delimitation of electoral. Units of local Councils by election authority was up

held for the reasons that Election Authority is forum of exclusive jurisdiction and can pass any order in respect of delimitation. However, it was further held that the delimitation of local council Election Authority would not be amenable to interference in writ jurisdiction, unless it be shown that order is in any manner arbitrary or violative of any provisions of law governing subject.

We have very carefully considered the entire material produced before us, the contentions raised by the learned advocates for the parties, the Judgments cited at bar and the relevant provisions of law contained in Election Ordinance, 2000. While respectfully adhering to the ratio of Judgments cited by Mr. Noorani to the effect that in exercise of writ jurisdiction the High Court cannot substitute its own findings of fact and that no interference shall be made in respect of de-limitation matters, unless it is found that an impugned order is violative of the provisions of law, we are of the considered opinion that the impugned order of respondents bifurcating the town Committee Qazi Ahmed into two Union Councils is violative of the provisions contained in Sections 3 and 4 of the Election Ordinance, 2000. We are pursued to agree with the submissions of Mr. Jhamat that the parameters kept in view by the Respondent nq. 2 in letter dated 3.11.2000 addressed to Secretary Government of Sindh, Local Government, Rural Development and Katchiabadi department, to the effect that in normal circumstances the tapas should not be broken is totally n misplaced. The Respondent No. 2 appears to be absolutely confused and while disturbing the de-limitation of Qazi Ahmed he has kept in view the guidliness for de-limitation of local council which is rural in character and has totally ignored the provisions contained in Section 3(2)(d) that the area of Union in a city district or Union with Urban characteristic shall comprise a whole number of census block as delimited for the purpose of last preceding census and further ignored the provisions contained in Section 4 (1) (d) and (c) that town Government is to be constituted for a town and Union Government is to be constituted for a union. With the changed de­limitation the respondents have constituted a Union Government for a town which cannot be done without doing violence to the language of law and the express intention of the legislature. When the legislature has provided for constitution of a town Government for town, the respondents have no authority to constitute a Union Government for a town and thereby deprive the population of Erstwhile Qazi Ahmed town committee, from the benefits of a town Government and lower down the status of town Government to a union Government. The learned advocates for the respondents attempted to argue that Qazi Ahmed was not a town by the contention has no force for the that the subject under consideration was "De-limitation of Town Committee Qazi Ahmed" and that initially the proposal was for de-limitation of town committee Qazi Ahmed. This, it is an admitted fact that Qazi Ahmed is a town and it had a town committee and that the initial proposal was for de­limitation of Town Committee Qazi Ahmed, which has been by utter confusion on the part of respondents ended up in the delimitation and formation of two Union Councils, being Union Council Qazi Ahmed-I and Union Council Qazi Ahmed-II, with bifurcation of the Qazi Ahmed town. The adverse consequences which are bound to follow with the bifurcation of town, in respect of services provided to the population of town committee Qazi Ahmed, is not difficult to visualize. It is very surprising that very Senior Officers in the administration, have ignored very basic purpose of establishing local Government, in total violation of the relevant provisions, as discused above.

Before parting with our discussion, we would like to observe that the confusion has been confounded because of very poor and confused drafting of the Election Ordinance 2000. It is imperative that the law should be drafted in such a manner that all the purposes of enacting a particular law and enforcing a particular scheme intended by the legislature are achieved without any confusion and ambiguity. The law should be drafted in plain, clear, unambiguous and easily comprehendible language. It should be consistent and the terms used should conform to the definition clause.

For the fore-going reasons, the petition is allowed and the impugned Notification N. SO (C-IV) LG-UG-II (8)/2000 dated 21.11.2000 is hereby held to be violative of the provisions contained in Sections 3 and 4 of the Sindh Local Elections Ordinance, 2000 to the extent of de-limitation at Sr. Nos. 15 and 16 which are hereby struck down. Consequently the respondents are restrained from acting upon the said portion of the notification and holding any election in pursuance thereof. The respondents are further directed to re-initiate the de-limitation proceedings in respect of Qazi Ahmed town Government and the other areas which are part of the union Council Qazi Ahmed-I and Union Council Qazi Ahmed-II, TalukaDaulatpur, in accordance with the law so as to retain the urban characteristic of Qazi Ahmed town. The remaining rural areas may also be delimited in accordance with the law and after completion of process, by-election may be held accordingly.

The petition is allowed as above with no order as to costs.

The petition was allowed by a Short order in the Court after conclusion of the arguments and above are the detailed reasons for the same.

J.R PETITION ACCEPTED.

(((

PLJ 2002 Karachi 37

Present: faiz muhammad qureshi, J. ABDUL HAI through his legal heirs and another—Appellants

versus

MUJEEBUL HAQUE-Respondent

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

-—O.DC, R. 7 & S. US-Dismissal of application for restoration of suit which had been dismissed for non-prosecution-Suit pertained to year 1986 and insptie of expiry of ten years plaintiffs had failed to adduce evidence-­Plaintiffs were given many opportunities to bring evidence on record but they had failed to avail the same-Thereafter, plaintiff and his counsel remained absent without any intimation to Court when impugned order was passed-No plausible explanation was brought to the notice of Court as to the reason for absence of plaintiff and his counsel on the date when suit was dismissed-Order of trial Court was affirmed by Appellate Court in dismissing application for restoration of suit would not call for interference in revisional jurisdiction of High Court. [Pp. 39 & 41] A & B

PLD 1987 SC 139; PLD 1975 SC 678 and PLJ 1986 Lah. 222 ref.

Mr. Shakeel Ahmed, Advocate for Appellants.

Mr. Kamaluddin Ahmad, Advocate for Respondent.

Date of hearing: 24.1.2001.

judgment

Applicants have challenged the Order dated 17.05.2000 passed by the learned District & Sessions Judge. Karachi East, in Misc. Civil Appeal No. 96 of 1999, filed by the Applicants against the Order dated 22.10.1999, passed by the III Senior Civil Judge Karachi East, in Suit No. 1403 of 1996 (Old No 471 of 1986).

Brief facts of the case are that Applicants, who are Plaintiffs in Suit No. 471 of 1981 in which they have submitted that Plot No. 300-C, Roshan Abad, admeasuring 300 sq. yd. belongs to one Latif Sabir and was purchased by Applicant/Plaintiff No. 1 in the year 1980 for Rs. 15,000/- and physical possession of the Suit Plot was handed over to him. It is stated that prior to purchase of the suit plot, previous owner had shown all documents relating to the Plot to the Applicant/Plaintiff No. l.lt is further stated that Rent case No. 2084 of-1987 was filed against one Hasan Muhammad and got Ejectment Order frotn the Court of learned Rent Controller and against that Order, the Applicant/Plaintiff No. 1 and had tiled FRA No, 777 of 1982 before this Court, which is, still subjudice for adjudication. Thereafter, the Applicant/ Plaintiffs filed the Suit. Notice was served upon Respondent/Defendant, who filed his Written Statement in winch inter alia, he has denied the contents of

the Plaint and contended that he is the sole and absolute owner of the Suit Plot. Thereafter, by consent of the parties, learned trial Court settled the Issues on 21.02.1988 and the case was adjourned for evidence of the ' Applicants/Plaintiffs' side. Thereafter, the aforesaid case was received by HI Senior Civil Judge Karachi East on 09.10.1996 by way of transfer from that Court. The matter was fixed for evidence of the Applicant/Plaintiff since long and he failed to adduce evidence, therefore, on 15.10.1997 the Suit was dismissed for non-proseuction. The Applicants/Plaintiffs filed Application under Order 9, Rule 9 read with Section 151 CPC, through their Advocate praying for the restoration of the suit to its original position. Learned Counsel for Applicants/Plaintiffs also filed his own Affidavit in support of the above Application. Learned trial Court after hearing the parties dismissed the Application, against which they preferred the Civil Miscellaneous Appeal No. 96 of 1999 in the Court of learned District & Sessions Judge, Karachi East, which too was dismissed. Hence this Revision.

Mr. Shakil Ahmed, learned Counsel for the Applicants/Plaintiffs has assailed the Impugned Judgment passed by the learned District & Sessions Judge, Karachi East and Order of trial Court. He has contended that the learned trial Court has erred in law by dismissing the Application under Order 9, Rule 9 CPC as on the aforementioned date, the Applicant/Plaintiff was not feeling well. He has further argued that the Suit was dismissed for non-prosecution in the morning at 10.30 a.m. whereas it is settled law that the matters should be decided on merits by giving full opportunities to the parties.

On the other hand, Mr. Kamaluddin Ahmed, learned Counsel for the Respondent has drawn my attention on Order 17, Rule 3 CPC and has contended that Court may proceed, notwithstanding, either party fails to produce evidence and according to him, that any party to a Suit to whom time has been granted, fails to produce his evidence, was to cause attendance of his witnesses or to perform any other act necessary to the further progress of the Suit in which time has been allowed, the Court may, notwithstanding such default, proceed to decide the Suit forthwith. Mr. Kamaluddin Ahmed learned Counsel for the Respondent has further submitted that Order passed by the learned trial Court as well as Judgment passed by learned District & Sessions Judge, Karachi East are proper, just and are not warranted by any interference as the Applicants/Plaintiffs have failed to adduce evidence since long although full opportunities were afforded to them but they failed to avail the same. It is further contended that on the date of dismissal of Suit on non-prosecution, neither the Applicants/Plaintiffs nor their Counsel were present as well as no intimation was sent to the learned trial Court, as such, the Order of the learned trial Court is legal. Learned Counsel for the Respondent has also drawn my attention to the Counter Affidavit of the Respondent/Defendant before the learned trial Court and has also drawn my attention on Application under Order 9, Rule 9 read with Section 151 CPC for the restoration of Suit No. 1403 of 1996 to its original

possession and such Application is available with Record and Proceedings at page 51: according to him, in such Application under Order 9, Rule 9 read with Section 151 CPC; no reasons have been assigned for the restoration of the Suit to its original position. He has contended that only in Affidavit of an Advocate in Paragraph No. 3 it is mentioned that he was busy before this Court and therefore, could not appear within time before the learned trial Court and claim by 12.00 O'clock but the said Suit was dismissed at 11.30 a.m. According to him, this is not proper reason; if the learned Counsel for Applicants/Plaintiffs was busy in High Court; the Applicants/Plaintiffs ought to have been present in the Court premises and have been causing delay in the matter by one way or the other; the legal Heirs have not been brought on record as Applicants/Plaintiffs had died, which amounts wilful negligence. He has placed reliance on PLD 1987 S.C. 139 and PLD 1975 S.C. 678.

I have heard the learned Counsel for the parties and have given my aiuqous thought on their submissions and have also perused the Record and Proceedings of the case. I have also gone through the Impugned Order and Impugned Judgment passed by the respective Courts. Admittedly, the matter pertains to the year 1986 and in spite of expiry of more than 18 years the Applicants/Plaintiffs have failed to adduce the evidence. It is also quite obvious that Applicants/Plaintiffs were given so may opportunities to bring evidence on record but they have failed to avail the same; ultimately, on 15.10.1997 the Applicants/Plaintiffs and their Counsel remained absent without any intimation when the Impugned Order was passed by learned trial Court. I also find from the record of the learned trial Court that Suit of the Applicants/Plaintiffs was dismissed for non-prosecution at 11.30, a.m. when no body was present from their side; nor any intimation was given to the Court. This fact has been admitted in Paragraph No. 3 the Affidavit, filed by Mr. Farrukh Zia Shaikh, learned Counsel for the Applicants/Plaintiffs that he came in the trial Court at 12.00 O'clock when the Suit was already dismissed; whereas the learned Counsel appearing for the Respondent said that the Suit was dismissed for non-prosecution at 10.30 a.m. as such there is conflict in the version being put forward by the learned Counsel for Applicants/Plaintiffs, which amounts that the Applicants/Plaintiffs were intentionally and deliberately trying to prolong the matter wheres there are directions of the superior Courts that all cases should be decided at an earliest, by giving top priority.

Mr. Shakil Ahmed, learned Counsel for Applicants/Plaintiffs in rebuttable submitted that the Suit was dismissed for non-prosecution on 16.10.1997 and the Application has been moved on 18.10.1997 for restoration of the Suit to its original position but the learned Counsel for Respondent/ Defendant filed Counter Affidavit on such Application on 24.10.1998 and according to him exactly after the lapse of more than one year the Counter Affidavit "has been filed by the learned Counsel for Respondent/Defendant. According to learned Counsel for Applicants/Plaintiffs the trial Court has

passed Order on 22.10.1999 after a lapse of one year and therefore, no delay has been caused by the Applicants/Plaintiffs before the learned trial Court. He has further submitted that cases are to be decided on merits and not on mere technicalities and has placed reliance on PLJ 1986 Lah. 222, when these points were raised by the learned Counsel for Applicants/Plaintiffs; during the course of arguments, learned Counsel for Respondent/Defendant was put on guard to reply on these points. The learned Counsel for Respondent Mr. Kamaluddin Ahmed submitted that no doubt the Application has been filed on 18.10.1997 and Counter Affidavit has been filed on 24.10.1998 but the notice of such Application was served on the Respondent/Defendant on 21.08.1998 and the matter was adjourned to 24.09.1998 for Objections and, therefore, there is no delay whatsoever on the part of Respondent/Defendant and he is not party to the delaying tactics as being alleged by the learned Counsel for Applicants/Plaintiffs. Learned Counsel for Respondent Mr. Kamaluddin Ahmed has further submitted that as far as the order passed by the learned trial Court on 22.10.1999 is concerned, he has nothing to do with the judicial Order and it is upto the learned Judge to pass order whenever, it is passed by the learned Judge. He has further drawn my attention on Application under Section 151 CPC moved by the learned Counsel for Applicants/Plaintiffs that both the Plaintiffs Nos. 1 and 2 have expired in Suit No. 1403 of 1996 and, therefore, the respective Legal Heirs of these Plaintiffs Nos. 1 and 2 may be substituted for them as per law to adduce the evidence and proceed with the matter from according to learned Counsel for Respondent such Application is not being, supported by any Affidavit. I have also examined the Application which is not supported by an Affidavit and the names of the Legal Heirs are not mentioned in the said Application dated 24.05.1999. Admittedly, there is delay on the part of Applicants/Plaintiffs before the learned trial Court and they have failed to adduce their evidence and they have expired but their Legal Heirs have not been joined in the Suit before the learned trial Court as the names of the Legal Heirs do not appear in the Application and I am fortified by a case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar And Another (PLD 1975 S.C. 678) wherein the Hon'ble Supreme Court has observed that:

"The proposition could hardly be disputed that the principal object behind allegal formalities is to safeguard the paramount interest of justice. Infact whiio considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment, and male fide. Over a period time this development of codes and rules led to the evolution

of what is called "jurisprudence of Conception" a system of logical deduction from fixed premises".

In view of the Judgment of Hon'ble Supreme Court of distinguishing

the Procedural law----- Legal formalities and technicalities-Object — More

technicalities, unless offering insurmountable hurdles - No to be allowed to defeat ends of justice. In the instant case, there are hurdles put forward by the Applicants/Plaintiffs before the learned trial Court in adducing the evidence although so many opportunities have been given to the learned Counsel for the Applicants/Plaintiffs and the parties. In these circumstances, these are not surmountable hurdles but are insurmountable hurdles in view of the fact that the matter pertains to year 1986 and after lapse of more than 18 years the Applicants/Plaintiffs failed to adduce the evidence and there is no plausible explanation whatsoever from their side.

In view of the above discussion, I am of the considered view that the Order of the learned trial Court and Judgment of the learned District & Sessions Judge, Karachi East, passed on sound reasons and I see no reason to interfere with the Impugned Order and Judgment passed by the respective Court and accordingly, this Revision Application is dismissed with no Order as to costs.

(A.A) Revision dismissed.

PLJ 2002 Karachi 41

Present: MUSHIRALAM, J.

M/s. M.R. TRANSPORT COMPANY through its partner-Plaintiff

versus

M/s. NATIONAL GENERAL INSURANCE CO. LTD. KARACHI-Defendant

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

....S. 9-Insurance Act (IV of 1938), S. 47-C(2)-Dispute relating to insurance policy in respect of motor vehicle-Jurisdiction of Civil Court whether barred- Although any party to such dispute can take its case before 'Settlement Board' constituted under Insurance Act, 1938, yet such provision cannot be deemed as a barring clause-Jurisdiction of Civil Court in terms of S. 9 of C.P.C. extends to all claims of Civil Nature unless expressly or impliedly barred-Mere existence of alternate remedy would not divest Civil Court of its inherent jurisdiction to adjudicate of civil nature unless otherwise barred. [P. 46] C

(ii) Insurance Act, 1938 (IV of 1938)-

—S. 1-Liability of Insurer to identify loss caused to plaintiff in terms of Insurance Policy-Once insurance contract was executed then on happening of any act, event or contingency encompassing risk covered, liability of insurer to indemnify loss would crystalize-Insurer cannot be allowed to wriggle out or repudiate its liability on the ground not available under law, more so, alleging that due to over sight while printing policy-Plaintiff had proved his claim through evidence while defendant failed to rebut such claim-Defendnat (insurer) was thus, obliged to indemnify plaintiff in the sum of specified amount covered by insurance poh'cy-PlaintifFs suit was decreed in terms of Insurance Policy.

[P. 44, 44 & 46] A, B

Mr. AkhtarAli Mahmood, Advocate for Plaintiff. Mr. Iftikharuddin Siddiqui, Advocate for Defendant. Date of hearing: 14.2.2001.

judgment

Plaintiff has filed instant suit for the recovery of insurance claim in respect of Mitsubishi Pajero Jeep Mode 1993, Registration No. BC-3275, Said vehicle was comprehensively insured under the insurance Policy No. KR-A-063/1193 in the sum of Rs. 8,00,000/- from the defendant insurance company, covering risk mentioned therein for a period from 24.11.1993 to 23.11.1994, in accordance with the terms as set insurance policy Es. P-l/3.

Briefly stating facts are that on 24.8.1994 subject vehicle was snatched on gunpoint from the plaintiff. FIR No. 494/94 of the incident was lodge with the P.S. Gulshan-e-Iqbal on the same date.

Plaintiff lodged the claim with the defendant insurance company. Survey was carried out & all coddle formalities as required Toy the defendant before settling the claim were carried out but, the defendant through their letter dated 1.10.1995, repudiated the claim of the plaintiff, consequently instant suit was filed.

Record shows that the defendant was served. However, the written statement was not filed within the time prescribed. Defendant was debarred from filing written statement on 24.4.1996. Even the application filed by the defendant under Order 9, Rule 13 C.P.C. was dismissed on merits. Defendant was ordered to be proceeded ex-parte.

Case came up for final disposal plaintiff evidence was recorded on 12.9.2000, such evidence had gone un-rebutted as the counsel for the defendant again choose not to appear & cross-examine the plaintiff, though chance was given.

It is contended by Mr. Akhtar Ali Mehmood, learned counsel for the plaintiff that plaintiff had lodged his claim within

without any just cause, one year after expiry of the Insurance Policy, rejected the claim. Insurance policy expired on 23.11.1994, incident whin formed the basis of claim took place on 24.8.1994. The defendant through letter dated 1.10.1995 (Ex. P-l/8) unjustly repudiated the claim. It was further contended that the insurance policy provided for the indemnity against loss in terms of Section 1 of the said policy, where under the defendant insurer undertook to indemnify the insured against loss or damages to the insured vehicle on happening of the eventuality mentioned therein. It is also pointed out that the said incident does not find mentioned in the General Exceptional Clause, of the Insurance Policy. Under the circumstances the claim of the plaintiff had gone un-rebutted & he is entitled for the same.

The plaintiff has claimed judgment and decree in the sum of Rs. 8,00,000/- being value of the subject vehicle and has also claimed interest at the rate of 5% above prevailing bank rate with monthly rest w.e.f. 29.10.1994, till realization.

It was further contended by the learned counsel that the claim of interest is made pursuant to sub-section (2) to 47-B of the Insurance Act 1938 (hereinafter referred as "Act").

Mr. S.M. Shuja learned counsel for the defendant strenuously contended firstly that the claim of the plaintiff is barred by law. In the first instance the plaintiff ought to have taken the dispute to the 'Claims Settlement Board' as constituted under sub-section (2) to 47-C, of the Insurance Act, 1938, Secondly the policy does not cover the risk as notified in letter dated 10.8.1995.1 have heard both the learned counsel & perused the record.

I deem appropriate to deal with the legal objections as urged by the learned counsel for the defendant. In order to appreciate his 1st objection Section 47-C (1) of the Act is reproduced as under.

Where any dispute arises under a policy insuring a motor vehicle or covering any liability of its owner arising out of the use of the vehicle, any party to the dispute may make an application for adjudication to the 'Claims Settlement Board' constituted under sub-section (2).

Bare perusal of the above referred provision suggest that any dispute arising under insurance policy in respect of a motor vehicle or encompassing any liability of its owner arising out of use of insured vehicle any party may take up such dispute before the 'Settlement Board' constituted under sub-Section (2) to Section 47-C of the Act of 1938. Such provisions cannot be read as a barring clause. Jurisdiction of the Civil Court in terms of Section 9 of Civil Procedure Code 1908 extends to all claims of civil nature unless expressly or impliedly barred. Civil Court jealously quard their jurisdiction. Above referred provisions only signifies the existence of alternate remedy for resolution of dispute over motor insurance claim. Where there are more

than one forum available for the resolution of a dispute, then generally choice of forum rest with the plaintiff.

Unlike Constitutional jurisdiction mere existence of alternate remedy will not divest civil Court of its inherent jurisdiction to adjudicate dispute of civil nature unless otherwise barred. Even otherwise no prejudice is shown to have been caused to the defendant, who was extend full & fair opportunity to defend, which was not availed.

Only provision I could lay hand under the Act, that apparently creates a conditional bar to invoke jurisdiction of Civil Court is Section 107 of the Act, which too, stipules previous sanction of Advocate General for invoking jurisdiction of Civil Court against persons mentioned therein, who offer or induces directly or indirectly to take out, continue or renew a policy, any rebate in his commission or premium in terms of Section 41 (1) of the Act. Admittedly claim in suit is not hit by this provision. First objection therefore, is not sustainable & is accordingly rejected.

Now adverting to second limb of the arguments of learned counsel for the defendant that subject claim is not covered under the policy. As stated above comprehensive insurance coverage was provided under Section 1 of the policy, which runs as follows:

SECTION 1.--LOSS OR DAMAGE

The company will indemnify the Insured against loss of or damage to the Motor Car and/or its accessories whilst thereon— By accidental external means.

(a) By fire external explosion, self-ignition or lightning or frost or burglary or housebreaking or theft. By malicious act. Whilst in transity by road, rail, inland waterway, lift or elevator. Even the General exception clause does not find mention of the incident forming basis of plaintiffs claim. Very fact that, the defendant while rutting the claim of the plaintiff for the first time came up with following justification through letter dated 1.10.1995.

We have to state that our letter of 09-04-1995 was in the light of conditions etc. contained in the current Motor Tariff wherein loss/ damage due to act of Terrorism, is excluded under head "General Exceptions". Due to oversight while printing the Policy Forms, concerned clause remained un-chapged causing in-convenience to you, for which we regret very much. (Emphases added)

Above repudiation, shows that the incident/theft depriving the plaintiff of his vehicle was not excluded under the General Exception Clause.

By issuance of insurance policy against agreed premium, the insurer assumes the responsibility to indemnify the insured against possible loss, damage or injury that may be sustained or occasion on account of any contingency, hazard, danger or on happening of any act/event, commonly known as "Risk" covered that may occur or take place at a future date, but during the currency of the policy. Once the insured proves that the loss, damages or injury on account of "Risk" covered has been sustained. Then the heavy burden lays upon the insurer to dislodge & repudiate such claim by establishing any of the factors namely:

(i) Risk was not covered.

(ii) Risk was excluded by exception clause.

(iii) Policy was obtained by (a) suppression of material fact (b) misrepresentation (c) Fraud by the insured (iv) breach of material term/condition on which policy was issued.

In the instant case plaintiffs claim was repudiated by the defendant through letter dated 1.10.1995 on the ground that the 'risk' or loss/damage due to act to terrorism "due to oversight while printing the policy form was not included in the exception clause.

Subject policy was issued on 24.11.1993, loss occasioned on account of theft on 24.8.1994, during the subsistence of the policy. Repudiation was made after more then one year from the date of reporting loss & expiry of policy. The reason assigned for the repudiation was not attributable to the insured admittedly loss was sustained by the plaintiff on account of 'theft' as specified in sub-clause (b) to Section 1 reproduced above. Burglary, house breaking & theft are all acts of terrorism, and such 'Risk' are covered under the policy. Defendant cannot be allowed to wriggle out of its contractual obligation to indemnify the insured by assigning restricted or any of the Several shadec of meaning to a particular risk agreed to be covered. A word used in a contract or specifically speaking in case of a insurance contract a particular 'Risk' covered are understood to mean & includes with all its incidents, concomitant, and shades of meaning which may, be attributable to such word or "Risk" in common parlance, unless a particular or restricted meaning is agreed to be assigned by the parties to a contract. After a contract is executed then a party cannot be unilaterally allowed to apply or assign any restricted or particular shade of meaning to a word or the 'risk' covered to avoid or repudiate the contract, & avoid its obligation & or liability arising there under.

Once a insurance contract is executed then on happening of any act event or contingency encompassing "Risk" Covered, the liability of the insurer to indemnify the loss crystallizes. A insurer cannot be allowed to, wriggle out or repudiate its liability on the ground not available under law, more so alleging that due to oversight while printing the 'Policy From'

such excuse that two, after expiry of the policy can hardly justify the stance taken by the defendant Even if such be the case, then it is the insurer to suffer & not the insured. Under circumstances that second objection is also rejected. The repudiation of the claim was without any legal justification.

Adverting to merit of the claim, defendant failed to lead any evidence to rebut the claim. The policy is admitted.

There is no dispute that the policy was taken out in the sum of Rs. 8,00,000/-. The defendant were obliged to indemnify the plaintiff for any eventually losses on account of happening of the contingence or 'Risk Covered' therein. That the plaintiff was deprived of his vehicle on gunpoint. Plaintiff successfully established, the claim. Questions as to whether plaintiff is also entitled to interest at the rate of 5% higher than the prevailing bank rate, is concerned. Answer to this question is provided by Section 47-B of the Act which stipulated that whenever claim under the policy issued by the insurer matures & become due and the beneficiary thereto has complied with the coddle formalities then within 90 days from the date when the claim become due & payable or from the date when the formalities are complied with, the insurer is obliged to settle such claim, otherwise, insurer is saddled to bear to pay interest at the rate of 5% higher then the prevailing bank rate on such claim. Section 47-B of the Act has been grafted by the legislature apparently with an object to ensure that claim are settled and paid promptly and without delay. In event of unjustified delay the insured may be adequately compensate and at the same time is the deterrent for the insurer not to deprive insured of his due and legitimate claim without any legitimate excuse.

Foundation of all commercial contracted including insurance contract are based on trust, if the foundation of contract is allowed to be defeated, then no more sanctity could be attached to any contract. Insurance companies play vital role in commercial world they are expected to be even more beneficial not only in their out look but must practice beneficial & generously attitude while setting claims of insured rather then finding lame excuses like the one in instant case to refute & dislodge the claim at any cost, such tendency which is rempant, need to be changed.

In the instant case as has been held above the repudiation of the claim of the defendant was unfounded, therefore. I have no option but to decree the suit was prayed with cost.

(A.P.)

Suit decreed.

PLJ 2002 Karachi 47

Present: mushir ALAM, J. IN THE MATTER OF R.R.P LIMITED & NIMIR LIMITED

J.M. No. 24/2000, heard on 28.2.2001. Companies Ordinance, 1984 (XLVII of 1984)--

—Ss. 284 & 287-Merger/amalamation of petitioner Companies into a single combined company in accordance with scheme of arrangement-Members of both companies have by majority approved resolution of amalgamation/merger-Neither employees nor any creditor have approved application for merger-Both company disclosed their latest financial position-Nothin in proposed scheme runs contrary to . companies Ordinance, 1984--Merger/amalgamation would, thus, be not against public interest or in violation of any law-Merger/amalgamation of petitioner companies was allowed in terms of S. 284 of Companies Ordinance, 1984. [P. 48] A

Mr. Agha ZafirALi, Advocate for Petitioners. Date of hearing: 28.2.2001.

judgment

Through instant petition under Section 284 read with Section 287 of the Companies Ordinance 1984, seeking sanction of this Court, as required under the law for merger/amalgamation of Petitioner No. 1 i.e. M/s. R.R.P. Limited with Petitioner No. 2 i.e. M/s. Nimir Resins Ltd., into a single combined company in accordance with the scheme of arrangement, proposed and filed as Annexure 'A' to the petition.

Notice of the petition for the proposed amalgamations of petitioners as required under Rule 953 of S.C.C. Rules (O.S) was affixed on the Court notice board, notice was also issued as per requirement of Section 288 of the Companies Ordinance, 1984 to the Registrar Joint Stock Companies Publication was also effected on 25.1.2000, in English Daily from Karachi and Naw-e-Waqat an Urdu daily from Karachi & Lahore on 8.8.2000 and so .also in the official Gazette of Pakistan dated 9.8.2000.

On C.M.A. No. 1567/2000, separate meeting of the members of both the petitioners was ordered to be held to consider, and if thought fit, approve, adopt & agree to the proposed scheme of merger/amalgamation Annexure 'A' to the petition. Such meetings were held by each of the petitioners on 30.12.2000, whereby members of Petitioner No. 1, Representing 77.51% in value of share held by members present in person or by proxy, approved the scheme & like wise members of Petitioner No. 2 representing 82.45% in value of share held by members in person or by proxy approved the scheme. Reports of such meetings were filed in Court on

19.2.2001. Comments of the Registrar of Joint Stock Companies are also on record.

There is no opposition to the grant of petition.

I have perused the proposed scheme of amalgamation. Members of both the Companies have by majority approved the resolution of amalgamation/merger. Neither the employees nor any of the creditors have come forward to oppose the scheme. Both the companies have disclosed their latest financial position. Apparently, nothing in the proposed scheme runs contrary to the Companies Ordinance, 1984. In this view of the matter merger/amalgamation would be in the interest of shareholders of both the Companies. There is no material on record to suggest that the merger would be against public interest or in violation of any law. The petition is therefore, allowed Amalgamation Merger Scheme (Annexure 'A' to the Petition) is sanctioned ; consequently M/s. R.R.P. Ltd., Petitioner No. 1 will stand merged/amalgamated with M/s. Nimir Resins Limited, Petitioner No. 2 as on the date on which/the copy of the order of Court sanctioning the scheme is filed with the Registrar of Companies both, at Karachi & Lahore in terms of Clause 18 of the Scheme.

Consequently, as required under Section 287 of the Companies Ordinance, 1984 following orders are passed so as to take effect at the same time as this order sanctioning the scheme of arrangement take effect in accordance with provisions of Section 284 (3) of the Companies Ordinance, 1984:--

(i) Transferring to and vesting in the M/s. Nimir Resins Lta., (Petitioner No. 2) the whole of the under taking of M/s R.R.L. (Petitioner No. 1) together with all its properties, assets, rights, liabilities, and obligation of every description including those specifically, described in Paragraph 2 of the scheme of arrangement dated 10.11.1999, Annexure 'A' to the Petition.

(ii) Continuation by the Petitioner No. 2 of all legal proceedings instituted by or against the Petitioner No. 1 that may be pending as on the date of sanction of scheme of amalgamation.

(iii) Petitioner No. 2 is directed to issue/allot 1 (one) ordinary share of Petitioner No. 2 of the nominal value of Rs. 10 each credited as fully paid up in Petitioner No. 2 for each 1 (one) ordinary share of the nominal value of Rs. 10/- each credited as fully paid up in the Petitioner No. 1 to the registered holders of those shares in the Petitioner No. 1. The determination of the registered shareholders of share in Petitioner No. 1 and the respective entitlement of such ordinary share of Petitioner No. 2 the treatment of fractional entitlement & allotment of such share & delivery of share certificate by the Petitioner No. 2 shall be in accordance with Paragraph 4 of the scheme

(Annexure 'A' to the petition), and that for this purpose the register of members of the Petitioner No. 1 shall be closed for a period of (seven) days prior to & inclusive of the date fixed by the directors of Petitioner No. 2 by reference to which the Registered share holder of the ordinary share of the Petitioner No. 1 are to be determined for entitlement to ordinary shares of the Petitioner No. 2 & that notice of such closure to be published not less than 7 (seven) days prior to such closure in at least one issue each of daily news paper in English & Urdu language respectively having circulation the Province of Sindh & Punjab Both.

(iv) The Petitioner No. 1, shall stand dissolved, without winding up, on the date on which the ordinary shares of the Petitioner No. 2 are allotted to the holders of the ordinary shares of Petitioner No. 1 in accordance with the scheme of amalgamation as set forth in Annexure 'A' to the petition.

The Petition in terms stated above stand allowed. (A.A.) Petition accepted.

PL J 2002 Karachi 49 (DB)

Present sabihuddin ahmad and S. An aslam jafri, JJ.

ABDUL BASIT ZAHID and another-Appellants

versus

ABDUL BASIT ZAHID and another ABDUL BASIT ZAHID and another ABDUL BASIT ZAHID and another —Respondents

LA. No. 38 of 1999, decided on 15.9.2001.

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

—Ss. 12 & 21-Civil Procedure Code (V of 1908), S. 12(2)-Decree in suit for recovery of loan amount-Defendants to whom loan was advance did not cross-examine witness produced by plaintiff nor they produced any evidence in rebuttal-Case of plaintiffs had thus, gone un-rebutted and un-challenged--Defendants instead of filing appeal filed applications under S. 12 of Act XV of 1997 and under S. 12(2) of C.P.C. which were dismissed-Defendant's appeal filed after dismissal of his applications was hopelessly time-barred-Plca of defendant's raised for the first time in appeal that special forum had been created by the Government was not raised while the suit proceeded for adjudication before Banking Court-Doctrine ofde-facto however envisage that bona fide act in public interest performed by persons assuming authority which turn out to be illegal, were assumed to have been performed by a de-jureauthority/person and binding-Impugned judgment and decree by trial Court was maintained in circumstances. [Pp. 52 to 54] A, B & C

1999 SCMR 13; PLD 1997 SC 426 ref;

Mr. Muhammad Aziz Khan, Advocate for Appellants. M/s. Mansoor-ul-Arfin and Salim Salaam Ansari, Advocates for Respondents.

Date of hearing: 30.8.2001.

judgment

S. Ali Aslam Jafri, J.-This appeal filed on 9.3.1999 calls in question the order dated. 02.02.1999 passed by the Banking Court No.-III, Karachi refusing to set aside judgment and decree dated 15.1.1998 passed in Banking Suit No. 38/1983 jointly and severally against the appellants/ Defendants Nos. 1 & 2 and Respondent No. 2 who was arrayed as Defendant No. 3 in the suit.

1. The facts relevant for the purpose of this appeal are that the respondent/Plaintiff No. 1 a "Modarba" managed by the ModarbaManagement Company filed a suit for recovery of Rs. 37, 20.000/- against the appellants and Respondent No.

2. The case of the plaintiff is that Defendant No. 1 by his letter dated 24.9.1992 applied to the plaintiff for a Modarba facility to the extent of Rs. 3.00 million for the purchase of shares of various companies including the shares of Pakistan Chrome Mines Ltd. and share of First Premier Modarba and some other companies. Such Modarba agreement was entered between the plaintiff and the Defendant No. 1 on 25.5.1992 wherein it was agreed that Defendant No. 1 will act as agent of the plaintiff in purchasing the required shares of Rs. 3.00 million, the price whereof shall be paid by the plaintiff to the supplier and the Defendant No. 1 shall pay an amount of Rs. 37,20,000/- to the plaintiff as per chedule containing the break up of the same as mentioned in Para-2 of the plaint. In pursuance of the said agreement the Defendant No. 1 purchased the shares and issued such certificate, thereafter payment was made to Defendant No. 3 by the plaintiff. The Defendant No. 1 pledged 1,20,000/- shares of Pakistan Chrome Mine Ltd., 46,000/- shares of First Premier Modarba, 15.000/- shares of KESC and 39,900/- shares of Din Textile Mills Ltd., with the plaintiff as a security for repayment of the amount of Modarbafacility. He had also executed- a promissory note to which Defendant No. 2 executed her personal guarantee in favour of the plaintiff for repayment of the said amount to the plaintiff. After the purchase of the required shares, the Defendant No. 1 by his letter dated 27.5.1992 informed the plaintiff accordingly and the plaintiff after receiving the bill issued by Defendant No. 3 a broker of Karachi Stock Exchange, issued a cheque dated 1.5.1992 for Rs. 3 million in favour of Defendant No. 3 which was delivered to Defendant No. 1 in pursuance of the buy-back agreement executed by Defendant No. 1 in favour of the plaintiff.On 3.8.1992 Karachi Stock Exchange issued a notice informing that all transactions of Pakistan Chrome Mines Ltd. which took place between 21st July, 1992 to 2nd August 1992 and all deliveries which were to take place on 10th August, 1992 should not be accepted by clearing house and the members involving in those transaction should settle the transaction mutually out side the clearing house. On verification from Pakistan Chrome Mines Ltd. regarding the genuineness of the shares and transfer deed held by the plaintiff in pledge by Defendant No. 1, the company informed that the said 29,800/- shares were cancelled. Some what similar position was noted in respect of the other shares of the other companies. Defendant No. 1 was informed that his security har fallen short. Any how the defendants failed to make payment of their installments has per schedule and, it further transpired that they had committed fraud upon the plaintiff by pledging spurious shares with him. The Defendants Nos. 1 and 2 apparently in order to evade their liability filed Suit No. 118/1993 in this Court against the plaintiff and Defendant No. 3 challenging the transaction and denying their liability in respect of spurious shares pledged by them with the plaintiff. It was under these ircumstances that the plaintiff filed a suit against defendants for recovery of Rs. 37,20,000/- with mark-up at the rate of 20% per annum from the date of suit till payment was made. The defendants, according to plaintiff are jointly and severally liable for such payment. The Defendants Nos. 1 and 2 filed their written statement jointly while the Defendant No. 3 filed his written statement separately. In their written statement Defendants Nos. 1 and 2 denied the plaintiffs claim, however, admitted that Defendant No. 1 had entered into a Modarba agreement with the plaintiff and as such became agent/customer of the plaintiff and acquired certain shares from the supplier in the market to be sold to the plaintiff and subsequently to be repurchased from the plaintiff in accordance with the said agreement. The Defendant No. 2 admitted to have executed personal guarantee for repayment of the amount. Execution of promissoiy note and other documents referred by plaintiff was admitted by Defendant No. 1. However, it was pleaded that the Defendant No. 1 had acted as an agent of plaintiff in good faith and performed his duty with due care and diligence in that capacity. Execution of pledge agreement and pleading of the share was also admitted. It was further stated that Defendant No. 3 had committed a fraud with the Defendants Nos. 1 and 2 and as such they denied their liability to make payment to the plaintiff as they had neither obtained finance from the plaintiff nor they were beneficiaries in that context. It was denied that Defendant No. 1 was a customer in respect of the finance provided by the plaintiff to Defendant No. 3. Maintainability of the suit was also challenged. 5. The Defendant No. 3 in his written statement stated that no cause of action has accrued against him as he was stranger to the transaction. He denied his signature on the receipt Annexure "P/9" to the plaint. He further stated that he was only a broker when the shares were sold and in any manner a seller of the shares t.s such he shall not be liable and responsible for payment to the plaintiff.

3. In view of the pleadings of the part es, the following two issues were framed by the learned trial Court: "I. Whether the defendants are liable to pay amount as claimed by the plaintiff? 2. What should the decree be?" One Deveraj Viram Karia, Secretary of the plaintiff filed his affidavit-in-evidence and produced the document. He was cross-examined by the learned counsel for Defendant No. 3. Despite repeated opportunities the Defendants Nos. 1 and 2 failed to cross-examine the said witness and as such the plaintiff closed his side. The Defendants Nos. 1 and 2 did not avail the chances to lead their evidence despite sufficient time having been given to them. The Defendant No. 3 filed his affidavit-in-evidence stating same facts as mentioned in his written statement denying his liability. However, he showed his willingness to furnish the security before the trial Court for payment of the amount to the plaintiff if he wins his case, in order to maintain his market reputation. He further showed his willingness to pay the disputed amount by way of reasonable monthly installments. The learned trial Court after sifting the evidence on record and taking into consideration the written arguments filed by the counsel for the parties came, to the conclusion that Defendants Nos. 1, 2 and 3 are jointly and severally liable to pay the amount claimed by the plaintiff and decreed the suit with costs. 10. It is pertinent to mention here that suit was decreed on 15.01.1998 but no appeal was filed till 9.3.1999. It also appears that instead of filing an appeal the appellants/Defendants Nos. 1 and 2 filed an undated application under Section 12 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, XV of 1997 R/w Section 151 CPC which was dismissed on 6.6.1998. However, this dismissal order was recalled by the trial Court and the application was reheard and it was again dismissed on 10.10.1998 alongwith another application filed under Section 12 (2) CPC r/w Section 151 CPC. It is also necessary to state here that Execution Application No. 215/1998 is pending adjudication before the trial Court. We have heard the learned counsel for the parties .and perused the record. In view of factual and legal position as stated above, the learned counsel for the appellants was unable to convince us that the judgment and decree passed by the learned trial Court and the orders on application u/S. 12 of the Act or u/S. 12 (2) CPC call for any interference by this Court . The appellants being party to suit and having filed their written statement neither cross-examined the witness produced by the plaintiff nor led any evidence in rebuttal. The case of the plaintiff has gone unrebutted and unchallenged. Even otherwise it is based on documentary evidence which has not been seriously disputed by the appellants rather admitted by them. We find force in the contentions of Mr. Mansoorul-Arfin learned counsel for the respondent that appeal is hopelessly time barred so also it has no merits. Instead of filing an appeal at the proper time, the appellants preferred to file applications under Section 12 of the Act and 12 (2) of CPC, hence they have to thank their own starts. 13. The only argument advanced before us by the learned counsel for the appellants is that by a Notification dated 27.05.1997 in partial modification of Notification No. F. 48(7)/80-A (II) dated 30.12.1996 Federal Government had constituted a Tribunal consisting of Judge Banking Court No. I Karachi to try all cases under Modarba (Flotation and Control) Ordinance XXXI of 1980 within the Province of Sindh. The learned counsel for the appellants has therefore argued that in view of the above notification the judgment and decree passed by the Banking Court No-II Karachi on 15.1.1998 is a nullity for want of jurisdiction. Mr. Salim Salaam Ansari learned counsel for the Respondent No. 3 who has not filed any appeal and has supported the contention of Mr. Muhammad Aziz Khan where as Mr. Mansoorul Arfin learned counsel for the Respondent No. 1 has seriously disputed this position. 14. We have considered the submissions made by the learned counsel for the parties. No doubt by virtue of notification as referred to above a tribunal was set up which had become empowered to try all cases under Ordinance No. XXXI of 1980, within the Province of Sindh but it appears that the said notification was neither brought to the notice of Banking Court nor any such application was filed by any of the parties to the suit. Infact the suit proceeded all long without any objection or application for its transfer to the newly created tribunal, as such the bona fide act of the learned, trial Court passing the judgment and decree on merits stands protected under the doctrine of de-fecto. It being based on bona fides and on merits should be assumed to have been passed de jure and shall be deemed to possess all attribute of a lawful operative and binding order. Reliance is placed on the case ofJaved Iqbal vs. Kh. Muhammad An/" (1999 SCMR 13) and Mehmood Khan Achakzai vs. Federation of Pakistan (PLD 1997 SC 426). Doctrine of de-facto which is based on higher consideration of public policy is calculated to, ensure contributy, to avoid dislocation and to prevent confusion in the conduct of public affairs on the one hand, and the safeguard of public and private rights emerging from the de facto act of officer performing functions of the State in the ordinary course, on the other. In fact the doctrine of de factois a well recognized doctrine embedded in our jurisprudence. Under this doctrine bona fide act in public interest performed by persons assuming authority, which turn out to be illegal, are assumed to have been performed by a de jure authority/person and binding. The acts of the officers de facto performed by them within the scope of their assumed official authority in the interest of public or third person and not for their own benefit are generally as valid and binding as if they were the acts of officers dejure.

Resultantly, this appeal was dismissed with costs. These are the reasons for the short order we had announced on 30.8.2001 at the time of conclusion of arguments of the learned counsel for the parties.

(A.A.) Appeal dismissed.

PLJ 2002 Karachi 54 (DB)

Present: S.A. rabbani and A.R. leghari, JJ.

ASIF BAIG MUHAMMAD-Petitioner

versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU CHIEF EXECUTIVE'S SECRETARIAT CONSTITUTION AVENUE, ISLAMABAD

and 3 others-Respondents

C.P. No. D-1283 of 2001, decided on 18.7.2001. National Accountability Bureau Ordinance, 2000--

—-S.9(b)-Bail-Grant Of-Prayer for-There was feeble link of petitioner with scam of land grabbing-Petitioner remanded to judicial custody- Object of incarceration of accused before conviction is not and cannot be a punishment for offence yet to be proved at the trial-Incarceration of accused (petitioner) at present stage would thus, be against norms of justice in a civilized human society-Case against petitioner was that of further enquiry justifying grant of bail. [P. 57] A

PLD 2000 Lahore 564 ref.

Mr. Abdul Hafeez Pirzada, Advocate Assisted by M/s. Hassan Aurangzeb, Rana Ikramullah, Syed Nasir Abbas Rizvi and Hisam-ud-Din, Advocates for Petitioner.Mr. Muhammad Anwar Tarique, Deputy P.G.A. N.A.B. assisted by M/s. Dilawar Hussain and Amir Raza Naqvi, Advocates for Respondents.

Date of hearing: 18.7.2001.

order

S.A. Rabbani, J.--The petitioner was arrested by N.A.B. and the Administration Judge, Accountability Courts, Karachi remanded him to N.A.B. custody from time to time, and finally, on 26.06.2001, he remanded the petitioner to judicial custody, as the investigation was complete and N.A.B. authorities were to decide as to whether a reference should be filed or not. This Constitutional Petition has been filed with the following prayers.: That this Hon'ble Court may direct that the petitioner be set at liberty forthwith.

(a) That this Hon'ble Court may declare the arrest, arid detention of the petitioner to be without lawful authority and of no legal effect. That this Hon'ble Court may grant any other/further relief fit and appropriate in the given circumstances of the case; That during the pendency of the instant Constitutional Petition this Hon'ble Court may be pleased to direct that the petitioner be enlarged on bail and set at liberty on furnishing personal surety and or bonds as may be deemed appropriate by this Hon'ble Court." On a specific queiy about this prayer, Mr. Hassan Aurangzeb, learned counsel for the petitioner, submitted that the petition is only for bail and may be treated as such. In view of this clarification the matter shall be examined and treated for the purpose of bail only.

The case relates to an alleged loss of more than 954 million rupees to the Exchequer through an illegal and mala fide allotment of land reclaimed from Malir river. This 341.68 acres land was allotted to one Mst. Gulnar Begum, wife of Agha Tarqiue Khan a Provincial Minister at the relevant time. After execution of lease deed in favour of Mst. Gulnar Begum, the land was purchased by the petitioner, through a deed of conveyance and assignment of lease, in the name of M/s. Marina City Development, in his capacity as partner. The concerned department has cancelled the allotment and lease in favour of Mst. Gulnar and the petitioner has filed a civil suit to protect their interest in and title to the property. These are the facts that are not disputed by the parties.

At the outset, learned counsel for the petitioner made his submission about jurisdiction of this Court to grant bail in such cases, and relied upon the case ofAsfandyar Wall vs. Fed. of Pakistan and others (C.P. No. 13/2000 wherein the Supreme Court observed that it is well settled that the superior Courts have the power to grant bail under Article 199 of the Constitution, independent, of any statutory source of jurisdiction such as Section 497 of Criminal Procedure Code, and that'Section 9 (b) of the N.A.B. Ordinance to .that extent is ultra vires to the Constitution. He also cited judgment of Full Bench of the Lahore High Court in the case of Anwar Saifullah Khan (PLD 2000 Lahore 564).

Mr. Anwar Tarqiue, learned Dy. Prosecutor General N.A.B. did not dispute the proposition about jurisdiction and submitted that the High Court has jurisdiction to grant bail in appropriate cases. The question about jurisdiction, thus, stands settled accordingly. About the liability and involvement of the petitioner, Mr. Aurangzeb submitted that he purchased the land from the owner for value and without notice. He contended that lease was in favour of the allottee, and under that lease, she was authorised to transfer the land. To establish criminal liability of the petitioner, Mr. Anwar Tarqiue submitted that the petitioner remained concerned with the scam since beginning. According to him, the other partner Khalid Masood of M/s. Marina City Development masterminded this land scam in collusion with Agha Tarique and his wife Ghulam Begum. In this connection, he referred to the definition of 'person' given in National Accountability Bureau Ordinance, 1999, which includes the partners in the case of(a partnership firm. Mr. Aurangzeb claims that the partnership firm was constituted after the land was a allotted and lease to Mst. Gulnar Begum. In that case, the petitioner's liability for the involvement of Khalid Masood in the allotment scam shall depend upon the existence of the firm at that time and Khalid Masood's involvement in his capacity as partner of the firm or on its behalf. It the firm did not exist at the time when such illegal allotment was obtained, the petitioner shall not be liable for the acts of Khalid Masood. Mr. Anwar Tarique further referred to the conduct of the petitioner in pursuing some matters after the land was purchased by the petitioner firm. These acts, obviously, cannot be made basis of an inference of his involvement in the offence of illegal allotment. Payment of less stamp duty, on the Deed of Conveyance in his favour, by the petitioner has also been mentioned as a ground being an attempt to cause loss to the Government, but this is quite a separate matter and has no nexus with the allotment scam. To show petitioner's connection with the scam, Mr. Anwar Tarique referred to a cheque, for Rs. 17,050,703/-, issued by the petitioner, which was deposited by Mst. Gulnar Begum as occupancy price of this land. Mr. Aurangzeb submitted that the cheque was issued towards the cost of the land purchased and Mst. Gulnar used it as she desired. Mr. Anwar Tarique further contended that involvement of the firm Marina City Development and thus of the petitioner, its partner, is reflected by the fact that the application given by Mst. Gulnar Begum to the then Chief Minister for conversion of mining lease into 99 years lease for" commercial purpose, mentioned construction of "Marina City".

Mr. Aurganzeb explained that since the land is adjacent to the Marina Club, this name of the project would have been conceived but it had no concern with the firm of the petitioner who came into picture afterwards. Mention of this name in that application might be a clue, but it would be short of an evidence of the connection of the two. The material discussed above merely establishes a feeble link of the petitioner with the scam. It would need a more substantial evidence to prove criminal liability of the petitioner. But, as mentioned by the Administration Judge, in his order of remand passed on 26.06.2001, the investigation is already over. The petitioner is no more required by the NAB authorities for investigation. He has been remanded to judicial custody. He is in custody since 28.04.2001. Mr. Anwar Tarique submits that the N.A.B. authorities have 90 days to complete the process and some time is still available to submit a reference. The object of incarceration of an accused before conviction is not, and cannot be, a punishment for the offence, yet to be proved at the trial, because, in that case, the trial itself would be a farce. In view of all these facts, we are of the view that incarceration of the petitioner at this stage would be against the norms of justice in a civilized human society. This is a case of further enquiiy justifying grant of bail. Petitioner is, accordingly, admitted to bail subject to surety in the sum of Rs. One million and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. Petition stands disposed of accordingly.

(A.P.) Bail granted.

PLJ 2002 Karachi 57 (DB)

Present: SABIHUDDIN AHMAD AND S. ALIASLAM JAFRI, JJ.

BADAR ALAM BACHANI-Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU through its Chairman, Chief Executive Secretariat Islamabad and another-Respondents

C.P. No. D-1696 of 2001, decided on 28.8.2001. Criminal Procedure Code, 1898 (V of 1898)--

—-S. 497--Constitution of Pakistan (1973), Art. 199-Trial before Accountability Court on allegations that petitioner's assets were incompatible to his known legitimate source of income-Prayer for bail of accused-Nature of allegations against petitioner and tentative assessment of evidence on record does not justify his release-Various explanations advanced for accumulation of such enormous wealth i.e. about two and half billion rupees by a public servant drawing meagre salary during short period of about six years has been tried to be explained through cross-examination of witness including wife of petitioner but tentative assessment/appraisal of entire evidence on record does not justify the same-Deeper appreciation of evidence at bail stage was not permissible under the law less the same might adversely affect the mind of trial Judge particularly when the case was at the stage of conclusion-No case for bail was thus, made out in circumstances.

. [P. 62]A

PLD 2001 SC 607 and PLD 1977 SC 273 ref.

Mr. Muhammad AshrafKazi, Advocate for Petitioner. Mr. Muhammad Anwar Tariq, Deputy Prosecutor-General Accountability alongwith Mr. Abdul Ghafoor, Special Prosecutor for Nab. Dates of hearing: 15.8.2001 and 21.8.2001.

judgment

S. Ali Aslam Jafri, J.--The petitioner who is facing trial in NAB Ref. No. 6/2001 before the National Accountability Court No. 2, Karachi, has filed this petition for being enlarged on bail pending his trial. The petitioner was apprehended on 9.1.2001 under the non-bailable warrants issued by the Chairman NAB on the allegations that he has accumulated movable and immovable properties and other assets which are incompatible to his known legitimate source of income. After completion of the investigation a reference was filed showing a list of twenty witnesses out of which according to the learned counsel for the petitioner as many as fourteen witnesses have been examined, four witnesses have been given up and the prosecution has closed its side. Now the case is fixed on 7.9.2001 for the statement of accused under Section 342 Cr.P.C. In support of his plea for bail Mr. Muhammad Ashraf Kazi, learned counsel for the petitioner, has vehemently argued that in view of the observations of the Supreme Court of Pakistan in Khan Asfandyar Wall case (PLD 2001 SC 607) this Court has jurisdiction and powers to enlarge an accused on bail who is facing a reference before the Accountability Court Mr. Muhammad Anwar Tariq, learned Deputy Prosecutor General Accountability, has conceded that in view of the recent amendments in Section 9 (b) of NAB Ordinance through Ordinance No. XXXV of 2001 High Court has jurisdiction and powers to grant bail in appropriate cases. The question about jurisdiction thus, stands resolved and as such following the dictum laid down in the case of Ch. Zahurllahi vs. The State (PLD 1977 SC 273) we have converted this Constitution Petition, into an application for bail and propose to examine whether it is an appropriate case where applicant/ petitioner is entitled for being released on bail.The offences for which the petitioner is facing trial, reads as under:

CHARGE

I, Riaz Ahmed Phulpoto, Judge Accountability Court No. II, Karachi do hereby charge you:

Badar Alam Bachani S/o Muhammad Hashim Bachani as follows:-

That you in your capacity as Chief Executive Officer (BPS-18) Cantonment Board Hyderabad had in construction of defence Plaza Hyderabad fraudulently deprived the Cantonment Board Hyderabad a loss of approximately Rs. 17,34,25,000/- also in the construction of Quaid-e-Azam Plaza Hyderabad fraudulently caused loss to the Cantonment Board Hyderabad of approximately Rs. 8,24,00,000/-. In construction of 22 shops you fraudulently deprived the Cantonment Board Hyderabad loss of approximately Rs. 99,00,000/-awarding the contracts to the Civilian firms contrary to the rules for construction of the Cantonment Board and had allegedly accumulated moveable and immovable properties and other assets which are incompatible to your known legitimate sources of income. You, your Spouse, dependents and other benamidarsholding properties, which are owned, controlled and possessed by you. The agricultural land 116.01 acres situated at Deh Rajpari, Tapo-A Tando Qaiser Taluka Hyderdabad, in the name of your two minor sons Fahad Badar and Bailawal Badar, Purchased in year 1998, for sum of Rs. 75,00,000/- (Assessed value Rs. 1,160,00,000/-). Agriculture land 80.10 acres situated in Tapo Shaikh Moso Taluka Tando Allahyar, in your name purchased in year 1993 for Rs. 8,68,700/- (Assessed value Rs. 80,20,000/0. One Bungalow No. 71/1 Survey No. 26, measuring 429 Square Yards (Double Story) Phase-VI, Defence Housing Authority, Karachi purchased in the year 1998 in the name of your minor sons Fahad Badar and Bilawal Badar for Rs. 17,00,000/-. (Assessed value Rs. 60,00,000/0. Total Immovable property is assessed at Rs. 2,56,20,000/- (Rupees Two Crores Fifty Six Lacs and Twenty Thousand only). You and your wife Mst. Shamsu-un-Nisa operating the Bank accounts as under:-

Two Cars in the name of your wife Mst. Shams-us-Nisa Baleno (ACT-846) Price Rs. 6,25,000/- and Honda City (ACD-388) of Rs. 5,75,000/-. That you are drawing a salary of Rs. 8,755/- per month. Your expenditure appears to be over 50,000/- per month. The assets mentioned above have been acquired by you by corrupt, dishonest and illegal means. The properties obtained by you for yourself, your spouse Ms?. Shams-un-Nisa and dependent your minor sons Fahad Badar and Bilawal Badar. The said property is beyond the known sources of income which you owned, possessed and acquired, which you cannot reasonably account for and thereby you had committed offence of corruption and Corrupt practice which falls under the ambit of Section 9 (a) of the NAB Ordinance 1999, and which is punishable under Section 10 of the NAB Ordinance 1999, and within the cognizance of this Accountability Court.

And I hereby direct that you be tried by this Court on the above-mentioned charge.

On this 25th day of April 2001.

Sd/-Judge

Accountability Court No. II Karachi.

The learned counsel for the petitioner has argued that the allegations against the petitioner are false who has no nexus or even the remotest connection with the alleged offence and he has been falsely implicated. The learned counsel has further argued that as many as fourteen witnesses have been examined in this case and he has taken us through the evidence of the witnesses and vehemently urged that as a result of tentative appraisal of the evidence no case stands been made out against the petitioner hence he should be released on bail. The learned counsel has further argued with the help of various authorities including a recent judgment of a Division Bench of this Court in CP No. D- 1283/2001 (Asif Baig Muhammad vs. The Chairman NAB and others) that the "object of incarceration of an accused before conviction is not and cannot be, a

punishment for the offence, yet to be proved at the trial, hecause in that case the trial itself would be a farce". He has pointed out that in the above referred case applicant/accused was admitted to bail in the sum of Rs. 1.00 million and P.R. bond in the like amount. He has further argued that it is well settled principle of law that in criminal cases rule is bail and not jail. On the other hand Mr. Muhammad Anwar Tariq, learned DPGA, has vehemently opposed the plea for grant of bail and argued that it is not an appropriate or fit case for grant of bail or exercise of the said jurisdiction in favour of the petitioner. The learned counsel with the help of the record has pointed out that the petitioner who joined service in BPS-17 on 2.10.1983 had declared his assets for the year 1984 to the tune of Rs. 20,000/- only and by 1995 the same became Rs. 3,90,000/-only. However, in the year 1998 there was a rapid increase in the assets of the petitioner and the total worth of his assets till his arrest in January 2001 comes to 2,43,54,64,587/-(Rupees two billions forty three crores fifty four lac sixty four thousand five hundred eighty seven) which include agricultural land, in District Hyderabad and double storied bungalow in Phase-VI of DIIA Karachi in the name of minor sons. Agricultural land in the name of his wife Mst. Shams-un-Nisa and cash in various accounts as specified in the charge, apart from Honda City and Baleno cars in the name of his wife, though the monthly salary being drawn by the petitioner was Rs. 8,755/- only. The learned DPGA has, therefore, argued that there are no reasonable grounds to believe that the petitioner has not committed the alleged offence. He has further argued that the case is at the conclusion stage, prosecution has closed its side and statement of accused/petitioner is to be recorded within a few days as such there is every likelihood that the petitioner if released on bail shall either abscond away or disappear. The learned counsel in support of his contention has placed reliance on the case of The State vs. Dr. Usman Farooqui a Fall Bench Judgment authored by Saiyed Saecd Ashhad, J. (as his Lordship then was) wherein bail was declined to the accused even on medical grounds where charge against him was misappropriation of colossal amount of millions of public money. The learned DPGA has also placed reliance on the case of Imtiaz Ahmad And Another vs. The State (PLD 1997 SC 545) in which the apex Court has laid down a principle that even in respect of offences not falling under prohibitory clause of Section 497 Cr.P.C. the Court may decline to admit an accused on bail if there existed a recognised exceptional circumstance. Their Lordships have drawn a line in respect of the offences committed against an individual like a theft and offences committed by public functionary in respect of or in connection with his public office, in the following words:-

"1.1 may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with

his public office for the aforesaid purpose of bail. In the former cases, the practice to allow bail in cases not falling under prohibitory clause of Section 197, Cr. P.C. in the absence of an exceptional circumstances may be followed, but in the latter category, the Courts should be strict in exercise of discretion of bail."

Replying to the arguments of learned counsel for the petitioner with reference to unreported case of Asif Baig Muhammad (Supra) the learned counsel for NAB has argued that the facts of the said case are altogether different and as such it has no applicability to the case in hand.

We have considered the arguments of learned counsel for the petitioner as well as the learned DPGA and have reached to a conclusion that the nature of the allegations against the petitioner and a tentative assessment of the evidence on record does not justify his release on bail. The various explanations advanced for accumulation of such enormous wealth i.e. about two and half billion rupees by a public servant drawing salary of Rs. 8,755/- during such a short period of about six years has been, tried to be explained through cross-examination of the witnesses including Mst. Shams-un-Nisa alias @ Shama wife of petitioner/accused but a tentative appraisal of the entire evidence on record does not justify the same. A deeper appreciation of the evidence at bail stage is not permissible under the law lest it may adversely effect the mind of the trial Court particularly when the case is at the stage of conclusion. Under the circumstances no case for bail is made out.

After hearing the learned counsel for the parties on 21.8.2001 we had dismissed the Petition/application for bail by a short order and these are the reasons for the same.

(A.A.) Bail petition dismissed.

PLJ 2002 Karachi 62

Present: MUSHIRALAM, J. IN THE MATTER OF ACE INSURANCE LTD., KARACHI-Petitioner

J. Misc. No. 19 of 2001, decided on 11.7.2001. Insurance Ordinance, 2000 (XXXIX of 2000)--

—S. 5--Companies Ordinance XLVII of 1984, Ss. 284, 285, 286 & 287-Prayer to convert Foreign Insurance Company's registered branch office into public limited company-Petitioner had complied with all formalities as required under the law-No material was available on record to suggest that conversion of Registered Branch Office of petitioner into a public company in compliance with S. 5(3) of Insurance Ordinance 2000, was against public interest or in violation of any law—Scheme of arrangement having been approved by Members of petitioner, was sanctioned and the same was allowed to be incorporated as public limited company in accordance with provisions of S. 284(3) of Companies Ordinance, 1984. [Pp. 64 & 65] A

Mr. Muhammad Naeem, Advocate for Petitioner. Date of hearing: 11.7.2001.

order

Mr. Muhammad Naeem, learned counsel for the petitioner states that as provided under the newly promulgated Insurance Ordinance 2000, a Foreign Insurance Company carrying on business in Pakistan through its registered branch office, may convert its branch office into a public limited company in accordance with provision of Sections 284 to 287 of the Companies Ordinance 1984. According to him, petitioner, intends to convert its Registered Branch Office into a Public Company in terms of Section 5(3) of the Insurance Ordinance, have complied with all the formalities as required under the law. The Scheme of Arrangement has been approved by petitioner's Board of Director, through instant petition, seeks sanction of Scheme of Arrangement by this Court. I have heard the learned counsel and perused the record. Petitioner, Insurance Company duly incorporated under the law of Australia, is transacting General Insurance business in Pakistan through a Branch office, duly registered under the Companies Ordinance 1984. On 19th August 2000, new Insurance Ordinance (No. XXXIX of 2000) (hereinafter referred to as Insurance Ordinance) was promulgated repealing Insurance Act 1938 to regulate the business of the insurance industry to ensure the protection of the interests of insurance policy holders and to promote sound development of the insurance industry and for matter connected therewith and incidental thereto. Now, pursuant to Section 5 of the Insurance Ordinance after expiry of one year from the commencement date no person other, then public company or a body corporate, incorporated under the laws of Pakistan (not being a Private Company) or Branch of Foreign body corporate registered to carry on Insurance business in Pakistan will be entitled to carry on such business in Pakistan. However any insurer being body corporate, incorporated in a jurisdiction out of Pakistan and registered to carry on Insurance business in Pakistan through a branch or person, at the commencement date may within six months of such commencement, take steps to transfer the business of such insurer to a new public company pursuant to a Scheme of Arrangement under the provision of Sections 284 to 287 of the Companies Ordinance 1984 and the applicable provision of Insurance Ordinance, whereupon by virtue of Section 5 (3) of the Insurance Ordinance all such provisions shall apply mutandis mutatnis as if the Insurance business in Pakistan of such an insurer is being carried on by a public company duly incorporated under laws of Pakistan. »Any insurer or person transacting business in contravention of Section 5 thereof is exposed to penal consequences as Set out in Section 29 of the Insurance Ordinance. Instant petition under Section 284 read with Sections 285 to 287 of the Companies Ordinance 1984 seeking sanction of this Count as required under sub-section (3) to Section 5 of the Insurance Ordinance, 2000 to approve a Scheme of Arrangement detailed in Annexure 'B' to the petition, where by, the registered branch of the petitioner company be transformed and incorporated as public company in compliance with the provisions of the Insurance Ordinance, and in terms of scheme referred to above and further for consequential vesting orders to give effect to such scheme. Notice of the petition for the proposed conversion of petitioner's branch office into a public company as required under Rule 781 of S.C.C. (O.S.) Rules was affixed on the Court notice board, notice was also issued as per requirement of Sections 285 and 288 of the Companies Ordinance 1984 read with Rules 777 to 780 of the SCC (OS) Rules to the Registrar Joint Stock Companies Publication was also effected on 30.4.20001 both, in Daily, 'DAWN' (English) and Daily 'Jung' (Urdu). On CMA No. 886/2001 under Section 248 (1) of the Companies Ordinance read with Rule 953 of S.C.C. Rules (O.S:) meeting of the members of the petitioner was ordered to be held under the chairmanship of its Managing Director CEO to consider and if though fit, approve, adopt and agree to the proposes scheme of arrangement annexure 'B' to the petition. Such meeting was held by the petitioner on 12th June 2001 at the petitioner head office situated in Sydney, Australia Representing 100% in value of share held by member present in person or by prosy approved the scheme. No opposition from any quarter has been received. Registrar, joint stock companies, though served on 3Q.4.2001 as per bailiff endorsement, chose not to object or appear, there is no impediment to the grant of petition whereby Petitioner Company seeks to fulfil the requirement of Insurance Ordinance. I have perused the proposed scheme of arrangement, Members of the petitioner Companies have by majority approved the scheme of arrangement. Neither the employees nor any of the creditors or insured has come forward to oppose the scheme. The company has disclosed its latest financial position. Apparently, nothing in the proposed scheme runs contrary to the Companies Ordinance 1984 or the Insurance Ordinance 2000. In this view of the matter scheme of arrangement would be in the interest of shareholders of the Companies and so also the insured. There is no material on record to suggest that the conversion of the Registered Branch office of the petitioner into a Public company in compliance to Section 5(3) of the Insurance Ordinance and in terms of provisions of Sections 284 to 287 of the Companies Ordinance is against Public interest or in violation of any law. The petition is therefore, allowed Scheme of Arrangement (annexure 'B' to the petitioner) is sanctioned; consequently M/s. ACE Insurance Limited be incorporated as Public limited company in accordance with law, as on the date on which the copy of the order of Court sanctioning the scheme is filed with the Registrar of Companies, at Karachi in terms of Article 05 of the Scheme. Consequently, as required under Section 287 of the Companies Ordinance 1984 following orders are passed so as to take effect at the same time as this order sanctioning the scheme of arrangement take effect in accordance with provisions of Section 284(3) of the Companies Ordinance 1984. (i) Transferring to and vesting in the M/s. ACE Insurance (Pakistan) Limited the whole of the undertaking, entire business/goodwill of Branch office of ACE Australia, registered and engaged in the business of Insurance in Pakistan, together with all its properties, assets, rights liabilities, and obligation of every description including those specifically described in Article 1.17 of the Scheme of Arrangement. Annexure 'B' to the Petition.

(ii) Continuation by the ACE Insurance Limited (Pakistan) legal proceedings instituted by or against the petitioner through Registered Branch at Karachi that may be pending any where in Pakistan as on the date of sanction of scheme of arrangement. (iii) ACE Insurance (Pakistan) Limited (proposed) is directed to issue such number of shares in favour of ACE Australia or nominee thereof as would equal in worth the value of the undertaking on the date of sanction as certified by the auditors of the registered Branch in Pakistan (Proposed to be converted into Public Company through Scheme of Arrangement) ACE Insurance (Pakistan) Limited shall issue 7 ordinary shares of the face value of Rupees 10, each at par aggregating Rs. 70, in favour of it sponsors as listed in annexure "G" to the Scheme of arrangement. (iv) The Registered Branch Office shall stand dissolved, without winding up, on the date on which the ordinary shares of the new Public company are allotted to the sponsors of the company in accordance with the Scheme of Arrangement as set forth in annexure 'B' to the petition.

The petition in terms of the above, stand allowed. (A.A.) Petition accepted.

PLJ 2002 Karachi 66

[Sindh Circuit Court at Hyderabad]

Present: faiz muhammad qureshi, J. WALI HAIDER-Petitioner

versus

Mst. PARVEEN and 2 others-Respondents

'C.P. No. S-504 of 2000, decided on 12.3.2001.

Family Courts Act, 1964 (XXXV of 1964)--

—S. 5 Sched-Constitution of Pakistan (1973), Art. 199-Decree for dissolution of marriage granted by concurrent judgment of two Courts below-Validity-Defendant's side was closed during proceedings by trial Court on account of his conduct in as much as, he remained indifferent during trial-Defendant neither appeared at the time when written statement was filed with the result that written statement was filed without verification nor did he produce his evidence-Even after closing of his side be did not make any application for re-opening of his case, but preferred to argue his case through newly appointed counsel—No flaw in judgment was pointed out to show that the same suffered from any defect-No interference was warranted in judgments and decrees of Courts below. [P. 69] A

Mr. Muhammad Ishaq Khoso, Advocate for Petitioner. Mr. Sher Muhammad Leghari, Advocate for Respondents. Date of hearing: 12.3.2001.

judgment

Faiz Muhammad Qureshi, J.-Through this Constitutional Petition, Petitioner Wali Haider has challenged the Impugned Judgment and Decree dated 13.04.2000, passed by the Civil Judge and Family Judge Tando Bago in Family Suit No. 4 of 2000 for dissolution of marriage and maintenance of Rs. 2000/-per month, to be paid from the month of July 1997 till the expiry of Iddat period and the order dated 28.7.2000 passed by learned 1st Additional District Judge, Badin, who dismissed Family Appeal No. 4 of 2000, filed by the present Petitioner against the Judgment and Decree of Family Court, Tando Bago.

The brief facts of the case are that Respondent No. 1, namely Mst. Parveen daughter of Mustaq Ahmed filed suit for dissolution of marriage and maintenance in which it was pleaded that she was married to Petitioner on 26.04.1997 at Tando Bago. Dower was fixed at Rs. 50.000/- which waa prompt in nature. After marriage the Respondent No. 1 lived with the Petitioner as his wife till 27.06.1997, when the Petitioner turned her out from his house in three cloths. Respondent No. 1 took shelter in the house of her parents and since then she was living with them. Respondent No. 1 remained as duty-full wife of the Petitioner but she was maltreated by the Petitioner and his parents and she was beaten up by the petitioner and abused by the parents of Petitioner. The parents and other relatives of Respondent No. 1 had given dowry articles to Respondent No. 1 and the same have been disposed of by the Petitioner. The Petitioner did not provide her maintenance. Effective efforts were made by the relative and well-wishers of the parties for settlements between the Petitioner and Respondent No. 1 but without success. Respondent No. 1 claimed maintenance from July 1997 at the rate of Rs. 2000/- per month. Respondent No. 1 has been subjected to cruelty and maltreatment at the hands of the Petitioner. On the other hand, the Petitioner was served with Notice and he filed Written Statement in which he denied all the allegations levelled against him. He has pleaded that the dower amount has already been paid to the Respondent No. 1 and she left the house of the Petitioner on her own. He further pleaded that she is not entitled to any claim with regard to the maintenance as she herself left the house of the Petitioner. Besides, Respondent No. 1 had herself taken away the dowry articles from the house of the Petitioner. Out of the pleadings of the parties, lower Court framed the following issues:--

1. Whether the present suit is maintainable under law?

2. Whether the Plaintiff was maltreated by the Defendant?

3. Whether the Plaintiff was maintained properly by the Defendant?

4. Whether the Plaintiff is entitled for maintenance, if yes, at what way and for what period?

5. Whether the Plaintiff is entitled for dissolution of marriage as claimed by her in the Plaint?

6. What should the decree be?

After hearing the learned Counsel for the parties, all the issues were decided against the Petitioner and maintenance was allowed to Respondent No. 1 at Rs. 2000/-per month to which the Petitioner preferred an Appeal;

although the Appeal is not preferable against the dissolution of marriage and the Petitioner being Appellant before the 1st Additional District Judge reserved his right to file writ petition. The Family Appeal No. 4 of 2000, filed by the Petitioner was also dismissed by Order dated 13.04.2000.Mr. Muhammad Ishaq Khoso, learned Counsel for the Petitioner has argued that no proper chance has been given to the Petitioner before Family Judge to rebut the evidence and he has been condemned unheard. Mr. Muhammad Ishaq Khoso has further submitted that the Petitioner has paid entire dower amount to Respondent No. 1; finally he has submitted that the present Petition is maintainable.On the other hand Mr. Sher Muhammad, learned Counsel for Respondent No. 1 has controverted the contentions raised by the learned Counsel for the Petitioner. I have heard Mr. Muhammad Ishaq Khoso, learned Counsel for the Petitioner; Mr. Sher Muhammad, learned Counsel for Respondent No. 1 and have gone through the Judgment and Decree passed by Courts below. I have also perused the record and proceedings of the trial Court. Respondent No. 1 being Plaintiff filed Suit for dissolution of marriage and maintenance before the Civil Judge and Family Judge Tando Bago on 24.02.2000; in this regard notices were issued to the Petitioner, who was Defendant before the Family Judge and the matter appears to be adjourned to 13.02.2000; on the aforementioned date Mr. Munir Ahmed, Advocate appeared for Petitioner/ Defendant and filed an Application for extension of time for filing of Written Statement and time was granted and the matter was adjourned to 14.03.2000. On 14.03.2000 once again the Application was made for exten­sion of time that too was allowed and the matter was fixed for 16.03.2000. On 16.02.2000 the Written Statement was filed by the Petitioner/Defendant and the matter was adjourned to 22.03.2000 for pre-trial. It appears that both the Counsel were present but the parties were absent. The Respondent No. 1, who was Plaintiff before the Family Judge stated that she does not want compromise therefore, pre-trial resulted in failure and the matter was adjourned to 24.03.2000 for issues. On 24.03.2000 the Respondent No. 1 being Plaintiff filed draft issues whereas the Petitioner/Defendant was not present and draft issues were also not filed and the matter was adjourned to 28.03.2000 for settlement of issues and it was ordered by Family Judge that Defendant may file draft issues before the date of hearing. On the aforementioned date Petitioner's Counsel filed draft issues and issues were settled and the matter was adjourned to 03.04.2000 for Plaintiff/Respondent No. 1's evidence. The case could not be proceeded on account of absence of Respondent No. 1 and her Advocate and the matter was adjourned to 06.04.2000. On 06.04.2000 Respondent No. I/Plaintiff examined herself and her witnesses but Petitioner/Defendant was absent and his Advocate withdrew Power and the case was adjourned to 11.04.2000 for Petitioner/ Defendant's evidence. On 11.04.2000 neither the Petitioner/ Defendant appeared before the Family Judge nor any intimation was sent, therefore, the side of the Petitioner/Defendant was closed and the matter was adjourned to 12.04.2000. On the aforementioned date the Petitioner/ Defendant did not appear and in the late hours Mr. Muhammad Nawaz Jamali, Advocate appeared and filed his Power on behalf of the Petitioner/ Defendant and sought permission to argue the matter, which was allowed and arguments were heard on 13.04.2000 and thereafter the Judgment was announced; whereby the Suit of the Respondent No. I/Plaintiff was decreed. It will be pertinent to mention that even on 12.04.2000 Mr. Muhammad Nawaz Jamali, Advocate appeared for the Defendant but he did not make any submission for setting aside the order dated 11.04.2000, when the side of the Defendant was closed and he only sought permission to argue the matter on behalf of the Petitioner/Defendant. I have carefully examined the record and proceedings of the case and the Impugned Judgment; the conduct of the Petitioner/Defendant in lower Court as well as before the Appellate Court has remained indifferent; neither he appeared before the Family Court on any date of hearing nor at the time when Written Statement was filed and the same was lying without verification on the file of the Family Court. The Petitioner/Defendant engaged another Advocate to argue the matter but he did not file any Application for re-opening the side of the Petitioner/Defendant as discussed supra and the Suit was decreed on 13.04.2000. Even the learned Counsel for the Petitioner was inquired by the Appellate Court as to whether any Writ Petition has been filed before this Court against the Judgment and Decree; the learned Counsel for the Petitioner/Defendant stated that still it has not been filed; which too shows that the Petitioner/Defendant was not interested in challenging the Judgment/Decree of the trial Court. Learned counsel for the petitioner has not been able to point out any flaw or defect in the Judgment and Decree of the trial Court as well as any flaw or defect in the Order passed by 1st Additional District and Sessions Judge, Badin, dated 28.07.2000. In view of the above discussion, I am of the considered view that the Petitioner has remained indifferent throughout the proceedings before the Courts below and was not alive to responsibilities and was not interested in his matter. I do not see any wrong with the Judgment/Decree passed by the Family Judge and the Order passed by the 1st Additional District and Sessions Judge Badin; in result this Petition is dismissed with no order as to costs.

The above are the reasons for my short order dated 12.03.2001. (A.P.) Petition dismissed.

PLJ 2002 Karachi 70 (DB)

Present: S.A. RABBANI AW n MUHAMMAD moosa K LEGHARI, JJ.

M/s. UNIVERSAL LEASING CORPORATION LTD. through its CHIEF EXECUTIVE AND GENERAL ATTORNEY.-Petitioner

versus

STATE BANK OF PAKISTAN CENTRAL DIRECTORATE I.I CHUNDRIGAR ROAD, KARACHI—Respondent

C.P. No. 1491 of 2001, decided on 26.7.2001. Banking Companies Ordinance, 1962--

—Direction issued by State Bank of Pakistan to all Commercial Banks that no withdrawal from accounts of petitioner be allowed without obtaining specific written permission from State Bank-Legality--Such direction can be issued to safeguard interest of depositors-Direction issued by State Bacik, however, was directly against the interest of depositors-Impugned order,and direction therein was, thus, in violation of S. 41 of Banking Companies Ordinance, 1962, under which order in question, has been issued-Impugned order/direction was, therefore, declared to have been issued without lawful authority and was of no legal effect.

[Pp. 72 & 73] A

Mr. Kamal Azfar, Advocate for Petitioner. Mr. Jjaz Ahmad, Advocate for Respondent. Date of hearing: 26.7.2001.

order

Petitioner is a public limited company engaged in leasing business. It has deposited amounts in the company's accounts in Bank of Ceylon and Metropolitan Bank Ltd. On 4th July, 2001, the respondent, State Bank of Pakistan, issue direction to all commercial banks that no withdrawal from accounts of present petitioner, and some other reganizatioris and persons mentioned in the order, shall be allowed without obtaining specific written permission, from the State Bank. The direction, according to\the order, has been issued in exercise of powers under Section 41 of the Banking Companies Ordinance, 1962. Legality of this direction/order has been challenged in this petition. Mr. Kamal Azfar, learned counsel for the petitioner, contended that the petitioner is a depositor and not a Banking Company, subject of the Banking Companies Ordinance, 1962. He referred to Section 3-A of the Banking Companies Ordinance, 1962 to support his contention. According to him, Securities and Exchange Commission is the regulatory authority of such companies under Securities and Exchange Commission of Pakistan Act, 1997, and not the State Bank of Pakistan. Mr. Ijaz Ahmed, learned counsel for the respondent, submitted that the direction has been issued to the Banking Companies viz: Commercial Banks under Section 41 of the Banking Companies Ordinance, 1962, and the petitioner is a depositor. He cqntended that the accounts have not been freezed but it is only monitoring through a condition for a permission before withdrawal. He submitted that the respondent has not exercised any regulatory authority on the petitioner. In the written reply filed by the respondent, it is stated that the respondent and national Accountability Bureau are investigating the affairs of Prudential Commercial Bank Limited and it was disclosed that an ex-employee of that Bank, Tahir Siddiqui, had embezzled large amounts and acquired assets including shares and control of various companies, which he is operating through his nominees, employees, family members and network of companies. According to the respondent, Tahir Siddiqui has substantial interest and connection with the petitioner. Following is the order of the respondent impugned in this petition: "The Chief Executive, All Commercial Banks. Dear Sirs, DIRECTIVES UNDER SECTION 41 OF BANKING COMPANIES ORDINANCE. 1962

By virtue of powers conferred on State Bank of Pakistan under Section 41 of the Banking\ Companies Ordinance, 1962, you are hereby directed that with immediate effect no withdrawal whatsoever in accounts of the following companies, persons and their associate companies in which they have interest shall be made without obtaining specific written permission from State Bank of Pakistan:

Sr. No.

Name

M/s. Inter World Securities (Pvt) Ltd. Member Islamabad Stock Exchange. M/s. Republic Securities Ltd, Member Karachi Stock Exchange.

M/s. Total Securities Ltd, Member Karaohi Stock Exchange. Mr. Universal Forex (Pvt) Ltd M/s. Universal Leasing Corporation Limited.

Mr. Tahir Siddiqui s/o Muhammad Idress Siddiqu, NIC No. 515-89-1580&4 Mr. Tarig Siddiqui, s/o Muhammad Idress Siddiqui, NIC No. 515-89-018024

1. Please note that every executive, Manager or other officer of the bank or any other person who is associated with or taking part in the management of bank directly or indirectly is mandated under the law to comply with the directions given herein above. Any default in compliance with the above directives or any circumvention thereof shall render all concerned liable to action under the provisions of Banking Companies Ordinance, 1962. All credit in the aforesaid account shall, however, be permitted by the banks. All requests for withdrawal, if any, received may be referred to Director, Banking Supervision Department, SBP, CD, Karachi.

Yours faithfully, Sd/-

(Kazi Abdul Muqtadir) Director"

This order mentions that it has been issued in exercise of powers under Section 41 of the Banking Companies Ordinance, 1962. Directions under this section can be issued in case:-

(i) The State Bank is satisfied that it is in the public interest to issue such directions; or

(ii) it is necessary to prevent the affairs of a Banking Company being conducted in a manner detrimental to the interest of depositors, or in a manner prejudicial to the interest of the Banking Company; or

(iii) it is necessary to secure the proper management of a Banking Company generally.

The impugned order does not expressly mention for what purpose or object, the direction has been issued. It can, however, be gathered from the contents of the order that the direction has not been issued "to prevent the affairs of any Banking Company from being conducted in a manner detrimental to the interest of the depositors, or in a manner prejudicial to the interest of the Banking Company" which include all the Commercial Banks in this case. The direction has also not been issued "to secure the proper management of any Banking Company generally."

The only other ground on which a direction can be issued is "the public interest". The impugned order does not mention as to how the direction is in the public interest. The same section provides that a direction can be issued to safeguard the interest of the depositors. It cannot, therefore, be issued to the detriment to the interest of depositors and the impugned

order does exactly the same. The direction contained in the impugned order is directly against the interest of the depositors. The impugned order, and the direction therein, is, thus, in violation of the law itself, viz.Section 41 of the Banking Companies Ordinance, 1962, under which the order has been issued. It is, therefore, declared that the impugned order/direction has been issued without lawful authority and is of no legal effect. The petition is allowed accordingly.

(A.A.) Petition accepted.

PLJ 2002 Karachi 73 (DB)

Present: S.AHMED sarwana and muhammad mujibullah siddiqui, JJ.

QASIM INTERNATIONAL CONTAINERS TERMINAL LTD.

KARACHI-Appellant

versus QASIM FREIGHT STATION (PVT) LTD. and another-Respondents

H.C.A. No. 109 of 2001, decided on 31.5.2001. Civil Procedure Code, 1908 (V of 1908)--

—O.I, R. 10 & S. 12(2)--Arbitration Act (X of 1940), S. 41(b)-Law Reforms Ordinance (XII of 1972), S. 3--Interim Order of Court-Person not a party to proceedings was allowed by Court to be impleaded as a party— Validity-Except parties to proceedings, no third person can claim to be adversely affected by interim order-Single judge could not press provisions or spirit of S. 12(2) C.P.C. while considering application under O. 1, R. 10 C.P.C.-Even if interim order was confirmed in favour of appellant, intervenor could not be regarded as an aggrieved party-Intervenor, admittedly was neither a party to agreement in question, nor in arbitration proceedings, therefore, he was neither a proper party nor necessary party to proceedings pending between plaintiff, and the defendant authority-Intervenor being third party could neither join arbitration proceedings nor in ancillary proceedings despite the fact that provisions, of C.P.C. were applicable to proceedings under S. 41 of Arbitration Act, 1940-Impugned order passed by Single judge allowing application of intervenor to be impleaded as a party to proceedings was set aside in circumstances.

[Pp. 76 & 78 to 80] A, B, C D & E

PLJ 1975 SC 345; PLD 1987 Karachi 38; PLJ 1985 SC 147; 1988 CLC 1318 ref.

Mr. Shaiq Usmani, Advocate for Appellant. Mr. RashidA Razvi, Advocate for Respondent No. 1. Mr. ArifKhan, Advocate for Respondent No. 2. Date of hearing: 31.5.2001.

order

S. Ahmed Sarwana, J.--Qasim International Containers (Pvt.). Limited (Appellant herein), entered into an Implementation Agreement dated 25-7-1995 with Port Qasim Authority ("PQA") as operators of a Container Terminal at Port Qasim. It is alleged that the Appellants also set up a Container Freight Station ("CFS") within the port area and that there are several other CFS operated by other persons outside the port area. PQA contends that under the above referred Agreement the appellants were not entitled to operate within the Container Terminal a CFS which is popularly known as "On Dock CFS"; however, PQA reluctantly and purely as a temporary measure allowed the Appellant to operate the same about three years ago which permission apparently continued and by letter dated 23.12.2000; PQA directed the appellant to close down the temporary CFS facilities at their terminal by 31.1.2001 as agreed by the Appellant in their letter dated 22.12.2000. The Appellants have alleged that to resolve the problem of the On Dock CFS facilities operated by them, on 25-1-2001 they issued a notice to PQA under the provisions of the Agreement to appoint an arbitrator which notice was disputed by the latter. However, Appellant allegedly proceeded with the arbitration before the sole arbitrator appointed by them. Simultaneously with the commencement of the arbitration proceedings before the arbitrator, Appellant filed an Application under Section 41 (b) of the Arbitration Act, 1940 (JM No. 03 of 2001) before the High Court seeking an order to restrain PQA from closing down Appellant's On Dock CFS till the award in the arbitration proceedings is made Rule of the Court. The learned Single Judge while issuing notice of the Application also granted them ad-interim relief.

On or about 22.2-2001, Qasim Freight Station (Pvt.) Limited (Respondent No. 1) who are operating Off Dock CFS outside the port area filed an Application under Order I, Rule 10 CPC to be joined as a party in JM No. 03 of 2001 on the ground that continuance of the On Dock CFS operation by the Appellant was prejudicial to their interest, they had an interest in the proceedings and in case the injunction was confirmed they would suffer irreparable loss as their right to bid for and, if successful, to operate the profitable On Dock CFS facilities would be effected. The parties filed Counter-Affidavit and Affidavit-in-Rejoinder to the Application filed by Respondent No. 1. After hearing the arguments of all Counsels, the learned Single Judge by Order dated 25-4-2001 granted the Application of Respondent No. 1/Intervenor holding that they were a proper party and their presence was necessary to enable the Court to factually and completely adjudicate the matter and to eliminate multiplicity of proceedings and directed the Appellant to file an amended title of the petition within a week. Hence this Appeal.

The main contention of Mr. Shaiq Usmani, learned Counsel for the Appellant is that the arbitration is between the Appellant and PQA where

the dispute between the parties is whether or not they have a right to operate. On Dock CFS under the Implementation Agreement with PQA in which Respondent No. 1 is neither a party nor has any interest therein and consequently they cannot be made a party to the proceeding under Section 41 (b) of the Arbitration Act which are ancillary/subsidiary to the arbitration proceedings between the Appellant and PQA.

On the other hand, Mr. Rasheed A. Razvi, learned Counsel for Respondent No. 1, vehemently argued that Respondent No. 1 is a proper and necessary party to the proceedings as they are interested in setting up and operating an "On Dock CFS" facility within the port for which PQA would float a Tender in which they would participate and, if successful, would operate the same and if the interim injunction is confirmed it would continue for a long time arid consequently they would be deprived of the expected business as consequently of the profits therefrom and thereby suffer irreparable financial loss. He added that if other Off Dock CFS operators have not shown any interest in the litigation, it does not mean the Respondent No. 1 has no right to joint the proceedings because they are competitors of the Appellant and have a right to compete with them in that tender for operation of On Dock CFS facilities in the port area. As the Appellant had temporary permission only to operate On Dock CFS facilities which expired on 31-1-2001, their interest in the business and to take part in the expected tender has crystalized and become stronger.

We have heard Mr. Shaiq Usmani, learned Counsel for the Appellant, Mr. Rasheed A. Razvi, learned Counsel for Respondent No. 1 and Mr. Arif Khan, learned Counsel for Respondent. 2.

Section 41 (b) of the Arbitration Act, 1940 reads as follows:

"41. Procedure and powers of Court. -Subject to the provisions of this Act and of rules made thereunder-

(a)............

(b) The Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court:

Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator orvUmpire for making order with respect to any of such matters."

The Second Schedule of the Arbitration Act provides: "POWERS OF COURTS.

1. The preservation, interim custody or sale of any goods which are subject-matter of the reference, Securing the amount in difference in the reference.

2. The detention, preservation or inspection of any property or thing which is the subject of the reference or as to which any question may arise therein and authorizing for any of the aforesaid purposes any person to enter upon or into any land or huilding in the possession of any party to the reference, or authorizing any samples to be taken or any observation to be made, or experiment to be tried, may be necessary or expedient for the purpose of obtaining full information or evidence. 4. Interim injunctions or the appointment of a receiver. 5 "

The learned trial Court exercising its powers under the aforesaid section granted ad-interim relief to the Appellants whereafter Respondent No. 1 filed their Application under Order I, Rule 10 CPC to joint the proceedings as a defendant which was granted.

On perusal of the Impugned Order it transpires that the learned Single Judge allowed the Application of Respondent No. 1 for the reason that if a party can be allowed to file an application under Section 12 (2) for setting. aside the order making an award the rule of the Court and if the party's right is affected by an injunction in the proceedings, he can be joined as a party to contest the proceedings to protect his right and would be a proper party in the proceedings as "its presence before the Court would facilitate the Court for complete adjudication of the question involved in the present proceedings, whether the Petitioner is entitled for the relief claimed or not".

To test the validity of the impugned order, we must refer to the provisions of Section 12(2) CPC which read as follows:

"12 (2). Where a person challenges the validity of a judgment decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."

A bare reading of the above section clearly indicates that if any party is aggrieved by a judgment decree or order on the ground of fraud, misrepresentation and want of jurisdiction, he can file an application under Section 12(2) C.P.C. to challenge its validity. In the present case, Respondent No. 1 filed an Application under Order I, Rule 10 CPC and not under Section 12 (2)CPC. Further Respondent No. 2 did not allege any fraud or misrepresentation on the part of either the Appellant or PQA or want of jurisdiction of the Court to grant the relief. On the record there is only an order of interim injunction which may not even be confirmed. At this stage the only person who can have any grievance is PQA against whom the order has been passed. No other person can claim to be adversely affected by the

interim order. In our opinion, in the present circumstances, the learned Single Judge could not press the provisions or the spirit of Section 12(2) CPC while considering the application under Order I, Rule 10 CPC filed by Respondent No. 1. Even if the ad-interim injunction is confirmed in favor of the Appellant Respondent No. 1 cannot be regarded as an aggrieved party for reasons discussed below.

Now Order I, Rule 10 (2) CPC reads as follows:

"Court may strike out or add parties. --(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added."

The Courts have divided the persons who may be added or deleted as parties to the proceedings in two categories; namely "Proper Parties" and "Necessary Parties". The term "Proper Party" has been explained in the case of Pakistan vs. Abdul Wali Khan PLJ 1975 SC 345, by the Honorable Supreme Court of Pakistan in the following words:

"Now a proper party is a party whose presence before the Court is necessaiy to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceedings. The terms "questions involved" include all matters material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him. This does not, therefore, extend to persons who have no interest which is likely to be affected by the proceedings not does it embrace persons only generally interested in common with others nor can persons be added as parties so as to set up a new cause of action which does not concern the original parties.

In a generic sense, every decision of this Court on a point of law is likely to affect every one in this country in whose case a similar point of law arises, but this does not give every person in this country a right to intervene in every proceeding before this Court, merely because it is likely to affect him in some future proceedings."

Similarly, the term "Necessary Party" has been explained in the case of Muhammad Kalim Khan vs. Muhammad Farouk Khan, PLD 1987 Karachi 38 at 47 as follows:-

"Clause (2) of the said rule further provides that the Court may at any stage of the proceedings, either upon or without the application of either party, order that the name of any person, who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, by added. Clause (2) of Rule 10, therefore, is not to be read as requiring that all persons who claim to have a right, title or interest of any nature whatsoever in respect of the subject-matter of a suit, should all be made parties. The expression used "all ,the questions involved in the suit", to may mind, refers to the questions involved in the suit instituted in the Court as are common between the parties to the suit and the applicants."

And the Honorable Supreme Court of Pakistan in the case of Muhammad Sadiq vs. Muhammad Rafiq, PLJ 1985 SC 147 has elaborated that necessary parties under the Civil Procedure are persons who ought to have been joined as parties and in whose absence no effective decree or order can be passed.

The arbitration proceeding in the present case is between the Appellant and PQA. The primary dispute in the arbitration proceeding apparently is the interpretation of the Implementation Agreement dated 25-7-1995 executed between the Appellant and PQA which has allegedly expired and the issue before this Court in J. Misc. No. 3 of 2001 is whether or not PQA be restrained from closing down the Appellants on Dock CFS facilities operated by them within their container terminal till the arbitration award is made Rule of the Court Respondent No. 1 is admittedly neither a party to the Implementation Agreement nor in the arbitration proceedings. Mr. Rashid A Razvi learned Counsel for Respondent No. 1, has not been able to satisfy us by production of any document or advancing any argument as to how Respondent No. 1 is either a proper party in the arbitration proceeding or the proceeding before the High Court or that their presence in the Court proceeding is necessary in order to enable the High Court effectually and completely, to adjudicate upon and settle the questions involved in the proceedings of J. Misc. No. 3 of 2001 before the Court which are ancillary to the arbitration proceeding pending between the Appellant and PQA. He has also not been able to show how this Court would not be able to pass an effective order in J. Misc. No. 3 of 2001 in the absence of Respondent No. 1. Respondent No. 1 is an outsider who has no connection with the present proceedings before the trial Court. The argument of the learjied Counsel that Respondent No. 1 is a competitor and would be deprived of an opportunity to take part in the invitation to bid that may be advertised by PQA at some time in future is hypothetical, highly imaginative and too remote. We are reminded of an Urdu couplet which aptly applies to the arguments advanced by the learned Counsel which is as follows:

Further, there is no guarantee that the hid, if suhmitted by them in respect of the On Dock CFS facilities, would be accepted by PQA. If the argument of Respondent No. 1 is accepted then every person who is operating a CFS in Pakistan or any where in the world would have an interest in the invitation to bid that may be advertised by PQA and consequently would have the right to joint the proceedings filed by the Appellant under Section 41, Arbitration Act, if he expresses an interest in doing business at Port Qasim. Respondent No. 1 is neither a proper party nor a necessary party to effectually and completely adjudicate the issue of temporary injunction until the award is made Rule of the Court. The argument is most unreasonable and rejected.

It is an admitted position that the dispute between the Appellant and Respondent No. 1 has been referred to arbitration and the Appellant filed an Application under Section 41(2) of the Arbitration Act, 1940, to preserve the status quo between the parties during the arbitration proceeding. There cannot be any doubt that an Application under Section 41 (2) of the Arbitration Act, 1940, cannot be filed by a party unless some arbitration proceedings are pending between him and another party or unless the person has sought assistance of the Court for enforcement of an arbitration clause. Additionally, if a third party cannot join the arbitration proceedings on account of the absence of an arbitration clause between the third party and the parties who are involved in the arbitration proceedings, we fail to understand how a third party can intervene and contend that it should be made a party to the ancillary proceedings and he be heard before any order in the ancillary proceedings is passed.

There can be no cavil about the proposition of law stated in the case of Mst. Afroze Jehan vs. Mst. Noor Jehan and others, 1988 CLC 1318, cited by Mr. Razvi that the provisions of Section 12(2) CPC are applicable to arbitration proceedings because Section 41 of the Arbitration Act itself clearly provides that "subject to the provisions of the Arbitration Act and Rules made thereunder the provision of CPC shall apply to all the proceedings before the Court and to all appeals under this Act". There is no dispute about the application of the provision of CPC to the proceedings under Section 41 Arbitration Act as Mr. Usmani had conceded the _ proposition before the trial Court. The situation in the present case is ' however different. No order or Judgment has been passed or is being attacked by any party under Section 12(2) CPC. The reference to the said, judgment is therefore not relevant.

In view of the above discussion, it is clear that in light of the judgments of the Honorable Supreme Court referred to above, Respondent

E

No. 1 is neither a proper nor a necessary party to the proceedings in J. Misc. No. 3 of 2001. Accordingly, the impugned order dated 25-4-2001 passed by the learned Single Judge allowing the Application of Respondent No. 1 under Order I, Rule 10 CPC and directing the Appellant to file an amended title of the Petition is hereby set aside.

The above are the reasons for the short order dated 31-5-2001 whereby the Appeal was allowed and the impugned order was set aside.

(A.A.) Appeal accepted.

PLJ 2002 Karachi 80

Present: faiz muhammad qureshi, J. Mrs. BATOOL-Applicant

versus

SHAHZAD-Respondent

RIA. No. 243 of 2000, decided on 21.8.2001. Small

Causes Courts Act, —-S. 25--Dismissal of suit by trial Court-Validity-Judgment of trial Court appeared not to be based on sound reasoning particularly when there was admission on the part of defendant in his written statement of assertions of plaintiff-Trial Court had failed to consider all the circumstances of case and its judgment was not written in ccordance with law and in view of evidence on record-Impugned judgment was set aside in circumstances. [P. 83] A

Mr. S. Nasir Hussain Jafri, Advocate for Applicant. Mr. Anwar Ahmed, Advocate for Respondent. Date of hearing: 20.8.2001.

judgment

Applicant has preferred this revision application under Section 25 of the Small Causes Courts Act being aggrieved and dissatisfied by the judgment dated 12.10.2000 and decree dated 19.10.2000 passed by Judge. Small Causes Court, Karachi, dismissing the suit of the present applicant. The brief facts of the case are that the applicant is the owner of Shop No. 5/B, G.K. 7/67. Murtaza Batool Alwani Mansion, Machi Miani Road No. 1, Kharadar, Karachi, let out the shop to the respondent initially at the rate of Rs. 2500/-per month plus Rs. 200/- as maintenance charges, all payable 'in advance, upto 5th of every calendar month. The tenancy commenced with effect from 1st July, 1998 and an agreement to this effect was duly executed although prior to the commencement thereof. As per the agreement aforesaid, after expiry thereof, the respondent was also liable to pay Rs. 3200/-per month. The respondent paid rent only upto October, 1998 but thereafter he failed to make any payment towards rent etc. On 13th of July 1999 he suddenly vacated the premises but without payment of rent due. Accordingly, at the time of vacation of the demised premises, an amount of Rs. 27,800/-was due against and payable by the respondent. In addition to the same, as per the agreed terms of tenancy, the respondent was also liable to pay a sum of Rs. 9600/-being three months rent for want of notice prior to vacation of the premises. Thus a total sum of Rs. 37,400/-remain payable by the respondent to the applicant. Since a sum of Rs. 10,000/- was lying as fixed deposit with the applicant, after deducting the same from the total outstanding rent, the respondent was still liable to pay a sume of Rs. 27,400/-which amount he failed to pay despite repeated demands. Accordingly, a legal notice dated 13.7.1999 was sent to the respondent but despite its service on him, it was neither replied nor the outstanding amount was paid by him. Accordingly, a Suit No. 131 of 1999 for the recovery of Rs. 27,400/- was filed in the Court of Small Causes Court Karachi on or about 7.8.1999. After service, the defendant filed his written statement on 20.11.1999 wherein the respondent denied the execution of agreement dated 1.7.1998, he specifically admitted that initially he was liable to pay rent at the rate of Rs. 2700/- and that it was specifically increased to Rs. 3200/- with effect from January, 1999. In any case, he pleaded that he had vacated the demised premises in May, 1999 and not 13.7.1999, and two months rent was still outstanding against him. He also pleaded that he paid a sum of Rs. 10,000/- as advance and Rs. 2,500/-as advance rent which was available with the applicant and so after adjusting a sum of Rs. 6,400/-rent for two months, he was still entitled to recover a sum of Rs. 6,400/- from the applicant. Since the respondent had denied the execution of agreement dated 1.7.1998, the applicant vide application dated 22.1.2000 sought the signatures of the respondent on the said agreement examined by referring the document to expert which was allowed by order dated 27.1.2000. However despite specific directions to the respondent by the learned trial Judge, the respondent failed to appear in Court and so also by order dated 19.2.2000 the case was ordered to proceed. After recording the evidence of the parties, learned trial Court dismissed the suit of the applicant as stated above. Mr. S Nasir Hussain Jaferi, advocate for the applicant, has firstly drawn my attention on the impugned judgment passed by the learned trial Court wherein it has been observed that from perusal of the record irrespective of the verbal evidence, applicant has also filed tenancy agreement said to have been executed in between the parties on 1,7,1998 but the contents of the very document support the plea of respondent that it is fabricated as it has been rightly pointed out by defendant/respondent too in written arguments that the first page of document is shown to have been executed on 1.7.1998 but on the last and third page it is shown to be attested on 25.6.1998. The contention of learned counsel for the applicant is that there is order dated 27.1.2001 passed by the learned trial Court wnerein by consent the applicant was moved by the applicant for examination of defendant's signature to the hand writing expert and which was allowed. According to learned counsel for the applicant the disputed signatures of defendant on tenancy agreement dated 1.7.1998 alongwith admitted signature of defendant on written statement. Vakalatnama,and salary slips as filed by defendant/respondent himself alongwith his signature obtained in Court be sent to handwriting expert. Defendant/respondent be called in Court for giving his signature in presence of Presiding Officer for the above stated purpose and thus the application was disposed of. Learned counsel for the applicant has drawn my attention in this respect on the order dated 19.2.2000 passed by the learned trial Court wherein it has been observed by the learned trial Court that the aforenamed respondent has not appeared before the expert and such application was decided by consent and he was directed to give his signature in presence of Presiding Officer for sending the same to handwriting expert alongwith documents and for that purpose the matter was fixed on 16.2.2000 but the defendant/respondent and his counsel were called absent, therefore, in the interest of justice the matter was adjourned to 19.2.2000 but again on 19.3.2000 both were called absent and thereafter the learned trial Court decided to proceed with the case and fixed the matter for evidence of plaintiff on 2.3.2000. Learned counsel for the applicant has further argued with vehemence that since there was order dated 27.1.2000 for the signatures of the defendant/respondent for sending the same to handwriting expert and he did not appear in Court on two occasions, yet the learned trial Judge proceeded with the evidene. It was the duty of the trial Court to see the signatures and compare the same by virtue of Article 84 of the Qanoon-e-Shahadat which is reproduced as under:-

"Comparison of signature, writing or seal with other admitted or proved, -(i) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other propose.

(2) The Court may direct any person present in Court to write any words or figures for,the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person."

Learned counsel for the applicant has further argued that in written statement defendant/respondent has not denied the contents of Para 1 of the plaint. Learned counsel has finally contended that the judgment passed by learned trial Court is liable to be set aside.

On the other hand Mr. Anwar Ahmed, learned counsel for the respondent, has argued that the judgment given by the learned trial Court is based on sound reasoning and signature on the documents/ agreement are forged one.

I have heard learned counsel for the parties, have gone through the material available on record and the documents and the orders passed by the learned trial Court.

Admittedly there is an application by consent for referring the documents to handwriting expert dated 22.1.2000 and on 27.1.2000 there are specific directions to the respondent by the learned trial Court to appear before the Court for giving his signatures as the same are to be sent to handwriting expert, the defendant/respondent called absent and did not give his signature in presence of the Presiding Officer for the above said purpose. Admittedly there is order dated 19.2.2000 passed by the learned trial Judge and the same has not been taken into consideration that there are already order and the defendant/respondent failed to appear before the Court for signature which was to be sent to the handwriting expert on two occasions, yet the learned trial Court decided to proceed for evidence of the plaintiff and has not taken into consideration its earlier order dated 27.1.2000. Learned trial Court could have also compared the signatures of the defendant/ respondent by virtue of Article 84 of the Qanoon-e-Shahadat. I have veiy carefully examined the judgment passed by the learned trial Court and the judgment is not based on sound reasoning, particularly where there is also admission on the part of the defendant in view of his written statement. Learned counsel for the respondent has not been able to rebut the contentions raised by learned counsel for the applicant. I am of the considered view that the learned trail Court has failed to consider all the circumstances as discussed supra and judgment has not been written in accordance with the law and in view of the evidence available on record, particularly the orders of the learned trial Judge on two occasions. I, therefore, set aside the impugned judgment dated 12.10.2000 passed by the ^Judge Small Causes Court Karachi, in result this revision application is accepted..

Above are the reason of my short order dated 20.8.2001. (A.A). Revision accepted.

PLJ 2002 Karachi 84 (DB)

Present: saiyed saeed ashhad, C.J. and zahid kurban alvi, J.

EMIRATES BANK INTERNATIONAL PJSC-Petitioner

versus

EXCISE & TAXATION OFFICER & ASSISTANT COLLECTOR 1ST CLASS KARACHI and others-Respondents

C.Ps. Nos. D-1183/99, 209/95, 252/95, 741/95, 742/95, 802/95, 901 to 913 of

1995, 1691/95, 2040/95, 2126to 2128 of 1995,250/96, 332/96,1031/96, 1032/96, 835/97, 669/99 and 670/99, decided on 27.2.2000.

(i) Interpretation of Constitution--

—-Where there is conflict between a statute and any'provision of the Constitution, then provision of constitution is to prevail, being the supreme law of the land. [P. 88] B

(ii) Interpretation of Statutes-

—Where any statute violates/infringes upon any provision of existing statute, then such provision of newly enacting statute would be void to the extent which offends or violates any provision of existing statute. [P. 88] A

(iii) West Pakistan Finance Act, 1964--

-—Sched. VII, Entry No. 2-Sindh Finance Act, 1994, S. 6-Profession Tax Limitation Act, 1941," S. 2-Constitution of Pakistan (1973), Art. 163- Enhancement/Imposition of professional Tax by Provincial Assembly challenged on the touchstone of Art. 163 of the Constitution and S. 2 of Professional Tax Limitation Act, 1941-Imposition/enhancement of Professional Tax effected through amendment of S. 6 of Sindh Finance Act, 1975 and S/5. of Sindh Finance Act, 1994, not only offended the provisions of Federal Statute i.e., Professional Tax Limitation Act, 1941 but also Art. 163 of the Constitution whereby Act of Parliament could not be amended by Provincial Assembly. [P. 88] A & C

Mr. Muhammad Hanif Khan, Advocate for Petitioners (in C.P. No. D-1183/99).

Mr. MazharAli, Advocate for Petitioners (in C.P. No. 209/95). Mr. Anwar Mansoor, Advocate for Petitioners (in C.P. No. 252/95).

Mr. Tasawwur All Hashmi, Advocate for Petitioners (in C.Ps. No. 741/95, 742/95 and 2040/95).

Afr. 4h;/y 7.uhcriAdvocate for Petitioner (in C.P. No. 802/95).

Mr. Khalid Javed Khan, Advocate for Petitioners (In C.Ps. No. 901 to 913 of 95, 2126 to 2128 of 95, 1691/95, 250/96, 332/96, 1031/96, 1032/96 and 835/97).

Mr. Muhammad Raghib Baqi, Advocate for Petitioners (in C.Ps. No. 669/99 and 670/99.

Mr. Munir-ur-Rehman, Addl. A.G. Sindh for Respondents. Date of hearing: 2.2.2000.

judgment

Saiyed Saeed Ashhad, C.J.~These Constitutional Petitions have been filed by the petitioners, whereby the amendment made in Entry No. 2 in the Vllth Schedule of West Pakistan Finance Act, 1964, now Sindh Finance Act, 1964 (As amended by Sindh Finance Act, 1975) imposing Professional Tax under Section 11 of the Sindh Finance Act, 1964, w.e.f. 1.7.1994 to be collected from all limited Companies, Modarabas,Mutual Funds and any other body or Corporate with paid up capital or paid up share and reserve having in the preceding year on the basis of a scale given therein has been challenged.

The grievance of the petitioners is'that by the Sindh Finance Act, 1994, the Provincial legislature has imposed and/or enhanced professional Tax in violation of the provisions of Article 163 of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as" the Constitution) as well as the provisions of Profession Tax Limitation Act, 1941 (hereafter referred to as the Act of 1941) and such action was illegal, void ab initio and of no legal consequence. It is further the case of the petitioners that in view of the illegalities enumerated above, Respondents Nos. 1 and 2 has no authority to issue notices of demand under Section 81 of the Land Revenue Act, demanding a sum of Rs. 18,75,000/-for the years 1994-95, 1995-96, 1996-97, 1997-98 and 1998-99 at the rate of Rs. 3,75,000/-per annum on account of Professional Tax. It was further submitted on behalf the petitioners that they tried their level best to convince the respondents that the aforesaid demands made by them under he heading "Professional Tax" were apparently and clearly illegal, unconstitutional and of no effect and ought to be withdrawn but the respondents did not pay any heed to the representation and arguments of the petitioners and on the contrary submitted that they issued such demand notices to all the banking Companies under a policy of the Government. It was further submitted on behalf of the petitioners that the respondents in imposing/enhancing the rate of Professional Tax by Sindh Finance Act, 1994, have exceeded their authority by violating the provisions of Section 2 of the Act of 1941, which permits the respondents to impose Professional Tax to a maximum limit of Rs. 50.

Respondent No. 3 filed parawise comments, wherein it was submitted that the demand of Professional Tax was revised as per the

prescribed rate shown in the Vllth Schedule of the Sindh Finance Act, 1994 and under the Sindh Professions, Traders, Callings and Employments Act Rules 1976. They further submitted that the tax had been levied under Article 163 of the Constitution and also objected to the maintainability of these Constitutional petitions on the ground that a right of appeal was provided by Rule 9(1) of the Sindh Profession, Traders, Calling and Employment Rules 1976, which was not availed of by the petitioners. They also denied that the demands raised for payment of the Professional Tax wece illegal or invalid and submitted that the same was in accordance with the provisions of the Constitution and legislation made by the pzwincial assembly. It was prayed that the petitions being not maintainable, premature and without any force were liable to be dismissed.

We have heard the arguments of the learned counsel for the parties appearing in all the aforesaid petitions, have perused the material on record and the case law relied upon by them in support of their respective arguments.

By the Sindh Finance Act, 1994, an amendment was made in Section 11 of the Sindh Finance Act, 1964. Section 11 of the Sindh Finance Act, 1964 deals with tax on trades, professions, callings and employment. According to the provisions of .above Section 11, a tax was levied on the classes of persons mentioned therein at the rate of Rs. 30/-.According to the proviso to Section 11 above, levy of Professional Tax of more than Rs. 30/-was prohibited. However, by an amendment made by Section 6 of Sindh Finance Act, 1975, the rates of Tax chargeable from various categories of professions, traders, callings and employment were enhanced from Rs. 30/-to Rs. 50/- in some cases and to Rs. 100/-in other cases. Subsequently, by Sindh Finance Act, 1994, tax was levied on all limited Companies, Modarbas, Mutual Funds and any other body Corporate and the rate of tax was ad Valorem on the amount of paid-up capital or paid-up share and reserves having been assessed to income tax in the preceding year, whichever was more. In accordance with said Section 5 of the Sindh Finance Act, 1994, a minimum Professional Tax on the limited Companies, Modarbas, Mutual Funds and any other body Corporate was fixed at Rs. 5000/-and the maximum was fixed at Rs. 500,000/-. It was submitted on behalf of the petitioners that the amendments made in Section 11 of the Sindh Finance Act, 1964 firstly, by Section 6 of the Sindh Finance Act, 1975 and secondly, by Sindh Finance Act, 1994, enhancing the Professional Tax on certain categories to Rs. 100/-and imposing Professional Tax on the limited Companies. Modarbas, Mutual Funds and any other body Corporate ranging from Rs. 5000/-to Rs. 5,00,000/- were illegal, ultra vires, void ab initio and against the provisions of the Constitution as well as the Federal Statute.

Elaborating their arguments, the learned counsel for the petitioners drew out attention of Article 163 of the Constitution and submitted that

certain restrictions were imposed on the Provincial Legislature in levying or imposing Professional Tax on various categories of persons/bodies and the Provincial Legislature could not impose rates of tax, which were contrary to or in conflict with the provisions of Article 163 of the Constitution or any of the Federal Statutes. To have a clear understanding of the arguments advanced by the learned counsel for the petitioners, it will be appropriate to reproduce Article 163 of the Constitution, which is as under:-

"163. Provincial taxes in respect of professions, etc.-A Provincial Assembly may be Act impose taxes, not exceeding such limits as may from time to time be fixed by Act of Majlis-e-Shoora (Parliament), on persons engaged in professions, trades, callings or employments, and no such Act of the Assembly shall be regarded as imposing a tax on income."

From a plain regarding of the above Article, it is to be deduced that a Provincial Assembly has been given the powers to impose taxes in respect of professions, etc, subject to the limitations, which may be fixed by an Act of Majlis-e-Shoora (Parliament) on any person engaged in any Profession, Trade, Calling and Employment. Thus, the power exercisable by the Provincial Assembly in imposing taxes on Professions. Traders, Callings and Employment is subject to the limitations contained in an Act of Parliament, that is to say a Federal Statute. The Federal Statute, the provisions of which according to the learned counsel for the petitioners have been violated by the amendments in Section 11 of the Sindh Finance Act, 1964 by Section 6 of the Sindh Finance Act, 1975 and Section 5 of the Sindh Finance Act, 1994, is the Profession Tax Limitation Act 1941. Section 2 of the Profession tax limitation Act puts a limitation on the powers of a Provincial Assembly, Municipality, district board, local board or other local authorities to levy/impose taxes on professions, trades, callings and employments in respect of the rate on the amount of such tax which cannot exceed Rs. 50/-per annum. It will be appropriate to reproduce Section 2 of the Profession Tax Limitation Act, 1941, which is as under:

"Notwithstanding the provisions of any law for the time being in force, any taxes payable in respect of any one person to a Province, or to any one municipality, district board, local board or other local authority in any Province, by way of tax on professions, trades, callings or employments, shall from and after the commencements of this Act, cease to be levied to the extent to which such taxes exceed fifty rupees per annum."

It is the case of the petitioners that both the aforesaid amendments made in the Sindh Finance Act, 1964 by the Sindh Finance Act, 1975 and Sindh Finance Act, 1994 are violative of Section 2 of the Profession Tax Limitation Act, 1941 and the imposition/levy of Professional Tax on various categories of persons engaged in professions, trades, callings and employments in excess of Rs. 50/-was an illegal exercise of powers in view of the provisions of Article 163 of the Constitution and Section 2 of the Profession Tax Limitation Act, 1941. It is a well settled principle of law that if any Statute violates of infringes upon any provision of existing Statute, then such provision of the newly enacted Statute would be void to the effect which offends or violates any provisions of an existing Statute. In the present case, the amendments brought about by Section 6 of the Sindh Finance Act, 1975 and Section 5 of the .Sindh Finance Act, 1994, not only offended the provisions of a Section of a Federal Statute but also of the Constitution. When there is a conflict between a Statute and any provision of the Constitution, then the provision of the Constitution is to prevail as it is the supreme law of the Land and all other laws whether Federal or Provincial are subservient to it.

Mr. Munir-ur-Rehman, learned Additional Advocate General Sindh, appearing on behalf of the State, did not controvert the arguments advanced by the learned counsel for the petitioners and conceded that the amendments made in Section 11 of the Sindh Finance Act, 1964 firstly, by Section 6 of the Sindh Finance Act, 1975 and secondly, by Section 5 of the Sindh Finance Act, 1994, were not only violative and in conflict with the provisions of a Federal Statute but also with the provisions of the Constitution, which has imposed limitation on the powers of a Provincial Assembly to impose/levy tax on the various categories of persons engaged in professions, trades, callings and employments, mentioned in Article 163 of the Constitution. He further submitted that imposition and/or enhancement of tax over and above Rs. 50/-was absolutely in disregard and contrary to the provisions of the Constitution as well as the provisions of Profession Tax Limitation Act, 1941, a Federal Statute. Upon the above discussion, we are satisfied beyond any doubt that amendments made in Section 11 of the Sindh Finance Act, 1964 by Sindh Finance Acts, 1975 and 1994 empowering the Provincial Government to is aforesaid tax without putting any limitation on rate or amount of tax was illegal, ultra vires, without lawful authority and of no legal effect as the same were in complete disregard and violation of Article 163 of the Constitution and Section 2 of the Profession Tax Limitation Act, 1941. The amendments made cannot be sustained and are declared to be null and void and of no legal effect in enhancing the rate of aforesaid tax at more than Rs. 50/- On 2.2.2000, by a short order, we had allowed the above Constitutional petitions for reasons to be recorded later. These are the _ reasons for the said short order.

(A.P.) Petition accepted.

PLJ 2002 Karachi 89 (DB)

[Hyderabad Circuit]

Present: MUHAMMAD MOOSA K. LEGHARI faiz muhammad qureshi, JJ.

MUHAMMAD AKRAM MALIK--Petitioner

versus

PROVINCE OF SINDH, through Chief Secretary Govt. of Sindh Karachi and 2 others-Respondents

C.P. No. D-550 of 1999, decided on 22.3.2001. (i) Constitution of Pakistan, 1973--

—-Art. 199(l)(b)(ii)-Under Article 199 of Constitution, if a person holds or public office, High Court is competent to make an order requiring incumbent to show under what authority of law, he is holding such office.

[P. 92] A

_ (ii) Constitution of Pakistan, 1973-

-—Art. 199(l)(b)(ii)--Any person can move High Court to challenge unauthorized occupation of or public office-On any such application, Court is not only to see that incumbent is go beyond and see as to whether he is legally qualified to hold office-Invalidity of appointment may arise not only from one of qualification but also from violation of legal provisions for appointment. [P. 93] B

1992 PLC (C.S.) 289 ref.

(\il) Public Office--

—Definition-Public office is an office created by State, by charter or by statute, when duties attached to this office are of a public nature.'

[P.94]C PLD 1963 SC 203 ref.

Mr. Jhamat Jethanand, Advocate for Petitioner. Mr. Masood Ahmed Noorani, Additional Advocate General for Respondent No. I.­Mr. Ejaz All Hakro, Advocate for Respondents Nos. 2 and 3. Date of hearing: 22.3.2001.

judgment

Muhammad Moosa K. Leghari, J.--The'petitioner through this petition has called in question the Notification dated 20.08.1999 (Annexure H) issued by Respondents Nos. 1 and 2 and challenged the appointment of Respondent No. 3 as Director General Agriculture Extension Sindh with the prayer to declare the said Notification to be without jurisdiction and of no legal effect, as the posting of Respondent No. 3 by way of replacing the petitioner from the said post mala fide. That facts in nut-shell giving rise to the petition are that the petitioner claims to be possessing expertise and knowledge in the field of agriculture technologies. He claims to possess a degree of M.Sc. (Agriculture) from the University of Sindh Jamshoro in the year 1966 having specialization in the field of Agronomy Petitioner claims to have started his service in the field of agriculture in the year 1968 and was an officer of BPS- 19 in the Agriculture Extension Wing of Agriculture Department. According to the petitioner he was mature for promotion to BPS-20 but to his misfortune the promotion of the petitioner was withheld and deferred for various reasons. According to the petitioner he held the post of Director General Agricultural Extension Hyderabad Sindh for more than two years and his performance throughout remained satisfactory. The post of Director General against which the Respondent No. 3 was posted was a highly technical post requiring expertise in the field of Agriculture Science but Respondent No. 3 did not possess the req uired qualification, thus the Notification whereby the Respondent No. 3 was appointed on the post of Director General (Extension) is without jurisdiction.

1. The comments were filed on behalf of the Respondents Nos. 2 and 3 in which the claim of the petitioner was denied except that it was admitted that the Respondent No. 3 was appointed by a Notification issued by the Respondent No.

2. It was further asserted that the Respondent No. 3 was appointed by way of "transfer" as such the respondent was neither "Appointed" nor was "Promoted" but he was merely transferred. It was further pleaded that the petitioner was not an "aggrieved person" and as such was not competent to challenge the Notification dated 20-8-1999. It was further stated in the comments that the petitioner was a "Civil" Servant" and since the petition related to terms and conditions of his service, the Constitutional jurisdiction of this Court was barred. It was further stated that the petitioner being "civil servant" was liable to serve anywhere, as it was discretion of the Government to transfer the petitioner anywhere and he being a Government employee cannot raise objection to his transfer. It was next stated that previously also Government of Sindh had been posting various officers of the District Management Group against the post of Director General which was never objected to by anyone. It was further stated that the matter fell within the exclusive jurisdiction of the Sindh Services Tribunal and petition was hit by the provisions of Article 212 of the Constitution. We have heard Mr. Jhamat Jethanand, learned counsel for the petitioner, Mr. Masood Ahmed Noorani Addl. A.G. for Respondent No. 1 and Mr. Ejaz Ali Hakro, for Respondents Nos. 2 and 3. It has been contended by the learned counsel for petitioner that by virtue of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974, the Respondent No. 3 was not qualified to hold the post of Director General Agriculture Extension Sindh. Learned Counsel has further argued that since the petition does not relate to the terms and conditions of

3. the petitioner and therefore, neither the jurisdiction of Services Tribunal was attracted nor the petition will be hit by Article 212 of the Constitution. Even otherwise, according to him, the bar contained in Article 212 was not exclusive. Learned counsel next argued that there is no dispute with regard to the qualification and know how being possessed by the petitioner who is an employee of the Agriculture Department and by posting of the Respondent No. 3 his rights have been effected as such he has an interest in the matter. 5. Mr. Masood Ahmed Noorani, Addl. A.G. for Respondent No. 1 submits that the Petitioner was admittedly a 'Civil Servant' and since the petition relates to the terms and conditions of his service, the matter was within the purview of Services Tribunal. He further contended that it was sole discretion of the Government to appoint anybody against any post and petitioner has not locus standi to challenge the said appointment. In the alternate he argued that the petitioner was not an "aggrieved person" to invoke the Constitutional j urisdiction of this Court. Mr. Ejaz Ali Hakro, learned Advocate for Respondents Nos. 2 and 3 adopted the arguments of learned Addl. A.G. and further contended that the relief sought by the petitioner cannot be granted to him , as the petitioner was not in Grade 20, therefore, was not fit for appointment against the said post. Referring to Section 10 of the Sindh Civil Servants Act, 1973 learned counsel sought to argue that transfer was one of the terms and conditions of the service and a civil servant can be transferred according to xigencies of the post and that civil servant will not have a vested right to be posted against a particular post. In support of his arguments learned counsel has relied upon (i) PLD 2000 Pesh. 1 (c), (ii). 1997 SpMR 167, (iii) 1992 SCMR 1843, (iv) 1996 SCMR 1649, (v) 1999 SCMR 784 and (vi) 1998 SCMR 1948.

4. The maintainability of the petition had to be judged in the light of the provisions contained in Article 199 of the Constitution Clause .(1) of this Article contains three distinct sub-clauses (a), (b) and (c) conferring thereby specific powers on this Court to make orders of different kind in different situation. While sub-clause (a) is prefaced with the words, "On the application of an aggrieved party", and sub-clause (c) is prefaced with the words, "on the application of an aggrieved person', sub-clause (b) significantly omits the phrase, "aggrieved party" and is worded as under: "(b) on the application of any person, make an order- (i) 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 not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or 8. The above legal position in respect of parameteria provisions contained in Article 98 of the 1962 Constitution came to be accused by the Honourable Supreme Court in the case, M U.A. Khan v. Rana M. Sultan and another PLD 1974 S.C. 228 and the Honourable Supreme Court was pleased to observe as under: "It will be seen that for the purpose of applications contemplated under sub-clause (b) the petitioner did not have to be an aggrieved party; he could be "any person". The reason for this distinction between the position of the petitioner under sub-clauses (a) and (c) on the one hand and sub-clause (b) on the other is that the matters contemplated by sub-clause (b) are of public importance and interest, and it is enough that they are brought to the notice of the Court, without the petitioner having any personal interest in the matter. The High Court was, therefore, in error in thinking the petitioner before them had to be an aggrieved party for the purposes of urging any of the grounds against the validity of the respondent's appointment to a public office. The learned counsel for the respondent frankly conceded that he could not defend the view expressed in this behalf by the High Court.

There can be little doubt that the appointment held by the , respondent is in the nature of a public office. As pointed out by this Court in Masudul Hassan v. Khadim Hussain, a public office is an office, created by the State, by charter of, by statute, when the duties attached to this office are of a public nature. In the instant cases, the office of the Chief Inspector of Mines is a statutory office created by the State under Section 4 of the Mines Act. The duties and functions of this office are also of a public nature, dealing with the regulation of the working of mines in the Province. It is, therefore, clear that the petition instituted by the appellant was maintainable under sub-clause (b)' (ii) of clause (2) of Article 98 of the 1962 Constitution read with the Provisional Constitution Order, 1969."

1. In the above cited case the appointment of the respondent as Inspector of Mines was called in question and the Honourable supreme Court was pleased to hold that the order/writ in the nature of quo warranto can be issued against the holder of a public office which was created by the State. 10. The Honourable Supreme Court in somewhat similar circumstances expressed the same view in the cases of Al-Jehad Trust reported in P.L.D. 1996 S.C. 324 and Malik Asad AH and others Federation of Pakistan reported in P.L.D. 1998 S.C. 161. 11. In yet another case titled. Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab and 2 others reported in 2000'S.C.M.R. 1720, Honourable Apex Court was pleased to hold as under:"Under Article 199(2)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, the High Court in exercise of its Constitutional jurisdiction is competent to enquire from any person, holder of public office to show that under what authority he is holding the said office. In such-like cases where a writ in the nature of qua warranto is instituted the duty of the petitioner is to lay information before the Court that such and such officer has no legal authority to retain such office. For a petitioner who acts, in fact, as informer is not required to establish his locus standi to invoke the jurisdiction of the Court. In this behalf reference may be made to Masood-ul-Hassan v. Kha'dim Hussain and another (P.L.D. 1963 S.C. 203). In this report it has been held that writ of quo warranto in its nature is an information laying against persons who claimed or usurped an office, franchise or liberty and was intended to inquireby what authority he supported his claim in order that right to office may be determined. It was further held that it is not necessary for the issuance of writ that the office should be one created by the State of character or by statute and that the duty should be of a public nature. Similarly in the case of M. U.A Khan v. Rana Muhammad Sultan and another (P.L.D. 1874 SC 228) this Court held that writ of quo warranto could be moved by "any person who even may not be an aggrieved party but is holding a public office created by character of statute by the State." Yet in another case which is reported from the jurisdiction of High court of Azad Jammu and Kashmir i.e. All Hussain Bukhari and 39 others v. Azad Jammu and Kashmir Government through Chief Secretary and 2 others (1992 PLC (C.S.) 289), it was observed that any person can move the High Court to challenge the unauthorized occupation of a public office on any such application Court is not only to see that the incumbent is holding the office under the order of a competent Authority but it is to go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office, the Court has also to see if statutory provisions have been violated in making the appointment. The invalidity of appointment may arise not only from one of qualifications but also from violation of legal provision for appointment". In the said report it was full the observed: "It may also be observed that on question of locus standi of the respondent to challenge the appointment of petitioner reliance can also be placed on Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others (P.L.D. 1996 SC 324) and Malik Asad All and others v. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others (P.L.D. 1998 Supreme Court 161). Thus, we are persuaded to hold that Secretary General Workers' Union i.e. Respondent No. 3 legitimately invoked the jurisdiction of the Court by filing writ in the nature of quo warranto challenging the status of petitioner to hold the office in BPS-19 in G.D.A."

2. The admitted position is that Respondent No. 3 at the relevant time was holding the post of Director General Agricultural Extension, which is a public office, under the contemplation of Article 199(2)(b) (ii) of the Constitution. As such, this Court was competent to make an order requiring the said Respondent No. 3 to show under what authority of law, he was holding such office. 13. That before the issuance of impugned Notification, the petitioner before us was holding the post of Director General, Agricultural Extension Sindh, Hyderabad. Through the impugned Notification dated 20.8.1999 he was transferred and in his place Respondent No. 3 was appointed. The petitioner having previously occupied the said post and being future aspirant for the same was a person interested. In view of the law laid down by the Honourable Supreme Court, as referred above, there remains no doubt to hold that the petitioner has the locus standi to invoke the jurisdiction of this Court, and we accordingly hold that the petition was maintainable having been competently filed.

3. We have considered the case law cited by the learned counsel for respondents. Besides, the legal objection which has been discussed above in detail, the entire case law referred by the learned counsel is on the point that a Government Official has no vested right to be appointed against a particular post. It was further held in the above authorities that an officer was not competent to impugn his transfer and to invoke the Constitutional jurisdiction of this Court to challenge the order of transfer. There is no cavil with the proposition of law that the transfer falls within the ambit of terms and conditions of civil servant and a civil servant cannot ask for posting of his choice. It is settled principle of law that the transfer cannot be challenged by invoking the Constitutional jurisdiction. We are, accordingly not inclined to disturb the order of transferring the petitioner, as he is not entitled to any such relief. Having arrived at the conclusion that the petition was legally maintainable, we now proceed to examine as to whether the appointment of Respondent No. 3 by way of transfer was lawful and in accordance with the provisions of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. Before adverting to the circumstances of the present case it will be pertinent to state that the appointment of a 'civil servant' can be made by three modes viz: (i) by way of initial recruitment; (ii) by way of promotion, and (iii) by way of transfer. 17. So far as the case in hand is concerned, the Government of Sindh viz. Respondent No. 1 in pursuance of sub-rule (2) of Rule 3 of Sindh

Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, had prescribed the method of appointment to the post of Director General, Agriculture Extension Sindh vide Notification dated 21.03.1993, which has been placed on record. It will be advantageous to reproduce the said Notification hereunder.

"NOTIFICATION

No. S.O. (A-D/DA-933/88 (P-II): In pursuance of Sub-Rule (2) of Rule 3 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, and with the concurrence of the Services and General Administration Department, and Sindh Public Service Commission, the method, qualification and other conditions of appointment to posts B-16 and above in the Agricultural Extension are prescribed in the following statement:-\

STATEMENT

| | | | | | | --- | --- | --- | --- | --- | | Sr. No. | Name of the post with EPS | Method of appointment | Qualification/ Experience necessary for initial recruitment. | Age Limit Min: Max: | | I. | Director General Agriculture Extension Sindh | By promotion from amoungst the Director of Agriculture Extension BPS- 19 | | | | | (BPS-20) | having at least 17 | | | | | | years service in BPS- 17 and above | | | | | | OR length of | | | | | | service as | | | | | | prescribed by the Government time | | | | | | to time. | | | | | | OR | | | | | | By transfer of Director Generals | | | | | | of other Wings of Agriculture Department. | | |

1. Thus from above it is obvious that according to the provisions of said Notification, a person can be appointed as Director General, Agriculture Extension Sindh, either by promotion from amongst the Directors, Agriculture Extension (BPS-19) having at least 17 years service in BPS-17

and above or length of Service as prescribed by the Government from time to time; OR by transfer of Director General of other Wings of Agriculture Department. It therefore follows that the post of Director General can be filled only be the above mentioned two methods which are either by promotion or by transfer. The appointment by way of transfer can be made only be transferring a Director General of other Wings of Agriculture Department. In this particular case, the Respondent No. 3 was admittedly appointed by way of transfer as apparent from the impugned Notification. According to the contents of the Notification at the time of his transfer Respondent No. 3 who was an officer of Ex-PCS cadre was working as Secretary, Board of Revenue Sindh and certainly was not working as Director General of any other Wings of the Agriculture Department as required under the said Notification. There can be no two opinions that the Government shall be the sale judge to appoint any person against any, post, subject however, to the qualifications as prescribed under the Rules framed under the Sindh Civil Servants Act, 1973. The Notification dated 21.3.1993 contains the required qualifications for the holder of the said office. The said Notification prescribing the qualifications having been issued under the provisions of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 has the force of law. The position was never disputed by the learned Additional Advocate General Sindh as well as learned counsel for the Respondents Nos. 2 and 3.

1. In view of the above factual and legal position, it will be evident that the appointment of Respondent No. 3 against the said post was in contravention of the provisions contained in the Sindh Civil Servants (Appointment, Promotion and Tra'nsfer) Rules, 1974, as he did not possess the requisite qualification as prescribed in the said Rules, as such his posting/appointment was not lawful. For the foregoing reasons, it is hereby declared that the impugned Notification dated 20.08.1993 to the extent of appointment of Respondent No. 3 against the post of Director General, Agricultural Extension, Sindh Hyderabad was null and void and is declared to be without lawful authority and of no legal effect. 20. Following the law laid down by the Honourable Supreme Court on Malik Asad Ali v. Federation of Pakistan (P.L.D. 1998 SC 161), we hold that all actions taken and orders passed by Respondent No. 3 in his capacity as Director General Agricultural Extension, Hyderabad from the date of his appointment till the date of this judgment will be deemed to have been validly taken and passed and will not open to any challenge on the ground of defect in the appointment of Respondent No. 3 as Director General. The petition stands allowed in the above terms. (S.S.H.) Petition allowed.

PL J 2002 Karachi 97 (DB)

Present: saiyed SAEED AsHHAD, C. J., mushir alam, J.

KARACHI WATER & SEWERAGE BOARD, KARACHI through MANAGING DlRECTOR-Appellant

versus M/s. M.A. MAJEED KHAN and 2 others-Respondents

H.C.A. No. 105 of 2001, heard on 10.8.2001.

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

—S. 151--Law Reforms Ordinance (XII of 1972), S. 3-Consolidation of suits- -Suits can be consolidated where parties in suits were same and suits were proceeding in same Court; points in issue, defence were substantially common; common evidence was to be recorded and consolidation was applied at the earliest opportunity before recording of evidence-In suits in question, whole evidence has been recorded in one suit while other suit was proceeding at initial stage-Defendants had applied after two years for consolidation when evidence in one of suits was complete—No prayer was made for consolidation when issues were being framed-Appeal not maintainable. [Pp. 99 & 100] A & B

Mr. Ahmed Zamir Khan, Advocate for Appellant. Mr. G.M. Saleem, Advocate for Respondents. Date of hearing: 10.8.2001.

judgmen­ Mushir Alain, J.--This appeal calls in question the order dismissing on application under Section 151 CPC (CMA No. 2004/2001) filed by the appellant/Defendant No. 2 in Suit No. 89/1996 seeking consolidation of said suit with Suit No. 859/1996. Briefly, facts as are necessary for the disposal of this High Court Appeal are that the Respondent No. 1 had filed Suit No. 89/1996 for compensation by way of damages ih the sum of Rs. 1,50,000,00 against the appellant, Respondents Nos. 2 and 3 jointly and severally. The cause of action was shown to have arisen on 27.6.1996 on account of breach and cancellation of a contract. It appears from the record that subsequently the _..'Respondent No. 1 filed another suit for compensation by way of damages and the cause of action is shown to have had arisen on 13.4.1996. and 14.4.1996 when the alleged defamatory news items was published against the plaintiff, this is an action under tort for suffering and mental torture.

Both the suits proceeded separately, from the record it appears that an application (CMA No. 1941/1998) under Section 10 r/w Section 151

C.P.C. for the stay proceeding in Suit No. 859/96 was filed same was dismissed vide order dated 7.12.1998 it also appears from the record that another application under Section 151 CPC (CMA No. 3140/1999) was filed by the appellant in Suit No. 859/1996 seeking consolidation of said suit with Suit No. 89/1996. Said application was also dismissed, on 25.5J999.

The appellant having failed to obtain stay of Suit No. 859/1996 or any order as to consolidation of both the suits yet made another attempt this time by making an application under Section 151 CPC (CMA 2004/2001) in Suit No. 89/1996 praying for consolidation of Suit No. 859/1996. Learred single judge in consideration of the fact that earlier two applications of the similar nature in the other suit (Le. 859/96) were dismissed held .that seeking consolidation in Suit No, 859/199 with Suit No. 89/1996 or vice versais one and the same thing and further that Suit No. 859/1996 is ripe for final arguments while other Suit No. 89/1996 is still at the stage of the, plaintiff (Respondent's No. 1) evidence. Consequently, the application was dismissed with cost on 27.3.2001.

Mr. Kundi learned counsel for the appellant contended that there is , no embargo in law to make an application for consolidation or stay in a suit despite the fact that similar applications were dismissed in another suit sought to be stayed or consolidated. He further contended that in both the suits parties are same, cause of action is same, subject matter is same and it will be expedient if both the suits are consolidated and -disposed of by a common judgment in order to avoid conflict of opinion and multifarious proceedings. According to him the orders impugned are illegal, void, perverse erroneous and nullity in the eyes of law and cannot be sustained. It is further contended that Suit No. 859/1996 is ripe for the arguments and the Respondent No. 1 is prolonging the proceeding in the Suit No. 89/1996, which was filed earlier in time but is still at the stage of evidence of plaintiff/ Respondent No. 1.

Mr. G.M. Saleem learned counsel for the Respondent No. 1 opposed the appeal inter alia, on the ground that besides the parties being- same, nothing is common, subject matter of both suits is different, based upon altogether different causes of action Suit No. 89/1996 according to him is for compensation on account of breach of contract and Suit No. 859/1996 arises under tort for defamation meted out to the respondent.

We have heard the arguments and perused the record.

Consolidation of the suit is not specifically provided for under Code of Civil Procedure. Order 2 Rule 3 recognizes joinder of cause of action. Plaintiff may join or unite in a suit several causes of action against the same '•$ defendant, object of rule is to avoid multiplicity of proceedings, but where it appears to the Court that any causes of action joined in a suit cannot be conveniently tried or disposed together the Court may order separate trials or make such order as may be expedient (Order 2 Rule 6 C.P.C.). In case

where several causes of action are j'oined in one suit then objection as to such miss-joinder must be taken at the earliest opportunity as provided under Order 2 Rule 1 CPC. If no such objections are taken at or before settlement of issue same are deemed to have been waived, conversely same can be true where a party has splitted up several causes in more than one proceedings when same could be joined together then objector may apply for consolidation of all causes at the earliest opportunity or where it appears to the Court that several causes of actions can be conveniently tried or disposed of together make order for consolidation and such powers can be exercised under Section 151 CPC. One may refer to Shahzaada Sultan Humayun v. Nasiruddin 1984 CLC 3090. Consolidation means a process of uniting several action in the one trial in a judgment by the order of the Court, consolidation of action under the Blacks Law Dictionary (6th Edition) is defined as under:-

Consolidation of actions. The act or process of uniting several actions into one trial and judgment, by order of a Court, where all the actions are between the same parties, pending in the same Court, and involving substantially the same subject-matter, issues and defenses; or the Court may order that one of the actions be tried, and the others decided without trial according to the judgment in the one selected.

To avoid likelihood of conflict or opinion, discourage multiplicity of proceedings, duplication of trial of same issue between the same set of parties, to expedite decision, avoid delay and inconvenience Consolidation or joinder of several action into one may be ordered by the Court where it is satisfied that all the causes are:

(a) Between the same parties.

(b) Before the same Court.

(c) Point in issue, defence are substantially common in. all such action.

(d) Common evidence is to be recorded.

(e) Consolidation is applied at an earliest opportunity, before evidence is record.

In the light of above discussion examining the case of appellant both the suits are between the same party and in the same Court. Suit No. 859/ ,1996 is ripe for arguments whereas, Suit No. 89/1996 is still in its infancy as ievidence of the plaintiff has not yet been completely recorded trend of the proceeding in Suit No. 89/1996 reflects that it will take considerable time for the evidence of the defendant to be recorded and stage of both the suits are at quite variance and it will not be possible in near future for the earlier Suit No. 89/1996 to catch up with Suit No. 859/1996 which is at the final stage. Suit No. 89/1996 is for damages on account of the breach of contract other Suit No. 859/1996 is for damages resulting from libelous publication in news paper claim is founded under tort point in issue, defence, are substantially different in both the suits. Even otherwise, as observed above any objections relating to non-joinder being analogous to mis-joinder of the cause of action in terms of Order 2 Rule 7, ought to be taken at earliest-possible opportunity. In Suit No. 859/1996 issues were framed on 10.3.1997 and in Suit No. 89/1996 issues were settled on 2.11.1998. Appellant had applied for the first time for Consolidation in Suit No, 859/1996 in 1999 through CMA 3140/1999 where as issues were framed on 10.3.1997 i.e. almost after two years when evidence was completed. Further more subsequent application in Suit No 89/1996 subject matter of the instant appeal is also hit by the principal of constructive res-judicata and explanation ffl to Section 11 C.P.C. is attracted as the matter in issue relating to the consolidation of both the suits was urged earlier in Suit No. 859/1996 same was decided on 25.5.1999. Appellant took no exception to it, no appeal was filed. Application for consolidation was repeated in the instant matter after more than one year, on substantially same facts and ground under circumstances the appellant cannot avoid the implication of principle constructive of res-judicata in the present proceeding, as the principal of^ constructive rts-judicata are equally applicable to orders passed on applications as well.

We find no merit in this appeal, same is accordingly dismissed alongwith listed application.

(A.A.) Appeal dismissed.

PLJ 2002 Karachi 100 (DB)

Present: zahid kurban alvi and mushir alam, JJ.

QAID JAUHAR and another-Appellants

versus Mst. HAJIANI HAJRA BAI and another-Respondents

H.C.A. No. 16 of 1992, decided on 4.10.2001.

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

—O.VI, R. 17 & S. 15-Amendment of written statement was allowed subject to all just exceptions-Defendants however, while amending his written statement retracted admission of facts made in earlier writtenx statement-Liberal exercise of power to allow amendment could not be stricted to extent where same would adversely effect other party-­Amendments which do not change complexion of case can be allowed even at terminal stage by Apex Court-Amendment of written statement having been allowed subject to all just exceptions, same would preserve right of opposing party to object to proceedings or matter, in course of trial, being improper and illegal-Defendants having signed earlierwritten statement cannot be allowed to retract from admission which he had made earlier-Trial Court the having taken correct view of matter, no interference was warranted in the matter. [Pp. 102 to 105] A to E

1985 SCMR 824; 1982 SCMR 189; PLJ 1999 SC (AJK) 276; PLD1980 Karachi 345; 1995 MLD 290; PLD 1982 Kar. Ill ref.

Mr. Abid S. Zubari, Advocate for Appellants. Mr. I.G. Chundrigar, Advocate for Respondents. Date of hearing: 15.12.2000.

judgment

Mushir Alam J.-Through this appeal appellants seek to challenge the impugned order dated 4.11.1991 passed by learned single Judge. Facts as could be gleaned from the pleadings are that the Respondent No. 1 entered into an agreement dated 27.2.1978 with the predecessor of Appellants and Respondent No. 2 herein, for the purchase of their Bungalow No. JM-943/5 Clifton Road Karachi, for a total consideration of Rs. 500,000/-. It was the case of the Respondent No. 1 (Plaintiff) that in addition to the agreed consideration, further sum was demanded. Differences led to the exchange of notice, followed by instant suit. Originally the suit was filed against the Respondent No. 1, Mst. Zohra Bai, and Mst. Khadija Bai, who all filed their joint written statement on 5.3.1979 admitting execution of the sale agreement and so also sale consideration. Only defence urged in the written statement was that the Respondent No. 1 herein had failed to perform her part of the obligations. On the basis of the pleading on 1.4.1979 following issues were farmed.

(i) Whether the plaintiff performed their part of the contract?

(ii) Relief?

Record further shows that almost after Eight (8) years on 19.5.1989, the predecessor (mother) of the appellant Mst. Khadija Bai, filed an application (CMA. No. 2819/1987) under Order VI Rule 17 C.P.C. seeking amendment of written statement. It is pertinent to point out that through the proposed amendment the Appellant intended to resile from the admission made in the earlier " written statement. During pendency of this application Mst. Khadija Bai, (Defendant No. 2) and so also Mst. Zohra Bai (Defendant No. 3) passed away.' From, the record it appear that the matter came up before the Court several times. Lastly on 4.5.1989 following order was passed. "By consent the LR's of the Defendant No. 3 are directed to amend the written statement, which will be subject to all just exception. Amended written statement shall be filed within 15 days. CMA 2891/87 stands disposed of." The amended written statement was filed on 16.8.1981 wherein, as stated above, the defendant resiled from the admission made earlier, in as much as, total sale consideration was also denied. However, the execution of sale agreement was admitted but the terms and condition set out therein wire claimed to be without their knowledge and entire burden was shifted on the shoulder of Respondent No. 1 namely Afzal Ali, who according to the Appellant acted in breach of trust. It may also be relevant to point out that the earlier written statement was duly signed by all the Defendants. On 5.5.1991, further issues were adopted, listed application was filed immediately thereafter. Learned Judge in Chamber after hearing the parties passed the order impugned herein. It is contended by Mr. Abid Zubari learned counsel for the'Appellant that Mst. Khidija Bai, on 25.3.1987 engaged another counsel and it was then revealed that the facts stated in the written statement filed earlier were not placed correctly. Necessitating the application under Order VI Rule 17 CPC. It was further contended that the amended written statement was allowed to be filed by consent and no exception can be taken to such an order. Further that the appellants being widows are entitled for due protection of law. It was' further argued that the statement of fact made in earlier written statement were not correct and such retraction is not against law. He placed reliance on Mst. DHARAN BIBI and others Vs. KHUSHI MUHAMMAD and other (1995 M.L.D. 290).

As against this Mr. Chundrigar learned counsel for the Respondent, while refuting the contentions of the appellant's counsel both on facts and law, stated that, the order dated 4.5.1989, was qualified and "subject to all just exceptions. It was further contended that the admission made earlier cannot be allowed to be retracted, a party cannot be allowed to setup absolutely different case in the garb of amendment. In support he has relied upon HAJI SALMAN ALI vs. ALI AHMED AND ANOTHER (P.L.D. 1982 KARACHI 111).

According to him powers to allow amendment can be exercised\ liberally but cannot be stretched to the detriment of other party. There is no cavil to the proposition advanced by Mr. Zubari that the power to allow amendments are to be exercised liberally, but at the same time such liberal exercise of power are not to be stretched to an extent where" it will adversely effect the other party. Usually the amendments are liberally allowed in case where there appears to be some error or omission or mis-discription in the pleading. Amendment which do not change the complexion of case are allowed even at the terminal stage by the Apex Court, if circumstances so warrant, one dan see for reference Ghulam Nabi u. Sardar Nazir Ahmed (1985 SCMR 824) Wazir Muhammad vs. Abdul Azia and another (1982 S.C.M.R. 189) PLJ 1999 SC. A.J.K. 276. Basic rule governing amendment of pleadings being that through amendment a party cannot be allowed to change the complexion of claim or to setup altogether new case or a case diabolically opposed to the one setup in earlier set of pleading in the same proceedings. The amendment can only be made upto the extent allowed by the Court. In the instant matter the application for amendment of written statement was allowed by the learned single Judge. Subject to all just exception. The expression, subject to all just to all just exception used in judicial pronouncement has been interpreted by a Division Bench in case of Shamimur Rehman v. Govt of Pakistan (PLD 1980 Karachi 345) at page 355 as. "All that is meant by the use of such word is that the allegations in the application for amendment, and the facts sought to be pleaded are not to be taken as having been accepted by the other side, who remains at liberty to challenge the same". In the case of Ghulam Muhammad v. Irshad Ahmed (PLD 1982 S.C. 282) at page 285, Apex Court interpreted said phrase as; "One of the well known meaning of the phrase. Subject to all just exception is that the order which contain this expression would be effective unless and until the other party who would be effected by such an order takes exception to it and raises objection which are ultimately upheld to be just and valid". From the above discussion it is clear that expression. Subject to all >just exception, is used with purpose to preserve the right of opposing party to object to proceedings or matter, in the course of a trial, being improper and illegal. The party excepting does not acquiescence in the decision of the Court, but reserves to itself the right to secure its reversal at subsequent stage of proceedings. In the instant case, the respondent though consented to the application for amendment of written statement, yet reserved to himself right to object to the validity, legality and proprietary of such amendment, which right was exercised by making an application (CMA No. 969/1991) under Order 14 Rule 5 read which Section 151 CPC praving inter alia that the Appellant may not be permitted to rely on such contents of written statement filed on 16.8.1989 which are in conflict with written statement dated 5.3.1979 signed by late Defendant No. 3. Purport and import of expression "subject to all just exception" is similar to phrase "without prejudice used in relation to negotiations, agreements, compromise offer or correspondence.by parties, in order to guard against any waiver of right or privilege. In Abdul Razak v. Standard Insurance Co. (1990 MLD 1842), it was observed that the words "without prejudice" as used in judgment proceedings and when they appear in an order or decree, it shows that judicial act is not intended to be resjudicateof the merits of the controversy. SimOarly in case of Pakistan Refinery Ltd. v. Pakistan National Shipping Corporation 1986 CLC 2555 it was held that where appointment of arbitrator and participation in arbitration proceeding was without prejudice to objection of limitation, right to challenge such proceedings subsequently on the ground of limitation would not stand Waived. By permitting the appellant to file amended written statement, 'subject to all just exception, the Court in fact permitted only such amendment as are permissible under law, The Court did not examine the merit of such amendment but left it open for the plaintiff to challenge the validity, merit and proprietary of such amendment. When such challenge and objection was made, learned single Judge examined it and in consideration of following dicta laid down in the case of Haji Suleman Mi (PLD 1982 KARACHI 111) at page 114; "The defendant does not acquire unfettered rights to change the written statement in toto or substitute it by a completely new ^ written statement. Although the provisions of Order VI, Rule 17, C.P.C. may not strictly govern such amendment in the written statement, the Court is entitled to apply the principles relating to amendment of pleading while examining the amended written statement All such amendments which a defendant is not entitled to plead or are in contravention of the principles governing amendment of pleading will not be allowed to be taken in the amended written statement without the permission of the Court. The Court have vast 'discretionary powers to grant amendment and should be liberally exercised to promote the ends of justice and determine the real controversy between the parties. Whilst filing amended written statement besides replying to the amended part of the plaint, the defendant can also raise pleas, which may be legally available to him. But it does not entitle the defendant to resile from the admission made in the earlier written statement or to put up a completely new or inconsistent case as pleaded in the earlier written statement Admission made by a party in the pleading cannot be revoked without the leave of the Court". Allowed the application of the respondent and such amendments which were in conflict with the written statement filed earlier were ordered to be ignored for all purposes. Contention of Mr. Chundrigar that admission cannot be allowed to >e retracted by seeking amendment in pleading is not without force. The appellant's predecessor, having signed the written statement filed in 1979 zannot be allowed to retract from the admission made there in as same amounts to admission under Order VHI Rule 5 CPC and in a case reported as Secretary to Government v. Abdul Kafil (PLD 1978 S.C. 242), the amendment sought by the Government was declined; following observation of the Apex Court appearing at page 248 are relevant. "The learned additional Advocate-General, however, contended that the said admission made in the written statement was factually incorrect; that in order to get rid of the same, the appellant Government had, therefore, filed in the trial Court an application under Order VI, Rule 17, CPC praying therein for the amendment of the written statement, but the same was wrong fully rejected. I am afraid there is no force in this contention. It is well settled that admissions made in a written statement have altogether different legal significance than admissions generally. In this respect reference may be made to Order VIII, Rule 5, C.P.C. which runs as under:- "5 Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability; "Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission." In the instant case, even the legal notices that were given before litigation correspond to the defence taken earlier, by the appellant in their written statement. Therefore, there appears no reasons to take a different view than what has been taken by the learned Judge in chambers. The appeal accordingly stands dismissed.

Appeal dismissed.

PL J 2002 Karachi 105

[Sukkur Bench Sukkur]

Present: muhammad afzal soomro, J.

QAMARUDDIN-Petitioner

versus

PROVINCE OF SINDH, through its SECRETARY LAND UTILIZATION BOARD OF REVENUE HYDERABAD etc.--Respondents

C.R. No. 45 of 1996, decided on 7.9.2001. (I)

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

—O.XX R. 5 & O. 41, R. 31~Court is bound to give reasons for its decision on each separate issue-When Courts below have disregarded this mondatory rule while making judgments then such judgments could not be said to be judgments according to law.

[Pp. 110 & 111] A, C

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

—O. XX, R. 5--Characteristics of a Good Judgment is that it must be self evident and self-explanatory, in order of words it must contain reasons that justify conclusions arrived at and these reasons should be such that a reader can find them convincing. [P. Ill] B

M/s. Abdul Fatah Malik and Mr. Abdul Sattar Soomro, Advocate for Petitioner. Mr. Abdul Ghafoor Mirani, Advocate for Respondents. Mr. MumtazAli Siddiqui, Advocate for State. Date of hearing: 20.8.2001.

judgment

Through this Civil Revision the applicant has challenged the judgment and decree dated 7.4.1996 passed by the learned Additional District Judge Ghotki in Civil Appeal No. 22 of 1993, rejecting the appeal filed by the applicant against the judgment dated 26.5.1993 and decree dated 29.5.1993 passed by the Senior Civil Judge Ghotki in Suit No. 239 of 1978. The precise facts, inter alia as stated in the Revision Application, are that an agricultural land admeasuring 8 acres from U.A. No. 219 of Deh Changlani, Taluka Ghotki District Ghotki was granted to Respondent No. 5 All Sher by the Deputy Colonization Officer, Guddu Barrage, left Bank Ghotki, on 19-10-1973. It was alleged by Respondent No. 5 that during the same Hatcherymany other persons were granted land from same U.A. No. 219 on Harap tenure. The applicant had also applied for grant of disputed piece of land measuring 8 acres during the same Katehary on the basis of P.K.M. right but his application was turned down on the ground that he did not raise objection to the grant in favour of Respondent No. 5 and further he did not have preferential right over the grant of suit land in comparison to Respondent No. 5/plaintiff. The applicant challenged the said order of grant in Appeal No. SRO A. 4305/1973-744 before the Additional Commissioner Sukkur Division Sukkur (Respondent No. 3) who cancelled the grant vide his order dated 1-2-1978 and granted the disputed land in favour of the applicant on the ground that that the applicant's father namely Dyas and thereafter his brother had P.K.M. right over the disputed piece of land and the same land is in cultivating possession of the applicant and further held in his order that the Respondent No. 5/plaintiff has no right for the grant of disputed land. Against the order of Additional Commissioner Sukkur Division Sukkur Respondent No. 5 Ali Sher filed an appeal before Respondent No. 2 (Member Board of Revenue Sindh. Hyderabad) who maintained the order dated 1.2.1978 passed by the Additional Commissioner Sukkur and dismissed the appeal on merits. Respondent No. 5 thereafter filed a Civil Suit being Suit No. 239 of 1978 in the Court of Senior Civil Judge Ghotki seeking the following reliefs:-- Tha^ this Honourable Court will be to declare that the orders passed pleased by Defendants Nos. 3 and 4 are in violation of the mandatory provision of Land Grant Policy framed by Government of Sindh vide Notification No. KBI/1/30/72/79/ 7784, dated 20/21.11.1972 and therefore illegal and not maintainable in law. That this Honourable Court may be pleased to declare that the plaintiff is landless hari of Deh Changlani and, therefore, rightly granted the suit land by the Deputy Colonization Officer, Guddu Barrage, Ghotki and the order of grant in favour of plaintiff was not liable to be disturbed. That this Honourable Court may be pleased to declared that the orders passed by the Defendants Nos. 2 and 3 are mala fide capricious, arbitrary and unlawful and, therefore, Unenforceable against the plaintiff. That permanent injunction be issued against Defendants No. 2, 3 and 4 restraining them from interfering with the title and possession of the plaintiff or from complementing or executing the impugned orders passed by Defendants Nos. 2 and 3 directly or indirectly in any manner whatsoever.

(a) Costs of the suit to borne by the Defendants Nos. 2 to 4.

(b) Any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case may also be awarded.

Defendants Nos. 1 to 3 did not contest the suit and as such were declared ex-parte, while Defendant No. 4, applicant herein, submitted his written statement and contested the suit and raised legal objections about maintainability as well as jurisdiction of the Court of Senior Civil Judge. On the pleadings of the parties, six issues were framed, as under:--

1. Whether the suit is not maintainable under the law?

2. Whether the Court has no jurisdiction to entertain the suit?

3. Whether the plaintiff is entitled to the grant of suit land in preference to Defendant No. 4?

4. Whether the orders passed by Defendant Nos, 2 and 3 are illegal, ultra vires and void, ab initio?

5. Whether the plaintiff has cause of action to file this suit.

6. What should the decree be?

Both the parties led their evidence and ultimately the suit was decreed by the learned Senior Civil Judge Ghotki vide judgment dated 26.5.1993 and decree dated 29.5.1993. The applicant/Defendant No. 4 therefore preferred an appeal in the Court of Learned District Judge Sukkur but due to creation of Ghotki District the appeal was transferred to the Court of Additional District Judge Ghotki who dismissed the said appeal vide his judgment dated 4-7-1996 without giving findings on each and every issue separately. Therefore, the present Civil Revision Application has been filed by the applicant. I have heard the arguments of Mr. Abdul Fatah Malik, learned counsel appearing on behalf the applicant, Mr. Mumtaz Ali Siddiqui Advocate and Mr. Sher Muhammad Sher, learned Assistant Advocate General Sindh appearing on behalf of Respondents Nos. 1 to 4 and Mr. Abdul Ghafoor Mirani, learned counsel appearing on behalf of legal heirs of Respondent No. 5, Ali Sher. It has been contended by the learned counsel for the applicant that the judgments and decrees passed by the Senior Civil Judge Ghotki and the learned Additional District Judge Ghotki, respectively, are in excess of their jurisdiction and as such are ultra vires, null and void. The learned Senior Civil Judge Ghotki has erroneously held that the order dated 14.4.1977 passed by Additional Commissioner Sukkur in Case No. SRO. A.4331 of 1973-1974 is binding on Defendant No. 5/applicant. In fact the applicant had filed his Appeal No. SRO 4305 of 1973-1974 against illegal order of the DCO and it was already pending and filed prior to said Appeal No. SRO. A. 4331 of 1973-1974 in which the applicant was not made party. It has further been contended by the learned counsel for the applicant that the learned Senior Civil has failed to consider that the Case No. SRO A-4305, 73-74 filed by the applicant against Respondents before the Additional Commissioner Sukkur was prior to Case No. SRO A-4331 of 73-74 filed. It has also been contended by the learned counsel for the applicant that the learned two Courts below have failed to consider that the Plaintiff/ Respondent No. 5 had suppressed the facts before the Additional Commissioner and Member Board of Revenue about the institution of appeal which was filed earlier by the applicant against in respect of same disputed land before the Additional Commissioner Sukkur even at the time of hearing of his appeal as it was heard and decided on 14.4.1977 by the Additional Commissioner Sukkur in absence of applicant who was not party to the case as such the order dated, 14.4.1977 was neither within the knowledge of the applicant nor binding upon him. It is also contended that the learned Senior Civil Judge has wrongly held in his judgment that the Plaintiff/Respondent No. 5 is in cultivating possession of suit land though this fact is determined by the Revenue Appellate Court viz. Additional Commissioner Sukkur and, Member Board of Revenue Hyderabad in their orders/judgments that the applicant and his father late Hyas are in cultivating possession of disputed land and further recognized the P.K.M. rights of the applicant over the same disputed land after scrutinizing the revenue record in presence of both the parties. It is further contended that the learned trial Court has no jurisdiction to set aside the findings of the facts given by the Respondents Nos. 2 and 3 in favour of the applicant. He was not competent to sit over the judgment/orders of the Revenue Courts as an appellate Authority over the findings of the facts given by them. The learned Senior Civil Judge has wrongly held that the orders passed by Respondents Nos. 2 and 3 are illegal. In fact the Respondent No. 3 is the highest appellate Revenue Court and Respondent No. 2 is the appellate authority hence both Courts have legally and rightly exercised their jurisdiction and powers vested in them. The learned counsel has further contended that the learned Senior Civil Judge Ghotki as well as the learned Additional District Judge Ghotki have decided all the issues, together without giving foundings on each and every separately, enunciated under Order XX, Rule 5 CPC. The Order XX Rule 5 CPC is reproduced as under:

RULE 5 OF ORDER XX CPC

Courts to state its decision on each issues:-In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one of the issues is sufficient for the decision of the suit.

It has also been contended by the learned counsel for the applicant that during the pendency of Civil Appeal No. 22 of 1993 applicant made an application under Order XIII, Rule 2 read with Section 151 CPC and produced the original certificate dated 10-09-1995 issued by the Assistant Colonization Officer Guddu Barrage Ghotki regarding the payment of entire instalments made by the applicant with regard to disputed land. The applicant had also produced the true copies of Form 'A' issued in favour of applicant showing full instalments paid to the Government. The learned Additional District Judge Ghotki failed to decide the said important documents produced by the applicant. Lastly, the learned counsel has submitted that an application was filed before the learned Additional District Judge Ghotki for recording additional evidence which has also been left undecided by him. The learned counsel has relied upon the cases of All Muhammad vs. Muhammad Hayat and others (1982 S.C.M.R. 816) and Muhammad Hayat and others vs. All Muhammad and others (N.L.R. 1982 CLJ 271). In this background the learned counsel for the applicant has prayed that the case be remanded back to the learned Additional District Judge Ghotki to decide the appeal afresh taking into consideration the points raised by him. The learned counsel appearing on behalf of Respondents Nos. 1 to 4 has conceded to the above position and state on objection if the case is remanded back to be decided afresh. The learned counsel appearing on behalf of legal heirs of Respondent No. 5 has opposed to the remand of the case to the Appellate Court to be decided afresh. The learned counsel has contended that only trial Judge has to decide the case issue-wise and the Order XX, Rule 5 CPC only governs the suit by the trial Court not the appeal by the Appellate Court, the decision of trial Court while deciding the issue separately or conjointly. He submits that it has also been held in the same Rule that unless the finding upon any one or more of the issues is sufficient for the decision of the suit So far the decision of appeal is concerned which is governed by Order 41, Rule 31 CPG, it does not show the framing of issues by the Appellate Court. The learned counsel has relied upon the cases of Muhammad Hafeez vs. Jalaluddin and others (PLJ 1982 SC 49), Khawaja Muhammad Akbar vs. Khawaja Fateh Muhammad (1993 MLD'76), Bashir Ahmed vs. Ghulam Hyder (1991 MLD 360), Mian Muhammad Latif vs. Province of West Pakistan (PLD 1970 SC 180) said Anwar Hussain vs. Deputy Settlement Commissioner Larkana (1983 CLC 851). I have gone through the evidence and the judgments and decrees passed by the learned two Courts below. The trial Court while deciding the suit had framed six issues but has not extended reasons separately on all issues and decreed the suit. While deciding the appeal by the learned District Judge Ghotki has also not decided the appeal issue-wise and therefore the two Courts below had disregarded mandatory provision of Order XX, Rule 5 C.P.C. and Order 41, Rule 31 ^C.P.C. have acted in exercise of their jurisdiction with material irregularity and the case cited by the learned counsel for the applicant (1982 SCMR 816) is relevant in the present circumstances of the case. The operative part of the said dictum laid down by the apex Court is reproduced below: "Attention in this connection was drawn to the provisions of Order XX, Rule 5 of CPC which provide that "in suits in which issues have been framed, the Court shall state its findings or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit and it was observed that the trial Judge was bound to give reasons for his decision on each separate issue and the disposal of the Issues Nos. 1-5 by simply observing that all these issues have no substantive force in view of findings given under Issue No. 6 was not a proper decision in accordance with law. He, therefore, accepted the revision petition, set aside the impugned judgment and decrees of the trial Court and that of the learned Additional District Judge and remanded the cases to the trial Court for re-writing the judgment after hearing the parties with the direction that the trial Court should decide the case within two months. This petition for leave to appeal directed against the aforesaid judgment of the High Court. We do not agree. The learned trial Court had disregarded the mandatory provisions of Order XX, Rule 5 CPC and therefore had acted in exercise of his jurisdiction with material irregularity. The High Court in exercise of its revisional jurisdiction was competent to make such order as in the case as it thought it." In view of the respondents of Order XX, Rule 5 CPC it is very much clear that in the instant case the learned Appellate Court has not given reasons for its decision on each separate issue framed by the trial Court and therefore the observation of the Appellate Court has no force in view of the rule laid down by the law and from the perusal of judgments and decrees it extends an impression that the learned two Courts below had only observed formality inasmuch as they have not fully applied their mind and it is well settled principle of law that the characteristic of a good judgment is that it must be self-evident and self-explanatory, in order of word it much contain reasons that justify conclusions arrived at and these reasons should be such that a dis-interested reader can find them convincing or at least reasonable.

The grounds urged by the learned counsel for the Respondent No. 5 and the case law relied by him have no relevance at this stage-when the Appellate Court as well as learned Senior Civil Judge had disregarded the mandatory provisions of Order XX, Rule 5 CPG. Apart from this, the learned appellate Court has failed to exercise jurisdiction in not complying with Order 41, Rule 31 C.P.C. as in the impugned judgment it has not been stated points for determination, decision thereon, the reasons for findings. Hence it is not a judgment according tQ law.

For the foregoing reasons, this Revision Application is accepted and the impugned judgment and decree passed by the Appellate Court is set aside and the case is remanded to the learned Additional District Judge Ghotki for hearing the parties afresh had decide the case in accordance with law within a period of 2 months from the date of receipt of this order. The learned Appellate Court is directed to re-write the judgment after due hearing the concerned parties. The parties are directed to appear before the learned Additional District Judge Ghotki on 29.9.2001 and on fresh notice will be issued by the Appellate Court.

(B.T.) Case remanded.

PLJ 2002 Karachi 111

Present: syed saeed ashhad, C.J. and muhammad moosa K. laghari, J.

HAIDER ZAMAN-Petitioner

versus

INDUSTRIAL CLOTHINGS (PVT.) LTD., Karachi and 2 others-Respondents

C.P. No. D-860 of 1997, decided on 30.3.2001.

Industrial and Commercial Establishments (Standing Orders) Ordinance, 1969-

-—S.0.12(3)--When both nature of employment of worker as well as nature of job are temporary in nature, termination of such worker without notice is not illegal. [P. 114] A

PLD 1980 SC 323,1990 SCMR 1539 ref.

.

Date of hearing: 30.3.2001.

order

In this Const, petition the petitioner has sought the following relief: "The petitioner, therefore, prays that this Honourable Court may be pleased to declare the act of termination of the petitioner's employment on 01.4.1994 and the impugned order dated 08.8.1996 as having been passed illegally, without authority and in violation of the provisions of law and consequently are of no legal effect or force. The petitioner further prays that the orders of Respondent No. 3 be upheld and the petitioner be reinstated with full back benefits as declared and decided by the learned Respondent No. 3." Today, an application for adjournment has been received duly signed by Mr. A.D. Gruz. On 16.8.2000 an order was passed that in view of the numerous adjournments have been taken by Mr. A.D. Cruz no further adjournment would be given and that if he would not present then the matter will proceed in his absence. Thereafter, he had taken two further adjournments before other Benches. The adjournment application is dismissed and Mr. Mehmood Abdul Ghani, for the Respondent No. 1 is directed to proceed with the matter. Mr. Mehmood Abdul Ghani, objected to the maintainability of this Const, petition, ground was that it suffered from laches inasmuch as it was filed after about 8 months of the order/decision of Sindh Labour Appellate Tribunal. In support of his contention he referred us to the case of Haq Nawaz Baloch v. Chairman, Sindh Labour Appellate Tribunal and 2 others (1992 PLC 297) wherein this Court has held that an un-explained delay of 8 months in filing the const, petition by a workmen would be fatal to the const petition and it was liable to be dismissed. On merits, Mr. Mehmood Abdul Ghani submitted that the petitioner was employed as a temporary workman in the establishment of Respondent No. 1 against a post which was a temporary in nature as was evident from annexures A/1 and A/2, attached alongwith the petition. He further submitted that the service of a temporary workman could be dispensed with without assigning any reason when it was found that either the work for which he was employed had been completed or that the post for which he was employed was no longer required to be continued. He further submitted that even if assuming that the petitioner has continued to serve in the establishment of the respondent for more than 3 months, such fact would itself not entitle the petitioner to the claim of having become a permanent worker unless it could be established that the work for which a temporary worker was employed was of permanent nature and was not likely to be concluded in nine months. In such a situation, according to Mr. Mahmood Abdul Ghani, the worker would not be entitled to the benefits of explicit reasons for his dismissal provided by Standing Order 12(3) of the Industrial and Commercial Establishment (Standing Orders) Ordinance. In support of his above contentions, he has placed reliance on the cases of Pakistan International Airlines v. Siridh Labour Court No. 5 and others (PLD 1980 SC 323) and Muhammad Yaqoob v. The Punjab Labour Court No. 1 and 5 others (1990 SCMR 1539). In both the aforesaid cases the Supreme Court pronounced that a workman, who was employed on a temporary basis, would not become a permanent workman if the work for which he was employed and which was expected to be finished within 9 months continued after the expiry of 9 months. In the latter case, it was categorically pronounced that lengthy of employment by itself would not be a ground or test for determination the nature of work where work of employee was admittedly not of a permanent nature at the time of his initial appointment.

We have considered the arguments advanced by Mr. Mehmood Abdul Ghani and have gone through the case law relied upon by him in support of his above contentions. We have also gone through the material on record especially the decision of the learned Sindh Labour Appellate Tribunal. The aforesaid .points were also raised before he learned Sindh Labour Appellate Tribunal and it will be appropriate to reproduce the relevant portion from the decision of the Sindh Labour Appellate Tribunal:-- A temporary worker who is assigned work for a period of less than nine months can be terminated without notice and his services can be dispensed with without any charge-sheet or stigma. The term and conditios of service were given in writing on the order of appointment and the respondent had agreed to these terms by signing the order. The terms show that the services to be terminated any time without any notice. In this case he has not even continued

for nine months. Even where a temporary worker continued for more than nine months he could not be said to have become permanent as held by Durab Patel, J., in the case of Pakistan International Airlines v. Sindh Labour Court No. V, PLD 1980 Supreme Court 323. The criterian for becoming a permanent workman is that the work done by him should be of permanent nature and he must have satisfactorily completed the period of probation of three months. Thus, where the workers are employed temporarily for a work which is not of permanent nature he an not. become permanent even if he completes the periods of nine months due to the work lasting for a longer period than expected." A perusal of the above observations made by the learned Sindh Labour Appellate Tribunal leaves no room for doubt with regard to the issues relating to the nature of employment of the petitioner as well as the nature of job and both of them were temporary in nature. The termination of the petition cannot be said to be illegal or tainted with mala fides.

Upon the above discussion, we are satisfied that this const, petition is without any substance does not merit consideration. Accordingly, it stands dismissed in limine alongwith the application (s) pending therein.

(N.R.) Petition dismissed.

PLJ 2002 Karachi 114

Present: S.A. rabbani, J.

PAKISTAN INSURANCE CORPORATION EMPLOYEES UNION KARACHI through its General Secretary-Petitioner

versus

REGISTRAR OF TRADE UNION, GOVERNMENT OF SINDH, and another-Respondents

C.P. No. S-113 of 2000, decided on 30.1.2001.

Industrial Relations Ordinance, 1969-

—S. 10—When Registrar, Trade Union has made a complaint to Labour Court for cancellation of registration of a trade union on ground of contravention of some provision of IRO, then during pendency of such complaint, Registrar is not bound to issue C.B.A. certificate to that Union. [P. 116] A

Mr. Muhammad Ashraf Khan, Advocate for Petitioner. Mr. Mehmud Abdul Ghani, Advocate for Intervenor. Nemo for Respondents.

Date of hearing: 18.1.2001.

« judgment

This petition has been filed by the General Secretary of Employees Union of Pakistan Insurance Corporation on behalf of the Union and originally, it was filed against Registrar, Trade Unions and Presiding Officer, Sindh Labour Court No. 5. On an application made on behalf of M/s. -Pakistan Insurance Corporation, the Corporation Was allowed to join the proceedings. The Corporation is the main contestant and the case of the petitioner has been contested by them. 2. Following are the prayers made in the petition: "It is, therefore, prayed that this Hon'ble Court may be pleased to:--

(i) hold and declare that the petitioner union continues to be a Collective Bargaining Agent under Section 2291 of the IRQ, 1969 for the entire period it was recognized by the employer under the provisions of labour law i.e. IRQ, 1969;

(ii) hold and declare that the charter of demands submitted by the petitioner union is just, valid and legal under the provisions of IRQ, 1969;

(iii) restrain the Respondents Nos. 1 and 2 from taking action/proceeding under Section 10(1) of the IRQ, 1969 till the disposal of this petition;

(iv) direct the Respondent No. 1 to issue CBA certificate for onward period as required under Section 2291) of the IRQ, 1969 being a sole registered Trade Union and having its membership of more than l/3rd of the total number of workmen employed in the establishment;

(v) hold that the action of the Respondent No. 1 is unlawful and declare as illegal and unlawful.

(vi) pass any other order/orders in favour of the petitioner union against the respondents which this Hon'ble Court may deem fit and proper in the circumstances of the case."

1. Chaudhry Muhammad Ashraf, learned counsel for the petitioner, submitted that the petitioner is the union registered under the law and is acting as sole Collective Bargaining Agent since 1962 and, in that capacity, it has been recognized by the employer as well as by the Wage Board. He submitted that, in 1999, a dispute arose and both the Union as well as the Management submitted charters of demands under Section 26, sub-section (1) of Industrial Relations Ordinance, 1969. He submitted that the petitioner union applied for issuing a formal CBA certificate but Respondent No. 1,Registrar, Trade Unions, has not issued such certificate. He claimed that since the petitioner is the sole registered trade union in the organization and has required number of members, it is entitled to be bargaining agent under Section 22 sub-section (1) of the IRQ, 1969, and is entitled to such certificate under the law. It is a fact not disputed by the parties that the Registrar, Trade Unions, has filed a complaint under Section 10(1) of the IRO before the Sindh Labour Court. Respondent No. 2, against the petitioner, Mr. Mehmud Abdul Ghani, learned counsel for Respondent No. 3, Pakistan Insurance Corporation, submitted that the petitioner violated the provisions of IRO and, therefore, the case has been filed before the Labour Court under Section 10(1) of the IRO, for cancellation of registration of the petitioner. He submitted that the case was filed 12 months back but the petitioner is not proceeding with that case and intend to defeat it through the present petition. In clause (i) of the prayer, the petitioner seek a declaration about their status as Collective Bargaining Agent and, through clause (ii), a declaration is sought about validity and legality of their charter of demands. It was pointed out to Mr. Ch. Muhammad Ashraf that such declarations are beyond the scope of Article 199 of the Constitution, and, after some arguments and after going through the Constitutional provisions, he conceded that they are beyond the scope of the Constitutional jurisdiction and submitted that the petition was drafted by some other advocate. Through clause (iii) of the prayer, an interim order is sought, which becomes infruetuous with the present decision. 7. Clauses (iv) and (v) of the prayer are for issuance of CBA certificate by the Registrar, Trade Unions. The question is, whether the Registrar, Trade Union is bound under the law to issue the said certificate to the petitioner in the present circumstances. Section 10 of the IRQ authorizes Registrar, Trade Union, to make a complaint to Labour Court for cancellation of registration of a trade union in case the trade union contravenes a provisions of the IRO or the Rules, or of its Constitution. The Registrar has made such a complaint before the Labour Court and it is for the Labour Court to decide whether such contravention has been made or not. But, when such a complaint is pending before the Labour Court for cancellation of registration of the Union, the Registrar would not be bound to issue CBA certificate to the said Union. Mr. Ch. Muhammad Ashraf could not show the provisions of law under which the Registrar is bound to issue such certificate to the petitioner despite filing of a complaint before the Labour Court for cancellation of its registration. He submitted that pendency of the case before the Labour Court would not come in way of issuance of the certificate, but he could not support it by any logic or law. He relied upon Section 22 sub-section (1) of the IRO on the plea that the petitioner was the sole registered union in the organization, but the provisions does not say that if there is only one registered trade union in an organization, that union is entitled to CBA certificate even if there are proceedings pending for cancellation of its registration.

2. In the circumstances mentioned above, the Registrar, Trade Union, is not bound by law to issue CBA certificate to the petitioner and, therefore, no such direction can be issued in exercise of Constitutional jurisdiction. Petition is dismissed, accordingly.

(S.S.H.) Petition dismissed.

PLJ 2002 Karachi 117

Present: wahid Bux brohi, J.

HASHAM SADARUDDIN GANJI-Petitioner

versus

IIND ADDL. DISTRICT JUDGE SOUTH KARACHI and others-Respondents

C.P. No. S-89/2002, decided on 11.3.2002.

Family Court Rules, 1965-

—R. 5--Family Court~Jurisdiction~Suit for dissolution Of marriage filed in Family Court at Karachi-Defendant's plea that both parties being Canadian citizens, Court at Karachi lack jurisdiction to entertain and try such suit-Despite such plea defendant could not show that parties had lost their Pakistani citizen ship-Nikahnamawas admittedly registered at Karachi—Plaintiff admittedly was not residing at the given address at Karachi—Marriage between parties having been solemnized in Karachi under Islamic Law, second Nikah at Canada was exercise in futility- Second Nikah over and above existing valid Nikahis not recognized in Islam nor is judicial separation-If all the facts asserted by plaintiff were correct, she was justified in instituting suit in Karachi. [P. 118] A

PLD 1967 SC 97; PLJ 1979 SC 120 ref.

M/s. Noor allah A. Manji and Muhammad Akram, Advocates for Petitioner.

Date of hearing: 11.3.2002.

order

1. Granted.

2. Granted subject to just exceptions.

3 & 4. The petitioner and Respondent No. 2 were married in Karachi. A Nikahnama has been placed on record which bears the signatures of Nikah Registrar, Garden West, Karachi and this Nikahnama is not disputed. Mr. Noor Allah Manji, however, clarified that the parties had gone to Canada and had again entered into another Nikah just to satisfy the requirements of laws in Canada. It is also stated that a judicial separation was obtained at Canada through the concerned Supreme Court. However, the dispute between the parties presently arises out of the Nikahnama registered at Garden West, Karachi.

The Respondent No. 2 had filed a suit seeking dissolution of marriage showing her address at F-172/2, Block-5, Clifton, Karachi. The plaint was returned to her under Rule 5 of Family Courts Rules by the learned Family Judge with a direction to file the same before the competent .— Court. A Constitutional petition was filed in this Court which was disposed of with the direction that the petitioner may approach the appellate Court for appropriate relief. Accordingly, an appeal was filed by the Respondent No. 2 which was heard by learned 2nd Additional District Judge, Karachi South. The appellate Court set aside the order of the Family Court with the following observations:-

"In the present case learned Judge has returned the plaint without recording the evidence and I am after the above discussion reached at the conclusion that this case required recording the evidence of both the parties, therefore, I declare the order of the learned Family Judge as illegal and set-aside the same and remand the case to the

learned Family Judge to dispose of the.................. the same

according to law after recording the evidence of both the parties. Hence case remanded."

Learned counsel for petitioner emphasized that the above order could not be sustained as both the parties are Canadian nationals. Despite this plea, it could not be shown that they have lost their Pakistani Citizenship. Admittedly, the Nikahnama was registered at Garden West, Karachi and it is also not disputed that the Respondent No. 2 is not residing at the given address at Karachi. There is also no issue that the marriage solemnized through aforesaid Nikahnamahas legally been dissolved. The marriage was solemnized in Karachi under Islamic Law, the second Nikah at Canada was an exercise in futility. Second Nikah over and above an existing ^ valid Nikahis not recognized in Islam nor is judicial separation. Therefore, if all the facts asserted by the Plaintiff/Respondent No. 2 were correct, she was justified in instituting the suit in Karachi. The authorities Khurshid Bibi's case(PLD 1967 SC 97) and Fazal Khitahv. NaheedAkber (PLJ 1979 SC 120) have been considered by the appellate Court and the order of Family Court has been set-aside on legal grounds. There is no legal -infirmity or jurisdictional error in the order. The parties have yet to lead evidence on controversial issues and prove their case before the Family Judge, interference with such an order in th'e Constitutional jurisdiction would be uncalled for. The petition is wholly without merits and is dismissed in ^ limine.

(A.A,) Petition dismissed.

PLJ 2002 Karachi 119

[Original Civil Jurisdiction]

Present: sarmad jalal osmang, J.

KOHINOOR SOAP & DETERGENTS (PVT.) LIMITED, KARACHI through its CHIEF EXECUTIVE -Plaintiff

versus

\•

BASRA SOAP FACTORY and 4 others-Respondents

Suit No. 1394 of 1998, decided on 15.3.2002.

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

—S. 151-Inherent powers of Court-Exercise of~Inherent powers of Civil Court can be invoked in order to do complete justice between the parties and to give relief in accordance with the circumstances in the larger interest of justice-Such exercise, however, is only to be exercised in proper cases. [P. 133] H

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

—O.XXXIX, R. 4-Recalling of earlier injunction order granted in favour of plaintiff-Defendants as per material on record appear to be prior user of trade mark in question, therefore, interest of justice would require that stay order granted earlier in favour of plaintiff be vacated-Both parties would be allowed to use trade-mark in question, till suit was decided.

[P. 134] J

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

—O.XXXK, R. 4-Applicability-Proivsion of O.XXXK, R. 4 can be invoked only where previous injunction order which was sought to be vacated was unduly harsh and/or un-workable or the same was deemed to be necessary in view of fresh circumstances e.g.,when injunction order sought to be recalled was ex-parte--P&rty showing such circumstances cannot be non-suited merely on the ground that although appeal could have been filed against injunction order, the same was not filed.

[P. 133] G

(iv) Partnership Act, 1932 (IX of 1932)--

—S. 14~Partnership-Undertaking between two or more persons for a common objective viz; sharing of profits of a business would constitute partnership, each partner whereof, would be agent of the same-Property of firm would include all properties, rights and interests in property originally brought into stock of the firm or cquired by purchase or otherwise by or for the firm. [P. 130] A

(v) Partnership Act, 1932 (IX of 1932)--

—S. 14-Trade mark registered in 1956 by the partners of firm belonged to all the partners and the firm itself-Trade mark in question, thus, belonged to defendant firm and its partners—Trade mark thereafter was transmitted to successive partners upon re-constitution of the firm, thus, proprietorship of said trade-mark rests with the present firm as constituted and present partners viz., defendants.

[Pp. 130 & 131 & 133] B, D & J

(vi) Partnership Act, 1932 (IX of 1932)--

—S. 4~Partnership business of original partners-Sale of such business to defendant-Trade mark would form part of such business and such sale would include good will as well. [Pp. 130 & 131] C

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

-—S. 18(3)-Trade Marks Rules 1940, Rr. 47, 48 & 49-Restoration of trade ; mark-Entire exercise of sending notices, advertisement in Trade Mark Journal and restoration thereof, has to take place within one year from expiry of last registration-Such course, prima facie, does not appear to have been followed in present case, therefore, restoration in question, was not in accordance with law. . [P. 132] F

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

—- S. 35-Object and scope of S. 35 of Trade Marks Act 1940-Provision of S. 35 of the Act is enabling section which provides that Registrar would record change in proprietorship of any trade mark on application by the assignee thereof. [P. 131] E

AIR 1983 Delhi 387; AIR 1952 Cal. 673; 1985 CLC 2063; 1987 MLD 2583; 44 RFC 269; AIR 1963 Mysore 173; 3 RPC 15; 1998 MLD 1203; 1981 SCMR

1039; 1983 PTC 83; 1960 RPC 206; AIR 1990 Delhi 233; PLD 1979

Karachi 83; 1960 RPC 95; AIR 1988 Delhi 282; AIR 1981 Cal. 76; 1986

Delhi 343; AIR 1988 Delhi 202; AIR 1992 Mad. 252; 1959 RPC 273; PLD

1979 Kar. 387; 1990 CLC 1127; AIR 1977 All. 145; PLD 1978 SC 220; AIR

1983 Delhi 392; AIR 1928 Mad. 610; 1992 CLC 1428; PLD 1981 CLC 108;

1981 CLC 1747; PLD 1981 Kar. 657; PLD 1973 Kar. 522; 1984 CLC 648;

1999 MLD 1447; PLD 1956 Sindh 1; NLR 1961 U.C 425; PLD 1973 Kar.

289; NLR 1994 Civ. 467 ref.

Mr. Munawar Ghani, Advocate alongwith Mr. Chaman Lai, Advocate for Plaintiff.

Mr. Khalil Kizilbash, Advocate for Defendants.

Dates of hearing: 16.4.1999, 24.4.1999, 1.12.1999, 14.12.1999, 21.12.1999, 23.12.1999 and 18.2.2002.

order

CMA 9722/98 is an application filed by the Plaintiff under Order 39, Rules 1 & 2, CPC read with Section 56 of the Copyrights Ordinance 1962, praying that the Defendants be restrained from removing and selling the goods which have been manufactured by them viz. Soap Cakes under brand name of 'Hari' and also praying that an inventory be prepared by the Nazir of such goods. On the other hand CMA No. 11299/98 has been filed on behalf of the Defendants under Order 19, Rule 4, CPC pray that injunction order dated 3.11.1998 which was subsequently confirmed on 11.11.1999 be recalled which was passed in CMA No. 5518/98 restraining the Defendants from using the trade mark and name that on any other similar name on their soap cakes and also from using such brand name on the cartons in which these Soap Cakes are packed.

The brief facts of the matter as set out in the plaint are that the plaintiff being a Private Limited Company are running on the business of soap manufacturing and marketing since its incorporation in the year 1956 and in addition to other well known trade marks also adopted a Trade Mark/ label design (sic) for their products. In pursuance of such manufacturing process the Plaintiff applied to the Registration of Trade Marks for registration of the said trade mark vide application dated 8.11.1988 which was allotted No. 100,387 in Class-3. It has been further stated that the said trade mark is in the exclusive use of the Plaintiff from the year 1984 and since then large quantities of washing/laundry soap under the trade mark 'Hari' have been manufactured and sold by the Plaintiff in Pakistan. Reliance is made on a copy of the application filed .with the Registrar of Trade Marks alongwith a copy of the Soap Cake itself on which mark 'Hari' •has been embossed which has been filed as Annexures 'B' to 'B'/2 to the Plaint. It has further been stated that vide Annexures 'C' to 'C/l' to the Plaint that the Plaintiff has also registered with the Registrar of Copyrights a label depicting the word 'Hari' for their use on 26.2.1997. Whereby it is apparent that the said artistic design depicting trade name 'Hari' was registered on 26.2.1997 with the Registrar of Copyrights. It has been averred that due to continuous use over the years of the said trade mark/name 'Hari' a handsome reputation and valuable goodwill has accrued to the Plaintiffs in Pakistan and as a result the trade mark 'Hari' signifies to the general public as well as to the trade at large a quality washing soap in the country that is associated exclusively with the Plaintiff. In Support of this contention the Plaintiff has relied upon original Affidavits sworn by various persons from Karachi, Hyderabad, Mirpur Khas and Nawabshah wherein it has been stated that the trade mark 'Hari' is solely relatable to washing/laundry soap manufactured by the Plaintiff. So also from the year 1985 the Plaintiffs have submitted that 'their sales have been in the region of Rs. 578,908,871/-whereas they have spent Rs. 2,448,102/- for promoting sales of their products as per the Statement of their Auditors, copy of which has been filed as Annexure 'E' to the Plaint.

122 Kar. kohinoor soap & detergent (Pvr.) limited v.PLJ

basra soap factory (Sarmad Jalal Osmany, J.)

It has next been contended by the Plaintiff that the Defendants mala fidely in order to avail of the market leadership and goodwill of the Plaintiff as regards their products carrying trade mark/name 'Hari' applied to the Registrar of Trade Marks wide Application No. 100387 dated 8.11.1988 for registration of their trade mark known as 'Kissan Soap" in English and sued the word 'Hari'in Urdu in order to create confusion and deception amongst the trade and purchasing public. A copy of such label annexed by the Defendants with their application has been filed as Annexure 'F' to the plaint. So also the Defendants filed two applications with the Registrar of Copyrights both dated 9.10.1997 for registration of their label depicting trade mark 'Hari', 'Kissan' and 'Halari' washing soap a copy of which has been filed as Annexures 'G' to 'G/3' to the plaint to which the Plaintiff filed an opposition.

Thereafter the Defendants filed rectification Applications Nos. 26/97 and 27/97 both dated 14.10.1997 with the Copyright Board against the registration of the Plaintiffs artistic work. In reply it has been alleged by the Plaintiff that they are using trademark 'Hari' since 1991 whereas in their own application they have alleged such use since 1994. Copy of rectification applications have been filed as Annexures 'H' to 'H/1' to the Plaint. Finally the Defendants on 1.12.1996 submitted Form TM 16 before the Registrar of Trade Marks for substituting and replacing the label 'Kissan Soap' with an altogether different label 'Hari Sabun' which closely resembles that of the Plaintiffs. As a result thereof it has been contended that the trade and purchasing public would be further confused and misled as to the origin of the goods and/or as to the business connections between the Plaintiffs and Defendants. This rectification was allowed by the Registrar of Trade Marks on 1.12.1996 as per copy of TM 16 filed as Annexure T to the Plaint.

In view of the aforesaid facts and circumstances it has been alleged in the Plaint that Defendants are passing off their own trade mark and label design for that of the Plaintiff to.the latter's detriment as confusion has been caused in the mind of the trade and purchasing public alike. It has been further averred that infact the Defendants have attempted to misappropriate the Trade Mark Registration No. 22315 which belonged to another firm of the same name as Defendant No. 1 viz Basra Soap Factory and is depicted as 'Hari' and 'Kissan'. The partners of the said firm namely Abdullah Latif, Abdul Ghani Haji Umer, Ghaffar Latif and Haji Ashraf Abdullah have their factory and office at No. 6, Chandanmuki Street, Building No. 74, Karachi. It has been further stated that the said trade mark had been abandoned by their previous owners and its registration expired as of July 31, 1991 and inspite of notice issued by the Registrar and subsequent advertisement in Trade Marks Journal No. 515 for the month of December 1993 the registration of the said Trade Mark No. 22315 had not been renewed for over five years. However, on 16.9.1996 Form TM-12 and Form TM 13 was filed with the Registrar making a request for the restoration of this Trade Mark No. 22315 as the owners thereof were out of station. This, per the Plaintiff, is

totally mala fide since firstly when such Trade Mark had been abandoned by the previous owners the Defendants could not apply for any restoration and secondly the label adopted by the Defendants is all together different than that registered under No. 22315. Despite this fact the Registrar of Trade Marks renewed Trade Mark No. 22315 in total violation of the provisions of Rule 49(2) of the Revised Trade Marks Rules 1963. Reliance has been made upon a copy of a Certified Extract of the Register in respect of Trade Mark 22315 in Class-3 alongwith its label showing names of the actual purported owners of the mark and copy of the label which recently appeared on the carton of the Defendants alongwith the design etc. on Soap Cakes used by the Defendants which are filed as Annexures 'J' 'K' and K-l' respectively to the Plaint. Similarly a copy of able embossed on the Defendants soap case 'Halari' is filed as Annexure 'K-2' to the Plaint.

It has consequently been averred by the Plaintiff that use of the Trade Mark 'Hari' and other similar Trade Marks viz: 'Halari' etc. by the Defendants has caused immense damage to the goodwill and market reputation of the Plaintiff which have been associated with such Trade Mark "since 1984 and consequently damages in the sum of Rs. 20 Million have been claimed against the Defendants. So also a declaration has been sought against the Defendants restraining them from using the Trade Mark 'Hari' on any of their products as well as not to use any artistic work which resembles or is similar to the Plaintiffs mark viz: 'Hari'. Similarly a permanent injunction has been sought against the Defendants in the foregoing terms and so also it is has been prayed that the Nazir of this Court be directed to take accounts of the goods so far manufactured and marketed by the Defendants under the name of-'Hari' or 'Halari' etc.

In the Written-Statement filed by the Defendants it has been submitted firstly that the Defendants Nos. 2 to 5 are the present partners of the firm known as Basra Soap Factory which was duly registered\ in 1956 with the Registrar of Firms, Karachi, and also they are registered Proprietors of Trade Mark 'Hari' and Kissan' meaning peasant in Sindhi and Urdu language respectively. A copy of the Registration Certificate showing original partners of Defendant No. 1 firm as Abdullah, Abdul Latif and Haji Abdullah Ashraf as Annexure 'A/1' to the affidavit filed with CMA 11290/99 has been relied upon. Thereafter as per Annexure 'A/2' to the said Affidavit the firm was reconstituted on the death of Abdullah Abdul Latif when Haji Rafiq s/o. late Haji Abdullah and Mst. Zaitoon d/o. late Haji Abdullah joined the firm on 16.11.1973 as per Annexure A/4 to the said Affidavit which is also a certificate obtained from the Registrar of Firms Again Arif s/o. Haji Abdullah and Mst. Zaitoon retired on 31.12.1986 and Muhammad Altaf s/o. Haji Ashraf and Mrs. Najma Rafiq wife of Haji Rafiq both joined on 1.1.1987. Various partnership deeds have been placed on the record to show the changes in the partnership.

The Defendants have also relied upon .certain documents filed alqngwith the Written Statement viz, Annexures X/4, X/5, X/6, X/7 and X/8, which are the notices/renewals of their trade-mark No. 22315, which is the of hone contention in the matter. So also Affidavits of some Customers of Defendant No. 1 Firm have been filed alongwith the Written Statement whereby the Deponents thereof have sworn that they have been purchasing Hari Soap as well as Halari Soap from Defendant No. 1 for the last so many years. Similarly, receipts and invoices have been filed alongwith the Written Statement depicting the sales of Hari Soap to various customers which have been filed as Annexure B/l to B/66. As per Annexure A/12 to the Affidavit, the Registrar had served a notice to the Defendant No. 1's Firm to the effect that their trademark had been removed from the Register for non-payment of renewal fee on 15.11.1995 to which Form T.M. 13 was filed by Defendant No. 1 on 9.9.1996 whereafter the trademark was restored on the Register which was renewed for a period of 15 years from 13.7.1991. Annexure A/14 is the Certificate from the Trademark Registry depicting that the trademark No. 22315 dated 31.7.1954 in Class 3 has been renewed for a period of 15 years with effect from 31.7.1991. The said Certificate is dated 7.10.1996. Consequently, it has been submitted by the Defendants that in the face of the existing trade mark duly registered with the Registrar, it is in fact the Plaintiffs who have mala fidely used the Defendant No. 1's mark and it is they who were causing loss to the Defendants and in such circumstances the interim stay granted to the Plaintiffs should be vacated and CMA 9722/98 be dismissed in favour of the Defendants.

On the basis of the above pleadings Mr. Khalil Kizilbash, Advocate for the Defendants has submitted firstly that the firm name viz. Basra Soap Factory has remained unchanged since the year 1954« when the Firm was first registered and also that its registered trade mark viz. 'Hari Kisan' Bearing No. 22315 still exists as of today. In this connection he has referred to Annexure 'A/1 to A/4\ filed alongwith the Affidavit to CMA No. 11299/98 which are the record from the Registrar of Firms depicting the original partners of the firm and various changes thereto upto the present time. He has also referred to Annexure 'A/6 & A/7' which are the Partnership deeds reflecting the changes in the partnership firm and which can be co-related to the record of the Registrar of Firms. In this connection he has also referred to Annexure 'A/5' to the Affidavit which is a partnership agreement between Abdullah Abdul Latif, Abdullah Haji Latif, Abdul Ghani Latif and Haji Ashraf Abdullah dated 9.4.1954. Thereafter Annexure 'A/7' is a Deed of Dissolution of Partners-hip between the foregoing persons which is dated ' 1.8.1955 and correspondingly Annexure 'A/8' dated 17.9.1955 is another Partnership Deed between Adamjee Latif Godal and Abdullah Abdul Latif pursuant to the purchase by Abdullah Abdul Latif of the goodwill and undertaking of the Partnership from Abdullah Abdul Latif, Abdul Ghani Haji Umar, Adamjee Latif Godal, and Haji Ashraf Abdullah dated 1.8.1955. As per Learned Counsel the Partnership between Adamjee Latif Godal and

Abdullah Abdul Latif was dissolved vide Deed of Dissolution Annexure A/9 dated 30.3.1956 which left Abdullah Abdul Latif as sole proprietor of the partnership including the goodwill, stock in trade, machinery, goods, trade mark, trade names, furnitures, fixtures and tenancy rights whereafter on 1.5.1956 Abdullah Abdul Latif again entered into a Partnership Agreement with Haji Ashraf Abdullah per Annexure A/10 to the Affidavit and per Annexure A/11 they took another partner Arif Haji Abdullah vide Partnership Deed dated 2.4.1958. Similarly per Annexure A/ll(a) dated 16.11.1973 Mst. Zaitoon d/o. late Haji Abdullah and Haji Rafiq s/o. Haji Abdullah were taken on as partners upon the death of Abdullah Abdul Latif on 15.11.1973. Finally Annexure A/ll(b) to the Affidavit is a Deed of Retirement whereby Arif Haji Abdullah and Mst. Zaitoon retired from the Partnership on 1.1.1987 and on the same day Altaf s/o. Haji Ashraf and Mst. Najma wife of Haji Rafiq entered into a Partnership agreement alongwith remaining partners Haji Ashraf and Haji Rafiq copy of which has been filed as Annexure'A/ll(c)'.

Consequently in view of the foregoing documentation on the record Learned Counsel has submitted that Defendant No. 1 Partnership is continuing right from its inception in 1954 and that the present partners are infact the proprietors of the goodwill, stock in trade, machinery, factory, fittings and fixtures, trade marks and trade name which belonged to the original partnership and in this respect has invited my attention to Annexure 'A/6' which is an Agreement entered into between Abdullah Abdul Latif, Abdul Ghani Haji Umar, Adamjee Latif Godal dated 1.8.1955 whereby Adamjee Latif Godal had purchased the partnership, goodwill, fixtures, fittings, machineiy and all other rights attached to Basra Soap Factory (excluding stock in trade) for a lump sum of Rs. 40.000/-. Consequently Learned Counsel has submitted that videsuch purchase including purchase of trade mark and trade names etc. The present partners are the owners of registered Trade Mark No. 22315 viz. 'Kisan Hari Soap'. The said trade mark was registered on 2.7.1960 videAnnexure X-4 to the Plaint. Learned Counsel further referred to Annexures X-5, X-6, X-7 and X-8 to the plaint which are the Applications for the renewal of the trade mark right upto the year 1991. Thereafter per the Learned Counsel a notice was received from the Trade Mark Registry dated 2.8.1996 informing the Defendants that the Trade Mark No. 22315 in Class 33 has been struck off from the Register for non-payment of renewal fee with effect from 15.11.1995. In response Form TM-13 dated 9.9.1996 was filed by the Defendants through their Counsel M/s. AIL & Associates requesting for restoration of the trade mark which was allowed vide letter 10.10.1996 received from the Registrar of per Annexure A/13 to the Affidavit. He has also referred to Annexure A/14 to the Affidavit, which is Form TM-R-3 whereby the Trade Mark was renewed for a period of 15 years from 31.7.1991. He has also referred to Annexure A/15, which is a Certificate of Renewal of the Trade Mark in the name of Basra Soap Factory. In support of

his contentions Learned Counsel has relied upon: M/s. Kissan Industries v. M/s. Punjab Food Corporation (AIR 1983 Delhi 387), Abinash Chandra v. Madhusundan (AIR 1952 Cal. 673), Muhammad Zaman Sahib v. Fatimunnisa (AIR 1960 Mad. 60), Calmic Ltd. v. Registrar of Trade Mark (1985 CLC 2063), Blighty Industries Association Ltd. v. The Scottish Home Industries Association (44 RFC 269), Abdullah Saeed v. Cannon Rubber Ltd. (1987 MLD 2583), Hindustan Lever Ltd. v. Bombay Soda Factory (AIR 1963 Mysoor 173) and Ihlee v. Henshaw(3 RFC 15).

Learned counsel has further submitted that the suit in itself is not maintainable inasmuch as it is based upon a mere application for registration of the plaintiffs trade mark vide Annexure 'B' to the Plaint which is subject matter of Opposition No. 203/98 filed as Annexure 'A/20' to the Affidavit accompanying the Defendants Application CMA No. 9722/98. He has further pointed that the order dated 3.11.1998 whereby interim stay was confirmed in this matter and it was observed that Annexure 'B' is a copy of Certificate regarding Plaintiffs registered trade mark infact is a wrong observation and consequently the injunction granted on a wrong assumption should be vacated and as much is readily apparent from the perusal of Annexure 'B' to the Plaint which is a copy of application and Annexure 'J' to the Plaint which is the Defendant's Certificate referred to in para 15 of the Plaint. He has further submitted that the Plaintiffs trade mark appearing in Annexure, 'B/l' to the plaint and Defendants trade mark per Annexure 'J' are poles apart. Learned Counsel has referred to Section 21 of the Trade Mark Act which empowers a person to exclusively use its trade mark and Section 20 which bars a suit by an unregistered proprietor of a trade mark. Learned Counsel has further referred to Section 25 of the Trade Mark Act which produces for evidence etc. as regards a registered trade mark and in this connection Annexure 'A/22' to the Affidavit is conclusive since this is an extract from the Register of Trade Mark evidencing Haji Abdullah Latif, Haji Rafiq, Mst. Najma Begum as the owners of their trade mark w.e.f. 12.12.1992. This position is also recorded in Annexure 'A/1 to A/4' to the Affidavit, which are the Certificates issued by the Registrar of Firms. In support of this submission Learned Counsel has relied upon the following case law: J.N. Nichols (Vimto) Pic v. Mehran Bottlers (Pvt.) Ltd. (1996 MLD 1203), Azra Jawed v. JamshedAlam Khan (1996 MLD 1203), Coopers Inc. v. Pakistan General Stores (1981 SCMR 1039), Prince Rubber Ind. v. K.S. Rubber Ind.(1983 PTC 83), Carter and Parker Ltd. v. Scotia Wools Ltd. (1960 RPC 206), In the matter of the Magenta Time Co. Ltd. Trade Mark (44 RPC 169), Prem Singh v. Ceem Auto Ind. (AIR 1990 Delhi 233), Societe de Fabrication et de Distribution de Perfumenie v. Deputy Registrar of Trade Marks (PLD 1979 Kar. 83), Hawtin (E.V.) Ltd. v. Hawtin (John F) & Coy Ltd. (1960 RPC 95), Dolphin Laboratories ltd. v. Kaptab Pharmaceuticals Ltd. (AIR 1981 Cal. 76), Shri Swaran Singh v. M/s. Usha Ind. (AIR 1986 Delhi 343), P.M. Dissels (Pvt.) Ltd. v. Thukral Mechanical Works (AIR 1988

Delhi 282), G.T.C. Ind. v. I.T.C.Ltd. (AIR 1992 Mad. 252), George Balantyne Ltd. v. Balantyne Stewart (1959 RFC 273).

Learned Counsel has further submitted that apart from the trade mark"" the Defendant has also been using" " since 1955 but the "application for the same was moved in 1992 for registration of the said trade mark which is still in process as per copy filed as Annexure A/19 to the Affidavit. Finally Learned Counsel has also submitted that the Defendants were entitled to file CMA No. 11299/98 under Order 39 Rule 4, CPC, for recall of the ex-parte injunction order since the said order was based on an incorrect appreciation of facts viz.that the Plaintiff was the registered owner of trade mark 'Hari', whereas actually only an Application had been filed with the Registrar. So also per Learned Counsel, the fact that an Appeal against the ex parte order was time-barred is no reason to hold that the subject Application was not maintainable. In support of this proposition, Learned Counsel has relied upon Shahnawaz Ltd. v. Khawqja Auto Cars Ltd. (PLD 1979 Kar. 387), Muhammad Yusuf v. Sabira Muhammad (1990 CLC 1127), Nirmala Kanta vs. Mulk Raj Kohli (AIR 1977 All 145), Amina Begum v. Ghulam Dastagir (PLD 1978 SC 220), Magnum Fims Ltd. v. Golcha Properties Ltd. (AIR 1983 Del. 392), Meenakashi Amal v. Rama Ayyar (AIR 1928 Mad 610), Amin v. Haji Abdul Sattar (1992 CLC 1428) and (PLD 1981 SC 108).

In reply Mr, Munawar Ghani, Learned Counsel for the plaintiff, has submitted that para 3 of the Plaint is very clear on the issue of status of the Plaintiffs trade mark viz. Plaintiffs have only filed an application for registration of the trade mark "Hari". Consequently Learned Counsel has submitted perhaps the order dated 3.11.1998 inadvertently mentions that the Plaintiffs are the registered owners of the trade mark in question.

As regards the trade mark in question which the Defendants alleged belong to them viz. No. 22318, the same was in the name of Abdullah Abdul Latif, Abdullah Ghani Haji Umar, Abdul Ghaffar Latif and Haji Ashraf Abdullah and not in the partnership name viz. Basra Soap Factory. As per Annexure 'A/6' which is an Agreement dated 1.8.1955 between Abdullah Abdul Latif, Abdullah Ghani Haji Umar, Ghaffar Latif Godal, Haji Ashraf and Adamjee Latif Godal the trade mark owned by the partners of Basra Soap Factory viz. the first four above mentioned persons was never sold to Abdullah Latif Godal and no Deed of Assignment of the Trade Mark was ever executed between the parties as contemplated under Section 35 of the Trade Marks Act. Consequently per Learned Counsel the said trade mark never became the property of the Firm and as such cannot be claimed by the present partners viz: Defendant Nos. 2 to 5. In this regard Learned Counsel has referred to Section 14 of the Partnership Act which defines the term property of a partnership firm to include all property and rights and interest in the Stock of the firm or acquired by purchase or otherwise, by or from the

firm, or for the purposes and in the cause of the business of the firm and includes also the goodwill of the business. He has relied upon Attaur Rehman v. Adam Ali (1981 CLC 1747), Khuda Bux vs. Badrul Hasan (PLD 1981 Kar. 657) and Muhammad Ishaque v. Eros Theatre (PLD 1973 Kar. 522). Learned counsel has further contended that if all along the Defendants claimed ownership in the trade mark in question than they should have long ago filed a suit against the Plaintiffs for infringement. So also per Learned Counsel Annexure J to the Plaint which is a certified copy of the Trade Mark No. 22315 and issued to the Plaintiff on 11.11.1997 still shows the original partners as the certified owners. Whereas in the latest Application No. 118013 filed by the Defendants for registration of mark 'Kissan (Hari)', present partners of the firm have been shown which goes to show that the two eneities which existed in 1954 and today are different concerns.

Next Learned Counsel has contended that Trade Mark No. 22315 was not renewed by the owners after 1991 despite notice issued by the Registrar and as a result the said Trade Mark was removed by the Registrar as of 31st July 1991. Thereafter a restoration application was moved on Form T.M. 13 on 16.9.1996 by the present partners/Defendants which was unlawfully granted by the Registrar in violation of Rule 49(2) of the Revised Trade Marks Rules which only empowers him to condone the delay within one year of the expiration of the last registration subject to his satisfaction. For this proposition he has relied upon Karim Ind. v. Nahan Foundry (1984 CLC 648).

Next Learned Counsel has argued that after the interim injunction was confirmed videorder dated 11.11.1998, the only remedy available to the Defendants was to file an appeal against the said order and hence CMA 11299/98 filed, under Order 39 Rule 4 CPC for vacation of the order above-mentioned was misconceived. In this connection he has submitted that per settled law, except in the event of changed circumstances a Court cannot sit in review of its own orders. He has relied upon the following cases in support Of this proposition, Sind Madarsatul Islam Board v. Skamim (1982 CLC 2242), Muhammad Yousufv. Sabira A. Muhammad (1990 CLC 1127), and Engineering Products Ltd. v. Site (PLD 1997 kar. 258).

•Finally Learned Counsel has contended that the Defendants were misconceived in arguing that the plaintiff had copied the latter trade mark. On the other hand the Defendants had done so and consequently the plaintiffs were well within their rights to file the present suit for passing off. In support he has relied upon Unilever Pic v. R.B. Oil Industries (Pvt.) Ltd. (1999 MLD 1447), Rexona Proprietary Ltd. v. Majid Soap Works (PLD 1956 Sindh 1), General Sales and Trading v. Abdul Razzak (NLR 1961 U.C. 425), Abdul Jabbar v. Ahmad Jan (PLD 1973 Kar. 289), Telephone Soap v. Lever Brokers (NLR 1994 Civ. 467).

In the circumstances Learned-.Counsel has prayed that CMA 9722/98 be allowed and 11299/98 be dismissed.

i

In reply Mr. Khalii Kizilbash has again reiterated as earlier argued that this suit cannot be filed merely 9»n an application for registration of a trade mark since admittedly the Plaintiff is not the registered user of the trade mark in question. The interim order obtained on such basis is patently defective and hence fit to be vacated in favour of the Defendant. He has relied upon Meenakashi Amal v. Rama Aiyar for this proposition. Further Learned counsel has submitted that the validity of a trade mark cannot be challenged in an interim proceeding for which he has cited G.T.C. Ind. v. I.T.C. Ltd. (supra)(AIR 1992 Mad. 253). Thirdly Learned Counsel has submitted where the two persons are proprietors of identical trade marks none can be restrained from using the said trade mark and has relied upon P.M. P.M. Dissels (Put) Ltd. v. Thukral Mechanical Works (supra) Finally Learned Counsel has produced certified copies of certain correspondence between the Defendant No. 1 and the Registrar to establish that infact all along the latter has treated the former as the proprietor of the trade mark in question.

As. to the issue regarding vesting of the trade mark in Abdullah Latif Godal per Annexure 'A/6' to the Affidavit accompanying CMA No. 9722/99 Learned Counsel has relied upon Section 14 of the Partnership Act which provides that all assets of the partnership are the joint property of the firm. Consequently Learned Counsel has submitted that vide Annexure 'A/6' which clearly provides that the running business of Basra Soap Factory alongwith machinery, goodwill, furniture, telephone and all other rights attached thereto (excluding stock in trade) was sold to the purchasers who later on formed a fresh partnership on the same day with the other persons in -hided the trade mark of the previous firm which is in continuous existence till today. He has again referred to various documents filed alongwith CMA No. 9722/99 which would confirm that the partnership is existing right from its very inception and consequently the goodwill of the partnership which includes the trade mark etc. are intact which gives the Defendants the right to use the trade mark in question exclusively.

Consequently Learned Counsel has prayed that CMA No. 9722/99 be dismissed whereas Defendants application viz. CMA No. 11299/98 be allowed.

I have heard both the Learned Counsel and my conclusions are as follows:--

The main controversy between the parties is whether Trademark No. 22315, which was registered in the names of Abdullah Latif, Abdul Ghani Haji Umer, Ghaffar Latif and Haji Ashraf Abdullah, trading as Basra Soap Factory, Karachi, is the property of the Defendants. An off shoot of this controversy is whether the said trademark is owned by persons above named or by Basra Soap Factory. Reverting to the allied controversy first as to who is the owner of the trademark in question, it would be seen that the term "partnership" has been defined in Section 4 of the Partnership Act to mean

the relationship between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Further Section 4 goes on the provide that persons who have entered into a partnership with one another are called individually "partners" and collectively "a firm" and the name under which their business is carried on is called the "firm name". In this context it would further be seen that per Section 18 of the Act a partner is the agent of the firm for the purposes of the business of the firm and according to Section 22 in order to bind a firm, an act or instrument done or executed by a partner or other person on behalf of the firm shall be done or executed in the firm name or in any other manner expressing or implying an intention to bind the firm. Finally, Section 14 of the Act defines the property of a firm to include all properties and rights and interests in property originally brought into the stock of the firm or acquired by purchase or otherwise by or for the firm or for the purposes and in the course of the business of the firm, and includes also the goodwill of the firm. This is subject of course to contract between the partners inter se. It will also be worthwhile in this connection to examine the deed of the original partnership of Basra Soap Factory as mentioned above which is dated 9.4.1954. The said deed describes the partnership name as M/s Basra Soap Factory and the partnership business to be that of inter alia manufacturers and dealers of soap and cotton textiles. A perusal of the foregoing provisions of the Partnership Act would establish that a partnership is an undertaking between two or more persons for a common objective viz. the sharing of the profits of a business and that each partner is an agent of the firm. So also the property of the firm includes all the properties, rights and interests in property originally brought into the stock of the firm or acquired by purchase or otherwise by or for the firm. Consequently, in my view, in the absence of any disagreement between the partners as such regarding the trademark in question, which was registered as far ago as in 1956, it can safely be concluded at this stage that the same belonged to all the partners and indeed the firm itself. This conclusion becomes all the more imperative in view of the fact that the certificate in question not only mentions the names of the original partners but also that of the partnership viz. Basra Soap Factory. So also it would be seen that in subsequent correspondence which has been placed on the record by the Defendants the addressee has always been M/s. Basra Soap Factory. For the foregoing reasons, at this stage, I would, therefore, hold that the trademark Bearing No. 22315 was owned by M/s. Basra Soap Factory and through it by the original partners because practically there is no difference between the partners and the partnership firm as to the property of the firm provided there is no dispute between the partners inter se which is not the case in the present matter.

The other controversy is that whether the trade mark is the property of the Defendants. It would be necessary in this respect to examine whether in terms of the agreement between the original partners and Adamjee Latif Godil dated 1.8.1955 the trademark in question also actually formed part of

the assets, which were sold by the said partners to Adamjee Latif Godil and whether it subsequently devolved upon the present partners i.e. Defendants Nos. 2 to 5 by virtue of transmission. In this regard it would be seen that the recitals of the said Agreement do mention that the running business of M/s. Basra Soap Factory alongwith the machinery, goodwill, furniture, telephone and all other rights attached thereto excluding stock in trade were sold to Adamjee Latif Godil. In these circumstances, therefore, tentatively I have no hesitation in holding "that the trademark in question was also sold to Adamjee Latif Godil since the main business of the original partners was of manufacturing soap and it cannot be comprehended that when the entire running business was sold, the trademark would not form a part of it particularly when the said business was to include the goodwill as well.

Next it would be seen that after purchase of the undertaking of M/s. Basra Soap Factory by Adamjee Latif Godil successive partnerships were formed between various persons which have been properly documented as per the Deeds of Partnerships/Dissolution brought on record. In this respect reference can be made to Annexures A/1 to A/llc filed alongwith the Affidavit accompanying CMA No. 1129/98 by the Defendants which are certificates from the Registrar of Firms regarding registration of various firms set up by the incoming and outgoing partners, Partnership Deeds and Dissolution Deeds. The latest Partnership Deed is dated 1.1.1987 amongst Defendants Nos. 2 to 5. In this view I am satisfied, prima-facie, that the Defendant No. 1 viz.Basra Soap Factory is a Partnership Firm which has continued right from its inception in 1954 to the present day although the composition of its partners has undergone changes. Resultantly I again have no difficulty in holding that the Partnership asset viz. the Trade Mark No. 22315 all along vested with the Partnership/Partners and that at the present moment it belongs to the Defendants. This conclusion is also supported by the various documents brought on the record by the Defendants in the shape of invoices etc. to show that the Firm has been manufacturing and selling soap cakes under the name of Kisan/Hari for a very long time.

As regards Mr. Munnawar • Ghani's contention that no deed of assignment was executed between the original partners and Adamjee Latif Godil as contemplated under Section 35 of the Trade Marks Act, suffice it to say that this Section is an enabling one and provides that the Registrar shall record a change in proprietorship of any trade mark on application by the Assignee thereof. In the present circumstances, where prima facie, it appears that the trade mark was registered in the name of the Firm/Original partners there appears to be no need for any change in the registered proprietorship thereof, particularly in view of the fact that the partnership is a going concern. This conclusion is borne out from the various partnership deeds corresponding dissolution deeds and certificates given by the Registrar of the Firms. As to the cases cited by Mr. Munnawar Ghani, viz. Ataur Rehman v. Adam Ali, Khuda Bux v. Badrul Hasan and Muhammad Ishaque v. Eros Theatre (supra), in my view, these are distinguishable because there the partnership property was in dispute in between the partners inter se which is not the case in the present matter. It was observed in the above cases that merely because immovable property was being used by the Firm is no guarantee for the inference that the same belonged to it. Here there is no such dispute.

The next issue in controversy is the restoration of the trade mark in the year 1996 obtained by the Defendants. In this respect it is the Plaintiffs contention that said restoration was against the provisions of Rule 49(2) of the Trade Mark Rules which provides that the Registrar may restore a trade mark which has been struck of the Register within one year of the last registration on being satisfied that it is just so to do and upon such conditions that he may think fit to impose. Per Learned Counsel for the Plaintiff the registration of the trade mark in question expired on 31.7.1991 and was removed from the Register thereafter. Hence, the Application for restoration moved in the year 1995 was patently time-barred and even otherwise no cogent reasons were given for the delay in applying for the restoration. Hence the said restoration in the year 1996 upon application thereto in the year 1995 has no legal value at all.

In this regard it would be seen that per Annexure A/22 to the Affidavit accompanying CMA 11299/98 the said trade mark was removed from the Register on 15.11.1995 but upon a request being made on Form TM 13 dated 9-9.1996 the Mark was restored on 7.10.1996 with effect from 31.7.1991. This was done under Section 18(3) of the Trade Marks Act A perusal of said section would reveal that before expiry of the last registration of a trade mark, the Registrar is to notify the registered proprietor of the impending expiration whereafter a renewal of registration may be obtained. However, upon expiry of the time prescribed for renewal etc. the Registrar may remove the trade mark from the Registrar. As per Rule 47 of the Trade Mark Rules, where no application is received on Form 12 for renewal of the registration one month prior to the expiry of the registration, notice is to be sent on Form O. 3. Thereafter if upon expiry of the last registration no application for renewal has been received, the Registrar shall advertise the fact forthwith in the Journal and if after four months thereafter, still renewal has not been obtained by the owner, the trade mark may be removed from the Register by the Registrar. (Rules 48 and 49(1). Thereafter, as already adverted above, the trade mark may be renewed by the Registrar in accordance with Rule 49(2) within one year of the last registration. A combined reading of Section 18(3) together with Rules 47, 48 and 49 of the Rules would thus show that the entire exercise of sending notices on Form 0.3, advertisement in the Trade Marks Journal and restoration thereof is to take place within one year from expiry of the last registration. Prima-facie, this course of action does not appear to have been followed in the present case since per the certified copies obtained from the Registrar's Office the registration of the trade mark in question expired on 1.7.1991 but it was removed from the registry in the year 1995 and thereafter restored in the

year 1996 upon an application moved by the Defendants. Consequently it appears prima facie, that restoration of the trade mark was not in accordance with the law as laid down in the Trade Mark Act and Rules framed thereunder. However having said as much, in my view evidence needs to be recorded in order to reach a positive finding in this regard and hence this issue is deferred till such time.

The last issue raised by the Plaintiff is non-maintainability of CMA No. 11295/98 under Order 39 Rule 4, CPC which provides that any order for an injunction may be discharged, varied or set aside by the Court on Application made thereto by any party dis-satisfied with such order.

In this connection it is well settled law that Order 39 Rule 4 CPC can be invoked only where the previous injunction order which was sought to be vacated is unduly harsh and or unworkable or the same is deemed to be necessary in view of fresh circumstances. This becomes more imperative where the injunction order sought to be recalled is ex-parte. It need hardly be added that where a party is able to show the aforementioned circumstances he cannot be non-suited merely on the ground that although an appeal could have been filed against the injunction order the same was not done. For the foregoing proposition Muhammad Yousuf v. Sabra A. Muhammad and Engineering Products (Pvt) Ltd. v. Site (supra) may be cited. In any event it would be seen that under Section 151 CPC the inherent powers of a Civil Court can be invoked in order to do complete justice between the parties and would relief in accordance with the circumstances in the larger interest of justice. However, this discretion is only to be exercised in proper cases. (See Amna Begum v. Ghulam Dastagir (PLD 1978 SC 220)).

Applying the foregoing principles of law to the facts of the case in so far as the present application is concerned, it would be seen that certainly some new material has been placed on record by the Defendants which was not available at the time when the injunction order was confirmed. However, it still remains to be seen whether the Defendants have been able to establish that by virtue of the documents etc. filed by them the injunction order has become unduly harsh or workable per the formulation in Muhammad Yousuf v. Sabra Begum (supra).

I have already held that, prima-facie, the trade mark in question was owned by the original partners through the Partnership and was thereafter transmitted to the successive partners upon reconstitution of the firm and consequently proprietorship of the said trade mark rests both with the present firm as constituted and the present partners viz. the Defendants. Similarly, it appears that the said trade mark had been used right from the very inception of the firm upto the present moment in view of the various receipts and vouchers brought on record by the Defendants. However, it appears that the said trade mark has not been renewed in accordance with the rules. Concurrently it would also be seen that the Plaintiffs trade mark is also not registered since at the moment their application is still pending with the Registrar. However, the Plaintiffs have been able to show that they have been using'the Trade Marks since 1986.

In the circumstances, keeping in view the over all facts of the matter particularly the fact that the Defendants appear to be the prior user of the trade mark in question, in my opinion, it would be in the interest of justice to 'vacate the earlier order dated 3.11.1998 with the result that both the parties would be allowed to use the trade mark till the suit is decided. CMA 11299/1998 is granted.

In view of the foregoing order CMA No. 4538/1998 is dismissed. Order accordingly.

(A.A.)Order accordingly

PLJ 2002 Karachi 134 (DB)

Present: MUHAMMAD RosHAN essani and muhammad mujibullah siddiqui, JJ.

COLLECTOR OF SALES TAX & CENTRAL EXCISE (EAST) KARACHI-Appellant

versus

M/s. MUNAF LACES, KARACHI and another-Respondents

Special Sales Tax Appeal No. 39 of 2001, heard on 5.12.2001.

Sales Tax Act, 1990--

—S. 47--Appeal under S. 47 of Sales Tax Act, 1990, lies to High Court in respect of any question of law arising out of order under S. 46—In appeal/ reference arising out of appeals under Sales Tax Act, Customs Act, Excise Act and Income Tax ordinance, only such question of law can be raised before High Court, which were raised/agitated before Appellate Tribunal and any finding thereon, was given by the Tribunal-Where certain points were not raised before Tribunal they cannot be allowed to be raised for the first time in High Court-No questions of law having been raised before Tribunal or decided by it, appeal was not maintainable.

[Pp. 135 & 136] A & B

Ms. Masooda Sirqj, Advocate for Appellant. Date of hearing : 5.12.2001.

judgment

Muhammad Mujibullah Siddiqui, J.-This appeal, under Section 47 of Sales Tax Act, 1990, is directed against the Judgment dated 21.6.2000; by the Customs, Excise, and Sales tax Appellate Tribunal, in Appeal 2002collector of sales tax & control excise

No. 2303 of 1999. The following questions of law have been proposed for our consideration :--

1.Whether the tribunal i.e. Respondent No. 2 is justified in passing the impugned order dated 21.6.2000 ? Whether the Respondent No. 1 is not engaged in manufacturing of laces and braids and supplying their products since 1996 without Sales Tax Registration u/S. 14 of the Sales Tax Act, 1990? Whether the Respondent No. 1 has violated the provisions of Sections 3, 6, 14, 15, 22, 23 and 26 of the Sales Tax Act, 1990 ? Whether the provisions of Section 15(3) of the Sales Tax Act, 1990 is not attracted to the Respondent No. 1 ?

2.Whether the Respondent No. 1 can be penalized under Section 37(c) of the Sales Tax Act, 1990 ?

3.Whether the Respondent No. 1 has evaded the Sales Taxamounting to Rs. 2,50,000/- deliberately ?

Heard Ms. Masooda Siraj, learned counsel for the appellant. An

appeal under Section 47 of Sales Tax Act, 1990, lies to the High Court in respect of any question of law arising out of order under Section 46, i.e., by the Appellate Tribunal.

We have asked the learned counsel for the appellant to show that the questions proposed on behalf of appellant fulfill these two conditions. The learned counsel is not able to show that the questions proposed are the questions of law arising out of the order of the Appellant Tribunal. Some questions proposed, are in general terms and remaining are either question of facts or question of law, which do not arise out of the order of the Tribunal. We asked learned counsel for the appellant to show the that points, which are sought to be agitated through the proposed questions, were raised before the tribunal and the tribunal has given any finding on such points. She has conceded that neither the questions of law proposed before us were raised before the Tribunal nor there is any finding on such questions.

By now, it is established proposition that in the Appeal/Reference arising out of appeals under the Sales Tax Act, Customs Act, Excise Act and Income Tax Ordinance, only such questions of law can be raised before the HighuCourt, which were raised/agitated before the Appellate Tribunal and any finding thereon is given by the Tribunal. If certain points were not raised before the Tribunal, they cannot be allowed to be raised for the first time in the High Court. For the reasons stated above, the appeal is not maintainable, as the 1 condition for the maintainability of appeal has not been fulfilled. The appeal jstands dismissed accordingly, in limine, alongwith listed application.

(A.A.)Appeal dismissed.

PLJ 2002 Karachi 136

[Hyderabad Circuit]

Present: WAHID BUX BROHI, J.

MIANDAD-Appellant

versus

ABDUL QADEER and others-Respondents

LA. No. 18 of 1998, decided on 2.3.2002.

Transfer of Property Act, 1882 (IV of 1882)--

—-S. 53-A-Plaintiff claimed that one of defendants had executed agreement of sale in his favour on receipt of consideration—Plaintiffs claim stood • rejected by Courts below and rightly so, for the reason that in presence of other co-sharers, said defendant alone could not make valid agreement for sale of land over and above other legal heirs-Plaintiff was not expected to pay substantial amount to one of defendants knowingly very well that other co-heirs were not, signing agreement while land in question was in the name of their predecessor in interest-No general Power of Attorney in favour of alleged vender (defendant) was mentioned in alleged agreement-Entire undivided land owned by co-sharers, could not be transferred by one of them-All the circumstances on factual plans were sufficient to indicate that transaction in question was fake and alleged sale-deed was not genuine-Finding of Courts below were affirmed in circumstances. [P. 140] A

PLD 1994 Karachi 106; PLD 1997 Lahore 833; PLD 1997 Karachi 985 & 1986 SCMR 306 ref.

Mr. Ahmed All Shaikh, Advocate for Appellant.

Mr. Muhammad Munawar Khan, Advocate for Respondents Nos. 1 to 4.

Date of hearing: 7.12.2001.

judgment

This appeal under Section 96, CPC calls in question the judgment and decree dated 21.4.1998 and 24.4.1998 respectively in F.C. Suit No. 41/96 passed by 1st Senior Civil Judge, Nawabshah whereby the suit for declaration, specific performance of contract and injunction filed by Miandad against respondents Abdul Qadeer and others was dismissed with ordinary costs as well as compensatoiy costs. 2.The subject matter of this case is an Agricultural land bearing Survey No. 161/2(7-29 acres), 162/1 (4-33 acres) and 147/4 (4-00 acres) total admeasuring 16-22 acres in Deh 89-Nusrat Taluka and District Nawabshah which was inherited by Respondents Nos. 1, 2, 3 and 4 from their father Abdul Rehman, the owner of, this land, and it was managed by Abdul Qadeer, Respondent No. 1. It is the case of appellant that he was Hari on this land and purchased the same from Respondent No. 1 through an Agreement for Sale executed on 22.6.1995, at the rate of Rs. 35,000/- per acre that is to say for a total sum of Rs. 5,79,250/- and he paid an amount of Rs. 4,80,000/- to the Respondent No. 1 at the time of agreement while the balance of Rs. 99,250/- was payable to Respondent No. 1 up to 15.3.1996. According to appellant, the agreement was duly attested by witnesses as also by Notary Public and possession was delivered to him. The sale, however, . could not be finalized as the Respondent No. 1 could not obtain requisite documents and certificates for the purpose of registration of final Sale-Deed and also failed to get the land mutated in favour of the legal heirs/Respondents Nos. 1 to 4. The appellant/plaintiff was, allegedly, kept on hopes and promises for execution of final Sale-Deed but at a latter stage Rao Shamim, Respondent No. 9 filed a complaint against the appellant before Assistant Commissioner, Nawabshah, Respondent No. 6 in order to put pressure on the appellant so that the said respondent could get the land on lease or purchase it. In these circumstances the appellant filed Suit No. 31 of 1996 against Respondent No. 1 for declaration but during the proceedings when he came to know that the Respondents Nos. 2, 3 and 4 are his sisters and also that the land stands mutated in the name of deceased Abdul Rehman, he withdrew the suit. The said respondent had also declined specific performance of the contract. The appellant ultimately filed the instant suit. 3. ,Th'e Respondent No. 1 filed his written statement which was later on adopted by the Defendants/Respondents Nos.. 2, 3 and 4. The defendant/ Respondent No. 1, in his written statement, admitted that the appellant is Hari on the suit land but he denied the transaction of sale of suit land and stated in unequivocal terms that the alleged sale-agreement was absolutely a forged and fraudulent document. He explained that he had no authority on behalf of Respondents Nos. 2, 3 and 4 to sell the suit land to the appellant. He also denied receipt of any amount as part payment of consideration of alleged sale. The delivery of possession of the suit land to the appellant in the latter's capacity of purchaser/owner, was also denied in express terms. According to him, the ejectment proceedings against the appellant before the Revenue authorities were in progress when the appellant managed the forged sale-agreement. He explained that the land was given on lease to the Respondent No. 9 which fact annoyed the appellant as the Respondent No. 9 had informed the appellant as the Respondent No. 9 had informed the appellant to cultivate the land in future according to the instructions of the former (Respondent No. 9). He denied that the names of other heirs, Respondents Nos. 2, 3 and 4 were suppressed. On these pleadings the learned trial Court settled the following issues :--

1.Whether the Defendant No. 1, sold the land Sy. Nos. 161/2 (7-29 acres) 162/1 (4-33 acres) and 147/4 (4-00 acres) total area16-22 acres in deh 89-Nusrat Taluka N. Shah to plaintiff undersale agreement dt. 22.6.95 ?

2.Whether the sale-agreement is forged fabricated and notexecuted by defendants ?

3.Whether the possession of land under the suit land is in thecapacity of hari of purchaser ?

4.Whether the defendants are liable to perform the part of theircontract by executing sale-deed in favour of plaintiff ?

5.Whether the suit is not maintainable ?

6.What should the decree be ?

4.The parties led evidence and produced the relevant documents. On appraisal of the evidence, the trial Court dismissed the suit.

5.The controversy essentially rests on the agreement dated 22.6.1995, produced at the trial by appellant Miandad as Ex. 72. The foremost point to be determined, therefore, is : whether there was legally valid agreement for sale in favour of appellant? It has been admitted by the appellant in his evidence that the land still stands in the Khatta of late Abdul Rehman. As against this the agreement contains a recital that iii the record of rights the land in suit is in the name of Abdul Qadeer the Respondent No. 1. Admittedly this version in the agreement is a false statement vitiating the entire contract.

6.According to appellant the Respondent No. 1 Abdul Qadeer on receiving an amount of Rs . 4,80,OOO/- signed the agreement, whereafter witnesses Ali Asghar and Sajan Parejo signed and put thumb impression on the agreement and then Notary Public Muhammad Hayat Bughio after confirming the contents of agreement from respondent Abdul Karim ' attested the same. Much against this the said Notary Public Muhammad Hayat Bughio who is a retired Mukhtiai\kar and First Class Magistrate stated in cross-examination that the agreement was false and that earlier he had voluntarily sworn an affidavit before the trial Court on 6.5.1996 stating this fact therein. He clarified in the examination-in-chief that the parties were identified by Abdul Rasheed Bond-Writer. The evidence of scribe namely Abdul Rasheed as such was of immense significance but the appellant intentionally gave him up at the trial by his statement (Ex. 75). Mr. Muhammad Munawar Khan learned counsel for respondents therefore, was wholly justified in contending that within the meaning of Article 129 Illustration (g) of Qanun-e-Shahadat, the Court may reasonably presume that the evidence of Abdul Rasheed if produced would have been unfavourable to appellant Miandad. This contention finds full support from

the observations made by this Court in Abdul v. Suhrab (PLD 1997 Karachi 985), wherein reliance was placed on DilMurad v. Akbar Shah (1986 SCMR 306).

7.Learned counsel for appellant, however, attempted to seek support from the evidence of witnesses, who attested the agreement, namely Ali Asghar and Sajan. Out of them Ali Asghar stated that he was a student of B.Sc. Part-I Chemistry and resident of Sanghar and that his lands were situated in Sanghar and he had no land in Nawabshah District. He had some land on lease in Deh 89 Nusrat from 21.6.1995 and onwards that is to say one day before the execution of agreement, but he has admitted that he had no land on lease prior to that. He has also admitted that the parties were not known to him and he had no station in Deh 89 Nusrat and on that occasion he had simply gone to the Otaq of appellant for taking water where he stayed for about 5 to 10 minutes. He was, thus, completely a stranger and on the basis of 10 minutes visit to the Otaq of appellant he has become a witness to the transaction of alleged sale. He had gone for the first time to Otaq of appellant but the appellant in his deposition stated that talks of sale had also been held earlier and both the witnesses were present on both occasions. This is absolutely a damaging contradiction. The other witne s Sajjan is also not resident of that locality. He has explained that he had gone there in connection with the business of cattle and chaff. After talks he went there on the following day and alongwith appellant Miandad and PW Ali Asghar as also respondent Abdul Qader reached the office of Bond Writer. Obviously, both these persons were chance witnesses and failed to furnish reliable explanation about their presence at the time of talks of sale agreement. Their evidence is not of that value as to render independent support to the version of appellant/plaintiff, when that attesting Notary Public had expressly called the document a false agreement, while the evidence of scribe was intentionally withheld. Burden of proving of sale agreement was on the appellant. Reliance in this regard may be placed on PLD 1994 Karachi 106 (Muhammad Subhan v. Mst. Bilquis Begum) and PLD 1997 Lahore 633 (Sirqj Din v. Mst. Jamilan) The appellant, however, could not satisfactorily discharge this burden.

8.The Respondent No. 1 on the other hand has totally denied the execution of this agreement. He has explained in his evidence that after the death of his father there are in all four legal heirs who are the owners of the suit land and according to him the appellant was their Hari, but in the year 1995 he forcibly occupied the entire piece of land bearing Block 147. He lodged a complaint with the Deputy Commissioner which was forwarded to Assistant Commissioner and the application is pending there. He filed certified copy of the said application and the forwarding letter. The fact that there are four legal heirs of Abdul Rehman stood unrebutted. Even General Power of Attorney produced by the witness showed that there were four legal heirs. This factual aspect could not.be controverted during the course of arguments in this Court.

9.Obviously, in presence of other co-heii's the Respondent No. 1 alone could not make transfer in excess of his share in the land, he could not make a valid agreement for sale of the land over and above other legal heirs. It is hardly expected that the appellant would pay an amount of Rs. 4,80,OOO/- knowing very well that the other co-heirs were not signing the agreement while the land was still in the name of Abdul Rehman their predecessor-in-interest. No General Power of Attorney in favour of Abdul Qadeer was mentioned in the alleged agreement Learned counsel for appellant was also not able to make a submission if an agreement for sale of land by one co-sharer in absence of three others could validly make out a case for transfer of the entire undivided land to another person. All the circumstances on factual plane are sufficient to indicate that there was no such transaction of agreement for sale between the appellant and Respondent No. 1 and that the sale agreement was not a genuine document. The appellant was only a Hari on the land in suit and the question of tenancy was under adjudication on the crucial date. There was no question of specific performance of alleged contract. Learned trial Court had rightly decided all issues in favour of the respondent.

10.For the foregoing reasons, I am inclined to conclude that the findings of learned trial Court are not open to exception and as such are maintained. The suit was rightly dismissed. The order of award of compensatory cost of Rs. 5,000/- passed by the learned trial Court is also maintained. The appeal is dismissed with costs. These are the reasons of short orders announced on the date of hearing of appeal.

(A.A.)Appeal dismissed.

PLJ 2002 Karachi 140

[Sukkur Bench]

Present: syed zawwar hussain jafri, J.

JUMMA KHAN and another-Applicants

versus

BASHIR AHMED and 5 others-Respondents

C.R.A. No. No. 10 of 2001, decided on 11.2.2002.

Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957)--

—S. 41-Civil Procedure Code, 1908 (V of 1908), S. 115-Claim of ownership ' relating to property in question-Plaintiffs claim thereto, was rejected by two Courts below-Sale deed made in favour of plaintiffs on 25.11.1947 on which they based their claim of ownership was subject to confirmation by custodian as provided in Section 22 of Pakistan (Administration of Evacuee Property) 1957-Such view taken by Courts below appears to be in accordance with law-No material irregularity or illegality having been pointed out in judgments of Courts below, same was maintained.

[P. 142] A

Mr. Abdul Haq Comboh, Advocate for Applicants. Mr. Zulfiqar All Jatoi, Advocate for Respondents; Date of hearing: 11.2.2002.

order

This revision application is directed against the concurrent findings of the two courts below dismissing the suit as well as appeal filed by the applicants. The present revision application has been filed by the applicants by challenging the said orders. The brief facts giving rise to the present revision application are that the applicants had purchased residential plot having the following boundaries through registered sale-deed No. 86 dated 25.11.1947 from one Hindu Take Chand for consideration of Rs. 1,500/-: , Boundaries and measurement of suit plot.—

In the East-Road 58 feet Total area

In the West-Garden 47 feet under purchase

In the North-Well 50 feet by the applicant.

In the south-House of Mandra 64 feet 2,907 Sq. Feet.

It is inter alia contended that the applicants were in possession of the suit plot in the year 1997 the defendants forcibly occupied the suit land and constructed Landhi and shops on the suit land., The applicants were constrained to file civil suit being Suit No. 15/1997 which was instituted in the Court of Senior Civil Judge Kandiaro on 25.1.1997 for declaration of their ownership, possession and permanent injunction. The respondents' in response appeared and filed their written statement whereby it was denied the purchase and possession of the applicant as per boundaries mentioned in the suit and it was claimed that they have purchased 0-6 1/2 of the land out of survey No. 5.5-A Deli Kandiaro from Muhammad Saleem Abbassi for Rs. 5,000/- on 23.10.1998 and by virtue of such title document they have constructed shops over it and they are in peaceful possession since their purchase. Although'the opponents moved an application under Order 7, Rule 11 CPC for rejection of plaint on the legal ground raised in the application as well as in the written statement. The parties exchanged their documents by filing objection, consequently the trial Court after hearing the Learned counsel for the respective parties had rejected the plaint. The applicants being aggrieved with the said judgment preferred an appeal which was heard and decided by the learned Addl. District Judge Kandiaro by up holding the judgment of the trial Court. The present revision application has been filed against the said judgment. It is contended by the learned counsel that the trial Court was supposed to record the evidence in order to determine the status of each party and by deciding the suit in heaphazard manner and the right of the applicants have been denied in such manner. It is further contended that the orders of the two Courts below be set aside and the case be remanded to the trial Court for recording the evidence of the respective parties whether the opponents have illegally encroached upon the suit land of the applicants or the sale-deed produced by the opponents in the trial Court is proper. Mr. Zulfiqar Ali Jatoi, learned counsel for the respondents has raised a legal plea that the suit land was purchased by the father of the applicants in the year 1947 from one Take Chand through registered sale-deed and the said document was liable to be confirmed by the Custodian authority as contemplated under Section 22 of the Pakistan (Administration of Evacuee Property) Act but such confirmation was not obtained which transpires that the suit plot falls within the definition of (Evacuee Property) as provided under Section 2(3) of the said Act. It is further urged by the learned counsel that in such circumstances the jurisdiction of the Civil Court was bared by Section 41' of the Pakistan (Administration of Evacuee Property) Act. The learned counsel for the respondent has relied upon the case ofAttaullah v. State through custodian reported in P.L.D. 1996 SC 234. It is further contended by the learned Counsel that the sale-deed dated 28.7.1996 registered with the Sub-Registrar was filed in the trial Court alognwith the written statement but the said sale-deed was not disputed by the applicants. The trial Court has observed in the judgment dated 15.5.2001 that prior to the suit No. 15/1997 the petitioners preferred a suit being Suit No. 2/1997 which was dismissed as with drawn on 12.8.2007 and no permission to file fresh suit was obtained. I have examined the orders of the two Courts below and I am of the view that the sale-deed made on 25.11.1947 was subject to confirmation by the custodian as provided under Section 22 of Pakistan (Administration of Evacuee Property) Act therefore the view taken by the two Courts below appears to be in accordance with law. The learned counsel is unable to pin point any material irregularity for setting aside the orders of the two Courts below. The findings of the two Courts below are maintained and the present revision applicant is dismissed.

(A.A.)Revision dismissed.

PLJ 2002 Karachi 143

Present: zahid kurban alavi,J.

DIN MUHAMMAD WAGON-Plaintiff , versus

Mst. RASHIDA KHATOON (deceased) through her L.Rs and others—Defendants

Suit No. 413 of 1986, decided on 14.1.2002. (i)

Benami Transaction--

—Burden to prove that property in question, was purchased by him through his own resources was on plaintiff but he failed to produce anydocument to that effect-Documents produced by plaintiff were in the name of his wife—Plaintiff had not produced anything on record to showthat price of property in question, was paid by him out of his own resources—Plaintiff, thus, failed to prove Benami Transaction of property in question.: [P. 147] A & B

(ii) Muhammadan Law-

—-Inheritance-Defendant admitted by being sister of deceased who had died issueless, was the only heir alongwith plaintiff being husband of deceased lady-Parties being Sunni Hanfi, defendant was entitled as sister as per Hanafi law of inheritence-'Plaintiff being husband of his issueless wife would also be initiated as per Hanif Law of Inheritance-Plaintiff s suit to be owner of entire estate of deceased as Banamider was dismissed in circumstances. [P. 148] C & D

Mr. AH Muhammad Memon, Advocate for Plaintiff. Mr. Muhammad Zia Kiyani, Advocate for Defendants. Date of hearing : 5.12.2001.

judgment

This is a suit for declaration and injunction wherein the plaintiff has prayed for the following relief;

(a) Declaring that the said Mst. Farkhanda Khatoon deceased wife of the plaintiff was only an ostensible owner (benamidar) and that the plaintiff was always and is the real, beneficial and absolute owner of the following immovable and movable properties including the gold ornaments and cash :--

(i) Plot of land Bearing No. B-295 measuring 435-55 sq. yds. with house thereon situated in Block-L North Nazimabad, Karachi;

(ii) Un-official!y sub-divided Plot No. 101 measuring 500 sq. yds. forming part of Survey No. 304 situated in Deh Mehroon Tappo Malir Taluka and District Karachi known as Far hat Bagh;

3) Residential Plot No. 226 on sector 50-6 measuring 1136 sq.yds. situated in Korangi, Karachi;

(iv) all gold ornaments, cash and other valuable articles lying in Locker No. 87 in the United Bank Ltd, Taimuria Branch near Farkhanda Square, Block-L, North Nazimabad, Karachi;

(v) sum of Rs. 1,30,000/- given as friendly loan to Tafiq Nazeer and on receipt thereof the plaintiff is competent to give a valid discharge for the same;

(vi) Further declaring that the defendant as sister and/or legal heir of the said Mst. Farkhanda Khatoon has no right or title to receive any share or interest in the aforesaid immovable and movable properties including cash and gold ornaments and other valuable articles lying in the said Locker and the said loan of Rs. 1,30,OOO/-;

(vii) prohibiting and restrained the defendant by permanent injunction from making any claim adverse to the interest of the plaintiff in respect of the said immovable and movable properties including gold ornaments and cash etc. in the said Locker and the said sum of Rs. 1,30,000/-"

Briefly the facts of the case are that plaintiff belongs to a respectable zamindar family of District Nawabshah. The plaintiffs father died in the year 1948 leaving behind agricultural lands, cash and other movable and immovable properties which were inherited by the plaintiff and his brothers and sisters. It is the case of the plaintiff that in private partition agricultural lands measuring 107 acres and 24 ghuntas situated in Deh Chanari and Deh Kanghal Taluka Naushero Feroz District Nawabshah alongwith residential houses, gold ornaments ,and cash came to the share of plaintiff. It is further averred by the plaintiff that he had been studying in Karachi and in the year 1950 he was employed as a Sub-Inspector in Excise Department where he served for about two years and resigned. It is further asserted by the plaintiff that he maintains two residential houses, one 'at Darya Khan Mari and another at Karachi. During the period when the plaintiff was student he came into contact with a displaced family from Cawnpur (U.P. India) and the said family consisted of an elderly lady and her two grand-daughters named Mst. Farkhanda Khatoon and Rashida Khatoon. Mst. Farkhanda Khatoon was already married at the time of migration to Pakistan but was residing with her grand-mother because her husband did not maintain her properly. It is further contended by the plaintiff that in the year 1950 said Mst. Farkhanda Khatoon filed Suit No. 268 of 1950 for dissolution of her marriage which was decreed and her marriage was dissolved. It is further averred by the plaintiff that said grand mother was a kind hearted lady and treated him with affection and he used to help her in time of need. During this period the plaintiff became interested in Mst. Farkhanda Khatoon and requested the grand mother that he wanted to marry the said lady. The grand mother accepted the proposal after consulting Mst. FarkhandaKhatoon. The grand mother informed the plaintiff that she is not in a position to give ornaments, clothes or other dowery articles and ultimately on 21.3.1951 he was married with Mst. Farkhanda Khatoon and dower was fixed at Rs. 1100/-. Out of wedlock they have no child. It is further contended that Mst. Farkhanda Khatoon had no independent source of income and she did not get anything by way of dowery at the time of her marriage with the plaintiff and she had not abandoned any property in India as 'such she did not get any compensation in Pakistan. It is further contended by the plaintiff

that he being a man of means maintained his wife properly and purchased gold ornaments for her use in' her name though the never gifted the same to her. It is further asserted by the plaintiff that on or about 1960 he purchased from M/s. National Estates & Construction Co. Ltd House No. R-1010 measuring 120 sq. yds. in Block-9, Dastagir, F.B. Area, Karachi in consideration of Rs. 9.000/- and spent and additional sum of Rs. 7,000/- on improvement of the said house. The Coneveyance Deed was, however, executed benami in the name of said Mst. Farkhanda Khatoon but the real beneficial and absolute interest in the said house always vested in the plaintiff and said lady was an ostensible owner. The said house was sold in the year 1973. In the year 1964 the plaintiff purchased from the aforesaid Company Plot No. B-295 situated in Block-L North Nazimabad, Karachi from his income arising out of agricultural lands in the name of his wife. In the year 1952 the plaintiff also purchased benamiin the name of said Mst. Farkhanda Khatoon 500 sq.yds. agricultural land forming part of Survey No. 304 un-officially divided Sub-Plot No. 101 in Deh Mehroon Tappo Malir Taluka and District Karachi known as Far hat Bagh. It is further contended by the plaintiff that in the year 1971 he obtained from K.D.A. residential Plot No. 226 in Sector 50-C measuring 1136 sq. yds. situated in Korangi Karachi in the name of his wife as benami. It is submitted by the plaintiff that siad Mst. -Farkhanda Khatoon did not have any child, therefore, with her consent the plaintiff married Mst Irshad Begum on 26.4.1979. The plaintiff obtained Locker No. 87 in U.B.L. Taimura Branch near Farhana Square Block-L North Nazimabad, Karachi and kept all gold ornaments of his two wives therein and gave a friendly loan of Rs. 1,30,000/- to Tariq Nazeer and obtained receipt of the said loan in the name of Mst. Farkhanda .khatoon. The said lady died on 9.7.1983 and after her death the plaintiff applied to K.D.A. for mutation of Plot No. 226 Sector 50-C Korangi, Karachi which was mutated in his name on 7.12.1983, and Plot No. B-295 Block-L further the case of the plaintiff that during the life time of Mst. Farkhanda Khatoon and after her death he had always been and continues to be in actual physical possession of said immovable properties. In May, 1986 the plaintiff has been served with a notice of this Court whereby he came to know that defendant on or about 22.3.1986 filed S.M.A. No. 84 of 1986 and i claims half share in the properties. Since a closed in likely to be cast on the i absolute real and beneficial interest of the plaintiff in the said immovable i --""'- and movable properties, therefore, he has filed this suit with aforesaid j prayers. j The defendant has filed the written on 9.12.1986

1 (i) the suit as framed is not maintainable in law;

(ii) the suit is not maintainable in law as no right guaranteed or secured to the plaintiff under any law or settlement to deprive the defendant from her legal share in the properties of late Mst. Farkhanda Khatoon real sister of defendant, which is secured and guaranteed to the defendant under Muslim Law ;

(iii) the suit is hit by the provisions of estople.

Inspite of above legal pleas the defendant has generally denied the allegations levelled by the plaintiff. She has pointed out that out of two residential houses wherein the plaintiff resides Mst. Farkhanda Khatoon and purchased the house Bearing No. B-296 Block-L North Nazimabad, Karachi. It is further averred by the defendant that grand mother of her was a kind hearted lady and treated the plaintiff with affection and she also financial helped the plaintiff from time to time during her life time. It is also asserted by the defendant that at the time of marriage of Mst.Farkhanda Khatoon a large number of golden ornaments, clothes and other dowery articles were given as the plaintiff was not in a position to give anything to Mst. Farkhanda Khatoon due to his newly service. Mst. Farkhanda Khat,oon always used to live at Karachi in her own house and during the entire period of wedlock she visited on few occasions to Darya Khan. The properties referred to by the plaintiff were purchased by said Mst. Farkhanda Khatoon and the plea of benamidar is taken only to deprive her from her legal and just share in properties of her sister. The defendant filed S.M.A. No. 84 of 1986 wherein the plaintiff filed objections and said matter was disposed of 7.9.1986 with directions that the parties to move appropriate civil Court for adjudication of their respective rights. The plea of plaintiff being owner of Rs. 1,30,000/- given to Tariq Nazeer as friendly loan and other valuable golden articles are in fact be long to Mst. Farkhanda Khatoon as well as articles lying in the Locker. The mutation of some of the properties in the name of the plaintiff were due to collusion with the staff of department and were without any Court's order and are void illegal.

Out of the above pleadings the following issues were settled by the Court on 29.3.1987;

(i) Whether the property in suit was purchased by the plaintiff in the name of deceased MsLFarkhanda Khatoon and was a benami transaction ?

(ii) If not, whether Mst.Rashida Khatoon will inherit the same from the deceased ?

(iii) Whether the suit is maintainable in law ?

In support of his case the plaintiff examined himself and produced certain documents of properties which are all in the name Mst.Farkhanda khatoon. The defendant filed her affidavit in evidence and was partly cross-examined in Court, on 15.4.1999. On 5.5.2000 Mr. Abdul Wahid, Advocate was appointed Commissioner to record further evidence of Mst. Rashida Khatoon as she was not keeping well and unable to attend this Court for cross-examination. Thereafter her cross was completed on 13.5.2000. The defendant also examined Muhammad Zubair Shamsi and Tariq Nazeer, I have heard the learned counsel for the plaintiff and defendant at length and have also perused the evidence carefully. My findings on the above issues are as follows :

ISSUE NO. 1.

The burden to prove this issue heavily lies on the plaintiff whether the properties in suit were purchased by him as benami in the name of his wife Mst, Farkhanda Khatoon. The documents produced by the plaintiff were all in the name of Mst.Farkhanda Khatoon. He has not produced anything on record to show that the price of land were paid by him out of own resources. In the case of Musheer Ahmed Pesh Imam vs. Razia Omer (1991 CLC 678) it was observed as follows :

"The burden is on the plaintiff to show that he has aprima facie case existing in his favour to the effect that the transaction involved in the suit was a Banami transaction; and that the plaintiff was the real owner while the defendant was only ostensible owner. In order to substantiate the above, the plaintiff is required to show at least two facts; firstly, that the purchase price was paid by the plaintiff from out of his resources and that he had appropriated or had a control over the usufrust of the property in dispute."

In the present case except the documents of the property the plaintiff has not filed any proof to show that he had paid the amount as benami. In his cross-examination he has stated as follows ;

"I was serving in Excise Department at karachi as Sub-Inspector and my salary was about Rs. 250/- It is a fact that I have paid occupancy charges as well as ground rent in respect of Plot No. 226 on 11.11.1983 in respect of Plot No. B-295 on 9.1.1984. The locker in UBL was taken by my wife. It is a fact that I have stated in my petition that expect myself none else is legal heir of my wife Farkhanda. It is a fact that in the said petition I have admitted 50% share of defendant in the suit.

From the above it is abundantly clear that the plaintiff has made contradictory statements. My finding on this is in the negative.

ISSUE NO. 2.

It is a fact that defendant is real sister of Mst. Farkhanda Khatoon who dies issueless and the plaintiff was the only heir being husband of deceased. The Defendant ws also residing with the deceased till her death, and belongs to Sunni Hanafi Muslim Law. She is entitled to her share as per said Sunni law. My finding on the aforesaid issue in the affirmative.

ISSUE NO. 3.

In view of my above findings and the evidence on record I feel that the plaintiff has not been able to prove his case of benamidar and his suit is to be dismissed.

For the foregoing reasons the suit of the plaintiff is dismissed with no order as to costs.

(A.A.)Suit dismissed.

PLJ 2002 Karachi 148

[Original Civil Jurisdiction]

Present: ZAHID KURBAN ALVI, J.

DIN MUHAMMAD WAGAN-Plaintiff

versus

Mst. RASHIDA KHATOON (deceased) through HIS LEGAL. REPRESENTATIVES-Defendants

Suit No. 413 of 1986, decided on 14.1.2002.

Specific Relief Act, 1877 (1 of 1877)--

—-S. 42-Benami transaction-Burden to prove that property in question, was purchased by plaintiff from his own resources in the name of his wife was on him-Documents, produced hy plaintiff were all in the name of his deceased wife-Plaintiff has not produced anything on record to show that price of land/property was paid hy him out of his own resources-Defendant being real sister of deceased was entitled to inherit 1/2 share of property while the rest would go to plaintiff as her husband.

[Pp. 152A, B, C & D

Mr. Ali Muhammad Memon, Advocate for Plaintiff. Mr. Muhammad Zia Kiyani, Advocate for Respondents. Date of hearing: 5.12.2001.

judgment

Zahid Kurban Alvi, J.-This is a suit for declaration and injunction wherein the plaintiff has prayed for the following relief;

(a) Declaring that the said Mst. Farkhanda Khatoon deceased wife of the plaintiff who only an ostensible owner (benamidar) and that the plaintiff was always and is the real, beneficial and absolute owner of the following immovable and movable properties including the gold ornaments and cash:

(i) Plot of land Bearing No. B-295 measuring 435-55 sq.yds. with house thereon situated in Block-L North Nazimabad, Karachi;

(ii) Un-officially sub-divided Plot No. 101 measuring 500 sq.yds. forming part of Survey No. 304 situated in Deh Mehroon Tappo Malir Taluka and District Karachi known as Farhat Bagh;

(iii) Residential Plot No. 226 on Sector 50-6 measuring 1136 sq.yds. situated in Korangi, Karachi;

(iv) all gold ornaments, cash and other valuable articles lying in Locker No. 87 in the United Bank Ltd, Taimuria Branch near Farhana Square, Block-L, North Nazimabad, Karachi;

(v) sum Rs. 1,30,000/- given as a friendly loan to Tariq Naze and on receipt thereof the plaintiff is competent to give ti valid discharge for the same;

(vi) Further declaring that the defendant as sister and/or legal heir of the said Mst. Farkhanda Khatoon has no right or title to receive any share or interest in the aforesaid immovable and movable properties including cash and gold ornaments and other valuable articles lying in the said Locker and the said loan of Rs. 1,30,000/-;

(vii) prohibiting and restraining the defendant by permanent injunction from making any claim adverse to the interest .of the plaintiff in respect of the said immovable and movable properties including gold ornaments and cash etc. in the said Locker and the said sum of Rs. 1,30,000/-."

Briefly the facts of the case are that plaintiff belongs to a respectable Zamindar family of District Nawabshah. The plaintiffs father was died ia the year 1948 leaving behind agricultural lands, cash and other movable and immovable properties which were inherited by the plaintiff and his brothers and sisters. It is the case of the plaintiff that in private partition agricultural lands measuring 107 acres and 24 ghuntas situated in Deh Chanari and Deh Kanghal Taluka Naushero Feroz District Nawabshah alongwith residential houses, gold ornaments and cash came to the share of plaintiff. It is further averred by the plaintiff that he had been studying in Karachi and in the year 1950 he was employed as a Sub-Inspector in Excise Department where he served for about two years and resigned. It is further asserted by the plaintiff that he maintains two residential houses, one at Darya Khan Mari and another at Karachi. During the period when the plaintiff was student he came into contact with a displaced family from Cawnpur (U.P. India) and the said family was consisted of an elderly lady and her two grand-daughters named Mst. Farkhanda Khatoon and Rashida Khatoon. Mst. Farkhanda Khatoon was already married at the time of migration to Pakistan but was residing with her grand-mother because her husband did not maintain her properly. It is further contended by the plaintiff that in the year 1950 said Mst. Farkhanda Khatoon filed Suit No. 268 of 1950 for dissolution of her marriage which was decreed and her marriage was dissolved. It is further averred by the plaintiff that said grand-mother was a kind hearted lady and treated him w&h affection and he used to help her in time of need. During this period the plaintiff became interested in Mst. Farkhanda Khatoon and requested the grand mother that he wanted to marry the said lady. The grand mother accepted the proposal after consulting Mst. Farkhanda Khatoon. The grand mother informed the plaintiff that she is not in a position to give ornaments, clothes or other dowery articles and ultimately on 21-3-1951 he was married with Mst. Farkhanda Khatoon and dower was fixed at Rs, 1100/-.Out of wedlock they have no child. It is further contended that Mst. Farkhanda Khatoon had no independent source of income and she did not get anything any way of dowery at the time of here marriage with the plaintiff and she had not abandoned any property in India as such she did not get any compensation in Pakistan. It is further contended by the plaintiff that he being a man of means maintained his wife properly and purchased gold ornaments for her use in her name though he never gifted the same to her. It is further assorted by the plaintiff that on or about 1960 he purchased from M/s National Estates & Construction Co. Ltd. House No. R. 1010 measuring 120 sq. yds. in Block-9, Dastagir, F.B. Area, Karachi in consideration of Rs. 9,000/- and spent an additional sum of Rs. 7,000/- on improvement of the said house. The Conveyance Deed was, however, executed benami in the name of said'Msf. Farkhanda Khatoon but the real beneficial and absolute interest in the said house always vested in the plaintiff and said lady was an ostensible owner. The said house was sold in the year 1973. In the year 1964 the plaintiff purchased from the aforesaid Company Plot No. B-295 situated in Block-L orth Nazimabad, Karachi from his income arising out of agricultural lands in the name of his wife. In the year 1952 the plaintiff also purchased benami in the name of said Mst. Farkhanda Khatoon 500 sq.yds. agricultural land forming part of Survey No. 304 un-officially divided S b-Plot No. 101 in Deh Mehroon Tappo Malir Taluka and District Karachi known as Farhat Bagh. It is further contended by the plaintiff that in the year 1971 he obtained from K.D.A. residential Plot No. 226 in Sector 50-C measuring 1136 sq. yds. situated in Korangi Karachi in the name of his wife as benami. It is submitted by the plaintiff that said Mst. Farkhanda Khatoon did not have any child, therefore, with her consent the plaintiff married Mst. Irshad Begum on 26.4.1979. The plaintiff obtained Locker No. 87 in U.B.L. Taimura Branch near Farhana Square Block-L North Nazimabad, Karachi and kept all gold ornaments of his two wives therein and gave a friendly loan of Pvs. 1,30,000/- to Tariq Nazeer and obtained receipt of the said loan in the name of Mst. Farkhanda Khatoon. The said lady died on 9-7-1983 and after her death the plaintiff applied to K.D.A. for mutation of Plot No. 226 Sector 50-C Korangi, Karachi which was mutated in his name on 7-12-1983, and Plot No. B-295 Block-L North Nazimabad, Karachi w as also mutated in his name on 10-1-1984. It is further the case of the plaintiff that during the life time of Mst. Farkhanda Khatoon and after her death he had always been and continues to be in actual physical possession of said immovable properties. In May, 1986 the plaintiff has been served with & notice of this Court whereby he came to know that defendant on or about 22-3-1986 filed S.M.A. No. 84 of 1986 and claims half share in the properties. Since a cloud is likely to be cast on the absolute real and beneficial interest of the plaintiff in the said immovable and movable properties, therefore, he has filed this suit with aforesaid prayers. " The defendant has filed the written on 9-12-1986 taking the following legal pleas;

(i) the suit as framed is not maintainable in law;

(ii) the suit is not maintainable in law as no right guaranteed or secured to the plaintiff under any law or settlement to deprive the defendant from her legal share in the properties of late Mst. Farkhanda Khatoon real sister of defendant, which is secured and guaranteed to the defendant under Muslim Law;

(iii) the suit is hit by the provisions of estoppel.

Inspite of above legal pleas the defendant has generally denied the allegations levelled by the plaintiff. She has pointed out that out of two residential houses wherein the plaintiff resides. Mst. Farkhanda Khatoon had purchased the house Bearing No. B-296 Block-L North Nazimabad, Karachi. It is further averred by the defendant that grand mother of her was a kind hearted lady and treated the plaintiff with affection and she also financially helped th£ plaintiff from time to time during her life time. It is also asserted by the defendant that at the time of marriage of Mst. Farkhanda Khatoon a large number of golden ornaments, clothes and other dowery articles were given as the plaintiff was not in a position to give anything to Mst. Farkhanda Khatoon due to his newly service. Mst. Farkhanda Khatoon always used to live at Karachi in her own house and during the entire period of wedlock she visited on few occasions to Darya Khan. The properties referred to by the plaintiff were purchase by said Mst. Farkhanda Khatoon and the plea of benamidar is taken only to deprive her from her legal and just share in properties of her sister. The defendant filed S.M.A. No. 84 of 1986 wherein the plaintiff filed objections and said matter was disposed of 7-9-1986 with directions that the parties to move appropriate Civil Court for adjudication of their respective rights. The plea of plaintiff being owner of Rs. 1,30,000/- given not Tariq Nazeer as friendly loan and other valuables golden articles are in fact belong to Mst.Farkhanda Khatoon as well as articles lying in the Locker. The mutation of some of the properties in the name of the plaintiff were due to collusion With the staff of department and were without any Court's order and are void illegal.

Out of the above pleadings the following issues were settled by the Court on 29-3-1987;

(i) Whether the property in suit was purchased by the plaintiff in the name of deceased Mst.Farkhanda Khatoon and was a benami transaction?

(ii) If _not, whether Mst.Rashida Khatoon will inherit the same from the deceased?

(iii) Whether the suit is maintainable in law?

In support of his case the plaintiff examined himself and produced certain documents of properties which are all in the name of Mst. Farkhanda Khatoon. The defendant filed her affidavit in evidence and was partly cross examined in Court, on 15-4-1999. On 5-5-2000 Mr. Abdul Wahid, Advocate was appointed commissioner to record further evidence of Mst. Rashida Khatoon as she was not keeping well and unable to attend this Court for cross-examination. Thereafter her cross was completed on 13-5-2000. The defendant also examined Muhammad Zubair Shamsi and Tariq Nazeer. I have heard the learned counsel for the plaintiff and defendant at length and have also perused the evidence carefully. My findings on the . above issues are as follows:

ISSUE No. 1.

The burden to prove this issue heavily lies on the plaintiff whether the properties in suit were purchased by him as benami in the name of his wife Mst. Farkhanda Khatoon. The documents produced by the plaintiff were all in the name of Mst. Farkhanda Khatoon. He has not produced anything on record to show that the price of land were paid by him out of own resources. In the case of Musheer Ahmed Pesh Imam vs. Razia Omer (1991 CLC 678) it was observed as follows;

"The burden is on the plaintiff to show that he has a prima facie case existing in his favour to the effect that the transaction involved in the suit was a Benami transaction; and that the plaintiff was the real owner while the defendant was only ostensible owner. In order to substantiate the above, the plaintiff is required to show at least two facts; firstly, that the purchase price was paid by the plaintiff from out of his resources and that he had appropriated or had a control over the usufruct of the property in dispute."

In the present case except the documents of the property the plaintiff has not filed any proof to show that he had paid the amount as benami.In his cross- B examination he has stated as follows;

"I was serving in Excise Department at Karachi as Sub-Inspector and my salary was about Rs. 250/- It is a fact that I have paid occupancy charges as well as ground rent in respect of Plot No. 226 on 11-11-1983 in respect of Plot No. B-295 on 9-1-1984. The locker in UBL was taken by my wife. It is a fact that I have stated in my petition that except myself none else is legal heir of my wife Farkhanda. It is a fact that in the said petition I have admitted 50% share of defendant in the suit.

From the above it is abundantly clear that the plaintiff has made contradictory statements. My finding on this is in the negative.

ISSUE No. 2.

It is a fact that defendant is real sister of Mst. Farkhanda Khatoon who dies issueless and the plaintiff was the only heir being husband of deceased. The defendant was also residing with the deceased till her death, and belongs to Sunni Hanafi Muslim Law. She is entitled to her share as per said Sunni Law. My finding on the aforesaid issue in the affirmative.

ISSUE No. 3.

In view of my above findings and the evidence on record I feel that the plaintiff has not been able to prove his case of benamidar and his suit is ~ to be dismissed.

For the foregoing reasons the suit of the plaintiff is dismissed with no order as to costs.

(A.A.)Suit dismissed.

PLJ 2002 Lahore 105 (DB)

Present: ch. ijaz ahmad and saved zahid hussain, JJ.

M/s. TRADE LINES, 41-A, LAWRENCE ROAD, LAHORE through its MANAGING PARTNER and 5 others-Petitioners

versus

BANK OF PUNJAB and another-Respondents

W.P. No. 23190 of 1998, decided on 18.6.2002.

(i) Banking Tribunal Ordinance, 1984 (LVIII of 1984)--

—-S. 9-Constitution of Pakistan (1973), Art. 199-Suit for recovery of specified amount with liquidated damages decreed against defendants Validity-Petitioners had alternate remedy to file appeal before High Court under S. 9 of Banking Tribunal ordinance 1984 which admittedly was not filed-Petitioners did not attach reply of show-cause notice alongwith writ petition, therefore, they did not approach Court with clean hands-One who seeks, equity must come with clean hands-Petitioners having concealed material facts from Court, High Court was not inclined to exercise its discretion in favour of petitioners.[P. 108] A

(ii) Banking Tribunal Ordinance, 1984 (LVIII of 1984)--

—S. 9-Constitution of Pakistan (1973), Art. 199-Petitioners filed various applications before Banking Tribunal so that decree passed in favour of respondent bank be frustrated which otherwise had attained finality- Constitutional petition against judgment and decree of Banking Tribunal was not maintainable being without merit. [P. 108] B

1969 SCMR 141; 1993 SCMR 1996; PLD 1973 SC 236; 1998 SCMR 1462;

PLD 1996 Lahore 672; 1996 CLC 1378; PLD 1992 SC 723; PLD 2002 SC 167

and PLD 1996 Lah. 542 ref.

Mr. Azmat Saecd, Advocate for Petitioners.

Mr. Ahmad Shuja Baba, Advocate for Respondents.

Date of hearing: 18.6.2002.

order

Ch. Ijaz Ahmad, J.-The brief facts out of which the present writ petition arises are that respondent bank filed a suit against the petitioners before the Banking Tribunal under the provisions of Banking Tribunal Ordinance, 1984 for the recovery of Rs. 11,180,742/- alongwith liquidated damages @ 20%. The Banking Tribunal issued show-cause notice to the petitioners under the provisions of the aforesaid Ordinance. Since the reply filed by the petitioners was found to be time-barred the learned Tribunal proceeded to decree the suit of the Bank videjudgment and decree dated 23.5.1995. The petitioners filed the following three applications before the Banking Tribunal:-

(1) Application under Section 6(5) of the Banking Tribunals Ordinance;

(2) Application under Order 27-A Rule 1 read with Section 151 CPC; and

(3) Application under Section 12(2) CPC.

The Banking Tribunal dismissed the aforesaid applications by one consolidated order dated 13.10.1998. The petitioners being aggrieved filed this writ petition.

2.The learned counsel for the petitioners submits that Banking Tribunal was-constituted by the Federal Government under the provisions of the Constitution of Islamic Republic of Pakistan. He relied upon Item No. 28 of the 4th Schedule of the Constitution of Islamic Republic of Pakistan, 1973. He submits that Federal Government has only power to frame the law with regard to the matters mentioned in the said item qua the corporations and banks controlled by the Federation. The Punjab Bank is Provincial Corporation, which was constituted under the name and style of Bank of Punjab, 1989, therefore Banking Tribunal has no jurisdiction to take cognisance of the matter, that this question of law was not adverted to by the learned Banking Tribunal. In support of his contention he relied upon Imran us. Presiding Officer, Punjab Special Court No. VI, Multan and 2 others (PLD 1996 Lahore 542). He further urges that petitioners challenged the vires of the Ordinance before the Tribunal, therefore, the learned Tribunal had erred in law by not issuing notice to the Attorney General of Pakistan and the Advocate General of Punjab under Order 27-A Rule 1 CPC, therefore, the impugned order is not sustainable in the eyes of law. In support of his contention he relied upon the follqwing judgments: Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others vs. Aftab Ahmad Khan Sherpao and others (PLD 1992 S.C. 723), and Federal Public Service Commission and others vs. Syed Muhammad Afaq and others (PLD 2002 S.C. 167). He further submits that Banking Tribunal has erred in law to decree the suit against the petitioners and found the reply of the petitioners as time-barred is not valid in the- eyes of law. In support of his contention he relied upon Messrs Indus Match Co. Ltd. vs. United Bank Ltd. and another (1996 CLC 1378).

1. The learned counsel for the respondents submits that writ petition is not maintainable, as the petitioners have alternate remedy to file appeal before this Court, which would have been heard by the Division Bench of this Court. He further urges that decree passed by the learned Banking Tribunal dated 23.5.1995 had attained finality in view of Section 10 of the Ordinance. The learned counsel for the petitioners in rebuttal submits that the impugned order and decree are without lawful authority, therefore, writ petition is maintainable.

2. When the learned counsel for the petitioners was asked whether the petitioners had taken the point of jurisdiction in the reply submitted by them before the Banking Tribunal, in reply to show-cause notice, he submits that perhaps petitioners have taken the said stand in the reply.

3. We have considered the contentions of the learned counsel for the parties and pemsed the record.

4. The judgment relied upon by the learned counsel for the petitioners is distinguishable on facts and law as the provisions of Suppression of Terrorist Activities (Special Court) Act XV of 1975, was the subject matter in that case. Whereas provisions of the Banking Companies Recovery of Loans Ordinance, 1979 and provisions of Banking Tribunals Ordinance (LVIII of 1984) were considered by the Full Bench of this Court in Messrs Chenab Cement Product (Pvt.) Ltd. and others, vs. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672). The judgment and decrees passed by the Banking Tribunals before the judgments of the Full Bench were saved on the well known principle of past and closed transaction. It is pertinent to mention hear that decree was passed on 23.5.1995 whereas the Full Bench of this Court decided the questions of law on 11.7.1996 in Messrs Chenab Cement Product (Pvt.) Ltd. case (PLD 1996 Lahore 672) (supra).

5. The petitioners had alternative remedy to file appeal before the Court under Section 9 of the aforesaid Ordinance which admittedly was not filed. Coupled with the fact the petitioners did not attach reply of the show-cause notice alongwith this writ petition. This fact brings the case of the petitioners in the area that the petitioners did not approach this Court with clean hands. It is settled principle of law that he who seeks equity must come with clean hands. Petitioners have concealed the material facts from this Court, therefore, we are not inclined to exercise our discretion in favour of the petitioners as per the law laid down by the Hon'ble Supreme Court of Pakistan in the following judgments. Abdur Rashid vs. Pakistan and others (1969 SCMR 141), Messrs Grain Systems (Pvt.) Ltd. and 10 others vs. Agricultural Development Bank (1993 SCMR 1996), NawabSyed Raunaq Ali etc. vs. Chief Settlement Commissioner and others(PLD 1973 S.C. 236), and Rana Muhammad Arshad vs. Additional Commissioner (Revenue), Multan Division and others (1998 SCMR 1462). It appears that the petitioners filed aforesaid applications before the Banking Tribunal so that the decree passed in favour of the respondent bank be frustrated, which otherwise had attained finality under the law.

6. In view of what has been discussed above, this writ petition has not merit and the same is dismissed.

(A.A) Petition dismissed.

PLJ 2002 Lahore 170 (DB)

Present: maulvi anwarul haq and parvez ahmad, JJ. MUHAMMAD LATIF-Appellant

versus MUHAMMAD LATIF and another-Respondents

R.F.A. No. 176 of 1993, heard on 13.8.2002 (i) Specific Relief Act, 1877 (I of 1877)--

—-S. 12--Suit for specific performance of agreement to sell-Defendant (vendee) had taken plea in his written statement that he was bona fide'purchase for consideration without notice of sale agreement in question- Plaintiff was fully aware of plea taken by defendant in his written statement which plea was incorporated in issue to that effect-Onus of such issue which was in negative, stood discharged by said plea ofdefendant and his statement in witnesses box-Plaintiff, however, did not lead any evidence either in affirmative or in rebuttal thit plaintiff had notice of agreement to sell-Defendant's statement in cross-examination that he was never told by plaintiff about agreement to sell-Such statement was sufficient to shift burden on plaintiff which he never discharged-Jugmente and decree in favour of plaintiff on the basis of agreement to sell was set aside. [P. 171] A

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

\ —S. 12-Civil Procedure Code (V of 1908), S. 96-Defendant (owner) neither

contested suit nor did he put in appearance in Court .despite service- Defendant (owner) had as per proof on record received specified amount from plaintiff under agreement in question-Jugment and decree of Trial Court in favour of plaintiff was set aside and instead decree for recovery of amount in question, was passed in plaintiffs favour against defendant owner. [P. 171] B

Mr. Alamgir, Advocate for Appellant.

Ch. IjazAkbar, Advocates for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing: 13.8.2002.

judgment

" Maulvi Anwarul Haq, J.--On 28.3.1989 Respondent No. 1 filed a suit against the appellant and Respondent No. 2. In the plaint it was stated that land measuring 37 Kanals 18 Marias described in Para 1 of the plaint was owned by Respondent No. 2 who agreed to sell the same to Respondent No. 1 vide agreement dated 17.10.1988. The consideration was settled at Rs. 4,50,000/- and the entire amount was paid on the said date. A general power of attorney was also executed in favour of Respondent No. 1 and was registered on 17.10.1988; that in breach of the said agreement, Respondent

No. 2 proceeded to sell the land to the appellant vide registered sale-deed . dated 8.11.1988 which was later corrected on 28.11.1988. This sale-deed was stated to be illegal and void being without consideration and ineffective upon the rights of Respondent No. 1. With these averments a decree for specific performance of the agreement to sell and to declare the said sale-deeds to be void, was prayed for. The suit was contested by the appellant who took the plea that he is bona fide purchaser for value and without notice and that he had no knowledge of the said agreement. Following issues were framed by the learned trial Court:-

1. Whether the plaintiff has no cause of action to file this suit? OPD.

2. Whether the suit of the plaintiff is collusive and frivolous and as such the defendant is entitled to special costs u/S. 35-A CPC? OPD.

3. Whether the Defendant No. 2 is bona fide purchaser for consideration without notice of the suit land, if so, to what effect/ OPD. 2.

4. Whether the plaintiff has entered into an agreement to sell on 17.10.1988 with the Defendant No. 1 about the disputed land for consideration of Rs. 4,50,000/- out of which Rs. 4,50,000/- were paid as earnest money? OPP.

5. Whether the sale-deed dated 8.11.1988 in favour of the Defendant No. 2 is without consideration, illegal, void and not binding on rights of the plaintiff? OPP.

6. If issues mentioned above are proved in affirmative whether the plaintiff is entitled to decree for specific performance of contract? If so, on what terms and conditions? OPP.

7. Relief.

Evidence of the parties was recorded. All the issues were answered against the appellant and the suit was decreed videjudgment and decree dated 19.7.1993.

1. Mr. Alamgir, learned counsel for the appellant has only questioned the findings on Issue No.

2. According to the learned counsel whereas the appellant had pleaded and also stated on oath that he was not aware of the agreement, there is no plea to the contrary and no evidence to show that he had the knowledge. According to the learned counsel evidence on record has been misread by the learned trial Court.

3. Ch. Ijaz Akbar, Advocate, learned counsel for the Respondent No. 1, on the other hand, has tried to argue that the onus was upon the appellant and that he had failed to discharge the same.

4. We have gone through the trial Court's records, with the assistance of the learned counsel for the parties. We have already referred to the pleadings of the parties in some detail above. According to the learned counsel for the appellant no plea was taken in the plaint that the appellant was aware of the agreement executed by Respondent No. 2 in favour of Respondent No. 1 at the time he purchased the land from him. The written statement was filed in Court on 10.3.1990 and in reply to Para 4 it was categorically stated by the appellant that he had no knowledge of any agreement between the respondents and that he had purchased the land for valuable consideration without notice. The suit remained pending till 19.7.1993. No attempt was made to file a rejoinder or some additional or amended pleadings with the leave of the Court. Muhammad Latif, Respondent No. 1 appeared as P.W. 3. There is not a word in his entire statement that the appellant was aware of the agreement. Noor Muhammad is PW. 2. He has accused Respondent No. 2 of fraud but in his cross-examination he has stated that he does not know the appellant and had never talked to him about the said agreement. Now appellant appeared as D.W. 3. He opted to remain silent on the issue in the course of his examination-in-chief. However, to the misfortune of Respondent No. 1 the cross-examiner saw to it that the witness states that he was not aware of the agreement. In fact the relevant suggestion was answered as follows:

Rs 4 50

Now the tenor of the suggestion shows that it was Latif i.e. Respondent No. 1 who had informed the appellant of the said agreement. The suggestion was denied. Needless to state that Respondent No. 1 himself neither pleaded nor stated in the witness-box that he had informed the appellant of the agreement or for that matter the appellant was in any manner aware of the agreement at the time of sale in his favour. Mr. Alamgir, Advocate has drawn our attention to a judgment of the Hon'ble Supreme Court in the case of Mst. Surya Begum and others vs. Mst. Subhan Begum and'others (1992 SCMR 652). Mr. Justice Rustam S. Sidhwa (as his Lordship then was) thus observed in his leading opinion at page 659 of the report:-

"Since in civil suits an issue is to be decided by preponderance of evidence, the initial burden would be on the plaintiff to prove his prior contract which if discharged, the burden of proving the subsequent bona fide transfer for value without notice would be on the party alleging it. Very little evidence and in certain circum­stances a mere denial regarding want of knowledge of the earlier contract would discharge this burden and shift the onus on the plaintiff to prove that the subsequent transferee had the notice of the earlier contract. See Ramdeni Singh vs. Gumani Raut (AIR 1929 Patna 300 at 301) and Mst. Khairul Nisa's case" (PLD 1977 SC 25).

5 Applying the said test to the contention being raised by the learned counsel for the respondents we find that the question of burden would be immaterial in the present case. Respondent No. 1 was fully aware of the plea taken by the appellant in his written statement and which was incorporated in Issue No. 3, when the trial commenced. The onus of the issue, which for all purposes was in the negative, stood discharged by the said plea and subsequent statement in the witness-box. Respondent No. 1, on the other hand, did not lead any evidence either in affirmative or in rebuttal that the appellant had the notice of the agreement. We may here refer to the finding recorded by the learned trial Court on Issue No. 3. Now the learned trial Court has duly noted that in his cross-examination the appellant did state that he was never told by Respondent No. 1 about the said agreement. To our mind, this was sufficient to shift "the burden on to Respondent No. 1. However, the learned trial Court opted to observe that no evidence has been led on the issue. This may be true of Respondent No. 1 but not of the appellant. We, therefore, reverse the findings recorded by the learned trial Court on Issue No. 3 and answer the same in favour of the appellant.

1. We may note that in his pleadings as also in the witness box Respondent No. 1 as also his witnesses have complained that it was the Respondent No. 2 who has played the fraud. There is not even an allegation against the appellant that he has committed any fraud or was a party to the said alleged fraud on record. Respondent No. 2 did not opt to contest the suit. He has also not put in appearance in this Court despite service. It has been proved on record that Respondent No. 2 had received a sum of Rs. 4,50,000/- from Respondent No. 1 under the agreement dated 17.10.1988. This being so, we allow this R.F.A., set aside the judgment and decree dated 19.7.1993 of the learned trial Court and instead pass a decree for recovery of the said amount of Rs. 4,50,000/- in favour of Respondent No. 1 (plaintiff) and against Respondent No. 2 (Defendant No. 1 in the suit). No orders as to costs.

(A.A) Appeal accepted.

PLJ 2002 Lahore 942

Present:MUHAMMAD SAIR ALT, J.

NAZIR AHMAD and 8 others-Appellants

Versus

Mst. MAJEEDA BEGUM and 12 others-Respondents

F.A.O. No. 173/2001, heard on 25.2.2002.

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

—O.K, R. 9, O.VII, R. 11 & O.XLIII, R. 1-Dismissal of plaintiffs application for restoration of suit as also rejection of plaint on the application of defendants-Conceding statement of defendant against rejection of plaint to the effect that plaintiffs appeal to the extent of rejection of plaint be accepted and that their (defendants) application for rejection of plaint may be deemed to have been withdrawn-On basis of conceding statement of defendants and withdrawal of application under O.VII, R. 11 C.P.C., application for rejection of plaint would stand dismissed as withdrawn and observations qua rejection of plaint in impugned order would stand deleted and modified. [P. 943] A

judgment

Through this F.A.O., appellants have only challenged second part of the impugned order dated 1.3.2001 by which, after dismissal of plaintiffs application for restoration of the suit, plaint was also rejected upon application of Respondents Nos. 2 to 5. The appellants before this\ Court were defendants in the suit, but claimed to be aggrieved of the rejection of plaint.

1. Learned counsel for Respondents Nos. 2 to 5 has appeared at pre­admission stage and conceded that the impugned order dated 1.3.2001 was illegal to the extent of rejection of the plaint. It is also stated by the learned counsel for the said respondents that application for rejection of plaint under Order VII Rule 11 CPC was moved by Respondents Nos. 2 to 5 and the same be dismissed as withdrawn in view of non-restoration rf tn« iuit through impugned order. It is further stated that respondents othef than Respondents Nos. 2 to 5 are not relevant to the controversy relating to rejection of plaint because application thereto was only filed by Respondents Nos. 2 to 5. As such, presence of other respondents is not essential.

Learned counsel for the appellants concedes that respondents other than Respondents Nos. 2 to 5 are not relevant.

1. In view of the conceding statement of the learned counsel for Respondents Nos. 2 to 5 and withdrawal of application under Order VII Rule 11 CPC, the said application for rejection of plaint shall stand dismissed as withdrawn and the observations qua the rejection of plaint in the impugned order, dated 1.3.2001, shall stand deleted and modified. This first appeal is, therefore, accepted in above terms against rejection of plaint. Above observed modification in the impugned order dated 1.3.2001 shall stand incorporated. Parties are left to bear their own costs.

(A.A.) Order accordingly.

PLJ 2002 Lahore 943

Present:mrs. nasira iqbal, J.

Mrs.HUMA AKHTAR-Petitioner versus

STATION HOUSE OFFICER P.S. SANDA, LAHORE and 2 others-Respondents

W.P. No. 600/2002, decided on 28.2.2002.

Constitution of Pakistan (1973)--

—-Art. 199--Petitioner being sui-juris of 22 years and .Graduate had married of her own Accord against the wishes of her father-Petitioner on Court's query has reiterated that she wishes to go with her husband-Petitioner being 22 years of age cannot be compelled to go with her father- Petitioner was at liberty to go with her husband-S.H.O. of. Concerned Police Station was directed not to interfere in matrimonial life of petitioner. [P. 944] A

order

Petitioner Huma Akhtar had filed this petition with a prayer that Respondent No. 1 S.H.O. Police Station Sanda, Lahore; be directed not to harass her and her spouse Umar Farooq. On the first date of hearing, learned counsel for the petitioner ,had stated that the petitioner had gone back to the house of her father and therefore, she could not appear on the said date. Subsequently, an application was filed on 26.2.2002 by Malik Muhammad Ashraf, Advocate, seeking withdrawal of the petition on the ground that it had not been filed by-Huma Akhtar. However, Huma Akhtar who was present in Court on 26.2.2002 repudiated the contents of the application and stated that she wishes to pursue the petition which has been filed on her behalf. She was lodged in Darulamanfor 2 days at her own request in order that she had opportunity to re-consider the matter and also to make her husband Umar Farooq available.

2.Today, Huma Akhtar, Umar Farooq and Muhammad Hussain father of Huma Akhtar are all present. On Court's query Huma Akhtar has again reiterated that she wishes to go with Umar Farooq. Admittedly, she is 22 years of age, she is graduate and she has entered into marriage with n Umar Farooq, therefore, she cannot be compelled to go with her father. She is at liberty to go with Umar Farooq and Respondent No. 1 S.H.O. Police Station Sanda, Lahore is directed not to interfere in their matrimonial life if they are not required in any criminal case. Disposed of.

1. Umar Farooq undertakes that he shall pay the expenses of the Bailiff as well as boarding and lodging of Huma Akhtar in Darul Aman for two days.

(A.A.) Order accordingly.

PLJ 2002 Lahore 944

Present: maulvi anwar-ul-haq, J.

MUHAMMAD ASLAM (deceased) through his Legal Heirs, and another-Appellants

versus

ABDUL HAQ and 3 others-Respondents R.S.A. No. 44 of 2000, heard on 2.4.2002.

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

—O. 1, R. 10 Suit against added party was to be deemed to have been instituted only when such party was impleaded. [P.947] A

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

—O.XLJ, Rr. 31 & 25--Question of law could have been raised in First Appeal as also before High Court in Second Appeal and had to be decided in the light of evidence on record after properly reading and appraising the same-Courts below having failed either to read or appraise evidence on record, High Court had no option but to remand the case to trial Court after framing additional issues-Trial Court was directed to record such evidence on additional issues as parties wanted to produce and decide the case afresh after reading and appraising entire evidence on record. [Pp,947&948]B,C

judgment

On 3.2.1982 the Respondents Nos. 1 to 3 filed a suit against the Appellant No. 2. In the plaint it was stated that the Appellant No. 2 and his "" brother Respondent No. 4 had agreed to sell the suit land described in the head note of the plaint to the Respondents Nos. 1 to 3 (hereinafter to be referred as plaintiffs). The consideration was settled as Rs. 1,81,000/-. A sum of Rs. 36,000/- was paid as earnest money and agreement was executed on 27.7.1980 and possession was delivered. Thereafter Rs. 30,000/- were received by Appellant No. 2 on 30.9.1981 against receipt and balance amount was to be paid by 31.3.1981 when a sale-deed was to be registered; that the plaintiffs approached the Appellant No. 2 and his brother calling upon them to perform their part of agreement but they did not turn up before the Sub- Registrar Bhakkar, who issued a certificate to the effect; that thereafter the plaintiffs convened a Jirgga when Appellant No. 2 and is brother were paid a sum of Rs. 1,00,000/- out of the balance amount of the consideration on 10.10.1981; that both the brothers received the amount in equal share and promised to complete sales within two days; that on 12.10.1981 on the demand of the Appellant No. 2 and his brother a sum of Rs. 5000/- was paid through cheque to the brother of Appellant No. 2. This cheque was encashed and amount was divided equally by two brothers. However, thereafter the two brothers refused to perform their part of agreement; that the brother Abdul Majeed Respondent No. 4 referred the dispute to Ch. bdul Haleem Advocate, Arbitrator on 30.1.1982 who gave the award to the extent of share of Abdul Majeed. Thereafter it was narrated in the plaint that Appellant No. 2 was called upon to receive Rs. 5000/- and the execute sale-deed of his share but he has refused. On 31.3.1982 the Appellant No. 2 filed a written statement stating that he has sold away the land to Appellant No. 1 for a consideration of Rs 2,50,OOO/- by means of Mutation No. 27. It was also stated that earlier twice the plaintiffs filed suits which were dismissed on 22.9.1981 and 21.12.1981. On merits it was stated that both the brothers had sold away the land to Appellant No. 1. It was denied that they agreed to sell the land to the plaintiffs and that they had received any amount or executed any agreements. A amended plaint was filed oil 14.6.1982 wherein Abdul Majeed Respondent No. 4 and Muhammad Aslam Appellant No. 1 were impleaded as parties. Not a word is stated in this plaint regarding the sale-made by Appellant No. 2 and Respondent No. 4 in favour of Appellant No. 1. In response to the said plaint the Appellant No. 1 filed a written statement on 24.11.1982. He has stated that he has purchased the land from two brothers vide Mutation No. 27 attested on 3.3.1982 for a consideration of Rs. 2,50,000/-. He denied the other allegations in the plaint and stated that he is bona fide purchaser; that he was not aware of any agreement or the alleged arbitration proceedings. Following issues were framed by the learned trial Court:-

1. Whether the Defendants Nos. 1 and 2 had entered into an agreement to sell with the plaintiffs in respect of land in suit? If so its effect? OPD.

2. Whether the plaintiffs have got no cause of action? OPD.

3. Whether Court fee is deficient, if so to what extent and its effect? OPD.

4. Whether the suit is time barred? OPD.

5. Whether the suit is barred by resjudicata! OPD.

6. Whether the defendants are entitled to special costs, if so to what extent? OPD.

7. Relief.

Evidence of the parties was recorded. The learned trial Court decreed the suit subject to payment of Rs. 57,500/- vide judgment and decree 31.1.1993. A first appeal filed by the appellants as also said Abdul Majeed Respondent No. 4 was heard by a learned Addl. District Judge-II, Bhakkar, who dismissed the same on 1.2.2000.

1. Learned counsel for the appellants contends that the suit was bad for partial performance and that decree has been passed in violation of Section 17 of the Specific Relief Act 1877. Also contends that evidence on record has been misread while holding that the Appellant No. 2 and Respondent No. 3 had agreed to sell the land to the plaintiffs. Learned counsel for the plaintiffs on the other hand argues that it stands proved rather admitted on record that the agreement was entered into between his clients on the one hand and Appellant No. 2 and Respondent No. 3 on the other. Further contends that the Appellant No. 1 is transferee pendente lite and is bound by said agreement. Regarding the first said contention of the learned counsel for the appellants, it is stated that the question was raised only before the learned Court of first appeal and not before the learned trial Court.

2. I have gone through the trial Court records, with the assistance of the learned counsel for the parties. I have examined the impugned judgments in the light of the said evidence on record. I find that trial Court although has mentioned all the pieces of oral as well as documentary evidence in his judgment. However, barring DW-6, the expert, there is not discussion at all of the statements made by the witnesses vis-a-vis the documents on record. I have already reproduced the contents of the plaint above. According to this plaint .the entire price stood paid to the Appellant No. 2 and Respondent No 4. However, after mentioning the witnesses, some reference to the summary of examination-in-chief of the witnesses and of course discussion on the evidence of the expert, learned trial Court abruptly states that plaintiffs shall pay sale price of Rs. 57,500/- to the appellants. It is not at all discernable from the judgment of the learned trial Court as to how it has reached the said conclusion. Now according to the plaint only a sum of Rs. 5000/- was remained to be paid to Respondent No. 2 and to similar effect is the statement of Khuda Bakhsh PW-9 who is the brother of Respondents Nos. 1 and 2 and father of minor Respondent No. 3. The judgment of the trial Court does not disclose at all as to how the trial Court has reached the said conclusion. The judgment clearly gives impression that barring the expert DW-6 none of the statement made by the witnesses from either side were even read by the learned trial Court. Needless to state that all the PWs were cross-examined at length. For the order I propose to pass I will restraining myself from making my own comments on the said evidence.

3. Learned Court of first appeal has also followed the suit faithfully. None of the two impugned judgments thus can be said to be speaking judgments containing reasons for the conclusion arrived at by the learned Courts below.

4. I also find that there is specific plea in the written statement of Appellant No. 1 that he is bona fide purchaser. It is rue that the mutation was attested in his favour at a point of time after the institution of the suit, but is it also matter of record that Abdul Majeed one of the vendor was impleaded in the suit and brought on record vide amended plaint dated 14.6.1982. Needless to state that a suit against the added party was to be deemed to have been instituted only when it is impleaded. Thus so far as Abdul Majeed is concerned, the transaction had taken place before he was impleaded as party to the suit. The matter of partial performance has also been dealt with in an absolutely sketchy manner by the learned Addl. District Judge in his impugned judgment. Needless to state that question raised before the learned Court of first appeal, was a question of law and could have been raised in the first appeal and also in the present appeal, and had it to be decided in the light of evidence on record after properly reading and appraising the same. There is no reading and appraisement of the evidence on record at all by any of the learned Courts below.

5. In this view of the matter there is no option but to remand back this case to the learned trial Court. Following additional issues shall be framed:—

(i) Whether the suit is for partial performance and as such bad in law?

(ii) Whether Muhammad Aslam Defendant No. 3 is a bona fide purchaser for value and without notice?

(iii) What is effect of the arbitration proceedings inter se the plaintiffs and Abdul Majeed Defendant No. 2?

1. The parties shall appear before the learned Senior Civil Judge, Bhakkar, on 30.4.2002. Thetrial Court record shall immediately be remitted back to the learned Senior Civil Judge. The learned Senior Civil Judge shall record such evidence as parties desire to produce on the issues additionally framed by giving opportunity to both the parties for said purpose. Thereafter the learned Senior Civil Judge shall decide the suit after reading the entire evidence on record appraising the same and thereafter to decide the suit on its merits in accordance with law. The learned Senior Civil Judge shall undertake the said exercise and conclude the proceedings before the year 2002 is out

2. This RSA is accordingly allowed in the above terms and consequently impugned judgments and decrees of both the learned Courts below are set aside.

No order as to costs.

(A.A.) Appeal accepted.

PLJ 2002 Lahore 948 (DB)

Present: ch. liaz ahmad and syed sakhi hussain bukhari, JJ.

Mqjor MUHAMMAD TARIQ--Appellant

versus

CITI BANK HOUSING FINANCE COMPANY LTD. through its Manager REGISTERED OFFICE LAHORE-Respondent

F.A.O. No. 90 of 2001, decided on 3.4.2002.

(i) Transfer of Property Act, 1882 (IV of 1882)--

—S. 41--Mortgage property-Property in question, purchased from original owner initially by wife of appellant and subsequently by appellant from his wife during subsistence of mortgage-Mortgage of Immovable Properly being charge against the same, would go with such properly even if the same was alienated—Property in question, having been purchased by appellant and bis wife without securing original documents from original owner, they were not bona fide purchasers herefore, provision of S. 41, Transfer of Property Act, 1882, was not attracted in their favour. [Pp. 950 & 951] A, C

(ii) Transfer of Property Act, 1882 (IV of 1882)--

—S. 41-Person coming to Court with un-clean hands-Principle contained in S. 41, Transfer of Property Act, 1882, being equitable principle cannot be availed by such person. [P. 951] B

order

The brief facts out of which the present appeal arises are that the appellant filed objection petition before the executing Court. The executing Court dismissed the objection petition of the appellant vide impugned order dated 30.3.2001. The appellant being aggrieved filed this appeal.

1. Learned counsel of the appellant submits that property of the appellant was not mortgaged with the respondent Bank by the loanee of the Bank. Therefore, Banking Court was erred in law to dismiss the objection petition of the appellant without applying his mind. He heavily relied on Para-4 and ground-C of appeal that the impugned order of the executing Court is not sustainable in the eyes of law. He further submits that property of the appellant is allotted a different number in Excise and Taxation Department as is evident from the contents of Para-4 and ground-c of the appeal. He further submits that appellant is bona fide purchaser of the property in question which was not mortgaged with the respondent Bank. Therefore, impugned order is not sustainable in the eyes of law. He further submits that property in question was not mortgaged with the respondent Bank as is evident from Schedule-I attached with the grounds of appeal at Page 60-A.

2. Learned counsel of the respondent Bank submits that Muhammad Saleem and his father Khalil-ur-Rehman secured a loan from the respondent Bank and executed a mortgage deed in favour of the respondent Bank qua the property in question on 11.6.1986. An agreement was also executed between the respondent Bank and original loanees. According to the terms and conditions of the agreement the original loanees had to repay the loan to the respondent Bank in easy installments but the original loanees failed to repay the loan to the respondent Bank in terms of the agreement The respondent Bank filed a suit for recovery against the original loanees before the Banking Court The Banking Court decreed the suit of the respondent Bank vide judgment and decree dated 19,10.2002. The respondent Bank filed an execution petition before the executing Court which is pending adjudication. The appellant has no locus standi to file objection petition before the executing Court as the property in question was mortgaged with the Bank as is evident from Schedule attached with the appeal at Page 60-A. Learned counsel of the appellant relied upon Schedule-I whereas he did not read part-II of the schedule which clearly contains the property in question. He further submits that learned counsel of the appellant wrongly relied upon the number of property in the Taxation Department which has no relevancy. He further submits that original documents of the property in question are still with the Bank. Therefore, the property in question which was purchased by the appellant's wife on 10.3.2000 from the original loanees is collusive transaction and subsequently or protected. In arriving to this conclusion we are fortified by Maulana Riaz-ul-Hassan vs. Muhammad Ayub Khan and another (1991 SCMR 2513). It is also settled principle of law that the principle contained in Section 41 of the Transfer of Property Act is an equitable principle and cannot be availed of by a person who has come to the Court with unclean hands. In arriving to this conclusion we are fortified by Iqbal Sultan vs. Chand Sultan etc. (NLR 1992 Civil Law Judgments 373). The original sale between the original owners and wife of the appellant is void. Therefore, protection of Section 41 of Transfer of Property Act is not available to the appellant. In arriving to this conclusion we are fortified by Mst. Amina Bibi etc. vs. Sadiq Alt etc. NLR (1994 Appeal cases 410). In case the aforesaid facts are put mjuxta position then it brings the case of the appellant that appellant purchased the property in question from the original owners collusively to frustrate the rights of the respondent Bank. Therefore, principle ofbona fide purchaser is not attracted in the present case as per principle laid down by the honourable Supreme . Court in Mst. Noor-un-Nisa's case (NLR 1995 Supreme Court Judgment 117). The appellant has alternative remedy to file a suit against the original owners and the appellant has no remedy against the respondent Bank. In arriving to this conclusion we are fortified by Muhammad Ibrahim vs. Secretary Government of Pakistan and others (PLD 1993 Karachi 478).

In view of what has been discussed above, we do not-find any infirmity or illegality in the impugned order of the executing Court and therefore, the same is upheld and this appeal is dismissed with no order as to costs.

(A.A.) Appeal dismissed.

PLJ 2002 Lahore 951

Present: ch.ljaz ahmad, J.

Mian MUHAMMAD LATEF and 2 others -Petitioners versus

MUHAMMAD ASLAM NAGI, CHAIRMAN, BANKING TRIBUNAL, LAHORE and another-Respondents

W.P. No. 23160 of 1996, decided on 4.3.2002.

(i) Banking Companies (Recovery of Loan, Credits, Finances and Advances) Act, 1997 (XV of 1997)--

—S. 9~Constitution of Pakistan (1973), Art. 199-Decree of specified amount passed by Banking Court against petitioner-Such decree was although appealable before High Court, yet petitioner did not challenge said decree through appeal but , moved Banking Court twice for modification of decree Banking Court cannot revise its own judgment and decree—Decree in question, thus, remained intact-No interference was warranted in such decree by exercise of discretion by the High Court

[P.953]A&C

(ii) Interpretation of Decrees--

—Judgment of Superior Court has prospective effect's and not retrospective effects—Past and closed transactions cannot be re-opened. [P. 953] B

order

The brief facts out of which the present writ petition arises are that the Petitioner No. 1 stood surety for the supply of sui gas to Petitioners Nos. 2 and 3 for Rs. 1,31,000/-. The Respondent No. 2 filed a suit for recovery of Rs. 2,04,889.50 against the petitioner before Respondent No. 1. Respondent No. 1 passed the decree against the petitioner amounting to Rs. 1,02,709.50 vide judgment and decree dated 19.12.1995. The petitioner being aggrieved filed application for rectification/modification of the judgment and decree of the Respondent No. 1 before him on 9.4.1996. The Banking Court dismissed the same vide order dated 23.6.1996. Subsequently, the petitioner filed another application for the said relief which was also dismissed by the Banking Court vide order dated 26.9.1996, hence the present writ petition.

1. The learned counsel of the petitioner submits that Respondent No. 1 was erred in law to decree the suit of Respondent No. 2 amounting to Rs. 2.04,889.50 whereas the petitioner had already paid Rs. 96021.50 thereafter, the petitioner find out balance amount from Respondent No. 2 who supplied statement of account to the petitioner to show outstanding amount against the petitioner amounting to Rs. 4440/-. The petitioner had also paid the said amount to the Respondent No. 2. The learned counsel of the petitioner submits that Banking Court was erred in law to decide the case against the petitioners. He further submits that Banking Court passed the decree without taking into account the amount of Rs. 96021.50 which was admittedly paid to the decree holder. He further submits that basic decree is a violation of the law laid down by the Full Bench of this Court In support of his contention, he relied upon the case of "Messrs Chenab Cement Product (Pvt) Ltd. and others vs. Banking Tribunal, Lahore and others" (PLD 1996 Lahore 672). Office sent various notices to Respondent No. 2 but Respondent No. 2 failed to enter appearance. However, Respondent No. 2 engaged Muhammad Khalid Mehmood Khan, Advocate who had filed power of attorney on behalf of Respondent No. 2. Name of the learned counsel of Respondent No. 2 is mentioned in the cause list. Despite notice no body entered appearance on. behalf of Respondent No. 2. In this view of the matter, I have no other alternative except to pass the exparte order against Respondent No. 2.

2. I have given my anxious consideration to the contentions of the learned counsel of the petitioner and perused the record myself.

3. It is admitted fact that decree was passed by the Banking Court against the petitioner on 19.12.1995 which is appealable under the provisions of the Banking Laws before this Court which would be heard by the two Judges of this Court. It is admitted fact that petitioner did not challenge the vines of the decree through an appeal under the provisions of the Banking Laws before this Court. It is also admitted fact that petitioner filed an application for modification of the Judgment and Decree before the Banking Court. First application on 23.4.1996 which was dismissed by the Banking Court vide order dated 23.6.1996 thereafter, the petitioner filed another application which was also dismissed by the Banking Court vide order dated 26.9.1996. It is pertinent to mention here that the petitioner had challenged the vines of the orders passed by the Banking Court on the applications filed by the petitioners before the Banking Court and did not challenge the Judgment and decree dated 19.12.1995 of the Banking Court When the decree remained in tact then the executing Court cannot go beyond the decree. Even otherwise the Banking Court had no authority under the law to revise its own judgment and decree under the provisions of the Banking Laws and the law laid down by the Honourbale Supreme Court in the case of Messrs Conforce Limited vs. Messrs Rafique Industries Ltd. and others (PLD 1989 S.C. 136). It is pertinent to mention here that decree was passed by the Banking Court against the petitioner on 19.12.1995 and the Full Bench of this Court decided the matter on 11.7.1996. It is settled principle of law judgment of the superior Court has prospective effects and not retrospective effects, and .past and closed transactions cannot be reopened. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in the case of Muhammad Yousafvs. The Chief Settlement and Rehabilitation Commissioner, Pakistan Lahore (PLD 1968 S.C. 101). Even otherwise the decrees passed before the said judgment are saved by the Full Bench in the aforesaid judgment relied upon the learned counsel of the petitioner. The aforesaid proposition of law was considered by the Honourable Supreme Court and saved the decrees passed by the Banking Court before the said judgment in which the aggrieved persons did not file the appeals in time under the provisions of the Banking Laws in the case of Messrs Tri Star Polyester Limited vs. Citi Bank (2001 SCMR410).

4. In view of what has been discussed above, I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Honourable Supreme Court in the following judgments:-

Nawab Syed Raunaq Ali's case (PLD 1973 S.C. 236). Rana Muhammad Arshad's case (1998 S.C.M.R. 1468).

However, the petitioner is well within his right to raise objection before the executing Court under the law.

With these observations, the writ petition is disposed of.

(A.A.) Petition dismissed.

PLJ 2002 Lahore 954

[Bahawalpur Bench Bahawalpur]

Present: tanvir bashir ansari, J.

ALLAH DITTA-Petitioner

versus

FAZAL MUHAMMAD etc.-Respondents.

C.R. No. 386/D of 1987, heard on 6.11.2001.

Punjab Pre-emption Act, 1913-

—S. 3(v) & 30--Limitation Act (IX of 1908), Art. 10-Civil Procedure Code, 1908 (V of 1908), Section US-Transfer of Property Act, 1882, Section 34—Suit for Pre-emption-Decreed by trial Court-Appellate Court held that payment of part of sale price alongwith- delivery of possession shall amounted to possession under sale and time shall start to run from said date-Decree set aside on point of limitation in appeal-Challenge to-Word "sale"-Concept of-Limitation-Question of-Sale, which is subject matter of suit for pre-emption depends upon intention of vendor and vendee~If parties intended sale to be through oral transaction, such sale would be coveredtunder definition of sale under Punjab Pre-emption Act, 1913 and shall be pre-emptable-Definition of sale in Punjab Pre-emption Act, 1913 is wider than definition given in Transfer of Property Act, 1882-Even in latter Act sale means transfer of ownership in exchange for price paid or promised or part paid and part promised~As sale consideration was partly made on 12.6.1980, it would amount to sale susceptible to right of pre-emption-Such sale shall be valid for purposes of Art. 10 of Limitation Act, 1908 and Section 30 of Pre-emption Act, 1913, if accompanied by delivery of possession of vendee under sale-Period of one year is liable to be calculated from this date-­Held: Suit for pre-emption filed beyond one year of transfer of possession under sale was barred by time—Petition dismissed. [P. 957] A, B &

judgment

The facts are that the petitioner filed a suit for pre-emption for possession of land measuring 16 Kanals 1 Maria given in detail in the plaint. The learned trial Court, on the basis of the Oral and documentary evidence produced pn the record, decreed the suit of the petitioner vide judgment and decree dated 30.09.1984. The said decree was assailed by the respondents in an appeal. Vide judgment and decree dated 03.11.1987, the appeal was accepted and the suit for pre-emption of the petitioner was dismissed on the sole ground of limitation. The learned appellate Court held that possession was delivered under the sale to the vendee respondents on 12.06.1980, According to the appellate Court, it was not material if the complete sale price was not paid on the said date and concluded that the payment of part of sale price alongwith delivery of possession shall amount to possession under the sale and that time shall start to run for a suit for pre-emption from the said date. Although the Mutation No. 838 of sale was attested on 09.08.1980 and the suit was filed on 08.08.1981 (within one year of mutation) yet the learned appellate Court computed the limitation w.e.f. 12.6.1980 and held the suit to be barred by time.

1. The point for determination that arises in this Civil Revision is the validity of the transaction of oral sale that took place on 12.6.1980. The vendee/respondents had contended that they had obtained the possession of the suit land on 12.6.1980 much earlier to the attestation of the sale mutation. According to him, Ex. D. 1 copy of the report Roznamcha Waqiati shows that the vendor Mst. Zeenat entered into an agreement to sell the suit land to the vendees on 12.6.1980 and after receiving Rs. 3000/- as earnest money, she delivered the possession to the defendants on that/date. The full sale price was admittedly not paid on that date. The learned trial Court was of the view that the sale would have been completed on 12.6.1980 if long side proving the plea of possession the payment of the entire sale consideration would have been made on the same day. Holding thus, the trial Court came to the conclusion that no completed sale took place on 12.6.1980 for the purpose of computing limitation. The suit was held to be within time. In appeal, however, the reliance was placed upon the definition of the term "Sale" as given under Section 54 of the Transfer of Property Act, according to which a "sale" is the transfer of ownership in exchange for a price paid or promised or part paid and part promised. It was accordingly held that even the payment of part consideration would amount to sale and under Article 10 of the Limitation Act time shall commence to run from the date on which the purchase takes, under sale physical possession of the whole of the property sold. It was thus, found that the sale was completed on 12.06.1980 and the suit filed beyond one year thereof shall be barred by limitation.

2. Ch. Abdus Sattar, Advocate, the learned counsel for the petitioner challenged the judgment of the appellate Court on two grounds. It is firstly contended that as Section 54 of the Transfer of Property Act applies to the erstwhile State of Bahawalpur, no oral sale shall be effective unless made through a registered instrument. In support of this contention, he has relied upon the case of Muhammad Masud Khan Bhatti vs. Mst. Ghulam Fatima 1987 SCMR 1206 to contend that the property in dispute is situated in Bahawalpur, where the Transfer of Property Act and the Registration Act apply with full force and therefore, sale of immoveable property of the value of Rs. 100/- or more cannot be made without a registered instrument. To the same effect, reliance is placed on the cases of Custodian Evacuee Property West Pakistan Lahore vs. Rais Ghazi Muhammad PLD 1973 SC 537 and Barkat Mi vs. The Custodian of Evacuee Property 1974 SCMR 69.

3. This argument of the learned counsel for the petitioner is self defeating. The petitioner is a pre-emptor who has filed the suit for pre­emption on the basis of sale which according to the petitioner himself is evidenced by Mutation No. 838 dated 09.08.1980. It this argument of the petitioner is allowed, it would lead to non-suiting him on the simple ground that no valid sale through a registered sale-deed is in the field. This argument is also not valid in view of the rule laid down in the case of Abdul Karim vs. Fazal Muhammad Shah PLD 1967 SC 411.

Section 3 (5) of the Punjab Pre-emption Act 1913 defines "Sale" as under:-

3 (v) "Sale shall not include"

(a) A sale in execution of a decree for money or of an order of A Civil, Criminal or revenue Court or of a revenue officer.

(b) the creation of an occupancy tenancy by land-lord whether for consideration"or otherwise.""

1. In view of the definition of sale, it was ruled in the case of Abdul Karim (Supra) as under:-

"this definition of sale is obviously wider than the one under Section 54 of that Transfer of Property Act, for, it is not governed by the restrictions as to the mode of Transfer contained in the latter section."

1. It is thus found that for the purpose of pre-emption an oral sale is pre-emptible regardless of the provisions of Section 54 of the Transfer of Property At, 1882.

2. It was secondly, contended by the learned counsel for the petitioner that in order that a sale is completed sale, the whole sale consideration has to be made. According to him, as only a part of sale consideration was proved to have been made on 12.6.1980 the transfer of possession even if evidenced by the Roznamcha Waqiati would not amount to possession under the sale. The learned counsel supported his contention with reference to the case of Muhammad Inayat and 5 others vs. Mst. Nisar FitamPLD 1994 SC 120 and case of Abdul Haq and 4 others vs. Sardar Shah and others 1994 SCMR 1238.

3. On the other hand, Mr. Aejaz Ahmed Ansari, Advocate for the respondents contended that the sale has been defined under Section 54 of Transfer of Property Act to mean the transfer of ownership in exchange for a price paid or promised or part paid and part promised. Even if the part of sale consideration is proved it would amount to sale. According to him if possession is transferred under such sale, it would be enough for the purpose of computing limitation from such date under Article 10 of Limitation Act and Section 30»of the Pre-emption Act 1913.

4. The reliance placed upon the case of Muhammad Inayat (Supra) by the learned counsel for the petitioner would not advance his case. In the cited case, the parties had expressed and intended that the sale would be completed only on the registration of the sale-deed and not earlier. No such intention of the parties is available in the present case. In the case of Abdul Haq 4 others (Supra), the question was that as the sale was out of joint khata,it did not amount to transfer of possession in pursuance of the sale. Obviously, in the present case, the sale is in respect of a specific piece of the land the transfer of possession of which is evidenced by Ex. D. 1 on the record.

5. From the above discussion, the following conclusions are made:-

(a) that a sale which is subject matter of a suit for pre-emption depends upon the intention of the vendor and the vendee. If the parties intended a sale to be through an oral transaction, such a sale would be covered under the definition of sale under the Punjab Pre-emption Act 1913 and shall be pre-emptible. The rule laid down in the case of Abdul Karim vs. Fazal Muhammad Shah 1967 SC 411 is followed.

(b) The definition of sale in the Punjab Pre-emption Act 1913 is wider than the definition given in the Transfer of Property Act 1882. EvejQ in the latter Act sale means transfer of ownership in exchange for a price paid or promised or part paid and part promised. As the sale consideration was partly made on 12.06.1980, it would amount to sale susceptible to a right of pre- . emption.

(c) that such a sale shall be valid for the purposes of Article 10 of the Limitation Act 1908 and Section 30 of the Pre-emption Act 1913, if accompanied by delivery of possession of the vendee under the sale. The period of one year is liable to be calculated from this date.

1. Viewed in this perspective, the suit for pre-emption filed beyond one year of the transfer of possession under the sale was barred by time. There is no merit in this Civil Revision which is hereby dismissed. Parties to bear their own costs.

(B.T.) Petition dismissed.

PLJ 2002 Lahore 958

Present sayed zahid hussain, J.

MUHAMMAD FAKRUKH and 2 others-Petitioners

versus

ALLIED BANK OF PAKISTAN and 12 others-Respondents

W.P. No. 14160 of 1998, heard on 13.3.2002.

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

---O.XXI, R. 58~Objection to execution of decree-Petitioners claimed that they were purchasers for consideration of properly attached in execution, therefore, being bona fide purchasers, they cannot be made to suffer— Record showed that plots, in question, had been mortgaged with decree holder since 1990 as security for financial facility; sale-deeds relied upon by petitioners were of later date i.e., 24.3.1992--Property thus, was encumbered at the time of sale and was not free of charge—Such transaction could not be claimed bona /icfe-Objection to execution was, therefore, not warranted. [P. 959] A

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

—O.XXXVn, R. 2 & O.XXI, R. 58-Constitution of Pakistan (1973), Art. 199-- Decree holder/Bank proceeded on record which was in its' possession at the time of institution of suit-Decree-holder, thus, was not obliged to implead petitioner who claimed to be purchasers after encumbrance of property with it-Objection petition was rightly dismissed by Banking Court warranting no interference in exercise of constitutional jurisdiction by High Court. [P.959]B

judgment

In a suit for recovery filed by the Allied Bank of Pakistan (Respondent No. 1) against the defendants/respondents, a decree was passed for a sum of Rs. 35,51,641/-on 12.4.1997 by the learned Banking Court. In execution of the said decree, Plots Nos. 113, 114 and 115 of Islam Block, Azam Garden Scheme, Mutian Road, Lahore were sought to be sold through auction by the Banking Court, when the petitioners herein filed an objection petition under Order XXI, Rule 58 CPC on the ground that they were owners of the said plots vide sale-deed dated 24.3.1992 and the said plots be deleted from the auction proceedings. The objection petition was dismissed by the learned Banking Court vide order dated 22.6.1998 taking the view that the plots in question had been mortgaged with the decree holder/bank since 1990 and such sale in favour of the petitioners could not defeat the execution proceedings. This order has been challenged through this petition under Article 199 of the Constitution. It is contended by the learned counsel that the petitioners were not made parly to the suit although they were vendees of the plots and that they being bona fide purchaser for valuable consideration, they cannot be made to suffer.

1. Learned counsel for the respondents have been heard who support the order passed by the learned Banking Court.

2. Undisputedly, the plots had been mortgaged with the decree holder/bank since 1990 as security for the financial facility (it is so averred in Paragraph No. 3 of the plaint). The sale-deed relied upon by the petitioners are of latter date i.e. 24.3.1992, the property was, thus, encumbered at the time of the sale in favour of the petitioners and was not free of charge. Such a transaction cannot be claimed a bona fide as the petitioners on due enquiry would have known of the .fact of mortgage and encumbrances. They did not act with due care in the matter.

3. In so far as the contention of the learned counsel that the 'decree has been obtained by the bank without impleading the petitioners is concerned, it has no merit inasmuch as the decree holder bank proceeded oh the basis of record available with it according to which, the disputed property was "mortgaged with it. Any dealing by the mortgagor/judgment debtors would not have come to its knowledge unless disclosed by the mortgagors. The decree holder bank, thus, acted in accordance with law in suing only the parties to the transactions with it. In view of the admitted facts i.e. the mortgage of the property and the sale claimed by the petitioners being of a latter date, no further investigation was warranted in the facts and circumstances of the case. The objection petition has rightly been dismissed by the learned Banking Court.

For the above reason, this petition has no merit and is dismissed. No order as to costs.

(A.A.) Petition dismissed

PLJ 2002 Lahore 959

[Bahawalpur Bench Bahawalpur]

Present: tanvir bashir ansari J.

Ch. GHULAM MUHAMMAD through his legal representatives-Petitioners

versus

MUHAMMAD YASIN etc. Respondents CR No. 445-D of 1984, accepted on 2.10.2001.

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

— S. 115— Revision-Consent decree— Suit for declaration to the effect that same was result of fraud and collusion between parties—Decreed by trial Court, set aside in appeal-Challenge to-Status of adopted son in Islamic Law-Family- Settlement and estoppel against law-Concept of-Suit brought by deceased Respondent was on basis of being adopted son- Obviously, no suit on such basis was competent under Muslim law at its very inception-He had not claimed relief on any other basis—Suit was itself not maintainable and could not culminate in any decree much less compromise decree-Decree passed in such suit is without lawful authority and null and void-Family adjustment amongst co-sharers with object to preserve peace and amity between members of family and has to be based upon legal and equitable consideration—If family settlement, is based upon illegal consideration it shall itself be illegal and would not create any rights interse parties-Held: Findings of appellate Court regarding alleged family Settlement is illegal—Held further: Compromise in violation of principle of law is illegal and ineffective and would not operate as estoppel against party to that compromise-Petition accepted. [Pp. 963 & 964] A, B, C, D & E

judgment

This Civil Revision is directed against the judgment and decree dated 11.10.1984 passed in appeal whereby the declaratory decree dated 4.3.1984 in favour of the plaintiff was set-aside.

1. The facts are that Muhammad Bakhsh real brother of the original plaintiff Ghulam Muhammad was the owner oij the land in question. He died issueless. He was survived by his real brother Ghulam Muhammad and widow Mst. Rabia Bibi. Muhammad Yasin Gullan a son of Ghulam Muhammad filed a suit against the said Ghulam Muhammad and Mst Rabia Bibi for a declaration that he (Muhammad Yasin Gullan) was the owner of the property in question being the adopted son of Muhammad Bakhsh deceased. Ghulam Muhammad as well as Mst. Rabia Bibi conceded this suit and a compromise decree was passed in favour of Muhammad Yasin Gullan Respondent No. 1 on 29.4.1972. According to the terms of compromise, Ghulam Muhammad and Mst. Rabia Bibi accepted the claim of Respondent No. 1 subject to the condition that the latter would not claim inheritance in the estate of the said Ghulam Muhammad.

2. The aforesaid Ghulam Muhammad brought a suit for declaration against the respondent to the effect that the consent decree dated 29.4.1972 was a result of fraud and mis-representation besides being unlawful and of no legal effect. It was contended that the very claim of Respondent No. 1 as an adopted son was illegal and could not be granted to him even by way of compromise as there is no estoppel against law.

3. The suit was contested. Separate written statements were filed by - Respondents Nos. 1 to 4, Respondent No. 5 and Respondents Nos. 6 to 20.

4. From the pleadings of the parties, the following issues have been framed:-

ISSUES.

1. Whether the suit is barred as resjudication?

2. Whether the plaintiff is estopped to file the suit?as

3. Whether the plaintiff is in possession of the suit land and as such the suit is maintainable?

4. Whether the plaintiff has no locus standi to file the suit?

5. Whether the suit is barred by limitation? OPD. .

6. Whether the suit is mala fide?

7. Whether the Defendant No. 1 got the property Of Muhammad

Bukhsh, husband of Defendant No. 5 as admitted by the son of late Muhammad Bakhsh, if so with what effect?

1. Whether the decree dated 29.4.1972 is illegal, void and not binding upon the rights of the plaintiff? OPP.

2. Whether the suit is insufficient valued and stamped?

9-A. Whether the alienation of a portion of the suit land by Defendants Nps. 1 to 4 in favour of Defendants Nos. 6 to 20 is illegal and void?

9-B. Whether Defendants Nos. 6 to 20 are bona fide purchasers for value and without notice and their rights stand protected?

1. Relief.

2. After recording evidence which was adduced before the learned trial Court by the parties, it was found that decree dated 29.4.1972. passed on the basis of a compromise was altogether illegal. Respondent No. 1 had no locus standi to have filed the suit on the basis of being On adopted son of Muhammad Bakhsh. The consideration .for compromise that Muhammad Yasin Gullan Respondent No. 1 would relinquish his right of inheritance was also illegal. As a result, the learned trial Court decreed the suit of Ghulam Muhammad vide judgment and decree dated 4.3.1984 and the impugned judgment and decree dated 29.4.1972 was declared to be a result of fraud and collusion and null and void.

3. Respondents Nos. 1 to 4 preferred an appeal against the said judgment and decree. The said appeal was accepted vide judgment and decree dated 11.10.1984. The learned appellate Court held that although the compromise dated 29.4.1972 which was the basis of the decree of even date could not be based upon the claim of Muhammad Yasin Gullan as an adopted son, yet for all intents and purposes, the said compromise would amount to a family settlement.

4. During the pendency of the present Civil Revision, the original petitioner Ghulam Muhammad died and his legal representatives were impleaded as party. Similarly, Respondent No. 1 Muhammad Yasin Gullan died leaving Respondents Nos 2, 3, and 4 who were already on the record as his legal representatives/Respondents Nos. 5-A and 5-B were impleaded as legal representatives of Mst. Rabia Bibi upon her death. Respondents Nos. 6 to 20 are the subsequent vendees from Respondents Nos. 2 to 4.

5. Ch. Naseer Ahmad, Advocate and Mr. Moeen-ud-Din Qureshi, Advocate appearing in support of the-Civil Revision contended that the decree dated 29.4.1972 was rightly declared to be illegal and void by the learned trial Court and there was no legal justification for the learned first appellate Court to reverse the decree of the learned trial Court -on the assumption that the. compromise could be termed as a family settlement According to the learned counsel appearing for the petitioners, it was not the case of the respondents that the compromise made between Ghulam Muhammad, Mst. Rabia Bibi and Muhammad Yasin Gullan was or could be a family settlement. It was contended that the very suit brought by Respondent No. 1 on the basis of being an adopted son was incompetent as no such ground is recognized by the Islamic Law. The suit at its inception was unlawful. The alleged consideration for compromise that Respondent No. 1 would relinquish his right of inheritance was also unlawful. In this context, learned counsel for the petitioners relied upon the case of Muhammad Irfan Azad vs. Mst. Sultana Begum and 8 others PLD 1971 Karachi 91 and Hossain All Khan vs. Firoza Begum PUD 1971 Dacca 112. Reliance was also placed upon the case of Binyameen and 3 others vs. Ch. Hakim and another 1996 SCMR 336 to contend that no plea of family settlement was taken by the respondents in their written statement and no evidence can be led or read in support of any plea not contained in the pleadings.

6. On the other hand, Mr. Muhammad Jaffar Hashmi, Advocate and Ch. Parmoon Bashir, Advocate the learned counsel for the respondents supported the judgment of the learned appellate Court. According to them, Muhammad Bakhsh brother of Ghulam Muhammad had already died and according to the Islamic Law of inheritance Ghulam Muhammad as brother and Mst. Rabia Bibi as widow of Muhammad Bakhsh were the. only lawful heirs and it was open to them to relinquish their shares by way of family settlement. According to the learned counsel for the respondents, the compromise dated 29.4.1972 was a lawful family settlement and was rightly held to be so by the learned First Appellate Court. He further submitted that the factum of family settlement gains 'strength from the fact that Ghulam Muhammad had gifted his entire land amongst his other sons. It was also

7. The upshot of the above discussion is that the judgment and decree dated 11.10.1984 passed by the learned appellate Court cannot Jbe sustained. As a result, the Civil Revision is accepted and the judgment and decree dated 11.10.1984 passed in appeal is set-aside and that of the learned trial Court dated 4.3.1984 is restored. The parties to bear their own costs.

(B.T.) Petition accepted.

PLJ 2002 Lahore 964

Present tanvir bashir ansari, J.

MUSHTAQ AHMAD-Petitioner

versus

M. ISMAIL-Respondent

C.R. No. 406-D of 1990, heard on 22.10,2001. Qanoon-e-Shahadat Order, 1984 (P.O. 10 of 1984)--

-—Art. 33-Civil Procedure Code, (V of 1908), Section H5~Revisidn~Suitfor declaration-Appointment of referees-Making of statement by one of referee on oath-Suit decreed by trial Court—Appeal dismissed by Addl. District Judge-Challenge to-Binding nature of decree--Prmciple--It is on record that two of three referees had made joint statement in favour of passing of decree in favour of Respondent-Ordinarily, matter should have concluded there and then-Petitioner laid down further condition of oath on Holy Qur'arf-Even this demand was met by one Qf Eeferee-There was thus no occasion for petitioner to have either resiled from said offer or even to have challenged decree of Civil Court in appeal-Held! Statement of Referee is bmding upon party-Held further: Decree based upon such statement cannot be challenged by that party in appeal unless same is result of fraud or misrepresentation-Civil Revision dismissed. [Pp.967]A&B

judgment

The parties are real brothers. Muhammad Ismail respondent filed a suit for declaration that he is owner in possession of land described in detail in the plaint and that Mukhtar Ahmed petitioner is merely a Benami. In the alternative, he claimed adverse possession.

1. The facts as disclosed in the plaint are that one Muhammad Siddique not party to the proceedings on behalf of his brothers and Mukhtar Ahmed on his own behalf and on behalf of the plaintiff and Defendant No. 2 jointly purchased land measuring 205Kanals 14 Marias. Out of this land the share of the plaintiff and Defendants Nos. 1 and 2 was l/3rd each. The name of Defendant No. 1 as owner of the entire 102 Kanals 17 Marias was Benami and that the plaintiff was infact the real owner of his 1/3 share.

2. The suit was contested by Defendant No. I/petitioner while Defendant No. 2 submitted a consenting written statement. Defendant No. I/petitioner contested the suit on the ground -that the suit was barred by time and that it was mala fide. On merits it was contended that said Defendant No. 1 was the real owner and beneficiary, of the entire land and that the plaintiff had no right or interest to whatever extent in the same.

4: Before commencement of trial of the suit, the parties volunteer to make a statement in the Court on 28.1.1998 according to which as many as three persons namely Ch. Ghiragh Din, Ham Din and Lateef were appointed to act as Referee. It was jointly stated that the statement of the Referee shall be binding on the parties. On 28.02.1988 when the date was fixed for submission of the report of the Referee, two Referees out of three namely Ch. Chiragh Din and Dam Din appeared in the Court and recorded their statement. According to joint statement of the said Referees it was decided that all the three parties namely Muhammad Ismail, Mukhtar Ahmed and Muhammad Bashir were owners in equal share in the subject land which was purchased by all the three jointly. After the statement was recorded the petitioner Mukhtiar Ahmed made a further statement that if the Referee makes the statement upon the Holy Quran, the suit of the plaintiff may be decreed. Upon this Choudhary Chiragh Din made the statement upon the Holy Quran to the effect that all the three parties had equal share in the land subject matter of controversy. As a result the learned trial Court seized of the matter decreed the suit vide judgment and decree dated 28.02.1988.

1. The petitioner filed an appeal against the said judgment and decree. It was contended therein that infact there were three persons who were appointed as Referees and on the relevant date only two of them had appeared and had made a statement. According to him it was necessary that all the three Referees should have made the statement before the Court He further challenged the decree on the ground that out of the two Referees present in the Court only one namely Chiragh Din made the statement on Oath. According to the petitioner the judgment and decree of the trial Court was thus based upon erroneous assumption of law. The appeal of the petitioner, however, was dismissed vide judgment and decree passed by Addl. District Judge, Rahimyarkhan dated 09.05.1990. According to the Appellate Court the offer of the petitioner in pursuance of which Choudhary Chiragh Din made the statement on the Holy Quran amounted to a consent decree and thus the appeal was without merit.

2. In this Civil Revision Abdul Kaleem Qureshi, Advocate, appearing for the petitioner raised two contentions. Firstly, he submitted that as the matter was referred to three Referees no effective decree could be passed without the statement of all the three Referees. Secondly, even out of two Referees present in the Court on the relevant date, only one namely Choudhary Ghiragh Din responded to his officer of making a statement on the Holy Quran and in this view of the matter, this conduct further detracted from the efficacy of the proceedings.

3. On the other hand, the learned counsel appearing for the respondent submitted that two Referees had concurred in their statement in favour of Respondent No. 1 and the absence of the third Referee was immaterial. He further submitted that upon the offer of the petitioner, Oath was duly taken and statement made on the Holy Quran by one of the two

.Referees which was in full compliance with the offer of the petitioner. According to him the fact that the other Referee did not make a statement on special Oath would not effect the proceedings.

1. Arguments heard. Record perused.

2. The statement made by the parties, on 28.01.1988 was a decision to refer the matter under the Provisions of Section 20 of the Evidence Act, presently Article 33 of the Qanoon-e-Shahadat Order 1984. Article 33 is reproduced as under:-

Article 33, "Admission by persons expressly referred to by party to suit. Statements made by a persons to whom a party to the suit has expressly referred for information in reference to matter in dispute are admissions."

1. The basic object and purpose of reference under this Article is to treat the statement of the Referee as the statement of the party itself. It is by now settled law that a Referee has to render his statement in accordance with his personal knowledge of the subject matter of the dispute. He does not have to rely upon any extraneous material or circumstances. If the statement of the Referee fulfills these requirements, it shall be deemed to be a statement of the parties as if they had made the said statements themselves. Obviously the effect of this statement shaB be binding upon the parties.

2. When viewed in this perspective it appears only logical that a reference under Article 33 of the Qanoon-e-Shahadat Order is contemplated to only one Referee who should make a statement according to his own personal knowledge. Although, no restriction appears to have been placed upon the number of Referees to be appointed for this purpose, yet the rationale of this provision of law indicates that the appointment of more than one Referee may lead to thwart the very purpose of making a reference. The practice of appointing more than one Referee may indeed work to the detriment of the purpose for which the Referee may be appointed. Thus for example there may be a difference of opinion between the two or more Referees. Then there may be a question of a majority view amongst the Referees and so on and so forth. In this view of the matter, I am of the considered view that the practice of appointing more than one Referees must be deprecated. Coming to the merits of the case, it is "on the record that two of the three Referees had made a joint statement in favour of passing of a decree in favour of Muhammad Ismail Respondent No. 1. Ordinarily the matter should have concluded there and then. The petitioner laid down a further condition of Oath on the Holy Quran. Even this demand was met by one of the Referees Ghoudhaiy Ghirgah Din. There was thus ho occasion for the petitioner to have either resiled from said offer or even to have challenged the decree of the Civil Court in appeal.

3. As discussed in the preceding paras the statement of the Referee is binding upon the party. A decree based upon such statement cannot be challenged by that party in appeal unless the same is a result of fraud or misrepresentation. No illegality is discernable from the proceedings of the trial Court or of the appellate Court. The concurrent findings of both the lower Courts do not suffer from any legal infirmity.

4. Resultantly, there is no merit in this Civil Revision which is hereby dismissed leaving the parties to bear their own costs.

(B.T.) Petition dismissed.

PLJ 2002 Lahore 967

Present:tanvir bashir ansari, J.

GHULAM MUHAMMAD and others-Petitionersversus

KHAN MUHAMMAD etc.-Respondents

C.R. No. 186-D of 1985, heard on 22.10.2001.

Civil Procedure Code, 1908 (V of 1908)-

—S. 115--Order 3, Rule 4-Revision-Suit for declaration-Decreed by trial Court in terms of compromise-Dismissal of appeal bj» first Appellate Court-VaUdity-Power of Advocate to enter into compromise~Scope--Perusal of written statement filed by defendants represented by their counsel would show that said written statement bore signatures or thumb impression of all said defendants-Thus it was incorrect to contended that "Wakalat Nama" could be or has in fact withdrawn, cancelled or revoked-"Wakalat Nama" was in force when compromise was effected--It is by now settled proposition of law that counsel had

implied authority to effect compromise unless he had been specifically instructed to contrary-Held: There is no merit in revision which is accordingly dismissed. [Pp. 969 & 970] A, B & C

judgment

Muhammad son of Muhammad Bux and seven others filed a suit for declaration of title against Fazal-e-Haq and 22 others in respect of land fully described in the plaint. Defendants Nos. 1, 2, 5, 6, 7, 13 to 23 engaged Syed Muhammad Anwar Shah, Advocate who submitted a written statement dated 1.09. 1980, wherein, the suit was contested by defendants on law and facts of the case. A perusal of the written statement on the record would show signatures and thumb impressions respectively of the said defendants who had submitted the written statement through the said counsel. Defendants Nos. 8 to 12 filed a separate written statement through counsel, wherein, the claim of the plaintiff was conceded andrit was stated that they would have no objection, if the suit of the plaintiffs was decreed. It appears from the record that vide order dated 16.4.1980 Defendant No. 4 was deleted from the record while vide order dated 31.01.1981 Defendant No. 3 was proceed against ex-parte. Before the parties could go on trial the learned counsel for the parties appeared in the Court on 01.06.1981 and submitted a compromise Mark "A in the Court with the prayer that the suit of the plaintiff be disposed of in accordance with the contents of the compromise Mark "A", Statements of the learned counsel were recorded on 11.06.1981 when the learned trial Court proceed to partially decree the suit, of the plaintiffs in terms of compromise Mark "A" (described as Mark. C) and also in view 'of the conceding written statement by Defendants Nos. 8 to 12. Against this compromise decree an appeal was filed by the following parties Ali Muhammad (Defendant No. 19) Ghulam Qadir (Defendant No. 23) Shamas-ud-Din (Defendant No. 6) Abdul Razzaq (Defendant No. 14) Abdul Lateef (Defendant No. 15) Mst. Qhulam Aisha (Defendant No. 16) Mstf Ghulam Sakina (Defendant No: 17) Mst. Gulan (Defendant No. 18) and Zahoor-ul-Haq (Defendant No. 2). In the said appeal the main contention against the compromise decree was that the said appellants had appointed Syed Muhammad Anwar Shah, Advocate as their counsel in whose favour of Wakalat Nama was also executed but the said counsel had no authority to enter into any compromise. It was also averred that the compromise was a result of collusion. The said appeal was dismissed by the learned District Judge, Rahimyarkhan vide judgment and decree dated 31.01.1985 on the ground that a counsel who has been appointed by a party to represent, him in a Court, also has the implied authority to effect a compromise unless there is any instruction to the contrary.

1. The present Civil Revision has been filed by Ghulam Muhammad and 12 others. It is noticed that Ghulam Muhammad, Allah Bux, Muhammad Irbahim, Mst . Sardar Begum, Mst . Sharam, Mst. Wazir petitioners (herein) had not assailed the compromise decree dated 11.06.1981. Upon no principle of law can they be allowed to file a revision petition against the compromise decree dated 11.06.1981 or the judgment in appeal dated 31.01.1985.

2. Sardar Muhammad Aslam Khan, Advocate appearing on behalf of the petitioners stated that the learned counsel namely Syed Muhammad Anwar Shah had no authority to enter into a compromise in the suit. He further referred to one of the two Wakalat Namas existing in favour of Syed Muhammad Anwar Shah and pointed out that the names/signatures/thumb impressions of Allah ,Bux, Muhammad Irbahim and Mst. Sardar Bibi have been scored out. From this the learned counsel wanted to infer that the power of attorney had been withdrawn from Syed Muhammad Anwar Shah, Advocate, by atleast these persons.

3. On the other hand, Mr. M.M.A. Pirzada, Advocate, the learned counsel for the respondents submitted that the compromise was lawfully effected between the parties and that the power to enter into a compromise is implied in the authority of the Advocate in whose favour the Wakalatnama is given. Regarding the allegation that some names/signatures have been scored out from one of the Wakalatnama in favour of Syed Muhammad Anwar Shah, Advocate, he stated that, unless the Wakalat Nama is determined and revoked by order of the Court, nothing can detract from the validity of the power given to the.counsel.

4. Arguments have been heard and record perused.

5. Order 3, Rule 4 of CPC is reproduced below: -

(i) "No pleader shall act for any person in any Court, unless he has' been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power of attorney to make such appointment.

(ii) "Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be and filed in Court or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client."

1. The appointment of a counsel made through & Wakalatnama which is duly filed in the Court shall remain in force unless determined or revoked with the leave of the Court by a writing signed by client or the pleader which revocation has to be filed in the Court. In the present case both the Wakalatnamas in favour of the learned counsel Syed Muhammad Anwar Shah, Advocate are on the record. There is no application €or withdrawal of the said Wakalatnama nor indeed there is any order permitting the same. A perusal of the written statement filed by defendants represented by their counsel Syed Muhammad Anwar Shah, Advocate would show that the said written statement bear the signatures or thumb impression of all the said defendants. Thus it is incorrect to contend that the Wakalatnamacould be or was infact withdrawn cancelled, or revoked. The Wakalatnama was in force when the compromise was effected. The next contention of the learned counsel for the petitioner that the said learned counsel had no authority to enter into a compromise as none was conferred upon him is also devoid of merit. It is by now a settled proposition of law that a counsel has the implied authority to .effect a compromise unless, he had been specifically instructed to the contrary. This is supported by rule laid down in Dr. Ansar Hassan Rizvi. vs. Syed Mazahir Hussain Zaidi and 3 others 1971 SCMR 634, Messrs Azhar Asia Shipping Agenty'and another vs. Ul Ghaffar Corporation PLD 1996 SC 213, Mst. Noor Jahan vs. Azmat Hussain Farooqi and another 1992 SCMR 876. It is noticed that Petitioners Nos. 1 to 6 had not challenged to compromise decree dated 11.06.1981 in appeal. It was only Petitioners Nos. 7 to 13 who had preferred the appeal which was dismissed. The revision of Petitioners Nos. 1 to 6 is liable to be dismissed on this ground alone.

2. The upshot of the above discussion is that there is no merit in this Civil Revision which is hereby dismissed leaving the parties to bear their own costs.

(B.T.) Petition dismissed.

PLJ 2002 Lahore 970

Present- maulvi anwar-ul-haq, J.

GHULZAR AHMAD KHAN and 2 others-Petitioners

versus

DEPUTY COMMISSIONER, HAFIZABAD and 2 others-Respondents

W.P. No. 2375 of 2001, decided on 17.10.2001.Constitution of Pakistan, 1973-

— Art. 199--C6nstitutional petition-Review-Cancellation of mutation-Notice issued nor parties beard-Effect of-Review itself has to be conducted by concerned Revenue Officer in open assembly after notice to parties to be decided after hearing them-This has not been done-Petitions allowed and impugned order reviewing mutations set aside. [P. 971] A

M/s. Abdullah and AJL Dogar, Advocates for Petitioner.

Date of hearing: 17.10.2001.

order

. This order shall decided W.P. No. 2357/2001 W.P. No. 2211/2001, W.P. No. 2212/2001 and W.P. No. 8325/2001.

1. The facts leading to the filing of all these cases have been recapitulated in order dated 12.2.2001, passed in W.P. No. 2211/2001. The said order be read as a part of this order.

2. The major grievance raised in all these writ petitions by the petitioners, was that they had been deprived of land which, according to . them, they have purchased upon the impugned review proceedings without any notice to them and without hearing them.

3. Comments had been called for in all these cases and the District Collector, Sub-divisional Collector and Tehsildar have filed the same. I have gone through the report and comments. Some reasons have been given therein for reviewing the mutations and passing the impugned order of cancellation of mutations, earlier attested in favour of the petitioners in this case. However, it has not been denied that neither any notice was issued to the petitioner nor they were heard.

4. Learned counsel for the petitioners condtends that notwithstanding the sanction of the review by the competent authority, review itself has to be conducted by the concerned Revenue Officer in an open assembly, after notice to the parties to be decided after hearing them. This has not been done in this case. 'All these writ petitions are accordingly allowed and the impugned order reviewing the mutations are set aside. The Collector concerned shall now issue notice to the petitioners for a date to be fixed for hearing and after hearing them and in case they wish to produce some evidence, after recording the same, proceed further in the matter and to decide the same in accordance with law. This exercise be preferably completed within three months of the appearance of the petitioner, pursuant to the notice to be served upon them by the Collector concerned. 5. disturbed.

(B.T.) Order accordingly.

PL J 2002 Lahore 971

maulvi anwar-ul-haq, J.

ABDUL WAHID-Appellant

versus

Hqji NOOR AHMAD-Respondent

R.S.A. No. 41 of 1991, heard on 16.10.2001.

Limitation Act, 1908 (IX of 1908)-

—S. 14 and Art 113 of Schedule-Civil Procedure Code (V of 1908), S. 100--Suit for specific performance of contract-Limitation for execution— Benefit of Section 14-Conditions precedent—Question of--Execution of agreement was admitted-Agreement stated that it was to be performed by 30.6.1974-Matter was therefore, governed by first part of Art 113 of schedule to Limitation Act, 1908 and suit hafl to be filed within three years of said date-Appellant while appearing in witness box had not denied that notice dated 17.8.1975 was served by respondent upon him informing him that because of non-performance agreement stood cancelled w.e.f. 30.6.1974 and earnest money stood forfeited-This was sufficient notice of refusal to perform-In order to avail benefit of Section 14 following conditions must exist, (i) prosecution of another civil proceeding with due diligence, (ii) proceedings should be in court of first instance or in Court of appeal against defendant, (iii) proceedings should be founded upon same cause of action and (iv) prosecuted in good faith in Court which from defect of jurisdiction or other cause of like nature was unable to entertain it-Application before sub-registrar or registrar and as well suit u/s 77 under Registration Act, 1908 could be said to be proceeding, prosecution whereof by appellant entitled to him to exclusion of time spent by him in same for reasons stated in Section 14 of Limitation Act-Held: Suit was barred by time-Appeal dismissed.

[Pp. 973 to 975] A, B & C

judgment

Somewhat admitted but rather chequered facts of this case are that vide agreement dated 10.4.1973 the respondent agreed to sell the suit land measuring 9 Kanals 10 Marias at the rate of Rs. 8250/- per kanal to the appellant, the total consideration being Rs. 78,375/-. Out of this amount a sum of Rs. 34,000/- was paid as earnest while the balance was to be paid by 10.10.1973. The agreement could not be performed and vide agreement dated 23.6.1974 another sum or Rs. 10,000/- was paid by the appellant to the respondent and the time was extended to 30.6.1974. On 9.9.1974 the appellant filed an application under Section 36 of the Registration Act, 1908 alongwith a sale-deed stated to have been executed by the respondent in favour of the appellant transferring the suit land to him. The Sub-Registrar refused registration as the execution was denied by the respondent vide order dated 2.11.1974. On 8.11.1974 an application was filed under Section 73 of the said Act before the Registrar for the same purpose but the application was dismissed on 16.6.1979. Thereafter a suit was filed under Section 77 of the Registration Act, 1908. This suit was dismissed on 23.10.1982 while an appeal was dismissed on 18.3.1987.

1. On 16.12.1982 the appellant filed the present suit for specific performance of the said agreement to sell. The suit was contested by the respondent, inter alia, objecting that it is barred by time. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and decree dated 30.1.1989. The execution of agreement dated 23.6.1974 (Ex. P.2) was admitted by the respondent He, however, denied the execution of the earlier agreement On the question of limitation the learned trial Court expressed the opinion that the appellant had been acting in good faith while conducting the said proceedings under the Registration Act 1908. A first appeal filed by the respondent was allowed by a learned Additional District Judge, Gujranwala who found the suit to be barred by time and dismissed the same vide judgment and decree dated 23J2.1991.

\ .

1. Learned counsel for the appellant contends that the learned Additional District Judge failed to take note of the proviso to Section 77 of the Registration Act, 1908 which saves any other suit to be filed on the basisof unregistered document. Further contends that the proceedings being conducted by his client were bona fide and thus he was entitled to the benefitof Section 14 of the Limitation Act 1908. Learned counsel for the respondent on the other hand, contends that proceedings before the Sub- Registrar and the Registrar cannot be said to be civil proceedings at all and the matter clearly falls outside the pale of Section 14 of the said Act.

2. I have gone through the trial Court's records, with the assistance of the learned counsel for the parties. The suit was for specific performance of the agreement dated 23.6.1974. Execution of this agreement was admitted. This agreement states that the agreement is to be performed by 30.6.1974. The matter is, therefore, governed by the first part of Article 113 of Schedule to the Limitation Act 1908 and the suit had to be filed within three years of the said date. I may state here that the respondent had proved and the appellant while appearing in the witness box had not denied'that notice mark A dated 17.8.1975 was served by the respondent upon him informing him that because of the non-performance the agreement stood cancelled w.e.f. 30.6.1974 .and the earnest money stands forfeited. To my mind this was sufficient notice of refusal to perform. Thus the jiuit was to be brought within three' years of 30.6.1974 or within three years of the service of said mark A dated 17.8.1975. The suit has been filed on 16.12.1982 and is barred by time.

3. Alongwith the suit an application under Section 14^of the Limitation Act was filed. In the application it was stated that the appellant had been prosecuting the civil proceedings against the respondent in the Courts and that these proceedings were being prosecuted in .good faith and with due diligence and that he had been litigating upon the same cause of action. Although not so prayed specifically but the intention was to claim benefit of Section 14 for exclusion of the time spent in the said alleged civil proceedings being conducted by the appellant in Courts.

4. Section 14 (1) of the Limitation Act, 1908 provides that the time during which the plaintiff has been prosecuting Civil proceedings with due diligence whether in a Court of first instance or in a Court of appeal against the defendant, shall be concluded where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it It will thus be seen that in order to avail the benefit of said Section 14 the following conditions must exist:-

(i) Prosecution of another civil proceeding with due diligence, (ii) The proceedings should be in a Court of first instance or in a Court of appeal against the defendant

(iii) The proceedings should be founded upon the same cause of action and

(iv) Prosecuted in good faith in a Court which from .defect of jurisdiction or other cause of like nature, is unable to entertain it-

Under explanation (i) the time to be excluded is the entire period of pendency of the suit including the date on which that suit was instituted and the day on which the proceedings therein ended, 7. As stated by me above an application under Section 36 of the Registration Act, 1908 was filed before the Sub-Registrar on 9.9.1974 who refused registration on 2.11.1974. Application before the Registrar under Section 73 of Registration Act was filed on 8.11.1974 who dismissed the same on 16.6.1979.

1. So far as these proceeding^ are concerned, I find that these are neither civil proceedings nor were they pending in a Court of first instance or in a Court of appeal within the meaning of Section 14 of the Limitation Act, 1908.1 have no manner of doubt while going upon the specific terminology used in said Section 14 that the civil proceeding mentioned in Section 14 is by all means a civil suit or a civil appeal. Explanation (ii) to Section 14 makes it clear when it lays down that a plaintiff resisting an appeal shall be deemed to be prosecuting a proceeding. The term cause of action is also relatable to a civil suit Court of first instance and Court of appeal are terms to be found in the Code of Civil Procedure with reference to suits and appeal filed thereunder. It is also not the case of the appellant that the Sub-Registrar or the Registrar had no jurisdiction to entertain the applications. They have not dismissed the application on the ground that they do not have jurisdiction to decide the matter as to whether the appellant has a right to get the document registered. Thus the time consumed in the said proceedings by no means can be said to have been consumed in the prosecution of another civil proceedings whether in a Court of first instance or in a Court of appeal. This time comes to 55 days in the case of application under Section 36 and four years seven months and eight days in the matter of Application under Section 73 of the said Act

2. Coming to the suit filed under Section 77 of the Registration Act,the said Section provides that where a Registrar refuse to order the document to be registered then a person claiming under such document (the appellant in the present case) may within 30 days after making the order of refusal institute in the Civil Court within the local limits of whose original jurisdiction is situated the office in which the document is sought to be registered a suit for a decree directing the document to be registered in such..office if it be duly presented for registration within 30 days after passing of. such decree. Copy of this suit in Ex. P. 4 and the relief prayed is that the Registrar, Gujranwala he directed to register the sale-deed dated 30.6.1974. The suit was resisted. Inter, alia, following issue was framed: -

3. Whether this Court has no jurisdiction to try this suit.

This issue was answered in negative as it was not pressed. The learned Court while deciding Issue No. 10 in the said case held as a fact that the execution of the sale-deed has not been proved and that the appellant is not entitled to the relief prayed for. The copy of the judgment dated 23.10.1982 is ' Ex. P.5. It will thus be seen that it was not a proceeding in a Court which for defect of jurisdiction or other cause of like nature was unable to entertain it

1. In the overall background of the case, to my mind it cannot be said at all that the appellant had conducted the said proceedings in good faith or with due diligence. Apart from the refusal of registration by the Sub-Registrar in the first instance the respondent had put the appellant on notice that he had not performed the contract within the stipulated period and that respondent has no intention of performing the same and the same stands cancelled and the earnest money forfeited. Appellant still; persisted in continuing the said proceedings. Be that as it may, neither the" application before the Sub-Registrar or the Registrar and as well the suit under Section 77 came be said to be the proceeding, the prosecution whereof by the appellant entities him to the exclusion of the time spent by him in the same\ for reasons stated in side Section 14 of Limitation Act.

2. In view of the above discussion, I find that the impugned judgment of the learned Additional District Judge does not suffer from any error of law so as to enable this Court to interfere with the same in this Second Appeal which is accordingly dismissed with costs.

(B.T.) Appeal dismissed.

PLJ 2002 Lahore 976

Present: TANVffiBAHSm ANSARI,- J.

MUSHTAQ AHMED-Petitioner

versus

ATTA MUHAMMAD etc.--Respondents W.P. No. 781 of 1991, heard on 24.10.2001.

Conciliation Court Ordinance, 1961-

—S. 16(2), Part n Section B of schedule-Constitution of Pakistan 1973, Art. 199—Recovery suit-Decreed by conciliation Court-Dismissal of appeal by District Judge—Constitutional petition—Limitation for filing revision-­Question of-Participation of party in proceedings of tribunal—Challenge of jurisdiction-Validity-If party has participated in proceedings of tribunal and allowed it to assume jurisdiction, it cannot be allowed to turn round and challenge jurisdiction, when adverse order is passed against him-Claim of respondent before conciliation Court was in sum of Rs. 14.000/- and dispute squarely fell under Part II Section 4 of schedule-As such requirement of written document orwritten contract • or receipt as envisaged in Part I Section B is not relevant-Held: Revision filed by petitioner was hopelessly barred by time and neither before revisional Court nor High Court, any attempt was made by petitioner to justify such inordinate delay-Petition dismissed. [Pp. 978] A, B & C

.

JUDGMENT

This writ petition is directed against the judgment dated 18.6.1991 passed by the learned Addl. District Judge, Bahawalnagar whereby revision under the Conciliation Courts Ordinance, 1961- filed by the petitioner was dismissed and the decree passed against the petitioner by the Chairman Conciliation Court dated 11.11.1987 was maintained.

1. The facts are that Atta Muhammad Respondent No., 1 filed an application for constitution of a Conciliation Court for recovery of a sum of Rs. 14,000/- against the petitioner. Accordingly, Conciliation Court, Union Council No. 64 Chak No. 167/7-R issued notice to the petitioner. The petitioner was duly served and appeared before the Conciliation Court on 16.8.1987. Both the parties consented to the jurisdiction of the said Conciliation Court. The parties were directed to produce two arbitrators each for tHe purpose of resolution of the dispute. Accordingly the petitioner appointed Niaz Ahmad, Councillor and Baqir Padhiar as his arbitrators while Atta Muhammad respondent appointed Din Muhammad Cheema and aiz Ahmad Bajwa as arbitrators on his behalf. Thereafter, the petitioner alongwith his arbitrators did not appear before the Conciliator Court, Finally, after considering the case of Atta Muhammad, respondent, Chairman Conciliation Court passed a decree in the sum of Rs. 14,000/-against the petitioner on 11.11.1987.

2. The petitioner then preferred a revision before the learned Addl.District Judge, Bahawalnagar against the decree dated 11.11.1987 on •3.6.1990. The said revision was considered and dismissed vide judgment dated 18.6.1991 passed by the learned Addl. District Judge, Bahawalnagar. While dismissing the said revision, it was found that the revision wag hopelessly barred by time as Such a revision under Section 8 of the Conciliation Courts Ordinance, 1961 could be filed only within 30 days of the impugned decree of the Conciliation Court. No application for condonation of delay was also filed. The contention of the petitioner that as the decree of the Conciliation Court was without jurisdiction, therefore, no period of Limitation wquld run against a void order was also repelled. On merits, it was held that the claim of the respondent was covered under Schedule Part n Section B of the Conciliation Courts Ordinance, 1961 and thus, the decree of the Conciliation Court was unexceptionable.

3. Mr. Shaukat Ali Mian, Advocate, learned counsel for the petitioner has contended that as the petitioner was permanent resident of Chak No. 201/8-R Halqa Union Council Chak No. 199-8-R Tehsil Fortabbas District Bahawalnagar, the Chairman Conciliation Court Union Council No. 64 Chake No. 167/7-R had no jurisdiction to try the case. In this respect, he referred Section 6 of the Conciliation Courts Ordinance, 1961 which reads as under:-

Section 6. Jurisdiction of Conciliation Courts, etc.

(1) Subject to the provisions of sub-se<kion (2), Conciliation Court shall be constituted and shall have jurisdiction to try a case only when the parties to dispute ordinarily reside within the jurisdiction of the same Union Council in which the offence has been committed or the cause^pf action has arisen.

(2) Where one of the parties to a dispute ordinarily resides, and the' offence has been committed or the cause of action has arisen, in one ward of a city, municipality or cantonment, and the other party ordinarily resides in another ward of the same citymunicipality or cantonment, then a Conciliation Court may be constituted in the ward in which the offence has been committed or, as the case may be, the cause of action has arisen.

1. This contention of the learned counsel for the petitioner is devoid of force. Under Section 6(2) of the Conciliation Courts Ordinance, 1961 where one of the party to the dispute ordinarily resides in one ward of a cit municipality or cantonment and the other party ordinarily resides in another ward of the same city, municipality or cantonment, the Conciliation Court where the cause of action has arisen shall "have the necessary jurisdiction. In this view of the matter, even if it is assumed that the petitioner is a resident of a different Chak of the same city or the municipality, it would not denude the concerned Conciliation Court if the other party resides within its jurisdiction and the cause of action also arose within the limit of the said Conciliation Court. The contention of the petitioner is also fallacious for the reason that the petitioner had himself appeared before the Conciliation Court and participated in its proceedings without raising any such objection. If a party has participated in the proceedings of the Tribunal and allowed it to assume jurisdiction, it cannot be allowed to turn around and challenge the jurisdiction when an adverse order is passed against him.

2. The other contention raised by the petitioner is that the Conciliation Court would only have jurisdiction in the matter when the claim is based upon a written document For this proposition, be referred to Part I Section B of the Schedule to the Conciliation Courts Ordinance, 1961 which reads as under- .

"Section B-Civil Cases

I. Suitfor the recovery of money due on contracts, receipts or other documents.

His precise contention is that only such claims are entertainable by the Conciliation Court which are based\ upon contracts, receipts or -other documents. According to the term "contracts\ employed in this proposition should be read ejusdem generis with receipts or other documents and excludes oral contracts. This argument of the learned counsel for the petitioner also has no merit The case instituted by the respondent before the Conciliation Court was covered under Part II Section B-Civil Cases of the Schedule of the said Ordinance. This provision is reproduced as under:-

Section B-Civil Cases .

"All Civil Cases (excepting.those mentioned in Section B of Part I of this Schedule), in which the value of the claim does not exceed twenty five thousand rupees.

1. A perusal of the above provision would show that the claim of the respondent before the Conciliation Court was in the same of Bs. 14.000/-and the dispute squarely fell under Part n Section B of the Schedule. As-such the requirement of a written document or a written contract or receipt as envisaged in Part I Section B is not relevant .

2. The revision filed by the petitioner was hopelessly barred by time and neither before the revisional Court nor this Court, any attempt was made by the petitioner to justify such inordinate delay. The findings of the revisional Court that the revision was barred by time is unexceptionable.

3. In this view of the matter, no case for interference has been made out through this constitutional petition. The writ petition is without force and is hereby dismissed. The parties to bear their own costs.

(B.T.) Petition dismissed.

PLJ 2002 Lahore 979

[Bahawalpur Bench Bahawalpur]

Present:tanvir bashir ansari, J. SARDAR MUHAMMAD-Petitioner

versus

Mst. SHUKARAN BIBI etc.--Respondents

C.R. No. 394 of 1990, heard on 24.10.2001.

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

—-S. 115 & Order K, Rule 2-Suit for declaration-Application for comparison of thumb impression dismissed by trial Court—Suit dismissed by trial Court-Acceptance of appeal by appellate Court with directions to trial Court to get thumb impression compared--Validity-Reopening of .matter by Appellate Court relating to comparison of thumb impression in appeal u/s 96 C.P.C. against judgment and decree passed by trial Court-­Jurisdiction—First Appellate Court can go into all questions of law and fact and can lawfully reconsider and redetermine any interlocutory order passed by trial Court-Order under Order 9 Rule 2 C.P.C. is not determination on merits-Matter can be reviewed from another angle-­Even under Order EX Rule 2 CPC filing of fresh suit on same cause of action is not precluded-Applying this principle to appeal, it can be safely concluded that same question which was subject matter of earlier revision petition dismissed under Order DC, Rule 2 CPC could be agitated through appeal filed against final judgment, and decree of trial Court-Held: Entire evidence was present on record and if appellate Court considered that it was necessary to have thumb impression of respondent compared with purported thumb impression on registered power of attorney and relevant register, it should have proceeded to do same itself at appellate stage-Civil revision allowed to that extent , [Pp

Briefly stated the facts are that Mst. Shukaran Bibi Respondent No. 1 was the owner of land measuring 15 Kanals17 Marias situated in mouza Kot Hemraj Tehsil and District Bahawalnagar. She filed a suit for declaration on 18.09.1989 that the registered sale-deeds dated 11,10.1984 and 17.04.1985 in favour of the petitioners through Respondent No. 2_acting as general attorney were null and void and ineffective upon her rights as the general power of attorney registered on 19.12.1983 in favour of Respoztdent No. 2 was a forged and fictitious-document. The suit was resisted by the petitioners and issues were framed on 04.03.1989.

1. The parties concluded their evidence. On 15.06.1989 when the case was fixed for arguments, Respondent No. 1 moved an application with the prayer that her thumb impression may be compared with the thumb" impression obtaining on registered power of attorney and for this purpose the matter may be referred to a Finger Print Expert. This application was heard and dismissed vide order dated 20.06.1989 passed by the trial Court Respondent No. 1 challenged the said,order by way of Revision No. 84 of 1989. However, said Revision Petition was dismissed vide order dated 05.10:1989 passed by the learned District Judge, Bahawalnagar which is reproduced as under:-

Tresent: Counsel for the petitioner.

Respondent No. 5 is not being served due to reason that the ~ petitioner has not paid the costs. The petitioner does not appear to be interested in the case which is accordingly dismissed."

This order was not challenged by the Respondent No. 1. After the disposal of the revision petition, the learned trial Court proceeded to hear arguments in • the main case and vide judgment and decree dated 30.10.1989 proceeded to dismiss the suit of Respondent No. 1 on merits.

1. Respondent No. 1 preferred an appeal under Section 96 CPC against the said judgment and decree. The learned Appellate Court who was siezed of the appeal accepted the, same vide judgment aad, decree d 19.6.1990 reversed the findings of the trial Court on Issues Nos. 7 and 8 remanded the case to the trial Court with the direction to get the thumb impression of Respondent No. 1 compared with her purported thumb impression appearing on the alleged power of attorney as well as appearing on the register of the Sub Registrar Lodharan and then to decide the case in accordance with law. The petitioner has challenged the said judgment dated 19.06,1990 of the Appellate Court in this Civil Revision.

2. Ch. Naseer Ahmed, Advocate, the learned counsel appearing in support of the Civil Revision has raised the following contentions:

(i) that the application dated 14.06.1989 filed by Respondent No. 1 before the trial Court for the purpose of comparison of her thumb impression with her alleged thumb impressions on the general power of attorney was dismissed by the trial Court vide order dated 2Q.06.1989. The Civil Revision filed against the said order by Respondent No. 1 was also dismissed on 05.10.1989 by the District Judge, BahawalNagar on the ground that Respondent No. 1 had not paid the costs for service of Allah Ditta. This order dismissing the revision.petition was not" challenged by Respondent No. 1 in any higher forum and thus the order of the trial Court dated 20:06.1989 and that of the Revisional Court dated 05.10.1989 would attain finality- He further submitted that after the trial Court dismissed the suit of the Respondent No. 1 vide judgment and decree dated 30,10.1989, it was not open for the Appellate Court in appeal tohave disregarded the order dated 05.10.1989 passed by a Court

of co-ordinate jurisdiction and the order of remand dated 19.06.1990 allowinffthe comparison of the thumb impression of Respondent No. 1 was without lawful authority.

(ii) that after the framing of the issues the parties were, obliged under Order 16 Rule 1 CPC to file the list of witnesses within seven days. It was not open for Respondent No.-1 to have by passed this provision of law by attempting to record the evidence of the Finger Print Expert by filing an application for comparison of her thumb impression.

(iii) that the parties had concluded their evidence, particularly Respondent No. 1 had produced, her affirmative evidence on 4.4.1989 and had also closed her complete evidence on 11.06.1989 without reservation. The application for comparison by Finger Print Expert was not maintainable after the close of the evidence by Respondent No. 1.

1. Mr. M. M. Bhatti, Advocate the learned counsel appearing for the respondents submitted that the order of the learned District Judge, passed on 05.10.1989 by virtue of which the earlier revision petition was dismissed for non-deposit of Process Fee, was an order under Order 9 Rule 2 CPC and such an order can be set aside by moving an application under Order 9 Rule 4 ibid. He further submitted that in such circumstances even a fresh suit was not precluded. The learned counsel for the respondents submitted that the Order 16 Rule 1 CPC was no bar to the filing of an application for comparison of the thumb impression and this in no way offended any provision of Order 16 Rule 1 CPC. He further contended that on no principle of law, Respondent No. 1 could be prevented from moving such an application even after the close of her evidence. He lastly contended that .entire case gets reopened in appeal against the final judgment and decree of the trial Court and it was within the jurisdiction of the appellate Court to have accepted the request for comparison of the thumb impression and that the appellate Court had rightly set aside the findings by the trial Court upon Issues Nos. 7 & 8 and remanded the case for comparison of the thumb impression of Respondent No. 1 with those appearing on the registered power of attorney etc.

2. It is apparent from the record that on 05.10.1989 when the earlier revision petition was dismissed, Respondent No. 1 was represented through her counsel. The revision petition was dismissed solely on the ground that the process fee for summoning Respondent No. 5 namely Allah Ditta had not been deposited. As this order has been passed in the presence of the learned counsel for Respondent No. 1 it cannot .be termed to be an order dismissing the revision petition for non-appearance of the parties. The order was passed under the Provisions and principles contained in Order 9 Rule 2 CPC. Although Order 9 Rule 2 CPC may not ipso-facto apply to proceedings in evision, yet its principles are applicable ,upon the strength of Section 141 CPC. Although the revision petition was dismissed, it is not a dismissal on merits of the case. As .noticed above, the trial Court' proceeded to hear the Arguments after dismissal of the revision petition and dismissed the suit of Respondent no. 1 on merits vide judgment and decree dated 30.104989. When Respondent No. 1 preferred an appeal against the said judgment and decree under Section 96 CPC, the entire matter was reopened, the jurisdiction of the Court in first appeal is indeed wider than its revisional jurisdiction. The First Appellate Court can go into all questions of law and fact and can lawfully reconsider and redetermine any interlocutory order passed by the trial Court White proceeding to decide the appeal the Appellate Court could not be influenced by the fact that an earlier revision against the interlocutory order was dismissed by the trial Court for non- deposit of process fee. As observed earlier an order under Order 9 Rule 2 CPC is not a determination on merits. The matter can be viewed from another angel. Even under,.Order DC Rule 2 CPC the filing of a fresh suit on the same cause of action is not precluded. Applying this principle to the appeal, it can be safely concluded that the same question which was the subject matter of the earlier revision petition dismissed under Order K Rule 2 CPC could be agitated through the appeal filed against the final judgment ^ and decree of the trial Court, In this view of the matter, the submission of the learned counsel for the petitioner that the order dated 05.10.1989 was final is devoid of force. The other contention of. the-learned counsel for the petitioner that no application for comparison of thumb impression of Respondent No. 1 can be made after the framing of the issues or after conclusion of the evidence is also devoid of force as no law prohibits the filing of such application at any stage of the proceedings.

3. Having concluded thus, it is, however, felt that the learned appellate Court should have not hastily set aside the findings of the trial . Court upon Issues Nos. 7 and 8 and should not have directed the remand of the case to the trial Court. The entire evidence was present on the record and if the appellate Court considered that it was necessary to have the thumb impression of Respondent No. 1 compared with the purported thumb impressions on the registered power of attorney and the relevant register, it should have proceeded to do the same itself at the appellate stage. The parties are in litigation for 'a long time. By opting to carry out these proceedings itself the appellate Court would have curtailed the duration of litigation. It is cardinal principle of administration of justice that Courts should act in aid of expeditious justice rather than protracting the same through unnecessary remand orders.

In view of the above, this Civil Revision is allowed only to the extent that the order of the appellate Court dated 19.06.1990 in as much as it set aside the findings of The trial Court on Issues Nos. 7 and 8 and remanded the case to the trial Court for comparison of thumb impression is set aside and a direction is issued to the appellate Court to itself get compared the thumb impression of the Respondent No. 1 with her alleged thumb impression obtaining on the alleged power of attorney and on the register of the Sub Registrar, Lodharan through a Finger Print Expert and thereafter decide the appeal in the light of evidence in accordance with law. As this is an old case, the learned Appellate Court shall decide the appeal within a period of four .months from the date of receipt of this order. Parties to appear before the Appellate Court on 05.11.2001.

(B.T.) Order accordingly.

PLJ 2002 Lahore 983

Present: tanvir bashiransaju, J.

MUHAMMAD SHARIF-Appellantversus

Mst. ZAINAB BIBI etc.--Respondents R.S.A. No. 33 of 1988, heard on 19.9.2001.

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

—S. 100-Suit for specific performance of agreement-Dismissal by trial Court-Appeal also dismissed-Challenge to-Concurrent -finding of facts-Interference by High Court--Scope--High Court in RSA can interfere only when (a) decision is contrary to law or usage having force of law (b) decision having failed to determine some material issue of law (c) in case of substantial error or defect in procedure provided by code of civil procedure or by any other law for time being in force which may possibly have produced error or defect in decision of case upon merits-Held: Concurrent findings of both lower Courts is result of meticulous appraisal of evidence on record and cannot be disturbed-Appeal dismissed.

' [P.9871A&B

judgment

Suit for specific performance of agreement to sen filed by appellant was dismissed by the trial Court vide judgment and decree dated 11.05.1986. His appeal was also dismissed vide judgment and decree dated 12.12.1987 /- — passed by the First Appellate Court. This RSA seeks to challenge the concurrent findings of the lower Courts.

1. Briefly the facts are that Mst.Zainab Bibi Respondent No. 1 was the original owner of the land in question. It was contended by the appellant in his plaint that Muhammad Yasin Respondent No. 2 acting as General Attorney of Respondent No. 1 executed agreement to selj dated 01.01.1974 in favour of appellant in respect of the land in question for a sale consideration of Rs. 50,000/- According to him Rs. 5000/- was paid as earnest money and another sum of Rs. 35000/- was paid by the appellant ubsequently. Another agreement was executed by Respondent No. 2 in the same capacity on 06.01.1976 whereby the sale consideration was enhanced from Rs. 50,000/-to Rs. 80,000/-. According to the plaintiff another sum of Rs. 35,000/- was paid by him to the respondents. As per the plaint, the land in question was under attachment through an order of the Court and thus the sale-deed could not be executed. After the land was released from attachment Respondent No. 1 transferred the same through gift in favour of her sons Respondents Nos. 3 and 4 through Tamleek Nama dated 22.12.1977. The suit was contested by Respondents Nos. 1, 3 and 4 while the Respondent No. 2 admitted the claim of the appellant. In the written statement the contesting respondents strongly denied the execution of either the general power of attorney by Respondent No. 1 in favour of Respondent No. 2-or the subsequent agreements' to sell as alleged in the plaint According to the Respondent No. 1 she was abducted by the appellant and Muhammad Yasin and remained in their unlawful custody for as long as six years, ft was specifically contended that both the knower of attorney and the agreements to sell were forged and fictitious documents; that Mst Zainab Bibi is a "Pardah Nasheen" and illiterate lady; that the appellant and Respondent No. 2 procured her thumb impressions on various papers on the pretext of institution of suit for dissolution of marriage and acquisition of Patta Malkiatand that she never appeared before the Registrar.

2. From the pleadings of the parties, following issues were framed:-

ISSUES

1. Whether the Defendant No. 1 agreed to sell the land in suit to the plaintiff vide agreement deeds 31.01.1976, 1.1.1974 and 18.4.1977?

2. Whether Rs. 70,000/- were paid to the Defendant No! 1 by the plaintiff as consideration of the land in-suit?

3. Whether the agreement is not fictitious, fabricated, and without consideration?

between the plaintiff and Defendant No. 2

5.Whether Defendant No. 1 duly constituted Defendant No. 2 as her attorney?

5A. Whether plaintiff is entitled to the specific performance of tHe impugned agreement? If so, on what terms?

5.B. Whether Defendant No. 1 Mst. Zainab Bibi gifted the property in dispute in favour of Defendants Nos. 3 and 4?

5.C Jf the issue is proved in favour of Defendants nob. 3 and 4 whether the gift is ineffective and inoperative against the rights of plaintiff?

6.Relief.

1. The appellant produced oral as well as documentary evidence before the trial Court. The trial Court examined and appraised the entire evidence produced before it. The conclusion drawn by the trial Court after --the appreciation of oral and documentary evidence is that neither the power \ of attorney nor the agreements to sell were proved to have been executed at the behest of Respondent No. 1. Both the scribe PW. 1 Ghulam Rasool and marginal witness Muhammad Ramzan of the General Power of attorney admitted that they did not know Mst. Zainab Bibi personally as she was wearing a "Burqah" and that they had not know her. previously. Even Hafiz Refique Ahmed who appeared as PW. 6 and who is stated to have identified by Mst. Zainab Bibi before the Registrar'conceded that the lady was wearing a Burqah and that he had identified her at the instance of Respondent No. 2 and one Lateef. The statements of Muhammad Ibrahim PW. 2, Allah Ditta Munshi PW.3, Muhammad Shafi PW.4, Muhammad Aslam Ramay Advocate PW. 5 were also examined and the cumulative effect qf the said evidence did not persuade the trial Court to hold that either the power of attorney or the agreement to sell was executed by, Respondent No.
2. The trial Court also evaluated evidence produced by Respondent No. 1 and found the evidence of DW-1, DW-2, DW-3, and DW-4 as worthy of trust The statement of Ghulam Nabi DW-4, the husband of Respondent No. 1 was specifically referred to according to which it was found that Respondent No. I was abducted by the appellant in connivance with Respondent No. 2. The suit for Restitution of Conjugal Rights wa§ filed. An FIR was also lodged against the appellant and Respondent No. 2 whereupon Respondent No. 2 was arrested and 'Mst. Zainab Was recovered from Haroonabad. Besides this evidence, the thumb impression of Respondent No. 1 was sent for comparison and according to the report of the Finger Print Expert the thumb impression of the lady on Ex. P. 1 was super imposed and no opinion could be given regarding the same. On the basis of oral as well as documentary evidence the learned trial Court decided Issues Nos. 1 to 5 and came to the conclusion that the power of attorney, agreement to sell or the payment of sale 'consideration was not proved. Holding Issues Nos. 5-A, 5-B, and 5-C against the plaintiff, suit for specific performance was dismissed. The appellant filed an appeal in which it was contended that the findings of the trial Court were incorrect and that according to the evidence on the record he has been able to prove theexecution of agreements to sell and the power of attorney by Respondent No. Tin favour of Respondent No. 2. He also contended that as the learned trial Court has decided Issues Nos. 1 to 5 jointly, the trial Court has committed a serious irregularity and the decree of the trial Court was liable to be set aside. The First Appellate Court considered all the pleas raised by the appellant and reappraised the evidence in the light of the contention raised by Respondents Nos. 1, 3 and 4 in their written statement. The reappraisal of evidence done by the First Appellate Court was a thorough exercisewhereafter the learned First Appellate Court found itself in complete concurrence with the findings of the trial Court The First Appellate Court was of the view that Respondent No. 1 was an illiterate and Purdah Nasheen lady and in the circumstances proved on the record she did not have .anyindependent advice and was infact under the undue influence of the appellant and Respondent No. 2. The appeal was resultantiy dismissed on12.12.1987.

5.In this RSA Mr. Muhammad Jaffar Hashmi, Advocate has mainly contended that the judgment and decree of the trial Court and also of the First Appellate Court suffer from serious illegality as the learned trial Court had imped together as many as five issues and decided them jointly. According to the learned counsel, the learned trial Court acted in violation of the provisions of Order XX Rule 5 CPC and by this procedure the case of the appellant was irreparably prejudiced. He next contended that while dealing with Issues Nos. 1 to 5 both the lower Courts fell in error of misreading and non-reading of evidence on the record". His contention was that according to the material on the record particularly Ex. P. 6, it was proved that the power of attorney was executed by Respondent No. 1 with her free consent Helastly submitted that there were ample evidence on the record that the sale price as contended in the plaint was actually paid by the appellant to therespondents.

6.On the other hand, Ch. Imtiaz Ahmed Gujjar, Advocate appearing for the respondent contended that the evidence has been properly appraised by both the learned lower Courts who have come to a correct finding of fact that neither the power of attorney nor the agreements to sell nor indeed the payment has been proved. He also submitted that in ease of illieterate and Pardah Nasheen ladies, great care and caution should be exercised in respect of their rights in immovable property. He lastly contended that concurrent findings of fact are not liable to be interfered with inRSA.

7.Arguments heard. Record perused.

8.The contention of. the learned counsel for the appellant that the learned trial Court exercised its jurisdiction illegally or with materialirregularity in as much as it decided Issues Nos. 1 to 5 jointly, ismisconceived. The provision of Order XX Rule 5 CPC require the Court tostate its decision on each issue. The findings of the trial Court has been examined. Although the trial Court has decided Issues Nos. 1 to 5 together,however, no illegality is found in the said procedure. A perusal of Issues Nos.1 to 5 would show that they are inter-linked with the controversy between the parties i.e. whether the power of attorney was executed by RespondentNo. 1 in favour of Respondent No. 2, whether Respondent No. 2 lawfully entered into any agreement to sell on behalf of the Respondent No. 1,whether any sale consideration was received or whether the power of attorney or the agreement to sell were forged and fictitious documents. In order to avoid repetition of facts and evidence it was considered appropriate by the trial Court to decide all the connected issues together. The objection raised by the learned counsel for the appellant is too hyper technical to bear any scrutiny. From the perusal of the record it shows that the trial Court as well as the First Appellate Court applied its conscious mind to the relevant evidence and recorded sound reasons in support of the conclusion drawn. No prejudice has been caused to the appellant by said regulatory procedure which infact advanced the cause of justice. Reference is made to Umer Din vs. Ghazanfar Mi 1991 SCMR 1816 and Hafiz Mi Ahmed vs. Muhammad Abad PLD 1999 Karachi 354.

9.It is also pointed out that this Court in RSA can interfere onlywhen (a) decision is contrary to law or usage having the force of law (b) thedecision having failed to determine some material issue of law (c) in case of a substantial error or defect in the procedure provided by the code of CivilProcedure or by any other law for the time being inforce which may possiblyhave produced error or defect in the decision of the case upon merits. It is not the intention of law to strike down every insignificant departure in the procedure Interference can only be made where injustice would result on account of the irregular exercise of jurisdiction which might have effected the ultimate decision of the case. No such situation arises in the present circumstances, and no interference is thus called for. The learned counsel for the appellant has not been able to point out any non-reading or misreading of evidence on the record. The concurrent findings of both.the lower Courts is a result of a meticulous appraisal of evidence on the record and can not be disturbed.

10." In the light of the above discussion, there is no merit in this Regular Second Appeal which is hereby dismissed leaving the parties to bear their own costs.

(B.T.)

Appeal dismissed.

PLJ 2002 Lahore 988

Present maulvi anwar-ul-haq, J. NOOR AHMAD and 5 others-Petitioners

versus

ADDL. DISTRICT JUDGE FEROZEWALA and 2 others-Respondents W.P. No. 3124 of 1996, heard on 25.10.2001.

Civil Procedure Code, 1908 (V of1908)--

—S. US-Constitution of Pakistan, 1973, Art- 199-Constitutional petifioa-Suits challenging sale on basis of forged power of attorney-Preliminary issues framed on point of limitation and maintainability/ of suits—Trial Court found all issues in favour of petitioners-Add!. District Judge reversed finding of trial Court on point of limitation and maintainability of suits~Validity~Suit could not have been held to be barred by time by Addl. District Judge in vacuum without stating as to which Article of schedule to Limitation Act would be applicable-Thus even if conclusion of Addl. District Judge that petitioners were aware of sale in the year 1965 is deemed to be correct even then suit could not be said to be barred by time and having been brought at point of time beyond were prescribed by law for filing of such suit—This is classic case where evidence as to execution or non-execution of documents, their validity and existence overlapped with evidence required to decide said preliminary issues-Finding of Addl. District Judge being,against law and weight of evidence on record is accordingly reversed-Held: Trial Court ought not had undertaken exercise of running of piece meal trial-Writ petition-allowed.

[Pp. 99i & 992] A, fi, C & D

judgment

This judgment shall decide the Writ Petition No. 3124/96 and Writ Petition No. 3125/1996, as common questions are involved.

1. Land measuring 484 Kanals 15 Marias in Chak No. 22/UCC and 392 Kanals 11 Mar/as in Chak No. 16/UCC, Tehsil Ferozewala,. District Sheikhupura, was allotted to Bahadar Khan in the year 1925\ as Dakheel Kar. On his death his estate devolved upon three sons, namely, Hayat Khan, Inayat Khan and Noor Muhammad. He had also another son, namely, Sardar Khan but he predeceased Bahadar Khan. However, in the mutation of inheritance the name of Noor Muhammad was not mentioned rather Sardar Khan came to be mentioned. The said Hayat Khan and Inayat Khan are stated to be dead. On .30.9.1984 the present petitioners who are the said Noor Muhammad and successors of the other two sons of Bahadar filed a suit in respect of the land in Chak No. 22/UCC, while on 30.10.1984 the ' petitioners filed a suit in respect of land in Chak No. 16/UCC. In the plaint it was alleged that the private respondents have got prepared a forged general power of attorney on behalf of the said three sons of Bahadar Khan on 6.12.1962 and got it registered and on the basis of the said power of attorney got sale-deed registered on 2.2.1963. (This in respect of land in CHak No. -' 22/UCC). Regarding the land in other Chak No. 16/UCC sale-deed was got registered on 8.10.1962 and on the basis of the said sale-deed Mutation No.' 94 was attested on 20.10.1962. In para-5 of the plaint it was stated that the petitioners came to know about the said documents some time after 4.4,1984 and 21.8.1984 respectively. The said documents were challenged on/the grounds that these had not. been executed by the said owners in favour of the respondents. In the written statements, inter alia, it was objected -that the suits were time-barred. The form of the said first suit was also questioned and it was stated that suit is not maintainable. Preliminary issue as to whether the suits are within time-was framed in both the cases while in the said first suit an issue as to the maintainability of suit in its present form was also framed. Evidence of the parties was recorded on the said , preliminary issues. The learned trial Court found all the said issues in favour of the petitioners vide judgments 8.7.1993, in the first case and 31.5.1993 in the 2nd case. The revision petitions were filed by the respondents whichwere heard by a learned Addl. District Judge, Ferozewala. He proceeded to allow the revision petition inasmuch as he reversed the finding of thelearned trial Court on the said issue of limitation in both the cases while inthe said first case finding on the question of maintainability was also - reversed. Consequently the suits filed by the petitioners were dismissed vide. judgment dated 10.1.1996.-

2. Learned counsel for the petitioners largues that the preliminary . issues were decided on the basis of evidence and the learned Addl. District Judge trangressed his jurisdiction by interfering with the same in exercise of revisional jurisdiction when the suit was yet to be finally decided and thefindings on all the issues could have been questioned by the aggrieved party in regular appeal against the judgment and decree. Further contends that., the learned Addl. District Judge has mis-read the evidence on record while holding that the petitioners had the knowledge of documents on the basis of judgment Exh.Dl. Learned counsel for the respondents on the other hand states that the said judgment was conclusive evidence of the fact that tfie petitioners were aware of the documents and as such the suit was barred by time. On the question of maintainability leaf ned counsel for the petitioners

argues that admittedly land is in possession of the tenants and as such the petitioners would not be required to sue for possession. Learned counsel for

the respondents on the other hand insists that the suit was not maintainable in its present form.

1. I have examined the copies of the records appended with these writ petitions, with the assistance of the learned counsel for the parties. The implicit reliance of the learned Addl. District Judge as also of the respondents in the matter of decision of the said issues pertaining to limitation is on contents of judgment Exh.Dl. This judgment is dated 7.2.1966 passed by Mr. Muhammad Asad Ullah, learned Senior Civil Judge, Sheikhupura. According to the decision the suit had been filed by Muhammad Shaft and 14 others against Hayat, Inayat, and Noor Muhammad sons of Bahadar Khan and the present respondents as well as Province of West Pakistan. The judgment records the contents of the plaint whereby the said plaintiffs claimed themselves to be beneficial owners and Bahadar as a Benami. In the alternative they claimed to have become owners of tenancy right by adverse possession. It is then stated that the Province of West Pakistan had been proceeded against ex-parte as it does not wish to contest the suit. Thereafter it is stated that the said private defendants have resisted the suit on merits and have objected that the Court has no jurisdiction to try the suit Thereafter the preliminary issue regarding jurisdiction was framed and it was held that the Court had no jurisdiction and the suit was dismissed. This judgment was upheld by the Court of First Appeal on 14.3.1966 while RSA No. 349/66 was dismissed on 30.5.1978 and CPLA. No. 490/78 was dismissed on 15.12.1980. The learned counsellor the respondents particularly refers to the reproduction of claim of the plaintiffs in judgment Exh.Dl, whereby they attacked tile sale by the Defendants Nos. 1 to 3 (present petitioners) in favour of Defendants Nos. 4 and 5 (present respondents). Now according to the learned counsel the said judgment by itself would be sufficient evidence of the fact that petitioners were aware of the sale of the land, in favour of the respondents. 1 am afraid, evidence on record-does not support the said proposition. PW-3 is Noor Muhammad Petitioner No. 1 who was .party to the raid suit according to the said judgment The witness was confronted and he was expressed ignorance regarding the said suit or that any of the three brothers were party to the same or that the matter had gone up to the Supreme Court of Pakistan. I find that neither certified copy of the written statement, if any, filed by the said three brothers including Petitioner No. 1, was produced and there is no question of confronting Noor Muhammad P,W-1 with the same. More akin to the point is statement of Karamat Ali respondent as DW-1. In his > examination-in-chief he generally preferred to the said suit having been filed by the tenants against the said three brothers and the respondents and that the matter went upto the Supreme Court. In his cross-examination he states that they have been appearing through Advocates. He does not know as to who was counsel for the respondents and who was representing the said three brothers. He does not remember as to whether the said three brothers got their statement recorded or not. He then stages that in Supreme Court only the respondents and the said tenants contested the matter whereas the said three brothers were also summoned.

4.In the light of said evidence on record it cannot be said on the basis of said judgment alone that the petitioners were aware ef theimpugned transaction at the said time. Needless to state that under Qunun- e-Shahadat Order, 1984, previous judgment is relevant only for the limitedpurposes stated in Articles 54 to 57 thereof. It will be interesting to note here that one of the preliminary issue framed was as to whether the saidjudgment is resjudicata and both the learned Courts below have concurred that it is not.

1. Assuming that the petitioners were aware of the said documentsat the point of time stated by the learned Addl. District Judge, I find nothingin his impugned judgment as to how he held the suit to be barred by time. I have examined the impugned judgment of the learned Addl. District Judgewith the assistance of the learned counsel for the parties. He states that somewhere in 1963/65 the petitioners came to know of the said documents.Thereafter he proceeded to hold that the suit is barred by time. I do not find any finding recorded by the learned Addl. District Judge as to which is thatprovision of law which prescribe limitation for a suit of instant nature, when said period of limitation is to commence and when is it to end and as towhether the suit has been filed beyond the said period so prescribed. To my mind, the suit could not have been held to be barred by time by the learnedAddl. District Judge in vacuum without stating as to which Article of Schedule to the Limitation Act would be applicable. Reference be made tothe case of Ghafoor Bukhsh v. Haji Muhammad Sultan and others (NLR 2001 Civil 587). Since there is nothing in the impugned judgment of thelearned Addl. District Judge I called upon the learned counsel for, the respondents to demonstrate as to which is relevant Article of Schedule to theLimitation Act, 1908 which would govern the suit. After some deliberation the learned counsel states that it would be Article 120 of the said Schedulewhich shall govern the suit. To my mind, learned counsel is right. However it is to be seen as to what would be the starting point of the limitation periodof six years provided in the said Article 120. It is certainly not the date of knowledge. On the other hand the period of commencement is when right to sue accrues. It has come on record in the very statement of Karamat respondent DW-1 that they had not been able to take the possession of suit land. On the other hand he states that they had not been able to receive even single penny by way of share produce in the suit !and from the tenants. Thu s nothing happened to the deteriment of the petitioners by virtue of the said sale-deeds and other documents which could have compelled them to file a suit. To my mind, the statement contained in the plaint and as made by Noor Muhammad PW-1 carries a ring of truth when he states that need to file suit arose when tenants informed them that the respondent are taking steps to dispossess the tenants. Needless to state that in their plaint the stated case of the petitioners is that the said documents were never executed by them in favour of the respondents. They cannot as such be stated at this point of time to be parties to the documents in legal terms. They need not to get the documents cancelled because if it is proved that the documents were not executed then they shall be void and declared as such. Thus even if the conclusion of the learned Addl. District Judge that the petitioners were aware of the sales in the year 1965 is deemed to be correct even then the suit cannot be said to be barred by time and having been brought at a point of time beyond were prescribed by law for filing of such suit. The findings of the learned Addl. District Judge on-the said issue being against the law and weight of the evidence on record is accordingly reversed.

6.As to the maintainability of the first suit I am in agreement with" the learned counsel for the petitioners .when he states that land beingadmittedly in possession of tenants and declaration would suffice and there is no need to sue for actual possession. The first suit is, therefore,maintainable in the present form.. .

7.Before parting with this judgment I may state here that as would be apparent from the evidence led by parties available on record the said so- called preliminary issues could not have been decided without recording theevidence on the very merits of the case set up by the parties as to theexistence and validity of the documents impugned in the suit. The learned Addl. District Judge in the process has almost decided the said question offact involving the merits of the case While proceeding to pass the impugned order. This is classic case where the. evidence as to the execution or non- execution of the documents, their validity and existence over-lapse with the evidence required to decide the said preliminary issues. In this case learned trial Court ought not to have undertaken exercise of running of piecemeal trial.

1. For all that has been discussed above, these writ petitions are allowed. The impugned judgment and decrees of the learned Addl. DistrictJudge is set aside. The result would be that the suit shall be deemed to beD pending in the Court of learned Administrative Civil Judge, Ferozewala; . where the parties shall appear on 29.11.2001. The learned trial Court shall frame the remaining issues arising out of the pleadings of the parties'and decide the same in accordance with law after taking such further evidence as parties desire to produce. I may note here that nothing observed in this judgment shall be taken to influence the findings to be recorded by the learned trial Court on the issues to be drawn on merits of the case. No order as to costs.

Copy of this order be immediately remitted to learned

Administrative Civil Judge Ferozewala, who.shall take all steps to decide this old case the year 2001 is out.

(B.T.)Petition allowed.

PLJ 2002 Lahore 993

[Bahaalpur Bench Bahawalpur]Present: TANVIR BASHIR ANSARI, J.

FATEH MUHAMMAD-Petitioner

Versus

PROVINCE OF PUNJAB-Respondent

C.R. No. 256-D of 1986, allowed on 2&10.2001. Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)-

-S. 19--Seting up of Tube well sinking scheme by Govt land allotted tovarious allottees for temporary cultivation with aid of irrigation by means of tubewells—Allottees entered into transaction of sale of their rights-Application moved before Collector for permission of sale of .tenancy rights-Petition moved for deletion of names of vendees on ground of non- payment of consideration was accordingly allowed and new vendees substituted who took possession and acquired status of tenants-Deletion of names from earlier permission challenged, but same could not find favour with collector on ground that permission was only effective for period of sue months and as mutation was not attested within said period, permission automatically lapsed-Appea ailedbeforeCommissioner-Suit for declaration that both orders were without jurisdiction and in violation of Act V of 1912 and were ineffective upon rights of plaintiffs, dismissed by Civil Court-Validity-Period of six months contained in clause 64 of Part IV of Colony instructions was merely directory in nature and was primarily for guidance of officials performing functions under Act V of 1912—It did not lay down prescribed period of limitation as was understood under law of limitation-Non-completion of mutation within period of six months shall not ipso facto nullify permission granted for alienation-Act of collector in passing his order is also nullity in eyes of law as he did passing such order-Procedure undertaken by collector was wholly without authority and offended against principle of natural justiceand were null and void— Collector acted as delegatee of commissionerU/S. 19 of Act V of 1912--As delegatee he could not exercise any power of cancelling or revoking permission once granted-Agreement admittedlyexecuted by "A" in favour of Respondent No. 2 to 7 was fully enforceableat law and could not be defeated upon basis of permission or otherwise U/S. 19 of Act V of 1912-Respondents Nos. 2 to 6 who were appellants in RSA No. 42 of 1986 were fully entitled for specific performance of agreement in their favour-Suit of Respondents Nos. 2 to 6 could not be barred by time as they were admittedly in possession of property in question and in whose favour Mutation No. 235 was also attested-Civil petition allowe'd. [Pp. 998, 999 & 1000] A, B, C & D

judgment

This judgment shall also dispose of R.S.A. No. 42-86 as the samequestion of law and facts is involved in both the cases, 2. In exercise of the powers conferred by Section 2(2) of the. Colonization of Government Lands (Punjab) Act 1912, the Government of Punjab issued notification on 8.9.1952 for setting up of Tube Well Sinking Scheme. The purpose was to grant scheduled tenants leases of uncommanded state waste Land for temporary cultivation with the aid; of irrigation by means of Tube well. In the year 1961 Lot No. 17 measuring 150 acres in Mouza Pakka Tehsil .& Distriqt Bahawalpur was allotted to Abdul ' Karim (half share) and Jaffar Hussain and Zakir Hussain 1/4 share each , under the said Tube well Scheme. In this manner Abdul Karim Respondent No. 8 was allotted 75 acres while the said Jaffar Hussain and Zakir Hussain were allotted 37^ acres each. In 1971 all the said allottees entered into a transaction of sale of their rights in favour of Fateh Muhammad, Akhtar AH, Manzoor Ahmed and Barkat All (all petitioners) and Abdul Hameed and Abdul Aziz Respondents Nos. 9 and 10, according to the said transaction, while Abdul Karim sold 50 acres out of his 75 acres, Jaffar Hussain and Zakir Hussain agreed to sell their total share in favour of the said set of vendees. In order tor fulfill the requirement of Section 19 of the Colonization of Government Lands (Punjab) Act 1912 an application was moved before the Collector and the necessary permission was granted under Section 19 ~, ibid by the .Collector on 16.3.1971. A question arose whether such sale of tenancy rights was in violation of MLR 64, however, by another order of thev Collector dated 15.1.1972 it was held that MLR 64 was no bar to the said alienation. Consequently, Mutation No. 235 was entered on 24.3.J972 in order to give effect to the alienation of tenancy rights as detailed in the preceding paras. As it happened there arose some dispute Abdul Karim one of the allottees/vendors (Respondent No. 8) Abdul Hameed and Abdul Aziz (Respondent No. 9 & 10). According to Abdul Karim Respondents Nos. 9 & 10 had not paid the sale consideration and as such he submitted an f application to the Collector to delete the names of the said Abdul Hameed and Abdul Aziz from the permission under Section 19 granted vide order1\1 dated 16.3.1971. He also requested that instead of the said Abdul Hameed and Abdul Aziz alienation be now allowed in favour of Khushi Muhammad etc. Respondents Nos. 2 to 6.and Naseem Akhtar wife of Abdul Karim Respondent No. 7. This application was granted and permission was given to the effect that the original allottes could alienate land of the share-of M/s. Abdul Hameed and Abdul Aziz Respondents Nos. 9 & 10 in favour of Respondents Nos. 2 to 7. It may he noticed that the right of the petitioners namely Fateh Muhammad and 3 others remained unaffected

.3.Another development took place that Zakir Hussain one of the original allottees backed out from his commitment to sell his sharemeasuring 31% acres. As a result 50 acres of Abdul Karim and 37 h acres of Jaffar Hussain were alienated in favour of the petitioners and Respondents Nos. 2 to 7. Mutation No. 235 was accordingly sanctioned on 8.5.1974. The petitioners were put in possession and acquired the status of tenants under

• the Government in accordance with Section 10(4) of Act of 1912.

4.It appears that Abdul Hameed Respondents Nos. 9 and 10 filed an application before the .Collector Bahawalpur in which the acl of deleting their names from the earlier permission under Section 19 dated 16.3.1971as challenged and it was claimed that Abdul Karim could not enter into a

transaction of sale in favour of Respondents Nos. 2 to 7. Respondents Nos. 9 and 10 and Abdul Karim Respondent No. 8 were heard and without any

notice to the petitioner or Respondents Nos. 2 to 7, the Collector passed its order dated 22.5.1973 Ex.P. 9 whereby the basic permission dated 16.3.1971

^a^fsed by the Collector himself under Section 19 of the Act 1912 was set aside.-The main ground that found favour with the Collector was that the

permission granted on 16.3.1971 was only effective for a period of six months thereof and as the mutation was not attested within the said period the

permission granted vide order dated 16.3.1971 automatically lapsed. It was\ also held that the subsequent order passed on 15.1.1972 and 16.10.1972 were also ipso facto illegal. Against this order of the Collector an appeal waspreferred before the Commissioner Bahawalpur Division T)y. Khushi

Muhammad etc. Respondents Nos. 2 to 7. Vide order dated 1.3.1974 the said appeal was dismissed and the order of the Collector Bahawalpur Division

feted 22.5.1973 was upheld. The petitioners challenged the order of the ector dated 22.5.1973-and the order of the Commissioner^dated1,3.1974.

through a civil sui% wherein, it was contended that both the said orders Vere without jurisdiction and in violation of the Act V of 1912 and were ineffective upon the rights of the plaintiffs. The suft was contested by Respondents Nos. 1,8, 9 & 10 only. Vide judgment and decree dated 27.5.1980 the learned trial Court dismissed the suit of the petitioners mainly on the ground of jurisdiction in as much as it was held that the suit was barred Under Section 36 of the Act V of 1912. It was also held that permission under Section 19 was for a period of six months and since no mutation was sanctioned within , the specified period the permission given .vide order dated 16.3.1971 was -Brightly set aside. It was also held that the appeal filed by Respondents Nos. 2 ^ to 7 was rightly dismissed by the. Commissioner. As regards the ease of the petitioners it was held that as Mutation No. 235 was sanctioned in their favour on 8.5.1974 much beyond the period of six months from the original permission under Section 19 issued on 16.3.1971, it created no. right of tenancy for the petitioners. Resultantly, the suit of the petitioners was dismissed vide judgment and decree dated 27.5.1980.

5.Aggrieved of the said judgment and decree the petitioners filed an appeal which was also dismissed vide -judgment and decree dated 15.6.1986by the Addl. District Judge, Bahawalpur. While coming to this conclusion, the learned Appellate Court also held that the permission under Section 19of Act V of 1912 could only enure for a period of six months and anymutation attested thereafter would not confer any right upon the transferee.

6.The present Civil Revision is directed against the aforesaid judgments of the lower Courts. The Respondents Nos. 2 to 7 namelyKhurshid Muhammad and others claimed that Abdul Karim respondent f No. 8 had himself applied to the Collector that the original vendees namely Abdul Hameed and Abdul Aziz Respondents Nps. 9 & 10 did not pay the sale consideration and that their names be deleted as vendees from the order of permission dated 16.3.1971. He also contended that he has entered into an agreement of sale with Khushi Muhammad and others Respondents Nos. 2

to 7 and that the order of permission under Section 19 may accordingly be amended so as to. incorporate the names of Respondents Nps. 2 to 7. This \%t was duly implemented by the Collector and the names of ^Respondents Jf os. ' 2 to 7 were entered in the permission under Section 19 in place of Abdul Hameed and Abdul Aziz. Subsequent order passed by the Collector on "^ 22.5.1973 by which the basic order for permission under Section 19 dated 16.3.1971 was set aside there by nullifying the Mutation No. 235 attested on 8.5.1974 also adversely effected Respondents Nos. 2 to 7. They filed an appeal before the Commissioner which was dismissed by order of the Commissioner dated 1.3.1974. Respondents Nos. 2 to 7 then filed a civil suit for specific performance of the agreement to sell executed in their favour by Abdul Karim and in the same process sought to put at naught the order of -the Collector dated 22.5.1973 and of the Commissioner dated 1.3,1974.

7.The said civil suit was, however, dismissed by the trial Court mainly on the ground of limitation and on the ground that both the Collects? and Commissioner had ample power to revoke earlier permission granted under Section 19 vide earlier order dated 16.3.1971. The suit was dismissedvide judgment and decree dated 22.2.1983. The appeal filed by Respondents Nos. 2 to 7 against the said judgment and decree was also dismissed vide judgment dated 15.5.1986 passed by Addl. District Judge, Bahawa lpur. Khushi Muhammad etc. filed RSA No. 42 of 1986 which shall also be decided by this judgment.

8, Mr. M. Rahim, .Advocate, learned counsel appearing for petitioners in Civil Revision No. 256-D-86 and Mr. Aejaz Ahmed Ansari,Advocate appearing for the appellants in RSA No. 42 of 1986 have raised the following contentions:-

(i) that the Collector was not legally competent to fix and impose the condition of six months for the completion of sale in the order dated 16.3.1971 made under the provisions of Section 19 of the Colonization of Government Lands (Punjab) Act of 1912.

(ii) that this period of six months if at all is not a period prescribed by law and that no rigours of the law of limitations can apply to this provision. According to the learned counsel for the petitioners even if such period is prescribed under a notification this shall be for the internal guidence of the concerned officials.

(iii) that in any event for different reasons which have been amply brought on the record it was not possible to complete the mutation within the period of six months which was beyond the control of the petitioners. Firstly, the period of six months was not inflexible. Secondly no act of default is attributable to the petitioners for the lapsing of the said period. If there was any dispute which might have caused the delay in the attestation of mutation, it was on account of the dispute between Abdul Karim on the one hand and Abdul Hamid and Abdul Aziz on the other and also on account of objection regarding MLR 64 Which was subsequently removed. The petitioners were not in default and could not be penalized.

(iv) that even if the Collector was competent to fix the condition of six months under Section 19 of Act V of 1912, as he had himself extended the same after the lapse of said period of six months,he could not turn around and revoke the same on the ground that the original period of six months had lapsed. -

(v) that under Section 19, the permission is to be granted by the Commissioner or by such other officers as he may by written order empower. The Collector for the purpose of grant of permission only acts as a' delegatee of a Commissioner. Once the permission has been granted, his delegated powers are exhausted and he had no jurisdiction to withdraw the said permission without further sanction in this behalf from the Commissioner.

(vi) that once the permission have been given by the Collector and the said permission was duly acted upon and a mutation having been duly attested, it had become past and closed transaction and the Collector or the Commissioner had no locus poenileuae to revoke the same.

(vii) that the petitioners were not given any opportunity er being heard by the Collector before passing the order dated 22.5.1973. Both the orders of the Collector and the judgment in appeal by the Commissioner dated 1.3.1974 offended against the principles of natural justice and are null and void.

1. On the other hand Mr. M.M. A. Pirzada, Advocate the learned counsel for the respondents appeared for Respondents Nos. 8 and 9, Mian Muhammad Bashir / .A.G. represented Respondent No. 1 while Malik Abdu lGhafoor Advocate appeared for Respondent No. 10. Malik Abdul Ghafoor Advocate contended that Tube Well Sinking Scheme was promulgated.' through otification No. 4717-C dated 8.9.1952. He referred to Clause 2 of the said notification to contend that the Government of Punjab is competent' "\ to grant schedule tenancies for temporary cultivation on the terms and conditions specified there for. According to him no person shall be entitled as of right to receive a lease and that the Financial Commissioner shall have an absolute discretion in the selection of the lessees. He further submitted that according to Clause 64 of Part 2 of Colony iastructions, it has beenfV-, specifically provided that while permitting a tenant to alienate Ms tenancy under Section 19 of Act V of 1912, the name and full details of alienee should in variably be stated in the permission. According to Clause 64 there should also be a time limit specified in each case not exceeding six months after which the permission should be considered to have been withdrawn should the contract not have been concluded by them. He further submitted that -the original permission granted by order dated 6.3.1971 by the Collector had lost its efficacy after lapse of six months. The learned counsel for the' respondent placed reliance upon the case of Engineer Inchief vs. Jalal-ud-Din PLD 1992 SC 207 to contend that under Section 21 of the General "~ Clauses Act, authority which can passed an order is entitled to vary, amend, add or rescind that order. He also relied upon the case of Masud Alt vs. Alt Haibat Khan PLD 1958 (W.P.) Lahore 340 to argue that the Civil Court has no jurisdiction to question the consent of the Collector. On behalf of the petitioners reliance was placed upon Sher Muhammad Khan vs. Ilam Din 1994 SCMR 470 to support their contention that an agreement to sell of land situate in Colony Area not amounting to a sale-deed itself is not in violation of Section 19 of Act V of 1912 and can be specifically enforced under the law. For .similar effect reliance was placed upon Mst, Rehmat Bibi vs. Jhando Bibi, 1992 SCMRlSlO.

10.Arguments have been heard and record perused.

1. Some important facts are admitted between the parties on the record. The agreement to sell by Abdul Karim, Jaffar Hussain and ZakirHussain in favour of the four petitioners and Abdul Hameed and Abdul Aziz is admitted. It is also admitted thai the D.C/Collector had duly grantedpermission under Section 19 of Act V of 1912 vide order dated 16.3.19,71 to complete the alienation of tenancy rights. It is also admitted that anobjection was raised that the proposed sale offends against MLR 64. TheCollector examined and decided this objection vide order dated 15.1.1972. Bythis order he directed that the order dated 16.3.1971 originally granting" permission for alienation under Section 19 be implemented. This order .dated15.1.1972 was passed 10 months after the original permission. The Collector had himself not considered the period of six months as a term of limitation which could ipso facto nullify the permission granted on 16.3.1971. It is thus" held that the period of six months contained in Clause 64 of Part TV ofColony instruction is merely directory in nature and is primarily for guidance of the officials performing functions under Act V of 1912. It does not lay down a prescribed period of limitation as is under scud under the law of limitation. None completion of mutation within the period of six months shall not ipso facto nullity the permission granted for alienation.

12.It is also admitted on the record that after the second order of the Collector dated 15.1.1972 Mutation No. 235 was duly entered on 24.3.1972. It was again on account of an act'neither attributed to the petitioners of Civil Revision No. 256-D-86 or the appellants of RSA No. 42 of 1986 that the matter of attestation of mutation was further post-poned. This time it was on the complaint of respondent No. 8 Abdul Karim who statedthat as Abdul Hameed and Abdul Aziz were not complying with the terms of Sale their names be deleted from the permission order dated 16.3.1971 and instead the names of respondents Nos. 2 to 7 (appellants in ESA 42-86) be incorporated instead. The necessary amendment in the permission was made on 16.10.1972. It .would thus be manifest that the period of six months has never been treated to be mandatory within which the mutation had to be attested. The fact that one of the original allottees namely Zakir Hussain refused to abide by the alienation is also not to be ignored. It was after clearing all the maze of disputes that intervened that it was finally possible to attest Mutation No. 235 dated 8.5.1974 in favour of petitioners and Respondents Nos. 2 to 7 who thus obtained status of tenants of the government under Section 10(4) of the Act V of 1912.

13.Whatever be the merits of the application filed by Respondents Nos. 9 & 10 before the Collector, the D.C/Collectdr had ho jurisdiction whatsoever to have set aside his earlier orders passed on 16.3.1971 and 16.10.1972 on the ground that a period of six months had since elapsed from 16.3.1971 and that permission bad become extinct The reliance placed upon Clause 64 of Part IV of Colony instruments is futile and baseless. The act of the learned Collector in passing his order dated 22.5.1973 is also a nullity in the eyes of law as he did not even issue any notice to the petitioners or the Respondents Nos. 2 to 7 before passing such orders. Both the petitioners and Respondents Nos. 2 to 7 were persons who were adversely effected by the order of the Collector. The procedure undertaken by Collector was wholly without authority and offended against the principle of natural justice andwere null and void.

1. The appeal filed against the order of the Collector dated22.5.1973 before the Commissioner culminated in the order dated 1.3.1974 by virtue of which the order of the. Collector was maintained. This order of the Commissioner was also illegal as even the Commissioner did not issue notice to the petitioners and passed the order behind their back. The Collector acted as a delegatee of the Commissioner under Section 19 of the Act V of 1912. As a delegatee he could not exercise any power of cancelling or revoking the permission once granted. The Collector had no power to review his own order. The agreement admittedly executed by Abdul Karim in favour of Respondents Nos. 2 to 7 was fully enforceable at law and could not be defeated upon the basis of the permission or otherwise tffider Section 19 of Act V of 1912. The Respondents Nos. 2 to 6 who are appellants in RSA No. 42 of 1986 were fully entitled for specific performance of the agreement / in their favour. The suit of Respondents Nos. 2 to 6 could not be barred by time as they were admittedly in possession of the property in question and in whose favour Mutation No. 235 was also attested on 8.5.1974.

2. As a result of aforesaid discussion this Civil Revision is allowed 0and the judgment and decree dated 15.6.1986 of the Appellate Court and the judgment and decree dated 27.5.1980 of trial Court is set aside with the result that the suit of the petitioners is decreed as prayed for. Parties to bear their own costs.

(B.T.)Petition allowed

PLJ 2002 Lahore 1000

Present: tanvir bashir ansari, J.

FAZAXDIN-Petitioner

versus

AHMAD RAZA etc.-Respondents C.R. No. 127-D of 1991, heard on 1.11.2001.

Civil Procedure Code, 1908 (V of 1908)-

—S. 12(2) & US-Revision Petition-Declaration of order of Revenue hierarchy without lawful authority arid of no legal effect by High Court in writ petition-Suit challenging orders of High Court dismissed by Civil Judge-Appeal also failed before Addl. District Judge-Challenge to- Petitioner not party before High Court in Writ Petition—Legal remedy available to petitioner instead of filing civil suit-Question of-If petitioner was aggrieved of final judgment passed in writ petition, appropriate remedy available to him was to approach High Court u/S. 12(2) CPC if befulfilled requirements of said provision of law-Held: Both lower courts'were correct in holding that in view of judgment of High Court it was not possible for lower Courts to either entertain or adjudicate upon matter which had already been finally decided by High Court-Petition without .merit accordingly dismissed.[Pp.lQ03]A&B

judgment

This judgment shall also decide the Civil Revision No. 128-D-91, C.R. No. 129-D-91 and Civil Revision No. 130-D-91 as the same question of law and facts is involved in all these cases.

1. Brief facts are that originally the suit property "belonged to oneNoor Ahmed Shah the predecessor-in-interest of the respondents whoowned 50 acres 1 Kanal and 3 marlas of land in mouza Trinda Sovay Khan in Tehsil and District Rahimyarkhan. According to the material oa therecord the said Noor Ahmed Shah alienated 11 Kdnals 10 marlas out of the aforesaid land in favour of Syed Safdar Ali Shah Respondent No. 5,However, before the mutation could be sanctioned the said Noor Ahmed Shah died on 29.5.1963. On 10.11.1963 the Assistant Collector II, observedthat since 50 acres of land is minimum economic holding only \ Kanal and 3 marlas could be mutated in favour of Safdar Ali Shah. This order of sanction of mutation dated 10.11.1963 was challenged in an appeal before the Collector by 'Respondent No. 1. However, this appeal was dismissed vide order dated 4.6.1964. The revision was filed and the case was remanded on 26.6.1964 for fresh decision. After the remand the appeal was again dismissed by the Collector vide order dated 20.10.1964. Safdar Ali Shah filed a revision petition which was accepted on 3.12.1964. A further revision filed by Ahmed Raza etc. was dismissed by the Member Board of Revenue on 27.6.1967. Ahmed Raza etc. respondents challenged the order of the Member Board of Revenue dated 27.6.1967 by means of W.P. No. 1835 of 1967. It may here be mentioned that after the purchase of 11 kanals 10 marlas out of thetotal holding of Noor Ahmed Shah, Safdar Ali .Shah Respondent No. 5 alienated different parcels of land. In C.R. No. 127-D-91, one Kanal 10marlas situated inKhataNo. 27/39 was transferred in favour of Fazal Din petitioner vide Mutation No. 395. In C.R. No. 128-D-91 land measuring 16marlas was transferred by Respondent No. 5 in favour of Muhammad Ismailpetitioner vide Mutation No. 560. In C.R. No. 129-D-91 land measuring 10marlas was alienated by Respondent No. 5 in favour of the petitioner Abdul Hamid vide Mutation No. 395. In C.R. No. 130-D-91 land measuring 16marlas was alienated by Respondent No. 5 in favour of Muhammad Bux vidt Mutation No. 395. All these mutations in favour of respective petitioners were made and attested on the basis of the judgment of the Addl: Commissioner, Bahawalpur dated 3.12.1964. It may here be mentioned that before the learned Addl; Commissioner, Ahmed Raza Respondent No. 1 had admitted the transaction between Respondent No. 5 and his deceased father namely Noor Ahmed Shah.

All these orders on the revenue side as mentioned above werechallenged by Mst. Jamila Khatoon etc. through W.P. No. 1835/1967. Thesaid W.P. was heard and decided by my learned brother Abdul Shakoor-us- Salam, J.- vide judgment dated 24.11.1975. By the said judgment the ordersof the learned Addl. Commissioner dated 26.10.1964 & 3.12.1964 and the order of the Member Board of Revenue dated 27.6.1967 were declared to bewithout lawful authority and of no legal effect. Subsequently on 26.5.1977 Mutation No. 947 was attested in which the earlier mutation was reviewed.Aggrieved of the aforesaid, the petitioner filed a suit for declaration to the effect that he was the owner in possession of the land which he hadpurchased from Respondent No. 5 and that Mutation No. 947 dated

26.5.1977 was ineffective upon the rights of the petitioners. In the said suit the challenged the orders culminating in the final order of the High Court in W.P. No. 1835 on the contention that he was not impleaded as a party in those proceedings and was thus not bound by the said judgment. The suit was resisted by Respondents Nos. 1 and 2 on the one hand and Respondents No. 3 & 4 on the other. Separate written statements were filed. It was contended therein that as the final order was passed by the High Court in W.P. No. 1835, the same could not be challenged in the Civil Court The learned trial Court vide judgment and decree dated 27.1.1990 dismissed the suit of the petitioner mainly on issue No. 2. The trial Court upon the said issue came to the conclusion that the final judgment with respect to the controversy between the parties was made by the High Court vide its judgment dated 24.11.1975 passed in W.P. No. 1835 of 1967. It was held that after the incorporation of Section 12(2) CPC on 26.3.1980, the petitioner should have availed of the remedy under Section 12(2) CPC by moving an appropriate application before the High Court. It was held upon the strength ' of Mst: Afroz Jehan. vs. Mst. Noor Jehan and others 1988 CLC 1318 that although the petitioner was not a party before the High Court in those proceedings, he can still invoke the provision of Section 12(2) CPC, notwithstanding being a stranger to the proceedings. The petitioner preferred an appeal against the said judgment and decree. The said appeal was dismissed vide judgment and decree dated 6.4.1991 passed by the Addl. , District Judge, Rahimyar Khan. The learned Appellate Court also came to the conclusion that in presence of the judgment dated 24.11.1975 passed by the High Court in W.P. No. 1835 of 1967 the Civil Court has no jurisdiction, 4.Mr. A.R. Tayyab, Advocate, learned counsel for the petitioner relied upon the case of Subedar Muhammad Hussain vs. Mst. Shah Begum arid others 1990 MLD 2100, wherein, it was held that Section 12(2) "CPC is not applicable against a judgment passed by the High Court in exercise of itswrit jurisdiction.

5.On the other hand, Sardar Muhammad Hussain Khan, Advocate learned counsel for the respondents stated that view canvassed by the learned counsel for the petitioner has been departed from by the rule laid down by the Supreme Court of Pakistan. He referred to Secretary Ministry of Religious Affairs & Minorities & 2 others, vs. Syed Abdul Majid 1993SCMR 1171 and Mst. Safia Bibi vs. Mst. Aisha Bibi 1982 SCMR 494 tocontend that the provisions of Section 42(2) CPC are squarely applicable to a final judgment passed by the High Court or Supreme Court. In the case ofSecretary Ministry of Religious Affairs &. Minorities & 2 others vs. Syed Abdul Majid 1993 SCMR 1171 it was held by their Lordships of the SupremeCourt that Section 12(2) CPC shall apply to constitution petitions filed in the High Court. Similarly in Mst. Sofia Bibi.vs. Mst. Aisha Bibi 1982 SCMR 494it was held that order of the High Court passed in Writ Petition alleged to be based on fraud and misrepresentation, has to be challenged by application before the High Court under Section 12(2) CPC and not by a separate suit The rule laid down in Ghulam Muhammad vs. M. Ahmad Khan etc. NLR 1993 SCJ 290 reiterate that Section 12(2) CPC is fully applicable in respect of a judgment passed by the High Court. It was held therein that persons not party to suit can also file application under Section 12(2) CPC.

6.The upshot of the above discussion is that if the petitioner was aggrieved of the final judgment passed in Writ Petition No. 1835 of 1967 the appropriate remedy available to him was to approach the High Court under Section 12(2) CPC if he fulfilled the requirements of the said provision Of law. Both the learned lower courts were correct in holding that in view of the judgment of the High Court dated 24.11.1975 it was not possible for the lower courts to either entertain or adjudicate upon the matter which has already been finally decided by this Court

7.In view of the above, this Civil Revision has no merit and is hereby dismissed. Before parting with this judgment it is observed that if anapplication under Section 12(2) CPC is preferred by the petitioner in the proper forum he may be entitled to a sympathetic consideration regarding the period of limitation. Parties to bear their own costs. .

(B.T.)Petition dismissed.

PLJ 2002 Lahore 1003

.Present: tanvir bashir ansari, J.

Syed ZULFIQAR SHAH-Petitioner

versus

REHMAT ALI SHAH MAHMOQD etc.»Respondents W.P. No, 1468 of 1989, heard o\i 9.10.2001.

Punjab Agricultural Produce Markets Ordinance, 1978 (XIII of 4978)--

—S. 24--Constitution of Pakistan, 1973, Art 199--Suit for recovery-Decreed by Arbitration Board Market Committee-Application to set aside award dismissed by Civil Court-Constitutional petition-Expression "dealer" appearing in Section 2 (b)-Definition of-Person in order to qualify to be dealer under Ordinance must be person who sets up, establishes, uses or allows to be used any place for purchase or sale of agricultural produce-­There is nothing on record to .prove that petitioner had set up or established any such place within notified Market area—Petitioner would thus not qualify to be dealer within meaning 'of term as given in ordinance-Under Section 24(a) jurisdiction of Arbitration Board was taken away in respect of'dispute arising between parties who w«re dealers-^As parties were not dealers under kw, Arbitration Board acted with jurisdiction under Section 24 in granting impugned award/decree-Period of limitation for suit before Arbitration Board has not been prescribed--In such situation laches or acquiescence might not be lightly inferred unless there was positive material on record showing conscious renunciation of his right by plaintiff-Petitioner had participated in proceedings of Arbitration Board-Held : After having submitted to jurisdiction of said Tribunal petitioner could not in face of adverse findings against him by Tribunal be allowed to challenge its jurisdiction- Petition dismissed. [Pp. 1007 & 1008] A, B, C & D, E

Mr. Muhammad ZaffarHashmi, Advocate for Petitioner. Ch. Naseer Ahmed, Advocate for Respondents. Date of hearing: 9.10.2001.

judgment

This judgment shall also dispose of W.P. No. 624/90 as the same question law and fact is involved in both the cases.

2.Respondent Choudhary Rehmat Shah Muhammad Commission agents Ghala Mandi Chistian filed a suit against the petitioner Syed ZulfiqarShah before Chairman Arbitration Board Market Committee Chistian for the recovery of a sum of Rs. 82117/60. The contention raised in the plaint was that the petitioner/defendant had business dealings with the respondent/plaintiff. The respondent used to sell and purchase agricultural produce from the petitioner. According to the accounts maintained by the respondent a sum of Rs. 82117/16 became due against the .petitioner uptil 9.12.1980. Upon refusal of the petitioner to pay the said amount, the respondent was constrained to file the said suit.

1. The petitioner contested the suit on the ground that the suit wasfiled after lapse of 9 years which proved acquiescence on behalf of the respondent. On merits it was contended that) the business transactionsbetween the parties only lasted uptil 12.1.1980 whereafter there were nobusiness dealings of any nature between the parties and that the claim of the respondent was wholly frivolous. Later the petitioner objected to thejurisdiction of the Arbitration Board through a separate application filed on 26.1.1989. This application was rejected by the Arbitration Board vide orderdated 19.7.1989.

2. After recording the evidence of the parties, the ArbitrationBoard Market Committee decreed the suit of the respondent in the sum of Rs. 85401/88 against the petitioner vide judgment and decree dated26.8.1989.

5.The petitioner filed an application dated 14.9.1989 in the Court of the Civil Judge, Chistian praying for the setting aside of.the award of Arbitration Board dated 26.8.1989 and the-decree based upon it He also moved an application dated 28.9.1989 under Section 47 CPC praying for furnishing of personal security in decretal amount. The application to set aside, the award was dismissed by the trial Court vide order dated

10.10.1989. The objection petition was also dismissed by the learned Civil Judge by a separate order dated 10.10.1989. The present Writ Petition has, been filed to challenge the award of the Arbitration Committee/judgment and decree dated 26.8.1989.

6.in Writ Petition No. 624/90 suit for recovery of a sum of Rs. .32394/74, was filed by Muhammad Chiragh respondent therein against'Malik Inayat and Master Muhammad Siddique before the Chairman Arbitration Board Market Committee Chishtian. The contention of theplaintiff as contained in the plaint was that the parties had business with each other. According to the plaint a sum of Rs. 30,000/- was given by theplaintiff to Malik Inayat Petitioner No. 1 upon the surety of Master Muhammad Siddique Petitioner No. 2 for purchase of wheat. As MalikInayat Ullah petitioner failed to supply wheat, the suit for recovery was filed against him. Through his written statement Petitioner No. 1 defendantdenied the claim of Muhammad Chiragh plaintiff.

7.The Arbitration Board Market Committee Chishtian vide its award/judgment and decree dated 3.5.1989 decreed the suit of MuhammadChiragh against Petitioner No. 1 Malik Inayat Ullah.

8.An application under Section 47 was filed during the course of execution which was dismissed vide order dated 19.5.1990 passed by the Executing Court. Malik Inayat Ullah has challenged the award/judgment and decree of the Arbitration Board Market Committee Chishtian through the said writ petition.

9.The learned counsel appearing in support of the writ petition has contended that the entire proceedings before the Arbitration Boardculminating in the judgment and decree impugned are coram non judice. It was submitted that the jurisdiction of the Arbitration tBoard was limited andwas not attracted in the circumstances of the case. He referred to Section 24(i) of the Punjab Agricultural Produce Markets Ordinance (XIII) of 1978 which is reproduced below :--

Section 24(1). Arbitration Board : (1) The Government may, by notification direct that all or any of the disputes, other than a dispute to which all the parties are dealers, arising in a notified market area, and relating to such matters connected with agricultural produce as may be prescribed shall be referred to a Board of Arbitrators constituted under this Ordinance in such manner, for such period and subject to such provisions as may be prescribed."

10.According to the learned counsel for the petitioner theArbitration Board has no jurisdiction in the matter, the parties were only dealers and no dispute to which all the parties are dealers could be decided by the Arbitration Board. He relied upon the contents of the plaint to suggest that respondent/plaintiff and the petitioner are commission Agents and "BEUPART respectively and are thus covered under the term dealers. He next submitted that the Arbitration Board even otherwise had no territorial jurisdiction to deal with the matter as according to plaint itself the petitioner used to make purchase from other Markets and thus the Arbitration Board of Market Committee Chishtian, could not entertain or decide the suit as the dispute did not arise .within the limits of the said notified market area. The learned counsel referred to Manzoor Hus&ain vs. Board of Arbitrators, Market Committee Khanewal 1984 CLC 1585 to contend that in case of dispute between two dealers the Arbitration Board would have no jurisdiction under Section 24 of Ordinance, 23 x>f 1978. He also relied uponKhalid Abbas vs. D.C./Collector, Okara etc. N.L.R. 1999 Revenue 177 for the same proposition. It was next contended that suit before the Arbitration Board was hopelessly barred by time or atieast suffers from inordinate delay amounting to laches and acquiescence. According to the learned counsel for the petitioner even if no limitation is provided, the Ms must commence within a reasonable time otherwise the suit shall be barred by laches. It would also be deemed that the plaintiff has acquiesced in not filing the proceedings by long silence, He referred to .Abdul Rahman vs. KhudaBakhsh & 2 others 1972 SCMR 403 and Najmuddin vs. Zamir Ahmad PLD 1982 Karachi 188. It was lastly contended that any law which had the effect of curtailing the jurisdiction of the Civil Court must be construed strictly. As section ,24 has the effect of ousting the jurisdiction of the Civil Court, the Arbitration Board-can exercise the jurisdiction only when all the conditions of jurisdiction before it are fulfilled. Reference was made to Khawaja Muhammad Akbar & 5 others vs. Khawaja Fateh Muhammad & 15 others 1993 MLD 76 and Rahmat Khan vs. Abdul Razzaque 1993 CLC 412.

11.On the other hand, the learned counsel for the respondents submitted that the term dealer is not to be understood according to its ordinary dictionary meaning but has to be interpreted in accordance with the definition of the term as given in Section 2(b) of Ordinance XXIII of 1978. He further referred to provisions of Section 6 to contend that any person who wishes to work as % dealer in a notified market area may apply on the

•prescribed form for a licence in this behalf. It was submitted that Section 6 ibid regulates the grant of a licence without which a dealer can not lawful lly .operate under the Ordinance.

12.He thus submitted that the petitioner does not fulfill the above mentioned statutory requirements and thus can not claim to be a dealer. Upon the question of limitation the learned counsel submitted that the Arbitration Board for Market Committee Chishtian was constituted for the first time by notification No. P.DXIV-5/81 dated 23.10.1986. Thus it could not be said that the filing of the suit'was hit by either laches or by the principal of acquiescence. He next contended that the petitioner had participated in the proceedings before the Arbitration Board. He even examined himself as a witness after the conclusion of"the evidence of the plaintiff/respondent and having taken part in the proceedings could hot, inthe face of an adverse order turn around and challenge the jurisdiction of the Special Tribunal. He referred; to Ch. Abdul Qadir vs. Lahore Commercial Bank Ltd, & 7 others 1980 SCMR 280, Feroz Shah & 2 others vs. Manzoer Hussain Shah and 84 others 1969 SCMR 96(1), Abdul Lateefvs. Mst. Surat Khatoon & others 1988 CLC 1560 arid Ahmad Khan and another us, Zahur Ahmad Khan Tareen and 7 others PLD 1986 Lahore 184.

13.Arguments of the learned counsel for the parties have beenheard and record perused.

14.The term 'dealer used in the Punjab Agricultural Produce Market Ordinance (XXIII) 1978 is defined in Section 2(b) ibid which isreproduced as under:--

2(b) "Dealer"- means any person who within the notified Market Area sets up, establishes uses or allows to be used any place for the purpose or sale of the agricultural produce." .

It is clear from this definition that a person in order to qualify to be a dealer .under the Ordinance XXIII of 1978 must be a person who sets up, establishes, uses or allows to be used any place for the purchase or sale of the agricultural produce. There is nothing on the record to prove that the petitioner has set up or established any such place within the notified Market Area. The petitioner would thus not qualify to be a dealer within the meaning of the term as given in the Ordinance, 15. Section 6 of the Ordinance further provides for the procedure of grant of licence to a dealer to work in any notified market area. The licence is to be granted in by the Market Committee concerned subject to the fulfillment of the conditions of grant of licence under Section 6 sub-section (2) ibid. The grant of licence aad its terms are regulated by the Provisions of Section 6 of Ordinance XXIII of 1978. Licence fee not exceeding Rs. 1000/-has been prescribed. Licence under the Ordinance shall not be granted to a minor, a person of unsound mind, a declared insolvent or if he has beenguilty of criminal misappropriation etc. Section 6 sub-section 3 makes the carrying on of a business of a dealer in a notified market area subject toobtainingpf a valid licence. Thus no person can lawfully carry on business of a dealer without fulfilling of the conditions of Section § of the Ordinance.Applying this criteria to the case in hand, the petitioners do not qualify to be a dealer under the Ordinance.

1. Under Section 24(a) the jurisdiction of the Arbitration Board is taken away in respect of the disputes arising between the parties who are dealers. As the parties are not dealers under the law, the Arbitration Board with jurisdiction under Section 24 in granting the impugned award decree. The contention of the learned counsel for the petitioner that the suit of the respondent before the Arbitration Board was barred by laches or by acquiescence is also not made .out from the record. Section 24 deals with the constitution and the. procedure before the Arbitration Board. Although specific procedure has been laid down in Section 24, the period of limitation for a suit before the Arbitration Board has not been prescribed. Whenever the legislature in its wisdom choose not to prescribe a period of limitation it implies that the legislature had deliberately and with conscious intention omitted to lay down any specific bar of limitation. In such situation laches or acquiescence may not be lightly inferred unless there is positive material on the record showing a conscious renunciation of his right by a plaintiff. No such material exists on the record to suggest such conduct of the respondent/ plaintiff. The respondent has placed on the record copy ofnotification No. P.DXIV-5, dated 23.10.1986 to submit that no Arbitration Board of Market Committee, Chishtian was in existence before 23.10.1986. In this view of the matter, the objection regarding laches or acquiescence has no merit. It is also observed that the petitioner has participated in the proceedings of the Arbitration Board. After having submitted to the jurisdiction of the said Tribunal the petitioner could not, in the face of an adverse findings against him by the Tribunal,' be allowed to challenge its j Q jurisdiction. Rule laid down in Ch. Abdul Qadir vs. Lahore Commercial Bank Limited & 7 others 1980 SCMR 280 is fully applicable.

2. In view of the above, there is no merit in the contention raised by the learned counsel for the petitioner, the writ petition is devoid of force and is hereby dismissed leaving the parties to bear their own costs.

(B.T.)Petition dismissed.

PLJ 2002 Lahore1008

Present: abdul shakoor paracha, J.

MUHAMMAD ASLAM-Petitioner

versus

Malik MAQSOOD AHMAD and 17 others-Respondents

Cf.R. No. 1871 of 1990, dismissed on 4.10.2001.

Civil Procedure Code, 1908 (V of 1908)-

-S. 115--Suit for perpetual and mandatory injunction-Dismissal by trial Court-Acceptance of appeal by Addl. District Judge holding fhat earlier litigation between parties ended by way of announcement and since earlier suit was filed on representative basis and land in dispute was "Shamlat Deh" and was meant for general use of all villagers and defendants-petitionerswere restrained from making any construction over it and judgment and decree pronounced in earlier suit was not challenged in appeal, which attained finality-Challenge to-Invasion on right of other co-sharer concept of -It is well settled law that land which had been dedicated for'Rafah-e-Aama' Ghair Mumkan chhapar for general use and benefit of all villagers, all concerned individuals had to accept same along with its characteristics, which could not be extinguished merely on ground of raising construction on it, or by its allotment or purchase-Petitioner might have some right in properly being co-sharer, yet characteristics of same could not be charged, which would remain as Ghair Mumkin Chhapar~0ne co-sharer could not be allowed to act in matter which constituted invasion on right of other co- sharer~Co-sharer in possession of portion of joint property could not change nature of property in his possession unless partition took place by metes 'and bounds-Held: Judgment and decree of Civil Judge was result of misreading of evidence and against law which has been rightly set aside by first appellant Court. [Pp. 1011 & 1012] A, B & C

Mr. Taki Ahmad Khan, Advocate for Petitioner. Mr. Amjid Peruaiz Malik, Advocate for Respondents. Date of hearing: 25.9.2001.

judgment

Hakim Ghulam Akbar, predeeessor-in-interest of the respondents erein, filed a suit for perpetual and mandatory injunction in respect of land measuring 8 Kanal, Ghair Mumkan Chhapar, situated in the area of village Rangpur, Tehsil and District Sialkot, against the defendants-petitioners. It was stated in the plaint that 8' Kanals of land in the estate of Rangpur was part of Shamlaat Deh and earmarked for Ghair Mumkan Chhapar for use and benefit of inhabitants of village. The plaintiff claimed to be in possession of the land as co-sharer of the Shamlaat Deh of Rangpur. The defendants forcibly occupied one Kanal of land and raised construction over 4/5 Marias\ of it. A suit in representative capacity on behalf of Malkan Deh under Order I Rule 8 CPC was earlier filed for mandatory injunction to the effect that the defendants be restrained from interfering with possession of the plaintiff over the land and also for directing the defendants to remove the unauthorised construction raised on part of the.suifi land. Defendants Nos: 1 to 5 and 7 filed joint written statement and contested the suit by pleading inter alia that the suit was not maintainable in the present form, that the plaintiffs were not in pbssession of the land and that the defendants had raised construction over part of the land as co-sharers in the Shamlaat Deh and as such the injunction prayed for could not be legally awarded qua them.

1. Prom the divergent pleadings of the parties, the learned Civil Judge, 1st Class, Sialkot framed the following issues:--

2. Whether the suit is not maintainable in its present form? OPD.

3. Whether the defendants have riased construction over the disputed land on account of being co-sharers in it. If so, its • effect? OPD

4. Whether the plaintiffs are in physical possession of the suit land. If so, to what extent and effect? OPP

5. Whether the plaintiffs are entitled for mandatory injunction as prayed for? OPP

6. Relief.

7. The learned trial Court decided Issue No. 1 in favour of the defendant-petitioner and Issue No. 4 against the plaintiff-respondents and on the basis of the finding dismissed the suit of the respondent-plaintiff. The appeal filed by the plaintiff-respondents in the Court of Additional District Judge was accepted vide judgment and decree dated 14.5.1990. The learned Additional District Judge observed, "that earlier litigation between the parties ended by way of announcement of judgment dated 31.5.1976 (Copy Exh.P. 2) and since the earlier suit was filed on representative basis and the land in dispute was meant for general use of all the villagers and the defendants-petitioners were restrained from making any construction over it ' and the judgment a^d decree pronounced in the earlier Suit was not challenged in appeal, which attained finality. The matter directly substantially in issue stood finally decided between the parties and as such it could not be reheard and decided by the Court on the principle of res-judicata as contemplated in Section 11 CPC". Further it was observed that Shamlaat land enjoying possession of it by the defendants-petitioners is of kind of Ghair Mumkan Chhapar, the parties cannot claim exclusive use and the same can be claimed for general use and benefit of the general public. According to the learned Additional District Judge, Chappar Ghair Mumkan .was meant for public use only, therefore, he accepted the appeal on 14,5.1990 and set aside the judgment and decree.dated 26'.3.1986 of Civil Judge, Sialkot, whereby the suit of the respondents was dismissed.

8. The learned counsel for the petitioner argued that in spite of the fact that the petitioner was found co-sharer in the suit property and a decree was awarded in their favour by he learned Civil Judge which has been- illegally set aside by the First Appellate Court The learned counsel has argued that the possession of one co- sharer cannot be disturbed by the other co-sharer. Reliance has been placed on Muhammad Sharif and 3 others v Ghulam Hussain and another (1995 SCMR 514). Further argued that the co- sharer can retain the possession of joint Khatatill the same is partitioned. In this regard, the learned counsel has made reference to the case reported as Atta Muhammad versus Sahibzada Manzoor Ahmad others -(1992 SCMR 138).

Conversely, the learned counsel for the plaintiffs-respondents has argued that the revision petition was hit by the principle of laches. According to him', no doubt at the time of filing of the revision petition time was not prescribed for filing the petition, under the law but the revision petition filed beyond the period of 90 days is always considered to be hit by the principle of laches, particularly when no explanation has been offered by way of moving an application for further argued that there is no evidence on the record that the petitioner is co-sharer in the suit property and no documentary evidence, Le. revenue record has been produced on the file by the petitioner. Finally, the learned counsel has contended that the land being Ghair Mumkah Chappar meant for public use only, the petitioner under the law could have not raised any construction over it and that the suit earlier filed in representative capacity under Order I Rule 8 CPC in which Muhammad Yaqoob father of Muhammad Ayub Defendant No. l.was also a party, was decided on 31.5.1976 (Copy Exh.P. 2) and that judgment has become final and the matter directly and substantially in issue stands finally decided between the parties and as such it cannot be reheard and decided by the Court on the principle ofresjudicata contemplated in Section 11 CPC.

1. There is no force in the argument of the learned counsel for the respondent that the revision petition is hit by the principle of laches because no period of limitation has been prescribed in law .for filing the revision petition against the judgment and decree dated 14.5.1990. No doubt,'Section 115 CPC providing limitation of 90 days was amended subsequently, but this revision petition has to be taken into account under the old law. However, there is force in the contention- of the learned counsel for the respondents. that the judgment relating to the earlier suit dated 31.5.1976, copy of which is Exh. P.2, is res judicata between the parties under Section 11 CPC. According to Exh.P. 2, the land in dispute was meant for general use of all of. the villagers and the petitioners were restrained from making any construction over it. This suit was filed in representative capacity under Order I Rule 8 CPC after seeking permission about it. Muhammad Yaqoob, father of Muhammad Ayub, Defendant No. 1 was also party to it. The above stated judgment and decree pronounced was not challenged in appeal and as such it attained finality. The matter directly and substantially in issue stand finally decided between the parties, and as such it cannot be reheard and decided by the Court on the principle ofresjudicataunder Section 11 CPC.

In the present case, even there is no proof of the "fact that the petitioner is the co-sharer on the basis of any revenue record, but since there is a finding of fact recorded by the First Appellate Court tliat parties had subsisting right in Shamlat land, but to my mind, in respect of land under Ghair Mumkan Chhapar the parties can only claim for general use and benefit. No individual has the legal-authority or title under the law, and no individual can raise construction on it. Even the judgment dated 31.5.1976 passed in earlier suit has not given any right to any party to raise construction over the land under Ghair Mumkan Chhapar meant for public use only. Report of the Local Commissioner Exh.D-1 shows that! construction has been raised by the petitioner unauthorisedly. It is well L settled law, that the land which has been dedicated for 'Rafah-e-Aama'/Ghair Mumkan Chhapar for the general use and benefit of all the villagers, all the concerned individuals have to accept the same alongwith its characteristics, which cannot be extinguished merely on the ground of raising construction on it, or by its allotment or purchase. The petitioner may have some right in the property being a co-sharer, yet the characteristics of the same cannot be . changed, which would remain as Ghair Mumkan Chfyapar. This view is substantiated by the case, reported as Ali Ahmad and others vs. Municipal Committee, Talagang, through its Administrator, and Z others (PLJ 2001 SC 145), wherein their Lordships of the Hon'ble Supreme Court have held as < under:-

"Character and use of land in question-Scrutiny of record indicated that from the time immemorial land in question, had been dedicated for 'Rafa-i-Aama' meaning thereby that the same was meant for use of general public and that allottee or purchaser, these of, whoever, he might be would have to accept the same alongwith its characteristic which could not be extinguished merely on the ground of allotment or purchase-Ownership of land in question, although vests in appellants, yet the characteristic, of the same could not changed which would remain as Maqbuza "Rafah-i-Aama."

Even if the petitioner is co-sharer in joint immovable property, each co-sharer is deemed to be interested in every inch of subject matter irrespective of quantity of interest. One co-sharer cannot be aBowed to act in a matter which constitutes an invasion on the right of other co-sharer. Co-sharer in possession of a portion of joint property cannot change nature of property in his possession unless partition takes place by metes and bounds. See case reported as Ali Gohar Khan vs. SherAyaz and others (1989 SCMR 13BK The case law cited by the learned counsel for the petitioner (1995 SCMR 514) is pertaining to the co-sharer who is in possession of the land as owner in his' individual capacity, not co-sharer in Shamlat Deh. The judgment cited by the learned counsel for the petitioner is not regarding Ghair Mumkan Chhapar or land dedicated for Rafa-i-Aama' meaning thereby that the same was meant for use of general public.

For what has been discussed above, the judgment and decree of the Civil Judge, Sialkot dated 26.3.1986 was result of misreading of evidence and against the law, which has been rightly set aside by the First Appellate Court by accepting the appeal and decreeing the suit of the respondents-plaintiffs. ,, No illegality or irregularity has been committed by the First Appellate Court in accepting the appeal of the respondents. There is also no jurisdictional error pointed out by the learned counsel for the petitioner in the judgment and decree of the First. Appellate Court dated 14.5.1990. Resultantly, this j revision petition has no force and the same is dismissed with costs.

(B.T.) Petition dismissed!

PLJ 2002 Lahore 1013

Present:MIAN SAQIB NiSAR, J. Khawaja ANWAR HASSAN-Petitioner

versus

NAVEED AHMAD CHAUDHRY and Bothers-Respondents W.P. No. 15333 of 2001, heard on 11.2.2002, (i) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)-

—S. 13(6)-Non-compliance of tentative rent order by tenant-Tenant's defence struck off—Rent controller while doing so, has no jurisdiction to pass recovery order for arrears of future rent. [Pp. 1014 & 1015] A

(ii) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

--S. 13(6) Constitution of Pakistan (1973), Art. 199-Final stage for determination of rent due would only reach on basis of evidence-Where defence had been struck off, such stage would not arrive, therefore, Rent Controller had no jurisdiction to determine final amount due from tenant—Impugned orders of forums, below, in directing tenant to make payment of rent being patently illegal and without jurisdiction were declared to be without lawful authority. [P. 1015] B

judgment

An ejectment petition was filed by the Respondent No, 1 against the petitioner, inter alia, on the ground of default, claiming that the rent of premises is Rs. 14,000/- and since July, 1999, the petitioner has failed to pay the rent; besides, enhancement at the rate often percent Was also claimed. The learned Rent Controller, vide order dated 11.9.2000,, passed the following order:--

"Perusal of record transpires that respondent admitted about the payment of rent of Rs. 7,000/- in the month of June 1999. As hire agreement also relates to fittings fixtures and amenities , available in the rented premises and same has been admitted by the respondent so he is bound to pay the hire amount as-well as rent amount as per agreements. Increase of 10% is also admitted on the part of respondent, therefore, respondent is directed to pay hire amount of Rs. 7,000/- for the month of June 1999 and to pay previous arrears of rent etc. since July 1999, till December 1999, i.e,for five months at the rate of Rs. 14,0007- per month, in total Rs. 70,000/- since January 2000 to September 2000, at the rate of Rs. 15.400/- i.e. for 9 months in total Rs. 138J600/- deducting the amount already paid by the respondent subject to production of valid proof, till next date of hearing. He is further directed to pay future rent etc. at the same rate of Rs. 15.400/- till 15th of each month."

Thereafter, an application was moved by the Respondent No. 1, that the petitioner has failed to comply with the order passed under Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, and therefore, his defence be struck off. The learned Rent Controller, vide order dated 4.10.2000, passed the order as follows:-

"Perusal of record transpires that order was passed on 11.9.2000, this order has not been challenged by the respondent in any way, receipts produced by the respondent are not in compliance of order dated 11.9.2000, hence respondent miserably failed to pay rent in accordance with order dated 11.9.2000. As respondent miserably failed to comply with order of Court so his defence is liable to be struck off, and same is hereby struck off. This ejectment ^>^\~"' petition is hereby accepted. Respondent is hereby directed to\ vacate the suit premises within four months and handover the vacant possession to the petitioner, otherwise petitioner shall be entitled to get vacated the suit premises through execution. The petitioner is further entitled for recovery of previous arrears of rent as per order dated 11.9.2000, deducting the amount already paid by the respondent to the petitioner, subject to production of valid receipts. Petitioner is further entitled for future rent at rate of Rs. 15,400/- . till vacation of suit premises."

Aggrieved, the petitioner filed an appeal, which too has been dismissed, vide order dated 9.4.2001.

1. Learned counsel for the petitioner, has conceded that the possession of the property has been. delivered to the Respondent No. 1. However, his grievance is thaf no final determination of rent has been made by the Rent Controller, according to the provisions of Section 13(6), therefore, the direction issued by the Rent Controller, as affirmed in appeal, that the petitioner is liable to pay the arrears of rent as also the future rent, is illegal and unlawful. Conversely, the learned counsel for the Respondent No. 1, has supported the orders.

2. I have heard learned counsel for the parties and find, that according to the provisions of Section 13(6), when the tentative order passed by the Rent Controller, has not been complied with, only option left with the Rent Controller is to strike off the defence of the petitioner, and direct his eviction. However, while doing so, the Rent Controller, has no jurisdiction to pass a recovery order for the arrears or the future rent, because according to the first part of sub-section (6) of Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, the Rent Controller, could only approximately fix the rent, and direct the tenant to make such payment If the tenant makes default in the compliance of such order, his defence is liable to be struck off and the landlord should be put in possession of the property without any further proceedings in the case. However, according to the second part of this sub-section, the Rent Controller, shall finally determine ' 4he amount of the rent due from the tenant, and after determination, and then can direct that the same may be paid to the landlord. This stage of final determination, under the second part of sub-section (6) of Section 13, would only reach, if the determination has been made on the basis of the evidence on record. However, where the defence has been struck off under first part of sub-section (6),"the stage does riot arrive, and therefore, the Rent Controller, has no jurisdiction to determine the final amount due from the tenant. Therefore, the impugned orders of the forums below, in directing the petitioner to make the payment of rent, mentioned in the order of the Rent ,. Controller, are patently illegal and without jurisdiction, thus, these are "declared as without lawful authority. It may be pertinent to state herej that there is further dispute between the parties, Le. whether the rate of rent of the lease premises is Rs. 7,000/- only and the further amount of Rs. 7000/-, which is the rental for the fittings and fixtures, agreed upon between the parties, under a separate hire agreement can form part of the rent, for which the Rent Controller, could make any final determination, under the second part of sub-section (6) of Section 13. However, with a view that no prejudice is caused to either of the parties, in case the respondent, seeks the recovery of the amount of rent of the lease premises or of the fittings and fixtures, through appropriate proceedings the matter is not further dilated upon.

3. In the light of above, this petition is allowed and the impugned orders are set-aside. (A.A.) . . Petition accepted.

PLJ 2002 Lahore 1015

Present maulvi anwar-ul-haq, J. RAFAQAT HUSSAIN and another-Petitioners

versus

SULTAN AHMAD and 2 others-Respondents

W.P. No. 12481 of 1998, heard on 8.3.2002. (i) Punjab Pre-emption Act, 1991 (IX of 1991)--

—Ss. 2(a) & 5-

Civil Procedure Code (V of 1908), O.VH/R. 11-Suit, forpre-

emption-Preremptor whether vested with superior right of pre-emption on the date of sale-Property in question, was admittedly located in urban area, wherein in terms of S. 2(a) of Punjab Pre-emption Act, '1991, no . right of pre-emption existed-Sale, in question, had taken place respectively on 2.11.1993 and 13.12.1993, when property in question, was not subject to right of pre-emption in terms of S. 2(a) of Punjab Pre­ emption Act, 1991. [P. 1017] A

(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--

Ss. 2(a) & 5--Civil Procedure Code (V of 1908), O.Vn, R. ll«Constitution of Pakistan (1973), Art. 199--Repugn&ncy to injunctions of Islam-Provision of S. 2(a)ofPunjab Pre-emption Act, 1991, was declared to be repugnant to injunction of Islam by Supreme "Court in- Haji Rana Muhammad Shabbir Ahmad Khan's case reported as PLD 1994 S.C. 1™ -Defendant's application for rejection of plaint on basis of law declared by Supreme Court in PLD 1994 SC 1 was dismissed by Courts below— Courts below were oblivious of Constitutional provision governing the matter-Judgment of Supreme Court took effect on 31.12.1993~Thus, on the date of both the sale, judgment of Supreme Court had not taken effect and provision of S. 2(a) of Punjab Pre-emption Act, 1991, had not ceased texist-Respondent thus, had no right to pre-empt land in question on the dates of sale-Plaints in suits for pre-emption would stand rejected in circumstances. [P. 1018] B

PLD 1994 SC 1; 1995 SCMR 1385 re/;

judgment

This judgment shall dispose of Writ Petition Bearing No. 12481 of 1998 and Writ Petition No. 12482 of 1998, as common questions are involved.

1. The petitioners in these cases purchased suit land vide registered Sale Deeds dated 2.11.1993 and 18.12.1993, respectively. On 27.3.1994,Respondent No. 1 in these cases filed two civil suits for possession of the siiit property by pre-emption. The petitioners contested both the suit by filing written statements. Thereafter they filed an application under Order VII Rule 11 C.P.C. for rejection of the plaint on the ground that the plots purchased by them are located within Gujranwala Urban Limits and as such in terms of Section 2(a) of the Punjab Pre-emption Act, 1991 no right of pre­ emption exists with reference to such a property. This application was contested by espondent No. 1 in both the -cases. The learned trial Court relying upon the judgment in the case of Haji Rana Muhammad-Shabbir Ahmad Knan, vs. Government of Punjab Province, Lahore (P.L.D. 1994 S.C. 1) proceeded to hold that the said provision had been declared to be against the injunctions of Islam and as such the plaint is not liable to be rejected. This was done vide an order dated 19.2/1995. In both the cases Civil Revisions were filed and these were heard together by a learned Addl:

District Judge, Gujranwala who proceeded to dismiss the same on 22.5.1996.The learned Addl. District Judge proceeded to add that since the Federal Shariat Court had declared the said provision of law to be repugnant to the injunctions of Islam on 30.5.1991, it will be deemed that the said provision of law cease to exist with effect from the said date. Thus the Civil Revisions . - were dismissed on 15.5.1996.

1. The petitioner, present in Court, in person prays that the case be examined and the impugned orders be set-aside. No one has turned up for Respondent No. 1 in both these cases who is represented by Mian Sarfraz-ul-Hassan, Advocate whose name stands duly listed in the Cause list for today

but no one has turned up despite several calls. Respondent No. 1, accordingly is proceeded against exparte.

4.An examination of the impugned order reveals that there was no dispute that the property subject matter of the two suits was located within the limits of Municipal Corporation, Guj ranwala. However, the prayer made by the petitioners was resisted on the ground that Section 2(a) of the Punjab Pre-emption Act, 1991, defining immovable property and excluding immovable property located in the urban area or within cantonment limits from the said definition, has been declared to be repugnant to the injunctions of Islam. Now sale in these cases had taken place, respectively, on 2.11.1993 and 13.12.1993. No gain-saying the fact that a pre-emptor in order to succeed must retrain right of pre-emption on the three crucial dates and one of the said dates is the date of the sale. Reference may.be made to the case of Hasil and another vs. Karam Hussain.Shah and others (1995 S.C.MiR. 1385). Now it has to be seen as to whethe in the said admitted back-ground Respondent No: 1 in these cases was vested with a superior right of pre-emption on the date the sale in these cases took place.

1. The right of pre-emption has been defined in Section 5 of the Punjab Pre-emption Act, 1991, to mean a right to acquire by purchase "immovable property" in preference to other person by reason of such right Section 5 lays down that a right of pre-emption was to arise in case of sale of immovable property. Now in view of the said 'definition of immovable property contained in Section 2(a) of the said Act, no right of pre-emption was to arise in case of sale of immovable property located in an urban area. Thus the respondent on the said date when the sale of the property took place had no right of pre-emption, as no right was to arise in respect of the sale of the said property.

2. Coming to the impugned orders of the Respondents Nos. 2 and 3 in these cases. Whereas the trial Court has proceeded to hold with reference to the said case of Haji Raria Muhammad' Shabbir Ahmad Khan vs. Government of Punjab Province, Lahore (P.L.D. 1994 S.C. 1) that the said provision excluding the urban property from the definition of immovable property is repugnant to tfhe injunctions of Islam, the learned Addl. District Judge has gone further by observing that the Federal Shariat Court had so declared the said provision repugnant to the injunctions of Islam-on 30.5.1991. Both the learned Courts below appear to be oblivious of the constitutional provision governing the matter. Under Article 203D of the Constitution the learned Federal Shariat Court has to specify the date on which the decision was to take effecjt. This date was 30.5.1991. Now proviso to Article 203D(2) of the Constitution lays down that no such decision shall be deemed to take effect before the expiry of the period within which an appeal therefrom is to be preferred to the Supreme Court or where an appeal has been so preferred before the disposal of such an appeal. Now it is a matter of record that the said decision of the learned Shariat .Court was appealed against before the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan and the matter was decided vide a, judgment eported as Hqji Rana Muhammad Shabbir Ahmad Khan vs. Government of Punjab Province, Lahore (P.L,D. 1994 S.C. 1). Thus the judgment of the learned Federal Shariat Court never took effect till such time that the said appeal was decided. Now in the said judgment the Shariat Appellate Bench specified 31.12.1993 as the date on which the judgment is to take effect. This date was specified in accordance with the provision of Article 203D(2) read

with Article 203D(2) of the Constitution. Thus the judgment ultimately took effect on 31.12.1993. The result is that on the date of both the sales in these cases, the judgment had not taken effect and the said provision of law had" -not ceased to take effect and as such the Respondent No. 1 in these two cases had no right of pre-emption on the said date, has no right as to arise in respect of the sale of the said property. The impugned orders of Respondents Nos. 2 and 3 are without lawful authority and are declared as such.

1. This Writ Petition accordingly is allowed and the impugned orders dated 15.5.1996 of the learned Addl. District Judge, Gujranwala and 19.2.1995 of the learned trial Court/Respondent No. 2 are set aside. The result would be that plaints in both these two cases shall stand rejected.

(A.A.) Plaints rejected.

PLJ 2002 Lahore 1018

Present: ch. ijaz ahmad and mian saqib nisar, JJ. MUHAMMAD ANWAR WAHLA-Appellant

versus

MUHAMMAD TARIQ TUNG-Respondent

r.f.a.no. 590 of 2000, heard on 25.2.2002.

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

—-O.XXXVII, R. 2--Suit for recovery of loan amount-Description of loan as "Qarz-e-Hasna" does not mean that repayment was left to the option of borrower, especially when Promissory note was scribed for repayment of the same on &ema.nd--Qard-e-Hasna, in present case was purely as "interest fire loan" and the same was repayable on demand, {P. 1021] B

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

—O.XXXVH, R. 2-Suit for recovery of loan amount--Quantum--of progf- Marginal witnesses of promissory Note have duly appeared as witnesses

and proved such document—Testimonies of such witnesses have not been . shattered in cross-examination. [P. 1022] C

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

---O.XXXVII, R. 2 & S. 96--Judgment and decree were perfectly in accord with the evidence on record-No misreading or non-reading of evidence has been established-No interference with judgment and decree was warranted in circumstances. [P. 1022] B

2001 MLD 1351; PLD 2000 SC 225 ref.

Negotiable Instruments Act, (1887)--

—S. 4~Promissory note-Defendant's plea that signatures on such document were forged, repelled—Signatures on document in question, were duly proved-No evidence to contradict such evidence was produced by defendants-Court found that signatures on document in question tallied with signatures of defendant obtained in Court-Defendant failed to produce expert evidence in proof the fact that signatures thereon were forged-Signatures on questioned document were deemed to have been proved. [P. 1022] D

(vi) Practice and Procedure--

Plea neither taken in application for leave tfl) appear and defend suit nor in written statement nor stressed at the time of framing of issues, nor any: evidence led in that behalf, could not be allowed to be taken for the first time in appeal before High Court. [P. 1021] A

judgment

Mian Saqib Nisar, J.-Respoiident's suit for the recovery amounting to Rs, 4,25,OOO/- against the appellant under the provisions of Order 37 Rule 2 CPC, based upon a promissory note, was decreed by the learned Additional District Judge Faisalabad on 25.11.2000.

1. Briefly stated the facts of the case are that, on 27.9.1997, the respondent filed a suit for recovery of the amount mentioned above under the provisions of Order 37 Rule 2 CPC, stating that the appellant is his relative, who borrowed the suit amount from him and executed a pro-note dated 29.12.1996 (Ex.P. 1), receipt (Ex.P. 2) and an affidavit (Ex.P. 3); when the respondent demanded the return of the amount, the appellant refused, resultantly, the suit was filed. The appellant moved an application for leave , to appear and defend, which was allowed by the learned trial Court, where­after, on the basis of pleadings of the parties, following .issues were framed:

2. Whether the plaintiff has no cause of action and locus standi to file the suit? OPD

3. Whether the suit of the plaintiff was false and the defendant has been unnecessarily impleaded therein, hence the defendant is entitled to special costs u/s 35-A of the CPC? OPD

.

1. Whether the plaintiff is entitled to recover an amount of

Rs. 4,25,000/- on the basis of promissory note from the defendant, borrowed from the plaintiff by the defendant? OPP

1. Relief.

2. The respondent examined Nisar Ahmad and Salaud Din, the marginal witnesses of the pro-note, receipt and the affidavit as PW-l,and PW-2, while he himself appeared as PW-3, the above documents were tendered in evidence as Ex.P. 1 to Ex.P.

3. Conversely, only the appellant appeared as his own witness.

4. On the conclusion of the trial, the learned Additional District Judge, giving findings on Issue No. 3, in favour of the respondent and also deciding Issues Nos. 1 and 2 against the appellant, decreed the suit, hence this appeal.

5. Learned counsel for the appellant contends that, in the alleged legal notice, issued by the respondent to the appellant (Mark-A), it is stated that the amount of loan has been given to the appellant as Qarz-e-Hasna; besides; in Paragraph No. 2 of the plaint, again it is averred that the loan is Qarz-e-Hasna, therefore, according to the nature of loan, it only becomes payable, when the appellant was in a position to return the amount. In this - regard, he. has relied upon Tafheem-ul-Qurah, Volume-l by Maulana Abu-id' Ala Modoodi, according to which, Qarz-e-Hasnais that kind of loan, which is given for the -purpose of helping another with an object that, it should be payable only when the borrower is in a position to pay. He has also relied upon Habib Bank versus Messrs Qayyum Spinning Ltd. (2001 MLD 1351) and Dr. M. Aslam Khaki versus Syed Muhammad Hasimand 2 others (PLD 2000 SC 225), which defines that, Qarz-e-Hasna .is that kind of loan, given on compassionate ground, free from interest/mark-up or service charges and repayable if and when the bqrrower is able to pay. It is further submitted that two marginal witnesses 6f the documents E&P. 1 to Ex.P. 3 are dose relatives of the espondent, they are though related to the appellant, but in the cross examination, they admitted that they have sore relations with the appellant, therefore, their testimonies to prove the execution of Ex.P-1 to Ex.P-3 are inadequate and should be ignored. It is lastly submitted that the trial Court has failed to seek the opinion of the expert about the execution of the pro-note and has erroneously compared the signatures of the appellant by visually; it is patently apparent that the signatures of the appellant on the Ex.P-1 to Ex.P-3, are different and does not correspond to his admitted signatures, on the written statement and copy of his. identity card.

6. Conversely, learned counsel for the respondent has supported the judgment and decree of the trial Court., 7. We have heard learned counsel for the parties. The contention of appellant that as the amount was given to the appellant as Qarz-e-Hasna, therefore, it cannot be recovered, until the appellant is in a position to repay the same and therefore, the judgment and decree of the Court, blow i§ invalid. Suffice it to say that the appellant has not taken this plea in the application for leave to appear and defend; in his written statement, he never asked for framing of any issue in this behalf, nor any evidence has been led. Submission that because the respondent in the legal notice (mark-A) and plaint, has described the loan as Qarz-e-Hasna, therefore, such admitted fact is sufficient to hold the nature of the loan as Qarz-e-Hasna. It may be stated that in the documents Ex.P-1 to Ex.P-3, there is no mention, if the amount is given to the appellant as Qarz-e-Hasna; particularly as per Ex.P-1, the promissory note it is clearly mentioned that it shall be payable on demand meaning thereby that repayment was not left to the option of the borrower. As regard the submission that in the legal notice and plaint loan has been, described as Qarz-e-Hasna, it may be held that merely stating the loan amount as Qarz-e-Hasna, would not mean tharit was purely in the nature of Qarz-e-Hasna, as has been elaborated in the Tafheem-ul-Quran by Abou ul Aala Moudoodi, but infact it seems that while issuing the legal notice and drafting the plaint, learned counsel had in his mind that the amount was given free from interest, because as per 21st Century, Practical Dictionary, by M. Zaman, Qarz-e-flasna is defined as "money lent (or a loan obtained)without interest". In Qanuni Lughatby Tanzeelur Rehman, Qarz-e-Hasna is again defined as interest free from loan. This clearly shows that the description of a loan as Qarz-e-Hasna was meant to be a loan given to the appellant, without any interest but not purely in the nature of Qarz-e-Hasna. Moreover, as mentioned earlier, this has not been the defence of the appellant in the. written statement and likewise, there is no ground in the memo of appeal, as well, in this regard, accordingly, the objection of learned counsel for the appellant that no decree could be passed against the' appellant, because of the nature of the loan being Qarz-e-Hasna,is hereby repelled. .

7A. For the other submission that Ex.P-1 to Ex.P-3, has not been proved in accordance with law, suffice it to say that marginal witnesses of these documents have duly appeared as PW-1 and PW\2 and proved these documents, they have been cross examined at length and we do not find any discrepancies in their statements; both these witnesses are closely related to the parties and in the facts and circumstances, seems to be natural witnesses who could be present at the time, when the documents were executed; they are consistent about the venue, time and the payment of the loan to the appellant, by the respondent, and their testimonies have not been shatteredV in the cross examination.

1. As regards the submission that one of the witnessses has stated that he is not on visiting terms with the appellant and therefore, should be deemed to be untruthful witnesses and inimical towards the appellant is not well founded, because just being not on visiting terms, no inference can be drawn that such witness has deposed falsely against the appellant. Moreover, in the written statement, the appellant has taken the defence that-he on 1.9.1997, when Ex.P-1 to Ex-3, were exhibited, was busy in connection with the engagement ceremony of his daughter and throughout the day remained. at his house and was entertaining his guests, but no evidence has been brought on the record to prove this plea of the appellant; he has not examined any of the guests, who could testify that on the day and during the time, when the appellant is stated to have executed the Ex.P-1 to Ex.P-3, he was present at his own house.

2. The other submission that the trial Court has erroneously compared the signatures of the appellant on Ex.P-1 to Ex.P-3, with hi& admitted signature and has concluded that the disputed signatures pertain to him, we have also examined the signature; these tally with the signature of the appellant, which had been procured by the trial Court, and are available on the original file of the Court below; besides, we have also

obtained signatures of the appellant in the Court today- and find corresponding to Ex.P-1 to Ex.P-3. Moreover, if the appellant wanted to contradict tha£ his signature on the pronote; etc. have been forged, he should have examined any expert in this behalf, or moved it the Court to seek the opinion of the expert. This evidence or the attempt to have opinion of the expert by the appellant is conspicuously missing on the file. Appellant has appeared as sole witness and has not brought any evidence to corroborate his plea that signature were forged, particularly because he was busy connection with the engagement of this daughter on the day when Ex.P-1 to Ex.P-3 are stated to have been executed, resultantly, we find that judgment and decree of the trial Court is absolutely in accordance with record. No misreading or non reading has been established, with the result, that this appeal has no force and the same is hereby dismissed.

(A.A.)

Appeal dismissed.

PL J 2002 Lahore 1023

Present: CH. ijaz ahmad, J. ZILA COUNCIL LAHORE through its CHAIRMAN-AppeUant

versus

REHM DIL KHAN-Respondent

F.A.O. Nos. 204 and 205/94, heard on 28,3.2002. (i) ActofCourt-

-No'body should be penalized by the act of the Court. [P. 10273 A

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

Ss. 8 & 20-Appointment qf arbitrator by trial Court in violation" of mandatory provisions of Arbitration Act, 1940-Order of appointment of arbitrator was not sustainable in law as the same was passed in violation of principle of natural justice. [Pp. 1027 & 1028J B, D

(iii) Administration of Justice-

—Basic order passed by Court was without lawful authority-Super-structure built thereon would fall on the ground. [P. 1027] C

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

—Ss. 8 & 20-Civil Procedure Code (V of 1908), 6.XLIII, R. l-'Order of appointment of arbitrator being without lawful authority was set aside- Application for ppointment of arbitration would be deemed to be pending adjudication to be disposed of in accordance with law after service of notice to parties. [P. 10281 E]

judgment

The brief facts out "of which the present appeals arise are that respondent participated in the auction proceedings held by the appellant for the collection of export tax. The bid of the respondent as highest which was accepted by the appellant for the year 1988-89. An agreement was also, executed between the parties. The agreement contained the arbitration clause to the extent that in case of any dispute between the parties the matter would be referred to the Commissioner Lahore Division who would be the sole arbitrator and his decision would be final and binding upon the parties. Respondents submitted two applications to the Chairman ?ilax Council with the request that the appellant has not provided him the posts for collection of export tax and also claimed reduction of the contract amount due to the unprecedented flood in the year, 1988. Respondent No. 3 also submitted third application to the Chairman District Council with the same request. The matter was placed before the house. The house unanimously decided against the respondent vide resolution dated 8.1.1989. The Chairman in derogation of the aforesaid decision of the house, referred the matter to the Commissioner, Lahore Division vide letter dated 22.2.1989. The Commissioner Lahore Division, rejected the claim of the respondent" vide order dated 27.2.1989. The respondent filed an application unde Section 8 and 20 of the Arbitration Act in the Court of Senior Civil Judge, Lahore for appointment of the Arbitrator alleging therein that the Commissioner, Lahore Division the,riominated arbitrator had refused to act as an arbitrator. The respondent also prayed that the appellant be directed to file the agreement in the Court. The trial Court issued a notice to the appellant and ultimately oh 22.7.1989 exparte order was passed against the appellant. The learned trial Court appointed Ch. Talib Hussain, the Secretary Auqaf Department as an Arbitrator videorder dated 31.10.1989. Appellant filed an application under Order 9 Rule 7 read with Section 152 C.P.C. for recalling the order dated 22.7.1989 and allowing the appellant to file written reply to the application filed by the respondent/decree holder under Sections 8 and 20 of the Arbitration AcT;. The respondent submitted written reply of the application and the trial Court rejected the application of the appellant vide order dated 25.1.1990. The Arbitrator announced the" award on 17.1.1990 in absence of the parties which was submitted before the trial Court on 18.1.1990. The appellant filed objection on the award before the trial Court. The learned trial Court vide order dated 23.5.199,0 remanded the same to the arbitrator on the ground that the same has not been signed and arbitrator did not afford opportunity to the appellant to comment upon the evidence recorded by the arbitrator, therefore, arbitrator was directed to j__ | file fresh award in accordance with the law after hearing the parties vide " "^ aforesaid order. The arbitrator resubmitted the award on 15.9.1990 by accepting the claim of the respondent. The appellant filed objection petition before the trial Court on 11.11.1990 on the ground that the award had not been submitted within time fixed by the Court. He further submits that no explicit notice was given to the appellant as the award was not announced in the presence of the parties. The arbitrator did not resubmit the award in terms of the remand order dated 23.5.1989. The trial Court framed the following issue:

Whether the award is required to be set-aside due to the misconduct etc. of the arbitrator?

The learned trial Court over-ruled the objection of the appellant videorder dated 28.5.1994, hence the present appeal.

1. The learned counsel of the appellant submits that the learned trial Court was erred in law to substitute another arbitrator at the instance of the respondent which is not in accordance with Section 20 of the Arbitration Act He further submits that Respondents are estopped to file application for nomination of another arbitrator which was agreed by the respondent in terms of the agreement executed between the appellant land the respondent that the matter be referred to the Commissioner, Lahore . Division. He further submits that matter was referred to the Commissioner, Lahore Division, by the Chairman, District Council who rejected the claim of the respondent vide order dated 27.2.1989 and the respondent failed to the same before any higher authorities therefore, application filed

by the respondent under Sections 8 and 20 of the Arbitration Act before the trial Court is not maintainable. He further submits that trial Court passed the order dated 24.5.1994 in violation of the Article 158 of the Limitation Act He further submits that trial Court failed to give findings on all issues. He further submits that provisions of C.P.C. are applicable which are not inconsistent with the provisions of the Arbitration Act, therefore, the trial Court was erred in law to decide the case without giving findings on all issues. He further submits that trial Court was erred in law not to allow the appellant to file written statement. He further submits that award does not contain any reasons therefore, the same is liable to be set aside. He farther submits that objection taken by the appellant through the objection petition was not considered by trial Court at the time ^f deciding the objection petition. He further submits that the arbitrator named in the agreement rejected the claim of the respondent which was not challenged by the respondent whereas another arbitrator was got appointed who delivered another award which was nullity in the eyes of law.

1. The learned counsel of the respondent submits -that Commissioner decided the case exparte vide order dated 27.2.1989 on the request of the Chairman District Council, therefore, the same is not award in the eyes of law.\ He further submits that appellant participated in the proceedings, therefore, appellant has no right to wriggle out from this situation and raise objection to take the cognizance of the matter on the well known principle of estoppel and waiver. In support of his contentions, he relied upon the following judgments:

He further submits that Court has to show all the possibilities to uphold the award. In support of his contention, he relied upon the case of Zaka Ullah Khan Vs. Government of Pakistan (PLD 1998 Lahore 132). He further submits that Court has not to sit as a Court of appeal while hearing objection -' against the award submitted by the arbitrator. In support of his contention, he relied upon the case of Messrs Income Services vs. Messrs Sui Gas Transmission (PLD 1993 Karachi 429). He further submits that objection of the appellant that no notice was sent to the respondent, has no force. la v supportof his contention, he relied upon the following judgments:

1. The learned counsel of the appellant in rebuttal, submits that trial Court was erred in law to decide the case against the appellant without issuing notice to the parties under Section 14 of the Arbitration Act He further submits that order sheet of the\ trial Court reveals that some derk entered appearance without any authority and without' having any instructions from the competent authority, therefore, the trial Court was erred in law to dismiss the objection petition of the appellant as time barred. In support of his contention, he relied upon the case of Pakistan vs. All Muzaffar (1986 C.L.C. 2362). He further submits that it is the^trty and obligation of the trial Court to frame the issues that the objection application filed by the appellant was time barred but ttfie trial Court did not frame the issue, therefore, the trial Court was erred in law to dismiss the same on the ground of limitation. In support of his contention he relied -upon Chief Administrator Punjab Vs. Mst. Nazir Fatima (1998 MLD 176). He farther submits that heavy duty caste upon the Court at the time of making the award as a rule of the Court by virtue of Section 17 of the Arbitration Act but the trial Court without applying its independent mind made the award as rule of the Court. In support of his contention, he relied upon Pakistan through General Manager Railways vs. Af/s. Q.M.R. Export Consultants (PLD 1990 S.C, 800). He further submits that arbitrator was erred in law to grant rebate to the respondent in violation of clause 9 of the Arbitration Act In support of his contention he relied upon the case of Province of Punjab and three others vs. Ch. Zia-ul-Islam (1993 SCMR 1180). He further submits that the trial Court was erred in law to substitute the arbitrator over and above the agreed by-the parties in view of clause 14 of the agreement, therefore, the same is not sustainable in the eyes of law. In. support of his contention, he relied upon the following judgments:

Board 'of Intermediate and Secondary Education vs. Fine Star and Company Engineers and Contractors (1993 S.C.M.R. 530), Design Group of Pakistan vs. Clifton Cantonment Board, (1990 MLD2010).

He further submits that arbitrator granted the rebate to the respondent in violation of clause 10 of the Arbitration Act

1. I have given my anxious consideration to the contention of the learned counsel of the parties and perused the record myself. The trial Court appointed Ch. Talib Hussain, Secretary Auqaf Department as an arbitrator vide order dated 31.10.1989. The whole order sheet did not reveal at all whether the service of the appellant/defendant has been effected except that representative of the appellant entered appearance on various dates alongwith the advocate of the appellant/defendant and requested adjournment to file objections. The original record did not reveal at all that the service of the appellant/defendant has been effected. The power of attorney filed on behalf of the appellant/defendant by Malik Nabi Advocate contained date of signing the power of attorney 3.12.1989. The file also did not reveal that representative of the appellant was authorized by the competent authority to appear before the Court In case all these facts are put in juxta position then it is crystal clear that tSe trial Court passed the order of appointment of an arbitrator namely Ch. Talib Hussain, Secretary Auqaf Department without notice to the appellant It is settled principle of law that, no body-should be penalized by the act of the Court as per principle laid down by the superior Courts. In arriving to this conclusion, I am fortified by the following judgments:

It is pertinent to mention here that there is no notice on the file of the case which was issued to the appellant except notice dated 29.3. X989 which contains the report of the Process Server which reveals that service was not effected as the office was closed, therefore, the appointment of Ch. Talib Hussain, Secretary Auqaf Department as an arbitrator is without lawful authority. It was incumbent upon the trial Court to serve a notice upon the appellant under the provisions of the Arbitration Act meaning thereby that the trial Court appointed the arbitrator in violation of the mandatory provisions of the Arbitration Act. The order dated 31.10.1989 is not sustainable in the eyes of law as he same was passed in violation of the principle of natural justice. In arriving to this conclusion, I am fortified by the following judgments:

It is also settled principle of law that when the basic order is without lawful, ^ the super structure shall have to fall on the ground. In arriving to this Conclusion, I am fortified by the following judgments:

Sine the appointment of the arbitrator Ch. Talib Hussain, Secretary Auqaf h Department is without lawful authority, therefore, all the subsequent orders and award are not sustainable in the eyes of law.

1. In view of what has been discussed above, there appeals are accepted meaning thereby that the application filed by the respondent before the trial Court for appointment of the arbitrator shall be deemed to be pending adjudication. Parties are directed to appear before the trial Court on 15.4.2002. Appellant is directed to file reply of the application or objection within 20 days before the trial Court in both cases. The judgments cited by the learned counsel of the parties are distinguished on facts and law. It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts.

(A.A.) Case remanded.

PLJ 2002 Lahore 1028

Present: maulvi ANWAR-UL-HAQ, J.

Mst.SARWAR KHATOON and 4 others-Petitioners

. versus

Mst. BAKHAT BHARI and 2 others-Respondents

C.R. No. 804-D of 1995, heard on 11.3.2002.

(i) Muhammadan Law-

—Will by owner of land during "MarzulMauf"--Legality-Doctrine of "Marzul Maut" in relevant in case of gifts-Where, however, it was found that gift was made during "Marzul-Maut"even then the whole gift was not void rather the same would take effect as "wilT--Will by itself takes effect after the death of executor and the fact that deceased was on death bed would not at all derogate from the validity of the same. [P, 1030] A

(ii) Muhammadan Law--

--Will-Will in favour of heirs to be ineffective-Will in favour of strangers o the extent of l/3rd would, however, take effect-Will in favour of some of the heirs being ineffective, property in question would be distributed in favour of all heirs according to their Islamic shares. . [P. 1031] C

judgment

On 16.5.1985, the respondents filed a suit against the petitioners. In the plaint it was stated that the suit land mentioned in the heading of the plaint was owned by Muhammad Hussain son of Ghulam Hussain, a brother of the respondents who made a will on 1.5.1984 in their favour in respect of the said land; that after the death of the said Muhammad Hussain, the said land was mutated in favour of the respondents vide a Mutation No. 321 attested on 30.9.1984. However, on appeal the case was remanded and thereafter the mutation was attested on 5.5.1985 excluding the petitioners. They claim to be donees under a valid will and as such to be owner of the said land. The petitioners in their written statement denied the execution of • will by the said Muhammad Hussain on the ground that on 1.5.1984 i.e. the of the will, Muhammad Hussain being a cancer patient was suffering from "Marz-ul-Maut".Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit videa judgment and decree dated 13.12.1993. A first appeal filed by the petitioners was dismissed by a learned District Judge, Khushab on 3.4.1995.

1. The learned counsel for the petitioners argues that it stands proved on record that the deceased was suffering from "Marzul Maut" when he made the will. According to the learned counsel this circumstance would render the will void, Further contends that the evidence on record has been misread. Tries to explain that the statement made by Mst. Sattan (one of the respondents) Exh.D. 1, could have been referred to for the purposes of contradicting her statement. The learned counsel fof the respondents, on the other hand, supports the impugned judgment and decree, with reference to the evidence on record.

2. I have gone through the copies of the record appended with this Civil Revision, with the assistance of the learned counsel for the parties.

Copy of the will available on record is Exh.P/1. The learned counsel state that the original was produced on the record of the learned trial Court According to this document Muhammad Hussain states that there is a tumur in the abdomen of the donor and he is to be operated upon and is admitted to the hospital and as such he makes a will that out of 60 acres of land owned by him 20 acres would go to the said three sisters and a daughter, namely, Shamim Akhter in equal shares i.e. 5 acres each while the remaining 40 acres of land and all other assets would be mananged by his wife Mst. Khatoon but in case on her death w re-marriage, the same shall' vest in Pakistan Army. Then he states that his son Mulazam Hussain, wife Sarwer Khatoon and daughter Aakhan are disobedient and that he dis­inherits them. This document was executed on 1.5.1984 and is witnessed by Dr. Tahir Mehmood, Muzaffar son of Sahara, Malik Muzaffar and Ghulam Muhammad. The said Dr. Tahir Mehmood has appeared as PW. 1. Malik Muzaffar has appeared as PW. 2. The scribe Muhammad Siddique has appeared as PW. 3.1 have carefully examined the statements made by these witnesses. Except the fact that whereas Dr. Tahir Mehmood stated that the document took more' than one hour to be completed. Malik Muzaffar stated that the document was completed in 10/20 minutes, there is nothing else" derogatory to the statement made by these witnesses to the effect that the deceased had made and executed the said will So far as the said discrepancy infer se the statement of PW. 1 and PW. 2 is concerned, both the learned Courts below have treated the same as a natural variation and I am not inclined to differ after having read the entire statements of the said witnesses.

1. Coming to the said contention of the learned counsel, I find no force in the same. Needless to state that the doctrine of "Marzul Maut" is relevant in the case of gifts and in such cases also even if it is found that gift was made during "Marzul Maut" then the whole gift is not void rather it takes effect as a will. No gain-saying the fact that the will is a document which by itself takes effect after the death of the executor and the fact that the deceased was on the death bed would not at all derogate from the validity of the same. Besides, I find that there is no plea that the deceased was not in a sound state of mind. All the witnesses produced by the petitioners have stated without any demur that they never visited the deceased while he was in the hospital.

5 As to the said second contention regarding the previous-statement, of Mst. Sattan. According to the learned counsel the said Msfc Sattan appeared as DW. 1 in acase on 3.11.1991 (a copy of the statement is Exh.D/1) and stated therein that Muhammad Hussain had not made a will. Now I find that the said Mst Sattan (In fact appeared as a wit­ ness in the present case on 20.11.1991. She was not at all confronted with the1 said document z.e. the previous statement Now Article 140 of the Qanoon-e- Shahadat Order, 1984 makes it mandatory that in case a witness is to be contradicted with reference to a previous statement, then the said statement shall have to be put to the witness in the witness box. This is also this ratio of the judgment of the Honourable Supreme Court of Pakistan in the case of Atta Muhammad represented by Legal

1. The learned counsel for the petitioner then, contends that the will as also been made in favour of a daughter and the widow. Needless to state here that the said will has not taken effect qua the said daughter and the widow, but has taken effect only with respect to the respondents who were not heirs of the donor at the time of making of the will. Be that as it may, it is clarified that barring said 15 acres of land, which has been validly willed in favour of the respondents/sisters of the deceased, the remaining estate of the deceased shall go to his two widows one son and two daughters in accordance with their Muslim Law shares. With these observations, the Civil Revision is dismissed, leaving the parties to bear their own costs.

(A.A.) Revision dismissed.

PLJ 2002 Lahore 1031 (DB)

Present: maulvi anwar-ul-haq and mian hamid faroqq, JJ. .

MUHAMMAD YASIN WATTOO PRESIDENT PAKISTAN AUDIT WORKS EMPLOYEES ASSOCIATION, LAHOREWPefitioner

Vs

GOVERNMENT OF PAKISTAN through SECRETARY FINANCE DIV. PAK SECRETARIAT ISLAMABAD and 20 others-Respondents

W.P. No. 2657 of 1994, heard on 18.2.2002.

Secretariat Allowance (Rescission Order etc.) Ordinance, 2000 (XII of2000)-

—S. 2--Constitution of Pakistan (1973), Art 199-Court's direction for payment of allowance by way of interim measure to petitioners- Petitioner's entitlement to the payment of the same despite coming into force Ordinance XII of 2000-Ordinance XII of 2000 had effectively done away with decisions which had not been implemented including interim decision as well-Respondent's were, thus, not liable to pay Secretariat Allowance being claimed by petitioners. [P. 1034] A

1032 Lah.MUHAMMAD YASIN WATTOO PRESIDENT PAKISTAN AUDIT .

judgment

This judgment shall decide W.P. 2657/94, W.P. 18278/2000, W.P. 10090/95, W,P. 2340/94, W.P. 3581/94, W.P. 3446/94 and W.P. 3548/94 «s common questions are involved.

1. The petitioners in these writ petitions are employees of various Federal Government Departments. They filed above noted writ petitions to claim Secretariat Allowance being paid to the employees serving in Federal Secretariats and Civil Secretariat. The writ petitions were heard by a Division Bench of this Court and vide judgments dated 30.9.1999 and 7.2.2000 passed in Writ Petition No. 2621/94, all the writ petitions alongwith several Others writ petitions were dismissed. The petitioners feeling aggrieved filed C.Ps. No. 1087/L, 1088/L, 1338/L, 1624/L, 1741/L, 1743/L and 1945/L/2000. These C.Ps came up on 25.10.2000 when the Hon'ble Supreme Court of Pakistan remanded these case back to this Court to; examine the matter with reference to provisions of Secretariat Allowance (Rescission Orders etc.) Ordinance, 2000.

2. Dr. A- Basit Advocate, led the arguments for the petitioners in all these case supported by the learned counsel in other cases. With reference to the case of Muhammad Shabbir Ahmad Nasir v. Secretary Finance Division Islamabad (1997 SCMR 1026), it was argued that petitioners in these case had been granted interim relief in the for ml of direction issued to the respondent-departments for the payment of Secretariat Allowance. The precise contention is that since the Court had directed the payment of allowance by way of interim measure, the petitioners would be entitled to the payment of the same w.e.f.1.7.1988 to 31.5.1994 i.e. terminus quo set in the said judgment According to the learned counsel the said Ordinance 12 of 2000 shall not be affecting the direction of the Court issued by way of interim

relief.

1. Kh. Saeed-uz-Zafar, learned D.A.G. for Pakistan, on. the other hand contends that the provisions of the said Ordinance are absolutely unambiguous as to the intents and effect thereof and petitioners would not be entitled to claim the said relief, Supports his arguments with reference to. the judgment of the Hon'ble Supreme Court dated 23.1.2001 in the ease of Federation of Pakistan v. Gul Alam Khan and others (C.A. 1575/1998 to i'582/1998)

2. We have examined- the matter in the light of direction issued by the Hon'ble Supreme Court. Section 2 of the said Secretariat Allowance (rescission Order etc.) Ordinance, 2000 is reproduced hereunder:--

"2. Rescission of certain orders.-d) The orders,' office memorandums, instructions and other instruments whereby the Secretariat Allowance was granted to certain Federal Government Employees in the Federal Secretariat, President's Secretariat, Prime Minister's Secretariat, National Assembly Secretariat, the Senate Secretariat and other Organizations of the Federal Government and orders, office memorandums, instructions and other instructions and other instruments - amending the aforesaid orders office memorandums, instructions and other instruments, hereinafter referred to as the orders, converting the Secretariat Allowance into ••> Personal Allowance are hereby rescinded and shall be deemed always to have been so rescinded on the 1st July, 1988, and no financial benefit whatsoever, save and except as provided in sub­section (2) shall accured or deemed to have accrued to become payable thereunder, to the persons employed in the aforesaid Secretariats and other Organisations of the Federal Government notwithstanding any decision of any Court including a High Court and the Supreme Court.

(2) Any order made, instructions issued, decision of any Court including a High Court or the Supreme Court implemented immediately before the commencement of this Ordinance, shall be deemed to have been validly made, issued and implemented and the amount of Secretariat Allowance including Personal Allowance already paid thereunder shall be deemed to have been validly paid and shall not be recoverable from the recipients of such allowances."

The plain reading of the said provisions of law would show that all orders, office memorandums, instructions and other instruments whereby the Secretariat Allowance was granted to certain- Federal Government Employees in the Federal Secretariat, President's Secretariat, Prime Minister's Secretariat, National Assembly Secretariat, the Senate Secretariat and other organizations of the Federal Government including the instruments amending the said documents stand rescinded w.e.f. 1.7.1988. Now the effect of the said provisions of law is that the persons employed in the said Secretariats and Organizations shall not get any benefit under the said instruments except as saved in sub-section (2) of the said Section 2. Now the result is that very basis for the several judgments passed by Hon'ble Supreme Court as well as all High Courts of the Provinces i.e. distcrimination vis-a-visthe persons to whom the said instruments applied and others like the petitioners is gone.

1. Coming to the contention of the learned counsel. This is with reference to sub-section (2) of said Section 2, which, inter alia, saves decision of a High Court or Supreme Court "implemented" immediately before the commencement the said .Ordinance. With the result that the amount of Secretariat Allowance paid in mplementation of such a decision shall be deemed to be validly paid and shall not be recovered from the person to whom the same had been paid in implementation of the said judgment Learned counsel contends that the terms "decision" would not include an interim order for the payment of Secretariat Allowance and as such the implementation of the interim order as against implementation of a decision (which of course is final decision) can still be insisted upon. With respect, we find the argument to be preposterous. The Ordinance has effectively done away with the decisions which have not been implemented, to our mind, this includes interim decision as well. In any event matter has been set at rest in the said judgment of the HonTble Supreme Court being relied upon by learned Deputy Attorney General. We may reproduce the following excepts from para-7 of the said judgment:

' . . '

"In case the Secretariat Allowance payable under the impugned judgments has not been paid, the private respondents will not be entitled to receive the same in view of above Ordinance."

The term Ordinance refers to said Ordinance 12 of 2000 mentioned in the earlier part of para-7 of the said judgment

1. In view of the above discussion, we find that the respondents, are not liable to pay the Secretariat Allowance being claimed by the petitioners in these writ petitions which are accordingly dismissed. No order as to costs.

(A.A.) Petition dismissed.

PLJ 2002 Lahore 1034

Present: jawwad S. khawaja, J-. FAYSAL BANK LIMITED, 43-THE MALL LAHORE-Petitioner

Versus

PUNJAB LABOUR COURT NO. 1, LAHORE and another-Respondents

W.P. No. 2417 of 2002, heard on 27.2.2000.

(i) Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—S. 34-Employee of petitioner bank-Termination of services-Provision of S. 34, Industrial Relations Ordinance whether applicable for redressel of such employee's grievance-Petitioner's status in relation to respondent is that of employer while respondent's status is that of employee of petitioner-Provisions of S, 34 'of Industrial Relations Ordinance 1969,hich can be invoked by employer were not available to respondent in his capacity as employee.[P. 1037] A

(ii) Industrial Relations Ordinance; 1969 (XXIII of 1969)-

—S. 34-Provision of S. 34, Industrial Relations Ordinance 1969-Applicability-Provision of S. 34 of the ordinance would only become available to respondent if he can show that there were rights guaranteed or secured to him by or under any law or any award or settlement-­Petition of respondent against termination of his services does not refer,. to any law or any award where under rights were claimed by hinv-Provision of S. 34 of the Ordinance was, thus, not applicable to him.

[P. 1037] B

(iii) Industrial Relations Ordinance, 1969 (XXIII of 1969)--

S. 34-Appointment letter issued to respondent by petitioner Bank cannot be termed as "settlement" so as to invoke provision of S. 34 of Industrial Relations Ordinance, 1969. [P. 1037] C

(iv) Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—S. 34~Labour Court-Jurisdiction-Even if contents of respondent's petition under S. 34 of the Ordinance were accepted as being true, Labour Court has no jurisdiction in the matter. [P. 1038] D

(v) Industrial Relations Ordinance, 1969 (XXIII of 1969)-

—8. 34-Cbnstitution of Pakistan (1973), Art 199-Labour Court lacks jurisdiction under S. 34 of Industrial Relations Ordinance, 1969 to entertain of determine matter of termination of employees service-­ Constitutional jurisdiction of High Court would be available to petitioner Bank to restrain Labour Court from exercising jurisdiction which it lacked in the matter. [P. 1039] £

(vi) Industrial Relations Ordinance, 1969 (XXIII of 1969)-

—Ss. 3 & 34»Constitution of Pakistan (1973), Art. 199-Jurisdiction o Labour Appellate Tribunal in terms of S. 38 of the Ordinance—Labour Appellate Tribunal was merely vested with supervisory jurisdiction over Labour Courts which jurisdiction was exercisable by Appellate Tribunal suo-motu and was not available to petitioner Bank-Assumption of jurisdiction by Labour Court was declared to be without any lawful authority and of no legal effect [P. 1039] F

judgment

The petitioner is a banking conipany. Respondent No. 2 was formerly Vice President of the petitioner. His services were terminated vide letter dated 22.9.2001. At the time of his termination Respondent No. 2 was drawing a salary package of Rs. 1,25,501/- per month. Among other things, he was also entitled to the facility of a personal chauffeur provided by the petitioner Bank. As a senior officer of the Bank Respondent No. 2 exercised decision making powers independently and also had authority over subordinate staff.

. 2. One week after his dismissal, on 27.9.2001 Respondent No. 2 invoked the provisions of Section 34 of the Industrial Relations Ordinance ("IRQ") by filing a petition before the Punjab Labour Court No. I. The petition prayed for the setting aside of the order dated 22.9.2001 whereby the services of Respondent No. 2 were terminated. It was also prayed that he be reinstated in employment and be allowed to continue in service tin the age of superannuation. Throughout the petition the grievance of Respondent No. 2 is that of an employee vis avis the Bank as his employer.

-'-\

1. The aforesaid petition under Section 34 of the IRO was resisted by the Bank on various grounds. It was, in the first instance, contended that the Labour Court could not assume jurisdiction in the matter because even from the contents of the petition under Section 34, it "was clear that Respondent No. 2 was not entitled to file a petition thereunder. The Bank also filed a separate application requesting the Labour Court to frame a preliminary issue to decide as to whether it had jurisdiction in the-matter. The said application was rejected vide order dated 7.12.2001.

2. I have gone through the record with the assistance of learned counsel and have also considered their respective arguments. In order to appreciate the contention between the-parties it is"|first of all necessary to examine the provisions of Section 34 of the IRO which reads asunder: " "Application to Labour Court.-Any collective bargaining agent-or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement"

3. It is clear from the aforesaid statutory provision that only a collective bargaining agent or an employer can apply to a Labour Pourt thereunder and such application can only be.made to enforce a right guaranteed or secured under any law or any award or settlement.

4. It was argued by learned counsel for Respondent No. 2 that the said Respondent was an employer and was, therefore, entitled to invoke the provisions of Section 34 aforesaid. It cannot be disputed that if the status of Respondent No. 2 is considered within the hierarchy of employees of the petitioner Bank, the Respondent No. 2 falls in the top-most echelons of the Bank and, as such, would be an employer vis a vis persons subordinate to him. He, however, was an employee of the Bank and it is this status which is material in the present case. As noted above, in the petition moved by him, Respondent No. 2 has not, at any point, asserted his status as an employer. This is for the obvious reason that his grievance in the petition, is as an employee of the petitioner Bank. It is clear that the employer in the present case, is the petitioner Bank and not Respondent No. 2. In these circum­ stances, I am not in any doubt that the provisions of Section 34 of the IRO which can be invoked by an employer, are not available to Respondent No. 2 in his capacity as an employee.

5. In addition to the above, even if it is, for a moment, conceded that Respondent No. 2 could be treated as an employer in the context set out in his petition, Section 34 will only become available to him if he can show that there are rights guaranteed or secured to him by or under any law or any award or settlement. In order to determine if any such rights were guaranteed to Respondent No. 2 under any law, "award or settlement, I need to go no further than the petition itself. At its head, the petition purports to have been filed under Section 34 of the IRO against the termination order dated 22.9.2001. The petition does not refer to any law- or any award whereunder rights are claimed by Respondent No. 2. In Paragraph No. 4 of the petition,-however, it is asserted that Respondent No. 2 is governed by a settlement of employment which is Annexure A to the petition, and by the Staff Service Rules and the Bank Employment Policy of the petitioner Bank. The aforesaid settlement of employment is no more than the appointment letter dated 31.10.1996 issued to Respondent No. 2 by the petitioner Bank. The said letter read with the Staff Service Rules and the Bank's Employment Policy cannot, by any stretch of reasoning, be ter.med as a settlement The term "settlement" has been defined in Section 2(24) of the IRO. The defined term has been used in Section 26 of the IRO. These two provisions give us a fair idea of what is meant by the term "settlement". In order to appreciate its connotation Sections 2$24) and 26 of the IRO reproduced as under:-

"2(xxiv) "Settlement" means a settlement arrived at in the course .of conciliation proceeding, and includes an agreement between an employer and his workmen arrived at otherwise than in the course of any conciliation proceeding, where such agreement is in writing, has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the Provincial Government, the conciliator and such other person as. may be prescribed."

"26. Negotiations relating to differences and disputes.-(l) If at any time an employer or a collective bargaining agent finds that an industrial dispute has arisen or is likely to arise, the employer or, as the case may be, the collective bargaining agent, may communicate his or its views in writing either to the Works Council or to the other party so, however, that, where the views are so communicated to the Works Council, a copy of the communication shall also be sent to the other party.

(2) On receipt of the communication under sub-section (1), the Works Council or the party receiving it shall try to settle the dispute [by bilateral negotiations within ten days of the receipt of the communication or within such further period as may be agreed Upon by the parties] and, if the parties reach a settlement, a memorandum of settlement shall be recorded in writing and signed by both the parties and a copy thereof shall be forwarded to the Conciliator and the authorities mentioned in clause (xxiv) of Section 2.

(3) Where a settlement is not reached between the employer and the collective bargaining agent, or if the views of the employer or collective bargaining agent have been communicated under sub-section (-1) to the Works Council, there is a failure of bilateral negotiations in the Work Council the employer or, the collective bargaining agent may, within [seven] days from the end of the period referred to in sub-section (2) serve on the other party to the dispute a notice of lock-out or strike, as the case may be, in accordance with the provisions of this Ordinance]."

1. The term "settlement" been interpreted in various precedents including the case titled Pakistan Cycle Industrial Cooperative Society Lid. vs. Punjab Labour Appellate Tribunal and others (1983 PLC 1215). The aforesaid said legal provisions and precedent support the contention of learned counsel for the petitioner Bank that the term "settlement\ has a specific meaning which does not encompass the respondent's letter of employment, Staff Service Rules and the Employment Policy of the petitioner Bank. For this reason also the learned Labour Court could not have exercised jurisdiction in the matter under Section 34 of the IRO.

2. It was also argued by learned counsel for Respondent No. 2 that the question of jurisdiction of the learned Labour Court was a mixed question of law and fact which could only be determined after evidence of the parties had been recorded. This contention has no merit in the context of the present case. Even if the contents of the respondent's petition under Section 34 are accepted as being correct, it is clear, for the reasons discussed above, that the learned Labour Court has no jurisdiction in the matter.

•' \

1. It was next contended by learned counsel for Respondent No. 2 that the learned Labour Appellate Court should be allowed to determine the question of its jurisdiction. He argued that a Constitutional petition, in the circumstances, was not maintainable. In response, learned counsel for the petitioner Bank submitted that where, on the face of the record, a forum lacked jurisdiction, an aggrieved party could approach the High Court in exercise of its Constitutional jurisdiction to seek appropriate directions in the matter. In support of this contention, learned counsel referred to the case and another (PLD 1975 S.C. 450), the case titled Farman Ullah Khan vs. Agricultural Development Bank of Pakistan through Manager, Tank Branch, District Tank and 2 others (PLD 2000 Peshawar 10) and the case titled Ghulam Muhammad and others vs.. Munir Ahmad Shah and others (1994 CLC 14). I have gone through the cited precedents which, I find, are applicable to the circumstances of the present case. Based on these precedents, I am clear that the Constitutional jurisdiction of the High Court is available to the petitioner Bank because quite clearly, as dismissed above, /- -,; the learned Labour Court kcks jurisdiction in the matter. I, therefore, do\ not see any reason why the petitioner Bank should be compelled to join the proceedings before the learned Labour Court, when, the respondent's own petition is sufficient to establish want of jurisdiction in the said Court

2. Finally it was contended by learned counsel for the respondent that Section 38 of the IRQ provided an adequate alternate remedy to the petitioner Bank by way of revision before the Labour Appellate Tribunal. I | have examined Section 38 and find that it does not afford any remedy to the petitioner Bank as of right The Labour Appellate Tribunal is merely vested with supervisory jurisdiction over Labour Courts which jurisdiction is exercisable by the Appellate Tribunal suo moto and is not available to the petitioner Bank. I am fortified in this view by the decision of a learned Division Bench of the Sind High Court in the case titled Muhammad Ramzan vs. Trustees of Port of Karachi (1990 CLC 1086).

3. For the foregoing reasons, this petition is allowed and it is declared that the learned Labour Court has no jurisdiction to entertain or proceed with the petition filed by Respondent No. 2 under Section 34 of the Industrial Relations Ordinance, (A.A.) Petition accepted.

| | | --- | | PLJ 2002 Lahore 1079 [Rawalpindi Bench Rawalpindi] Present: tanvir bashir ansari, J. Mst. NOOR FATIMA-Petitioner |

(B.T.)

versus

SHAH JI-Respondent C.R. No. 334 of 1993, heard on 4.12.2001.

West Punjab Muslim Person Law (Shariat) Application Act, 1948 (Ix of 1949)-

—-S. 2-A & 5-Civil Procedure Code, 1908 (V of 1908)--Suit for declaration-Dismissed by trial Court, affirmed by Appellate Court lodging that owner

• of land died before promulgation of Shariat Application Act, 1948 and in matter of inheritance he was governed by Customs—Challenge to— Devolution of land under Muslim Personal Law (Shariat)--Inheritance after death-Whether females not entitled to inheritance-Question of~ Acquiring property before commencement of Act IX, 1948—Effect of— Absolute owner-Concept of-It is immaterial for present controversy whether properly in dispute was acquired by "F" through inheritance or whether it Was his self acquired property-It is also irrelevant if he died before or after promulgation of Act IX of 1948-Within meaning of Section 2-A "F" whd had acquired property in dispute before Commencement of Act IX of 1948 shall be. deemed to be absolute owner of such land as if such land had devolved on him under Muslim Personal Law (Shariat) and after his death all his Muslim Law heirs shall inherit in accordance with their legal shares-Held : Petitioner and other female heirs of "F" were entitled to their share of inheritance-Held further: Bar of limitation shall not apply against petition. . [Pp. 1084 & 1085] A & B

Ch. Muhammad Yousaf, Advocate for Petitioner. Mr. Noor Muhammad Niazi,Advocate for Respondent Date of hearing: 4.12.2001.

judgment

The petitioner filed a suit for declaration to the effect that Mutation No. 1239'dated 31.03.1948 and Mutation No. 268 dated 19.8.1961 in favour of Respondents Nos. 1 and 2 are illegal and inoperative upon the rights of

1080 Lah.

Mst. noorfatima v. shah Ji (Tanvir Bashir Ansari, J.)

PLJ

the petitioner. The case of the petitioner is that Fazal Hussain Shah was the owner of the suit land. The said Fazal Hussain Shah was governed by the Muslim Law of Succession. According to the petitioner, upon his death, he was survived by Shah Ji and Ashiq Shah original defendants as sons, Mst.Fatima Bibi, Mst Noor Nishan and the petitioner herself as daughters. She claimed her Muslim Law share in the estate of said Fazal Hussain Shah.

1. Shah Ji the original Defendant No. 1 filed a consent written. statement and conceded the claim of the petitioner. Ashiq Shah, however, contested the suit and contended that the said Fazal Hussain Shah belonged to a notified agriculturist Tribe and was covered by custom. It was stated that Fazal Hussain Shah dial before the enforcement of the West Punjab Muslim Personal Law (Shariat) Application Act DC of 1948 and the matter of inheritance, irrespective of the nature of the property whether self acquired or ancestral were governed by customary law and as such the females were not entitled to inheritance.

2. During the pendency of the suit, various alienations were made by the original defendants and the subsequent vendees were impleaded as defendants, However, none of the subsequent vendees appeared despite service and were thus proceeded against ex-parte.

3. The parties went on trial upon the following issues:-- ISSUES:

4. Whether the plaintiffs have no locus standi to file the present suit?OPD.

5. Whether this suit is time barred ? OPD

6. Whether the suit is had for non-joinder of necessary parties?

7. Whether the suit is bad for mis-joinder $f the parties ?

8. Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction ? If so, what is correct valuation ? OPPs.

9. Whether the impugned Mutations No. 1239 dated 31.3.1948 and No. 268 dated 13.8.61 regarding suit land are illegal, . • » ultravires and inoperative as against the shares of the plaintiffs

? OPP.

1. Relief.

2. The plaintiffs in support of their claim have examined Noor Fatima as PW. 1 and Khadum Hussain as PW. 2, whereas in their documentary evidence they have tendered copy of Mutation No. 268 as Ex. P.I. On the other hand the Defendants No. 2-A to 2-D who are the descendants of Aashaq Shah defendant since deceased examined their Special Attorney Muhammad Shah as DW-1 in oral evidence whereas in

2002 Mst. NooRFATlMAv. SHAHJi Lah. 1081

(Tanvir BashirAnsari, J.)

their documentary evidence they have tendered Special power of attorney as Ex. D-l, copy of Mutation No. 1239 as Ex. D-2, copy of Missel Haqiat as Ex. D-3, original sale-deeds as Ex. D-4 to Ex. D-6, copy of Missel Haqiat for the year 1955-56 as Ex. D-7 and closed their side.

1. The learned trial'Court found that Fazal Hussain Shah dies before the promulgation of Shariat Application Act 1948 and was of the view that in such circumstances, the petitioner and other daughters of Fazal Hussain Shah were not entitled to inherit his estate. It also found that the suit was not within time. As a result the suit was dismissed vide judgment and decree dated 15.12.1987. The petitioner preferred an appeal which was dismissed vide judgment and decree dated 19.5.1993. The learned Appellate

-Court came to the conclusion that the mutations challenged in the suit having been incorporated in the record of rights shall be presumed to Jje correct and that the petitioner had failed to rebut the presumption of truth attached to such documents. It also affirms the findings of the trial Court that Fazal Hussain Shah had died before the promulgation of the Shariat Application Act of 1948 and that in the matter of inheritance he was governed by custom.

1. Choudhary Muhammad Yousaf, Advocate, learned counsel for the petitioner has assailed the findings of both the learned lower Courts on the ground that even if it is held that Fazal Hussain Shah who was a Muslim had died before the enforcement of Shariat application Act, 1948, it would be. ineffective upon the rights of the petitioner as with the incorporation of Section 2-A in the West Pakistan Muslim personal Law (Shariat) Application Act (v) of 1962 by means of Ordinance XIII of 1983 a Muslim owner shall be governed by the Muslim Personal Law {Shariat) of Inheritance no matter, when he died. It is also contended that for the purpose of inheritance under the Muslim personal Law, it was immaterial whether the property was ancestral or self-acquired of the deceased predecessor-in-interest The findings of the learned lower Courts have also been criticised on the ground that any party pleading custom must not only plead such custom with specific detail, it should also prove by cogent evidence as to what that custom was. It has been further urged that Customary Law would apply only to ancestral property and not to property which has been self acquired by the deceased owner. It was finally contended that the finding upon the issue of limitation is erroneous as no such plea can be raised against a co-sharer.

2. On the other hand, Noor Muhammad Niazi, Advocate appearing for Respondents Nos. 2-A to 2-D has strongly supported the concurrent findings arrived at by the learned lower Courts. In order to appreciate the contentions raised by the learned counsel for the petitioner, it would be appropriate to refer to Section 5 of the Punjab Laws Act, 1872 which is reproduced as under :—

"Decision in certain cases to be according to native laws. In questions regarding succession, special property of females, betrothal, Afst noor fatima v. shah Ji (Tanvir BashirAnsari, J)

PLJ

marriage, divorce, dower, adoption, guardianship, minority, bastardly, family relations, wills, legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be- :

(a) any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be viod by any competent authority.

(b) the Muhammadan Law, in cases where the parties are Muhammdans, and the' Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such customs as is above referred to.".

1. The effect of Section 5 was that notwithstanding that Muslim Law was to be applied as the governing rule under sub-clause (b), this was subject to any modification made by any customs which was alleged and proved to have modified the Muslim Law. To do away with this overriding effect of custom over the Muslim Law, Muslim Personal Law (Shariat} Application Act (XXXVI of 1937) was promulgated. Section 2 of this act reads asunder:--

Section 2:-

Application of Personal Law to MusMms.-Notwithstanding any custom or usage to the contrary in all questions (save, questions \ relating to agricultural land regarding intestate succession, special property of females including personal property inherited or obtained under contract or gift or any other provisions of Personal Law, marriage, dissolution of marriage, including Talaq, Da, Zihar, Lian, Khula and Mubarat, maintenance, dower, guardianship, gifts, trusts and trust properties, and Wakfs(other than charities and charitable, institutions and charitable and religious endowments) the rule of decision is case where the parties are Muslim shall be the Muslim Personal Law (Shariat)."

1. The effect of this provision was that custom "or,usage" contrary to Muslim Law was done away with except in so far as it related to agricultural land. The next enactment in this regard was the West Punjab Muslim personal Law (Shariat) application Act (DC of 1948, whjch was promulgated on 15.3.1948. This was amended by Act XI of 1951. Section 2 of Act IX of 1948 is reproduced as under:-

Section 2

"Notwithstanding any rule of custom or usage in all questions regarding succession whether testate or intestate), special property of females, betrothal, marriage divorce, dower, adoption, | | | --- | | Lah. 1083 |

Mst.noor fatima v. shah Ji (Tanvir BashirAnsari, J.)

guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions including Waqfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."

1. The effect of promulgation of the aforementioned provision was to do away with over-riding control of custom upon Muslim Law in respect of all matters enumerated in Section 2 cited above.

2. Certain difficulties arose regarding the application of Muslim Shariat Law to the matters enumerated in Act IX of 1948. Some such difficulties were pointed out by the Apex Court in the case of Abdul Ghafoorarid others vs. Muhammad Shaft and others P.L.D. 1985 SC 407 wherein it was observed as under :-

"Further, by virtue of the superior-Courts declaration of law when interpreting various provisions of that Act with reference to the retention of customary law as projected in the old legislations already noticed, it was ruled first by the Lahore High Court and then by this Court in several judgments dealing with various aspects of succession including widows limited estate, that a person who had inherited agricultural land prior to the enforcement of Act K of 1948, his or her power of alienation (treating the same as in incidence of Customary succession) will be controlled by the law of succession which applied to him or her then (Prior to Act DC of 1948). In other words, if a person had inherited agricultural land under Custom as an heir (in any form) to the last full owner then qua that heir the restrictions regarding alienation under Custom would control his power of alienation notwithstanding, the promulgation of the Muslim Shariat Application Act IX of 1948. An important condition, amongst others, which was consistently spelled out-was that no alienation could take palace without the consent of the concerned reversioners unless it was for consideration and legal necessity. Females/widows inheriting the estate in various forms were also dealt with, on somewhat similar lines."

1. In order to remove these difficulties the Punjab Muslim personal Law (Shariat) Application (West Pakistan Act V) of 1962 was promulgated. This was amended by the Punjab Ordinance No. XIII of 1983 by virtue of which Section 2-A was incorporated. Section 2-A is as under :--

"Notwithstanding anything to the contrary contained in Section 2 of any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of 'the Punjab Muslim Personal Law (Shariat) Application Act, 1948 a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:-- , .

1084 Lah.

Mst. noor patima v. shah Ji(Tanvir Bashir Ansari, J.)

PLJ

(a) he shall be deemed to have become upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat).

(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage to call in question such an alienation or directing delivery of possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim personal Law (Shariat) Act; .

(c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith:

Provided that nothing herein contained shall be applicable to transaction past and closed where possession of such land has already been delivered under such decree.

1. The impact of Section 2-A mentioned above is manufactured which may be recorded as under :--

(i) wherever a male heir had acquired by way of inheritance or otherwise any agricultural land from any Muslim before 15.3.1948, he shall be deemed to be an absolute owner irrespective of whether he died before or after the promulgation of Act K of 1948.

(ii) Retrospectivity of Section 2-A is inherent in its own provisions. This is so as this provision itself provides that if a male heir had acquired any agricultural land before the commencement of the Punjab Muslim Personal Law (Shariat Application Act) 1948, he shall be deemed to have become an absolute owner of such land as if such land had devolved on him under the Muslim Personal Law (Shariat).

(iii) the terms acquisition used has a wider connotation and amongst other modes of acquisition by the male heir includes acquisition by succession/inheritance.

1. In view of the above narration, the contentions raised by the learned counsel for the petitioner are found to have much force. It is admitted on the record that the dispute relates to the inheritance of Fazal Hussain Shah the predecessor-in-interest of the petitioner and contesting respondents. It is immaterial for the present controversy whether the property in dispute was acquired by Fazal Hussain Shah through inheritance or whether it was his self acquired property. It is also irrelevant if he died before or after the promulgation of Act IX of 1948. Within the meaning of Section 2-A Fazal Hussain Shah who had acquired the Property in dispute before the commencement of Act DC of 1948 shall be deemed to be

2002 Msf. nargas parveen v. flana nasrullah khan BABARLah. 1085

(Maulvi Anwarul Hag, J.)

the absolute owner of such land as if such land has devolved on him under Muslim Personal Law (Shariat) and after his death all his Muslim Law heirs shall inherit in accordance with their legal shares.

1. In this view of the matter, the findings of both the learned lower Courts that as it was not proved that Fazal Hussain Shah died after the promulgation of Act IX of 1948 his, female heirs like the petitioner would not inherit is not in accordance with law. The second contention of the learned counsel for the petitioner that even if Section 2-A did not have this effect the principles of Muslim Personal Law can not yield to the customary law as no custom-over-riding the Muslim Personal Law was either specifically pleaded or proved on the record is also correct. This however, shall be of an academic interest only as the implications of Section 2-A have already been discussed.

2. Finally as it is being held that the petitioner and other female heirs of Fazal Hussain Shah were entitled to their share of inheritance, the bar of limitation shall not apply against the petitioner.

3. For the afore-stated reasons, this Civil Revision succeeds and the judgment and decree of the appellate Court dated 19.5.1993 and judgment and decree dated 15.12.1987 of the trial Court are set aside with the result that the suit of the petitioner stands decree as prayed. Parties to bear their own costs.

| | | --- | | (B.T.) |

Petition succeeded.

PLJ 2002 Lahore 1757

Present: tanvir bashir ansari, J. NAVEED AHMAD-Appellant

versus

NASEER AHMAD and another-Respondents

R.S.A. No. 50 of 1994, decided on 11.7.2002. (i) Punjab Pre-emption Act, 1913 (I of 1913)--

—S. 15-Colonization of Government Lands (Punjab) Act 1912, S. 19~Civil Procedure Code (V of 1908), S. 100--Suit for pre-emption filed by minor appellant was not for his own benefit but was in the interest of vendor himself therefore, suit for pre-emption was not bona fide exercise of right by pre-emptor but was fraudulent act--N.O.C. under S. 19 of Colonization of Government Lands (Punjab) Act 1912, was issued on 13.11.1973, while agreement to sell was executed on 13.9.1972, receipt for part payment of sale consideration was executed on 11.10.1973, and Raznamcha waqiati regarding transfer of possession was entered on 9.1.1974--Transfer of possession under sale having thus, been established prior to attestation of sale mutation on 20.2.1974, suit filed on 19.2.1975 was patently barred by time. [P. 1761 & 1762] A

(ii) Punjab Pre-emption Act, 1913 (I of 1913)-

—S. 15--Civil Procedure Code (V of 1908). S. 100-Second appeal-Plaintiffs could not persuade High Court to take view different from what has been expressed by Appellate Court in its impugned judgment and decree-­Plaintiff had also failed in making up deficiency in Court fee despite having been afforded an opportunity to do same by Appellate Court-Appeal being without merit was dismissed in circumstances. [P. 1762] B

PLD 1984 SC 415; PLD 1977 AJ&K 69; PLJ 1999 SC 1084 and NLR 1984 (Revenue) 4 ref.

Ch. Khurshid Ahmad, Advocate for Appellant. • Mr. S.M. Tayyib, Advocate for Respondents. Date of hearing: 9.7.2002.

judgment

The facts are that the land in question was transferred by sale to the respondents on 20.2.1974 for an ostensible sale price of Rs. 2,00,000/-. The petitioner pre-empted the said sale claiming superior right of pre-emption on the basis of being collateral of the vendor. It was asserted that the sale price was Rs. 1,55,000/- and not Rs. 2,00,000/- as mentioned in the mutation.

1. The vendee/defendants resisted the suit and inter-aliacontended that the suit was barred by time; that the suit land was not pre-emptible; that the suit was collusive and for the benefit of the vendor and that the plaintiff had no superior right of pre-emption. From the pleadings of the parties several issues were framed but for the purpose of the instant Regular Second Appeal, the material issues are Issues Nos. 1 and 4 which are reproduced as under:-

2. Whether the suit is barred by time?

3. Whether the suit is collusive and for the benefit of the vendor, if so with what effect?

4. The learned trial Court, in view of the evidence recorded before it found that the suit was within time and that th'e period of limitation was liable to be reckoned from the date of sanctioning of the mutation i.e. 20.2.1974 and not prior to this date. Upon Issue No. 4 it was held that the vendees have failed to adduce independent and sufficient evidence in support of this issue. It was held that despite the plaintiff being a minor and even if his father (one of the vendors) was financing the litigation the suit would not be collusive. Holding that the plaintiff had a superior right of pre-emption, the suit was decreed on payment of Rs. 2,00,000/- vide judgment and decree dated 6.12.1980. The respondents preferred an appeal which was accepted on 19,2.1987 and after setting aside the judgment and decree of pre-emption, the case was remanded to the trial Court for fresh decision.

5. The plaintiff/petitioner filed F.A.O. No. 67 of 1987 against the above mentioned order of remand which was accepted by this Court vide judgment dated 1.12.1993. Regarding the determination and payment of Court fee it was observed as under:-

"The controversy relating to deficiency of Court-fee agitated before the appellate Court could have been decided on the basis of chart of net profits (Ex. D.ll) produced by respondents/defendants which . pertained to the two crops preceding the institution of the suit. The appellant had no objection to pay Court-fee assessed on the basis of the said chart and was willing even to pay the maximum Court-fee of Rs. 15.000/-. Therefore, there was no necessity to remand the case to the trial Court for further inquiry quathe question of Court-fee. After determining the Court-fee on the basis of the chart of net profits Ex. D. 11, the appellate Court should have directed the appellant/plaintiff to make good deficiency of Court-fee. In the like manner, the respondents who were appellants before the learned Addl. District Judge could have been required to make good deficiency of Court-fee on the memorandum of appeal. The argument of the respondent's counsel that part of the disputed land is village-site or Abadi Deh and had to be assessed on the basis of market value, has no force. The entries of the jamabandifor the years 1971-1972 (Ex. D.I) show that the vendors owned Square No. 15 out of which KillasNos. 1 to 25 were under cultivation while KillasNos. 26 and 27 were Chair Mumkan Makan.The Ghair Mumkan Makans are part of the agricultural land though assigned IhatasNos. 15 and 51. Therefore, the said Ihatasare not to be separately assessed as alleged village sites for purposes of determination of the Court-fee."

1. As regards the application for amendment of the written statement it was held that the same ought to have been decided by the First Appellate Court and that there was no legal justification to remand the case to the trial Court for the said purpose.

2. Resultantiy, the F.A.O. was accepted and the order of remand dated 19.2.1987 passed by the appellate Court was set aside and the case was remitted to the appellate Court to decide the question of Court-fee in accordance with law and also to decide the application for amendment of the written statement on merits.

3. Upon remand the learned appellate Court considered the application for amendment of the written statement and proceeded to dismiss the said application. As regards the Court-fee, the appellant/plaintiff was directed to make up the deficiency of Court-fee amounting to Rs. 2070/- before 22.9.1994 failing which the memo of appeal shall stand rejected under the provisions of Order 7, Rule 11 CPC. Regarding the merits of the ca(se, the learned appellate Court found that the suit for pre-emption filed by Naveed Ahmad minor son of Qamar Mohi-ud-Din (one of thevendor) was infact launched by the said Qamar Mohi-ud-Din for his own benefit and that the entire expenditure was also borne by the said father of the minor plaintiff. It was thus held that the suit was collusive between the vendor and the minor pre-emptor. Upon the question of limitation, the First Appellate Court held that possession under the sale was transferred much before attestation of mutation on 20.2.1974 and that the suit filed on 19.2.1975 was barred by time.

4. Resultantly, the appeal was'accepted on 8.9.1994 and the judgment and decree dated 6.12.1980 was set aside and the suit for pre­ emption stood dismissed.

5. Ch. Khurshid Ahmad. Advocate, the learned counsel for the appellant has assailed the findings of the learned First Appellate Court upon Issue No. 1 regarding limitation and Issue No. 4 whereupon it was held that the suit was collusive between the pre-emptor and one of the vendors. The learned counsel for the appellant contended that although the appellant/plaintiff was the minor son of one of the vendors this fact alone was not sufficient to prove the collusion between the pre-emptor and the vendor. According to him the mere fact that the suit was filed by a minor pre-emptor and even though the litigation was financed by the father of the minor plaintiff who himself was the vendor, it would not render the suit for pre-emption to be collusive between the pre-emptor and the vendor. He further contended that there can not be any question of collusion as a minor cannot enter into any collusive transaction being incapacitated to enter into any contract whatsoever. He placed reliance upon Imam and 7 others vs. Saifur RehmanPLD 1984 SC 415 and Muhammad Abdullah vs. Abdullahand others PLD 1977 AJ&K 69.

6. Upon the question of limitation it was contended that the mutation was attested on 20.2.1974 and the suit filed on 19,.2.1975 was well within time. According to him the sale was made out of a joint Khataand thus the subject-matter of sale was not susceptible of actual physical possession and therefore, no period of limitation, could commence from the date prior to the sale mutation. He also submitted that as the suit land was in possession of a tenant, for this reason also actual physical possession could not be transferred under the sale. The learned counsel relied upon BashirAhmad vs. Mst. Rasul Bibi and 11 others PLJ 1999 SC 1084 to contend that sufficient material on the record to warrant this conclusion. As far as, the question of limitation is concerned suffice it to say that N.O.C. under Section 19 of the Colonization of Government Lands Act 1912 was issued on 13.11.1973, the agreement to sell was executed on 13.9.1972 the receipt for part payment of sale consideration was executed on 11.10.1973 and the Roznamcha Waqiati regarding transfer of possession was entered on 9.1.1974. The transfer of possession under the sale having thus been established prior to the attestation of the sale mutation on 20.2.1974, the suit filed on 19.2,1975 was patently barred by time.

7. For what has been discussed above, the learned counsel for the appellant has not been able to persuade this Court to take a view different from what has been expressed by the learned appellate Court in its impugned judgment and decree dated 8.9.1994.

8. Before parting with this judgment it is noticed that the appellant has also failed to making up the deficiency in the Court-fee despite having been afforded an opportunity to do the same by the learned appellate Court.

9. For all that is stated above there is no merit in this Regular Second Appeal which is hereby dismissed leaving the parties to bear their own costs.

(A.A) Appeal dismissed.

PLJ 2002 Peshawar1

Present: talaat qayyum qureshi, J.

KHURSHID AKBAR-Petitioner

versus

SAADULLAH KHAN--Respondent C.R. No. 288 of 1995, decided on 30.1.2001.

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

—O.VI, R. 2--North-West Frontier Province Pre-emption Act (X of 1987) S. 13—Time, place and name of person in whose presence plaintiff made Talb-i-Muwathibat not mentioned in plaint--Effect--Time, place and name of the person in whose presence plaintiff had made talb-i-muwathibat need not be mentioned in plaint. [P. 3 & 5] A & B

(ii) North West Frontier Province Pre-emption Act, 1987 (X of 1987)--

—S. 13~Talb-i-Muwathibatnot made immediately after acquiring knowledge of sale—Suit for pre-emption whether competent— Talb-i- Muwathibat is to be made immediately after acquiring knowledge of sale- Where plaintiff did not make any declaration regarding his intention to pre-empt sale transaction in presence of person who first of all informed him about the sale, pre-emptor had lost his right of pre-emption by delay in making talb-i-muwathibat-Apa.rt from not making talb- -muwathibat in time, plaintiff also making talb-i-Ishhadafter two weeks of gaining knowledge of sale transaction thus, requirements of S. 13 of North West Frontier Province Pre-emption Act 1987 were not fulfilled-Plaintiffs failure to exhibit notice of talb-i-ishhad was also fatal, therefore, he was not entitled to claim right of pre-emption. [P. 6] C, D, E&F

.

judgment

Saadullah Khan, respondent/ plaintiff filed Suit No. 27/1 on 3.2.1993 in the Court of learned Civil Judge Takht Bhai for possession through pre-emption of land measuring 3 kanals 5 Marias comprising KhasraNos. 258 and 259 Bearing Khata No. 142/616-617 situated at Mauza Arabi Banda Tehsil Takht Bhai, District Mardan. The said suit was resisted by the petitioner/defendant by filing written statement. The learned trial Court after recording pro and contra evidence of the parties, dismissed the suit vide judgment and decree dated 12.9.1994. Being not satisfied with the said judgment and decree, the respondent/plaintiff filed Appeal No. 222/13 on 21.9.94 in the Court of learned Addl. District Judge Takht Bhai, which was accepted videjudgment and decree dated 11.4.95. The petitioner/ defendant has filed the revision petition in hand against the judgment and decree passed by the learned appellate Court dated 11.4.1995. Mr. Maazullah Barkandi, the learned counsel representing the petitioner argued that the respondent/plaintiff had failed to mention in his plaint the time, place and the name of the person in whose presence he made Talab-e-Muwathibat, therefore, the suit deserved dismissal on this score alone.

1. He also argued that the plaintiff in his statement before the Court had admitted that Dost Muhammad (P.W. 4) had informed him about the sale Mutation No. 1876 on the date on which the said mutation was attested on 20.10.92, but he made no Talbe-e-Muwathibat and Talb-e-Ishhad was made on 31.1.93 after the expiry of period prescribed by law. The plaintiff failed to exhibit the notice of Talb-e-Ishkad on file, therefore, the requirement of law were not fulfilled. 4It was also argued that there were contradictions in the statements of plaintiff and Dost Muhammad (P.W. 4). The said P.W (P.W. 4) stated that he informed the plaintiff after one month of attestation of mutation, whereas the plaintiff in his statement stated that he was informed on the day of attestation of mutation by Dost Muhammad. It was further argued that the petitioner is also co-sharer in the disputed property which has been admitted by the A.D.KL, P.W. 1, therefore in case of non-dismissal of suit, he was entitled to half of the pre-empted land.

2. On the other hand Mr. Abdul Samad Khan, the learned counsel representing the respondent argued that it was not necessary to mention the details of Talabs in the plaint as held by the August Supreme Court of Pakistan in case reported as Haji Noor Muhammad Vs. Abdul Ghani and 2 others (2000 SCMR 329).

3. So far as the contradictions in the statement of plaintiff and Dost Muhammad (P.W.4) are concerned, the learned counsel stated that there were no material off contradictions and the plaintiff in his statement has categorically stated that he did not gain knowledge of the mutation on the , date it was attested.

4. It was also argued that notice Talb-e-Ishhad dated 31.1.93 was placed on file and that Dost Muhammad (P.W.4) and Fateh Muhammad (PW.5) have admitted having signed the said notice. Mamrez Khan postman (P.W.2) and Nooruddin Clerk of Post Office Gujar Garhi, Mardan have also stated that the notice of Talb-e-Ishhad was sent by the plaintiff to the petitioner/defendant through registered post. A.D. and the presumption of law is t at the said notice was received by the petitioner/defendant, which is fortified by the signatures of the petitioner on A.D. Card Ex. P.W. 2/2. I have heard the learned counsel for the parties and perused the record carefully.

5. So far as the first argument of the learned counsel for the petitioner that the respondent/plaintiff had failed to mention in his plaint the time, place and the name of the person in whose presence he made Talb- e-Muwathibat therefore, his suit deserved dismissal has no force at all. Plain reading of Order 6, Rule 2 C.P.C. provides that material facts are to be stated in pleadings but it does not mean that evidence through which such material facts is to be proved shall also be stated in pleadings. Where it is mandatory to give in plaint in a suit through possession by pre-emption the particulars and details of the date, time and place of Talb-e-Muwathibat and also the names of the witnesses in whose presence this Talabwas made came up before the august Supreme Court of Pakistan in Haji Noor Muhammad Vs. Abdul Ghani and 2 others (2000 SCMR 329) and Full Bench of august Supreme Court of Pakistan after taking into consideration various judgments concerning the said issue held:- "We confirm the view taken earlier by this Court that the pleadings may refer to the material facts but the law does not require the pleadings to contain gist of all the facts and names of witnesses of the plaintiff and that the suit for pre-emption is not an exception to such general principles, which is well.established in our jurisdiction. We are, therefore, unable to endorse the view taken in the impugned judgment of the High Court that the requirement of Talb-e-Muwathibat cannot be fulfilled unless details, particulars, date, time and place are also specifically mentioned in the plaint and the names of the persons in whose presence such Talab is made is also mentioned therein.

6. The question as to whether is sine qua non for the pre-emptor to specify in the plaint the names of the witnesses in whose presence 'Talb-i- Muwathibat' under Section 13 of the North West Frontier Province Pre­ emption Act (X of 1987) was made by the pre-emptor and the place, date and time of making the 'Talabs, came up before august Supreme Court of Pakistan in Civil Appeal No. 44 of 1997 (Sar Anjam Vs. Abdur Raziq), Civil Appeal No. 573 of 1997 (Shakirullah V. Aminullah) and Civil Appeal No. 574 of 1997 (Muhammad Ishaq Khan Vs. Amir Nawaz Khan). Their Lordships after discussing various judgments held in Paragraph No. 10 of the judgment: "The above survey of case-law would, thus, lead us to the conclusion that the pleadings of the parties should contain only material facts and are, therefore, not required to contain the gist of evidence and names of witnesses." Similarly, in Paragraph No. 12 it was held: "We have, therefore, no hesitation to hold that it is not a sine qua non for a pre-emptor to specify in the plaint the names of witnesses in whose presence he had made 'Talb-i-Muwathibafand also specify the time and place of making the 'Talabs' under Section 13 of the Act." 12. Likewise in case Amir Jan and 3 others V. Haji Ghulam Muhammad (PLD 1997 SC 883) it was held: "No doubt Order 6, Rule 2, C.P.C. provides that material facts are to be stated in pleadings but it does not mean that evidence through which such material fact is to be proved shall also be stated in pleadings. In our view it would be sufficient requirement of law if it is alleged in the pleadings that after having come to know of sale the pre-emptor declared his intention to pre-empt the sale. The material fact has to be proved at the trial through evidence on the issue framed in this regard."

7. Similarly a Single Bench of this Court in C.R. No. 22 of 1995 (Bashir Ahmad and others V. Murtdza Khan) has also held that it is not necessary for the pre-emptor to mention the time, date, place and the names of the witnesses in the plaint.

8. A similar view was adopted by this Court (by me) inMuhammadZarin Vs. Aamer Mehmood (PLD 2000 Peshawar 20). Keeping in view the dictums laid down by august Supreme Court of Pakistan and this Court, it is held that it is not necessary to mention in pleadings the date, time and place as well as the names of the persons in whose presence Talb-i-Muwathibat is made.

9. So far as the other argument of the learned counsel for the petitioner that the plaintiff in his statement before the Court had admitted that Dost uhammad (P.W.4) had informed him about the sale on the day of which sale mutation in question was attested, but he made no Talb-e-Muwathibatand Talb-e-Ishhadin time and that there were material contradictions between statements of plaintiff and Dost Muhammad (P.W.4) regarding Talb-e-Muwathibat, therefore, his suit deserved dismissal also has a force in it. Saadullan Khan, plaintiff/respondent was examined as P.W. 6. In cross-examination he admitted: Mutation No. 1876 was attested on 20.10.92, therefore, the plaintiff/ respondent had the knowledge of the same on 20.10.92. It is in evidence that notice Talb-e-Ishhad was sent to the petitioner/defendant on 31.1.93. As per Section 13 of the Pre-emption Act, 1987 Talb-i-Muwathibatis to be made immediately after acquiring the knowledge of the sale. Pre-emptor has to declare his intention to exercise his right of pre-emption into sitting of meeting ( ..J& ) in which he comes to know about the sale transaction, where the pre-emptor did not make any declaration regarding his intention to pre-empt the suit transaction in the presence of the person who first of all informed the pre-emptor about the sale, the pre-emptor had lost his right of pre-emption by delaying such pronouncement of his intention to pre-empt the transaction and the delay caused in making the requisite Talb-e-Muwathibat invalidated the right of pre-emption.

10. 1. It the case in hand Dost Muhammad (PW. 4) stated that the respondent/plaintiff made Talb-e-Muwathibat and on the following day at 10.00 a.m. they went to Kachehri Takht Bkai where notice Talb-e-Ishhad was issued to petitioner/defendant. Similarly Feteh Khan (P.W. 5), son of the plaintiff also stated that on the following day of making of Talb-e- Muwathibat, notice of Talb-e-Ishhad was sent to the petitioner through Advocate.

11. The perusal of the statements of plaintiff, Dost Muhammad (P.W.4) and Fateh Khan (P.W.5) show that not only Talb-e-Muwathibat was delayed but Talb-e-Ishhad was also made after 2 weeks of gaining knowledge of sale transaction, hence the requirements of Section 13 of the Pre-emption n Act, 1987 were not fulfilled. So far as the plea of the respondent/defendant that he was informed after a month by Dost Muhammad (PW. 4) about the sale transaction and immediately on gaining knowledge, he made Talb-e-Muwathibat,this plea has not been substantiated and proved by him in his evidence. As mentioned above, he had admitted that he was informed of the sale transaction on the day the sale mutation was attested. Therefore, his plea that he was informed after a moth has no force.

12. The argument of the learned counsel for the petitioner that the notice of Talb-e-Ishhadwas not exhibited, therefore, the same cannot be taken into consideration even if placed on record also has a fore in it. The respondent/plaintiff though examined Muhammad Nazir Khan postmen, Gujar Garhi Mardan (P.W.2), Nooruddin Clerk Post Office Gjuar Garhi (P.W.3), Dost Muhammad (P.W.4) and Fateh Khan (P.W.5) in order to prove that notice of Talb-e-Ishhad was sent to the petitioner/defendant but the notice itself was not exhibited. Order 13, Rule I envisages that the parties or their pleaders shall produce, at the first hearing of the suit produce all the documentary evidence of every description in their possession or power on which they intend to rely. No doubt photo stat copy of the notice was annexed with the plaint but in law it cannot be taken into consideration as the same was not exhibited in evidence. In a case reported as PakistanInsurance Corporation Vs. Asian Mutual Insurance Co Ltd. (1999 MLD 3298) it was held that document neither pleaded nor exhibited in evidence could not be taken into consideration. Even if the notice of Talb-e-Ishhad which has been placed on file and not exhibited, the same is not in accordance with the requirements of law in that it has not been thumb impressed by two witnesses. Saadullah, plaintiff (P.W.6) in cross-examination admitted:-

Keeping in view the above mentioned discussion, I accept the revision petition in hand and set aside the judgment and decree passed by the learned appellate Court dated 11.4.95 and restore that of the learned Civil Judge Takht Bkai dated 12.9.94 with no orders as to costs.

(A.A) Petition accepted.

PLJ 2002 Peshawar 7

Present: talaat qayyum qureshi, J. TAUS KHAN--Petitioner

versus

MUHAMMAD SHUAIB-Respondent

C.R. No. 536 of 1994, decided on 2 3.4.2001. (i)

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

-—S. 115-Revisional jurisdiction, exercise of-Where Courts below had properly appreciated evidence and law applicable thereto and neither any non-reading or misreading of evidence nor any material irregularity was pointed out, case was not made out for interference in revisional jurisdiction by the High Court. [P. 11] D

PLD 1985 SC 254; AIR 1952 Lah. 518; AIR 1924 Lah. 203; AIR 1940 Lah. 475 and PLD 1959 SC 9 ref.

(ii) Muhammadan Law-

—Gift-Delivery of possession when not necessary-Plaintiff being minor at the time of making of gift, delivery of possession to him by donor was not sine qua non-Delivery of possession to other plaintiff who was major at the time of making of gift was also not necessary where property was not partitioned-Possession of such donee could be regulated after partition had taken place-Gift of specified Khasra numbers out of joint property on which donor was in possession was justified, however, such possession would be subject to adjustment at the time of partition-Gift to plaintiffs was thus, valid and could not be discarded on the ground of non-delivery of possession. - [Pp. 8, 9, & 11] A, B & C

Mr. Attaullah Khan, Advocate for Petitioner. Miss Nusrat Yasmin, Advocate for Respondent. Date of hearing: 19.3.2001.

judgment

Taus Khan and other filed suit for declaration to the effect that they are owners in possession of the half of the land out of land measuring 2 Kanals 13 Marias in Khasra No. 3408 situated at Village Tehkal Bahi and Mutation No. 81 attested on 17.12.31 is illegal, ineffective and inoperative upon the rights of petitioners/plaintiffs. The said suit was resisted by the respondents by filing written statement. The learned trial Court after framing as many as 11 issues, recording pro and contra evidence of the parties dismissed the suit of the petitioner/plaintiff videjudgment and decree dated 25.1.93. Feeling aggrieved of the said judgment and decree the petitioners filed Appeal No. 9/13 of 1993 in the Court of learned Addl.District Judge, Peshawar, which too was dismissed vide judgment and. decree dated 24.4.94. The petitioners have assailed the judgments and decrees of the Courts below through revision petition in hand.Mr. Attaullah Khan, Advocate, the learned counsel representing the petitioners argued that M/s. Musa Khan and Isa Khan who were real brother in terse and were the owners of the land measuring 2 Kanals 13 Marias in equal shares bearing Khasra 3408. Musa Khan sold land measuring one Kanal17 Marias to Muhammad Shuaib, Muhammad Ayub, Abdur Rehman and Muhammad Yousaf vide sale-deed No. 484 dated 21.2.29 registered in the office of Sub-Registrar Peshawar. On the basis of sale deed Mutation No. 81 was attested on 3.12.31 whereby land measuring 2 Kanals 13 Marias was wrongly mutated in favour of above mentioned persons. On 9.4.85, Isa Khan gifted half of the land out of land measuring 2 Kanals 13 Marias, to his son Taus Khan and his grandson Halim vide Mutation No. 691 which was attested on the same day i.e. 9.4.1985. Having come to know about the illegal transfer of land measuring 2 Kanals 13 Marias in favour of respondent, the petitioners filed suit. The learned trial Court decided all the issues in favour of the petitioners/ plaintiffs except Issues Nos. 1 and 10 and dismissed their suit on the ground that the possession was not delivered to the donees, but the learned trial Court failed to appreciate that the Petitioner/Plaintiff No. 2 Halim was minor and in his case delivery of possession was not sine qua non. So far as the case of Petitioner/Plaintiff No. 1, Taus is concerned, the delivery of possession to him as per Section 6 of the Muhammadan Law was also not necessary because the property was unpartitioned and the same could be regulated after the partition takes place. Regarding the judgment/decree of the appellate Court, it was argued that the learned Addl. District Judge has justified the transfer of two Kanals 13 Mariasin favour of respondents on the ground of possession alone subject to adjustment in other joint properties but there is nothing available on record that Isa Khan and Musa Khan had other joint properties also in which the adjustment to Isa Khan can be granted, therefore, the judgment of the appellate Court is also not based on proper appreciation of evidence and needs reversal.

1. On the other hand Miss Nusrat Yasmin the learned counsel representing the respondents argued that Yousaf was the owner of property in dispute. On his death the property devolved upon Musa Khan and Isa Khan his sons. Private partition took place between two brothers and Musa Khan was given Khasra No. 3408. He was in possession of the said property since 1938-39 as is clear from Ex. P.W. l/D-3. Likewise Ex. P.W. l/D-14, Ex. P.W. l/D-15 & Ex. P.W. l/D-16 Goshwara Mulkiat show that there is sufficient joint/unpartitioned properly in the names of Isa Khan and Musa Khan and Musa Khan had every right to sell a portion of his land to respondents.

2. It was also argued that the Courts below have concurrently dismissed the suit as well as appeal of the petitioners and there is no illegality in the impugned judgments, therefore, the same cannot be interfered with while exercising revisional jurisdiction.

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

4. It is admitted position that one Yousaf was owner of huge properly. On his death the property devolved upon his two sons namely Musa Khan and Isa Khan. Fard Jamabandi for the year 1938-39 Ex. P.W. l/D-3 shows that Musa Khan was in possession of Khasra No.

5. His possession over the property continued till the same was sold to respondents. Perusal of Ex. P.W.l/D-14 at page 34 of the original file shows that Musa Khan and Isa Khan were joint owners in equal shares in two Khatas (the numbers of which have not been given). In one Khata land measuring 26 Kanals3 Marias stood jointly in the names of Musa Khan and Isa Khan in equal shares. Each one of them was, therefore, owner of 13^ Kanals and \ Marias. Although the details of land sold by him in the said Khata are not available on record and the petitioners have also not bothered to clarify as to whether any joint property is still in the share of Musa Khan in that Khata. The other Khata consisting of land measuring 19 Kanals 14 Marias in which each one them owned land measuring 9 Kanals17 Marias. The land in dispute comprising Khasra No. 3408 is situated in this Khata which, as mentioned above, consists of land measuring 19 Kanals 14 Marias. Out of his share i.e. 9 Kanals 17 Marias Musa Khan sold 3 Kanals 3 Marias through Bandobasti sale, whereas he sold 2 Kanals13 Marias through Mutation No. 81 (disputed mutation) to respondents. Having sold land measuring 5 Kanals 16 Marias, Musa Khan was still left with land measuring 4 Kanals 1 Maria in the said Khata.This document also shows that Musa Khan has further sold land measuring 2 Kanals 5 Marias and land measuring one Kanal 16 Marias is still left as his share which is in his possession. Fard Jamabandifor the year 1929-30 Ex. P.W.l/D-1 shows that Musa Khan, vendor, was in Hissa Dari possession of entire Khasra No. 3408. If Musa Khan has sold land measuring 2 Kanals 13 Marias in cultivation column in favour of respondents in KhasraNo. 3408 of which he was having possession, then he has committed no illegality since no partition between co-sharers had taken place, therefore, Musa Khan was within his rights to sell land in specific Khasra No. which was in his possession out of n the joint property. The sale/alienation was subject to adjustment at the time of partition.

6. In Feroz Vs. Sher and others (PLD 1985 S.C. 254) it was held:-

"It was held in Saad Ullah Vs. Ibrahim (AIR 1952 Lah. 518) relying on Muhammad Amin Vs. Karam Das (AIR 1924 Lah. 293) that although a co-sharer in appellate land not being the sole soled owner of the land cannot sell the full proprietary rights in the land, a sale by him holds good to the extent of conveying the rights which he can sell including the right to retain Possession till partition and that a transferee from such co-sharer has the same rights in the land that his transferor had and is entitled to undisturbed possession of the land as long as the shamilat is not partitioned. Similar view was expressed in Sukh Dew Vs. Parsi (AIR 1940 Lah. 473) and it was further added that a co-sharer in possession of a portion can transfer that portion subject to adjustment of the rights of the other co-sharers therein at the time of the partition and that the other co-sharers, right will be sufficiently safeguard if they are granted a decree by giving them a declaration that the possession of the transferee in the land in dispute will be that of the co-sharers subject to adjustment at the time of partition. In Muhammad Muzaffar Khan Vs. Muhammad YusufKhan (PLD 1959 S.C. 9) also, this Court observed:-

"The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers."

1. In a similar case Muhammad Sharif and 3 others Vs. Ghulam Hussain and another (1995 SCMR 514) it was held:-

"The share of Abdul Ghani in the Khata exceeded the area sold by him and, therefore, in view of the principle laid down in the judgment of this Court in Muhammad Muzaffar Khan Vs. Muhammad YusufKhan (PLD 1959 S.C. (Psk) 9), he was within his right to transfer the specific Khasra numbers in his possession to the transferee, who, in his turn, was entitled to retain possession till partition of the entire joint property. Respondent No. 1, no doubt, in his written statement claimed exclusive ownership through private partition between the co-sharers but that plea has not been accepted

by all the Courts below. The learned trial as well as the first appellate Court failed to consider the legal aspect ennunciated in the above-quoted judgment of this Court and passed the declaratory decree. The High Court, however, by upsetting the same held the transferee to be stepping into the shoes of his transferor Abdul Ghani to the extent of his ownership rights in the entire joint property, no more and no less. The rights of the plaintiff qua their ownership rights in the entire joint property are not affected through the judgment of the High Court. So far as gift dated 9.4.1985 by Isa Khan in favour of his son Taus Khan and his grand son Halim vide Mutation No. 891 attested on 9.4.1985 is concerned, the same is valid and could not discarded on the ground of non-delivery of possession. It is worth mentioning that Halim, grand-son was minor at the time of the gift, therefore, as per dicta laid down in Hakim Khan Vs . Aurangzeb and another (PLD 1975 Lahore 1170) and Muhammad Afzal Khan and another Vs. Mst. Khurshid Begum and 3 others (PLD 1975 Peshawar 24) the delivery of possession to minor was not a sine qua non for completion of gift. Likewise u/s 160 of Muhammadan Law by D.F. Mulla, delivery of possession of unpartitioned property could be regulated and validated by subsequent delivery of possession after the partition takes place.

The above discussion leads me to an irresistible conclusion that the Courts below have properly appreciated the evidence as well as the law applicable to the case. Neither any non-reading or mis-reading of evidence nor any material irregularity nor any jurisdictional error or defect could be pointed out, therefore, I am not inclined to interfere with the impugned judgments and decrees. Resultantly, the revision petition in hand in dismissed with ho orders as to costs. (A.A) Revision dismissed.

PLJ 2002 Peshawar 11 (DB)

Present: mian SHAHRULLAH jan and talaat qayyum qureshi, JJ.

ZAFEER GUL and 19 others-Petitioners

versus

NORTH WEST FRONTIER PROVINCE through secretary to Govt. of

NWFP, Revenue Department and Senior Member NWFP Board of Revenue, Peshawar and 5 others-Respondents

W.P. No. 1452 of 2000, decided on 22.3.2001.

Land Acquisition Act, 1894 (1 of 1894)-

—Ss. 3 & 4~Constitution of Pakistan (1973), Art. 199~Acquisition of land for construction of WAPDA Employees Co-operative Housing Society assailed on the ground that said society could not be deemed to be a company and that such society was not formed for public purpose- Comeptency of issuing notification under S. 4 of Land Acquisition Act 1894 was also assailed-WAPDA Employees Co-operating Housing Society having been registered under Co-operative Societies Act 1925, was deemed to be a company within the meaning of S. 3(e) of Land Acquisition Act 1894, therefore, land in question can be acquired for it-­ Land proposed to be acquired was for public purpose in as much as, Land Acquired for construction of residential colony would fall under the definition of "Public Purpose"—Codal formalities as required under the law having been fulfilled, District Collector vested with powers of Land Acquisition Collector was competent to issue notification under S. 4 of Land Acquisition Act 1894—Land owners had alternate remedy to raise objection relating to "public purpose" before Collector who after hearing parties could decide whether the land proposed to be acquired was for "public purpose" or otherwise, therefore, in absence of availing of such remedy, that objection could not be raised the Constitutional petition-­ Petitioners, also had remedy to file appeal under S. 54, Land Acquisition Act 1894 in the High Court where such matter could be thrashed out- .Constitutional petition was, thus, not competent and the same was dismissed in circumstances. [Pp. 13,15 & 16] A, B, C, D & E

NLR 1980 Rev. (41; PLD 1983 Lah. 552 & 355; AIR 1960 S.C. 1203;

AIR 1914 P.C. 20; AIR 1959 Punj 479; AIR 1954 All 700;

AIR 1962 SC 764; PLD 1960 SC 60; AIR 1963 M.P. 256;

AIR 1925 Mad. 837.

Mr. Samiullah Jan, Advocate for Petitioners. Advocate General for Respondents Nos. 1 to 3.

Mr. Maazullah Khan Barkandi, Advocate for Respondents Nos. 4 and 5.

Date of hearing: 20.2.2001.

judgment

Talaat Qayyum Qureshi, J.-The petitioners have challenged Notification No. 3187-91 dated 28.6.2000 issued u/S. 4 of the Land Acquisition Act, whereby land measuring 2 Kanals 11 Marias comprising Khasra Nos. 359 and 636/2 situated in Mauza Babi and 1 Kanal 9 Marias comprising Khasra No. 630/375 situated at Mauza Titara (total land measuring four Kanals) has been notified to be acquired for construction of WAPDA Employees Co-operative Housing Society Peshawar near Taru Jabba, Tehsil & District Nowshera.

1. Mr. Samiullah Jan the learned counsel representing the petitioners argued that WAPDA Employees 'Co-Operative Housing Society has not been formed for general public but is meant for limited class i.e. for the WAPDA Employees only and therefore, land could not be acquired under the provisions of Land Acquisition Act. The proposed acquisition, therefore, would not be for "public purpose."

2. It was also argued that District Collector Nowshera is not competent to issue Notification u/S. 4 of the Land Acquisition Act and the impugned Notification has been issued under the directions of Chief Executive PESCO without applying independent mind.

3. On the other hand Mr. Maazullah Barkandi, the learned counsel representing the respondents argued that WAPDA Employees Co-Operative Housing Society has been registered under Co-Operative Societies Act and falls under the definition of Companies as defined u/S. 3(f) of the Land Acquisition Act and the land acquired for the said Company would fall under the category of "public purpose".

4. While repelling the arguments of the learned counsel for the petitioners that the District Collector Nowshera could not issue Notification u/S. 4 of the Land Acquisition Act, the learned counsel representing the respondents argued that the impugned Notification has been issued with lawful authority by a competent person.

5. We have heard the learned counsel for the parties and perused the record.

6. 1. So far as the first argument of the learned counsel for the petitioners that WAPDA Employees Co-operative Housing Society has not been formed for general public and is meant for limited class i.e. for WAPDA Employees only and therefore, land could not be acquired for the same and the proposed acquisition would not "for public purpose" has no force at all. WAPDA Employees Co-operative Housing Society has been registered under Co-operative Societies Act, 1925. Deputy Registrar Co-operative Societies Peshawar vide Letter No. 4741-46/DRP dated 29.12.1987 has certified that the said Society has been registered under the Co-operative Society Act, therefore, u/S. 3 (e) of the Land Acquisition Act, the said Society is deemed to be "Company" and land could be acquired for it. In Peoples Housing Society, etc. Vs. Collector Lahore, etc. (NLR 1980 Revenue Lah. 41) it was held that Housing Society registered under Co-operative Societies Act of 1925 is qualified as Company for the purpose of land acquisition. The argument of the learned counsel that the land proposed to be acquired would not be for the "public purpose" as the Society has been formed for limited class z.e. WAPDA Employees only equally has no force. "Public purpose" is an object in which the general interest of the community n as opposed to the particular interest of individuals is directly and vitally concerned. It is a purpose which is in furtherance of the general interest of the community at large as opposed to the particular interest of an individual. Section 3(f) of the Lands Acquisition Act 1984 defines "public purpose" as under:-

"includes the provision of village-sites in districts in which the (Provincial Government) shall have declared by notification in the official Gazette that it is customary for the Government to make such provisions;" 9. The question whether land to be acquired for construction of Housing Colony for WAPDA Employees would fall under the category of "public purpose" or not came up for hearing in Dr. Muhammad Nasim Javed Vs. Lahore Contentment Housing Society, Ltd, through the Secretary for Tress Stadium Lahore Cantt. and 2 others. (PLD 1983 Lahore 552), the learned Court after discussing various provisions of Land Acquisition Act and judgments in Raja Muhammad and others Vs. Province of Punjab and others (PLD 1983 Lahore 355), Babu Barya Thakur Vs. State of Bombay (AIR 1960 S.C 1230) Hamabai Framjee Petil Vs. Secretary of State for India (AIR 1914 PC 20), Jhandu Lai Budh Ram and others Vs. The State of Punjab and another (AIR 1959 Pb. 479). Tej Ram Jag Ram V. Union of India, Ministry of Works, Housing and Supply, New Delhi and others (AIR 1959 Pb. 478). Radha Raman Vs. State of Utter Pradesh and others (AIR 1954 All. 700), R.L. Arora Vs. The State of Utter Pradesh and others (AIR 1962 SC 764) and many other judgments held:

"In view-of ratio laid down in the aforementioned cases, the 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 whether or not such an acquisition is for a public purpose."

Similarly in Pakistanthrough Ministry of Works Government of Pakistan, Karachi and another Vs. Muhammad All and others. (PLD 1960 S.C. 60) It was held:-

"Accommodation acquired for the residence of Government servants therefore is as much for Government purposes as acquisition for the location of Government offices."

Likewise in Anand Kumar and another Vs. State ofM.P. and others (AIR 1963 Madhya Pradesh 256) It was held:-

"The acquisition of land for enabling M.P. Housing Board to construct houses is clearly for a public purpose. The concept of public purpose is not static. It varies from time to time and according to the circumstances of thought prevailing in the country. It is not possible to define what a public purpose is. But there can be no doubt that when there is acute shortage of houses and accommodation, the provision of house sites for relieving congestion is a public purpose. It may be that the land acquired and the houses constructed thereon may benefit a section of the public. Nonetheless, the acquisition would be for a public purpose as by the acquisition of

the land and construction of houses, the public generally will be benefited."

In Veeraraghavachariar and others Vs. Secretary of State for India, • (AIR 1925 Madras 837) It was held:

"The provision of house sites for Panchamas is a public purpose. The Government is the proper authority for deciding what a public purpose is. When the Government declares a certain purpose to be a public purpose, it must be presumed that the Government is in possession of facts which induce the Government to declare that the purpose is a public purpose."

1. Keeping in view the above mentioned dicta we are clear in our mind that land acquired by WAPDA Co-operative Housing Society for construction of residential Colony would fall under the definition of "public purpose". So far as the other argument of the learned counsel for the petitioner that the District Collector Nowshera is not competent to issue Notification u/S. 4 of the Land Acquisition Act and the impugned Notification has been issued und er the directions of the Chief Executive PESCO without applying independent mind equally has no force.

2. The purpose of the Notification u/S. 4 is to carry on a preliminary investigation with a view to find out after necessary survey and taking levels, and if necessary digging or boring into the sub-soil whether the land was adapted for the purpose for which it was sought to be acquired. The proposal so su bmitted after such enquiry become the subject-matter of a definite proceedings for acquisition under the Act. Another object of Section 4 Notification is to notify interested persons of Government's intention to acquire land. 13. Board of Revenue N.W.F.P. vide its Memo No. 2404/Rev.V/LA- 273 dated 20.5.1991 authorised the Deputy Commissioner/Collector to verify and ensure that the area proposed to be acquired is not in excess of its genuine requirements. The Commissioner Peshawar Division was directed to complete the prescribed formalities as envisaged u/S 40, 41 read with Section 5-A (3) of the Land Ac quisition Act. No doubt Arbab Munirullah Khan and Noorul Haq, Land Acquisition Officers, office of the Project Director Grid Station Construction WAPDA Rawalpindi stationed at Peshawar were appointed vide Notifications dated 30.9.1989 and 8.7.1990 issued by Islam Bahadur Khan, Secretary to Government of N.W.F.P. Revenue Department under clause (c) of Section 3 of Land Acquisition Act, 1894 by the Government of N.W.F.P. to perform functions of the Collector under the aforesaid Act for acquisition of land for WAPDA Employees Housing Society and their allied work within the Peshawar District, but the said powers were subject to the control of the Collector of District Peshawar. Respondent No. 6 as per directions contained in the above mentioned letters executed agreement as per provisions of Section 41 of the Act with the Government of N.W.F.P. on 3.3.1992, therefore, the coded formalities as required under the law were fulfilled and the District Collector Nowshera was competent to issue Notification u/S. 4 of the Land Acquisition Act. It is worth mentioning that adjourning land ofMauza Babi, Khushmuqam, Titara and Balu measuring about 4000 Kanals has been acquired for construction of WAPDA Employees Residential Colony, similar Notifications were issued by the Land Acquisition Authorities, but no objection was ever raised by the land owners. The present objection, it appears, has been raised only for academic purposes, though the impugned Notification shows that the same has been signed by Land Acquisition Collector WAPDA as well as District Collectors Nowshera, both administratively and judicially, such officers, for all practical purpose were Land Acquisition Collectors under the provisions of Land Acquisition Act, therefore, the said Notification has been issued with lawful authority. Keeping in view the above discussion we tend to dismiss the writ petition in hand for the reasons, firstly, that WAPDA Employees Co­operative housing Society has been registered under co-operative Societies Act, 1925 and is deemed to be a Company u/S. 3(e) of the Land Acquisition Act, it therefore, can acquire land. Secondly, the land acquired for establishing residential Colony for the WAPDA Employees falls in the category of "public purpose". Thirdly, the petitioners have challenged Notification u/S. 4 of the Land Acquisition Act, which has been issued to carry on preliminary investigation whether the land was adapted for the purpose for which it was sought to be acquired and to put the land owners on guard that their land is likely to be acquired. It has not created any interest in favour of Government and the land owners would not be divested of their rights merely because Notification u/S. 4 has been issued. Fourthly, the land owners u/S 5-A can raise all those objections before the Collector which they have raised through writ petition in hand. If the Collector after hearing the parties comes to the conclusion that the land proposed to be acquired was not for "public purpose", he can submit the report to the Government and the Government may withdraw Section 4 Notification. The petitioners therefore, have an alternate remedy available to them in the shape of objections u/S. 5-A of the Land Acquisition Act. Fifthly, this Court is repository of ultimate appellate jurisdiction conferred by Land Acquisition Collector, 1894. After availing all the remedies available to the petitioner under the Land Acquisition Act, they can file appeals under Section 54 of the Land Acquisition Act in this Court which will be heard by a Bench of not less than two Judges. Wisdom in this regard has been drawn from dictum laid down by august Supreme Court of Pakistan in Khalid Mehmood Vs. Collector of Customs, (1999 SCMR 1881). We, therefore, dismiss the writ petition in hand with no orders as to costs.

(A.A) Petition dismissed.

PLJ 2002 Peshawar 17

Present:SARDAR MUHAMMAD RAZA, C.J

. ZAHOOR AHMED-Appellant

versus

ASIF HUSSAIN-Respondent

R.F.A. No. 11 of 1999, decided on 12.6.2001.

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

—-O.XXXVII, Rr. 2 & 3--Limitations Act (IX of 1908), S. 5-Suitfor recovery of money-Leave to appear and defend suit was not granted to defendant who had filed application for the same beyond prescribed period-Record showed that no copy of plaint was delivered to defendant alongwith copy of notice-Service of notice being in violation of law, defendant could not be punished for act of Court-Procedure under O.XXXVII of C.P.C. being summary in nature and strigent, Court should have condone delay in filing delayed application for leave to appear and defend suit-Defendant's application for leave to defend suit was accepted and he having raised substantial points therein, case was remanded to Trial Court for disposal on merits on basis of evidence of parties if they wished to produce the same. [P. 18 & 19] A, B & C

PLD 1984 Kar. 252; PLD 1998 Lahore 161 ref.

Mr. Abdul Shakoor Khan, Advocate for Appellant. Qazi Gul Faraz, Advocate for Respondent. Date of hearing: 12.6.2001.

judgment

This is an appeal against the judgment and decree dated 1.3.1999 whereby, Asif Hussain plaintiff, is summary proceedings under Order 37 CPC, was granted a decree for the recovery of a sum of rupees six lacs against Zahoor Ahmed, the appellant/defendant who was refused leave to defend the suit, mainly on the ground that his petition for leave to defend was filed beyond the period of ten days. His application u/S. 5 of the Limitation Act was not considered.

1. The perusal of record would show that the relevant notice underOrder 37, Rule 2 CPC was issued on 11.1.1999 for 16.2.1999. It is alleged that the defendant was served on 5.2.1999 and hence was bound to file petition for leave to defend on or before 15.2.1999, whereas, he has filed such petition on 1.3.1999, beyond the prescribed period of ten days. The notice on the original file bears the endorsement of process server Muhammad Asif on the back thereof, which indicates that though the defendant/appellant was not served in person yet the copy of the notice was delivered at his residence on 5.2.1999. The endorsement speaks of the copy alone and not the copy of plaint along therewith, whereas, the notice issued in Form # 4 in appendix B to the CPC, would require that a copy of plaint shall be annexed to the notice and be, therefore, delivered to the defendant. Provenly no copy of the plaint is delivered to the defendant and hence the se rvice of notice is in violation of the law laid down in Order 37 Rule 2 CPC. The defendant cannot be punished in the circumstances and no limitation, particularly with reference to the alleged date of service, would run against him. (PLD 1984 Karachi 252-a) and (PLD 1998 Lahore 161).

2. The law enacted under Order 37 CPC calls for summary proceedings and hence is a stringent law against the defendant. The harsher a law against the defendant or an accused, the more stringent should be the provisions of law construed against the plaintiff or the prosecution. In the present circumstances, the learned District Judge should either not have considered the petition to be time-barred or even if so, he should have condoned the delay (which it is not) u/S. 5 of the Limitation Act, which is clearly applicable under Order 37, Rule 3 (3) CPC. Even if, was consider 16.2.1999, as the date of notice because, the defendant appeared in Court on that date yet a limitation would not be counted because the service is in violation of Order 37, Rule 2 r/w appendix B to the CPC. Still the defendant was supposed to file petition for leave to defend on or before 26.2.1999 but the Court itself on 22.2.1999 fixed the date for petition for leave to defend as 1.3.1999. The Court should also have kept the limitation in consideration and should have fixed the date on or before 26.2.1999. The defendant is damaged by the act of Court as well, and the Courts, in the circumstances should also apprise .the defendants of the period of limitation because mostly the people are ignorant and not accompanied by a counsel, as it happened in the present case. 4. Coming to the merits of the petition for leave to defend, the defendant had taken certain most important pleas therein. The first among them was, that the promissory note was fictitious and without consideration as the actual dispute between the parties was related to the mortgage of a Bungalow by the defendant in favour of the plaintiff. The copies annexed with the petition indicate that the plaintiff had also instituted a suit regarding the mortgage of the said Bungalow! Alongwith the petition in question, the defendant had filed the affidavit of one Muhammad Aftab, a marginal witness to the receipt who gave a story altogether contrary to the execution of pronote. These were the affidavits which, in the circumstances of the case, required the recording of a thorough and detailed evidence and hence the defendant must have been allowed the leave to defend.

3. Accordingly, in the instant suit based on promissory note and filed under Order 37 of the CPC, the appeal is accepted, the impugned judgment and decree dated 1.3.1999 is set aside, the petition for leave to defend in accepted and the defendant is directed to file written statement before the trial Court/District Judge. Parties to appear before the learned District Judge on 30.6.2001.

(A.A) Case remanded.

PLJ 2002 Peshawar 19 (DB)

Present: TALAAT QAYYUM QURESHI,.

FAYYAZ RASOOL-Appellant

versus

GOVERNMENT OF N.W.F.P.-Respondent

W.P. No. 458 of 2001, decided on 27.4.2001.

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

~-O.IX . 13-Constitution of Pakistan (1973) Art. 199-Ex-parte decree-­ Setting aside of-Application for setting aside ex-parte decree was filed 2 months after passing of ex-parte decree and ex-parte decree was set aside- Limitation for setting aside ex-parte decree-Defendants had initially appeared in Court in response to summons issued and contested suit by filing written statement and thereafter, absented culminating into passing of ex-partedecree against them, therefore, period of limitation available to them for filing application for setting aside ex-parte decree was three years under Art. 181 of the Limitation Act, 1908 and not thirty days under Art. 164 of Limitation Act-Application submitted by defendant after 2\ months of passing of ex-parte decree was, thus, well within time and the same was rightly accepted and exparte decree set aside. [Pp. 20 & 21] A, B

PLD 1986 Peshawar 81; PLD 1981 SC 21 ref.

Mr. Muhammad Arif Khan, Advocate for Appellant. Date of hearing: 27.4.2001.

judgment

Talaat Qayyum Qureshi, J.--Fayyaz Rasool petitioner instituted suit for declaration and permanent injunction against Respondents Nos. 2 to 4. The suit was resisted by Respondents Nos. 2 to 4 by filing written statement. The respondents/defendants failed to appear on 13.1.2001 on which date ex-paneorder was passed and the case was posted for recording ex-parte evidence of the plaintiff. After recording ex-parte evidence, an ex-parte decree was passed on 15.3.2000. The respondents filed an application for setting aside the ex-partedecree on 27.5.2000, which was allowed vide order dated 14.12.2000 and ex-parte decree passed on 15.3.2000 was set aside. Being aggrieved of the said order, the petitioner filed revision in the Court of learned District Judge but the same was dismissed vide order dated 10.4.2001. The petitioner has through writ petition in hand assailed the judgments and decrees passed by the Courts below. We have heard Mr. Muhammad Arif Khan, the learned counsel representing the petitioner and perused the record annexed with the writ petition. Admittedly the suit filed by the petitioner/plaintiff was contested by respondents by filing written statement. However, on subsequent dates the respondents/defendants absented themselves and ex-parte order was passed on 13.1.2001. After recording ex parte evidence of the petitioner/plaintiff, the suit was ex parte decreed on 15.3.2000. The respondents/defendants filed application for setting aside the ex parte decree on 27.5.2001 i.e. after %\ months which was allowed vide order dated 14.12.2000 and the ex-parte passed on 15.3.2000 was set aside. The contention of the learned counsel for the petitioner that the application for setting aside the ex parte decree was barred by time under Article 164 of the Limitation Act as the same was filed after 2^ months without any condonation of delay application has no force at all. Since the respondents has appeared in Court in response to the summons issued and contested the suit and thereafter absented on 13.1.2001, therefore, the period of limitation available to them for filing application for setting aside ex parte decree was three years under Article 181 of the Limitation Act and not 30 days. A similar question came up for hearing before the August Supreme Court of Pakistan in Messrs Rehman Weaving Factory (Regd.), Bahawalnagar Vs Punjab Small Industries Corporation Lahore. (PLD 1981 SC 21), wherein it was held that:-

"The next question arises as to what would be the period of limitation for an application for setting aside an ex parte decree, not covered by Article, 164. That application may or may not be under Section 151. It could still be under the second part of Rule 13 of Order K, though in some cases Section 151 might also apply. When defendant makes as application under Order IX, Rule 13 in connection with an ex parte decree, which is not passed under, Rule 6 of Order IX (on the first hearing), it would not be governed by Article 164. But that would not necessarily mean that there is no period of limitation for such an application. It is not essential here to examine the effect of "null and void order" on the question of limitation is simple that where the defendant makes an application for setting aside an ex parte decree, which is not covered by Article 164, it would be governed by Article 164, it would be governed by residuary Article 181 and the period of limitation would be three years form the accrual of the right to apply. Undoubtedly this period of limitation would be more than necessary in some of these applications, but so would be the case in several other applications covered by Article 181. It is for the legislature to do the exercise of rationalisation, in the light of experience gain during three quarters of a country." Following the dictum laid down in the above cited case law, this Court in Water and Power Development Authority vs. Muhammad Hayat Khan and 7 Others (PLD 1986 Peshawar 81,) observed that: "We understand that PLD 1981 S.C. 21 is the latest authority in time laying down a law in unequivocal terms and language, which is binding on all other Courts in the country as provided under Article 189 of the Constitution and as such we will respectfully follow it, we according hold that in cases of applications for setting aside of the ex-parte to decrees other than those passed under Order K, Rule 6 (1) (a), C.P.C. the law of limitation shall be Article 181 and not Article 164. In the present case the ex-parte decree was passed under Order XVII, Rule 2 read with Order K, C.P.C. on 6.1.1980 at the time when the plaintiff had since closed their evidence in the case and it was necessarily not a stage of first hearing. Application for setting aside of the ex parte decree was filed on 18.12.1982 within a period of 3 years from the date of the ex parte decree and the application shall be, therefore, accepted within time." 5. Following the above mentioned dictum laid down by the August Supreme Court of Pakistan we observe that the application submitted by the respondents for setting aside ex parte decree on 27.5.2000 was within time and the Courts below have rightly set aside the ex parte decree. The law even otherwise envisages determination of disputes on merits rather on technicalities. We, therefore, do not see any substance in the writ petition in hand and dismiss the same in limine alongwith C.M. No 522/2001.

(A.P.) , Petition dismissed.

PLJ 2002 Peshawar 22 [Dera Ismail Khan Bench]

Present: tariq parvez khan, J.

ALI MAHMOOD KHAN»Petitioner

Versus

KALU (deceased) through LEGAL REPRESENTATIVES-Respondents

C.R. No. 135 of 1999, decided on 26.6.2001.

North West Frontier Province Pre-emption Act, 1950 (XIV of 1950)--

—-S. 12-North West Frontier Province Pre-emption Act (X of 1987), S. 35-Limitation Act (IX of 1908), Art. 120-Ex-partedecree on pre-emption suit obtained on 10.7.1986 i.e., before target date of 31.7.1986-Law applicable to such decree would be North West Frontier Province Pre-emption Act, 1987 does not qualify nature of the decree/judgment already in existence-Such decree, however should be a decree granted by a Court of competent jurisdiction, be it a decree on merits or ex-parte or void or invalid-Such decree has to be challenged before a higher forum and the same would be come ineffective only when higher Court so declares it-­Decree in question, being in existence on target date z.e. 31.7.1986, provision of S. 35 of North West Frontier Province Pre-emption Act, 1987 was not be applicable to it-Decree obtained by being consent decree, limitation period under law of limitation would be 6 years under Art. 120 of the Limitation Act, 1908-Even if special law of North West Frontier Province Pre-emption Act, 1950 was made applicable, suit for pre­emption having been filed within one year from consent decree was also within time-Courts below had, thus, rightly applied and decided the case under provisions of repealed Act of 1950-Finding of Courts below being on proper appraisal of evidence, no interference therein was warranted.

[Pp. 26 to 29] A, B, C, D & E

1992 SCMR 2117; PLD 1983 Peshawar 49; 1986 SCMR 491; 1988 CLC 768;

1976 SCMR 90; 1997 CLC 1500; PLD 1995 S.C. 677; and

PLD 1988 SC 287 ref.

Mr. S. Zafar Abbas Zaidi, Advocate for Petitioner.

Mr. MazharAlam Khan Mian Khel, Advocate for Respondents.

Date of hearing: 18.6.2001.

judgment

This single order would dispose of C.R. No. 135/99 against the main judgment and decree dated 30/10/1996 passed by the learned Civil Judge D.I.Khan and that of the learned District Judge D.I.Khan dated 30.9.1999,. and would also dispose of C.R. No. 32/2000 filed as cross-objections under Order 41, Rule 22 CPC read with Order 41, Rule 33 thereof and Section 151 CPC against the latter judgment dated 30/9/1999 praying for modification of the judgment and decree seeking reduction of sale consideration from Rs. 1,23,400/- to Rs. 10,000/-. 2. Facts leading to these revisions are grounded on suit filed by Kalu Khan,, plaintiff/respondent (hereinafter referred to as respondent) against Ali Mehmood Khan, defendant/petitioner (hereinafter referred to as petitioner), for pre-emption of the suit land, the details whereof are given in heading of the plaint. The respondent has averred in his plaint that the petit ioner who has purchased the suit land for Rs. 10,000/- has shown exhorbitant amount of Rs. 1,23,400/- as the sale price and because the respondent is a co-sharer also having land in contiguity and is sharer in immunities with the vendor, therefore, had superior right of pre-emption over the property. It was further averred in the plaint that petitioner prior to sale/purchase should have given notice to the respondent as was required under the law. Cause of action was reckoned to 14/3/1984 when respondents/vendee obtained consent decree in his favour about the sale. Process was issued to the petitioner who was defendant in the suit and ultimately publication made but due to non-attendance of the defendant/petitioner, suit was ex parte decreed in favour of Kalu Khan, respondent/plaintiff, on 10/7/1986. It is pertinent to note here that the suit was filed on 9/3/1985 when the old Pre-emption Act 1950 was in force and so is with regard to the date of ex parte judgment and decree.

1. Ali Mehmood petitioner through Mehmood Ahmed Khan on 2/1/1989 field an application in the Court of Civil Judge-I. D.I.Khan under Section 12(2) CPC for setting aside the ex parte decree dated 10/7/1986 alleging fraud. It was asserted in the application that Ali Mehmood is minor and that in the suit filed by Kalu Khan pre-empting the suit property, he has intentionally omitted to inform the Court that defendant/applicant was m inor and because such decree is void, therefore, liable to be set aside. It was further stated that as the applicant was residing at Karachi, he learned about the existence of decree only through his relatives and hence the application. Such application was contested by the decree-holder but vide order dated 2/6/1990 of learned Civil Judge-I, application under Section 12(2) CPC was allowed and ex parte decree dated 10/7/1986 was set aside on cost of Rs. 500/. It is undisputed that such order has obtained finality and the main suit proceeded afresh where written statement was filed by petitioner/defendant who took the stand that the suit property was purchased by him through agreement to sell dated 9/1/1984 for Rs. l,23,400/-.Full payment was made then and there and the possession taken simultaneously but because of Ordinance-V of 1979, there was ban on attestation of mutations, therefore, the property could not be mutated in the revenue record and a consent decree was obtained on 14/3/1984. It was also stated in the written statement that the suit is liable to dismissal as the case has been filed after the period of limitation.

2. As many as eleven issues were framed by the learned trial Judge and after evidence of the parties was closed on 31/10/1986, suit of the plaintiff/respondent was decreed as prayed for. Such judgment and decree was unsuccessfully challenged in the Court of learned District Judge D.I. Khan who in Appeal No. 58/98 videconsolidated judgment dismissed the appeals, one filed by the present petitioner against the main judgment and decree and the other filed by Kalu Khan pre-emptor seeking indulgence of the appellate Judge for re-fixation of the sale price of the suit land. 5. Learned counsel for the petitioner contends that the ex parte decree dated 10/7/1986 was rightly set aside later on and because it was a decree against a minor, it was not executable nor could be effective, therefore, the provisions of Section 35(2) of the N.W.F.P. Pre-emption Act 1987 would be inapplicable and the suit was bound to have proceeded within the contemplation of sub-section (3) of Section 35 of Act ibid, whereunder making of Talbs under Section 13 was mandatory, in absence whereof suit was liable to be dismissed. It is argued that such ex parte decree was set aside on the ground of fraud inasmuch that the defendant/petitioner was never served as his wrong address was given and that it was concealed from the trial Court while obtaining ex parte decree that the same is being obtained against a minor and because the revision of present respondent also did not succeed before the learned Additional District Judge, therefore, there was no decree on the file. It was submitted that where a decree against the minor is void ab initioand is not executable nor enforceable, therefore, it would not be covered by Section 35 (2) of the NWFP Pre-emption Act 1987 as it was neither a judgment nor a decree. Learned counsel submits that although the august Supreme Court of Pakistan has repeatedly held that when there is a decree in field before the target date, i.e. 31/7/1986, all subsequent proceedings concerning such decree in a pre-emption case should be under the old law of Pre-emption, i.e. NWFP Pre-emption Act 1950, but because never a case of the instant nature was taken to the August Supreme Court of Pakistan, therefore, though there is no judgment but through the judgment in case of Bahadur Khan etc. Vs. Muhammad Younus etc. (1992 SCMR Page 2117 (c), it was held that there is no difference between a decree passed after contest and the decree passed ex parte, because both are decrees as defined in sub-section (2) of Section 2 CPC and were executable (underlining is done by me for emphasis).

3. Learned counsel for the petitioner vehemently argued that the acceptance of application under Section 12(2) CPC of the petitioner filed through his father where relief was claimed had attained finality as it was never further challenged. Reference is made to PLD 1983 Peshawar Page 49 (Mst. RukhAfza. Vs. Sher Aman Khan and others) where it was held that minor- defendant or minor respondent could not be placed ex-parte even if the

4. proposed guardian had failed to turn up inspite of service. It was further held that a minor could not be considered to be party to the suit unless he was properly represented by a duly qualified guardian. A minor would become a party to a suit only when he is duly represented by a qualified guardian after adopting the procedure under Order 32, Rule 3 CPC. Reliance is also placed on 1986 SCMR Page 491 (Ghulam Hussain and others Vs. Ghaus Baksh and others) where it has been ruled that a suit against minor without appointment of guardian-ad-litem and where ex parte decree was passed was nullity. In case of Muhammad Din Vs. Sarfaraz (1988 CLC 768), it was held that under Order 32, Rule I CPC, every suit by a minor must be instituted in his name but by a person called his next friend and such next friend would continue as such throughout the proceedings arising out of the suit including the proceedings at appellate or revisional stage.

5. The contention of the learned counsel for the petitioner is that in view of the case law and the provisions of Order 32, Rules 1, 2 and 3 which prescribe the mode and manner of defence are mandatory because any decree passed against a minor is not enforceable nor is executable. It was argued that because procedure or Order 32, Rule 3 CPC was not followed before assuming jurisdiction, the trial held by the trial Court w ould be void, ab initio.

6. Contention of the learned counsel for respondent is that suit was filed well within time because the period of limitation would start from the date of consent decree dated 14/3/1984 and because plaint was filed on 11/3/1985, it was within one year and because law applicable to the case to the plaintiff/respondent was NWFP Pre-emption Act 1950, therefore, no exception can be taken. It is also argued that the claim of the petitioner/defendant that he took the possession of the suit land much before the consent decree somewhere in January 1984 but such assertion does not find support from any oral or documentary evidence, because not only that vendor was not produced but also that according to khasra girdawari for the year 1984-1995, on Allah Wasaya is shown in possession as tenant who has also not appeared in the witness box to state that possession stand delivered by him in favour of petitioner. Learned counsel argued that where possession is claimed by the vendee, the burden was on him to prove the delivery of possession. In this behalf they have referred to 1976 S.C.M.R. Page 90. 10. Learned counsel while replying to the arguments of learned counsel for petitioner in respect of existence of ex parte decree in favour of the respondent granted on 10/7/1986 argued that such decree was a decree in existence and it was, therefore, that application under Section 12(2) CPC was felt necessitated. It is submitted that under Section 35 of the N.W.F.P. Pre-emption Act 1987, it has been envisaged that where a decree stand

passed by a Court, further proceedings, if any, arising in such case and appeal shall, notwithstanding the repeal of NWFP Pre-emption Act 1950 be governed and conducted in accordance with the old law. It was argued that as under the old law there was no such requirement of making of Talbs as is now required under Section 13 of the present Pre-emption Act, therefore, plaint was not liable to dismissal. 11. Learned counsel for petitioner had argued that ex-panedecree dated 10/7/1986 was obtained against a minor and such decree was nullity in the eyes of law, therefore, non-existent and would not be protected under Section 35 of the present Pre-emption Act to which the learned counsel for respondent states that the consent decree obtained by the petitioner/ defendant dated 14/3/1984 is totally silent as to status of petitioner who was plaintiff therein and he has cancelled if he was minor because the suit was not filed by him through next friend or guardian, but under his own name. Not only that the plaint was signed by him and also the power of attorney, but when application under Section 12(2) CPC was being filed, it was for the first time when the petitioner came out with the plea that at the time of grant of ex parte decree against him, he was a minor because such application is filed on his behalf by his father. Learned counsel has also referred to CLC 1997 Page-1500 (Mst. Sardari Begum Vs. Atta-ur-Rahman)and states that no party could take advantage of its own fraud. 12. On point of limitation, learned counsel for respondent has referred to PLD 1985 Supreme Court Page 677, where it was held that the starting point of limitation would be the date on which the possession of land was taken and not the date of attestation of mutation but when there was no sufficient evidence led regarding acquisition of possession, the time was reckoned from the date of attestation of mutation.

1. After hearing the detailed arguments of learned counsel for the parties in the first instance and after having re-heard on point of certain clarification, needless to go further into the details of facts because both the parties have primarily relied not on merits of the case on the factual side, but they have argued and contra argued the two legal points, namely, if in the instant case NWFP Pre-emption Act 1950 or the latter, i.e. NWFP Pre­ emption Act 1987 shall be applicable and the point of limitation. The contention of the petitioner's counsel is that ex parte decree dated 10/7/1986 was against a minor obtained through fraud, therefore, it was not a decree in the eyes of law. It was nullity and void decree and, therefore, the same was set aside on the application of the petitioner under Section 12(2) CPC.

Section 2(2) CPC defines the decree which means "the formal expression of an adjudication which so for as regards the Court expressing it, conclusively determined the right of the parties with regard to all or any of .the matter in controversy in the suit and may be either preliminary or final." "IThis definition does not exclude an ex pane decree nor does it makes

reference that the decree against minor or a decree which is ab initio void would not be decree. In PLD 1988 Supreme Court Page 287 (Sardar All & others Vs. Muhammad Ali & others), it was held inter-alia that where the rights of the parties have been judicially determined with reference to the terms of a law inforced at the time of adjudication, the finality of such a judgment will not be affected merely because the law on the basis of which that decision was reckoned has subsequently been altered unless a provision is expressly made in the changed or modified law destroying the finality of the aforesaid judgment. The target date as laid by the august Supreme Court of Pakistan being 31/7/1986 and in this case exparte decree was obtained on 10/7/1986, therefore, the law applicable to the case of respondent/plaintiff has been rightly held to be NWPF Pre-emption Act of 1950. In support of my conclusion, I may add that Section 35 of the NWFP Pre-emption Act 1987 does not qualify nature of the decree/ judgment already in existence. It only says if there is a decree. Such decree should be, however, a decree granted by Court of competent jurisdiction be it a decree on merits or ex parte or any other decree but which falls within the definition as given in Section 2 (2) CPC. Be it a void or invalid decree, its validity or voidness cannot be challenged in the air but is bound to be challenged before a higher Court and it becomes void after the higher Court so declare it, but before such declaration such decree remains. A case like the instant one, it could not have been left to the trial Court while seized of the pre-emption case to determine if the decree is in-existence, whether obtained against a minor or through fraud was in existence but in cases such finding could only be given by the Court which has granted such decree if approached under Section 12(2) CPC, or by a higher Court either in appellate jurisdiction or original jurisdiction. The judgment of august Supreme Court of Pakistan in Sardar Ali's case Supra clearly protects all decrees which were passed before the target date, i.e. 31/7/1986, and so appears to be the object of Section 35 of the N.W.F.P. Pre-emption Act 1987. The Legislature is always deem to possess all widom and knowledge and when any bill is passed and enacted, it is presumed that all previous enactments on the subject were in the sight of the Legislature and were considered. The object of Section 35 of the NWFP Pre-emption Act 1987 obviously is to remove doubts and ambiguities as regards pending proceedings and proceedings that have attained finality. This section has been inserted to protect the rights of the parties already acquired. The provision as contained in Section 35 are basically embodied and have been borrowed from Section 6 of the General Clauses Act of 1887 and Section 4 of General Clauses Act 1956, whereunder where an existing act is repealed by an enactment, then unless a different intention appears, the repeal shall not affect any legal right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.

1. In case of Bahadur Khan Vs. Muhammad Yousuf and another (1982 S.C.M.R. Page 2117) and with reference to Section 2(2) CPC, the word "decree" stand interpreted and it was held that decree either ex parte or passed after contest are both decrees as both were executable. The word "executable" was in the context of their legal force, i.e., even an ex parte decree if not set aside by the same Court or Court of appeal or revision is equally executable against the judgment-debtor as would be a decree obtained after contest. A. decree against a minor if obtained without adopting procedure as laid down in Order 32 CPC though would be nullity and void decree but this nullity or being void is to be taken up when such decree is put to execution and would become nullity and void when so declared. For the purposes of Section 35 of the NWFP Pre-emption Act 1987, it will be sufficient if there is a decree passed by Court of competent jurisdiction irrespective of the fact such decree was void or otherwise.

2. To state that ex parte decree dated 10/7/1986 was void or nullity in the eyes of law become so only on 2/6/1990 when the same was set aside on the application of petitioner pursuant to his application under Section 12(2) CPC. It means that there was a decree in existence and it remained sountil it was set aside on any ground whatsoever. 19. Coming to the question of limitation, the stand of the petitioner is that no-socjner the sale was completed they took the possession and mutation could not be attested because of ban on attestation of mutations by the Provincial Government in respect of lands falling under the C.R.B.C. Scheme. The petitioner/defendant if had taken the plea of acquiring physical possession, it was his d uty to discharge such burden but he failed to produce even a single witness other than himself to substantiate his claim. Reference has been made by the lower forum that sale-deed which is relied by the petitioner does not even carry his signature. As submitted by the counsel for respondent, in the khasra girdawari of the year 1984-85, one Allah Wasaya is recorded as tenant with possession would mean that possession was never taken by the vendee. In this case decree obtained by the vendee was a consent decree dated 14/3/1984, therefore, the limitation period under the general law of limitation would have been under Article 120 of the Limitation Act, i.e six years but even when one applies special law of NWFP Pre-emption Act 1950, the period of limitation was one year and because consent decree was obtained on 14/3/1984 while suit was instituted on 11/3/1985, that was before the expiry of one year, hence well in time. In view of my finding given above, it is held that there was a decree passed though ex parte in favour of the respondent against the petitioner before the target date, i.e. 31/7/1986, therefore, law applicable to the case of the plaintiff/respondent has rightly been applied by both the forums below. 20. With regard to C.R. No. 32/2000, both the Courts below with reference to the evidence ofpatwari and in absence of Aks-Shajira Kishtwar of the suit property have held that the pre-emptor is contiguous owner to KhasraNo. 840, but he is not so as for as the two remaining Khasra numbers are concerned. As for prayer in the petition regarding refutation of sale price is concerned, the same has been properly dealt with and determined by the trial Court and the appellate Court, nor it was seriously pressed before this Court. As such finding is recorded on proper appraisal of evidence, both oral and documentary and does not require any interference, therefore, both these revision petitions are dismissed.

(A.A) Revision dismissed.

PLJ 2002 Peshawar 29

Present: talaat qayyum qureshi, J.

ITBAR SHAH etc.-Petitioners

versus

AHMAD SHAH etc.-Respondents

C.R: No. 708 of 1994, decided on 2.2.2001.

West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

—S. 53-Civil Procedure Code (V of 1908), S. US-Plaintiffs claim to be owner in possession as "Ghair Dakhel Kar Naqdi Basharah Malkhan" was decreed by Courts below-Validity-Defendants pleas were contradictory in as much as, he claimed to have purchased rights of "Ghair Dakhelkar" from predecessors of plaintiff vide un-registered sale-deed on the one hand while on the other hand, he claimed land in question as heir of original owner—Defendant was not proved to be the legal heir of deceased owner and entries in his favour were proved to be fraudulent and bogus-­ Appellate Court on re-appraisal of evidence had rightly concurred with finding of trial Court decreeing plaintiffs suit—Defendant's stance for protection of his possession in terms of S. 41 of Transfer of Property Act 1882 was repelled as he was not proved to have purchased properly in question, from ostensible owner and the conditions of S. 41, Transfer of Property Act 1882, were not satisfied—No interference in concurrent findings of fact were warranted in as much as; no misreading/non- reading of evidence or any jurisdictional defect was pointed out in judgments of Courts below. [Pp. 31 & 32] A, B & C

1999 SCMR 2874 ref.

Haji Muhammad Zahir Shah, Advocate for Petitioners. Mr. Abdul Samad Khan, Advocate for Respondents. Date of hearing: 2.2.2001.

judgment

Ahmad Shah and 2 others filed Suit No. 106 on 9.5.85 in the Court of learned Senior Civil Judge, Kohat seeking declaration to the effect that they are owners in possession as 'Ghair Dakhalkar Naqdi Basharah Malikan' of the property described in the heading of the plaint situated at village Hangu and that in-heritance of Zaman Shah the predecessor-in-interest of plaintiffs in the name of Defendant No. 1 entered in the File No., 18 Mall dated 17.4.65 in respect of suit property is wrong illegal, fraudulent and collusive, therefore, the same is liable to be cancelled and that the names of Respondents/Defendants Nos. 1 to 8 have been wrongly recorded instead of names of petitioners/plaintiffs and the same requires correction. Perpetual injunction restraining Respondents/Defendants Nos. 1 to 8 to interfere into the suit property was also sought. In the alternative, prayer for possession of the suit property was also made in the plaint. The said suit was contested by the petitioners/defendants. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed the suit in favour of Respondents Nos. 1 to 3 plaintiffs vide judgment and decree dated 28.1.90. The petitioners being aggrieved of the said judgment and decree, filed appeal in the Court of learned Addl. District Judge Kohat at Hangu, whereas Marghun Shah also filed appeal against Ahmad Shah and others before the said Court. The learned Addl. District Judge, Kohat at Hangu videjudgment and decree dated 18.7.94 dismissed both the appeals. The petitioners have now assailed the judgments and decrees of the Courts below through revision petition in hand.

1. Haji M. Zahir Shah, Advocate the learned counsel representing the petitioner argued that the Courts below have failed to appreciate the evidence in its true perspective The respondents/plaintiffs have miserably failed to prove that they were in possession of the suit property as tenant-at- well as heirs of Zaman Shah. They have produced no reliable evidence in this behalf. The petitioners are bona fide purchasers of the occupancy and non- occupancy rights and their case was not contested by other respondents/ defendants in this behalf. On the other hand Mr. Abdul Samad Khan the learned counsel representing the respondents argued that the learned trial Court after appreciating the evidence passed decree in favour of respondents/plaintiffs and the learned appellate Court concurred with the same. This Court in its revisional jurisdiction, cannot interfere into the findings of facts given by the Courts below.

2. It was also argued that the Respondents Nos. 1 to 3 plaintiffs have proved their case through cogent evidence. Marghun Shah, Respondents No. 4 was not legal heir of Zaman Shah, therefore, he could not inherit any property from him. I have heard the learned counsel for the parties and perused the record.

3. As per Jamabandi for the year 1933-34 Zaman Shah son of Ghulam Shah was recorded in the column of cultivation on payment of 'Naqdi Basharan Malik', the said entries continued till 1957-58. Thereafter on the basis of entries of File No. 18 Zaman Shah was replaced by Marghun Shah son of Hanif Khan (Respondent No. 4). The Jamabandi for the year 1965-66 shows that Marghun Shah was recorded in possession as 'Ghair Dakhalkar'on payment of 'Naqdi Basharah Malikan' vide File No. 18 Mall dated 4.3.65 through inheritance of late Zaman Shah. The evidence further shows that Marghun Shah had submitted an application to the Deputy Commissioner Kohat through Tehsildar Hangu that Zaman Shah was his uncle who died issueless and he was the only successor-in-interest and therefore, the property left by him be mutated in his name. He also claimed to have purchased the rights of 'Ghair Dakhalkari'in the suit property from predecessor of Respondents Nos. 1 to 3/plaintiffs vide un-registered sale- deed Ex. P.W.3/D-1 to Ex. P.W.3/D-7 in the year 1946. The alleged sale- deed were not proved by him by producing the marginal witnesses. The stand taken by Marghun Shah was self contradictory. On the one hand he claimed to have purchased the rights of 'Ghair Dakhalkari' in the suit property from predecessor of Respondents Nos. 1 to 3/ plaintiffs vide un-registered sale-deeds Ex. P.W. 3/D-l to Ex. P.W. 3/D-7 in the year 1946 and on the other hand he submitted an application to the Deputy Commissioner in File No. 18 Mall dated 4.3.65 showing himself to be the only legal heir of Zaman Shah on the basis of which his name was recorded as ''Ghair Dakhalkar Basharan Malikan'. Keeping in view the fact that Respondents Nos 1 to 3/plaintiffs are the L.Rs. of Zaman Shah and that Marghun Shah was not legal heir of deceased Zaman Shah and the contradictory stands of Marghun Shah, Respondent No. 4, the learned trial Court rightly declared that entries in File No. 18 dated 17.4.65 and sale-deed Ex. P.W. 3/D-l to Ex. P.W.3/D-7 are fraudulent and bogus, and decreed that suit in their favour. The learned appellate Court on re-appraisal of evidence also rightly concurred with the learned trial Court. 9. The appellants who were Defendants Nos. 5 and 6 in the original suit claimed to have purchased a portion of property from Marghun Shah and seeks protection u/S. 41 of the Transfer of Property, Act, 1882, which is reproduced hereunder:- "41. Transfer by ostensible owner.--Where, with the consent, express of implied, of the person interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it; provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted, in good faith". Section 41 of the Transfer of Property Act can be invoked if the transferee can establish-

(i) the transferor is the ostensible owner;

(ii) he is so by the consent-express or implied of the real owner;

(iii) the transfer is for consideration; and

(iv) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

1. If any of the said conditions is not satisfied the transferee would not ineligible to seek protection under the above Section of law. In the case in hand, Marghun Shah was neither the legal heir of Zaman Shah nor he . succeeded in proving that he had purchased the disputed property from him \ through un-registered sale-deed Ex. P.W. 3/D-l to Ex. P.W. 3/D-7. Marghun Shah, therefore, was not ostensible owner of the property and could not transfer the same to the petitioner. Wisdom in this respect has been drawn from Industrial Development Bank of Pakistan through Deputy Chief Manager Vs. Saadi Asmatullah and others (1999 SCMR 2874). 11. It is also established principle of law that a person cannot transfer a better title/right than he has in the property. Marghun Shah had no right arid title in the property in dispute, therefore, he could not transfer any portion of the property to the petitioners.

2. I have not been able to find out any mis-reading/non-reading of evidence or any jurisdictional error or defect in the concurrent findings of facts recorded by the Courts below warranting interference by this Court. Resultantly the revision petition in hand in dismissed alongwith C.R. No. 757/94, with no orders as to costs.

(A.A) Petition dismissed.

PLJ 2002 Peshawar 33 (DB)

Present: shaker ullah jan and talaat qayyum qureshi

UTMAN GHEE INDUSTRIES etc.--AppelIants

versus COMMISSIONER OF INCOME TAX-Respondent

T.R. No. 33 of 1997, decided on 26.7.2001.

(i) Income Tax Ordinance, 1979 (XXXI of 1979)--

—S. 8-Circulars and Notifications issued by Central Board of Revenue—All officers and persons who have been employed in the execution of Income Tax Ordinance are bound to follow orders and instructions issued from time to time by Central Board of Revenue in the shape of circulars and Notifications. [P. 47] B

(ii) Income Tax Ordinance, 1979 (XXXI of 1979)--

—S. 12(18)-Circulars No. 3, 11 and 12 of 1992 and Circular No. 1 of 1993 issued by Central Board of Revenue whether rightly declared as ultra vires of S. 12(18) of Income Tax Ordinance 1979 by Income Tax Appellate Tribunal-Circulars Nos. 3,11 and 12 of 1992 and 1 of 1993, could not be declared as ultra vires of S. 12(18) of Income Tax Ordinance, 1979 for the reasons; that through circulars in question, genuine transactions of assessees which were verifiable and identifiable were given protection; that circulars were benevolent and beneficial to assessees; that the same were issued to turn down rigours of law and to ensure fair enforcement of provisions of S. 12(18) of Income Tax Ordinance 1979; that certain relaxations were given to assessees in order to promote justice; that there being hardships and difficulties in implementation of such provision, same were kept in abeyance vide Notification of specified date; that circulars in question, had been validly issued in exercise of powers under Section 165 of Income Tax Ordinance, 1969 and were binding on all officers and persons employed in execution of the ordinance under S. 8 thereof that through such circulars, neither interpretation of any section of law was made by Central Board of Revenue nor the same could be made in view of judgment of Supreme Court reported as 1993 SCMR 1232; and that circulars in question, were neither against the spirit of S. 12(18) of Income Tax Ordinance, 1979 nor Central Board of Revenue had deviated from the provisions of the ordinance by issuing the circulars.

[P. 48 & 49] C

(iii) Income Tax Ordinance, 1979 (XXXI of 1979)--

—Ss. 136 & 12(18)-Amount received through crossed cheques, cash or any other Banking Channel whether liable to tax under S. 12(18) of Income Tax Ordinance, 1979-Any amount received through crossed cheques, cash or any other Banking Channel was not liable to tax under S. 12(18) of Income Tax Ordinance, 1979. [P. 49] D

(iv) Income Tax Ordinance, 1979 (XXXI of 1979)--

—Ss. 12(18) & 136-Circulars Nos. 3, 11 & 12 of 1992 and Circular No. 1 of 1993 declared to be ultra vires of S. 12(18) of Income Tax Ordinance, 1979 by Income Tax Appellate Tribunal-Validity-Circulars Nos. 3, 11 and 12 of 1992 and Circular No. 1 of 1993 are not ultra vires of S. 12(18) of Income Tax Ordinance, 1979. [P. 49] E

(v) Income Tax Ordinance, 1979 (XXXI of 1979)--

—Ss. 136 & 12(18)~Impugned Order of Income Tax Appellate Tribunal declaring Circulars Nos. 3, 11 and 12 of 1992 and Circular No. 1 of 1993 as ultra vires of S. 12(18) of Income Tax Ordinance, 1979 were set aside while that of Commissioner Income Tax (Appeals) were restored- References as well as appeals, were sent to Income Tax Appellate Tribunal in terms of S. 136(5) of the Ordinance with direction to pass necessary orders as required Under the law. [Pp. 49 & 50] F

(vi) Interpretation of Statutes--

—Where a circular was of benevolent nature, the same would go to the assistance of assessee. [P. 43] A

PLD 1996 SC 324; PLD 1964 SC 657; AIR 1979 SC 1049; (1979) 4 SCC 565;

(1965) 56ITR 198; (1971) 82ITR 913; (1981) 127ITR 1; (1965) 56ITR

198; (1971) 821 ITR 913; 154 ITR 786; 119 ITR 334; 115 ITR 334; 113 ITR

405; 102 ITR 408; 56 ITR 198; 237 ITR 889; 1999 PTD 3752; 1992 SCMR

250;96 PTD 100; 65 Tax 102 (S.C.) and 56 ITR 198 ref.

Mr. Abdur RaufRohaila, Advocate for'Appellant.

Mr. Bid Muhammad Khattak, Advocate for Respondent.

Date of hearing: 28.6.2001.

judgment

Talaat Qayyum Qureshi,J.--Through this consolidated judgment/order we shall dispose of Tax Reference Nos. 33/1997, 24/1997 and F.A.Os. Nos. 26/1997, 27/1997 and 192/1999.

1. In Tax Reference No. 33/1997 (Utman Ghee Industries vs. Commissioner of Income Tax), M/s Utman Ghee Mills which is situated at Industrial Estate Gadoon Amazai, Swabi filed Income Tax Return for the assessment years 1993-1994 declaring Nil income. The assessee held that an amount of Rs. 29,66,248/- had been obtained as loan from its sister concern namely M/S Swabi Flour Mills through Banking channel/Cheque but this explanation of the assessee was not accepted and the said amount was considered as "deemed income" of the assessee u/S. 12 (18) of the Income Tax Ordinance, 1979. The assessee filed appeal before the Commissioner of

Income Tax Appeals, which was allowed but the Department being not satisfied with the order of the Commissioner of Appeals, approached Income Tax Appellate Tribunal, which was pleased to set aside the order of the Commissioner Income Tax Appeals and resultantly the decision/order of the Deputy Commissioner of Income Tax was upheld. The assessee filed Reference Application No. 40 (PB) of 1996-1997 but the same was rejected vide order dated 31.3.1997, hence the present Tax Reference.

1. In Tax Reference No. 24/1997 (M/S Salim Cigarettes Private Limited vs. Commissioner of Income Tax), M/S Salim Cigarettes Factory a private limited company which derives income from manufactures and sale of Cigarettes declared income of Rs. 393,055/- for the assessment year 1992- 1993, which was not accepted by the learned Income Tax assessing Officer and a sum of Rs. 12,679,787/-, including addition of Rs. 2,100,000/- was assessed u/S 12 (18) of the Income Tax Ordinance, 1979. The clarification given by the assessee that the amount was deposited by the Directors for the allotment of shares and such amount was realised/paid through Banking channels and encashment of foreign exchange bearers certificates regulated by State Bank of Pakistan was turned down by the assessing Officer. The appellant filed appeal before the Commissioner of Income Tax Appeals and the additions made u/S. 12 (18) were deleted. The Department being aggrieved of the order of the Commissioner of Income Tax Appeals, approached the Tribunal, the appeal filed by the Department was accepted vide order dated 21.5.1996. The order passed by the Commissioner Income Tax Appeals was set aside and the order passed by the Deputy Commissioner Income Tax was upheld. The assessee filed Reference Application No. 13 (PB) of 1996-1997 but the same was rejected vide order dated 18.1.1997. Hence the present Tax Reference.

2. In F.A.O. No. 26/1997 (M/S Muhsin Match Factory vs. Commissioner of Income Tax) the appellant filed Income Tax Return for the assessment year 1993-1994 declaring net Income of Rs. 58,972/-, but the assessing Officer did not accept the declared version of the appellant and assessed the income at Rs. 5,377,050/- which included addition of Rs. 3,701,925/-u/S 12 (18) of the Income Tax Ordinance, 1979. The plea taken by the assessing Officer was that the appellant had received loan from one of the Directors namely Muhsin Aziz not through cross cheque and the peak credit entiy appearing in the ledger was treated as "deemed income" of the appellant. Being aggrieved of the assessment order, the appellant filed appeal before the Commissioner Income Tax, which was accepted and it was held that the loan shown and declared by the assessee was not fictitious, hence the addition was deleted. The Department filed second appeal before the Income Tax Appellate Tribunal Peshawar, which was accepted. Not only the order passed by Commissioner Income Tax Appeals was set aside but the order of the learned assessing Officer was restored and Circulars Nos. 3, 11 and 12 of 1992 issued by C.B.R. were also declared ultra vires of Section 12 (18) of the Income Tax Ordinance. Being aggrieved of the order passed by the learned Income Tax Appellate Tribunal dated 10.4.1997, the appellant has filed appeal u/S. 136 of the Income Tax Ordinance, 1979.

3. In F.A.O. No. 27/1997 (Muhsin Match Factory vs. Commissioner of Income Tax) the appellant filed Income Tax Return for the assessment year 1992-1993 declaring net income of Rs. 407,707/. The assessing Officer did not accept the declared version of the appellant and assessed the income at Rs. 2,195,902/- which included addition of Rs. 7,00,000/- u/S. 12 (18) of the Income Tax Ordinance, 1979 with the plea that the appellant had received loan from one of the Directors namely Muhsin Aziz not through cross cheque ignoring the reliability and verifiability of the loan. The peak credit entry appearing in the ledger of the Company was treated its "deemed income." The appellant filed appeal before the Commissioner of Income Tax Peshawar, which was accepted. The Department being aggrieved of the order passed by the Commissioner appeals filed second appeal before the Income Tax Appellate Tribunal, which was accepted vide order dated 10.4.1997. Not only the order passed by Income Tax Commissioner Appeals was set aside but the order passed by the assessing Officer was restored and Circulars Nos. 3,11 and 12 of 1992 issued by C.B.R. were also declared ultra vires of Section 12 (18) of Income Tax Ordinance. The appellant being aggrieved of the said order passed by the Income Tax Appellate Tribunal dated 10.4.1997 has preferred appeal in hand u/S. 136 of the Income Tax Ordinance.

4. In. F.A.O. No. 192/1999 (M/s. Toyota Motors Private Limited vs. Deputy Commissioner Income Tax), the appellant declared net income of Rs. 56,623/- for the assessment year 1993-1994 supplies were declared at Rs. 33,689,500/-with Commission received Rs. 4,573,529/-. The declared version was rejected by the assessing Officer and net income of Rs. 307,052/- was assessed u/S. 62 of the Income Tax Ordinance, 1979. The inspecting Additional Commissioner of Income Tax issued Notice No. 463 dated 21.9.1995 u/S. 66-A of the Income Tax Ordinance for the cancellation of the assessment made by the assessing Officer as in his view the assessment made u/S. 62 was prejudicial to the revenue and was also erroneous. The appellant contested the said notice but the submissions made by the appellants were not considered satisfactory and the assessment was cancelled u/S. 66-A. The appellant approached the Income Tax Appellate Tribunal but the learned members of the Tribunal had divergent opinion about the genuineness of the loan obtained by the Company from Haji Hanan of Bara, Khyber Agency received through telegraphic transfer. The learned Judicial Member rejected the appeal filed by the assessee being without merits, but the learned Accountant Member held that the learned IAC was not justified to take action under Section 6C-A. Since there was difference of opinion between the learned Members, therefore, after framing the questions, the matter was referred, to third member of the Tribunal, who concurred with the findings recorded by the learned Judicial Member. In view of majority opinion, the appeal was rejected. Hence the present appeal u/S. 136 of the Income Tax Ordinance.

5. Mr. Abdur Rauf Rohaila, the learned counsel representing the petitioners/appellants argued that in all the cases the orders passed by the learned assessing Officer as well as Income Tax Appellate Tribunal were illegal and in excess of jurisdiction. Whereas the orders passed by the Commissioner Income Tax Appeals were based on law, were legal and proper. It was also argued that C.B.R. had rightiy issued Circulars Nos. 3, 11 and 12 of 1992 in view of the powers conferred on it by Section 165 of the Ordinance and all the authorities executing the provisions of the Ordinance are bound to follow the instructions contained in the said Circulars and the Commissioner of the Zone of assessing Officer could not challenge the validity of the Circulars issued by the C.B.R. It was also argued that the assessing Officer could not invoke the provisions of Section 12(18) in respect of genuineness of loan/amount received through reliable/verifiable source.

It was further argued that strict interpretation of the Statute cannot be made in favour of the Revenue Collecting Department but the interpretation by made which is favourable to the assessee. The provisions of Section 12(18) deals with the loan received otherwise through cross cheque and the same was inserted in the year 1987. This was done for checking the bogus cash credit and controlling the non-genuine transactions and to avoid fictitious entries in the Books of Accounts by the assessees. C.B.R. issued Circulars Nos. 3, 11 and 12 of 1992 and Circular No. 1 of 1993 to facilitate the assessees and the same were not meant to interpret the laws but to relax the law for the assessees.

It was also argued that the cases of the petitioners/appellants would fall under Section 12(18)-A of the Ordinance but neither the assessing Officer nor the Income Tax Appellate Tribunal properly appreciated as to which Section of law was applicable in the cases, hence fell in error. On the other hand Mr. Eid Muhammad Khattak, the learned counsel representing the respondents argued that the assessment orders made by the assessing Officer and the order/judgment of the learned Income Tax Appellate Tribunal were in accordance with law and the learned Tribunal had after taking into consideration all the relevant provisions of law, declared Circulars Nos. 3, 11 and 12 of 1992 and Circular No. 1 of 1993 ultra vires of Section 12(18) of the Ordinance.

It was also argued that the provisions of Section 12 (18)-A were not applicable to the cases of the petitioners/appellants, in which the assessment was made prior to 30.6.1992 because the said Sections were made effective from 1.7.1992.

We have heard the learned counsel for the parties at length and perused the record.

The common question of law which needs determination in all the Tax References and Appeals is:-

Whether any amount received through crossed Cheques, Cash or any other Banking channel is liable to Tax under Section 12 (18) of the Income Tax Ordinance, 1979. And

Whether Income Tax Appellate Tribunal has rightly declared Circulars Nos. 3, 11 and 12 of 1992 and Circular No. 1 of 1993 ultra vires of Section 12(18) of the Income Tax Ordinance, 1979.

1. Sub-section (18) was inserted in Section 12 of the Income Tax Ordinance, 1979, hereinafter referred to as the "Ordinance" by Finance Act, 1987. The said sub-section is'reproduced hereunder for convenience;-

"Section 12 (IS).-Where any sum, or the aggregate of sums, claimed, or shown, to have been received as loan by an assessee during any income year commencing on or after the first day of July, 1987, from any person, not being a banking company, or a financial institution notified by the Central Board of Revenue for this purpose, otherwise then by a crossed cheque drawn on a bank, exceeds one hundred thousand rupees, the said sum or the aggregate of sums shall be deemed to be the income of the assessee for the said income year chargeable to tax under this Ordinance."

1. The above quoted sub-section was however, held in abeyance. The Federal Government while exercising powers granted under sub-section (2) of Section 14 of the Ordinance issued Notification No. SRO 838(l)/87 dated October 26,1987, added clause (7) in part IV of the second schedule to the Ordinance. The said sub-section (18) of Section 12 of the Ordinance was again brought into force with effect from 1.7.1990 by Finance Act, 1990. It is worth mentioning that through Finance Act, 1992 year another sub-section Le. (18-A) was inserted in Section 12 of the Ordinance, which was made effective from 1.7.1992. The newly inserted sub-section is also reproduced hereunder for convenience and further reference:-

"(18-A) (a) Where an assessee has claimed, or shown to have received any private loan or advance which is found not to have been paid on or before the thirtieth day of June, 1994, or within five years of the expiration of the income year in which it was obtained, whichever is the later, the whole amount of the loan or advance or a portion thereof remaining unpaid after the expiration of such date or period, as the case may be, shall be deemed to be income of the assessee in the income year immediately next following or any subsequent year in which such finding is made;

(b) Where the whole amount of loan or advance or a portion thereof has been deemed to be the income of the assessee under clause (a) and it is paid in a subsequent year, the amount so paid shall be deducted in computing the income in respect of that year."

The newly sub-section (18-A) was however, omitted by Finance Act, 1996, which means that sub-section (18-A) of Section 12 on Statute Book from 1.7.1992 to 30.6.1996.

1. Due to insertion of sub-section (18) in Section 12 of the Ordinance, certain difficulties arose for the assessees, therefore, the Central Board of Revenue in order to facilitate the assessees made certain relaxations by issuing Circulars Nos. 3,11 and 12 of 1992 and Circular No. 1 of 1993. The Circulars issued by CBR are also reproduced herein as the same are quite relevant for decision of the References/Appeals in hand.

"Circular No. 3 of 1992 dated January. 1992:

It has been brought to the notice of the Board that genuine loans shown to have been received from identifiable persons through the banking channels are being deemed to be the income of the assessee under sub-section (18) of Section 12 of the Income Tax Ordinance, 1979, merely on the ground that the amount of loans has not been received through crossed bank cheques.

The matter has been considered in the Board. Since the basic purpose of the aforesaid provision of law is to check fictitious loans and to preclude back-dated introduction of creditors in the books of accounts, assessing officers should not invoke the provisions of Section 12 (18) in respect of genuine loans received by way of crossed cheques, pay orders, demand drafts or telegraphic transfers etc., through the banking channels.

In any case, where the nature and source of the amount of money is not satisfactorily explained, addition to the income of the assessee can still be made under Section 13, notwithstanding the claim that any loan was received through crossed bank cheque, pay order, demand draft, telegraphic transfer of any other instrument."

Circular No. 11 of 1992 dated May 4. 1992:

It has been represented that genuine loans shown to have been received from identifiable persons through bearer cheques encashed by the borrowers from the banks on which these are drawn should not be deemed to be the income of the assessee under sub-section (18) of Section 12 of the Income Tax Ordinance, 1979.

1. In view of the fact that encashment of the aforesaid bearer cheques clearly establish the date of the credit and the name of the borrower and genuineness of the loans can be verified, it has been decided that the provisions of Section 12(18) shall not be invoked in

respect of such loans received by way of bearer cheques for the current assessments which are pending for want of clarification on this issue.

1. This issues in continuation of Board's Circular No. 3 of 1992 dated 27th January, 1992.

Circular No. 12 of 1992. dated May 19.1992:

It has been represented that cash deposits in the account books maintained in the name of directions of the company or partners of the firm, which are otherwise genuine and verifiable, should not be treated as deemed income of the assessee under sub-section (1) of Section 12 of the Income Tax Ordinance, 1979. Similarly cash transaction/cash flow between sister companies and firms having common directions and partners should not fall within the ambit of Section 12(18) of the Ordinance because these amounts are for self-utilisation of funds already available in the possession of sister concerns.

1. The matter has been considered in the Board and it has been decided that although such amounts attract the provisions of Section 12 (18) yet in view of the general lack of awareness of this provision on the part of the tax-payers, the provisions of Section 12(18) shall not be invoked for the Assessment year 1991-1992 in respect of cash deposits and transactions referred to in Paragraph 1 above.

2. It is also clarified that where any sum of loan is deemed to be the income of an assessee under Section 12(18), it is only the peak credit of the lender which is to be taken as deemed income of the assessee and not the aggregate of all sums of loans received during the relevant income year.

3. This issues in continuation of Board's Circular No. 11 of 1992, dated the 4th May, 1992.

Circular No. 1 of 1993 dated January 11. 1993:

Circulars Nos. 11 and 12 of 1992 (Income Tax), dated 4th May and 19th May, 1992 exempted from the provisions of Section 12(18) for the Assessment years 1991-1992 the loan through bearer cheques, cash deposits by directors and partners in the books of the company and the firm respectively, and cash transactions between sister companies and firms.

1. It has been pointed out to the Board that persons having calender year as their income year would not be able to benefit from this concession in respect of such loans in their books which were repaid prior to 30 June, 1991 as these would fall in their case in Assessment year 1992-1993.

2. The matter has been considered in the Board. It is clarified that the contents of Circulars 11 and 12 of 1992 shall be applicable in respect of transactions referred to in these Circulars (Nos. 11 and 12) undertaken during the financial year ending oh 30th June, 1991 irrespective of the assessment year of the taxpayer."

3. The intention and purpose to insert sub-section (18) in Section 12 of the Ordinance was to provent evasion of tax. It is a matter of common knowledge that most of the assessees would adopt device that whenever income or any other sum chargeable to tax was received, they used to introduce the same in their books of Accounts as a loan to avoid taxability. A check was kept on fictitious loans and to stop such assessees from making back dated entries of false creditors in their books of Account. However, the assessing Officers were directed not to invoke the provisions of Section 12 (18) of the Ordinance in respect of genuine loans received by way of cross cheques only. Later on through the above quoted Circular No. 3 issued in January 1992, the assessing Officers were directed not to invoke the provisions of Section 12 (18) in cases of genuine loans received by way of crossed cheques, pay orders, demand drafts or telegraphic transfers through the Banking channels. Thereafter through Circular No. 11 issued on 4.5.1992 and Circular No. 12 dated 19.5.1992, which were in continuation of Circular No. 3 mentioned above, further relaxations were given and it was directed that loans received by way of bearer cheques, cash transaction/cash flow between the sister companies and firms having common directors and partners should not fall within the ambit of Section 12(18) of the Ordinance. Likewise a clarification was made through Circular No. 1 of 1993 dated 11.1.1993 whereby it was clarified that the contents of Circulars Nos. 11 and 12 of 1992 would be applicable in respect of transactions referred to in the said Circulars (Nos. 11 and 12) undertaken during the final year ending on 30.6.1991 irrespective of the assessment year of the taxpayer.

4. Now we have to see as to whether the four Circulars mentioned above were ultra vires of Section 12(18) of the Ordinance or through these Circulars certain benefits/relaxations were given to the tax-payer/assesses and if those Circulars were beneficial as to whether they could be struck down by the Income Appellate Tribunal or not.

5. While interpretation a particulars provision of law, the principle is that its construction should be rational. In this connection we reproduce herein Page 199 of the interpretation of Statutes by Maxwell:

"In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in occur with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be true one. "An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available". Where to apply words literally

would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must 'do some violence to the words" and so achieve that obvious intention and produce a rational construction. The question of inconvenience or unreasonableness must be looked at in the light of the state of affairs as the date of the passing of the statute, not in the light of subsequent events."

1. We are also alive of the fact that based on the rule of beneficial construction the same author of above mentioned Book on Page 228 has laid down:-

"1. MODIFICATION OF THE LANGUAGE TO MEET THE INTENTION. "Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modify the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify and that the modification made are mere corrections of careless language and really give the true meaning."

Regarding interpretation, the August Supreme Court of Pakistan through a very illuminating judgment in Al Jehad Trust through Raeesul Mujahideen Habib-ul-Wanabb-ul-Khairi vs. Federation of Pakistan and others (PLD 1996 S.C. 324) has given guidelines in the shape of following observations:-

"In this connection it is pertinent to observe that it is well-settled principle of interpretation that the Court is empowered to harmonise conflicting provisions of the Constitution and the Statutes and if it is not possible to reconcile the inconsistent provisions, to declare which of the provision will be preferred and given effect. The Court in exercise of its inherent judicial power can even read "words" in the Constitution or Statute in order to give effect to that manifest intention of the legislature. In Muhammad Ismail vs. The State PLD 1969 SC 24 this principle was duly recognised by this Court and it was observed that in order to give effect to that true intention of the Law-Makers it is permissible for the Courts to read words in the Statute. It is true that generally a Court of law is not authorised to alter the language of the Statute for the purpose of supplying a meaning, yet in certain circumstances it is permissible for the Courts to give effect to the true and patent intention of the law-maker by supplying "commissions" in order to avoid manifest injustice. It is a misconception, therefore, to consider that the reading of the words in the Constitution or Statute to give effect to the free intention of the law-maker amounts to re-writing or amending the Constitution

or the Statutes. On the other hand, its purpose is to give effect to its true intent."

1. In addition to the above mentioned principles of interpretation, it is also by now established principle of law that if a circular is of benevolent nature; the same would go to the assistance of assessee. If an authority in support of this proposition is required, reliance can be safely placed on a Judgment of the August Supreme Court of Pakistan in the Commissioner of Income Tax, East Pakistan Dacca, vs. Noor Hussain (PLD 1964 S.C. 657) it was held.

"The learned counsel for the Income-Tax Commissioner has brought to our notice the following circular which was issued by the Central Board of Revenue, Karachi on 26th April 1957:

"Section 26-A. Registration of firms:

The amendment made in sub-section (1) clarifies that the instrument of partnership shall be in writing. Sub-section (4) has also been amended and brought in line with subsection (3) which envisages a written partnership deed which should have been in existence in the relevant previous year. On a strict interpretation of the law, a firm can be registered only from the date on which the partnership deed has been executed. Since this would create hardship, the Board is disposed to agree to the benefit of Registration begin allowed for the full previous year in which the instrument of partnership is executed, provided of course the other conditions laid down for the registration of the firms under Section 26-A are fulfilled. It should be noted that under Rule 2 of the Income-tax Rules, in the case of a new firm an application for registration, which is to be accompanied by the instrument of partnership in original or a certificate copy thereof, has to be filled before the end of the previous year or, where the firm is not registered under the Partnership Act, 1932 or the deed of partnership is not registered under the Registration Act, 1908, within six months of the constitution of the firm, which even is earlier. Thus, retrospective effect can be given to a deed for more than six months."

I would merely observe that the course pursued by the Board seems to be correct."

Supreme Court of India in KP. Varghese vs. Income Tax Officer, Ernakulam, and another, which was a famous case, while dealing with similar situation held:-

"It is a well-settled principle of interpretation that Courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it."

and this statement of the rule was quoted with approval by this Court in Deshbandhu Gupta and Co v, Delhi Stock Exchange Association Ltd. (1979) 4 SCC 565; AIR 1979 SC 1049. It is clear from these two circulars that the CBDT, which is the highest authority entrusted with the execution of the provisions of the Act, understood sub-S. (2) as limited to cases where the consideration for the transfer has been understated by the assessee and this must be regarded as a strong circumstances supporting the construction which we are placing on that sub-section.

But the construction which is commending itself to us does not rest merely on the principle of contemporanea ex positio. The two circulars of the CBDT to which we have just referred are legally binding on the revenue and this binding character attaches to the two circulars even if they be found not in accordance with the Correct interpretation of sub-S. (2) and they depart or deviate from such construction. It is now well settled as a result of two decisions of this Court, one in Navnit Lai c. v. K.K. Sen, AAC (1965) 56 ITR 198 and the other in Ellerman Lines Ltd. v. CIT (1971) 82 ITR 913 that circulars issued by the CBDT under Section 119 of the Act are binding on all officers and persons employed from the provision of the Act."

1. Gujrat High Court (India) in Laxmichand Hirjibhai vs. CIT Gujrat-III (128 ITR), in which it was held.

"The position regarding the effect of the circular of the CBDT has been considered by several decisions of the Supreme Court and of this High Court and in Shri Rajan Ramkrishna v. CWT (1981) 127 ITR 1 (Guj), the decisions of the Supreme Court in Navnial Lai C. Zaveri v. K.K. Sen, AAC (1965) 56 ITR 198 at Page 203 and in Ellerman lines Ltd v. CIT (1971 82 ITR 913, alongwith decisions of other High Courts were considered and it was pointed out that according to the Supreme Court's decision in Ellerman Lines case (1971) 82 ITR 913, even if there was deviation from the provisions of law in force and the circulars deviated from the legal position, the circulars were required to be followed by ITOs since the circulars were benevolent circulars which would go to the assistance of the assessee."

Similarly in Gurjargravures Pvt. Ltd. vs. Income Tax Officer, Company Circle-VIII, Ahmedabad, and another. (154 ITR 786) it was held:-

"Benevolent circulars issued by the Central Board of Direct Taxes, even if they deviate from the legal position, are required to be followed by the ITO since the circulars would go to the assistance of the assessee."

1. Likewise in Rajan Ramkrsinna v. Commissioner of Wealth Tax, Gujrat-I (127 ITR 1) it was held:-

"Now, coming to the question as to the effect of instructions issued under Section 5 (8) of the Act, this Court observed in Navnil Lai C. Zaueri v. K.K. Sen, Appellate Assistant Commissioner (1965) 56 ITR 198; 203.

'It is clear that a circular of the kind which was issued by the Board would be binding on all officers and persons employed in the execution of the Act under Section 5 (8) of the Act. This circular pointed out to all the officers that it was likely that some of the companies might have advanced loans to their shareholders as a result of genuine transactions of loans, and the India was not to affect such transactions and not to bring them within the mischief of the new provision.'

The directions given in that circular clearly deviated from the provisions of the Act, yet this Court held that the circular was binding on the Income-tax Officer."

These two decisions of the Supreme Court in Navnil Lai c. Zaveri's case (1965) 56 ITR 198 and in Ellerman Lines Ltd.'s case (1971) 82 ITR 913 were considered by this Curt in Bechardas Spg. and Wvg Mill Co Ltd. vs. CIT (Income tax Reference No. 153 of 1976, decided on llth March 1977) by the Division Bench consisting of J.B. Mehta, Acting C. J. and D.A. Dasai J. There it was observed.

"We need not reiterate that the position of such benevolent circulars issued under Section 119 of the Act for meeting such cases of extreme hardship stands well settled after the decision of their Lordships in Mavnil Lai C. Zauri vs. K.K. Sen (1965) 56 ITR 198 (SC), at Page 203, and in Ellerman Lines Ltd. vs. CIT (1971) 82 ITR 913 (SC), at page 923. There their Lordships pointed out that the directions in such benevolent circulars, even though they may be deviating from the provisions of the Act, would be binding on the Income-Tax Officers."

This position is well accepted there are several decisions of the different High Courts in India, namely, the decision of the Bombay High Court in Tata Iron and Steel Co. Ltd. vs. N.C. Upadhaya (1974) 96 ITR 1 and in Navnitlal Ambalal v. CIT (1976) 105 ITR 735, the decision of a Full Bench of the Kerala High Court in M.M. Annaiah vs. CIT (1970) 76 ITR 582 (Mys), and in Dr. T.P. Kapadia v. CIT (1973) 87 ITR 511 (Mys). Thus, the legal position is that benevolent circulars are binding on all ITOs and WTOs, as the case may be, and on all the persons employed in the execution of the W.T. Act."

1. Same view was taken in Dattatraya Gopal Shette v. Commissioner of Income-Tax, Poona Range, Poona Kania

"It is now well-settled that even if the contents of a circular may amount to a deviation on a point of law, a circular of the Central Board of Revenue which confers some benefit on the assessee is binding on all officers concerned with the execution of the I.T. Act; and they must carry out their duties in the light of the circular. In the present case, therefore, it was, in the first place, the duty of the ITO to have drawn the attention of the assessee-firm to the defect in the application for renewal of registration. The ITO, however, granted registration to the firm. In such a situation it was equally the duty of the CIT to have given an opportunity to the assessee-firm to remedy the defect in their application. The CIT, in view of this circular, clearly should not have cancelled the renewal of registration of the assessee-firm without giving an opportunity to the assessee-firm to remedy the defect in the application."

1. In addition to the above quoted case-law reliance can also be placed upon~

(i) Commissioner of Income Tax, Kerala-I vs. B.M. Edward, India Sea Foods, Cochin.(119 ITR 334), (ii) Rajarqjeswari Weaving Mills vs. Income-Tax. Officer, "A" Ward, Cannanore, and another. (113 ITR 405), (iii) Commissioner of Income Tax, Assam, Nagaland, Meghalaya, Manipur and Tripura. (102 ITR 408), (iv) Navnitlal vs. K.K. Sen (56 ITR 198), (v) Ellerman Lines Ltd. vs. CIT (82 ITR 913), (vi) 150 ITR 460, (vii) UCO Bank vs. Commissioner of Income-Tax (237 ITR 889), (1999 PTD 3752).

1. We feel it appropriate here to mention that Circulars are issued by Central Board of Revenue exercising the powers u/S. 165 of the Ordinance and the instructions contained in the Circulars and Notifications are u/S 8 of the Ordinance binding upon the Officers and persons employed in execution of Income Tax Ordinance. Section 8 of the Ordinance is reproduced hereunder for convenience:-

"All Officers to follow the orders of the Central Board of Revenue. All Officers and persons, employed in the execution of this Ordinance, shall observe and follow the orders, instructions and directions of the Central Board of Revenue: Provided that no such orders, instructions or directions shall be given so as to interfere with the discretion of the Appellate Additional Commissioner in the Exercise of his appellate functions or any valuer in the exercise of his functions under this Ordinance."

The plain reading of the above-mentioned section of law would show that all the Officers and persons who have been employed in the execution of Income Tax Ordinance are bound to follow the orders and instructions issued from time to time by the C.B.R. in the shape of Circulars and Notifications. If any case-law in support of this contention is required, reliance can be placed on Messrs Julian Hoshang Dinshaw Trust and others vs. Income Tax Officer, Circle XVIII South Zone, Karachi and others (1992 SCMR 250), wberein it was held:-

"After hearing the learned counsel for the parties we are unable to agree with the High Court. It is not disputed that Circular No. 8 issued by the Central Board of Revenue was in force at the relevant time. Under Section 5 (8) of the Income Tax Act, 1922 and Section 8 of the Income Tax Ordinance, 1979, the orders, instructions and directions of the Central Board of Revenue are binding, on all the Officers entrusted with the execution of the Statute."

1. Similarly in UCO Bank vs. Commissioner of Income Tax (1999 PTD3752)itwashcld:-

"The Central Board of Direct Taxes under Section 119 of the Income Tax Act, 1961, has power, inter alia, to tone down the rigour of the law and ensure a fair enforcement of its provisions, by issuing circulars in exercise of its statutory powers under Section 119 of the Act which are binding on the authorities in the administration of the Act. Under Section 119(2) (a), however, the circulars-as contemplated therein cannot be adverse to the assessee. The power is given for the purpose of just, proper and efficient management of the work of assessment and in public interest. It is a beneficial power given to the Board for proper administration of fiscal law so that undue hardship may not be caused to the assessee and the fiscal laws may be correctly applied. Hard cases which can be properly categorised as belonging to a class, can thus, be given the benefit of relaxation of law by issuing circulars binding on the taxing authorities."

1. In support of the above proposition reliance can also be placed on the following Judgments:-

(i) 96 PTD 100, (ii) 65 Tax-102 S.C. and

(iii) 56ITR198.

1. The detailed scrutiny and discussion of the above mentioned case-law lead us to the irresistible conclusion that Circulars Nos 3, 11 and 12 of 1992 and 1 of 1993 issued by the C.B.R. on 27.1.1992, 4.5.1992, 19.5.1992 11.1.1993 in exercise of powers conferred u/S. 165 of the Ordinance and were meant to tone down the regours of law and ensure a fair enforcement of its provisions. The Federal Government after inserting sub-section (18) in

Section 12 of the Ordinance in the year 1987 realised that certain difficulties were created for the assessees and that was the reason that the said provisions of Section 12 (18) of the Ordinance were held in abeyance till 30.6.1990 through Notification No. SRO 838 (D/87 dated 26.10.1987. Then in the year 1992 need was felt to insert sub-section (18A) in Section 12 whereby in private loan or advance which was found not to have been paid on or before 30th day of June, 1994 or within five years of the expiration of the income year in which the said amount was obtained, whichever was later, the whole amount of the loan or advance or a portion thereof remaining up-paid after the expiration of such date or paid, as the case would be, was deemed to be income of assessee in the income year immediately next following or any subsequent, year in which such finding was made. On the one hand sub-section (18A) was made effective from 1.7.1992, on the other hand the Circulars Nos. 3, 11 and 12 of 1992 and 1 of 1993 were issued.

1. The said Circulars could not be declared as ultra vires of Section .2 (18) of the Ordinance for the following reasons--

Firstly, through these Circulars, the genuine transactions of the assessees which were verifiable and identifiable were given protection.

Secondly, these Circulars were benevolent and beneficial to the assessees. The basic and first principle construing a beneficial legislation is to interpret its provision to advance purpose rather than thwart or subvert it by specious sophistry. (1992 SCMR 2166).

Thirdly, the above mentioned Circulars were issued to tone down the rigours of the'law and to ensure a fair enforcement of the provisions of Section 12 (18) of the Ordinance. The said Circulars were issued for purpose of just, proper and efficient management of the work of assessment in the public interest and for proper administration of fiscal law so that no undue hardship could be caused to the assessee and the fiscal laws be correctly applied.(1999 PTD 3752).

Fourthly, certain relaxations were given to the assessees in order to promote justice and it is also a recognised principle of law that a Court has to take into consideration the object for which a particular Circular was made and the mischief intended to suppress and if two possible construction of a provision of such an instrument are possible, one which favours the class of persons for whose benefit the Circular has been made would be preferred. (1998 SCMR 440).

Fifthly, the legislation itself had felt that insertion of sub­section (18) in Section 12 of the Ordinance had created hardship and difficulties, therefore, the said provisions were held in abeyance vide

Notification SRO No. 838 (D/87 dated 26.10.1987 till 30.6.1990. Moreover, the pith and substance of the fourth Circulars was later on incorporated in law in the shape of sub-section (18A) which remained on statute book till 1996. The loans or advance taken by any means if not paid within five years were made taxable after the expiry of five years, such means that the Federal Government had itself accepted the validity of the four Circulars issued by the C.B.R.

Sixthly, the said Circulars had been validly issued in exercise of powers u/S 165 of the Ordinance and were binding on all the Officers and persons employed in execution of the Ordinance u/S 8 ibid. (1992 SCMR 250).

Seventhly, through the above mentioned Circulars, neither interpretation of any Section of law was made by C.B.R. nor the same could be made in view of the Judgment of the August Supreme Court of Pakistan in Messrs Central Insurance Co. and others vs. The Central Board of Revenue, Islamabad and others (1993 SCMR 1232).

Eightly, the above quoted four Circulars were neither against the spirit of Section 12 (18) of the Ordinance not the C.B.R. had deviated from the provisions of the Ordinance by issuing the said Circulars.

1. The learned Income Tax Appellate Tribunal while terming the said Circulars ultra vires of Section 12 (18) of the Ordinance did not consider the above mentioned reasons and also failed to appreciate the law applicable in the matter, therefore, for the reasons mentioned above, we answer the questions in Tax References Nos. 24 and 33 of 1997 in the following terms:- (i) The question whether any amount received through crossed Cheques, Cash or any other Banking channel is liable to tax under Section 12 (18) of the Income Tax Ordinance, 1979 is D answered in negative i.e. any amount received through crossed Cheques, Cash or any other Banking channel is not liable to Tax under Section 12 (18) of the Ordinance.

(ii) So far as second question i.e. whether Income Tax Appellate Tribunal has rightly declared Circulars Nos. 3, 11 and 12 of 1992 and Circular No. 1 of 1993 ultra vires of Section 12 (18) of „ the Income Tax Ordinance, 1979 in concerned, we answer the same in negative. Circulars Nos. 3, 11 and 12 of 1992 and Circular No. 1 of 1993 are not ultra vires of Section 12 (18) of the Ordinance.

1. So far as the F.A.Os Nos. 26 and 27 of 1997 and 192 of 1999 are concerned, the impugned judgments/orders passed by the learned Income Tax Appellate Tribunal are set aside and that of Commissioner Income Tax (Appeals) are restored. The Reference as well as appeals are sent to h, Income Tax Appellate Tribunal in terms of Section 136 (5) of the Ordinance with the direction to pass necessary orders as required under the above mentioned Section of law. The Registrar of this Court is directed to send certified copy of this Judgment under the seal of the Court and under his signatures to the Appellate Tribunal enabling it to do the needful. There shall be no orders as to costs.

(A.A.) Order Accordingly.

PLJ 2002 Peshawar 50

Present: ijaz-ul-hassan, J.

QAZI MUHAMMAD IFTIKHAR-Petitioner

versus

SUFI NOOR ELAHI-Respondent

C.R. No. 91/95, decided on 5.10.2001.

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

—S. 42~Civil Procedure Code (V of 1908), S. 115-Plaintiffs claim to right of way over the land of defendant-Concurrent findings of Courts below negatived petitioner's claim--Validity-Plaintiff s claim to right of way over the land of defendant was declined by Courts below on valid grounds due to lack of evidence on file-Material on record indicated that plaintiff had alternative access to his land and he can use the same at any time-­High Court in its revisional jurisdiction cannot undertake its own appraisal of evidence on the face of concurrent finding of two Courts below in absence of any jurisdictional error or material irreuglarity-There being no jurisdictional error or material irregularity in finding of Courts below, no interference was warranted in revisional jurisdiction.

[Pp. 53 & 54] A & B

PLD 1993 Peshawar 36; PLD 1994 SC 291; 1991 SCMR 119; PLD 1975 Peshawar 82; PLD 1995 Peshawar 135 and 1989 CLC 2006 ref.

Mr. Muhammad Younis Khan Tanoli, Advocate for Petitioner. Mr. Khalid Rehman Qureshi, Advocate for Respondent. Date of hearing: 24.9.2001.

judgment

This revision petition is directed against the judgment and decree of Addl: District Judge, Haripur dated 19.3.1995 whereby Civil Appeal No. 24/13 of 1994 filed by Qazi Muhammad Iftikhar petitioner was dismissed and the judgment and decree and senior Civil Judge, Haripur dated 28.3.1994 announced in Civil Suit No. 241/1 of 1990, dismissing the suit of the petitioner was up-held and maintained. The litigation between the parties started in the year 1990 when Qazi Muhammad Iftikhar plaintiff-petitioner filed suit against Sufi Noor Elahi defendant-respondent seeking a declaration to the effect that plaintiff is the owner of KhasraNo. 1023 measuring 5 Kanals 18 Marias situated in village Haripur with a garden thereon and which is irrigated by 'Kathi (water-channel) passing through Khasra No. 1045; that the plaintiff has been using the said Kathi from Manak-rai Road upto his garden as a path also peacefully, without any interruption and as of right since the times of his fore-fathers that there is no other path for reaching the garden of the plaintiff except the path through the said Khasra No. 1045; that during the absence of the plaintiff from his village the defendant constructed a bungalow in his land and also illegally encroached upon a portion of Kliasra No. 1045 and included the same within the area of his bungalow by erecting boundary walls on both ends of the said portion; that the defendant, thus, has not only made the said portion of Khasra No. 1045 inaccessible to the plaintiff but has also completely blocked the passage of the plaintiff for reaching to his land and garden in Khasra No. 1023; that the defendant had no right to change the nature of said Khasra No. 1045 on the spot in any manner whatsoever or to interfere and create any hindrance in the said rights of the plaintiff and that the construction raised by the defdt. on the said Khasra No. 1045 were liable to be demolished and the status of the same as before was liable to be restored. By way of consequential relief the plaintiff also claimed mandatory injunction against the defendant directing him to demolish the constructions raised by him on Khasra No. 1045 and to restore the status of the said Khasraas it was before. By way of alternative relief, the plaintiff claimed joint possession of Khasra No. 1045 by demolishing the constructions raised by the defendant and by restoring the same status of the said Khasra as it was before. The defendant resisted the suit of the plaintiff and denied his claim regarding use of path. In view of the pleadings of the parties following issues were framed for trial:--

1. Does the plaintiff has a cause of action.

2. Is the plaintiff estopped?

3. Does the plaintiff has prescriptive rights upon the impugned Khasra to use it as a path way?

4. Do the constructions of the defdt hamper the plaintiff from enjoying his prescriptive rights?

5. Is the defdt. entitled to special costs?

6. Relief.

7. Upon consideration of the evidence produced by the parties, they learned trial Judge took Issues Nos. 3 and 4 together and found the same against the plaintiff holding that there is no mention of any path in the

revenue record in Khasra No. 1045.... and plaintiff has failed to prove his uninterrupted use over the disputed property as his path, by producing any

independent witness. The remaining issues were also decided against the plaintiff and consequently his suit was dismissed on 28.3.1994. An appeal was also preferred which was also dismissed on 19.3.1995, as mentioned above.

1. Mr. Muhammad Younus Khan Tanoli Advocate appearing on behalf of the petitioner strenuously contended that the findings of the Courts below suffer from misreading and non-reading of material evidence on record and also from misappreciation of facts and law involved in the case. He also contended that the findings and the conclusion given on Issues Nos. 1, 2, 3, and 4 in dismissing the suit and the appeal are erroneous and cannot be allowed to remain intact for the reasons that the Courts below has wrongly held that the defendant being the owner (Mahazi Malik) of the land adjacent to KhasraNo. 1045 had the right to make construction on that portion of Khasra No. 1045 which was contiguous to him. He added that the ownership of the land adjacent to any portion of Khasra No. 1045 could not confer any right on the defendant to make construction on any portion of Khasra No. 1045 or to raised any other blockade or absticle thereon which may have the effect of making any portion of Khasra No. 1045 inaccessible to others for whose common use and benefits the said Khasra No. 1045 was set apart an Kathi and path for irrigating and approaching their lands since time immemorial. Additionally it was urged that mere fact that there was no entiy of parth in Khasra No. 1045 in the revenue record could not deprive the plaintiff of his right of passage which was actually enjoyed by him peacefully, without interruption and as of right since time immemorial. In the last leg of arguments the learned counsel contended that the Courts below had no justifiable reasons to discard the evidence of PW 4 and PW. 5 which clearly proves that the plaintiff has been using Khasra No. 1045 as path also for reaching his land for more than 50 years. In support of the submission reliance was placed on 'Anata Kumar Majumdar and others applts vs Gopal Chandara Majumdal and others respondents PLD 1961 Dacca 55, 'M/s Eastern Carpets (Pak) Ltd. petitioner vs. Province of the Punjab and another respondents 1994 MLD 558 Lahore and 'Saffatullah and others applts vs Munshi Ainuddin and others respondents PLD 1964 Dacca 52.

2. As against this Mr. Khalid Rehman Qureshi Advocate for the defendant-respondent supported the impugned judgment and decree and maintained that the unanimous verdict given by the Courts below it based on correct assessment and evaluation of evidence and provides no good ground for interference of this Court in the exercise of its revisional jurisdiction. He relied on 'Haji Khan Baz Khan and 8 others petitioners plaintiff vs Abdur Rahim and 5 others respondent-defdts. PLD 1993 Peshawar 36, 'Haji Muhammad Din appellant vs. Malik Muhammad Abdullah respondent PLD 1994 SC 291, 'M/s. Pakistan Warranted Warehouse Ltd. appellate, vs M /s. Sind Industrial Trading Estate Ltd: and another respondents 1991 SCMK 119; 'Qazi Muhammad Ishaq plaintiff-

appellate vs Abdul Waheed defdt-respondent. PLD 1975 Peshawar 82, 'Tea Muhammad petitioner vs Mst. Zaitoonay and.another respondents. PLD 1995 Peshawar 135, and 'Zardad Khan petitioner vs. Mst. Safta Begum respondent 1989 CLC 2006, Peshawar.

1. I have heard at length the arguments and submissions of learned counsel for the parties. I have also gone through the material on record with their able assistance.

2. There appears to be no controversy between the parties that plaintiff-petitioner is the owner of Khasra No. 1023 measures 5 Kanals 18 Marias in village Haripur with an orchard thereon which is irrigated by a water channel passing through Khasra No. 1045 owned by defendant- respondent. The only grievance of the plaintiff-petitioner is that passage through Khasra No. 1045 has remained under the use of plaintiff petitioner and his forefathers since time immemorial without any objection or interruption from the defendant-respondents said but the same has been recently blocked by the latter which has deprived the former of his right of way. According to the learned counsel for the plaintiff-petitioner the passage passing through KhasraNo. 1045 is the only source of access to the orchard of his client and that closure of the passage has materially prejudiced the rights of the plaintiff-petitioner. The submission of the learned counsel is not substainable. A perusal of the revenue record would unmistakably indicate that no passage or path has been shown in Khasra No. 1045 and thus the plaintiff-petitioner's claims cannot be accepted. It is true that the report commission leans in favour of the plaintiff-petitioner but it is equally true that the same has been kept aside for valid reason by the Courts below and it has been rightly pointed out that the report cannot be given preference over the revenue record on file. It has been vigorously contended by learned counsel for the plaintiff-petitioner that findings of the Courts below on issues decided against the plaintiff-petitioner are the result of misreading and non- reading of evidence and wrong conclusions have been drawn but the learned counsel has not been able to point out any misreading or non-reading of evidence resulting in miscarriage of justice. The mere assertion of the learned counsel that the decision of the Courts below is not in accord with materials on record without a positive attempt on his part to substantiate the same is of no consequence. So far as the right of easement is concerned I find that the same has been declined to the plaintiff-petitioner for valid reasons due to lack of evidence on file. There is material on file to demonstrate that the plaintiff-petitioner has an alternate access to his orchard and he can use the same at his liesure.

3. It is not denied that the High Court in its revisional jurisdiction under Section 115 of Civil Procedure Code is not competent in undertaking its own appraisal of evidence in the face of the concurrent finding of the two Courts below, in the absence of any jurisdictional error or material irregularity Revisional powers under Section 119 CPC are primarily intended for correcting errors made by the subordinate Courts in the exercise of their jurisdiction. Also ordinarily erroneous decisions of fact are not revisiable except in cases where the decision is based on no evidence or inadmissible was relied upon or the order sought to be revised is so perverse that injustice would spelt therefrom. It is true that the High Court in exercise of its revisional jurisdiction could legally set at naught the concurrent finding of fact of two Courts below if it was satisfied that the findings are based on misreading or nonreading of evidence. It, therefore, follows that concurrent finding of facts do not always stand in the way of the High Court to displace them in the appropriate cases. In the instant case the position is altogether different and no case of misreading or nonreading of evidence has been made out warranting interference of this Court. Both the Courts below have dealt at length which the matter and discussed all the issues in a proper manner in the light of the material on file.

4. In the result and for the foregoing reasons finding no substance in this revision petition I dismiss the same with no order as to costs.

(A.P.) Revision dismissed

PLJ 2002 Peshawar 54

[Circular Bench Abbottabad]

Present: IJAZ-UL-HASSAN, J.

AWAL KHAN and 3 others-Petitioners

versus

MALIK AMAN and 23 others-Respondents

C.R. No. 53/95, decided on 14.5.2001.

Specific Relief Act, 1877 (1 of 1877)--

—S. 42--Civil Procedure Code, (V of 1908), S. 115-Plaintiffs claim of ownership and permanent injunction pertaining to land in question was rejected by Appellate Court-Validity-Record indicated that defendants were occupancy tenants till 1947 but after promulgation of S. 5 of Tenancy Act, 1950, they were conferred proprietary rights on deposit of specified amount—Plaintiffs having failed to object to commission report at the relevant time before trial Court could not object to the same before High Court during argument in revision-Objections to finding of Appellate Court on issues of limitation, adverse possession and alleged omission of Appellate Court to give finding on all issues were repelled, in as much as, all material on such issues had been discussed and reasons advanced-Plaintiffs could not point out any misread! ng> non-reading or misconstruction of evidence on record-No interference was, thus, warranted in judgment and decree of appellate Court dismissing plaintiff s suit. [Pp. 57 & 58] A, B & C

1993 SCMR 92; PLD 1993 Lah. 566; 1989 CLC 2206; 1992 CLC 382; PLD 1960 Lahore 181 ref.

Mr. Saleh Bin Ahmad Sultan, Advocate for Petitioners. Mr. Qazi Ghulam Rauf, Advocate for Respondents. Date of hearing: 13.4.2001.

judgment

The litigation between the parties started in 1985, when Awal Khan son of Muhammad Irfan, his mother and sisters, residents of mauza Bisian Tehsil Balakot District Mansehra, plaintiffs-petitioners instituted suit against Malik Aman son of Kalu and 23 others, of the same residence, defendants-respondents for a declaration to the effect that suit Khasra Nos. 679 and 680 measuring 3 Kanals 11 Marias in mauza Bisian are part and parcel of KhasraNos. 1153/423 measuring 9 Kanals 19 Marias, per settlement of 1904-1905 and the plaintiffs are owners in possession of the same whereas area otKhasraNos. 677 and 678 determined in settlement of 1946-1947 being less due to 'paimana kat' is inoperative on the rights of the plaintiffs-petitioners and is liable to cancellation and rectification. In the alternative, ownership of suit land is also claimed by adverse possession. A prayer for grant of permanent injunction and possession has also been made.

1. The suit was contested and pleas of the parties were reduced to following issues:--

Whether the plaintiffs have got a cause of action?

Whether the suit is time-barred?

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

Whether the suit is incompetent in its present form?

Who are in adverse possession of the suit land, i.e., the plaintiffs or defendants?

Whether the plaintiffs are entitled to the declaration as prayed for?

Whether the plaintiffs are entitled to the decree as prayed for?

Relief.

1. In the first round the suit of the plaintiffs was dismissed by the trial Court, i.e. Civil Judge, Balakot on 4.11.1991. The plaintiffs preferred an appeal against this judgment and decree and the Addl. District Judge, Mansehra accepted the appeal on 13.10.1992, set aside the order of civil Judge Balakot and remanded the case back to the trial Court for decision afresh after bringing the revenue record of settlement 1904-1905 and 1946-1947 on file.

2. After the remand parties produced their evidence and civil Judge Balakot passed a decree in favour of plaintiffs against defendants vide judgment and decree dated 17.1.1994 which was up-set in appeal through judgment and decree dated 31.1.1995 passed by Addl: District Judge, Mansehra. The judgment and decree of the trial Judge was set aside and the suit of the plaintiffs was dismissed.

3. The petitioners feeling aggrieved have filed instant revision petition calling in question the validity of judgment and decree dated 31.1.1995 announced by Addl. District Judge, Mansehra whereby the appeal filed by Malik Aman etc (since dead and represented by his legal heirs) was accepted and judgment and decree of the trial Court was set aside.

4. Mr; Saleh Bin Ahmad Sultan Advocate for the petitioners questioned the correctness of the aforesaid judgment and decree dated 31.1.1995 and contended inter-alia, that the first appellate Court has not properly exercised its jurisdiction at the time of deciding of appeal and has failed to take into account the material brought on record by the petitioners in support of their contentions which has materially prejudiced the rights of the petitioners. To argument the submission the learned counsel contended that at the time of settlement of 1946-1947 when the area was recorded from the suit land and was adjusted in other land, the plaintiffs' predecessor was owner of both these lands and subsequently the defendants who were occupancy tenants at the time of settlement of 1946-1947 became owners by virtue of Section 4 of NWFP Tenancy Act, 1950. Owing to these facts, he added, the petitioners came to known of this fact when the respondents after becoming owners got demarcated their land in the year 1983. The learned counsel also challenged the finding given on the issue of limitation and tried to argue that the suit having been filed within time, a finding contrary to it has been erroenously given, which cannot to allowed to remain intact. He relied on 1993 SCMR 92 PLD 1993 Lahore 566.

5. Adverting to the report commission (Ex. CW1/1) the learned counsel reiterated that the report having been prepared contrary to the directions of the trial Court, should not have been made basis of the impugned judgment and decree 'and by doing so the First Appellate Court has proceeded on wrong premises.

6. Qazi Ghulam Rauf Advocate for the respondents when questioned as to how could he support the impugned judgment and decree, relied on 1989 CLC 2206 Peshawar, 1992 CLC 382 Peshawar and PLD 1960 (W.P. Lahore) 181, and contended that the findings on issues given against the petitioners are supported by actual evidence on record and no case for misreading or non-reading of evidence has been made out the attract limited revisional jurisdiction of this Court under Section 115 C.P.C. He also added that the report commission Ex. OW1/1 having not been objected to at the relevant time, it does not lie in the mouth of the petitioners to bring the same under challenge and assert that the First Appellate Court was not justified to take the same into account and made it the basis for its judgment

7. After hearing the arguments of learned counsel for the parties in the light of the material on file, I find that learned counsel for the petitioners has not be«jn able to point out any misreading or non-reading of evidence warranting interference of this Court. It stands established from the material on record that Nawab Khan, predecessor of the petitioners was owner of suit land and predecessor of the respondents was in possession of the same as occupancy tenant on behalf of Nawab Khan In Khasra Nos. 677 and 678 Nawab Khan was owner to the extent of 1 \ share but inadvertently he was recorded owner to the extent of 1% share in revenue papers and to their effect a Mutation No. 363 was attested on 21.12.1900 about the correction of the share of Nawab Khan. Uptill 1947 defendants were the occupancy tenants of the suit land, but after the promulgation of Section 5 of the NWFP Act, 1950 defendants deposited the required rent and their status was converted to that of owners of the suit land. It is also evident from the record that in the year 1983 a suit was filed by the plaintiffs against .the defendants for grant of a decree for issuance of perpetual injunction in respect of suit Khasra Nos. 677 and 678 whereby the area of these khasra numbers was mentioned as 6 Kanals 10 Marias. The suit was ultimately dismissed vide order Ex. D.W. 1/4. A criminal complaint was also filed in this respect but with no success. Learned counsel for the petitioners has vehemently contended that the whole trouble has started due to collusion and conspiracy of the revenue officials which has led the parties to a protracted litigation but the learned counsel has not been able to substantiate his stand. So far as the report commission Ex. C.W.1/1 is concerned I find that the petitioners having failed to objected to it at the relevant time cannot be permitted to assail the same at this juncture and contend that the report should not have been taken into account and made basis of the impugned judgment. Adverting to the documentary evidence on record, it stands proved that respondents had become owners of suit land by virtue of Section 4 of NWFP Tenancy Act, 1950 after fulfilling all the legal requirements. The respondents are occupancy tenants with continuous possession since their forefathers and no mistake appears to have been committed in the settlement of 1904-1905 and 1946-1947. It has been contended with justification by learned counsel for the respondents that maps and surveys made for revenue purposes are official documents prepared by competent persons, and with such publicity and notice to persons intended has to be admissible and valuable evidence of the state of things at the time they are made. They are not conclusive, and may be shown to be wrong, but in the absence of evidence to the contrary, they may be properly judicially received in evidence as correct when made. A survey map though not direct evidence of title, but a survey map is direct evidence of possession at a particular time, namely, the time at which the survey map was made.

8. Regarding other objections raised on behalf of the petitioners concerning limitation, adverse possession and omission on the part of the First Appellate Court to give finding on all the issues, I find that the objections are not tenable and they reasonings returned on the aforesaid issues are not defective in any manner and warrant no interference of this Court. All material issues have been discussed at lengthy and no prejudice seems to have been caused to the petitioners. The case law cited on behalf of the petitioner is distinguishable and does not promote the case of the petitioners. 11, Resultantly finding no force in this revision petition I dismiss the same and leave the parties to bear their own costs.

(A.A.) Revision dismissed.

PLJ 2002 Peshawar 58 (DB)

Present: talaat qayyum qureshi and ijaz-ul-hassan, J.

SHAH ALAM KHAN and another-Petitioners

versus

ELECTION COMMISSION OF PAKISTAN through REGIONAL OFFICE, NWFP, PESHAWAR and 6 others-Respondents

W.P. No. 878 of 2001, decided on 2.10.2001.

B.N.P.S. Local Government (Election) Rules, 2000-

—-Rr. 29(2), 71 & Si-Constitution of Pakistan (1973), Art.. 199-Cancellation of election of specified polling stations by District Returning Officer and notifying re-election in those polling station-Legality-Polling was although stopped for some time in specified polling stations yet after sometime the same was resumed and completed-Un-official result was prepared by Presiding Officer and sent to Returning Officer alongwith report of stoppage of polling for sometime-Un-official result having been prepared, District Returning Officer under R. 29(2) of BNPS Local Government (Election) Rules 2000, could not cancel election of those polling stations—Even Chief Election Commissioner is not empowered to cancel such results—Election Tribunal after conclusion of trial of election petition has the power to make an order declaring election of returned candidate to be void or declaring election as a whole to be void-Concerned authorities whose orders have been challenged have been arrayed as parties, therefore, there was no other necessaiy party which should have been impleaded, thus, plea that contesting parties were not impleaded has no force-Impugned order of District Returning Officer was set aside and re-election ordered by him was declared to be void-Any party feeling aggrieved by result of election if so advised can file election petition before Election Tribunal. [Pp. 62 to 64] A to E

All Jamil Qazi, Advocate for Petitioner.

M/s. Muhammad Yousaf, Mufti Daud Shah, Muhibullah Kakakhel Salahud din and M. Iqbal Khalil, Advocates for Respondent No. 5.

Shamoon Ahmad Bqjwa, Advocate for Respondent No. 6. Date of hearing: 30.8,2001.

judgment

Talaat Qayyum Qureshi, J.--We propose to dispose of this W.P. No. 878/2001 (Shah Alam Khan and another vs. Election Commission of Pakistan etc.) and W.P. No. 1084/2001 (Sqjid Iqbal and another vs. Election Commission of Pakistan etc.) through this single judgment as both are the outcome of the results of polling in one and the same Constituency.

1. Briefly stated the facts are that the petitioner in both the writ petitions contested election for Nazim and Naib Nazini respectively for Local Council Aza Khel Bala, District Nowshera held on 2.7.2001.

2. M/s. Shah Alam Khan, Sajid Iqbal, Khairul Bashar and Gul Raza Khan contested for the post of Nazim, whereas Said- Zaman Shah, Raghib Hussain, Haji Mian Wali and Taj Akbar contested for the post of Naib Nazim. In two Polling Stations disturbance broke out but with the intervention of police and the Military officials the Polling continued till the polling hours fixed by the Returning Officer and the results of all the Polling Stations were un-officially declared after counting of votes. The District Returning Officer Respondent No. 2 in both the writ petitions vide his order dated 3.7.2001 cancelled the election of Polling Stations Nos. 1 and 4. The said order was conveyed through Respondent No. 3 ui.dehis order dated 4.7.2001. The petitioners in W.P. No. 878/2001 being aggrieved of the cancellation order dated 3.7.2001 as well as 4.7,2001 have sought declaration of impugned orders as without lawful authority, while the petitioners in W.P. No. 1084/2001 have prayed for declaration of election of all the Polling Stations of Aza Khel Bala as void and have sought direction for re­ election/re-polling in the said Constituency.

3. Qazi Muhammad Jamil, learned counsel representing the petitioners in W.P. No. 878/2001 argued that polling though was interrupted and stopped for sometime in Polling Stations Nos. 1 and 4 but was not fully stopped by the Presiding Officer and it continued till end of polling time fixed by Returning Officer. The total votes which were 'polled including Polling Stations Nos. 1 and 4 were counted and un-official result was also declared and conveyed to the candidates. Shah Alam Khan petitioner in Writ Petition No. 878/2001 as per un-official result had obtained more votes than the contesting candidates and thus he was to be declared as returned candidate alongwith his companion Said Zaman Shah. No report as required by Rule 29 of the Elections Rules 2000 was communicated by the learned Presiding Officer to the Returning Officer or to the District Returning Officer regarding the disturbance and stoppage of poll at Polling Stations Nos. 1 and 4 in the said Constituency. Cancellation order passed by District Returning Officer, Respondent No. 2 is not based on the report of the Presiding Officer but is based on the reports conveyed to him by the outsiders.

4. It was also argued that Respondents Nos. 2 & 3 were not competent to cancel the election and even for that matter Chief Election Commissioner under the present Election Laws was not competent to cancel the election of any of the wards/polling Stations. It was only the jurisdiction of the Election Tribunal to cancel the election after recording evidence. The impugned orders passed by Respondents Nos. 2 and 3 and the edifice built thereupon are illegal and without any lawful authority.

5. On the other hand, M/s. Mian Muhibullah Kakakhel and Mr. Muhammad Iqbal Khan Khalil, learned counsel representing the Respondent No. 5 in W.P. No. 878/2001 argued that proper report was made by the Presiding Officer to the Returning Officer and even FIR No. 334 was also registered at his instance in Police Station Aza Khel District Noswhera. The orders of Respondents Nos. 2 and 3 were based upon the report made by the Presiding Officer and Respondent No. 2 could under Rule 29(2) cancel the election of a particular ward/Polling Station and order re-election. The impugned orders being in accordance with rules need no interference.

6. It was also argued that Chief Election Commissioner vide Notification dated 7.7.2001 had notified re-election in Polling Stations Nos. 1 and 4 but the said Notification was not challenged by the petitioners and even they participated in the re-election held on 25.7.2001, therefore, they cannot turn around and challenge the subsequent election.

7. It was also argued that all the contesting candidates 29 in number were not impleaded parties, therefore, the writ petition deserved dismissal.

8. Mr. Shamoon Ahmad Bajwa, the learned counsel presenting Respondent No. 6 in W.P. No. 878/2001 and petitioners in W.P. No. 1084/2001 argued that due to hindrance in election and illegalities committed with the connivance of the polling staff, the polling was stopped for sufficient long time. A report was made against Muhammad Yousaf Presiding Officer, who sided with the petitioners in W.P. No. 878/2001. As a result of the said report, Muhammad Yousaf Presiding Officer's services were terminated by the Returning Officer. Due to the illegalities committed by the petitioners in W.P. No. 878/2001 with the connivance of the polling staff, result of election could not be announced and therefore, it would be in the interest of justice if the whole election is declared void and fresh polls are directed.

We have heard the learned counsel for the parties and perused the record.

The argument of the learned counsel for the petitioners in W.P. No. 878/2001 that the impugned orders dated 3.7.2001 and 4.7.2001 passed by espondents Nos. 2 and 3 were based on the reports conveyed to him by the outsiders and the Returning Officer had failed to furnish report regarding the disturbance and stoppage of the poll at Polling Stations Nos. 1 and 4 in the said Constituency has no force at all. The perusal of the requisitioned record reveals that the concerned Presiding Officers had not only lodged the FIR No. 334 in Police Station Aza Khel but had also furnished their reports to the Returning Officer, who had further reported the matter to the District Returning Officer, which culminated into passage of the impugned order dated 3.7.2001, which was conveyed to the petitioners by Respondent No. 3 vide order dated 4.7.2001.

The argument of the learned counsel for the petitioners in W.P. No. 878/2001 that Respondents Nos. 2 and 3 were not competent to cancel the election and even the Chief Election Commissioner under the existing election laws was not competent to cancel the election of any of the wards/polling stations and it was only the jurisdiction of the Election Tribunal to declare the election as void after recording evidence has a force in it.

1. In the case in hand the allegations levelled are that in two Polling Stations i.e. Polling Station No. 1 and Polling Station No. 4 disturbance broke out at 4.00 P.M. which resulted in the stoppage of polling for sometime. However, with the intervention of the police the polling continued un-interruptedly. The result in all the Polling Stations including Polling Stations Nos. 1 and 4 were un-officially declared after counting votes in which Shah Alam Khan petitioner in W.P. No. 878/2001 obtained more votes than the contesting candidates. The Respondent No. 3 vide his public notice dated 4.7.2001 cancelled the election in Polling Stations Nos. 1 and 4. The said order was based on the order of Respondent No. 2 dated 3.7.2001 purportedly passed under Rule 29(2) of the BNPS Local Government Elections Rules 2000.

2. The question which needs determination here is whether Respondent No. 2 could cancel the elections? The answer is in negative. Rule 29 ibidis reproduced hereunder for the sake of convenience:--

Where a poll has been stopped under sub-rale (1), the Returning Officer shall immediately report the circumstances to the District Returning Officer, who shall direct a fresh poll at that polling station and fix a date for such polls, unless he is satisfied that the result of the election has been determined by the polling that has already taken place at that polling station taken with the results of the polling at other polling stations in the same electoral ward.

The perusal of sub-rule (2) of Rule 29 shows that the Presiding Officer could stop the polls at the Polling Station if the polls were interrupted or obstructed for reasons beyond the control of Presiding Officer and the Polling could not be resumed during the polling hours fixed under Rule 28 and any ballot box used at the polling station was unlawfully taken out of the custody of the Presiding Officer, or was accidentally, or intentionally destroyed or lost or was damaged or tampered with to such an extent that the results of the poll at the Polling Station could not be ascertained. The Presiding Officer in such an eventuality was to inform of the said stoppage of polling to the Returning Officer who would immediately report the circumstances to District Returning Officer, who could direct a fresh poll at the Polling Station and fix date for such polls unless he was satisfied that the result of the election had been determined that has already taken place at that Polling Station. No doubt the polling was stopped for sometime but the same was resumed with the intervention of the local police and the Army officials deputed there and continued un-interruptedly till the polling hours. At the close of the polling, the Presiding Officers prepared un­ official results & declared the same. In order to ascertain this fact as to whether the Presiding Officers had prepared results at the close of the Polling hours this Court summoned the presiding officers of the polling Stations Nos. 1 and 4. M/s. Mufti Baud Shah, Muhammad Yousaf and Salahuddin Presiding Officers attended this Court on 13.9.2001. Mufti Baud Shah and Salahuddin who performed duties of Presiding Officers at Polling Stations Nos. 1 and 4 confirmed that they had prepared un-official results.When the un-official results have been prepared, the Bistrict Returning Officer under Rule 29(2) of the B.N.P.S. Local Govt. Elections Rules 2000 could not cancel the election of Polling Stations Nos. 1 and 4. The order/public notice dated 3.7.2001 passed by Respondent No. 2 conveyed to the petitioners vide order dated 4.7.2001 passed by Respondent No. 3, is, therefore, without lawful authority.

Now we revert to the other questions as to whether the Chief Election Commissioner could cancel the elections or it was only the jurisdiction of Election Tribunal. In order to resolve this question, we shall have to see the law applicable in this regard. In order to conduct the elections for the establishment of Local Governments, NWFP Local Government Elections .Ordinance, 2000 (NWFP Ordinance No. VI of 2000) was promulgated. Likewise in order to conduct elections in just, free, fair, impartial and in transparent manner, B.N.P.S. Local Government Elections Rules were also made applicable. The powers of the Chief Election Commissioner have been given in Rule 3 (Chapter-II) and that of the District Returning Officers, Returning Officers, Presiding Officers and Polling Officers have been mentioned "in Rules 12 and 15 respectively in the said rules. A complete mechanism has also been given in order to decide the election disputes in Rules 71 to 93 of the Ordinance.

1. The perusal of Rule 71(1) shows that no election can be called in question except by an election petition made by a candidate for that election. Under Rule 81, the Election Tribunal upon the conclusion of the trial of an election petition has the powers to make an order:—

B

(a) dismissing the petition;

(b) declaring the election of the returned candidate to be void;

(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected.

(d) declaring the election as a whole to be void.

The grounds on the basis of which election of a returned candidate can be declared void have been enumerated in Rule 82 of the Ordinance. If the result of the election was materially affected by reasons of the prevalence of extensive corrupt or illegal practice at the election, the Election Tribunal under Rule 84 had the authority to declare the election as a whole void.

Deep analysis of the above referred provisions of law fully clarifies the position that it is only the Election Tribunal which upon election petition made by a candidate for that election after conclusion of the trial can declare the election as void. There is no authority as per Ordinance or elections Rules except election Tribunal which can either cancel or declare the elections as void. So far as the jurisdiction and powers of the Chief Election Commissioner are concerned, as mentioned above, those have been enumerated in Rule 3 of the B.N.P.S. Local Government Elections Rules, 2000. Neither in the Ordinance nor in the Elections Rules, the Chief Election , Commissioner has been empowered to declare the elections of a particular Constituency or of any Polling Station as void.

1. The argument of the learned counsel for the respondent that all the contesting parties were not impleaded, therefore, the writ petition deserved dismissal has no force. The petitioners have filed writ petition challenging the orders passed by Respondents Nos. 2 and 3. The concerned authorities whose orders have been challenged have been arrayed as parties, therefore, there was no other necessary party, which should have been impleaded and the non-impleadment of which would materially affect the case of the petitioners in W.P. No. 878/2001.

2. The argument of the learned counsel for the respondents that the petitioners have not challenged the Notification dated 7.7.2001, whereby re-election for Polling Stations Nos. 1 and 4 was ordered and that they participated in the election held on 25.7.2001, therefore, they cannot turn around and challenge the previous election equally has no force. We have in the preceding paragraphs held that Respondents Nos. 2 and 3 had no lawful authority to cancel the elections. Since the order of Respondent No. 1 is based on the impugned orders, therefore, the entire superstructure built thereon shall also collapse when the impugned orders go out of the field. Moreover, the Respondent No. 1 as mentioned above, has no lawful authority and jurisdiction to cancel the elections or to declare the elections as void, therefore, the Notification dated 7.7.2001 has also been issued without lawful authority. So far as the participation of petitioners in subsequent election held on 25.7.2001 is concerned, suffice it to say that they participated in the subsequent elections as per orders of this Court. Hence they would not be estopped by their conduct to challenge the same.

3. We, therefore, allow the Writ Petition No. 878/2001 (Shah Alam Khan and another vs. Election Commission of Pakistan etc.), set aside the impugned orders dated 3.7.2001 and 4.7.2001 passed by Respondents Nos. 2 and 3 respectively and direct the said respondents to officially announce the results of elections held on 2.7.2001. Consequently, Writ Petition No. 1084/2001 (Sajid Iqbal and another us. Election Commission of Pakistan etc.) is dismissed. We also declare the re-elections held in Polling Stations Nos. 1 and 4 on 25.7.2001 as void. With the announcement of official result of the elections held on 2.7.2001 if any of the contesting candidates is aggrieved, he/they can invoke the jurisdiction of the Election Tribunal constituted for resolving the election disputes for the said area. There shall, however, be no orders as to costs.

(A.P.) Petition accepted.

PLJ 2002 Peshawar 65

[Circuit Bench Abbottabad}

Present: LlAZ-UL-HASSAN, J. MUHAMMAD YOUSAF-Appellant '

versus

NISAR AHMAD etc.-Rcspondents

F.A.O. No. 57/2000, decided on 19.11.2001.

Cantonments Rent Restriction Act, 1963 (XT of 1963)--

~ Ss. 17 & 24~Tenant-EJjectment of~Prayer for-Default in payment of rent and sub-letting of premises without consent of landlord were the main grounds, for seeking ejectment-No evidence was produced on record in proof of default in payment of rent and that premises was sublet by tenant without consent of landlord and that landlord's son being jobless, he needed such premises for his good faith-Grounds on which ejectment was sought having not been proved, Rent Controller had rightly dismissed ejectment application. [P. 67] A

1995 SCMR1661; 2000 CLC 1252; 1990 CLC 702; 1997 SCMR 1307 ref.

Mr. Skakeel Ahmad Khan, Advocate for Appellant. Mr. Shaukat Khan Turk, Advocate for Respondents. Date of hearing: 16.11.2001.

judgment

The present appellant has called in question the impugned judgment % dated 19.9.2000 passed by Rent Controller (Cantonment) Abbottabad whereby the application of the appellant for ejectment of respondents from suit Shop No. 23/2, Yousaf plaza Shopping Center, Pine-View Road Abbotabad, was dismissed. ' 2. Brief facts of the case are that the appellant is the owner of the suit shop which was given on rent to Respondent No. 1 on payment of monthly rent of Rs. 345/- According to the appellant, Respondent No. 1 sublet the demise premises to his servant Muhammad Nafeez without consent and permission of the appellant and thus violated the term and conditions of the tenancy. It is averred that Respondent No. 1 is rent defaulter and that the shop in question is required by the appellant in good faith for business of the grand-sons of the appellant, who are jobless. 3. The application was resisted by Respondent No. 1 and the ppellant's claim was denied. Following issues were framed out of the pleadings of the parties:- Whether petitioner has got a cause of action?

1. Whether petition filed by the petitioner is based on malafide!

' '

1. Whether this Court had got jurisdiction to entertain the

petition? .

Whether Respondent No. 1 is rent defaulter?

Where Respondent No. 1 has sublet the shop to Respondent No. 2? "

Whether the shop in question is bona fide requirement of the petitioner?

Whether the petitioner is entitled for decree prayed for?

Relief.

1. The rent Controller after recording and appreciating the evidence of the parties pro and contra dismissed the application holding that the application is mala fide and the suit shop is not required in good faith. Mr. Shakeel Ahmed Khan\ Advocate, appeared on behalf of the appellant and attempted to argue that sufficient material was available on record to demonstrate that Respondent No. 1 had sublet the suit shop to Respondent No. 2 without consent of the appellant and that the shop in question was required by the appellant for the use of his grandsons but such evidence was put at shelf and totally ignored which has prejudiced the rights of the appellant. Additionally it was urged that Respondent No. 1 is rent defaulter and he is not entitled to retain the suit premises. '

Lastly, it was submitted that the impugned order has been written in a mechanical manner without application of mind and the same cannot be allowed to remain intact. In support of the submission, reliance was placed on cases reported as Mst. Khurshid Begum appellant vs. Dr. Khalid Masood and another respondents. 1996 CLC 646 Lahore, Saeed Muhammad appellant vs. Mehrullah and another respondents PLD 1996 Quetta 48, Mst. Mumtaz Begum appellant vs. Mst Wazir Begum respondent PLD 1997 Lahore 99^Affan Khadam Hussain petitioner vs. Mehboob Ilahi Khawqja and another respondents, 1995 CLC 63 Lahore and Attiqur Rehman and others petitioners vs. Muhammad Aslam Respondent 1995 CLC 66 Lahore. 6. On the contrary, Mr. Shaukat Khan Truk Advocate for the contesting respondent, supported the impugned judgment and order and contended that keeping in view the material available on record, learned Rent Controller was quite justified to dislodge the claim of the appellant and rejected his application.

1. Having heard the argument of learned counsel for the parties with reference to the material on record and the case law cited at the bar I find myself in agreement with learned counsel for respondent that there is absolutely nothing on .the file to prove that Respondent No. 1 is guilty of subletting the suit premises in favour of his servant Muhammad Nafees Respondent No. 2 or that the suit shop is needed by the appellant in good faith for the use of his grand sons. It is an, established principle of law that a person, who asserts/alleges a particular fact and wants the Court to believe that such fact exists. He shall be required to prove the existence of such fact. In the instant case good faith and bona fide are to be established by some cogent and convincing evidence, once the tenant is able to put a dent in such claim then it becomes all the more necessary to establish such fact and it is cumulative affect of the evidence that is to be assessed objectively and collectively to decipher bona fide need and if there is enough material that reflects adversely then the ejectment cannot be granted. All facts contributing to reflect adversely on the good faith of the landlord and the consensus of the opinion by the superior Courts also appears to be that if the good faith is not established by tangible evidence then eviction cannot be allowed. In the present case the element of good faith is wanting. Material has been placed on the file to show that during the ejectment proceedings certain shops had been transferred by the appellant in favour of his grand­son in order to enable them to carry out business and earn their livelihood. So far as the question regarding default in payment of rent is concerned, nothing has been produced in support of the accusation. The mere assertion of the appellant that the suit shop has been sublet without his consent; that the suit premises are required for personal need, or that respondent is rent defaulter, without a positive attempt on is part to substantiate the same is of no consequence. Musharaf Khan appellant vs Sherein Khan and another respondent1995 SCMR 1661 Muhammad Yousaf appellant vs. Mrs. Noor Jehan Bi respondent .2000 CLC 1252 Karachi, Muhammad Roshan Khan appellant vs. Ishtiaq Ali respondent 1995 CLC 702 Karachi, Ghayour Alam vs Muhammad Jamil 1983 CLC 1274 and Muhammad Zaman vs. Hasbun Nisa 1991 SCMR 1307.

. The case law cited on behalf of the appellant is distinguishable and needs no separate discussion. In the mentioned ruling the premises were found to have been required in good faith for personal use whereas the element of good faith is conspicuously missing in the present case and the other allegations levelled against the respondent; have not been satisfactorily proved.

.In the result and for the foregoing reasons, finding no substance in this appeal I dismiss the same, with no order as to costs.

(A,A.) Appeal dismissed. B

PLJ 2002 Peshawar 68

[Circuit Bench Abbottabad]

Present: mian shaikrullah jan, J.

MUHAMMAD SALEEM-Petitioner

• \•

versus

MUHAMMAD AMIN-Respondent

C.R. No. 64 of 2001, decided on 5.12.200L

North West Frontier Province Pre-emption Act, 1987 (X of 1987)-

—S. 24(2)~Deposit of l/3rd of pre-emption amount in Court by plaintiff whether within statutory time—Plaintiff having come to Court with requisite amount seeking permission of Court on 5.1.1998 as evident from application made by him in that respect and various endorsements made by Civil Nazir and preparation of voucher of treasury on the same day would lead to assumption that plaintiff had deposited amount in question, on the same day and Civil Nazir was to get the same deposited of course, with the assistance of plaintiff whether on the same day or the next day would make no difference-All such steps taken by plaintiff would be considered to be valid tender of the amount in Court. [P. 69] A

PLD 1992 Peshawar 18; PLD 1993 SC 284; 1995 SCMR 90; 1995 SCMR135; 1997 MLD 2945; 1999 MLD 2475 ref.

Malik Manzoor Hussain, Advocate for Petitioner. • Mr. Sqjjad Ahmed Abbasi, Advocate for Respondent. Date of hearing: 5.12.200k

judgment

In intend to dispose of these two Civil Revisions Nos. 64 and 65 of 2001 by this single judgment as both involve almost identical questions of law and facts.

1. The plaintiff/respondent instituted- a pre-emption suit on 6.12.1997, on which date he was directed to deposit l/3rd of the pre-emption amount within 30 days. He submitted an application on 5.1.1998 for the deposit of the requisite amount. The Civil Nazir submitted a report, on the asking of the Court, on the reverse of the application and on perusal of the said report the learned Judge allowed the deposit of the said amount vide his order dated 5.1.1998. The said application also bears another endorsement of the Civil Nazir indicating thereby that the amount has been deposited in the Treasury on 6.1.1998. During the pendency of the suit the defendant/ petitioner submitted an application to the Court for dismissal of the suit for non-compliance of the order by not depositing the amount as required within

the requisite time of 30 days. The learned trial Court on acceptance of the application of the defendant dismissed the suit of the plaintiff on the ground that the last date for the deposit of the amount was 5.1.1998 while the same was deposited on 6.1.1998, beyond the period of 30 days as allowed by the Court. On appeal the findings of the learned trial Court were not set-aside on the ground that for all legal and practical purposes theplaintiff, on approaching the Court for deposit of the amount on 5.1.1998, has physically deposited the same in the Court. It is this judgment against which the present revision petition has been filed.

1. Learned counsel for the petitioner, while supporting the judgment and decree of the trial Court has contended that the last date for the deposit of the amount as allowed by the Court was 5.1.1998 while the same was deposited on 6.1.1998, beyond the prescribed period, hence the suit of the plaintiff/respondent under Section 24(2) of the N.W.F.P. Pre­ emption Act was liable to dismissal. In this respect reliance was placed on "Shah Behram vs. Akbar Khan' (PLD 1992 Peshawar 18), "Haji Janat Gul Khan vs. Haji Faqir Muhammad Khan" {PLD 1993 Supreme court 204), "Sherzada vs. Zowar Din" (1995 SCMR 90), "Habibullah, Khan vs. Amir Zaman" (1995 SCMR 135), "Wahid Bakhsh vs. Abdul Qayum" (1997 M.L.D. (Peshawar) 2945 and "Muhammad Iqbal vs. Jehanzeb Khan" (1999 M.L.D. (Peshawar) 2475).

2. The learned counsel for the respondent, while supporting the impugned judgment and decree of the Appellate Court, has submitted that as per requirement of Section 24 which envisages the deposit of amount in the Court has been complied with by the respondent well within time when he submitted application to the Court for acceptance of his deposit brought by him to the Court on 5.1.1998 and if the amount was not deposited in the Treasury by the official of the Court on the same day, the respondent may not be penalized for the same. In this respect reliance was placed on "AbdulAziz vs: Aziz ul Haq" (1972tSCMR.296).

3. Section 24 (1) of the N.W.F.P. Pre-emption Act, 1987 requires the plaintiff to deposit l/3rd of the amount "in such Court". When the plaintiff came to the Court with the requisite amount and seeking permission of the Court on 5.1.1998 as evident from the application made by him in that respect, the various endorsement made by the Civil Nazir, an official of the Court, and the preparation of the voucher of the treasury on the same day will be deemed that the plaintiff has deposited the amount on the same day and it was for the Civil Nazir to get it deposited may be with the assistance of the plaintiff whether on the same day or on the next day would make no difference as all the above steps taken by the plaintiff will be considered as valid tender of the amount in the Court and in accordance with the order of the Court. In case of "Abdul Aziz vs. Aziz id Haq" the Honourable Supreme Court has considered such deposit to be as a valid tender to the Court within the period prescribed. Relevant portion of which may be reproduced:-- "After hearing the learned counsel for the petitioner, we are satisfied that the respondent had made a valid tender to the Court by getting the challan passed and by making an effort to make the deposit within time. The learned Single Judge was perfectly justified in observing that this was sufficient compliance of the order dated the 23rd May, 1968 and no question of any extension arose. In our opinion, the respondent has not committed any default. The petition is dismissed".

4. The judgments -referred to by the learned counsel for the petitioners are distinguishable as in the aforesaid judgments the period of extension was involved which was held that once a period had been fixed by the Court then the same cannot be extended but here in the instant case there is no question of any extension of period but the only question is as to whether the amount has been deposited within the period prescribed by the Court or not which in view of the aforesaid discussion will be answered in the affirmative i.e. the amount has been deposited within the prescribed period.

5. The revision petitions have got no force and are dismissed. (A.A.) Revision petition dismissed.

PLJ 2002 Peshawar 70 (DB)

[Circuit Bench Abbottabad]

Present .-NASiR-UL-MuLK and ijaz-ul-hassan, JJ.

SHER AFZALr-Petitioner

versus

ABDUL MALIK etc.--Respondents

W.P. No. 211/99, decided on 12.9.2001.

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

—0. VI, R. 17~Court enjoys jurisdiction to allow amendments in plaint at any stage which are just and necessary for final disposal of case in between the parties-Delay alone in applying for amendment would not , be a ground for refusing amendment in plaint. [P. 72] A

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

—0. VI, R. 17-While allowing amendment in plaint defendant's rights should also be kept in view and, no amendment should be allowed which was aimed to change complexion of suit altogether or to introduce new case based on new cause of action-Petitioner had made application for amendment at belated stage when case was fixed for arguments on realization that witnesses produced by him had not supported his claim- Petitioner had made application for amendment for no other reason but to bring his case in line with the .depositions by his witnesses-Courts below were thus justified to reject petitioner's application and declined to grant amendment-Valuable right having accrued to defendant could not be snatched away lightly, [P. 73]B&C

Muhammad Ilyas Khan, Advocate for Petitioner. Qazi Anwar-ul-Haq, Advocate for Respondent. Date of hearing: 12.9.2001.

• judgment

IJaz-ul-Hassan, J.«Through the instant Constitutional petition, Sher Afzal petitioner challenges the correctness of order dated 10.3.1999 and 30.6.1999 passed by learned Senior Civil Judge, Datagram and learned District Judge, Batagram respectively, whereby the application of the petitioner for amendment in plaint was rejected and the impugned order was maintained in Revision Petition No. 2/C.R. of 1999. The petitioner prays that the aforesaid orders be declared without lawful authority, void and without jurisdiction and the petitioner be allowed to make proposed amendment in his plaint

1. The facts relevant for the disposal of this writ petition are that the petitioner filed suit (being Suit No. 10/1 of 1995) against Abdul Malik defendant-respondent, for declaration, possession and in alternative for specific performance of the contract in respect of suit land bearing khasra Nos. 1959,1964,1968 and 1972 measuring 10 Kanals9 Marias situate in the area of deh Phagora, Tehsil and District Batagram. The petitioner claimed to have purchased suit land from the respondent in consideration of Rs. 3,14,000/-. The petitioner also claimed to have paid the entire amount to the respondent at the time of sale. It was averred in the plaint that the respondent was asked to transfer suit land in the name of the petitioner but he declined to do so which obliged the petitioner to file suit. The respondent in his written statement refuted the claim of the petitioner and denied having entered into any transaction with the petitioner. The trial Court formulated as many as 8 issues out of the pleadings of the parties and after recording evidence fixed the case for arguments on 16.12.1997, adjourned to 14.7.1998 at the request of the petitioned. At the argument stage the

petitioner made an application for amendment in the plaint. The application having been contested was rejected vide order dated 10.3.1999 which was up­held by the appellate Court through order dated 30.6.19999 which has given rise to the filing of instant writ petition.

1. Mr. Muhammad Hays Khan Advocate appearing on behalf of the petitioner attacked the impugned order on a manner of grounds and contended, inter alia, that in order to arrive at a correct decision and to do complete justice between the parties, a liberal view should have been taken by the Courts below and proposed amendment should not have been declined. To substantiate the contentions, he relied on cases reported as "Ghulam Nabi vs. Sardar Nazir Ahmed 1985 SCMR 824, All Hussain vs. Late Alt Ahmad Khan 1983 SCMR 1178; Muhammad Ismail vs. Muhammad Sarwar 1980 SCMR 254, S. Ikhlaq Hussain vs. Wapda Lahore 1997 SCMR 284, Zubadia Begum vs. Wali Muhammad Khan 1974 SCMR 181, Bashir Ahmad Khan vs. Qaiser Ali Khan PLD 1973 SC 507, Ahmed Din vs. Muhammad Shaft PLD 1971 SC 762 and Sultan Ahmad and another vs. Sahu and others 1969 SCMR 277."

2. Conversely, Qazi Anwarul Haq Advocate for Respondent No. 1 supported the impugned order and maintained that proposed amendment was refused for valid and solid reasons because it introduced an entirely new cause of action which virtually altered the nature of the suit. He relied on "Kaptan Yousaf Kalkave appellant vs. Semoc Salvge Pvt. Ltd. respondent, 1992 CLC 143 and Sardar Muhammad Mustaq Khan and 6 others petitioner vs Sardar Muhammad Parvez Khan and 14 others respondents 2001 MLD17-25.

3. We have heard at length the arguments and submissions of learned counsel for the parties in the light of the case law cited at the bar. 6. There is no cavil with the proposition that Court is always empowered under Order 6 Rule 17 CPC and enjoys jurisdiction to allow amendments in plaint at any stage which are just and necessary for final disposal of case in between the parties and generally delay alone in applying for amendment is not a ground for refusing amendment in the plaint but at the same time the Court is bound to exercise such jurisdiction in accordance with settled judicial principles particularly while allowing request for amendment that no prejudice is caused to other side and secondly for accurate determination of case, amendment in necessary. It needs no reiteration that while allowing amendment in the plaint, the defendant's right should also be kept in view and no amendment should be allowed which is aimed to change complexion of the suit altogether or to introduce a new case based on new cause of action, as held by this Court in the case of

"Sardar Muhammad Mustaq and others vs. Sardar Muhammad Parvez and others reported in 2001MLD 1725 Peshawar.

In the instant case we find that he application for amendment was made at a belated stage when the case was fixed for arguments. When the petitioner realized that the witnesses produced by him do not support his claim and speak differently, he immediately moved an application for amendment for no other reason but to bring bis case in line with the deposition made by his witnesses. We feel that the Courts below were quite justified to re ject the application and declined to grant amendment A valuable right having been accrued to the defendant-respondent could not have been snatched away lightly. The rulings cited on behalf of the petitioner proceed on different facts. The rulings are not helpful to the petitioner in any manner for the reason that in the cited rulings amendments were allowed which were found just and proper for resolution of the controversy involved and which were«ot aimed to change character of the suit In view of what has gone above it follows that no illegality or material irregularity has been exercised by the Courts below. The petitioner has failed to point out any jurisdictional defect attracting the exercise of extra-ordinary constitutional jurisdiction of this Court Resultantly the writ petition fails which is hereby dismissed with no order as to costs.

(A.A.) Petition dismissed.

PLJ 2002 Peshawar 73

(DB) [Circuit Bench Abbottabad]

Present: khaltoa rachid and iiaz-ul-hassan, JJ.

SHAH NAWAZ SHAH-Appellant

versus

YONUS-UR-REHMANetc.~Respondents

R.F.A. No. 35/2000, decided on 22.11.2001.

Limitation Act, 1908-

—Art. 23--Suit for damages-Government was added as party to suit after period of limitation-Plaintiffs suit as a whole was dismissed as being barred by time-Suit for damages being for malicious prosecution-Limitation for filing such suit is one year in terms of Art. 23 of the Limitation Act, 1908-Application foEs-adding parly to suit having been filed after limitation, such delay affected entire suit therefore, trial Court had rightly dismissed suit treating the same as barred by time. DP. 75] A

Qazi Muhammad Ghazanfar Khan, Advocate Appellant.

Muhammad Ismail Tanoli, Advocate for Respondents 1 to 3. D.A.G. for Respondent No. 4. Date of hearing: 1.11.2001.

judgment

Ijaz-ul-Hassan, J.-This appeal is directed against the judgment and decree dated 11.9.2000 announced by Senior Civil Judge, Haripur, whereby an application moved 'on behalf of Defendants Nos. 1 to 3 on 13.7.2000 was accepted and suit filed by the plaintiff-appellant was dismissed as time barred.

1. The facts relevant for the disposal of this appeal are, that Shah Nawaz Shah plaintiff, filed suit on 17.2.1997 against Younas-ur-Rehman and two others defendants, for recovery of Rs. 1,500,00/- as damages for malicious prosecution. The defendants appeared in Court and resisted the suit. Necessary issues were formulated and the plaintiffs evidence was recorded and closed on 2.10.1999. The plaintiff submitted an application on 11.2.2000 for adding Government of NWFP, through Secretary Services and General Administration, Peshawar, as necessary party to the suit. The application was accepted by order dated 9.3.2000 and the plaintiff filed amended plaint on 15.3.2000. The evidence of the plaintiff was recorded and closed on 3.6.2000 and the case was adjourned to 17.7.2000 for the defendant, evidence. The Defendants Nos. 1 to 3 submitted an application on 13.7.2000 seeking dismissal of the suit on the point of limitation. The Government of NWFP having been found included as party to the suit after expiry of limitation, the application was accepted and the suit dismissed, per 'the impugned judgment and decree, necessitating the filing of instant appeal.

2. Qazi Muhammad Ghanzafar, Advocate appeared on behalf of the appellant and assailed the impugned judgment and decree principally on the ground that the learned lower Court has mis-interpreted the law of limitation and has drawn wrong conclusion. Additionally, it has been urged that the application for adding party having been accepted earlier, the learned trial Judge had no justifiable reason to accept the subsequent application dated 13.7.2000 and made the same basis for dismissal of the suit on the point of limitation. The learned counsel also complained that the rulings cited in support of the appellant's case were not taken into consideration and ignored altogether which has prejudiced the appellant's cause. Reliance in this respect has been placed on 'Muhammad Yousaf appellant vs Syed Ghayyur Hussain Shah and 5 others respondents, 1993 SCMR 1185, Malik Raza Khan plaintiff vs Pakistan defendant PLD 1965 (W.P.) Karachi 244, Muhammad Afsar and 6 others appellants vs Shah Wali and two others respondents PLD<&1984 SC (AJ&K) 115, Muhammad Ashraf and 8 others appellants vs Azad Govt. of the State ofJammu and Kashmir and 13 others respondents, PLD 1985 SC (AJ&K) 102, Mst. Bibi Lai Bibi appellant vs. Mir Baluh Khan and another respondents, PLD 1962 (W.P.)

3. Mr. Muhammad Ismail Tanoli Advocate, for Respondents Nos. 1 to 3 and Mr. Muhammad Ayub D.A.G. for Respondent No. 4, on the contrary, defended the impugned judgment and decree and contended that application-for adding Government of NWFP as necessary party, having been filed after limitation, the suit was rightly held barred by time in terms of Article 23 of the Limitation Act. To substantiate the contentions, reliance was placed on 'Northern Bank of India Ltd; plaintiff-appellant vs. Ramesh Chandar and another defendants-respondents. AIR 1932, Lahore 314, Devi Dayai defendant-petitioner vs. Narian Singh and others plaintiffs- respondents, AIR 1928 Lahore, 35, Muhammad Khan appellant vs. Abdul Khaliq Khan respondent, PLD 1981 SC 155 and Hayat and others appellant vs Amir respondent, PLD 1982 SC 167.

4. We have heard at length the argument and submissions of learned counsel for the parties in the light of the material on file and case law cited at the bar.

5. A perusal of the record would reveal that pursuant to information supplied by Hamid Shah son of appellant Shah Nawaz Shah, two hand- grenades were recovered by the local police at the pointation of Hamid Shah from the house of the appellant and the same were taken into possession. A case under Section 3/4 Explosives Substance Act was registered against the appellant videF.I.R. No. 168 dated 9.6.1995 police Station Hatter District Haripur. After completion of investigation the police submitted case for trial which culminate in the acquittal of the appellant under Section 265-k Cr.P.C. videorder dated 14.10.1996. Feeling aggrieved, the appellant instituted suit on 17.2.1997 seeking recovery of Rs. 15,00,000/- from defendant-respondents as damages for malicious prosecution. It appears that when the proceedings were near completion, the appellant realized the mistake and made an application on 11.2.2000 for adding Govt. of NWFP as necessary party to the suit The application was accepted. Thereafter, defendants Nos. 1 to 3 submitted an application on 13.7.2000 for dismissal of the suit on the ground of limitation. Article 23 of the Limitation Act specially deals with case of malicious prosecution and prescribes a period of one year, when the plaintiff is acquitted, or the prosecution in otherwise terminated. Hence provisions of this article apply in preference to the general provisions of Article 2 (ibid) as held in "Chaudhry Abdul Ghani Guman plaintiff vs. Province of Punjab and two others defendants PLD 1975 Lahore 1238. In the instant case we find that the application for adding party to the suit, having been made after limitation, it affected the entire suit and the learned Judge, seized of the matter had justifiable reason to dismiss the whole suit treating the same as barred by time. Learned counsel for the appellant has not been able to persuade us to hold that the point of limitation had been erroneously found against the appellant and the law of limitation has been mis­ interpreted. The case law cited on behalf of the appellant has no bearing on the facts of the present case and speaks of the different situation. The cited ruling are of no help to the appellant.

6. Based on the above discussion, finding no substance is this appeal, we dismiss the appeal and maintain the impugned judgment and decree. We make no order as to costs.

(A.A.) Appeal dismissed.

PLJ 2002 Peshawar 76

P10sent: sardar muhammad raza, C.J.

ASAL MARJAN, etc.--Petitioners

versus

KHOL MARJAN-Respondent

Civil Revision No. 314 of 1998, decided on 9.10.2001. (i)

Absence of Plaintiff-

t—In case counsel is present in Court without instructions from his client, Court should have at the most dismissed suit in default-This too cannot be done unless Court allows counsel to withdrawn his power of attorney-­ Counsel of plaintiff was present in Court who stated in Court that he had no instructions from his client-Plaintiff was negligent [P. 77 A

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

—O. 17, R. 3~Proceedings under Order 17 Rule 3 CPC can only be taken when adjournment is granted on request of party concerned—Previous order sheet would indicate that no request was made for adjournment by plaintiff and same was just in routine-This was a void order and hence could be challenged at any time specially when date of knowledge as alleged by plaintiff on affidavit is not refuted by a counter affidavit-­ Plaintiff, is not keeping contact with his counsel, was negligent—Suit restored on payment of costs. [P. 77] B

Hqji Muhammad Zahir Shah, Advocate for Petitioners. Man Muhammad Younis Shah, Advocate for Respondent. Date of hearing: 9.10.2001.

judgment

A civil suit 48/1 was filed by Khol Marjan respondent against Asal Marjan and another, on 01.12.1993 at Civil Court Karak. On 10.06.1996 the counsel for the plaintiff was present who stated in Court that he had no instructions from his client and hence the trial Court dismissed the suit under Order 17 Rule 3 CPC. The plaintiff filed an application on 17.12.1996

for restoration of suit which was considered to be time barred by six months and seven days and hence dismissed by the trial Court on 27.11.1997. The plaintiff went in appeal which was accepted by the learned District Judge Karak on 13.3.1998 and the case was remanded to the trial Court after restoration. The defendants have come up in revision.

It is a settled law that in case the counsel is present in Court without instructions from his client, the Court should have at the most dismissed the suit in default. This too cannot be done unless the Court allows the counsel to withdraw his power of attorney. The better course would have been to adjourned the case and to summon the petitioners. That is what has been observed by the learned Sessions Judge which should not be set aside in revision. 4. As the counsel for the plaintiff had rather facilitated the dismissal and as the plaintiff was not aware of the fate of his suit, he obviously would have asked for restoration only after getting knowledge of dismissal which was of course legal. Another important aspect of the case is that proceedings under Order 17 Rule 3 CPC can only be taken when the adjournment is granted on the request of the party concerned." In the instant case, the previous order sheet dated 22.04.1996 would indicate that no request was made for adjournment by the plaintiff and the same was just in routine. This was a void order and hence could be challenged at any time specially when the date of knowledge as alleged by the plaintiff on affidavit is not refuted by a counter affidavit. Anyhow one thing cannot be ignored that the plaintiff, in not keeping contact with his counsel, was negligent. Resultantiy the revision is hereby dismissed with direction that the suit shall stand restored only, on payment of Rs. 1500/-as costs, failing which the impugned remand order shall not hold the field. Parties to appear before the Senior Civil Judge Karak on 31.10.2001, (A.P.) Revision petition dismissed.

PLJ 2002 Peshawar77 (DB)

Present:. mian shakirullah jan and ejaz afzal khan, JJ.

M/s. NOWSHERA BRICKS AND TILES (PVT) LTD. etc.-Appellants

versus REGIAIONAL DEVELOPMENT FINANCE CORPORATION-Respondent

F.A.B. No. 73 of 1996, decided on 31.10.2001.

Civil Procedure Code, 1908 (V of 1908)-

—-S. 47~Objection petition has been moved u/s 47 C.P.C. which empowers executing Court to adjudicate upon matter relating to execution, discharge or satisfaction of decree-Decretal amount has been challenged which under law is not maintainable—Held: Executing Court cannot go behind decree and has to execute it, unless same is patently a nullity. [P. 78] A

Mr. Samiullah Jan, Advocate for Appellants.

Mr. Salahuddin Khan, D.A.G. II and Mr. Hidayatullah Khan, Advocate for Respondent.

Date of hearing: 24.5.2001.

judgment

Mian Shakirullah Jan, J.--During the execution proceedings, after passing of the decree for recovery of an amount of Rs. 80,48,554/-, the appellant/judgment-debtor has filed an objection petition on the ground that the decree-holder/respondent has obtained the aforesaid decree to which it was not legally entitled. A prayer was made for, reduction of the decretal amount and also a further request for the payment of the outstanding amounts through easy instalments has been made. The learned executing Court directed the appellant/judgment-debtor to furnish security for the payment of the decretal amount as required under Order XXI Rule 23-A C.P.C. but the appellant failed to comply with the said order and resultantly his objection petition was dismissed through the impugned order. It is against this order that the appellant has now filed the instant appeal.

1. According to the appellant he has not been given proper chance of defence either in the suit of during execution proceedings or proceedings in objection petition and that the decree-holder has not been able to prove its claim against the appellant.

2. The learned counsel for the respondent vehemently contended that in view of the non-compliance of the directions of the executing Court in Accordance with Order XXI rule 23-A, the objection petition has rightly been dismissed. The perusal of the objection petition indicates that it has been moved u/s 47 C.P.C. and which empowers the executing Court to adjudicate upon the matter relating to the execution, discharge or satisfaction of the decree and it cannot go beyond it while according to the prayer made by the appellant through the above mentioned application is otherwise i.e. in a way the decretal amount has been challenged through the objection petition which under the law is not maintainable. Reliance in this respect can be placed on Muhammad Alt and others vs. Ghulam Sarwar and others (1989 SCMR 640), wherein it has been observed that the Executing Court cannot go behind the decree and has to execute it is, unless same is patently a nullity. The above reason apart from the one about non-compliance of the order of the Court for furnishing security in accordance with Order XXI Rule 23-A given by the Tribunal is quite correct and no exception can be taken to it.

Resultantly, this appeal has got no force and is dismissed with no orders as to costs. %

(M.Y.) Appeal dismissed.

PLJ 2002 Peshawar 79 (DB)

Present: sardar muhammad raza khan, C.J. and shah jehan khan yousafzai, J.

M/s, SWABI MARBLES (PVT.) LTD., and others-Appellants

versus

' A.C, LAND ACQUISITION COLLECTOR MARDAN, and others-Respondents

R.F.A. Nos. 71 of 1997 and 89 of 1997, decided on 13.3.2001.

Land Acquisition--

—Appeal under land Acquisition Law-Objectors raised a preliminary objection regarding maintainability of appeal filed by acquiring departmental—Court rejected such objection on basis of judgment of Federal Shariat Court in Shariat Petition No. 6 of 1988-According to this judgment, existing land.acquisition law does not provide a right of leading evidence for determination of rate of compensation and right of appeal and is in negation of justice and repugnant to injunctions of Islam. [P. 81] A, B & C

PLj 2000 Pesh. 259; 1997 CLC 556; PLD 1999 Pesh. 53 ref.

Mr. Samiullah Jan, Advocate for Appellants.

Mr. M. Pervaiz Younas & Mr. M. Alam, Advocates for Respondents Nos. 1 and 2.

Date of hearing: 16.1.2001.

judgment

Shah Jehan Khan Yousafzai, J.-R.F.A. No. 71/97 (M/s. Swabi Marbles Corporation (Put.) Ltd. and another vs. Land Acquisition Collector and others) and R.F.A. No. 89/97 (Government of N.W.F.P. etc. vs. Swabi Marbles Corporation (Pvt.) Ltd. and others arising from the same judgment are disposed of by this common judgment.

1. For the extension of Sheikh Maltoon Township Mardan and construction of a 200 beds Hospital, the land fully described in the Award No. 70/3 dated 28.10.1992 was acquired. Swabi Marble Factory and Brekhna

Marble Factory constructed over a part of Khasra No. 308 were also demolished and the proprietors of the two factories were awarded a total compensation for the superstructure as Rs. 7,13,605.55 including 15 percent compulsory acquisition charges and 8 per cent interest for 29 days permissible under the law. In addition to the land beneath the factories at the rate of Rs. 1,10,000/- per kanal for the front portion of the acquired land and Rs. 90,000/- per kanal for the rear portion of Khasra No. 308 in the revenue estate Roria Tehsil and District Mardan.

' • • \ f

1. The proprietors of the two factories feeling dissatisfied with the rate of compensation awarded by Land Acquisition Collector filed an objection petition under Section 18 of the Land Acquisition Act on 30.11.1992 which was referred to Senior Civil Judge, Mardan as Reference Case No. 20/4 of 1996 for determination of rate of compensation. The referee Court framed the following issues arising from the objection petition :--

(1) Whether the Objectors have got a cause of action ?

(2) Whether the Objectors received compensation without protest, is so, its effect ?

(3) Whether the Objection Petition is within time ?

(4) Whether there was any abadi, trees and machinery in the acquired land, if so, the compensation awarded by the Collector is wrong and inadequate ?

(5) Whether Objectors are running the Marble factory in the land acquired, if so, whether they are entitled to the loss of earning and at what rate ?

(6) Whether the Collector has wrongly classified and under assessed the suit land, if so, what is the correct classification and market value of land acquired ?

(7) Whether the objectors have sustained any damage at the instance of the respondents, if so, to what extent and effect ?

(8) Whether the objectors are entitled to the enhancement of compensation as prayed for ?

(9) Relief.

1. Both the parties adduced their evidence as they wished to produce. In the conclusion the learned Senior Civil Judge Mardan enhanced the rate of compensation of the superstructure of Swabi Marble Factory to Rs. 1,06,50,041/- and for the superstructure of Brekhna Marble Factory to Rs. 5,79,040/- and the compensation for land beneath the two factories was enhanced to Rs. 1,60,000/- per kanal. Still feeling aggrieved the objectors have filed R.F.A. No. 71/97 and the acquiring department being aggrieved from the enhancement made through the impugned decree and judgment has filed R.F.A. No. 89/97.

2. At the very outset learned counsel for the objectors raised a preliminary objection regarding maintainability of appeal filed by acquiring department in view of the judgment reported in WAPDA u. Aurganzeb Khan (P.L.J. 1974 Peshawar 18), Province of Punjab vs. Naseeurddin (19 SCMR 2091), Pir Khan vs. Military Estate Officer (P.L.D. 1987 S.C. 485). The learned Advocate General produced judgment reported in case Military Estate Officer vs. Assistant Commissioner cum Collector Quetta and 4 others (1997 CLC 556) wherein a Division Bench of the Quetta High Court has overruled such objection on the strength of judgment delivered by Federal Shariat Court in Shariat Petition No. 6 of 1988 which was also upheld in Shariat Appeal No. 7 of 1989 in the Shariat Appellate -Bench of Supreme Court of Pakistan decided on 18.2.1991. In the said judgment'Sections 18, 22-A, 50 and 54 of the Land Acquisition Act, 1894 were declared against the injunctions of Islam and recommended amendments to make the law on the subject more consistent and equitable till 30th September, 1991 as the existing law by then not providing a right of cross-objection, leading evidence for determination of rate of compensation and right of appeal, was found in negation ot justice and repugnant to the injunctions of Islam. It was observed "that a.party who has to pay money from its funds should have been provided a right to make reference, to adduce evidence for the purpose of determining the amount of compensation if dissatisfied from the rate of compensation fixed by Land Acquisition Collector and to prefer an appeal if aggrieved from the findings of referee Court. It was held that if the law should not be amended till 30th September, 1991 the existing law will have no effect after the aforesaid date. The judgment of Federal Shariat Court upheld by Shariat Appellate Bench in the Supreme Court of Pakistan was followed in Muhammad Pervez vs. Azizullah Khan (PLD 1999 Peshawar 53). In these circumstances we reject the preliminary objection regarding maintainability of the appeal filed by Acquiring Department.

3. We heard the learned counsel for the parties on merits and pei-used the record. The objectors have claimed Rs. 500,000/- per kanal as rate of compensation for the land measuring 20 kanalsa part of Khasra No. 308. Counsel for appellants/objectors stated at the bar that rate of compensation for the acquired land has already been enhanced by this Court in R.F.A. No. 70 of 1997 decided on 18.4.2000 regarding the adjacent lands reported in Abdul Samad Khan etc. vs. Project Director Mardan Development Authority (PLJ 2000 Peshawar 259) which has now been challenged in the august Supreme Court of Pakistan and the rate of compensation for land be fixed in terms of cited judgment noted above. It was observed in the aforesaid judgment regarding the land subjudice in the instant appeals as follows :--

"In the "aks Shajara Kishtwar" Ex. PW. 3/4 it is evident that.Khasra No. 308 which includes Khasra No. 309 in its centre is lying adjacent to the Dual Carriage Mardan Nowshera G.T. Road. Likewise Khasra .No. 303 to 307 on the north and 311 to 315 on the South of Khasra No. 308 are also of the same use and character. KhasraNos. 316, 318 to 324 owned by the objectors are adjacent to Daul Carriage Road of Sheikh Maltoon Housing Scheme as shown in Aks Ex. PW. 3/4 and not lesser in value than Khasra No. 308 while rest of the acquired Khasra Nos. are lying in the rear and lesser in value comparatively. The Khasra Nos. mentioned above either adjactent to Dual Carriage Mardan Nowshera Road or adjacent to the Dual Carriage Road of Sheikh Maltoon Housing Scheme in the south are equal in potentiality and could be utilized equally as commercial market due to the adjacent Sheikh Maltoon Housing Scheme. In these undisputed facts we feel no hesitation in holding that the rate of compensation for the aforesaid Khasra Nos. was wrongly fixed on the basis of rate fixed for Roria Mahal after relying on Ex. PW. 2/1 and the fair and justifiable rate for these Khasra Nos. should be fixed at Rs. 17,000/- per marla as determined for land lying on Mardan Nowshera Road through Ex. PW. 2/1. The rate fixed for' remaining Khasra Nos. in the impugned judgment as Rs. 8,000/- per marla merit no interference."

1. In view of the aforesaid finding we are inclined to enhance the rate of compensation for the land beneath the two factories measuring 20 kanals to Rs. 17,000/- per marla. As regards the rate of compensation for the superstructure of the two factories a total compensation was claimed Rs. 2,11,96,200/- in the objection petition. To substantiate the aforesaid rate of compensation for superstructure Hamoyun Khan Chief Executive of the National Consulting Engineers was produced as CW. 3. He deposed that on the request of Haji Wazir Muhammad objector Managing Director Swabi Marble Corporation and Proprietors Brekhna Marble Factory he visited the site on 12.9.1992 and provided his valuation certificate (Ex. OW. 3/1) respecting Swabi Marble and (Ex. OW. 3/2) respecting Brekhna Marble. He also prepared a sketch of the two factories as Ex. OW. 3/3. He admitted that private persons are charged for valuation certificate on the basis of per square foot. Abdullah was produced as OW. 4 who exhibited his report as OW. 4/1 showing the total damage caused to the spare parts of the two factories. He also produced an estimate of the damage caused to the gang- saw machine as Ex. OW. 4/2, the cost of damage caused to the electric goods, workshop, air compressor, marble tiles/slabs in Swabi Marble Factory as Ex.

2. OW.4/3 to OW. 4/6, and the cost of damage to the marble tiles/slabs in Brekhna Marble Factory as Ex. OW. 4/7 and estimated cost of damage caused to the electrical implements of Brekhna Marble Factory as Ex. OW. He has admitted that the assessment/estimate was drawn by an employee of the owner and he has just signed it. The aforesaid damage reports are not believable being prepared after the dismantling of two factories. The witness is not a technically qualified person but a matriculate. The aforesaid documents were prepared by employees of the objector and the witness has just signed it along those employees and the same were handed over to the objector.

3. The acquiring, department has produced Mian Khaliq Shah J3.D.O. C&W Secretariat Peshawar as RW. 1 and Said Kamal Shah Assistant

Director MDA Mardan as RW. 2. On the request of MDA both the witnesses alongwith technical staff visited the site and prepared their estimate as Ex. RW.1/1. No site-plan was prepared and even the measurement notices were hot prepared by the two witnesses and allegedly made by MDA staff. No specification was obtained from the objectors. Both the witnesses are .employees of the Provincial Government and MDA, thus partison and the estimate drawn by them Ex.PW. 1/1 was rightly turned down by the Referee Court vide his detailed discussion under Issue No. 4.

1. Hamayun Khan (OW. 3) is qualified Civil Engineer who inspected the site of the two Marble Factories on 12.9.1992 and prepared a detailed report Ex. OW. 3/1. He has drawn the total estimated cost of the damage caused as Rs. 1,06,50,041/- for Swabi Marble Factory and Rs. 5,79,040/- for Bfekhna Marble Factory. The said report was accepted by -£he Referee Court in his impugned decree and judgment and the objectors

s - /

cannot be allowed to claim more than the evidence led by them. The acquiring department has miserably failed to shatter the deposition of Hamayun Khan (OW. 3) though subjected to lengthy cross-examination.

1. As a result of the above discussion we arrived at the conclusion that the impugned decree and judgment is not suffering from any illegality, misreading or non-reading of evidence and has rightly given effect to Ex. OW. 3/1 for fixation of the value of the superstructure of two factories Swabi Marble Corporation and Brekhna Marble Factory. Both these appeals are sereby dismissed except to modify the rate of compensation for the acquired land to Rs. 17,000/- per mada on the strength of judgment reported in PLJ 2000 Peshawar page 259. No order as to costs.

(S.U.H.) , Appeal dismissed.

PLJ 2002 Peshawar 84

Present: sardar'muhammad raza, C.J.

SAMEEN KHAN and others-Petitioners

versus

Haji MIR AZAD etc. -Respondents

C.R. No. 208 of 1996, decided on 1.11.2001.

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

—S. 42-Suit for declaration and possession of land filed after fifty one years of sale of the same by one co-sharer—Sale deed included share of the-other co-sharer who was not present at the time of sale-Plaintiff have come to Court challenging entries of revenue record after delay of fifty one years without of revenue record after delay of fifty one years without being in possession and without proving to have received share of "Batai"from defendants—Suit under Art. 142 of Limitation Act, 1908 was thus, hopelessly time-barred and was rightly dismissed by Appellant Court.

[P.86JA.

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

—S. 42-Joint property sold by one brother-Effect-Posession was passed on to vendees and no case was filed for fifty one years-Vendees qua share of absentee co-shared remained in adverse possession-Vendees having remained in adverse possession qua share of absentee co-sharer, they had matured title to land in question in 1954 and thus, verdict of Supreme-. Court in Maqbool Ahmad's case (1991 SCMR 2063) was not beneficial for plaintiffs because S. 28 of Limitation Act 1908 was declared repugnant to "" injunction of Islam with effect from 31.8.1991—Plaintiff were thus, not entitled to claim title to land in question. - [P. 86] B

1989 SCMR 1563; 1991 SCMR 2063 ref.

Mr. Khan Ghawas Khan,'Advocate for Petitioners. Mr. Muhammad Alam, Advocate for Respondents. Date of hearing : 1.11.2001.

judgment

Sameen Khan and four others, the legal heirs of one Aman Khan of Surkh Dheri, Tehsil and District Mardan, had succeeded in obtaining a decree as prayed for against Haji Mir Azad etc in Civil Suit No. 238/1 from the Court of Civil Judge 1st Class, Mardan on 18-61995. The same was set

aside by the learned District Judge Mardan vide his judgment dated 16-4-1996, non-suiting the plaintiffs, and henee, this revision.

1. The predecessor-in-interest of the petitioners/plaintiffs, namely, Aman Khan and Mir Nawab were two brothers who owned the suit property in equal share. Mutation No. 1398 attested on 20-8.1942 indicates that a property measuring about 35 Kanals 12 Marias was sold by Mir. Nawab in favour of Defendant No. 2 for a sum of Rs. 3000/-. The operative sale included the share of Aman Khan also. The legal heirs of Aman Khan, on 21- 4-1993 brought the instant suit which was decreed by the Civil Judge Mardan but dismissed by the learned District Judge Mardan, as said earlier, on the ground that the suit was hopelessly time-barred.

2. It is proved on record that Aman Khan, the predecessor-ininterest of the plaintiffs/petitioners was not present at the time of attestation of mutation on 20-8-1942 To the contrary, it is proved that the vendees of such mutation has since 20.8.1942 been in continuous physical possession of the property. It is also proved that throughout this period the defendants/ vendees had neither paid any produce to either Mir Mawab or his brother Aman Khan or their legal heirs till the time of institution of suit. Obviously, the real owner should have become alert about the entries in the revenue record. This was more pertinent because they had throughout been out of physical possession without receiving any rent or produce etc.

3. The evidence further indicates that Aman Khan, the predecessor- in-interest of the plaintiffs had remained alive for a period of thirty six years after the attestation of sale mutation without receiving either rent or produce of the property but had not restored to any physical or legal action. It is admitted on record that Aman Khan died as many as fifteen years prior to the institution of suit. Despite this, even his legal heirs did not care to file a suit for title or for possession. Having kept silent for a period of fifty one years, they cannot challenge the consistent entries in the revenue record

4. since the date of sale mutation. Similar situation was faced by the August Supreme Court in Muhammad Hussain vs. Khuda Bakhshs (1989 SCMR 1563). The delay in that case was also of more than fifty years. It was held that the plaintiff therein had no right to challenge such long standing entries in the revenue record. In the instant case, the plaintiffs have come to the Court challenging the entries of revenue record after a delay of fifty one years without being in possession and without proving to have received the share of Bhataifrom the defendants. The suit under Article 142 of the Limitation Act is hopelessly time barred and was rightly determined so by the learned District Judge.

5. It appears from the conduct of the vendor as well as his successors for a long period of fifty one years that the sale was agreed upon by Aman Khan as well regardless of the fact that he was not present at the time of attestation of mutation. Qua the share of Mir Nawab the question of adverse possession is not relevant because the possession t>f the vendee qua his. share is referable to a lawful title. It is settled principle of law that question of adverse possession is not attracted when possession of any person is referable to a lawful title.

6. Qua' the share of Aman Khan, the vendee had remained in adverse possession because, according to the circumstances, he was not present at the time of attestation of mutation. Having remained in adverse possession qua the share of Aman Khan, the vendee had matured title to the b suit land in the year 19"54 and thus the verdict given by the August Supreme Court in Maqbool Ahmad vs. Government of Pakistan (1991 SCMR 2063) is not beneficial for the plaintiffs because Section 28 of the Limitation Act was declared repugnant to the Injunction of Islam with effect from 31-8-1991.

7. Though the defendant had refused the offer of taking oath, yet under Section 12 of the Oaths Act no inference can be taken against such witness.

8. In view of the circumstances, I perfectly agree with the conclusion drawn by the learned District Judge. There being no merit in the revision petition, it is hereby disriiissed with no order as to costs.

(A.A.) . Revision dismissed.

PLJ 2002 Peshawar 86

[D.I. Khan Bench]

Present: ejaz afzai, khan, J.

AMEER and 5 others-Petitioners

versus

YARA and others-Respondents C.R. No. 35 of 2000, decided on 3.12.2001. (i) Muhammadan Law-- .

—Inheritance-Propositus of parties having died, occupancy tenancy of property forming subject matter of dispute was to devolve on his four sons and two daughters-Omission of daughters from inheritence was without any legal or moral justification especially when rule of inheritence at relevant time was Muhammadan Law—Even if daughter of propositus were not in possession of property, possession of other legal heirs being co-sharers would be deemed to be possession on their behalf as well. [P. 88] A, B

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

—Ss. 9 & 115—Jurisdiction of civil Court—Dispute in question, was not between owners and occupancy tenants or between occupancy tenants interse, rather dispute amongst legal heirs of occupancy tenants which can squarely be taken straightaway to civil Court without having recourse to any other proceedings. [P. 88] C

1997 SCMR 338 ref.

Mazhar Alam Khan Mian Khel, Advocate for Petitioners. Amir Muhammad Khan Mian Khel, Advocate for Respondents. Date of hearing: 30.11.2001 and 3.12.2001.

judgment

The petitioners herein who are the legal heirs of Mst. Jaggo, daughter of Ghulam Muhammad alias Ghulama instituted suit for declaration to the effect that she and Mst. Janatan, the predecessor-in-interest of the proforma-respondents being daughters of Ghlam Muhammad alias Ghulama were entitled to inherit the property comprised in the occupancy tenancy left by him and that the Mutation No. 1527 attested on 11-5-1941 omitting their (Sic) against their rights and so are the mutation attested subsequent thereto. The learned trial Court after recording evidence and hearing the parties decreed the suit of the plaintiffs vide its judgment dated 19-5-1996 while appeal their against was allowed and in consequence thereof their suit was dismissed by the learned appellate Court vide its judgment dated 11-10-1999, hence this petition.

1. The only point convassed at the bar by the learned counsel for the petitioners is that the occupancy tenancy was an inheritable right on the demise of Gulam Muhammad alias Ghulam an occupancy tenant; that as the rights comprised in the occupancy tenancy were to be distributed amongst his legal heirs according to the Islamic Law of Inheritance and that omission of the names of the daughters from the mutation was an act against law and as such void ab-initio.

2. As against that the learned counsel for the respondents contended that occupancy tenancy was not inheritable right and that in the case of its conversion into ownership only those persons could make a claim in respect thereof who had been recorded occupancy tenants at the relevant time. He next contended that the predecessor-in-interest of the petitioners were not recorded as occupancy tenants at the relevant time, therefore, they cannot make any claim in respect thereof by instituting a civil suit without getting the relevant record corrected. The learned counsel to support his contention placed reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Missri through legal heirs and others vs. Muhammad Sharif and others (1997 SCMR 338).

3. I have perused the record of the case and considered the submissions of the learned counsel for the parties.

4. It is admitted on the record that Mst. Jaggo and Mst. Janatan were the daughters of late Ghulam Muhammad alias Ghulama, the propositus of the parties, who was an occupancy tenant of the properly forming subject-matter of dispute in this case. On the demise of the propositus which took place somewhere in the year 1941 the occupancy tenancy was to devolve on his four sons, namely, Sohana, Bakhsha, Muhamda and Ahmad and two daughters Mst. Janatan and Mst. Jaggo. The omission of the names of tne daughters of the aforesaid ladies was without any legal or moral Justification especially when the rule of inheritance at the relevant time was Mohammadan Law. Even if they were not in possession of the property, the possession of the other legal heirs who happen to he the co-sharers shall he deemed to be the possession on their behalf as well. It has been setteled by the Hon'ble Supreme Court in the case of Ghulam All and two others vs. Ghulam Sarwar Naqvi (PLD 1990 SC 1) that as soon as an owner dies succession to his property opens and that there is no need of state intervention or the intervention of clergy for passing the title to the legal heirs. Similarly it is also settled that an heir in possession has to he considered to be in constructive possession of the property on behalf of the heirs inspite of his exclusive possession. The possession of the brothers would thus be taken to be the possession of their sisters as well.

5. The learned appellate Court while sitting in judgment on this case failed to have taken notice of the law laid down by the Hon'ble Supreme Court in the case of Ghulam All and two others vs. Ghulam Sarwar Naqvi (supra).

6. As far as the judgment rendered in the case of Missri through legal heirs and others vs. Muhammad Sharif and others (supra) so relied upon by the learned counsel for the respondent is concerned I do not think that has any relevance to the instant case because in that case the names of the predecessors-in-interest of'the petitioners therein were omitted as co- occupancy tenant at the time of the preparation of the record of rights of 1904-05, while in the case before this Court though the name of the occupancy tenant, the propositus of the parties was recorded in the periodical records but on his demise the names of his daughters were omitted from the inheritance mutation without any legal and moral justification, more so when the rule of inheritance was the Mohammadan rather than the customary law. Moreover, the dispute herein is not between the owners and the occupancy tenants or between the occupancy tenants, inter se, it is, rather a dispute amongst the legal heirs of a occupancy to which can squarely be taken straightaway to the Civil Court without having recourse to any -other proceedings. For the foregoing reasons the judgment and decree of the learned appellate Court are set aside and those of the learned trial Court are restored. However, in the circumstances of the case I would made no order as to costs.

(A.P.) ' Order accordingly.

PLJ 2002 Peshawar89 [D.I. Khan Bench]

Present: ejaz afzal khan, J.

Mst. RAZIA SULTANA and two others-Petitioners

versus

CHAIRMAN, E.T.P. BOARD, LAHORE and 13 others-Respondents

C.M. No. 3 of 2001 in re : W.P. No. 2 of 2000, decided on 19.2.2002.

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

—-Ss. 8 & 10-Constitution of Pakistan (1973), Ait. 199-Taking over property in question, by Evacuee Trust Board-Legality-Impugned order was passed at the back of petitioners without giving them opportunity of being proceeded against is not a formality but a requirement of law to inform him about proceedings pending before a Court, tribunal or persona desigiiata and to provide him opportunity to vindicate his position and voice its point of view about the matter forming subject matter of proceeding before it-Order in question, being in violation of principles of natural justice was nullity and not sustainable in law. [P. 90] A

(ii) Evacuee Trust Property (Management and Disposal) Act,<1975 (XIII of 1975)--

—Constitution of Pakistan (1973), Art. 199-Remedy of revision available to petitioner-Constitutional petition whether competent^ in presence of remedy of revision-Remedy of revision before Federal Government was neither effective nor adequate in as much as, persons authorized to decide such revision were prove to be influenced by the Department and thus, incapable of infusing confidence into the minds of litigants that their grievances have been dealt with adequately, fairly, justly and in accordance with law-Order in question, being not sustainable in law was set aside and case was remanded for decision afresh in accordance with law. [P. 93] B

PLD 1991 Lahore 33; PLD 1964 SC 236; 2000 SCMR 1 ref.

Dost Muhammad Khan, Advocate for Petitioners. GoharZaman Khan Kundi, Advocate for Respondents. Date of hearing: 19.2.2002.

judgment

A reference under Sections 8 and 10 of the Evacuee Trust Property (Management and Disposal) Act XIII of 1975 was filed before the Chairman, Evacuee Trust Property Board, Government of Pakistan, Lahore by the Assistant Administrator, Evacuee Trust Property, Bannu with the prayer

that the property comprised in KhasraNo. 590 situated in Mauza Fatimakhel Kalan Tehsil and District Bannu be declared as Evacuee Trust .Property and its allotment from the names of the original allottee and the subsequent transferees be cancelled, which was accepted by the learned Chairman in terms of prayer vide his order dated 4-12-1998.

1. The petitioners on getting an inkling about the impugned order filed a revision petition on 14-2-1999 before the Federal Government but when sensed that it could not be an adequate remedy in the circumstances of the case, invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The learned counsel for the petitioners mainly contended that the petitioners were proceeded against ex pa-rte and were thus condemned unheard without having been given an option of hearing and that though the petitioners have filed a revision petition before the Federal Government but as it is by'no means an adequate remedy in the circumstances of the case a recourse was had to the Constitutional jurisdiction of this Cort. The learned counsel in this behalf placed reliance on the case of Rauf Ahmad vs.Secretary to the Government of Pakistan, Ministry of Religious and Miniority Affairs, Islamabad and 9 others (PLD 1991 Lahore 33).

2. The learned counsel for the respondent while defending the impugned order argued that the petitioners were served through publication in the News Paper and that when the petitioners have already filed a revision petition under Section 17 of the Act before the Secretary, Ministry of Religious and Miniority Affairs which is, by all means an adequate remedy this petition is liable to be dismissed. I have gone through the entire record and carefully evaluated the contentions of the learned counsel for the parties.

3. A perusal of the record would unmistakably indicate that the impugned order was passed at the back of the petitioners without giving them an opportunity of being heard. There is absolutely nothing on the relevant record of the Board to show that the petitioners were served by any means whatever. It appears that the learned Chairman was under the impression that service on the petitioners was just a formility and once it was fulfilled he was free to pass any order he liked. But it may be pointed out that the purpose behind effecting service of a party being proceeded against is not a formality but a requirement of law to inform him about a proceeding pending before a Court, tribunal or persona designata and to provide him an opportunity to vindicate his position and voice its point of view about the matter forming the subject-matter of proceeding before it or him as the case may be. This is, what is envisaged by the celebrated principle of natural justice i.e. audi alterm partem. Where an order was passed against a party, as in this case, without complying with this fundamental principle it would be just a nullity and nonentity notwithstanding the fact that the proceedings resulting in the order were sacred and sacrosanct par excellence.

4. The argument of the learned counsel for the respondents that when a revision petition, which according to him, is by all means an adequate remedy, has been filed by the petitioners under Section 17 of the Act the instant Constitutional petition is liable to dismissed in incorrect and unconscionable altogether. How the Secretary of the Government who is a functionary and a part and parcel of the department can become a judge in his own cause and how a remedy of a revision can be held to an adequate when, it is not heard by an independent impartial and non-partisan forum, has already been commented upon in almost similar situation by the Honourable Supreme Court in the case of Ataullah Malik, vs. Custodian Evacuee Property West Pakistan and Karachi and others (PLD 1964 SC 236) in the following words:

"There is no question at all that the Custodian of Evacuee Property is not constituted as a Court. The functions which he performs in respect of appeals and revisions generally follow the procedure and . principles applicable to judicial proceedings. But in one most important aspect, they fall short of being fully judicial, namely, that the Custodian is required to decide questions raised as to the ownership of, and all vested in the Custodian, by operation of law. The Custodian is made a judge in his own cause in respect of such proceedings, and this position is not affected by the consideration that the vesting is in the Custodian not as a person but as a corporation sole, in whom the evacuee property is vested to be applied to specified uses, in particular, the rehabilitation of the vest flood (of) refugees. The Custodian in.his official capacity has a real interest in the properties so vested in him to preserve against claims by persons other than refugees. Experience shows that in the vast majority of cases, that interest has not been lightly parted with. Consequently, the Custodian does not satisfy one essential requirement of a Judge in respect of the proceedings which come before him affecting evacuee property vested in him, and those proceedings could at best be claimed to be merely quasi-judicial."

1. In the case of Rauf Ahmad vs. Secretary to the Government of Pakistan, Ministry of Religious and Minorities Affairs, Islamabad and 9 others supra this aspect of the case was dealt with in the following words which read as under:--

"The proceedings held for deciding aforesaid qiiestions are more of the nature of inquisitory proceedings and not adversary proceedings as in these proceedings firstly the Chairman and then the Secretary being the judges in their own cause, act as a matter of exception to the general rule that no one can be judge of his own cause. These officers as such are not arbiters between the two parties litigating over a 'lis but the officers holding inquisitory proceedings. An arbiter in adversary proceeding grants liberty to the parties to produce whatever evidence they may like to produce in support of their

respective claims whereas the Presiding Officer of inquisitory proceedings, in addition to allowing the parties or persons interested in the matter to produce the evidence of their own choice is duty bound to collect material and the evidence relevant and pertaining to the matter under inquiry of his own if all the available evidence has not been produced during the inquiry. This difference in the inquisitory proceedings and adversary proceedings is apparent and well established. The officer presiding over the inquisitory proceedings would be failing in his duty if he bases his decision on the evidence produced by the, parties alone when the relevant evidence which could be made available and examined, was kept out of consideration observing that the same was not produced by the parties themselves before him."

1. Once again in the case of Federation of Pakistan us. Iftikharuddin and another (2000 SCMR 1) the Honourable Supreme Court after considering the adequacy of remedy of revision directed the Government to suitably amend the Act in the following paragraph which is reproduced as under:

"The providing of right of appeal against order of the Chairman passed under Section 8 of the Act XIII of 1975 should have been provided to comply with the requirements of principles of administration of justice in Islam as immunity sought to be granted to such an order any providing an inadequate remedy of revision would be" repugnant to the injunctions of Islam. The appellant is accordingly directed to suitably amend the Evacuee Trust Property (Management and Disposal Act, 1975 (Act XIII of 1975) by inserting a provision providing right of appeal against the order passed by the Chairman under Section 8 of the Act XIII of 1975. Such an appeal can be provided to lie before the High Court in line with the recourse adopted in the Displaced . Persons (Compensation and Rehabilitation) Act, 1958 and the Displaced Persons (Land Settlement) Act, 1958. If the declaration as to the nature of the property made by the Chief Settlement Commissioner and later by the Chairman could be made scrutable through an appeal to the High Court, no possible objection can be raised to the providing of the same remedy now under Act XIII of 1975. It is also to be noted that against the orders passed on other matter by the officer appointed by the Board, appeal has been provided to the higher officers of the hierarchy including the Chairman and against orders so passed the revision lie to the Federal Government. The said course of action can continue as before, as final order so passed is further assailable before the High Court by invoking the Constitutional jurisdiction vesting in it under Article 199 of the Constitution and further petition for leave to appeal before the Supreme court under Article 185 of the Constitution of Islamic

Republic of Pakistan, 1973. The remedies, so provided, considering the nature of the legislature are in such matters sufficient and adequate. The amendment directed in the above terms shall be made in Act XIII of 1975 by the appellant by the 30th July, 1999."

1. When the arguments of the learned counsel for the respondents are considered in the light of the foregoing discussion- and the above quoted paragraphs I have no hesitation to hold that remedy of revision- to the Federal Government is neither effective nor adequate as the Secretary or the Additional Secretary hearing and deciding these revisions are prone to be influenced by the department and are thus incapable of infusing confidence into the minds of the litigants' that their grievances have been dealt with adequately, fairly, justly and in accordance with law.

As a sequel to what has been discussed above this petition is allowed, the impugned order is set aside and the case is remanded to the learned Chairman for decision afresh in accordance with law. In the circumstances of the case no order is made as to costs.

(A.A.) Petition allowed.

PLJ 2002 Peshawar 93

[Circuit Bench Abbottabad]

Present: sardar muhammad raza, C.J

. Mst. SAMINA GUL-Applicant

versus

ZAINAB DIN-Respondent , T.A. No. 24 of 2001, decided on 12.10.2001. Family Courts Act, 1964 (XXXV of 1964)--'

—-S. 25-A--Civil Procedure Code (V of 1908), S. 23(3)-High Court can transfer family suit only when the two suits i.e. one filed by husband and the other filed by wife were pending in Court located within the territorial limits of such High Court—Where one suit was pending within the jurisdiction of another High Court then Supreme Court can transfer such suit—When, however, two civil suits were pending within territorial jurisdiction of two different High Courts, then transfer application should be moved in the High Court from whose jurisdiction civil suit was sought to be transferred-Petitioner's application for transfer of family suit from the Family Court located outside the jurisdiction of High Court being not maintainable was rejected. [Pp. 94 & 95] A, B

PLD 1995 Lahore 198 ref.

Mr. Saleh Mehmud, Advocate for Applicant.

Mr. Sher Bahadur Khan, Advocate for Respondent.

Date of hearing: 12.10.2001.

judgment

By this application Mst. Samina Gul, admittedly belonging to Haripur, has sought the transfer of a family suit # 7/FC/2001 filed before Judge Family Court Tando Ala Y.ar (Sindh) by her husband Zainab Din, to Haripur .(NWFP) where, she had already lodged a suit # ll/FC/2001 for dower, maintenance and dowery gifts etc. Apart from consolidation of .the suits, the prime consideration for transfer is the convenience of lady.

1. After hearing the learned counsel on either side and also a brother of the respondent-husband, I have come to a definite conclusion that the husband Zainab Din originally belongs to Pindi Ghaib (Punjab), that he is presently working at Abu Dhabi, that his marriage had taken place in Pindi Ghaib and that he had, for a short time, been living at Tando Ala Yar with her married sister. I am also convinced that while presently living at Abu Dhabi, he could have had brought his suit for return of marriage gifts, at the most at Pindi Ghaib, where he belongs. His suit at Tando Ala Yar where he neither resides nor belongs, is a matter of utter mala fides and nothing but to harass his divorced wife. This was about the conduct of the husband.

3.. So far as the law is concerned, both the suits are family suits and hence Section 25-A of the Family Courts Act, 1964 would be attracted, the plain reading whereof would indicate that a High Court can order the transfer of such cases only when the two Courts are located within its own territorial jurisdiction.

1. Anyhow, Section 23 (3) of the CPC is brought under discussion where one High Court can transfer a civil suit from its jurisdiction to the jurisdiction of another High Court but in that case the transfer application should be moved in the High Court from whose jurisdiction the civil suit is sought to be transferred. Had the suit sought to be transferred in the instant case been a civil suit, the jurisdiction to transfer such case would have been vested in the Sindh High Court. I believe, that the Civil Procedure Code, being a federal law and the West Pakistan Family Courts Act, being Provincial Law, the provisions of CPC would not be applicable. If the provisions of Section 25-A of the Family Courts Act are made applicable, in my humble view, the jurisdiction to transfer the cases would vest obviously, in the Hon'ble Supreme Court.

5.Mst. Bakht Shada versus Mansab Dar (PLD 1995 Lahore 198), a judgment of the single Bench was produced where the Hon'ble Judge, despite having drawn a clear distinction between the jurisdiction of the High Court u/s 25-A of the Family Courts Act and under Section 23(3) of the CPC, had transferred a family suit from Punjab to NWFP purely on humanitarian grounds and expedience. I very humbly differ from such findings because once the very jurisdiction is lacking, it cannot be assumed on any ground whatsoever.

1. The present applicant-lady had once, of course, gone to the Supreme Court but on 21,2.2001 her application with reference to Article 186-A of the Constitution, was returned, but by Assistant Registrar of the Supreme Court. 1 believe, that the applicant under Supreme Court Rules should have moved the Hon'ble Supreme Court for hearing against such order dated 21.2.2001 of the Assistant Registrar Supreme Court. There is another aspect of the case as well. The plaint of suit at Tando Ala Yar, though is not filed with the instant transfer application but front arguments of the -parties, it appear that such suit, certainly after divorce, has been filed for the return of marriage gifts, allegedly given by the. husband to his wife at the time of marriage. The schedule to the West Pakistan Family Courts Act, as amended uptodate, does not include marriage gifts to be the subject matter of dispute with reference,to Section 5 of the Act. In my view, the suit at Tando Ala Yar has to be a civil suit and in case it is so, the jurisdiction to transfer such-suit u/s 23 (3) CPC, would vest in Sindh High Court.

2. Consequently, while rejecting the application, it is remarked that, if advised, the petitioner lady should move the August Supreme Court, as alluded to above, and if the suit of the husband happens to be a civil suit, she should move Sindh High Court.

(A.P.) Application rejected.

PLJ 2002 Peshawar 97

Present:SHAHZAD AKBAR KHAN, J.

MUHAMMAD YOUNAS-Petitioner

versus

Mst. MEHR AFZOON-Respondent

C.R. No. 187 of 1994, decided on 25.1.2002.

(i) North West Frontier Province Pre-emption Act, 1987 (IX of 1987)--

—S. 13"Ta/&-i-/sMacf--Ingredients of—Mode of sending notice-Ingredients of talb-i-ishhad are, that notice must be sent as soon as possible after talb-i-muivathibatbut not later than two weeks; that notice must be in writing; Notice in question, must be attested by two truthful witnesses; and such notice must be sent under registered cover acknowledgment due-Sending of notice with such ingredients is imperative-Pre-emptor would be bound to prove factum of sending of such notice to vendee- Where pre-emptor had succeeded in establishing that he had sent notice of talb-i-Ishhad to render in terms of S. 13(3) such would be substantial compliance of legal requirement. [P. 101] A

(ii) North West Frontier Province Pre-emption Act, 1987 (X of 1987)--

—S. 13—Evidence on record abundantly proved that notice of talb-i-Ishhad was served on petitioner and the same was sufficient compliance of S. 13 (5) of the Act, impugned judgment and decree of Appellate Court does not suffer from any legal infirmity of the nature of misreading or non- reading of evidence, [P. 105] B

(iii) North West Frontier Province Pre-emption Act, 1987 (X of 1987)--

—-S. 13-Finding on talb-i-muwathibatrendered against defendant (petitioner) was neither challenged by defendants by filing appeal or in cross-objections-Such finding have attained finality could not be challenged in revision. [P. 105] C

(iv) North West Frontier Province Pre-emption Act, 1987 (X of

1987)--

—S. 13-Value of land in question as determined by Courts below assailed--Value of land incorporated in sale-deed plus registration fee was substituted in place of '?alue of land determined by Appellate Court and plaintiffs suit was decreed in terms of value determined by Court.

[P. 105] D

1999 SCMR 724; 1992 SCMR 1780; 1999 SCMR 719; PLD 1994 SC 1; PLD 1980 SC 360 ref.

Mr. Muhammad Younas Khan Tanoli, Advocate for Petitioner. Malik Abdul Jalil, Advocate for Respondent. Date of hearing: 25.1.2002.

judgment

The instant revision petition has been filed to call in question the judgment and decree dated 22.2.1994 passed by the learned District Judge, Haripur whereby he while reversing the finding of learned, Senior Civil Judge, Haripur in civil Suit No. 483/1 set aside the judgment and decree dated 1.3.1993 which was passed in favour of the petitioner and the suit of the respondent was decreed.

1. The breviate of the matter is that Mst. Mehr Afzoon respondent had filed a suit for the enforcement of her pre-emptive rights over a land measuring 1 Kanal J. Maria fully described in the heading of the plaint. The sale transaction covered by the Registered Deed No. 1623 attested on 18.10.1989 was subjected to the right of pre-emption by the respondent. The suit was contested by filing the written statements and the pleadings of the parties' generated as many as 10 issues including the relief. The parties adduced their evidence as they willed and ultimately the suit of the respondent was dismissed by the learned trial Court chiefly on the point that 'talb-e-Ishhad'was not proved according to law. The impugned judgment and decree of the learned trial Court was assailed by way of an appeal before the learned District Judge, Haripur which was accepted on 22.2.1994 by setting aside the judgment and decree of the trial Court and the suit of the respondent was decreed on payment of Rs. 5306.86. Now the judgment of

the learned appellate court was brought under attack through the instant civil revision. It may be mentioned that the learned trial Court after discussing the evidence on the points of 'talb-e-muwathibat'and 'tabl-e-ishhad' recorded his findings that the plaintiff-respondent had successfully proved the making of 'talb-e-muwathibat' but 'talb-e-ishhad' was not proved. The petitioner was satisfied with the judgment of the trial Court and did not file any cross-objection/appeal for challenging the findings of the learned trial Court on the question of 'talb-e-muwathibat' rendered in favour of the respondent.

1. The learned counsel appearing in support'of the revision petition has argued that the learned appellate Court had committed legal error in giving its findings to the effect that the respondent has successfully proved the making of 'talb-e-ishhad'and in this regard the evidence was not properly appreciated by the learned appellate Court resulting into the miscarriage of justice. He urged that since the respondent had not produced the original of notice of'talb-e-ishhad' and had only produced the photo-state copy of the notice without obtaining prior permission from the trial Court in terms of Articles 76 and 77 of the Qanun-e-Shahadat, 1984, therefore, it cannot be said that the essential requirement of 'talb-e-ishhad' was properly carried out by the respondent. He also urged that the respondent did not personally enter the witness box to record her statement. If she had appeared personally there was every likelihood that her testimony could have been shattered through cross-examination by the petitioner. The learned counsel also faintly attacked the making of 'talb-e-muwathibaf by contending that the findings of the learned trial Court on the question of 'talb-e-muwathibat' were the outcome of misappreciation and non- appreciation of the evidence while folding up his argument the learned counsel contended that in case his submissions could not find favour with the Court then his request for the payment of full sale consideration and the amount of expenses in the form of stamp papers, registration fee and District Council tax amounting to Rs. 1950/- plus Rs. 15,000/- of the sale price be given to the petitioner by this Court. On the other hand, the learned counsel for the respondent has defended^the judgment of trial Court on grounds mentioned therein. The provision of law which governs the subject of 'talabs' is Section 13 of the NWFP pre-emption Act, 1987 the relevant segments whereof are as follow which being relevant for the purpose of this judgment is reproduced below: -

"13. Demand of pre-emption, (1) The right of pre-emption of .a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:-

talb-i-muwathibat;

talb-i-ishhad and

Explanations:

1. Talb-i-muwathibat means...

Talb-i-ishhad....................

Talb-i-Khusumat..............

(2)..........................

(3) (subject to his ability to do so, where) a Pre-emptor has made talb-e-muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under Section 32, or knowledge whichever may be earlier make talb- . i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption.

Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make talb-i-ishhad in the presence of two truthful witnesses."

1. The three demands envisaged by the above provision of law have their own respective connotations. The first demand, i.e. talb-i-muwathibat is also called.a jumping demand which is to be made by prospective pre-emptor without loss of any time in the very 'Majlis'/sitting in which he gets the knowledge of sale. The philosophy behind this demand is that it is a test for determining the originality and self existent urge of the pre-emptor and to determine that the action brought in Court in form of 'talb-e-khusumuat' is not the outcome of any foreign element of pursuation, avarice or any other consideration extraneous to the lawful object of pre-emption. Thus the expression of his intention to pre-empt a sale is rather contemporaneous with the knowledge of sale. Then 'talb-e-ishhad,is meant to create evidence of the intention of the pre-emptor to file a suit for the enforcement of his pre­emptive rights. This is to be done by way of sending of notice in writing attested by two truthful witnesses under registered cover acknowledgment due to the vendee confirming his (pre-emptor's) intention to exercise the right of pre-emption as envisaged by sub-section 3 of Section 13 of the NWFP Pre-emption Act. The Legislature has veiy significantly added a proviso to the above section which is intended to tackle a situation where .due to want of postal facility the sending of registered notice by the pre-emptor is impossible. In such a situation the law permits the making of 'talb-e-ishhad' in an .oral form in presence of two truthful witnesses. In other words the making of oral 'talb-e-ishhad' is also regarded as proper compliance of the requisite Talb. It thus follows that the sending of a written notice through postal service is not the only mode of making of 'talb-e-ishhad1 but oral demand in presence of two truthful witnesses re-enforcing his earlier intention of 'talb-muwathibat' by-t'he prospective pre-emptor is also a valid mode of 'talb-e-ishhad'' as an alternative, of course, subject to the condition of non-availability of the postal facilities.

2. The ingredients of 'talb-e-ishhqd' provided by sub-section 3 are:- That the notice must be sent as soon as possible after 'talb-e-muwathibat' but not later than two weeks; that the notice must be in writing; that it must be attested by two truthful witnesses, and

It must be sent under registered cover acknowledgement due.

The language of sub-section 3 clearly suggests that it is the sending of a notice. With the above ingredient which is imperative and consequently the pre-emptor would be bound to prove the factum of sending of such notice to the vendee. Thus if the pre-emptor succeeds in establishing the fact that he has sent the notice of 'talb-e-ishhad' to the vendee in terms of sub-section (3) ibid it shall be a substantial compliance of the legal requirement.

1. The Honourable Supreme Court has exhaustively dealt with the question of substantial compliance of sub-section 3 of Section 13 of the Punjab pre-emption Act, 1991 in case of Muhammad Gul vs. Mir Afzal 1999 SCMR 724 wherein the case of 'Mir Sahib Khan vs. Muhammad RaufKhan' 1992 SCMR 1780 on the point of 'interpretation of Section 13 of the NWFP Pre-emption Act, 1987 being identical to Section 13 of the punjab Pre­ emption Act of 1991, was thoroughly discussed. The concluding part being relevant is reproduced as follows:-

"In the case before us Muhammad Afzal respondent, when appeared before the trial Court stated on oath as follows:

The above statement of respondent on oath coupled with the written notice sent to the appellant within 10 days of the 'Talb-i-Muwathibaf substantially complied the legal requirement of Section 13(3) of punjab pre-emption Act, 1991, We, therefore, find no substance in these appeals which are, accordingly dismissed. There will, however, be no order as to costs in the circumstances of the cases."

1. Another case captioned as "Abdul Malik vs. Muhammad Latif 1999 S.C.M.R. 717 is also on the same subject. This was also a case of pre-, emption in which the pre-emptor had served the vendee with a notice making 'talb-e-ishhad'. He was, however, non-suited on the ground that the notice was not attested by two truthful witnesses. In the cited judgment a passage from the case of 'Haji Rana Muhammad Shabbir Khan vs Government of Punjab' PLD 1994 S.C. 1, was quoted as followsr-

"We have found that the point raised by the appellant has been duly taken care of by the Federal Shariat Court in its judgment. It is true that the notice is not a necessary ingredient of Talb-i-ishhad,but it is evident that this is only a procedural matter to facilitate the proper process of filing a suit of pre-emption which does not, in any way, affect the basic right of pre-emption. Procedural provisions may vary from time to time according to the expediency and in so far as they do not violate any injunction of Islam they cannot be held repugnant to the Holy Qur'an and Sunnah."

and-thereafter it was observed as follow

"It may be mentioned here that in the case of Haji Rana Muhammad Shabbir Ahmad Khan, (supra), various provisions including Section 13(3) contained in the Act were challenged as being contrary to the •Injunctions of Islam. The observation referred to above and relied upon by the learned counsel for the appellant were made by the learned Judge with reference to the contention raised before the court regarding the vires and validity of the legislation. No doubt this Court upheld the validity of Section 13(3) of the Act on the ground that it is not opposed to the Injunctions of Islam but the observations referred to above do show that the provisions of Section 13(3) of the Act relating to service of notice of Talb-i-Ishhad were held to be procedural provisions which in our view could not be considered as mandatory so as to result in non-suiting the appellant on the ground of its non-compliance. As observed by this Court in Haji Rana Muhammad Shabbir Ahmad Khan's case the performance of Talab-i-Ishhad being a procedural matter io facilitate the proper process of filing a suit its non-performance in the manner stated in Section 13(3) of the Act could not affect the basic right of pre-emption of a party. The facts showing substantial compliance of the provision of Section 13(3) would be enough to sustain the suit for pre-emption! This conclusion finds support from the second proviso to sub-section (3) of Section 13 of the Act which provides that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give, registered notice, the Talb-i-ishhad could be made orally in presence of the two truthful witnesses."

It was finally held in the following terms:-

"We, accordingly, hold that the service of the registered notice by the appellant containing the names of the two truthful witnesses before whom Talb-i-Ishhad was allegedly made amounted to substantial compliance of the provisions of Section 13(3) of the Act and, therefore, he could not be. non-suited on the ground, that the notice served on the respondent containing Talab-i-Ishhadwas not attested by the two truthful witnesses whose names are disclosed in the notice."

1. In case of 'Law Department us Malik Said Kamal Shah' PLD 1986 S.C. 360 at Page 401 the following observations regarding 'Talab-Taqreer' are also relevant:-

1. In case of 'Muhammad Gul' (supra) the text of then notice of 'talb-e-ishhad' has been reproduced which indicates that the photo-stat copies of notice of 'talb-e-ishhad'were obtained and were sent to the defendant-vendee and the receipts were produce as Ex. 1-P1 to Ex. 1-P3 and it was held that the statement of pre-emptor on oath with the written notice sent to the vendee (appellant) within 10 days of the 'talb-i-muwathibat' was a substantial compliance of the legal requirement of Section 13(3) of Punjab pre-emption Act. In case of 'Abdul Malik' it was held that the provisions of law regarding notice of 'talb-i-ishhad' were procedural provisions which could not be considered as mandatory so as to result in non-suiting the vendor on the ground of its non-compliance and by making a reference to the case of 'Haji Rana Muhammad Bashir Ahmad Khan' (supra)it was held that performance of 'talb-i-ishhad'being a procedural matter to facilitate the proper process of filing a suit its non-performance in the manner stated in Section 13(3) of the Act could .not affect the basic right of pre-emption of a party and the facts showing substantial compliance of the provision of Section 13(3) would be enough to sustain the suit for pre-emption. Even a notice without attestation was accepted as compliance of Section 13(3) of the Act.

2. From the above survety of case law and addition in the form of proviso to sub-section (3) it becomes clear that the sending of a notice of 'talb^i-ishhad' is a procedural matter to facilitate the proper process of filing a suit of pre-emption. Thus in the light of the above explained position it becomes clear that the Court shall have to look whether a substantial compliance of sub-section 3 has been made or not.

3. In case before me notice of ltalb-i-ishhad'was sent to the petitioner and in support of the said notice the .statement of P.W. Muhammad Saeed Branch Sub-Post Master and the two attesting witnesses, namely, Matloob Hussain and Muhammad Sabir were recorded. P.W. Muhammad Saeed stated that Ex.P.W. 2/1 is the original acknowledgment due card which was delivered to Muhammad Younas (petitioner on 2.11.1989 while both the attesting witnesses stated that they were marginal witnesses to the original of Ex. P.W. 4/1. On the comparison of the signature of petitioner on A.D. Card with his signature on the written statement the learned appellate Court formulated a valid opinion that the petitioner had received a registered letter containing the original of Ex. P.W. 4/1. It is obvious that the original of the notice was sent to the petitioner from whom A.D. Card was received back and it was proved through P.W. Muhammad Saeed Sub-Post Master that the petitioner had received the notice, therefore, in such circumstances the demand that the plaintiff should have produced the original notice is totally uncalled for. In view of the evidence of the attesting witnesses and the evidence in the form of statement of Muhammad Saeed Sub-Post Master it is abundantly proved that the notice was served on the petitioner and it was a sufficient compliance of sub-section (3) of Section 13 of the Act ibid. Under the circumstances no exception can be taken of the impugned judgment and decree as it does not suffer from any legal infirmity of the nature of misreading and non-reading judgment and decree at it doe snot suffer from any legal infirmity,, of the nature of misreading and non-reading of evidence.

4. The arguments of the learned counsel that 'talb-i-muwathibat'was not proved can be repelled on the ground that such findings were recorded by the trial Court and were not challenged before the appellate Court by the petitioner, therefore, at this stage such like arguments are not available to the learned counsel for the petitioner. In answer to the arguments of the learned counsel that the respondent had not personally entered into the witness box I may say that the law permits a litigant to be represented through the appointed attorney. In the instant case the statement of the attorney was recorded and no request was made by the defendant-petitioner for the appearance of the respondent in person. The request of the learned counsel for the petitioner qua the actual sale price, i.e. Rs. 15,000/- plus the expenses is not opposed by the learned counsel for respondent. However, the impugned judgment of the learned District Judge indicates that he has already awarded to petitioner the amount of stamp papers and the District Council fee, i.e. Rs. 1050/- and Rs. 450/- respectively. The value of land was, however, fixed as Rs. 3856.86 and the Registration Fee of Rs. 450/- was not given. I, therefore, order that the value of the land is fixed Rs. 15,000/- and registration fee at Rs. 450/- shall be payable by the respondent. Thus a total amount of Rs. 1690/- shall also be paid to petitioner. If Rs. 15.000/- have already been deposited by respondent then he shall deposit the balance amount of Rs. 1950/- within two months. In the light of above discussion with variation of the amount, this civil revision is dismissed.

(A.A.) Order accordingly.D

PLJ 2002 Peshawar 106

Present: TALAAT QAYYUM QURESHI, J.

MUHAMMAD NAZEEF KHAN and others-Petitioner

versus

Mst. MUMTAZ BEGUM-Respondent C.R. No. 230 of 1998, decided on 29.4.2002

(i) Civil Procedure Code (V of 1908)—

—S. 2 (2)-Decree-Plaintiff failed to prove that defendants were tenant under her-Plaintiffs entitlement of decree-Plaintiff although could not prove that she had inducted defendants in house in question as her tenant, yet she successfully proved her ownership of house-Plaintiff therefore, was entitled for grant of decree for possession. [P 110] C

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

—S. US-Specific Relief Act (V of 1877), S. 42~Plaintiff proved her ownership relating to property in question, on of cogent and reliable oral and documentary evidence-Defendants failed to rebut such evidence-­ Findings of Appellate Court decreeing plaintiffs suit were just, proper and based on proper appreciation of evidence and law applicable thereto~No misreading or non-reading of evidence nor jurisdictional error in Appellate Courts judgment was found or pointed out so as to justify interference therein. , [P 111] D

(iii) Practice and Procedure--

—Plea-Mode of proof-Plea has to be taken in pleading before the same can be allowed to be proved—Where plea has not been taken in pleadings, party failing to take such plea would not be allowed to lead evidence in support thereof and even if some evidence was allowed same would not

• be looked into [P 109]A

(iv) West Pakistan Land Revenue Act (XVII of 1967)—

—S. 39—Entries in record of rights-Strong pieces of evidence in support of persons title to immovable property such entries ought to be relied upon in absence of satisfactory evidence in rebuttal produced by opposite party.

[P110]B

1998 SCMR 593; 2001 CLC 1059; 2000 CLC 623; 1997 CLC 1971; AIR 1926 Sindh 98 and 27 M.L.J. 475 ref.

Mr. Muhammad Amin Khattdk for petitioners. Mr. Ziaur-Rehman Advocate for respondent

Date of hearing: 29.4.2002

judgment

Mst. Mumtaz Begum, respondent/plaintiff filed suit against the petitioners/defendants in the Court of Civil Judge Charsadda for possession of a house described in the heading of the plaint. She also prayed for grant of decree, for recovery of Rs. 3,000/- price of Khahshora from 1985 to 1987 against the petitioners/defendants. The suit was resisted by the petitioners/ defendants by filing written statement. The learned trial Court after framing as many as 11 issues dismissed the suit vide judgment and decree dated 13.5.1996. Being aggrieved with the said judgment and decree, she filed Appeal No. 184/13 of 1996. The appeal was accepted vide judgment and decree dated 9.3.1998 and the suit filed by the respondent/plaintiff was decreed in her favour to the extent of relief "Alif. Being aggrieved with the said judgments and decrees, the petitioners have filed the revision petition in hand.

1. Mr. Muhammad Amin Khattak, the learned counsel for the petitioners argued that the petitioners had proved through cogent evidence that they were in possession of the house in dispute for the last 30/40 years as owners and there is no evidence on record to show that the house in dispute was constructed by Sarfaraz Khan, father-in-law of Mst. Mumtaz Begum plaintiff/respondent.

2. There is nothing on record to indicate that the petitioners were inducted in the house as tenants on payment of Khakshora. In fact Sarfaraz Khan and Nazeef Khan, Petitioner No. 1 are real brothers and it cannot be imagined that daughter-in-law of one brother would induct the other brother in house as tenant on payment of Khakshora. The Courts below have concurrently held that respondent/plaintiff has failed to prove this fact. It was also argued that entries made in the revenue record would confer no title upon a person because such entries are made for fiscal purposes. Except the statement of Patwari Halqa there is nothing on record to prove title of Mst. Mumtaz Begum. 5. On the other hand Mr.. Ziaur Rehman, Advocate the learned counsel for the respondent argued that the respondent/plaintiff has proved the ownership of house in dispute. In fact Sarfaraz Khan father-in-law of Mst. Mumtaz Begum, respondent/plaintiff was the owner of land comprising Khasra No.

3. He alienated the side land in favour of his wife Mst. Sari Jana vide Mutation No. 1973 dated 7.11.1955. She further transferred her share in the name of her son Faqir Jan vide Mutation 2793 attested on 14.3.1974 Ex. P.W. 1/8, who transferred the said land in the name of Mst. Mumtaz Begum, his wife vide Mutation No. 2797 attested on 14.3.1974 Ex. P.W. 1/9. In the subsequent Jamabandies Ex. D.W. 1/D-l Mst. Mumtaz Begum has been shown as owner. Khasra Girdawaries (Ex. C.W. 1/7) which pertains to the year Kharif 1983 to Kharif1994 show that Mst. Mumtaz Begum was the owner in possession of the dispute property. Haji Bahadur P.W. 1 and Muhammad Tahir Patwarie Halqa Utmanzai was examined as P.W. 1 affirmed the above position in their statements recorded in Court. Muhammad Nazeef Petitioner No. 1 had nothing to do with the property in dispute and he was not co-owner for the said property.. It was further argued that the petitioners placed on record the documents regarding the property situated at Anwar Kallay which shows that Sarfaraz Khan and Muhammad Nazeef were co-sharers in the said Mauza and the learned trial Court was influenced by the said record and it was presumed that since the above named brothers are co-owners in Mauza Anwar Kallay, therefore, they would be co-owners in Mauza Utmanzai also. The crucial question, it was argued, in this case is that the relationship of landlord and tenant exists between the parties or not.

The learned counsel argued that Muhammad Nazeef Petitioner No. 1 in his written statement filed on 3.11.1988, did not take up the plea that he had transferred the suit property in the name of Mst. Sultana, his wife. Subsequently while filing amended written statement, he took up the plea that the house in dispute stood transferred to Mst. Sultana in lieu of her dower, But Mst . Sultana when examined as D.W. 4 put up new plea in Which she admitted that Mst. Sari Jana was owner to the half extent of the suit property and that her husband got her share in exchange which pleas were never taken up by both the defendants in written statement. Muhammad Nazeef when examined as D.W. 2 did not take up the plea that he had acquired the property in dispute through exchange. 9. I have heard the learned counsel for the parties and perused the record.

1. In order to prove her case, the plaintiff examined Haji Bahader Khan Patwari Halqa Mauza Utmanzai, who appeared as P.W. 1 and placed on record Fard Jamabandi for the years 1977-1978 and 1982-1983 in respect of Khasra No. 1196. The same were exhibited as Ex. P.W. l/l/ and Ex. P.W. 1/2. He was directed to produce record regard regarding Mazua Anwar Kallay. He produced Fard Jamabandi for the years 1926-1927 of Mauza Anwar Kallay Ex. P.W. 1/D-l, Ex. P.W. l/D-2, Jamabandi for the years 1985-1986 Ex. P.W. l/D-4 Khasra Girdawari from Kharif 1978 to Rabi 1990 Ex. P.W. l/D-5. He stated that Mst. Mumtaz Begum was shown as owner in Khasra No. 1196 and land measuring 3 Kanals was underneath the Abadi. The rest of the land was under cultivation of Faqir Jan in capacity of "BilaLagan Bawaja Shohari". Faqir Jan, attorney of plaintiff was examined as P.W. 2, who placed on record power-of-attorney as Ex. P.W. 2/1 and site plan of the house in dispute as Ex. P.W. 2/2. Ashraf Khan was examined as P.W. 3 who stated that the house in dispute was constructed by Sarfaraz Khan. In rebuttal Aziz Khan appeared as D.W. 1 who stated that the petitioners/defendants were in occupation of the suit property for the last 30 years as owners. Muhammad Nazeef appeared as D.W,, 2 and stated that he was residing in the suit house for the last 33 years being its owner. He was not inducted in the house by Mst. Mumtaz Begum and he never paid her Khakshora. Muhammad Shah was examined as D.W. 3, who stated that the suit house was owned by Defendant No. 1 and Defendant No. 3 (Mst. Sultan Begum) was residing with her husband. Mst. Sultan Begum appeared as D.W. 3 and Ihsanullah appeared as D.W. 4 who stated that Nazeef Khan was residing in the suit house since 1956, who had construted the same. The above discussed evidence would show that Sarfaraz Khan was owner of land comprising Khasra No. 1196. He transferred the said land to Mst.'Sari Jan, his wife vide Mutation No. 1973 attested on 2.11.1955 in her favour. Thereafter, Mst. Sari Jan transferred the above mentioned land in favour of Faqir Jan, her son vide Mutation No. 2793 attested on 14.3.1974 Ex. P. W. 1/8. Faqir Jan transferred land mentioned above in favour of Mst. Mumtaz Begum, his wife vide Mutation No. 2797 attested on 14.3.1974 Ex. P.W. 1/9. Nazeef Khan, Petitioner No. 1 and Mst. Sultana his wife, Petitioner No. 3 do not figure anywhere in the Revenue Record as owners. When Mst. Mumtaz Begum filed suit for possession against Muhammad Nazeef, he filed written statement in which he did not take up the plea that he had transferred the suit property to Mst. Sultana his wife in lieu of her dower. Subsequently, Mst. Sultana made application for her impleadment. She was impleaded as defendant. She filed her written statement in which she took up the plea that the suit property was transferred to her in lieu of her dower vide dower-deed Ex. D.W. 1/1, but when she appeared as her witness as D.W. 3, she took up altogether a new plea in her statement. In examination in chief she stated that the suit house was owned by her husband. Mst.Sari Jan also had a share in the said house and her husband got share of Mst. Sari Jan in exchange. He transferred land in Mahal Shahidan to Mst.Sari Jan, his mother, therefore, he became sold owner of the house. 14/15 years back he fell sick, therefore, she demanded that she, should be given her downer upon which her husband executed dower deed on 1.6.1977 Ex. D.W. 1/1. She stated that the house was constructed by her husband by spending Rs. 4/5 Lakh and they were residing in the suit house for the last 40 .years. It is settled law that a plea has to be taken in the pleadings before it can be allowed to be proved and if in a case the plea is not taken in the pleadings, the party would not be allowed to lead evidence in support thereof and even if some evidence is allowed, the same would not be looked into. Reliance in this regard can be safely placed on Amir Shah vs. Ziarat Gul (1998 SCMR 593) and Siraj Munir through L. Rs. and three others vs. Rai Sarwar Khan (2001 CLC 1059). 13. It is. worth mentioning that Muhammad Nazeef also filed amended written statement after impleadment of Mst. Sultan Begum, his wife and it was in amended written statement that he took up the plea that he had transferred the suit house to his wife vide Ex. D.W. 1/1. Despite improvement made in the amended written statement, Muhammad Nazeef, and Mst. Sultana, the petitioners failed to establish their ownership over the suit house. On the contrary Mst.Mumtaz Begum, through oral and documentary evidence in the shape of Jamabandis proved her ownership over the suit house. Fard Jamabandis Ex. P.W. 1/1 and Ex. P.W. 1/2 prove Mumtaz Begum to be owner of the suit house. The argument of the learned counsel for the petitioners that entries in the Revenue Record would not give title to respondent as those entries are made for fiscal purposes, has no force. Entries in record of rights are strong pieces of evidence in support of a person's title to immovable property and ought to be relied upon in 'absence of satisfactory evidence in rebuttal produced by opposite party. In this regard reliance can be placed on Manzoor Hussain and three others vs. Muhammad Siddique(2000 CLC 623), in which it was held:- "Presumption of correctness is attached to_ the entries of the Jamabandi wherein the donees were recorded as owners. A Jamabandi is a title document and veiy strong evidence was required to displace the title of the donees." Likewise in Nooruddin and others vs. Pakistan and others (1997 CLC 1971) it was held that:- "Nevertheless it is settled law that entries in record of rights are strong pieces of evidence in support of a person's title to immovable property and ought to be relied upon in the absence of satisfactory evidence in rebuttal produced by the opposite-party". Mst. Mumtaz Begum has therefore, proved herself to be owner of the suit house. The most important question in this case is as to whether a decree could be passed in favour of Mst. Mumtaz Begum, when she failed to prove that the petitioners/defendants were tenant under her on payment of Khakshora, the answer to this question is in the affirmative. Although the respondent/plaintiff could not prove that she has inducted the petitioners in the suit house as her tenant, but she successfully proved her ownership of the suit house. Therefore, she was entitled for grant of decree for possession. A similar proposition came up for hearing before the Sindh High Court in Mulibai vs. Vassibai and another (AIR 1926 Sindh 98) in which it was observed:-

"Mr. Kundanmal relying 6n 27 MLJ. 475, contends that the plaintiff, having failed to establish the particular tenancy at will referred to in the plaint, is not entitled to have the defendant ejected on the ground that she is a trespasser; for if he fails to prove the tenancy he is not entitled to eject defendant as a trespasser, See 211.C. 560. Mr. Kewlaram, on the other hand; has cited the case of 25 All. 498, a case in which there was no specific issue as to title, but evidence was called on both sides as to title. .It was there held that although the plaintiff had failed to establish a case of letting she was entitled to a decree on the basis of the title unless defendant could show a better 1 title. This was followed in 3 I,C. 589; see also 25 All. 256 where it was held that the plaintiff was entitled to a decree for possession, notwithstanding that the suit was based on a tenancy. In 54 I.C. 645 the Calcutta High Court held that where the plaintiff sues for possession and makes out aprima facie case if the defendant sets up a title, the onus is on the defendant to prove his title; see also 7 SLR 23 and 17 A.L.J. 814." 16. Since Mst. Mumtaz Begum respondent/plaintiff has proved her ownership through reliable oral and documentary evidence and the petitioners/defendants have failed to rebut the said evidence and the documentary evidence placed on record by them pertains to Mauzra Anwar Killay, the said documents are not relevant for the purpose of this case, therefore, the findings of the learned appellate Court are just, proper and based on proper appreciation of evidence and law applicable to the case. I have not been able to find out any mis-reading or non-reading of evidence, any jurisdictional error or defence or material irregularity warranting interference by this Court in its revisional jurisdiction. I, therefore, dismiss the revision petition-in hand alongwith C.M. with no orders as to costs.

(A.A.) Revision dismissed.

PL J 2002 Peshawar 111 (PB)

Present ejaz afzal khan (second judge's name is not decipherable JJ.

M/s. KURRAM ENTERPRISES-Appellant

versus

SPECIAL OFFICER INCOME TAX/WEALTH TAX-Respondent

I.T. Appeal No. I. of 1998, decided on 23.1.2002

Income Tax Ordinance, 1979 (XXXI of 1979)-—

—S. 136-Remand of case to Assessing Officer with direction to take fresh action on merits-Legality-Statement of account filed with return did not show closing stock of offices of appellant at "B" and "P" on asset, side of balance sheet which was mainly the reason for re-opening of assessment- At the time of completion of assessment availability and conscious consideration of material, forming basis for re-opening of case, were not born out from record—No illegality or jurisdictional error in order of remand by Income Tax Appellate Tribunal was pointed out so as to justify interference in appeal-Appeal dismissed. ' [P. 113] A

1990 PTD 155; 1993 SCMR 1232 ref.

Haji Saleem Jan Knan Advocate for Appellant

Mr. Bid Muhammad Khan Advocate for Respondent

Date of hearing 6-12-2001.

judgment

Ejaz Afzal Khan, J.--These Appeals Nos. 1 and 2 of 1998 are directed against the order dated 2-6-1998 in I.T. As. No. 50 and 51 (FB) of 1997-1998 for the assessment years 1991-1992 and 1992-1993 passed by the learned Income Tax Appellate Tribunal Peshawar Bench Peshawar whereby the appeals filed by the Department were allowed and on setting aside the orders of the learned Commissioner Income Tax, Wealth Tax, Appeals Zone-II Peshawar, the case was remanded back to the Assessing Officer with the direction to take fresh action on merits after giving a reasonable opportunity of hearing to the assessee/appellant. As both the appeals have arisen out of the same order, we propose to dispose them of through this judgment. The facts forming the background of this case are that the case of the appellant was reopened on the basis of inspection report dated 29-1-1995 from the Additional Director Inspection arid Audit, mainly on the ground that the closing stock of the office at Bannu and Peshawar has not been shown on the assets side of the balance sheet. The learned counsel appearing on behalf of the appellant mainly contended that the order passed by the Commissioner Income Tax (Appeals) was well-reasoned and well-founded as such needed no interference and that the learned Appellate Tribunal by acting against the law declared in the case ofEdulji Dinshaw Limited versus Income Tax Officer(1990 PTD 155) had erred by remanding the case. It was further pointed out by the learned counsel that none of the conditions enumerated in Sections 13 (c) and 65 of the Income Tax Ordinance was in existence so as to call for the re-opening of the case. The learned counsel to support his arguments also placed reliance on the case of M/s. Central Insurance Company and others, vs. The Central Board of Revenue and others (1993 SCMR 1232). The learned counsel by concluding his submissions contended that there was hardly any occasion for re-opening of the assessment proceedings on the basis of the audit objection when the material forming the basis of proposed re-assessment was already available on the record and no case for concealment was made out. 4. In reply the learned, counsel for the respondent-Department contended that the re-opening of the assessment proceeding was rightly ordered because the document whereby a huge asset of more than Rs. 50,00,000/-(Rupees fifty lacs) was explained appears to be doubtful on the face of it. The learned Appellate Tribunal, he contended, in the circumstances of the case, was justified in remanding the case to the Assessing Officer for making a probe into the genuineness or otherwise of the document and that the decision of the Income Tax Appellate Tribunal being free from any legal or jurisdictional error merits no interference.

1. We have seriously considered the arguments of the learned counsel for the parties and carefully perused the record and the relevant documents.

2. A perusal of the assessment order dated 30-3-1993 would reveal that the original assessment for the years 1990-1991, 1991-1992, 1992-1993 was completed under the self assessment scheme. The statement of account filed with the return did not show at all the closing stock of the office at Bannu and Peshawar on the assets side of the balance sheet, which was mainly the reason for re-opening of the assessment. Though according to the stance taken by the assessee, the revised balance sheets alongwith the loan agreement were despatched to the office and were accordingly received but their availability at the time of completion of assessment, let alone their consideration is not born out from the record. The veiy observation of the Commissioner Income Tax (Appeals) that "if the revised balance sheets were misplaced by the office, it was not the appellant's fault, clearly goes to prove that neither the material, forming basis for reopening of the case, was available nor it was consciously considered at the time of the completion of assessment. No doubt in the judgment so relied upon by the learned counsel for the appellant it was held that once all the facts have been fully disclosed by the assessee and considered by the Income Tax Authorities and the assessment has been consciously completed and no new fact has been discovered, there can be no scope for interference with the concluded transactions under the provisions of Section 65 of the Ordinance on the ground that the income chargeable to tax under the Ordinance has escaped assessment or has been under assessed in the terms of Section 65 (1) (a) (b) of the Ordinance. But in view of the distinct and distinguishable facts and features of this case as adverted to above, we are afraid, these cases will be of no help to the case of the appellant as at the time of completion of assessment the availability and conscious consideration of the material, forming basis for re-opening of the case are not born out from the record. We, therefore, find no illegality or jurisdictional error in the order of the learned Income Tax Appellate Tribunal, so as to justify interference therewith under Section 136 of the Income Tax Ordinance. For the foregoing reasons these appeals being without merit are dismissed.

(A.A.) Appeal dismissed.

PLJ 2002 Peshawar 114 (DB)

Present: ijaz-ul-hassan khan and tariq pervez khan, JJ.

SABIR REHMAN-Petitioner

versus

SECRETARY TO GOVT. OF NWFP FORESTRY, FISHERIES, WILDLIFE

DEPARTMENT AT CIVIL SECRETARIATE, PESHAWAR

and 7 others-Respondents

W.P. No. 531 of 2002, decided on 31.5.2002.

(i) Constitution of Pakistan, 1973--

—-Art. 199--Jurisdiction conferred on High Court by Article 199 of Constitution is an extraordinary jurisdiction which can be invoked only to meet extraordinary situations-This jurisdiction is or/and was never meant to be treated as an additional or as "another" remedy provided by law-It, was essentially for this reason that Article 199 of Constitution specifically provided" that High Court shall have jurisdiction under said provisions of Constitution only when law from which a matter emanated did not provide any other adequate remedy to cater for problem in issue- Therefore, prime question in every case of Article 199 of Constitution is whether an aggrieved person who resorts to Constitutional jurisdiction of High Court, has or has not any other adequate remedy available to him under law- [P. 116] A

(ii) Constitution of Pakistan, 1973--

—Art. 199-It is a well established principle by now that High Court in exercise of its powers under Article 199 of Constitution would not ordinarily, embark upon an exercise to determine intricate contentions and complicated questions of fact-Resolutipri of such controversial issues is ordinarily left to proper forums prescribed by law, because indulging in such an exercise would have effect of pre-empting and encroaching upon jurisdiction lawfully vesting in competent officers and Courts-­ involvement of High Court in matters which can be competently, properly and adequately dealt with by other forums prescribed by law, might have adverse effect on disposal of matters which have to be dealt with exclusively by High Court. [P. 116]B

(iii) Constitution ofPakistan, 1973--

—-Art. 199-It is settled principle of law that contractual rights are not enforceable by recourse to writ jurisdiction of High Court. [P. 116] C

(iv) Constitution of Pakistan, 1973--

—Art. 199-Disputed questions of fact are involved which require recording of evidence which is not domain of High Court under Article 199 of Constitution. [P. 116] D

(v) Constitution of Pakistan, 1973--

—Art. 199~Jurisdiction under Article 199 of Constitution is to be exercised where no other adequate remedy is available—Adequate remedy has also been defined to mean efficacious remedy in a number of judgments given by superior Courts-Under Article 199 of Constitution plaintiff has to show that he has no other adequate or efficacious remedy available to him-Under Article 199 of Constitution High Court is empowered to issue a writ, if as borne out from sub-Article (1) "it is satisfied that no other adequate remedy is provided by law-Sub-Article (1) thus, confers on High Court a discretion of fairly wide ampitude but at the same time it imposes a responsibility on High Court to exercise discretion with some circumspection-Satisfaction of High Court envisaged by sub-article (1) that no other adequate remedy provided in law is available to aggrieved party, is condition precedent for exercise of jurisdiction under Article 199.

[P. 116] E, Mian Iqbal Hussain, Advocate for Petitioner. Date of hearing : 31.5.2002.

, v

judgment

Ijaz-ul-Hassan, J.-Vide letter dated 29.2.2000 (Annexure-E/1) by Deputy Forest Manager, Alpuri Harvesting Division at Alpuri, District Shangla Respondent No. 7, petitioner Sabir Rehman, Work Contractor has been directed to deposits. 14,22,480,84 including Rs. 10,09,603.27 penalty or shortage of timber i.e. 7099.64 eft regarding Lot No. 171/M Alpuri, District Shangla.

1. Feeling aggrieved, the petitioner has invoked constitutional jurisdiction of this Court by filing instant Writ Petition No. 531 of 2002 accompanied by an application (C.M. No. 756 of 2002), against Secretary to Government of N.W.F.P. Forestry | Fisheries, Wile Life Departmental Peshawar and 7 others respondents with the prayer that the imposition of penalty of Rs. 10,09,603.27 be declared as without lawful authority and of no legal effect and respondents be directed to waive off the said penalty and to restrain from the recovery of the said penalty alongwith any other relief to which the plaintiff is entitled under the law.

2. The petitioner in pursuance of contract work of harvesting the timber and of its carriage to the road Depot was responsible to the Forest Development Corporation (FDC) in respect of Lot No. 171/M Alpuri, vide agreement (Annexure-N) and work order (Annexure-O). It appears that due to flood on 11.3.1993 scants of Lot No. 171/M in Alpuri were washed away, and the petitioner vide letter dated 11.3.1993 (Annexure-A) was directed by Respondent No. 7 to make arrangement for the extraction of timber from Nalla, in terms of agreement executed between him and Forest Development Corporation. The petitioner was time and again reminded to realise his responsibility but he failed to do so which obliged the Department to impose upon him the penalty in question.

3. Mian Iqbal Hussain, Advocate for the petitioner contended before us that the harvesting of timber was done which was put for its carnage through pathru. The shortage in delivery at the road side Depot of timber has occasioned due to flood beyond control of the petitioner, which was the result of unforeseen natural calamity and as such the petitioner should not have been burdened with the liability. The learned counsel also reiterated that the petitioner has been discriminated qua other work contractors placed in similar situation and were exonerated of the liability.

4. The jurisdiction conferred on this Court by Article 199 of the Constitution is an extraordinary jurisdiction which can be invoked only to meet extraordinary situations. This jurisdiction is or/and was never meant to be treated as an additional or as "another" remedy provided by law. It was essentially for this reason that Article 199 of the Constitution specifically provided that this Court shall have jurisdiction under the said provisions of the Constitution only when the law from which a matter emanated did not provide any other adequate remedy to cater for the problem in issue. Therefore, the prime question in every case of Article 199 of the Constitution as also in the present case is whether an aggrieved person who resorts to the Constitutional jurisdiction of this Court, has or has not any other adequate remedy available to him under the law.

5. It is a well established principle by now that this Court in exercise of its powers under Article 199 of the Constitution would not ordinarily, embark upon an exercise to determine intricate contentions and complicated questions of fact. Resolution of such controversial issues is ordinarily left to the proper forums prescribed by the law, because indulging in such an exercise would have the effect of pre-empting and encroaching upon the

"jurisdiction lawfully vesting in the competent officers and Courts, Involvement of High Court in matters which can be-competently, properly and adequately dealt with by other forums prescribed by law, might have adverse effect on the disposal of matters which have to be dealt with exclusively by this Court.

1. It is also settled principle of law that contractual rights are not enforceable by recourse to writ jurisdiction of the "High Court as held in M/S Mornam Motors Co. v. Regional Transport Authority (PLD 1962 SC 108), Jaiey and Company vs. Union of India (AIR 1972 Calcutta 253) and M. Muzaffar Din Industries v. Settlement and Rehabilitation Department, Lahore (1968 SCMR 1136). Besides disputed questions of fact are involved in this case which require recording of evidence which is not the domain of this Court under Article 199 of the Constitution.

2. It needs no reiteration that the jurisdiction under Article 199 of the Constitution is to be exercised where no other adequate remedy is available. Adequate remedy has also been defined to mean efficacious remedy in a number of judgments given by superior Courts. Now, therefore, before seeking the remedy under Article 199 of the Constitution the plaintiff has to show that he has no other adequate or efficacious remedy available to him. Under Article 199 of the constitution the High Court is empowered to issue a writ, if as borne out from sub-Article (1) "it is satisfied that no other adequate remedy is provided by law. Sub-Article (1) thus, confers on the High Court a discretion of fairly wide ampitude but at the same time it imposes a responsibility on the High Court to exercise the discretion with some-circumspection. The satisfaction of the High Court envisaged by sub- article (1) that no other adequate remedy provided in law is available to the aggrieved party, is condition precedent for exercise of jurisdiction under Article 199.

3. The petitioner is claimed to have been discriminated and treated differently qua other work contractors placed i.n similar situation. The submission is not tenable. Nothing has been brought on record in support of the accusation. The mere assertion of the petitioner that he has been discriminated qua other contractors, without a positive attempt on his part to substantiate the same, is of no consequence.

4. In the result and for the foregoing reasons, we find that the writ petition is not maintainable. The same is dismissed in limine. The listed application also meets the same fate.

(T.A.F.) Petition dismissed.

PL J 2002 Peshawar 117 (DB)

Present: talaat qayyum qureshi and ijaz-ul-hassan khan, JJ.

Syed MUHAMMAD AMIN and another-Petitioners

versus

FEDERAL PUBLIC SERVICE COMMISSION, through .its Chairman Islamabad arid 2 others-Respondents

W.P. No. 363 of 2002, decided on 4.6.2002.

Federal Public Service Commission Rule 1973

—-R. 4(l)-Constitution of Pakistan; 1973 Art. 199-Rejection of Candidature due to over-age challenged-"Neither competency of Respondent Public Service Commission to change rules in public interest could be challenged nor any candidate has vested right to be governed by any particular set of Rules—It is within domain of Respondent Commission to make any alteration in recruitment policy before fmalization of appointments-If rules are altered/changed, latter rules will supersede former—Vested rights originate from contracts, statutes, and by operation of law-­ Keeping in view advertisement as well as Rule 4 (1) of Federal Public Service Commission Rules for Competitive Examination of 2001 and in the dictum of August Supreme Court of Pakistan (in C.P. No. D-1207 of 2001) candidature of petitioners was rightly rej ected. [P. 119] A & B

(ii) Federal Public Service Commission Rule 1973

—~S..7-By virtue of amendment in Section 7 of Public Service Commission (amendment) Ordinance 2001, Supreme Court has become repository of appellate jurisdiction-When Supreme Court was repository appellate, revisional or referable powers conferred by a statute, writ petition was not maintainable. . [P. 120] C

Mr. Ijaz Anwar, Advocate for Petitioners.

Mr. Hamid Farooq Durrani, DAG for Respondents.

Date of hearing : 4.6.2002.

judgment

Talaat Qayyum Qureshi,J.--Respondent No. 3 advertised certain posts in BPS-17 in Daily Nau;a-i-Wa<^/Nation. In response to such advertisement, the petitioners submitted applications. The Assistant Director Public Service Commission, vide his letter dated 28.11.2001 pointed out that the petitioners were over-aged, hence commission could not admit them for examination. During the process, the petitioners came to know that the rules whereby upper age limit by Public Service Commission was fixed were challenged in Lahore High Court through writ petition. The said writ petition was however, dismissed in limine. Intra Court appeal filed against the dismissal order was also dismissed in limine.The orders passed by the learned Single Judge in the Lahore High Court were assailed by filing C.P.S.L.A. 3792 of 2001 before the August Supreme Court of Pakistan. Alongwith C.P.S.L.A. an application for interim relief had also been filed. The Hon'ble Judge in Chambers allowed interim relief i.e. they were allowed to take examination subject to decision of the petition vide order dated 7.12.2001. Since the August Supreme Court of Pakistan had allowed the petitioners of G.P.S.L.A. No. 3792-L of 2001 to take examination, therefore, the Federal Public Service Commission allowed the petitioners to appear in examination subject to decision of their case. The petitioners duly participated in the examination but it was on 26.2.2002 that they were informed by respondents that their candidature has been rejected due to \their being over-aged. The petitioners have assailed the letter dated 26.2.2002 through writ petition in hand.

1. Mr. Ijaz Anwar, Advocate the learned counsel representing the petitioners argued that as per rules of 2000, the petitioners were entitled to appear in CSS Competitive Examination up to the age of 30 to 35 years respectively. The petitioners, through the new rules framed in 2001 were deprived to appear in the examination though by appearing in the competitive examination they had a vested right to avail the next chance as per previous rules.

2. On the other hand Mr. Hamid Farooq Durrani, the learned Deputy Attorney General argued that the aposts were advertised on 24.9.2001. Not only as per advertisement hut as per Rule 4 the upper age limit fixed was 28 years. The petitioners being over-aged were rightly disallowed. Reliance in this regard was also placed on a judgment of August Supreme Court of Pakistan passed in C.P.S.L.A. No. 940-K 2001 (MissMuneeza Zafar vs. Federal Public Service Commission and another).

4.We have heard the learned counsel for the parties and perused the record annexed with the writ petition.

1. As per advertisement dated 24.9.2001, the maximum age prescribed was 28 years as on 1.7.2001. Syed Muhammad Amin, Petitioner No. 1 was on the said date i.e. 1.7.2001 over-aged by one year and 28 days. Similarly Muhammad Hayat Wazir, Petitioner No. 2, was on the said date (1.7.2001) over-aged by one year 9 months and 26 days even after allowing him two years relaxation. The Federal Public Service Commission Rules for competitive examination 2001 were made effective on 8.10.2001 and as per Rule 4 (1) the maximum age limit for a candidate was 28 years.

2. The question which needs consideration in this case is whether Rules of 2001 would be applicable in the cases of petitioners would be governed under the previous rules. The answer to this question was given by August Supreme Court of Pakistan in C.P, No. D-1207 of 2001 in the following words:- "Neither the competency of Respondent No.« 1 to change the rules in public interest could be challenged nor any candidate has vested right to be governed by any particular set of Rules. It is within the domain of Respondent No. 1 to make any alteration in the recruitment policy before finalization. of the appointments. If the rules are altered/changed, the latter rules will supersede the former Vested rights originate from contracts, statutes, and by operation of law. None of the above condition is attracted to- this case. The Rules of 2000 could not be invoked for the examination to be held in the year 2001, when the rules of latter year were available. The order of High Court is perfectly correct and no interference is warranted."

3. Keeping in view the advertisement as well as Rule 4 (1) of the Federal Public Service Commission Rules for competitive examination of B 2001 and above quoted dictum of the August Supreme Court of Pakistan the] candidature of the petitioners was rightly rejected.

7-A. Another factor which is important in this case is that as per the amended Section 7 of the Federal Public Service Commission (amendment)

Ordinance, 2001, a candidate aggrieved by decision of the Federal Public Commission could within thirty days of such decision make representation to the Commission which was bound to decide the representation within 15 days after giving a candidate a reasonable opportunity of hearing. A candidate could also, against such decision, within 15 days of the decision, file a review petition to thjg Commission and in such eventuality the Commission was bound to decide the review petition within thirty days under intimation to the candidate. Thereafter, if still the candidate was aggrieved, by the decision of the Commission, he could within thirty days of the decision prefer an appeal to this Court. In the case in hand, the petitioners-have failed to avail the alternate remedies mentioned above.

1. By virtue of amendment in Section 7 of Public Service Commission (amendment) Ordinance 2001, this Court has become the repository of appellate jurisdiction. When this Court «was the repository appellate, revisional or referable powers conferred by a statute, the writ petition was not maintainable as held in Khalid Mehmood vs. Collector of Customs, Customs House Lahore (1999 SCMR 1881).

Due to the reasons stated above, the writ petition in hand is dismissed in limine alongwith C.M. No. 515/2002.

(T.A.F.) Petition dismissed.

PLJ 2002 Peshawar 120

Present: TALAAT QAYYUM QURESHI, J. FARIDOON-Petitioner

versus SHAFIULLAH KHAN and others-Respondents

C.R. No. 249 of 2002, decided oh 15.4.2002.

(i) CIVIL PROCEDERE CODE

—O. XLI, R. 31-Appellate Court's finding was neither issuewise nor points for determination as envisaged under 0. XLI, R. 31 C.P.C. were set out and decision given thereon-Appellate Court did not consider and decide these issue which had been decided in favour of plaintiff-Appellate Court failed to appreciate that it had ample powers under O. XLI, R. 31 C.P.C. to pass any order/decree which ought to have been passed or made by Trial court and to pass or make such order or decree as the case would require-Such power can be exercised by Court even if no counter appeal or cross-objection had been filed by apposite party. [P. 123] A

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

—O. XLI, R. 31-Appellate Court was bound to have exercised its jurisdiction and findings given by Trial Court on all the issue should have been thrashed, which it failed to do—Finding of Appellate Court being not in accordance with provision of O. XLI, R. 31 C.P.C. was set side and case was remanded to Appellate Court for decision afresh in accordance with law. [P. 124] B, C

1992 CLC 435; 1991 CLC 1499; 2002 CLC 427; 1982 CLC 1680; 1987 SCMR 1698; PLD 1981 SC 148; PLD 1965 S.C. 15; 1998 SCMR 996 & PLD

1990 SC 1 ref.

Mr. Ghulam Nabi Advocate for Petitioner.

' Mr. Abdul Bari & Muhammad Ismail Khalil Advocates for Respondents.

Date of hearing: 12.4.2002.

judgment

Mst. Bakhtawara, predecessor of Respondents Nos. 1 to 3 filed suit seeking declaration etc., against the petitioner/defendant in the Court of Aala Illaqa Qazi/Senior Civil Judge, Buner. The said suit was resisted by the petitioner/defendant by filing written statement. The trial Court, after, framing as many as 12 issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 14.4.1997. Being aggrieved with the said judgment and decree, the L. Rs. of Mst. Bakhtawara filed Appeal Nos. 20/13 in the Court of learned District Judge/Zilla Qazi Buner at Daggar. The said appeal was accepted, the judgment and decree passed by the Court below were set aside and decree was passed in favour of L. Rs. of plaintiff/respondent vide judgment and decree dated 5.5.2000. The petitioner/defendant being not satisfied with the said judgment and decree has filed revision petition in hand. Mr. Muhammad Waris Khan learned counsel representing the petitioner/defendant argued that land measuring 10 Kanals 11 Marias comprising Khasra Nos. 843, 934 and 858 situated as Mauza Bajkata Tehsil Daggar District Buner was purchased by Faridoon petitioner vide registered Deed No. 9 dated 1.6.1973 (Ex. D.W.1/1) and Deed No. 393 dated 30.5.1973 (Ex. D.W. 1/2) registered in the office of Tehsildar Ghagra (now Baggar). The suit house was also owned by Faridoon as he had acquired the same in exchange from Sajawal Khan through Ex. D.W. 1/3. The said property was not left by Wahab Khan, the predecessor of the parties. There is no evidence to prove that the said land devolved upon the L.Rs. of Wahab Khan. The suit filed by the plaintiff was baseless and it was the burden of the plaintiff to have proved all the issues including Issue No. 6 but the learned trial Court erroneously shifted the burden of proof to the petitioner/defendant though he was not liable to prove the same. No doubt Issues Nos. 6 to 10 were decided in fay'our%of the plaintiff but the suit was dismissed on the basis of limitation and for having no cause of action. It was also argued that the learned lower appellate Court also erred in holding that since cross objection was not filed, therefore, findings on issues Nos. 6 to 10 have become final. The legal position is that on filing appeal by either of the parties under Order 41, Rule 33 CPC the case re­opens and decision on all the issues can be given by the appellate Court. The learned appellate Court while not adverting to the said issues, has committed gross illegality. The learned lower appellate Court, it was argued, has not appreciated the evidence properly. The documents produced by petitioner defendant regarding ownership of the suit property Ex. D.W. 1/1 to Ex. D.W. 1/3 were not properly appreciated and that was the reason that while deciding the appeal, the learned appellate Court held that the said documents did not pertain to the suit property. Since there was non-reading and mis-reading of evidence, therefore, interference by this Court is required. It was also argued that documents Ex. D.W. 1/1 to Ex. D.W. 1/3 were admitted in evidence without raising any objection from the plaintiffs side, therefore, at appellate stage those documents could not be called in question. It was also argued that Mst. Bakhtawara, plaintiff had expired much before filing of the suit. Sardar (P.W. 2) Attorney of L.Rs. of Mst. Bakhtawara in cross-examination admitted that Mst. Bakhtawara had expired on 5.1.1995, whereas suit in hand was filed on 24.4.1995 i.e. after her death, therefore, suit filed by dead person could not proceed and deserved dismissal at the very outset. It was also argued that settlement in the area took place in the years 1986-1987. The entires in the name of petitioner/defendant were made in the revenue record but the plaintiff failed to challenge those entries. The suit filed by her on 24.4.1995 was, therefore, hopelessly time-barred and was rightly dismissed by the trial Court. On the other hand Mr. Abdul Bari Khan Khalil, the learned counsel representing the respondents argued that the suit property was owned by Abdul Wahab, who left behind a son and two daughters. Mst. Bakhtawara being one of the daughters of Abdul Wahab was entitled to l/4th share in the property left by her father. The claim of the petitioner/defendant that he had purchased the property in dispute through Ex. D.W. 1/1 and Ex. D.W. 1/2 was to be proved by him. The burden of proof of the purchase of the property had shifted to the petitioner/defendant which he failed to discharge. Neither Ex. D.W. 1/1 and Ex. D.W. 1/2 were proved by examining two marginal witnesses as required under Article 79 of Qanoon-e-Shahadat Order, 1984 nor the boundaries mentioned in the said deeds tallied with the property in dispute nor any KhasraNumber was mentioned in the said deeds. The finding of the learned trial Court that the property in dispute belonged to Abdul Wahab was, therefore, correct. Regarding limitation it" was argued that attestation of mutation in favour of a person do not confer title upon him. Since it was proved on record that Mst, Bakhtawara being daughter of Abdul Wahab was entitled to his legacy, therefore, she had become the co-sharer in the properly in dispute, hence no limitation would run against her. Reliance was placed on Mst. Namdara and 3 others vs. Mst. Sahibzada and 2 others (1998 SCMR 996) and Ghulam All and 2 others vs. Mst. Ghulani Sarwar Naqvi (PLD 1990 S.C. 1).

1. It was further argued that Abdul Wahab was owner of one 'Paisa Daftar' and this position has been admitted by D.W.I in his cross- examination. The property in dispute is in fact that 'one Paisa Daftar' which belonged to Abdul Wahab and the learned appellate Court has rightly appreciated this fact. I have heard the learned counsel for the parties at length and perused the record. The perusal of the judgment of the learned appellate Court shows that the appeal was dealt with in a very cursory manner. Neither issue wise findings were given by the learned lower appellate Court nor points for determination as envisaged under Order 41, Rule 31 were set out and decision given thereon. In fact the learned appellate Court was swayed with the impression that the learned trial had decided all the issues in favour of plaintiff/appellant except Issues Nos. 1 and 4 and same could not be re­ opened. The learned District Judge failed to appreciate that it had ample powers under Order 41, Rule 33 CPC to pass any decree and make any order which aught to have been passed or made by the trial Court and to pass or make such further or other decree or order as the case may require and this power may be exercised by appellate Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of respondent or parties. Although such respondents are parties may not have filed any appeal or objection. In Messrs S.M. Yusuf and Brothers vs. Mirza Muhammad Mehdi Pooya and Amanullah Kirmani (PLD 1965 S.C. 15) it was held:

"The terms of Rule 33, O. XLV, CPC are of the widest amplitude to enable an appellate Court to pass decrees according to the justice of the case. The language used is affirmative, and the rule is further straighthened by non-obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the appellate Court considers should be allowed within the framework of the suit. The non-obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the appellate Court's power. Here the Whole decree was before the appellate Court, but the other non-abstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff having filed an appeal against the failure of the trial Court to grant a decree against a defendant would not by itself would be sufficient to justify refusal to exercise the power under the rule. The principle that "in the absence of a counter appeal being filed a decree against another

defendant cannot be given" not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule." Similarly in Ahmad Khan vs. Sattar Din (PLD 1981 SC 148) it was held that the Court under Order 41, Rule 33 CPC enjoins the Court to pass any appropriate orders for the purpose of doing complete justice between the parties according to law. Likewise in Hakim Muhammad Nabi Khan and 2 others vs.Warasatullah through legal representatives (1987 SCMR 1698) it was held:

"Lastly, it was urged that as the Settlement Department had not appealed against the impugned judgment but had filed a suit, the judgment had become final so far as the Settlement Department was concerned. But this argument cannot come in the way as under Order XLI, Rule 33 of the Code of Civil Procedure as well as under Article 187 of the Constitution, the benefit of the relief can also be extended to the non-appealing party for doing complete justice, and such is the case here."

1. The same principle was adopted in Morio Goth Association vs. Muhammad Bachal and 6 others.(1985 CLC 1680) by Sindh High Court.

2. Keeping in view the dicta laid down in the above mentioned judgments, it was incumbent upon the learned appellate Court to have exercised its jurisdiction and finding given by the learned trial Court on all the issues should have been thrashed, which it failed to do.

n 16. The learned trial Court as mentioned above, neither bothered to

give issuewise finding nor set out the points for determination as required under Order XLI, Rule 31 C.P.C. Drawing wisdom from Executive Engineer, C & W, Mansehra and 2 others vs. Muhammad Nasim Khan and 4 others (2002 CLC 427), Mst. Aishavs. Mst. Fatima and others (1991 CLC 1499) and Muhammad Mustaqcem through his legal Heirs vs. Abdul Haleem through his Legal Heirs and others (1992 CLC 435) the revision petition is hand is allowed, the impugned judgment and decree passed by the learned District Judge Buner at Dagger dated 5.5.2000 is set aside and the case is remanded back to the learned appellate Court for depision afresh. Since it is an old case, therefore, the learned appellate Court is directed to decide the appeal within a period of four months and the office is also directed to send the record of the case to the Court concerned within a week. The parties are directed to appear before the learned District Judge Buner at Dagger on 29.4.2002. There shall be no orders as to costs.

(A.A.) Case remanded.

PLJ 2002 Peshawar 125

Present: talaat qayyum qureshi, J. M.E.O. and others-Petitioners .

versus Mian SARDAR SHAH and others-Respondents.

C.R. No. 228 of 1994, decided on 18.3.2002.

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

—S. 115-Revision petition barred by time-Impugned order was passed on 13.12.1993, while petitioners application dated 18.12.1993 for grant of attested copies succeeded in obtaining copies on 20.12.1993-Revision filed by petitioner, on 17.3.1994 was barred by two days-Application for condonation of delay was although submitted yet reason for condonation contained in the same was not a ground for condonation of delay- Revision application besides, having been filed beyond period of limitation was incomplete in all respects-Without touching of case, revision was dismissed-being barred by time. [Pp. 126 & 127] A, B

1998 SCMR 307; 1998 SCMR 2376 ref.

" Mr. Salahuddin D.A.G. for Petitioners. Mr. Muhammad Majecb Shah, Advocate for Respondents. Date of hearing: 18.3.2002.

judgment

Ahmad Nawaz and 7 others filed suit for declaration etc., in the Court of learned Senior Civil Judge, Nowshera. The said suit was resisted by respondents by filing written statement. The learned trial Court framed as many as 9 issues and posted the case for evidence of the plaintiffs. The respondents in their written statement had raised preliminary objection that the suit of the plaintiffs was hit by principles of res-judicata. 13.12.1993 was the date fixed for arguments on the question as to whether the case was hit by the principles of res-judicata. The learned trial Court after hearing the arguments came to the conclusion that since the previous suit filed by the plaintiffs was dismissed under Order 17, Rule 3 CPC on merits, therefore, the suit in hand was not hit by the principles of res-judicata. The petitioners/defendants being aggrieved of the order dated 13.12.1993 has filed revision petition is hand. 2. Mr. Salahuddin the learned DAG argued that previously Mst. Badshah Zadgai had filed Suit No. 41/1 of 1988 which was dismissed on 28.9.1991 under Order 17, Rule 3 CPC. She filed appeal in the Court of learned District" Judge Peshawar which was entrusted to learned Addl.Sessions Judge. Peshawar for disposal who dismissed the same videjudgment and decree dated 25.10.1992. Revision Petitions Nos. 522/1992 filed by her also met the same fate when the same was dismissed vide judgment and decree dated 22.5.1993. Thereafter she did not file any appeal before the August Supreme Court of Pakistan, therefore, the judgment of this Court had attained finality. The espondents/plaintiffs concealed all the facts of the earlier suit and their suit was to be dismissed on applying the principles of res-judicata, but the learned Court erred in not dismissing the same.

1. On the other hand Mian Muhammad Najeeb Shah, Advocate the learned counsel representing the respondents argued that the revision petition filed by the petitioners was hopelessly barred by time, therefore, the same deserved dismissal.

2. It was also argued that since earlier suit filed by the mother of the respondents had not been dismissed on merits, therefore, the principles of res-judicata would not be applicable to the case in hand.

3. I have heard the learned counsel for the parties and perus'ed the record.

4. The revision petition is barred by time. The impugned order was passed on 13.12.1993, the petitioners submitted application for grant of attested copies on 18.12.1993 and they were given the copies on 20.12.1993. They filed the revision petition on 17.3.1994. Their revision petition is barred by two days. Although the petitioner has submitted an application for A condonation of delay in which they have taken the plea that the revision petition pertains to Government Department which necessarily involves long process by Department but this in no case is a ground for condonation of delay. In Lahore High Court Lahore through Registrar vs. Nazar Muhammad Fatiana and others (1998 S.C.M.R. 2376) it was held that Government cannot be treated differently than an ordinary litigant while considering the question as to whether sufficient cause has been shown for ., the condonation of delay under Section 5 of the Limitation Act. In Central Board- of Revenue, Islamabad through Collector of Customs Sialkot Dry Port, Samberial, District Sialkot and others vs. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others (1998 SCMR 307) it was held:

"This Court has repeatedly laid down that so far as the Limitation is . concerned the Government, cannot be treated differently from an ordinaiy litigant. If in spite of enormous resources and facilities, the Government continues to delay the filing of cases in time detriv mental to its own interest, the opposite party cannot be penalised

for its negligence. It is a settled law that each day of limitation must satisfactorily be explained which the petitioner has failed to do in this case. The petition is hopelessly barred by time and no sufficient ground exists for condonation of delay. Civil Petition No. 304 of 1996 must fail on the ground of limitation and is, accordingly, dismissed hereby." 7. Another ground taken in the application is that all the Departments and Courts were closed for Bid Holidays from 12th to 15th March, 1994 but this ground was not available to the petitioners because they could easily file the petition on 16th March, 1994 but as mentioned above, the petition in hand was filed on 17,3.1994 and that too was incomplete in all respects, therefore, the office had to return the same. Without touching the merits of the case the revisions petition is dismissed being barred by time. Parties shall bear their own costs.

(A.P.) Revision petition dismissed.

PLJ 2002 Peshawar 127

[Dera Ismail Khan Bench]

Present: abdul rauf lughmani, J.

MUHAMMAD ASLAM KHAN and 5 others-Petitioners

versus GHULAM FARID and others-Respondents.

Rev. Petition No. 113 of 2000 in C.R. No. 34 of 1994, decided in 16.4.2001

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

—-O. Ill R. 5-Pakisan Legal Practitioners and Bar Council Rules 1976, R. 166-Duty of counsel to defend/plead case of his client-Any process served on counsel of a party or left at the office or ordinary residence appearance of party or not, would be presumed to be duly communicated and made known to party whom such counsel represents, unless the Court otherwise directs, would be effective for all purpose as if same had been served on the party in person-Provisiion of R. 116 of Pakistan Legal Practitioners and Bar Councils Act 1976; cast duty on Advocate to appear in Court, when matter was called and if it was not possible to make satisfactory alternative arrangements. [P. 128] A

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

—O. Ill, R. 4 (2)-Appointment of Advocate continues till the same was terminated by either side with leave of court-Proper Course for counsel was to have applied in writing seeking permission to withdrawn from case. [P. 128] B

NLR 1980 U.C. 347 ref.

Nemo for Petitioners. Date of hearing: 16.4.2001.

order

Learned counsel for the petitioner (Mr. Saadullah Khan, Advocate) has recorded a note on the reverse of the summon issued by this Court to the effect that he was not counsel to defend the case of the petitioner at Peshawar.

Order 3, Rule 5 C.P.C. provides that any process served on the pleader of a party or left at the office or ordinary residence of such pleader and whether the same is for personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, unless the Court otherwise directs, shall be effective for all purposes as if the same had been served on the party in person. It was the duty of the learned counsel to have immediately informed his client. Rule 166 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 cast duty on an advocate to appear in Court, when the matter is called and if Ait is not possible to make satisfuctoiy alternative arrangements. The-learned counsel was supposed to appear and it was also his duty, to inform his client about the date of hearing of the petition. Again, this is hardly any ground for non-appearance that he was engaged for D.I. Khan. Similar question came up for consideration in the case of RchmatuHah. us. Abdullah and other N.L.R. 1980 UC 347, wherein it was pleaded that Mr. Amjad Khan was appointed as a counsel for hearing, acting and'pleading at Lahore and not for Circuit Bench Bahawalpur, therefore, the petitioner was not served and dismissal was not proper.

This argument was repelled with reference to Order-Ill, Rule 5 of the C.P.C. and it was held that the counsel was bound to appear. Let me also refer to the provisions of Order-Ill, Rule 4(2) of the C.P.C. the appointment jof a pleader or an Advocate shall be deemed to be in force unless determined giwith the leave of the Court by a writing signed by the party or the pleader or (until the client or pleader dies. Appointment of an advocate continues till it jis terminated by either side but of course with the leave of the Court. The proper course for the learned counsel was to have applied in writing seeking permission to withdraw from the case.

1. For the foregoing reasons, this petition is dismissed. (A.A.) Review Petition dismissed.

PLJ 2002 Peshawar 129 (DB)

Present: mian shakirullah jan and second judge's name

IS NOT DECIPHERABLE, JJ. Dr. BASHIR AHMAD KHAN»Petitioner

versus

APPELLATE ELECTION TRIBUNAL

N.W.F.P. PESHAWAR and another-Respondents

W.P. No. 76 of 1997, decided on 15.1.1997.

Constitution of Pakistan, 1973--

-—Aits. 260, 63(k) and 199 read with S. 99 of Representatives of Peoples Act, 1976-Contention of learned counsel for petitioner is that he being on contract basis does not come within definition of civil servant and thus provisions referred to in order of Appellate Election Tribunal, that is, Articles 260 and 63(k) of Constitution are not applicable to him-His contention is misconeeived-Provisions of law, that is, Section 99 of Representation of Peoples Act and Articles 63(k) and 260 of Constitution are veiy clear and leaves no ambiguity in this respect-So far as inclusion of a post in service of Pakistan is concerned, it is immaterial whether holder thereof has come to occupy it through a special contract or in accordance with recruitment rules framed under Civil Servants Act; consequently, mere fact that a person is not a civil servant within meaning of Civil Servants Act would.not put him beyond pale of said Constitutional definition. [Pp. 129 & 130] A & B

PLD 1994 SC 60 and 1995 CLC 158.

Mr. Azhar Naveed Shah, Advocate for Petitioner. Date of hearing: 15.1.1997.

order

Mian Shakirullah Jan, J.--The petitioner's grievance, expressed through this constitutional petition, is against the order of the Returning Officer and the Appellate Election Tribunal,-N.W.F.P. Peshawar holding him disqualified to contest the election and rejecting his nomination papers.

1. The petitioner, was admittedly a Medical Officer in the Directorate General Health Services, NWFP, Peshawar on contract basis for a period of one year and which period ended on 28.11.1996 as is evident from Paras 5 and 6 of the writ petition. His nomination papers were rejected on the ground that he being in the service of the Health Department and two years have not yet elapsed since he ceased to be in such service, is not qualified to contest the election.

2. The contention of the learned counsel for the petitioner is that he being on contract basis does not come within the definition of the civil servant and thus the provisions referred to in the order of the Appellate Election Tribunal, that is, Articles 260 and 63(k) of the Constitution are not applicable to him. His contention is misconceived. The provisions of law, that is, Section 99 of the Representation of Peoples Act and Articles 63(k) and 260 of the Constitution are very clear and leaves no ambiguity in this respect. The learned Appellate Election Tribunal referred to two judgments, that is, Syeda Abida Hussain vs. Tribunal for NA-69, Jhang-IV and 2 others (PLD 1994 Supreme Court 60) and Hqji Amanullah Khan vs. Sahibzada Tariqullah and 2 others (1995 CLC 158) and the relevant portion of the former was reproduced in the impugned order, some portion of which is also advantageously reproduced:-

"Thus, so far as the inclusion of a post in the service of Pakistan is concerned, it is immaterial whether the holder thereof has come to occupy it through a special contract or in accordance with the recruitment rules framed under the Civil Servants Act; consequently, the mere fact that a person is not a civil servant within the meaning of the Civil Servants Act would not put him beyond the pale of the said Constitutional definition."

1. In view of the above discussion, this petition has got no force and is dismissed in limine, alongwith C.M. No. 91/97.

(T.A.F.) Petition dismissed.

PLJ 2002 Peshawar 130 (DB)

Present: talaat qayyum qureshi and ijaz-ul-hassan khan, JJ.

MUHAMMAD RAFIQ, SUPDT/ADMIN OFFICER, N.W.F.P PUBLIC SERVICE COMMISSION PESHAWAR-Petitioner

versus

CHAIRMAN, N.W.F.P. PUBLIC SERVICE COMMISSION, PESHAWAR and another-Respondents

W.P. No. 1242 of 2000, decided on 18.6.2002.

(i) N.W.F.P. Public Service Commission Officers & Servants (Terms & Conditions of Service) Regln. 1985--

—Constitution of Pakistan (1973), Art. 199-Employee of Public Service Commission—Tendering of resignation and acceptance of same— Subsequently, employee claimed to have been re-instated service by Chief Minister and claimed Pay and Allowances of Post and all other benefits of service-Record revealed that after acceptance of resignation, petitioner slept over his rights for a sufficient long period and did not bother to approach quarter, concerned-Delay in filing of petition which remained un-explained is not without effect on grant of discretionary relief in Constitutional jurisdiction-Courts in such like situation were always reluctant to grant discretionary relief-Constitutional petition was, thus, not maintainable. [P. 133] A

(ii) N.W.F.P Public Service Commission Officers and Servants (Terms and Conditions of Service) Regulation 1985--

—Constitution of Pakistan (1973), Art. 199--Reinstatement of petitioner by Chief Minister-Governor and not Chief Minister is Authority for deciding cases of appointment/Promotion for employees-Respondent Authority, thus had valid reasons to take back petitioner in service-No mala fide was spelt out of his action attracting extra-ordinary Constitutional jurisdiction of High Court-Constitutional petition was, thus, not maintainable. [P. 133] B

1993 SCMR 1326; 1995 SCMR 876; PLD 1969 SC 42 ref.

Qazi Atiq-ur-Rehman, Advocate for Petitioner. Miss Musarrat Hilali, A.A.G. for Respondents. Date of Hearing: 7.6.2002.

judgment

Ijaz-ul-Hassan Khan, J.--Muhammad Rafiq petitioner, Ex-Superkitendent N.W.F.P. Public Service Commission Peshawar has invoked constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, claiming a declaration to the effect that the petitioner having been recommended by the Services Review Board, Peshawar vide order dated 29.1.1990 and duly reinstated by the then Chief Minister N.W.F.P. videhis order dated 13.2.1994, is entitled to the Pay and Allowances of the post and all other benefits of a continuous service since his appointment as Superintendent N.W.F.P. Public Service Commission. The petitioner has also prayed that Respondent No. 1 be directed to treat the petitioner as Public Servant by allowing him all the benefits of service due until his retirement on attaining the age of superannuation on 2.6.2003.

1. Briefly stated the facts are that the petitioner applied for the post of Assistant in the N.W.F.P. Public Service Commission in 1970. The petitioner was selected and appointed as an Assistant. He continued to serve as such till" 1975 when he was promoted and appointed as Superintendent. He tendered resignation on 13.3.1978 which was accepted vide order dated 10.5.1978 and communicated to the petitioner vide letter dated 14.5.1978. Subsequently the petitioner decided to withdraw his resignation and approached the higher authorities but his efforts bore no fruit. The petitioner then filed Review Petition No. 16/1989 before the Services Review Board Peshawar which was disposed of with the observation that 'the scope -of interference by this Board is limited to action under M.L.O. 17, Section 12-A, Section 13(i) or (ii) of the Civil Servants Act, 1973 and as such this petition does not fall within the purview of the recommendatory powers of this Board.' However, it was remarked that as a gesture of good will, the Provincial Government may reconsider the case of the petitioner for reinstatement without any compulsive recommendation from this Board The grievance of the petitioner is that he approached Chairman N.W.F.P. Public Service Commission Peshawar, Respondent No. 1 vide his application dated 25.3.2000 for re-instatement but Respondent No. 1 remained reluctant to honour the lawful order of the authority for reasons best known to him.

2. In the comments, the allegations of the petitioner were controverted and it was asserted that the Chief Minister N.W.F.P. was not competent to order re-instatement of the petitioner and the Governor N.W.F.P. had such authority under the N.W.F.P. Public Service Commission Officers and Servants (Terms and Conditions of Service) Regulation, 1985. 4. Qazi Atiq-ur,-Rehman, Advocate for the petitioner contended with vehemence that the petitioner was made the victim of circumstances and that the case of the petitioner for re-instatement having been approved and recommended by the then Chief Minister NWFP, Respondent No. 1 had no jurisdiction to keep aside the order and decline to re-instate the petitioner in service. The learned counsel in order to show that the Chief Minister was the sole authority and not the Governor, placed rejiance on Ishfaq Hussain Rana us. Government of Punjab (1993 SCMR 1326) and Dr. Qaimuddin vs. Government of N.W.F.P and 3 others (1995 SCMR 876).

3. In reply Ms. Musarrat Hilali, learned Additional Advocate General invited our attention to the.relevant provisions of N.W.F.P. Public Service Commission Officers and Servants (Terms and Conditions of Service) Regulation, 1985 and submitted that the Chief Minister N.W.F.P. was not competent to pass order regarding reinstatement of the petitioner and that the authority vests in the Governor N.W.F.P. Peshawar. She also contended that service record of the petitioner is a sad commentry on his work, attitude and behaviour as a responsible person and he was found having contaminated the entire set up. Concluding the arguments it was maintained that the petitioner had tendered resignation of his own without any pressure and he was not made victim of excesses due of his political affiliations. The point of delay in approaching the quarter concerned was also agitated. , We have heard at length the arguments of learned counsel for the parties and perused the documents annexed with the petition and the judgments cited on behalf of the petitioner.

There is no dispute about the fact that the petitioner applied for the post of Assistant in the N.W.F.P. Public Service Commission in 1970. The petitioner was selected and appointed as an Assistant. He was promoted and appointed as Superintendent in 1975. He tendered resignation on 13.3.1978 which was accepted vide order dated 10.5.1978 and communicated to the petitioner vide letter dated 14.5.1978. The petitioner subsequently decided to withdraw his resignation and approached the quarter concerned but his efforts proved futile and ultimately he approached the Services Review Board Peshawar by filing Review Petition No. 16/1989 which was disposed of by virtue of or,der dated 29.1.1990 with the observation that petition does not fall within the purview of the recommendatory powers of the Board. However, it was remarked that the Provincial Government may consider the case of the petitioner for reinstatement without any compulsive recommendation from this Board.

1. Under the N.W.F.P. Public Service Commission Officers and Servants (Terms and Conditions of Service) Regulations, 1985, the Appointing Authority for BPS-16 is Chairman, N.W.F.P. Public Service Commission. In case of Commission the Governor is the authority for deciding the cases of appointment/promotion for the employees in the N.W.F.P. Public Service Commission and not the Chief Minister. In the present case, it appears that in the absence of approval of the Governor, Respondent No. 1 was hesitant to implement the orders of Chief Minister and allow the petitioner to resume duties.

2. Learned counsel for the petitioner contended with force that the petitioner had an unblemish record of service and he was subjected to victimization for no other reason but on account of his refusal to abide by the wishes of his superiors which compelled the petitioner to tender resignation. Conversely it was urged that the petitioner was not a willing worker and he tendered resignation Voluntarily and without any compulsion. The resignation was duly processed in S. &GAD and accepted by the Provincial Government. His representation/appeals were duly considered in consonance with the well known and understood principles recognized by law. The submissions of the learned State counsel carry weight. A perusal gf the record would reveal that after acceptance of the resignation the petitioner slept over his rights for a sufficient long period and did not bother to approach the quarter copcerned. Delay in the filing of the petition which remains unexplained is also not without effect on the grant of discretionary relief under Article 199 of the Constitution. In such like situation Courts of law are always reluctant to grant discretionaiy relief. If an authority is needed on the point reference can be made to the case of Kamal Hussain vs. M. Sirajul Islam reported in PLD 1969 S.C. 42. Adverting to judgments cited on behalf of petitioner 1993 SCMR 1326 and 1995 SCMR 876, we find that the same are distinguishable and have no bearing on the facts of the present case. These rulings are of no help to the petitioner. In view of what has gone above it follows that Respondent No. 1 had valid reasons to refuse to take back the petitioner in service and no mala „ fide js spelt out of his action attracting the extraordinary constitutional jurisdiction of this Court. The petition is not maintainable. The same is hereby dismissed with no order as to costs.

(A.P) . Petition dismissed.

PLJ 2002 Peshawar 134

. Present: IJAZ-UL-HASSAN, J.

Hqji MUHAMMAD UMAR-Appellant

versus

• FAZAL-UR-REHMAN--Respondeut S.A.O No. 5 of 1999, decided on 29.3.2002.

(i) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

----S. 13--Ejectment-Personal need of landlord--Essentails--Good faith has to be proved by clear and definite evidence which can inspire confidence and landlord had to establish that premises were required by him in good faith for personal need and that ejectment application has not been filed for extraneous considerations. [P. 136] A

(ii) West Pakistan-Urban Rent Restriction Ordinance, 1959 (VI of 1959)-

—-S. 13~Personal need of landlord-Quantum of proof-Burden to prove personal need was on landlord and he had failed to discharge same by way of producing satisfactory evidence to prove good faith/Z?ona fide— Evidence produced by landlord falls short of required standard and has rightly been ignored by lower forums-Tenant has succeeded to show that landlord was in habit of filing application for enhancement of rent-­Conduct of landlord had created obstacle in his way for ejectment order-Ejectment application has been filed with no other purpose than to pressurize respondent to accede to request of appellant and enhance rent.

[P. 137] B

(iii) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—S. 15(6)~Application for ejectment-Dismissal of—No case of misreading or non-reading has been made out warranting interference of High Court. [P. 137] C

PLD 2000 SC 67; 1980 SCMR 974; 1978 SCMR 437; 1968 SCMR 1087; 1984

CLC 2058; 1998 CLC 163; 1981 CLC 109; 1983 CLC 2407; 1982 CLC 1489;

1994 CLC 337; 1986 MLD 428; 1991 MLD 1236; PLD 2000 Pesh. 65; 1986

CLC 2628; PLD 1985 Quetta 142 ref.

" M. Hazfat Usman, Advocate for Appellant.. Mian Iqbal Hussain, Advocate for.Eespondent.

Date of hearing: 15.3,2002.

judgment

This appeal under Section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, by HqjiMuhammad Umar appellant is directed against order dated 23.9.1999 passed by learned District Judge/Zila Qazi

Swat whereby judgment and decree dated 24.2.1999 recorded by learned Rent Controller/Senior Civil Judge, Swat was maintained and appeal was dismissed.

1. Shortly narrated the facts leading to the filing of this appeal are that the appellant filed an Application No. 14/RC of 1996 on 25.7.1996 in the Court of Rent Controller/Senior Civil Judge Swat seeking ejectment of the resppndent from suit Shop No. 4 Akbar Hotel, Main Chowk Mingora, Swat, on the ground of personal need for his son Hazrat Usman, a goldsmith by profession. It was averred in the application that the respondent is tenant in suit shop under the appellant at the rate of Rs. 700/per month as rent vide a compromise agreement dated 22.5.1983; that the appellant requires the suit shop in good faith for his son who is working in a rented shop and that the respondent was requested time and again to vacate the suit premises but he refused to do so which necessitated the filing of ejectment application.

'3. The respondent appeared in Court and resisted the application on all grounds. He controverted the claim of the appellant and maintained that the application was filed with sole object to pressurize the respondent and enhance rent. The pleas of the parties gave rise to the framing of following issues:-

Whether the applicant has got a cause of action?

1. Whether this Court has got the jurisdiction to entertain the application?

Whether the application is based on mala fide?

2.Whether the applicant is estopped to file the present application?

Whether the application is bad in its present form?

1. Whether the applicant needs the suit shop for his personal need?

Whether the applicant is entitled to eviction order?

Relief.

1. After taking into account the evidence adduced by the parties in support of their respective contentions and hearing arguments from both sides, the learned trial Judge decided Issues Nos. 3 and 6 together and came to the conclusion that the landlord does not require the suit shop in good faith and that the eviction application has been moved for no other reason but to pressurise the tenant to increase rent. Having held so, he dismissed the application through judgment and decree dated 24.2.1999 which was upheld in appeal videorder dated 23.9.1999 of learned District Judge/Zila Qazi Swat. Hazrat Usman advocate appearing on behalf of the appellant, bitterly criticised the impugned order and maintained that sufficient

2. material was produced on record to demonstrate that the suit shop was required by the appellant in good faith for the personal use of his son Hazrat Luqman, working as goldsmith in a rented shop and that the eviction application has been rejected without any justifiable reason on the ground that suit shop is not required in good faith and that the application has been moved malafidely in order to increase rent. The learned counsel maintained that the evidence adduced by the appellant in support of his claim has been put at shelf without valid reasons which has materially prejudiced the rights of the appellant. The findings returned on Issues Nos. 1, 3 and 6 to 8 were also brought under challenge and lower Courts were accused to have failed to determine material issues of law. To substantiate the contentions, reliance was placed on Altaf Hussain appellant vs. Mst. Nuzhat-un-Nisa respondent (PLD 2000 Supreme Court 67), Khawaja Muhammad Abdullah vs. Sufi Faiz Muhammad (1980 SCMR 974), Allah Rakha vs. Muhammad Shaft (1978 SCMR 437), Nooruddin and others vs. Asghar Alt and others (1968 SCMR 1087), M. Yazdan vs. Mst. Zainab Bai (1984 CLC 2058), Muhammad Aslam vs. Muhammad Younas etc (1998 CLC 163), HajiMajid vs. Haji Imamuddin (1981 CLC 109), Muhammad Ramzan vs. Abdul Razzaq (1982 CLC 1489), Muhammad Saeed vs. Dr. Sultan Muhammad (1983 CLC 2407), Bata (Pakistan) Limited vs. TahirMahmood (1994 CLC 337), Mushtaq Ahmad vs. Additional District Judge and others (1986 MLD 428), Tahir Umar vs. Messrs Bata Shoe (Pakistan) Limited (1991 MLD 1236) and Faqir Khan Vs. Khalid Hussain and others (PLD 2000 Peshawar 65)

3. Mian Iqbal Hussain, advocate, for the respondent, on the other hand, supported the judgment and decree of the learned Rent Controller and maintained in appeal by the First Appellate Court and contended that in view of the previous conduct of the appellant manifest from the record, ejectment application was rightly dismissed and that the conclusion of fact arrived concurrently by both the lower Courts warrants no interference particularly when no specific mis-reading or non-reading of evidence has been pointed out. In this connection, he relied on Allah Rakha petitioner vs.Muhammad Shafi respondent (1978 SCMR 437) and Samiullah appellant vs. Mst. Begum Jehan respondent (1986 CLC 2628).

4. I have heard the arguments of learned counsel for the parties and have also gone through the evidence with their assistance. It needs no reiteration that good faith has to be proved by clear and definite evidence which can inspire confidence and it is the primary duty of the landlord to establish that suit premises are required by him in good faith for "personal need and ejectment application has not been filed for extraneous consideration.

In Malik Din appellant vs. Manzoor All respondent (PLD 1985 Quetta 142), the following observations were made:-

"5.The term reasonable possesses an objective element and theword "require" would import something more than the mere desire and would call for a verdict from the Controller from objective standard. The question whether or not a premises is needed by the landlord for bona fide requirement is purely a question of fact which can be inferred from the circumstances which must be proved by the landlord by producing evidence. It is thus the duty of the Controller to see that premises are required both reasonably and bona fide and thus strike a balance between the arbitraiy and unbridled desire of the landlord and the tenant at large. Bona fide must be proved in the ordinary way like any other fact and once the Court below finds as a fact that the landlord does not require the building premises bona fidethere would be no justification for the Appellate Court to interfere with such a findings." In the present case, ejectment is sought principly on the ground that the suit shop is required by the appellant in good faith for the use of his son who is engaged in goldsmith business in a rented shop. The burden to prove this fact was heavily on the shoulders of the appellant but he has failed to discharge the same by way of producing satisfactory evidence to prove good faith or. bona fide. The evidence produced by him falls short of the required standard and has rightly been ignored by the lower forums. As against this, the respondent has succeeded to show that the appellant is in the habit of filing applications for enhancement of rent. We have it in evidence that three other ejectment applications were also filed by the appellant against his tenants namely Amin, Lakshmi Das and one another which were subsequently withdrawn by him in view of the tenants' willingness to increase rent. This conduct of the appellant has created obstacle in his way for an ejectment order. I am satisfied that the ejectment application has been filed with no other purpose but to pressurise the respondent to accede to the request of the appellant and enhance rent. Adverting to the concurrent verdict of the Courts below I find that no case of mis-reading or non-reading has been made out warranting interference of this Court. Nothing has been brought to my notice to indicate that the shop is suit was actually needed by the appellant for the use of his son and that no mala fide was involved. It was held in Allah Rakha petitionervs. Muhammad Shaft respondent (1978 SCMR 437) that: "The real test would be whether the need is based on "good faith" is a question of fact and finding on this subject could be taken exception to in this Court unless it is shown that it suffers from violation of . some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence. In the instant case both the Courts below on the subject of "good faith" have given a verdict in favour of the landlord. The learned counsel has not been able to point out any factual or legal error in the aforesaid finding warranting interference by this Court." 9A. Learned counsel for the appellant has also assailed the findings returned on Issues Nos. 1, 3 and 6 to 8 but the findings in this respect and conclusions drawn are supported by actual evidence on record and hardly require interference of this Court. So far as the case law cited on behalf of the appellant is concerned I find that the same is distinguishable and has no bearing on the facts of the present case. In the cited rulings the requirement of the landlord was found genuine and thus an order of vacation was made whereas in the instant case the position is altogether different, because the appellant has failed to prove 'good faith' and 'bona fide\ In the wake of above discussion, I find no substance in this appeal and dismiss the same with no order as to costs.

(A.P.) Appeal dismissed.

PLJ 2002 Peshawar 138

Present:MALIK HAMID SAEED, J. NAUSHAD KHAN-Petitioner

versus

ROZI MUHAMMAD-Respondent C.R. No. 280 of 2000, decided on 26.7.2002.

(i) Shari-Nizam-e-Adl Regulation 1999 (I of 1999)--

—Reglns. 6 & "Muavineen-e-Qazi" and "Musleheen"~Connotation~Job of Muavineen-e-Qazi is to assist Court in matters requiring expounding and interpretation of injunction of Islam relevant to proceedings of pending case-Job of Musleheen, if appointed by Court with consent of both parties, is to resolve dispute between parties in accordance with Sharia'h by recording their opinion with reasons therefor-Court can make such opinion of Musleh or Musleheen in a case referred to for Sulah as rule of Court if it is in accordance with Sharia'h. [P. 141] A

(ii) Shari-Nazim-e-Adl Regulation 1999(I of 1999)--

—-Regln. 6--Muavineen-e-Qazi, function of-Limitation--Function of "Muavineen Qazi" is to assist Court in every case, irrespective of fact whether same was referred to Musleheen for Sulah or was being tried by Court itself-Such assistance however is subject to discretion of Qazi keeping in view recently arriving in pending proceedings with regard to interpretation of injunctions of Islam. [P. 141] B

(iii) Shari-r&zam-e-Adl Regulation 1999 (I of 1999)-

Regln. 6--Shari-Nizam-e-Adl Rules 1999, Rr. 9 & ll(6),(7)Muavineen-e-Qazi under provisions of Rr. 9 & 11 could not resolve dispute between parties by making any proceedings towards settlement thereof, nor could make or submit any opinion in Court with regard to factual controversy, nor can court make such opinion as rule of Court. [Pp. 141 & 142] C

(iv) Shari-Nizam-e-Adl Regulation, 1999 (I of 1999)--

—Reglns. 6 & 7--Civil Procedure Code (V of 1908), S. 115-Judgment and decree of Appellant Court-Legality-Appelalte Court by its impugned judgment had not acted in violation of relevant provisions of law, but has also exceeded its jurisdiction by straight away decreeing suit "without any decision of Ulaqa Qazi thereby taking away substantive right of appeal from petitioner-Impugned judgment decree was, thus, liable to be set aside-Case was remanded to trial Court for decision afresh on merits.

[P. 142] D

Maazullah Khan Barkandi, Advocate for Petitioner. Haji Muhammad Zahir, Advocate for Respondent. Date of hearing: 2.7.2002.

judgment

This revision petition was admitted, to regular hearing on 30.3.2001 so as to consider the contention of the learned counsel for the petitioner that the Appellate Court of District Judge/Zilla Qazi Malakand, who was seized of the matter respecting interlocutory order, has granted decree in respondent's favour on original side and the guaranteed right of appeal to the aggrieved party has been taken away. Moreover, the question of the correct interpretation and application of Sections 6 and 7 of the Shari-Nizam-e-Adl Regulation, 1999 (NWFP Regulation No. 1 of 1999) (hereinafter called as the "Regulation") was also involved in the case.

1. Brief facts of the case are that Rozi Muhammad, respondent, filed a pre-emption suit against the petitioner in the Court of As'lla Illaqa Qazi Malakand, which suit of the respondent was contested by the petitioner by filing written statement. The learned Illaqa Qazi (trial Court) before framing of issues asked the parties for referring the case to the 'Muslih' as per Section 7 of the Regulation but both the parties refused to go for mediation before the 'Muslih'. However, later on with the consent of both the parties the matter was referred to 'Muauin-e-Qazi' for resolution. The 'Muavin-e-Qazi'had not yet submitted their report to the trial Court when the petitioner submitted an application to the Illaqa Qazi showing therein his no confidence on the 'Muauin-e-Qazi'. The learned trial Court vide order dated 25.11.1999 accepted the application and ordered that the case is to be decided on merits after framing certain issues. The respondent filed appeal against this order before the Zilla Qazi Malakand. The learned Zilla Qazi accepted the appeal and on the basis of the Award of the 'Muavin-e-Qazi', already filed in the trial Court, decreed the suit of the respondent on 23.2.2000 against the petitioner. Feeling aggrieved, the petitioner has filed the instant revision petition against the impugned judgment/decree of the learned Zilla Qazi.

2. It would be proper to reproduce the relevant provisions of Sections 6 and 7 of the Regulation, which reads as under:

"6. 'Muavin-e-Qazi, and A'alim Wakeel. '(1) Government shall, within a period of two months from the date of commencement of this Regulation, constitute a committee consisting of the following members, namely:-

(1) ........................

(ii) .............

(iii)

(iv)

(v)...............

(vi)

(2) The Committee constituted under sub-paragraph (1), hereinafter referred to as the Committee, shall have the authority to select -Muavineen-e-Qazi, and the name of such Muavineen shall be declared, by notification in the official Gazette, for each calendar year, for each district or protected area, in the form of a panel of upto thirty. Ulema of known integrity and good character, and being well- versed in Sharia'h;'

Provided that the name of such person shall be retained on the future panel, unless the Committee, for reasons to be recorded in writing, decides to delete the name of any person from the panel.

(3) A Qazi shall, for the purpose of expounding and interpreting the injunctions of Islam relevant to the proceedings of a pending case, call upon one or more of such Muavineen-e-Qazi for his assistance.

(5) ..............

(6)................

..................

"7. Power to appoint Musleh...

(1) where the parties to a dispute before the Court agree, the Court may refer the dispute to one or more Musleheen, appointed by mutual consent of the parties, for its resolution in accordance with Sharia 'h.- Provided.. ,

(2) The Musleheen shall be' assisted by Mauvin-e-Qazi in advisory capacity in each case, with respect to Sharia'h during the course of Sulah.

(3) The Musleheen shall record their opinion with regard to a dispute referred to them with reasons therefore.

(4) Where a Musleh or, as the case may be Musleheen, to whom a dispute has been referred for resolution, either fail or refuse to resolve it, or the Court is of the opinion that unnecessary delay has been caused, without sufficient reason, in resolving it, the Court may, on the application of a party or suo moto for the reasons to be recorded, withdraw the order of such reference, and, after such withdrawal, it shall resolve the dispute in accordance with Sharia 'h as if it were not referred for Sulah.

(5) The Court, if it is satisfied that the opinion in a case referred to for Sulah under sub-paragraph (1) is in accordance with Sharia'h make it the rule of the Court, and shall announce it as such, but, if the Court comes to the conclusion that the opinion is not in accordance with Sharia'h it shall declare the opinion, for the reasons to be recorded, as null and void and shall start its proceedings for decision of such dispute in accordance with Sharia'has if it were not referred for Sulah and the Muavin-e-Qazi, . appointed for such resolution shall cease to be Muavin-e-Qazi, for further hearing of that case." 4. From the above provisions, it is evident that the job of the Muavineen-e-Qazi is to assist the Court in matters requiring the expounding and interpretation of the Injunctions of Islam relevant to the proceedings of a pending case, whereas the job of Musleheen, if appointed by the Court with the consent of both the parties, is to resolve a dispute between the parties in accordance with Sharia'h by recording their opinion with reasons therefore and the Court can make such opinion of the Musleh or Musleheen in a case referred to for Sulah as rule of the Court if it is in accordance with Sharia'h.In the every caption of Section-6, the word 'Muavinin-e-Qazi is used. The word 'Muavin' as prescribed in the Urdu-English Dictionary, (by Dr. S.W. Fallen) published by Urdu Science Board, Lahore means "a helper, an assistant, as supporter". U/Section 6 of the Regulation, the 'Muavin-e-Qazi' is to assist the Court for expounding, interpreting the injunctions of Islam relevant to the proceedings of a pending case.

1. According to Section-6 of the Regulation, the 'Muavineen-e-Qazi' can assist the Court in every case, irrespective of the fact whether it is referred to Musleheen for Sulah or is being tried by the Court itself, however, such assistance is s'ubject to the discretion of the Qazi keeping in view the necessity arising in pending proceedings with regard to the interpretation of the Injunctions of Islam. When a matter is referred to Musleheen,they shall be assisted by the 'Muavineen-e-Qazi' in advisory capacity in each case with respect to Sharia'hduring the course of Sulah.

2. In this case, the job of Musleheen was, however, entrusted to 'Muavineen-e-Qazi' and that too when both the parties had showed their un­ willingness to resolve the "dispute through Musleh/Musleheen. Under the above provisions of the Regulation, the 'Muavineen-e-Qazi' could not resolve a dispute between the parties by making any proceedings towards its settlement, nor could make or submit any opinion in the Court with regard to factual controversy, nor the Court can make such an opinion as rule of the Court. In support of this view, Rule 9 of the Shari-Nizam-e-Adl Rules, 1999 can also be relied upon, which provides that a Qazi shall provide facility to a Muavineen-e-Qazi call for assistance of the Court to hear evidence and arguments, and to peruse the record of the case, and the Qazi Shall, before decision of the case or proceeding, hear him on the legal points involved in

the case or proceeding in the light of Sharia'h.Rule 11 sub-Rules (6) and (7) also provide that:-

"(6) Government shall provide funds to the concerned Zilla Qazi for payment to Muavineen-e-Qazi who appear, in accordance with the instructions of the concerned Zilla Qazi, in the Courts in the area of his jurisdiction.

(7) A Muavin-e-Qazi,when called by Court, shall assist the Court in arriving at correct conclusion regarding the proper application of Islamic laws in the circumstances of a case and shall quote reference from Quran Majeedand Ahdith-e-Nabvi (Sallallaho AlaiheWasallam) and Fatawa andbook of Fiqh of the recognized Fuqaha 'aof Islam."

The above rules clearly determines the functions and duties of Muavineen-e- Qazi while giving assistance to the Court. The learned trial Court had initially erred in law while referring the matter of Muavineen-e-Qazi for resolution, anyhow, the learned trial Court on the application of the petitioner recalled the order of Reference and cancelled the alleged Award of Muavineen-e-Qazi by making orders to proceed with the matter on merits, but on appeal filed by the respondent, the learned appellate Court again committed the same error and not only relied on, the report/award of the Muavineen-e-Qazibut made it as rule of the Court and granted decree in favour^ of the respondent in an appeal which was filed against an interlocutory order of the trial Court. The learned appellate Court has thus not only acted in violation of the relevant provisions of law, but has also exceeded his jurisdiction by straight away decreeing the suit without any decision of the Illaqa Qazi thereby taking away the substantive right of appeal from the petitioner. The impugned judgment/decree is, therefore, liable to be set aside. .

1. Accordingly, this revision petition is accepted, the impugned judgment/decree of the learned appellate Court is set aside and the case is remanded to the learned trial Court for further proceedings and decision of the case on merits as per order dated 25.11.1999. The learned trial Court should decide the case within a period of two months. In the circumstances of the case, the parties are left to bear their own costs.

(A.A) Revision accepted.

PLJ 2002 Peshawar 143 (DB)

Present: malik hamid saeed and ijaz-ul-hassan khan, JJ.

AZIZ-UR-REHMAN-Petitioner

versus SYED MUHAMMAD HASNAIN and 2 others-Respondents

W.P. No. 515 of 2002 with C.M. No. 732 of 2002 (M.), decided on 5.7.2002.

West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—-S. 130-Constituion of Pakistan (1973), Art. 199-Ejectment of tenant-Bonafide personal need of landlord-Quantum of proof-Landlord has brought sufficient evidence in support of his claim ofbonafide need of-his son who is jobless-Tenant has not been able to point out any misreading or non-reading of evidence warranting interference by High Court in its extra-ordinary Constitutional Jurisdiction-Mere fact that son of landlord for whom premises "was needed had not appeared in witnesses box or nature of business had not been disclosed in ejectment application, by it self, cannot be considered good ground to dislodge claim of landlord.

[P. 144] A

West 'Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—-S. 130-Constituion of Pakistan (1973), Art. 199-Ejectment of tenant sought on bona fide personal need of landlord-Statement of landlord inspiring confidence regarding his bona fide use recorded on oath cannot be brushed aside if the same was found consistent with the application for ejectment and not shaken or disprove in cross-examination-Evidence on record clearly showed that son of landlord was jobless and shop in question, was required for his personal need-Such portion of statement of landlord has not been rebutted-Question of personal requirement has been independently proved and issue regarding personal requirement has been rightly decided in favour of landlord-No misreading on non-reading- of evidence on the part of Courts having been shown, concurrent finding of fact of two Courts below cannot be upset in Constitutional Jurisdiction of High Court. [P. 145] B

1997 SCMR 1062 ref.

Mr. Mazullah Barkandi, Advocate for Petitioner. Date of hearing: 5.7.2002.

order

Ijaz-ul-Hassan Khan, J.-Syed Muhammad Hasnain Respondent No. 1 herein, filed an application against Azizur Rehman petitioner herein under Section 13 of Rent Restriction Ordinance, 1959, in the Court of Civil Judge/Rent Controller Hangu, seeking ejectment of the latter from the shop

in suit on the sole ground of personal requirement for his son Syed Wasiul Hasnain. The application was resisted on all grounds legal as well as factual and the same was stated to have been moved in order to enhance the rent. The parties were put to trial on as many as six issues. Upon consideration of the evidence adduced by the parties the learned Rent Controller by its, judgment and decree dated 21.11.2000, accepted the application and directed the tenant to deliver possession of suit shop to the landlord within two months. Feeling aggrieved, an appeal was preferred before Additional Sessions Judge Hangu which was dismissed through judgment dated 21.3.2002, which has given rise to the filing of instant Constitutional petition.

1. Mr. Mazullah Barkandi, Advocate, for the petitioner challenged the impugned order principally on the ground that the material on record to rebut the claim of the landlord has not been taken into consideration properly which has materially prejudiced the interest of the tenant. The learned counsel contended that the plea of personal need has not been proved satisfactorily and the material on file clearly demonstrates that ejectment application was filed with sole purpose to increase rent. The learned counsel contended that the landlord has not disclosed the nature of business to be started by his son and that the landlord owns numerous shops in main Bazar Hangu in addition to two shops adjacent to the shop in question. This circumstance, the learned counsel added, tends to suggest that suit shop is not needed in good faith for personal requirement of the son of the landlord. The submissions of the learned counsel are not tenable. We have gone through the entire material on record and we find that respondent-landlord has brought sufficient evidence in support of his claim. The learned counsel has not been able to point out any misreading or non-reading of evidence warranting interference by this Court in its extraordinary Constitutional jurisdiction. The mere fact the son of the landlord has not appeared in the witness-box or the nature of business has not been disclosed in ejectment application, by itself, cannot be considered a good ground to dislodge the claim of respondent-landlord. In Juma Sher vs. Sabz All (1997 SCMR 1062) it was observed :--

"There is no legal requirement that the landlord in seeking ejectment of the tenant from a commercial premises on the ground of personal and bona fide requirement must disclose the nature of the business which he intended to start in the premises. Similarly/it is also not necessary for a landlord to prove his personal and bona fide requirement of commercial premises that he must possess experience in the trade of business which he intends to set up in the premises after eviction of his tenant. If this argument is accepted, then a landlord, however, genuinely, may require a commercial premises for his personal requirement cannot succeed if he does not possess experience of a particular business or trade."

1. It is not denied that the statement of the landlord inspiring confidence regarding his bona fide use recorded on oath cannot be brushed aside if the same is found consistent with the application for ejectment and not shaken or disproved in cross-examination. In the present case, it has come in evidence that son of the respondent is jobless and the suit shop is required for his personal need. The said portion of the statement of'the landlord has not been rebutted. The question of personal requirement has been independently proved and issue regarding personal requirement has been rightly decided in favour of the landlord. No misreading or non-reading of evidence on the part of the Courts below has been shown. Thus, there is concurrent finding of fact, which cannot be upset in the exercise of power under Article 199 of the Constitution of Pakistan, 1973.

2. In the result and for the foregoing reasons, finding no substance in this writ petition, we dismiss the same in limine.

(A.A.) Petition dismissed.

PLJ 2002 Peshawar 145 (DB)

Present: shah jehan khan and ijaz-ul-hassan, JJ.

NATIONAL BANK OF PAKISTAN through President, Head Office Karachi and 4 others-Appellants

versus .

KHALID MAHMOOD—Respondent F.B.A. No. 16 of 2000, decided on 30.1.2002.

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

—-S. 2(b)--A Banking Court as established under Section 2 (b) of the Act, 1997, is competent to hear and adjudicate cases, inter alia, of the following nature:- All suits filed by Banking Companies against borrower or customer for recovery of Loan or Finance, either based on interest or mark-up as defined in Act, 1997. All suits or claims filed by a borrower or customer against the Banking Company claiming any adjustment, set off or setting up a counter claim either through an independent suit or in a suit filed by a Banking Company. Suits for accounts arising out of a Loan or Finance as defined in the Act, 1997.Suits for specific performance seeking enforcement of an agreement or contract to pay or re-pay and Loan or Finance or to perform any obligation arising out of such agreement. All the suits for declaration as to legality validity or otherwise or a document which creates Loan or Finance as defined in the Act, 1997. All the suits for cancellation of any instrument through which any liability to pay or to repay ,a Loan or Finance may arise. All the suits for prohibitory injunction which may restrain any of the parties namely Banking Companies, borrower or customer from performing their obligations and duties arising out of such business pertaining to Loan or Finance. In the like manner, all suits in the nature of mandatory injunction. (h) All the suits for damages (excluding top cases) arising out of the breach of contract executed in respect of Loan or Finance between the Banking Company on the one hand and the borrower or customer on the other. [Pp. 149 & 150] A

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

—Controversy relating to redemption of mortgaged property and release of its documents-Held : Banking Court had exclusive jurisdiction to adjudicate upon matter-A perusal of clause 14 of deed of mortgage would reveal that mortgagor shall be entitled to immediate reconveyance of mortgaged property on full and final payment of all moneys due from him-There is nothing in agreement/deed to show that in case of service of charge-sheet, Bank and authority to retain property and its documents till mortgagor is cleared of charges-It needs no reiteration that no one can be allowed to go beyond terms and conditions contained in an agreement executed between parties--In instant case, no such condition having been incorporated in agreement of specified date the appellant- Bank had no authority to agitate that as long as plaintiff-respondent is not exonerated of charges, Bank is not in a position to release mortgaged property or release its documents-Loan in question had no legitimate nexus with service of charge-sheet." [Pp. 150 & 151] B & C

Mr. Fazal-e-Gul Khan, Advocate for Appellants. Mr. Tariq Khan Tanoli, Advocate for Respondent. Date of hearing: 30.1.2002.

judgment

Ijaz-ul-Hassan, J.-This appeal is directed against the judgment and decree dated 1.2.2000 announced by learned Judge Banking Court Abbottabad, whereby the application of the appellant-Bank for grant of leave to appear and defend the suit was declined and the suit of plaintiff-respondent for the redemption of mortgaged property/deeds was decreed with special Costs of Rs. 1000/-.

1. Facts relevant for the purpose of this appeal are that Khalid Mehmood, plaintiff-respondent filed Suit No. 758/1 of 1999 against National Bank of Pakistan and others defendants-appellants, seeking redemption of his mortgaged property and release of the documents/deeds in respect thereof. The plaintiff-respondent, an Ex-employee of the appellant-Bank, availed house Building Advance from City Branch Abbottabad of National Bank of Pakistan under House Building Finance Scheme, amounting to Rs. 5,68,900/- The loan was released against the properly of loanee Khalid Mehmod. The loan was fully repaid and adjusted with mark-up and clearance certificate dated 28.2.1998 was issued. After the full and final payment of the loan, the loanee's property was to be redeemed and released forthwith. According to the loanee, the appellant-Bank was requested time and again through legal notice and letters to redeem the property and release the documents but with no result which necessitated the plaintiff- respondent to file suit.

2. The plaintiff-Bank in its application for grant of leave raised several objections and maintained that the plaintiff-respondent was served with charge-sheet dated 4.3.1998 for misconduct, commission/omissions and irregularities and as long as he is not cleared of the charges the appellant- Bank is not in a position to redeem the mortgaged property or release its documents. The learned Banking Judge refused to grant leave with the observations that the property which was mortgaged with the bank, was security for the payment of loan availed by the plaintiff which has already been paid in full and nothing is out-standing against the borrower. The property mortgaged has no concern with the charges levelled against the plaintiff in the charge-sheet.

3. Mr. Fazal Gul Advocate appeared on behalf of the appellant-Bank whereas the plaintiff-respondent was represented by Mr. Muhammad Tariq Tanoli Advocate.

4. Learned counsel for the appellant-Bank contended, inter-alia,that the judgment of the lower Court is against law, facts and equity and that the leave has been refused without any justifiable cause irrespective of the fact that sufficient material was brought on record justifying grant of leave. The learned counsel added that there was triable issue between the parties which could not be resolved without taking evidence. Additionally it was urged that in view of Section 7(4) of the Banking Companies (Recovery of Loan, Advances, Credits and Finances) Act (XV of 1997), the Court had no jurisdiction to adjudicate upon the matter.

5. As against this, learned counsel for the plaintiff-respondent supported the impugned judgment and decree and maintained that keeping in view the facts and circumstances of the case, the learned trial Judge had good reasons to decline to accept the application of the appellant-Bank and grant leave.

6. Having heard the arguments of learned counsel for the parties in the light of the material on file, we find that there was no triable issue between the parties needing evidence and as such the learned Banking Judge was quite justified to decline to accept the application, of the appellant-Bank for grant of leave. Sections 7 and 9 of the Banking Act, 1997 are reproduced below for facility sake: "7. Power of Banking Courts.--(l) Subject to the provisions of this Act a Banking Court shall-

(a) in the exercise of its civil jurisdiction have all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908); ......: provided that....

(2) A Banking Court shall in all matters with respect to which procedure has not been provided for in this Act, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908). (3)

(4) Subject to sub-section (5) no Court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Act, including a decision as to the existence or otherwise of a loan or finance and the execution of a decree passed by a Banking Court....

(9) Procedure of Banking Court,—(1) Where a borrower or a customer or a banking company commits a default in fulfilling any obligation with regard to any loan or finance the banking company or, as the case may be, the borrower or custom, may institute a suit in the Banking Court by presenting a plaint duly supported by a statement of account which shall be verified on oath in the case of a banking company by the Branch Manager or such other officer as the Board of Directors of a banking company may authorise in this behalf. Copies of the plaint shall also be filed along therewith in sufficient numbers so that there is one copy for each defendant and one extra copy."

1. A close scrutiny of the above two provisions of the Banking Companies Act, 1997 namely Section 7(4) and 9(1) would reveal that a borrower or a customer or a Banking Company will be entitled to file a suit when any of them commits a default in fulfilling any obligation with regard-

to any loan or finance. The first requirement is that the parties should be either a borrower or ^-customer or a banking company which have been declined in Section 2 of the Act, 1997. According to sub-section (c) of Section 2 a borrower means a person who has obtained a loan under a system based on interest from a banking company and includes a surety or an indemnifier. This definition is same as of Ordinance, 1979 except to the extant that the loan must be based on the system of interest. (For detailed discussion on the term 'borrower' see United Bank Ltd, v. Adamjee Insurance Co. Ltd. (1988 CLC 1660). The customer has been defined in sub­section (d) to Section 2 which means a person who has obtained finance under a system which is not based on interest form a banking company or is the real beneficiary of such finance 'including a surety or indemnifier. Again, this definition is the same as of 'customer' in the Ordinance, 1984, except that the finance should not be based on system of interest. Sub-section (a) to Section 2 also defines the Banking Company and the names of such Banking Companies have been disclosed in the Schedule to the Act, 1997.

1. The second condition precedent for bringing a suit within the scope of Banking Court is that such suit must arise from a commission of a default in fulfilling any obligation touching the business of loan or finance. This suggests that if the transaction is outside the scope of the loan or finance even then commission of any default in fulfillment of obligation will not bring a suit within the jurisdiction of a Banking Court. However, a question whether there exists any agreement to grant loan or finance will definitely fall within the jurisdiction of Banking Court. Therefore, where a suit is filed by a customer or a borrower claiming that amount received by them was not as a result of loan of finance it will fall within the jurisdiction of a Banking Court. 'Munir Ahmed Siddique and another vs. Feroz Ahmed Siddique and two others 1990 MLD 1776, 'National and Grindlays Bank Ltd, v. N.P. Miranda and 2 others ' 1984 CLC 2106, 'M/s Shafiq Hanif (pvt.) Ltd., Karachi v. Bank of Credit and Commerce International (Overseas) Ltd., Karachi' PLD 1993 Karachi 107 and 'Kamran Industry (pvt.) Ltd., v. Industrial Development Bank of Pakistan and others' 1994 SCMR 1970. In view of what has gone above, it follows that a Banking Court as established under Section 2 (b) of the Act, 1997, is competent to hear and adjudicate cases, inter alia, of the following uature:-

(a) All suits filed by Banking Companies against borrower or customer for recovery of Loan or Finance, either based on interest or mark-up as defined in Act, 1997.

(b) All suits or claims filed by a borrower or customer against the Banking Company claiming any adjustment, set off or setting up a counter -claim either through an independent suit or in a suit filed by a Banking Company.

(c) Suits for accounts arising out of a Loan or Finance as defined in the Act, 1997.

(d) Suits for specific performance seeking enforcement of an agreement or contract to pay or re-pay and Loan or Finance or to perform any obligation arising out of such agreement.

(e) All the suits for declaration as to legality validity or otherwise or a document which creates Loan or Finance as defined in the Act, 1997.

(f) All the suits for cancellation of any instrument through which any liability to pay or to repay a Loan or Finance may arise.

(g) All the suits for prohibitory injunction which may restrain any of the parties namely Banking Companies, borrower or customer from performing their obligations and duties arising out of such business pertaining to Loan or Finance. In the like manner, all suits in the nature of mandatory injunction.

(h) All the suits for damages (excluding top cases) arising out of the breach of contract executed in respect of Loan or Finance between the Banking Company on the one hand and the borrower or customer on the other. In the wake of above discussion, we find that the "objection raised on behalf of the appellant-Bank regarding jurisdiction of the Banking Court to adjudicate upon the matter, is not sustainable and does not hold the field. The controversy relating to redemption of mortgaged property and release of its documents, the Banking Court had exclusive jurisdiction to adjudicate upon the matter. 11. At the time of availment of load an agreement was executed between the parties on 11.3.1976 enumerating certain terms and conditions of repayment of loan etc. Clause 14 of the said agreement (deed of mortgage) reads: "That the Mortgagor shall be entitled at his own expenses to the immediate reconveyance of the mortgage property on the full and final payment of all the moneys due from the mortgagor to the mortgagee on account of the loan account mentioned above or otherwise." "A perusal of the above referred clause would reveal that the mortgagor shall be entitled to the immediate reconveyance of the mortgaged property on the full and final payment of all the moneys due from him. There is nothing in the agreement/deed to show that in case of service of charge-sheet, the Bank and authority to retain the property and its documents till the mortgagor is cleared of the charges. It needs no reiteration that no one can be allowed to go beyond the terms and conditions contained in an agreement executed between the parties. In the instant case, no such condition having been incorporated in the agreement dated 11.3.1976 the appellant-Bank had no authority to agitate that as long as the plaintiff-respondent is not exonerated of the charges, the Bank is not in a position to

release the mortgaged property or release its documents. The loan in question had no legitimate nexus with the service of charge-sheet." -

1. Having agreed with the learned Banking Judge that no serious or bona fide dispute needing trial existed between the parties, justifying grant of leave, we dismiss the appeal and allow the parties to bear their own costs.

(T.A.F.) Appeal dismissed.

PLJ 2002 Peshawar 151 [D.I. Khan Bench]

Present: qazi ehsanullah qureshi, J. ZULFIQAR-Petitioner

versus

MUHAMMAD JAN-Respondent C.R. No. 134 of 2001, decided on 21.1.2002.

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

—-O.V, Rr. 16, 18 & 19-O.LX, R. 13 & Ss. 12(2) & 115-Summons were not served in accordance with the mode prescribed in C.P.C.~Effect—No endorsement on the back of the summons indicated as to why defendant was not served at his home address as given in the plaint and why he was served in the B.C. Office and who had indemnified him and in whose presence he was served-Trial Court before passing ex-parte decree and before ordering ex-parte proceedings had not examined process server on oath which was mandatory legal requirement-Appellate Court while disposing of appeal did not examine as to whether trial Court while proceeding ex-parte had acted in accordance with relevant provisions of law—Appellate Court treated ex-parte application to be one under S. 12(2) C.P.C. and ignored the fact that such application could be. filed within three years and not within thirty day-Courts below failed to understand that while computing period of limitation, intervening period of summer vacations has to be excluded-Judgments and decrees of Courts below were set aside and case was remanded to trial Court for decision on merits by giving them opportunity to contest the case. [P. 154] A

Mr. Liaqat All Khan Marwat, Advocate for Petitioner. Mr. Abdul Aziz Khan Dalokhel, Advocate for Respondent. Date of hearing: 21.2.2002.

judgment

The petitioner has moved this Court through the instant revision petition for setting the ex-parte judgments and decrees for Rs. 40,000/- dated 29.4.2000 and dismissal order dated 25.4.2001 on application for setting aside the ex-parte decree passed hy the learned Senior Civil Judge Lakki, and also dismissal of appeal vide order dated 6.11.2001 of the learned District Judge Lakki.

1. The controversy in the matter is that initially respondent had filed a suit for recovery of Rs. 40,000/- in connection with the sale transaction of landed property, which according to the plaintiff/respondent despite payment of the entire sale consideration, the petitioner had failed to

. transfer the suit land in his name. The learned trial Court after issuance of notice and its receipt as served proceeded against ex-parte, recorded ex-parte evidence and decreed the suit as prayed for vide judgment and decree dated 29.4.2000 in favour of the respondent against the petitioner. Subsequently, when the petitioner came to know during the execution proceedings about the ex-parte decree, he moved the Court for its setting aside but the said application was dismissed on 25.4.2001. Aggrieved therefrom, the petitioner filed an appeal before the learned District Judge Lakki which too was dismissed on 6.11.2001. Hence this revision.

1. The learned counsel for the petitioner, inter alia, contended that the petitioner was not properly served during the trial proceedings in the manner and mode prescribed under the CPC. There is an endorsement on back of the summon by the process-Server that service on the petitioner was affected at D.C. Office. It is un-understandable and no such reasons are given on the summon that why the petitioner has not been served on his home address. It also does npt contain that how the petitioner was identified at D.C. office. The procedure under Rule 18 CPC regarding service has not been adopted by the learned -trial Court who has proceeded in the matter in great hurry and has dealt the matter summarily. He next argued that execution petition was filed by the respondent/plaintiff after obtaining ex parts decree on 12.7.2000 which was fixed for hearing on 31.7.2000. It is presumed that the petitioner in the execution proceedings might have been served between 12/7/2000 and 31/7/2000. Be that as it may, he is served on

12.7.2000 ------ in the circumstances of the case, even than thirty days expires on 12.8.2000 which was month of August and Courts were closed due to Summer Vacations till 31.8.2000. Under Section 4 of the Limitation Act, it is provided that when the Courts are closed, the limitation period is to be reckoned w.e. from the opening of the Court and the period of vacations is not to be counted for the purpose of limitation. So, the petitioner promptly filed an application for setting aside the ex-parte decree on 1.9.2000 which is well within time, hence the learned trial Judge mis-construed and mis­conceived the legal aspect of the matter and had not appreciated the delicacy of the situation.

1. The learned counsel for respondents opposed the arguments of the learned counsel for the petitioner with full force and submitted that the petitioner was served properly strictly according to law and the learned trial Judge after due reasonable diligence proceeded ex-parte followed by a decree against the petitioner. The judgments/decrees impugned herein are perfectly in order and the petitioner had failed to point out any jurisdictional error, illegalities and irregularities if committed by the Courts below, so as to warrant interference by this Court in exercise of its revisional jurisdiction.

2. I have gone through the record with the able assistance of the learned counsel for the parties. Let the petition be thrashed out in view of the provisions meant for the purpose. Order 5, Rule 16 CPC envisages as under:--

"16. Persons served to sign acknowledgment.-Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.""

Order 5, Rule 18 CPC reads as under:

1. Endorsement of time and manner of serw'ce.--The servicing officer shall in all cases in which the summons has been served under Rule 16, endorse or annex or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served and the name and the address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons."

Order 5, Rule 19 CPC speaks as below:

Rule 19. Examination of the Serving 0/7Icer.--"Where a summon is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit."

1. The bare reading of the above mandatory provisions of the Code of Civil Procedure 1908 provides complete guidelines for the Courts and Process-Serving Agencies. It says that in all cases in which summons have been served under Rule 16 CPC mentioned above, the Process-Server shall require the signature of the person to whom the copy is so delivered or endorse on the original summons his report thereon. Rule 18 ibid further directs the manner of service in which the same is served, to mention the name and address of the person (if any) and identify the person served and witnesses of the delivery or tender of the summons. Similarly, Rule 19 CPC lays down the procedure for the Courts that where a summon is returned under Rule ,17 aforesaid duly verified, the serving officer shall be examined on oath and may make such inquiry in the matter as it thinks fit and shall either declare that the summons is duly served or as it thinks fit and after his full satisfaction to proceed further.

2. In the instant case, endorsement on the back of summons does not indicate any such method that the mode of service is affected in line with the above provisions of law. There is no mention of identifying the person served, as to who had identified the petitioner at B.C. office, no witness is cited that in whose presence the service is affected, there is no endorsement on the back of the summons that as to why the petitioner is not served at his home address given in the plaint, and that what were the circumstances led him to locate the petitioner at B.C. office. Similarly, the Court before proceeding ex-partehad not examined the process-server on oath. The appellate Court had also treated the appeal before him off-handedly without applying his mind to the mandatory provisions of law. He was so careless that he had not even examined that under what provision of law, the application for setting aside the ex-partedecree was moved by the petitioner. He had treated such application U/S. 12(2) CPC and dismissed the appeal perhaps he was not conversant with the law on the subject that in case the application of the petitioner was filed U/S. 12(2) CPC, the time prescribed thereof is three years and not thirty days, as repeatedly held by the apex Court, as falls under Article 181 of the Limitation Act. It is also noticed with serious concern that both the Courts below have not appreciated the fact that after excluding the vacation period, the time is to be counted (thirty days) after excluding intervening period of Summer vacations. As such, in my view, the Courts below have not dealt with the matter from all legal angles and disposed it of against the all norms of justice.

3. In the wake of above discussion, I am inclined to accept this revision petition, set aside the impugned judgments and decrees of the two Courts below and remand the case to the trial Court for trial denovo. The parties shall be provided with^an opportunity to contest the case which shall

be ---- decided on merits.............. The Courts are required to dispense substantial justice instead of disposal on mere technicalities. No order as to costs.

(A.P.) Case remanded

PL J 2002 Peshawar 155 (DB)

[Circuit Bench Abbottabad]

Present: IJAZ-UL-HASSAN, J AND SECOND judge's name is not decipherable

Mst. ZAMURD" BEGUM-Appellant versus

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN, PESHAWAR and

2 others-Respondents

C. Misc. No. 123 of 2000 in R.F.A. No. 28 of 2000, decided on 20.9.2001.

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

—O. XXXVII, R. 3 & S. 96-Bank-loan-Recovery of-Leave to appear and defend suit was refused and decree relating to specified amount was passed against petitioner-Petitioner's entitlement to appear and defend suit-Petitioner's claim to appear and defend suit was based on denial of signature on Letter of Guarantee and other documents-Such denial without prima facie, proof could not furnish ground for grant of leave to appear and defend suit-Nothing on record would support allegation of fraud-Petitioner's claim of being Parda nashin lady and on that basis her claim to appear and defend suit was not warranted in as much as, plaintiff (bank) had initiated recovery proceedings against her through collector and on receipt of sxich notice, she had filed declaratory suit wherein she had not claimed plea of being Parda nashin lady-Defendant was thus, not entitled to appear and defendsuit. [Pp. 158 & 159] A & B

Mr. Muhammad Shafique Awan, Advocate for Appellant. Malik Me.hm.ood Akhtar, Advocate for Respondents. Date of hearing: 20.9.2001.

judgment

Ijaz-ul-Hassan, J.--This appeal is directed against judgment and decree dated 9.5.2000 passed by learned Judge Banking Court, Hazara Division Abbottabad, whereby he rejected the application of Mst.Zamurd Begum appellant herein, for grant of leave to appear and defend the suit and decreed the Bank's suit in the sum of Rs. 50,43,095,50 against the defendants with costs.

1. Briefly the facts so far as necessaiy for the' present purpose are, that Industrial Development Bank of Pakistan having its Head Office at Karachi and Regional Office at Arbab Road at Peshawar (hereinafter called as 'plaintiff-bank) instituted Suit No. 130/1 of 1995 against M/s. Hazara Auto Parts (Pvt. Ltd.) and others, a private limited company incorporated under Companies Ordinance 1984 through Muhammad Asad and Mst.Zamurd Begum, its Managing Director and Director respectively, for

recovery of Rs. 50,43,095.50 due from the defendants as on 31.3.1994 inclusive of mark-up with other charges through attachment and sale of immovable properties of the defendants detailed in the plaint. Defendant No. 1 applied to the plaintiff for grant of non-interest based financial facility for setting-up a new Auto Parts Manufacturing Unit located at SIE Mansehra. The plaintiff agreed in principle to purchase from the Defendant No. 1 machinery and equipment at an estimated price of Rs. 2.000 million and simultaneously to re-sale the same at lump sum re-sale price of Rs. 4.887 million on the plaintiffs standard terms and conditions contained in the sanctioned advice No. ROP/PED/P/89536 dated 8.7.1970. The Defendant No. 1 executed various documents in favour of the bank consisting of:--.

(a) Agreement to sell (Buy bank to Customer)

(b) Demand promissory Notes.

(c) Agreement of Hypothecation.

(d) Letter of acknowledgment.

(e) promissory Note.

(f) Agreement to sell (Customers movable property).

(g) Agreement (payment of 22% mark up for interim period), (h) Financing agreement.

(i) Undertakings.

(j) Copy of resolution of Board of Directors dated 1.1.1991.

Defendant No. 1 in order to secure the aforesaid facility mortgaged its industrial plot Bearing No. 12 measuring 5310 Sq. ft. situated at SIE Mansehra together with its factory building, plant, machinery, equipment and all other installations through execution of Memorandum of Deposit of Titled Deed dated 14.5.1991. A charge was also created in the Office of Deputy Registrar of Companies, Corporate Law Authority, in favour of the plaintiff-Bank. The said facility was further collaterally secured by Mortgage of Defendant No. 3 property comprising of a house in mauza Banda Qazi District Abbottabad through execution of mortgage Deed No. 405 registered before Sub-Registrar Abbottabad on 10.4.1991. The first installment of financial assistance amounting to Rs. 0.500 million, second installment of Rs. 0.786 million and third installment of Rs. 0.514 million was disbursed to M/s. F.S. Industries (Pvt: Ltd.) Peshawar as Machinery Manufacturer against the machinery. According to the Bank, during the course of inspection of the project, it was found that the Machinery purchased under IDBP Financial Assistance has been replaced with second-hand imported machinery and some of the machinery has not been installed. It was further observed that a sum of Rs. 0.200 million was disbursed for complete "Foundry With Furnance. Molds, Burners etc" which was not available on the date of inspection. The defendants were informed about the irregularities

and mis-utilization of the financial assistance resulting in withdrawal of final installment of Rs. 0.200 million due to the breach of contract by the defendants but the defendants did not bother to discharge their liability and pay the loan amount with mark-up and other charges which obliged the plaintiff-Bank to file suit.

1. Muhammad Asad Managing Director of Defendant No. 1 concern did not appear in Court to join the proceedings. He was proceeded against ex- parte. Mst. Zamurd Begum appeared in Court and resisted the Bank's claim on various grounds legal as well as factual. She raised the pleas of limitation, jurisdiction and denied having affixed her signatures on the documents attributed to her and made basis of the Bank's claim. The application of Mst. Zamurd Begum having been found without merit was dismissed and the leave was declined to her. Resultantly, a decree for recovery of the suit alhount was granted in favour of the plaintiff-Bank by virtue of judgment and decree impugned herein. Mr. Muhammad Shafique Advocate appeared on behalf of the appellant whereas the respondent-Bank was represented by Malik Mehmood Akhtar Advocate. We have gone through the record of the case with the able assistance of learned counsel for the parties. We have also heard the learned counsel at some length.

2. Counsel for the appellant has vehemently contended that in cases where the defendant sets up a defence, whether plausible or even illusory, Courts are inclined to grant leave to appear and defend the suit because at the stage where leave to defend is sought, the judge is not to try the action, he is only to see that there is a serious and bona fide allegation of triable issue. He reiterated that the appellant was entitled to the grant of leave to defend the suit on account of having disputed the signatures attributed to her and refusal on the part of the learned trial Judge to accede to the request, the rights of the appellant have been materially prejudiced. The arguments are summed up with the submission that in any case, in the circumstances, and keeping in view the controversy involved regarding genuineness or otherwise of the signatures of the appellant the trial Court should have resolve the point in issue after recording the evidence. The learned counsel also contended that the appellant an old lady of advance age. has been defrauded by Defendant No. 2 with the collusion of the bank officials. Our attention was also invited to the admitted signatures of the appellant with those of the disputed signatures and an attempt was made to prove that the appellant had obtained no loan, that no document was executed by her in this respect and that the signatures attributed to her were forged and fabricated. To augment the contentions reliance was placed on "National Bank of Pakistan appellant vs. Mst. Hajira Bai and 2 others- respondents PLD 1985 Karachi 431, and "National Development Finance Corporation plaintiff vs. M/s. Bhital Rubber Industries Ltd. and 7 others defendants2001 CLC 492.

3. Conversely learned counsel for the respondent-Bank, has supported the impugned judgment and decree and prayed for its sustenance.

4. We have very carefully compared the admitted signatures of the appellant appearing on the Wakalat Nama, General power of attorney and appeal etc with those of the disputed signatures appearing on the documents made basis of the bank's claim. These documents consists of the Letter of Guarantee, Agreement to Sell, Agreement to Hypothecation, Financing Agreement, Certificate of Registration, Demand promissory Note, Mortgage Deed and Lease Deed etc. The comparison shows that the admitted signature and the disputed signatures are absolutely identical and have no distinction. The mere contention of the appellant that she is not concerned with the business of Defendant No. 1 Company; that she had not applied or obtained financial assistance from the plaintiff-Bank or that she had not signed any document in favour of the plaintiff-B ank, without a positive attempt on her part to substantiate the same, is of no consequence. The bare denial of signatures on the Letter of Guarantee and other documents without any prima facie proof could not furnish a ground for the grant of leave to appear and defend the suit. There is nothing on record in support of allegation of fraud or fabrication. It is easy to level an allegation of fraud but it is always of difficult to prove the 'same. The appellant is Director of Defendant No. 1 concern and the financial assistance has been extended for setting up of a Unit. The loan has been obtained in the year 1991 but unfortunately no payment has been made towards adjustment of the liability and ultimately a plea, regarding "parda nasheeni" and old age and denial on the part of the appellant to sign the documents has been raised which we are not prepared to accept. We are satisfied that the appellant'had mortgaged her property in favour of the respondent-Bank at the time of availment of loan besides executing various other documents.

5. It is true that superior Courts have provided a cloak of protection to a. parda nasheen lady who on account of her ignorance, inexperience and social condition is not able to understand the nature of business transaction and therefore in her case the onus is always on the person who takes advantage of a transaction to show that the transaction was actually conceived and put into practice by the lady herself but experience has shown that a woman belonging to a parda nasheenclass may possess sufficient intelligence to the nature of business she is engaged and to understand the contents of the documents in which she is party despite the restraints of parda. In the present case, it is not possible for us to believe that on account of being a 'parda nasheen Lady' of an advance age, the appellant was not engaged in the business of Defendant No. 1 concern; that she had no knowledge about the bank's loan and that she had executed no document in favour of the plaintiff-bank. Prior to institution of Suit No. 130/1 of 1995 the plaintiff-bank had initiated recovery proceedings u/S. 41 of IDBP Ord: 1961 through Collector who took the cognizance of the matter and proceeded in accordance with law. In response to notices a declaratory suit was filed by the appellant in which no such plea was raised. We find ourselves in agreement with learned counsel for the respondent that the genuineness of the signatures has been denied for the first time for no other reasons but to frustrate the bank's claim for recovery, as long as possible. Had this plea been available to the appellant, the same would have been raised in the declaratory suit mentioned above. The case law cited on behalf of the appellant proceeds on different facts. In the said rulings leave to appear was granted principally for the reason that a bona fide and serious dispute existed between the parties and in order to arrive at a correct conclusion, it was considered necessary to grant leave whereas in the present case leave has been refused for valid and cogent reasons which warrant no interference of this Court.

6. In the wake of above discussion, finding no substance in this appeal, we dismiss the same with no order as to costs.

(A.A.) Appeal dismissed.

PLJ 2002 Peshawar 159 (DB)

Present: malik hamid saeed and muhammad qasim jan, JJ.

MUHAMMAD AKRAM KHAN and another-Petitioners

versus

AWAL ZAMAN and 4 others-Respondents

W.P. No. 306 of 2002, heard on 23.5.2002.

West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—-S. 13-Specific Relief Act (I of 1877) S. 12--Constitution of Pakistan (1973), Art. 199-Eviction-Rival claimants of property-Petitioners suit for specific performance of agreement, to sell was pending adjudication while respondent claimants suit for ejectment of tenant was also pending before same court in its capacity as Rent Controller-Rent Controller refused to stay proceedings of ejectment application till decision of suit filed by petitioner-Order of refusal to stay proceedings in ejectment application being interlocutory in nature, could not be assailed by petitioners in appeal-Petitioners, thus, had no other remedy against said order except to file writ petition, which was maintainable—Writ petition was accepted to extent that impugned order of Rent Controller whereby be refused to stay proceedings was set aside and ejectment proceedings were stayed till decision of civil suit for specific performance filed by petitioners. [P. 163] A, B

1983 SCMR 1064; 1995 MLD 303; 2000 SCMR 716; PLD 2000 Pesh. 54 ref. Mr. Muhammad LatifKhan, Advocate for Petitioners. Mr. R.B. Khattak, Advocate for Respondents. Date of hearing: 23.5.2002.

judgment

Malik Hamid Saeed, J.--Awal Zaman, Khiyar Zaman and Janat Gul, Respondents Nos. 1 to 3 herein have filed an application under Section 13 of the Rent Restriction Ordinance, 1959 in the Court of learned Rent Controller, Peshawar, Respondent No. 5, against Mansoor Ahmad, Respondent No. 4 for his eviction from Shop No. CC 915/3541/3023 situated' in Bazar Karimpura on the grounds of default in payment of rent and personal need. It is averred in the plaint that the shop in question is consisted of two portions (two 'dars') in which the respondents (petitioners in the eviction petition) were tenants under its original owner Khawaja Maqbool in one of the 'dars', whereas in the other 'dar' Mansoor Ahmad (respondent in the eviction petition) was a tenant, but later on they purchased the whole shop from the original owners on a sale consideration of Rs. two lacs videregistered sale-deed dated 8.12.1998. They put the tenant Mansoor Ahmad on notice about the change of ownership and demanded payment of rent, but he refused.

1. During the course of proceedings, one Mst. Naseeb Jan, widow of Muhammad Aslam Khan filed an application for her impleadment in the eviction petition, as she was owner of the disputed shop. The said application was allowed by the learned Rent Controller, Respondent No. 5. The Respondents Nos. 1 to 3 assailed such orders of impleadment up to this Court but their W.P. No. 1330 of 2000 was also dismissed on 30.1.2001. In her written statement, Mst. Naseeb Jan based her claim of ownership over the suit shop by relying on two registered deed vide which Khawaja Maqbool had agreed to sell the said property to Mst. Naseeb Jan on a sale consideration of Rs. 9000./-. According to her, the said agreements were executed as early as on 4.6.1966 and 20.4.1967. Through the said agreements, a sum of Rs. 5000/- was paid to Khawaja Maqbool Ahmad whereas there remaining amount was to be paid after obtaining Permanent Transfer Deed (PTD) from the Settlement Department, but unfortunately he died in the year 1970 without obtaining the said PTD. However, possession of the shop was given to her, who inducted tenants in the two 'dors'. Mansoor Ahmad was tenant under Naseeb Jan in one of the 'dors' since 1973-1974. The other portion of the shop was later on given in the tenancyship of Awal Zaman, Respondent No. 1, who duly executed a rent deed on 20.11.1995 in favour of Mst. Naseeb Jan.

2. The legal heirs of late Khawaja Maqbool when obtained PTD from the Settlement Department about the shop in question, they sold the same to Awal Zaman and others through a sale-deed. Mst. Naseeb Jan when came to know about this development, she filed a suit for specific performance against Respondents Nos. 1 to 4 and the legal heirs of Khawaja Maqbool. Awal Zaman etc. brought an ejectment petition against Mansoor Ahmad, Respondent No. 4, in the Court of Rent Controller, Peshawar. Mst. Naseeb Jan applied for her impleadment in the case and she was allowed to contest the application. Awal Zaman etc. then filed an application for issuing directions to Mansoor Ahmad, tenant, to deposit the rent in Court, which was allowed. Mst. Naseeb Jan filed an application that till the decision of the civil suit, the ejectment proceedings may be kept pending, but the request of Mst. Naseeb Jan was turned down by the learned Rent Controller videimpugned orders dated 13.2.2000, hence the legal heirs of Mst. Naseeb Jan have filed the instant writ petition for setting aside the impugned orders and stay of the ejectment proceedings till the decision of the civil suit. We have heard the learned counsel for the parties and have also gone through the material placed on file.

3. So far as the factual aspect of the case is concerned, the legal heirs of Mst. Naseeb Jan are having two Agreements to Sell, duly registered and executed by late Khawaja Maqbool in favour of late Mst. Naseeb Jan. Awal Zaman, who claims to have purchased the suit property from the legal heirs of Khawaja Maqbool, himself had executed a rent deed with Mst. Naseeb Jan in the year 1995 vide which he occupied,one of the ldar' of the suit shop under the tenancyship of Mst. Naseeb Jan. The other tenant Mansoor Ahmad also admits in his written statement that he was inducted in the suit shop as tenant by the husband of Mst. Naseeb Jan, namely Muhammad Aslam. The suit for specific performance was filed by late Mst. Naseeb Jan on 24.6.1999 Le. earlier than the eviction petition filed by Awal Zaman against Mansoor Ahmad, tenant. Both the matters i.e. the suit for specific performance as well as the ejectment petition are pending adjudication in the same Court and the learned trial Judge is dealing with such cases in his capacity as Civil Judge as well as Rent Controller respectively. In these circumstances, the question of title was, of course, of a serious nature between the parties.

4. The learned counsel for the petitioners argued that not only the learned Rent Controller could not validly decide the issue of relationship of landlord and tenant in favour of the landlord, as Mst. Naseeb Jan, a party to the proceedings, had created serious doubt about the ownership of the landlord over the disputed property by producing sufficient documentary proof, but the lady/respondent has also instituted a suit for specific performance which was pending in the same Court for disposal, hence the learned Rent Controller was required to have first decided the suit for specific performance and should have stayed proceedings in the ejectment application till decision of the said suit. The learned counsel for the petitioners in support of his contention relied on the judgments reported as "Rehmatullah vs. AliMuhammad and another (1983 SCMR 1064) and "Fazal Baqi and another vs. Rehmatullah" (1995 MLD 303).

5. The learned counsel for the respondents argued that irrespective of the fact that Mst.Naseeb Jan had filed a suit for specific performance against the respondents and the legal heirs of Khawaja Maqbool, nevertheless, the learned Rent Controller was very much competent to proceed with the ejectment petition as mere pendency of the suit for specific performance is not a good ground for stay of proceedings in the eviction petition. In support of his contention, the learned counsel for the respondents relied on judgments reported as Mrs. Annetta Haroon vs. Mst. Sughran Bibi and others (2000 SCMR 716) and Muhammad Daud vs. Mst. Surriya Iqbal and another (PLD 2000 Peshawar 54).

6. In the authority reported in 1983 SCMR 1064, the Hon'ble Judges of the august Supreme Court of Pakistan have held that the requirement of the relevant law contained in the Rent Restriction Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his possession as landlord beyond reasonable doubt. In this situation the Controller would be, to decide the issue against the landlord and advise him to first get his title established before seeking ejectment. In the authority reported in 1995 MLD 303, it is held that the Rent Controller cannot validly decide the issue of relationship of landlord and tenant in favour of landlord particularly when serious doubt about propriety of his claim to the title of property in question has emerged. The order of ejectment passed against the tenant was set aside as the material brought on record by the tenant had made claim of the landlord doubtful. It is further observed that the tenant and landlord in such a case should be advised to seek remedy in the Civil Court. In this case, the possession of Mst. Naseeb Jan over the suit shop is evident from the fact that it was she who inducted Awal Zaman etc. In the suit shop as her tenants through a rent deed duly executed between the parties.

7. With utmost respect, the authorities reported in 2000 SCMR and PLD 2000 Peshawar 54 are quite distinguishable from the facts and circumstances of the present case. In the authority reported in 2000 SCMR, the tenant had denied the relationship of landlord and tenant between the parties on the strength of a sale agreement executed between the tenant and other co-owners of the property, therefore, the Hon'ble Bench of the august Supreme Court of Pakistan held that the tenant did not claim any agreement to sell from the petitioner but claimed the agreement from the other co-owners, therefore, the order for stay of proceedings was not correct in the circumstances of the case. Similarly, in the authority reported in PLD 2000 Peshawar 54, it has been held that mere pendency of a civil suit regarding ownership of premises in question would not automatically stay the proceedings of eviction petition under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1956. It was found that the party claiming as ownership over the suit property had lost his case in the Civil Court to establish his ownership, the appeal was also dismissed and mere a revision petition was pending, which provided no reasonable cause for stay of proceedings before the learned Rent Controller. Hence the facts and circumstances of the case reported in the above referred authority are also different from the case in hand, as in this case a person, who has been inducted by Mst. Naseeb Jan as tenant in the suit shop is now claiming his ownership over the suit shop having been purchased from the legal heirs of Khawaja Maqbool. It is not a simple case of the denial of relationship of landlord and tenant between the parties, but the very ownership is in dispute between Mst. Naseeb Jan and Awal Zaman etc. in which the. tenant has nothing but is concerned about his tenancy rights. Both the claimants are having documentary proof. For declaring the act of the legal heirs of Khawaja Maqbool, as illegal and ineffective upon her rights, she has also filed a civil suit for specific performance against them. The said suit is still pending hence keeping in view the seriousness of the claim of Mst. Naseeb Jan (now represented through legal heirs/petitioners in this petition) they are entitled to the interim relief of stay of proceedings before the learned Rent Controller till decision of the civil suit

8. The learned Rent Controller instead of staying proceedings in the rent case has preferred its continuation alongwith the civil suit for specific performance and the order being interlocutory in nature could not be assailed by the petitioners in appeal, hence the petitioners are having no other remedy against the said order except to file the instant writ petition, which in view of the nature of order passed by the Rent Controller, is maintainable.

For the aforesaid reasons, this writ petition is accepted to the extent that the impugned order of the learned Rent Controller, whereby he refused to stay proceedings in the rent case, is set aside and proceedings before the learned Rent Controller in the ejectment petition are hereby stayed till decision of the civil suit for specific performance filed by the predecessor-in-interest of the present petitioners. No orders as to costs. (A.P.) Petition accepted.

PLJ 2002 Peshawar 164

Present: IJAZ-UL-HASSAN, J.

Syed KAMAL SHAH-Petitioner

versus INAYAT MUHAMMAD and others-Respondents

C.R. No. 269/2002, decided on 24.6.2002.

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

—0. XXI, R. 5 & O. XLI, R. 31-Findings on each and every issue though essential, yet orders and rules requiring same are directory and not mandatory-If there was any omission of such details as required under O. XII, R. 5 or O. XLI, R. 31 C.P.C. Judgment and decree would not become nullity. [P. 167] G

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

—- O. XLI, R. 23 & 25-Court below having properly dealt with lis by dismissing same, no useful purpose would be served for remanding case for decision afresh. [P. 168] D

(iii) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

—S. 53-Attestation of mutation in question, assailed by plaintiff-Plaintiffs suit was dismissed by Courts below-Legality-Onus to prove factum of possession was placed on plaintiff but he miserably failed to discharge same through reliable evidence-Solitary word of petitioner plaintiff does not prove his case-Mere assertion of plaintiff that attestation of mutation in question, was result of conspiracy between revenue officials and predecessor contesting defendants and that plaintiff have been receiving usufructs without corroborative evidence was of no consequence-Person who alleges particular fact and wants court to believe that such fact exists, would be required to prove existence of such fact.

[Pp. 166 & 167] A

(iv) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

—S. 53-Limitation Act (IX of 1908), S. 3-Mutation sanctioned in 1919, challenged in 1989, after 70 years of attestation of same was barred by time-Courts below having given unanimous verdict on question of fact regarding attestation of mutation in question, no good ground was pointed out to upset such findings. [P. 167] B 1981 SCMR 1171; PLD 1970 SO 180; 1993 MLD 76; 1998 CLC 2002; 2001 CLC 1899 and 1982 SCMr 816 ref.

Peer Bakhsh Mehtab, Advocate for Petitioner. Date of hearing: 24.6.2002.

judgment

Ijaz-ul-Hassan, J.--Syed Kama! Shah son of Mir Qalandar resident of Pir Khel District Kohat plaintiff filed suit against Inayat Mohammad and others defendants, in the Court of Senior Civil Judge Kohat for declaration to the effect that suit land is owned and possessed by the plaintiff and Defendants Nos. 322 and 324 namely Itibar Shah (son) and Mst. Pirzadi and Mst.Ruqia (daughters) of Mir Qalandar by virtue of inheritance of Mir Qalandar; that Mutation No. 803 attested on 27.3.1990 purportedly by Mir Qalandar in favour of Sikandar Shah, predecessor of Defendants Nos. 309 to is result of collusion between the revenue officials and Sikandar Shah and thus unenforicble against the rights of the plaintiff and Defendants Nos. to 324 and that the subsequent mutations attested on the strength of Mutation No. 803 are also illegal and void and not binding on their rights. The plaintiff also prayed that defendant be restrained from interfering with the title and possession of the plaintiff. In the alternative, a decree for possession of suit land was also sought.

1. The suit was contested by Defendants Nos. 356 and 357 alone. The remaining defendants did not join the proceedings and they were proceeded against ex parte. The answering defendants also opted subsequently not to pursue the matter and they were placed ex parte The parties were put to trial on following issues:-

2. Whether the plaintiff has got a cause of action?

3. Whether the plaintiff is estopped to sue?

4. Whether the suit is not maintainable?

5. Whether the suit is wrongly valued for the purpose of Court- fee?

6. Whether this court has got jurisdiction to entertain the present suit?

'\«

1. Whether the plaintiff is entitled to the decree of declaration as prayed for?

2. Whether the plaintiff is entitled to the decree of perpetual injunction as prayed for?

3. Whether the plaintiff is entitled in the alternative to the decree of possession of the suit property as prayed for?

t

1. Relief.

2. Upon consideration of the evidence produced by the plaintiff, the learned trial Judge vide judgment and decree dated 7.6.1999 dismissed the suit of the plaintiff with costs on the point of limitation. An appeal was preferred before .learned Additional District Judge Kohat which was also dismissed on 5.1.2002. Feeling aggrieved the plaintiff has filed instant Civil Revision No. 270/2002 which is before me for consideration.

3. Mr. Pir Bakhsh Mahtab advocate learned counsel for the petitioner strenuously contended that the judgment and decrees passedby the Senior Civil Judge, Kohat and the learned Addl. District Judge, Kohat, respectively, are in excess of their jurisdiction and as such are ultra vires, null and void. The learned counsel added that sufficient material was brought on record oral as well as documentary in support of the claim of the plaintiffs petitioner but the learned trial Judge put at shelf the evidence adduced on behalf of the plaintiff-petitioner and dismissed the suit without , valid reasons and the learned first appellate Court also dismissed the appeal without giving findings on each and every issue, separately enunciated under Order XX Rule 5 CPC. The learned counsel submitted that the trial Court has not extended reasons separately on all issues and dismissed the suit, while deciding the appeal the learned Additional District Judge Kohat has also not decided the appeal issuewise and, therefore, the two Courts below have seriously violated mandatory provisions of Order XX, Rule 5, CPC and Order XLI Rule 31 CPC have acted in exercise of their jurisdiction with material irregularity. Jn support of the contention reliance was placed on Ali Mohammad Petitioner vs. Mohammad Hayat and others respondents (1992 SCMR 816). Concluding the arguments, the learned counsel maintained that as the material on record has not been properly considered, the matter may be remanded to the trial Court to be decided afresh.

4. There is no denial of the fact that Mir Qalandar predecessor-in- interest of the plaintiff-petitioner and Defendants 322 to 324 was the original owner of the suit land who expired in 1921. The deceased is shown to have transferred land in suit in favour of Sikandar Shah on the basis of Mutation No, 833 attested on 27.3.1919. The grievance of the petitioner is that the mentioned mutation is fictitious and bogus and Mir Qalandar had not sold suit land to Sikandar Shah. According to the petitioner, Mir Qalandar in his life time and after his death in 1921, the petitioner and other legal heirs of the deceased, had been receiving the usufructs of suit land without any objection from any quarter. The onus to prove the factum of possession and cover limitation, was heavily placed on the petitioner but he has miserably failed to discharge the same through reliable evidence. The solitary word of the petitioner does not rehabilitate his case. The mere assertion of the petitioner that attestation of suit mutation was result of conspiracy between revenue officials and Sikandar Shah and that the petitioner had been receiving usufructs, without a positive attempt on his part to substantiate the same is of no consequence.

It is an established principle of Qanun-e-Shahdat that a person who asserts/ alleges a particular fact and wants the Court to believe that such fact exists, he shall be required to prove the existence of such a fact. So far as the question of limitation is concerned suit having been filed in 1996 to assail mutation in question attested in 1919, is clearly barred by time as right held by the Court below. The petitioner has awakened after a long slumber of more than 70 years without offering any valid explanation. The reason shown for delay in filing suit is not satisfactory. Both the Courts below have given a unanimous verdict on question of fact regarding attestation of mutation in question and I see no good ground to upset the finding. The following observations were made by this Court in Irshad All and another petitioner vs. Munawar Khan respondent (2001 CLC 1899 Peshawar):-

"The jurisdiction under Section 115, C.P.C. is discretionary and the Court will not interfere under the aforesaid provisions of law to correct every irregularity in the exercise of jurisdiction but only where grave injustice of hardship will result on account of the non­interference. Section 115, C.P.C. applied only to cases involving the illegal assumptions non-exercise or the irregular exercise of jurisdiction. It cannot be invoked against conclusion of law or fact which did not in any way affect the jurisdiction of the 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. If a Court has jurisdiction it has jurisdiction to decide one way or the other and erroneous conclusion of law or fact can be corrected accordingly. It is not denied that the Courts are hesitant to interfere in revision if the order is just and proper through some irregularities may have been committed in the making of it. It also needs no reiteration that the Court will also not interfere where substantial justice has been done between the parties and where the petitioner has taken shelter behind technicalities' or where the discretion has been exercised properly."

1. In the next limb of arguments, learned counsel for the petitioner maintained that the trial Court while dealing with the matter, has not given reasons separately on all issues and non-suited the petitioner on the ground of limitation and the first appellate Court has also not decided the appeal issuewise in terms of order XX Rule 5 CPC and order XLI Rule 41 thereof. The submission of the learned counsel is not tenable It is true that a Court of law whether at the trial or the appellate Court are to give their finding on each and every issue and the appellate Court shall give points for determination and shall refer all the important- questions involved in the case but it is equally true that these orders and rules are directly and not mandatory. Neither of the order or rule provides that if there is any omission of such details as required under Order XX, Rule 5 or Order XLI Rule 31 CPC the judgment and decree will become a nullity

2. Adverting to the question, regarding remand of the case, I find that both the Courts below have properly dealt with the matter and dismissed the suit of the petitioner for valid reasons and no useful purpose would be achieved if the case is sent back to the trial Court for fresh decision. In the wake of above discussion, finding no force in this Civil Revision, I dismiss the same in limine.

(A.P.) Revision dismissed.

THE END

PLJ 2002 Quetta 1 (DB)

Present: raja fayyaz ahmad, C. J. and tariq mehmood, J.

Af/s. QASIM & COMPANY and others-Appellants versus

M/s. BOLAN BANK LTD. through its MANAGER, BRANCH QUETTA -Respondent

R.F.A. No. 58 of 1999, decided on 4.6.2001. Contract Act, 1872 (IX of 1872)--

—-S. 171-Deduction of specified amount from the account of plaintiffs to adjust liability of principal debtor (their father) who had stood guarantor— Effect-Bank can exercise right of set. off only when money owed by it is a sum ascertained which was due against his samp customer and where

there was no agreement, expressed or implied, to the contrary-Banker should, therefore, always be guided by his knowledge of circumstances, and should be conscious in exercising right of set off in such cases-­Record showed that either title of account was changed and/or the same was being operated by plaintiffs even in the life time of their father, the original account holder-Question of banker's lien over amount in dispute did not arise and respondent bank could not claim it as a set off as the amount did not belong to father of plaintiffs-Mutuality is essential to the validity of set off but the same was liability and plaintiffs were not guarantors of principal debtor-Plaintiffs, thus, were not liable for the alleged guarantee of their predecessor or father, unless, the same was established in Court of law and to the extent of the estate of deceased coming to their hand-Pecuniary obligation arising out of contract by a deceased party would binjd his legal representative to the extent of the estate of deceased to his hand—Action of respondent bank to deduct specified amount from the account of plaintiffs as a set off of their predecessor's liability as a guarantor was patently illegal and plaintiffs were entitled to the amount claimed and transferred from their account-Suit was decreed against respondent in the specified amount with interest at the rate of 10 per cent from the date of institution of suit till the date of decree and from the date of decree till its realization.

[Pp. 10 to 13] A, B, C & D

PLD 1982 Karachi 200; PLD 1980 Karachi 115; PLD 1967 Karachi 829; (1846) 12 Cl. & Fin 787; PLD 1980 Karachi 115; AIR 1960 Punj. 632; 1956 Mad. 570; AIR 1945 Mad. 447; PLD 1988 SC 67 ref.

SyedAyaz Zahoor,Advocate for Appellants.

Mr. H. Shakeel Ahmad, Advocate for Respondents.

Date of hearing: 28.5.2001.

judgment

Tariq Mehmood,J.--Facts, in brief, are that Qasim Khan had opened an Account No. 251 with the respondent-bank on 25th March, 1992. It appears from record that on 27th May, 1992, Azam Khan was allowed to operate the account. Further that on 21st January, 1995, Qasim Khan had executed an unlimited letter of authority in favour of his sons Muhammad Azam and Mir Alam to operate the account and also to deal with bank on all matters, relating thereto. Ex. D/4 and D/6 also reflect that on 19th November, 1996, the title of account was changed to that of Qasim Khan Muhammad Azam Khan.

Further facts are that M/s. Tammer-e-Nau Engineers and Contractors (hereinafter referred to as the Principal Debtor") were awarded a contract by Lahore Development Authority for the work "Development of Sabzazar Housing Scheme Phase-II" on 27th May, i F'95. As per terms and conditions, pzincipal debtors furnished a perfornuin, > guarantee to L.D.A.

on 1st December, 1994, issued by the respondent-Bank. Record reflects that due to alleged default by principal debtor, LDA vide their letter dated 14th September, 1995 made a request through their bank for encashment of performance guarantee. It is the case of respondent-bank that they had to own the commitment and made payment. In the circumstances, principal debtor approached to respondent-bank vide their application dated 26th November, 1995 and requested that the amount paid to LDA be converted into ninning finance, after adjustment of 10% cash margin. In order to secure such finance, in addition to securities already given by them at the time of issuance of guarantee, Qasim Khan allegedly stood guarantor and executed a document (Ex: D/13). The request was entertained and running finance was allowed. Qasim Khan died on 28th June, 1996.

Record reveals that Mir Alam and Muhammad Azam are running their business in the name and style of M/s. Qasim Khan and Company. And that Account No. 251 was being maintained by them. It also appears from record that appellants (Qasim Khan and Co.) received a sum of Rs. 55,00,000/-from National Highway Authority, Islamabad and remitted the same through telegraphic transfer in their aforementioned account. The appellants produced memorandum issued by Islamabad Branch of respondent-bank about the telegraphic transfer, commission and cost charged to the appellants for the aforesaid transfer. The amount was actually credited in their account with Bolan Bank Jinnah Road, Quetta, but when the appellants issued cheques, the same were referred to drawer, although some of the cheques were honored. When appellants approached the respondent-bank, they were informed that sum of Rs. 38,88,721.65 have been deducted from their account to adjust the liability of principal debtor, as their predecessor stood guarantor.

In the events of the background, the appellants instituted a suit on 4th June, 1998 seeking recovery of Rs. 38,88,721.65 alongwith interest at the prevailing State Bank rate with effect from 18th March, 1998 till the realization of decreetal amount. It was the case of appellants that bank had no authority to debit their account in the manner done by them. They also disputed the correctness of guarantee allegedly executed by their predecessor or later father Qasim Khan. The defendant-bank contested the suit and it was mainly contended that the bank had a lien or more appropriately a right to set off against all money of the customer in its hand and bank was at liberty to transfer the deposit to set off and liquidate debts due from principal debtor.

The trial Court framed following issues on the pleadings of the parties:—

"1. Whether the suit of plaintiffs is not maintainable in view of preliminary objections raised in the written statement?

1. Whether late Qasim Khan stood guarantor for M/s. Tammer-e- Nau Engineers and contractors, for the construction work of Sabzazar Housing Scheme, Phase-II, Lahore who did not complete the work in time?

2. Whether transfer of Rs. 38,88,721.65 from the account of late Qasim Khan to another account is according to the banking procedure?

3. Whether the plaintiffs are entitled for relief claimed for?"

Both the parties led evidence in support of their respective contentions. The trial Court held that Qasim Khan had executed the guarantee (Ex: D/13) in his life time. Also that he was holder of Account No. 251, which was being operated by the appellants in his life time and even now, after his death. On the issue, whether the amount could be transferred, the trial Court while deciding the issue in affirmative, simply relied upon a letter (Ex: D/15) addressed to appellants, in reply to their complaint filed with the State Bank of Pakistan.

Syed Ayaz Zahoor, learned counsel for the appellants vehemently argued that;

(i) the respondents-bank was not competent to make payment to Lahore1 Development Authority on the basis of guarantee (Ex-D/7) and since it was an illegal act on the part of the respondent-bank, therefore, it alone was responsible.

(ii) the guarantee was issued after obtaining security of hypothecation of stock of construction material and equitable mortgage of bungalow worth million of rupees but no action was taken by the bank either against principal debtor or their guarantor, (iii) that no lien was marked in the account of the appellants, and therefore, adjustment/deduction by the bank was illegal, (iv) no security was furnished by late Qasim Khan whereof bank could claim lien, (v) the alleged guarantee (Ex-D/3) was forged documents and it was for such reason that it was never enforced in the life time of Qasim Khan, (vi) the trial Court was under legal obligation to compare admitted signature of Qasim Khan on record with his

disputed signatures and in absence of such exercise, it could not be validly held by the trial Court that guarantee was

executed by late Qasim Kban.

(vii) the amount could not be recovered from the appellants without instituting a suit for recovery against the principal debtor and the guarantors, who had furnished security at the time of issuance of bank guarantee or sanction of running finance, (viii) the judgment of trial Court is result of mis-reading of

evidence.

Support was sought from-judgments reported in PLD 1982 Karachi page 200, PLD 1980 Karachi page 115 and PLD 1967 Karachi 829.

On the other hand, Mr. H. Shakeel Ahmed, learned Counsel for the respondent-bank contended that;

(i) appellants cannot challenge the action of the bank in making payment to LDA, in that, Qasim Khan stood guarantor after making payment to LDA and at the time of sanction of running finance;

(ii) the signature of Qasim Khan has been proved on record, in as much as, the Bank Manager posted at the relevant time has appeared in Court and deposed that Qasim Khan signed in his presence and further that even the trend of cross-examination suggest that execution of guarantee by late Qasim Khan has not been disputed by the appellants;

(iii) and that action of respondent-bank is protected by Section 171 of the Contract Act, in that, it had a lien over it. He referred • PLD 1982 Karachi, 200, PLD 1980 Karachi 115, AIR 1960.

Although, lengthy arguments were addressed from both the sides, it appears to us that the real pint involved in the controversy has been ignored not only by the learned Counsel for the parties but also over-looked by the Court below. The real point for controversy is whether in the facts and circumstances of the case, bank could claim a set off in the amount lying in appellants' account and it is important to point out that both the parties advanced lengthy arguments on the matter not relevant including question of Bank's line, although bank in its written statement filed before the trial Court actually claimed a set off. The other point for determination is whether Qasim Khan executed alleged guarantee in his personal capacity or otherwise. In case, it was executed in personal capacity, whether bank could at all adjust the account of principal debtor on the basis of its right of set off and to what extent against his successors. As there is sufficient evidence on record to decide the points of determination, therefore, we proceed to finally decide the controversy on the basis of available record, particularly when no body requested for leading any additional evidence and otherwise there is sufficient evidence on record (Refer 1997 SCMR 1849). It may not be

irrelevant to point out that admitted appellants were running and maintaining an account and the amount in dispute was deducted from their account, to adjust the liability of principal debtor but without any notice. So, every heavy burden was upon respondent-bank to defend their action, particularly when they themselves produced documentary evidence to show the nature of account being maintained by the appellants.

However, since Mr. H. Shakeel Ahmed, learned Counsel for the respondent-bank while defending the action of bank, heavily relied upon Section 171 of the Contract Act, therefore, it would be appropriate to reproduce Section 171 of the Contract Act and to consider the judgments cited at the bar by learned Counsel for the parties. The others we noted at our own to highlight the difference between Banker's right of lien and set off and the circumstances in which bank can claim such right and against whom:-

1. General lien of bankers, factors, wharfingers, attorneys and policy-brokers. Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to the, unless there is an express contract to that effect."

In simple words, a lien is a right in one man to retain that, which is in his possession, but belongs to another, till certain demands of the person in possession are satisfied.

(i) Fancy Investment Ltd. Karachi V. United Bank Ltd. and 2 others (PLD 1982 Karachi 200). Although both the learned Counsel have relied upon this judgment, but in our view the same is not relevant in the facts and circumstances of the case. In context of banker's line, it was held in the said case that:

"Where security is delivered to a banker for a specific purpose it is inconsistent with right of lien and impliedly there is an agreement to contrary and therefore a banker cannot exercise lien over such property. Before lien is exercised by a banker he has to establish that he has taken possession of security as a banker and secondly there is no contract to contrary."

Also, for determining the nature of lien, following passage was quoted from Bran-doa Vs. Barnett (1846) 12 CI & Fin. 787, which is being consistently followed:-

"Banker most undoubtedly have a general lien on all securities deposited with them as bankers by a customer, unless there be an express contract, or circumstances that show an implied contract inconsistent with lien."

(ii) FarooqVs. M/s. Eastern Banking Corporation Ltd. Karachi(PLD 1980 Karachi 115)

Incidentally this judgment has also been relied upon by both the learned Counsel but not relevant. In this case, the claim of a banker for lien under Section 171 of the Contract Act was repelled on the ground that the\ bank had not proved that there was any general balance outstanding against the customer in his account, and secondly that no goods were pledged to the banker over which he could exercise lien.

(iii) HussainKhan vs. Barkat Ali and others (PLD 1967 Karachi 829)

The judgment is also not relevant as in this case it was held that a building contractor has no lien on constructions made by him for the payments of his bills. This kind of lien is not recognized by Section 171 of the Contract Act. No lien can arise from building contract, whether by operation of law or under the terms of the contract. The rule is that property in materials built into a building ceases to be the property of the contractor and becomes that of the owner. The contractor, in the circumstance, could not lay any claim to the property and was not entitled to proceed against the same in execution of the decree which he had obtained against the owner.

(iv) Punjab National Bank Ltd. Vs. Arura Mai Durga Das (AIR 1960 Punjab 632).

It was held in this case that a bank has no lien upon the deposit of a partnership for a balance due by one of the partners. Although this judgment has been cited by learned Counsel for the respondent-bank, it appears to us that same goes against him but since it is relevant, therefore, we found it appropriate to reproduce relevant portion of the judgment: -

"(14). The rule of English law that the Bank has a line or more appropriately, a right to set off against all monies of his customers in his hands has been accepted as the rule in India. According to this rule when monies are held by the Bank in one account and the depositor owes the Bank on another account, the Banker by virtue of his lien has a charge on all monies of the depositor in his hands and is at liberty to transfer the monies to whatever account the banker may like with a view to set off or liquidate the debts.-------

1. In order to create Banker's lien on several accounts it is necessary that they must belong to the paver in one and in the same capacity. Where the person has two accounts, one a trustee account and another private account at a Bank, deposits in the two accounts cannot be set off, the one against the other.-------

2. Bankers have a right to combine one or more accounts of the same customer. But it cannot combine the account belonging to

another or to himself alone with another account which is the joint account with another and third person.--------

1. Similarly, the Banks have no lien on the deposits of a partner, on his separate account for a balance due to the Bank from the firm. Therefore the banker is entitled to combine all accounts kept in the same right by the customer. It does not matter whether the accounts are current or deposit or whether they are in the same or different

branches.----- It is of essence to the validity of a banker's lien, that

there should be a mutuality of claim between the Bank and the depositor. In order that it should be permissible to set off one demand against another both must mutually exist between the same parties.

On this reasoning the joint and several accounts operated by two or more persons cannot be adjusted against the individual deposit of one of them. It is not open to the bank to claim the deposit of one partner made on his separate account in order to utilize other deposit against the debt due from the firm. In other words partnership deposits cannot be applied to the individual indebtedness of one of the partners. Courts in England do not allow a lien to the banker on the deposit of a partner on separate account for a balance due to the Bank from partnership firm."

(v) N. Muhammad Hussain Sahib Vs. The Chartered Bank and another (AIR 1965 Madras 266).

It was held in the said case that :--

"The general lien of bankers over any goods bailed to them is embodied in Section 171 of the Contract Act. The question is whether any such lien may be over money deposited by the \ customers. Where moneys are deposited in a bank the ownership of the moneys passes to the bank and the right of the bank over the moneys lodged with it would not be really a lien at all and it would be more correct to speak of it as a right of set off or adjustment. Whether the right of the bank is called a lien or set off, the said right can be exercised only by the bank by getting the funds deposited in its branch by the customer transferred to it with the consent of the customer. It is not open to the customer to call upon the bank to exercise any such lien or set off."

(vi) It would also be advantageous to refer the judgment reported in AIR 1956 Madras 570, as in the said judgment their lordships were pleased to highlight distinction between lien and right to set off or justification by banker:-

"The lien under Section 171 can be exercised only over property of some one else and not his own property. Thus when goods are deposited with or securities are placed in the custody of a bank it would be correct to speak of the rights of the bank over the security or the goods as a lien because the ownership of the goods or securities would continue to remain in the customer. But, when moneys are deposited in a bank as a fixed deposit, the ownership of the moneys passes to the bank and the right of the bank over the moneys lodged with it would not be really a line at all. It would be more correct to speak of it as a right of set off or adjustment."

(vii) In another judgment reported in AIR 1928 Lahore 316. It was held that general lien held by the bank does not entitle it to appropriate the fixed deposit in either or survivor" account towards the debt due by one of them alone. Following observations were made after giving brief background of the case, which is reproduced here under:-

"A bank issued a fixed deposit receipt for Rs. 500 in favour of B and R, the amount being payable to either or survivor. R obtained an overdraft form the bank. The bank credited the amount due under the fixed deposit receipt to this overdraft and on B demanding payment informed him of the action taken on it and refused to pay. B thereupon brought an action against the bank for the recovery of the amount due under the fixed deposit receipt.

Held that the bank could not appropriate the money towards the debt due by R alone."

(viii) Similarly in other case reported in AIR 1945 Madras 447. Bankers lien and bankers right of set off were explained in the following words:-

"Banker's lien is the right of retaining things delivered into his possession as a banker if and so long as the customer to whom they belonged or who had the power of disposing of them when so delivered is indebted to the banker on the balance of the account between them provided the circumstances in which the banker obtained possession do no imply that he has agreed that this right shall be excluded. Banker's lien can properly be said to arise only in respect of any securities held by the bank. If the customer deposits certain securities and ultimately there is a sum due to the bank, the bank has lien over these securities and it could hold them against the amount due by the customer. In the case of money of the customer paid into the bank into his current account or deposit account the amount ceases to be the property of the customer and becomes the property of the banker and the banker is thereafter under a contractual obligation to repay or give credit to the customer for the amount. In such a case, there is no property of the customer of which the banker has possession, the possession of the banker co-

•existing with his own ownership of the money. Accordingly, the essential conditions necessary to the existence of the lien are lacking.

Under his right of set off the banker can take into account any item in his own favour as against any payment in by his customer before arriving at the balance subsisting between them."

(ix) Mercantile Bank of India Ltd. Vs. Rochaldas Gidumal and Co.

(AIR 1926 Sind 225).

% It was held that lien of a bank over the money of its customer does

not extend to amounts, which have been handed over for a specific purpose. The relevant portion is reproduced hereunder:

"Where a person hands over certain money to a bank to be transmitted to another place and to be paid to the payee there and the bank issues a bill of exchange or a demand draft, the money is held by the bank under a special contract which excludes the general lien of banker's on goods bailed. The fact that the remitter and payee are the same person or that the money is to be transmitted by telegraphic order makes no difference."

It may also be seen that contract between the bank and its customer is a contract between a debtor and a creditor. In Sheldon and Fidler's Practice and Law of Banking, Eleventh Edition, at Page No. 31, following observation has been made:-

"As we have seen, the contract between the banker and his customer is a contract between a debtor and a creditor. The contract contains an implied promise by the banker to repay the money lent to him by the customer. Where, however, a customer has an account which is in credit but owes money to the banker in respect of another account, the banker may have the right to reduce his liability to repay the customer by the amount which the customer owes to him, or, if that is the case, to reduce the amount which the customer owes to him, by the credit balance in the customer's account. This is known as the banker's right of set-off or of combining accounts. The banker may exercise the right of set-off only when the money owed to him is a sum certain, which is due, and where there is no agreement, express or implied, to the contrary."

So, it is clear that bank can exercising right of set off only when the money owed by it is a sum certain, which is due, against his same customer, and whether there is ho agreement, expressed or implied, to the contrary. The banker should, therefore, always be guided by his knowledge of circumstances, and should be conscious in exercising right of set off in such cases. Applying these principles, simple facts are that Qasim Khan had opened an account in his name, but subsequent documents produced by bank itself (Ex: D/4 and D/6) reflect that either the title of account was changed and/or the same was being operated by Muhammad Azam Khan

and Mir Alam Khan, even in the life time of Qasim Khan. Qasim Khan allegedly executed guarantee (Ex: D/13) but in his personal capacity.

Admittedly Qasim Khan died on 28th June, 1996. There is no denying of the fact that appellants continue operating the said account, but this cannot be ignored that persons can do business in any name and they might be running it in the name of their late father out of love, respect etc. The firm, name is merely a convenient mode of describing and it is not very important, in that, bank has not disputed that after the death of Qasim Khan they are running and maintaining the account. Also that T.T. was purchased by M/s. Qasim Khan and Co. (Ex. P/3-A) and credited in their account, at Quetta. The case of appellants/plaintiffs is very simple and brief. They say that on 21st February, 1998, an amount of Rs. 5.5 million was remitted from Islamabad in their account, which was duly credited but the bank without any lawful authority transferred a sum of Rs. 38,88,721.65 in the account of principal debtor. Azam Khan when appeared in witness box specifically stated that he had received a bill from the National Highway Authority and sum of Rs. 5.5 million was sent through telegraphic transfer from Islamabad Branch to respondent-bank. The amount was duly credited in their account. This admittedly happened after about one year and eight months of the death of Qasim Khan. There is also no denial of the fact that an amount of Rs. 38,88,721.65 was transferred from the account of appellants to adjust the liability of principal debtor (and alleged liability of Qasim Khan as guarantor, in his personal capacity). It is also not disputed that neither the transfer was made with the consent or authority of the appellants nor any prior notice was given to them. In such circumstances, the burden was upon the bank to justify the transfer. Respondent-bank, in its written statement set up the plea that they had a lien or more appropriately a right to set off against all money belonging to alleged guarantor to liquidate debts due, in what ever account, the amount may be. But it is not that simple as appellants were maintaining and operating A/C No. 251 with the respondent Bank in their own right, amount of Rs. 5.5 million was received by the appellants in their own right from LDA, nothing to the contrary has been proved or even alleged by the bank and statement of Azam Khan went unchallenged, in as much as, the same was remitted by appellants themselves to the credit of their account. The question of banker's lien over the amount in dispute did not arise and respondent bank could not possibly claim it as a set-off as the amount did not belong to Qasim Khan and that mutuality is essential to the validity of a set-off but the same was lacking. And learned counsel for the respondent also failed to satisfy us, as to how so called amount of alleged guarantor could be claimed as set-off, to adjust the liability of a principal debtor. Also that the appellants or their partners were not guarantors of principal debtor. Further that resort could only be made to a Court of law, in the peculiar circumstances of the case So, appellants were not liable for the alleged guarantee of their predecessor or late father, unless it could be established in a Court of law and to the extent of the estate of the deceased coming to their hands. But from the evidence produced on record, it is clear that account was being maintained by Muhammad Azam Khan and Mir

8

Alam Khan even in the life time of their father Qasim Khan. Although, initially he had opened the account in his personal capacity but subsequently it under went a change. It is also admitted feature of the case that after the death of Qasim Khan, they were operating and maintaining the account in - their own right. Needless to add that documents were produced by bank

itself to establish these facts. The alleged guarantee executed by Qasim Khan was personal in nature. Although clause 9 of the guarantee provides that in the event of his death, it shall continue to be binding and operating against his successors. However,, the settle principle of law is that a pecuniary obligation arising out of the contract by a deceased party will bind his legal representative to the extent of the estate of the deceased coming to his hands. Refer ADBP vs. Sanallah Khan (PLD 1988 SC 67). However, the extent to which contractual obligation is binding on the legal representative of a party to such contract has been elucidated in the following extract by Keithin his book on Elements of Law of Contract, which has been quoted with approval by the Hon'ble Supreme Court in the afore mentioned cited case:-

"Generally a contractual obligation unSertaken by deceased promisor

would be binding on his legal representatives to the extent of the estate of the deceased promisor in their hands as this obligation of the legal representative is not personal. However, there is one exception to this rule in case of contracts which involve personal elements, and if personal skill is the essence of the contract, the obligation under the contract can be discharged only by that party whose personal skill is involved. The legal representatives of the deceased promisor cannot be required to perform, nor can they render performance of contract involving personal skill and action. On the death of a person, on principle, the benefits and burdens of his contracts pass to the legal representatives as part of his estate."

It was also observed that:-

"From this a general principle has arisen that a pecuniary obligation arising out of the contract by a deceased party will bind his legal representative to the extent of the estate of the deceased coming to his hands. This principle has been statutorily recognized in Section 50 of the Civil Procedure Code which lays down the extent to which a decree passed against a judgment-debtor who dies before the decree ha»been fully satisfied, against his legal representative."

Finally it was held that:-

"Similarly in case of money decree the liability of the legal representative of a party who has died after the passing of the decree extends under Section 52 of the C.P.C. to such property of the deceased as is proved to have come into their possession or to the extent of the property of the deceased in respect of which such legal representatives have failed to satisfy the Court that they have duly

applied such property of the deceased which came to their possession. In this context of the law, without proving that any property has come into the hands of the son and to what extent in value compared with the pecuniary liability of the deceased father, it cannot be recovered form the son. This aspect was completely over­looked by the trial Court and the First Appellate Court and no such inquiry was made or any proof furnished by the appellant-bank so as to make Respondent No. 1 liable for the debts of his deceased father."

It may also be seen that the learned trial Court while deciding Issue N o. 3 in favour of bank has simply relied upon a letter (Ex: D/15) issued by the State Bank of Pakistan, in reply to complaint filed by the appellants against 'the respondent. The approach of learned trial Court was totally illegal as Civil Court was under a legal obligation to decide the validity of action of the respondent with reference to law and not to base its decision, on the opinion expressed in the letter by some official of State Bank, particularly when no law was referred and more particularly when the appellants have specifically alleged that Manager of State Bank of Pakistan and Manager of Bolan Bank were relative interse. We may add that we have intentionally with held our views about genuineness of the guarantee allegedly executed by late Qasim Khan, as it was not found necessary in order to resolve the real controversy and lest it may prejudice the case of either party, in case appropriate proceedings are filed.

In view of our findings, we declare the action of respondent-bank as patently illegal and held that the appellants are entitled to the amount claimed and transferred from their account. Also that Section-34 CPC authorizes a Court to award interest from the time of the institution of the suit upto the date of decree and further till the realization of the amount. Although the act of respondent bank in with-holding the amount of appellants or making deduction from their account and adjustment in the account of principal debtor was wholly illegal and appellants have also claimed interest from the date of deduction, the learned Counsel for appellants has not addressed any argument, whether we can grant such interest or the same is governed by some substantive law. Further neither any damages have been claimed against the bank nor any evidence was led to justify the same. Accordingly, we set aside the judgment and decree dated 25th September, 1999 passed by learned Additional District Judge-II, Quetta and decree the suit of appellants against the bank iii the sum of Rs. 38,88,721.65 with interest at the rate of 10% per anrium from the date of institution of suit till the date of decree and from the date of decree till its realization, with cost through out. Decree sheet be drawn.

(A.A) Appeal accepted.

D

PLJ 2002 Quetta 14 (DB)

Present: raja fayyaz ahmed, C. J, and tariq mehmood, J, SAIFULLAH-Petitioner versus

SELECTION COMMITTEE FOR ADMISSIONS through its Chairman Public Service Commission Quetta and 4 others-Respondents

C.P. No. 145 of 2001, decided on 11.6.2001. (i) Educational Institutions­ '—Constitution of Pakistan (1973), Art. 199-West Pakistan Land Revenue Act (XVII of 1967), S. 6 [as amended by Government of Balochistan]- Prospectus of Bolan Medical College, Para 4-Admission to M.B.B.S.- District Merit seats of Bolan Medical College distributed on population basis-Petitioner applying for one of two seats reserved for "B" District- Applications were processed, candidates were interviewed and thereafter Selection Committee submitted its recommendations to Government whereby petitioner was not selected-Before approval of the list by Government district from which petitioner had applied was merged with another district whereupon petitioner claimed that his merit be considered among the candidates of merged districts—Para 4 of Prospectus of Bolan Medical College indicates that seats were to be distributed in accordance with the boundaries of districts then existed— Change in boundaries of districts would not effect any legal proceedings or rights/privileges or liabilities-Para 7 of the Prospectus provides that seats were open for competition amongst candidates of the districts that existed at the time of issuance of Prospectus or submission of applications-Selection Committee being creation of Prospectus itself was bound to decide selection of candidates strictly on merit basis in each category of seats from amongst the applicants according to the conditions laid down in the prospectus-Petitioner could succeed only if be fulfilled conditions laid down in prospectus, therefore, he was estopped to challenge para 4 of the Prospectus, particularly when vires thereof, were not challenged-Vested right was accrued in favour of respondent candidates at the time of issuance of Prospectus and at the time of interview or makiilg recommendations by Selection Committee- Petitioner was, thus, not entitled to relief claimed by him in constitutional petition. [Pp. 20 & 21] F, G & H

(ii) Interpretation of Statutes-

—When any law/bye-law is altered or repealed during pendency of action, rights of parties have to be decided according to law as it existed when action was initiated and not the law that existed at the time of judgment or order. [P. 19] A

(iii) Interpretation of Statute-

—Court must make every effort not to make redundant any part of statute/bye-law and must, if necessary, stretch language so as to give it some meaning justified by content and object. [P. 19] B

(iv) Interpretation of Statutes--

—Courts have always leaned in favour of saving legislation, and have placed such construction upon its words as would give reasonable results and would avoid artificial and anomalous construction. [P. 20] C

(v) Interpretation of Statutes­'—Question of applying principle of interpretation as to reasonable results arises only where there is case of doubtful significance, or where words of statute admit of two meanings or present two possible constructions-Where, however, a statute explain words, which are clear and quite un­ambiguous in their import, there is no room for applying those principles of interpretation, which are merely presumptions in cases of ambiguity.

[P. 20] D

(vi) Interpretation of Statutes-

—Law must be construed in accordance with the intention expressed in the law itself. [P. 20] E

Mr. H. Shakeel Ahmad, Advocate for Petitioner.

HajiGhulam Mustafa Mengal, Addl. A.G. for Respondents.

Date of hearing: 7.6.2001.

judgment

Tariq Mehmood, J.-Facts, in brief, are that the petitioner applied for admission to the first year of the M.B.B.S. in Bolan Medical College, Quetta for the session 1999-2000, against one of the two seats allocated for District Barkhan. It may be noted that as per formula specified in the prospectus, the petitioner appeared in a pre-entry test held by the College authorities, the merits list was prepared in respect of each district and petitioner stood at Serial No. 4 on the merit list of District Barkhan (Annexure A).-Petitioner was interviewed by the Selection Committee and after its final meeting, it was pleased to submit the recommendations to the Government. List of successful candidates was notified on 3rd Marc, 2001 and although petitioner's case for admission was considered, rejected by the Selection Committee due to lower merits.

Further facts relevant to the issue are that on 1st of January, 2001, Government of Balochistan issued a Notification in exercise of its powers conferred by Section 6 of the Balochistan Land Revenue Act and abolished District Barkhan, which has been merged in Kohlu district. In the events of the background, the petitioner submitted an application to Chairman 16 Qta. saifullah v. selection committee for admissions PLJ

(Tariq Mehmood, J.)

Selection Committee and requested that merit list of the candidates might be prepared on the basis of newly created districts. Copy of said application was also sent to Principal, Bolan Medical College, Quetta. However, it appears from Annexure 'D' that his request was not entertained or declined, in that, admissions were granted on the basis of districts, as mentioned in the prospectus.

By, this Constitutional petition, the petitioner has challenged the decision of the Selection Committee rejecting his candidature for admission to the 1st year M.B.B.S. in Bolan Medical College for the session 1999-2000, on the basis of newly created district of Kohlu.

Pre-admission notice was given to official respondents, who have filed para-wise comments and took the position that date of submission of application forms was from 4th of October, 2000 to 20th of October, 2000, the merit list was prepared on the basis of twenty six districts as mentioned in the Prospectus and petitioner could not be selected due to lower merits.

Mr. H. Shakeel Ahmed, learned Counsel for the petitioner argued that Notification dated 1st January, 2001, was enforced with immediate effect and as by that time result was not declared, therefore, Selection Committee was appraised of this charge, but not attention was paid. According to him, such change should have been considered by the Selection Committee and its failure to grant admissions to pursuant due to formation of the new district was illegal. Elaborating further that district Barkhan has come to an end and was merged with district Kohlu, therefore, respondents were under obligation to prepare a new merit list of district Kohlu and to consider the candidature of the petitioner on the basis whereof. Also, that on merging of district Barkhan with district Kohlu, a -valuable right has been accrued to the petitioner and he could not be deprived of the same, as admission was to be granted on merits. And that Government has power under para 52 to bring about change in admission policy in view of the merging of district.

On the other hand, learned Assistant Advocate General argued that seats were allocated as per provisions of the Prospectus and the Notification was effected prospectively, particularly when the process was completed much before 1st January, 2001 and recommendations were submitted.

Before considering the questions, it would be appropriate to examine various paras of the Prospectus:-

"1. The total number of seats for MBBS course during the Academic Session 1999-2000 shall be 154.

1. The break up of Medical seats of Bolan Medical College Quetta for the session 1999-2000 shall be as under:

2. The District Merit Seats of Bolan Medical College are distributed among the 26th Districts/Agencies of Balochistan on population basis as per report of Census Commissioner of Pakistan. The population figure of Districts/Agencies are in accordance to the existing boundaries of the District/Agencies.

The allocation of Seats to various District/Agencies is as under:-

S.NO.NAME OF THE POPULATION ALLOCATION

DISTRICT/AGENCY.OF SEATS

1. Barkhan 62,000 1.42 = 02 seats

2. Kohlu 106,000 2.45 = 02 seats

3. All ^eats in the above District/Agencies are open for competition within each District to the Local/domicile candidates of the Province of Balochistan and nobody shall be denied admission on the grounds of race, religion, color or cast, Competition in each District/Agency shall take place between the candidates of that district/agency.

4. The candidates seeking admission to Bolan Medical College, shall have to produce before the Selection Committee a local certificate issued by the Deputy Commissioner/District Magistrate of the respective District or a Domicile issued by the Deputy Commissioner/District Magistrate of the District under the Pakistan , Citizenship Act, 1951 (Act II of 1951) and the rules made there under.

5. A candidate found in possession of two or more local/domicile certificates issued by the District Magistrate of different Districts/ Agencies at the time of applying for admission, shall not be considered for admission against the seats of any of the Districts/ Agency of which he/she possess the Local/Domicile Certificate, his/ her application shall be rejected.

6. The Selection Committee, on the basis of the documents attached with the application form of the candidate as required under Paragraph No. 37 of the prospectus and or further inquiry through the Deputy Commissioner or other sources, shall be competent to decided as to whether a candidate actually belong to the district/agency of which he/she is entitled of being selected against the seat of that district/agency or not. The candidate shall be bound to abide by the decision of the Selection Committee.

7. A candidates who has passed F. Sc examination (Annual and Supplementary) up to the academic session 1999-2000 shall only be

eligible for admission during the academic session 1999-2000 MBBS/BDS.

1. The selection of candidates for admission to 1st year MBBS and 1st year BBS class shall be made by the Selection Committee, appointed by the Government strictly on merit basis in each category of seats from amongst the applicants according to the conditions laid down in the Prospectus.

2. The Selection of candidates for admission to 1st year

MBBS/BDS Class in BMC........ shall be made bv the Selection

Committee consisting of the following members.

1. The decision of the Selection Committee shall be submitted to the Government for the final approval, which shall include the dissenting note, if any made by any member or Chairman of the Committee.

2. The Government of Balochistan reserves the right of making any addition, alteration or amendment in the Admission policy Prospectus and the application form at any time.

A bare perusal of the above quoted paras indicate that admittedly the selection was for the session 1999-2000, the total number of seats for admission has been fixed at 154, out of which 103 are described as district merit seats are further sub-divided among the 26 Districts/Agencies of Balochistan on population basis as per report of Census Commissioner of Pakistan and it is important to point out at this stage that Para No. 4 of the Prospectus specifically says that population figure of Districts/Agencies are in accordance to the existing boundaries of the districts/agencies. In the instant case, we are concerned with two seats each allocated to the district Barkhan and Kohlu. Applications for admission were invited by the Selection Committee and last date of receipt of applications was 26th October, 2000. Admittedly interviews were held by the Selection Committee on 19th December, 2000, Selection Committee held its final meeting on 23rd December, 2000 at Quetta and submitted its recommendations as per para 50 of the prospectus to the Government for its approval and as stated by the learned Assistant Advocate General immediately after the final meeting. It may be noted that as per para 7 of the prospectus, all seats in the districts/ agencies mentioned in para 4 of the Prospectus are open for competition within each district. Para 26 requires candidates to produce before the Selection Committee a Local/Domicile Certificate issued by District Magistrate of the respective district (as mentioned in para 4 of the prospectus). It may further be noted that para 28 provides that a person found in possession of two or more Local/Domicile Certificates issued by District Magistrate of different Districts/Agencies at the time of applying for admission would be ineligible. Under para 30 of the Prospectus, the Selection

Committee was competent to see and enquire as to whether a candidate actually belongs to the district of which he has produced Local/Domicile Certificate. Para 32 of the Prospectus also provides that a candidate, who passed F. Sc. examination upto the academic session 1999-2000 was only eligible for admission for the academic session 1999-2000. Para 39 reads that selection of candidates shall be made by the Selection Committee strictly on merit basis in each category of seats from amongst the applicants according to the conditions laid down in the Prospectus. A Selection Committee was constituted under para-45 of the Prospectus and it was supposed to submit its decision to Government for final approval under para-50. Under para-52 of the Prospectus, Government of Balochistan reserved its right of making any addition, alteration or amendment in the admission policy-Prospectus.

It may be pointed out that sub-Article (4) of Article 22 of the Constitution empowers a public authority for making provisions for the advancement of socially or backward class of the citizens.. In exercise of such authority, the Government of Balochistan has framed a policy for admission in the Bolan Medical College with a view of advancement and protection of the education in backward class of citizens. This classification is regional classification and seats have been distributed on the basis of population. Clause 14) of Article 22 does not limit powers of public authority to distribute the seats on regional basis or on the basis of population or to control any other type of provision or reservation, which may be made in matter of admission to an educational institution. Apart from the inherent right to amend the prospectus on general principles, it is expressly stated under para-52 that the provisions incorporated therein are subject to additions, alterations or amendment, as may be considered necessary. It may further be mentioned that the vires of the Prospectus as to the allocation of seats (district wise) was not challenged before us by the petitioner. However, it has been contended that as boundaries of various districts were changed and some of the districts were abolished, therefore, seats ought to have been allocated on the basis of newly created districts. Accordingly, the questions for consideration are, whether rights of parties to be decided according to situation existed or otherwise, whether any right has been accrued in favour of petitioner due to change herien before mentioned and whether notification dated 1st January, 2001 has effected the rights of parties created by the Prospectus. Before proceeding further, we may highlight certain settled principles of law in such matters. The first principle is that, when a law/bye-law is altered or replead during the pendency of an action, the rights of the parties are decided according to law as it existed when the action was initiated and not the law that existed at the time of the judgment or order. Another principle is that, Court must make every effort not to make redundant any part of statute/bye-law and must, if necessary, stretch language so as to give it some meaning justified by context and object. Also that the Courts have always learned in favour of saving a legislation, and have placed such construction upon its words as would give reasonable results and would avoid artificial and anomalous construction. But thel

question of applying the principle of interpretation as to reasonable results arises only where there is a case of doubtful significance, or where words of the statute admit of two meanings or present two possible construction. But in case where a statue uses plain words, which are clear and quite

0 [unambiguous in their import, there is no room for applying these principles •of interpretation, which are merely presumptions in cases of ambiguity. (Another cardinal rule of interpretation is that a law should be construed in

^accordance with the intention expressed in the law itself.

Applying the above general rule of deciding whether a particular provision is retrospective or not. It may be seen that notification is silent in that regard and is to be taken as prospective, acting from the time, the provision comes into operation, and therefore, the Notification dated 1st January, 2000, issued by the Government in exercise of its powers conferred by Section 6 of the Balochistan Revenue Act could not operate retrospective. Secondly, if arguments of learned Counsel for petitioner are accepted, it would effect or impair existing rights of private respondents, which are substantive rights. And where existing rights adversely effect, Courts have always declined to give retrospective effect unless compelled and there is nothing in the notification or the prospectus in that regard. Another important question for consideration is as to how change in boundaries of districts made under Section 6 of Land Revenue Act would prevail over f para 4 of the prospectus because settled law is that, when there is a conflict between two special provisions, the Court should lean against repeal of earlier provision by implication, and since it is not clear that operation of para 4 of the prospectus has been curtailed by the change made by the Government in the existing boundaries of the districts, therefore, there is no occasion to form another view of the matter. Para-4 of the prospectus is very clear that seats were distributed in accordance to the boundaries, then existed. Court is primarily guided by the provisions on the subject in deciding whether the particular rights indicated by the prospectus are prospective or otherwise. Also that change in boundaries of districts would not effect any legal proceedings or rights/privileges or liabilities. In this particular case, the Prospective is very clear that the distribution was on the basis of population and in accordance to the existing boundaries of the districts/agencies. The word existing means existed at the time of issuance of Prospectus or inviting applications. It was further made clear in para 7 of the Prospectus, which provides that seats were open for competition amongst the candidates of the districts and existed at the time of issuance of Prospectus or submission of application. It may be noted that in the instant case, proceedings by the Selection Committee were finalized even before the issuance of the Notification, as per stand of learned Assistant Advocate General. We have reproduced various provisions of Prospectus and the '";anguage is quite un-ambiguous and leaves on room for more than one interpretation. And after reading various provisions particularly para 4, 23 and 39 of the Prospectus, we are unable to gather any other intention of the framer of the Prospectus. The Selection Committee is a creation of

Prospectus itself (para-45) and under para-39, it was under obligation to decide the selection of candidates strictly on merit basis in each category of seats from amongst the applicants according to the condition laid down in the Prospectus. Also that petitioner could succeed only if he fulfilled the ^_ condition laid down in the Prospectus, and therefore, petitioner is also estopped to challenge para-4 of the Prospectus, particularly when the vires thereof have not been challenged. Accordingly, submission of application by the petitioner to the Selection Committee for preparation of fresh merit list was of no consequence. Although, Government was never approached for necessary amendment in the Prospectus, but in any case the petitioner cannot claim a vested right in that regard.

In view of above, it is clear that seats were to be distributed among the twenty six districts as mentioned in para-4 of the Prospectus. Admittedly, the petitioner belonged to district Barkhan at the time of issuance of Prospectus or inviting applications for admission. There is no denial of the fact that he applied for one of the seats reserved for Barkhan and no challenge was thrown, when merit list oldistrict Barkhan was separately issued. He made appearance before the Selection Committee on 19th December, 2000, for admission against one of the seats reserved for district Barkhan. The matter was finalized by the Selection Committee in its meeting held on 23rd December, 2000 and subseauent change in boundaries of districts by the Government in exercise of its powers conferred by Section 6 of Balochistan Land Revenue Act, 1967, would have no effect on para-4 or any other para of the Prospectus. A vested right was accrued in favour of private respondents at the time of issuance of Prospectus and even at the time of interview or making recommendations by the Selection Committee. The fact that decision was announced by the Government after ~ " issuance of Notification dated 1st January, 2001, would be absolutely of no effect, as it could not take away their rights. The right of admission in an institution financed by Government accrued in favour of private respondents -•• being a substantive right could not be deemed to have been lost by subse­ quent issuance of notification under Section 6 of the Land Revenue Act. ;

Petitioner dismissed in limine. (A.A) Petition dismissed.

PLJ2002Quetta21

Present: amanullah khan yasinzai, J. HqjiGUL BARAN and another-Appellants

versus

Mst. REHANA MUSHTAQ-Respondent F.A.O. No. 132 and 133 of 2000, decided on 18.5.2001.

West PakistanUrban Rent Restriction Ordinance, 1959 (VI of 1959)--

—S. 13--Eviction of tenant from the shop in question sought on the ground of personal requirement of landlady-There was no bar on landlady for

G

H

filing eviction application on the ground that premises in dispute was required for the use and occupation of her husband as he was doing business in rented premises—Statement of attorney of respondent and statement of her husband for whom premises was required was in consonance with averments made in eviction application—No misreading or misappreciation was pointed in evidence on record-Interference in eviction order of Rent Controller was thus, not warranted.

[Pp. 23 & 24] A, B

1983 SCMR 715 & 1983 CLC 1139 ref.

Mr. Sundar Doss, Advocate for Appellant (in F.A.O. No. 132/2000). Mr.Farrukh Malik, Advocate for Appellant (in F.A.O. No. 133/2000).

Mr. Shaukat Rakhshani, Advocate for Respondent. Date of hearing: 18.4.2001.

judgment

Through this common judgment I propose to dispose of FAOs Nos. 132/2000 and 133/2000 as identical questions are involved in both the appeals.

1. Briefly stated the facts of the case are that respondents in both the appeals filed separate Eviction Applications against the appellants in the Court of Civil Judge-V-Cum-Rent Controller, Quetta in respect of the shops bearing Municipal Nos. 1-29/12 and 1-29/39 both situated in Sooraj Ganj Bazar Quetta (hereinafter referred to as the shops in dispute) on the ground of default w.e.f March 1985 till filing of the Eviction applications and for the personal bona fide use and occupation of husband of the landlady namely Muhammad Umar. Both the Eviction Applications were registered as Eviction Applications Nos. 3/2000 and 4/2000. The appellants filed their rejoinder to the applications. The Eviction applications were resisted on common legal and factual grounds by the appellants. Common issues were framed in both the applications which read as under:-

"1. Whether the Eviction Application is not B raised by the respondent in his rejoinder to Eviction Application?

1. Whether the respondent committed default in Payment of rent since March, 1998 till today?

3.- Whether the shop in dispute alongwith adjacent Shop is required by the applicant for personal bona fide use and occupation of husband of applicant?

1. Relief?"

2. In both the applications, respondents produced the following witnesses AW-1 Fazal Subhaii, AW-2 Muhammad Umar and attorney for the respondent Mushtaq Ahmed appeared on her behalf. In rebuttal, the appellant HqjiGul Baran in FAO No. 132/2000 (Eviction Application No. 3/2000) produced RW-1 Salahuddin, RW-2 Abdul Ghani and got recorded

his own statement. In FAO No. 132/2000 (Eviction Application No. 4/2000) the appellant Mehmood Ahmed produced RW-1 Kaleemullah and RW-2 Abdul Ghani who is also witness in the other case and got recorded his own statement. After hearing both the parties, vide separate judgments dated 25-5-2000, the learned Rent Controller allowed the application and ordered ^ eviction of the appellants from the shops in dispute on the ground of personal requirement of landlady only; hence the instant appeals.

I have heard Mr. Sundar Das advocate for the appellant in FAO No. 132/2000, Mr. Farrukh M. Malik Advocate for the appellant in FAO No. 133/2000 and Mr. Shaukat Rakhshani Advocate for the respondent in both

the appeals.

1. Learned counsel for the appellants stated that the Eviction Applications were not maintainable as there is no provisions in the Ordinance to file Eviction Application for the need of the husband and further stated that besides, the husband of the respondent was doing business in rented premises in the same vicinity comfortably and failed to prove his bona fide personal requirement, therefore, the learned Rent

^ Controller erred in allowing the said Eviction Application.

1. Mr. Shaukhat Rakhshani Advocate for the respondent contended that the Eviction Application on the ground of personal requirement of husband of landlady is maintainable and further the landlady has proved that the shops in dispute were reasonably and in good faith required by her for the use and occupation of her husband.

2. The contention of M/S Sundar Das and Mr. Farruk Malik Advocate for the appellant that the Eviction Application is not maintainable on the ground of personal requirement of husband of landlady is devoid of force. It may be observed that personal requirement is not only limited to the landlord or his children but it also includes the dependents of the landlady/ landlord; now it is well-settled that there is no bar on the landlady for filing Eviction application on the ground that the premises in dispute was required for the use and occupation of her husband as he was doing business in rented tenements. In this regard reference may be made to the following cases:-

(1) Ghulam Mohiuddin Vs. Nazeer Bibi, 1983 SCMR 715 and

(2) Masud Ahmed Vs. Anwar Begum 1983 CLC 1139.

In the former case, the Hon'ble Supreme Court observed as follows: -

"Learned counsel for the petitioner has argued that the findings of the Courts below on the bona fide requirement of the landlady (to be more precise for her husband) was not correct. The contention has no merit. All three Courts on the subject have found against the petitioner on the evidence brought on record and on our part we feel no justification to interfere in this factual matter or to differ from them in any manner. It has come on record that the husband of

B

landlady is already doing business which shows that plea of doing business on part of the husband is a new enterprise to be now embarked upon by him for the fist time. Similarly the plea that the shop already in his occupation is a rented shop supports his case further when he says he wants to shift to the present shop. It has further been proved that the husband of the landlady had earlier another shop with him from which he was evicted and thereafter, started doing business in the rent shop presently in his occupation. If in order to avoid such like constant threats of eviction the present shop is required by him for personal use, his need is quite genuine and perfectly bona fide."

In the latter, case, the following observations were made:-

"In the present case also I am not inclined to differ with the concurrent findings of the two Courts below. It has come on the record that the husband of the respondent was dong Pheri work and had become sick and was unable to undertake that vocation. The landlady therefore wanted her husband to carry on business in the shop and earn livelihood of the family. This in my view will be a good faith and bona fide requirement of the landlady and cannot be said to be a matter beyond the purview of the Rent Restriction Ordinance. The learned Additional District Judge has also rightly pointed out that in case the landlady did not occupy the premises, there were ample safeguards provided to the tenant by the Ordinance."

1. Coming to the second contention that the landlady has failed to prove that the premises are required by her husband reasonably and in good fits; it may be observed that the statement of the husband of landlady namely Muhammed Umar was recorded in both the cases in which he stated categorically that he was doing business in rented tenements and the landlady does not own any other land in the same vicinity neither any shop has been vacated by her for said purpose and further stated that he wants to do coal mining business in the said premises. It has come on record that husband has given sufficient explanation that since he is doing business at present on the first floor in the said vicinity and the shops in dispute are more suitable for his business as the same are situated on the ground floor. The statement of the attorney of the respondent and statement of her husband namely Muhammad Umar for whom the premises is required is in consonance with the averments made in the Eviction application; the learned counsel failed to point out any misreading or misappreciation of evidence. Needless to observe that ample safeguard is provided to the tenants under the Ordinance if the landlord/landlady does not occupy the premises, after vacating the same he can apply to the Rent Controller for putting him back into possession; therefore, I see no justification to interfere with the impugned Order passed by the Rent Controller. However, the appellants are given two months time to vacate the premises in dispute.

2. Parties are left to bear their own costs. (A.P) Appeal dismissed.

PLJ 2002 Quetta 25

Present: AHMAD KHAN lashari, J. MUHAMMAD SAEED MUGHAL and 3 others-Appellants

versus

M/s. NATIONAL AVIATION SERVICES (PVT) LIMITED; QUETTA-Respondent

C.M.A. No. 01 of 2001, decided on 23.4.2001. Trade Marks Act, 1940 (V of 1940)--

—S. 16(2)--Civil procedure Code (V of 1908), O.XXXLX, Rr. 1, 2--Trial Court restrained defendants from manufacturing and selling of gas Appliances under the name and style of "yesgas" till final disposal of suit-Plaintiff was using/got the right of using Trade Mark of "Nasgas" from competent authority in the year 1978 and was entitled to use the same, while defendants had only applied for registration of Trade Mark of "yesgas" on 22.6.2000, which was still pending before Trade Mark, Registrar for decision subject to cross-objections and hearing to plaintiff—Plaintiff has made out goodprima facie case in his favour that he has proprietary right to the use of Trade Mark allotted in his favour i.e., "Nasgas" by competent authority-Defendants have no right to challenge the same or to use any Trade Mark which seems to be resembled or likely and identical to that of respondent's Trade Mark i.e., "yesgas" unless it was not registered under the said law by the authority having jurisdiction--If defendants were not restrained plaintiff would be caused irreparable loss, injury and damage to the goodwill, reputation and business by creating confusion and deception in the minds of consumers/Purchasers-Defendants have failed to point out any defect or error in the iirpugned order passed by Trial Court same was maintained in circumstances. [Pp. 28 & 29] A

1998 MLD 1234; 1992 CLC 1728; 1989 SGMR 361; PLD 1996 Kar. 122; PLD 1973 SC 104; 1987 MLD 2569; PLD 1994 Kar. 157 ref.

Mr. Kamran Murtaza,Advocate for Appellants. Mr. M. Riaz Ahmed, Advocate for Respondent. Date of hearing: 26.3.2001.

judgment

Through this appeal order dated 20-12-2000 passed by the learned >vddl. District Judge-II, Quetta, was challenged whereby appellants were restrained from manufacturing and selling of Gas Appliances under the style and name of'TESGAS" till final disposal of the suit.

1. Concise facts regarding to filing of appeal are that plaintiff (hereinafter called respondent) filed a suit in the Court of, Addl: District Judge-II, Quetta, against the defendants (hereinafter called appellants) for Permanent Injunction praying to restrain them from copying the registered Trade Mark "NASGAS" being identical and resemblance to the gas appliances known as "YESGAS" of appellant. Plaint was accompanied with application under Order 39, Rules 1 and 2 CPC, interim order was passed on 18.11.2000. After notice appellants filed their written statement and rejoinder to the application, wherein they challenged the maintainability of suit on various grounds and also denied and strongly repudiated the contents of plaint on merits. It was claimed that the appellants are using the Trade Mark under the Certificate issued by the Registration Authorities in their favour. After hearing arguments on stay application trial Court confirmed his earlier interim order on 20-12-2000. Being aggrieved from the order impugned herein, instant appeal was filed.

2. Mr. Kamran Murtaza Advocate appearing on behalf of appellants argued that Appellant No. 1 is holder of Registered Trade Mark in the name and style of "YESGAS" therefore, he is entitled to carry on the business as such no injunction of any nature can be granted to the respondent. He further argued that the trial Court wrongly construed as the appellants Trade Mark is likely closed to that of respondent's Trade Mark and nearby resembling deceive the business of respondent and its, customers as well as General Public. It was further contended that both the Trade Marks are substantially different and not similar to each other. He prayed for setting aside of the impugned order as the same has been passed on mis-apprication of facts and documents. He relied on the following case laws:-

3. 1998 MLD 1234

4. 1992 CLC 1728

5. 1989 SCMR 361

6. PLD 1996 KAR. 122

7. PLD 1973 S.C. 104

8. Mr. Muhammad Riaz Ahmed Advocate appeared on behalf of respondent and contended that the appellants Trade Mark of "YESGAS" is very much in resemblance with respondent's Trade Mark of "NASGAS", therefore, his business, customers and General Public being deceived by the resembled Trade Mark. The respondent is using the Trade Mark of "NASGAS" from 02-04-1978 under Registration of Trade Mark from Registrar of Trade Marks Registry, Karachi, while appellants have started business under the Trade Marks of "YESGAS" in recent without having any registration with the Registration Authorities, on such account respondent is loosing the business reputation amongst the General Public, made and built years of hardwork. In the last he prayed the order was passed just in accordance with law and may not be disturbed till final disposal of the appeal.

9. I have heard the arguments of learned counsel for the parties and have minutely perused record of the case. The respondent's Trade Mark was found registered with Trade Marks Registry Karachi under Section 16 (2) Rule 44 of Trade Marks Act, 1940 (Act No. V of 1940) in the name of National Aviation Services Limited, Being No. 67115 on 02-04-1978 in respect of heating, steam generating, gas cooking ranges, water heating, room heating, gas griller and urns, all being goods include in class-11, and is being used continuously, extensively and has always been very prominently depicted on the Gas appliances, which have always been seen by the purchasing public at the time of purchase, whereas the depiction of the distinctive "YESGAS" has facilitated non-English reading/illiterate and unway public to instantly identify the same. The appellants made application for Registration of Trade Mark of "YESGAS" with Trade Marks Registry Karachi, Vide No. 163982 in Class 11 on 22-06-2000 and accordingly a Certificate/Memorandum was issued Vide No. TM. 3818/2000 dated 30.11.2000, showing that the case of appellants regarding registration of Trade Mark "YESGAS" is still pending for decision in the name of Muhammad Saeed Shahid claimed to be the Proprietor of said Trade Mark. The obtaining of Trade Mark of "NASGAS" was not denied by the appellants in Para No. 8 of the written statement, however, it was alleged that the respondent started manufacturing the business of gas appliances from 1995. It was also claimed by the appellant that he obtained the Factory premises of the respondent situated at G.T. Road Gujranwala on rent, and started manufacturing of gas appliances under agreement of "NASGAS", however, in the year 1999 the tenancy agreement was dissolved and the premises was given back to respondent, accordingly manufacturing agreement was also came to an end and the machinery installed in the premises were sold out to the respondent. I am fortified by the dictum laid down in the case titled Hakimullah Siddiqi Vs. M/S Alphaco (Pakistan) Karachi, reported in 1987 MLD 2569 which is reproduced hereinabelow for ready reference:-

"What he has got to do is best described in the case. 'In the matter of an application'by the Planotiest Company Ltd. (1906) 23 R.P.C. 774', as follows:-

"...You must take the two words. You must judge of them, both of their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact you must consider all the surrounding circumstances and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion — that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that will be a confusion in the mind of the public, which will lead to

confusion in the goods .... then you may refuse the

registration, or rather you must refuse the registration in that case."

Similarly, while dealing with the question of deception in the case of M/S Khan Foundary & Workshop, Faisalabad Vs. The Registrar Trade Marks Registry, reported in PLD 1994 Kar. 157 the Court held that:-

"It may be stated that while deciding the question of similarity between the two marks, they have to be considered as wholes. There may be two words which in their component parts seem quite different but which, when read or spoken together, do represent something which is so similar as to lead inevitably to confusion, as has been observed by Justice Farewell in the matter of an application by William Bailey (Birmingham) Ltd (1935) 52 RFC 136)"

I have examined the case in hand in the light of judgment as mentioned hereinabove, it is worth mentioning that a similarity has been observed in the Trade Mark i.e. "NASGAS" being used by respondent and that of "YESGAS" chosen by the appellant, which leads to draw the inference that a successful attempt has been made to confuse and deceive the innocent purchaser and also be detrimental and injurious the reputation and business interest of respondent and thus can be equated to that of irreparable loss which cannot be compensated in terms of money. I am conscious of the fact that "in matter of temporary injunction prima faice case is not only requirement, but a Court is also required to examine the concepts of balance of convenience, irreparable loss, conduct of the parties, nature of the controversy, the time like to be absorbed the stakes of the parties involved and the workability and reasonableness of the order proposed to be passed. The appellants tried to believe this Court that they were doing business of manufacturing of gas appliances in the name and style of "NASGAS" after registration of the Trade Mark with the competent Authority and dissolution of business, the respondent has right or entitlement to use the Trade Mark of "YESGAS", though resembled and likely and close to the "NASGAS". It was found that the respondent is using or got the right of using Trade Mark of "NASGAS" from the competent authority in the year 1978 and is entitled to use the same while on the other hand the appellants have only made an application for registration of Trade Mark of "YESGAS" on 22-6-2000 and the application is still pending before the Trade Marks Registry Karachi for decision subject to cross objections and hearing to respondent. The respective authorities quoted by the learned counsel for appellants are in variance with the facts of the present ease, the sames were on the point of dispute regarding the Trade Mark while in the case in hand the Trade Mark of appellant is admittedly not registered with the competent authority. The respondent has, made out a good prima facie case in his favour that'ne has proprietary right to use the Trade mark allotted in his favour i.e."NASGAS"

by the competent authority and the appellants have not right to challenge the same or to brought and Trade Mark which seems to be resembled or likely and identical that of respondent's Trade Mark i.e"YESGAS" unless it was not registered under the said law by the authority having jurisdiction. If the appellants were not restrained the respondent would cause irreparable loss, injury and damage to the goodwill, reputation and business by creating confusion and deception in the minds of the consumers/purchasers.

In the light of what has been discussed hereinabove, the appellants have failed to point out any defect or error in the impugned order dated 20-12-2000 passed by learned Addl: District Judge-II, Quetta, resultantiy the appeal being devoid of merits is dismissed with no order as to costs.

(A.P) Appeal dismissed.

PLJ 2002 Quetta 29 (DB)

Present: AHMED KHAN LASHARI AND FAZAL-UR-REHMAN, JJ. MUSA KALEEM-Petitioner

versus ABDUL SATTAR and 3 others-Respondents

C.P. No. 234 of 2001, decided on 14.6.2001. Balochistan Local Government Ordinance, 2000 (VI of 2000)--

—S. 14~Constitution of Pakistan (1973), Art. 199-Requisite qualifications lacking in respondent to contest election of Nazim-Post remand proceedings were allowed to drag on so as to facilitate respondent to participate in election-Mandatory provisions of S. 14(e) of Balochistan Local Government Ordinance 2000, disentitled respondent from election of Nazim from concerned union council-Nomination paper filed by respondent before Returning Officer would be deemed to be submitted without having requisite qualifications. [Pp. 32 & 33] A, B

Mr.Kamran Murtaza and MehmoodKhokar, Advocates for Petitioner.

M/s. H.Shakeel Ahmad and Sultan Mi Shah, Advocates for Respondent No. 1.

Mr. Akhtar Zaman, Addl. A.G. for Respondent No. 2. Mr. K.N. Kohli, D.A.G. for Respondent No. 3. Mr. Kadim Alt, Advocate for Respondent No. 4. Date of hearing: 12.6.2001.

judgment

Ahmed Khan Lashari,J.-Through this petition Candidature of the Respondent No. 1 has been challenged, who was allowed to contest the

Local Bodies Elections 2001 for the office of Nazim from Union Council Ganj Mohallah Zhob.

1. Briefly stated facts of the case are that Respondent No, 1 filed his nomination Papers for the post of Nazim form Union Council Ganj Mohallah Zhob, in pursuance of requirements of Section 14 of the Balochistan Local Government Ordinance-IV of 2000, (hereinafter referred to as the Ordinance, 2000) the academic qualification of the Candidates not less than Matriculation, or Secondary School Certificate or equivalent from recognized Institution. Respondent No. 1 attached a Result Card of Matric allegedly issued on behalf of Respondent No. 4, petitioner challenged the qualification of Respondent No. 1 before Returning Officer/Judicial Magistrate Zhob (Respondent No. 2) but the said objection was over ruled. The petitioner applied for the copy of acceptance order on 5.5.2001 which was alleged supplied to him on 11.5.2001. It is evident from the record that on the nomination paper of Respondent No. 1 only word 'accepted' was found written while petitioner applied for copy of the same, but a separate order was supplied to him, the petitioner filed an appeal before District Returning Officer Zhob as provided under Section 18(4) of the Ordinance, 2000 on 10.5.2001 alongwith application seeking condonation of delay which was not entertained. Being aggrieved of the acceptance of nomination paper a Constitutional Petition No. 201/2001 was filed before this Court and with consent of the parties following order was passed:-

"By consent of learned counsel for the parties the impugned order is set-aside and the matter is remanded to Judicial Magistrate/Returning Officer Zhob to conduct an enquiry and to decide the objection afresh in the light of relevant record of Board of intermediate and Secondary Education and to ascertain as to whether Respondent No. 1 (Abdul Sattar) is matriculate and qualified to be elected as Nazim as per provisions contained under Section 14 of the Balochistan Local Government Election Ordinance 2000 after providing of opportunity of hearing to the parties in accordance with the rules. The parties present are directed to appear before the Returning Officer on 29.5.2001 at 1.00 p.m. The learned counsel for petitioner undertake to bear all the expenses of the representative of Board of Intermediate & Secondary Education. The petition accordingly stands disposed off.".

The Returning Officer Respondent No. 2 instead of deciding the matter started recording evidence as of a Civil Court and deliberately adjourned and kept the matter i.e. scrutiny of nomination paper after election process. Being prejudice of the proceedings petitioner filed this petition alongwith an application seeking stay of election on 4.6.2001. By order of this Court dated 4.6.2001, the Returning Officer was directed not to announce the result of the election in respect of Union Council Ganj Mohallah Zhob and the proceedings for the purpose of scrutiny were suspended till decision of the petition.

1. Mr. Kamran Murtaza Advocate contended on behalf of petitioner that Returning Officer with mala fide intention postponed the scrutiny process of Respondent No. 1 after election by facilitating him to participate in the election. The record of Board of Intermediate and Secondary Education was produced through Deputy Secretary Examination before the Returning Officer but he instead of taking it into consideration, started recording evidence in order to delay the secrutiny process and kept the matter after election, intentionally causing serious prejudice to the petitioner. He next argued the Respondent No. 1 does not qualify to contest the election as per record of Board of Intermediate and Secondary Education, Respondent No. 1 remained failed in matriculation examination.

2. Mr. H. Shakeel Ahmed Advocate learned counsel for Respondent No. 1 argued that some of the evidence has been recorded by the Returning Officer, in the matter while Respondent No. 1 is yet to produce his witness before him, it would be more appropriate and in the ends of justice if the Returning Officer was allowed to proceed with the matter to reach a right conclusion. He next contended the controversy only could be dissolved by a thorough probe and in exercise of Constitutional jurisdiction, this Court may not like to entertain the finding of facts, it would be just and proper in the circumstances proceedings be allowed to be completed by the Returning Officer and this may not prejudice either of the parties, and requested for remand of case to the Returning Officer, Zhob.

3. Mr. K.N, Kohli, learned Deputy Attorney General argued that Returning Officer need not to go into recording evidence while dealing with nomination paper for the purpose of scrutiny like a Civil Court, he opposed the arguments of the learned counsel for Respondent No. 1 and objected the remand of the case to the Returning Officer for recording evidence of the parties in order to determine the dispute which is subject-matter of this petition. He further contended that this could be done by this Court in exer­ cise of jurisdiction under Constitution. He relied on PLD 1980 Quetta 29.

4. Mr. Khadim Hussian in Advocate appeared on behalf of Respondent no. 4 alongwith record of the Board of Intermediate and Secondary Education i.eGazette Notification of 1977 and result statement of Secondary School Annual Supplementary, 1977.

We have heard the arguments of the parties and perused the result record with the assistance of Deputy Secretary Examination, Board of Intermediate & Secondary Education, Quetta, the Respondent No. 1 did appear as private candidate from Zhob under Roll No. 4801 in the year 1977 but failed in English and he did not appear in supplementary examination 1978. As per result statement of the Secondary School Certificate Annual 1977 the Respondent No. 1 was found failed in compulsory subject of English and accordingly he was declared failed and Result Card was issued to him at his given address. The Respondent No. 1 did not rebut the same rather alleged that Respondent No. 4 had issued him pass result card and is responsible for the wrong done. We have also examined the result card but

found same tempering was made there in word 'FAIL' was turned into word 'PASS". The said result card was used by the Respondent No. 1 at the time of filing of his nomination papers. The very fact was brought into the knowledge of Returning Officer but remained over looked. The petitioner challenged the result Card of Respondent No. 1 before this Court, with consent of the parties decision made on the Nomination Papers of Respondent No. 1 was set aside and matter was remanded to Returning Officer. The Returning Officer (Respondent No. 2) instead of rejecting or accepting the Nomination papers in view of Provisions as contained in Section 18(2X3) of the Balochistan Local Government Election Rules 2000 (hereinafter referred to as the Rules, 2000) adjourned the scrutiny process after election mis-exercise of jurisdiction and non compliance of order passed by this Court. The Returning Officer without scrutiny of nomination papers allowed the Respondent No. 1 to participate and contest the elections in violation of Section 22 of the Rules 2000 which reads as under:-

"POSTPONEMENT ETC., UNDER CERTAIN CIRCUMSTANCES

Where the proceedings relating to Nomination, scrutiny or withdrawal cannot, for reasons beyond the control of the Returning Officer, take place on the day appointed therefore, he may postpone or adjourn such proceedings and shall, inform the District Returning Officer of his having done so whereupon the District Returning Officer shall fix another day for the proceedings so postponed or adjourned and, if necessary, also the day or days for any subsequently proceedings, in accordance with the directions of the Chief Election Commissioner."

The Respondent No. 1 did not possess the requisite qualification as prescribed by Section 14(e) of the Ordinance 2000 at the time of scrutiny of Nomination Paper and even failed to brought on record any documentary proof in support of his plea till final arguments heard on the petition. The Section 14(e) of Ordinance, 2000 is reproduced hereinbelow for ready reference:-

"14. QUALIFICATION FOR CANDIDATES AND ELECTED MEMBERS. A person shall qualify to be elected or to hold an elective office or membership of a local Government, of he,--

(a) (b) (c) (d)

(e) has academic qualifications of note less than matriculation or secondary school certificate or equivalent from recognized institution, for contesting a election of a Nazim or Naib Nazim."

What has been discussed hereinabove, we are of the considered opinion that mandatory provisions of Section 14(e) of the Balochistan Local Government Election Ordinance, 2000 dis-entitie the Respondent No. 1 from the election of Nazim from Union Council Gunj Mohallah Zhob, for which he was illegally allowed to participate in the election. The nomination paper filed before Returning officer would deemed to be submitted without having the requisite qualification of Matriculation or Secondary School Certificate of equivalent from recognized institution.

The dubious conduct and,the manner, the matter which has been dealt with by the Judicial Magistrate and criticized need probe which may however be dealt with separately by the District & Sessions Judge (Inspection) of this Court and necessary instruction/actions be taken to avoid recurrence of such lapse in future.

With the above observations the petition accordingly stands disposed of.

(A.P) Order accordingly.

B

PLJ 2002 Quetta 33 (DB)

Present: FAZAL-UR-REHMAN AND AHMED KHAN LASHARI, JJ.

HAYJOO etc.-Petitioners

versus

MUHAMMAD BAKHSH etc.-Respondents C.P. No. 284 & 285 of 2001, decided on 20.6.2001. Balochistan Local Government Election Ordinance, 2000--

—-Ss. 14 & 18-Presence of candidate at the time of filing of nomination papers or at the time of scrutiny of papers-Candidate's presence before Returning Officer at the time of filing of nomination papers or during scrutiny process would not be necessary-Nomination paper can be delivered by the candidate or his proposer or his seconder to Returning Officer who would acknowledge receipt of nomination paper specifying date and time of receipt—Presence of candidate would not be necessary before Returning Officer at the time of scrutiny to raise objections on the nomination papers of another candidate-Returning Officer himself was empowered either suo-motuor upon any objection to reject nomination papers if he was satisfied that candidate was not entitled to be elected as a member—Petitioners were admittedly employee of hereditary legacies service while as per their claim some other persons were working as Bazgar, in their place in Levies force-High Court declined to enter into such disputed facts which would need evidence,, thorough, probe and deeper appreciation in exercise of discretionary relief in writ jurisdiction.

[Pp. 36 & 37] A, B & C

Mr. Muhammad Aslam Chishti, Advocate for Petitioners (in both appeals).

Mr. Mohsin Javed, Advocate, Mr. AshrafKhan Tanoli, A.G. and Mr. K.N. Kohli, D.A.G. for Respondents (in both appeals).

Date of hearing: 16.6.2001.

judgment

Ahmed Khan Lashari, J.--Since common law points are involved in Constitutional Petitions Bearing Nos. 284 and 286 of 2001 therefore we intend to disposed off them with this common judgment. These petitions have been filed against the orders dated 9.6.2001 passed by District Returning Officer/District and Sessions Judge,\ Sibi Division Sibi (Respondent No. 2 ) whereby the petitioners were restrained not to contest the forth coming Election as they were found not eligible as per Section 14(g) of Balochistan Local Government Election Ordinance, 2000 (hereinafter referred to as the Ordinance, 2000).

1. Briefly stated facts are that petitioners filed the Nomination Papers against the 4 reserved seats of Peasants from Union Council Mai Tehsil Sibi. Returning Officer/Addl. District and Sessions Judge, Sibi on 3.6.2000. the Respondent No. 1 in both petitions was also candidate against the reserved Seat of Peasants filed appeals Bearing Nos. 5 and 8 of 2001, before the Respondent No. 2 as provided under Section 18(4) of Balochistan Local Government Election Rules, 2000 (hereinafter referred to as the Rules 2000), by agitating the law point as Section 14 (g) of the Ordinance, 2000, the petitioner are not eligible to participate and contest Local Bodies Election 2000-2001, as they are Levies Employees of Federal Levies. The Respondent No. 2 after hearing the parties on 9.6.2001, accepted the appeals filed by Respondent No. 1 and set aside the orders of Returning Officer dated 3.6.2001 whereby the Nomination Papers of the petitioners were accepted. Being aggrieved and dis-satisfied of the order of Respondent No. 2 petitioners filed these petition.

2. Mr. Muhammad Aslam Chishti Advocate appeared on behalf of petitioners and argued that the appeals filed by Respondent No. 1 before Respondent No. 2 were at all not competent in view of 18(4) of the Rules 2000 as right of appeal has been given to a person who was present at the time of scrutiny. He next contended that the grounds mentioned therein the memos of appeals were not available to the Respondent No. 1 as he was not in attendance at the time of scrutiny of the Nomination Papers of petitioners. He further argued that the petitioners are holding hereditary post of Levies and are not in acting service of Levies Force, hey have appointed Saadullah and Abdul Aziz as Bazgeer in the place to this extent certificates were issued by the Assistant Commissioner, that Saadullah and Abdul Aziz are working as Bazgeers for the last three years so petitioners are not obtaining any kind of salary as provided under Section 14(g) of the Ordinance 2000. The hereditary post does not amount to be that of controlled by Federal Government.

3. Mr. Muhammad Mohsin Javed Advocate appeared on behalf of Respondent No. 1 contended that at the time of scrutiny the Respondent No. 1 was very much present before the Returning Officer, as he himself was

. candidates for the Peasants Reserved Seats, therefore, the Respondent No. 1 -•->•being aggrieved from the order presented the appeals before the Respondent No. 2. He next contended that Deputy Commissioner Sibi issued certificates dated 7.6.2001 stating therein that petitioners are in original service of Levies of Sibi District and accordingly Rule 18(4) of the Rule 2000 dis-qualify them from contesting and participating in the forth coming elections. He finally contended the Respondent No. 2 has rightly observed and declared that the petitioners are not eligible to participate in the election proceeding.

1. Mr. K.N. Kohli learned Deputy Attorney General argued that appeals were competently filed by Respondent No. 1 before Respondent No. 2. He next contended that person who can object shall have a right to file

. appeal as provided under Rule 18 (4) of the Rules 2000 there is no bar under the rules for filing of appeal by a person who was not present at the time of scrutiny. He placed Federal Levies Rules 1999 whereby Levies has been "•\" converted into Force. He was of the opinion that even before Levies Rules 1999 the persons having Posts of Levies were declared Government Servants. He relied on 1986 CLC 939 + PLD 1979 Qta 113 + PLD 1970-Qta. 76.

Learned Advocate General contended that petitions are based on factual controversies which could not be dissolved in exercise of writ jurisdiction as evidence is needed for dissolving the disputed facts. He next contended that non-presence of person at the time of scrutiny does not entitled him from filing of appeal, if he found himself aggrieved and affected from the order. He lastly argued that the petitioner is admittedly an employee of Federal Levies Force is not entitled to participate and contest Local Bodies Election of 2001.

1. We have heard the arguments of the parties and perused the available record carefully as regards to contention of learned counsel for the petitioners in respect of maintainability of appeal we feel necessary to reproduce Rule 18(4) of the Rules 2000:-

"18. Scrutiny.-(1) The scrutiny of nomination papers shall be open to the candidates, their election agents, proposers and seconders, or the persons who made representations or objections against the nomination papers, and any voters of the local area concerned who obtains permission from the Returning Officer, before the commencement of the scrutiny. The Returning Officer shall give all those present reasonable opportunity for examining all nomination papers delivered to him under rule 16.

(2)

(3)

(4) An appeal against the decision of the Returning Officer under sub-rule (3) may be preferred by any person present at the time of

scrutiny under sub-rule (1) of the Appellate Authority appointed for the purpose by the Chief Election Commissioner, and the decision of such Authority shall be final".

After perusal of the above referred rules we are, of the opinion that it has not been written anywhere in Section 18 of the Rule, that person who was not present at the time of scrutiny may not file appeal before the Authority if he found himself aggrieved from acceptance of Nomination papers. It has not been made necessary that every candidate shall made his presence before the Returning Officer at the time of filing of nomination papers or during scrutiny process, it is evident form Rule 16(5) of the Rule A 2000 speaks that " every nomination paper shall be delivered by the candidate or his proposer or his seconder to the Returning Officer who shall acknowledge the receipt of the nomination paper specifying the date and time of receipt". Sub-section (10) also speaks that objections or suggestions, if any, received sub-rule (9) shall be taken into consideration at the time of scrutiny of nomination papers. Rule 27 also speaks about the non-presence of candidate at the time and place appointed for the purpose, we like to reproduce the relevant rule for ready reference:-

"27. Absence of candidates etc, not to invalidate act etc.-- Where any act or thing is authorized by these rules to be done in the presence of the candidate, an election agent or a polling agent, the failure of such person to attend at the time and place appointed for the purpose shall not invalidate any act or thing otherwise validly done".

A bare perusal of the above reproduced rules we are, of the opinion that presence of candidate is not necessary before the Returning Officer at the time of scrutiny to raise objections on the nomination papers of another candidate. The Returning Officer himself is empowered under Rule 18(3) of the Rules 2000, either suo-motuor upon any objection reject the nomination papers if he satisfied that candidate is not qualified to be elected as a member. Admittedly the Respondent No. 1 has also filed his nomination papers against the four reserved peasant seats alongwith the petitioners from the same constituency and his nomination papers were found valid and he was allowed to participate in the forth coming election, alongwith the petitioners, he may have a right of appeal being aggrieved party to challenge the nomination papers accepted by the Returning Officer before Respondent No. 2, the Appellate Authority. The Second contention of learned counsel for petitioners are that petitioners are Levies Employee of Federal Government and are not in acting service of the Levies, they are holding hereditary posts is not acceptable to us. Though certain papers i.e.extract of salary register has been filed alongwith these petitions showing that Abdul Aziz and Bismillah are getting salaries as Levies Sawar from Levies Department but it has not mentioned that they are working for the petitioners in their place. It is very strange that Deputy Commissioner is the controlling authority of the entire Levies Force issued Service Certificate Bearing No. 3/79/Levies dated 7.6.2001, contents of Certificate are as under:-

SERVICE CERTIFICATE

According to the office Record, the following persons are original service holder of Federal Levies in Sibi District: -

1. Mr. Ghous Bakhsh son of Haji Mangay Khan Corgage Levies Sawar, Levies Thana Sibi.

2. Heju Khan son of Bahar Khan Gishkori, Levies, Sawar Levies

Thana Sibi.

Sd/

Deputy Commissioner, Sibi."

While on the very next day Assistant Commissioner Sibi also issued certificates that Ghous Bakhsh is employee of hereditary Levies service and Abdul Aziz son of Sohbat Khan is working as Bazgeer in his place in the Levies Force, while Saadullah son of Sanwal Khan is working as Bazgeer in place of Hayjooin Levies Force. We are not inclined to enter into these disputed facts which are indeed need evidence, thorough probe and deeper appreciation, in exercise of discretionary relief in writ jurisdiction. However, it has been admitted that petitioners are Levies Employees of the Federal Government after Notification of Levies Rules 1999 all the appointments are being made in accordance with the said Rule on the basis of merits cum finess, through competent authority while nothing has been filed by the counsel for petitioners to rebut the same.

In the circumstances mentioned above we are, not inclined in exercise Constitutional jurisdiction to grant the discretionary relief in favour of petitioner as prayed for, accordingly petition in dismissed is limine.

~tA.P) Petition dismissed.

PLJ 2002 Quetta 37 (DB)

Present: amanullah khan yasinzai and fazal-ur-rehman, JJ.

HABIB ARKADY LTD., KARACHI.-Petitioner

versus

DEPUTY COLLECTOR, SALES TAX HUB COLLECTORATE OF CUSTOMS SALES TAX & CENTRAL EXCISE QUETTA -Respondent

C.P. No. 18 of 2001, decided on 18.6.2001. Sales Tax Act, 1951 (III of 1951)--

—-S. 28-Constitution of Pakistan (1973), Art. 199-Plea that notice has been issued in violation of judgment of Supreme Court was repelled on the ground that direction issued by Supreme Court was directory and not mandatory-Period of limitation has to be computed as per terms of S. 28 of Sales Tax Act, 1951-Petitioner's contention that during pendency of proceedings before Supreme Court notice could have been issued for

payment of Sales Tax was of no substance in as much as, Supreme Court had issued stay order directing respondent not to proceed against petitioner during pending of his petition for leave to appeal-Impugned notice as per direction of Supreme Court had been issued by competent authority in terms of change of service structure of the Sale Tax Department-Petitioner has approached the Court without exhausting departmental remedies available to him under the Sales Tax Act, 1951, whereunder effective and efficacious remedy has been provided-Attitude of petitioner in approaching High Court without exhausting available departmental remedies and his reliance of technicalities would indicate that he was trying to evade tax in the garb of technicalities-Petition being devoid of merit was not maintainable. [Pp. 40 to 43] A, B, C & D

1999 SCMR 1447; NLR 1992 Cr.L.J 1155; PLD 1991 SC 691 ref.

Mr. Muhammad All Saeed, Advocate for Petitioner. Mr. K.N. Kohli, D.A.G. for Respondent. Date of hearing: 21.5.2001.

judgment

Amanullah Khan Yasinzai, J.--In this petition the petitioner has assailed the Show-Cause Notice dated 6-1-2001 issued by the respondent, Deputy Collector Sales Tax, Hub calling upon the petitioner as to why an amount of Rs. 1,14,07941/- (Rupees One Crore, fourteen lacs, seven thousand, nine hundred and forty one only) may not be recovered from the petitioner being Sales Tax pertaining to the period from 1-8-1987 to 31-10-1990.

1. Briefly stated the facts of the case are that petitioners being a Private Public Limited Company having a factory at Hub and is engaged in manufacturing of Liquid Glucose in the name and style of Habib Arkady Ltd., and produce of the petitioner is liable to sales tax. Petitioner received a Show-Cause Notice on 31-3-1991 from the Collector of Customs whereby the petitioner was called upon that they had evaded sale tax from 1-8-1987 to 31-10-1990 amounting to Rs. 1,14,07,941/- and were called upon as to why the said amount alongwith penalty be not recovered from them. Being aggrieved from the said action of the Collector Central Excise, a petition was filed before this Court being C.P. No. 434/93 which was dismissed vide judgment dated 15-12-1993. Petitioner still being dissatisfied with the said Order filed a Civil Petition for leave to appeal before the Hon'ble Supreme Court which was ultimately accepted and petition was disposed of vide judgment dated 6-11-2000 whereby the impugned notice dated 31-3-1993 was set aside and the Competent Authority was directed to issue fresh Show-Cause Notice to the petitioner within fifteen days from receipt of the judgment. Thus after passing of the judgment by the Hon'ble Supreme Court of Pakistan, a fresh Show-Cause Notice dated 6.1.2001 was issued by the respondent calling upon the petitioner as to why sales tax mentioned in the notice may not be recovered from him alongwith penalty for the period

mentioned above. The petitioner being aggrieved from the said notice issued by the respondent has filed the instant petition.

1. Mr. Muhammad Ali Saeed Advocate of the petitioner contended that the Show-Cause Notice dated 6-1-2001 was hopelessly barred by time on two-fold grounds:-

(1) That the Hon'ble Supreme Court vide judgment dated 6-11-2000 gave directions that notice be issued within fifteen days from receipt of the judgment. Under Section 28 of the Sale Tax Act, 1951, the notice has been issued beyond the prescribed period; thus the respondent had no lawful authority to claim the said amount towards sale tax.

(ii) That the matter was pending before the Hon'ble Supreme Court and there was no embargo on the respondent to have initiated the proceeding in the intervening period i.e. from the day when leave to appeal was sought till final decision of the case as observed above.

(2) That the notice was not issued by the Competent Authority; only Sales Tax Officer was competent to issue the same.

1. Mr. K.N. Kohli, learned Deputy Attorney General opposing the petition contended that notice has been issued within time as directed by the Hon'ble Supreme Court of Pakistan and as far as limitation is concerned, initially the notice was issued by the respondent way back on 31-3-1991 and the said matter was stayed by the Hon'ble Supreme Court of Pakistan on 9-1-1994 and was pending till final decision i.e. 6-11-2000. Thus the notice is within time. The learned counsel further contended that the impugned notice dated 6-1-2001 was issued by competent Officer as the same has also been clarified in the notice due to change in the service structure in the Customs Hierarchy. The learned counsel opposed the petition on the ground that efficacious and alternative remedy was available to the petitioner by way of approaching the Customs Authorities and without exhausting the remedy available to the petitioner, they have come to this Court and the High Court has always refused to issue writ in cases where the petitioner has not exhausted the remedy available to him under Customs Laws, which is equally efficacious.

2. Adverting to the arguments of Mr. Muhammad Ali Saeed, the learned counsel argued that the Hon'ble Supreme Court while disposing of the case vide judgment dated 6-11-2000 held in the concluding para that the\ competent authority may issue a fresh notice to the petitioner within fifteen days from receipt of the judgment and shall decide the matter on merits within three months. The learned counsel pointed out that the judgment was passed on 6-11-2000 but the impugned notice was issued much after the judgment of the Hon'ble Supreme Court Le. on 6-1-2001; therefore, the impugned notice has been passed in violation of the judgment of the Hon'ble Supreme Court therefore, the same being barred by time is liable to be set aside. Mr. K.N. Kohli, learned Deputy Attorney General opposing the

arguments of the learned counsel for the petitioner contended ttat in Para "C" of the ground the reasons for not sending the notice within fifteen days have been (Sic) is mentioned that Collectorate of Customs Quetta received copy of the judgment on 30-11-2000 and thereafter the judgment was sent to Collectorate at Hub from Quetta Office and Balochistan being a remote area due to some administrative difficulties, the office at Hub received copy of the judgment late and as soon as copy of the judgment was received, notice was issued.

1. After hearing the parties, we are not inclined to agree with Mr. Muhammad Ali Saeed Advocate for the petitioner that notice has been issued in violation of the judgment passed by the Hon'ble Supreme Court of Pakistan. It may be observed that the directions issued by the Hon'ble Supreme Court of Pakistan are director in nature and not mandatory.

n Besides, the period of limitation has to be computed as envisaged under Section 28 of the Sales Tax Act, 1951. Moreover, the explanation advanced in ground "C" of the parawise comments seems to be plausible. Thus the arguments of Mr. Muhammad Ali Saeed Advocate have no substance and the plea regarding limitation is repelled.

1. Coming to the next contention of Mr. Muhammad Ah' Saeed Advocate that notice has been sent beyond the period of limitation; therefore, claim of the Sales Tax by the Customs Authorities is not maintainable as being barred by time. The learned counsel contended that under Section 28 sub-clause (b) of the Sales Tax Act, 1951 notice should have been sent within three year from the end of the year in which assessment was made but the same has been sent after the prescribed period; therefore, the same is hopelessly bared by time; thus the respondent cannot legally claim the same. The learned counsel further argued that in the impugned Show-Cause Notice, the petitioner has been asked to deposit sales tax from 1-8-1987 upto 30-10-1990. Thus notice for the said year has been sent on 6-1-2001; therefore, claim so made is hopelessly barred by time. The learned counsel further argued that since the matter was pending before the Hon'ble Supreme Court but no stay Order was granted nor any embargo or restrain was placed on the respondent to take action; therefore, the same being hopelessly barred by time, the impugned notice is liable to be set aside. Mr. K.N. Kohil, learned Deputy Attorney General vehemently argued that the proceedings before the Hon'ble Supreme Court were stayed while at the time of admission of the petition on 9-1-1994, it was held that the proceedings before the respondent are stayed till decision of he instant petition. It is appropriate to reproduce the Order of the Hon'ble Supreme Court wherein the proceedings before the respondent were stayed:-

"Mr. Muhammad Ali Syed alongwith Mr. Ejaz Ahmed Khan AOR present.

Heard. Proceedings before the respondent are stayed till the decision of the instant C.P. 11/94 dated 9.1.1994. However, the C.P. may be fixed at an early date."

Perusal of the above Order reveals that stay was granted to the petitioner till disposal of the main petition; therefore, in view of Order dated 9-1-1994 no proceedings were initiated by the Customs Department, in case any other notice had been issued, that would have amounted to contempt of Court. There is no ambiguity in the Order dated 9-1-1994, that proceedings before the respondent were ordered to be stayed. We are not persuaded to agree within the argument of the learned counsel for the petition that there was no embargo on the respondent to have issued by Show-Cause Notice with the intervening period. The order is very much clear and proceedings were stayed by the Hon'ble Supreme Court on the petition of the petitioner thus petitioner cannot take the ground that the Shown-Cause Notice is barred by time; rather the same has been issued within time after passing of the Order of the Hon'ble Supreme Court. Thus the objection that the Show-Cause Notice is barred by limitation is not tenable.

1. Adverting to the next contention that the Show-Cause Notice has not been issued by the competent authority, Mr. Muhammad Ali Saeed learned counsel for the petitioner contended that in view of Sale Tax Circular No. 7/81 the competent authority for issuing the notice was Sales Tax Officer i.e. Assistant Collector of Central Excise and Customs and the Deputy Collector Sales Tax was not competent to issue notice. In support of this argument, the learned counsel relied upon IttehadChemicals v. IslamicRepublic of Pakistan, PLD 1993 SC 136. The learned counsel contended that the provisions as laid down in Circular No. 7/81 are exclusive. The competent authority i.e. Assistant Collector of Customs could issue the Notice and no other authority; therefore, the learned Deputy Collector had no jurisdiction to have issued the notice; thus the impugned notice has been issued without jurisdiction and is null and void and bearing no legal effect. Mr. K.N. Kohli, learned Deputy Attorney General argued that the said position has been clarified in the impugned notice itself that due to the change in the service structure of the Customs, the Deputy Collector was the competent authority to issue the said notice. The learned counsel further pointed out that instead of approaching the Customs Authorities and clarifying the same as mentioned in the first para of the impugned notice, the petitioner has approached this Court, therefore, the petition is not maintainable as the petitioner had efficacious and alternative remedy available to him.

2. Mr. Muhammad Ali Saeed, learned counsel laid much stress on the Sales Tax Circular No. 7/81 wherein under the said Notification power was vested with the Assistant Collector of Customs and Central Excise in the capacity of Sales Tax Officer to have issued the said notice. It would be appropriate to reproduce the Sales Tax Circular No. 7/81 which reads as under :-

"SALES TAX CIRCULAR NO. 7 OF 1981. SUBJECT: APPOINTMENT OF OFFICERS UNDER SUB-SECTION (2) OF SECTION 5 OF THE SALES TAX ACT, 1951.

B

In exercise of the powers conferred by sub-section (2) of Section 5 of the Sales Tax Act, 1951 (III of 1951) and in supersession of Sales Tax Circular No. 6 of 1981, dated the 17th May, 1981, the Central Board of Revenue is pleased to appoint the officer specified in column (2) of the table below to exercise the powers of the officers specified in column (3) of that table within their respective area of jurisdiction."

The contention of Mr. Muhammad All Saeed Advocate has substance that the Assistant Collector of Custom and Central Excise in the capacity of Sales Tax Officer was competent to issue the notice but it may be pertinent to mention here that the matter was remanded by the Hon'ble Supreme Court of Pakistan vide judgment dated 6-11-2000 on the ground that previous notice dated 31-3-1991 was issued by the Collector Customs who was not competent to do so; thus in the said judgment the Hon'ble Supreme Court held that the competent authority is to issue the fresh Show Cause Notice. While issuing the impugned notice it has been clarified in Para No. 1 as to who is the competent authority. For convenience sake relevant portion of the same is reproduced herein below: -

"This Show-Cause Notice is being issued in the light of judgment passed by the Hon'ble Supreme Court of Pakistan in Civil Appeal No. 100 of 1994 filed by M/s. Habib Arkady Ltd, Hub against judgment dated 15-12-1993 passed by learned Division Bench, High Court of Balochistan. The Hon'ble Supreme Court of Pakistan has ordered vide above judgment that competent authority may issue a fresh Show-Cause Notice. The Competent Authority in this case in terms of Sales Tax Circular 7/81 is Assistant Collector. It is pertinent to mention here that an Assistant Collector, during the period of circular represented Grade-17 and 18. However, the designation of officers were changed in 1996 vizAssistant Collector for Grade-17 and Deputy Collector for Grade-18. Hence a Deputy Collector today representative an Assistant Collector of Sales Tax Circular 7/81."

A bare perusal of the said portion of the impugned notice show that after 1996, service structure in the Customs hierarchy has been changed and Deputy Collector (B-18) is the competent officer to issue the notice. Thus in view of change, the contention of Mr. Muhammad Ali Saeed Advocate is devoid of force. Besides, Mr. K.N. Kohli advocate argued that since the petitioner received the notice he filed the instant petition instead of approaching the Customs Authorities to clarify the above said position.

1. Mr. Muhammad Ali Saeed Advocate argued that the said position of law has been settled way back in 1986 in the case Electric Lamp Manufactures of Pakistan Vs. Assistant Collector of Central Excise and Land Customs and others 1986 SCMR 604 and the said view was reaffirmed in the case of Ittehad Chemicals (supra). It may be pointed out that in the case of Ittehad'Chemicals, petitioners exhausted their remedy first before the Customs authorities and then after exhausting all the remedies under the

Customs Laws, thereafter the matter was agitated before the High Court and the Hon'ble Supreme Court of Pakistan. In the case in hand, soon after receiving the impugned notice, the petitioner has'filed the instant petition assailing the impugned notice on the sole ground that the same was issued without any lawful authority. As mentioned hereinahove, in Para No. 1 of the notice, position regarding change in the service structure was explained that the Deputy Collector is competent to issue the said notice. The contention of Mr. K.N. Kohli, learned Deputy Attorney General has force. The petitioner instead of approaching this Court should have approached the Customs hierarchy and should have challenged jurisdiction of the respondent but instead of doing so, the petitioner has directly approached this Court. Thus we are in agreement with the learned Deputy Attorney General that the petitioner had efficacious and alternative remedy and petitioner should have exhausted the said remedy available to him under the Customs Act before the Deputy Collector of Sales Tax. Mr. Muhammad Ali Saeed, learned counsel attempted to argue that even the previous Show-cause Notice dated 31-3-1991 issued by the Collector of Customs which was challenged directly before this Court and before the Hon'ble Supreme Court and the same was set aside vide judgment dated 6-11-2000 on the ground that it was without jurisdiction and of no legal effect. We are not inclined to accept the said argument; in the impugned notice, clarification has been made in the opening para as pointed out hereinabove and without clarifying the same before the concerned authority, the petitioner has approached this Court, thus the arguments of Mr. K.N. Kohli, learned Deputy Attorney General have substance that the impugned Notice is distinguishable from the previous one as clarification has been made. As far as the case of Ittehad Chemicals is concerned, the same is distinguishable and does not apply to the facts of the case in hand. Even in the said case, Ittehad chemicals after receiving the Show-Cause Notice approached the Customs Authorities and challenged the jurisdiction of the same and after exhausting all the available remedies, thereafter the High Court was approached but in the case in hand, despite clarification made by the Customs Authorities, the petitioner has approached this Court, thus the case law relied upon is inept and not applicable to the instant case. From the attitude of the petitioner by not approaching the competent authority and agitating the matter before this Court on mere technicalities, it can be inferred that the petitioner is trying to evade tax in the garb of technicalities. The contention of Mr. K.N. Kohli, learned Deputy Attorney General has weight that since the case is at interlocutory stage; therefore, the same should not be brought to the High Court as it curtails the remedies available under the law. In this regard reliance is placed on the case Mohtarma Benazir Bhutto Vs. The State 1999 SCMR 1447 wherein Hon'ble Mr. Justice Irsahd Hassan Khan, Judge as he then was, made the following observations: -

"It is well-settled that orders at interlocutory stages should not be brought to the higher Courts to obtain fragmentary decisions as it tends to harm the advancement of fair play and justice, curtailing

D

remedies available under the law, even reducing the right of appeal. Refer the case ofMustaq Hussion Bokhari v. The State (NLR 1992 Cr. L.J. 155) Muhammad Afzal Zullah, the then Hon'ble Chief Justice, at page 168 of the report observed as follows: -

It is a wrong or at least misstatement in our state of law, practice, procedures and proceedings in the Courts of law, that wrong orders should be corretted at the time they are passed because it would take less time for the case to conclude. This, might have been true half a century to quarter century ago. Thereafter, the challenge to the interlocutory orders has brought about a deluge in the administration of criminal Justice Cases started piling up with the result that the concept of speedy justice came to a grinding halt and powers that may be, started thinking of curtailing remedies even reducing the right of appeals. Cases like the present one do justify such an angry re-action but with a little change of practice in the technical field (for example amendment vis-a-visthe subject in Section 197 Cr.P.C.) it is hoped there would be no need to curtail the remedies as that too in the stage where we are passing, might be counter productive."

1. It may be pointed out that Mr. Muhammad Ali Saeed Advocate for the petitioner failed to point out as to what injustice has been caused to the petitioner in as much as the learned counsel failed to show as to what prejudice has been caused from the impugned notice; rather on the contrary, the respondent has been put to inconvenience as tax liable to be recovered from the petitioner has not been settled as yet. In this regard reference may be made to Muhammad Baran and others Vs. Member (Settlement and Rehabilitation) Board of Revenue Punjab and 2 others PLD 1991 SC 691 wherein Hon'ble Mr. Justice Muhammad Afzal Zullah, Chief Justice as he then was, made the following observations:

"Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it causes a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked".

Thus the argument of Mr. Muhammad Ali Saeed Advocate that the notice issued by the respondent is without authority is repelled.

1. Consequently as a result of the above discussion, the petition bring devoid of merits is dismissed with no order as to costs.

(A.P) Petition dismissed.

PLJ 2002 Quetta 45 (DB)

Present: raja fayyaz ahmad C. J., and tariq mehmood, J. Mst. RAZIA-Petitioner

versus ABDUL HAMEED and another-Respondents

C.P. No. 513/2000, decided on 4.9.2001. Family Courts Act, 1964 (XXXV of 1964)-

—-S. 5 & Sched.--Constitution of Pakistan (1973), Art. 199-Appeal against dismissal of suit for dissolution of marriage was withdrawn by counsel df plaintiff on mistaken view of law-Constitutional petition- Maintainability-Apart from the fact that appeal had been withdrawn by plaintiffs counsel from the court of District Judge only on account of his negligence or carelessness, act and conduct of District Judge in passing mechanical order on application for withdrawal of appeal, without realizing that factually appeal was rightly instituted or raising question of maintainability was also a factor which led to petitioner in withdrawing her appeal and consequently filing constitutional petition in High Court-­ Order of District Judge allowing withdrawal of appeal was without lawful authority, effect of that order was that he had refused to exercise jurisdiction, which was actually vested in hinv-Order of District Judge in allowing withdrawal of appeal was declared to have been passed without lawful authority and of no legal effect-Appeal filed before District Judge would be deemed to have been validly instituted and pending—District Judge was directed to decide plaintiffs appeal after providing opportunity of hearing to both parties. [P. 48] A

Mr. Mohsin Javed,Advocate for Petitioner.

Mr. Shaukat Rakhshani,Advocate for Respondents.

Date of hearing: 4.9.2001.

judgment

Tariq Mehmood, J.-The facts of the case are that petitioner Mst. Razia married with respondent Abdul Waheed, about six years back. Both the parties remained together for some time, then relations between the parties became strained, due to stated cruel acts/attitude of the respondent. Record reveals that the petitioner is living with her father, for the last about four/five years. On 3.4.2000, she filed a suit for dissolution of marriage mainly on the ground that the respondent has been treating her with cruelty and non-maintenance. Although dissolution of marriage was not sought specifically on the ground of Khula,detail averments were made that now it is not possible for the petitioner to live with her husband. Respondent by means of his written statement contested the suit and repudiated the claim of the petitioner. Out of pleading of the parties, the learned Family Judge framed two issues. Parties led evidence in support of their respective contentions and learned family Judge, vide judgment dated 31.5.2000 was

pleased to dismiss the suit. The petitioner feeling dissatisfied with the decision, filed appeal under Section-14 of Family Court Act, in the Court of District Judge, Kharan. However, during pendency of the appeal, learned counsel for the petitioner, under some mis-conception of law, submitted an application for withdrawal of the appeal. And, learned District Judge was pleased to allow the application and directed return of the memo of appeal. However, it was observed that she may approach to a Competent Court of law, subject to all just exceptions. Subsequently, the petitioner filed this Constitutional petition and challenged the decision learned Family Judge and reiterated in the memo of petition that no appeal was competent against the impugned judgment passed by learned Family Judge and that the same was inadvertently filed but subsequently withdrawn on 28.6.2000.

Mr. Mohsin Javed, learned counsel for the petitioner, when asked as to whether appeal was not competent against the impugned decision passed by the learned Family Judge, he frankly conceded that it was, but it was withdrawn due to mistaken advice of counsel for the petitioner, who represented her in the trial Court. He also conceded that it was his mistake that he reiterated the same position in memo of petition and filed instant Constitutional petition. But, argued that availability of alternate remedy does not oust jurisdiction of this Court as this is only relating to procedure. He has relied upon the judgment reported in PLD 2001 Lahore page 365. On merits, learned counsel argued that the impugned judgment passed by learned Family Judge is not only complete misreading and non-reading of material available on record but the learned Judge has also mis-interpreted relevant provision of law. On the other hand, learned counsel for the respondent argued that impugned judgment was appealable before learned District Judge and although appeal was rightly filed, it was subsequently withdrawn, and therefore, this petition is not maintainable.

We regret to observe that present case is a classic example of carelessness of learned counsels for the petitioner. Although it is easy to say that the petitioner should suffer for the carelessness and the negligence of her counsel, the question is whether the petitioner, who according to stated averments is not willing to live with her husband, at any cost, can be non­suited without there being any fault on her part. Record reveals that the petitioner and her father/attorney are illiterate. Although ignorance of law is no excuse and every body is supposed to know the law, it cannot be ignored that what the petitioner or her attorney/father, a resident of remote area like Qadir Abad (district Kharan), could do for redress of her grievance was to approach a Court of law and through a counsel. This the petitioner did. It appears that the appeal was rightly instituted in the Court of District Judge, Kharan and well within time. But the counsel for the petitioner submitted an application subsequently before the learned District Judge, stating therein that no appeal was competent against the decision of dismissal of suit for dissolution of marriage. Accordingly, he requested for withdrawal of the appeal, so that impugned judgment could be challenged in the High Court in

its Constitutional jurisdiction. This was certainly an act of negligence or carelessness of counsel for the petitioner but the petitioner or her father was not at fault. To the misfortune of the petitioner, even the learned District Judge acted unwisely and passed a mechanical order with the observations that she may approach a competent Court of law, subject to all just exceptions. Subsequently, the petitioner engaged a senior counsel at Quetta to institute the present proceedings. The learned counsel had been President of Balochistan Bar Association and Member of Balochistan Bar Council and it is interesting to note that it has been insisted in the memo of petition that the appeal was wrongly filed in the Court of District Judge, and so was withdrawn. We recall that at the time of admission, learned counsel did not point out this aspect of the case. However, since reference of filing of appeal in the Court of District Judge was also there, therefore, we in good faith thought that her plea of dissolution of marriage was declined by both the forums below. We also recall that we directed the learned counsel to read the statement of lady and since after perusal of same, we found it a fit case for admission, the petition was admitted for regular hearing. However, we record our regrets of the omission, as it has certainly prolonged the agony of parties. In our view, Mr. Muhammad Ashraf Advocate, who represented petitioner in the trial Court, was under an obligation to go through the relevant provision of law before submitting the application for withdrawal of the appeal on the stated ground. We have to presume that the petitioner or her father/attorney had paid the legal charges to afore mentioned counsel and since her counsel was the best person to advice, in the matter, so if she had accepted the advice and consequently application for withdrawal was filed, we found no fault in the conduct of the petitioner or her attorney/father. Record also reveals that after withdrawal of appeal from the Court of learned District Judge, Kharan, her father/attorney traveled all the way from remote and backward area of Qadir Abad to Quetta to institute the present proceedings. Here he engaged a very senior Lawyer, as mentioned here in before, but even he did not care to go through the relevant provision of law, before filing the instant petition. Accordingly, we are of the view that as a matter of fact the withdrawal of appeal from the Court of District Judge cannot be attributed to the petitioner or her father/attorney, as they did all what they could do, placed in the situation and the act is entirely attributable to the carelessness of her counsels. But it is no justice to say that the petitioner should suffer for the carelessness of her counsels and may institute a suit for damages because in this case, issue is of dissolution of marriage and both the parties are separately residing for the last about five years and the lady has specifically stated in her plaint that she was not willing to live with the respondent, at any cost. In these peculiar facts and circumstances of the case, the question for consideration is, what the duty of the Court was. In our view, it was a simple case for dissolution of marriage which was declined by the learned Family Judge. Appeal was rightly instituted but withdrawal was allowed on the ground, legally not available. The application on the face of it was misconceived and its cursory examination could lead in its dismissal and decision of the appeal on merits.

The learned District Judge before passing the order was under a legal obligation to seriously consider the same. Had the learned District Judge applied his judicial mind in the facts and circumstances of the case and relevant provision of law, he could have refused withdrawal on the stated ground and there was no occasion for him to observe that the petitioner may approach a competent Court of law. The District Judge should not have dealt with the application merely from point of speedy disposal of the appeal. A very heavy responsibility lies on the Courts in dealing with the matters of oppressed class, particularly in remote and backward areas, where the litigants may not have proper legal assistance. It cannot be ignored that the administration of justice is the ultimate responsibility of the Court and it has to deliver the same in even-handed manner. So the role of the Court was not limited to pass a mechanical order on the application submitted by a party, even if such party chooses to withdraw the appeal, in that, withdrawal was sought on the ground, not legally available. Settled law is that" the act of the Court shall prejudice no man".

In these events of the back ground, we are of the view that it is not a case where the appeal had been withdrawn by the petitioner's learned counsel from the Court of District Judge only on account of his negligence or carelessness. Here the act and conduct of the District Judge in passing a mechanical order on the application filed by the petitioner's counsel, without realizing that factually, appeal was rightly instituted or raising the question of maintainability is also a factor which led to the petitioner in withdrawing the appeal and consequently filing of instant Constitutional petition in this Court. In our view, order dated 28.6.2000 passed by the learned District Judge was without lawful authority, in that, the effect of this order is that he had refused to exercise jurisdiction, which was actually vested in him. We are conscious of the fact that the petitioner has not specifically sought this relief and has only impugned the judgment of Family Judge but in the peculiar circumstances of the case we cannot ignore it, particularly when the order of District Judge is part of the record and very much relevant in A resolving the real controversy between the parties. Settled principle of law is that a Court has the powers to mold the relief and grant the same, in the interest of justice, even if not asked.

The up-shot of the above discussion is that we declare order dated 28.6.2000, passed by learned District Judge, Kharan having been passed without lawful authority and consequently of no legal effect. Accordingly, the appeal filed before learned District Judge, Kharan would be deemed to have been validly instituted and pending, so he is directed to decide the appeal filed by the petitioner after providing opportunity of hearing to both the parties. It, being a family matter and to avoid further delay, we direct the parties through their counsel to appear before learned District Judge, Kharan on 13.9.2001, who will decide the matter as for as possible within a period of one month from the date of first hearing/appearance. (A.A.) Case remanded.

PLJ 2002 SCI

[Appellate Jurisdiction]

Present: munir A. sheikh and tanvir ahmed khan, JJ.

KHALID MAHMOOD CH. and anothers-Petitioners

versus

GOVERNMENT OF THE PUNJAB through Secretary Livestock & Dairy Development—Respondent Civil Petitions for Leave to Appeals Nos. 3282/L and 3285/L of 2001, heard on 5.12.2001. (On appeal from the judgment dated 15.8.2001 of the Lahore High Court, Lahore, passed in Writ Petitions Nos. 13199 and 13756 of 2001)

Punjab Removal from Service (Special Powers) Ordinance, 2000-

—Ss. 3E & 5 read with Rule 5 of Punjab Public Service Commission (Function) Rules, 1978 and Art. 185(3) Constitution of pakistan, 1973-Leave to appeal-Contention that under Ordinance removal could be made only after holding laborate nquiry by Enquiry Officer or EnquiryCommittee constituted by competent authority, whereas in challenged petitions show- ause notice has been issued without appointment of Enquiry Officer/Committee-Held : Relevant provisions of Ordinance show that appointment of Enquiry Officer or Enquiry Committee is necessary before passing final order of removal from service- Disputed show-cause notice is still at preliminary stage and after considering replies of petitioners if competent authority comes to conclusion that it was a case of taking further proceedings under Ordinance, it will be required to constitute an Enquiry Committee or appoint an Enquiry Officer—Constitutional Petitions in circumstances were rightly held to be pre-mature and dismissed by the High Court-Impugned judgment does not suffer from any legal infirmity or illegality so as to warrant interference by Supreme Court. [Pp. 2 & 3] A & B

Mr. Pervaiz Inayat Malik, ASC for Petitioners. Nemo for Respondent.

Date of hearing : 5.12.2001.

order

Munir A. Sheikh, J.--Both these petitions are directed against the judgment dated 15.8.2001 of the Lahore High Court, Lahore by which the Constitutional petitions filed by the petitioners were dismissed.The petitioners were appointed in the Civil Service of the Government of Punjab on ad hoc basis. On the promulgation of Punjab Removal From Service (Special Powers) Ordinance, 2000 thereinafter referred to as the Ordinance), a show-cause notice was issued to the petitioners stating that their appointment was made on extraneous consideration within the contemplation of Section 3(e) of the Ordinance. Reply was filed by the petitioners in which they stated that they were appointed under Rule 5 of the Punjab Public Service Commission (Function) Rules, 1978, by the Chief Minister who was the competent authority which was not disputed, therefore, their appointment could not be treated to have been made on extraneous consideration as the provisions of the Ordinance are not attracted to their cases.

The competent authority has not yet taken any decision on these pleas advanced by the petitioners.Learned counsel for the petitioners has also pointed out that under the Ordinance removal could be made only after holding elaborate enquiry by the Enquiry Officer or the Enquiry Committee constituted by the competent authority, whereas in these petitions show-cause notice has been issued without appointment of Enquiry Officer/Committee.The relevant provisions of the Ordinance show that appointment of preliminary stage and after considering the replies of the petitioners if the competent authority comes to the conclusion that it was a case of taking further proceedings under the Ordinance, it will be required to constitute an Enquiry Committee or appoint an Enquiry Officer. The Constitutional petitions in the circumstances were rightly held to be pre-mature and dismissed as such. The impugned judgment does not suffer from any legal infirmity or illegality so as to warrant interference by this Court.

For the foregoing reasons, the petitions stand dismissed. The petitioners may, if any order adverse to them is passed either on merits or against the provisions of the Ordinance, may file appeals before the Punjab Service Tribunal in accordance with law.

(A.P.) Petitions dismissed.

PLJ2002SC3

[Appellate Jurisdiction]

Present: IFTIKHAR MUHAMMAD CHAUDHRY AND HAMID ALI MlRZA, JJ.

WAHID-Petitioner

versus

STATE-Respondent Criminal Petition No. 182 of 2001, decided on 14.9.2001.

(On appeal from the judgment dated 4.6.2001 passed by the Lahore High Court, Lahore in Cr.A. No. 191 of 1995, M.R. No. 86/95)

(i) Witness-

—Murder-Offence of--Conviction and sentence-Appeal against-Ocular testimony of PWs and motive, evidence of PW-7 who was not stating truth and was won over by accused party therefore testimony ,to said extent which was untrue was rightly discarded' by learned Division Bench of High Court and learned trial Court though there could not be cavil with that decisions of Supreme Court relied upon by counsel that evidence of such hostile witness could be taken into consideration so as to find out if evidence of said witness was worthy of belief in the light of other evidence and (ii) that a witness who was unfavourable to prosecution was not necessarily hostile but a witness who was not telling truth to Court would be considered to be a hostile witness-It would not be out of place to mention here that it has been noticed that in large number of cases eyewitness of occurrence resile from their statements or atleast make concessions in favour of accused consequently said witnesses are often declared to be hostile-Cause for this has been in view of conditions prevailing in countiy that some pressure by way of inducement has been put upon them therefore said witnesses generally

would not endanger themselves at risk of their lives to state truth in the Court—In the circumstances Courts have to find out truth from statement with caution of such declared hostile witness, consequently such evidence which is to be found to be untrue is to be discarded by Court-Accordingly learned Division Bench and trial Court were justified in discarding/ rejecting evidence of PW-7~So far second contention that medical evidence was inconsistent to that of ocular evidence on ground of presence of blackening around firearm injuries therefore presence of PWs at place of occurrence was doubtful has also no merit.

[Pp. 5 & 6] A

(ii) Witness-

—A witness has seen incident and said statement was worthy of credence, conflicting opinion of doctor would neither negate nor outweigh nor nullify evidentiary value of eye-witnesses. [P. 8] B

Sardar Asmatullah Khan, ASC for Petitioner.

Nemo for State.

Date of hearing: 14.9.2001.

judgment

Hamid Ali Mirza, J.--This criminal petition for leave to appeal is directed against the judgment of conviction dated 4.6.2001 in Criminal Appeal No. 191 of 1995 and Murder Reference No. 86 of 1995 passed by learned Division Bench of the Lahore High Court, whereby judgment of conviction dated 23.3.1995 passed by learned Additional Sessions Judge, Kasur for the murder of Rafaqat Ali and murderous assault upon Safdar Ali PW was upheld, and petitioner/accused Wahid son of Liaqat Ail was convicted under Section 302 PPC and sentenced to death and co-accused Zahid was convicted under Section 337-A (1) PPC and sentenced to two years Rule I and to pay Rs. 2,000/-as Daman, Riasat Ali, Ishtiaq, Taj Muhammad, Liaqat Ali, Wahid and Zahid accused persons were also convicted under Section 148 PPC and sentenced to two years R.I. with fine of Rs. two thousand each when sentence awarded to Zahid co-accused was to run concurrently and co-accused Mukhtar, Shafique and Afzal were acquitted of the charged offence.

Brief facts of the case are that the petitioner alongwith co-accused namely, (i) Riasat Ali, (ii) Mukhtar Ahmad, (iii) Muhammad Shafique, (iv) Muhammad Afzal,-(v) Ishtiaq, (vi) Taj Muhammad, (vii) Liaqat Ali, and via) Zahid were charged and tried under Section 302/148/149 PPC by the learned Additional Sessions Judge, Kasur. The petitioner and co-accused pleaded not guilty to the charged offences consequently prosecution examined as many as fourteen PWs in support of its case. The petitioner and co-accused were examined under Section 342 Cr.P.C. wherein they denied the commission of charged offences and stated that they were falsely imr»Hoo+n«i ir> tVio coco and tViat PWs rlpnnspfl ainst. t.hem were inimical and

interested when co-accused Riasat Ali stated that he and some of his friends not mentioned in the FIR had retaliated to the firing upon the complainant party in the exercise of private right of defence of person and property as he had earlier objected to the boarding of passengers on the top of wagon as it was affecting the privacy of his house. Learned trial Court Judge after recording the evidence and hearing the learned counsel, convicted and sentenced the petitioner and co-accused and also acquitted some of the co-accused as mentioned above. The petitioner and co-accused filed Criminal Appeal No. 191 of 1995 and learned trial Court also sent murder Reference No. 86/95 against the petitioner to the Lahore High Court when criminal appeal of the petitioner and convict accused was dismissed and murder reference against the petitioner was confirmed.

We have heard learned counsel for the petitioner and perused the record minutely.

The contention of the learned counsel for the petitioner is that the learned Division Bench and the learned trial Court have not considered the evidence of injured PW-7 Safdar Ali whose evidence was confidence inspiring and (ii) ocular testimony was inconsistent to that of medical evidence. He has placed reliance upon Zahid Khan v. Gul Sher (1972 SCMR 957), (ii) Muhammad Boota v. The State (1984 SCMR 56) and (iii) The State v. Abdul Ghaffar (1996 SCMR 678)

We do not find substance and merit in the contentions of the learned counsel for the petitioner. So far the petitioner/accused is concerned, testimony of PW-3 Rana Muhammad Azim, PW-4 Zahid Hussain and PW-5 Muhammad Sadiq is consistent to the effect the petitioner was holding .12 bore gun and he fired which hit Rafaqat Ali deceased's throat and right side of his shoulder which fact was consistent to the part assigned to the petitioner in the FIR which was «dged without delay. Their testimony has been found to be confidence inspiring by the learned trial Court and the learned Division Bench of the High Court, considering that the same could not be discredited in their cross-examination by the defence counsel to which finding no exception could be taken. It may also be observed that co-accused Riasat Ali admitted the occurrence and motive but claimed exercise of right of private defence of person and property which he could not substantiate when motive and commission of crime on the part of petitioner have been testified by PWs Rana Muhammad Azim, Zahid Hussain and Muhammad Sadiq, therefore same stood proved by the prosecution. In the light of above ocular testimony of the PWs and the motive, the evidence of PW-7 Safdar Ali if judged and analysed one could easily arrive at the right conclusion that he was not stating the truth and was won over by the accused party therefore the testimony to the said extent which was untrue was rightly discarded by the learned Division Bench of the High Court and learned trial Court though there could not be cavil with that decisions of this Court (supra) relied upon

that the evidence of such hostile witness could be taken into consideration so as to find out if evidence of said witness was worthy of belief in the light of other evidence and (ii) that a witness who was unfavourable to the prosecution was not necessarily hostile but a witness who was not telling the truth to the Court would be considered to be a hostile witness. It would not be out of place to mention here that it has been noticed that in large number of cases eye-witness of the occurrence resile from their statements or atleast make concessions in favour of accused consequently said witnesses are often declared to be hostile. The cause for this has been in view of conditions prevailing in the country that some pressure by way cf inducement has been put upon them therefore the said witnesses generally would not endanger themselves at the risk of their lives to state truth in the Court. In the circumstances the Courts have to find out the truth from the statement with caution of such declared hostile witness, consequently such evidence which is to be found to be untrue is to be discarded by the Court. Accordingly the learned Division Bench and the trial Court were justified in discarding rejecting the evidence of PW Safdar Ali.

In the circumstances the first contention of the learned counsel has no merit and substance.

So far the second contention that the medical evidence was inconsistent to that of ocular evidence on the ground of presence of blackening around fire-arm injuries therefore the presence of PWs at the place of occurrence was doubtful has also no merit. The learned Division Bench of the High Court in the said respect has observed in para 17 of the impugned judgment as follows: -

"17...The only objection raised by the defence in this behalf is that the doctor noticed blackening around the injuries, which could be caused only if the shot is made from a distance of one to four/five feet and not beyond that. It was pointed out that the witnesses stated that the injuries were caused from a distance of 38 to 42 feet. Arguments developed by the defence is that the witnesses were either not present at the spot or did not see any one firing at the deceased and gave the fire range by approximation. The Investigating Officer carried out inspection of the injuries and while preparing inquest report (Exh. PH) has mentioned about injuries in Column No. 10 thereof. He did not observe blackening around the wounds. Last worn clothes of the deceased, chadar (PI), vest (P2) and shirt (P3) were also delivered by the doctor to the police after post-mortem examination. It is clearly mentioned therein that shirt and vest had corresponding perforations, but there is absolutely no mention of any blackening around these holes. Non-observance of blackening around margins of the wounds and holes in the shirt and

vest by the Investigating Officer is a clear proof of the fact that the shot had not been made from a close range. Had blackening been available on the clothes of he deceased, the examining doctor would have never omitted to mention the same. Colour of the skin has also not been furnished by the doctor. On receipt of injuries, the effected area undergone process of colour changing due to hemorrhage or swelling. Some time, skin becomes bluish and sometimes becomes black. Doctor has not mentioned the source of blackening as to whether it was due to deposit of gun powder or due to heat affects of pellets. The doctor could easily take wound wash or clothes wash for laboratory test to be sent percent sure of source of blackening but it was never done so. Firing is admitted by the accused side, even Riasat Ali accused, who made a detailed statement did not state as to from what distance the accused side had made firing. We attach no important to this circumstances.

Defence version is absurd ridiculous and fantastic one. So it is rejected."

In Muhammad Rafiq alias Titai v. The State (PLD 1974 SC 65) this Court has observed:-

"We regret we cannot accept this argument for the reason that, in the first place, it is too much to expect that illiterate or semiliterate witness would be able to indicate the distance in question with scientific exactitude; in the second place, as observed by Burrard:- 'If the shot is fired with a cartridge loaded with black powder the blackening range is increased because of the smoke. On combustion black powder gives only about 44% of gaseous and 56% of volatile solid products, and it is this large percentage of volatile solid products, of combustion was cause the heavy smoke. And the smoke is far more potent to deposit blackening than the gasses generated by the combustion of nitro powders'-(The identification of Fire­arms and Forensic Ballistics, p. 5$)

In the next paragraph, on the same page, the learned author goes on to add that:--

'All self-loading pistol cartridges are smokeless, but revolver cartridges can be obtained loaded with black powder and it should be remembered that it is possible by filing down the rim to fire the revolver cartridges in a self-loading pistol of the correct calibre. So, the existence of smoke cannot be regarded as proof positive that a self-loading pistol was not used.'

These observations go to show that the charring effect depends not only on the distance from which the shot is fired but also on the kind of powder used in the missile. We have no information in the present case on this point. In these circumstances, the positive testimony of the eye-witnesses, who are otherwise dependable and natural witnesses, cannot be cast aside merely on the basis of the theoretical opinions relied upon by the defence."

In the instant case besides what has been observed by the learned Division Bench of High Court defence could not bring in the cross-examination of the doctor who performed autopsy upon the deceased the material on the record the reasons for the deposit of alleged blackening by smoke and unburned gun-powder surrounding fire-arm injuries, considering that same would not only depend on the distance from which shot is fired but also on (i) the kind and quantity of gun-powder (charge) used in the cartridge and (ii) length of barrel and size of barrel diameter at muzzle end.

The learned Division Bench and trial Court, as will as this Court is fully convicted that the eye-witnesses PWs 3, 4 and 5 were present at the place of occurrence and had seen the incident and the testimony was trustworthy and confidence inspiring. It is now settled that when the Court is convinced that a witness has seen the incident and said statement was worthy of credence, the conflicting opinion of doctor would neither negate nor outweigh nor nullify the evidentiary value of eye-witnesses. Reference be made to Ghulam Ullah and another v. The State and another (1996 SCMR 1887), (ii) Muhammad Hanif v. The State (PLD 1993 SC 895), (Hi) Abdur Rehman v. The State (1998 SCMR 1778), (iv) Yaqoob Shah v. The State (PLD 1976 SC 53).

In view of the confidence inspiring ocular testimony of PWs 3, 4 and 5 and foregoing reasons we find no substance in the second contention of learned counsel as well.

The learned Division Bench of High Court and trial Court have given legal, valid and cogent reasons in arriving at finding with regard to the guilt of petitioner/accused on basis of prosecution evidence which stood proved beyond reasonable doubt. No extenuating or mitigating circumstance exists for reduction in sentence. In the circumstance this petition has no merit consequently the same is dismissed and leave to appeal is declined.

(AAJS) Leave to appeal declined.

PLJ 2002 SC 9 [Appellate Jurisdiction]

Present: iftikhar muhammad chaudhry and hamto An mirza, JJ.

GULZAR AHMED-Petitioner

versus

STATE-Respondent Jail Petition No. 10 of 2001, decided on 13.9.2001.

(On appeal from the judgment/order dated 16.5.2001 passed by Lahore High Court, Lahore in Cr. A. 96/97 & MR No. 124/97)

(i) Pakistan Penal Code, 1860 (XLV of 1860)--

-—S. 302—Under law normal penalty for offence of Qatl-i-Amd falling within mischief of Section 302 (a) and (b) PPC is death-However, if Court is satisfied that lesser sentence will meet ends of justice subject to condition that there exists extenuating and mitigating circumstances, no leniency an be shown in awarding normal penalty of death to convict-In number of cases it has been experienced that Courts undertakes unnecessary labour to make out a case of lesser punishment for commission of principal offence falling within mischief of Section 302 (a) and (b) PPC as a result whereof serious injustice and prejudice is caused to victim party who suffered on account of judicial pronouncement~Of course, in addition to it object of awarding normal penalty of death in murder cases is to avoid repetition of violent loss of life by awarding punishment-­ Reference in this behalf may be made to Muhammad Sharif v Muhammad Javed @ Jeda Tedi and five others (PT-J 1976 SC 346)- However, there could be a case where mitigating or extenuating circumstances apparently exists on record depending upon circumstances of each case-In addition to it under Islamic principle of dispensation of criminal justice once it is established that an offence falling within definition of Hadd is proved, no extenuating or mitigating circumstances can be pressed into service for warranting lesser punishment, however in cases where sentence is awarded under Tazir than factor of mitigating or extenuating circumstances could form a relevant consideration while imposing sentence under Section 302 (b) PPC.

[Pp. 11 & 12] A

PLJ 1976 SC 346 rel. (ii) Pakistan Penal Code, 1860 (XLV of 1860)-

—S. 302--Petitioner has been awarded sentence of death as Tazir falling within compass of Section 302 (b) PPC question for consideration before Supreme would be whether non-considering defence version by High Court is a mitigating or extenuating circumstances in favour of petitioner-First of all it is to be seen that defence witnesses have furnished evidence to the effect that petitioner was arrested during proceedings of "Khatam Sharif meaning thereby that on producing such evidence accused intended to raise plea of alibi because he wanted to establish through these witnesses that at the time of commission of crime he was not present at place where incident had taken place-Notwithstanding the fact that whether version of defence witnesses is considered by High Court or otherwise evidence so produced through these witnesses in any case would not be sufficient to constitute a mitigating or extenuating circumstances in his favour-When prosecution has manifestly proved involvement of petitioner by producing ocular evidence, medical evidence, motive as well as confirmatory evidence to the effect that crime weapon i.e 30 bore pistol recovered from his possession was used by him in commission of offence because empties secured from place of incident have matched with it, then non-consideration of defence evidence will not cause prejudice in any manner--Placing prosecution evidence in juxta position with evidence, which has been led by defence witnesses it can conveniently be concluded that plea of petitioner, which he intends to introduce through defence witnesses has no substance-Held : There is ho inhibition or hesitation in maintaining sentence of death awarded to petitioner by trial CourT

[Pp. 11&12JA&B

Sardar M. Siddique Khan, ASC for Petitioner. Nemo for Respondent. Date of hearing: 13.9.2001.

judgment

Iftikhar Muhammad Chaudhry, J.--Petitioner seeks leave to appeal against judgment dated 16th May 2000 passed by Lahore High Court, Lahore whereby death sentence awarded to petitioner under Section 302 PPG by Additional Sessions Judge, Lahore on 12th March 1997 was confirmed while accepting Murder Reference No. 124 of 1997 as a consequence whereof Criminal Appeal No. 96/97 filed by petitioner challenging his conviction/sentence has been dismissed.

1. The prosecution case as it has been unfolded in FIR Ex. PC recorded by Nazir Ahmed complainant brother of deceased Akram Ali is that later sold three cassettes to the younger brother of petitioner Gulzar Ahmed but he was not satisfied on which the complainant's father Nazir Ahmed said that he be given one more cassette. At about 1.00 a.m. (midnight) Gulzar came to the house of the complainant and asked Akram deceased to come out of the house. He also started hurling abuses. The complainant and his father returned the amount of Rs. ISO/- but Gulzar Ahmed did not feel satisfy and left the place while extending threats that he will take revenge of his insult. On 15th August, 1995 at about 11.45 a.m. the complainant alongwith his brother Akram Ali, brother-in-law Muhammad Arshad and his father Manzoor Ahmed were present in the house; petitioner Gulzar alongwith one unknown young man called out Akram and when he reached at the outer door of the house Gulzar Ahmed and his companion started ring from their respective mouzers hitting Akram Ali at his chest who fell down and succumbed to the injuries instantaneously. A number of inhabitants were attracted to the place of occurrence and in the meanwhile petitioner Gulzar Ahmed and his companion fled-away while firing from the pistols. The incident was witnessed by complainant, his father Manzoor and brother-in-law. PW Muhammad Yousaf, SI after registration of the case recovered three empties of 30 bore mouzer, blood-stained earth from the place of occurrence vide recovery memo Ex. PE. Petitioner was arrested on 27th August, 1995, who on 2nd September, 1995 led to the recovery of 30 bore mouzer, which was sealed into a parcel and secured vide recovery memo Ex. PH. Meanwhile, co-accused Sajjad Ahmed was also arrested. Learned trial Court read over charge to both the accused under Section 302(b) PPC but they did not plead guilty as such to substantiate accusation prosecution produced evidence. Thereafter statements of accused facing trial were also recorded under Section 342 Cr.P.C. as well as under Section 340 (2) Cr.P.C. Petitioner pleaded innocence and took plea of alibi. In support of said plea he also examined three defence witnesses namely Muhammad Sarwar, Muhammad Asad and Sajjad Ahmad. On completion of proceeding learned trial Court vide judgment dated 12th March 1997 found petitioner guilty for the commission of the offence, as such he was warded death sentence under Section 302 PPC with further direction that he will pay Rs. 1,00,000/- as compensation to the heirs of deceased under Section 544-A Cr.P.C. As far as co-accused is concerned he was exonerated of the charge.

2. Petitioner filed appeal before the High Court. Simultaneously trial Court also transmitted Murder Reference for onfirmation or otherwise of death sentence. Both the matters have been disposed of by means of impugned judgment. As such instant petition has been filed.

3. Learned counsel appearing for the petitioner at the very outset contended that he is not challenging impugned udgment passed by Lahore High Court on merits but only requests for reduction of sentence. In support of his plea he argued that evidence furnished by defence witnesses appearing on behalf of the petitioner has not been considered by the High Court, therefore, for such reason petitioner is entitled for lesser punishment.

4. We afraid contention put forward by learned counsel has no substance because under the law normal penalty for the offence of Qatl-i- Amd falling within the mischief of Section 302 (a) and (b) PPC is death. However, if the Court is satisfied that lesser sentence will meet the ends of justice subject to the condition that there exists extenuating and mitigating circumstances, no leniency can be shown in awarding normal penalty of death to the convict. In number of cases it has been experienced that the Courts undertakes unnecessaiy labour to make out a case of lesser punishment for the commission of principal offence falling within the mischief of Section 302 (a) and (b) PPC as a result whereof serious injustice and prejudice is caused to the victim party who suffered on account of judicial pronouncement. Of course, in addition to it object of awarding normal penalty of death in murder cases is to avoid repetition of violent loss of life by awarding punishment. Reference in this behalf may be made to Muhammad Sharif v. Muhammad Javed @ Jeda Tedi and five others (PLD 1976 SC 452). However, there could be a case where mitigating or extenuating circumstances apparently exists on record depending upon the circumstances of each case. In addition to it under the Islamic principle of dispensation of criminal justice once it is established that an offence falling within the definition of Hadd is proved, no extenuating or mitigating circumstance can be pressed into service for warranting lesser punishment, however in the cases where sentence is awarded under Tazir than factor of mitigating or extenuating circumstance could form a relevant consideration while imposing sentence under Section 302(b) PPC. Admittedly, in the instant case petitioner has been awarded sentence of death as Tazir falling within the compass of Section 302(b) PPC. Now question for consideration before us would be whether non-considering the defence version by the High Court is a mitigating or extenuating circumstance in favour of petitioner. First of all it is to be seen that defence witnesses have furnished evidence to the effect that petitioner was arrested during the proceedings of "Khatam Sharif meaning thereby that on producing such evidence the accused intended to raise plea of alibi because he wanted to establish through these witnesses that at the time of commission of crime he was not present at the place where incident had taken place. In our opinion notwithstanding the fact whether the version of defence witnesses is considered by the High Court or otherwise the evidence so produced through these witnesses in any case would not be sufficient to constitute a mitigating or extenuating circumstance in his favour. When the prosecution has manifestly proved involvement of petitioner by producing ocular evidence, medical evidence, motive as well as confirmatory evidence to the effect that crime weapon i.e 30 bore pistol recovered from his possession was used by him in the commission of offence because the empties secured from the place of incident have matched with it, then non-consideration of defence evidence will not cause prejudice in any manner. Placing the prosecution evidence in juxta position with the evidence, which has been led by the defence witnesses it can conveniently be concluded that the plea of petitioner, which he intends to introduce through defence witnesses has no substance. Therefore, we feel no inhibition or hesitation in maintaining sentence of death awarded to him by the trial Court.

Thus for the above discussion, we see no merit in this petition as such the same is dismissed and leave to appeal declined.

(AAJS) Leave to appeal declined.

PLJ 2002 SC 16 [Appellate Jurisdiction]

Present: IFTIKHAR muhammad chaudhry and hamto ali mirza, J J. ALLAH DITTA-Petitioner

versus

STATE-Respondent Criminal Petition No. 72 of 2001, decided on 13.9.2001.

(On appeal from the judgment/order dated 28.2.2001 passed by Lahore High Court, Lahore in Cr. A. 665/94 & M.R. No. 19/95)

(i) Maxim-

—-It is known principle of law that proposition enshrined in maxim falsus uno, falsus in omni bus is not applicable and testimony of a witness is acceptable against one set of accused though same has been rejected against another set of accused facing same trail. [P. 19] A

(ii) Pakistan Penal Code, 1860 (XLV of 1860)--

—Ss. 302(b) and 457-According to learned defence counsel medical evidence is in conflict with ocular testimony of three witnesses, therefore, in absence of any corroboration their evidence is not acceptable-He further explained that as per evidence of Doctor, who conduced autopsy there was blackening around wound of left thumb which means that fire was made from very close range where as according to sight plan distance between place where deceased was present and place where from accused was allegedly firing is 28 feet, therefore, medical evidence cannot be used for corroboration purposes-Similarly according to him dying declaration allegedly made by deceased in presence of PWs can not be used for purpose of corroboration because it seems that to strengthen case of persecution these two persons were introduced subsequently to prove so called dying declaration-Held: Furnishing of independent corroboration does not mean that it must come from other source-Consistence statements of eye witnesses who have furnished ocular testimony can also be considered corroboratory evidence if their statements do not lack unanimity in their substantial evidence Le portion in which they have narrated happening of actual incident and instrinsic value of their evidence remained consistent with each other then their evidence can be considered to be corroborative piece of evidence-In instant case evidence indicates that all three witnesses have furnished trustworthy, confidence inspiring and consistent evidence so far as act of firing is concerned-To this extent there is no variation in their statements-By giving such

consistent and thev could not be shaken in croM-

examination-It is also to be noted that prosecution witnesses have no enmily of whatsoever nature against and they have also no reason to falsely involve him in commission of murder of their brother—In additional to it, it is also not possible for them that they would allow real culprit to go escort free and falsely involve another person for commission of offence-Even otherwise it is well settled by now that substitution of real culprit is rare phenomena in our system of criminal justice.

[Pp. 19 & 20] C

(iii) Safe administration of CrimmalJustice-

—For safe administration of justice condition hastbeen imposed that Which vidence is going to be believed must get corroboration on material particulars meaning that to base conviction principle of sifting chaff but of grain has to be followed. [P. 19] B

Mian Allah Nawaz, ASC and Mr. Imtiaz Muhammad Khan, AOR for Petitioner.

Nemo for Respondent. Date of hearing: 13.9.2001.

okder

Iftikhar Muhammad Chaudhry, J.-In this petition leave has been sought against judgment dated 28.02.2001, passed by Lahore High Court, Lahore, whereby while accepting Murder Reference No. 19/1995, death sentenced awarded to petitioner has been confirmed and Criminal Appeal No. 665/1994 filed by him to challenge his conviction/sentence was dismissed.

1. Succinctly stating facts of the case are that PW Muhammad Sadiq (complainant), lodged FIR at 3.15 a.m. in respect of an incident which took place at 2.00 a.m. in the night intervening between 4th/ 5th July, 1991, stating that at the time of incident he and his brother Muhammad Sabir deceased alongwith his another brother Asghar Ali and one Muhammad Rafique were sleeping in the open place where they have tethered their animals. A burning lantern had also been hanged with a branch of Keekar tree for the safe guard of animals. Muhammad Sabir deceased awoke up on hearing noise of feet of animals. He started checking the animals. In the meantime, one person came from the side of Gara. Said person was identified by Muhammad Sabir in the light of lantern as Allah Ditta. He thereafter called complainant, Asghar Ali and Muhammad Rafique to woke up. After awakening complainant Muhammad Sadiq, Asghar Ali and Muhammad Rafique also indentified the person in the light of lantern and torch. He was Allah Ditta, having a gun in his hand. Muhammad Sabir (deceased) told Allah Ditta that he had identified him and why he had come there. On hearing, Allah Ditta fired a shot which hit Muhammad Sabir at the thumb of his hand and at the abdomen. After sustaining fire-arm

injuries Sabir fell down on the ground then Allah Ditta gave butt blows to Sabir. The complainant alongwith his companions raised hue and cry but Allah Ditta alongwith his companion fled away from the spot. Thereafter, the complainant, Asghar Ali and Muhammad Rafique took Sabir on a cot to Adda Dhuttary where Jan Muhammad, Khushi Muhammad, Muhammad Ismail and other inhabitants of the Mauza came. In presence of all these persons deceased Muhammad Sabir stated that he was injured by Allah Ditta, who was accompanied by three persons, who could be identified if brought before him. Sabir was taken to Hospital where he succumbed to his injuries.

1. It may by noted that when after registration of the case PW-13 Ahmed Ali, SI/SHO visited the place of incident, PW Muhammad Sadiq (complainant) produced before him his supplementary statement on the same day wherein lie named Mushtaq Ahmed, Noor Muhammad and Muhammad Shafique to be the associates of principal accused Allah Ditta.

2. The Investigating Agency conducted investigation of the case, arrested the accused persons and sent up them to answer the charge.

3. Learned trial Court (Additional Sessions Judge, Chunian) after completion of proceedings found them guilty vide judgment dated 19.12.1994 and sentenced them as follows:

4. Petitioner Allah Ditta to death under Section 302 (b)

PPC as well as under Section 457 PPC to 10 years R.I.

1. Mushtaq Ahmed, Noor u/s 457 PPC 2 years R.I. Muhammad and Muhammad

Shafiq

In appeal filed by convicts learned High Court maintained the sentences awarded to Allah Ditta. However, remaining co-accused were exonerated of the charge by extending them benefit of doubt. As such instant petition has been filed.

1. Learned counsel for petitioner contended that ocular testimony furnished by PWs Muhammad Sadiq, Asghar Ali and Muhammad Rafique has been disbelieved by the High Court against co-accused whereas their version to the extent of petitioner has been accepted without seeking independent corroboration. He admitted that in this country the principle of falsus in uno, falsus in omni bus is not applicable but for the sake of safe administration of justice superior Courts' have always impressed for seeking corroboration to the evidence of eye-witnesses, whose version has been believed quathe accused who have been cquitted be extending them benefit of doubt. He admitted that there is no corroboration because the fire-arm expert has not stated that the .12 bore gun recovered from possession of petitioner was used for the commission of the murder. As far as medical evidence is concern it is also in conflict with the ocular testimony of the witnesses. He also took exception against impugned judgment by arguing that learned Division Bench of the Lahore High Court found itself convinced from the dying declaration made by deceased Muhammad Sabir before PW Jan Muhammad and Shaukat. The fact is that both these persons did not disclose before the Investigating Agency that any type of dying declaration was made. He, therefore, contended that under the circumstances, the petitioner is also entitled to the benefit of doubt.

2. We have heard learned counsel at length and have gone through the evidence available on record carefully. It is to be observed that in the instant case FIR was lodged with promptitude by complainant Muhammad Sadiq in which he has only nominated petitioner Allah Ditta to be the accused who fired upon Muhammad Sabir. It is to be noted that names of remaining witnesses namely Muhammad Rafique and Asghar All were also mentioned therein. It is equally important to observe that FIR finds mention about co-accused but their names were not disclosed therein and they were shown to be the companion of Allah Ditta. It is known principle of law that the proposition enshrined in maxim falsus in uno, falsus in omni bus is not applicable and testimony of a witness is acceptable against one set of accused though the same has been rejected against the another set of accused facing same trial. However for safe administration of justice condition has been imposed that the which evidence is going to be believed must get corroboration on material particulars meaning that to base conviction principle of sifting chaff out of grain has to be followed. Reference in this behalf may be made to the case of Sarfraz @ Sappi and two others v. The State (2000 SCMR 1758). According to learned counsel he has no cavil with the proposition but as the medical evidence is in conflict with the ocular testimony of three witnesses, therefore, in absence of any corroboration their evidence is not acceptable. He further explained that as per the evidence of PW. Dr Shahid Saleem, who conduced autopsy there was blackening around the wound of left thumb which means that fire was made from very close range where as according to sight plan the distance between the place where the victim Muhammad Sabir deceased was present and the place where from accused was allegedly firing is 28 feet, therefore, medical evidence cannot be used for corroboration purposes. Similarly according to him dying declaration allegedly made by deceased Muhammad Sabir in presence of PW Jan Muhammad and Shaukat cannot be used for the purpose of corroboration because it seems that to strengthen the case of prosecution these two persons were introduced subsequently to prove so called dying declaration. In our opinion there is no need to dilate upon both these aspects of the case. As it has been disclosed hereinabove that for safe administration of justice the ocular testimony which has been discarded against one set of accused can be believed against other set of accused if such evidence finds orroboration on material points. Furnishing of independent corroboration does not mean that it must come from other source. Consistent statements of the eye-witnesses who have furnished ocular testimony can also be considered corroboratory evidence if their statements do not lack unanimity in their substantial evidence i.e the portion in which they have narrated the happening of the actual incident and the instrinsic value of their evidence remained consistent with each other then their evidence can be considered to be corroborative piece of evidence. In the instant case the evidence indicates that all the three witnesses namely Muhammad Sadiq and others have furnished trustworthy, confidence inspiring and consistent evidence so far as the act of firing by Allah Ditta upon deceased Muhammad Sabir is concerned. To this extent there is no variation in their statements. By giving such evidence they remained consistent and they could not be shaken in the cross-examination. It is also to be noted that admittedly prosecution witnesses Muhammad Sadiq and two others have no enmity of whatsoever nature against Allah Ditta and they have also no reason to falsely involve him in the commission of murder of their brother Muhammad Sabir. In additional to it, it is also not possible for them that they would allow real culprit to go escort free and falsely involve another person for the commission of the offence. Even otherwise it is well settled by now that substitution of teal culprit is as rare phenomena in our system of criminal justice.

3. On having gone through the material available on record we are of the opinion that petitioner has rightly been saddled with the responsibility , of murder of Muhammad Sabir, therefore, the impugned judgment warrants ho interference by this Court.

Thus for the above reasons we see no substance in the instant petition which is dismissed and leave refused.

(AAJS) Leave refused

PLJ 2002 SC 20

[Appellate Jurisdiction]

Present: iftikhar muhammad chaudhry and hamid ali mirza, J J. M/s. BILZ (PVT) LTD.-Appellantversus

THE DEPUTY COMMISSIONER OF INCOME TAX, MULTAN and another-Respondents

Civil Petitions Nos. 2789-L to 2791-L of 2001, decided on 25.9.2001.

(On appeal from the judgment/order dated 23.4.2001 passed by Lahore High Court, Lahore in ITA Nos. 18-20/2000)

Income Tax Ordinance,1979 (XXXI of 1979)--

—S. 50(4)-Whether an assessee can be held to be assessee in default for not having deducted tax under clause (a) of sub-Section (4) of Section 50 of the Income Tax Ordinance, 1979, if the Assessing Officer has not identified the recipient from whom tax should have been deducted--Question of-It is petitioner firm itself who made supplies therefore, no one else better than it would have knowledge that from whom deduction is to be made-Department had successfully discharged its obligation by making reference of details of supplies, which were made under different heads as per contents of show cause notice-It may be noted that according to settled principle of law that a fiscal statute has to be construed in its true perspective and in respect of payment of income tax, if it is found due against a party, then such statute can not be interpreted liberally in order to make out a case in favour of an assessee who has failed to pay tax-Held : In view of clear provisions of Section 50 (4) (a) of Ordinance, no law point requiring interpretation by Lahore High Court as well as by Supreme Court is made out--Therefore, it is held that an assessee who has failed to deduct tax in terms of Section 50 (4) (a) of Ordinance was rightly declared to be an assessee in default and cognizance of matter was rightly taken by Income Tax Department within meaning of Section 52 read with Section 86 of Ordinance.

[Pp. 21, 25 & 26] A & B

Mr. Iqbal Naeem Pasha, ASC and Mr. M.A. Qureshi, AOR for Appellant.

Nemo for Respondents. Date of hearing: 25.9.2001.

judgment

Iftikhar Muhammad Chaudhry, J.--In the above petitions, judgment dated 23rd April, 2001 passed by Lahore High Court, Lahore has been assailed with the prayer to grant leave to appeal. As statedly identical question of law is involved in all the matters, therefore, we intend to dispose them of by instant common judgment.

1. Facts giving rise in all these cases are similarly, therefore, need not to le noted separately. Besides it, following roposition of law has been formulated on behalf of the petitioners, therefore, the relevant facts necessary for attending this proposition will be mentioned hereinbelow:-

"Whether an assessee can be held to be assessee in default for not having deducted tax under clause (a) of sub-section (4) of Section 50 of the Income Tax Ordinance, 1979, if the Assessing Officer has not identified the recipient from whom tax should have been deducted."

1. As per case set-up by petitioner in CPLA No. 2789-L/2001, the Deputy Commissioner of Income Tax, Circle-01, Range-Ill, Multan issued a show-cause notice dated 'DcU b 1998 to petitioner which is reproduced hereinbelow in extenso:-

Ref. No. 310

Dated Saturday, October 31,1998.

To

Office of the Deputy Commissioner of Income Tax Circle-01, Range-Ill, Multan.

The Principal Officer, M/s Bilz Private Limited, Abdali Road, Multan.

Subject: SHOW-CAUSE NOTICE U/S 52/86 IN RESPECT OF NON-DEDUCTIONS ON ACCOUNT OF VARIOUS PURCHASES/SUPPLY OF MACHINERY. MATERIALS. ETC. ASST YEAR 1995-96.

As per Section 50(4), you were required to withhold tax @ 2.50% at the time of payments on account of purchase/supplies etc..made from various parties. Perusal of the record revealed that you have made the following payments for the period as mentioned below and as against the following with-holding has not been made as under:-

| | | | | | | | --- | --- | --- | --- | --- | --- | | s.no | Details of Payments | Amount of Payments | W.H. Tax 2.50% | Tax With­hold | Payable | | i. | Payment on A/c of Construction | 33, 916, 284 | 847, 907 | Nil | 817, 907 | | 2. | Payment on A/c of Machinery | 2, 270, 727 | 56, 768 | Nil | 56,768 | | 3. | Furniture and Fixtures | . 7, 725, 314 | 193, 133 | Nil | 193, 133 | | 4. | Electrical Appliances | 13, 513, 582 | 337, 840 | Nil | 337, 840 | | 5. | Lifts | 24, 948, 018 | 623, 700 | Nil | 623, 700 | | 6. | Miscellaneous Assets | 23, 853 | 5,596 | Nil | 5,596 | | 7. | Telephone Installations | 1, 755, 943 | 43, 899 | Nil | 43, 899 | | 8. | Kitchen/Laundry Equipments | - | - | Nil | - | | 9. | Air Conditioners | - | - | Nil | - | | 10. | Crockery | - | - | Nil | - | | | Total | 84, 353, 721 | 2, 108, 843 | Nil | 2, 108, 843 |

On this basis, the following amounts of Additional U/S. 86 is worked out and total comes as under:-

| | | | | | --- | --- | --- | --- | | Amount of Default | Days of Default | Add: Tax @15% | Total Payable | | 2,108,843 | 1,315 | 1, 139, 642 | 3, 248, 485 |

In this way, you have failed to comply with your statutory obligation under Section 50(4) of the Income Tax Ordinance, 1979.1 intend to tract you as an assessee in default for the above failure and to charge additional as above. You are an required to furnish your written explanation to this context by 6.11.1998.

(K.H. ADNAN ZAHIR)

Deputy Commissioner of Income Tax, Wealth Tax, Circle-01, Range-Ill, Multan.

1. It may be noted that identical show-cause notices were issued to petitioner in respect of the assessment year 1996-97, 1997-98. Petitioner contested the notices and ultimately the Deputy Commissioner of Income, Tax concluded that the petitioner (assessee) has failed to fulfil its legal obligation under Section 50(4) of the Income Tax Ordinance, 1979 (hereinafter referred to as "the Ordinance") and made a default by not deducting income tax from different payments for which the assessee is declared as an assessee in default as provided under Section 52 read with Section 86 of the Ordinance, and an amount of Rs. 28, 05, 144/- was found due against it. Similarly, in respect of remaining two assessment years mentioned hereinabove the petitioner was held to be an assessee in default and differefat amounts were found due against it. Petitioner instituted separate appeals Being Nos. 48 to 51 before Commissioner Income Tax against the orders of Deputy Commissioner Income Tax, Multan. However, the appeals were allowed by means of joint order dated llth March 1999. Against the appellate order the Deputy Commissioner Income Tax, Circle-01, Multan preferred separate appeals Being Nos. ITA No. 2698/LB/1999 (Assessment Year 1984-95) ITA No. 2695/LB/1999 (Assessment Year 1995-96) ITA No. 2696/LB/1999 (Assessment Year 1996-97) and ITA No. 2697/LB/1999 (Assessment Year 1998-99) before the Income Tax Appellate Tribunal, Lahore Bench, Lahore. The appeals were allowed vide order dated 7th June 2000 as a result whereof the orders of. Assessing Officer levying taxes against petitioner under Section 52 read with Section 86 were restored. Petitioner preferred appeals under Section 136 of the Ordinance, being ITA Nos. 17/2000 to 20/2000. The appeals were dismissed by Lahore High Court, vide impugned order because petitioner failed to raise question of law arising out of the judgment of the Tribunal. As such instant petitions have been filed.

2. Learned counsel for petitioner in support of the propositon noted hereinabove contended that the Appellate Bench of the Lahore Court, failed to note that this proposition being a question of law was arising out of the order pf the Tribunal dated 7.6.2000, therefore, it has a duty to dispose it of according to law. He further stated that the learned Appellate Bench declined to exercise jurisdiction resulting in causing injustice and prejudice to the petitioner. On merits he elaborated that it was duly of the Assessing Officer to have pinpoint the parties from whom petitioner was required to recover withholding tax and in absence of such particulars of the parties, the Deputy Commissioner had no authority to declare the petitioner assessee in default, therefore, for such reason impugned order deserved to be interfered with. : .

3. We have heard learned counsel for petitioners and have also carefully gone through the impugned order. It would be appropriate to reproduce hereinabelow provisions of Section 50(4)(a) of the Ordinance:-

4. Deduction of tax at source.--(l)....................

(2)

(3)

(4) Notwithstanding anything contained in this Ordinance,- (a) any person responsible for making any payment in full or in part (including a payment by way of advance) to any person [.being resident,] (hereinafter referred to respectively as "payer" and" recipient"), on account of the supply of goods or for service rendered to, or the execution of a contract with the Government, or a local authority, or [a company,] [or a registered firm,] or any foreign contractor or consultant or consortium shall, [, where the total value, in any financial year, of goods supplied or contracts executed exceeds fifty thousand rupees, or services rendered exceeds ten thousand rupees,] deduct advance tax, at the time of making such payment, at the rate specified in the First Schedule, and credit for the tax so deducted in any financial year shall, subject to the provisions of Section 53, be given in computing the tax payable by the recipient for the assessment year commencing on the first day of July next following the said financial year, or in the case of an assessee to whom Section 72 or Section 81 applies, the assessment year, if any, in which the "said date", as referred to therein, falls, whichever is the later: [Provided that the provisions of this clause shall, apply, mutatis-mutandis, to any payment made on or after the first day of July, 1998, to a non-resident person on account of execution of a turnkey contract, a contract or sub-contract for designing, supply of plant and equipment and construction of power projects, a contract for construction, assembly or like project in Pakistan or any other contract for construction cr for services rendered other than that to which the provisions of sub-sections (3A) and (4A) apply.] [Explanation.-For the purpose of clause (a) the expression "supply of goods" includes both cash and credit purchase of goods by the payer, whether under a contract or not on credit or in cash].

(b) 7. A perusal of above provision manifestly makes in clear that law itself has indenufied the parties from whom deduction is to be made. Firstly a party who make supply of goods or for services rendered to, or the execution of a contract with the Government or a local authority or a company or a registered firm or any foreign contractor or concultant or consortium shall, where the total value in any financial year of goods supplied or contracts executed exceeds fifty thousand rupees, and secondly or service rendered exceeds ten thousand rupees, shall be the parties from whom the tax is to be deducted at the time of making such payment at the rate specified in the first schedule. It may be noted that at the relevant time as per the contents of the show-cause notice the rate of deduction of the advance tax was 2.50%. A perusal of the show-cause notice dated October 31, 1998 issued in respect of non-deduction of the tax for the year 1995-96 indicates that petitioner made ten payments. The amount of the payments has also been mentioned in the notice but the column of withheld tax indicates that it was not deducted and no reason in this behalf has been offered by the petitioner. Inasmuch as despite availing sufficient opportunities before the Deputy Commissioner Income Tax no details were furnished for not deducting the tax. Therefore, we are of the opinion that the petitioner having notice/knowledge that tax has to be deducted from the categories of the parties mentioned in the above noted provision of law itself has failed to fulfil its obligation, therefore, under these circumstances the petitioner shall be considered to be assessee in default for not deducting the tax from the parties to whom the supplies were made by it. In our opinion, there was no necessity for the Assessing Officer to identify the names of the parties to whom the supplies were made because the record is maintained by the supplier Le petitioner and it is the duty of the petitioner to maintain the record and show that as to why deductions were not made from different parties at the time of making supplies to them.

1. Learned counsel stated that the Assessing Officer after having gone through the registers should have pointed out the parties from whom the advance tax was liable to be deducted. We are afraid that the contention raised by the learned counsel has no force because as it has been observed hereinabove that it is the petitioner firm itself who made the supplies therefore, no one else better than it would have knowledge that from whom the deduction is to be made. The department had successfully discharged its obligation by making reference of the details of the supplies, which were made under different heads as per the contents of the show-cause notice. It may be noted that according to the settled principle of law that a fiscal statute has to be construed in its true perspective and in respect of payment of income tax, if it is found due against a party, then such statue cannot be interpreted liberally in order to make out a case in favour of an assessee who has failed to pay the tax. As such, we are of the opinion that in view of the clear provisions of Section 50(4) (a) of the Ordinance, no law point requiring interpretation by the Lahore High Court as well as by this Court is made out. Therefore, it is held that an assessee who has failed to deduct the tax in terms of Section 50(4)(a) of the Ordinance was rightly declared to be an assessee in default and cognizance of the matter was rightly taken by the Income Tax Department within the meaning of Section 52 read with Section 86 of the Ordinance.

For the foregoing reasons, we see no merit in the instant petitions, as such same are dismissed and leave to appeal is declined.

(AAJS) Leave declined.

PLJ 2002 SC 26

[Appellate Jurisdiction]

Present: NAZIM HUSSAIN SlDDIQUI AND JAVED IQBAL, JJ. INAYAT ALI-Petitioner

versus

STATE-Respondent Criminal Petition No. 192 of 2001, decided on 11.9.2001.

(On appeal from the judgment dated 25.11.1999 passed by Lahore High Court, Lahore, in Appeal No. 182/1994)

Pakistan Penal Code, 1860 (XLV of I860)--

—Ss. 302/307/148 and 149-Whether factum of abscondence lends corroboration to other prosecution evidence has been examined in light of eye account as furnished by four different PW's-Question of--Their version being consistent and confidence inspiring has rightly been considered and relied upon by learned trial and appellate Courts-They cannot be labelled as chance witness being resident of same vicinity--They were subjected to an exhaustive cross-examination and in spite of various searching questions nothing beneficial could be elicited-It has come on record that petitioner and prosecution witnesses were not in good terms but enmity was not so grave which could prompt eye witnesses to substitute real culprit which otherwise is a rare phenomena-Contradictions in statements of prosecution witnesses were not grave in nature and minor contradictions do creep in with passage of time-Said eye account has been supported by medical evidence-After having an in depth scrutiny and evaluation of evidence abscondence of petitioner can be considered a corroboratory factor which bt-Brutal murders have been committed in a reckless manner by petitioner and hence question of any leniency does not arise-Impugned cannot be kept out of consideration-Prosecution has proved its case beyond shadow of doujudgment has been passed after having proper analysis of evidence and conclusion as drawn by learned trial Court and appellate forum being unexceptionable hardly calls for any interference-Petition being devoid of merit is accordingly dismissed. [P. 32] A

Mr. Munir Ahmad Bhatti, ASC and Syed Abul Aasim Jafri, AOR (absent) for Petitioner.

Nemo for State.

Date of hearjng: 11.9.2001.

order

Javed Iqbal, J.-This petition for leave to appeal is directed against the judgment dated 25.11.1999 passed by the learned Division Bench of Lahore High Court, Lahore, whereby the judgment dated 31.3.1994 delivered by learned Additional Sessions Judge, Kasur, has been kept in tact by whom the petitioner was tried in case got lodged by means of FIR No. 87 of 1987 dated 11.4.1987 under Sections 302, 307, 148 and 149 PPC for the alleged murders of Niaz AM, Mst. Shahab Bibi, Mukhtar and Basharat and convicted under Section 302 PPC and sentenced on four counts to death on each count with further direction to pay a fine of Rs. 25,000/- on each count and in case of default to suffer two years R. I. on each count. In case of realization, the fine was directed to be paid to the legal heirs of the deceased on each count. Being aggrieved an appeal was preferred by the petitioner which has been rejected vide impugned judgment, hence this petition.

1. Briefly stated the facts of the case as enumerated in the impugned judgment are to the effect "that there was a dispute between Niaz Ali deceased and Inayat accused (appellant) due to a common wall adjoining their houses and Niaz deceased wanted to re-construct it after demolishing but the same was objected to by the Inayat appellant and his co-accused (two out of whom were sentenced to death and two were acquitted by Speedy Trial Court No. 1), Lahore. On 11.4.1987 at about Peshi-wela, when Niaz deceased demolished some portion of the wall, Inayat appellant while armed with. 12 bore gun, alongwith his co-accused namely Salamat Ali armed with .7 MM rifle, Salim and Din Muhammad armed with .12 bore guns came there, Inayat appellant fired at Niaz deceased which hit him on his chest who fell down. On learning about the occurrence Mst.Shahab Bibi wife of Niaz deceased also came there and when she was near the house of Malik Suba in the street, Salamat Ali co-accused of the appellant fired with 1 is .7 MM rifle which hit on the left wrist of Mst. Shahab Bibi. Din Muhamniad co-accused also fired with his .12 bore gun which hit Mst. Shahab or. left shoulder. Muhammad Saleem co-accused of the appellant fired at Mukhtar Ahmad who was present in his shop at that time which hit him on his" right armpit

who also fell down inside the shop. On hearing alarm Younas son of Dost Muhammad PW came at the spot and Salamat All accused fired with his .7 MM rifle but the same did not hit him due to good luck. Inayat appellant and his co-accused while raising lalkaras and firing then went towards the house of Walayat Ah' PW. Where Amanat All co-accused was present, who told Inayat appellant that Basharat alias Noori deceased was present in the house of Walayat P.W. and he be also killed upon which Inayat appellant fired with his gun at Basharat deceased which hit him on his abdomen where after the accused persons while firing and raising lalkaras ran away from the place of occurrence. Niaz Ali, Mst. Shahab Bibi, Mukhtar deceased person died on the spot whereas Basharat deceased was taken to General Hospital Lahore who subsequently died there on the night between 13/14.4.1987." After usual investigating the petitioner was sent for trial and on conclusion whereof conviction and sentences has been awarded as per details mentioned herein above.

1. It is mainly contended by Mr. Munir Ahmad Bhatti, learned ASC on behalf of petitioner that it is a case of miseading and non-reading of evidence which resulted in serious miscarriage of justice and the evidence led to substantiate the plea of alibi was neither examined properly nor considered in its true perspective which resulted in serious prejudice and on this score alone the impugned judgment is liable to be set aside. It is also contended that various grave contradictions, quite apparent in the statements of prosecution witnesses, were not considered without any rhyme and reason. It is argued that medical evidence does not lend corroboration to ocular account which aspect of the matter escaped notice from the learned High Court. It is also pointed out that the dying declaration of the deceased Basharat could not have been relied as it was not got signed by the doctor.

2. We have carefully examined the respective contentions as agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the judgment dated 31.3.1994 passed by learned trial Court as well as the impugned judgment. The entire evidence has been scanned with the eminent assistance of learned ASC.

3. We are not persuaded to agree with the prime contention that evidence as led to substantiate the plea of alibi has not been examined in its true perspective which resulted in serious miscarriage of justice. Before we could examined the statement of defence witnesses, let we mention here at the out set that is not essential for the accused to have proved the plea of alibi to the hilt and more so, it is for the prosecution to establish its case beyond the shadow of doubt. The provision as contained in Section 103 of then Evidence Act (Article 119 of the Qanun-e-Shahadat Order, 1984) concerning the plea of alibi were examined in case title Amanullah v. State (PLD 1982 SC 429) and relevant portion whereof is reproduced herein below or ready reference:-

"13. The divergence of opinion between the learned Judges stemmed from their interpretation and application of Section 103 of the Evidence Act, to criminal cases. Section 103 lays down that the burden of proof as to any particular fact lies on that person who wishes the Courts to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. Salahuddin Ahmed, J. (as the then was) and Muhammad Yaqoob Mi, C.J, (as he then was) concurring with him, relying on Surat Chandra Dhupi v. Emperor (AIR 1934 Cal. 719), Surqj Bakhsh Singh v. Emperor (AIR 1933 Oudh 369) and Muksed Molla v. The Crown (PLD 1957 Dacca 503), held the view that under Section 103 of the Evidence Act, the onus lay upon the defence to prove its plea of alibi affirmatively. This view was held by the learned Judges, notwithstanding the fundamental principle underlying our system of criminal jurisprudence that "the onus of proving its case against the accused lies entirely upon the prosecution and it does not shift at any point of time", which was expressly adverted to. All the learned Judges, however, substantially agree on the principle that the Court has to judge the guilt or innocence of the accused uninfluenced by the consideration that the accused had failed to prove his plea of alibi, on the basis of the prosecution evidence, so that if the prosecution fails to prove its case upon its own evidence or the accused succeeds in raising reasonable doubt, the benefit of acquittal must be given to him. The other learned Judges, namely, Dorab Patel, and Muhammad Akram, JJ (as they then were) after an extensive review of the case-law (if I may say so with respect) bearing on the question, held the view that the onus of proving affirmatively his alibi does not lie upon the accused, to the extent and in the sense onus lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, the accused, in order to succeed on his plea of alibi need only to produce evidence sufficient to raise in the mind of the Court a reasonable possibility that he may be at the place where he asserts he was, rather than at the place of the crime at the time of occurrence. In such a case a reasonable doubt will have arisen as to his participation in the commission of the crime, the benefit of which, must be given to him. The Court, therefore, has to examine the evidence of the prosecution in juxtaposition with the defence evidence of alibi, and then upon the whole evidence to judge whether the accused can be found guilty beyond reasonable doubt and to convict him only when it is so possible. I am in respectful agreement with the enunciation of the correct legal position, on the question of onus of proof on an accused person under Section 103 of the Evidence Act, by Muhammad Akram, J. as under: -

"It was rightly remarked in R v. Lobell (1957 All ER 734) relied upon by my learned brother Salahuddin Ahmed, that "there is a difference between leading evidence which would enable a jury to find an issue in favour of the defendant and in putting the onus on him. The truth is that the jury must come to verdict on the whole of the evidence that has been laid before them." In my respectful opinion in the reported case of Mukshad Mulla and others v. The Crown PLD 1957 Dacca 503), noticed by my learned brother, Salahuddin Ahmed, J, the Court failed to bear in mind this difference and I am, therefore, unable to approve of some of the observations made on reference to Section 103 of the Evidence Act in that case. Similarly on principle, I am unable to appreciate the observations in the reported case of Suraj Bakhsh Singh v. Emperor to the effect that because there is satisfactory evidence that "a man committed a crime at a certain place and at a certain time, a Court will never find any difficulty in rejecting an alibi he may seek to establish, even if that alibi be supported by what, on the surface, would appear to be satisfactory evidence." There is always a rational approach in all cases to the entire evidence viz. that produced by the accused in support of his plea of alibiand that by the prosecution in support of his conviction. The conclusion as to the guilt or innocence of the accused must rest on the basis of the entire evidence considered and weighed as a whole for and against the prosecution. If in the process a reasonable doubt is raised as to the complicity of the accused the benefit of doubt must be allowed to him". The principle as enunciated herein above has been kept in view while examining the defence evidence led to substantiate the plea of alibi.Mustansar Hussain Adil (D.W. I) had never checked the attendance register in person and thus he was not in a position to opine with certainty that petition remained present on the date of occurrence i.e 11.4.1987. It could not further be proved that on the date of occurrence a telephone call was made by the petitioner from office because it was never mentioned by the said witness in his earlier statement got recorded by the Speedy Court on 19.1.1998. (He was confronted with his said statement). It is also to be noted that the office hours of the petitioner were 8.00 a.m. to 3.00 p.m. and none of the defence witnesses could point out that the petitioner had observed the said timings and remained present in the office. It was also stated by the petitioner in his statement got recorded under Section 342 Cr.P.C. that during the period of absconcion he appeared before Zafarullah Chatta, S.I. Police who after carrying out investigating let him off being innocent. The 1 factum of appearance before Zafarullh Chatta, S.I. Police could have been proved conveniently by producing him as defence witness which could not be done for the reasons best known to the petitioner. The record is also 1 indicative of the fact that the usual ink which was used to mark attendance was never used while showing the him presence of accused for 11.4.1987. It can, therefore, be inferred safely that the plea of alibi was fabricated one and being an after thought could not have been considered and the learned Courts below have discarded it for convincing and cogent reasons. Besides that the petitioner remained absconder for about nine months for which no plausible explanation could be furnished. It is worth mentioning that this Court in case titled Mesal and another v. The Crown (1971 SCMR 239) has discussed the evidentiary value of the evidence of abscondence as follows: "While the fact of an alleged offender having absconded may be regarded as providing some kind of support to another evidence which in itself is strong enough to sustain a conviction for the crime charged such conduct by itself never has the effect of remedying defects in the other evidence led to show participation in the crime. The reason is simple, namely that a man may wish to avoid the consequence of being reported against for the commission of a serious crime as ardently if he is not guilty as he might if he is guilty."

This view has been followed in a number of cases by this Court and although there are judgments in which abscondence has been held to furnish corroboration of the prosecution evidence, but the view taken in Mesal's case has never been overruled by this Court. It will, therefore, be reasonable to hold that the question whether abscondence does provide corroboration to the other prosecution evidence would be a question to be decided on the facts and circumstances of each case. According to the prosecution case, the warrant of arrest (Exh. P.O. 1) for Aminullah appellant was issued showing his address as village Bhosa Khel, Charsada. The same address was shown in the endorsement on the proclamation issued under Section 87, Cr.P.C. (Exh. P.O.3). But before these documents were produced in the evidence, Aminullah had disclosed his address as village Baly Coroona in his statement in the Committal Court. Apparently these are two different places and no question was put to this appellant whether he lived in village Bhosa Khel. Ghulam Habib (P.W.6) a Foot-Constable who was detailed for affecting the search for the execution of the warrant on Aminullah stated in his evidence that he had searched for the appellants in the villages noted in his report. Admittedly, the proclamations were affixed on the house of the appellants in village Charsada. The witnesses stated that the house of Aminullah appellant was pointed out to him by Amirullah, Lambardar, but the latter was not examined as a witness nor was the report produced in the evidence. It is not, therefore, established that the appellant was searched at his proper address in village Baly Caroona. It was suggested that the appellants did not attend the funeral ceremonies of their father. This was, however, not put as a circumstance appearing against them during their examination under Section 342, Cr.P.C."

1. In order to see as to whether the factum of abscondence lends corroboration to other prosecution evidence has been examined in the light of eye account as furnished by Malik Rehmat Ah\ (P.W. 1), Meraj Din (P.W. 7), Malik Muhammad Younas (P.W. 8) and Dilawar Hussain (P.W.9). Their version being consistent and confidence inspiring has rightly been considered and relied upon by the learned trial and appellate Courts. They cannot be labelled as chance witness being resident of the same vicinity. They were subjected to an exhaustive cross-examination and in spite of various searching questions nothing beneficial could be elicited. It has come on record that the petitioner and the prosecution witnesses were not in good terms but the enmity was not so grave which could prompt the eye­witnesses to substitute the real culprit which otherwise is a rare phenomena. In so for as contradictions in the statements of prosecution witnesses are concerned they were not grave in nature and minor contradictions do creep in with the passage of time. The said eye account has been supported by the medical evidence. After having an in depth scrutiny and evaluation of the evidence we are of the view that abscondence of the petitioner can be considered a corroboratory factor which cannot be kept out of consideration. The prosecution has proved its case beyond shadow of doubt. Brutal murders have been committed in a reckless manner by the petitioner and hence the question of any leniency does not arise. The impugned judgment has been passed after having proper analysis of the evidence and the conclusion as drawn by the learned trial Court and appellate forum being unexceptionable hardly calls for any interference. The petition being devoid of merit is accordingly dismissed.

(AAJS) Petition dismissed.

PLJ 2002 SC 32 [Appellate Jurisdiction]

Present: ABDUR REHMAN KHAN; NAZIM HUSSAIN SlDDIQUI AND

hamid Au mirza, J J. STATE-Appellant

versus

HAIDER ZAIDI and 2 others.-Respondents Crl. As. Nos. 372, 373 & 374 of 1995, decided on 4.6.2001.

(On appeal from the judgment dated 18.9.1994 of High Court of Sindh, Karachi passed in Crl. A. Nos. 145,150 and 168 of 1993)

({) Constitution of Pakistan, (1973)-'

—Art. 185(3)--Appeal against acquittal-Leave to appeal was granted to consider whether High Court was justified in allowing convicts/respondent's appeals and dismissing state's acquittal appeal, keeping in view the evidence brought on record. [Pp. 36 & 37] A

(ii) Pakistan Penal Code, 1860 (XLV of I860)--

—-S. 365-A/34--Constitution of Pakistan (1973), Art. 185-Scrutiny of evidence to be strictly in accordance with established judicial norms-­Positive legal evidence cannot be excluded on probabilities alone-Prosecution case could not be thrown aside simply for the reason that evidence of some of the witnesses was incredible and un-tmst worthy-Each set of evidence is to be examined and acceptance or rejection on its own worth—Where besides factual evidence there were recoveries of arms and ammunition and of the amount paid as ransom in presence of witnesses who were declared hostile, on that basis alone evidence of recovery could not be discarded—Evidence of Investigating Officer which was not shattered in cross-examine would be as good as of any other witness-Evidence of abductee was not at all discussed by the High Court which was reliable and trust worthy-Abductee having remained in captivity of respondents and having communicated with them, had correctly identified them-Such evidence could riot be excluded however, abductee's own testimony had conclusively proved that respondents had abducted him-Substantial and irrefutable evidence was ignored and disbelieved by the High Court which had resulted in grave miscarriage of justice-Respondent's acquittal on technical grounds was not justified-Appeals against acquittal were accepted and conviction and sentence awarded by trial Court, were maintained.

[Pp. 37, 38, 39 & 40] B, C, D & E

PLD 1995 SC 1; 1999 SCMR 610; 1998 SCMR 2538 ref.

Raja Abdul Ghafoor, AOR for State.

Mr. Muhammad Ilyas Siddiqui, ASC (in Crl. A. 372-1995), Mr. Muhammad Munir Peracha, ASC; (in Crl. A. 373-1995); Mr. Muhammad Iqbal Nehiwal, ASC (in Crl. A, 374-1995) with Mr. M. A. Zaidi, AOR for Respondents.

Dates of hearing: 26 and 27.4.2001. judgment

Nazim Hussain Siddiqui, J.-This judgment will dispose of Criminal Appeals Nos. 372, 373 and 374 of 1995 arising from judgment dated 18-9-2000 of a learned Division Bench, High Court of Sindh, Karachi, whereby Criminal Appeals Nos. 145 and 150 of 1993 filed by respondents Abdul Rashid and Haider Zaidi respectively were allowed, while Special Criminal Acquittal Appeal No. 168 of 1993 preferred by the State against the acquittal of Junaid Iqbal and Kamran Raees was dismissed. Now above three appeals have been preferred by the state. The Appeals Nos. 372 and 374 of 1995 are against acquittal of Haider Zaidi an Abdul Rashid, while Appeal No. 373 of 1995 is against the acquittal of Junaid Iqbal and Kamran Raees.

1. On 2-11-1992 statement of Saeed Ismail was recorded by SIP Muhammad Man, SHO, Police Station Tipu Sultan, Karachi, which was incorporated in the book maintained under Section 154 Cr.P.C. and on its basis Crime No. 323/1992 under Section 365-A/34 PPG was registered at said police station.

2. Saeed Ismail, complainant stated in FIR that his father Abu Muhammad Ismail aged about 59/60 years was businessman. It is alleged that on 1/11/1992 at 10.00 p.m. his father had gone to meet his friend Faisal Ismail at the latter's residence at Sharafabad in his Car No. 0390 and from there left for home at about 11/45 p.m. but he did not come back. At about 12.10. O'clock in the night a phone call was received at the complainant's house saying that his father was abducted and second call would be made after sometime. The call was received by the complainant. Second call was received on 2/11/1992 at 8.00 a.m. and the complainant asked as to who was on the other side, but it was not disclosed. On the contrary a demand of Rs. 45,00,000/- (Forty five lacs) was made as ransom for release of his farther. Another call was received . after half an hour saying that he (complainant) would be informed about the time and place where said amount was to be handed over. He was threatened that in case the amount was not paid he would have to pick up the dead body of his father from the "Meva Shah' graveyard. At 9/30 a.m. another call was received asking for payment of aforesaid amount and when he showed his inability to pay it, the demand was reduced to Rupees Thirty Three lacs. When he told that he could not even pay said amount, he was informed that two fingers of his father would be sent to him and thereafter he would arrange the amount so demanded. The complainant stated that the person on the other side of phone was talking in Urdu fluently.

3. The police immediately started investigation and arrested Abdul Rashid, Haider Zaidi, Junaid Iqbal and Kamran aees, as culprits/accused of this case. Abductee Abu Muhammad Ismail, however, was released after an amount of Rs. 5,50,000/- was paid by complainant to the.abductors. On completion of investigation the charge sheet was submitted before the Special Court No. 3 for Suppression of Terrorist Activities, Karachi. Necessary charge under Section 365-A/34 PPG was framed against above named accused/respondents.

4. The prosecution at trial examined Lekh Raj Rathi PW-1, Ch. Bakhtawar Ali PW-2, Muhammad Irfan PW-3, Abu Muhammad Ismail PW- 4, Muhammad Shafi PW-5, Muhammad Saeed PW-6, Muhammad Rafiq PW-7, and Anwar Hussain PW-8.

5. The statements of respondents were recorded under Section 342 Cr.P.C. wherein they denied the prosecution's allegations and claimed to be innocent. In defence they examined Itteqa Hassan Zaidi, Shamsuzzaman, Syed M. Zaffar Zaidi, Habibur Rehman, Muhammad Iqbal, Sajid Kama! Malik, Shabbir Ahmed and Dr. Muhammad Abdullah.

6. On assessment of evidence brought on record learned Special Court No. Ill for Suppression of Terrorist Activities, Karachi acquitted Junaid Iqbal and Kamran Races and convicted Abdul Rash id and Haider Zaidi under Section 365-A/34 PPC and sentenced each of them to suffer life imprisonment and to pay fine of Rs. 20,000 or in default thereof to suffer R.I. for further period of two years. Peing aggrieved by the judgment of the trial Court the convicts and the state filed appeal before High Court, Which were disposed of as mentioned earlier.

7. In order to appreciate the points involved in these matters it would be appropriate to give a brief resume of evidence of main witnesses of prosecution.

8. Muhammad Saeed complainant deposed that ransom was settled at Rs. 5,50,000/- which he paid at the agreed place and which was seen and counted by the police. This happened on 5/11/1992 at about 10.00 or 10/30 a.m. near Jinnah Terminal. According to him, he had paid said amount to respondent Abdul Rashid. In cross, he denied the defence suggestion that his father was dealing with the business of Hundi. He also denied that he too was doing the same business. He admitted that, in the year 1987 also his father was abducted. A suggestion was given to him in cross-examination by learned counsel, who appeared for Junaid Iqbal and Abdul Rashid, that his father at his own had disappeared as he was to pay huge amounts to the various persons in respect of Hundi business and suddenly reappeared and that in conspiracy with police personnel the drama of abduction was staged to involve the innocent persons, which suggestion he had denied. He admitted that his statement, under Section 164 Cr.P.C., was also recorded by a Magistrate. A suggestion was also given to him that his father came back in the night of 4/11/1992 and not on 5/11/1992, which was denied by him.

9. The star witness of this case is Abdcutee Abu Muhammad Ismail. He deposed that on 1/11/1992 at about 11/25 p.m. he left his house and was returning home in his car, which he himself was driving. On Bahadurabad Chowrangi a car came and blocked his car. One person came from backside with a revolver in his hand and directed him to stop the car and switch off-the engine. He was forcibly pushed on front seat, which was besides the driving seat. Said person started driving car and another person came and sat on the rear seat. The car started plying on various roads. The person, who was sitting on the rear seat made his seat in a straight position, as such, he laid down on front seat. He was taken to a building, then to another building then to top floor of another building and was detained there for a night and day. One person used to guard him. He was blindfolded. Again he was taken in a car to a building and was detained on its ground floor in a room. He was kept there for there days. Different people used, to come and visit him. He deposed that he was threatened that they would kill his son Muhammad Saeed. They threatened him that they would cut his fingers and send the same to his wife. They always demanded money from him. Several phone calls were made to his house, which according to him, were taped. Those cassettes he had not given to the police, as he had no faith in police personnel, but produced the same before the Court According to him, on 5/11/1992 at about 12.00 noon he was released, after ransom was paid. He identified all the above named four accused/respondents in the identification parade before a Magistrate and also identified them in the Court, when the case proceeded. They jvere Junaid Iqbal, Haider Zaidi, Kamran Raees and Abdul Rasheed.

10. He specifically stated that his car was blocked by respondent Haider Zaidi. He asserted that car after abduction was driven by respondent Junaid Iqbal. He categorically stated that respondent Abdul Rasheed was the person, who sat on rear seat of the car. He maintained that revolver was ept on him at the time of abduction by respondent Junaid Iqbal. According to him, Kamran Raees was not present. He stated that he was taken to second building by Haider Zaidi and respondent Abdul Rasheed used to keep guard over him, when he was in detention for three days, while in detention respondent Junaid Iqbal used to visit the place. He mentioned that Junaid Iqbal had obtained telephone numbers of his family. Further, he stated that Junaid Iqbal and Rasheed were the persons, who went to release him. In cross a suggestion was given to him that on 5/11/1992 after 5.00 p.m. he was informed by the police that culprits had been arrested, which he denied. It was also suggested to him that during the period of his detention he was kept in factory of Rifa-e-Aam Society, which he denied. A suggestion was also given to him that he had not appeared before the Magistrate

for identification test on 5/11/1992 and that he had only appeared on 10/11/1992, which was also denied by him. It was also suggested to him that soon after his abductidh, he was blindfolded and he replied that so was done but after some time. He deposed that none of the respondents was known to him prior to the incident. It was suggested to him that he owed twenty-five thousand dollars to respondents Junaid Iqbal, mis-appropriated the same, and involved the respondents in this case, which was denied by him.

1. Anwar Hussain is the Investigating Officer. He stated that the culprits after receiving ransom had gone inside K-7 Factory of arms and ammunitions/repair. He raided the factory alongwith the police personnel and arrested all the respondents and recovered from there arms and ammunitions and the amount of ransom.

2. Videorder dated 15/5/1995, leave to appeal was granted to consider whether the learned Judges of Division Bench were justified in allowing the convicts/respondents' appeals and dismissing the State's acquittal appeal, keeping in view the evidence brought on record.

3. It is contended on behalf of the appellant that in view of unimpeachable evidence adduced by the rosecution indicating involvement of all the respondents the High Court was not justified in acquitting the respondents and also dismissing the acquittal appeal preferred by the State.

4. It is noted that High Court in the impugned judgment, while referring to daily Jang, Nawa-e-Waqat, Karachi dated 6/11/1992 stated that above named four respondents were arrested by law enforcement agencies alongwith fifth co-accused and it being so the memo of their arrest (Exh-26) by police stood belied. Further, it was observed that both mashirs of recovery namely Muhammad Shaft and Muhammad Rafique in their respective deposition said go bye to the prosecution's version and were declared hostile, as such, the entire prosecution's case fell to the ground. High Court also observed that the personnel of law enforcing agencies not being police officers were not authorised to collect any evidence and the evidence so collected by them was not the legal evidence, therefore, it could not be the basis for conviction. On above reasoning, it was held that the respondents were not arrested in the terms of munishinama Exh-26 and it could not be relied upon, as whole story manifestly was a manipulated affair. High Court also held that since the respondents, under Section 13(d) of the Arms Ordinance was acquitted, as such, the prosecution's version about recovery of arms and ammunitions and amount of ransom has become meaningless. High Court also criticised the identification parade saying that it was not held on 5/11/1992, as in view of statement of Ch. Bakhtawar AH, Inspector of police the respondents were all alongwith the police till about 6.00 p.m. resultantiy their identification parade on 5/11/1992 by Mr. Lekh Raj Rathi Magistrate at about 3/30 p.m. of said date was not possible.

5. Before adverting to the contentions raised on behalf of the appellant and the reasons assigned by the High Court for acquitting the respondents, we fell it necessary to examine first whether the finding of acquittal recorded by High Court could be disturbed.

6. While deciding a criminal case the basic duty of the Court is to scrutinise the evidence brought on record strictly in accordance with the established judicial norms without being influenced by facts, which tend to push in the background, the substantial evidence, which is pivotal for reaching the correct conclusion. Positive legal evidence cannot be excluded on probabilities alone nor the entire prosecution case can be thrown aside mply for the reason that the evidence of some of the witnesses is incredible " and untrustworthy. If the prosecution's case rests upon various sets of evidence each is to be examined and accepted or rejected on its own worth. On the intrinsic value of one set of evidence the effects of other independent and substantial evidence cannot be nullified.

7. It is a case of non-reading and misreading of evidence. Substantial and irrefutable evidence was ignored and disbelieved on the grounds, which are not sustainable in law. It resulted in grave miscarriage of Justice. Dictums laid down by this Court in the cases relating to kidnapping abduction for ransom were neither followed nor referred. Instead on technical pleas the respondents were acquitted. Above grounds justify interference in the verdict delivered by High Court.

8. This Court in the case reported as State through AdvocateGeneral, Sindh, Karachi V. Farman Hussain and others fPLD 1995 SC 1) laid down a dictum that approach of the Court in the cases of kidnapping for ransom should be dynamic and if the Court is satisfied that the offence has been committed in the manner in which it has been alleged by the prosecution the technicalities should be over looked without causing any miscarriage of justice.

9. A full Bench of this Court in the case reported as The State V/s Nazir Ahmed and others (1999 SCMR 610) laid down various dictums relating to the case of kidnapping/abduction. It was held that unless there were strong reasons to discredit the testimony of abductee/kidnapee, his/her statement carried substantial evidentiary value. Further, it was held that when the prosecution's version appeared to be truthful, sufficient, convincing and confidence-inspiring the placing reliance on various sets of evidence including statement of complainant and abductee was justified. It was also observed that ordinarily the acquittal judgment must be given due weight and mere possibility of recording different view would not be sufficient for interference but where there is a blatant misreading of evidence leading to grave miscarriage of justice or make wholly artificial or shocking impressions, which no reasonable person could perceive then under such exceptional circumstances, interference is justified.

10. On the point of identification, this Court in the case reported as Muhammad Akbar V. The State (1998 SCMR 2538) held that identification test is not a requirement of law but only one of the methods to test the veracity of evidence of an eye witness, who has had an occasion to see the accused and claimed to identify him. Further, it was observed when a witness has spent considerable time with the accused and has had an opportunity to take a good look at him, holding of identification test would not be necessary.

11. Adverting back to the grounds which, found favour of the High Court it is noted that there was no legal justification to disbelieve the prosecution's version, especially on the basis of news items in the daily Jang and Nawa-e-Waqat, Karachi dated 6/11/1992. Besides other evidence led by the prosecution, there were recoveries of arms and ammunitions and of the amount paid as ransom in presence of mashirs Muhammad Shafi and ; Muhammad Rafique, who were declared hostile, but on that basis alone the evidence of recovery could not be discarded. Investigating officer on the point(' of recovery is, as good witness as possibly, any body else can be. The investigating officer has given details of recovery and in our view his testimony on that point was not shattered. No law has been cited before us to show that the personnel of law-enforcing agencies, when they get information about commission of a cognizable offence, they cannot transmit the same to the concerned police officer. There is lot of difference between the collecting of material evidence and simply passing on such information, received while performing the routine duties. Every individual is required to give necessary information to the police regarding commission of a cognizable offence, if it comes to his knowledge. An amount of Rs. 5,36,260.-was recovered from the respondents, which is a substantial amount. The police personnel could not afford to foist said amount from their own pocket.

12. The star witness is abductee and his testimony could not be ' ignored on the grounds noted by High Court. In fact, his testimony was not at all discussed by the High Court, which is reliable and inspires confidence. He had no reason to falsely implicate the respondents especially, when, as proved from the record, he had not even seen them prior to the occurrence. Veracity of his testimony was to be weighed upon its own strength and not upon insignificant material, which was brought on record to support themain assertion i.e abduction.

13. The trend of cross-examination showed that the factum of abduction was not seriously disputed, but the involvement of the respondents was challenged. As pointed earlier, a suggestion was given in cross-examination to the complainant that his father at his own disappeared and reappeared after sometime, but nothing material was brought on record to substantiate it. The plea of false involvement on the ground that the abductee allegedly owed US $ 25,000/- to respondent Junaid Iqbal, is, ex- fade, false and has no legs to stand. Likewise, the plea of said respondent that an amount or Rs. 5, 36,1260/- was taken away from his house is also without any substance. Alibi plea of respondent Haider Zaidi of being confined in "Families Own Hospital" from 1st November to 3rd November, 1992 is only a made up story. Evidence of DW Dr. Hussain Akhtar on this point does not inspire confidence. Said doctor in cross-examination admitted that there was no permanent regular register, showing entries date wise of the patients but only separate files of patients were maintained. Further, he admitted that there was no other doctor or assistant, except him in said hospital. The certificate relied upon was arranged and it is a fake document.

14. Abductee lived in captivity of the respondents for 4/5 days and .1 had seen them closely. He also conversed with them. Even if the evidence of identification test is excluded altogether, yet, his sole testimony is sufficient to conclusively prove that the respondents had abducted him.

15. Inconsequence, the Appeals Nos. 372 & 374 of 1995 are allowed, the impugned judgment is set aside, the conviction and sentence of respondents Haider Zaidi and Abdul Rashid awarded by trial Court, are upheld.. The Appeal No. 373/1995 is also allowed to the extent that respondent Junaid Iqbal, is also convicted under Section 365-A/34 PPC and sentenced to suffer life imprisonment and to pay fine of Rs. 20,000/- or in default thereof to undergo RI for further period of two years. Respondent Kamran Raees was rightly acquitted by trial Court, as he was not implicated by the abductee in his evidence. The State Appeal (No. 373/1995) to the extent of his acquittal is dismissed. The trial Court is directed to take the respondents Haider Zaidi, Abdul Rasheed and Junaid Iqbal in custody and send them to jail to serve out their sentences. They would be entitled to benefit of Section 382-B Cr.P.C. The trial .Court is alao directed to report compliance of above order to the Register of this Court within a month from receipt of this order.

(A.A) Appeals accepted.

PLJ 2002 SC 40

[Appellate Jurisdiction]

Present: munir A. SHEIKH; nazim hussain SIDDIQUI;

iftikhar muhammad chaudhry and

qazi muhammad farooq, JJ.

DR. A. BASIT, ADVOCATE-Petitioner

versus DEPUTY REGISTRAR (JUDICIAL) etc.-Respondents

C.M.A. No. 13 of 2001 in Constitutional Petition No. Nil of 2001 and Crl. O.P. No. Nil of 2001, decided on 13.6.2001.

(On appeal against order dated 30.5.2001 in Constitutional Petition No. Nil/2001 by Deputy Registrar (Judicial) Supreme Court of Pakistan)

Constitution of Pakistan (1973)--

—Art. 184(3) Constitutional petition filed for alleged enforcement of fundamental rights, but for all practical purposes the same sought to review, modify or alter judgment delivered by Supreme Court-Petitioner in fact, prayed for expunction of remarks and matter connected therewith against two judges mentioned therein but by twisting of facts attempt had been made to bring the same within the realm of independence of judiciary--Judgment delivered in said appeals neither diminished nor tarnished concept of independence of judiciary, on the contrary, judgment in question, strengthened concept of independence of judiciary, supremacy thereof, and rule of law-Finding in judgment in question, has been recorded in conformity of established facts-Findings recorded by Supreme Court in impugned judgments cannot be set aside/modified nor any portion thereof, can be expunged or substituted in exercise of jurisdiction under Art. 184(3) of the constitution. [P. ] A, B

PLD 2001 SC 568; PLD 1998 SC 103; AIR 1982 SC 149; PLD 1998 SC 161 ref.

Petitioner in person with Mr. Ejqz Muhammad Khan, AOR.

Nemo for Respondents.

Dates of hearing: 11 and 12.6.2001.

order

Nazim Hussain Siddiqui, J.--This petition arises under the following circumstances:-

(2) Petitioner, D.R. A Basit, who is a practicing lawyer has filed this petition against the respondents under Article 184 (3) of the Constitution of Islamic Republic of Pakistan, 1973 for the reliefs mentioned in the prayer clause. The petition emanates from a decision of this Court reported as Asif Alt Zardari and another v. The State (PLD 2001 SC 568) whereby Criminal Appeals Nos. 102 and 127 of 1999 by a Full Bench of this Court comprising of seven Judges were disposed of on 6th April, 2001, which were directed against judgment dated 15-4-1999 of Rawalpindi Bench passed in Ehtesab Reference No. 30 of 1998 in terms of said decision of this Court.

1. It is averred that a new method has been evolved for removal of Judges form their offices in said judgment, which is not contemplated by the Constitution. According to the petitioner, the observations of this Court regarding two learned Judges of Superior Judiciary were totally unjustified and were not at all necessary for disposal of said appeals. It is alleged that this Court not only set aside the impugned judgment but in fact paved way for removal of said Judges, which by necessary intendment is prohibited by the Constitution.

2. It is asserted that paras 29, 30 and 43 of the aforesaid judgment are being exploited by vested interests for seeking dismissal of said Judges. The petitioner, therefore, prayed for the following reliefs and directions:—

(I) The Fundamental Right of the Petitioner to practice the Profession of law needs enforcement in the peculiar circumstances of the instant case by directing that inter-alia Paras 29, 30 and 43 are liable to be eliminated from the context of the Judgment of the Supreme Court reported as "PLD 2001 SC. 568)".

(II) Respondent-Federation has no lawful authority to initiate any Reference against the two targeted Judges unless and until paragraphs 29, 30 and 43 are eliminated from the context of the Judgment.

(III) Paras 29, 30 and 43 in the aforesaid Judgment amount to Bill of Attainder against the targeted Judges. In the presence of these paragraphs, the field stands pre-empted and Supreme Judicial Council shall not be in a position to adjudicate even if a proper Reference is filled against the concerned Judges.

(IV) Respondent Federation has failed to do what it is required by law to do to restore public confidence in the Independence of Judiciary even in the Regime of the Chief Executive.

DIRECTIONS

(I) Inter-alia, paras 29, 30 and 43, be directed to be eliminated from the context of he Judgment of the Supreme Court, reported as TLD 2001 SC 568", as these are neither necessary nor justified for the findings recorded therein.

(II) Respondent-Federation be restrained from initiating and Reference against any targeted Judge on the basis of the impugned paragraph in the aforesaid Judgment.

(III) Respondent Federation should take necessary steps to restore public confidence in the Independence of Judiciary.

,-••

(V) Any other relief deemed suited to the peculiar facts of this case may also be afforded."

1. The petition on 30/5/2001 was returned by Deputy Registrar (Judicial) of this Court on the ground that it was not entertainable in view of the law laid down by this Court in the case reported as Muhammad Ikram Choudhry and others v Federation of Pakistan and others (PLD 1998 SC 103). Against above order the petitioner has filed an appeal being CMA No. 13 of 2000 and it was ordered that the matter be placed before the Court.

2. At the outset we asked the petitioner to assume as if no order has been passed by the Deputy Registrar and the matter has directly been placed before this Bench and to make his submissions if the petition, as it is, could be entertained. He submitted his point of view accordingly.

3. Although the petition has been filed for alleged enforcement of fundamental rights, but for all practical purposes it has been directed to review modify or alter the judgment delivered by this Court in the aforesaid Criminal Appeals. Primarily it is for expunction of remarks and matter connected therewith against said two learned Judges, but by twisting the facts an attempt has been made to bring it within the realm of independence of judiciary. The judgment delivered in said appeals does neither diminish nor tarnish the concept of independence of judiciary. On the contrary, it unequivocally postulates that no body, whatever his status may be, is above law and this was simply demonstrated in said judgment in clear terms, strengthening the concept of ndependence of judiciary, its supremacy and rule of law. It is significant to note that during course of arguments the petitioner frankly conceded that he had no material to controvert the findings recorded by this Court on the point of bias in said appeals nor challenged its correctness, but laid great emphasis on the fact that so could be done without naming above mentioned two learned Judges. The fact are to be stated as they are. The finding is to be recorded on the basis of those facts, which shall be neither more nor less, but in conformity of those established facts. Exactly so was done in said appeals.

4. Next point to be considered is that whether this Court, while exercising jurisdiction under Article 184 (3) of the Constitution, can interfere in the impugned judgment delivered by the Full Bench of this Court. While disposing of various Constitutional petitions above point was thrashed out by this Court by a Bench comprising of five learned Judges in the case referred to in para 5 above. We are of the view that we cannot do better than to quote the observations of this Court recorded in said case, which are as follows:- "4. They were unable to demonstrate that a Constitutional petition under Article 184 (3)' of the Constitution could be entertained against an order of another Bench of this Court passed in exercise of the same jurisdiction. However, the thrust of their arguments was that the petitions involve unusual and unprecedented situations where some Judges of the same Court had restrained the then Chief Justice from performing his judicial and administrative functions as the Chief Justice. Their further submission was that the above Constitutional petitions involved question of great public importance which go to the root of existence of this Court. 5. We tried to impress upon them that the above facts would not attract Article 184 (3) of the Constitution if otherwise the aforesaid petitions are not sustainable in view of well settled proposition of law, firstly, that a Bench of this Court cannot sit as a Court of Appeal over an order or a judgment of another Bench of this Court and, secondly, Article 184 (3) confers jurisdiction on this Court of the nature contained in Article 199 of the Constitution, clause (5) of which excluded inter-alia the Supreme Court and the High Courts. In other words, no writ can be issued by a High Court or the Supreme Court against itself or against each other or its Judges in exercise of jurisdiction under Article 199 of the Constitution, subject to two exceptions, namely, (i) where a High Court Judge or a Supreme Court Judges acts as personal designataor as a Tribunal or (ii) where a quo warrants is prayed for and a case is made out."

5. In view of above, we hold that while exercising jurisdiction under icle 184(3) of the Constitution the findings recorded by this Court in aforesaid Criminal Appeals cannot be set aside/modified, nor any portion of it can be expunged or substituted.

6. The petitioner in support of his above submissions heavily relied upon on the cases reported as (1) S.P. Gupta u. M. Tarkunde (AIR 1982 SC 149). (2) Malik Asad All and others v. Federation of Pakistan throughSecretary, Law, Justice and Parliament Affairs, Islamabad and others(PLD 1998 SC 161).

7. Suffice it to say that dictums laid down in these cases are not attracted to the circumstances of this case, as such, there is no question of their applicability. By short order dated 12-6-2001 we held that this petition was not entertainable and ordered its return to the petitioner and these are the reasons for the same.

(A.A) Order accordingly.

PLJ 2002 SC [Appellate Jurisdiction]

Present: qazi muhammad farooq and javed iqbal, JJ. HIRIJIBHAIBEHRANA DARE-E-MEHER through attorney -Appellant

versus

M/s. BOMBAY STEEL WORKS through Partner-Respondent C.A. No. 1755/1997, decided on 13.6.2001.

(On appeal from the judgment dated 11.12.1995 of the High Court of Sindh Karachi passed in F.R.A. No. 84 of 1995)

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

—S. 10(3)-Constitution of Pakistan (1973), Art. 199-Leave to appeal was granted to consider; whether two Courts below without having the relevant counterfoils of two alleged money orders sent by respondent containing endorsement of refusal by etitioner concluded that factually petitioner refused to accept money order; whether Nazir's report indicated that there were number of defaults including for the month of October, 1984. [P. 45] A

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

—-S. 10(3)-Constitution of Pakistan (1973), Art. 199-Deposit of rent in Court—Non-mentioning of incorrect ledger number by official of Court- Respondent (tenant) having produced specified money order receipts had successfully discharged the burden in accordance with the modes prescribed in S. 10(3) of Sindh Rented Premises Ordinance, 1979-Two Courts below having considered evidence in depth and having decided the matter in accordance with evidence, no scope for interference was warranted in impugned order. [Pp. 47 & 48] B, D

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

—S. 10(3)—Tendering of rent by means of money order—Mode of—Refusal or avoidance to receive rent by landlord would justify endering of rent by means of money order—Words "refusal" and "avoid" explained and illustrated. [P. 47] C

1995 SCMR 96; 1986 CLC 2917; PLD 1982 Karachi 188; PLD 1988 Quetta 1

amd PLD 1967 SC 530 ref.

Mr. Fakhruddin G. Ebrahim, Sr. ASC and Mr. Ali Akbar, AOR for Appellant.

Mr. H.A. Rehmani, ASC for Respondent Date of hearing: 13.6.2001.

judgment

Javed Iqbal, J.-'-This appeal by leave of the Court is directed against judgment dated 11.12.1995 passed by learned Single Bench of the High Court of Sindh Karachi in F.R.A. No. 84 of 1992 preferred oh behalf of the appellant whereby the judgment of learned Ilnd Senior Civil Judge/Rent Controller (Karachi South) dismissing the eviction application of appellant was upheld.

1. Briefly stated the facts of the case are that the appellant filed an eviction application with the averment that a godown on Survey No. 151/1, Sheet No. SB-I, Dawood Pota Road, Saddar Karachi (herein after referred to as the demised property) was rented out to respondent at the rent of Rs. 59/- per month but the respondent failed to pay rent since 1.10.1984 and accordingly on the ground of default eviction was sought. The eviction application was contested hotly and the assertion of appellant about default made therein was repudiated strenuously. The learned Rent Controller after recording the evidence pro and contra and completion of procedural formalities dismissed the eviction application with the conclusion that no default whatsoever was committed. Being aggrieved an appeal was filed by the appellant which met the same fate, hence this appeal.

2. Leave to appeal was granted by means of order dated 3.3.1997, the operative portion thereof is reproduced herein below for ready reference:

"2. In support of the above petition Mr. Fakhruddin G. Ebrahim, learned Senior counsel for the petitioner has urged as under:

(i) That the Courts below without having the relevant counterfoils of the two alleged money orders sent by the respondent containing an endorsement of refusal by the petitioner concluded that factually the petitioner refused to accept the money order;

(ii) That the Nazir's report dated 17.7.1993 (at page 71 of the paper book) indicates that there were number of defaults including for the month of October, 1984."

1. It is mainly argued by Mr. Fakhruddin G. Ebrahim, learned ASC on behalf of appellant that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice and it escaped notice that the respondent failed to produce original rent receipts of landlord, Bank chal ans of Court deposits and remained unsuccessful to prove that the appellant had refused to accept the money order. It is urged with-vehemence that the forged bank receipt (Ex.C-2) has been taken into consideration which should have been discarded having no evidentiary value at all. It is urged emphatically that the report dated 17.7.1993 of Naazir was never taken into consideration which makes it abundant clear that no rent whatsoever was deposited by the respondent and more so, number of defaults were mentioned specifically default for the month of October 1984.

2. Mr. H.A. Rahmani, learned ASC appeared for respondent and contended that the concurrent findings derived by the learned Rent Controller and upheld by the learned High Court hardly call for any interference being based on an in depth scrutiny of the entire evidence and free from any illegality or infirmity. It is next contended that no default was committed and the entire amount for the alleged period of default was deposited which could not be mentioned in the relevant ledger/register for the reason best known to the concerned Court officials which aspect of the matter has been examined in depth by the learned Rent Controller and High Court by resolving unanimously that the rent in question was deposited and no default was committed by the respondent. It is also contended that money order was sent to the landlord which was proved in accordance with the provisions as contained in Section 10 of the Sindh Rented Premises Ordinance, 1979. It is argued that Shop No. 7 which was lying vacant could have been used for the intended purpose which was never shown as non- suitable.

3. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law as contained in the Sindh Rented Premises Ordinance 1979 and record of the case. The prime contention of Mr. Fakhruddin G. Ebrahim, learned ASC revolves around the report of Naazir which was considered and discarded with cogent and convicting reasoning by observing that the amount was deposited in Ledger No. 48/85 and not in 487. The said conclusion was derived after having a thorough scrutiny of the relevant ledger by the learned Rent Controller. The non-mentioning of incorrect ledger number may be due to inadvertence, accidental omission, sheer negligence and inefficiency or for some other extraneous consideration but the respondent, by no stretch of imagination, can be held responsible for it. We have not persuaded to agree with the submissionn of Mr. Fakruddin G. Ebrahim, learned ASC that the relevant registers/ledgers are kept by the Naazir of the Court and thus the reports submitted by him could not have been discarded for the reason that learned Civil Judge/Rent Controller is the ultimate custodian of all such record and report Naazir cannot be considered as sacrosanct merely for the reason that relevant register/ledger was in his jjcustody. For the omission and lapse on the Court or its official cannot be (attributed to the litigants who do not figure in such matters. It is noticeable that the respondent have produced all the original receipts including photo copies of bank receipts dated 6.1.1990 and 8.1.1992 which were duly proved by the bank officer namely Muhammad Younus whose statement cannot be brushed aside without any lawful justifiable cause which is badly lacking. It is worth mentioning that receipt dated 8-.1.1992 was entered in the relevant ledger/register which is being maintained by Naazir. No convincing or cogent evidence could be led showing that the said receipts were forged or fake. Mr. H.A. Rahmani, learned ASC for respondent has mentioned time and again that no default whatsoever has been committed and at first instance two money orders were sent on 10.11.1984 and 17.12.1984 but on the refusal of appellant the amount was deposited wjth the learned Rent Controller. It was obviously for the respondent to show that money order was sent, who produced two money order forms dated 10.11.1984 and 17.12.1984 coupled with two money order receipts having the same dates and thus successfully discharged his burden in accordance with the mode as prescribed in Section 10(3) of the Sindh Rented Premises Ordinance 1979. We have carefully examined the provisions as contained in Section 10(3) of the Sindh Rented Premises Ordinance 1979 which is reproduced herein below for ready reference:

"(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situated."

A cursory glance at the language in which the above sub-section is couched will show that it is free from any ambiguity and no scholarly interpretation is called for. It simply means that where a landlord refuses or avoids to receive due rent the same can be tendered by means of money order or in the alternate it can be deposited with the learned Rent Controller in whose domain of jurisdiction the demised property is located. The tendering of rent by means of money order would be in two eventualities i.e. "refusal" 01 "avoidance" which are not synonymous or interchangeable terms and have been used to cover two different situations. The word "refusal" indicates categoric denial or renouncement in an unambiguous manner by the landlord while the word "avoid" with reference to the context reflects the conduct where the landlord instead of a categoric denial or refusal prefers to C remain silent, shows reluctance to receive the rent and becomes unapproachable by keeping himself away to get the issue prolonged "to create the grounds of default". In both the above referred to situations the provisions as contained in Section 10(3) of the Sindh Rented Premises Ordinance, 1979 can be invoked. Th& tendering of rent by means of money order can be proved by producing its receipts, which has been done by the respondent. The only embargo, which can be placed in this particular sphere, is that the money order must be sent on a given and correct address. It was never the case of the appellant that money 'order has been sent on incorrect address. A careful analysis of the provisions as contained in Section 10(3) of the Sindh Rented Premises Ordinance 1979 would reveal that it is not

obligatory for the tenant to show and prove that how, when, why and under which circumstances the refusal was made by the landlord. In this regard we are fortified by the dictum laid down in case titled Fakhar Mahmood Gillani v. Abdul Ghafoor (1995 SCMR 96) wherein it was observed while considering a similar proposition that "the rent remitted by money order to the landlord albeit on his correct address shall be deemed to be a valid tender and it has no nexus with the refusal of the landlord to accept the rent. The responsibility of the tenant is only that he remits the rent through money order and it is not expected of him to follow the postman to its destination". The tenant stands absolved of his responsibility under the law when he tenders the rent due and where it is not accepted by the landlord the tenant cannot be made to suffer. The money order issued by the postal authority in official course of business and produced by the respondent give rise to presumption of remittance especially in absence of any worthy of credence evidence in rebuttal. The viction application cannot be succeeded merely on the basis of alleged default, which is required to be proved by the landlord. "Default" imports an element of gross negligence, dishonest withholding of rent and something more than mere non-compliance which certainly would imply greater responsibility for satisfactorily" establishing "wilful" or "deliberate" avoidance, or "intentional" non-performance of obligation regarding deposit of rent by tenant". (Habib Bank Limited v, Amanullah 1986 CLC 2917, Muhammad Yamin v. Mashroofullah Khan 1980 CLC 848, Najmuddin v. Zamir Ahmad PLD 1982 Kar. 188, Muslim Commercial Bank v. Karim Bakhtiar PLD 1988 Quetta 1). "The most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for which the defaulter is, in now way, responsible." (Ghulam Muhammad Khan Lundkhor v. SafdarAli, PLD 1967 SC 530). Let we mention it clear here at this juncture that the landlord cannot be allowed to take benefit and adopt tactics to make out a ground for eviction on the allegation that a default has been committed which leads us to the consideration whether in the facts and circumstances of the case any default has been committed or otherwise. A careful analysis of the record would reveal that on 30.1.1985 rent for the period of four months was deposited in MRC No. 403/1985 and accordingly the question of any default does not arise. The respondent has succeeded to prove the factum of payment of rent by producing all the original receipts as mentioned herein above and photocopies of two receipts as already discussed in the preceding paragraphs. It is, however, an admitted fact of the case that entry of a few receipts could not be made in ledger/Register No. 48/85 by the concerned official of the Court but the same were mentioned in Ledger No. 487/88 which can be a human error or an inadvertant omission. It appears that the appellant was keen to resort to every device, which he could avail of to secure the respondent's eviction. After having gone through the record of the case we find no scope for interference by this Court for all the two Courts below have held on correct appreciation of evidence produced by the parties that no default was committed. From all the facts and circumstance as mentioned

erein above it inevitably follows that respondent had deposited the rent due and thus cannot be held responsible for any default.

1. In the light of foregoing discussion the appeal being devoid of merit is dismissed.

(A.A.) Appeal dismissed.

PLJ 2002 SC 49

[Appellate Jurisdiction]

Present: ABDUR REHMAN KHAN, JAVED IQBAL AND

hamid An mirza, JJ. ABDUL MAJEED etc.-Appellants

versus

Mst. HAMIDA BIBI and 4 others-Respondents C.A. No. 1330 of 1996, decided on 22.3.2001.

(On appeal from the jdugment dated 30.3.1996, of the Lahore High Court, Lahore passed in Civil Revision No. 1477-D/1998)

(i) Constitution of Pakistan (1973)--

—-Art. 185(3)--Suit for pre-emption-Delayed filing of appeal before First Appellate Court-Delay condoned by High Court-Leave to appeal was granted to consider; whether plaintiffs were under duty to have explained delay of each and everyday in filing appeal before Appellate Court; whether there was no justification with the High Court to condone delay in the institution of appeal. [P. 50] A

(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--

—-S. 15-Limitation Act (DC of 1908), Ss. 5 & 14-Suit for pre-emption-­ Condonation of delay in filing appeal-Essentials for condoning delay explained and illustrated. [P. 53] B

1975 SCMR 259; PLD 1977 SC 102; PLD 1993 SC 385; 1984 SCMR 890;

1068; 1985 SCMR 333; 1988 SCMR 2; PLD 1991 SC 102, 957; PLD 1992 SC

424; 1995 SCMR 584; 1998 SCMR 2296; PLD 2000 SC 94 ref.

Mr. Munir Ahmad Peracha, ASC with Mr. Ejaz Muhammad Khan, AOR for Appellants.

Mr. Muhammad Yaqoob Sindhu, ASC with S. Abdul Aasim Jafri, AOR (Absent) for Respondents.

Date of hearing: 22.3.2001.

judgment

Abdur Rahman Khan, J.-Leave in this appeal granted to consider the following points raised at the time of hearing the petition.

"Learned counsel has submitted that the respondents, Mst. Hamida Bibi etc. were under duty to have explained delay of each and every in filing the appeal before the appellate Court. According to learned counsel, the respondents filed their appeal before the appellate Court after 29 days for which they could not offer any reasonable/plausible explanation in that behalf. According to learned counsel, there was no legal justification with the High Court to condone the delay in the institution of the appeal".

1. The factual background relevant for the disposal of the present appeal is that Walayat Khan predecessor of the respondent on 25.11.1975, filed suit for possession through pre-emption in respect of the disputed land in the Court of learned Civil Judge. The learned trial Judge although held the appellant to be possessed of superior right of pre-emption but dismissed the suit on its finding on Issues Nos. 3 and 4 holding the suit to be barred by time and incorrectly valued for the purposes of Court fee and jurisdiction. It was clarified in the judgment that the plaintiff was required to have fixed Court fee on Rs. 85,204-50 which has not been done and so "I find that the suit had been deficiently valued and plaintiffs attitude was contumacious and wilful. In such circumstances grant of permission to make up the deficiency would amount to an undue favour to the plaintiff and a valuable right which has accrued to the defendants with the lapse of time would stand defeated. For my these findings I hold that the suit has been deficiently valued and the plaintiff cannot be permitted to make up the deficiency and that the plaint deficiently valued is in-competent to seek any relief. I decide this issue in favour of the defendant". The trial Court fixed the sale price at Rs. 90.000/-as the parties had agreed to it. Appellants preferred appeal in the High Court as valued for jurisdiction was fixed at Rs. 90,000/- which was accepted by judgment dated 27.1.1985. The appellants challenged this judgment in this Court which was accepted holding that High Court was not proper forum for appeal and it was directed that the memo of appeal be returned to the appellant (plaintiff) for submitting it before proper forum. Consequently, the appeal was presented before the learned District Judge alongwith application for condonation of delay. The learned Additional District Judge who heard the appeal on 6.4.1988, dismissed the application for condonation of delay and so the appeal because it was held:- "It is abundantly clear from case law referred by respondents' counsel that wrong advice of counsel does not furnish a foundation for enlargement of limitation".

This order of the appellate Court was challenged in revision in the High Court which was accepted by the impugned judgment dated 24.3.1996, and the judgment and decree of the learned appellate Court, were set aside and the application for condonation was accepted with the result that the appeal of the plaintiff/respondents before the appellate Court shall be deemed to be pending and should be decided afresh. Leave to appeal was granted to consider the legality of this order.

1. The learned counsel for the appellants argued that as the appeal before the learned District Judge had become time barred, therefore, this device of filing the appeal was adopted in bad faith so as to get advantage of the larger period fixed for appeal in the High Court than the one before the District Judge. This argument pre-supposes mala fide of the respondents in filing appeal before the High Court on imaginary and speculative grounds. The case of the respondents was that due to mistaken advice which in the circumstances of the case, could not be termed as mala fide or without sufficient cause the appeal was filed in the High Court and naturally it was to be filed within time prescribed by law for such an appeal and not within time meant for submitting appeal in the District Courts. This point was answered in the impugned judgment in this manner:-

"Learned counsel for the respondent has however tried to distinguish Sherin's case on the ground that in that case at the time of filing the appeal wrongly before the District Court the limitation for filing it in this Court has not expired. While in the present case when the appeal was presented in this Court but the appeal if filed before the District Court would be barred by 11 days. This distinction with respect is specious and hardly makes any difference. As the appellant was advised by the learned counsel that the appeal lay in the High Court he was well within his right to assume that it could be filed within 90 days which is the limitation for filing appeal in the High Court. The rule laid down in Sherin's case is clearly applicable".

1. It was next argued that before invoking the Provision of Section 5 of the Limitation Act it is to be shown that due diligence was exercised in choosing the forum for appeal. To support this point the learned counsel referred to the following decided cases:

(i) 1975 S.C.M.R. 259

(ii) PLD 1977 S.C. 102

(iii) PLD 1993 S.C. 385

(iv) 1984 S.C.M.R. 890, 1068

(v) 1985 S.C.M.R. 333

(vi) 1988 S.C.M.R. 2

(vii) PLD 1991 S.C. 102, 957

(viii) PLD 1992 S.C. 424

(ix) 1995 S.C.M.R. 584 (x) 1998 S.C.M.R. 2296 (xi) PLD 2000 S.C. 94

In order to meet the above arguments the learned counsel for the respondents referred to PLD 2000 S.C. 941, and 1999 S.C.M.R. 1049 to support his view point.

1. There is no denying the well settled legal position that the benefit under Section 5 of the Limitation Act can only be availed if a party has acted in good faith and with due diligence. As each case proceeds on its own facts, therefore, diligence and good faith would be determined on the facts of each case and no formula of inflexible or universal application can be laid down in abstract form. It has been so held in the latest judgment of this Court reported as "Karachi Electric Supply Corporation Ltd. Vs. Lawari and 4 others". (PLD 2000 S. C. 94):

"Diligence is a state of human conduct What should be the standard for assessing the behaviour of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick. Whether or not litigant has acted diligently and with care, would differ from case to case. Speaking broadly, a person may be said to have acted diligently, when he has informed, himself of all relevant factors taken all obvious steps and precautions, characterized by a degree of effort, as in a given situation, a reasonable person would do. But the epithet of reasonable opens wide the measure of application of this yardstick, on the factual plane, for the word "reasonable", is not susceptible of any precise definition. Etymologically, it signifies according to reason, which expression itself is open to difference of opinion. Whether or not a person has acted diligently in ultimate analysis, would depend on the circumstances of each case and cannot be determined on the foundation of any judicial syllogism. The criterion of "due diligence" for enlargement of time is prescribed by Section 14 of the Limitation Act, which upon its terms is applied only to the suits and applications and not to the appeals. On the other hand Section 5 is applicable to the appeals but it does not apply to suits. The question of condonation of delay, therefore, has to be examined on the basis of Section 5 and not Section 14 of the Limitation Act. Not unoften while examining the question of condonation of delay, in filing the appeal, the Courts have been invoking the principles underlying Section 14 of the Act. It is, however, to be remembered that expressions "due diligence" and 'food faith' appearing in Section 14 do not figure in Section 5. The condonation prescribed in the later section for its applicability is sufficient cause but what is sufficient cause is not capable of condonation, with exactitude and would differ mistaken advice tendered by the counsel, by itself would not attract Section 5, but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute a 'sufficient cause' within the meaning of Section 5 for condonation of the delay.

Filing of an appeal in a wrong Court on account of mistaken advice tendered by the counsel convassed on behalf of the applicant for condonation of delay by itself would not attract Section 5 of the Limitation Act, but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute sufficient cause within the meaning of Section 5 for condonation of delay".

As the view taken in the above cited judgment appears to be gist of the rule laid down and the cases cited before us and noted above, therefore, we need not refer to each case at that would serve no purpose. In order to determine in this case as to whether the plaintiff was entitled to condonation of delay under Section 5 read with Section 14 of the Limitation Act the following points are to be noted:-

(i) The law on the point as to how forum of appeal in pre-emption cases in to be determined, had not be firmly settled till recently. As one view was that the appellate forum will be regulated by the sale price of the subject-matter of the suit while the other was that it depends on the valuation of land as determinable under the Suit Valuation Act and the rules there under.

(ii) At the time of filing the appeal in the High Court on objection was raised by the office to the maintainability of the appeal.

(iii) No objection was taken from the side of the respondent in the High Court on account of jurisdictional value.

(iv) The learned Judges in the High Court heard and decided the appeal on merits without noting the factum of jurisdictional value and competency of the appeal before them on that count.

(v) This point for the first time was noted in this Court and the case was remanded to the District Court as it was held that the appeal before the high Court was not competent as in view of the jurisdictional value fixed in the plaint it was competent before the District Court.

In view of the above factual and legal aspect of the case we agree with the conclusion of the High Court reached by it in the impugned judgment and, accordingly, dismiss the appeal, but with no order as to costs.

(A.A ­) Appeal dismissed.

PLJ 2002 SC 54

[Appellate Jurisdiction]

Present: qazi muhammad farooq and javed iqbal, JJ. MUHAMMAD SARFRAZ and 174 others-Petitioners

versus

GOVERNMENT OF THE PUNJAB through Secretary, Education Department, Civil Secretariate Lahore, etc.-Respondents

C.Ps for Leave to Appeal No. 1084-L to 1165-L, 1173-L to 1179-L, 1188-L to 1196-L, 1244-L to 1246-L, 1255-L to 1258,1260-L to 1264-L, 1271-L to 1274-L, 1320-L to 1330-L, 1346-L to 1374-L, 1384-L to 1389-L, 1423-L to 1426-L, 1432-Lto 1434-L, 1474-L, 1565, 1570, 1620, 1690-L, 1710-L, 1792-L, 1855-L, 1856-L and 1857-L of 2001, decided on 20.6.2001 (On appeal from the Judgment dated 26.2.2001 of the Lahore High Court, Lahore passed in Writ Petitions Nos. 16955, 9516, 17380,18043, 17253, 19467, 3924,17378, 17405, 20581, 17374, 17423, 9410, 2058, 9275, 17056, 17423, 18920, 19024, 9495, 13766, 17761, 16853, 17658, 17992, 4229, 9348, 17577, 9622, 9362, 17128, 18973, 3943, 17412,18139, 9272, 18233, 12828, 17431, 9240, 9350, 13768, 9269, 16851, 17379, 9249, 13797,13402, 9338, 17255, 16849,17373,17500, 9087, 7854, 20325, 17447, 17187, 18919, 16375, 17991,17258, 17254, 17159, 20905, 13767 of 2000 5961/99,17578, 9252, 13769, 17017, 9040, 12838, 9241, 3942, 9472, 16850, 17129, 9544, 9471, 9284, 17414, 9547, 9037, 16971, 3903, 9010,18348, 4013, 9274, 3902, 18436, 16850, 17654, 16852, 9276, 9360, 9586, 17992, 17017, 17053, 17373, 1995, 2044, 2152, 16447, 3958,17582, 4013, 1308, 2099, 2014, 2130, 2022, 17374, 20325, 9549, 9273, 9275, 20905, 5961, 17401, 2000, 2058, 20183, 12829, 9547, 9405, 18918, 9409, 12872, 9011, 17130, 9370,17127, 17126, 17256, 9360, 17253, 20006, 9271, 5961, 18796, 17359, 12873, 17579, 17578, 3924, 9562, 9277, 20183, 17575, 4013, 18287, 17414. 3326, 16955, 17405, 20922, 4013, 19893, 17592, 5961, 3921/Bwp., 17412, 20668, 2099, 2058, 16955, 3938 of 2000, 8044, 4204 of 2001, 18910, 18911 and 18913 of 2000, respectively)

Constitution of Pakistan (1973)--

—-Arts. 199, 212 & 185(3)-Dismissal of petitioners Constitutional petition by High Court in regard to termination of their services on the ground of lack of jurisdiction-Petitioners appointment as lecturers on adhoc basis-­Term, "adhocappointment" means appointment of a duly qualified person made otherwise, than in accordance with prescribed method of recruitment pending recruitment in accordance with such method-Adhoc appointments belong to the family of "officiating", temporary" and "until further order" appointments-Ad/IOC employee is civil servant as he holds civil post in connection with the affairs of a Province and he is not included in the persons excluded from the definition of Civil Servant and is governed by Punjab Civil Servants (Efficiency and Discipline) Rules 1975, having not been excluded from its operation, as well as S. 10, of Punjab Civil Servants Act 1974, having been described as a civil servant qua termination of service-Petitioners were, therefore, civil servants within the contemplation of Punjab Service Tribunals Act, 1974-Existence of terms and conditions of service has not been disputed by petitioners as the same were incorporated in letters of their appointment on adhoc basis~In all cases relating to terms and conditions of service, remedy available to aggrieved Civil Servant is by filing appeal befor Service Tribunal and not by invoking writ jurisdiction of High Court- Question raised by petitioners relating to certain remarks by High Court would be determined by Service Tribunal with open mind and un­ influenced by any observation made in impugned judgment on merits of to appeal was refused in circumstances. [Pp. 59, 60, 61, 62 & 64] A, B, C, D & E

1999 SCMR 2786; 1991 SCMR 1041; 1999 SCMR 819; 1993 SCMR 609;

1998 PLC (C.S.) 70; 1982 SCMR 46; 1991 SCMR 1041;

1983 SCMR 859; 1993 SCMR 2337 ref.

Mr. A.K. Dogar, ASC, for Petitioners (in CPs 1084 to 1165-L, 1173 to 1179-L, 1330-L, 1374-L, 1385-L, 1986-L, 1388-L, 1690-Land 1710-L/2001).

Mr. Arif Chaudhry, ASC for the Petitioners (in CPs. 1188 to 1196-L, 1244 to 1246-L, 1261 to 1264-L, 1432 to 1434-L and 1474-L/2001).

Mr. S.M. Zafar, Sr. ASC, for Petitioners (in CPs 1255 to 1258-L, 1271 to 1274-L, 1320 to 1329-L, 1373-L, 1384-L 1423-L, 1426-L and 1792-L/2000).

SyedNajamul Hassan Kazmi, ASC and Mr. M.A. Qureshi, AOR, for Petitioners (in CPs 1346 to 1372-L and 1389-L.2001).

Mr. Muhammad ul-Islam, AOR (absent) for Petitioners (in CP-1260-L/2001)

Mr. C.M. Lateef, AOR, petitioner (in CP-1387-L/2001).

Petitioners in person (in CP-1620/2001).

Cfi. Mehdi Khan Mehtab, AOR, (absent) for Petitioner (in CPs-1855 to 1857-L/2001).

Ch. AkhtarAH, AOR for Petitioners (in CPs-1565 & 1570/2001).

Mr. Tariq Mehmood Khokkar, Addl. A.G. Punjab for Respondents (on notice in all petitions).

Dates of hearing: 11 and 12.6.2001.

order

Qazi Muhammad Farooq, J.--The above-mentioned petitions for leave to appeal are being disposed of by this common judgment on account of similarity of questions of law and facts involved therein.

1. The petitions are directed against the judgment dated 26.2.2001 of a learned Full Bench of the Lahore High Court, Lahore whereby the writ petitions filed by the petitioners to challenge the order dated 5.8.2000 in regard to termination of their services were dismissed with the observations that, if so advised, they may approach the Service Tribunal for redressal of their grievance and in case they choose to do so the Service Tribunal shall consider the question of limitation sympathetically.

2. Briefly stated the relevant facts are that through an advertisement published in the newspapers on 13.11.1995 applications were invited by the Government of the Punjab to fill-up certain vacancies of Lecturers in the Education Department on ad hoc basis for a period of one year. The petitioners applied for the advertised posts and in due course were interviewed and selected by the Divisional Selection Boards and offered the posts of Lecturers on ad hoc basis in BPS-17. The terms and conditions of appointment were highlighted and clearly specified in the letter offering the appointment. The petitioners accepted the offer and were duly appointed as ad hocLecturers in BPS-17 in their respective subjects on difference dates in the month of February, 1996 and posted in different colleges. One of the terms and conditions of service was that they will serve in a purely temporary capacity for a period not exceeding one year and shall automatically be terminated on the expiry of stipulated period unless extended by prior order or on the arrival of selectees of the Punjab Public Service Commission whichever is earlier or upto the date on which permanent incumbents of th'e posts resume duty. The period was extended by the Government of Punjab from time to time and ultimately the services of the petitioners were terminated/dispensed with wide order dated 5.8.2000 issued by the Special Secretary Higher Education Punjab. It will be pertinent to mention that a few petitioners whose services were terminated alongwith the remaining petitioners were appointed as ad hocLecturers prior to 13.11.1995.

3. Most of the petitioners are represented by Mr. A.K. Dogar, learned Senior ASC, who raised the following contentions with great vehemence to assail the impugned judgment:--

(i) The petitioner being ad hoc employees cannot invoke jurisdiction of the Service Tribunal An ad hoc employee is neither a 'civil servant' nor 'holder of a civil post, on in the 'service of the province' within the meanings of Sections 2 and 4 of the Punjab Service Tribunals Act, 1974 and Section 2 (b) of the Civil Servants Act 1974 for more than one reason. His employment is not made in accordance with the prescribed method of recruitment and he becomes a civil servant after his employment is regularized. He has no terms and conditions of service as his service in fact starts after regularization. His employment can be terminated on one month's notice or one month's pay in lieu thereof and his service is neither counted towards seniority nor he is entitled to promotion.

(ii) The expression 'terms and conditions' mentioned in Article 212 of the Constitution is relatable to regular employees only who have been appointed in accordance with the method prescribed for such employment.

(iii) Section 4 of the Punjab Service Tribunals Act is ultra vires the provisions of Article 212 of the Constitution as the latter does not contemplate the establishment of a Court of appellate jurisdiction but that of original jurisdiction. A Court of exclusive jurisdiction is always a Court of original jurisdiction. The Constitution has also not envisaged filing of a representation and expiry of 90 days before filing of an appeal.

The establishment of the Service Tribunal is mentioned in the Chapter of the Constitution which pertains to Judiciary, therefore, it is necessary that its Chairman and all the members are judicial officers.

(iv) The status of a civil servant is acquired by a person only after he is inducted into a post in service of Pakistan as held in 1999

SCMR2786.

(v) The Service Tribunal has no jurisdiction in the matter as the petitioners have not sought enforcement of any term and condition of Service. The Service Tribunal has jurisdiction in a matter which is founded only on the terms and conditions of service as observed in 1991 SCMR 1041 and only that appeal is maintainable before the Service Tribunal wherein, the question involved relates to the enforcement of the terms and conditions of service as observed in 1999 SCMR 819.

(vi) The petitioners were appointed on ad hoc basis after advertisement of posts and interview conducted by a Divisional Selection Board having two subject specialists on its penal and were selected on merits. The Divisional Selection Board was akin to the Punjab Public Service Commission. The period of their appointment was extended inspite of availability of recommendees of the Punjab Public Service Commission, The petitioners- had thus acquired the status of permanent employees but they were not treated in accordance with law and discriminatory treatment was meted out to them in that from 1972 onwards services of many ad hoc lecturers were egularized by the Government without making a reference to the Punjab Public Service Commission but they were not regularized. Besides, their services were terminated without a show-cause notice. The writ petitions filed by the petitioners were maintainable and competent and the High Court ought to have assumed jurisdiction and resolved the controversy as the matter involved violation of Articles 4 and 25 of the Constitution and the principle of natural justice. Reliance was placed on Federation of Pakistan and others Vs. Rais Khan (1993 SCMR 609).

(vii) The cases of the petitioners are governed by Rule 16 of the Appointment and Conditions of Service Rules, 1974 and Rule 22 is not attracted.

1. Mr. S. M . Zafar, Senior, ASC, learned counsel for the petitioners in CP No. 1225-L/2001 while adopting the arguments addressed by Mr. A.K. Dogar contended that the order was mala fide and the question raised by the petitioners pertained to determination of the nature of their appointment, which was altered by subsequent events, and not enforcement of terms and

conditions of their service, therefore, the matter fell within the exclusive jurisdiction of the High Court. He further contended that termination of services of the petitioners on the ground that they were no more qualified for the posts of Lecturers is relatable to the qualification and fitness of the petitioners to hold the posts and not to the terms and conditions of their service, therefore, the jurisdiction of the Service Tribunal is ousted. It was also contended that the petitioners were selected by a competent forum set up by the Government and had worked for a considerable long time, therefore, the High Court ought to have assumed jurisdiction no determine whether the rights and interest created through the decisive steps taken by the Government after their appointment were taken away in accordance with law or not. It was lastly contended that a case for decision of the writ petitions on merits by the High Court was made out on equitable grounds as well because the petitioners, who have been left high and dry, had raised the question of regularization of their services in the light of several precedents and directive dated 1.6.1992 of then Prime Minister that all ad hoc lecturers employed in the Federal Government and Garrison Education Institutions who have completed two years of service are to be treated as confirmed and not to be removed from service.

1. Syed Najamul Hassan Kazmi, ASC, learned counsel for the petitioners in C.Ps. Nos. 1346 to 1372-L/2001, adopted the arguments addressed by Mr. A.K. Dogar and Mr. S.M. Zafar and also expressed his anxiety about the remarks with regard to performance of the petitioners before the Public Service Commission, recorded by one of the learned members of the Full Bench, which according to him had virtually decided an important issue involved in the case and also put the petitioners under the vestige of a stigma.

2. Mr. Tariq Mehmood Khokhar, learned Additional Advocate General Punjab supported the impugned judgment by reiterating the reasons recorded therein. The main thrust of his contentions was that jurisdiction of the High Court was ousted as the petitioners were civil servants and the questions for determination pertained to terms and conditions of their service. It was also contended that the petitioners had failed to clear tests and interviews conducted by the Punjab Public Service Commission rnspite of availing a number of chances and in the face of the terms and conditions of their service they had no right to claim that they had become permanent by efflux of time. Reliance was placed on Shaheen Akhtar Vs. Government of Punjab and others (1998 PLC (C.S) 70, Ghulam Sarawr VS. Province of Punjab (1982 SCMR 46), LA Sharwani and others Vs. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) and Muhammad Afzal Sohail and 11 others vs. Government of Punjab and others (1983 SCMR 859).

3. We do not feel persuaded to agree with the contentions raised by the learned counsel for the petitioners and find substance in the submissions made by the learned Additional Advocates General that the matter falls within the exclusive jurisdiction of the Service Tribunal and the impugned judgment is unexceptionable. The reasons are not far to seek. Jurisdiction of Courts other than the Service Tribunal is expressly barred under Article 212 of the Constitution and the Service Laws in respect of matters relating to the terms and conditions of persons who are or have been civil servants. The petitioners were appointed as lecturers on ad hoc basis, therefore, the first point for determination is whether they are civil servants or not.

4. As defined by Article 260 of the Constitution the expression "Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e-Shoora(Parliament) or of a Provincial Assembly. According to clause (a) of sub-section (1) of Section 2 of the Punjab Civil Servants Act, 1974 the expression "ad hoc appointment" means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment pending recruitment in accordance with such method Ad. hoc appointments belong to the family of "officiating", "temporary" and "until further orders" appointments as held in Federation of Pakistan Vs. Rais Khan (1993 SCMR 609). The expression "Civil Servant" has been defined in clause (b) of sub-section (1) of Section 2 of the Punjab Civil Servants Act, 1974 as well as clause (b) of Section 2 of the Punjab Service Tribunals Act, 1974. The definition contained in the Punjab Civil Servants Act, 1974 reads as under: "civil servant" means a person who is a member of a civil service of the Province, but does not include-

(i) a person who is on deputation to the province from the federation or any other Province or authority;

(ii) a person who is employed on contract, or on work charge basis, or who is paid from contingencies; of

(iii) a person who is a worker or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)"

The definition given in the Punjab (Service) Tribunals Act, 1974 is worded thus:-

"civil servant" means a person who is or who has been members of a civil service-of the Province or who holds or has held a civil post in connection within the affairs of the Province but does not include-

(i) a person who is on deputation to the Province from the Federation or any other Province or authority;

(ii) a person who is or has been employed on contract, or work-charge basis, or who is or has been paid from contingencies; or

(iii) a person who is or has been a Sworker' or Svorkman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)"

1. As would appear from the definition of "Civil Servant" contained in the Punjab Civil Servants Act, 1974 as also the Punjab Service Tribunals Act, 1974 a person who holds a civil post in connection with the affairs of the Province and is not included in the persons categorized under sub-clauses (i), (ii) and (iii) is a civil servant. An ad hoc employee is a civil servants as he holds a civil post in connection with the affairs of a Province, is not included in the persons excluded from the definition of civil servant and is governed by the Punjab Civil Servants (Efficiency and Discipline) Rule, 1975, having not been excluded from its operation, as well as Section 10 of the Punjab Civil Servants Act, 1974, having been described as a civil servant qua termination of service. The petitioners are, therefore, civil servants within the contemplation of the Punjab Service Tribunals Act, 1974.

2. The second point to be determined is whether the dispute involved in these petitions relates to the terms and conditions of service of the petitioners. The petitioners were inducted into service on ad hoc basis for a period of one year in accordance with the procedure for making an ad hoc appointment contained in Rule 22 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, which reads as under:- "22 (1) When a post is required to be filled, the appointing authority shall forward a requisition to the selection authority immediately after decision is taken to fill the post. (2) After forwarding a requisition to the Selection Authority, the appointing authority may, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding one year pending nomination of a candidate by the selection authority.

Provided: (1) The vacancy is advertised property in the newspapers;

(2) the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post;

(3) the selection is made on the basis of merit determined by objective criteria;

(4) the appointment order certifies that a requisition has been sen to the selection authority; and

(5) the appointment is made subject to revocation at any time by the competent authority; Provided further that: ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade.

(3) Governor may for special reasons, relax any of these conditions in any individual case".

1. The existence of the terms and conditions of service of the petitioners has not been disputed and rightly so because the same are incorporated in the letters whereby appointment on ad hoc basis was offered to the petitioners and are worded thus;

"Subiect-OFFICER OF APPOINTMENT FOR THE POST OF LECTURER ON ADHOC BASIS.

Consequent upon your selection by the Interview Board/Commitee and final approval by the Government of the Punjab, Education Department, Lahore vide Letter No. PA-DS (E) 1-1-96, dated 4.2.1996, you are hereby offered & post of Lecturer on ad toe basis in BPS-17 (Rs. 3380-290-7360) Collegiate Branch (Men and Women Section) on the terms and conditions indicated below:-

(i) In a purely, temporary capacity for a period not exceeding one year and shall automatically be terminated on the expiry of the said period of one year unless extended by prior order/on the arrival of selectee of the Punjab Public Service Commission whichever is earlier or upto the date on which permanent incumbent of the post resume duty.

(ii) Notwithstanding the condition (i) above the appointment is subject to the revocation at the discretion of the Government.

(iii) Liable to termination at any time, even within the period specified in (i) without assigning any reason from either side.

(iv) You will have to compete before the Public Service commission with other candidates in accordance with the rules, as and when the post is advertised by the Commission, if you do not compete before the Commission, no extension would be granted in ad hoc appointment.

(v) The ad hoc appointment will not confer any right of regular appointment to the same post nor the service will be counted towards seniority.

(vi) You have to join at your own expense.

(vii) Subject to the production of Medical Certificate of fitness from the Standing Medical Board concerned before joining.

(viii) You will be governed by such rules and orders relating to leave travelling allowances, Medical Attendance, pay etc. as may be issued by Government for the category of Government Servants to which you will belong.

(ix) Subject to the production of sanction for the relaxation of upper-age limit by the Competent Authority before the joining of duly in case of being overage.

(x) Subject to the verification of your Character/antecedents by the D.I.G. Police, Special Branch, Lahore and Superintendents of Police concerned, (xi) You will not agitate or approach the higher authorities for regularization of your ad hoc appointment.

(xii) You will not make any request directly or indirectly for your transfer from your place of posting for a period of at least one year.

(xiii) Subject to production/verification of original academic credentials by the concerned authorities.

In case you are willing to accept the offer on the above terms and conditions you should report yourself for duty within 10 days of the issued of this appointment letter to the Principal, Govt

Degree/Inter College______________ faling which the offer shall

be deemed as cancelled without any further notice."

1. The learned counsel for the petitioners have made an attempt to enlarge the scope of the dispute and bypass the Service Tribunal by challenging vires of Section 4 of the Punjab Service Tribunals Act, 1974, introducing fundamental rights and elements of discrimination, regularization and fitness for promotion etc but the dispute essentially relates to the terms and conditions of service of the petitioners. In all cases relating to terms and conditions of service remedy, available to an aggrieved civil servant is by filing an appeal before the Service Tribunal and not by invoking writ jurisdiction of the High Court. The petitioners were civil servants at the time of termination of their service and their grievance is traceable to the terms and conditions of their service, therefore, they are obliged to seek redressal of their grievance from the Service Tribunal.

2. We have not been able to lay our hands on a direct authority of this Court on the point that an ad hoc employee is a civil servant. However, there are some authorities which support the view in this manner that judgments rendered by the Service Tribunal in the cases of ad hoc employees were not interfered with by this Court on the ground of lack of jurisdiction. First of all we will refer to the authority reported as Muhammad Shahbaz Cheema Vs. Province of Punjab etc (1981 SCMR 469). In that case the petitioner was appointed on ad hoc basis as Sub-Engineer in the Punjab Irrigation Department. His services were terminated and he had invoked the writ jurisdiction of the Lahore High Court to challenge the order of termination of his service. The writ petition was dismissed on the ground that he should have filed an appeal before the Service Tribunal. He accordingly filed an appeal before the Service Tribunal which was dismissed on merits. The petition for leave to appeal filed by him was dismissed by this Court alongwith the connected petition filed by another ad hoc employee Amir Ahmed. Another authority is reported as Wapda and two others V s. Muhammad Hussain Gul (1993 SCMR 2337). In that Case the respondent was an ad hoc employee of WAPDA and the appeal filed by him against his termination from Service was accepted by the Service Tribunal and he was directed to be re-instated in service. Petitioner for leave to appeal filed by WAPDA was dismissed by this Court and leave refused. There is yet another authority, which has been referred to in the impugned judgment also, reported as Federation of Pakistan and others Vs. Rais Khan (1993 SCMR 609). In that case the respondent was appointed as Assistant Executive Engineer in Pak. P.W.D. on ad hoc basis for a period not exceeding 6 months subject to replacement by the Federal Public Service Commission. A seniority list was circulated by the Department in which he was shown junior to some officers. Subsequently he was appointed as Assistant Executive Engineer on current charge basis. He took the matter of seniority before the Service Tribunal in appeal. His appeal was partly allowed and the appeal filed by the Federation of Pakistan was dismissed by this Court with the observations, inter alia, that it had not been denied that the Federal service tribunal was competent to pass the order. Reference may also be made to another noteworthy authority reported as Muhammad Azam Ali and 35 others Vs. Government of the Punjab through Chief Secretary and another (1985 SCMR 1408). In that case services of 35 ad hoc Civil Judges were terminated and the appeal filed by them was dismissed by the Punjab Service Tribunal. The petition for leave to appeal preferred by them was dismissed by this Court on merits and leave refused.

3. Now a few words about those contentions which appear to have been raised by the learned counsel for the petitioners with a view to enlarge the scope of the dispute and bypass the Service Tribunal. The contentions are to the effect that the dispute relates to determination of fitness of the petitioners to hold the posts of Lecturers, Section 4 of the Punjab Service Tribunals Act is ultra vires the provisions of Article 212 of the Constitution, the petitioners were entitled to be regularized but were not dealt with in accordance with law and treated in a discriminatory manner, the order of termination of their services offends the principle of natural justice and is tainted with mala fide.

4. We are afraid the petitions are not directed against an order or decision of a departmental authority determining the fitness or otherwise of the petitioners to be appointed to or hold a particular post and the remaining contentions cannot take away jurisdiction of the Service Tribunal inasmuch as it is by now firmly settled that all these questions can be determined and adjudicated upon by the Service Tribunal.

5. It was held in LA Sharwani Vs. Government of Pakistan (1991 SCMR 1041) that a civil servant cannot by-pass service Tribunal by adding a ground of violation of the fundamental rights. Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of fundamental rights. It was also held that if a civil servant is aggrieved by an order passed by a departmental authority in respect of terms and conditions of ervice his remedy is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a Notification. In Syed Mazhar Hussain Bukhari Vs. Secretary Government of Punjab Laced Government and Rural Development Lahore (1998 SGMR 1948) it was held that even the orders challenged on the ground of mala fide are appealable before the Service Tribunal and Article 212 of the Constitution is a bar against filing of a Constitutional petition before the High Court.

6. Before parting with the petitions We would like to allay the anxiety demonstrated by Mr. Najamul Hassan Kazmi Advocate over certain remarks by making the observation that, if approached, the Service Tribunal will determine the questions raised by the parties with an open mind and uninfluenced by any observation made in the impugned judgment on the merits of the case. For the reasons stated above, all the petitions are dismissed and leave declined.

(A.A) Petition dismissed.

PLJ 2002 SC 65 [Appellate Jurisdiction]

Present: SH. riaz AHMAD; munir A. SHEIKH AND syed deedar hussain shah, JJ.

M/s. BOLAN ENTERPRISES KARACHI and another-Appellante

versus

MUSHTAQUE ALI KUMBHO and others - Respondents C.As. Nos. 717 and 1841 of 1998, decided on 26.4.2001.

(On appeal from the judgment dated 17.4.1998, of the High Court of Sindh, Karachi, passed in Const. Petition No. D-1778 of 1997)

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

—S. 54(l)--Municipal Committees Octroi Rules 1964, R. 225—Constitution of Pakistan (1973), Art. 185-Agreement for lease of Octroi Collection rights on Municipal Corporation's Octroi posts on road and rail side executed between petitioner and Municipal Corporation was assailed by respondent (journalist)-High Court in exercise of Constitutional jurisdiction set aside such agreement-Validity-Respondent who had filed writ petition was not an aggrieved person and he had not exhausted available remedies-Respondent's main plea that port Qasim area be included in Municipal Corporation, was not maintainable-High Court was not competent to pass such order, which was only prerogative of concerned Provincial Government—Contents involved in writ petition indicated contractual obligation for which valid contract had been signed and there was no allegation of breach of contract-Contract awarded to petitioner was under the Act and Rules approved by the Government— Impunged judgment setting aside contract between parties was set aside in circumstances. [P. 72] A

PLD 1961 SC 192; PLD 1965 SC 725; PLD 1971 SC 811; PLD 1997 SC 304;

PLD 1997 SC 351; PLD 1994 SC 105; 1990 CLC 448; PLD 1990 SC

513 and 1996 SCMR 1435ref.

Mr. Abdul Hafeez Pirzada, Sr. ASC; Mr. Muhammad Afzal Siddiqui, ASC and Muhammad AshrafKhan Tanoli, AOR for Appellants (in C.A. No. 717/1998). Respondent Nos. 1 in person (absent) Respondents No. 2, 3, 7, 8,10,14 & 15 Ex-parte.

Mr. Abrar Hussain, ASC for Respondents Nos. 4, 6 and 9. Mr. Suleman Habibullah, Addl. A.G. for Appellant (in C.A. No. 1841/1998). Mr. M. Bilal, Sr. ASC and Mr. Ejaz Muhammad Khan, AOR for Respondent No. 11.

66 SO M/a. bolan enterprises karachi v. mushtaque alj kumbho PLJ (Sardar Said Muhammad Khan, C.J.) Mr. Suleman Habibullah, Addl. A.G. Sindh, and Mr. Akhlaq A. Siddiqu, AOR (absent) for Appellant (in CA1841/98).Dates of hearing: 17 and 18.4.2001. judgmentSyed Deedar Hussain Shah, J.--The above appeals by the leave of this Court are being disposed of by a consolidated judgment, as they arise out of a common judgment, dated 17-4-1998, passed by Division. Bench of the High Court of Sindh, Karachi, in Const Petition No. D-1778 of 1997.

1. The facts, in brief, are that KMC levies and collects octroi on goods brought into the municipal limits Karachi, by air, road, rail and seal. On 7-4-1997 as notice was published by KMC in national newspaper viz. daily "DAWN" and "The NEWS" informing the public that the auction for leasing the rights to collect octroi at KMC' s octroi posts for the road and rail side for the period w.e.f. 1-7-1997 to 30-6-1998 would be held on 22-4-1997, 24-6-1997 and 28-4-1997. The reserve price'for the road and rail side octroi posts was notified at Rs. 56,07,04,000/-. However, nobody offered bid for getting the octroi contract for the above-mentioned period. Government of Sindh in exercise of powers conferred under Section 54(1) of the Sindh Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance), on 10-3-1996, laid down a specific procedure for holding auction by constituting a Special Auction Committee. In said procedure it was provided that in case if the process of auction is not materialized, octroicontracts can be allowed on the basis of offer by increasing the amount by 15 per cent above the previous year offer, conducting auction proceeding atleast thrice. The directions were applicable to all local councils including the KMC. Pursuant to the aforesaid policy the appellants submitted an offer dated 28-6-1997 to the Administrator KMC for lease of octroi collection rights at KMC's road and ' rail side, which was forwarded with recommendations by the Administrator KMC to the Local Government Department mentioning that the offer is 15 per cent above of the last year's contractual amount Consequently, offer of the appellants was confirmed, they were awarded the contract on the above mentioned price and put in possession of KMC's octroi posts for the road and rail side on 1-7-1997. The appellants also deposited security of Rs. 61.68 millions as required under Rule 225 of the Octroi Rules 1964. A detailed agreement for the lease of octroicollection rights on KMC's octroiposts on road and rail side was executed between the parties on 5-7-1997 in terms of Rule 225 (8) of the Octroi Rules 1964 read with Section 45 of the Ordinance.

2. It is pertinent to note that in addition to the octroi contract price of Rs. 560.74 Million appellants were bound to pay the following amounts under the agreement:

(i) Rs. 28 million as advance income tax. (ii) Rs. 0.2 million as Wealth tax

(ii) Rs. 15 million as salary, uniform, medical for KMC's octroi staff, insurance and stationary.

and also incur expenses as follows:

(i) Rs. 30 million as salary of its own staff.

(ii) Rs. 0.4 million as POL vehicle repair.

(iii) Rs. 1.5 million as insurance and depreciation.

(iv) Rs 0.6 million as electricity charges, postage, rental of octroipost.

(v) Rs. 2 million as rent/hire charges of vehicles,, offices, telephones.

(vi) Rs. 0.5 million as stationary, (vii) Rs. 1.5 million as stationary. (viii)Rs. 25 million as interest on loan.

It is significant to note that the appellants were bound to pay the price of contract, even if the octroi collection suffers due to any downturn in business activity or due to any act of God, or deteriorating law and order conditions or any other reason. The appellants received the contract in very terms and lawful manner and started contractual obligations by collecting octroi.

1. Respondent No. 1, a free lance journalist, moved the High Court of Sindh through Constitutional Petition No. 1778 of 1997, as pro bono public questioning the collection of octroi by the petitioners under the above said agreement. He agitated before the High Court that cargo traffic by sea is being diverted from Karachi Port Trust (a post within the jurisdiction of the KMC) to Port Qasim (a port outside the jurisdiction of the KMC) and further pleaded that the goods being discharged at Port Qasim were in fact goods entering the jurisdiction of KMC sea, therefore, KMC should itself collect octroi on such .goods under the head of "sea-dues". He also pointed out that KMC did not operate octroi post at Port Qasim, therefore, no octroi was collected on the goods discharged at Port Qasim, such goods are transported via land for use and consumption in Karachi and upon entering into the jurisdiction of the KMC are charged octroi by the present appellants. According to Respondent No. 1, KMC is to put is loss of hundreds of million and the appellants were correspondingly making huge gains. Apart from other prayers, the first prayer of the Respondent No. 1 in the writ petition was to the effect that the local councils limits of Port Muhammad Bin Qasim (QICT) be merged with KMC by issuing a notification. After the filing of the writ petition, Secretary to Government of Sindh, Local Government Rural Development Departmental, filed para-wise comments. In-reply to para 6 of the writ petition he submitted as under: "Denied. Since the area of Port Qasim does not fall within the limit of KMC, hence KMC cannot establish Octroi post over there. However, the request of KMC for extension of its limits so as to include Port Qasim is under consideration of the Government. In counter-affidavit also he denied the contents of the writ petition and stated that the allegations made therein were misconceived and baseless. He further stated that under the scheme of Sindh Local Government Ordinance, 1979, the local councils are enjoying maximum autonomy and dispose of the revenue contracts in accordance with the provisions of law. The Administrator KMC also filed parawise comments wherein he denied the allegations of Respondent No. 1 stating that the appellants were allowed to charge octroi on the said post i.e near Bhains Colony, and that the appellants were collecting octroi under the provisions of Lease Agreement i.e the goods entering into Karachi through Road/Rail. He further submitted that the appellants were awarded Road/Rail side Octroi contract for the year 1997-98 for Rs. 56,07,40,000/-; that the KMC collects revenue on the goods imported into Karachi for sale, use consumption within KMC limits through Road/ Rail, Air and Sea. The first two mentioned routes have been awarded to the appellants at Rs. 56,07,40,000/- and Rs. 3,31,92,006/- respectively. One Shafique Anwar, Assistant Director, Octroi Department, KMC, filed a counter affidavit objecting that Respondent No. 1 was not an aggrieved person in terms of Article 199 of the Constitution and the writ petition was not maintainable. He also affirmed that Road/Rail side contract was awarded to the appellants for Rs. 56,07,40,000/-. In Soffan Das, partner of the appellants, filed a counter affidavit stating that the petition filed by Respondent No. 1 on or after 24-12-1997 was not maintainable, as the same was vague, false and frivolous, as the respondent was not resident of Sindh; that he was not an aggrieved person; that a valid contract for collection of octroi was made between the appellants and the KMC, which was awarded in lawful manner; that the appellants had not violated the contract or rules and the allegations levelled against the appellants are false and mala fide.

In this background of the matter, during pendency of the writ petition 15 miscellaneous applications were filed and 26 interlocutory orders were passed by the High Court of Sindh. Finally the writ petition was allowed on 17-4-1998.

1. Mr. Abdul Hafeez Pirzada, learned counsel for the appellants, inter alia, contended that Const. Petition No. 1778/97, filed by Respondent No. 1, under Article 199 of the Constitution was not maintainable. Apparently Respondent No. 1 cannot be termed as an aggrieved person; that he is resident of Hub (Baluchistan), his name appears in the voters ofMouza Pathan (Hub) and confirmed in a police report of Police Station Hub; that the respondent also filed C.P.No. 50 of 1998 in the High Court of Balochistan, where he had shown his residence at Hub; that the respondent is a Journalist by profession as Correspondent of daily. "Jang" and is also associated with daily "Bolan Times" Hub, whose office address at Karachi has been shown as his address in the Constitutional petition. He, in any case, cannot be claimed as an aggrieved person. He has filed the writ petition with mala fide intention, as he neither has suffered any injury, either personal or otherwise, nor he has any personal interest/right of any degree directly or remotely; that he has not availed the alternate remedy available to him under Section 53 of the Ordinance, which is efficacious and effective, therefore, invoking of extra-ordinary jurisdiction under the Constitution was not proper exercise of jurisdiction. He further argued that the subject-matter involves extension of territorial limits of the KMC which could only be extended by the Government of Sindh under Section 13 of the Ordinance, for which writ cannot be filed or issued; that all the Government functionaries acted in accordance with the relevant law and rules; that the learned High Court had erred in interfering with the contractual rights of the appellants in exercise of the writ jurisdiction, whereas the appellants were awarded a contract in open and transparent manner for a valuable and lawful consideration; the said rights were being attacked by the respondent, who is an outsider and does not have any direct or indirect interest in the agreement or contract awarded to the appellants by the KMC; that the learned High Court had erred in not taking into consideration the contents of the counter affidavits and parawise comments filed by the respondents particularly by the Government functionaries. In all such counter affidavits which were not rebutted by means of any affidavit-in-joinder the respondents/Government functionaries have recogised the rights of the appellants to collect octroi on goods coming from Port Qasim through its post at National Highway; that the High Court mainly relied on the press clipping of newspapers for forming opinion against the appellants and Mr. Bhagwan Das Chawla; that the impugned judgment is not based on the appreciation of the documentary evidence filed by the appellants which was supported by the Government functionaries; that the High Court had wrongly held that insertion of Clause 6 (10) in the Agreement is a fraudulent act, whereas during the course of hearing the KMC was directed to produce octroi agreements of the previous years viz. 1993-1994-95, 1995-96 and 1996-1997, which were accordingly submitted by the KMC alongwith application on 14-3-1998, as such agreements (except for the year 1994-95) contained specifically Clause 6 (10), which is in the same language as was applied in the present octroi agreement signed by the appellants. Learned counsel further pointed out that the existing octroi agreement was executed in accordance with Rule 225 of the Octroi Rules 1964 read with Section 45 of the Ordinance; and that in the facts and circumstances of the case the High Court had erred in appointing official assignee and other person as receivers under Order 41, Rule 1 CPC.

Mr. Suleman Habibullah, Additional Advocate-General Sindh adopted the arguments of Mr. Abdul Hafeez Pirzada learned Sr. ASC and submitted that Respondent No. 1 was not an aggrieved person and the writ petition was not maintainable; that the octroicollection contract was duly entered into by the appellants and the Government functionaries, which was a valid contract and awarded in accordance with law; the impugned judgment of the High Court is not maintainable and the appeal may be allowed.

1. Mr. Abrar Hassan, learned counsel for K.M.C., during the course of arguments, was required to pin point from the record, as to whether the contract awarded to the appellants by the KMC, with the approval of the Government of Sindh, was in violation of the Ordinance and Octroi Rules made thereunder, and whether any violation of breach of contract was committed by the appellants, but he was not able to do so. However, he supported the impugned judgment of he High Court

.8. We have minutely considered the arguments of the learned counsel for the parties and gone through the material available on record. Respondent No., 1 is admittedly a resident of Hub. Neither he is a party to the Octroi collection contract between the appellants and the KMC, nor he has suffered any loss on the act of the appellants or the Government functionaries, though he may be a Journalist. The main prayer of the respondent in the writ -petition was that the jurisdiction of local council limits of Port Muhammad Bin-Qasim be included to the jurisdiction of the Karachi Municipal Corporation and such notification may be issued. It would be advantageous to refer relevant clauses of the Octroi Agreement, which reads as under:

"6(10). That the contractor shall collect octroi in the manner and at the rates prescribed in octroi rules, 1964, and octroi schedule 'B' as per Notification No. 1288/Gen/Oct/92, dated 6-6-1992 and as amended from time to time and shall recover octroiunder Schedule 'A' strictly for goods imported from abroad through Bin Qasim and aforesaid octroi posts as per Notification No. SO VI-5-1-92 dated 18.1.1993. In the event of any dispute over the assessment of octroi,description of goods, the matter shall be referred to the Director Octroi,whose decision shall be final and binding upon the contractor unless set aside by the appellate authority as specified in the octroi rules".

"6(11). That the amount charged in excess by the contractor or his authorised agent or any Municipal staff working under him shall be refunded to the party concerned by the contractor under the relevant rules, and under intimation to the Director Octroi, KMC".

"6(12). That the staff working on contractual octroi posts shall be deemed to be under the supervision of contractor from the date and time of taking over the charge of octroi posts. The staff shall'carry out all the legal obligations, instmctions/ordres of the contractor in discharge of their official duties".

"6(13). That the contractor shall reimburse to Government the following expenditure in respect of the staff working in the contracted octroi posts:

(a). £ay;and allowances as admissible under the rules, subject to revision from time to time.

(b) Recreation allowance or any other fringe benefits if allowed by the Government at any subsequent stage.

(c) Medical charges to tune of Rs. 9,00,000/-

(d) Actual expenditure on uniform of octroi staff.

(e) Leave salary and pension contribution as per Govt. of Sindh Finance Department Letter No. FD (SR-iii)/81-82 dated 2-03-1992, subject to revision from time to time.

(f) Contingent expenditure including rent etc., of all road/rail side octroi posts/staff'.

"6(14). That the contractor shall remit the salary specified in Clause 6(13) and 6 (13) (e) by 25th of each calendar month with effect from the date of taking over possession through pay order or in cash. However, the salary and other charges as determined by the octroi department for the month of June', 1998 shall be paid by 5th June, 1998. The charges specified in Clause 6 (13) (b), (c), (d) and (f) shall be paid by the contractor within seven days as and when demanded. Salary/allowances etc., of any employee (s) shall not be deducted by the contractor .from the monthly bills prepared c by the octroi department, KMC. Leave cases etc., shall be referred to the Director Octro i for necessary action under the rules". H6(19-A). That the contractor may recovery octroi under octroi schedule "A" on goods imported by sea/air and brought back to KMC octroi limits provided that prior permission is obtained from Corporation in this regard". This is no allegation that the appellants have violated the terms of the contract. The Secretary, Local Government Sindh, Administrator of Karachi Municipal Corporation as well as the Deputy Director Octroi filed their . parawise comments and counter affidavits in which they admitted the agreement executed between the appellants and the KMC, rather they supported the case of the appellants before the High Court of Sindh. The contract entered into the appellants and the KMC was a valid one, the appellants deposited the required money with the KMC and the appellants started to collect octroi fee according to Schedule 'A' sanctioned by the Government of Sindh. The existing contract was also affirmed by the Government of Sindh.

1. The perusal of the impugned judgment shows that it is based on conjectures and surmises and is not supported by necessary documents filed by the appellants and the Government functionaries. Respondent No. 1 is ,r not an aggrieved person as contemplated under Article 199 of the Constitution. Moreover, he had not exhausted available remedies to agitate the matter before the Government of Sindh. Be that as it may he may be free lancer journalist and filed petition as free lancer probono poublico. The learned High Court wrongly considered him as an aggrieved person and allowed the petition without sufficient cause, reasons or justification. According to the record, parawise comments and counter affidavits filed by the Government functionaries it is crystal clear that port Qasim is located within the Union Council of Dansano Chano which is a rural area and the octroi and other taxes are being charged by the Union Council Darsano Chaniestablished under the Ordinance and the prayer of the respondent that local council limits of port Qasim be included in the KMC by the writ issued by the High Court is not sustainable in law. Admittedly, it is not within the competence of the High Court to pass such administrative order, which is only prerogative of the concerned Provincial Government under the Ordinance and the Constitution.

For the facts, reasons and circumstances we are of the considered opinion that the contents involved in the writ petition were contractual obligation for which a valid contract was signed between the appellants and the KMC and there is no allegation of breach of the contract. The Government functionaries have stated that the contract was awarded to the appellants under the Act and the Rules with the approval of the Government of Sindh.

1. In is pertinent to mention here that during the course of arguments before the High Court, learned counsel for the appellants referred to Islamic Republic of Pakistan v. Muhammad Saeed (PLD 1961 S.C. 192), Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar (PLD 1965 S.C. 725), Lahore Improvement Trust v. Custodian of Evacuee Property (PLD 1971 S.C. 811), Khalil Khan v. Haji Nazir and 4 others (PLD 1997 S.C. 304) and Province of the Punjab v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 S.C. 351) regarding the maintainability of the writ petition and jurisdiction of the High Court as to where it may interfere and pass orders and the learned Division Bench did not consider the above mentioned case law, but relying on the cases of Government of Sindh v. SharafFaridi (PLD 1994 S.C. 105), Suleman Mala v. Karachi Building Control Authority (1990 CLC 448), Darshan Masih v. The State (PLD 1990 S.C. 513), Government of Sindh v. SharafFaridi (PLD 1994 S.C. 105) and Javaid Iqbal Abbasi & Co. v. Province oj Punjab (1996 SCMR 1433) accepted the writ petition. We have specifically perused the above-mentioned case law and found that the facts of the case law relied upon by the High Court are quite different and distinguishable from the cases of the appeals in hand, which, in any case, were not relevant for the disposal of the writ petition.

2. In view of what has been stated above, we allow these, appeals, set aside the impugned judgment and the amount lying with the Naazar of the High Court of Sindh, with profits so accrued may be paid to the appellants, with no order as to costs.

(A.A) Appeal accepted.

PLJ2002SC73

[Appellate Jurisdiction]

Present: iftikhar muhammad chaudhry, mian muhammad ajmal and

hamid ali mirza, J J.

FEDERATION OF PAKISTAN and others-Appellants

versus

AMMAR TEXTILE MILLS PVT. LTD. etc.-Respondents C.As. Nos. 44 to 46 of 2001 and 1205 of 1997, heard on 14.6.2001.

(On appeal from the judgment dated 2.10.2000 and 17.12.96 in ICA'sNos. 758, 759, 760 of 1999 and CP No. 1384/94)

(i) Import and Export (Control) Act, 1950—

—S. 33(l)-Constitution of Pakistan (1973), Art. 185--Notification in question, sought to be declared to be without lawful effect in respect of export authorization already allocated to petitioner for the specified year by invoking doctrine of Promissory Estoppel-Doctrine of Promissory Estoppel is an equitable principle evolved by Courts for doing justice and the same should not be given only limited application by way of defence-Notification in question, even if assumed to be time bound notification, would not mean that after issuing the same, hands of Government were tied and that it had no authority to change mode of allocating Textile Export Policy keeping in view developed facts and circumstances and also with a view to enforce such policy with more effective and greater result oriented manner-Federal Government while changing procedure/mode for allocating Textile quota exercised jurisdiction under para 13 of the impugned notification, its action, therefore, could not be annulled by invoking doctrine of Promissory Estoppel-Respondents have accepted entitlement of allocation of Textile Quota for specified year on the basis of impugned notification, their only difference was, however, on interpretation of first proviso of specified paras which objection was un- reasonable and not acceptable—Respondent have no grievance on promulgation of notification as also on its operation retrospectively-- Notification altering procedure of doing certain thing can operate retrospectively-No bar on Federal Government in issuing impugned notification in as much as, only mode of allocation has been changed by allowing Association of respondents either to opt for such entitlement for specified year on the basis of formula contained in impugned notification or on the basis of quantity of exporters by performance holders of previous year-Association being representative body had opted for allocation of quota on basis of performance of previous year-Such choice could not be declared illegal or without lawful authority on grievance of any individual. [Pp. 82 to 86] A, B, C, D, E & G

(ii) Constitution of Pakistan (1973)--

—Art. 185-Civil Procedure Code (V of 1908), OXXIII, R. 1-Withdrawal of earlier petition which had become infractions and permission to file fresh petition subject to condition that if any action was taken against respondents—No action was taken against respondents, yet they filed fresh application on the same cause of action which was not competent- Constitutional petition was thus, not competent. [P. 87] F

1992 SCMR 1652; 1997 SCMR 641; 1998 SCMR 1404; 1999 SCMR 412; 2000 SCMR 112; 2001 PTD 1829; PLD 1963 Peshawar 47; PLD 1970 SC 439; 1992 SCMR 1652; 1997 SCMR 641 and 1998 SCMR 1404 ref.

Mr. Khalid Anwar, Sr. ASC and Mr. M.A. Zaidi, AOR for Appellants (in Civil Appeals Nos. 44 to 46 of 2001).

Sh. Abdul Manan, ASC and Mr. Mehr Khan Malik, AOR for Respondent (in civil Appeals Nos. 44 to 46 of 2001).

Mr. Haider All Pirzada, Sr. ASC and Mr. Abdul Aziz Khan, AOR (absent) for Appellant (in C.A. No. 1205/1997.

Mr. M. Nawaz Bhatti, Dy. A.G., Ch. Akhtar Ali, AOR (Absent), and Mr. Ahmed Ullah Farooqi, AOR (absent) for Respondent.

Date of hearing: 14.6.2001.

judgment

Iftikhar Muhammad Chaudhry, J.-Civil Appeals Nos. 44 to 46 of 2001 have been instituted by leave granting order dated 18th January 2001 against the judgment of Lahore High Court whereby ICAs Nos. 758 to 760 of 1999 filed by appellants were dismissed maintaining.common judgment of a learned Single Judge of the High Court dated 7th July 1999 passed in writ petitions instituted-by respondents. Whereas Civil Appeal No. 1205/1999 is directed against judgment dated 17th December 1996 passed by High Court of Sindh Karachi whereby C.P. No. D- 1384/1994 of appellant Rajwani Apparel (Pvt.) Ltd. Has been dismissed.

1. Facts of the case are that respondents instituted Writ Petition No. 7692 of 1999 against the appellant and others in the Lahore High Court, Lahore seeking declaration that Notification SRO No. 228 (D/94 dated 8th March 1994 is void ab-initio 'and of no legal effect and the respondents (appellants) be directed to act strictly in accordance with Notification SRO No. 166 (D/92 dated 7th March 1992 for the entire term of the said Notification which expired on 31.12.1996. It was further prayed that without prejudice to the above prayers quoted hereinabove the said Notification be declared to be without lawful effect in respect of the export authorization already allocated to the petitioner for the year 1994.

As per the terms of Notification dated 7th March 1802 allocation of export Quota to performance holders was to be made in the ratio of 50: 50 on the basis of quantity and value. Initially this Notification was issued for implementation of bilateral Textile agreement from 1.1.1992 to 31.12.1996. The detailed procedure and Rules were provided thereunder including the Authority of the Federal Government to review the Policy of Textile and Export Authorization and make suitable changes therein as may be •necessary. Later on exercise of such Authority the Federal Government in exercise of power conferred upon it by sub-section (1) of Section 33 of Import and Export (Control) Act, 1950 (hereinafter referred to as the "Act") and in suppression of earlier SRO No. 166 (I)/92 changed the procedure (Basis) of entitlement and allocation of Textile Quota vide impugned Notification SRO No. 288 (1)94 in the following terms:-

"2. Basis of entitlement and allocation.-() The performance holders will receive allocation of Quotas on the basis of performance holder's quantity exported under each category during the preceding year to specific Quota country: Provided that the entitlements for the year 1994 will be determined either on the basis of provisions contained in SRO 166 (D/92 dated 7th March 1992 or on the basis of quantity exported by the performance holders in 1993 if the association concerned with a category so .opt: Provided further that where non-Quota Textile product(s) is brought under restraint, the entire ceiling will be allocated to the performance holders on the basis of the quantities (with no premium for value) exported by them in the twelve months preceding the date of issuance of the consultation call: Provided further that in respect Of the categories the performance of which is much less than the Quota ceiling, necessary amount of Quota may be allocated through auction.

(2) to (8)........... "

1. The respondents M/s. Ammar Textile Mills. (Pvt.) Limited challenged latter SRO in Writ Petition No. 8251/1994. This petition remained pending upto 2nd of April 1999 when it was declared to have become infructuous by lapse of time. However, in the order an observation was made that the petitioner can file a fresh petition in case any action is taken. It appears that subsequent thereto Civil Misc. No. 1 of 1999 was filed in the Lahore High Court which was disposed of by means of following order:-

"The Notification in question has since long expired and as such this petition has become infructuous. Learned counsel for the petitioner, however, says that the petitioner has acquired certain rights under the lapsed Notification which are enforceable even now. That aspect of the petitioner files a fresh petition for which it has already been granted permission. Disposed of accordingly". It seems that petition Bearing No. 7692 of 1999 was filed on 28th April 1999 wherein following explanation was offered for instituting fresh petition:- "11. That the impugned Notification was challenged in Writ Petition No. 8252/1994 which came up for hearing on 18.7.1994 when status quo was granted to the petitioner. This was later on confirmed on 25.7.1994 (orders were passed in W.P. No. 8251/1994 in which the orders were passed.) That without notice to the undersigned counsel the earlier petition came up for hearing when the titled case was disposed of as having become infructuous. This Hon'ble Court, it is submitted with respect, was not properly assisted on the said date of hearing. The entitlement of the petitioner for the years 1994 to 1996 was under challenge in the titled petition. Lapse of the impugned Notification did not affect the entitlement of the petitioner for the years 1994 to 1996. Had the petition been allowed the increase in Quota would accrue to the petitioner and would become a part of its entitlement for years to come. Therefore, the grievance of the petitioner is still alive, hence the titled petition in the light of the orders dated 2.4.1999 and 19.4.1999 passed in earlier writ petition."

1. Learned High Court allowed the writ petition alongwith similar petitions which has given rise to C.A: Nos. 45 and 46/2001 vide order dated 7th July 1999. Being dis-satisfied from this order appellant preferred ICA on 31st August 1999 which has been dismissed vide impugned order dated 22nd October 2000.

2. At this juncture it is to be noted that on identical issue C.P. No D- 1384/1994 was instituted before High Court of Sindh on behalf of Rajwani(Pvt.) Ltd. Vs. Government of Pakistan and others which was also dismissed on 16th December 1996. This order has been challenged in Civil Appeal No. 1205/1997, which is being disposed of by means of instant judgment as well because identical questions of facts and law are involved in all these cases.

3. Mr. Khalid Anwar, learned Sr. ASC appeared on behalf of appellants in Civil Appeals Nos. 44 to 46 of 2001 whereas Sheikh Abdul Manan, ASC and Mr. Mehr Khan Malik represented respondents, Mr. Haider Ali Pirzada learned ASC appeared for appellants in C.A. No.1205/1997 and Ch. Akhtar Ali AOR and Mr. Muhammad Nawaz Bhatti, DAG represented respondents.

\

1. Learned counsel for appellants contended that no vested right had accrued to respondents to claim export Quota for the year 1994 under SRO 166 (D/92 dated 7th March 1992 because the Government of Pakistan by issuing SRO No. 228 (I)/94 dated 8th March 1994 had only modified the procedure for allocating export Quota in exercise of the powers conferred upon it under Para 13 of SRO dated 7th March 1992. He further submitted that export Quota was to be allocated on the basis of criteria laid down in clause 2 (1) of SRO dated 8th March 1994, through association concerned. Therefore, individual exporters had no authority to adopt a different mode (procedure) for allocation of export Quota other than what was provided in this para. According to him respondents with the connivance of subordinate staff of Director Textile Quota Management Directorate arranged entry dated 31st March 1994 in the Pass Books on the basis of 50: 50 of value of the goods on the basis of quantity full knowing that Notification/SRO 166(I)/92 has been superseded by SRO No. 228(I)/1994 with effect from 8th March 1994. He further stated that by getting such entries made in Pass Book the respondents did not acquire any vested legal right to derive any benefit from such entries because such allocation has been shown as of provisional nature therein. He further argued that in terms of Para No. 13 of SRO 166 (l)/92 the Federal Government had the authority to make suitable changes in Policy of Export Quota as such the principle of Promissory Estoppel will also not be applicable in the instant cases.

2. On the other hand Sh. Abdul Manan, learned ASC contended that according to first proviso to para 2(1) of SRO 228(I)/94 dated 8th March 1994 the exporters individually had a choice to exercise option for getting Textile Quota for the year 1994 either under SRO 166(I)/92 dated 7.3.1992 or to wait till the decision of the Association concerned to opt for allocation of Textile Quota collectively on behalf of the members of the Association in view of the new dispensation under SRO 228(I)/94 dated 8th March 1994. To elaborate his arguments he contended that respondents exercised their right for the allocation of Textile Quota on 31st March 1994 whereas resolution was passed by the Association on 2nd April 1994, as such even if viewed from this angle the respondents had opte for allocation of Quota prior to passing of the resolution by the Association for the year of 1994 under Notification dated 7th March and this fact has not been denied by Appellant No. 2 in the counter affidavit filed before the High Court wherein in unequivocal terms department maintained that export authorization on the basis of 50: 50 quantity and value as laid down in SRO 166(I)/92 dated 7th March 1992 was provisionally allowed to all the performance holders including the petitioners (respondents) subject to any change in the light of Policy and necessary endorsement made in this behalf in all Quota pass books was acknowledged, therefore appellant department is estopped by its conduct to argue that allocation of Textile Quota to the respondents for the year 1994 was subject to exercise of option by the Association collectively either to avail such Quota under SRO of 1992 or SRO of 1994. Learned counsel emphasized that as respondents have shown remarkable performance in, the export in 1993, therefore, they were entitled for authorization of Textile export Quota on the basis of formula provided in SRO dated 7th March 1992 because it has created a vested right in their favour. According to him even otherwise respondents are doing the business dependently and their rights and obligations cannot be subject to the approval of the Association and they cannot be deprived from the benefits for which they are otherwise entitled.

3. Learned counsel Mr. Haider Ah Pirzada subscribed to the view point advanced by Sh. Abdul Manan learned ASC and further added that earlier SRO No. 166(I)/92 dated 7th March 1992 was a time bound Notification as it has to remain in field from 1st January 1992 to 31st January 1996 and appellant had acquired a_vested right to claim allocation of Textile Quota on the basis of 50: 50 of quality and value for the year 1993 under this Notification and Notification SRO 228(I)/94 dated 8th March 1994 which impinges legal rights of the parties cannot operate retrospectively. However, competent authority should have applied it after the expiry of year 1994. In this behalf in 1993 appellant made remarkable progress in the export for 1993 resultantiy as per final attestation in the pass book (issued by Pakistan Readymade Garments Manufacturer and Exporters Association) appellant was finally held entitled for 14262 units of export on 12.4.1994 but on account of issuance of subsequent Notification SRO No. 228Q/94 dated 8th March 1994 Quota of the appellant was reduced to 11282 units on account of which appellant had sustained serious set back in the business because it has made adequate arrangement to show increased production for the year of 1994, as such Notification dated 8th March 1994 may be declared inapplicable to the extent of Textile export Quota for the year 1994. He further stated that the General Body of the Association passed resolution on 26th April 1994 contrary to Section 159 read with Section 160 of the Companies Ordinance 1984 which lays down procedure for holding special meetings of the members etc.

10.' We have heard parties counsel at length and have considered their arguments and examined implication of Para No. 13 of SRO No. 166(I)/92 dated 7th March 1992 as well as relevant parts of SRO 228(I)/94 dated 8th March\ 1994. It may be noted that impugned Notification has introduced procedure for management and allocation of Textile Quota in suppression of the former SRO No. 166(I)/94 dated 7th March 1992. Thus it would mean that on issuance of latter Notifieation earlier Notification stand repealed. Now question is as to whether the Federal Government was empowered to do so or otherwise. In this behalf Reference to Para No. 13 of the Notification dated 7th March 1992 would reveal that the Federal Government had retained that authority to review that Policy of Textile and clothing export authorization and make suitable changes therein as may be necessary. Perhaps respondents in Appeals Nos. to 46/2001 were fully aware about this provision in the Notification and due to this reason before learned Single Bench and ICA Bench of the High Court they did not object on the implementation of the Notification SRO 228(I)/94 dated 8th March 1994 and accepted without any reservations following findings of learned ICA Bench of Lahore High Court. "From the record it is apparent that so far as the respondents are concerned the Quota for the year 1994 was allocated to them on 31.3.1993 before the association opted to be governed by the new dispensation. This allocation was in consonance of para 2 of the Notification dated 8.3.1994 which itself provided that so far as the entitlement for the year 1994 was concerned it would be determined either on the basis of the Notification dated 7.3.1992 or on the basis of quantity exported by. the performance holders in 1993 if the association concerned with the category so opted. Before the option could be exercised by the Association the Quota for the year 1994 was allocated by the Export Promotion Bureau and necessary endorsement was made in the pass book maintained for the purpose."

1. Learned counsel for appellants urged that respondents are estopped in view of above observations of learned ICA Bench to set up altogether a new case on the strength of the argument which have been raised on their behalf namely that their entitlement for export Quota will be determined on the basis of 50: 50 quality and value as per Notification dated 7th March 1992 for the year 1994 and as far as Association is concerned it has no say to control the individual desires of the members of the Association by exercising option that entitlement of Textile export for the year 1994 onwards be determined in view of performance of Exporters for 1993 as per Notification dated 8th March 1994. It may be noted that Sh. Abdul Manan learned counsel appearing for the respondents in these appeals could not counter this argument effectively and he kept on impressing his arguments noted hereinabove. Such situation brings us to concentrate on first proviso to Sub-Para (1) of Para 2 of SRO No. 166(I)/92 dated 7th March 1992. Its careful reading persuades us to hold that there is no difficulty to interpret or understand it First of all it may be seen that Notification dated 8th March 1994 was issued in suppression of the earlier Notification dated 7th March 1992, therefore, in very clear terms it can be said that for determining entitlement for allocation of Textile export Quota for the year 1994 Notification dated 7th March 1992 was not in existence w.e.f 8.3.94. Thus procedure for the allocation of the Quota for 1994 has to be followed as per latter Notification. In view of such situation task of interpreting first proviso to Sub-Para (1) of Para No. 2 has become easier following the principle of interpretation of statutes that each word employed therein has to be read and understood in the ordinary meaning without assigning special meanings to any part thereof to avoid inconsistency in its different parts and also to ensure harmony therein. As per procedure laid down in Proviso I Sub-Para (1) Para 2 of the Notification dated 8th March 1994 entitlement for Textile export Quota has to be determined either on formula of 50: 50 quality and value as per Notification dated 7th March 1992 or on the performance of 1993 however subject to exercise of option by the Association collectively on behalf of its members and not by individuals themselves independently. Because by reading this proviso in ordinary manner it can be inferred that competent authority had bestowed the powers of making selection to adopt a procedure for determination of export Quota to the Association alone and for making such selection between two modes the word used 'or' is not to be read disjunctively but conjectively qua the Authority of Association in making selection of any of the two methods noted therein. Therefore, after promulgation of latter Notification the authorities of Export Promotion Bureau have no jurisdiction to make entries in the pass books of the Textile exporters regarding their entitlement after 8th March 1994 in view of the earlier Notification because it was no more holding the field. In this behalf it was incumbent upon them to have waited for collective decision of the Association. Thus it is held that any entry made in the Pass Books of the Textile exporters after the promulgation of latter Notification dated 8th March 1994 was without lawful authority and on basis whereof no right is conferred upon those exporters who have managed favourable entries in this behalf. It is also to be noted that in the case of Ammar Textile Mills provisionally entry was made in its Pass Book but even if it had been finally entered therein it would have not changed the position in its favour for the reasons assigned hereinabove that after 8th March 1994 the former Notification dated 7th March 1992 was not holding the field.

2. Now adverting to most important aspect of the case namely whether in terms of Clauses 13 and 14 of SRO dated 7th March 1992 the Federal Government has rightly changed the procedure for allocating Quota by issuing SRO 228'(I)/94 dated 8th March or on account of the Principle of Promissory Estoppel it was debarred to review the earlier Policy because allegedly vested right had created in favour of respondents to claim entitlement on formula of 50: 50 quality and value. In respect of this proposition both the parties have advanced pro and contra, arguments. However, reliance on the precedents dealing with the subject was common. As it has been observed in para supra that under Clause 13 of the Notification dated 7th March 1992 the Federal Government was competent to review the Policy of Textile and clothing export authorization and make suitable changes, therefore, it is to be seen that due to availability of such powers Federal Government was estopped to make procedural changes in the earlier Policy in view of doctrine of Promissory Estoppel. This Court in the case of Pakistan through Secretary Ministry of Commerce and two others V. Salahuddin and three others (PLD 1991 S.C. 546) has laid down following limitations for invoking doctrine of Promissory Estoppel:--

"(1) The doctrine of Promissory Estoppel cannot be invoked against the legislature or the laws framed by it because the legislature cannot make a representation;

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

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

(4) 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 property or the reputation of the party invoking it; and

(5) 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." Above noted limitations were reiterated by this Court in the cases of M/S. Army Welfare Sugar Mills Limited and others V. Federation of Pakistan (1992 SCMR 1652), M/s. Gadoon Textile Mills Limited and 814 others. V. WAPDA and others (1997 SCMR 641), M/s. M.Y. Electronics Industries (Pvt.) Limited through Manager V. Government of Pakistan through Secretary Finance and two others (1998 SCMR 1404), Collector of Customs and others Vs. Ravi Shipping Limited and others (1999 SCMR 412), Government of Pakistan through Ministry of Finance and Economic Affairs and another V. Fecto Belarus Tractors Limited (2000 SCMR 112). Against this judgment a review petition was filed which has been decided and judgment is reported in 2001 PTD 1829. It may be noted that in the case of M.Y. Electronics (ibid) besides reiterating limitations before applying doctrine of Promissory Estoppel in the case of Federation of Pakistan through Ministry of Commerce etc. It was further observed that "the doctrine of Promissory Estoppel is founded on equity. It arises when a person acting on the representation by the Government or a person competent to represent on behalf of the Government, changes his position to his detriment, takes a decisive step, enters into a binding contract or incur a liability. In such case, the Government will not be allowed to withdraw from its promise or representation. However, a general promise without any time limitation cannot bind the Government for all times to come." In view of such principle learned counsel for the respondents Sh. Abdul Manan ASC impressed upon the application of doctrine of Promissory Estoppel against the Government on the strength of arguments that Notification dated 7th March 1992 was a time bound instrument and on account of the promises held out by it to grant Textile Export Quota to the respondents on the basis of 50: 50 quality and value made huge investment to achieve the object but due to all of sudden change in its Policy vide Notification dated 8th March 1994 respondents have not only suffered huge financial losses but have exposed themselves before the parties outside the country with whom promises were made to supply them Textile in the year 1994 on large scale comparing to 1993.

1. Before attending to his arguments we consider it appropriate to note down following observations from the reviewed judgment of this Court in the case of Fecto Belarus Tractor Limited. "It will be necessary to touch the true concept of the doctrine of Promissory Estoppel. Before proceeding further this doctrine has been variously called 'Promissory Estoppel', 'requisite estoppel', 'quasi estoppel', and 'new estoppel'. It is a principle evolved by equity to avoid1 injustice and though commonly named 'Promissory Estoppel', it is neither in the realm of contract nor in the realm of estoppel. The true principle of Promissory Estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effects legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. The doctrine of Promissory Estoppe.1 need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the Courts for doing justice, and there is no reason why it should be given only a limited application by way of defence. There is no reason in logic or principle why Promissory Estoppel should alsox'not been available as a cause of action,"

2. In the above para the observation "that doctrine of Promissory Estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the Courts for doing justice and there is not reason why it should be given, only a limited application by way of defence" persuades us to hold that even if it is /(presumed for sake of arguments that Notification dated 7th March 1992 was . a time bound Notification but still it would not mean that after issuing it the hands of the Government were tied and it had no authority to change mode of allocating Textile Export Policy keeping in view the developed facts and circumstances and also with a view to enforce it with more effective and greater result oriented manner. There is no doubt that in time bound Notification at times it becomes difficult for the competent authority to rescind it before the expiry of such period particularly when claim of vested right is pleaded. But the Government can overcome to such hurdle by exercising authority of review of the Policy if the same has been retained by it in the same Notification simultaneously caring for the rights of the beneficiaries. It may be noted that respondents were fully aware about clause 13 under which the Policy of Textile and clothing export authorization can be reviewed for the purpose of making suitable changes therein as it may be necessity. It is to be observed that learned counsel for appellants at the time of leave granting stage alleged that on account of over-invoicing and unfair practices on the part of some of the exporters adversely affected the image of the Federation of Pakistan which necessitated for the revision of the Policy by issuing SRO No. 228(1)94. Such allegations have not been converted by the respondents during arguments of instant appeals. Perhaps we would have agreed with the learned counsel for respondents that due to change in the time bound Policy the respondents have failed to fulfil their promises which they have made with the importers outside the country if they have placed documentary evidence on record including L.Cs. etc. but in absence of such documents it is not possible for us to subscribe to his view point. Therefore we are of the opinion that in changing the procedure mode for allocating Textile Quota Federal Government exercised jurisdiction under Section 13 of the Notification dated 7.3.1992, as such action cannot be annulled by invoking doctrine of Promissory Estoppel because respondents failed to cross Limitation No. 2 as has been laid down in the case of Pakistan through Ministry of Commerce (Supra). Besides it change in the procedure for allocating Textile Quota cannot be questioned by individuals because they have no right to direct the Government to adopt a procedure which suits to them.

3. It is also contended that Government is legally estopped to change the Policy because by showing remarkable performance for the year 1993 respondents have acquired a vested right to claim Quota of Textile has become their property as such they cannot legally be deprived from the same by issuing SRO 228(I)/94 dated 8th March 1994 unless a legislation is issued because they enjoy guarantees provided under Sections 36, 8 and 10 of Protection of Economic Reforms Act, 1992. Reliance in this behalf was laid on PLD 1965 (W,P.) Peshawar 47, PLD 1970 S.C. 439, 1992 SCMR 1652, 1997 SCMR 641, and 1998 SCMR 1404.

4. On the other hand learned counsel for appellants was of the view that Federal Government has not deprived espondents form their any vested right which they have acquired on basis of the formula envisaged in Notification dated 7th March 1992 for the year 1994 but it only changed the mode (procedure) of its allocation to achieve better results in International Market in the trade of Textile.I The respondents have accepted the entitlement of allocation of Textile Quota for the year 1994 on the basis of the Notification dated 8th March 1994 as it is indicated from para 8 of the impugned judgment but the P only iffefence is that interpretation being placed by them on first proviso of sub-para (1) of para 2 being unreasonable is not acceptable otherwise the respondents have no grievance on promulgation of the Notification as well as on its operation retrospectively.

5. There is no doubt that on the basis of better performance for the year 1993 respondents have acquired a right to claim their proportionate share in export Textile Quota for the year 1994. No such right has been denied to them except changing procedure of allocation of Quota of Export Textile through respective Associations thereby debarring individual exporters to select the mode of allocation of Quota for the year 1994 in terms of first proviso to sub para (1) of para 2 of Notification dated 8th March 1994. The majority of members of Association have accepted the decision of the Association for allocation of Textile Quota to them for the year 1994 on the basis of performance of 1993 without pleading that their vested rights have been denied to them. It is the case of the exporters i.e respondents and appellants Rajwani Apparel (Pvt.) Ltd., that because they have acquired a vested right on basis of Notification dated 8th March 1994, therefore, by suppressing Notification dated 7th March 1992 they cannot be deprived of their valuable rights. In this behalf it may be noted that exporters have not challenged the vires of last mentioned Notification in writ petitions except agitating that they are entitled for allocation of Textile Quota for 1994 on the basis of formula 50: 50 quantity and value and not on basis of performance in the year 1993 as it is evident from the trend of their arguments particularly in the case of M/S. Ammar Textile Mills. Relevant para from the judgment reproduced hereinabove can be referred in this behalf. The case of the exporters particularly as it has been argued by Mr. Haider Ali Pirzada that Notification dated 8th March cannot be applied retrospectively because then it would tantamount to denying their vested right. In this context it may be noted that in the judgment relied upon on their behalf in the case of Messrs. Mardan Industries Ltd. Sakhakot, Malakand Agency and another V. Government of Pakistan and another (PLD 1965 (W.P.) Peshawar 47) it was held that the subordinate delegated Legislature by way of Notification is under Constitutional disability to make Notification which is retrospective in operation so as to take away or impair vested rights. In the case of Collector of Central Excise and Land Customs and 3 others V. Azizuddin Industries Ltd. Chittagong (PLD 1970 S.C. 439) the principle laid down by learned Peshawar High Court was confirmed by holding that if a person had acquired a vested right of exemption from the levy of excise duty on all the good produced or manufactured by it for a period of four years under Notification SRO 35(R)/61 of the Central Government that vested right could not, therefore, be taken away by an executive action. In case of M/S.Army Welfare Sugar Mills Limited and others V. Federation of Pakistan (1992 SCMR 1652), M/s. Gadoon Textile Mills Limited and 814 others V.WAPDA and others (1997 SCMR 641), M/s. M.Y. Electronics Industries (Pvt.) Limited through Manager V. Government of Pakistan through Secretary Finance and two others (1998 SCMR 1404) this principle was reiterated and confirmed. But it is to be seen that in all these cases mostly proposition came under consideration with reference to exemption of Central Excise Duty or the Customs Duty etc. as the claimants were of the view thaton fulfilling certain conditions they have acquired a right of exemption of any of those duties, therefore, by issuing a subsequent Notification such exemption cannot be withdrawn because in that case in terms of money they have to suffer losses whereas in the instant cases no financial burden has been increased upon the, Textile exporters except changing the mode (procedure) of allocation of Quota as it has already been observed hereinabove coupled with the fact that they themselves have not challenged the vires of the Notification dated 8th March 1994 except praying that as per first proviso to sub-para (1) of para 3 of the Notification they be given choice

— in individual capacity to seek allocation of Textile Quota on the basis of 50: 50 formula envisaged in the Notification dated 7th March 1992. Therefore, in view of their such stand the arguments, which are now being advanced on

— their behalf that Notification dated 8th March 1994, shall not take effect retrospectively has no substance because a Notification altering procedure off' doing certain thing can operate retrospectively. To strengthen thia£ arguments reliance can be placed on Malik Gul Hassan Khan V. Allied Banki of Pakistan (1996 SCMR 237). It is also to be observed that the exporters could have put up their cases in a more better manner if the Federal Government while issuing Notification dated 8th March 1994 in exercise of its jurisdiction under sub-section (1) of Section 3 of the Import and Export 'Control Act, 1950 had withdrawn the allocation of Textile Quota from private sector and have deprived the exporters individually and collectively from their respective proportionate share in export of the Textile. But in the instant cases except changing the mode of allocation of Textile Quota no right of the exporters has been denied. So far as the authority of Government to amend, vary or rescind etc. a Notification is concerned that cannot be denied in view of Section 21 of the General Clauses Act.

1. Thus for the above reasons we are of the considered opinion that there was not bar upon the Federal Government in issuing Notification No. 228(I)/94 dated 8th March 1994 because it has been issued in exercise of — powers conferred upon it under para 13 of earlier Notification No. 166(I)/92 dated 7th March 1992 and the respondents/appellants (exporters) have not been deprived from their vested right because by issuing Notification dated

8th March 1994 only the mode of allocation of the Quota to the Textile exporters has been changed by allowing the Association either to opt for such entitlement for the year 1994 on the basis of formula contained in Notification SRO No. 166(I)/92 dated 7th March 1992 or on the basis of the quantity of exporters by the performance holders in 1993 and as the Associations being representative bodies in their meetings have held for allocation of Textile Quota on basis of performance of 1993, therefore, on behalf of some of the exporters (respondents) and appellants in Civil Appeal No. 1205 of 1997 the Policy of the Government contained in Notification dated 8th March 1994 for the export of Textile cannot be declared illegal or without lawful authority nor individual exporters can attach legitimate expectancy that Textile Quota for the year 1994 must be allocated to them in view of the formula envisaged in Notification dated 7th March 1992. For an added reason that subsequent Notification dated 8th March 1994 has been issued in suppression of earlier Notification and respondents have not challenged the vires of the subsequent Notification.

1. There is yet another important aspect which has engaged our serious consideration namely that Writ Petition No. 7692/1999 covered by Civil Appeal No. 44 of 2001 was filed on 28th April 1999. Prior to it Writ Petition No. 8251/1994 was filed but the same was disposed of alongwith two other Writ Petitions having become infructuous by lapse of time. However, petitioner was allowed to file fresh petition in case any action is taken. Later on the respondents in Writ Petition No. 8251 of 1994 filed C.M. No. 1/1999. This application was disposed of with the observations that permission has already been granted to file fresh petition. In pursuance of these orders respondents M/s. Ammar Textile Mills and others filed fresh petitions knowing well that no permission was accorded to file fresh petitions. However, in the writ petitions which has given rise to instant proceedings only reason assigned was that proper assistance was not provided to the Court at the time when the writ petition was disposed of as having become infructuous. Although learned ICA Bench has not attended to this aspect of the case in the impugned order but leave has been granted to examine this aspect of the case as well.

Learned counsel for appellants contended that Notification SRO 288(I)/94 dated 8th March 1994 remained in field upto 7.3.1994 therefore any cause of action if at all accrued to the respondents it had extinguished on the expiry of the Notification, therefore, the writ petitions which have given rise to instant proceedings have been filed without cause of action. As such it is liable to be dismissed on this score as well in view of the principle of res judicata as envisaged under Section 11 CPC.

Learned counsel Sheikh Abdul Manan on the other hand contended that objection raised in this behalf may not be entertained because no such argument was raised before ICA Bench. However, according to him causes of action is available to the respondents because even now their grievances can be redressed on the basis of the Notification dated 7th March 1992 by allocating them Quota on the Policy contained therein. He further stated that as the cases were not decided on merits, therefore, petitions would not be barred by principle of resjudicata. In our opinion as leave to appeal has been granted to examine this aspect of the case as well, therefore, appellants can argue this question as well. But instead of determining the maintainability of the petitions under Section 11 CPC we are of the opinion that because petitions filed by the respondents were dismissed as having become infructuous and permission was accorded to file fresh petitions subject to the condition that if any action is taken against them and as there is no indication that any action was taken against them, therefore, petition was not competent. Besides it no permission was accorded to file fresh petitions on the same cause of action but surprisingly the order dated 2nd April 1999 was got modified by the respondents by moving Civil Misc. Application No. 1 of 1999 wherein it was observed that permission to file fresh petition has already been granted whereas factually no such permission was ever granted. As such in our opinion these observations have been made by learned Judge in chambers of Lahore High Court on account of non-providing of proper assistance. Be that as it may, even if the order dated 2nd April 1999 is construed in favour of respondents to hold that permission was accorded to file fresh petition still the explanation offered in the petition is not sufficient to maintain this petition on the cause of action which in fact has extinguished for the reason that Notification dated 8th March 1994 in which only the mode of allocation of Textile Quota has been changed has itself expired on 3.7.1994, therefore, for want of cause of action fresh petition after about 5 years was not maintainable in law.

1. Now turning towards the argument of Mr. Haider Ali Pirzada learned ASC that Association had not convened special meeting to discuss new Textile Policy contained in Notification dated 8th March 1994 according to Section 160 (1) (b) of the Companies Ordinance it is suffice to observe that this arguments needs no discussion for the reason that there is no denial of the fact that notice dated 16th April 1994 for convening special meeting to discuss the details of the New Textile Quota Management Policy and two other items was duly received by them. Accordingly meeting so held was attended by appellant and other members and through balloting Association opted for allocation of Textile Quota on the basis of performance of 1993. As such objection being without substance is accordingly repelled.

Thus for the foregoing reasons Civil Appeals Nos. 44 to 46 of 2001 are allowed consequently impugned orders dated 2.10.2000 is set aside. Whereas Civil Appeal No. 1205 of 1997 is dismissed. Parties are left to bear their own costs.

(A.A) Order accordingly.

PLJ 2002 SC 88 [Appellate Jurisdiction]

Present: muhammad BASHiR JEHANGiRi, muhammad arif and rana bhagwandas, JJ.

Mst. NAHEED RASHEED and 68 others-Petitioners versus

FEDERATION QF PAKISTAN through Secretary Ministry of Education,'Islamabad and another-Respondents

C.P.No. 754 of 2000, decided on 7.9.2001.

(On appeal from judgment dated 2.3.2000 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No. 1062 of 1999)

Constitution of Pakistan (1973)--

—Art. 185(3)Right of Government to make appointment of teaching staff on basis of advertisement was challenged by adhoc employees on the ground that they having served in that capacity were entitled to be regularized first—Petitioner's plea was repelled on the ground that they were also entitled to apply and even if they had crossed age limit set out in said dvertisement, they would be considered sympathetically and that their services would fall for consideration on the basis of merit and fairplay-Respondents had given chance to all adhoc employees to apply for regularization of their services but petitioners did not apply for consideration of their respective cases for absorption in respective disciplines-Petitioners could not be heard complaining that respondents in the past had been working to the prejudice in as much as, such plea was not made subject of proceedings in writ petition7-Past and closed transactions in relating to service structure of respondents could not be uestioned as no grievance was brought before Courts in that respect nor mala fide of such officers was brought before appropriate forum-­ Petitioners persistence in asking for their regularization in service against advertised posts prior to those who had applied for the same under advertisement of specified date cannot be allowed in absence of any preferential treatment partaking of entitlement of petitioners for such a course. [Pp. 94, 95 & 96] A, B, C, D & E

Sahibzada Ahmad Raza Khan Qasuri, ASC and Ch. Karam Ellahi Bhatti, AOR (absent) for Petitioners.

Mr. M. Nawaz Bhatti, D.A.G., Mr. Salahuddin Khan, DAG with Ch. AkhtarAli, AOR for Respondents.

Dates of hearing: 13 and 14.6.2001.

judgment

Muhammad Arif, J.--Leave to appeal is sought by the petitioners against judgment dated 2.3.2000 passed by a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi whereby petitioners' (and others') Writ Petition No. 1062 of 1999 alongwith 8 other Writ Petitions of the same year were disposed of together. Writ Petition No. 1062 of 1999 was brought by as many as 161 individuals but only 69 of them have filed the instant petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973'.

1. The • petitioners and others had been working in various Educational Institutions under the control and management of the Federal Directorate of Education, Islamabad, hereinafter referred to as the FDE, since the year 1987 in various capacities on contract, ad hoc, short term, daily wages and work charge basis. The FDE advertised 733-posts of teaching and 438 of non-teaching staff vide advertisement dated 2.4.1999 (copy available at page 55 of the Paper Book). In all the 9 Writ Petitions before the High Court the right of the Government to make appointment of teaching staff on the basis of advertisement dated 2.4.1999 was challenged on the ground that they had been in service since the year 1987; had rendered meritorious services to the Government and had acquired vast and rich experience during the interregnum. Inviting applications from the general public/open market was highly unjust on the part of the Government in that the above course is tantamount to disregarding their rights in that behalf. Briefly put the case before the High Court was that the Government can ill- afford to make appointments pursuant to advertisement dated 2.4.1999 without regularizing the services of the petitioners on permanent/regular basis, earlier.

2. The FDE took the stand that Government had the absolute right to make appointment of teachers pursuant to the advertisement dated 2,4.1999 and that no clog could be placed on its such powers particularly when it had held the petitioners eligible to apply for the posts advertised. This course, it was maintained by and on behalf of the FDE, was neither derogatory to the rights of the petitioners nor could be termed as discriminatory. More so when the advertisement itself provides for equal opportunity to both: (i) the petitioners and (ii) the prospective applicants from the general public.

3. The learned Judge in Chambers took notice of......... (i) the plea of petitioners that the upper age limit for filling of vacancies was fixed at 25 years and most of them had crossed the same ; (ii) the FDE was not pushed for having any regard for the services rendered by the petitioners over the years ; (Hi) the petitioners were entitled to be given preference over the outsiders...................................... AND (iv) the pleas of the FDE to the effect that: (a) those who had crossed the upper age limit fixed in the advertisement could also apply for the posts advertised and that their cases shall be considered sympathetically and (b) the 'Revised Policy' also provides for five marks to each petitioner for every year of service rendered and three marks for each year of service to those who had rendered service with the 'Provincial Institutions'............................................... to come to the conclusions that he does not feel persuaded to question the legality and the propriety of the recruitment policy of the Government (a) as advertised on 2.4.1999 and (b) as revised later on. The following reasons found favour with the learned Judge in Chambers for coming to the above conclusions.

"(i) that the Constitution of the Islamic Republic of Pakistan, 1973 provides for separation of powers between the Judiciary, Executive and the Legislature. Each of the three Organs of the State machinery is sovereign in the sphere allotted to it and the other Organ cannot assume unto itself any right to interfere in the affairs of the other. Viewed in this perspective, framing of the Recruitment Policy and giving affect to it is an executive function which falls squarely within the sphere allotted to the Government. No interference can be made by this Court, so long as the Government remains within the sphere allotted to it by the Constitution;

(ii) that the petitioners could only question the legality and the propriety of the right of the Government to make the recruitment, if their rights had been ignored and discriminated against. As here in-above shown, the Federal Directorate of Education in the Recruitment Policy announced by it vide the advertisement dated 2.4.1999 has made therein a provisions that the petitioners can also apply for the posts advertised, no matter what is the nature of their service already rendered. This way an equal opportunity has been thrown open to both the petitioners as also the prospective applicants from the general public;

(iii) that the Recruitment Policy of the Govt. could have been questioned on the basis of discrimination but that element is also missing in this case as the petitioners who are already in service have not only been made eligible to apply for the posts advertised. Rather in the Revised Policy of the Government due regard has been shown to the experience acquired by them over the years. There is no merit therefore, in the contention of the petitioners that the recruitment was being made by the Government is disregard of the petitioners rights;

(iv) that during the course of submissions at the bar, the petitioners' learned counsel expressed concern for their being thrown out of consideration on the basis of the upper age limit. It was however, conceded at the bar by and on behalf of the Federal Directorate of Education that those of the petitioners who had crossed the upper age limit of 25 years could also make applications against the posts advertised and that their applications shall be considered sympathetically on merits;

(v) that during the pendency of these Constitutional petitions in this Court, change of Government took place on 12th of October, 1999. It was pleaded by and on behalf of the petitioners that the petitioners had voiced their grievances before the Federal Minister for Education Mrs. Zubaida Jalal and that the Federal Minister for Education had assured them that all such petitioners as were already working whether on contract, ad hoc, short-term, daily wages or work charge basis shall be accommodated and appointed on the posts advertised. With a view therefore, to have the position clarified in this behalf, reference was made to the Federal Minister for Education so as to clarify the aforesaid assertion of the petitioners. When confronted with the claim of the petitioners, the Federal Minister for Education answered the same as follows:

"Surely, the correspondent of "Daily Asas" has misunderstood me and has quoted me completely out of context. While I fully sympathize with affectees, we cannot justifiably give any assurance to these teachers that their services would be regularized en-block. In this regard, I have, however, asked the office to consider their cases on the basis of merit and fair play with a view to ameliorating the sufferings of affected teachers."

Last paragraph, of the impugned judgment dated 2.S.2000 reads thus:

" 5. As a net result of the foregoing discussion, these Constitutional petitions are disposed of with the observation that the petitioners' application if made for the posts advertised shall also be considered on merits alongwith those of the outsiders. The petitioners shall be given additional marks as here-in-above indicated on the basis of the experience already acquired by them. Efforts shall also be made by the Government to accommodate as far as possible even those from amongst the petitioners who have although crossed the upper age limit yet their cases merit consideration on the basis of the meritorious services rendered by them in the past and the assurance extended by the Federal Minister for Education shall also be given due regard."

1. It may be mentioned that the following Civil Miscellaneous Applications were brought by the respective applicants therein for impleadment as petitioners in this CPSLA No. 754 of 2000 on the ground that their cases also fall within the parameters of the case of the petitioners therein:

2. CMA 44 of 2001 (by 1-person) 11.1.2001 pp 81-82 of main pb.

3. CMA 45 of 2001 (-do-) 12.1.2001 pp 85-86 of main pb.

4. CMA 92 of 2001 (-do-) 29.1.2001 pp. 89-90 of main pb.

5. CMA 1048/2001 (by 11-persons) -Nil separate/additional pb.

6. CMA 1360/2001 (by 1-persons) 16.5.2001 -do-

7. CMA 1444/2001 (by 5-persons) -Nil- -do-

We allow all the above applications and direct the office to affect appropriate additions in the Memo of petition by adding the names of the applicants therein.

1. It was on 8.12.2000 that this Court took notice of the arguments addressed at the Bar by Sahibzada Ahmad Raza Khan Qasuri, learned ASC appearing on behalf of the petitioners to the effect that:

(i) on 15.5.2000 the Ministry of Education had moved a summary for being placed before the Chief Executive for approval through the Establishment Division to the following effect:

"(a) The teaching and non-teaching staff, recruited on contract/short term basis, as mentioned in para 2 above may be regularized on the basis of meritorious services rendered by them, without any consideration of the upper age-limit, as observed by the learned Court;

(b) The remaining vacant posts of teaching and non-teaching staff may be filled, in, pursuant to the advertisement released by the Federal Director of Education in the year 1999."

(ii) that 18 male-teachers and one lady-teacher similarly placed as the petitioners were regularized without adopting the procedure detailed in the advertisement dated 2.4.1999.. (iii) earlier also despite ban on fresh recruitment the FDE regularized the services on 29 trained/untrained ad hoc

teachers on 29.6.1991........................ and (iv) in addition to regularization of above teaching staff belonging to another batch of 8 teachers were regularized on 14.7.1999 and the Establishment Division was directed to submit the said summary within one month from 8.12.2000 to the Chief Executive with his own comments by making a mention to the regularization of: (i) 18 male teachers, (ii) 1-Mst. Amna Khatoon, (iii) 29-trained/untrained ad hocteachers on 26.9.1991 and (iv) 8-teachers on 14.7.1999. It was also directed that the selection process under the advertisement may continue but the result shall not be announced." Except the appointment letters which have already been issued in pursuance of the advertisement, no further appointment shall be made in the meantime."

1. On 14.5.2001, the FDE was directed to provide the following information to the then Bench:

"(a) List of Ex. Teaching Staff working on contract basis in Federal Government Educational Institution Islamabad whose contract was not extended beyond 31.05.1999.

(b) Criteria adopted for their selection.

(c) Authority on whose recommendation/instruction, these Ex. Contract employees were inducted.

(d) Recruitment record of Mst. Shaiza Kausar d/o. Mr. Sarfraz Raja Ex. Director (Schools).

(e) Detail of teaching staff whose services has been regularized since 31.05.1999.

(f) Criteria adopted for the selection of teachers in the recruitment made in November, December 2000.

(g) The detail of appointments made by the FDE vide office order No. F.l-17/96 (SA) FDE dated 25.06.1999 and F.l-17/96 (SA) FDE dated 14.07.1999. (As per order of the Honourable Supreme Court dated 08.12.2000_."

Requisite information was provided through CMA No. 1289 of 2001. Through CMA No. 1303 of 2001, the petitioners sought submission of Additional Documents under Order XXIII, Rule 6 of the Supreme Court Rules, 1980, hereinafter referred to as 1980-Rules, as a rejoinder to CMA No. 1289 of 2001. CMA No. 1373 of 2001 was filed on behalf of the respondents as "REPLY OF THE DEPARTMENT (RESPONDENT) AGAINST THE POINTS RAISED BY THE PETITIONERS IN THEIR REJOINDER.", to CMA No. 1289 of 2001. Petitioners filed CMA No. 1434 of 2001 with a view to filling additional documents under 1980 Rules through a chart elaborating discriminatory treatment having been meted out to the petitioners as also fraud committed by the FDE in preparing the merit list of various Provinces. After the petitioners had submitted the chart through CMA No. 1434 of 2001, the FDE submitted a reply thereto to rebuttal through CMA No. 1475 of 2001, para 3 whereof reads thus:

"3. The order of august Supreme Court as attached with the additional chart submitted by petitioner has no .relevance with the titled case. However, necessary action was taken by the Ministry of Education as per rules and the report has already be.en submitted before the Registrar of Supreme Court of Pakistan on 17.05.2001."

1. We have heard, in detail, the arguments addressed at the Bar by Mr. Qasuri, both the learned Law Officers on ifferent dates of hearing and also perused the available material including Civil Miscellaneous Applications Nos. 1289, 1303, 1373, 1434 and 1475 of 2001.

2. The mainstay of the case of the petitioners and others similarly placed as the former was that their services did fall for regularization confirmation before the FDE went ahead with taking action under Advertisement dated 2.4.1999, 10. The above plea of the petitioners in Writ Petition No. 1062 of 1999 was duly considered by the learned Judge in Chambers. Similarly, the contention of the learned counsel for the petitioners that his clients will be thrown out of consideration as, during the interregnum, they had become overage was also considered in juxtaposition with the concession made by

A the FDE that those who had crossed the upper age limit of 25 years could apply against the advertised posts which shall be considered sympathetically. Moreover, a reference was made to the observations of the Federal Minister for Education that their services will fall for consideration on the basis of merit and fair play"... with a view to ameliorating the sufferings of affected teachers." We find that the petitioners did obtain a chance to apply for thfeir future absorption alongside others affected under the Revised Policy, but did not avail of the same.

1. The stage is now set to consider the result of the attitude adopted by the petitioners with regard to the aforementioned opportunity. It is an admitted position that the petitioners did not apply for the consideration of their respective cases for absorption in the respective disciplines. Mr. Qasuri was asked, more than once, to indicate any reason for his clients not applying for the advertised posts under .the existing circumstances. His persistent reply was that as his clients were entitled to regularization/absorption much before the proposed action under the Advertisement, therefore, the efforts on the part of the FDE to work in terms of advertisement dated 2,4.1999 cannot but be reversed so that they are absorbed first and only thereafter the others are inducted into service according to the Revised Scheme'. He was at his lowest in contending that in the presence of many an instances surfacing themselves in the past for the regularization of the services of the employees of the FDE, including his clients, the FDE did regularize others but not the petitioners therefore his client's entitlement 'then' can be resurrected even now to bring them at par with others. We are afraid the petitioners cannot be heard complaining as above now in that neither the past working of the FDE to the prejudice of the petitioners, if any, was made the subject matter of any proceedings whatsoever by the petitioners then nor the petitioners availed of the favourable observations made by the learned Judge in Chambers in the impugned judgment dated 2.3.2000. As regards the criticism by Mr. Qasuri regarding the FDE not delivering the goods to the extent of the petitioners either in the past or in present!, we suffice by observing that much water has flown under the bridge to undo the adverse effects of the past and closed transaction in relation to the service structure of the FDE being contrary to the well established principle/mandate that all concerned arc required to follow the Laws/Rules on the subject: 'regulation of the exercise of their such powers'! Further, the references made to the alleged mala fide on the part of the then officials responsible for carrying into effect the processes of law without any) fear or favour, were not brought by the petitioners before the relevant/appropriate forum at that juncture. We hasten to add that our above observation is not, we repeat not, tantamount to upsetting that which was made the subject matter of appropriate proceedings by the aggrieved persons/individuals in the past. A reference by Mr. Qasuri to the then officials of the FDE and the Government exerting their influence for the appointment of their kith and kin on contract, ad hoc, short term, daily wage and work charge basis need not detain us any further in that general condemnation of any part/faction of the Government/FDE is of little help to the petitioners, the moment petitioners' own inaction is brought to bear upon the attending facts and circumstances of this cause.

2. Same is the position with regard to the plea of Mr. Qasuri that discriminatory treatment has been meted out to his clients who had qualified for their services being regularized much before the issuance of advertisement dated 2.4.1999. It is not his case that .the nature of employment of his clients was in any manner different from that of others. It was with a view to putting an end to the uncertain conditions of service of a number of employees in the FDE that:..........................................................................

(i) advertisement dated 2.4.1999 was issued...............

(ii) cases of all concerned directed to be processed....

(iii) favourable consideration of cases of employees who had crossed the upper age limit of 25 years promised...................................................................... AND

(iv) petitioners allowed a chance to compete with others on the basis of their appointment in the FDE during the period under consideration..........................

The petitioners are themselves to blame for the predicament in which they find themselves today.

1. Moreover, the prayer clause in this petition makes the following readings:

"In the above circumstances, it is most humbly prayed that this .august Court may graciously grant leave to appeal to the above named petitioners. It is further prayed that this petition may be converted into an appeal, impugned judgment of honourable. Lhr. High Court, Rawalpindi Bench, Rawalpindi, in Writ Petition No. 1062 dated 20-3-2000 be set aside and finally petitioners may.be regularized against the advertised posts as prior rights over the other applicants in the interest of justice. Any other relief, which this honourable Court may deem appropriate, to meet the ends of justice."

This is a clear instance of persistence on the part of the petitioners in asking for their regularization in service against the advertised posts prior to those

who had applied for the same under advertisement dated 2.4.1999. In the

absence of any preferential treatment partaking of the entitlement of the petitioners for such a course, the above prayer cannot but be disallowed.

1. Be that at it may, the above questions may fall for determination in some other cause/s and can be attended to then.

2. Before parting with this order we may observe that even the reliance placed by Mr. Qasuri upon two unreported judgments of this Court in CPs Nos. 979-K to 1012-K of 2000 and 1670 of 2000 etc., respectively dated 10.7.2000 and 2.2.2001, are of little help to his clients. In the former precedent one of us (Muhammad Pashir Jehangiri, J.) was a Member of the Bench and in the later, (Muhammad Arif, J.) Authored the same. Para-9 of the former precedent reads thus: "9. It is to be noted that in the memo of appeal before the Tribunal extensive and detailed allegations were made regarding the mala fide of the company in the matter and the discrimination meted out to the respondent as in similar situation those, named in the appeal, had been retained in service. But it is curious that no specific reply about those allegations was given by the company in its comments, but rather general and vague comments were filed in reply to these allegations. The Tribunal has positively held that appellant before it was discriminated as others similarly placed have been absorbed and regularized but the learned counsel was unable to rebut the observation of the Tribunal in this regard."

Paras 17, 18 and 19 of the later precedent read thus:

"17. As regards the case of the respondent Company that they were on the right rails in putting an end to the services of the petitioners by issuing them show-cause notices within the contemplation of the Rules, we suffice by observing that concerned quarters can ill afford to meet out different treatment to two groups of its employees and that too when the dictates of law,, justice and equity require exercise of power by all concerned to advance the cause of justice and not to thwart the same. We are not inclined to agree with Mr. Fakhruddin G. Ibrahim that the cases of Saleem Mustafa Sheikh and others were different from those of the petitioners.

"18. Before parting with this order, it may be noticed that in the case of Saleem Mustafa Sheikh and others (Appeal No. 1097(R) of 1999) the Tribunal did observe that the then learned counsel appearing on behalf of the respondent-Company conceded that the Rules are applicable to the terms and conditions of service of Saleem Mustafa Sheikh and others. We are of the view that in the absence of any justifiable reason for putting an end to the services of the petitioners

by the respondent-Company, the termination orders passed against the petitioners without considering the import and implication of Rules 6.1, 6.2 and 6.3 ibid the impugned judgments cannot be sustained. "19. Resultantiy, these petitions are converted into appeals and by allowing the same, the impugned judgments dated 23.9.2000, 11.2.2000 and 17.4.2000 are set aside with a direction to the respondents to absorb the petitioners in their respective disciplines on the same lines as has been done in the cases of Saleem Mustafa Sheikh and others (supra). There shall be no orders as to costs."

Here, it is not the case of the petitioners that either the learned Judge in Chambers had upheld the plea that the petitioners were discriminated against or that any termination orders were passed against them by the FDE to bring their case within the ambit of the precedents/case -law referred to by the learned counsel.

1. Resultantiy, the petition is dismissed and leave refused. (A.A) Leave referred

PLJ2002SC97

[Appellate Jurisdiction]

Present:SHEIKH RlAZ AHMAD; MUNIR A. SHEIKH AND rana bhagwandas, JJ.

GOVERNMENT OF PUNJAB, COLONIES DEPARTMENT, LAHORE

and others-Appellants

versus

MUHAMMAD YAQUB-Respondent C.A. Nos. 2233 & 2234 of 1998, heard on 7 and 8.6.2001.

(On appeal from the judgment dated 3.5.1995 of the Lahore High Court, Lahore passed in W.P. Nos. 1049/91 and 3221/1995)

(i) Evacuee Proeprty and Displaced Persons Laws (Repeal) Act, 1975 (XTV of 1975)--

—-Ss. 2 & 3 Constitution of Pakistan (1973), Art. 185-Pending proceedings for un-satisfied portion of verified claim-Repsondent having fulfilled all those conditions mentioned in Notification dated 12.6.1988, was entitledto. the benefit of said notification—Authorities were directed to pass formal order of adjustment of alternate land in respondent's name in accordance with law within specified time from the receipt of judgment by concerned officer. [Pp. 102 & 103] A & C

(ii) Evacuee property and Displaced Persons (Laws) (Repeal) Act, 1975 (XIV of 1975)--

—Ss. 2 & 3-Pending proceedings-Connotation-Pending proceedings would mean that initial step had been taken as contemplated under Settlement

laws for allotment of land against verified claimants of claims but the same did not finalize before the repeal of the same, therefore, with reference to such cases it was provided that those would be taken forward and concluded under repealed settlement laws as if they had not been repealed for said limited purpose and in order to pass final order in such cases, provision was made to deal with such cases-Mere possession of any evacuee land would not make respondent's case, a case of pending proceedings'within the contemplation of provisions of Sections 2 and 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act 1975.

[P. 102]B

PLD 1979 SC 846;1993 SCMR 1062; 1999 SCMR 1719 ref.

Ch. Mushtaq Masood, ASC and Rao Muhammad YusufKhan, AOR for Appellants. Mr. Sharifuddin Pirzada,Sr. ASC Malik Azam Rasool, ASC and Mr. Mehr Khan Malik, AOR for Respondent. Dates of hearing: 7 and 8.6.2001.

judgment

Munir A. Sheikh, J.--By this common judgment, we propose to decide Civil Appeal Nos. 2233 and 2234 of 1998 as facts of these two are so inter linked and inter connected as questions of law and facts, therefore, it is desirable to decide the same by a consolidated judgment.

1. These appeals by leave of the Court are directed against the judgment dated 3-5-1995 of the Lahore High Court through which Constitutional petitions filed by the respondent as to transfer of land in his name in Chak No. 220-RB Tehsil and District, Faisalabad in the revenue record and allotment of evacuee land in Chak No. 223/RB, Faisalabad against his unsatisfied verified claim have been accepted.

2. Civil Appeal No. 2234 of 1998 has arisen from W.P. No. 1049 of 1991 and it relates to land situated in Chak No. 220/RB, Tehsil and District, Faisalabad. It is evident from the copy of RL-II placed on the record of the writ petition and also in this appeal that land measuring 87 kanals 3 marlascomprising Killa Nos. 1 to 3, 8 to 10 of Sq. No. 35 and Killa Nos. 21 to 23 and 24-Min of Sq. No. 85, situated in Chak No. 220/RB was proposed for- allotment in the name of the respondent against his verified claim of 1788 P.I. Units under the Rehabilitation Scheme as it then existed on 29-2-1953.This proposal was accepted on 29-5-1953. The respondent was still left with entitlement of 916 P.I. Units. He claimed to be in possession of land comprising Killa Nos. 2, 3, 4, 23, 24, 25/1, 25/2, 20, 21 and 2 of Sq. No. 51 situated in Chak No. 223/RB, Tehsil and District, Faisalabad which was evacuee rural agricultural land. He filed W.P. No. 1049/1991 for a direction that the land proposed in his name in Chak No. 220/RB and confirmed on 29-5-1953 may be formally transferred in the revenue record according to the settlement laws as permanent allottee as owner thereof. As regards land situated in Chak No. 223/RB, he sought a direction through W.P. No. 3221 of 1995 filed on 19-4-1995 from which Civil Appeal No. 2233/1998 has arisen for allotment of the said land in his name under the repealed settlement laws being a case of pending proceedings for unsatisfied portion of the verified claim to the tune of 916 P.I. Units.

3. In the comments filed by the appellants/department, it was admitted that the respondent was allotted land in Chak No. 220/RB as per RL-II but as per Field Staff report, it had never been in his possession. It was also stated in the comments as to whether the respondent fulfilled the conditions of notification dated 12-6-1988 which reads as under:-

"It is not correct. The petitioner is not fulfilling the conditions of the Notification dated 12-6-88 as he is not in possession of the land. As such the land now having been converted as exchanged Stage Land Since 3.1.58, the petitioner cannot get its proprietary rights." An another place, it was stated as under:- It is correct to the extent that the persons fulfilling conditions of Notification dated 12.6.88 may be allowed to acquire proprietary rights."

1. As regards land in Chak No. 223/RB the allotment of which the respondent claimed as a case of pending proceedings, it was stated as under: - "It is incorrect. The Land applied for is included in the Exchanged State Land and it is not in possession of the petitioner. As such the case of the petitioner does not come within the purview of this notification".

2. It may be stated here that on 3-1-1958, through notification, the Federal Government approved the transfer of evacuee lands in District Faisalabad for development of Faisalabad City by way of exchange to the Provincial Government. In order to avoid hardships which would have resulted in dislocation of the allottees of such land given in exchange by the Federal Government who had been permanently settled before the exchange was given effect to in the revenue papers that the Provincial Government in the Colony Department issued Notification No. 186-88/1316-CIV on 12-6-1988 evolving a criteria for accommodating such allottees on the said land which had become state land after exchange and vested in the Provincial Government which is reproduced below in extenso:-

"Government of the Punjab Colonies Department

Notification

Lahore dated 12th June, 1988

No. 186-88/1316-CIV. Whereas certain areas of State Land situated in the district of Faisalabad were exchanged with former evacuee land around city of Faisalabad in the interest of urban development and the said exchange was approved by the Government of Pakistan under Section 25 (2) of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), vide Ministry of Rehabilitation Letter No. F. 21 (6)/57-P.II, dated 3rd January, 1958;

AND WHEREAS it subsequently transpired that for some of the area so exchanged, claim holders had been given permanent transfer deeds/allotment orders, as the case may be, against consideration received by the Settlement Department, Government of Pakistan or in satisfaction of verified claims {urban or rural) under the repealed Settlement Laws, prior to 3rd January, 1958. It was therefore considered that it would cause hardship to dispossess such persons from the aforesaid land which had since become State land;

NOW, THEREFORE, in exercise of the powers conferred by Section 10 of the Colonization of Government Lands (Punjab) Act, 1912 (V of 1912), the Government of the Punjab in the Colonies Department is pleased to issue the following terms and conditions for the disposal of the above mentioned category of State land:

(1) Persons holding genuine and valid Permanent Transfer Deeds (in the case of urban area) or in whose case valid allotment orders exist in Register RL-II (in case of rural area) in respect o the evacuee land (now State land), as mentioned above, and which were finalized prior to 3rd January, 1958 may be allowed to acquire proprietary rights for such land provided:-

(a) he/they satisfy the District Collector, Faisalabad about the .validity/authenticity of his/their PTDs/allotment orders and that these are still intact; no litigation is pending in any Court about the land in question;

(b) final payment of price to the Settlement Department/ adjustment of claim is proved from the record;

(c) no other Government dues including Settlement fee etc., are payable by the grantee;

(d) he/they is/are in possession of the land in question.

(2) In case the District Collector is satisfied about the above conditions he will record and issue an order of transfer of such property in the form at Annexure 'A'.

sd/-

Secretary to Govt. of Punjab, Colonies Department."

1. Learned Judge of the High Court in W.P. No. 1049 of 1991 regarding land situated in Chak No. 220/RB came to the conclusion that since the initial proposal for allotment of the State land against verified claim had been confirmed on 29-5-1953, therefore, the approval given by the Federal Government on 3-1-1958 for exchange of evacuee lands in District Faisalabad and transfer of the same to the Provincial Government was not binding on the respondent-allottee quathis land as it could not form part of the exchange transaction, therefore, his allotment remained intact and he was entitled to retain it, therefore, a direction was issued for the sanction of mutation in the revenue record under the settlement laws transferring the said in favour of the respondent as confirmed allottee. Learned Judge of the High Court lost sight of the fact that in the year 1953, allotment of land was made under the Rehabilitation Settlement Scheme and the permanent settlement of the confirm ed allottees was made under the Displaced Persons (Land Settlement) Act, 1958 and under the scheme framed thereunder, herefore, it was decided in a number of cases by the High Court as also by this Court that the exchange in respect of all these evacuee lands was valid and the allottees could only be accommodated in lieu thereof. Notification dated 12-6-1988 was issued in order to achieve the said purpose of avoiding hardships which would have been caused to the allottees on account of their large scale dislocation, therefore, the allottees before getting the rights under the said notification were to satisfy the authorities about the fulfilment of the conditions laid down thereunder.

2. In this case, however, we find that according to the comments, the case of the department was that out of all the conditions, the only condition which the respondent did not fulfil was that he was not in possession according to the report of the Field Staff. It was not alleged that the allottee also did not fulfil the other conditions. It was admitted in clear terms in the comments that the respondent was a confirmed allottee of the said land in Chak No. 220/RB, therefore, the only question was whether he was in possession at the time of issuance of the said notification and prior thereto in order to get benefit of the said notification as allottee.

3. The respondent in his writ petition which was supported by affidavit pleaded that he was in possession of the said land. He having been proposed the allotment of the said land in 1953 which proposal was accepted/confirmed on 29-5-1993, initial presumption was that he was in possession thereof which could, be rebutted by strong evidence by the department which must be available with it. Mere reliance on report of the Field Staff in order to rebut such a strong presumption was not sufficient from which we are justified to infer that the respondent in fact was in possession of the land. Neither any affidavit of any member of the Field Staff to counter the affidavit of the writ petitioner nor the said report of the Field Staff was produced before the High Court, therefore, we would agree with Mr. Sharifuddin Pirzada, learned counsel for the respondent that so far as land measuring 81? kanais 3 morals allotted to respondent in Chak. No. 220/RB is concerned, he had' fulfilled all the conditions mentioned in notification dated 12-6-1988, therefore, as regards that land, his case squarely falls within the scope of the said notification and he was entitled to the benefit of the same and should have been dealt with accordingly and given alternate land.

4. We are in agreement with the findings of the learned Judge of the High Court in W.P. No. 1049 of 1991 that the exchange of evacuee land as approved on 3-1-1958 was not effective against the land allotted to respondent in Chak No. 220/RB on account of which the same was void to that extent but we would hold that the respondent/allottee had fulfilled all the conditions mentioned in the notification dated 12-6-1988, therefore, he was entitled to the benefit of the said notification and the authorities are hereby directed to pass formal order of adjustment of alternate land in his name in accordance with law within two months from the receipt of certified copy of this judgment by the concerned officer, therefore, Civil Appeal No. 2234 of 1998 is hereby partly accepted and disposed of in the above terms.

5. Reverting to Civil Appeal No. 2233 of 1998 arising from W.P. No. 3221 to 1995 regarding land situated in Chak No. 223/RB, it may be observed that it was not the case of the respondent that the said land was ever proposed for allotment in his favour under any of the settlement schemes before the repeal of the settlement laws in 1974 through an Ordinance and thereafter through Act of 1975. Both these was provided that the proceedings pending under the repleaded laws would be decided as if the said laws had not been repealed. The scope of pending proceedings was also extended to cases which would be remanded by the High Court and this Court which too were to be decided according to these laws by a Notified Officer. Mr. Sharifuddin Pirzada, learned counsel for the respondent in his endeavour to bring his case within the scope of the term "pending proceedings" as used in these laws referred to judgments reported as Nawab Din versus Member, Board of Revenue (Settlement & Rehabilitation) Punjab, Lahore and 4 others (PLD 1979 SC 846), Aligarh Muslim University OldBoys Cooperative Housing Society Ltd versus Muhammad Hisamuddin Ansari and 4 others (1993 SCMR 1062) and Nawabzada ZafarAli Khan and others versus Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others (1999 SCMR 1719). The argument though appears to be ingenuous but found to be not tenable on dose scrutiny. The principle laid down in the case of Nawab Din (PLD 1979-SC 846) (supra) would not be attracted to the present case as the expression "pending proceedings" in general terms was under consideration in some other context. As regards case of Aligarh Muslim University (1993 SCMR 1062) (supra),it is manifest from the facts of the said case that proceedings continued to be pending under the settlement laws in different manner after the cancellation of lands for adjustment of other land, therefore, it was rightly held to fall within the purview of pending case as contemplated by the term used in these laws.

6. In the present cased, as observed above, the land in Chak No. 223/RB was not claimed tp have ever been proposed for allotment in favour of the respondent/allottee against his remaining unsatisfied verified claim. He did not plead even in the writ petition that the same had ever been proposed in his favour and the case was pending for further proceedings for its confirmation or otherwise when the settlement kws were repealed. The term "pending proceedings" as used in these laws would mean that an initial step taken as contemplated under the settlement laws for allotment of land against verified claim of the claimants but the same did not finalize before the repeal of the same, therefore, it was with reference to such cases that it was provided that those would be taken forward and concluded under the replead settlement laws as if they had not been repleaded for the said limited purpose and in order to pass final order, in such cases a provision was made to appoint a Notified Officer to deal with such cases. Mere possession of any evacuee land as claimed by the respondent in Chak No. 223/RB in the writ petition would not make his case, a case of pending proceedings within the contemplation of provisions of Sections 2 and 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, therefore, the direction issued by the learned Judge of the High Court for allotment of the said land under the settlement laws to the respondent was violative of law which could not have been given, for under Article 199 of the Constitution, the High Court could direct a person performing functions in connection with the affairs of the Federal Government to do what law requires him to do whereas the direction issued in this case was to the contrary i.e. what law did not require him to do, he was ordered to do. Learned counsel for the respondent as last attempt relied upon unreported judgment of this Court in Civil Petition Nos. 1308-L and 1309-L of 1995 in order to show that this case should also be treated as a case of pending proceedings. We have gone through the facts of this case and find that the same are also distinguishable. It is clear that throughout the relevant period, proceedings remained pending for the allotment of the evacuee land, therefore, the case of the respondent for allotment of land in Chak No. 223/RB as observed above cannot be held to fall within the purview of "pending proceedings", therefore, the judgment dated 3-5-1995 passed in W.P. No. 3221/1995 impugned in Civil Appeal No. 2233/1995 is not sustainable. Resultantly, the Civil Appeal is hereby accepted and the said judgment set aside.

7. The parties, are however, left to bear their own costs. (A.A) Order accordingly

PLJ 2002 SC 104 [Appellate Jurisdiction]

Present: mian muhammad ajmal and abdul hameed dogar, JJ.

KOT ADDU POWER COMPANY LTD. through ITS CHIEF EXECUTIVE, LAHORE and 2 other --Petitioners

versus

MUHAMMAD BASHIR-Respondent C.P. No. 1776-L of 2000, decided on 11.7.2001.

(On appeal from the judgment dated 30.6.2000 of the Federal Service Tribunal Lahore Bench, Lahore passed in Appeal No. 335(L)/98)

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

—-S. 2-A-Constitution of Pakistan (1973), Art. 212(3)Re-instatement of respondent by Service Tribunal-Petitioner's claim, that petitioner company being private company, Service Tribunal had no jurisdiction to hear and decide appeal of its employee was repelled, on the ground that dominating shares of appellant company being with WAPDA and Federal Government, respondents have been rightly considered to be a Civil Servant for the purpose of Service Tribunals Act, 1973 and his case rightly falls within S. 2-A of the Act, therefore, there seems to be no illegality in impugned judgment wtilch was maintained. [Pp. 106 & 107] A Ch. Khalid Farooq, ASC and Mr. Faiz-ur-Rehman, AOR (Absent) for Petitioners.

Mr. M. Kowkab Iqbal, AOR for Respondent. Date of hearing: 11.7.2001.

order

Abdul Hameed Dogar, J.--The petitioners seek leave to appeal against the judgment 30.6.2000 of the Federal Service Tribunal Lahore Bench, Lahore passed in Appeal No. 335 (L) of 1998 whereby the respondent was reinstated in service.

1. The facts leading to the filing of Civil Petition No. 1776-L of 2000 are that respondent Muhammad Bashir was appointed as Security Guard in WAPDA and his services were transferred to Kot Addu Power Company Limited the Petitioner No. 1 when Kot Addu Gas Turbine Power Station was privatised and its 26% shares were sold out to the Company and the management was also transferred to it. The petitioner regularised the services of respondent vide order dated 10.5.1997. According to the petitioner of his superior and'did not perform duty on 29.7.1997 from 9.00 p.m. to 7.00. a.m., despite clear directions of his Incharge, and inspite of a clear previous undertaken given by him on 14.3.1997. Consequently he was issued an explanation letter dated 11.8.1997 containing the allegations but the same were denied by him vide his reply'dated 18.8.1997. An inquiry was held in September, 1997 in which he was found guilty of the allegations. He, however, was provided a further chance and charge sheet dated 4.10.1997 was issued and he submitted his reply on 12.10.1997 which was also found unsatisfactory. He was also afforded an opportunity of personal hearing and, however, he was dismissed from service on 4.12.1997. Thereafter respondent preferred department appeal which too was rejected on 10.2.1998 and thereafter he preferred Appeal No. 335-L of 1998 before the Federal Service Tribunal which was allowed and he was reinstated into service without back benefits two increments were also withheld for a period of two years.

2. Mr. Khalid Farooq, learned ASC for the petitioner contended that respondent after privatisation of Kot Addu Gas-Turbin Power Station ceased to be a Civil Servant for the purpose of Service Tribunals Act, 1973 after insertion of Section 2-A being an employee of private limited company under the Companies Ordinance, 1984. According to him the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would be applicable to the respondent and the Labour Court was the only forum where he could have agitated his rights and the Federal Service Tribunal had no jurisdiction in the matter. He next contended that since no detail inquiry was held in the case of respondent, as such, the matter may be remanded back to the competent authority to hold a proper inquiry.

3. We are of the considered opinion that the Federal Service Tribunal was competent enough to have the jurisdiction in the matter of respondent for the following reasons: Admittedly the petitioners' company was privatised and only 26% shares were sold to them whereas remaining 74% remained with WAPDA thus it had the dominating shares and control over the petitioner. For proper appraisal it would be appropriate to reproduce Section 2-A of the Service Tribunals Act, 1973 at this place: "2A. Service under certain corporations etc. to be service of Pakistan-Service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act.".

4. In order to fortify the above, the reference in also made to Sections 3, 8X2) ii and (5) (a) of the Pakistan WAPDA Act, 1958-

"3. Constitution of the Authority. (1) There shall be established an Authority to be known as the Pakistan Water and Power Development Authority for carrying out the purposes of this Act.

(2) The Authority shall be a body corporate, shall be entitled to acquire hold and dispose of property, shall have perpetual succession and a common seal and shall by the said name sue and be sued.

(3) The Federal Government may, from time to time, issue such directives as it may consider necessary on matters of policy and the Authority shall comply with such directives; and if a question arise whether any directive relates to a matter of policy, the decision of theFederal Government shall be final".

"8 (2) The Authority may frame a Scheme or schemes for a Province or any part thereof providing for all or any of the following matters, namely:

(i)................................................................................................

(ii) the generation, transmission and distribution of power; and the construction, maintenance and operation of power houses and grids;

"(5) Where a scheme is sanctioned by the Government under sub­section (4), the Authority may-

(a) undertake any joint venture or work in association with the Provincial Government, and agency, corporation, company, authority or any person and may subscribe to the equities and acquire such other rights and obligations as may be necessary for such joint venture of association".

(b) _______________________________________ .

(0 _______________________________________________

(d)________________________ ;____________ ;__________

1. From the perusal of the above provisions of law, dominating shares being with WAPDA. and the Federal Government, the respondent has been rightly held to be a Civil Servant for the purpose of Federal Service Tribunals Act and his case rightly falls within Section 2-A of the Act, as such, there seems to be no illegality in the impugned judgment which is accordingly maintained.

2. The submissions that no proper inquiry was conducted against respondent and, therefore, matter be sent bank for afresh inquiry,«would be of no avail to the petitioner as they were the competent authority to conduct a detailed inquiry and by not doing so the respondent is benefitted. From what has been discussed above, we do not find any merits in the Petition which is accordingly dismissed and leave to appeal is refused.

(A.A) Leave refused.

PLJ 2002 SC 107 [Appellate Jurisdiction]

Present:muhammad bashir jehangiri, muhammad arif and rana bhagwandas, JJ.

TARIQ AZIZ etc.--Appellants

versus

MUHAMMAD KHAN etc.-Respondents C.A. No. 1704 of 1996, decided on 14.6.2001.

(On appeal from the judgment of Balochistan Service Tribunal, Quetta dated 25.8.1996 passed in Appeal No. 56/93)

Balochistan Excise and Taxation Department (Grade 1 & to 15) Service Rules, 1982-

Appendix, para 2-Constitution of Pakistan (1973), Art. 212-Direct appointments as Excise and Taxation sub-inspectors in violation of relevant statutory rules by ignoring quota of promotion reserved for Ministerial Employees and Head Constables, were set aside by Service Tribunal with direction to fill up such post in accordance with rules-Validity-Plea of Government that as members of Ministerial staff and Head Constables did not object to the selection of appellants, action of Government would be justified and immune from judicial scrutiny was repelled, in as much as, in law any illegality on the part of public functionaries can be brought to be light by any aggrieved party or person interested therein-While making such appointments Department should have taken care to strictly following statutory rules for selection and recruitment of suitable candidates in consonance with the spirit of law-As per quota earmarked for appointment by promotion half of the posts should have been filled in from amongst the Ministerial staff and Head Constables-Departmental candidates promoted subsequent ;to recruitment of appellant would rank senior to appellants and their names must be arranged in order of seniority as assigned to them earlier and on the principle that incumbents promoted in earlier batch would rank senior to incumbents promoted in subsequent batch-Government was directed to ensure strict compliance with that part of the judgment of Service Tribunal whereby cases of promotion of eligible employees of the Department were to be processed for promotion in accordance with Service Rules. [Pp. 110 & 111] A to C

Mr. S.A.M. Quadri, AOR for Appellants.

Nemo for Respondent No. 1.

Mr. Dil Muhammad Tarar, ASC for Respondents Nos. 2 to 4.

Date of hearing: 14.6.2001.

judgment

Rana Bhagwandas, J.-This appeal by leave of this Court arises out of the judgment dated 25.08.1996 of the Balochistan Service Tribunal Quetta, whereby respondents' service appeal against appellants and respondent Government of Balochistan was allowed with the direction:-

(a) The cases of promotion of eligible Ministerial staff including the appellant as well as the Head Constable be placed before the departmental promotion committee and granted proforma promotions from the dates of vacancies falling to their respective quota had become available.

(b) The vacancies falling to the quota of initial recruitment may be filled up within the ratio prescribed under the rules and the services of the excess appointees be terminated after due notice and completion of other rules requirements. They can compete when posts falling to initial quota are available for filling according to rules.

(c) A fresh seniority list be prepared after meeting with the above notec observations.

1. Facts leading to this appeal involving irregular appointments of the appellants ignoring the rights of Respondent No. 1 and his colleagues for promotion as Excise and Taxation Sub-Inspectors against 25% vacancies are-that through order dated 05.05.1993, 29 appellants were directly appointed as Excise and Taxation Sub-Inspectors in violation of the statutory provisions of Balochistan Excise and Taxation Department (grade 1 to 15) Service Rules 1982, by ignoring the quota of promotion reserved for Ministerial employees and Head Constables. According to para 2 of the Appendix to the aforesaid Rules, vacancies of Excise and Taxation Sub-Inspectors are to be filled up as under:-

(1) 25% by promotion on the basis of seniority-cum-fitness from amongst members of the Balochistan Excise and Taxation Department Ministerial service serving as senior clerks with at least 3 years service as such or 5 years total service in the Department and if no suitable senior clerk is available for promotion amongst junior clerks with at least 5 years service.

(2) 25% from Head Constables who are matriculate, provided that this educational condition shall not apply to such Head Constables who entered the service before 1st July, 1970.

(3) 50% by initial recruitment with qualification of intermediate or equivalent examination in 2nd Division. It was further stipulated that in case senior clerks, junior clerks and Head Constables, be not available or not found suitable for promotion, vacancies reserved against such categories were to be filled in by initial recruitment on the recommendation of the Selection Committee 3. Respondent Muhammad Khan took serious exception to the direct recruitment of the appellants in violation of his rights and those of other members of the Ministerial staff but he was promised to wait till any post was created or became available to fill-up the same by promotion quota. Feeling aggrieved, he filed a service appeal under Section 4 of the Balochistan Service Tribunals Act, 1974, seeking to assail the appointment of the appellants as illegal; a direction to the respondent Government to appoint 50% Excise and Taxation Sub-Inspectors from amongst the senior officials of the department against the available vacancies in the year 1993 in accordance with rules; a direction for his promotion to the post of Excise and Taxation Sub-Inspector and award of seniority over and above the ppellants.

1. Appellants as well as respondent Government resisted the appeal before the Service Tribunal and defended the action on a number of grounds inclusive of non-maintainability of appeal.

2. From the record it appears that during the pendency of the appeal before the Tribunal as many as five senior clerks were promoted as Excise and Taxation Sub-Inspectors while respondent Muhammad Khan was promoted as such within two months of the decision of the appeal. Precisely it may be stated that Mr. Habib-ur-Rehman,. senior clerk was promoted as Excise and Taxation Sub-Inspector on 18.07.1994, M/s Saleem Ullah, Sher Zaman and Muhammad Yaqoob, senior clerks senior to the private respondent as per the seniority list as on 24.11.1992 were promoted as Excise and Taxation Sub-Inspectors vide order dated 30th August, 1994. Mr. Abdul Rehman, senior clerk was promoted as such vide order dated 28th September, 1995 whereas contesting respondent Muhammad Khan, was promoted as Excise and Taxation Sub-Inspectors vide order dated 15th October, 1996.

3. Mr. S.A.M. Quadri, learned A.O.R. for the appellants while conceding that the appellants were directly appointed as Excise and Taxation Sub-Inspectors in ignorance of the rights of the departmental candidates, attempted to justify the action by submitting that apart from respondent Muhammad Khan no other employee had made any grievance of the direct selection of the appellants. According to learned A.O.R. amongst Head Constables not a single person was available and found suitable for promotion with the consequence that the department was obliged to make direct recruitment of the appellants after due advertisement and interview by a Selection Committee appointed for this purpose. There is, however, no record made available to substantiate this statement at the Bar.

4. Mr. Dil Muhammad Tarar, learned ASC appearing for the respondent Government of Balochistan frankly stated at the Bar that he had no special instructions on behalf of the respondents. He was, however, not in a position to controvert the factual and legal position that recruitment and selection of the appellants to the office of Excise and Taxation Sub-Inspectors was made in blatant violation of the statutory service Rules, which were followed only in their breach rather than adherence. We are not inclined to agree with the submission that simply because the members of the Ministerial staff did not object to the selection of the appellants the action of the respondents would be justified and thus immune from judicial scrutiny. In law any illegality on the part of public functionaries can be brought to light by any aggrieved party or person interested therein. We are of the considered view that after creation of as many as 29 posts, department should have\ taken care of strictly following the statutory rules for selection and recruitment of the suitable candidates in consonance with the spirit of law. Indeed no record has been produced to indicate that no suitable candidate was available either amongst senior clerks/junior clerks or the category of Head Constables for whom 25% quota was reserved in each category. The noting of the Director Excise and Taxation Quetta and the minutes of the meetings between the Secretary Finance and Chief Secretary Balochistan as well as Member-Ill Board of Revenue Balochistan do not spell out that at any stage departmental andidates, who had put in required length of service and possessed requisite academic qualifications, were ever considered for promotion. Even in the advertisement inviting applications for the posts neither the number of vacancies was mentioned not was it __ disclosed that the departmental candidates were eligible to apply for the posts or that they were totally unfit and unsuitable for promotion. We feel persuaded to agree with the findings of the Service Tribunal that injustice had been done to the promotion quota as the vacancies of not only senior clerks but also of the Head Constables had been illegally diverted to the initial recruitment quota without reason or justification in the eyes of law.

5. Adverting to the quota earmarked for appointment by promotion _ out of 29 posts, in our view 15 posts should have been filled-in by promotion from amongst the Ministerial staff and the Head Constables. Assuming, without conceding, that there were no Head Constables available and/or eligible for promotion on the crucial date, it is not disputed that there were a number of senior clerks working in the department fit enough to be considered for promotion. It appears that after the controversy raised and issue agitated by respondent Muhammad Khan, official respondents were constrained to promote as many as five senior clerks on the basis of their fitness and seniority in due course during the pendency of the appeal before the Service Tribunal. Taking into consideration this aspect of the cause which has not been disputed before us, we hold that such senior clerks promoted subsequent to the appointment of the appellants having been regularly promoted shall stand senior to the appellants. Indeed these persons were wrongly excluded from consideration for appointment though they were legally entitled to promotion as of right subject to seniority-cum-fitness and by directing the consideration of their proforma promotion, learned Service Tribunal neither acted illegally nor arbitrarily. The fact that five senior clerks were promoted during the pendency of the appeal before the Service Tribunal and the contesting respondent was promoted soon after the decision of the appeal supports our view that for all intents and purposes they were fit and suitable for promotion at the time of appointment of the appellants. Since the Service Tribunal has directed the consideration of the case of promotion of respondent and his other colleagues and to this extent the judgment has been complied with, or the extent of six persons from amongst the appellants irregularly appointed, junior most incumbents of the office of Exercise and Taxation Sub-Inspectors shall have to be dislodged from the ill-gotten appointment in contravention of the statutory rules. Needless to reiterate departmental candidates promoted subsequent to the recruitment of the appellants shall rank senior to the appellants and their names shall be arranged in order of seniority as assigned to them earlier and on the principle that incumbents promoted in earlier batch shall rank senior to the incumbents promoted in the subsequent batch. As no record has been produced with regard to the promotion rights of the Head Constables serving in the department, for whom 25% vacancies stand earmarked under the Rules, we endorse and approve of the verdict of the Tribunal that the cases of this category of employees be also processed for promotion subject to eligibility and fitness so as to fill-up their quota and restore, their rights. Respondent Government would ensure strict compliance with this part of the judgment of the Tribunal in consonance with the terms and the mandate of law as enunciated under the Service Rules.

6. Subject to the observation as above and modification in the impugned judgment this appeal is accordingly disposed of. (A.A) Order accordingly.

PLJ 2002 SC 112

[Appellate Jurisdiction]

Present: munir A. sheikh and javed iqbal, J J. Mst. MUSSARAT ARA KHANNUM-Petitioner

versus UMAID ALJ and another-Respondents

C.P.L.A. No. 6-Q of 1999 and Civil Appeal No. 1152/2001, decided on 10.5.2001.

(On appeal from the judgment dated 29.10.1998 High Court of Balochistan, Quetta, passed in Cv. Rev. No. 216/1995)

Constitution of Pakistan (1973)-'

—Art. 185(3)--Specific Relief Act (I of 1877), S. 12--Suit for specific performance of agreement to sell decreed by Courts below-Leave to appeal was granted to consider, whether impugned judgment has been passed on wrong premises of law and fact; whether after withdrawal of appeal, subsequent entertainment of revision was illegal; whether after holding that petitioner and respondent both were required to pay Court fee on specified value, appeal could have been treated as time barred; whether in view of chequered history of case, condonation of delay should have been granted; whether evidence on record had been appreciated in its true perspective by the High Court while deciding revision petition; whether agreement of sale could be enforced in absence of any consideration; whether calculations regarding time as made by Courts below were contrary to record; whether decree of trial Court in view of valuation of suit was patently without lawful authority and without jurisdiction; whether petitioner could have been non-suited only on basis of specific document implications whereof were never discussed by trial Court; whether statement of representative of Sub-Registrar would be sufficient to prove authenticity and genuineness of power of attorney; whether High Court examined statements of witnesses in depth to appreciate real controversy while deciding revision on merits; whether impugned judgment of High Court was in conflict with the dictum as laid down in PLD 1985 SC 341; 1994 SCMR 818 & 1997 SCMR 1811; whether document in question, was got registered before Sub-Registrar by petitioner herself; and whether points agitated in revision were dilated upon, discussed and decided by High Court while deciding revision.

[Pp. 114 & 115] A

PLD 1985 SC 341; 1994 SCMR 818; 1997 SCMR 1811 ref.

Mr. Mumtaz Hussain Baqsi, ASC and Mr. Mehta W.N. Kohli, AOR for Petitioner.

Mr. Maqbool Elahi Malik, ASC, Mr. Ihsan-ul-Haq, ASC and Mr. S.AM. Qaiidri, AOR for Respondents.

Date of hearing: 10.5.2001.

order

Javed Iqbal, J.-This civil petition for leave to appeal has been preferred on behalf of Mst. Mussarat Ara Khanum (petitioner) under Article 182(2) of the Constitution of Islamic Republic of Pakistan, 1973, whereby the judgment dated 29.10.1998 passed by a learned Division Bench of the High Court of Balochistan, Quetta, has been assailed whereby the revision petition filed on behalf of petitioner has been dismissed.

1. Briefly stated the facts of the case are that on 14th May, 1989 Amaid Ali (Respondent No. 1) filed a suit against petitioner and Ghai Khan (Respondent No. 2) in the Court of Civil Judge, Quetta, with the averment that a parcel of land measuring 25 acres, description mentioned in the plaint, was purchased from Ghai Khan attorney of the petitioner by means of agreement dated 11.1.1989 in the sum of Rs. 1,18,75000/- out of which Rs. 1,00,00000/- was paid to Ghai Khan and remaining amount was agreed to be paid after the transfer of land. The attorney of petitioner did not honour his obligation and showed reluctance to perform his part of obligation and meanwhile the petitioner also revoked the power of attorney. It was prayed in the suit that petitioner and her attorney be directed to transfer the disputed property in his name as he was willing to pay the balance amount of Rs. 18,75000/-. The subject matter of the suit for payment of Court fee and jurisdiction was valued as Rs. 110/-, The petitioner/defendant filed written statement by controverting the assertions made in the plaint with the specific denial of the execution of power of attorney dated 13.8.1998 in favour of Ghai Khan. In view of the pleadings of the parties, issues struck thereon and evidence led by them. The learned Civil Judge vide judgment dated 17th September, 1992 decreed the suit. Being aggrieved an appeal Bearing No. 42 of 1992 was preferred by the petitioner oh 10th November 1992 and Court fee of Rs. 15000/- was affixed on it which was admitted on 12th November, 1994. An objection was raised regarding its :naintainability on behalf of respondent and resultantiy the appeal was withdrawn with permission of the Court to present the same before the learned District Judge. The counsel for the petitioner obtained the memo of appeal on 3rd May, 1994 which was presented on the same day in the Court of learned District Judge, Quetta, alongwith application under Section 5 read with Section 14 of the Limitation Act. The appeal was rejected by the learned Additional District Judge-I, Quetta, being time-barred by means of judgment dated 13.6.1995. The petitioner assailed the- said order before the learned

High Court by means of revision petition (C.P. No. 216/1995) which has been dismissed vide impugned judgment, hence this petition, 3. Heard at length Mr. Mumtaz Hussain Baqsi, learned ASC on behalf of petitioner and M/s. Maqbool Elahi Malik and Ihsanul Haq learned ASCs for the caveators. After having gone through the entire record and the contentions as adduced on behalf of the parties we are inclined to grant leave to consider the following points out in the case:-

(i) Whether the impugned judgment has been passed on wrong premises of law and facts and -the same is an outcome of non-reading and misreading, of the material pieces of evidence substantiating the assertion of the petitioner.

(ii) Whether the permission to withdraw the appeal Bearing No. 42 of 1992 duly admitted on 12th November, 1992 subsequent entertainment of revision petition was illegal in view of the valuation of the suit amounting to Rs. 18,75000/- duly supported by order dated 26.11.1996 and consequently the impugned judgment was without jurisdiction and lawful authority having no legal effect at all.

(in) Whether after holding that petitioner and respondent both were required to pay Court fee on the value of the suit i.e Rs. 18.75000/-, the appeal could have been treated as time-barred.

(iv) Whether in view of the chequered history of the case it was a fit case for condonation of delay which mainly occurred due to bona fide impression and belief that appeal was to be filed before the High Court.

(v) Whether the evidence which has come on record has been appreciated in its true perspective by the learned High Court while deciding the revision petition on merits when the appeal was dismissed by the learned Additional District Judge on the sole ground of limitation.

(vi) Whether the agreement of sale can be enforced in absence of any consideration and its implications which aspect of the matter escaped notice from the learned High Court.

(vii) Whether the calculations regarding time as made by the learned appellate Court and relied upon by the learned High Court are contrary to record and petitioner could not justify the consumption of time between 18.9.1992 to 13.10.1992, 14.10.1992 to 10.11.1992, 14.12.1993 to 6.4.1994 and 6.4.1994 to 3.5.1994.

. (viii) Whether the decree of trial Court in view of valuation of the suit is patently without lawful authority and has been passed in exercise of jurisdiction which was never conferred upon it, therefore, the same being void is liable to be struck down as against such void decree no period of limitation would run.

(ix) Whether the petitioner could have been non-suited only on the basis of Ex. P/3 implications whereof were never discussed by the learned trial and appellate Courts in accordance with law and settled principles of justice.

(x) Whether the statement of Gul Jan (P.W. 4) representative of Sub-Registrar would be sufficient to prove the authenticity and genuineness of power of attorney (Ex. 2A) allegedly executed by the petitioner in favour of Ghai Khan when Gul Jan (P.W. 2) was neither a marginal witness nor it was executed in his presence.

(xi) Whether the learned High Court has examined the statements of Syed Temur Shah (P.W. '2) and Akhtar Muhammad (P.W. 3) in depth to appreciate the real controversy while deciding the revision petition on merits.

(xii) Whether the impugned judgment of the High Court of Balochistan is in conflict with the dictum as laid down in cases titled Fida Muhammad u. Muhammad Khan (PLD 1985 SC 341), Shumal Begum v. Gulzar Begum and 3 others (1994 SCMR 818) and Haji Faqir Muhammad and others u. Pir Muhammad and another (1997 SCMR1811).

(xiii) Whether Ex. 2-A was got registered before Sub-Registrar by the petitioner herself and the question of her identification has been dealt with properly by the learned High Court while deciding the revision petition.

(xiv) Whether all the points as agitated in the revision petition were dilated upon, discussed and decided by the learned High Court while deciding the revision petition.

1. Since the matter is an old one, therefore, the appeal arising out of this petition may be fixed at the earliest after having approval of his lordship the Hon'ble Chief Justice preferably in the second week of September, 2001.

(A.A) Leave granted.

PLJ 2002 SC 120

[Appellate Jurisdiction]

Present: iftikhar muhammad chaudhry, qazi muhammad parooq and

hamid ali mirza, JJ.

LAHORE HIGH COURT, LAHORE through REGISTRAR-Appellant

versus

K.M. SOHEL-Respondent C.As. Nos. 1687 to 1689 of 1999, decided on 31.5.2001.

(On appeal from the judgment dated 21.6.1999 passed Punjab Subordinate

Judiciary Service Tribunal Lahore in Service Appeals Nos.

2 to 4 of 1998)

(i) Constitution of Pakistan (1973)--

—Art. 185(3)-Adverse remarks recorded beyond the time schedule prescribed by the Government whether lose their efficacy—Leave to appeal was granted to consider; whether adverse remarks recorded beyond the time schedule prescribed by Government through instructions for recording ACR's have lost their efficacy in view of the dictum of Supreme Court in PLD 1986 SC 684 and 1999 SCMR 1587; whether instructions issued by Government for recording ACRs can be vacated by the High Court keeping view exigencies of services of persons of Punjab Sub-ordinate Judiciary to advance the principle of independence of Judiciary; whether Tribunal was right in folding that affected judicial officers should have been afforded personal hearing in support of their representations and consideration of their representations in absentia by Administrative Committee did not conform to the principle of Audi Alteram Partem; and whether impugned judgments were in deviation of the law laid down by Supreme Court in PLD 1986 SC 684; 1994 PLC (C.S.) 113; 1999 SCMR 1587; 1994 SCMR 722; 1999 SCMR 2141; and an un-reported judgment in C.P. No. 1250-L and 1241-L of 1997 decided on 21.7.1998. [P. 123] A

(ii) Constitution of Pakistan (1973)--

—Art. 185Concept of independence of Judiciary with reference to writing of ACRs of Sub-ordinate judiciary explained and illustrated--[ACRs of a judicial officer is generally based on his work which he performs as a Presiding Officer in his judicial capacity coupled with the manner of handing the case, behaviour with the General Public including his social contacts and reputation integrity wise etc which he enjoys warrants careful consideration because merely on basis of a bald unconfirmed information touching the reputation of a judicial officer or his general conduct or till the scrutiny of the judicial order passed by such an officer latest upto, appellate and revisional forums it is not advisable to write down such report in a haphazard manner—Because such report on both ways can operate detrimental for the officer and institution as if it has been written without assessing his work in a careless manner or if due to constraint of time he has been stamped overall good officer which otherwise he is not then such report would not only pave way for his promotion to higher grade but would also cause setback for the institution in the long run-As independence of judiciary is not only means that its incumbents should give decision independently without any fear and favour but equally it means that its member must exhibit through their performance both on the judicial as well as administrative side that there is no complaint against them of whatsoever nature because in our opinion criteria to allow a judicial officer to discharge judicial functions is only that there should not be single complaint against him and this object can conveniently be achieved if the duties are performed by a judicial officer honestly, diligently and to the best of his abilities instead of proving himself to be evil genius by writing good judgments in favour of either of the party not on merits but for some extraneous consideration which of course can be detected conveniently By the superior forums meant for scrutiny of the judgments i.e. appellate, revisional or constitutional forums-Therefore, due to such nature of service of judicial officer it is not possible to strictly follow the time frame laid down under Instruction No. 2 referred to hereinabove-However respective High Courts being independent institutions instead of applying old instructions on the subject of writing ACRs can through their Administrative Committees competently frame fresh instructions keeping in view the nature of the job of their subordinate judicial officers]. [P. 127] C

(iii) Maxim; Audi Alteram Partem-

—Applicability-Principle of natural justice contained in maxim Audi Alteram Partem i.e., no one should be condemned unheard was now being considered impliedly or expressly integral part of statute-Even administrative/executive authorities were required to adhere to that principle but at the same time it was not a principle which is recognized universally-However, subject to nature of proceedings and category of action contemplated to be taken against an individual rule of natural

justice can be extended or denied. [P. 128] D a

(iv) PunjabEsta Code, 1968--

—-Instruction No. 2~Constitution of Pakistan (1973), Art. 185--Time frame for writing ACRs as set out in Esta Code whether directory in nature--Guideline for writing ACR of judicial officers laid down by Supreme Court-[Instructions are directory in nature because non-compliance of time frame mentioned therein, entails no consequences-As far as a judicial officer is concerned in fact he remains constantly under supervision of his superiors through his judgments which are generally examined by higher forums while occupying elevated position like the appellate or revisional Courts-To assess/evaluate the work of judicial officer there could not be any other parameter except his own judicial performance which can speak a lot itself-Possibility of settling of factual controversy as well as interpretation of law could vary between two judicial forums acting under same hierarchy but application of relevant law remains same and if an inherent deviation from it is committed it would show that either the officer is inefficient or for some extraneous considerations law was misquoted and such act on his part is sufficient to unfold true picture about conduct of the said officer-As it is now well settled that a judicial officer exercising an authority under a law is bound to deliver correct and lawful judgments—Reference in this behalf maybe made to PLD 1987 S.C. 427 and 2001 SCMR 424-Therefore, if any judicial officer exercising powers under whatever capacity pronounce a wrong decision by applying incorrect law on the subject he makes himself liable for answer to his superiors as per Rules-As in our judicial system a considerable time is consumed before appellate, revisional or High Court in finally settling the controversy between the parties and confirming or otherwise the judgment under challenge therefore, writing of ACRs being based on the judicial functions of an officer can cause delay-Besides it, the integrity of a judicial officer has to be assessed by the reporting officer on basis of credible information which can also be linked or counter checked with his work being done by him in the Court-Therefore, to achieve these objects comparatively to assess over all performance as well as reputation of a judicial officer a longer time is required than writing the ACR on an officer of the executive-Essentially in the judicial system no methodology has been evolved so far to assess overall performance of a judicial officer promptly for the reason one of them has been cited hereinbefore or for any other reason including lack to time at the disposal of reporting officer who himself is a judicial officer and he remain busy in his own judicial work therefore to collect information before writing ACRs from the place where the judicial officer is posted consumption of more time can not be over ruled-Thus, due to nature of the job of a judicial officer and the commitments of the reporting officer strict compliance of the above instructions cannot be impressed upon strictly and for such reason above instructions itself has been made directory in nature as it has been held in the case of Ehsanul Haq Sethi (ibid).

[Pp. 125 & 126] B

(v) Subordinate Judiciary Services Tribunal Act, 1991-

—Preamble—Maxim Audi Alteram Partem-Constitution of Pakistan (1973), Art. 185-Affording personal hearing to affected judicial officer in support of his representation by Administrative committee of High Court- Extent~No rules having been framed for disposal of departmental representation no obligation can be placed on the department to provide him right of hearing necessarily-In addition with reference to judicial officer, reporting officer himself enjoys elevated position and he is bound to follow all norms of justice without being biased in any manner because unless any mala fide was attributed against reporting officer, presumption would be that performance of individual subordinate judicial officer has been evaluated transparently-Under hierarchy of judicial forum representation would also be disposed of by members of superior judiciary having presumably no malice against him unless pleaded, therefore, extending right of hearing to a member of subordinate judiciary while disposing of his departmental representation would not be mandatory-Departmental appeal, review or representation can thus, be disposed of by administrative committee of High Court without hearing individual concerned and if he still felt aggrieved against its order, he can agitate his view point before the tribunal where be would be allowed full opportunity to explain his case. [Pp. 128 & 129] E

PLD 1986 SC 684; 1999 SCMR 1587; 1994 PLC (C.S.) 113; 1994 SCMR 722; 1994 SCMR 2141; 1997 SCMR 1749 ref.

Malik Muhammad Azam Rasul, ASC and .Rao Muhammad Yousaf\ Khan, AOR (Absent) for Appellant.

Respondent Ex-parte.

Date of hearing: 31.5.2001.

order

Iftikhar Muhammad Chaudhry, J.--In instant appeals leave to'

appeal has been granted to consider the following questions:-

"(i) Whether the adverse remarks recorded beyond the time] schedule prescribed by the Government of the Punjab through instructions for recording ACRs have lost their efficacy in viewof the dictum of this Court in Government of the Punjab and another versus Ehsanul Haq Sethi (PLD 1986 SC 684) and, Chief Secretary, Government of Punjab, Lahore and 2 others- versus Muhammad Saeed Zafar (1999 SCMR 1587);

(ii) Whether the instructions issued by the Government of tW Punjab for recording ACRs can be varied by the High Courtkeeping in view the exigencies of service of persons of the Punjab Subordinate Judiciary to advance the principle o1 independence of judiciary;

(iii) Whether the Tribunal was right in holding that the affected judicial officers should have been afforded a personal hearing in support of their representations and consideration of their representations in absentia by the Administrative Committee did not conform to the principle of Audi Alteram Partem; and

(iv) Whether the impugned judgments were in deviation of the law laid down by this Court in Government of the Punjab and another versus Ehsanul Hag Sethi (PLD 1986 SC 684), Kh. Saeedul Hasssan, Ex-Additional District and Sessions Judge versus Government of the Punjab, through the Chief Secretary, Lahore(1994 PLC (C.S.) 113), Chief Secretary, Government of Punjab, Lahore and 2 others versus Muhammad Saeed Zafar and another (1999 SCMR 1587), F.Q. Matiullah Khan Alizai versus Chief Secretary, Government of N.W.F.P. and 5 others (1994 SCMR 722), Shaukat Javed Farooqi, Under Secretary, Civil Secretariat Lahore versus District and Sessions Judge, Lahore and another (1999 SCMR 2141) and an unreported judgment of this Court in Civil Petitions Nos. 1240-L and 1241-L of 1997 decided on 21.7.1998."

Malik Muhammad Azam appeared on behalf of appellant whereas respondent was proceeded against exparte.

1. K.M. Sohel, respondent being incumbent as Additional District and Sessions Judge earned adverse remarks as per Annual Confidential Reports (hereinafter referred to as the "ACRs") for the period 1.1.1995 to 31.12.1995, 7.9.1994 to 31.12.1994 and 1.1.1996 to September 1996 respectively. The reporting officer in ACRs graded him either, Poor or Below Average in Part III and Part IV as well as not a fit officer to hold charge independently at District or Sub Division Level while noting remarks in Part V relating to Pen-Picture of the Report, Similarly in Part VI of the report while recording his overall grading he was adjudged to be Below Average because he leaves bare minimum standard thus not yet fit for promotion and also reported to he corrupt. Therefore, on communication of Adverse remarks he sought for expunction of the ' same remarks by availing departmental remedy but without success. As such he invoked the jurisdiction of Punjab Subordinate Judiciary Service Tribunal, Lahore (hereinafter referred to as the "Tribunal") and filed Service Appeals Nos. 2, 3 and 4 of 1998. Learned Tribunal partially accepted Appeals Nos. 2 and 3 of 1998 covered by CAS No. 1687 and 1688 of 1999 respectively whereas in Appeal No. 4/1998 covered by C.AS. No. 1689/99 case was remanded to the competent authority for disposal of his departmental representation afresh after providing him opportunity of hearing. As such instant proceedings have been initiated.

2. Learned counsel contended that viewpoint of the Tribunal that the ACRs have to be recorded within reasonable time to achieve the object of maintaining ACRs is contrary to law laid down by this Court in the cases of Government of the Punjab and another versus Ehsanul Haq Sethi (PLD 1986 SC 684), Noor Ellahi Versus Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others (1997 SCMR 1749), and Chief Secretary, Government of Punjab, Lahore and 2 others versus Muhammad Sdeed Zafar and another (1999 SCMR 1587).

3. It may be noted that as per Instruction No. 2 of Punjab Esta Code issued vide Government Letter No. S(R)-3542 S&GAD 4-8/65-SO-XIII, dated 12th February 1968 time frame for writing ACRs has been provided. For convenience the same is reproduced hereinbelowc-

"2. When should a Report be written....The report shall relate to a calendar year. It shall be initiated in the first week of January by the initiating authority and forwarded to the higher authority in the same week. The higher authority shall give its remarks within one week. In case it is necessary to send the report to a third authority, it will be sent to the authority immediately. The final authority shall also record its views within a week. Time schedule has been laid down so that the remarks are based on the performance of Government servants during the calendar year to which they relate. Otherwise, consciously or sub-consciously subsequent events can contribute towards the formation of opinion in respect of the past year. Thus the reports should be completed within the month of January each year."

A perusal of above instructions persuades us to hold that these instructions are directory in nature because non-compliance of time frame mentioned I therein, entails no consequences. As far as a judicial officer is concerned in fact he remains constantly under supervision of his superiors through his judgments which are generally examined by higher forums while occupying elevated position like the appellate or revisional Courts. To assess/evaluate the work of judicial officer there could not be any other parameter except his own judicial performance which can speak a lot itself. Possibility of settling of factual controversy as well as interpretation of law could vary between two judicial forums acting under same hierarchy but application of relevant law remains same and if an inherent deviation from it is committed it would show that either the officer is inefficient or for some extraneous considerations law was misquoted and such act on his part is sufficient tc unfold true picture about conduct of the said officer. As it is now well settled that a judicial officer exercising an authority under a law is bound to delivei correct and lawful judgments. Reference in this behalf maybe made to PLI 1987 S.C. 427 and 2001 SCMR 424. Therefore, if any judicial office! exercising powers under whatever capacity pronounce a wrong decision fr applying incorrect law on the subject he makes himself liable for answer to his superiors as per Rules. As in our judicial system a considerable time i consumed before appellate, revisipnal or High Court in finally settling th controversy between the parties and confirming or otherwise the judgment under challenge therefore, writing of ACRs being based on the judicis functions of an officer can caused delay. Besides it, the integrity of a judicial officer has to be assessed by the reporting officer on basis of credible information which can also be linked or counter checked with his work being done by him in the Court. Therefore, to achieve these objects comparatively to assess over all performance as well as reputation of a judicial officer a longer time is required than writing the ACR on an officer of the executive. Essentially in the judicial system no methodology has been evolved so far to assess overall performance of a judicial officer promptly for the reason one of them has been cited hereinbefore or for any other reason including lack of time at the disposal of reporting officer who himself is a judicial officer and he remain busy in his own judicial work therefore to collect information before writing ACRs from the place where the judicial officer is posted consumption of more time can not be over ruled. Thus, due to nature of the job of a judicial officer and the commitments of the reporting officer strict compliance of the above instructions cannot be impressed upon strictly and for such reason above instruction itself has been made directory in nature as it has been held in the case of Ehsanul Haq Sethi (ibid). Relevant paras therefrom are reproduced hereinabelow:-

"As for the time schedule, Instruction No. 2 provides that it should be initiated within the prescribed time, that is, the first week of January and should relate to a calendar year. The purpose is two fold; firstly, that subsequent events may not consciously or unconsciously contribute in the formation of the opinion in respect of the reporting year; and, secondly, that the cases that cases for promotion and appointments cannot be properly judged in the absence of up-to-date Annual Confidential Reports, which results in frustration amongst the Government servants.

However, while construing this Instruction, there cannot be in every case a rigid compliance of the time schedule; and for this, the reason is not far to seek as there may be cases where while judging the case of Government servants for promotion and appointment there may not be up-to-date Annual Confidential Reports in which case the missing reports are to be called for a fuller consideration of the merits. (Reference in this connection may be made to Rule 2.30-a of the Guide to Performance Evaluation, O & M Division, Public Administration Research Center, Islamabad, which provides for the rendering of missing character rolls or their reconstruction). There may be other instances where because of the large number of Government servants and there widely dispersed postings, it may not be possible to complete their Annual Confidential Reports within the time schedule for many justifiable reasons. Yet there might be other cases where for some technical reason, the Annual Confidential Reports cannot be initiated at the proper time. Such instances are not exhaustive of the cases where time schedule cannot be rigidly followed. Designedly, therefore, no penal consequence was postulated for contravening the time schedule. Accordingly, this Instruction is directory in nature."

As it has been pointed out hereinabove that ACRs of a judicial officer is generally based on his work which he performs as a Presiding Officer in his judicial capacity coupled with the manner of handing the cases, behaviour with the General Public including his social contacts and reputation integrity (-)wise etc which he enjoys warrants careful consideration because merely on basis of a bald unconfirmed information touching the reputation of a judicial officer or his general conduct or till the scrutiny of the judicial order passed by such an officer atieast upto appellate and revisional forums it is not advisable to write down such report in a haphazard manner. Because such report on both ways can operate detrimental for the officer and institution as if it has been written without assessing his work in a careless manner or if due to constraint of time he has been stamped overall good officer which otherwise he is not then such report would not only pave way for his promotion to higher grade but would also cause setback for the institution in the long run. As independence of judiciary is not only means that its incumbents should give decisions independently without any fear and favour but equally it means that its member must exhibit through their performance both on the judicial as well as administrative side that there is no complaint against them of whatsoever nature because in our opinion criteria to allow a judicial officer to discharge judicial functions is only that there should not be single complaint against him and this object can conveniently be achieved if the duties are performed by a judicial officer honestly, diligently and to the best of his abilities instead of proving himself to be evil genius by writing good judgments in favour of either of the party not on merits but for some extraneous consideration which of course can be detected conveniently by the superior forums meant for scrutiny of the judgments i.e. appellate, revisional or constitutional forums. Therefore, due to such nature of service of judicial officer it is not possible to strictly follow the time frame laid down under Instruction No. 2 referred to hereinabove. However respective High Courts being independent institutions instead of applying old instructions on the subject of writing ACRs can through their Administrative Committees competently frame fresh instructions keeping in view the nature of the job of their subordinate judicial officers. Thus we are persuaded to hold that learned Tribunal formed the opinion under discussion in deviation of the principle laid down by this Court in PLD 1986 S.C. 684, 1999 SCMR 1587, 1999 SCMR 2141 and unreported judgment in Civil Petition for Leave to Appeal No. 1529-L/1996.

1. Learned counsel for appellant next contended that impugned judgment is also not sustainable in view of the observations of the Tribunal that effected judicial officer should have been afforded personal hearing in support of his representations and consideration of his representation in absentia by the Administrative Committee did not conform to the principle of Audi Alteram Partem. He explained that for the redressal of grievance of the judicial officer pertaining to their service Subordinate Judiciary Services Tribunal Act 1991 has been promulgated but under this Act no rules have been framed for the disposal of appeals, review or representation by the departmental authority. As such in absence of any statutory rules the representations of the members of the subordinate judiciary are disposed of by the Administrative Committee of the High Court who either itself decides such matters or constitute sub committees and on receipt of the reports from it then finally decide their cases. Therefore, in view of such procedure it is not possible to provide a right of hearing to an individual while disposing of his representation. Moreover it is a consistent practice in the Government Departments that representations are disposed of keeping in view the available record instead of hearing an individual in support of it. Because providing an opportunity of hearing is not practicable for the reason that such representations are filed by good number of judicial officers not only against their ACRs but relating to their other terms and conditions of service as well. He further stated that the principle of Audi Alteram Partem is not a vested right available to every individual as it has been held by this Court in the case of Abdul Haq Indhar and others V. Province of Sindh through Secretary Forest, Fisheries and Livestock Department^ Karachi and 3 others (2000 SCMR 907). Learned counsel was also of the opinion that in fact any re order passed on the representation by the competent authority is ultimately examined by a judicial forum i.e. Punjab Subordinate Judiciary Service Tribunal where aggrieved person gets full chance tc~p!ace before it his view point, as such question does not arise of causing prejudice to an individual ( member of subordinate judiciary by not allowing him right of hearing while deciding his representation, rei

2. There is no doubt that principle of natural justice as enshrined in maxim Audi Alteram Patrem i.e. No one should be condemned unheard is now being considered impliedly or expressly integral part of a statute. Even _ administrative/executive authorities are required to adhere to this principle but at the same time it 's not a principle which is recognized universally, However, subject to nature of the proceedings and category of the action contemplated to be taken against an individual this rule can be extended or denied as it has been held in the case of Ghulam Mustafa Jatoi V. Additional

District and Sessions Judge/Returning Officer, N.A., 158, Nushero Feroze (he and others (1994 SCMR 1299) and Abdul Haq Indhar (supra). As is has been

| | | --- | | have been framed, therefore, no obligation tcan be placed on the department to provide him right of hearing necessarily. In addition to it with reference to the cases of a judicial officer the reporting officer himself enjoys the elevated position and he is bound to follow all norms of justice without being biased in any manner because unless any mala fide is attributed against the reporting officer presumption would be that the performance of an individual subordinate judicial officer has been evaluated transparently. Similarly under the hierarchy of judicial forum a representation is also disposed of by the members of superior judiciary having presumably no |

and stated hereinabove that for disposal of departmental representations no rules 199 App com afte beei , malice against him unless if otherwise is pleaded. Therefore, extending right of hearing to a member of subordinate judiciary while disposing of his departmental representation is not mandatory because if representation so submitted by an officer is decided against him then he can agitate his grievance before a judicial forum i.e. Tribunal where he can fully avail right of hearing to persuade the Tribunal that the adverse report or order under challenge is not sustainable. Thus we are of the opinion that departmental appeal, review or representation filed by a judicial officer can be disposed of by the administrative committee of the High Court without hearing the individual concerned and if he still aggrieved against its order he can agitate his view point before the Tribunal where he will be allowed full opportunity to explain his case.

Thus for the foregoing reasons appeals are allowed and the impugned order dated 21.6.1999 is set aside.

(A.P) Appeal accepted.

PLJ 2002 SC 129

[Appellate Jurisdiction]

Present: iftikhar muhammad chaudhry and qazi muhammad farooq, JJ.

HALA SPINNING MILLS LTD.-Appellant

versus

INTERNATIONAL FINANCE CORPORATION and another-Respondents C.A. No. 1528/1999, decided on 6.6.2001.

(On appeal from the order dated 23.12.1999 passed by Lahore High Court, Lahore in Civil Original No. 26/1996)

Companies Ordinance,1984 (XLVII of 1984)--

—Ss. 305, 306 & 10(l)--Order of winding up of appellant's Company assailed-Creditor's right to pray for winding up of Company-Failure of appellant to establish honest and bona fide dispute-Creditor by assignment or otherwise to whom company was indebted in a sum exceeding one percent of its paid up capital or fifty thousand rupees whichever was less than due can initiate legal proceedings for winding up of company registered under companies ordinance-Project for which loan was advanced by respondent was admittedly completed after the target date, respondent therefore, had no binding commitment to inject more funds on pro-rate basis for the completion of that project-Appellant company was responsible providing foreign exchange risk cover to the loan which it had obtained from respondent, but no such steps having been taken by it respondent cannot be blamed for the same-Plea so

raised by appellant was thus, not sufficient to conclude that appellant had successfully raised honest/feona fide dispute to defend winding up proceedings against it-Statement of account and balance sheet audited by auditors of company would lead to opinion that company was financially solvent to clear its liability or otherwise, as a consequence whereof winding up petition can be disposed of accordingly-Liability of outstanding debts has not been denied by the company, therefore, it was not in a position to arrange working capital and to run the same to be in a position to make profit after clearing its liabilities-Respondent being in its independent capacity, need not have joined hands with all the creators of appellant company and had itself acquired right as a creditor to move windirig up petition in as much as, its debts were more than fifty thousand rupees-Circular issued by State Bank of Pakistan to settle outstanding due, through a document overriding provisions of S. 305 of Companies Ordinance, 1984-Company judge, thus, validity ordered winding up of appellant company, therefore, no interference was warranted in that order. [Pp. 136, 138, 139 to 142, 144 & 145] A to H

PLD 1996 SC 601; PLD 1990 SC 763, 768, 1998 SCMR 1535 ref.

Mr. Umar Atta Bartdial, ASC and Mr. M.S. Khattak, AOR for Appellant.

Dr. Pervez Hassan, Sr. ASC, Mr. M. Bilal, Sr. ASC and Mr. EjazMuhammad Khan, AOR for Respondents. Dates of hearing: 2 to 4.5.2001.

judgment

Iftikhar Muhammad Chaudhry, J.--This appeal is preferred by Hala Spinning Limited (Appellate) under Section 10 (1) of the Companies Ordinance, 1984 against its winding up order dated 23.12.1999 passed by learned Company Judge of Lahore High Court Lahore in Civil Original No. 26 of 1996.

1. Facts relevant for disposal of the instant appeal are that Respondent No. 1, International Finance Corporation (IFC) on March 26, 1996 instituted proceedings under Section 305/306 of the Companies Ordinance, 1984 before the Lahore High Court Lahore praying for compulsory winding up of appellant's company on averments that financial Accommodation was extended by it to the appellant by way of loan for establishing new spinning plant having capacity of producing 3758 metric tons of yarn products annually at Bhai Pheru, District Kasur amounting to Rs. 156,823,876 equal to 461,510,000 Japanese Yen. The Parties executed loan agreements/documents. However, from the Investment Agreement dated 4.2.1989 following conditions are reproduced hereinabove being relevant for disposal of instant appeal:-

"1. Interest at the rate of six and one-half (6-1/28) per annum is payable quarterly on the fifteenth (15th) day of March, June, September, and December each year (Section 3.02).

1. Repayment was to be made in sixteen (16) equal installments of wenty-eight million eight hundred and forty four thousand three hundred and seventy five Japanese Yen (Yen 28,844,375) only equivalent to nine million eight hundred and one thousand for hundred and eighty seven rupees only (Rs. 9,801,487) semi- annually starting from 15 June 1991 and ending 15 December, 1998 (Section 3.04).

2. Default in payment of the principal amount of the Financial Accommodation, and the interest thereon constitutes as Event of Default under Article VII. The petitioner in such eventuality has the right (Section 7.01) to accelerate repayment of the Financial Accommodation by declaring the principle of and all accrued interest on, the Financial Accommodation. The respondent company is liable to pay all amounts owing to the petitioner pursuant to the Financial Accommodation in Japanese Yen (Section 3.11) except technical appraisal fee which is payable in United States Dollars."

3. The Company shall have obtained foreign exchange risk cover, through the State Bank of Pakistan's Foreign Exchange Cover Insurance Scheme, for the Loan and the Col-Lender's Senior Loan specified in Section 2.02 (b)."

4. The respondent IFC alleged that schedule of repayment was not adhered to by the appellant because upto 15th June 1991 part payment of first installment of loan with interest was made whereas the balance of the first installment and subsequent thereto remaining installments were not paid, therefore, respondent company started insisting upon appellate to fulfill its commitments in terms of Investment Agreement (ibid) but not heed was paid. Consequently respondent was left with no option but to accelerate repayment of Financial Accommodation vide notice issued on 21th June 1995 wherein it demanded following outstanding amounts from appellant:-

"1. Four hundred and thirty-three million five hundred and thirty-six thousand five hundred and thirty-four Japanese Yen (Y433,536,534) only equivalent to one hundred and forty seven million three hundred and eighteen thousand two hundred and . forty Rupees (Rs. 147,318,240) only;

1. eighty-five million seven hundred and twenty-three thousand and three Japanese Yen (Y85,723,803) only equivalent to twenty-nine million one hundred and twenty-nine thousand four hundred and forty eight Rupees (Rs. 29,129,448) only; and

2. nineteen million six hundred and forty-eight thousand one hundred and ninety-three Japanese Yen (Y19,648,193) only equivalent to six million hundred and seventy-six thousand five hundred and seventy Rupees (Rs. 6,676, 570) only".

3. It seems that despite receipt of notice no positive response was shown by appellant, consequently statutory notice under Section 306(1) of the Companies Ordinance 1984 was served by respondent wherein appellant was called upon to repay all outstanding amounts of loan as stood on 15th June 1995 i.e. amounting to 538,908,530 Japanese Yen equivalent to Rs. 183, 124, 258/- within 30 days of the receipt of the notice. As on expiry of stipulated period the outstanding amount was not paid, therefore, respondent considered it proper to institute proceedings of winding up of appellant company because in its consideration it was just and equitable that the company should be wound up, as such petition under Section 305/306 of the Companies Ordinance 1984 was submitted in Lahore High Court, Lahore being C.O. No. 26 of 1996.

4. The appellant contested the petition inter alia contending that there exist honest dispute between them. However, categorically it asserted that company is commercially solvent and a running business concern. Its assets are more than the amount allegedly claimed by the respondent. Besides it there are other creditors of the company including IDBP who have substantial interest in the project and they do not want its winding up therefore on behalf of one of the creditors who does ranks as Principal creditor amongst CDC, IDBP and NDFC who have also financed the project the petition is not competent. Appellant further asserted in written statement that cost of the project was estimated in the year 1988 with a target date of its completion on or before 31st December 1989 but on account of conduct of IFC who obtained report from its consultant i.e. "Mauler" funds were not released in time, because finally Investment Agreement was executed on February 4, 1989 and for other reasons beyond its control the completion of the project delayed due to which cost of the project increased resulting in causing financial disadvantages to it. Therefore, uptil 31st December 1990 the project could not be ompleted and this delay caused ncrease in the cost of the project both on account of general price increases in the cost of equipment civil works as well as on account of withdrawal/lapse of certain tax exemptions that would have been available had the project been completed in time. Report also stated that as per the assertion of appellant company on the one hand on account of delay in completion of project it was suffering clossal losses and on the other hand respondent company pressed into service Condition No. 3.04 of the Investment Agreement without realizing that the payment dates had been negotiated and agreed upon the fundamental assumption that the repayment would not start for at least 18 month after the project becomes operational. In this sequel respondent agreed in the year 1994 to provide an unconditional bank guarantee to enable the appellant to arrange working capital finance from local banks and financial institutions but this commitment was also not fulfilled and abruptly notice was issued to appellant on 16th October 1995 indicating its desire to file winding up proceedings.

5. The respondent filed a detailed rejoinder to the written statement of the appellant repudiating the assertions made therein in pursuance whereof the respondent company was being blamed to be responsible for non-completion of the project in time and also for sustaining clossal loss because it failed to provide financial validity of conditional bank guarantee in favour of appellant to arrange working capital from the local banks.

6. It is also to be observed that in the winding up petition other creditors of appellant company originally were not joined particularly IDBP who is said to be major creditor of the appellant. A perusal of judgment fids mention that at initial stages IDBP was reluctant to support winding up proceedings but subsequently it also conceded prayer of the respondent for winding up of the company.

7. Learned Company Judge of Lahore High Court vide impugned order dated 23.12.1999 accepted the petition filed by respondent, as such instant appeal has been filed.

8. Learned counsel for appellant contended that:--

(i) Whether a running company be wound up at the instance of a creditor without establishing its debts when the debts are contrary to law and public policy?

(ii) Can the opinion of the Auditor constitute a decisive ground to wind up the company?

(iii) Whether a foreign company can invoke the jurisdiction of Pakistani Courts for winding up of a company contrary to provisions of Section 456 of the Ordinance as well as without satisfying the requirements of Sections 451, 452 etc., of the Ordinance?

(iv) Whether the statutory forum meant for revival of sick industrial units should not be given an opportunity to find out solution to keep the appellant company a running commercial concern?

1. Learned counsel for respondent argued that undo btedly appellant company is a running concerned but it is no more a viable commercial concern as its liabilities have increased more than its paid up capital and share of equity of the sponsors. In fact the financial liabilities of appellant company are increasing day by day as per the reports of the auditors, therefore, to save the project from further financial deterioration it is just and proper that if the order of its winding up is maintained. In addition to it appellant legitimately could not raise a bona fide dispute relating to its liability on the pretext that the loan advanced to it by the respondent IFC is contrary to law and public policy. To ascertain the financial condition of a public limited company the auditors' report is considered most authentic in view of the law laid down by the superior Courts, therefore, it does constitute a decisive ground to ascertain whether the company is in a position to clear it financial liabilities or it should be wound up in interest of creditors. The respondent is not company within the meaning of Ordinance but is an establishment which has been created under the International Finance Corporation Act, 1956 (XXVIII of 1956) as such arguments put forward by appellant's counsel in this behalf have no force.

The Statutory Committee for revival of sick industrial units did consider the case of appellant's company but now it has been dropped because one of the creditors i.e. Industrial Development Bank of Pakistan Limited under the advice of its management has not approved its restructuring and rescheduling.

1. We have considered the arguments put forward on behalf of parties counsel and we first of all consider it proper to deal with the last mentioned contention of appellant's counsel namely the Statutory Committee for revival of sick industrial units must get a chance for rescheduling and restructuring the debts of appellant. It may be seen that on March 29, 2001 learned counsel for appellant got adjourned case because he has approached the Committee for revival of sick industrial units in order to settle the disputed questions but subsequent thereto no progress was shown to have been made as per available record. Learned counsel during arguments insisted time and against that at the behest of appellant as well as IDBP to whom he designated to be the Principal Creditor the Committee is still ceased with the matter. Learned counsel for respondents vigorously contested such stand of'appellant's counsel and contended that the object of raising such contention is nothing except to cause delay in disposal of the appeal for one or the other reason. To substantiate his plea learned counsel contended that initially IDBP was not interested in the winding up of appellant's company but as per the observations of learned Company Judge of Lahore High Court the IDBP also shown interest in winding up of the company. He made a statement at the bar that though he is not holding brief on behalf of IDBP but according to him its representative remained present in the Court during hearing and had also shared with him the stand point of Management of IDBP in not approving the restructuring and rescheduling loans of appellant. It is to be observed that whenever a case of winding up of a running company is placed before a Company Judge or the appellate Court they should examine such matter differently other than a company which is not in a running condition. In this behalf efforts should be made by the judicial forums to adopt such a device so the project may remain continue

running commercially so its financial liabilities start reducing gradually. The business trend in the market is that if running concern is put to sale it fetches high price of its assets which can substantially clear proportionate liability of the creditors. There is no iota of doubt that appellant company is under heavy debts but still it is struggling for its survival by adopting different devices including restructuring and rescheduling of its debts by approaching the Statutory Committee of revival of sick industrial units. It is an admitted fact that the Committee took cognizance for its revival and had also made deliberations as it is indicative from letter dated 3rd May 2001 which was produced in the Court during hearing when on our query learned counsel for the respondent contacted Chairman of the Committee to let the Court informed about the progress in this behalf but ill-luck of the appellant that the Management of IDBP did not approve restructuring and rescheduling of the loans. It has been observed faereinabove that the IDBP independently had never remained interested in winding up of appellant's company but as now the winding up order has been passed by learned Company Judge of Lahore High Court perhaps due to this reason its management is reluctant to cooperate with appellant.

1. At this moment competence of Respondent No. 1, IFC to invoke jurisdiction of a Company Judge for winding up of appellant company under the Ordinance has also gained pivotal importance. On having gone through Section 2 (7) of the Ordinance which provides definition of "Company" i.e. a Company formed and registered under this Ordinance or an existing company we are of the opinion that respondent IFC does not fall within the definition of a company who has got its registered office in Pakistan. Thus question is whether as per the mandate of Section 456 of the Ordinance the respondent corporation has a right to affects its liabilities under the contract. As per requirement of this section any failure by a foreign company to comply wjth any of the requirements of Section 451 or Section 452 shall not affect the validity of any contract, dealing or transaction entered into by the company or its liability to be sued in respect thereof but the company shall not be entitled to bring any suit, claim any set-off, make any counter claim or institute any legal proceedings in respect of any such contract dealing or transaction until it has complied with the provisions of Section 451 and Section 452 of the Ordinance. As far as the first part of this provision is concerned it needs no further elaboration so far its latter portion is concerned on basis of it a foreign company cannot institute legal proceedings without fulfilling the requirements of Sections 451 and 452 of the Ordinance. We think that in the instant case the respondent corporation was not required to complete formalities as have been envisaged by Section 451/452 of the Ordinance because as it has been observed hereinabove that the respondent is not a company duly registered in Pakistan or in foreign but is a statutory corporation which has its recognition in Pakistan by Act XXVIII of 1956 of the Parliament. The scheme of which demonstrates that it enjoys the

status of the corporation possessing full juridical personality particularly empowered:--

(i) to contract;

(ii) to acquire and dispose of immovable property;

(iii) to institute legal proceedings.

It may be noted that all legal proceedings for winding up of a company registered under the Ordinance can be initiated by a creditor by assignment or otherwise to whom the company is indebted in a sum exceeding one per cent of its paid up capital or fifty thousand rupees whichever is less than due, under Section 306(l)(a) of the Ordinance. Admittedly respondent is the creditor of appellant and it has extended credit to it which is more than Rs. 50,000/-, therefore, after completing the formalities it has a right to pray for the winding up of the appellant company. Thus objection raised in this behalf by the appellant being without substance is over-ruled.

1. Now we would advert towards the objection raised by the learned counsel namely; should a running company be wound up at the instance of a creditor without establishing its debts which are contrary to law and public policy. Learned counsel contended that appellant company is a viable commercial concern as it has been discharging its financial liabilities from 1989-90 to 1997-98 as per the extract from the Auditors reports pertaining to this period inasmuch as it had also repaid long term Financial Accommodation of respondent Corporation upto 1991-92, therefore, it would be unjustified to allege that the company is not in a position to discharge its liabilities. He further contended that respondent IFC was under an obligation tp provide assistance to appellant to manage working capital as per the financial plan mentioned in Article 2 of the Investment Agreement dated 4.12.1989 but it did not co-operate with appellant because in 1994 respondent made a commitment to stand guarantor on appellant's behalf but later-on failed to do so and issued notice indicating its desire to file winding up petition. He further stated that respondent is an investor with appellant and when the investment is being made by it, it becomes its duly to strictly adhere to the conditions of the agreement to ensure that appellant company may achieve objects conveniently.

2. On the other hand learned counsel for respondents has drawn out attention towards Article 2(b) of Investment Agreement which shows proposed source of financing of project. It reads as under:

"(b) Under the Financial Plan, the proposed source of financing are as follows:-

In view of above different Finance Accommodations learned counsel explained that share of respondents is more than appellant as well as I.D.B.P. According to him respondent corporation had a commitment with the appellant to make the deficiency good to the extent of its share, as per Article 2 of Project Fund Agreement dated February 1989 if such a request is made during the call period but as the appellant failed to complete the project during the call period, therefore, respondent corporation was neither under obligation to provide working capital nor to inject further finance to meet with the deficiency on pro-rata basis. Moreover it had no obligation to cooperate with appellant in getting further loans from Local Financial Institutions for the purpose of arranging working capital etc.

1. A perusal of Section 2.02 of Investment Agreement dated February 4,1989 indicates that total estimated cost of the project was shown to be US $ 19,070,000 including not less than the equivalent of Us $870,000 for working capital. As per the break up of the cost of the project working capital has been shown in the local currency equal to 0.87 million US $. It is noteworthy that Financial Accommodation by IFC was to the extent of foreign currency i.e. Japanese Yen which means that to provide working capital respondent IFC has no obligation nor this agreement indicates that IFC was bound to furnish guarantee to Local Financial Institutions on behalf of appellant to get working Capital. A perusal of footnote under Article 2(b) of Investment Agreement reveals that in the event that the actual cost of equipment is different from the estimate set forth in Section 2.03 (a), or if

there are refinements in other items of Project cost, the Financial Plan will be revised accordingly on a pro rate basis between equity and debt. It is also to be observed that respondent IFC was liable to make up the deficiency in the completion of the project if such demand has been made during the call period defined under Article l(b) of Project Fund Agreement, which means "Call Period" "the period beginning on the date of this agreement and ending on that date which is ninety days after the date on which IFC shall have received financial statements in respect of a period which ends on the Project Completion date, such financial statements to be prepared and audited in accordance with the provisions of Section 6.01 (e) of the IFC Investment Agreement except that the period covered need not be a Financial Year". As per Investment agreement dated 4th February 1989 Articled Section 2.01 the estimated project completion date is December 31,1989. Admittedly the project was completed after the said date, therefore, the respondent Corporation had no binding commitment in inject more funds on pro rate basis for the completion of the project not it has any other obligation to arrange Working Capital because no such request was made by the appellant during 'Call Period' and if any alleged commitment was made by appellant in 1994 to furnish guarantee on behalf of appellants to Local Financial Companies it was beyond the purview of Investment Agreement thus had no binding effect.

1. It was next contended by learned counsel for appellant that in terms of Article 5(h) of Investment Agreement respondent Corporation was bound to have obtained foreign exchange risk cover for the loan through the State Bank of Pakistan's Foreign Exchange Cover Insurance Scheme but respondent Corporation did not insist for compliance of this clause as a result whereof the rate of interest tremendously increased from 6.50% to 300% due to devaluation of Pakistani Rupee and if the rate of interest is charged on the loan in view of West Pakistan Usurious Loans Ordinance (XVIII of 1959) the liability of the appellant towards the respondent Corporation will decrease substantially, payment of which of course would not be difficult for it.

2. Learned counsel for respondent contended that the plea now being raised by appellant was not agitated before learned Company Judge, therefore, as per the practice of the Supreme,Court appellant's counsel cannot be allowed to argue the same. Alternatively he stated that appellant company was responsible for providing foreign exchange risk cover to the loan with it-has obtained from the respondent. Admittedly no steps were taken by it to obtained foreign exchange risk cover, therefore, respondent corporation cannot be blamed for it. Moreover West Pakistan Usurious Loans Ordinance, 1959 will have no application on the proceedings which have been initiated under Section 305 of the Ordinance. According to him non-obtained of foreign exchange risk cover will not solely give rise to honest and bona fide dispute between the parties forbidding the Court to pass orders of winding up of appellant's Company.

3. It may be noted that whenever proceedings under Section 305 of the Ordinance are instituted against a company same are normally defended on the pretext that there is a bona fide dispute with regard to debts outstanding against it, therefore, winding up order cannot be passed against it. This Court in the case of M/s. Sindh Glass Industries Ltd. Karachi V. M/s. National Development Finance Corporation and 2 others (PLD 1996 S.C. 601) while dealing with the question relating to bona fide dispute between the parties in a winding up case referred to the following extract from the Palmer's Company Law and Pennington in Company Law. The extracts are reproduced hereinbelow:-

PALMER's COMPANY LAW

"Almost the only answer open to the company is to how that the debt claimed is bona fide disputed, in which case a winding up petition is not proper mode of enforcing it. Where the debt is undisputed, it is futile for the company to say, we are able to pay our debts, but we do not choose to pay this particular debt. The Court will not listen to such a defence. Similarly, where there is no doubt that the company owes the creditor a debt entitling him to a winding up order and only the precise amount of the debt is disputed, the Court will make a winding up order without requiring the creditor to quantify his debt precisely. Where the debt is undisputed, but the company has a genuine cross claim against the petitioning creditor, it is a matter for the discretion of the Court whether a winding up order should be to dismiss the petition or stand it over until the cross-claim has been heard:"

PENNINGTON IN COMPANY LAW.

"If the company contends that it is not liable to him (creditor) and can satisfy the Court that it has substantial and reasonable defence to plead, the Court will hold that it is not in default and would refuse to make a winding up order."

1. Examining the case of appellant in view of above extracts we are inclined to hold that the plea so raised by appellant does not give rise to a honest/feona fidedispute firstly for the reason that this plea was not agitated before learned Company Judge in pleadings or at the time of arguments; secondly as per the provisions of Article 5(h) the Investment Agreement it was the duty of appellant company to have obtained foreign exchange risk cover for the loan which it had obtained from respondent Corporation. Undoubtedly the corporation has also not insisted for enforcement of this clause strictly but merely for this reason it is not possible for us to hold that the condition has been waived by the respondent because in an agreement executed between the parties to fix their obligation and liabilities there are such conditions which are to be enforced unilaterally be one of the parties. Thirdly in relation to a winding up proceedings the provisions of West Pakistan Usurious Loans Ordinance 1959 cannot be pressed into service. Thus we are of the opinion that the plea so raised by the learned counsel is not sufficient to conclude that appellant has successfully raised a honest/ bona fide dispute to defend winding up proceedings against it.

2. Now coming towards the next limb of appellant's argument that the opinion of the Auditor of a company does not constitute a decisive ground to wind up the company. In this behalf reference to Section 230 of the Ordinance is necessary according to which every company is obliged to keep at its registered office proper books of account, details of which is as under-

"(a) all sums of money received and expended by the company and the matters in respect of which receipt and expenditure takes place;

(b) all sales and purchases of goods by the company;

(c) all assets of the company;

(d) all liabilities of the company;

(e) in the case of a company engaged in production, processing, manufacturing or mining activities, such particulars relating to utilization of material or labour or to other inputs or items of cost as may be prescribed, if such class of companies is required by the Authority by a general or special order to include such particulars in the books of accounts."

As per sub-section (7) of Section 230 of the Ordinance every Director including chief executive and chief accountant of the company is bound to comply with directions provided under sub-sections (2) to (6) of the Ordinance. As per Explanation attached to sub-section (7) the term "chief accountant" has been defined to include the chief accountant or any other person by whatever name called who is charged with the responsibility of maintaining books of accounts of the company. As per Section 233(3) of the Ordinance the balance sheet and the profit and loss account or income and expenditure account shall be audited by the auditor of the company appointed under Section 252 of the Ordinance. The careful examination of these provisions led us to draw inference that either the Director or the Chief Accountant are bound to maintain account books and whatever figures are mentioned therein are required to be audited by the auditor of the company. It is significant to no that under Section 234 of the Ordinance the balance sheet of a company shall give a true and fair view of the state of affairs of the company at the end of its financial year.

1. From above provisions of law importance of books of account to be kept at the registered office of the company as well as preparation of Annual Accounts and balance sheet can be well imagined. As under Section 305(e) of the Ordinance a company can be ordered to be wound up if it is unable to pay its debts, therefore, to expel the impression that company is not unable to clear its debts the statement of accounts and balance sheet duly prepared and audited by the auditor of the company can furnish strong defence. This Court in the case of Messers Al Woollen Mills Ltd. V. Industrial Development Bank of Pakistan (PLD 1990 S.C. 763) noted the importance of the annual balance sheet and the profit and loss account in the context that these two documents can be produced in rebuttal of the evidence that the company was plainly insolvent. From such observations in the judgment it can be deduced that proper maintaining of accounts and preparation of statement of account as well as balance sheet duly audited by the auditor of the company in terms of Section 230/233 of the Ordinance can be considered material documents to exercise the discretion either to allow petition for winding up or to reject it subject to true depiction of financial condition of the company. Thus on the basis of statement of account and balance sheet duly audited by the auditor of the company opinion can be formed that the company is financially solvent to clear its liability or D otherwise. As a consequence whereof winding up petition can be disposed of accordingly.

2. In instant case appellant neither in reply to the notice under Section 306 (a) of the Ordinance nor in rejoinder to the petition for winding up under Section 305 of the Ordinance referred to any of the statements of account or balance sheets to rebut the assertion of the respondent corporation inasmuch as during pendency of proceedings before the Company Judge as well as before this Court duly audited statement of accounts and balance sheets have not been filed to canvass that appellant's company is commercially solvent and it has financial capacity to clear its liability, therefore, discretion be exercised in its favour by rejecting petition for winding up. However, learned counsel for respondent corporation for our perusal had placed on record copies of statement of account/balance sheets duly audited by the auditor of appellant's company. After having gone through the balance sheets carefully no other opinion can be formed except that appellant company is not financially sound enough to clear is liabilities which have gone upto Rs. 85 crores against total investment of the appellant factually the appellant company instead of doing profit is running into loss which is increasing day by day. It may be noted that this Court in number of judgments reported in M/s. All Woollen Mills Limited V. Industrial Development Bank of Pakistan (PLD 1990 S.C. 763). Trade and Industry Publications Limited V. Industrial Development Bank of Pakistan (PLD 1990 S.C. 768), M/s. Sindh Glass Industries Limited Karachi V. National Development Finance Corporation Karachi and 2 others (PLD 1996 S.C. 601), M/s. Sindh Technical Industries Limited V. M/s. Investment Corporation of Pakistan (1998 SCMR 1533) after detailed discussion has held that if it is impossible to carry on business of the company except at loss and there is no reasonable hope that the object of trading at profit can be

achieved and probable assets are insufficient to meet the existing liability then winding up of the company becomes inevitable.

1. In the case in hand as far as liability of outstanding debts of the appellant is concerned that had not been denied at all, rather to the contrary in the rejoinder to the petition losses incurred by it had been admitted inasmuch as non-availability of working capital has been set forth to be one of the reasons of running the company into loss. Therefore, for such situation where a company is even not in a position to arrange a Working Capital how hopes can be attached with it that if it it allowed to run in the same situation it will be in a position to make profits after clearing the liabilities. In the case of M/s. Sindh Glass Company Limited (ibid) this Court has made following observations while interpreting Section 306 of the Ordinance which reads thus:-

"4. The petitions were filed under Sections 305, 306, 290 and 292 of the Companies Ordinance, 1984. Under Section 305 of the Ordinance, the Court is empowered to wind up a company on a petition filed by a creditor on the ground that the company is unable to pay its debt. Section 306 provides the meaning of the words "unable to pay its debt" and read as follows:-

"306. Company when deemed unable to pay its debt. (1) A company shall be deemed to be unable to pay its debts.

(a) if a creditor by assignment or otherwise to whom the company is indebted in a sum exceeding 1% of its paid up capital or fifty thousand rupees, whichever is less, than due, has served on the company, by causing the same to be delivered by registered post or otherwise, at its registered office, a demand under his hand requiring the company to pay the sum so due and the company has for thirty days thereafter neglected to pay the sum, or to secure of ompound for it to the reasonable satisfaction of the

creditor, or

(b) if execution or other process issued on a decrrje or order of any court or any other competent authority in favour of a creditor of the company is returned unsatisfied in whole or in part; or

(c) if it is proved to the satisfaction on the Court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debits, the Court shall take into account the contingent and prospective liabilities of the company.

(2) The demand referred to in clause (a) of sub-section (1) shall be deemed to have been duly given under the hand of thecreditor if it is signed by an agent or legal advisor duly authorized on his behalf, or in the case of a firm if it is signed by such agent or legal advisor or by any member of the firm on behalf of the firm." Under Section 306 (1) (a) if a creditor serve a notice for repayment of the amount due as specified in this provision, by registered post, demanding it to pay the sum due and the company refuses or neglects to pay for thirty days thereafter or to secure or compound to the reasonable satisfaction of the creditor, then the company shall be deemed to be unable to pay its debt. In such circumstances, presumption will be that the company is unable to pay its debt. This would be a sufficient proof of company's inability to pay its debt, but such presumption is rebuttable and if the company is able to show that it has sufficient assets to pay the debts then the Court will inquire into it to satisfy itself whether it is unable to pay debts. In order to discharge this burden, the company can not by mere denial of liability avoid winding up action under this provisions. It is the first and foremost duty of the creditor to show that an amount as required by law is due and the company is indebted in a sum of money presently due and payable. The inability to pay an undisputed debt as a rule may lead to conclusive proof of the fact that the company is unable to pay debts, however, then the company disputes any debts it should bring forth sufficient material to rebut the presumption arising from Section 306(l)(a) that the debt is either not due or there is a bona fide dispute. Mere flat denial without showing that there exists bona fide and genuine dispute about the indebtedness will not displace the presumption of inability to pay. In re: Bryant Investment Company Limited (1972) 2 All England Law Reporter 683, it was held that "neglect to pay after a demand by a creditor is cogent evidence that the company is unable to pay its debts but a company will not be deemed unable to pay its debts where the relevant debts are not yet due for payment". A dispute as to the precise sum owing to a creditor if it does not extinguish the debt was held in Re: Tweeds Garge Limited (1962) 1 All England Law Reporter 121 not to be genuine and legitimate dispute. In Man (1968) 2 All England Law Reporters 679, it was observed that where the existence of debt on which winding up petition is founded is disputed on grounds showing up a substantial defence requiring investigation, the creditor/petitioner was held to have no locus standi and Companies Court was not a proper forum for decision. Therefore, the company in order to defend a winding up petition should raise legitimate and bona fideissue disputing the liability to pay. Any debt which cannot be disputed on legitimate and bona fide grounds, the same shall if the company is unable to pay, would furnish a ground for winding up."

The principle of law discussed by this Court in the above judgment fully supports the case of respondent IFC, therefore, failure on the part of appellant to establish the honest and bona fide dispute persuades us to hold that it is in the interest of the creditors of the appellant that it should be wound up.

1. Learned counsel for appellant also contended that besides the respondent corporation there are other creditors of the company including IDBP being the Principle creditor and they have not approached the Company Judge with request of winding up.

2. Learned counsel appearing for IFC contended that CDC (Common Wealth Development Corporation) and NDFC are also interested for winding up of the company because their liabilities have also not been cleared,. He further stated that as far as IDBP is concerned though initially it was not interested because appellant had been repaying its debts but now IDBP had also become interested in winding up of the appellant company as per the observations by learned Company Judge in impugned order as well as the letter dated 3rd May 2001 filed by the Chairman of the committee for the Revival of Sick Industrial Units. He further stated that appellant company had made itself liable for a criminal action as well for repaying debts of the IDBP fraudulently during pendency of liquidation proceedings against it.

3. Section 306(l)(a) of the Ordinance confers a right upon a creditor by assignment or otherwise to whom the company is indebted in a sum exceeding one percent of its paid up capital or fifty thousand rupees whichever is less than due has served notice on the company by causing the same to be delivered by registered post or therwise at its registered office, under his hand requiring the company to pay the sum so due and the company has for thirty days thereafter neglected to pay the same then proceedings of winding up can be initiated against it. Therefore, we are of the considered opinion that joining hands by all the creditors of the appellant to move an application for its winding up was not required under the law because respondent corporation IFC in its independent capacity had acquired a right as a creditor to move application against the appellant for its winding up because its debts are more than fifty thousand rupees in any case. Moreover on receipt of notice as contemplated under Section 306 (1) (a) of the Ordinance the appellant instead of clearing its liability attempted to raise bona fide dispute which could not be established because the abjQve detailed discussion leads us to draw inference that there was not a bona fide dispute but merely a clog, therefore, contention raised in this behalf by the appellant has no force.

So far the question of criminal liability against appellant company through its Directors for making repayments to IDBP during liquidation proceedings it is left for determination by the learned Company Judge subject to relevant provisions of law.

1. Learned counsel contended that the winding up petition against appellant was premature in view of Circular No. 19 (Banking Policy and Regulation Department) because under the Scheme introduced through this Circular appellant had ho opportunity to settle its outstanding dues with interference of State Bank of Pakistan, therefore, for this reason the process of winding up of the company was liable to be deferred for a considerable time. Suffice it to observe that conditions of Circular No. 19 legally cannot be considered a document to over-ride the provisions of Section 305 of the Ordinance and on account of issuance of scheme under the Circular the proceedings under Section 305 of the Ordinance initiated by respondent Corporation (IFC) against the appellant were not liable to be postponed.

2. Summing up the above discussion we observe that the appellant company is not a commercially solvent concern notwithstanding the fact that presently it is in a running condition but as per up-to-date reports of auditor it is running in a loss and its liabilities are increasing day by day, therefore, it is not in a position to clear its liabilities which it owe towards IFC and remaining institutions who have provided financial overed under relevant provision of law, therefore, its facility cannot be termed against the public policy. In these circumstances the opinion formed by learned Company Judge vide impugned judgment that it is just and equitable to wound up appellant company admits no interference in appeal by this Court.

As a result of foregoing conclusion appeal fail with costs. (A.P.) Appeal dismissed.

PLJ 2002 SC 145

[Appellate Jurisdiction]

Present: abdur rahman khan and nazim hussain siddiqui, JJ. MUHAMMAD BOOTA and another-Appellants

versus

MOOR BEGUM and 2 others-Respondents C.A. No. 963 of 1996, decided on 17.8.2001.

(On appeal from the judgment dated 2.4.1995, of the Lahore High Court, Lahore, passed in C.R. No. 1961/1994)

(i) Constitution of Pakistan (1973)--

—Art. 185(3) Civil Procedure Code (V of 1908), O.VII, R. 11-Rejection of plaint by High Court-Leave to appeal was granted to consider whether view taken by High Court that suit should have been filed within four months and that the same having not been filed within that period was time barred, was erroneous as also its finding that talb-i-Muwathibat had been made. [P. 146] A

(ii) Punjab Pre-emption Act, 1991 (K of 1991)-

—S. 2(a)-Constitution of Pakistan (1973), Art. 185--Plea of defendants that land in question, being situated within Municipal Limits, was not covered by provision of S. 2(a) of Punjab Pre-emption Act 1991 was not decided by Courts below-Case was thus, remanded to trial Court for decision of the suit on basis of assertions, in pleadings. [P. 147] B

PLD 1994 SC 1.

Mian Saeed-ur-Rehman Farrukh, ASC and Sh. Salah-ud-Din, AOR (Absent) for Appellants.

Mr. M. Gulzarin Kiani, ASC for Respondent 1. Date of hearing: 25.5.2001.

judgment

Abdur Rahman Khan, J.—In this appeal, with leave of the Court of judgment dated 2.4.1995, of a learned Judge in the High Court has been impugned as by that order of the learned trial Court dated 7.4.1994, dismissing the application of the defendant-vendee/respondents under Order VII, Rule 11 CPC, was set aside and consequently the application of the respondents under the said provision of law was allowed and as a result the plaint of the appellants pre-emptors in a pre-emption suit, was rejected.

1. Leave to appeal was granted in these terms: -

"View taken by the Lahore High Court is that the suit should have been filed within four months, if not earlier, and as this was not done, it was time barred. Learned counsel submits that the authorities relied upon by the learned High Court do not support its view. He also pleads that the learned High Court has erred in holding that talb-i-muwathibathas not been made".

1. The appellants filed suit for possession through pre-emption in respect of the suit land on the basis of superior pre-emptive rights being owners in the estate where the land is situated, owners of adjacent land and also participate in the rights of using a common passage. Respondents efendants resisted the suit and in the written statement pleaded that the suit property is exempt from pre-emption as it lies in the urban area and also denied superior right of pre-emption and compliance of requirement of Talabs. However, during the proceedings in the suit the defendants submitted application under Order VII, Rule 11 C.P.C. for rejecting the plaint on the ground that at the time of filing the suit there was no law of pre-emption in the filed. The learned trial Court by order dated 7.1.1992, dismissed this application. It is admitted position that revision petition moved against this order was withdrawn and so it obtained finality.

However, second application under Order VII, Rule 11 C.P.C. was submitted for rejection of the plaint on the ground that the suit was time barred. This application was dismissed by the learned trial Court on 7.4.1994, but the High Court in revision through the impugned judgment set aside the order and accepting the application rejected the plaint.

1. Learned counsel for the appellants argued that after rejection of the first application, the second application for the same relief was not competent, therefore, the High Court erred in law in accepting the second application without commenting on the maintainability of the said application. The learned counsel representing the respondents at this stage stood up and submitted that he concedes the above legal position and would not oppose the appeal on this count. He, however, argued that the property in suit is situated in Municipal limits of Sailkot and as such is not covered by the definition of immovable property as given in Section 2(a) of the Punjab Pre-emption Act, 1991. He explained that on the date the sale deed was executed no suit of pre-emption could be filed as the said provision of law was effective till 31.12.1993 i.e. the date rule laid down in the judgment reported as "Haji Rana Muhammad Shahbir Ahmed Khan Vs. Government of Punjab Province, Lahore" (PLD 1994 1), was made operative. In this context he referred to various decided cases to support his contention. The learned counsel for the appellants although admitted that the property in suit lies in urban area but argued that this objection is misconceived as at the crucial time there was no statutory law governing the pre-emption and as such Islamic law regulated the present case and the properly could not be exempt from pre-emption.

2. We would not discuss and dilate on the merits of the above submission as neither in the first Court order nor in the High Court judgment these points have been decided. The trial Court and the High Court have decided the case on entirely different points. We have decided to remand the case to the trial Court, therefore, any expression of opinion at this stage is not proper.

3. Consequently, this appeal is allowed, the impugned judgment of the High Court is set aside while that of the trial Court is restored. The case is sent to the trial Court for trial on the issues arising from the pleadings of the parties. It is directed that the case may be finally decided within six months from the receipt this order. Any observation made in an}' of the order in the proceedings so far conducted, would not affect merits of the case t the trial which should be decided on the basis of the evidence ro be brought no record. Parties should bear their own costs.

(A.P.) Case rewarded.

PLJ 2002 SC 148

[Appellate Jurisdiction]

Present: sh. RiAZ ahmed, syed deedar hussain shah and javed iqbal, JJ.

AEIF GHAFOOR-Petitioner

versus

MANAGING DIRECTOR, H.M.C., TEXILA and another-Respondents C.P.S.L.A. No. 968 of 2000, decided on 11.7.2001.

(On appeal from the order dated 27.4.2000 passed by Federal Service Tribunal, in Appeal No. 1521(R)/99)

(i) Constitution of Pakistan (1973)--

—Art. 212(3)-Finding of fact of Service Tribunal-Action taken by competent Authority was neither whimsical nor arbitrary in nature but was based on sound reasoning, concrete and worthy of credence evidence being un-exceptional hardly called for any interference-Service Tribunal thus, rightly declined to do so-Where no substantial law, muchless question of public importance had been raised in appeal, finding of Service Tribunal being finding of fact would not call for any interference by Supreme Court-Leave to appeal was refused in circumstances.

[P. 150] B, C

1991 SCMR 255; 1982 SCMR 880; 2001 SCMR 269; 1998 SCMR 2003;

PLJ 1996 SC 356 ref.

(ii) Words and Phrases-

—Words "disciplinary proceedings" and "criminal proceedings"-Distinction ­ Words "disciplinary proceeding" and "Criminal proceedings" were quite distinct to each other having altogether different characteristics-Separate prescribed procedure and mechanism is followed by each adjudicative forum for adjudication while both forums have their own domain of jurisdiction—Decision of one forum would have no bearing on the decision of other forum in any manner whatsoever-To consider acquittal in a criminal trial as an embargo against disciplinary proceedings would misconceived. [P. 149] A

Mr. Ibrahim Satti, ASC and Mr. Ejaz M. Khan, AOR for Petitioner. Nemo for Respondents. Date of hearing: 11.7.2001.

ORDER

Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 27.4.2000 passed by learned Federal Service Tribunal, Islamabad, whereby the appeal preferred on behalf of petitioner has been dismissed.

1. Briefly stated the facts of the case are that the petitioner was Foreman in H.M.C. Texila and served with Charge Sheet containing serious allegations amounting to misconduct. The petitioner vehemently repudiated all the allegations and resultantiy an Enquiry Committee was constituted and found that petitioner guilty of all the charges and Final Show Cause Notice was issued on 21.7.1998. The petitioner submitted his reply on 5.8.1998, and after affording him opportunity of personal hearing, the Competent Authority imposed major penalty of dismissal vide order dated 22-10-1998. The petitioner being aggrieved preferred departmental appeal, which was rejected. As a last resort the Federal Service Tribunal was approached by way of appeal which has been dismissed.

2. It is mainly contended by Mr. Ibrahim Setti, learned ASC on behalf of petitioner that the learned Federal Service Tribunal has failed to appreciate the evidence in its true perspective and glaring illegalities committed during enquiry were not considered without any rhyme and reason which resulted in serious miscarriage of justice. It is also contended that proper opportunity of hearing was not afforded enabling the petitioner to repudiate the allegations levelled against him and on this score alone, the impugned judgment is liable to be set aside. It is urged emphatically that the petitioner was acquitted of the charges by the Court of competent jurisdiction and accordingly disciplinary proceedings could not have been initiated on the same charges which amounts to double jeopardy.

3. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the impugned judgment. The enquiry report has been examined with care and caution. Let we mention here at the out set while adverting to the main contention of Mr. Irbrahim Setti, learned ASC on behalf of petitioner as mentioned hereinabove that "disciplinary proceedings" and "criminal proceedings" by no stretch of imagination can be termed as synonymous and interchangeable. The "disciplinary proceedings" and "criminal proceedings" are quite distinct to each other having altogether different characteristics and there is nothing common between the adjudicative forums by whom separate prescribed procedure and mechanism is followed for adjudication and both the forums have their own domain of jurisdiction. The decision of one forum would have no bearing on the decision of other forum in any manner whatsoever. In the said back ground, it would be a misconceived notion to consider the acquittal in a criminal trial Tribunal has rightly referred the law as laid down in PLJ 1996 S.C. 356. It is worth mentioning that the factum of acquittal pressed time and again into service was not on merits, but on the contrary it was an acquittal under Section 249-A Cr.P.C. and no evidence worth the name could be produced by the prosecution to substantiate the allegations for the reasons best known to it. Be as it may, the acquittal was not on merits and thus the dictum as laid down in 2001 SCMR 269 and 1998 SCMR 2003 heavily relied upon by Mr. Ibrahim Setti Advocate cannot be made applicable in the peculiar circumstances of the case as discussed hereinabove. Had the case been decided on merits and after recording of evidence, the situation would have been different. At this juncture it is to be noted that the disciplinary proceedings were initiated in accordance with law, after recording evidence holding a comprehensive enquiry and affording proper opportunity of hearing to the petitioner major penalty was imposed after having taking into consideration all pros and cons of the matter including the nature of allegations and past conduct of the petitioner. The action taken by the Competent Authority is neither whimsical nor arbitrary in nature, but is based on sound reasoning, concrete and worthy of credence evidence and being unexceptional hardly calls for any interference and learned Service Tribunal has rightly declined to do so. It is well settled by now that "where

" no substantial law, muchless question of law of public importance, had been raised in appeal, a finding of Service Tribunal being a finding of fact would not call for any interference by Supreme Court.". In this regard reference can be made to the case titled Ch. Muhammad Azim V. The Chief Engineer Irrigation and others (1991 SCMR 255). Even otherwise a finding of fact recorded by Tribunal on the basis of record and evidence before Tribunal cannot be interferred by this Court. In this regard we are fortified by the dictum laid down in the case titled Muhammad Nawaz V. Divisional Forest Officer, Jauharabad and 2 others (1982 SCMR 880).

In the light of foregoing discussion, we are, not inclined to grant leave to appeal and accordingly the petition being devoid of merits is dismissed.

(A.P.) Leave refused.

PLJ 2002 SC 150

[Appellate Jurisdiction]

Present: muhammad bashir jehangiri A.C. J., muhammad arif and mian muhammad ajmal, JJ.

YUSUF ALI SHAH-Appellant versus

QUETTA SERENA HOTEL through its Manager and 2 others-Respondents

C.A. No. 703 of 1997, decided on 30.4.2001.

(i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-

—-Ss. 2(XXVIII) & 25-A-West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(VI)-- Constitution of Pakistan (1973), Art. 1853)--Dismissal of employee-­ etitioner (employee) does not appear to be covered by definition of "worker" or "workman" as given in Industrial Relations Ordinance, 1969; however, it was yet to be considered whether petitioner was covered by the definition of "worker" and "workman" as given in the Ordinance I of 1968. [P. 158] A

(ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)--

—S. 25-A-Constitution of Pakistan (1973), Art. 185-Status of employee to invoke jurisdiction of Labour Court-Petitioner had not taken plea before Labour Forums at any point of time that management of respondent either treated him as a orker/workman or that such treatment was meted out to any other employee similarly placed-High Court had rightly maintained that the point which had not been raised before the Forum seized of the lis in the hierarchy of Industrial Relations Ordinance 1969, cannot be allowed to be raised for the first time during Constitutional proceedings-Judgments of forums below including High Court were maintained in circumstances. [P. 158] A

1994 PLC 610 ref.

Mr. Muhammad Riaz Ahmad, AOR for Appellant. Ex-parte for Respondent Date of hearing: 30.4.2001.

judgment

Muhammad Arif, J.--Attending facts and circumstances of the case as also the question of law which needs consideration stand succinctly detailed in the leave grant order which reads thus:

"Petitioner Yusuf Ali Shah has sought leave to appeal against dismissal of his Constitutional Petition No. 194 of 1996 by a learned Division Bench of the High Court of Balochistan on 3.9.1996.

"Admittedly petitioner Yusuf Ali Shah was appointed by Quetta Serena Hotel as F&B Cashier with effect from 18.1.1989. Later on he was made Assistant Manager. On 29.1.1995 the petitioner was placed under suspension for a period of three days, in consequence of a complaint filed against him by Mst. Shazia Manzoor of PIA female crew, who had stayed in said hotel on the night of 25.11.1994. In her complaint she alleged that on the said night she was in her room in said hotel, when at 3.00 a.m. the petitioner came to her, made inquiry about a person who left her room half an hour earlier and put searching questions to her in a very rude and threatening manner. That the petitioner shifted her to another room for getting her room searched by the Security Guard. Mr. Shazia Manzoor in her complaint further alleged that the petitioner black-mailed her

And i report the matter of her Captain. The petitioner was alleged to have done all this at back of the Hotel Receptionist and without reducing the same in writing in the logbook.

"On 30.1.1995 the petitioner was issued show-cause notice, calling upon him to explain in writing his response to the allegations, by 3.2.1995. Subsequently under an order dated 12.2.1995 the petitioner was dismissed from service, after holding of an inquiry by Afzaal Aslam Mirza.

"On 15.3.1995 the petitioner sent a grievance notice to the management of said hotel claiming restoration of service with all benefits. Subsequently on 4.4.1995 the petitioner filed grievance application under Section 25-A of I.R.O. in a Labour Court at Quetta, challenging the order dated 30.1.1995 about show-cause notice and the letter of dismissal dated 12.2.1995.

"The grievance application was contested by Respondent No. 1 hotel, which in his written statement took pleas that the petitioner had no guaranteed or secured right for being enforced under Section 25-A of I.R.O., that no valid grievance notice was given, that the order of dismissal was after due inquiry and not open to interference and lastly, that the petitioner was not a "worker" or "workman" and he had no right to move the Labour Court under Section 25-A of IRO. On merits it was averred that the terms and conditions of service, between the petitioner and the Respondent No. 1, were regulated by law of master and servant and that the allegations against the, petitioner were duly proved.

"After settlement of issues and recording of evidence, learned Labour Court under an order dated 14.9.1995, dismissed the grievance application after taking view that the petitioner was not a "workman" under the IRO and his grievance application was not maintainable.

"The petitioner challenged dismissal of his grievance application before the Labour Appellate Tribunal, Balochistan under an appeal, which was dismissed on 20.5.1996. Thereafter the petitioner invoked jurisdiction of High Court of Balochistan under Article 199 of the Constitution of Pakistan, against the orders of the Labour Court as well as of the Labour Appellate Tribunal. Under the impugned judgment dated 3.9.1996, a learned Division Bench of the High Court of Balochistan dismissed petitioner's Constitutional Petition No. 195/96 in limine. Hence this petition.

"Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner argued that although the petitioner was posted as Assistant Manager at the time of his being proceeded against by the Respondent No. 1, he was doing the clerical and manual work and was thus a "workman" as defined in clause (i) of Section 2 of West

Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter mentioned as the Ordinance 1968), Learned counsel further argued that no opportunity was provided to the petitioner by the trial Court, to lead evidence to show that he (petitioner) was doing manual and clerical work although he was posted as Assistant Manager. It was also argued that the petitioner, although covered by the definition of workman given in Ordinance 1968, was entitled to move his grievance application under Section 25-A of IRQ by virtue of clause (3) of Standing Order 12 of the Ordinance 1968.

"The impugned judgment shows that in the Labour Court both the parties opted to argue the matter without leading evidence. This observation was rebutted and controverted by the learned counsel for the petitioner who stated that no such statement was made and that there was nothing of that sort in the proceedings before the Labour Court.

"There is no gainsaying of the fact that definition of "worker" and "workman" given in IRQ is materially different from the same given in Ordinance 1968. In the Industrial Relations Ordinance (IRO) the definition of "worker" and "workman" is given in clause (xxviii) of Section 2.

"It may be mentioned here that originally the grievance procedure was provided in Standing Order 18 of the Ordinance, 1968 and a right was given to a "workman" as defined in said Ordinance, 1968 who was aggrieved by the termination of his services, or dismissal or discharge, to first bring his grievance to the notice of the employer and on failure to obtain redress, to make a complaint to the Labour Court. The Labour Laws (Amendment) Ordinance IX of 1972, which came in force on 13.4.1972 omitted Standing Order 18 and provided grievance procedure in the newly added Section 25-A of IRO. Said section entitled a "worker" , as defined in the IRO, to bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award of settlement, for the time being in force, to the notice of his employer in writing either by himself or through his Shop Steward or Trade Union, within three months of its arising. On receiving such grievance notice, the employer had to communicate his decision in writing to the worker, within the period mentioned in clauses (2) and (3) of Section 25-A of I.R.O. In case of failure, the worker may take the matter to the Labour Court directly or through his Trade Union, for giving the award. Such right can be exercised by the worker, also in case he gets the decision within statutory time but is not satisfied with the same. The Ordinance DC of 1972, while adding Section 25-A in the IRO, amended Standing Order 12 of the Ordinance 1968 creating hurdles in the way of termination of employment of a worker or workman. Thereafter in

1973 Act XXIII of 1973 came in force and it amended clauses (3) of the Standing Order XII of the Ordinance 1968. The amended clause (3) of Standing Order XII reads as below:

"(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of Section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."

"The difficulty arose about looking for the definition of "workman", who under the Ordinance IX of 1972 was made entitled to move grievance application under Section 25-A of I.R.O. There is a fundamental difference between the definition of "worker" and "workman" given under clause (xxviii) below Section 2 of IRO and given in clause (i) below Section 2 of the Ordinance 1968. For invoking the provisions contained in Section 25-A of I.R.O., the definition of "workman" in the IRO became applicable for the purposes of moving a grievance application, but such definition excludes person whose services have been terminated or who had been removed, retrenched, discharged or dismissed otherwise than in connection with an industrial dispute or as a consequence of an industrial dispute as defined in the IRO. In view of the amendment in Standing Order XII (3) of the Ordinance, 1968, the provisions contained in Section 25-A of IRO have become virtually a part of the Ordinance, 1968. The amendment brought about in Standing Order XII (3) of the Ordinance, 1968 has expanded the scope of Section 25-A of IRO because in view of the enabling; provisions contained in clause (3) of Standing Order XII of the Ordinance, 1968, even the workers not covered by clause (xxviii) of Section 2 of IRO can seek redress of their grievance under Section 25-A of IRO if they are covered by clause (i) of Section 2 of the Ordinance, 1968. By the amendment brought about by Act XXIII of 1973, the legislature was manifesting its intention to confer on persons, who are aggrieved by the termination etc. from service, the same right to file a grievance application under Section 25 of IRO, as if they had been aggrieved "workman" A under the IRO. In the instant case the dismissal of the petitioner from service was not in connection with an

industrial dispute or as a consequence of such dispute and his dismissal did not lead to an "industrial dispute". In the circumstances, the petitioner does not appear to be covered by definition of "worker" or "workman" as given in the IRO. However, it is to be considered if the petitioner is covered by the definition of "worker" and "workman" as given in the Ordinance 1968.

"Leave to appeal is therefore, granted to consider said point, as well as the other points contended by the learned counsel for the petitioner".

1. Respondents-Quetta Serena Hotel and others have been proceeded against ex-parte.

2. Mr. Muhammad Riaz Ahmad, learned AOR was critical of the impugned judgment of the High Court dated 3.9.1996 holding that (1) the competent fora i.e. Presiding Officer of the Labour Court and Labour Appellate Tribunal have concurrently ruled that petitioner-Yusuf Ali Shah is not a Svorkman', (2) there is no jurisdictional error in these orders and (3) these orders have not been passed without lawful authority. His argument was that as the matter in relation to the determination of the question whether the appellant fell within the definition of the term Svorker/workman' was not resolved by the Labour Court and the Appellate Tribunal in accordance with law, the learned Members of the Division Bench of the High Court were in error in upholding the judgments of the Presiding Officer of the Labour Court dated 14.9.1995 and the Labour Appellate Tribunal Balochistan Quetta dated 20.5.1996. The Labour Court, the Labour Appellate Tribunal and the High Court did not bring to bear the provisions of (i) IRO, 1969, (ii) Ordinance IX of 1972 (a) adding Section 25-A in IRO 1969 (b) amending Standing Order XII of Ordinance of 1968 and Act XXIII of 1973 amending clause (3) of the Standing Order XII of the Ordinance 1968 by providing: "(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment discharge or dismissal, he may take action in accordance with the provisions of Section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance" on the case of his client that he is not covered by the definition o'f Vorkman' as given in 1969 Ordinance but by definition of 'worker' and Svorkman' in 1968 Ordinance. According to him, the case reported as Trustees of the Port of Karachi Vs. Muhammad Saleem (1994 SCMR 2213) helps his client and the findings to the contrary by the Labour Court and the Appellate Tribunal should have been reserved by the High Court in the exercise of its jurisdiction under Article 199 of the Constitution. 4. Before attending to the composite prayer made by the learned counsel as reflected in the immediately preceding paragraph, it will be in the fitness of things to refer to the observations of the High Court in the impugned judgment. It was observed that the Labour Appellate Tribunal had dismissed appellant-Yusuf Ali Shah's Labour Appeal No. 136 of 1995 on 20.5.1996 exclusively on the ground that he being an Assistant Manager in the Hotel Management at the relevant time, did not qualify for being a 'workman' under Section 3(xxviii) of 1969 Ordinance and that Dost Muhammad Cotton Mills Ltd Vs. Muhammad Abdul Ghani and another (1979 SCMR 304) was not applicable in that the Labour Court had found the employee involved in that case to be a 'workman' and that while deciding Issue No. 3 the Labour Court ruled that appellant-Yusuf Ali Shah is not a 'worker'/'workman'. It was further observed that assignment and job description of the appellant according to his post, was part and parcel of the Management. The learned Members, of the Division Bench further observed: "Mr. Muhammad Riaz Ahmad, learned counsel for petitioner was called upon to satisfy: whether salary of petitioner exceeds rupees eight hundred per mensum and he was performing duty in a supervisory capacity Learned counsel conceded on basis of last pay roll prepared by the Management that petitioner was drawing Rs. 4,300/-including all allowances, per month. But his contention was that .petitioner was not performing his duty in a supervisory or managerial capacity. Therefore, in view of the judgments reported in 1993 SCMR 672 (National Bank of Pakistan Vs. Punjab Labour Court No. 5, Faisalabad and 2 others) and 1994 PLC 610 (Lever Brothers Pakistan Limited, Karachi Vs. Mrs. Kishwar Sultana Khan), his case is covered under the definition of 'worker'/workman', as per the nature, of his job. However, learned counsel could not point out any material/evidence to substantiate his plea. Contrary to it, he argued that opportunity of leading evidence was not afforded to petitioner by trial Court and such assertion was specifically made before the Labour Appellate Tribunal, by incorporating a

ground in the (memo) of appeal ............................... The High Court also

noted that: "We have examined this aspect of the case carefully. It is to be noted that perusal of order passed by Labour Court reveals that after framing points for determination, both the parties opted to argue the matter without leading evidence. Similarly when the appeal was being heard during arguments, no such contention was raised at all and perhaps due to such reason the learned Appellate Tribunal had not attended to this aspect. As for as incorporating a ground of non-providing opportunity of leading evidence in name of appeal is concerned that would not be sufficient to entertain his argument, unless it is not shown from impugned order that during arguments, such plea was specifically raised and it has not been considered.

Thus the point with had not been agitated before the Forum (seized of) the matter in the hierarchy of Industrial Relations Ordinance. 1969. cannot be allowed to be argued for the first time during Constitutional proceedings. As such, for this reason, with most respect the judgment of Hon'ble Supreme Court, is not helpful to petitioner for advancing his case."

1. At this stage we may refer to the following observations by this Court in syed Matloob Hassan Vs. Brooke Bond Pakistan Limited Lahore (1992 SCMR 227):

"10. Having dilated upon the relevant provisions of the Ordinance and the I.R.O. we may revert to the above question involved in the present case. In the instant case, as the appellant complained of the violation of Standing Orders 12 and 15, it was incumbent upon him to have shown that he falls within the ambit of. the definition of "workman" given in clause (i) of Section 2 of the Ordinance. The Labour Court, after referring the duties of the appellant, concluded that he was not covered by the above definition. The Labour Appellate Tribunal concerned with the above finding. The appellant in his cross-examination made the following damaging admission:

"It is correct that every salesman has a vanman. Vanmah cleans the depot premises, arranges the stock in the depot. The vanman takes the tea packets and delivers to the customers The working hours of the salesman are the same as are of tht local market. It is my main duty to meet the customers anc promote the sales of the products of he company. Everj salesman can appoint a temporary vanman."

"11. On the basis of the above admission and keeping in view th< duties of the appellant, the Labour Court and the Labour Appellate Tribunal could have recorded as a finding of fact that the appellant' duties do not predominantly involve manual or clerical work as ha been held by this Court in the case of Pakistan Tobacco Compan Ltd. V. Pakistan Tobacco Company Employees, Union, Dacca an< others (supra) wherein Cornelius, C.J. made the following weight observation in relation to a salesman with reference to the definitio of the "workman" given in clause (s) of Section 2 of the Industrie Disputes Act, 1947 (XTV of 1947), which is pari materia with th definition given in above clause (i) of Section 2 of the Ordinance i material respects:

"I consider that it admits of no doubt, that persons who ai engaged exclusively in the field of distribution through propi agencies of the products of the Company are not assimilab either to the group of workers whose manual labour contribut to that product, or those of the clerical establishment wl

perform the paper work connected with the operations of the Company. The work of salesman is in a wholly different category from manual work of clerical work, and I feel no hesitation in agreeing with the decision of the Tribunal upon this point, namely, that salesmen do not fall within the definition of "workmen".

"The other learned Judges, who recorded their separate opinions in the above-cited case, did not differ with the above proposition of law."

1. A careful perusal of the material on the record does bring it to the fore that it is not the case of the appellant that at any point of time in the past, the management of the respondent Hotel Serena either treated him as a "workman/worker' or that such treatment was meted out to any other employee similarly placed as him. The twin-plea that neither any statement was made by the appellant before the Labour Court that he will not lead any evidence on any one of the issues framed by it nor that the ground taken in the memo of appeal before the Labour Appellate Tribunal in that regard was argued out at the hearing of his appeal before the Labour Appellate Tribunal. The learned Members of the Division Bench of the High Court were quit right in observing that the point which had not been raised before the Forum seized of the lis in the hierarchy of Industrial Relations Ordinance, 1969, cannot be allowed to be argued for the first time during constitutional proceedings.

2. Looked at in the above perspective, we are of the considered view that there was nothing amiss in the judgments rendered by the Labour Court and the Labour Appellate Tribunal on 14.9.1995 and 20.5.1996 respectively to justify the High Court to interfere with the same in the exercise of its Constitutional Jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The failure on the part of the appellant to cross the major hurdle in his way before the Labour Court concerned was too obvious to be ignored by the Labour Appellate Tribunal and the same in the position with regard to his failure to even so much as utter a word before it to argue the alleged ground/contents of the memo of appeal to the effect that he was not afforded any opportunity to produce evidence in support of those issues burden of proof whereof was on him.

3. Looked at from whatever angle, no ground for interfering in the impugned judgment dated 3.9.1996 passed by the High Court in its jurisdiction under Article 199 of the Constitution has been made out. ntiy, the appeal is dismissed and, none having appeared on behalf of the respondents, with no order as to costs.

(A.P.) Appeal dismissed.

PLJ 2002 SC 159 [Appellate Jurisdiction]

Present: MUHAMMAD BASHIR JEHANGIRI, AC J; MUHAMMAD ARIF AND

mian muhammad ajmal, JJ.

IMPLEMENTATION TRIBUNAL FOR NEWSPAPER EMPLOYEES, C.D.A., BLOCK NO. 2 ISLAMABAD-Appellant

versus

MATRI PUBLICATIONS LTD., HURRIET, KARACHI through its Manager

and others-Respondents

C.As. Nos. 642/93 to 644/93, decided on 30.4.2001.

(On appeal from the judgment of the High Court of Sindh, Karachi

dated 11.1.1993 passed in Constitutional Petitions

Nos. D-938, 939 and 940 of 1993)

(i) Constitution of Pakistan (1973)--

—Art. 185(3)-Newspaper Employees (Conditions of Service) Act (LVIII of 1973), S. 13-Industrial Relations Ordinance (XXIII of 1969), Ss. 51(1) & 55-Implementation of decision of Wage Board-Leave to appeal was granted to consider the contention that where Implementation Tribunal had passed the Order which only secured implementation of award of the Fourth Wage Board, its order could not be defeated on a narrow interpretation of S. 51(1) or 55 of Industrial Relations Ordinance, 1969.

[P. 162] A

(ii) Newspaper Employees (Conditions of Service) Act, (LVIII of 1973)--

—-S. 13-Industrial Relations Ordinance (XXIII of 1969), S. 51(1) & 55- Implementation of Fourth Wage Board Award-Implementation Tribunal for Newspaper Employee under S. 13(4) of the Act LVIII of 1973 could exercise the same powers as that of a Labour Court, to issue directions under S. 51(1) of Industrial Relations Ordinance, 1969-Money due from employers having been determined in the award/decision of Wage Board, no further determination was required-Implementation Tribunal of Wage Board was competent to issue direction for the recovery of money due against employers under S. 51(1) of Industrial Relations Ordinance, 1969-High Court was not correct in holding that the amount in respect of which proceedings were initiated, was not determined-Decision of Wage Board duly notified was binding on the employers and was within the competence and jurisdiction of Tribunal to implement the same- , Impugned order of High Court was set aside while that of implementation Tribunal was restored. [Pp. 164 & 165] B

Mr. Mansoor Ahmad, Deputy Attorney General for Appellant. Ex-party for Respondents.

Date of hearing: 30.4.2001.

judgment

Mian Muhammad Ajmal J.--By this common judgment we propose to dispose of Civil Appeals Nos. 642 to 644 of 1993 as they have arisen out of the same judgment and involve identical questions of law and facts.

1. Brief facts are that Shamsul Huda Ansari, Haider Imam and S. Zahid Hussain, Respondent No. 2 in all the appeals, employees of M/s. Math Publications Ltd., Karachi, filed separate applications before the Implementation Tribunal for Newspaper Employees (hereinafter to be called the Implementation Tribunal), that the establishment, Respondent No. 1 was not implementing the Fitment as stipulated in para 46 of the Fourth Wage Board Award. Admitted position was that the respondents-employees were drawing their basic pay as Rs. 1250/- p.m. in Grade-Hi and dearness allowance of Rs. 100/- p.m. under the Third Wage Board Award. After the Fourth Wage Board Award, the management, purporting to implement the Fitment contained in para 46(i) thereof, merged the existing pay and dearness allowance of the respondents-employees into one sum i.e. Rs. 1250/ + Rs. 100= Rs. 1350/-. The management did not comply with said para in its entirety as it did not fix the employees' pay at such stage of the new consolidated pay scale "as was next higher to the sum so reckoned". In addition thereto one increment was to be given to every employee for every five years of completed service in that grade to the maximum of two increments, which the management failed to do. Before the Implementation Tribunal, the plea of the respondent-employer was that it had taken legal advice before implementing the Award and acted accordingly, which was repelled by the Implementation Tribunal, who on the basis of admitted chart of pay scales of the employees submitted before it, came to the conclusion that the management though acted correctly in fixing their pay by merging the existing pay and dearness allowance admissible to the respondents-employees under the third Wage Board Award but failed to fix their pay in the new consolidated pay scales in terms of Para 46(i) of the Fourth Wage Board Award, which required fixation of pay at the next higher stage from their aggregate pay arrived at after merging the dearness allowance in their existing pay. The employees were also held entitled to an increment for every 5 years' of completed service in that grade subject to the maximum of two increments. Resultantiy, the Implementation Tribunal vide its common order dated 4.2.1988, accepted all the three petitions directing the management to rectify the patent error and carry out the exercise for implementation of Fourth Wage Board Award in the light of the observations made in the order. The operative paragraphs of the order of the Tribunal are reproduced hereinbelow:-

"We have ourselves Undertaken the exercise. Thus the correct fixation of each petitioner as regards his basic pay in the new consolidated pay scale of Rs. 1350-100-2850 would be next higher

• stage to the aggregate of Rs. 1350/-. Accordingly each petitioner hall be fixed at the next higher stage in the new consolidated pay scale which comes to Rs. 1450/-.

• 4. Before parting with the cases, it needs to be observed that the learned counsel did not wish to enter into a cavil as regards the Tribunal's jurisdiction to carry out scrutiny in order to find out whether the Fourth Wage Board Award had been implemented by the newspaper establishment in respect of its employees.

1. The management shall rectify the patent error and carry out the exercise for implementation of the Fourth Wage Board Award in the light of the observations made above. It must also be observed that the petitioner in each case has been made to suffer and deprive of his lawful right and due wages on account of misreading and misapplication of the relevant provisions of Para 46(i) of Fitment Formula of the Fourth Wage Board Award, resulting in wrongful implementation thereof. The petitioners will be entitled to the arrears of short fall in their wages with effect from 15.4.1985.

2. The petition of Mr. S. Zahid Hussain, Sub-Editor-cum-Reporter daily "Hurriyat" and two other connected petitions are accepted in the above terms. There shall, however, be not order as to costs."

Feeling aggrieved, Respondent No. 1 employer filed three Constitutional Petitions Bearing Nos. 938, 939 and 940 of 1988 before the High Court of Sindh, Karachi, which were allowed videits common judgment dated 11.1.1993, impugned herein, operative paragraph wherefrom is reproduced hereinbelow:-

"A plain reading of Section 51 would indicate that when any money due from an employer under a settlement or under an award or a decision of the arbitrator, Labour Court or a Tribunal is to be recovered, the same on the application of the person entitled to such recovery may be recovered as arrears of land revenue or as a public demand. Consequently, before any Court or Tribunal acts under Section 51 of the I.R.O., it is imperative that there should be no dispute as to the entitlement of the applicant to the recovery of -money but the amount in respect of which proceedings can be initiated under Section 51 must be a predetermined amount. If there is a dispute in respect of the entitlement of such amount or the amount is not pre-determined then it cannot be recovered under Section 51 of the I.R.O. As is clearly evident from the impugned order, there was a dispute between the respondents and the petitioner in regard to the entitlement of the respondents to the amount claimed by the said respondents Since the Implementation

Tribunal has not been vested with any powers of adjudication in regard to individual disputes, in our opinion, the learned Tribunal was not empowered to pass the impugned order in present case. The Tribunal being constituted under the Act could exercise only such powers which have been conferred upon the Tribunal under the said Act. The Tribunal, therefore, could not assume powers which have not been conferred upon it by the Act. We, therefore, find ourselves in complete agreement with Mr. Muhammad Humayun, learned counsel for the petitioner, that the impugned order has been passed by the Tribunal without lawful authority.

In the result, we allow these petitions and quash the impugned order. The parties are left to bear their own costs."

The appellant impugned the correctness of the above judgment through Civil Petitions for Leave to Appeals Nos. 171, 172 & 173 of 1993, wherein leave was granted to consider the following proposition:

"The learned counsel for the petitioner contended before us that Section 12-A of the Act LVIII of 1973 clearly spells out the purpose of Constitution of the Tribunal as implementation of the decision of Wage Board constituted under the Act. Therefore, if the Tribunal had passed the order which only secured the implementation of the award of the Fourth Wage Board, the order could not be defeated on /\ a narrow interpretation of Section 55 or 51 (1) of the I.R.O.

The contention requires examination. We, accordingly, grant leave to appeal to consider the above contention. The operation of impugned judgment is suspended meanwhile."

1. Learned counsel for the appellant contended that Section 13 of the Newspaper Employees (Conditions of Service) Act No, LVIII of 1973 (hereinafter to be called the Act) has not been correctly construed and interpreted by the learned High Court, therefore, the conclusion drawn by it is not sustainable. The Wage Board had fixed the rate of wages in respect of newspaper employees and decision given in this respect by the Board was binding under Section 15 of the Act, on all the employers, therefore, the High Court was not correct to hold that the amount was not determined and it could not be recovered under Section 51 of the Industrial Relations Ordinance, 1969 (hereinafter to be called the Ordinance) by the Implementation Tribunal. He further contended that the Federal Government under Section 12-A of the Act has constituted a Tribunal to implement the decisions of the Board, which under Section 13 of the Act, while exercising same powers as that of the Labour Court, had competently issued direction under Section 51(1) of the Ordinance for recovery of money due, which did not warrant interference by the High Court. The Board had given its fourth award which was notified vide notification dated 16.10.1985 and it was binding on all the employers of the newspapers establishments

and every newspaper employee was entitled to be paid wages as fixed by the Board' in view of Section 15 of the Act.

1. To appreciate the contentions raised by the learned Deputy Attorney General, it is necessary to go through the relevant sections of the Act. According to Section 2(a) "Board" means the Wage Board constituted under Section 9 of the Act. Section 9(1) empowers the Federal Government to constitute a Wage Board for fixing rates of wages in respect of newspaper employees in accordance with the provisions of the Act. Section 10 postulates that the Board while fixing rates of wages would take into consideration the cost of living, the prevalent rates of wages of comparable employments, the circumstances relating to the newspaper industry in different regions of the country and any other circumstances which it considers relevant. It further empowers the Board to fix rates of wages for time work and for piece work and by virtue of Section 11(2) the decision of the Board published under sub­section (1) would come into operation from the date specified in the decision. Section 12 envisages that the decision of the Board published under Section 11, would be deemed to be an award of the Full Bench of the National Industrial Relations Commission and subject to the provisions of the Act, all the provisions of the Ordinance applicable to such award, including the provisions of Sections 51 and 55 thereof, so far as may be and with necessary modifications, would apply to the decision of the Board. Section 12-A empowers the Federal Government to constitute a Tribunal consisting of one or more members to implement the decision of the Board made under Section 11 of the Act. Section 13 provides that notwithstanding anything contained in Section 64 of the Ordinance, the Implementation Tribunal would have the following powers:-

(a) to try an offence punishable under Section (55) of the Ordinance if the offence relates to failure to implement any decision of the Board;

(b) of its own motion, or on the application of a party, to withdraw from any Court (except the Supreme Court on a High Court) any application, proceeding or appeal relating to such an offence and dispose of it; and

(c) refer any such application, proceeding or appeal to any such competent Court for disposal.

Sub-section (3) of Section 13 of the Act contemplates that the .Tribunal would follows the same procedure and exercise the same powers as the National Industrial Relations Commission under the Ordinance and sub­section (4) thereof enunciates that the Implementation Tribunal would have the power to issue a direction which a Labour Court has under sub-section (1) of Section 51 of the Ordinance. Section 13-A provides an appeal to a person convicted and sentenced for a period not less than six months by the Tribunal under Section 55 to the Supreme Court with the

leave of the Court. Section 14 provides powers and procedure of the Board for fixing rates of wages. Section 15 stipulates that the decision of the Board would be binding on all employers in relation to newspaper establishments and every newspaper employee would be entitled to be paid wages at a rate which, in no case, would be less than the rate of wages fixed by the Board.

1. The perusal of the above provisions of the Act would show that ~

the purpose of enactment was to facilitate Constitution of the Wage Board for fixing rates of wages in respect of newspaper employees in accordance with the Act and to provide effective implementation of the decisions of the Wage Board by the Implementation Tribunal. In exercise of the powers conferred by Section 9 of the Act, the Federal Government constituted a Wage Board for fixing the rates of wages in respect of newspaper employees vide notification dated 14th of October 1984, whose decision was published in notification dated 16th October 1985 as required under Section 11 of the Act, which came into operation on 15th April 1985 as specified in the decision which was binding on all the employers in relation to newspaper establishments and every newspaper employee was entitled to the wages, in no case, less than the wages fixed in the decision under Section 15 of the Act. ---As per Award, the establishments were also directed to pay the arrears to the employees so accruing not later than 30th June 1980. The Federal Government constituted a Tribunal to implement the decision of the Board, which under sub-section (4) of Section 13 of the Act could exercise the same powers as that of a Labour Court, to issue directions under Section 51(1) of the Ordinance which provides that any money due from an employer under a settlement or award or decision of the Arbitrator be recovered, upon the application of the person entitled to the money, by the Labour Court or the -— Tribunal as arrears of land revenue. It may be noted that the legislature in its wisdom has only conferred the powers on the Implementation Tribunal under Section 51(1) of the Ordinance which the Labour Court could exercise for the recovery of money due from an employer under a settlement or award and it has specifically excluded sub-section (2) of Section 51 of the I.R.O, whereby amount was to be determined and recovered. As is apparent from the nomenclature of the Tribunal itself that it is an "Implementation B Tribunal" for newspapers' employees constituted under Section 12-A of the Act by the Federal Government to implement the decision of the Wage Board which has determined the rates of wages in respect of the newspapers' employees. Since money due from the employers had been determined in the award/decision of the Wage Board, therefore, no further determination was required and the Tribunal specially constituted to implement the decision of the Wage Board was competent to issue a direction for the recovery of the money due against the employers under Section 51(1) of the Ordinance and the High Court was not correct in observing that the amount in respect of which the proceedings were initiated, was not determined. The decision of the Wage Board duly notified was binding on the employers and was within the competence and jurisdiction of the Tribunal to implement the same.

1. In view of the above, this appeal is allowed, the impugned judgment of the High Court of Sindh, Karachi dated 11.1.1993 is set aside and that of the Implementation Tribunal dated 4.2.1988 is restored. No order as to costs.

(A.P.) Appeal accepted.

PLJ 2002 SC 177

[Appellate Jurisdiction]

Present: sheikh riaz ahmed, qazi muhammad farooq and javed iqbal, JJ.

FEDERATION OF PAKISTAN-Petitioner

versus

Syed MUMTAZ AHMED BURNEY and another-Respondents C.P.L.A. No. 1161/1999, decided on 21.6.2001.

(On appeal from the judgment dated 10.6.1999 of the Federal Service Tribunal in Appeal No. 1613(K)/1998)

Government Servants (Efficiency and Discipline) Rules, 1973--

—R. 4(l)(b)(ii)--Constitution of Pakistan (1973), Art. 212(3)-Civil servant-­Compulsory retirement on charge of misconduct-Release of accused on bail by investigating officer allegedly with connivance of Civil Servant--Re-instatement of Civil Servant by Federal Service Tribunal-Charge of granting bail to specified accused with connivance of Civil Servant could not be proved—Bail was initially granted by Investigating Officer and subsequently by Court of competent jurisdiction~No application for cancellation of bail of accused was ever moved by the Government-No case was registered against accused except the one in which be was granted bail-Investigating Officer who had granted bail to accused was absolved of all charges while civil Servant on basis of alleged connivance which could not be proved was punished with imposition of major penalty-Service Tribunal .after indepth scrutiny of entire record including charge-sheet, statement of allegations, show-cause notice and Enquiry Report had accepted Civil Servant's appeal and ordered his re­instatement-Supreme Court does not ordinarily interfere with concurrent finding of fact given by Departmental Authority and Service Tribunal—Case being not fit for interference, leave to appeal was refused.

[Pp. 181, 186 & 1871 A, B, C & D

1991 SCMR 382; 1991 SCMR 368; 1990 SCMR 907; 1990 SCMR 1005; 1990

SCMR 1469; 1989 SCMR 1470; 1990 SCMR 1470; 1989 SCMR 679; 1986

SCMR 1; 1982 SCMR 897; 1981 SCMR 715; PLD 1980 SC 22; 1980 SCMR

722; 1980 SCMR 148; 1976 SCMR 268; 1976 SCMR 311 ref.

Mr. Muhammad Nawaz Bhatti, Deputy Attorney General and Ch. AkhtarAli, AOR for Petitioner.

Nemo for Respondents. Date of hearing: 21.6.2001.

order

Javed Iqbal, J.--This Petition for leave to appeal is directed against the judgment dated 10-6-1999 passed by the learned Federal Service Tribunal, Islamabad whereby the appeal filed by Syed Mumtaz Ahmed Burney, Superintendent Police (hereinafter referred to as the respondent) has been accepted with the direction to be re-instated in the service from the date of his compulsory retirement with all back benefits. Being aggrieved, the Federation of Pakistan has preferred this petition.

1. Precisely stated the facts of the case are that the respondent joined police service as DSP in Sindh Province on 1-7-1974 and subsequently promoted as SP (BPS-18) and thereafter move-over in BPS-19 was also granted. On 6-6-1994, while the respondent was performing his duties as SSP (CIA Police) Karachi, he was placed under suspension by the Government of Sindh and disciplinary action was initiated on account of his abnormal conduct and release of one Sourang Khan, allegedly a notorious smuggler, who was arrested in Case No. 392/93 got registered under Section 17 (3) O.A.P. (E.H) Ordinance, 1979 and after his arrest, investigation was to be conducted by the CIA but Sourang Khan was released on bail by the Investigating Officer namely Mr. Kher Muhammad Chandio in exercise of powers as conferred upon him under Section 497-B Cr.P.C. with the consent and knowledge of the respondent who at the particular moment was performing his duties as SSP (CIA). The respondent was charge sheeted and a full fledged enquiry was got conducted by the Enquiry Officer and after completion of all the necessary mandatory formalities as contemplated in the relevant Act and rules made there under, the case was forwarded to the Chief Minister under Sindh Government Rules of Business, 1986 for onward transmission to the Federal Government for further appropriate action with specific recommendation of imposition of major penalty of compulsory retirement. The Chief Minister, however, did not agree with the said recommendation and directed that the matter may be referred to the Federal Government without any specific recommendation. Pursuant to such observations, Sindh Government sent the entire record including the enquiry proceedings to the Secretary Establishment Division on 8-8-1996 and resultantly, final Show-Cause Notice was served upon the respondent on 3-9-1996. After affording opportunity of personal hearing and completion of necessary formalities, Notification dated 9-8-1998 was issued whereby major

punishment of compulsory retirement was imposed in view of the provision as contained in Rule 4 (I) (b) (ii) of the Government Servants (E&D) Rules, 1973. Being aggrieved, the respondent preferred a departmental appeal for

the redressal of his grievance which could not be decided and resultantly the respondent approached the leaned Service Tribunal by filing appeal on 5-10-1998 which has been accepted; hence this petition.

1. It is mainly contended by Mr. Muhammad Nawaz Bhatti, learned Deputy Attorney General that findings of the learned Federal Service Tribunal regarding non-establishing the guilt beyond shadow of doubt are based on conjectural presumption which is result of misreading and non-reading of evidence which has not been appreciated in its true erspective and resulted in serious miscarriage of justice. It is argued with vehemence that the entire record was never perused with care and caution and the conclusion drawn by the learned Federal Service Tribunal has absolutely no nexus with the record and accordingly the same is h'able to be easide being legally not sustainable. It is contended emphatically that the charge of misconduct has been proved, as a notorious smuggler Sourang Khan was got released on bail by the respondent with ulterior motives and the Investigating Officer had acted with the consent of the respondent by releasing Sourang Khan against whom a heinous case was got registered on the fake ground of ailment. It is pointed out that by imposing the penalty of compulsory retirement, a lenient view has already been taken by the Government which hardly warranted any interference by the learned Federal Service Tribunal. It is further argued that the respondent could not have been re-instated with back benefits after commission of such a heinous offence which depicts his negligence, inefficiency and lack of proper supervision and thus according to the learned Deputy Attorney General, the respondent is not a fit person to be kept in police service.

2. We have carefully examined the contention as agitated on behalf of the Federation of Pakistan in the light of relating provision of law and record of the case. We have minutely scanned the Statement of Allegations, Show Cause Notice, plea of the respondent, Enquiry Report and final action and the impugned judgment of the learned Federal Service Tribunal with care and caution. Before we could examine the main contention as agitated by the learned Deputy Attorney General, it seems appropriate to reproduce hereinabelow the Statement of Allegations to know the exact nature of the

charges as leveled against the respondent which culminated into his compulsory retirement: -

"STATEMENT OF ALLEGATIONS.

Mr. Mumtaz Ahmed Burney, the then SSP, CIA, Karachi, presently under suspension is alleged to have committed the following acts of misconduct: -

(i) It is alleged that on 17.5.1994, CIA Karachi on the basis of source information picked up a notorious smuggler Hqji

Shourang Khan from Al-Asif Square, Sohrab Goth, Karachi and obtained Police Custody Remand in case Crime No. 392/93 u/S. 17 (3) CAP (EH) Ordinance w.e.f 18.5.1994 to 24.5.1994 for investigation. On 18.5.1994, he, the then SSP CIA vide his T.P. Message No. SSP/CIA RD/944II informed all the SSPs in Pakistan, Director PNCB and Director Excise Karachi regarding the arrest of accused Shourang Khan to get information if the said accused was wanted by them in any case. On the same date i.e. 1 §.5.1994 the then SSP CIA, Karachi personally called Major Waheed the Deputy Director ANTF and informed him about the arrest of the above named accused. Major Waheed deputed ANTF officers namely Ghulam All Sheikh, Athar All Naqvi & Muhammad Akhtar etc. for interrogation of accused Shourang Khan at CIA Centre, Karachi with reference to his activities in the business of Narcotics. On 20-5-1994 the CIA Police on the piontation of ; accused Shourang Khan also recovered 100 KGs of Hashish, ponsequentiy upon the recovery of Hashish, a case FIR No. 126/94 dated 21-5-1994 u/S. 3/4 of Prohibition (EH) Order 1979 was registered as PS Gulzar-e-Hijri but on the same evening accused Shourang Khan was released on bail u/S 497-B of the Cr.P.C. by the Investigation Officer Inspector Khair Muhammad Chandio on the plea that accused was a heart patient and it was done with the consent and knowledge of SSP/CIA though there was no grounds for his release which could meet the conditions provided in the said section of Criminal Procedure Code.

(ii) Due to the abnormal conduct of CIA, the officials of ANTF were unable to complete their task. However, from the enquiries made by ANTF accused Shourang Khan was found involved in many cases of Narcotics registered at different Police Stations in the Country.

(iii) CIA officials knew fully well that Shourang Khan was a notorious narcotics smuggler whose interrogation by ANTF could reveal a lot of information about the organized drug smuggling in Pakistan. His release under the orders of the SSP/CIA on the day of recovery of 100 KGs Hashish on his piontation, under Section 497-B Cr.P.C. was unlawful."

A careful scrutiny of the Statement of Allegation would reveal that it revolves around the release of Sourang Khan, the notorious Narcotics Smuggler on bail by Kher Muhammad Chandio, Inspector, CIA/ Investigating Officer, under Section 497-B Cr.P.C. with the consent and knowledge of the respondent who was SSP (CIA) at that time. The pivotal question which needs determination would be that upto what extent tile respondent was responsible for release of Shourang Khan under

Section 497-B Cr.P.C. by Kher Muhammad Chandio, Inspector CIA and whether it was with his consent and factually the police was deprived from collecting further incriminating material against Shourang Khan. The learned Deputy Attorney General was questioned in a categoric manner that which specific material or particular evidence showing the connivance or responsibility of respondent by releasing Shourang Khan on bail through Kher Muhammad Chandio Investigating Officer with some ulterior motive has been ignored by the leaned Federal Service Tribunal. It is worth-mentioning that no specific incriminating material or evidence could be I/\ pointed out, showing that respondent was in fact responsible for the release' of Shourang Khan. The learned Deputy Attorney General failed to point out any written direction given by the respondent for release of Shourang Khan. Be that as it may, there are certain admitted facts which were not controverted by the learned Deputy Attorney General which runs as unden-

(i) Mr. Kher Muhammad Chandio was competent to release Shourang Khan on bail U/S 497-B Cr.P.C. on account of serious ailment.

(ii) Haji Shourang Khan made a complaint of heart trouble which was duly incorporated in the Roznamcha.

(iii) Shourang Khan was 76 years old person with feeble physique. (iv) Various custodial deaths in Karachi during 1990-1995.

(v) Apprehension of death of Shourang Khan due to heart problem, old age and critical physical conditions in police custody.

(vi) ;' Shourang Khan remained hospitalized from where the proper Court of law was approached for grant of abl and the learned ADM/CIA Karachi granted bail to him on 30-5-94.

(vii) ... The appearance of Shourang Khan before the Court of ADM on 30-5-94.

(viii) Grant of bail by the ADM on the ground of serious ailment coupled with old age.

1. We;have carefully perused the entire evidence which has come on record against the respondent and got recorded during the enquiry proceedings,. Mr. Athar Ali Naqvi, DSP Crimes has stated in an unambiguous manner as follows:

"Major Waheed did not direct me or the members of the team in writing or verbally about involvement of accused Shourang in any particular case with ANTF/PNCB Karachi. After submission of report containing release of accused I was not directed by Major Waheed to contact CIA Center, or S.S.P or Court for arrest of the accused. I was not directed to apprehend the accused. We

were also not directed to contract accused officer in any way."

Mr. Muhammad Akhtar Khan, Assistant Director ANT while answering a few questions during cross-examination highlighted the details of the episode in the following words: -

"I was not instructed by Major Waheed either in writing or orally about involvement of accused Shourang in any of the cases registered or not registered with ANTF/PNCB Karachi. After publication of news about the release of accused in newspaper I was not directed by Major Waheed to contract CIA Centre or Court or S.S.P. for arrest of the accused. Iwas never directed on submission of my report about the release of the accused by Major Waheed to apprehend the accused. The accused was about 65 years of age, lean and thin and was complaining severe pain in his both hand and body on 20th May, 1994. Nor we were directed to contact accused officer nor we contacted of our own in connection with the interrogation of accused Shourang."

The statement of Mr. Waheed Haider has also been examined by whom the following version of the incident has been given:

"Our office does maintain the record of involved accused as well as suspected persons dealing in Narcotics through out country. It is correct to suggest that accused officer on 18th May, 1994, requested me in person to .take over the custody of accused Shaurang if needed by ANTF and also to assist the CIA in his interrogation.' It is correct that to my knowledge we have not arrested in our records accused Shaurang on 18th, 19th and 20th May, 1994. It is correct that I was away from Karachi from one week approximately. I do not remember if I returned by 27th of May from Eid Holidays. I do not know if accused Shaurang did appear in the Court of ADM CIA from 25th May to 30th May, 1994 for getting confirmation of his bail. We firsttime came to know about the appearance of accused Shaurang before Court of ADM CIA for confirmation of his bail at the time of enquiry by FLA on 2nd June 1994. We never requested Court of ADM CIA for cancellation of the bail of accused Shaurang. Voluntarily says he made such request to Government to transfer the case to ANTF. I do not remember if accused officer made a request before FIA enquiry team to allow him time of two or three days for re-arrest of accused Shaurang or to provide him a list of cases in which he was wanted by ANTF. It is incorrect to suggest that any TP message dated 18th May, 1994 was received by me or my office dispatched from S.S.P. CIA Karachi. I do not remember if ANTF had ever challaned accused

Shaurang under Section 512 Cr.P.C. or directly from 18th May, 1994 to my departure from ANTF I did try to establish contact on phone with accused officer on my return from Eid Holidays but cannot tell the exact dates. During my entire posting particularly after 18th May, 1994 I did not initiative 'to challan accused Shaurang in may pending Narcotics case. Itis correct that I did not contract with the superiors of Syed Mumtaz Burney when he was not being contracted on telephone."

The star witness of prosecution produced against the respondent is Mr. Kher Muhammad Chandio, Inspector CIA by whom the following statement has been given:-

I got registered the FIR at PS Gulzar-e-Hijri under Sections 3 & 4 of prohibition Ordinance. Before coming to Police Station I also arrested the accused because of his involvement and recovery of Chars at his pointation. I brought the accused property to CIA Centre, after midnight and made entry in the station diary on 21st May, 1994 at 2.40 a.m. I intimated the fresh arrest of the accused in case Crime No. 126 of 94 to my S.S.P. Mr. Mumtaz Burney who directed me to get remand of the accused from concerned Magistrate. For this purpose vide Entry No. 52 at 12.36 A.S.I. Ameer Gondal departed and returned at 4:30 p.m. without getting any remand disclosing that because of Eid Holidays no Magistrate was available. He made such entry in the Roznamcka and further mentioned in it that accused was. complaining heart trouble. I personally verified the fact and found accused sustaining fits of heart trouble. I apprised of such position to the accused officer on telephone at about 5 p.m. and was informed to adopt the legal way. The condition of accused further worsened as such his relatives present there created a scene. Because of such atmosphere and keeping in fact that many accused had died in CIA custody in post and that accused was of 70 years of age, I decided to my own to release him on bail. I accepted the surety and personal bond of Rs. 1 lac each and released the accused on bail with directions to re­appear after Eid holidays before concerned Court for confirmation or rejection of bail as the case may be. On 25th May, 19941 received the letter from the Court of ADM CIA Karachi for production of case papers in connection with bail application filed by the accused. Since investigation was otherwise complete, I produced the papers to ASI Ameer Gondal for submission of challan before Court on 30th May, 1994. Magistrate CIA by order dated 30th May, 1994 released the accused on bail in sum of Rs. 50,000/-. On 8th June, 1994 I got the letter of my suspension issued by the DIGP Karachi. I have also been served charge sheet on account of release of accused on bail. My statement was also recorded before FLA. Now I produce the

Roznamcha entry showing arrest of accused in FIR No. 392 of 1993 at Ex: 2-A. Mashirnama of arrest and recovery from accused at Ex: 2-B, a copy of FIR No. 126/94 at Ex: 2-C, copy of Roznamcha regarding remand of accused at Ex: 2-D, copy of Roznamcha showing complaint of heart trouble and release of accused on bail at Ex: 2-E, copy of challan submitted before Court at Ex: 2-F, copy of bail order by Court at Ex: 2-G."

Mr. Kher Muhammad Chandio was subject to cross-examination and while answering a few questions he mentioned as follows:

"It is correct that under instructions of accused officer with his own signature tele-printer message dated 19th May, 1994 was relayed to all S.S.Ps in Pakistan, Director Narcotics Control Board and Director Excise Karachi requiring involvement of accused Shourang Khan in any case registered with them. I produce the copy of it at Ex: 2-II. No response to any knowledge was received of this message from any corner till my handing over the charge on 8th June, 1994. It is correct that on 19th and 20th May, 1994, the team of ANTF comprising Ghulam Muhammad Shaikh, Ahtar Naqvi and Akhtar visisted for interrogation from the accused. It is correct that under instructions of accused officer I requested them to take away accused with them if they so desired. It is correct that they refused to take away accused on the plea of his non-involvement in any crime registered with them. It is correct that neither I was forced nor directed to release the accused by accused officer. It is correct that many cases of murder are registered against officials of CIA for deaths of accused in their custody. I produce the list of some of them at Ex: 2-i.

No. Re. R.O.&A.C.

ENQUIRY OFFICER"

The statement of Amir Muhammad ASI has also been examined and relevant portion whereof is reproduced hereinbelow for the sake of convenience:

"Mr. Mumtaz Burney SSP CIA on that date issued tele-printer message to officials of anti-Narcotics, all S.S.Ps in Pakistan and Director Excise Karachi for any need of the accused in connection with any crime registered with them. So far I know none has responded this message, however, team of anti-narcotics comprising Ghulam Muhammad Shaikh, Ahtar Naqvi and Akhtar visisted us on 19th and 20th May, 1994 for purpose of interrogation of accused Shourang. I fully co-operated with them and conveyed the message of accused officer to take away the accused if they so desired. They departed without accused disclosing that he was not in need."

1. We have kept the defence version of the respondent in juxtaposition and examined the defence version and evidence produced by the respondent The statements of defence witnesses namely Muhammad Younus and Khalid Khan have been perused thoroughly. The main plea of the respondent can be summarized as follows:-

"In his reply to the charge sheet, accused officer admitted the allegation at Sr. No. (1) but with the difference that on 21-5-1994, in the evening, I.O. Inspector Khair Muhammad Chandio informed the accused officer on phone about heart problem of accused Shourang and his apprehension that he might die in custody and that despite two consecutive days of interrogation by ANTF they have not effected his arrest, to which accused officer agreed and advised him to strictly act in accordance with law and if appropriate release him on bail u/S. 497-B Cr.P.C. and to further ensure fulfillment of legal requirements and production of accused before Court for confirmation or rejection of his bail."

1. A careful scrutiny and analysis of the evidence as discussed and mentioned hereinabove would reveal as follows:--

(a) Major Waheed has never made any formal request to CIA for arrest of Shourang Khan.

(b) No effort wroth the name was ever made by the ANF to get Sourang Khan arrested who could have been apprehended easily on 25-5-1994 when an application for bail was moved which was decided on 30-5-1994 and arrest could have been effected during the intervening period i.e. 25-5-1994 to 30-5- 1994.

(c) No case whatsoever was either got registered by the ANF or directed to be registered by the police against Shourang Khan.

(d) No case was pending in any Court against Sourang Khan prior to his arrest.

(e) ANF was asked in a categoric manner to take custody of Shourang Khan which was not done by the ANF.

(f) No effort whatsoever was made for the cancellation of bail granted by the learned ADM in .favour of Shourang Khan.

(g) The respondent had issued tele-printer message on 18-5-1994 to the SSPs in Pakistan, Director Narcotics Control Board, Director Excise Karachi requiring involvement of accused Shourang Khan in any case. The appears to be no response.

(h) (h) The accused was released by Kher Muhammad Chandio, Investigating Officer without having any written order and consent of the respondent.

(i) The bail application of Shourang Khan was accepted on the ground of serious ailment as pointed out by Kher Muhammad Chandio in his statement got recorded before the Enquiry Officer and duly incorporated in the Roznamcha.

On the basis of the above mentioned conclusions it can be inferred safely that it could not be proved that bail was granted on the written direction or consent of the respondent or with his connivance. It is, however, to be noted that bail was granted in favour of Shourang Khan at the first instance by Kher Muhammad Chandio, Investigating Officer and subsequently by the Court of competent jurisdiction on 30-5-1994 and no" effort whatsoever was made to get it cancelled. If Shourang Khan was a notorious smuggler as per the allegations, then why no application for cancellation of bail was moved. The learned Deputy Attorney General could not furnish any plausibly explanation in this regard. It also transpires from the scrutiny of record that no case whatsoever was got registered against him except the one wherein bail was granted. It has further come on record that no case was got registered by any of the Agencies including the ANF by whom Shourang Khan was never arrested in spite of the request made by the CIA. The proper course in our view would have been that Shourang Khan could have been referred for medical examination and thereafter action could have been taken under Section 497(B) Cr.P.C. but initially it was to be done by Mr. Kher Muhammed Chandio who amazingly has been absolved from all the charges and in such view of the matter, how respondent can be held responsible when there is nothing in black and white that any order for release of Shourang Khan was given by him. In such background, the imposition of extreme penalty of compulsory retirement appears to be very harsh and discriminatory. It has, however, come on record that Mr. Chandio had informed the respondent about the ailment of Shourang Khan and his

intended action i.egrant of bail U/S 497-B Cr.P.C. but no comprehensive guideline could be provided by the Superintendent of Police which amounts to dereliction of duty and his complete failure to handle the situation in a proper and brilliant manner. It appears that he did not want to take any responsibility and besides, that he did not care to have examined the record of the case with such prudence as his office demanded of him. He appears to have failed to apply his conscious mind to the facts of the case and instead toed the line so ill-foundedly and unscrupulously drawn by Kher Muhammad Chandio and adopted the same reasoning as are pointed out by Mr. Chandio and obviously subscribed thereto, rather mechanically. In our

considered view, for such careless and callous approach departmental action should have been initiated for being negligence and inefficient but no action could have been initiated regarding release of Shourang Khan on bail which in fact was done by Mr. Kher Muhammad Chandio who is still in service. All the concerned agencies have acted in a reckless manner showing lack of supervision and co-ordination which aspect of the matter should have been taken care of by Inspector General Police Sindh. Be that as it may, the allegations as leveled against the respondent could not be proved. In our considered view, the learned Federal Service Tribunal after an in-depth scrutiny of entire record including the Charge Sheet, Statements of Allegations, Show-Cause Notice and Enquiry Report has accepted the appeal preferred on behalf of the respondents and its findings being unexceptionable do not warrant any interference. It is worth mentioning that leave to appeal can only be granted by this Court if the case involved a substantial point of law and public importance. In this regard we are fortified by the dictum laid down in Muhammad Iqbal v Secretary to Govt. of Punjab 1986 SCMR 1, Karamat Hussain v. Province of the Punjab 1982 SCMR 897, Miss Razia Sultana v. Govt. of Punjab 1981 SCMR 715, M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22, Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722, Dilbar Hussain v. Province of Punjab 1980 SCMR 148, Yousaf Hussain Siddiqi v. Additional Settlement & Rehabilitation Commissioner, Peshawar, 1976 SCMR 268, Muhammad Azhar Khan v. The Services Tribunal Islamabad 1976 SCMR 262, MA. Majid v. Govt. of Pakistan 1976 SCMR 311. It is well-entrenched legal principle that "Supreme Court does not ordinarily interfere with a concurrent finding of fact given by the Departmental Authority and Service Tribunal. Where Service Tribunal based its decision on report of Enquiry Officer after considering defence of petitioner at length, case being not fit to be interfered with, leave to appeal was refused and more so re-appraisal of evidence cannot be made in every case without sufficient justification which is barely lacking in this case. "(Muhammad Binyamin v. WAPDA 1991 SCMR 382, Faiz Ahmed v. Deputy Postmaster General Lahore 1991 SCMR 368, Muhammad Munir Ahmed v. WAPDA 1990 SCMR 907, Munir Ahmed v. Punjab Service Tribunal, 1990 SCMR 1005, Barkat All v. Punjab Service Tribunal 1990 SCMR 1469, Muhammad Jaffar Toor v. Superintendent Engineer, Headquarters, Irrigation, Sargodha 1989 SCMR 1470, Najib Ullah v. Assistant Commissioner/Collector 1989 SCMR 679).

In the light of foregoing discussion we find no scope for interference in the impugned judgment and according the petition being devoid of merits is dismissed. (A.P.) Leave refused.

PLJ 2002 SC 188 [Appellate Jurisdiction]

Present: SH. RlAZ AHMAD, MlAN MUHAMMAD AJMAL AND syed deedar hussain shah, JJ.

MIR ZAMAN and another-Appellants

versus

QURBAN HUSSAIN-Respondent C.A. No. 159 of 1998, decided on 20.9.2001.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 20.5.1997 passed in Civil Revision No. 552-D/1987)

(i) Punjab Pre-emption Act, 1913 (I of 1913)--

—S. 8(2)-Constitution of Pakistan (1973), Art. 185 (S)--Oustees of Islamabad—Right of pre-emption—Extent—Leave to appeal was granted to consider whether right which accrued to appellants on issuance of notification would terminate on the expiry of two years, the period fixed in notification concerned. [P. 190] A

(ii) Punjab Pre-emption Act, 1913 (I of 1913)--

—S. 8(2)-Notification of exemption of right of pre-emption-Effect on pending suit-On issuance of notification of exemption of right of pre­ emption, right of pre-emption would cease to exist as the notification takes effect on the day of publication thereof-Pending pre-emption suit, thus, could not proceed any further as right to sue ceased to exist any more, therefore, suit, was liable to dismissal for having become infructuous-In pre-emption suit, right of pre-emption must persist till the passing of decree. [Pp. 190,192 & 194] B, C & D

PLD 1961 SC 69; PLD 1978 SC (AJ&K) 126; 1991 SCMR 292; 1984 SCMR 1404 ref.

Mr. Muhammad Younis Bhatti, ASC and Mr. Ijaz Muhammad Khan, AOR for Appellants.

Mr. Bashir Ansari, ASC and Mr. Imtiaz Muhammad Khan, AOR for Respondent.

Date of hearing: 24.4.2001.

judgment

Mian Muhammad Ajmal, J.--This appeal, by leave of the Court, is directed against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 20.5.1997, whereby Civil Revision No. 552-D/87 of the respondent was allowed, the judgment and decree passed by Addl. District Judge, Islamabad dated 5.10.1987 was set aside and that of the Senior Civil Judge, Islamabad dated 26.10.1982 was restored.

1. Brief facts of the case are that Mehrban, brother of the respondent sold his land measuring 19 kanals13 marlas situated at Chak Dakhli, Tehsil Sihala District Rawalpindi to the appellants for an amount of Rs. 20,000/-through registered sale-deed dated 28.5.1975. The respondent filed a suit in the Civil Court, Rawalpindi, for possession of the said land on the basis of his superior right of pre-emption being brother of the vendor and co-sharer in the khata. He also averred that the sale price of the land was Rs. 5350/. The suit was contested by the appellants. On the divergent pleadings of the parties, the trial Court framed necessary issues and recorded evidence of the parties. During the pendency of the suit, a notification was issued on 15.6.1976 exempting pre-emption rights for a period of two years in respect of the sales of land in favour of the oustees of Islamabad in Districts of Cambellpur, Rawalpindi and Jhelum. Thereafter the appellants-vendees moved an application for amendment in the written statement praying that they be allowed to raise the plea of being outsees of Islamabad and hence the suit land having been purchased by them in such capacity, was immune from pre-emptive attack in view of the aforesaid notification. The learned trial Judge vide his interlocutory order dated 7.2.1979 held that the said notification was not fatal to the suit and could not be pressed into service as it was not in existence at the time of filing of the suit as such the suit was held to be competent. The appellants challenged the propriety of the said order in appeal before the learned District Judge, Islamabad who videhis order dated 16.3.1981 held that the suit was not maintainable as the notification was fatal to the suit and had retrospective effect. The respondent challenged the said order before the Lahore High Court, Rawalpindi Bench, Rawalpindi through RSA No. 53/1981, which was accepted on the ground that the appeal against the interlocutory order before the First Appellate Court was incompetent, therefore, on setting aside the same the case was remanded to the trial Court for decision afresh on merits. After remand, learned Senior Civil Judge, Islamabad vide his judgment dated 26.10.1982 decreed the suit holding that the appellants-vendees could not take benefit of notification dated 15.6.1976 and the suit of the respondent was held "to be competent. However, the price mentioned in the sale-deed was believed to be correct keeping in view upward trend in the price of the land. Feeling aggrieved, the appellants filed appeal, which was accepted by an Addl. District Judge, Islamabad vide his judgment dated 5.10.1987, holding that the notification dated 15.6.1976 was applicable to the instant case and the defendants were immune from the pre-emptive attack. Resultantly, the judgment and decree of the trial Court was set aside and the suit was dismissed. Feeling dissatisfied, the respondent filed Civil Revision No. 552-D/1987, which has been accepted by a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench videjudgment dated 20.5.1997 impugned herein. Leave to appeal was granted by this Court as under:-

"The learned counsel contends that as soon as the above notification was issued a vested right was created in favour of the petitioners which could not be taken away merely by the fact that the suit for

pre-emption was decided on a date after two years of issuance of the said notification. In support of his contention, the learned counsel has relied on the case of Muhammad Zulfiqar Vs. Ghulam Khan (1991 SCMR 292) wherein relying on an earlier case of Fazal Elahi vs. Dewan Alt (1984 SCMR 1404) this Court observed that the mandatory effect of the notification issued under Section 8(2) of the Punjab Pre-emption Act has to be given effect to and as such right of pre-emption stands extinguished against a person who is a displaced affectee of Islamabad. The contention raised by the learned counsel for the petitioners requires examination and we accordingly grant leave to appeal to consider the same."

1. Learned counsel for the appellants contended that notification 15.6.1976 was issued during the pendency of the pre-emption suit, therefore, the same was applicable to the pending proceedings and in the light thereof the pre-emption suit was liable to be dismissed. Reliance was placed on Bibi Jan Vs. R.A. Monny (PLD 1961 SC 69) and Shakar Khan Vs. MuhammadLai'(PLD 19789 SC (AJ&K) 126).

2. On the other hand, learned counsel for the respondent submitted that no doubt the appellants were displaced persons from Islamabad but the said notification would have no effect on the suit of the respondent as the same was issued during the pendency of the suit and stood expired before the decree was passed by the trial Court.

3. We have heard the learned counsel for the parties and have gone through the record of the case. Admittedly, notification dated 15.6.1976 was issued during pendency of the suit, whereby the displaced persons of Islamabad were given exemption from pre-emption on the sale of land in their favour in the Districts of Cambellpur, Rawalpindi and Jhelum for a period of two years. After issuance of the said notification the appellants applied for permission to file amended written statement, which was otification had not effect on the pending suit and consequently decreed the same. This finding was set aside by the learned first appellant Court but the same was restored by the High Court in revision. Leave was granted to consider whether a right which accrued to the appellants on issuance of the notification would terminate on the expiry of two years, the period fixed in the notification.

4. After the issuance of the said notification the right of pre-emption against th sales made in favour of the persons who were certified oustees of Islamabad stood extinguished and after the loss of pre-emptive right of the pre-emptor, the pending pre-emption suit could not proceed any further as firight to sue ceased to exist anymore, as such the suit was liable to dismissal for having become infructuous. Reference may be made by Mst. Bibi Jan and others Vs. Miss R.A. Monny and another. (PLD 1961 SC 69), wherein this Court observed as under:

"The words of notification appear to us to be plain and to be fairly susceptible of the interpretation that with the promulgation of the notification, all rights of pre-emption would cease to exist, in the area mentioned in the notification, whether they pertained to sales that had already taken place or to those which were to be held hereafter. The only exception that could be recognised to this proposition would be in favour of cases in which decrees had already been obtained by the pre-emptors, prior to the notification. In the case of such an existing decree, it could not be said that the pre-emptor was seeking to enforce his right to pre-empt. The right had already been successfully asserted before the date of the notification. But in the absence of any such adjudication by a Court, there is no reason why full effect should not be given to the comprehensive words of the notification, so as to non-suit plaintiffs who may have filed suit for pre-emption before the date of notification, as well as debar all pre-emptors form instituting suits to enforce their right of pre-emption in the area in question, subsequent to the date of the notification. We are, consequently, disposed to uphold the decision of the Courts below that the right of pre-emption possessed by the appellants was lost on the date that the impugned notification was issued in the present case. We, therefore, dismiss the appeal with costs.

In Shakar Khan Vs. Muhammad Lai (PLD 1978 SC (AJK) 126), it was observe he right of pre-emption in the instant case possessed by the pre-emptor was lost on the day the Notification was issued under Section 6 (2) of the Right of Prior Purchase Act that had taken away the right of prior purchase and a decree that was passed subsequent to the loss of the right to pre-empt, was not a valid decree in the eyes of law; because pre-emption is the right of a person of purchasing a land in preference to other person. Thus it connects a preferential right of purchase and it is necessaiy for pre-emptor to show that he was clothed with the superior right not only at the time of sale, but also at'the time of institution of suit as well as at the time of the decree by the trial Court was passed in his favour. In case where he is deprived of such superior right before a decree is passed in his favour and the property is not by then legally vested in him under such decree, his suit becomes infructuous. The loss of the right to pre-empt, in law deprives such person of the right to prosecute his case any more. In these circumstances, the High Court has rightly reversed the finding of the two Courts below and dismissed the suit."

In FazalElahi Vs. Dewan All(1984 SCMR 1404), this Court observed:

"In the N.W.F.P. Pre-emption Act XP/ of 1950 Section 19 is to the effect that where the purchaser having equal or a superior right to the pre-emptor, joins with him, a person having no right or having right inferior to the pre-emptor, the purchaser loses his preferential right, but there is no corresponding provision to Section 19 in the Punjab Pre-emption Act I of 1913. This being so the right of pre­emption can be enforced subject to the condition and limitation laid down in the statute itself. Under Section 6 of both the Pre-emption Acts a right of pre-emption shall exist in respect of agricultural land, village immovable property, and urban immovable property subject to the provisions and limitations contained in these Acts. This gives mandatory effect to the requirement of Section 19 whereas in the Punjab Pre-emption Act there is no such provisions and limitation. Therefore, mandatory effect would only be given to the exemption provided under Section 8(2) because where a statutory provision excluding right of pre-emption is contained categorically of cases basically the right of pre-emption extinguishes against a person i.e. who is a Certificate Holder. Therefore, the learned Judges of the High Court have come to the right conclusion that qua the share of the Diwan Ali the right of pre-emption stands extinguished, and, therefore, the suit to that extent would stand dismissed. Thus, we find no merit in this petition which is accordingly dismissed."

In Muhammad Zulfiqar Vs. Gulab Khan (1991 SCMR 292), the notification in question came under consideration before this Court, wherein it was held that mandatory effect would be given to the exemption provided under Section 8(2) of the Punjab Pre-emption Act and the right of pre­emption against a person who was certificate holder from Capital Development Authority to the, effect that he was an oustee from Capital Area on account of construction of Capital, would be extinguished.

1. It has consistently been held that on issuance of notification of exemption of right of pre-emption, the right of pre-emption ceases to exist as the notification takes effect on the day of its publication, as such the same would apply to the. pending suit where decree has not been passed. The notification was issued under sub-section (2) of Section 8 of the Punjab Pre­emption Act, 1913, which reads as follows:

"8. Provincial Government may exclude areas from pre-emption.-(1)......

(2) The (Board of Revenue) may declare by notification that in any local area or with respect to any land or property or class of land or properly or with respect to any sale or class of sales no right of pre­emption or only such limited right as the Board of Revenue may specify, shall exits"

In exercise of the aforesaid provision of law the Central Board of Revenue vide notification dated 15.6.1976 declared that no right of pre-emption shall

exist in the Districts of Cambellpur, Rawalpindi and Jhelum in respect of sale of agricultural land not exceeding 12% acres of canal irrigated area or 50 acres of un-irrigated area and other immovable property not exceeding the market value of Rs. 10,000/- in favour of a person displaced on account of construction of the capital at Islamabad and certified to be so displaced by the Capital Development Authority, Islamabad. As far as the question of displacement of the appellants from Islamabad and its certification by the Capital Development Authority, Islamabad is concerned, it has been proved on record that the appellants were oustees from Islamabad on account of construction of Capital which has been certified by the C.D.A. vide certificates Ex. D-6 and Ex. D-7. The leaned Judge in Chambers held them to be displaced persons duly certified by the C.D.A., Islamabad, as under: -

"In support of their contentions on the aforesaid additional issue that they were oustees of Islamabad Capital Territory, the respondents produced two certificates Ex. D-6 and Ex D-7, issued by the Capital Development Authority certifying that Mahboob Hussain son of Zaman Khan and Zaman Khan son of Ali Khan Respondents Nos. 2 and 1 respectively were the oustees of Islamabad. In rebuttal, the petitioner/plaintiff produced copy of register Haqdaran for the year 1973-74 (Ex.P6) and certificates Ex, P-7 and Ex. P-8 issued by the Capital Development Authority, Islamabad, copy of register Haqdaran for the year 1973-74, for the village Sihala, shows that Mir Zaman son of Ali Ahmad, Respondent No. 1, was owner of land in the village, while certificate Ex. P-7 establishes that Wilayat Khan son of Muhammad Khan's land was acquired by the Capital Development Authority and he was paid compensation thereof and that his son Qurban Hussain was an oustee of Islamabad. Exh. P-8 is certificate issued by the CDA to the effect that Mir Zaman's land measuring 20 kanals and 19 marals was acquired by C.D.A., and he was given alternate State land in Guddu Barrage area. In view of this documentary evidence showing that the respondents were oustees of Islamabad Capital Territory, the objection of the petitioner regarding disentitlement of the respondents being residents of the village where the disputed land was situated from claiming protection under the Board of Revenue, Government of Punjab, Notification No. 2771-76/1060-LR-III, dated the 15th June, 1976, is devoid of any force. There is no evidence on the record to rebut the authenticity of the certificates' (Ex. D-6 and Ex. D-7) issued by the acquisitioning authority (CDA). In fact, the certificate Ex. P-8, produced by the petitioner/plaintiff himself proves that Respondent No. 1 was a displaced person of Islamabad and the land owned by him was acquired by the CDA and was given land in Guddo Barrage area in lieu thereof. Hence, simply owning of land in village Sihala does not establish that he was not a displaced persons of Islamabad. For that purpose, legally, as required by

Notification dated the 15th June, 1976, certificates of the Capital Authority to this effect were sufficient proof to establish that the respondents were the displaced person of Islamabad. The other requisite regarding area of land acquired by CDA for attracting the exemption under the said Notification also applies to the disputed land. The only question which actually needs determination is whether the exemption under the Notification of the 15th June, 1976, is applicable in the present case."

The question whether exemption under the notification was applicable to the present case has been answered above in affirmative that since the notification came into effect on the day it was published which provided that no right of pre-emption shall exist, for a period of two years with respect to the sale of Agricultural land not exceeding 12^ acres of canal irrigated area of 50 acres of un-irrigated area and other immovable property not exceeding the market value of Rs. 10.000/- in/avour of a person displaced on account of construction of the capital at Islamabad. On the publication of the notification all rights of pre-emption ceased to exist in the Districts mentioned therein, as such it was applicable to the sales that had already taken place and the pending suits of pre-emption instituted on the basis of such sales and pre-emptive right could not be exercised in those sales which were to take place within the period stipulated in the notification. The argument that exemption was not available on the date of sale, date of institution of the suit and the date on which the decree was passed, has no substance, for, as stated above the notification came into effect on the date it was published, therefore, on extinguishment of the pre-emptive right of the pre-emptor,\the right to sue or to proceed to sue a right in a pending suit cease to exist irrespective of the fact whether sale had taken place before notification or thereafter, and in consequence, suit was liable to be dismissed. In pre-emption suit it is necessary that right of pre-emption must persist till the passing of the decree but if such right is withdrawn before the passing of the decree, it would adversely hit the suit. In Mst. Bibi Jan's (supra) it was observed that it was essential for the pre-emptor to retain his right of pre-emption till the date of decree in order to be successful. The exception provided in the notification is that it would not apply to those cases where decree had been passed in favour of the pre-emptors before its publication thus, it implies that in the cases where no decree had been passed the notification was applicable and rendered the pre-emption suit against the certified oustees of Islamabad, to be infructuous.

1. In view of the above, we accept this appeal, set aside the impugned judgment and decree of the High Court, restore that of the Addl. District Judge, Islamabad dated 5.10.1987 and dismiss the suit leaving the parties to bear their own costs.

(A.A) Appeal accepted.

PLJ 2002 SC 195

[Appellate Jurisdiction]

Present: IRSHAD HASAN KHAN, C.J., MUHAMMAD ARIF, -qazi muhammad farooq and mian muhammad ajmal, JJ. G.M. NATIONAL BANK OF PAKISTAN and oihers-Appellants

versus ABDUL AZIZ and others-Respondents

Civil Appeals Nos. 1126 to 1133 of 2001 and C.Ps for

leave to Appeal Nos. 745-L to 755-L, 805-L and 812-L

to 840-L of 2001, decided on 28.9.2001.

(On appeal from judgment dated 25.1.2001 the Federal Service Tribunal, Lahore in Appeals Nos. 440-L/98, 636-L/98, 697-L/98, 698-L/98, 699-

L/98,1079-L/98, 1080-L/98, 1340-L/98, 1707-L/98, 1339-L/99, 1340-

L/99, 1341-L/99, 1342-L/99,1343-L/99, 1344-L/99, 633-L/97, 634-L/97, 638-L/97, 644-L/97, 650-L/97, 652-L/97, 656-L/97, 653-L/97, 658-L/97, 662-L/97, 664-L/97 and 697-L/97)

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

—Ss. 2-A, 4 & 6 Constitution of Pakistan (1973), Art. 212-Dismissal of appeals by Service Tribunal on grounds of non-maintainability and lack of jurisdiction-Respondents had redressal of their grievance and re­instatement from different forums-While grievance petitions of those who had approached Labour Court were allowed, the rest obtained favourable orders for National Industrial Relations Commission and decrees from Civil Courts-Appeals preferred by appellants against all the orders passed in favour of respondent, however, stood abated pursuant to insertion of S. 2-A of Service Tribunal Act, 1973-Appellants filed appeals thereafter before Service Tribunal which were dismissed on grounds of non-maintainability and lack of jurisdiction-Impugned judgment was based on erroneous assumption of law in as much as, effect of S. 2-A of Service Tribunals Act, 1973 was that all matters covered under S. 2-A of the Act having abated, Service Tribunal alone had exclusive jurisdiction to examine grievance of persons involved therein-Provision to S. 6 of Service Tribunals Act, 1973 make, it manifest that in the event of abatement of suits and other proceedings any party to suit, appeal or . application can prefer appeal before Service Tribunal~S. 6 of Service Tribunals Act 1973, has an overriding effect vis-a-vis S. 4 of the Act for having envisaged special procedure to be followed after abatement of proceedings-Appeals filed by appellants were, thus, maintainable before Service Tribunal-Service Tribunal did not properly appreicate judgment of Supreme Court PLf) 1981 SC 249 and fell in error by dismissing appeals on the ground of maintainability and lack of jurisdiction-Impugned judgments were set aside and cases were remitted to Service Tribunal for decision afresh on merits in accordance with law.

[Pp. 199&200] A&B

Mr. M. Nawaz Bhatti, ASC for Appellant (in all appeals).

Mr. M. Munir Peracha, ASC for Respondents (in CA 1126/2001).

Sardar Liaqat All, ASC for Respondent (in CA 1127,1129, 1131 and 1132/2001).

Mr. M. Aslam Uns,ASC, Ch. M. Akram, AOR for Respondent^ CA 1128, 1130 & 1133/2001).

Mian Abdur Rashid, ASC for Petitioner (in CP 745 to 755-L of 2001).

Mian Muhammad Saleem, ASC for Petitioner (in CP 805-L/2001).

Malik Sher Bahadur, ASC for Respondent (in CP 805-L/2001).

Mr. Javaid Altaf, ASC and Sh. Salahuddin, AOR for Petitioners (in CP812to840-Lof2001).

Mr. M. Rafiq Rqjwana, ASC for Respondent (in CP 812-L/2001).

Date of hearing: 26.9.2001.

judgment

Qazi Muhammad Farooq, J.--By this common judgment, we propose to dispose of the above-mentioned connected Civil Appeals Nos. 1126 to 1133 of 2001, by leave of the Court, and Civil Petitions for Leave to Appeal Nos. 745-L to 755-L, 805-L and 812-L to 840-L of 2001 arising out of the judgment dated 25.1.2001 passed by the Federal Service Tribunal (hereinafter referred to as the Tribunal) in Appeals Nos. 440-L/98, 636-L/98, 697-L/98, 698-L/98, 699-L/98, 1079-L/98, 1080-L/98, 1340-L/98, 1707-L/98, 1339-L/99, 1340-L/99, 1341-L/99, 1342-L/99, 1343-L/99, 1344-L/99, 633-L/97, 634-L/97, 638-L/97, 644-L/97, 650-L/97, 652-L/97, 656-L/97, 653-L/97, 658-L/97, 662-L/97, 664-L/97 and 697-L/97.

1. The questions of law and facts involved in all the matters are similar. The relevant facts of some of the cases and the questions for determination are succinctly stated in the leave granting order passed in Civil Appeal No. 1126 of 2001 etc. It reads as unden-

"By this .common order, we propose to decide Civil Petitions Nos. 796-L/2001 to 803-L/2001 as questions of law and facts are identical in all of them.

1. The respondents in Civil Petitions Nos. 796-L, 797-L and 801-L of 2001 were employed as Godown-Keepers whereas in Civil Petitions Nos. 799-L and 802-L of 2001 as drivers by the petitioner bank. Their services were terminated by the petitioner on the ground that they were employed for a fixed term. Respondents in Civil Petitions Nos. 798 and 803-L of 2001 were employed as Grade- Ill Officers. They were charge sheeted and disciplinary proceedings were initiated against them as a consequence of which they were dismissed from service. In Civil Petition No. 800-L of 2001, there was a regular employee of their petitioner bank as Assistant wh was dismissed from service on the charge of misappropriation.

2. At the relevant time, Section 2-A in the Service Tribunals Act, 1973 had not been added through amendment, therefore, the petitions under Section 25-A of the IRO. Their grievance petitions were accepted through orders passed on different date against which the appeals filed by the petitioner bank before the Labour Appellate Tribunal were held to have abated through orders passed on different dates, for in the meantime, Section 2-A through amend­ment had been added in the Service Tribunal Act. Consequent thereupon, the petitioner-bank approached the Service Tribunal. The Service Tribunal took the view that in view of the terms of Section •$ of the Service Tribunals Act, 1973 according to which only a civil servant could file appeal against the order of the departmental authority with regard to his terms and conditions of service and disciplinary matters, therefore, Section 6 of the said Act if read with Section 4 ibid would render the appeals filed by the employer as incompetent and not maintainable for the service Tribunal cannot sit over the judgment of the Labour Court as Appellate Authority.

3. Learned Counsel for the petitioner bank submitted that Sectio 6 of the Act clearly provides that as a consequence of abatement of any suit or other proceedings in respect of any matter within the jurisdiction of Service Tribunal, the aggrieved party could approach the Service Tribunal without any discrimination as to whether he is civil servant or the employer therefore, Section 6 of the Act would override Section 4 ibid and being a special remedy created as a consequence of abatement of proceedings, the appeal should have been entertained by the Service Tribunal and in these proceedings, the question of legality or otherwise of original order of termination of service of the respondents could have been gone into and in case the same was found to have been legally passed, the appeal could be accepted. This argument is in line with the reasoning given by the Service Tribunal for in that case, it would be an appeal against the judgment of the Labour Court. The question still remains whether in such a situation, the Service Tribunal is vested with the jurisdiction to go into the question of legality or otherwise of orders of the Labour Court.

4. It being a question which may arise in future in many other cases and a question of law of public importance relating to jurisdiction of the Service Tribunal therefore, leave is granted to consider the same.

5. Learned counsel for the petitioner has prayed for suspension of operation of the order of reinstatement of the respondents in service.

We have heard learned counsel for the parties. Request as to suspension of order of reinstatement in service is hereby declined. However, the recovery of the amount becoming due to the respondents as a consequence of reinstatement on accrual of back benefits shall r main suspended if the petitioner bank deposit the said amount in this Court within two months from today which shall e invested in some maximum profit bearing scheme of the Government which shall ultimately be paid to the successful party alongwith the profits.

1. The office shall fix the appeals as early as possible after obtaining orders from Honourable the Chief Justice."

2. It will be pertinent to add here that services of some of the respondents were terminated and some of them were dismissed from service by the appellants-petitioners. They sought redressal of their grievances and reinstatement from different forums and while the grievance petitions of those who had approached the Labour Court were allowed the rest obtained favourable orders from the National Industrial Relations Commission and decrees from the Civil Courts. Appeals were preferred by the appellants-petitioners against all the orders passed in favour of the respondents. However, pursuant to insertion of Section. 2-A in the Service Tribunals Act, 1973 (hereinafter referred to as the Act) all the appeals before various forums abated. Consequently, the appellants-petitioners filed appeals before the Tribunal but the same were dismissed by a single judgment on the technical grounds of maintainability and jurisdiction. It was held that only a civil servant can file an appeal under Section 4 of the Act and the Tribunal had no jurisdiction to sit in appeal against the judgments of Labour Courts etc. The law declared by this Court in Federation of Pakistan v. Muhammad Siddiq(PLD 1981 SC 249) that in case of abatement of suits and other proceedings any party to such suit or appeal etc. can prefer an appeal before the Tribunal was not followed and justification for the same was given in the following terms:

"The learned counsel for the appellants in support of their submissions relied upon a judgment of the Honourable Supreme Court of Pakistan placed in PLD 1981 SC 249, wherein it has been held that this Tribunal is not devoid of jurisdiction to hear appeal or to entertain proceedings at the instance of Government. This Tribunal is respectfully in agreement with the law laid down by the Honourable Supreme Court of Pakistan. Where, the matters relating to terms and conditions, of services of Civil Servants were pending adjudication before any forum prior to the enactment of 1973, the same certainly were liable to be decided by this Tribunal under Article 212 of the Constitution. Same is the position upon insertion of Section 2-A in the Service Tribunals Act of 1973 after 10.6.1997 all matters relating to terms and conditions of services of the Civil Servants falling within the purview of Section 2-A are being entertained and adjudicated upon by this Tribunal. However, this Tribunal is of the considered view that Section 6 of the Service Tribunals Act of 1973 does not at all confer upon this Tribunal any authority or jurisdiction to site as an appellate Court upon the judgments of the Benches of the National Industrial Relations Commission (NIRC), Labour Courts, Civil Courts and District Courts. The appellant cannot step into the shoes of Section 2-A or Section 4

of the Service Tribunals Act of 1973 by taking refuge behind the judgment of Honourable Supreme Court of Pakistan placed in PLD 1981 SC 249 or behind the provision of Section 6 of the Service Tribunals Act for the purpose of assailing the order of the Benches of NIRC, Labour Courts, Civil Courts of District Courts..."

1. We have heard the learned counsel for the parties and perused the material available on record. In our view the impugned judgment is based on erroneous assumption of law that the appeals filed by the appellants-petitioners were.not maintainable and the Tribunal was also bereft of jurisdiction in the matter. The effect of Section 2-A of the Act was that notwithstanding any judgment rendered by the Labour Court or any other forum, all such matters covered under Section 2-A of the Act stood abated. This being so the Tribunal alone had the exclusive jurisdiction to examine the grievance of such persons. It is not the case of either of the parties that the respondents are not persons employed under any authority, corporation, body or organization established by or under a federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or ^interest. The proviso to Section 6 of the Act makes it manifest that in the event of abatement of suits and other proceedings any party to such a suit appeal or application can prefer an appeal before the Tribunal. Section 6 of the Act has an overriding effect vis-a-vis Section 4 ibid as it has envisaged a special procedure to be followed after abatement of proceedings. The appellants-petitioners had thus rightly approached the Tribunal for redressal of their grievance and the appeals filed by them were maintainable. As regards the question of jurisdiction of the Tribunal, suffice it to say, that once such appeals are filed it is the duty of the Tribunal to determine afresh as to whether the original orders passed by the appellants-petitioners in dismissing/terminating the services of the employees respondents were lawful or otherwise on the basis of the service rules or any other rules applicable to the employees-respondent. Guidance ought to have been sought in this behalf from Federation of Pakistan v. Muhammad Sididq (PLD 1981 SC 249), wherein it was held as under:

"It is not possible, we regret, to uphold the view taken by a learned single .Judge in the High Court in the case of S.M. Nafisul Hassan Shah to the effect that an appeal filed by the Government is nt at all entertainable under the Act. It is true that in the proviso to

Section 6 of the Ordinance which preceded the Act, it was specified that a civil servant, who was a party to suit, appeal or application which abated under the purview of Section 6 could prefer an appeal to the appropriate Tribunal. But in the Act itself a change was brought about in the language of the proviso. The phrase 'any civil servant who is a party to such a suit' was substituted by the phrase 'any party to such a suit". The Act was promulgated on the 29th of September, 1973 while the appeal before the Service Tribunal in the said case was filed on the 24th of October, 1974. If this change wouldhave been brought to the notice of the High Court, the observation that the Service Tribunal had no jurisdiction to hear appeal or to entertain any proceedings 'of any kind whatsoever at the instance of the Government', would not have been made."

1. By virtue of the judgment of this Court in Muhammad Siddiq (supra) two connected appeals filed by WAPDA were also allowed and the cease were remanded to the Tribunal for decision on merits. The appeals filed by WAPDA had arisen in the circumstances that suits of WAPDA employees were decreed and the appeals filed by WAPDA pending before the District Court had abated in view of the Water and Power Development Authority (Amendment) Ordinance, 1975 whereby the Act was extended to the WAPDA employees.

The Tribunal did not properly appreciate the judgment of this Court in Muhammad Siddiq (supra) and fell in error by dismissing the appeals of the appellants-petitioners on the ground of maintainability and lack of jurisdiction with the result that the appellants-petitioners have been left high and dry.

1. In view of the foregoing discussion, the above appeals are allowed, the petitions are converted into appeals and by allowing the same the impugned judgment is set aside and the cases are remitted to the Tribunal for decision afresh on merits in accordance with law. The parties shall be at liberty to raise whatever pleas are available to them under the law in support of their respective contentions.

(A.A) Appeal accepted.

PLJ 2002 SC 200

[Appellate Jurisdiction]

Present:iftikhar muhammad chaudhry and hamid ali mirza, JJ.

HYDERABAD DEVELOPMENT AUTHORITY through its M.D. Civic Centre, Thandi Sarak Road, Hyderabad-Appellant

versus

ABDUL MAJEED and others-Respondents Civil Appeals Nos. 557 to 572 of 2000, decided on 25.9.2001.

(On appeal from the judgment/order dated 4.11.2000 passed by High Court

of Sindh, Karachi in Appeals Nos. 12-19 & 31/1990)

(i) Administration of Justice-

—Judicial pronouncement by judicial officer should be based on evidence/material available on record and reasons must be outcome of evidence-Conclusion should be drawn on basis of such reasons-Order lacking such ingredients cannot be termed to be a judicial verdict in stricto senso-Such pronouncement at its text can be deemed to be administrative order incapable to settle controversy between parties. P.203JB

(ii) Constitution of Pakistan, (1973)--

—Art 185-Constitutional petition-Delay of 8 days in filing appeal was condoned in the interest of justice-Appellant could not be non-suited for such technical reason—Even otherwise if on merits respondents had no case then limitation would not be a hurdle in the way of appellants for getting justice and Courts in such case would not be reluctant in condoning delay depending upon facts of case under consideration.

[P.2061F

1979 CLC 523; 1991 SCMR 2164; 1992 SCMR 1202 ref.

(Hi) Land Acquisition Act, 1984 (1 of 1984)--

—S. 23-Constitution of Pakistan (1973), Art 185(3)-Enhancement of price of acquired land by High Court-Leave to appeal was granted to consider whether enhancement of price was without legal justification. [P. 202] A

(iv) Land Acquisition Act, 1894 (1 of 1894)-

—S. 23-Determination of market value-Mode of crucial date for determination of market value of acquired land would be on which notification under S. 4(1) of Land Acquisition Act, 1894 was issued.

[P.204JC

(v) Land Acquisition Act, 1894 (1 of 1894)--

—S. 23-Acquired land-Determination of market value-Mode of-No evidence having been brought on record from independent source that land in question, has been cultivated or developed by its owner for purpose of Housing Scheme etc., potential value of such land cannot be determined on basis of mere oral assertion—Respondents having failed to discharge burden of proving market value of land, enhancement of the same by the High Court was not sustainable and the same was set aside while that of Referee Court was restored. [P. 205] D

(vi) Land Acquisition Act, 1894 (1 of 1894)--

—S. 54-Supreme Court Rules 1980, O.XII, R. 2-Constitution of Pakistan (1973), Art 185(3)ailure to file appeal before Supreme Court under S. 54, Land Acquisition Act, 1894, within statutory period of 30 days-­ Petition for leave to appeal filed within 60 days under Art 185(3) of the Constitution can be converted into appeal by the Supreme Court in the interest of justice. [Pp. 205 & 206] E

Mr. Kishan Chand Barwani, ASC and Mr. Akhlaq Ahmad Siddiqui, AOR for Appellant (in all appeals).

Mr. M.M. Aqil Awan, ASC and Mr. Faizan-ul-Haq, (AOR (absent) for Respondents (in C.As. 557-568/2000).

Mr. M.M. Aqil Awan, ASC and Raja Abdul Ghafoor, AOR for Respondents (in C.As. Nos. 569-572/2000).

Date of hearing: 25.9.2001.

judgment

Iftikhar Muhammad Chaudhry, J.-In above noted appeals leave was granted by this Court on 26.04.2000 to examine contentions noted therein. The Order is reproduced hereinbelow:-

"162 Acres of lands were acquired by the Government for the sewerage purposes. The Land Acquisition Officer had fixed the value at the rate of Rs. 10,000/- (Rs. ten thousand) per acre, which in appeal by the High Court was enhanced to Rs. 400,000/- (Rs. Four lacs) per acre. The learned counsel contends that the enhancement is without legal justification. The contention raised, requires consideration. Leave is granted to examine the above contentions in the Petitions Nos. 45 to 60-K/2000."

1. Facts giving rise to instant appeals are that vide notification dated 29th September, 1981 published in the Sindh Government Gazette dated 5th October, 1981, the Land Acquisition Officer/Collector acquired land, owned by the respondents for the sewerage treatment plant in Deh Mirzan Pur, Taluka & District Hyderbad. Subsequent thereto the Land Acquisition Officer, vide award dated 7th July, 1986 fixed the compensation of the acquired land @ Rs. 10,000/- per acre plus 15% compulsory charges. The respondents through their attorneys requested the Land Acquisition Officer for making reference to District Court for enhancement of compensation from Rs. 10,000/- to Rs. 4000,00/- per acre plus 15% compulsory charges plus 6% interest from the date of possession till the date of payment of compensation. As the application was filed under Section 18(b) of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") therefore, reference was made to the District Judge, who after recording the evidence from both the sides dismissed the reference on 31st August, 1989. As such respondents preferred appeals before High Court of Sindh. The appeals so filed by the respondents were accepted by means of consolidated impugned order dated 4th November, 1999, whereby compensatidn was enhanced from Rs. 10,000/- to Rs. 400,000/- as such instant proceedings have been instituted.

2. Learned counsel contended on behalf of appellant that impugned judgment is not sustainable in law because learned Single Judge, in chambers of High Court of Sindh, accepted the appeals filed by respondent without discussing the evidence and advancing reasons for acceptance of the same, therefore, instant appeals are liable to be accepted on this score al ne.

3. When confronted with above position, learned counsel for respondents attempted to support the judgment by making reference to its various parts. However, he failed to pinpoint that portion of the judgment in which, after discussing evidence reasons were advanced to conclude that the respondents/land owners are entitled for compensation at the rate of Rs. 4,00,000/- per acre instead of Rs. 10,000/- under Section 23 (1) of the Act

4. We have painfully noted lacuna pointed out in the judgment by the learned counsel for the appellant. However, we believe that such omission has occurred inadvertently because perusal of the judgment reveals that besides noting arguments advanced by both the sides, the evidence has also been reproduced precisely, as such there was no impediment for the learned Judge in discussing the evidence to formulate reasons for the purpose of drawing conclusion on basis of which appeals were allowed. It would be advantageous to note that judicial pronouncement (judgment) by a Judicial Officer should be based on the evidence/material available on record and reasons must be outcome of the evidence available on record and on the basis of such reasons conclusion should be drawn and if the order lacks of these ingredients it cannot be termed to be a judicial verdict (judgment) in stricto senso and at the best such pronouncement can be termed to be an administrative order incapable to settle controversy judicially between the parties. Confronted with such situation we were inclined to remand the case by setting aside judgment to the High Court but keeping in view protracted delay which has already taken place in the matter because parties are in litigation from 24th September 1981, thei'efore, with consent of the parties counsel we decided to dispose of the appeals on merits to save parties from another round of litigation and also to do substantial justice between them.

5. Learned counsel for appellants contended that before the Additional District Judge (Referee Judge) respondents based their case for enhancement of compensation on sale-deeds dated 31st January 1981 (Ex. P/31) and 1.12.1985 as well as the award dated 3rd July 1986 pronounced by the Collector in another case. However, the documents produced in evidence were not admissible in law as their photo copies have been tendered during statement of one of the Attorneys of the respondents namely Mushtaq Ahmed. Learned Additional District Judge has discarded the sale-deed dated 31.1.1981 relied upon by the respondents for the reasons mentioned in the order. As far as second sale-deed dated 1.12.1985 and the award pronounced by the Collector in another case of land acquisition for acquiring land for WAPDA was not acceptable because it was also not proved according to law. Moreover the property mentioned therein is situated in different location of Deh Mirzan Pur. According to him as far as oral evidence produced by alue of the land in dispute as well as to determine the potentials of the acquired land because mere assertions in the oral evidence with regard to the market value and the potentials of the property will not be accepted unless such oral statement is supported by some other oral as well as documentary evidence.

• 7. Learned counsel for the respondents raised preliminary

objections regarding maintainability of the appeals as well as locus standi of appellant to invoke jurisdiction of this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan. Objections so raised by him shall be dealt with separately. However, on merits he stated that respon­dents have brought on record three documents reference of which has been made by the counsel for appellant in his arguments. According to him as per documentary evidence the average price of acquired land per acre comes to Rs. 4,00,000/-, therefore, the High Court had rightly enhanced the compensation vide impugned judgment. He further argued that the respondents have adduced convincing oral evidence to prove potential and market value of the property and as statements of the witnesses got recorded by them in this behalf have gone unchallenged, therefore, respondents are entitled for grant of enhanced compensation at the rate of Rs. 4,00,000/- per acre.

1. It may be noted at the very out set that for determination of I market value of the acquired land the crucial date would be on which a

ification under Section 4 (1) of the Act has been issued. Reference in this I behalf may be made to the case of Land Acquisition Collector v. Ch. Muhammad Ali (1979 CLC 523). It is equally important to note that consistent practice for determining such value is that the sale average of the preceding years is to be taken into consideration for the purpose of grant of compensation. As far as the transactions which have taken place subsequent to the issuance of notification under Section 4(1) of the Act are concerned same are not considered proper to achieve the object. In the instant case notification under Section 4(1) of the Act was issued on 29th September, 1981, therefore, the sale-deed dated 1.12.1985 and the award of the Collector pronounced in some other case where in the land was acquired for the benefit of WAPDA dated 3rd July, 1986 are kept out of consideration out rightly.

1. As far as sale-deed dated 31st January 1981 Ex. P-31 is concerned, learned Additional District Judge has discarded it. Besides adopting the reasons for not accepting this document in evidence, we further add that as per the statement of Mushtaq Ahmed, this conveyance was taken on record subject to its admissibility because the witness tendered its photocopy. Inasmuch as later on no steps were taken by the respondents to prove the contents of this document by leading primary or secondary evidence in terms of Articles 75-'and 76 of Qanoon-e-Shahadat Order, 1984. Therefore, this document also cannot be taken into consideration. It is also to be noted that merely by tendering a document in evidence it gets no evidentiary value unless its contents are proved according to law. The burden of proof was upon the respondents to establish that the compensation of the land which has been awarded by the Collector is inadequate, therefore, it should have been enhanced adequately. As far as Collector or Land Acquisition Officer is concerned, he does not exercise judicial powers but only is appointed to conduct an inquiry and formulate his opinion on the basis of the same. However, during hearing of Reference under Section 18 of the Act, judicial proceedings are conducted, therefore, party interested for enhancement of the compensation owe a duty to discharge the burden by producing convincing evidence. Since the sale-deed dated 31.1.1981 Ex. P-31 is not admissible in evidence, therefore, we draw

inference that this piece of evidence has not advanced the case of the respondents in any manner.

1. Now adverting towards oral evidence led by respondents, it is to be noted that the witnesses produced by them have made assertion that the market value of the property is Rs. 400,000/- and their such assertion is based on sale-deed dated 31.1.1981 and once this document is kept out of consideration, this potion of statement becomes unbelivable. As far as other assertions made in this behalf are concerned with regard to potential value, no supporting evidence was brought on record by them. In this regard, a close scrutiny of the statement of one of the witnesses Mushtaq Ahmed would indicate that perhaps the acquired land was not cultivable because no Dhal (Revenue) was being paid by its owner. No evidence has been brought on record from independent source that the land has been cultivated or developed by its owner for the purpose of Housing Scheme etc. Therefore, on basis of mere oral assertion on behalf of respondent, the potential value of the property cannot be determined. As such we are of the opinion that as the respondents have failed to discharge the burden of proving the market value as well as potentials of the property, therefore, for such reasons we are persuaded to draw a conclusion that leraned Single Judge, in chambers of High Court was not justified in enhancing the compensation from Rs. 10,000/- to Rs. 400,000/- per acre.

2. Learned counsel for respondents objected on the maintainability of the appeals on the ground that under Section 54 of the Act,, direct'appeal is competent before this Court and according to Order XII of Supreme Court Rules, 1980 Jtime prescribed for appeal is 30 days but appellant filed petition for leave to appeal beyond period of 30 days and if the petitions are treated as appeals then they are barred by 8 days and for condonation of such delay no application has been filed. Reliance in this behalf was placed by him on a judgment of this Court reported in NLR 1999 Rev. 90.

3. Learned counsel for the appellant contended that this Court while granting leave to appeal has already converted the petitions into appeals without making any observation in respect of determination of question of limitation at the time of final hearing of the appeals, therefore, it may be presumed that if there was any delay in filing of appeals that has been condoned. He further stated that the judgment relied upon by respondents counsel is distinguishable because in that case petitions for leave to appeal were dismissed at the preliminary hearing whereas in the instant case leave to appeal was granted by this Court without making any observation in respect of limitation.

4. We have no doubt in our mind that against decree of the High Court a direct appeal shall lie to the Supreme Court under Section 54 of the „ Act for which time of 30 days has been prescribed under Order XII, Rule 2 of Supreme Court Rules, 1980 and if appeal has not been filed then a petition for leave to appeal is competent under Article 185(3) of the Constitution of Islamic Republic of Pakistan if filed without 60 days as per Order XIII, Rule 1' of Supreme Court Rules 1980. Normally in land acquisition cases against the order of the High Court appeal should have been filed but instead of filing appeal if a petition has been preferred then Court is competent to convert it into an appeal and also condone the delay if appeal is found barred by time in the interest of justice as it has been held in the case of Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner Abbottabad and others (1991 SCMR 2164).

Relevant para therefrom is reproduced hereinbelow:-

"8. We are- inclined to hold that if a party loses his right to file a direct appeal because of the limitation, he may invoke clause (3) of Article 185 of the Constitution for a petition for leave to appeal, which the Court may either grant or decline either on the ground that the party should have availed of a direct appeal or for the reason that he petition for leave to appeal has no merits....................................... "

The view taken in the above judgment has again been reconfirmed in the case of Chairman, N.W.F.P. Forest Development Corporation and others V. Khurshid Anwar Khan and others (1992 SCMR 1202). It is to be noted that in the judgment, which the learned counsel has relied, these two judgments were not cited at the bar during arguments. There is yet another distinction in the case relied upon by learned counsel namely that in that case petition for leave to appeal was dismissed at a preliminary stage because leave to appeal was refused whereas in these cases leave has already been granted, therefore, keeping in view the merits of the case which have been discussed hereinabove we are of the opinion that if there is dely of 8 days in filing the appeal that is to be condoned in the interest of justice because merely for such technical reason appellant cannot be non-suited and the impugned order dated 4th November 1999 passed by the High Court cannot be upheld which on face of it is not sustainable in the eye of law as it has been pointed out hereinabove while discussing merits of the case. Therefore, while condoning the delay it is held that the appeals were duly instituted. Even otherwise if on merits the respondents have no case then limitation would not be a hurdle in the way of appellant for getting justice and in such like situation the Courts should not feel reluctant in condoning the delay depending upon facts of the case under consideration.

1. Learned counsel for the respondents also objected on the maintainability of the appeal on behalf of the appellant in view of the provisions of Section 54 of the Act but when it was pointed out to him that respondents filed Reference against the appellant and they contested the same, therefore, if an adverse order has been passed against them then they can file the appeal, he could not answer satisfactorily and stated that he would not press this point.

Thus for the foregoing reasons appeals are allowed, as a consequence whereof impugned order dated 4th November 1999 is set aside and order of Additional District Judge dated 31st August 1989 is restored. Parties are left to bear their own costs.

(A.A) Appeals accepted

PLJ 2002 SC 207

Appellate Jurisdiction

Present: iftikhar muhammad chaudhry and hamid ali mirza, JJ. MUHAMMAD YASIN and another-Petitioners

versus

DOST MUHAMMAD (deceased) Through L.R's and another-Respondents C.P. No. 2203 of 2001, decided on 17.9.2001.

(On appeal from the judgment/order dated 20.7.2001 passed by Lahore High Court, Multan Bench, Multan in W.P. No. 2740/1994)

(i) Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)--

—S. 19--Constitution of Pakistan (1973), Art. 185(3)--Alienation of property not effected in accordance with terms of Power of Attorney-Person holding Power of Attorney in terms of Power of Attorney was bound to have obtain registered sale-deed in the name of his principal from concerned authority-Transfer was effected without obtaining such sale-deed-Transfer of properly being in non-compliance of terms of Power of Attorney was thus, of no effect and not binding on parties-High Court having drawn right conclusions, no interference was warranted in the judgment-Leave to appeal was refused in circumstances.

[Pp. 209 & 210] B

PLD 1985 SC 341; AIR 1947 Nag. 17; PLD 1969 Kar. 123; 1995 CLC 154 ref.

(ii) Interpretation of Statutes-

—Instruments of Power of Attorney in pursuance whereof attorney is authorized to act on behalf of principles are to be construed strictly.

[P. 209] A

Dr. Babar Awan, ASC with Mr. Ejaz Muhammad Khan, AOR for Petitioners.

Nemo for Respondents. Date of hearing: 17.9.2001.

judgment

Iftikhar Muhammad Chaudhry,J.-Petitioners seek leave to appeal against judgment dated 20th July 2001 passed by Lahore High Court, Multan Bench, Multan whereby Writ Petition No. 2740/1994 filed by respondents has been accepted.

1. Briefly stating facts of the case are that petitioners got allotted State land specification whereof is given in the impugned judgment under "Grow More Scheme". Subsequently, on 26th February 1973 predecessor-in- interest of Respondent No. 1 appointed Suleman S/O. Karim Bukhsh as his General Attorney holder. It seems that on 19th December 1989 Attorney of the respondents predecessor in interest obtained permission under Section 9 of the Colonization of Government Lands (Punjab) Act, 1912 from Collecto to transfer the land of the principal in favour of his sons i.e. petitioners. This Act was challenged by the respondents predecessor Dost Muhammad before the Board of Revenue, which was dismissed on the ground that an appeal against such order is competent before the Commissioner/District Collector and not before the Board of Revenue. This order was again called in question by filing a Review Petition before the Board of Revenue but the same was dismissed on 4th April 1994. Thereafter, he filed a Writ Petition before the High Court, which has been accepted by means of impugned order.

2. Learned counsel for the petitioner contended that under the registered General Power of Attorney, predecessor-in-interest of Respondent No. 1 has authorized late Suleman for transferring property in question by means of seven different modes including the "sale" but learned High Court inadvertently omitted to attend this aspect of the case and has drawn an inference that late Suleman was not authorized to transfer the property by means of sale, therefore, the impugned judgment warrants interference by this Court.

3. We have heard the learned counsel and have gone through Power of Attorney which is available on record. A perusal whereof indicates that authority of the Attorney for transferring the property by means of seven modes mentioned therein including "sale" was subject to the condition that the Attorney to first of all will get the property transferred through registered sale-deed in favour of Dost Muhammad Gate). Relevant sentences from the Power of Attorney are reproduced herein below: -

5.This Court in the case of Fida Muhammad v. Mir Muhammad Jan (deed) through legal heirs and others (PLD 1985 SC 341) has laid down

following two principles for interpretation of a General Power of Attorney, which contains a clause depriving the owner from his right-­firstly in case of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principle and seeking to obtain his instructions, and

Secondly, if the agent deals on his own account with the property under agency, e.g., if he purchase it himself or for his own behalf, he in his own interest should obtain the consent of the principle in that behalf after acquainting him with all material circumstances on the subject, failing which the principle is at liberty to repudiate the transaction. The following two examples given under Section 215 of the Contract Act are illustrative of the intention of law:-

(a) A directs B to sell A's estate. B buys the estate for himself in the name of C.A, on discovering that B has bought the estate for himself, may repudiate the sale, if he can show that B has dishonestly concealed any material facts, or that the sale has been disadvantageous to him.

(b) A directs B to sell A's estate B, on looking over other the estate before selling it, finds a mine on the estate which is unknown to A. B informs A that he wishes to by the estate for himself, but conceals that discovery of the mine. A allows B to by, in ignorance of the existence of the mine. A, on discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at his optio .

It is also well known principle of law that all such instruments of Power of Attorneys in pursuance whereof attorney is authorized to act on behalf of . principle are to be construed strictly. Reference can be made to AIR (34) 1947 Nagpur 17 (CN3), PLD 1969 Karachi 123 and 1995 CLC 1541. In view of the principles discussed in these judgments we are of the opinion that according to the terms of Power of Attorney dated 26.02.1973 Dost Muhammad before transferring/alientating the property on the name of petition was bound to have obtained a registered sale-deed in the name of jthe principal from the concerned departments of the Government. It is an admitted fact that such transfer was never effected in favour of Dost Muhammad, therefore, Suleman had no authority for transfer of land on the

name of petitioners who are his sons. Learned counsel stated that as late Dost Muhammad has consented for transfer of the property in favour of petitioners, as such non-compliance of above condition of Power of Attorney will have no bearing on his rights. In this behalf High Court did not entertain this arguments because Dost Muhammad was not factually associated in the proceedings of transferring the property in favour of petitioners by late Suleman and we see no reason to differ with these

observations of the High Court. Thus the arguments so raised in this behalf have no substance.

In view of above discussion, we see no merit in the petition .as such the same is dismissed and leave to appeal is declined.

(A.A) Leave refused.

PLJ 2002 SC 210 [Appellate Jurisdiction]

Present: muhammad bashir jehangiri; munir A. sheikh and rana bhagwan das, JJ.

PRINCE A.M. ABBASI and another-Appellants versus

FEDERAL GOVERNMENT in the States and Frontier Regions Division, Islamabad through its Secretary-Respondents

C.A. No. 1915 of 1998 and C.M.A. No. 1811 of 2000, decided on 12.11.2001.

(On appeal from the judgment dated 3.7.1997 of the Lahore High Court, Lahore, passed in Writ Petition No. 16554 of 1995)

(i) Devolution and Distribution of Properties (Ameer of Bahawalpur) Order, 1969-

—Para 3-Constitution of Pakistan (1973), Art. 185(3)-Devolution and distribution of property of late Nawab of Bahawalpur-Federal Government appointed Enquiry Commission which announced interim package-Legality—Leave to appeal was grnated to consider; whether in the circumstances of case, interim package announced by Enquiry commission met the ends of jsutice and was in accordance with the direction of Supreme Court contained in various pronouncements made with regard to dispute of inheritence of the properties of late Ameer.

[P. 213 A

(ii) Devloution and Distribution of Properties (Ameer of Bahawalpur) Order, 1969-

—-Para 3--Constitution of Pakistan (1973), Art. 185-Devolution and distribution of properties of late Ameer of Bahawalpur-Appointment of committee headed by retired judge of Supreme Court for distribution of property in question-Contention that retired judge of Supreme Court being not servant of Federal Government, his appointment would be tantamount to abdication of power vested in Federal Government to distribute property in question was devoid of substance-Federal Government was although vested with exclusive authority to distirbute the property in question, according to Presidential Order of 1969, yet it had not been debarred from seeking assistance of either the servants of the Government or any other person/expert in the concerned field beforeexercising the power, therefore, appointment of retired judge as head of the committee which would he merely ecommendatory body and not a body to decide the matter fianlly-Such appointment, thus, does not amount to abdication of power by Federal Government in favour of appointee. [P. 218] B

(iii) Devolution and Distribution of Properties (Ameer of Bahawalpur) Order, 1969-

—Para. 3 Constitution of Pakistan (1973), Art. IBS-Interim package announced by Enquiry Commission-Such package relating to devolution .and distribution of properties in question, does not meet ends of justice and was also not in accordance with the direction of Supreme Court contained in various pronouncements with regard thereto in general and in earlier cases between the same parties, related to such matter-Persual of those judgments and record, thus, warrants that controversy would have to be resolved in accordance with directions contained in the case PLD 1982 SC 367 and observations made subsequently in Review Petition reported as PLD 1984 SC 67 by the Supreme Court. [P. 220] C

PLD 1982 SC 367; PLD 1984 SC 67; PLD 1959 SC (Pak) 45 and; 1994 SCMR 2232 ref.

Mr. Naveed Rasul Mirza, ASC and Kh. Mushtaq Ahmad, AOR for Appellants.

Mr. M. Nawaz Bhatti,D.A.G. and Mr. Mehr Khan Malik, AOR for Applicants (In C.M.A 1811 of 2000).

Mr. Fakhr-ud-Din G. Ibrahim, Sr. ASC and Mr. M.S. Khattak, AOR for Respondents Nos. 23 to 25.

Mr. Abdul Karim Khan Kundi, ASC and Ch. Akhtar All, AOR for Respondent No. 2.

Mr. Abdur Rashid Awan, ASC and Mr. M.A. Zaidi, AOR for Respondents Nos. 3 and 4.

Mr S. HamidAli Shah, ASC for Respondents Nos. 6, 8 and 10.

Mr. Ejaz Ahmad Ansari, ASC and Ch. Akhtar All, AOR for L.Rs of Respondent No. 15.

Mr. M. Bilal, Sr. ASC and Sh. Riaz-ul-Haq, ASC for Respondents Nos. 17 to 20.

Syed Abul Aasim Jafri, AOR for Respondent No. 16.

Raja Abdul Ghafoor, AOR for L.Rs of Respondent No. 14.

Ch. Fazle Hussain, AOR for Respondent No. 5.

Dates of hearing: 17 & 18.9.2001.

judgment

Muhammad Bashir Jehangiri, J.--This appeal by Prince A.M. Abbasi and Princess Rafiquah Abbasi appellants with the leave of the Court is directed against the judgment of a learned Judge in Chambers of the

Lahore High Court, Lahore whereby Writ Petition No. 16554 of 1995 was dismissed.

1. The detailed historical and factual background of the controversy has succinctly been noticed by this Court in the earlier round of litigation between the parties in this case and reported as Government of Pakistan v. Brig. His Highness Nawab Muhammad Abbas Khan Abbasi and others (PLD 1982 SC 367) and Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Ameer ofBahawalpur v. The Government of Pakistan and others (PLD 1984 SC 67). It is, therefore, not necessary to reiterate the facts as they have already been narrated in all the essential details. The scope of this controversy has been in encapsulated in the leave granting order, according to which the dispute in the above appeal relates to the inheritance of property left by Al-Haj late Sir Sadiq Muhammad Khan Abbasi, the late Ameer of Bahawalpur State ('The Ameer'). The controversy emerged with effect from 19th February, 1969 when the Central Government issued Devolution and Distribution of Properties (Ameer of Bahawalpur Order) 1969, (the Devolution Order) which was published in Gazette of Pakistan (Extraordinary) on 20-2-1969. The Devolution Order was challenged by late Nawab Muhammad Abbas Khan Abbasi who was then the Ameer of Bahawalpur and had claimed all the personal properties of late Ameer of Bahawalpur, to the exclusion of other heirs, on the ground that under the law and custom of the State and the Rule of Primogeniture, he being the eldest son of the late Ameer of Bahawalpur was entitled to inherit all of his properties. It appears that a learned Division Bench of Lahore High Court which was seized of the matter partly allowed the petition filed by Brig. H.H. Nawab Muhammad Abbas Khan Abbasi by declaring that the Devolution Order had not been passed by the Government of Pakistan in accordance with law and, therefore, it was of no legal effect. The case was, however, remitted to the Central Government for fresh disposal of the dispute before it, in accordance with law. The above decision of the learned Division Bench of Lahore High Court was challenged by the Central Government as well as by late Brig. H.H. Nawab Muhammad Abbas Khan Abbasi in Civil Appeals Nos. 128 & 129 of 1978, respectively. The decision for the last mentioned two appeals is reported, as indicated earlier, in Government of Pakistan v. Brig. His Highness Nawab Muhammad Abbas Khan Abbasi and others (PLD 1982 SC 367) whereby both the appeals were dismissed. While dismissing these appeals, however, it was observed that Nawab Muhammad Abbas Khan Abbasi was not entitled to claim the properties left behind by the late Ameer on the rule of Primogeniture. It was further observed that the entire estate of the late Ameer is to be distributed amongst all the legal heirs in accordance with the rule of Muslim Law. With regard to the appointment of Enquiry Commission by the Central Government, this Court did not agree with the view of the High Court and observed as under:--

"We may here clarify that we do not agree with the High Court that the Inquiry Commission appointed by the Central Governmentcould not have been appointed for ascertaining the properties left by the late Ameer and to suggest the mode of its distribution to his heirs. In our opinion where a matter is to be decided by the Central Government, which can be determined after making some inquiry it can either itself hold the inquiry in any manner that appears to it to be necessary or justified or get such an inquiry made through its officers. If the latter course is followed it does not imply that it has delegated its powers in the relevant regard because the power throughout remains with it. The inquiry is only confined to fact finding and to making recommendations. The Enquiry Commission while conducting the inquiry must hold it after giving a fair opportunity to all concerned to present their point of view, before making their recommendations. It may give notice to the heirs requiring them not only to give their views about the mode of distribution of the property, but also to indicate if any property belonging to the later Ameer has escaped notice and has not been taken into account so far".

1. It appears that after the decision of this Court referred to above, wo Commissions were appointed by the Central Government for distribution of the estate of the late Ameer among the legal heirs but till date, except for an interim package, announced by the 2nd Commission in 1993, the dispute regarding distribution of the properties of the late Ameer among his heirs in accordance with the decision of this Court, remains a far cry.

2. Since the dispute qua the distribution of the estate of the late Ameer involved lot of intricate questions regarding the status of the properties available for distribution among the heirs, this Court at leave stage suggested to the learned Deputy Attorney General representing the Federal Government in the States & Frontier Regions Division, Islamabad to agree to the appointment of a retired Judge of this Court to head the Enquiry Commission but this suggestion was opposed by the learned Deputy Attorney General and Respondent Nos. 5 (i) to 5 (v). This Court accordingly heard the learned counsel for the appellants and the caveator and reached the conclusion that the interim package announced by the 2nd Commission (Barlas Commission) did not make out an basis for the interim distribution of the properties among the legal heirs of the late Ameer; that "Except for Respondent Nos. 5 (i) to 5 (v) all other heirs of the late Ameer are opposing interim package proposed by the Enquiry Commission which otherwise did not prima facie appear to be proper as it had failed to spell out any sound basis for the interim package". This Court accordingly granted leave to appeal to consider whether in the circumstances of the case, the interim package announced by the Enquiiy Commission met the ends of justice and was in accordance with the direction of this Court contained in various pronouncements made with regard to the dispute of inheritance of the properties of late Ameer.

3. About a year after granting leave to appeal Respondent Nos. 5 (i) to 5(v) moved an application on 13-11-1999 under Order XX, Rule 2\ read with Order XXXIII Rule 6 of the Supreme Court Rules, 1980 for summary determination of the appeal. Besides Respondent Nos. 5(i) to 5(v) filed Paper Books Nos. IV to VIII containing the almost entire copies of the proceedings so far taken and the record of the disputed properties between the parties Pending decision of the CMA No. 1318 of 1999 for summary disposal of the appeal as aforesaid, the Federal Government on 17-8-2000 moved an application through Mr. Tanveer Bashir Ansari, the then Deputy Attorney-General for Pakistan under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980, praying therein that "an Enquiry Commission headed by a retired Judge of this Court, may be appointed to determined and resolve the matter of Distribution/Devolution of the properties of the late Ameer for all times to come in the interest of justice. He further prayed for early hearing of the main appeal. A letter of Mr. Javid Akram, the then Secretary to Government of Pakistan in the Kashmir Affairs & Northern Areas and States & Frontier Regions Division (SAFRON) addressed to Mr. Aziz A. Munshi, the then Attorney General for Pakistan wherein the willingness of the Federal Government to the suggestion of this Court made to the learned Deputy Attorney General who represented the Federal Government before this Court at the time of grant of leave to appeal referred to above was indicated and to the appointment of a retired Judge of this Court to head the new Enquiiy Commission was agreed to. Since this letter has a direct bearing on the fate of this appeal, it is reproduced hereunder:--

"D.O. No. F. 2 (l)-Sec. VII/95-III Kashmir Affairs & Northern

Areas and States & Frontier Regions Division Government of Pakistan Islamabad.

the 13th May, 2000.

Subject: Distribution/Devolution of the properties of

Late Ameer of Bahawalpur.

My dear Attorney General, I would like to draw your kind attention that this Division deals with the affairs of ex-State and their Rulers.

1. After the death of former Ameer of Bahawalpur (Sir Sadiq Muhammad Khan Abbasi), the Central Government appointed a Commission in 1967 for the distribution of the properties left by the late Ameer. The recommendations of the Commission were approved by the President and in pursuance of Article-3 of the Acceding States (Property) Order, 1961, the Devolution and Distribution of Property Order was issued in 1969. The new Ameer of Bahawalpur

(Brig. Muhammad Abbas Khan Abbasi) filed a Writ Petition in the Lahore High Court challenging the validity of the Devolution and Distribution of Property Order 1969 and P.O. No. 12 of 1961. The Lahore High Court remanded the case to the Central Government for a fresh decision in accordance with laws. Against the decision of the Lahore High Court, the Ameer of Bahawalpur preferred an appeal in the Supreme Court. In the light of the Supreme Court's Judgment, the Federal Government appointed a Commission of Enquiiy. On the recommendations of the Commission, the Federal Government constituted a Committee consisting of the Commissioner, Bahawalpur Division, Deputy Commissioner, Rahim Yar Khan and a representative of States & Frontier Regions Division. The recommendations of the Committee were considered by a Committee under the Chairmanship of the then Cabinet Secretary which approved a package for the distribution of the urban property of the late Ameer. After the approval of the package for urban property by the President, the same was sent to the Commissioner, Bahawalpur for implementation.

1. Two of the heirs of the late Ameer, namely, Prince A.M. Abbasi and Sahibzadi Ruqayya Abbasi, obtained stay order from the Lahore High Court which was later on dismissed by the Court. They went to the Supreme Court of Pakistan. The Supreme Court granted Stay Order, which was later on vacated. The Supreme Court in its Interim decision of 28th December, 1998 (Annexure-I) has inter alia stated that:

"We suggested to the learned Deputy Attorney General to agree to the appointment of a retired Judge of this Court to head the Enquiry Commission but this suggestion was opposed by Respondent No. 5 in the above petition and the Central Government also did not appear to be agreeable to this suggestion."

1. On receipt of the judgment, the advice of the Law and Justice Division was obtained on some points (Annexure-II) The advice of the Law and Justice Division is at Annexure- III.

2. In the light of the advice of the Law and Justice Division, you are requested to inform the Supreme Court that the Government of Pakistan is willing to agree to the appointment of a retired Judge of the Supreme Court to head the new Enquiiy Commission which should determine a new package for the distribution of the property of the late Ameer of Bahawalpur on the basis of Shariah. This action would be contingent upon an undertaking by the petitioners to withdraw/pend their case before the Supreme Court.

With best regards

Yours sincerely, Sd/-(Javed Akram)

Mr. Aziz A. Munshi, Attorney General of Pakistan, Islamabad".

1. This plea of the Federal Government was vehemently opposed by Respondent Nos. 5(i) to (5)(v) by filing objections to the maintainability of the CMA. The original objection to the maintainability of the last mentioned CMA had been placed on the file of CMA No. 1811 of 2000 at pp. 13 to 15.

2. The Federal Government has thus agreed to the proposal of this Court referred to in the earlier part of the leave granting order to the appointment of a retired Judge of this Court to head the Enquiry Commission. After hearing the learned counsel for the parties, we deem it appropriate at this stage to amend the leave granting order adding thereto as to whether the "Enquiry Commission for the distribution of the properties in dispute should be headed by a retired Judge of this Court as a lot of intricate questions regarding the status of the property available for distribution among the heirs and the law applicable thereto are involved.

3. The learned Judge in Chambers of the High Court has observed in the impugned judgment that the "matter of devolution/distribution of the property of late Ameer of Bahawalpur is in the melting pot for the last more than 30 years" and that, therefore, it was high time that this long standing dispute should attract the attention of the Supreme Court to resolve once for all the controversy in order to alleviate the suffering of the parties which are aggravating on account of unconscionable delay. It was the view of the learned Judge that the late Ameer had been given substantial portion of property indicated in the 'First Schedule' in pursuance of the Devolution Order. But this mode of distribution was set at naught by this Court in terms unequivocally holding that the property of late Ameer of Bahawalpur ought to be distributed strictly in accordance with Shariah. The implication, according to the learned Judge, was that the claim of the late Ameer or his successors-in-interest distribution of the property on the basis of principle of primogeniture was not entertained. Thereafter in order to implement the decision of this Court reported in Government of Pakistan v. His Highness Nawab Muhammad Abbas Abbasi and others. (PLD 1982 SCMR 367), a Federal Commission of Enquiiy was constituted under the Chairmanship of Mr. H.U. Beg the then Secretary Finance to the Government of Pakistan. In Paper Book No. V filed by Respondent Nos. 5 (i) to 5 (v), it was noted by the learned Judge that the Commission held a number of meetings; all the heirs ware called upon to present their case personally; that the appellants and Respondent Nos. 5 (i) to 5 (v) presented their point of view through their respective counsel and thereafter it transpired from the perusal of the report that a lot of property was in possession of predecessor-in-interest of the writ petitioners who were supposed to safeguard and maintain it in their capacity as its custodians. The learned Judge further found that a negligible portion had been handed over to some other legal heirs, majority of whom according to the report, were virtually pauper having no mean^ of subsistence in the absence of their share of property. The Committee pbserved in the report that the legal issues were being raised time and again with a view to buying further time and delaying the distribution of the property. The writ petitioners were even heard by the Committee which worked under the Chairmanship of Mr. Murtaza Barlas. Another Committee headed by Mr. Humayun Faiz Rasool also discussed the matter regarding the hearing of the heirs but as they had already been heard at length by the Committee, therefore, there was no point of hearing them again and again. The learned Single Judge further noticed that the interim package announced by the Committee was not of entire property left by Ameer which nonetheless needs to be implemented. Ultimately while dismissing the review petition reported in Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. The Government of Pakistan and others (PLD 1984 SC 67), the learned Judge observed that the matter of distribution devolutions required determination of intricate factual controversies among the legal heirs of the late Ameer of Bahawalpur whieh was the exclusive function of the Central Government to determine and further that all the successive Committees tried to finalize the issue and now at this stage if this interim package is thwarted, it would certainly to the hopes of the other legal heirs who till date have been deprived of their due shares would dash to the ground and, therefore, dismissed the writ petition.

4. Mr. Naveed Rasool Mirza, learned ASC, at the very out set contended that the impugned judgment of the Lahore High Court has completely ignored the direction contained in the case of Government of Pakistan v. His Highness Nawab Muhammad Abbas Abbasi and others (PLD 1982 SC 367). He further submitted that the appellants were condemned unheard when their application to the Distribution Committee admittedly remained unattended and in the proceedings of the Committee, the appellants were not given a fair hearing and, therefore, the impugned judgment of the Lahore High Court was coram nonjudice being violative of the principle of audi alterm partem. Reference was made to the law laid down in the precedent of Dina Sohrab Katrak's case (PLD 1959 SC (Pak.) 45) and Anisa Rehman's case (1994 SCMR 2232). Mr. Naveed Rasool Mirza, learned ASC, Mr. Fakhruddin G. Ibrahim, learned Sr. ASC and a number of other counsel representing the other respondents than Respondents Nos. 5(i) to 5(v) adopted the contentions raised by Mr. Naveed Rasool Mirza, learned ASC. Mr. Fakhruddin G. Ibrahim, however, added that the Committee appointed by the Federal Government made recommendations in

the shape of interim package. The package which was impugned in the High Court was maintained and the writ petition was dismissed which give rise to this appeal. According to Mr. Fakharuddin G. Ibrahim, the perusal of the appeal therein for the appointment of a Commission headed by a learned Judge of this Court made through this Court was initially opposed by the contesting Respondents Nos. 5 (i) to 5 (v) and the Federal Government separately but later on the Federal Government agreed to the said perusal and prayed for the appointment of the Committee which should be headed by a retired Judge of this Court which was a proper order.

1. As against this Mr. Fazl-e-Hussain, learned AOR representing the answering Respondents No. 5 (i) to 5 (v) opposed the appointment of a Committee headed by a retired Judge of this Court saying that the said application of the Federal Government had been filed without any notice to the answering respondents or serving them any such notice. Mr. Fazle-e- Hussain, learned AOR, also urged that even otherwise Application styled under Order XXXIII, Rule 6 of the Supreme Court Rules was tantamount to a review petition or for recall of the order dated 30-11-1998 passed by this Court which was totally incompetent. It was also challenged having been filed mala fide to abuse the process of this Court. According to Mr. Fazle-e- Hussain, learned AOR, the leave granting order passed by this Court on 30-11-1998 after notice to all the parties and after taking into consideration the various/judgments orders passed by this Court relating to the distribution the property of late meer held the ground.

2. Mr. Fazle-e-Hussain, learned counsel for the respondents also took serious exception to the appointment of a retired Judge of this Court to head the Committee on the ground that he being not the servant of the Federal Government, could not be so appointed, for his appointment would be tantamount to abdication of power vested in the Federal Government to distribute the property of Ameer of Bahawalpur, therefore the request of the Federal Government to this extent should not be acceded to.

3. The contentions in our considered view are devoid of substance. No doubt, the Federal Government is that exclusive authority vested with the power to distribute the property of Ameer of Bahawalpur according to the Presidential Order but it has not been debarred from seeking assistance of either the servants of the Federal Government or any other person/expert in the concerned field before exercising the power, therefore, the appointment of a retired Judge of this Court as head of the ommittee which is merely recommendatory body and not a body to decide the matter finally does not amount to abdication of power by the Federal Government in its favour. It may be significantly emphasized here that the said Committee shall make only recommendations qua distribution of the property of Ameer of Bahawalpur but the ultimate decision rests with the Federal overnment in the matter which can pass any order it deems fit as it will not be bound by the recommendat ions of the Committee.

4. We are of the considered view, therefore, that this Court while granting leave had very aptly took into consideration the long drawn out history of litigation of this easels highlighted in Government of Pakistan v. His Highness Nawab Muhammad Abbas Khan Abbasi and others (PLD 1982 SC 367) and Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur V. The Government of Pakistan and others (PLD 1984 SC 67). Preceding the disposal of appeal against the order of the Lahore High Court by this Court, the High Court had held that the distribution of the property under order of the Central Government in pursuance of the President's Order "Devolution and Distribution (Ameer of Bahawalpur) Order, 1969" had been done at random without disclosing any basis for doing so and the properties had not been valued and that it was not clear whether the mode of division was in accordance with the Customary Law or Shariah Law. It was, however, held by this Court in Nawab Muhammad Abbas Khan Abbasi's case (supra)that the perusal of the report showed that apart from the portion of the properties in Schedule I which were attached to the Office of the Ruler and to be held by Ameer subject to the conditions that no part of it shall be alienated or transferred without prior permission of the Central Government, the rest of the properties should be divided among the heirs including the present Ameer in accordance with the principle of Muslim Law, justice and fair play. The question, therefore, arose before two cases cited above whether any interference was called for in the Devolution and Distribution Order, 1969 passed by the Central Government. Agreeing with the learned High Court in the first round that as valuable civil rights of the parties were involved, the decision could not be taken arbitrarily but had to rest on some principle; that the rule of decision in the absence of any compulsion to the contrary could by only the Muslim Personal Law (Shariah); that no such compulsion existed to be governed by the law and custom of the State. It was accordingly concluded that the distribution of property made in the Devolution and Distribution Order is not in accordance with the said rule. The private property of the late Ameer-was divided into two parts and dealt with in Schedule I and Schedule II of the Order. As regards the property in Schedule I, this was awarded, subject to certain conditions to the appellant (in Civil Appeal No. 129 of 1978) on the ground that he, being the successor to the Ameerate, was entitled to some property apart from what was his rightful share in order to enable him to maintain his status as a Ruler. In this context, it was further observed as under:

"The award of any property on this account, however, was not justified. We have already seen that only two categories of the property viz. State Property and the Private Property was envisaged in the Merger Agreement of 1954 and no third category of the property which was attached to the office of the Ameerate was envisaged therein. The argument of Mr. Brohi that the Ameer of Bahawalpur was a Corporate Sole and the entire property belonged to the person occupying the office of the Ameer, is not correct No statute was shown to us which creates the Ameer of Bahawalpur as

a Corporate Sole, nor can he be deemed to have become so by the terms of the Merger Agreement. As State property was to be taken over by the West Pakistan Government under Section 9 of the Establishment of West Pakistan Act, 1955 and possession thereof was accordingly taken over by it, only the private property was left and this had to be distributed among all the heirs in accordance with the principles of Muslim Law."

Even the property covered by Schedule II has not been distributed strictly in accordance with Muslim Law, but only "substantially" with it the other two factors being "justice" and "fair play". Consequently the criticism laid down by the High Court that the distribution made by Respondent No. 1 therein (In Civil Appeal No. 129 of 1978) in distributing the property to the various heirs of the late Ameer was found to be not based on any principle or rule or any law but on its own personal notions. Ultimately both the appeals directly against the judgment of the High Court in the earlier round of litigation remanding the matter to the Central Government for a decision afresh, passed in Writ Petition No. 346 of 1969 were dismissed.

1. In the case of Brig. H.H. Nawob Muhammad Abbas Khan Abbasi (supra) the judgment in the case of Government of Pakistan (supra) was sought to be reviewed by the petitioners therein.

2. In view of what has been discussed above, we hold that in the circumstances of the case, the interim package announced by the Enquiry Commission does not meet the ends of justice and is also not in accordance with the direction of this Court contained in various pronouncements with regard thereto in general and the two cases: one filed by the Government of Pakistan (PLD 1982 SC 367) (supra) and secondly by Brig. H.H. Nawab Muhammad Abbas Khan Abbasi (supra) (PLD 1984 S.C. 67) (supra) in particular.

3. The perusal of these judgments and the record thus warrants that the controversy shall have to be resolved afresh in accordance with the direction contained in the case of Government of Pakistan (PLD 1982 SC 367) (supra) and the observation made subsequently in Review Petition in Brig. H.H. Nawab Muhammad Abbas Khan Abbasi (supra) by this Court.

CIVIL MISC. APPLICATION NO. 1811 OF 2000.

1. We have also considered the desirability of the appointment of the Committee by the Federal Government headed by a retired Judge of this Court. In order to decide all the questions arising out of the main controversy and taking into consideration the rights of all the heirs/ claimants to the property of the Ameerate of Bahawalpur in the light of the two earlier reported judgments of this Court in Government of Pakistan (supra) and Brig. H.H. Nawab Muhammad Abbas Khan Abbasi (supra), it is expedient to intervene because the earlier Committees, namely, Barlas Committee and Humayun Faiz Rasool Committee despite lapse of more than thirty years have come up with only an interim package and could not resolve the intricate legal questions encompassing the controversy in its entirety. The Committee headed by a retired Judge of this Court would still CONSTITUTED by the Federal Government and all the assistance that would of necessity by appropriate in resolving the legal and factual issues under the guidance of the retired Judge of this Court heading the Committee would tend to minimize pitfalls and further litigation between the parties. We are, therefore, of the considered view that in the interest of justice, equity and fair play and in order to ..render adjudication of the controversy once for all, the Committee to be constituted by the Federal Government for making recommendation shall be headed by a learned retired Judge of this Court.

CONCLUSION

1. Now the stage is set for Considering out of the available retired Judges of this Court, the name of the learned retired Judge to head the Committee. After due consideration, we agreed on the name of Justice (R) Abdul Shakoor-ul-Salam residing at Lahore these days to head the Committee for ascertaining the properties left by the late Ameer of Bahawalpur, the extent of the shares of various claimants therein and to suggest the mode of the distribution of the properties amongst the claimants/heirs, in the light of the two judgments rendered by this Court in: (i) Government of Pakistan v. His Highness Nawab Muhammad Abbas Abbasi and others (PLD 1982 SC 367) and (ii) BrigH.H. Nawab Muhammad Abbas Abbasi and others v. Government of Pakistan etc. (PLD 1984 SC 67) and make recommendations to the Federal Government of Islamic Republic of Pakistan accordingly.

2. The remuneration of the learned Judge is fixed at Rs. 500,00/- in lump sum which shall include TA/DA from Lahore to Bahawalpur and return for any number of visits, which shall be a charge on the properties in dispute if the parties do not make contribution for the said purpose. The learned Judge is requested to conclude the recommendations within three months if possible. The constitution of the Committee shall be finalized and communicated by the Federal Government in the concerned Ministry to the learned Retired Judge of this Court within sixty days with effect from today.

3. The titled Civil Appeal No. 1915 of 1998 is accordingly accepted, the impugned judgment of the learned High Court dated 3-7-1997 is set aside and the controversy is disposed of in the light of the above directions accordingly.

4. In the circumstances of the case, we leave the parties to bear their own costs.

(A.A.) Order accordingly.

PLJ 2002 SC 222

[Appellate Jurisdiction]

Present: nazim HussAlN SlDDlQUl and javed iqbal, JJ. SARDAR AHMED YAR KHAN JOGEZAI etc.--Appellants

versus PROVINCE OF BALOCHISTAN through Secretary C & W

Deparment-Respondent C.A. Nos. 747 & 750 of 1995, decided on 8.10.2001.

(On appeal from the judgment of the High Court of Balochistan, Quetta, dated 13.6.1995 passed in C.M. Appeals Nos. 21, 22, 23, 24 of 1989)

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

—S. 47 & O.XXI, R. 58-Constitution of Pakistan (1973), Art. 185--Decree of High Court awarding simple interest at the rate of 6 per cent per annum from the date of decree had attained finality-Executing Court modifying such decree to include interest from the date as claimed by appellant-­Order passed by Executing Court modifying decree of High Court which had attained finality was,, thus, arbitrary, capricious and coram-non-judice--Such order of Executing Court was rightly set aside by the High Court-Where essential feature for assumption of jurisdiction were contravened or forum exercised powers not vested in it, or exceeds authority beyond limits prescribed by law, judgment rendered would not only be coram-non-judicebut nullity in the by of law and Court would condone delay even if such judgment was challenged beyond period of limitation-Judgment of High Court setting aside impugned order of Executing Court would not warrant interference.

[Pp. 225 to 227] A, B, C & D

PLD 1971 SC 61; 1986 SCMR 261; 1987 SCMR 1543; PLJ 1987 Quetta 92; PLD 1965 Kar. 293; AIR 1932 Lahore 534 & PLD 1983 Lahore 445 ref.

Nemo for Appellants.

Mr. Muhammad Ashraf Tanoli, Advocate General Balochistan, Mr. Dil Muhammad Tarar, ASC and Raja Abdul Ghafoor, AOR for Respondent.

Date of hearing: 8.10.2001.

JUDGMENT

Javed Iqbal, J.--By this common judgment we propose to dispose of Civil Appeals Nos. 747 to 750 of 1995 having arisen out of the common.

1. Briefly stated the facts of the case are that appellants obtained contract work from Communication and Works Department which was completed in 1960. As a result of some differences/controversy regarding payment the learned District Judge appointed a sole-arbitratory by means of order dated 18.6.1974 who filed his award which was made rule of the Court vide order dated 23.3.1977. Being aggrieved the appellants challenged the

same before High Court but appeals were dismissed subject to some modification and simple interest at the rate of 6% per annum from the date of decrees was also awarded. The appellants approached this Court but met the same fate and leave to appeal was refused by .means of order dated 5.5.1986 and consequently the judgment/decree of learned High Court dated 4.11.1985 attained finality. The appellant, however, filed execution proceedings before learned Civil Judge, Quetta and meanwhile the Provincial Government paid the principle amount and simple interest at the rate of 6% per annum as determined by the learned High Court by means of judgment/decree dated 4.11.1985. The said judgment of High Court was, however, disputed and a controversy was raised regarding its interpretation which was decided on 6.10.1991 and it was held by the executing Court that the appellants were entitled to simple interest at the rate 6% per annum on the principle amount from the date of decree. The appellants once again approached the learned High Court of Balochistan by means of civil revision Bearing No. 19 to 22 of 1988 which were accepted on 13.5.1988 and the matter was sent to newly created District of Loralai which ultimately was decided on 13.4.1989 by the learned District Judge by whom the judgment/decree dated 4.11.1985 passed by learned High Court and attained finality was modified substantially. The Province of Balochistan through Secretary Communication and Works Department, Quetta, (respondent) preferred appeal by assailing the order dated 13.4.1988 of learned District Judge, Loralai which were accepted by means of impugned judgment, hence these appeals.

1. Mr. M. Riaz Ahmed, learned AOR on behalf of petitioner remained absent and no intimation whatsoever was received but instead dismissing the appeals in default we intend to dispose of them on merits as it would be in the interest of justice.

2. Heard Mr. Muhammad Ashraf Tanoli, learned Advocate General Balochistan on behalf of respondent at length. We have also carefully examined the contentions as mentioned in the memo of appeal; The entire eneral Balochistan. The judgments dated 4.11.1985 passed by learned High Court of Balochistan, order of this Court dated 5.5.1986 and the order dated 13.4.1989 of District Judge Loralai were perused with care and caution. After having gone through the entire record the pivotal question which needs determination is as to whether a judgment and decree passed by the High Court duly concurred by this Court and after attaining finality can be modified, changed or any deletion, insertion or addition can be made by the learned executing Court? The said question can only be answered in negative. It is an admitted feature of the case that the learned High Court of Balochistan had rejected the appeals preferred by the appellants by means of judgment/decree dated 4.11.1985 and relevant portion whereof is reproduced herein below for the sake of convenience:

"Respectfully following the law laid down by the Supreme Court I find no substance in the contention raised by the counsel for the appellants. The respondents money remained blocked for so many years and as the value of money has considerably gone down they deserve to be compensated in all fairness. I would accordingly allow simple interest at the rate of 6% per annum from the date of the decrees in question and such amount shall be calculated and to the decretal amounts. The decrees shall accordingly be modified to this extent."

1. It is also admitted feature of the case that petitions for leave to appeals were preferred by the appellants but with no avail and rejected by means of order dated 5.5.1986 and the operative portion whereof is as follows:

"4. We have examined the above contention alongwith those enumerated in the aforementioned petitions and find that none of those-contentions had been set up in his defence, nor raised before the First Appellate Court. The petitioners themselves have submitted to the arbitration by not producing any evidence. Thus we find no substance in these petitions. There is no reason to interfere with the impugned order. Leave refused and all the four Civil Petitions for leave to Appeals Nos. 6 to 9/Q of 1986 are dismissed."

1. An in depth scrutiny of the entire record would reveal that judgment/decree passed by learned High Court on 4.11.1985 had attained finality and furthermore the modification as allowed vide said judgment/decree was free from any ambiguity and accordingly the question of any clarification by the executing Court does not arise. The learned executing Court has modified the decree which had already attained finality by means of order dated 13.4.1989 which is reproduced herein before for ready reference: -

"11. Any how the decree holders have been paid some amounts during the proceedings of the execution which fact is not to be treated as an estoppel, claiming his rights which has been persistently perused being the amount of interest during the execution proceedings.

1. I may safely hold that the decree holders are entitled to the awarded amount-work plus interest awarded added thereto from 1960 to the date of application with the rate of interest given in the award and till the date of the decrees dated 21.5.1977 and thereafter till the realisation of the whole decretal amount at 6% per annum with simple interest. The objections of the judgment-debtor and the application of the decree holder in this behalf are disposed of and be consigned to record."

A bare perusal would reveal that "simple interest at the rate of 6% per annum from the date of decrees" as awarded by learned High Court vide judgment/decree dated 4.11.1985 was substituted by holding that "the decree holders are entitled to the awarded amount, work plus interest awarded added thereto from 1960 to the date of application with the rate of interest given in the award and till the date of the decrees dated 21.5.1977 and thereafter till the realization of the whole decretal amount at 6% per annum with simple interest." The said substitution or drastic amendment could not have been made by the learned executing Court which in fact amounts to a futile attempt to frustrate the object of judgment and decree dated 4.11.1985 which had already attained finality and thus the order dated 13.4.1989 passed by learned District Judge Loralai (executing Court) is arbitrary, capricious and coran-non-judice. It worth mentioning that executing Court could not go beyond the degree. It is well settled by now that "when decree passed attained finality it had got to be executed even if it was erroneously passed. Executing Court cannot rectify any mistake in decree which would tantamount to going behind decree." (Messrs Haji Ahmed & Co. v. Muhammad Siddique and others PLD 1965 Kar. 293, Ghanaya Lai and others v. Punjab National Bank Ltd., Lahore AIR 1932 Lah. 534 and Abdul Khaliq v Haji PLD 1983 Lahore 445). A similar proposition was discussed in case titled Topanmal v. Kundomal Gangaram (AIR 1960 Supreme Court 388) that "the executing Court could not go behind the decree and give relief to the plaintiff which was expressly denied to him in the suit. A Court executing a decree cannot go behind the decree; it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit." In fact the original judgment/decree dated 21.5.1977 was passed by the same District Judge ia the capacity as Civil Judge and, therefore, the controversy should not have been resolved by him which aspect of the matter has been ignored for the reason best known to the learned District Judge himself.

1. Admittedly the appeals were filed with a delay of 45 days but in view of the chequered history of the case arid order of the executing Court which is not only coram-non-judicebut nullity in the eyes of law and thus the delay has rightly been condoned because under the garb of limitation blanket authority cannot be given executing Courts to modify the decrees passed by the appellate Courts which would not only be contemptuous but amounts to misconduct. The order or learned District Judge Loralai being coram-non-judice, capricious passed in abuse of power and authority has rightly been set aside by the learned High Court after having taken into consideration all the relevant factors. The conclusion as arrived at by the learned High Court being unexceptionable hardly calls for any interference. It has rightly been observed by the learned High Court that "never-the-less for appreciating crucial point of limitation, it needs to ascertain whether impugned judgment of the executing Court (District Judge, Loralai) dated 13.4.1989 is in-consonance with or deviates from above referred judgment of

High Court dated 4.11.1985. It may be seen that High Court while modifying the decree passed by the trial Court had observed that respondent/decree holder would be entitled to the interest at the rate of 6 percent per annum from the date of decree in question, and such amount shall be calculated and added to decretal amount. Factually award dated 6.6.1975 proposed payment of amount against work done and interest from year 1960 at 6% per annum with six monthly rests to the date of application. The trial Court rejected objections raised by appellant and made said "Award" rule of the Court Additionally respondent was granted interest at 6% per annum with quarterly rests from the date of application till realization of whole decretal amount. Whereas said decree was expressly modified by High Court vide judgment dated 4.11.1985 awarding merely simply interest the rate 6% per annum from the date of decree in question which was obviously passed in May/July, 1977. The amount of interest on calculation was to be added to decretal amount. Consequently it is apparent that on modifying the decree, amount. Consequently it is apparent that on modifying the decree, not only rate of interest has been charged, but period for which interest was payable is specified from date of decree onwards. In this respect obviously the executing Court had exceeded its authority and gone beyond the decree which stood modified by judgment of High Court dated 4.11.1985." It was further obseiyed that "void orders need to be challenged within prescribed period of limitation, unless extraordinary exceptional position is reflected from proven facts. Never-the-less it would be obligatory to ensure that judgment dated 4.11.1985 passed by High Court and upheld by the Supreme Court, which is factually being executed may not be rendered nugatory by any subordinate forum in the garb of interpretation. The entitlement of respondent to receive principal amount and interest is explicitly regulated by above-refer red judgment whereby all previous decision of subordinate forums stand completely, merged into decree so modified. Therefore, in the peculiar special circumstances if purely hyper-technical view is taken, I am afraid basic judgment of High Court dated 4.11.1985, which undisputedly holds the field would become ineffective and inoperative on account of impugned order passed by executing Court. Even otherwise glaring infirmity and blatant disregard manifested from impugned judgment of executing Court, cannot be conveniently over-looked and permitted to perpetuate. Respondent/Decree Holder himself claims implementation of judgment and decree dated 4.11.1985 awarded by High Court

Therefore, by erroneous interpretation he cannot be granted payment beyond said decretal amount. It is well settled that when essential feature for assumption of jurisdiction are contravened or forum exercises powers not vested in it or exceeds authority beyond limits prescribed by law, the judgment is rendered coram-non-judice and inoperative. The question regarding bar of limitation in such exceptional cases loses significance. For authority reference can be made to the observation in cases:

(i) Atta Muhammad Qureshi v. The Settlement Commissioner & others (PLD 1971 SC 61)

(ii) Afrs. Zubaida Begum v. Mrs. S. T. Naqvi (1986 SCMR 261)

(iii) Malik Khawaja Muhammad and others v. Marduman Babar Kahol and others (1987 SCMR 1543)

(iv) Hqji Muhammad Moosa and another v. Provincial Government of Balochistan through Collector Khuzdar (PLJ 1987 Quetta 92)

Since impugned decision of executing Court conflicts with judgment of High Court dated 4.11.1985 clearly contravening settled principles of justice and spirit of law, therefore, same is coram-non-judiceand devoid of lawful authority. Thus in the peculiar circumstances bar of limitation would not apply, and delay in filing appeal for the above reasons is condonable. Accordingly I am inclined to exercise discretion in favour of appellants by granting request concerning condonation of delay."

The observations as reproduced herein above is strictly in accordance with relevant provisions of law, settled norms of justice and precedented law which cannot be disturbed without any lawful justification which is altogether lacking in this case.

1. In the light of what has been discussed herein above these appeals being devoid of merits are dismissed.

(A.A.) Appeal dismissed.

PLJ 2002 SC 227

[Appellate Jurisdiction]

Present: sh. riaz ahmed, syed deedar hussain shah and tanvir ahmed khan, JJ..

MUHAMMAD YASIN etc.-Appellants

versus STATE-Respondent

Crl. As. Nos. 576-577 of 2000 and Jail Petition No. 128 of 1999, decided on 26.9.2001.

(On appeal from the judgment/order dated 20.5.1999 passed by Lahore High-Court, Lahore in Crl. A. No. 708/1995)

(i) Pakistan Penal Code, 1860 (XLV of I860)-

—Ss. 302/394/307--Constitution of Pakistan (1973), Art 185(3) Sentence of death awarded to accused persons was maintained by the High Court to the extent of three of them while the fourth accused was awarded life- mprisonment instead of death sentence—Legality—Leave to appeal was anted to consider whether trial Court and the High Court had correctly assessed/evaluated evidence on record and had rightly rendered finding of guilt in view of the principle enunciated by Supreme Court from time to time for appraisal of evidence; whether the High Court in impugned order was legally justified to convert sentence of death into life imprisonment of co-accused. [P. 231] A

(ii) Pakistan Penal Code, 1860 (XLV of I860)-

—-Ss. 302/394/307--Constitution of Pakistan(1973), Art. 185-Conviction of accused persons for the offence of murder committed by them during occurrence-Legality-Occurrence had taken place during broad day light-Accused person had committed robbery in the bank in which one person lost his life and two others had received injuries-Police and staff of bank chased and apprehended accused and recovered from their possession fire-arms as well as robbered property-Eye-witness account furnished by prosecution witnesses was natural and convincing and defence was not able to prove enmity, bias or ill will against witnesses-Reports of Chemical Examiner, Serologist, and Forensic Science Laboratory corroborated ocular version of prosecution witnesses—Where prosecution was able to prove its case against accused beyond reasonable doubt, maximum punishment provided for the offence should be awarded-High Court had given sound and cogent reasons for upholding conviction of appellan s and had rightly dismissed appeals of accused persons-High Court had rightly converted death sentence of co-accused to life- imprisonment in as much as, evidence on record indicated that he had not. caused any injury to deceased or to injured persons-No interference was warranted in the judgment of High Court. [P. 232 & 233] B, C

(c) Constitution of Pakistan, (1973)-

-—Art. I85-Supreme Court while taking notice of the fact that leniency was being shown it. matter of capital punishment by Courts below even in those cases where act/crime involved was of heinous nature, which theorized society as a whole or part thereof, desired that although a judge ought to be lenient and compassionate in awarding punishment in any offence, yet at the same time he should be more cautious in believing prosecution story as it was being narrated before him and should not be made to look for mitigating circumstances, creating doubt in prosecution case and extending benefit of doubt to accused so that miscreants could not be set at free who were responsible for causing unrest in society as a whole and such menace should be curbed. [P. 233] D

PLJ 2001 SC 1409; PLD 2001 SC 458 ref.

Mr. Najeeb Faisal Chaudhry, ASC, for Appellant (In Cr.P. 576/2000).

Malik Jehanzab Taman, ASC. for Appellant (in Cr.P. 577/2000). Mr. M. Zaman Bhatti, ASC, (in all cases). Date of heanng: 26.9.2001.

judgment

Syed Deedar Hussain Shah, J.-This judgment shall dispose of , the above mentioned three connected matters, which have arisen out of consolidated judgment dated 20-5-1999, passed by the Lahore High Court, Lahore, in Criminal Appeal No. 708/1995.

1. On 08-02-1993, Muhammad Ajmal Cheema, Manager, United Bank Limited, Gulshan Colony Branch, Faisalabad lodged the FIR (Exh. P.A) stating therein that on 8.2.1993 he alongwith Muhammad Tariq, Muhammad Iqbal, Muhammad Ashraf and Muhammad Ashiq, was present in the Bank, while Muhammad Shafi Gunman of the Bank and Zahid Anwar Canstable duly armed with fire-arms were present on their duties in front, of the main gate of the Bank. At about noontime they heard noise of fire-arms. He alongwith above named persons saw that four unknown persons oat of them three were armed with Kalashnikovs, while one was armed with a pistol, were grappling with the gunman and the constable deputed at'the main gate of the Bank. In the meantime, complainant informed trie police on telephone. Thereafter, all the four accused entered the Bank ana re.s firing in order to create terror. They also broke the cash counter and panels and took away Rs. 1,51,491/- (Prize bonds amounting to Rs. S7.GOO)- and cash amounting to Rs. 64,491;-). All the accused persons took Lied money with force and made their escape good on two inclorcycii.;. whU'ii were without registration numbers and fled away towards Norcwul. Tie complainant and PWs came out of the bank and found that Constable a.s well as Gunman were injured. A number of empties of bullets were also found there. Meanwhile, two police mobiles one after the other reached there. Complainant and PWs pointed out about the unknown culprits and Police Mobiles followed them. When the culprits reached in Mohallah Usman Ghani, they left the motorcycles outside the Mosque near graveyard and entered into it. Police party encircled the Mosque. The accused started firing from inside the Iv" osuae on the police party. After some struggle police arrested the accused persons, whose names later came to know as Shan Alam Badshah armed with Kalashnikov, Muhammad Yasin armed with a 30 bore pistol,Saif-ur-Rehmaii alias Haflz Muhammad Zahid, armed with Klashnikov.One accused namely Shabbir Hussain armed with 222 rifle succeeded in running away from the spot while firing in the air. According to PWs, the accused persons were the same who had committed dacoity in the bank.

2. Police took into possession the arms, looted money/currency and prize bonds from the accused persons. Thereafter, the Investigating Officer recorded the statement, of complainant, which was read over to him, who igned the same and sent for registration of FIR. Khaiid Hussam Bhatti, Investigating Officer, arrested the accused Saif-ur-Rehman alias HaflzMuhammad Zahid and recovered Klashnikov(P. 8. 23) and live cartridges from him vide memo (Exh. PD). Forty prize bonds of Rs, l.OOO/-denomination (P. 13/1-40) were also secured through memo (Exh. PG) attested by the PWs. Forty seven prize bonds of Rs. l.OOO/- denomination (P. 121 47) were also recovered vide memo (Exh. PE) from Shan Alam accused. Besides, a .30 bore pistol and 8 live cartridges were also secured from him vide memo (Exh. PH) which was attested by the PWs. Rupees. 15.893/- (P. 14) were recovered from Yasin accused and secured vide memo (Exh. P.I.) attested by the PWs. The Investigating Officer also recorded the statements of PWs. Zahid Anwar, who was injured during the occurrence, later succumbed to his injuries. Injured PWs were medically examined and postmortem of the dead body of Zahid Anwar was also conducted. He also took into possession rifle 303 (P. 15) and 12 bore gun (P. 16), whereafter broken pieces of 12 bore gun and other material vide memo (Exh. P.M) attested by the PWs. He also prepared injury statement of PWs and site plan. On 09.02.1993 the Investigating Officer recovered a grenade, 158 bullets of Kalashnikov from Yasin accused. He also arrested Shabbir alias Pappu on 10.02.1993. After completion of the investigation, final charge sheet was submitted in the Court having jurisdiction.

3. During trial, appellants Muhammad Yasin, Shan Alam Badshah, Saifur Rehman a//as Hafiz Muhammad Zahid and Shabbir Hussain alias Pappu were formally charge sheeted for an offence under Sections 302/394, 307 (324) PPC, to which they pleaded not guilty and claimed to be tried.

4. Prosecution in support of their case examined 13 PWs. Nazir Hussain HC, PW. 1 stated that on 08.02.1993, he received complaint (Exh. PA) and recorded FIR (EXh. P.A/1). Abdul Hafeez PW. 2 and Muhammad Akram PW. 3 were formal witnesses and Aurangzeb PW-. 4 prepared the site plan. The main witnesses examined by the prosecution for establishing its case are Muhammad Ajmal Cheema PW. 5, Muhammad Shafi Gunman injured PW. 6 Muhammad Tariq Second Officer of the Bank injured PW. 7 and Muhammad Iqbal PW. 8 All supported the case of prosecution and narrated the facts as mentioned hereinabove. Umar Hayat S.I. PW. 9 and Ali Asghar PW. 10 stated that they along with Police party encircled the Mosque in Usman Ghani Mohallah, where all the appellants were present and were firing from inside the Mosque, whereas Police also fired in defence.

5. After conclusion of the trial, Judge Special Court, (Suppression of Terrorist Activities), Faisalabad videjudgment dated 08.10.1995 convicted all the accused under Section 302/34 PPC and sentenced each of them to death for committing the murder of Zahid Anwar, Constable. He also convicted all of them under Section 394 PPC and sentenced each of them to life imprisonment with fine of Rs. 2,00,000/- each and in case of default in payment of fine to further undergo two years R.I. each. He further convicted them under Section 324 (307) PPC and sentenced each of them to 10 years R.I with fine of Rs. 50,000/- each, or in default to undergo one year R.I each. In case of recovery, Rs. 2,00,000/- were ordered to be paid to the legal heirs of Zahid Anwar deceased and Rs. 50,000/- were ordered to be paid to uhammad Shafi PW. 6, Gunman UBL, Gulshan Colony Branch, as compensation under Section 544-A Cr.P.C. and the remaining amount was directed to be confiscated in favour of State.

6. The judgment was assailed by accused Shan Alam Badshah, Muhammad Yasin, Saifu-ur-Rehman alias Hafiz Muhammad Zahid and Shabbir Hussain alias Pappu, before Lahore High Court, Lahore. The learned High Court dismissed the appeal of Shan Alam Badshah, Saifur Rehman alias Hafiz Muhammad Zahid and confirmed their death sentences awarded by the trial Court, whereas appeal of Muhammad Yasin was dismissed but his sentence of death was converted into imprisonment of life with the benefit of Section 382-B Cr.P.C. Sentence awarded under Section 394 PPG to each of them was, however, maintained. So far Shabbir Hussain alias Pappu accused is concerned, since he was not arrested from the spot and Identification Parade was not held to his extent, therefore, he was acquitted of the charge, giving him benefit of doubt. All the appellants were, however, acquitted for the charge under Section 324 PPC.

7. Leave to appeal was granted by this Court to consider the following points:

(i) Whether the learned trial Judge and the High Court have correctly assessed/evaluated the evidence on record and have rightly rendered finding of guilt in view of the principle enunciated by this Court from time to time for appraisal of evidence.

(ii) Whether the High Court in the impugned order was legally justified to convert the sentence of death into life imprisonment of Yasin in Cr. Petition No. 286-L/99.Notice be issued to the petitioner Yasin as to why his sentence of life imprisonment should not be substituted into death. More over, office is directed to verify whether Saifur Rehman co-convict in the impugned judgment has filed petition either directly or from Jail and if he has done so then it should also be put up alongwith these appeals."

1. We have heard the learned counsel for the parties who inter alia contended that Courts below have not considered the evidence available on record in its proper perspective and the case against the accused is not proved.

2. Mr. Muhammad Zaman Bhatti leaned ASC, for the State supported the judgment of the trial Court, contending that the High Court was not justified in modifying the sentence of Muhammad Yasin from the life imprisonment.

3. We have considered the arguments of learned counsel for the parties and have also gone through the evidence recorded by the trial Court. The instant occurrence was a broad day light one. The appellants had committed robbery on the bank in which one person Zahid Anwar Constable lost his life and Muhammad Shafi and Muhammad Tariq received injuries. The Police and staff of the bank chased the and apprehended them fi-om the Mosque. Police recovered fire-arms as well as robbed property from the possession of the appellants. The eye-witness account furnished by the PWs is natural and convincing and the defence was not able to prove enmity, bias or illwill against the PWs. Prosecution also produced reports of Chemical Examiner (Exh. PW), Serologist (Exh. PX) and of Forensic Science Laboratory (Exh. PY) which corroborated ocular version of the PWs. Moreover defence was not able even to challenge the characteristics of above reports. Now a days crime is on the rise and culprits commit the same without visualizing the consequences of their gruesome acts.

4. It is by now well settled law that if prosecution is able to prove its case against an accused beyond easonable doubt, the maximum punishment, provided for an offence should be awarded. Reference may be made in the case of Wallayat vs. State (PLJ 2001 Supreme Court 1409), the relevant para reads as under:-

The Courts are bound to sift the chaff from grain and keeping in view this principle, the Courts below rightly acquitted the co-accused because sufficient material was not available against them, but natural, reliable and trustworthy evidence was furnished by the prosecution against the appellant, which had rightly been believed by the Courts below. The appellant has committed brutal murder with fire-arm. The normal penalty under Section 302 PPC is death, which has been properly awarded by the Courts below. In this respect, reference may be made to Moazarn Shah. vs. Mohsan Shah (PLD 2001, S.C. 458, at p. 465) wherein this Court held as under: -

Besides such cases must be seen with reference to the interest of society and be condemned as such. To curb crime is the need of hour. One of the object of criminal justice is to award exemplary punishment to offenders in order to deter them from committing crimes and in this way also to serve a stern warning to those members of society, who have behavioural leaning towards criminality.

Adverting to the facts of this case it is noted that the respondent had killed the deceased under a preconceived strategy, which stunned the deceased and prevented him from taking any step to save his life. Ex facie, it was premeditated and cold-blooded murder. The deceased was only 24 years old.

In consequence, the judgment of High Court, to the extent of altering the sentence of death to imprisonment for life, is set aside and that of "trial Court, awarding death penalty to respondent

Mohsan Shah, is restored."

1. In the instant case, the occurrence took place in a broad day light at about noontime. The appellants caused the death of Zahid Anwar and inflicted injuries to PWs Muhammad Shafi and Muhammad Tariq. They were apprehended with the fire-arms as well as the looted property.

2. We have considered the arguments advanced by the learned counsel for the appellants and are not persuaded to accept the plea that the Courts below have not considered the evidence available on record in its proper perspective.

3. The Learned Division Bench of the High Court has given sound and cogent reasons for upholding the convictions of the appellants and rightly dismissed the appeal of Shan Alam Badshah, Saifur Rehman as Hafiz Muhammad Zaliid confirming their death sentences. The learned High Court was also right in converting the death penalty awarded to Muhammad Yasin appellant, inasmuch as, according to the evidence on record, he neither caused any injury to the deceased or to the inj ured witnesses.

4. For the foregoing reasons and in view of the case law mentioned herein above, we see no reason to interfere with the well reasoned impugned judgment of the High Court. The above appeals as well as Jail Petition fail being without merit and are hereby dismissed.

5. Notice issued to Muhammad Yasin for enhancement of sentence is hereby recalled.

6. Before partir.g with.the judgment we would like to observe that leniency is being shov iu matters of capital punishment by the Courts below even in those case;- where act/crime involved was of heinous nature, which terrorized the son;, ty as a whole or a part thereof. No doubt, a Judge ought to be lenient and compassionate in awarding punishment in any offence but at the saroe i ie he should be more cautious in believing the prosecution stoiy as it is navrated before him and efforts should not be made to look for mitigating circumstances, creating doubt in the prosecution case and extend benefit of doii to the accused so that the miscreants may not be set at free who are responsible for causing unrest in the society as a whole and this menace should be curbed. Therefore, when an offence is proved beyond reasonable doubt against an accused person a Judge should never hesitate to award punishment provided for that offence, even if that is & capital punishment, especially it cases of the nature mentioned hereinabove.

(A.A.) Appeal dismissed.

PLJ 2002 SC 234

[Appellate Jurisdiction]

pressent: muhammad arif, qazi muhammad farroq and mian muhammad ajmal, JJ.

MUHAMMAD AMJAD ALI KHAN and others-Appellants

versus

SHAFIQ AHMED and others-Respondents C.A. No. 1947 of 2000, decided on 19.9.2001.

(On appeal from the judgment dated 5.10.2000 of the Punjab Surobdinate

Judiciary Service Tribunal, Lahore High Court, Lahore, passed in

Service Appeal No. 5 of 1993)

West Pakistan Civil Service (Judicial Branch) Rules, 1962-

—R. 9(a)~Judicial officers—Seniority of respondents vis-a-vis appellants Respondents were not candidates in competitive examinations of 1988 and 1989, but were taken from merit list prepared as a result of competitive examination 1987, therefore, they belonged to 1988 batch and their seniority is to be determined accordingly-High Court's Division Bench had treated respondent's as selectees of competitive Examination 1987 and had issued direction to Public Service Commission to recommend them for appointment as civil judges while Services and General Administration Department was directed to appoint them against future vacanies-Appellants were party to appeal before Judiciary Service Tribunal, therefore, their non-impleadment in Intra Court Appeal would not be of any consequence partic larly when both appellants and respondents were not holding any post of Civil Judges and question of seniority was not involved therein-Judgment of Division Bench in Intra Court Appeal assigning seniority to respondents was, thus, not open to interference. [Pp. 238 & 239] A, B

Mr. Farooq Amjad Meer, ASC and Mr. Mahmud-ul-Islam, AOR (absent) for Appellants.

Sh. Ziaullah, ASC and Syed Abul Aasim Jafri, AOR for Respondents Nos. 1 to 5.

Malik Ainul Hag, ASC for Respondents Nos. 58 & 59. Date of hearing: 19.9.2001.

judgment

Qazi Muhammad Farooq, J.-This appeal, by leave of the Court, is meant to impugn the judgment dated 5.10.2000 of the Punjab Subordinate Judiciary Service Tribunal, hereinafter referred to as the Tribunal, whereby the seniority-related appeal of Respondents Nos. 1 to 5 was allowed and it

was directed that the final seniority list of Civil Judges upto 31.8.1992 be corrected accordingly.

1. Briefly, the facts of the case are that pursuant to a requisition sent to it by the Government of the Punjab applications were invited by the Punjab Public Service Commission, through an advertisement published in the daily Nawa-i-WaqatLahore dated 19.12.1986, from eligible candidates for recruitment against 29 posts of Civil Judges including one post reserved for the disabled. While the requisite competitive examination was being held another, requisition for recruitment against 50 posts of Civil Judges was sent to the Punjab Public Service Commission, hereinafter referred to as the Commission, by the Government of the Punjab on 13.7.1987. The second requisition was kept aside by the Commission and result of the competitive examination was announced whereby 39 candidates, including Respondents .Nos. 1 to 5, were declared successful. However, in view of the number of the advertised posts and non-availability of a successful disabled candidate 28 successful candidates were recommended by the Commission on 19.8.1987 for appointment who were appointed as Civil Judge on 16.1.1988. Respondents Nos. 1 to 5 being amongst the eleven successful candidates who were not recommended for appointment approached the Government of the Punjab through an application dated 25.8.1987 pi-aying that they may be considered for appointment against the 50 posts for which a requisition had already been placed with the Commission. The application was dismissed and the writ petition filed by the respondents also met the same fate on 5.7.1989. However, the Intra-Court appeal filed by, them was allowed on 25.2.1990 by a learned Division Bench of the Lahore High Court, Lahore and the Commission was directed to recommend the case of the respondents to the Services and General Administration Department, Government of the Punjab for appointment as Civil Judges against future vacancies. The udgment rendered in the Intra-Court appeal was challenged by the Government of the Punjab through C.P.S.L.A. No. 66-L of 1991 but the same was dismissed on 5.5.1991 on the ground of limitation. In the meantime the respondents were appointed as Civil Judge vide Notification dated 17.10.1990 and 26.12.1990 and their names were placed in the seniority list at Serial Nos. 385-387, 389-390 and 391. While the respondents were locked in litigation the 50 posts of Civil Judges against which they had sought appointment were filled in sometime in August, 1988 and October, 1989 with the result that in the draft seniority lists issued on 2.6.1992 and 25.6.1992 and the final list issued on 31.8.1992 they were placed below the Civil Judges appointed in August, 1988 and October, 1989. The representations made by the respondents were turned down by the Government of the Punjab on 12.7.1993. However, the appeal preferred by them against the said order and the final seniority list was allowed by the Tribunal as stated above.

2. Leave was granted to consider the following contentions of the learned counsel for the appellants:-

(i) The prayer made by the contesting respondents in the Intra-Court Appeal that they be adjusted against the additional 50 posts shall be deemed to have been rejected in view of the direction that their appointment be made against the further vacancies.

(ii) The contesting respondents had accepted the offer of their appointment against future posts, therefore, the matter had become past and closed and the Tribunal had no jurisdiction to re-open it.

(iii) The 50 posts against which the contesting respondents had sought appointment were filled in before the disposal of the Intra-Court appeal, therefore, in view of the judgment rendered therein they were entitled to appointment against future vacancies Le. the vacancies becoming available after the judgment and their seniority is to be determined accordingly.

(iv) The appointees against the 50 posts ought to have been hoard before making an oi-der prejudicial to their interest qua seniority.

1. The relief prayed for by Respondents Nos. 1 to 5 was granted by the Tribunal for the reasons; firstly, that the requisition-in regard to .0 posts was received by the Commission before finalizatioa of selection to the originally notified 29 posts, therefore, the same were additional posts within the contemplation of the Punjab Public Service Commission Regulations. 1987 and the respondents were entitled to be adjusted against those posts, secondly, the respondents were appointed in 1990, in compliance with the direction made in the Intra-Court Appeal, on the basis of the competitive examination held by the Commission in 1987, thirdly, the appointing authority i.e. the Lahore High Court had conceded that the respondents "apparently belonged to 1988 batch" and, fourthly, it was clearly mentioned in clause (a) of Rule 9 of the Punjab P.C.S. (Judicial Branch) Service Rules, 1962, which were in force at the time of appointment of the respondents, that persons selected in earlier selection shall rank senior to the persons selected in a later selection.

2. The learned counsel for the appellants reiterated the contentions highlighted in the leave granting order and vehemently added that the appellants were not impleaded as a party in the Intra-Court Appeal, the respondents were adjusted against the future and not the existing posts and seniority is to be reckoned from the date of their actual appointment.

3. Learned counsel for Respondents Nos. 1 to 5 supported the Impugned judgment by contending that Respondents Nos. 1 to 5 ranked senior to the appellants as they were never candidates in the competitive examinations held in 1988 and 1989 and were appointed as a result of the direction in the Intra-Court Appeal in 1990 from the merit list prepared as a result of examination of 1987. He went on to contend that requisition for 50 posts was received by the Commission much before the conclusion of the Competitive Examination, 1987, therefore, the same were additional posts against which the respondents were entitled to be appointed but were made to suffer for no cause and were well within their right to agitate that they be restored to their original position. He further submitted that the High Court had also supported the case of the respondents in the comments available on record. It was lastly contended that seniority of the parties is to be determined in the light of Section 9 of the Punjab P.C.S. (Judicial Branch) Service Rules, 1962 and not from the date of their appointment.

4. The learned counsel appearing for the Province of the Punjab and the Additional Chief Secretary Government of the Punjab supported the appeal by adopting the arguments addressed by the learned counsel for the appellants.

5. Having given serious consideration to the respective contentions we find that there is no defect in the reasoning of the Tribunal or the impugned judgment and none of the contentions raised by the learned ounsel for the appellants has any substance.

6. It was held in the Intra-Court Appeal in most unequivocal terms that the 50 posts regarding which a requisition was placed with the Commission by the Government of the Punjab were 'additional posts'. The relevant portion of the judgment reads as under: -

"The language used in Regulation 2(c) is plain, clear and suffers from no ambiguity and, therefore, it has to be construed in the ordinary meaning of the words used therein without reference to any other consideration. A bare perusal of the aforesaid regulation would show that the terra 'Additional Vacancy' means a vacancy in addition to the number of vacancies, regarding which a Department had sent a requisition to the Commission before selection against the original vacancies of 29 posts of Civil Judges had been finalized by the Commission, the Government placed another requisition for 50 posts. This would, therefore, come within the purview of 'Additional vacancy' as defined in Regulation 2 (c)."

1. The operative part of the Judgment in the Intra-Court Appeal may also be reproduced hereunder as the fate of the appeal hinges on its import. It reads as under:-

"Having regard to the facts and circumstances of the present case and keeping in view the past practice, the Commission is directed to recommend the case of the appellants and Respondents Nos. 3 and 4 for appointment as Civil Judges to the S&GAD Department, Government of Punjab, who shall adjust these persons subject to future vacancies. To this extent the appeal is accepted and the

impugned order of the learned Single Judge is set aside, but their shall be no order as to costs."

1. It is true that in the operative part of the judgment in the Intra- Court Appeal a direction was issued for ecommendation and appointment of Respondents Nos. 1 to 5 against future posts and not the 50 additional posts but this does mean that their claim that they were entitled to be appointed against the 50 additional posts was turned down. The claim was duly recognized and for that very reason they were treated as selectees of the Competitive Examination, 1987 and a direction was issued to the Commission to recommend them for appointment as Civil Judges and the Services and General Administration Department of the Government of the Punjab was directed to appoint them against future vacancies. The expression future vacancies' was used in the operative part of the judgment for the obvious reason that the 50 additional posts against which Respondents Nos. 1 to 5 were held entitled for appointment having been filled in were not available.

2. The contention that the respondents were not adjusted against the 50 additional posts, therefore, their seniority should be reckoned from the date of their actual appointment against future posts is misconceived as it overlooks the striking distinction between appointment against a post and determination of seniority. The respondents were appointed against future vacancies instead of the 50 additional posts on account of the technical ground of non-availability of posts out of the said posts but the judgment in the Intra-Court Appeal leaves no room for doubt that they had a vested right to be appointed against the additional posts and shall be deemed to have been selected for appointment on the results of the Competitive Examination, 1987. The question of their seniority vis-a-vis the appellants thus requires determination in accordance with clause (a) of Rule 9 of the West Pakistan Civil Service (Judicial Branch) Rules, 1962 which were in force at all the three vital stages i.e. Competitive Examination, 1987 disposal of the Intra-Court Appeal and appointment of the respondents as Civil

"Seniority. The seniority inter se of the members of the Service in the various grades thereof shall be determined-

(a) in the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Commission provided that persons selected for the Service in an earlier selection shall rank senior to the persons selected in a later selection;"

. 13. Respondents Nos. 1 to 5 were candidates in the Competitive

Examinations held in 1988 and 1989 and were taken from the merit list prepared as a result of competitive examination, 1987, therefore, there can be no cavil with the proposition that they belong to 1988 batch and their seniority is to be determined accordingly. It will be pertinent to mention herethat the appeal before the Tribunal was not seriously contested by the Appointing Authority, namely, the Lahore High Court in view of its stance taken at the stage of preparation of the seniority list of the parties by the Government of the Punjab that the contesting respondents apparently elonged to 1988 batch.

'

1. Acceptance of the offer of appointment against future vacancies by the respondents being traceable to the observations made in the judgment passed in the Intra-Court Appeal can have no bearing on the question of their seniority. Similarly the matter had become past and closed only to the extent of appointment of the respondents as Civil Judges against future osts and the question of their seniority remained open.

2. The appellants were party to the appeal before the Tribunal, therefore, their non-impleadment in the Intra-Court Appeal cannot be blown out of proportion particularly when at the time of its institution both the parties were not holding any post of Civil Judges and the question of ., seniority was not involve therein.

For the reasons stated above, the appeal is dismissed. Parties to bear their own costs.

(A.A.) Appeal dismissed.

PLJ 2002 SC 239

[Appellate Jurisdiction]

Present: nazim hussain siddiqui and javed iqbal, JJ.

Mst. HAMEED MAI-Appellant

versus

IRSHAD HUSSAIN and others-Respondents C.A. No. 797 of 2000, decided on 31.10.2001.

(On appeal from the judgment dated 28.4.2000 of Lahore High Court passed in WP No. 3659 of 1999)

(i) Guardian and Wards Act, 1899 (VIII of 1899)-

—S. 25-Constitution of Pakistan (1973), Art. 185(3)--Custody of minor Leave to appeal was granted to consider, whether under the circumstnaces, irrespective of settlement between the parties, Guardian Judge was bound under the law to decide question of custody of minor keeping in view of her welfare. [P. 241] A

(ii) Guardian and Wards Act, 1899 (VIII of 1899)--

—S. 25 Constitution of Pakistan (1973), Art. 185-Paramount consideration for custody of minor-Parties had initially settled dispute on basis of compromise relating to custody of minor, however, later on, rcumstances stood materially changed and question of welfare of minor cropped up in more serious manner than before-Issue of custody of minor in all cases cannot be effectively settled by private settlement; in such cases paramount consideration is welfare of minor-Court's powers with regard to custody of minor are in the nature of parental jurisdiction, therefore, Court must act in a way a wise parent would do—Minor having remained with her maternal grand-mother since her birth, suddenly to place her in the custody of her father to live in a different atmosphere would be, if not impossible, at least very difficult for her-Minor was, thus, permitted to remain with appellant (grand mother) till the petition pending before Guardian Judge was finally decided. [Pp. 241 & 242] B

Muhammad Hussain husband of Mst. Hameed Mai for Appellant.

Mr. M. Bilal, Amicus Curiae.

Ch. Muhammad Akram, ASC for Respondent No. 1.

Date of hearing: 31.10.2001.

judgment

Nazim Hussain Siddiqui, J.-This-appeal by leave of this Court is directed against judgment dated 28-4-2000 of a learned Judge in Chamber, Lahore High Court, passed in CP No. 3659 of 1999, whereby the said petition filed by appellant was dismissed and appellant Mst Hameed Mai was directed to hand over custody of the minor to Respondent No. 1, Irshad Hussain.

1. The facts relevant for decision of this appeal are that the dispute is between the appellant, the maternal grandmother and Respondent No. 1, the father, about custody of minor Mst. Humera Khurshid, now aged about 11 years. The mother of the minor expired at the time of her (minor) birth. It is alleged that custody of the minor was handed over to the appellant through habeaspetition. The Respondent No. 1 filed an application before leaned Guardian Judge Shorkot and the matter was compromised and, as per term of the settlement, the custody of the minor was to be handed over to Respondent No. 1 on her attaining age of seven years.

2. After above settlement certain developments took place and the Respondent No. 1 solemnized second marriage. Deceased mother of the minor was a serving lady. The Respondent No. 1 deposited the share of the minor and the amount left by the deceased in his own account against which objection was taken and he even did not abide by the decree of the Court. Thereafter, his warrant of arrest was issued and to avoid his arrest he deposited the share of the minor in her account.

3. The appellant has filed another application/suit in the Court of learned Guardian Judge Jhang for her appointment, as Guardian of person and properly of the minor, which is being contested by the Respondent No. 1 and is yet to be decided on merits. During pendency of above suit, the respondent filed an application before learned Guardian Judge, Shorkot for implementation of said compromise, seeking custody of the minor. Learned

Guardian Judge, Shorkot allowed the said application and directed the appellant to hand over custody of minor to respondent. The appellant preferred appeal against said order before learned Additional District Judge, who dismissed it vide order dated 8-2-1999. Being dissatisfied with above orders the appellant filed Writ Petition before High Court, which was also dismissed by the order, which has been impugned in this appeal.

1. Leave to appeal was granted to consider whether, under the ircumstances, irrespective of settlement between the parties, the Guardian Judges is bound under the law to decide the question of custody minor keeping in view of her welfare.

2. It is contended on behalf of the appellant that it is a question of welfare of the minor and learned Guardian Judge Shorkot ought to have decided the matter in the light of the changed circumstances, but he decided it mechanically on technical grounds.

3. During course of arguments, the husband of the appellant submitted that minor is residing with the appellant alongwith her 5 sons and daughters and all her sons are employed and getting handsome salary. He also submitted that the respondent is a mason and he gets salary only when he is on job. It has also been pointed out that, during last 11 years, the respondent never cared for the minor and did pay nothing to her. He also stated that the Respondent No. 1, has got an Issue from his second wife.

4. As against above, learned counsel for the Respondent No. 1 submitted that, as per term of the settlement, the respondent is entitled to the custody of the minor, but the appellant for one reason or the other is not inclined to do so. Learned counsel also argued that even otherwise the Respondent No. 1 being natural Guardian is entitled to her custody.

5. It is settled proposition of law that in such cases the paramount consideration is welfare of the minor. No doubt initially the parties had settled the dispute as above, the fact, however, remains that later on the circumstances, stood materially changed and the question of welfare of minor again cropped up in a more serious manner than before. Issue of custody of minor in all cases cannot be effectively settled by private compromise. The Courts powers with regard to custody of minor are in the nature of parental jurisdiction. Therefore, the Court must act in a way a wise parent would do. The expression "welfare" shall be construed in a way as to include in its compass all the dominant factors essential for determining the actual welfare of the minor. Technicalities of law are not adhered in such type of cases. Since birth minor remained with the maternal grand mother and suddenly to ask her to live in different atmosphere would be, if not impossible, at least very difficult for her.

6. Under the circumstances, we allow this appeal, set aside the impugned judgment and permit the minor to remain with the appellant, till the petition, pending before Guardian Judge, Jhang, is finally decided on merits after recording the evidence of the parties. It is, however, emphasized here, if the emphasis is at all necessary, that above observations are.with regard to this appeal and this appeal alone and same would have no bearing when the matter would be decided by learned Guardian Judge, Jhang, who is also directed to decide it within six months from receipt of this judgment.

(A.A.) Appeal accepted.

PLJ 2002 SC 242

[Appellate Jurisdiction]

Present: MUHAMMAD BASHIR JEHANGIRI; MUNIR A. SHEIKH AND rana bhagwand as, J J.

M/s. PRIME DAIRIES ICE CREAM LTD. LAHORE-Appellant

versus

COMMISSIONER OF INCOME TAX COMPANIES ZONE-Respondent C.A. Nos. 1936 of 1943 of 2000, decided on 7.11.2001.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 23.9.1999 passed in ITA No. 174 to 181/1997)

Supreme Court Rules, 1980--

—-O.XII, R. 2--Civil Procedure Code (V of 1908), Ss. 109 to 112 & O.XLV, R. 2-Income Tax Ordinance (XXXI of 1979), S. 137»Appeal against judgments of Division Bench of High Court in matters relating to income tax-Mode of filing such appeals-Question of entertainability of such appeals has to be resolved under provisions of C.P.C. treating by fiction of law that judgment under appeal is to be deemed to be a decree of High Court passed in regular civil matter-Person desiring to appeal to Supreme Court would apply by petition to Court whose decree was complained of, for a declaration that the case was fit for appeal to Supreme Court-Such petition in terms of O.XLV of C.P.C. is an important document as the same containing grounds on which certificate was being sought would ultimately be treated as memo of appeal containing grounds for challenging judgment of High Court and has to be transmitted to Supreme Court after completion of other formalities as provided in O.XLV of C.P.C.-Appellants, thus, could not present such appeals directly before Supreme Court-Supreme Court Rules 1980, though have overriding effect qua provisions of C.P.C. but such would be the case only where procedure provided in Supreme Court Rules in respect of appeals was different from the procedure provided under C.P.C-There being no difference in such procedure, provisions of C.P.C. which are apart of Income Tax Ordinance would be applicable-Appeals filed directly by appellants were neither maintainable nor entertainable— Appeals were directed to be returned to appellants—Appellants if so

advised can approach High Court for proceeding further in accordance with provisions of Sections 109 to 112 and O.XLV of C.P.C.

[Pp. 244 to 246] A & B

Mr. Abrar Hussain Naqvi, ASC for Appellant

Mr. M. Ilyas Khan, Sr. ASC and Mr. M. Aslam Chatha, AOR for Respondent.

Date of hearing: 22.10.2001.

judgment

Munir A. Sheikh, J.--By this common judgment, we propose to decide Civil Appeals Nos. 1936 to 1943 of 2000 involving identical questions of law and facts.

1. It has been pointed out by the office that Civil Appeal No. 1936 of 2000 is barred by 196 days whereas each of the other appeals is barred by 207 days.

2. These appeals under Section 137 of the Income Tax Ordinance, 1979 are directed against the judgment dated 23-9-1999 of a Division Bench of the Lahore High Court whereby the appeals filed by the Commissioner, Income Tax/Wealth Tax under Section 136 of the Ordinance against the order of Division Bench of Income Tax Appellate Tribunal, Lahore Bench, Lahore dated 9-9-1997 have been accepted.

3. Learned counsel for the appellants submitted that though in these appeals, legality of judgment dated 23-9-1999 has been challenged but by virtue of Section 137 of the Income Tax Ordinance, appeal against such a judgment lies if the High Court certifies the case to be fit for appeal as such under Order XII Rule 2 of the Supreme Court Rules, period of limitation is to start from the date when the High Court certifies a case to be fit one for appeal. He submitted that on the petition of the appellants made to the High Court for obtaining a certificate of fitness, an order was passed on 30-3-2000 by the said Court that it was a fit case for appeal to this Court Application for obtaining certified copy of the judgment dated 23-9-1999 was made on 9.10.1999. The copy was prepared on 19.10.1999 and delivered to the appellants on 27.10.1999. On the next date i.e. 28-10-2000, they made petition for certificate of fitness on which an order to that effect was passed on 30-3-2000. Application for supply of certified copy of this order was made on the same date and it was delivered to the appellants on 27-4-2000, therefore, according to him, period of limitation is to start from 30-3-2000 and excluding the days spent for obtaining certified copy of the said order, the appeals filed on 10-5-2000 were within the prescribed period of thirty days.

4. The question arises as to whether these appeals which have been filed under Section 137 of the Income Tax Ordinance are governed and regulated by Order XII Rule 2 of the Supreme Court Rules. It is manifest from Order XII ibid that it is applicable to civil appeals under Article 185 (2) (d), (e) and (f) of the Constitution against the judgment of the High Court and in the latter case if the High Court certifies that the case involves a substantial question of law as to interpretation of the Constitution. It is also clear from the examination of the provisions of Order XII ibid as a whole that it governs the appeals preferred to this Court under the provisions of the Constitution itself and not to appeals filed under the ordinary law and other Statutes, therefore, the Statute or the law providing a right of appeal against the judgment of the High Court passed under the said Statute shall have to be examined and if the same provides the mechanism or the procedure for filing such an appeal, the same will have to be followed. Section 137 of the Income Tax Ordinance is reproduced below in extenso for .facility bf ready reference in order to determine its scope and applicability to present appeals:-

"137. Appeal to the Supreme Court.--(l) An appeal shall lie to the Supreme Court from any judgment of the High Court delivered on "a reference made, or any question of law framed" under Section 136 in any case which the High Court certifies to be a fit one for appeal to the Supreme Court.

(2) The provisions of the Code of Civil Procedure, 1908 (V of 1908), relating to the appeal to the Supreme Court shall, so far as may be, apply in the case of appeals under this section in like manner as they apply in the case of appeals from decrees of a High Court.

(3) Where the judgment of the High Court is varied or reserved in appeal under this section, effect shall be given to the order of the Supreme Court in the manner provided in sub-section (5) of Section 136 in the case of a judgment of the High Court.

(4) The provision of Sub-sections (6) and (7) of Section 136 shall apply in the case of an appeal to the Supreme Court made under this section as they apply to a reference made under the said Section 136".

1. It is clear from sub-section (2) of Section 137 of the Ordinance that provisions of the Civil Procedure Code relating to appeals to the Supreme Court against the judgment and decree of the said Court so far as applicable shall apply to appeals under this section. It is also manifest from this provisions of the Ordinance that provisions of the Civil Procedure Code relating to appeals to the Supreme court against the judgment and decree of the High Court shall be deemed to have been incorporated by way of legislation by reference to .regulate the procedure as to filing of appeals, therefore, the question of entertainability of these appeals has to be resolved under the provisions of the Civil Procedure Code treating by fiction of law that the judgment under appeal is to be deemed to be a decree of the High Court passed in a regular civil matter. The relevant provisions in the Civil

Procedure Code relating to appeals to the Supreme Court are contained in Sections 109 to 112 read with Order XLV CPC. According to Rule 2 of Order XLV CPC, in such a case, whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of, for a declaration that the case is fit for appeal to Supreme Court. Order dated 20-3-2000 of the High Court appears to have been passed on such a petition moved by the appellants which must have contained the grounds on which such a certificate was sought. This petition in our opinion keeping in view the provisions of Order XLV as a whole and in particular Rule 8 of the said Order is an important document for itprima facie appears that the same is to be ultimately treated as memo of appeal containing the grounds for challenging the judgment of the High Court and has to be transmitted to this Court after completion of other formalities as provided in this Order, there­fore, the appellants could not present these appeals directly before this Court.

1. Faced with this difficulty, learned counsel for the appellants referred to Section 112 CPC and argued that by virtue of the said provision of the Code, Supreme Court Rules shall override the provisions of the Civil Procedure Code, therefore, these appeals under Rule 2 of Order XII could be directly filed by the appellants before this Court and can be entertained under the said provisions of the rules.

Section 11 CPC read as under:-

"112. Savings.--[(l) Nothing contained in this Code shall be deemed-

(a) to affect the powers of the Supreme Court under Article 191 of the Constitution or any other provisions thereof]; or

(b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.]

(2) Nothing herein contained applies to any matter of criminal or admiralty or vide admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts".

Sub-clause (b) of Section 112 (1) ibid to which reference has been made by learned counsel for the appellants in support of his above mentioned contention though provides that Supreme Court Rules shall have overriding effect quathe provisions of the Civil Procedure Code but the said clause would be attracted only in case it is found that the procedure provided in the Supreme Court Rules in respect of appeals under a Statute where a case is declared to be fit for appeal to this Court under the said Statute is different from the procedure provided by the Civil Procedure Code. We have examined the Supreme Court Rules and find that no provision contrary to the provisions of the Civil Procedure Code from Sections 109 to 112 and Order XLV CPC has been made in these rules for such certificated appeals under ordinary law. This being so, these provisions of the Civil Procedure Code which have been made part of the Income Tax Ordinance through legislation bv reference, as nhsprvprl

be said to have been overridden by the provisions of the Supreme Court Rules. In case the Statute itself does not provide any procedure for filing such appeals, the matter would have been different in which case, this Court could invoke the provisions of the Rules governing similar certificated appeals under the Constitution on ground of similarity but not in a case as is the present one where the Statute itself legislation provided procedure for such an appeal.

1. For the foregoing reasons, these appeals are neither maintainable nor entertainable directly. The office is directed to return the memo of appeals alongwith other documents after retaining copies of the same on record of this Court to the appellants. The appellants, may if so, desire, approach the High Court for proceeding further according to the provisions of Sections 109 to 112 and Order XLV CPC.

2. No order as to costs. (A.A) Order accordingly.

PLJ 2002 SC 246

[Appellate Jurisdiction]

Present: sh. riaz ahmad and javed iqbal, JJ. GHULAM RASOOL and another-Petitioners

versus

GOVERNMENT OF BALOCHISTAN and others-Respondents C.Ps. Nos. 97 & 98-Q of 2000, decided on 26.7.2001.

(On appeal from the judgment dated 14.9.2000 passed by Balochistan Service Tribunal Quetta in Service Appeals Nos. 18 & 19/1991)

West Pakistan Tehsildars and Naib Tehsildars Rules, 1962-

—Rr. 8, 9 & 10-Constitution of Pakistan (1973), Art. 185(3)-Civil Servants-Service terminated during training period-Re-instatement by Review Board without back benefits-Petitioner's claim to seniority from the date when they were selected for training initially, was turned down by Service Tribunal-Legality-Petitioners were although selected for training yet their regular appointment was subject to completion of training successfully-Admittedly, services of petitioners were terminated during training when they were ousted from training, therefore, question of consideration of their seniority does not arise-Petitioners on basis of few month's training could not claim seniority retrospectivey-Seniority could not be determined without reference to continuous appointment in particular grade-Petitioners were not re-instated with retrospective effect, therefore, they cannot claim seniority with retrospective effect-­ Finding of Service Tribunal declining seniority to petitioner with retrospective effect would not warrant interference-Leave to appeal was refused in circumstances. [Pp. 248 & 249] A, B

1986 SCMR 1; 1982 SCMR 897; 1981 SCMR 715; PLD 1980 SC 22; 1976 SCMR 268; 1976 SCMR 262; 1976 SCMR 311 ref.

Mr. Mohsin Javed, ASC and Mr. W.N. Kohli, AOR for Petitione (in C.P. No. 97-Q/2000).

Mr. Basharatullah, Sr. ASC for Petitioner (in C.P. No. 98-Q/2000). Respondent not represented. Date of hearing: 26.7.2001.

ORDER

Javed Iqbal, J.--Two petitions for leave to appeal have been preferred on behalf of Ghulam Rasool and Mir Ali Akbar Mengal against judgment of learned Balochistan Service Tribunal dated 14.9.2000 whereby appeals filed by the petitioners were dismissed. By this common order we propose to dispose the said petitions having arisen out of the common judgment.

1. Briefly stated the facts of the case are that Mr. Ghulam Rasool and Mir Ali Akbar Mengal were selected as Tehsildars on 27.12.1972 and 21.9.1972 respectively. They were sent for training but their services were terminated before completion of the training. After constitution of a Review Board, they preferred representations which were accepted and once again they were sent for training and after completion whereof they were posted as ehsildars with effect from 10-9-1980. Being dissatisfied with their seniority position learned Service Tribunal was approached, but their appeal was dismissed by means of impugned judgment and consequently these petitions for leave to appeal have been filed.

2. It is mainly contended by Mr. Basharatullah, learned Sr. ASC that the impugned judgment is contrary to facts and law because the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is urged emphatically that learned Service Tribunal has erred while holding that seniority of petitioners should be reckoned with effect from 10-9-1980 instead of 27-12-1972 and 21.9.1972, i.e. the dates of induction of the petitioners as Tehsildars. It is also contended that the provisions as enumerated in Rules 8, 9 and 10 of West Pakistan Tehsildars & Naib Tehsildars Rules, 1962 were never considered, but on the contrary a conflicting view has been taken, in contravention of the said Rules by determining the seniority with effect from 10-9-1980 which caused a serious prejudice and ruined the career of petitioners without any rhymeand reason. It is also pointed out the after their reinstatement by the Review Board there is no lawful justification whatsoever to determine the seniority of the petitioners with effect from 10-9-1980 and it should have been fixed with retrospective effect, i.e., the date of their induction in service. It is pointed out that the order passed by learned Review Board has been misinterpreted and misconstrued because only the monetary benefits could have been withheld in view of the order passed by learned Review Board which was quite clear regarding the position of petitioners in so far as their seniority vis-a-vistheir other colleagues is concerned and no embargo whatsoever has been imposed by virtue of the said order that the petitioners cannot claim their seniority with retrospective effect.

4.' Mr. Mohsin Javed, learned ASC appeared on behalf of Mr. Ghulam Rasool and adopted the arguments as adduced by Mr. Basharatullah, learned Sr. ASC.

1. It is worth while to mention here that there is a complete similarity in factual and legal aspects of the case. It is, however, to be noted that one additional factor was also pressed into service by Mr. Basharatullah on behalf of Mir Ali Akbar Mengal by arguing that a representation was preferred by Mir Ali Akbar Mengal which was accepted by the then Chief Minister with specific direction that seniority of the petitioners be fixed with retrospective effect, i.e. 21.9.1972.

2. We have carefully examined the respective contentions as agitated on behalf of the petitioners in the light of the relevant provisions of law and record of the case. We have minutely perused the impugned judgment. The ease of the petitioners is that their seniority should be reckoned from 27.12.1972 and 21.9.1972, i.e. the dates of their initial recruitment as Tehsildars because they were re-instated by the Review Board and accordingly the intervening period cold have been treated as leave without pay. It is also the case of petitioners that they cannot be deprived from their seniority which is to be fixed with retrospective effect after their re-instatement by the Review Board. A careful examination of the entire record would reveal that Mr. Ghulam Rasool was selected as Tehsildar on 23.12.1972 but his regular appointment as Tehsildarwas subject to the A completion of training successfully. This condition was also applicable to Mr. Mir Ali Akbar Meganl who was selected as Tehsildaron 21.9.1972. It is an admitted feature of the case that their services were terminated on 30.5.1973 during training and they were ousted from service and hence the question of consideration of their seniority from 27.12.1972 and 22.12.1972 does not arise. Had the training been completed successfully the position would have been different. It'would be pertinent to mention here that they had remained as "trainees" for a few months. The order dated 12-10-1978 passed by Member-I Board of Revenue Balochistan is indicative of the fact that Mir Ali Akbar Mengal had remained as "trainee" from November, 1972 to May, 1973 (six months) while Mr. Ghulam Rasool had enjoyed the status of trainee with effect from January, 1973 to May, 1973 (four months). They were re-instated vide order dated 2.10.1978 and on the basis of a few months, training how their seniority could have been determined retrospectively. In our considered view conferment of seniority with retrospective effect cannot be done unless such right is established. The

petitioners have failed miserably to establish such a right on the basis whereof their seniority could be determined retrospectively. "It is well settled by now that seniority cannot be determined without reference to continuous appointment in a particular grade." Admittedly their services were dis­continued with effect from 30-5-1973 and it is also in admitted feature of the case that they cold not complete their training and remained outsed form Service till 1978. There is no denying the fact that they were re-instated by the Review Board vide order dated 20.10.1978 wherein it has been clarified categorically that no back benefits would be given and it was a re­instatement simplicitor without any sort of back benefits. The order dated 20.10.1978 was neither further assailed nor any review was made to get the back benefits inserted which does not mean financial benefits alone, but also include seniority which is the real benefit. It can thus simply be inferred that the order of Review Board was accepted as it is and now it is too late to get it modified by making any deletion, addition, insertion or amendment as a specific task was assigned to Review Board and after its accomplishment it is no more available to do the needful. Admittedly the petitioner had remained out of service during 1973 to 1978 having no concern whatsoever with the cadre of Tehsildar and the said period was never taken into consideration by the Review Board and the petitioners could have been treated on duty by granting extra ordinary leave without pay. It was not an accidental omission but a deliberate and calculated action of the Review Bored which by now has attained finality and thus the petitioner cannot claim any benefit for the intervening period.

1. Mr. Basharatullah, learned Sr. ASC has laid down much stress on the order of Chief Minister whereby representation of Mir Ali Akbar Mengal was accepted with the direction that his seniority should be determined retrospectively, but Mr. Basharatullah learned ASC cold not meet the objection that how any benefit could be claim on the basis of a "non xistent" order as it was withdrawn by the then Chief Minister on 15.6.1991 being contrary to the relevant rules. Mir. Ali Akbar Mengal had approached the Chief Minster directly and his representation was never routed through Board of Revenue and thus it amounts to serous mis-conduct on his part. Be as it may no importance can be given to the order passed by the then Chief Minister which was subsequently withdrawn and rightly so as it had been passed earlier in an arbitrary and whimsical manner without knowing the factual position and without having the comments of the Board,of Revenue.

2. We have also examined the order dated 27.12.1972 passed by Bored of Revenue concerning the appointment of petitioners which is re­ produced herein below for ready reference.

"ORDER BY THE MEMBER. BOARD OF REVENUE. BALOCHISTAN (Administrative Branch)

Dated Quetta, the 27th December, 1972.

No. 10925/66/Admn-l/7 (II). M/S Guhlam Rasool son of Mir Karim Baksh caste Raisani resident of Dhahdar (Karachi Distt) and Muhammad Nasir son of Nek Muhammad caste Mengal resident of Wadh (Kalat District) are hereby accepted as direct Tehsildar.They will undergo necessary training as prescribed in the West Pakistan Tehsildari and Naib Tehsildari Departmental Examination & Training Rules, 1969 against the newly created two posts of Tehsildars for Settlement training during the current financial year, 1972-73;

1. During the training period, they will be entitled such pay and allowances as admissible under Rules. They are required to undergo the training and to pass the Departmental Examination of Tehsildars, within the period of their training as specified in the above Rules.

2. On successful completion of training and passing the Departmental Examination they should be declared as qualified to hold the post of Tehsildar. Thereafter on the availability of a vacancy they will be posted as officiating Tehsildar.

3. Before joining training they are required to:-

4. Appear before the Medical Board for Medical Examination.

5. Produce certificates of Character from a First Class Magistrate.

Sd./-CAPT. SALEH MOHAMMAD KHAN, PCS MEMBER Board of Revenue, Balochistan."

1. A careful perusal of the said order would reveal as follows:-

(a) The petitioners were neither appointed as Tehsildar nor posted as such but only their candidature as Tehsildar was accepted;

(b) They were required to undergo necessary training as prescribed .in the West Pakistan Tehsildar and Naib Tehsildar fter successful completion of training and passing departmental examination they .could claim the post of Tehsildar;

(c)Even after the completion of training their postings as Tehsildar was subject to availability of posts.

On the basis of above mentioned order it can be said safely that the petitioners were neither appointed nor posted as .Tehsildar, but only accepted as a candidate for the post of Tehsildar.

1. We have not persuaded to agree with Mr. Basharatullah, learned Sr. ASC that no embargo whatsoever had been placed regarding conferment of seniority with retrospective effect by Review Board for the simple reason that order dated 2.10.1978 is free from any ambiguity and it is implicit that the petitioners were re-instated in service with immediate effect with specific direction that their re-instatement shall not entitle the petitioners to any damages, compensation or arrears of emoluments or other benefits for the period they remained out of service. Had they been re­ instated with retrospective effect it could have been mentioned in the said order and accordingly no seniority could have been conferred retrospectively in view of the order passed by Board of Revenue and as discussed herein above.

2. In our considered view the learned Service Tribunal after an in depth scrutiny of entire record has dismissed the appeals preferred on behalf of the respondents and its findings being un-exceptionable do not warrant any interference. It is worth mentioning that leave to appeal can only be granted by this Court if the case involves a substantial point of law and public importance. In this regard we are fortified by the dictum laid down in Karamat Hussain v. Province of the Punjab (1982 SCMR 897), Miss Razia Sultana v. Government of Punjab (1981 SCMR 715), M. Yasmin Qureshi v. Islamic Republic of Pakistan (PLD 1980 SC 22). Irtiqa Rasool Hashmi v. WAPDA (1980 SCMR 722), Dilbar Hussain v. Province of Punjab (1980 SCMR 148), Dilbar Hussain Siddiqi v. Additional Settlement & Rehabilitation. Commissioner, Peshawar (1976 SCMR 268), Muhammad Azhar Khan v. The Service Tribunal Islamabad (1976 SCMR 262), M.A. Majid v. Government of Pakistan(1976 SCMR 311). No substantial point of law is involved in the matter. The findings of Service Tribunal being the findings of fact do not warrant any interference by this Court. If any authority is needed "Mohammad Azam v. Chief Irrigation (1991 SCMR 255)" can be referred.

3. We have also perused the judgment of Balochistan Service Tribunal (Appeal No. 02/1981) dated 20.5.1984 which cannot be made applicable as the facts are quite distinguishable. It is noteworthy that neither the service of the petitioners in the above un-reported judgment was terminated from serviee nor any reinstatement order was ever passed by the Review Board. In such view of the matter the question of interpretation of service rules would be nothing but an academic exercise and would have no bearing on merits of the case.

4. In the light of foregoing discussion the petitions being devoid of merits are dismissed.

(A.A.) Leave refused

PLJ 2002 SC 252

[Appellate Jurisdiction]

Present: nazim hussain siddiqui and javed iqbal, JJ.

JAVED IQBAL KHAN .DIRECTOR PLANNING, (FEE GI FUNDS), ISLAMABAD-Petitioner

versus

FEDERAL EMPLOYEES BENEVOLENT & GROUP INSURANCE FUNDS through its Managing Director, Islamabad and two others-Respondents

C.P. No. 1976 of 2000, decided on 8.10.2001.

(On appeal from the judgment dated 26.10.2000 of Federal Service Tribunal, Islamabad passed in Appeal No. 88 (R)/C.E./2000)

Civil Servants (Seniority) Rules, 1993--

—R. 3--Constitution of Pakistan (1973), Art. 185(3)--Civil Servant Seniority-Petitioner having been promoted in B-18, voluntarily forfeited his right for promotion and claimed another post in B-18 but his request was not conceded-Respondent was promoted to the post for which petitioner had applied and when seniority list was prepared and circulated, respondent was shown senior to petitioner whereupon petitioner filed Departmental appeal which was rejected as also his appeal before Service Tribunal-Validity-Petitioner having forfeited his right of promotion by not joining the post in B-18, such fact takes away his case from sub-Rules (b) and (c) of R. 3 of Civil Servants (Seniority) Rules 1993-Petititiner's case was neither governed by the expression "beyond control" as used in R. 3(c) nor his case was that of deferment-Petitioner, thus, is not to be deemed as senior to respondent-Judgment of Service Tribunal being in accordance with Rules was not open to interference Leave to appeal was refused in circumstances. [P. 254] A

Hafiz S.A Rehman, Senior ASC with Mehr Khan Malik, AOR for Petitioner.

Nemo for Respondents. Date of hearing: 8.10.2001.

judgment

Nazim Hussain Siddiqui, J.-Petitioner, Javed Iqbal, Khah, has impugned judgment dated 26-10-2000 of learned Federal Service Tribunal, Islamabad, whereby Appeal No. 88 (R)/C.E./2000 filed by him was dismissed, as being time barred and on merits as well.

1. The facts relevant for decision of this petition are that the petitioner joined the respondents department as Assistant Director Statistics (B-17) on 25-10-1982 after his selection in prescribed manner. It was a

Technical post and the petitioner, through an application dated 16-1-1995, requested the respondents for consideration of his case for promotion as Director B-18 in Statistics Section and for this purpose conveyed his willingness to forgo his promotion as Director Regional Board, Lahore (a post of B-18 in general cadre). On 14-3-1995 the petitioner repeated another application for the same purpose. The post of Director Planning (B-18) was created on 24-5-1995 by abolishing the post of Assistant Director, Statistics. The case of the petitioner for promotion to the newly created post was not referred to the DPC, although the case of Respondent No. 3 Mr. Muhammad Nazir for promotion as Director, Regional Board was processed at that time and he was promoted, as such, on 28-6-1995.

1. In the Seniority List dated 15-10-1997, the petitioner was shown senior to the Respondent No. 3 and a revised seniority list was circulated on 19-6-1998, whereby the officers were categorised into technical and non­ technical cadres. The petitioner's request was for antedating his promotion as Director Planning as per his applications dated 14-5-1999 and 5-7-1999 was turned down on 6-12-1999 and Respondent No. 3 was declared senior to him against which he preferred departmental appeal, which was dismissed on 3-3-2000. Being aggrieved against above order, he filed appeal before the Federal Service Tribunal, but the same was dismissed by the judgment, which has been impugned in this petition.

2. The departmental appeal was filed by the petitioner on 22-12-1999, which was time barred by 3^ years.

3. Learned counsel for the petitioner before us confined his arguments to the extent that letter dated 6-12-1999 of Federal Employees Benevolent and Group Insurance Funds Establishment Division and letter dated 30-11-1999 of Government of Pakistan, Cabinet Secretariat, Establishment Division, be struck down, as they affect his seniority. The former states "Voluntary forfeiture of right for promotion is not a case of 'deferment'". The latter is also in terms of the former.

4. sub-section (4) of Section 8 of Civil Servants Act of 1973 on the point of Seniority is as follows:-

"(4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appoint to that post."

1. Rule 3 of Civil Servants (Seniority) Rules, 1993 reads as under: - "3. Seniority on pro motion.—Seniority in a service cadre or post to which a civil servant is promoted shall take effect from the date of regular promotion to that service, cadre or posts:" Provided that :--

(a) Civil servants selected for promotion to higher posts on an earlier date shall be senior to those selected for such promotion on a later date;

(b) Civil Servants selected for promotion to higher posts in one batch shall on their promotion to the higher post, retain their inter se seniority as in the lower post; and

(c) Civil servants eligible for promotion who could not be considered for promotion in the original reference in circumstances beyond their control or whose case was eferred while their juniors were promote to the higher post, shall, on promotion, without super session, take their seniority with the original batch."

1. It is noted that the petitioner was promoted on 3-10-1995 and the respondent on 28-6-1995. The general rule is that a Civil Servant promoted to higher post on an earlier date shall be senior to those who were promoted later on. Exception to this rule is provided in sub rules Ob) and (c) of Rule 3 and none of these sub rules is attracted to the facts of the instant case. The petitioner, at his own, opted for his promotion as Director Statistics and this fact takes away his case from the ambit of aforesaid sub-rules. Neither his . case was governed by the expression "beyond control" and nor it was of

deferment. Striking down aforesaid letters would mean to declare thepetitioner senior to Respondent No. 3, which the former is not entitled. Thejudgment of the Tribunal is in accordance with the rules and is not open toany criticism, nor any interference is warranted.9. Inconsequence, leave to appeal is refused and the petition is dismissed.

(A.A.) Leave refused.

PLJ 2002 SC 261

[Appellate Jurisdiction]

Present: munir A. sheikh, rana bhagwandas and javed iqbal, JJ.

CHINA ANNANG CONSTRUCTION CORPORATION through its Project

Manger-Appellant

versus

K.A. CONSTRUCTION Co. through its Attorney-Respondent C.A. Nos. 1462 & 1463 of 1999, decided on 4.6.2001.

(On appeal from the judgment dated 5.11.1999 of the High Court of Balochistan Quetta passed in RFA Nos. 2 and 3 of 1999)

Companies Ordinance, 1984 (XLVII of 1984)--

—Ss. 451 & 452--Constitution of Pakistan (1973), Art. 185-Disniissal of suit for non-compliance with provisions of Ss. 451 and 452 of Companies Ordinance, 1984-Foreign company has not been bound down by any provision of Companies Ordinance, 1984, to establish in Pakistan its place of business—When such company has established place of business in Pakistan, only then, provisions of Section 451 and 452 would be applicable and compliance with such provisions would be imperative failing which foreign company would incur disability to file any legal proceedings by way a suit or take defence by way of counter claim in respect of any contract executed by it-Appellant company having not established place of business in Pakistan on permanent basis, compliance of provisions of Ss. 451 and 452 of Companies Ordinance 1984 was not necessary for it to file suit-Objection to maintainability of such having not been raised in suit, defendant would be deemed to have impliedly accepted legal position that provisions of Ss. 451 and 452 of Companies Ordinance, 1984, were not attracted because of appellant having not established place of business in Pakistan—Resolution and power of attorney executed in favour of person filing suit on behalf of company would indicate that he had been empowered to file suit on behalf of plaintiff company—Finding of High Court dismissing plaintiffs suit was set aside and case wa remanded to High Court for decision afresh on merits in accordance with law. [Pp. 267 & 268] A, B & C

Black's Law Dictionary (6th Ed); Legal Thesaurus by William C Burton; Ballentine's Law Dictionary ref.

Mr. BalalA. Khawqja, ASC and Mr. Af.A Zaidi,AOR for Appellant Mr. Basharatullah,Sr. ASC for Respondent. Date of hearing: 4.6.2001.

judgment

Munir A. Sheikh, J.-By this consolidated judgment, we propose to decide Civil Appeals Nos. 1462 and 1463 of 1999, as questions of law and fats are common in both of them.

1. These appeals by leave of the Court are directed against the consolidated judgment dated 5-11-1999 of the High Court of Balochistan Quetta whereby RFA Nos. 2 and 3 of 1999 filed by the appellant-Corporation against the judgments and decrees passed by the trial Court in two suits one filed by it and the other by the respondent-company have been dismissed on the ground that on account of having not complied with the provisions of Sections 451 and 452 of the Companies Ordinance, 1984, the appellant- corporation was debarred from initiating any legal proceedings to enforce rights arising from the contract and that the appeals had been filed by a person not authorized to do so.

2. The facts of the case are that the appellant which is a foreign- corporation was given contract of Project No. 6-B consisting construction of (1) Jhat Pat main drain (2) Mohbatpur Main Drain (3) Mohbatpur Waste way (4) Road Main Drain and (5) Temple Main Drain. The appellant- corporation through sub contract employed the services of respondent- company. A dispute arose between the appellant-corporation and respondent-company as regards contract in respect of the said project, therefore, the appellant-corporation filed a suit against the respondent-' company for the recovery of Rs. 2,56,93,492/24 whereas the respondent- company filed a suit for the recovery of Rs. 1,38,52,Q53/- against thi. appellant-corporation. Issues in each suit were separately framed by the trial Court. As is evident from the judgment of the trial Court, the appellant corporation made an application that the suit filed by it should be consolidated with the suit filed by the respondent-company which was not objected, to, therefore, the said application was accepted through order dated 15-8-1998 and both the suits were consolidated and ultimately decided through consolidated judgment dated 5-11-1998. The suit filed by the respondent/company was decreed whereas the other filed by the appellant^ corporation dismissed. Feeling aggrieved, the appellant-corporation filed two RFA Nos. 2 and 3 of 1999 which have been dismissed through the impugned judgment dated 5-11-1999 by a Division Bench of the High Court of Balochistan Quetta against which these appeals by leave have been directed.

3. Since both the appeals have been dismissed by the High Court on the above mentioned technical grounds, therefore, we need not dilate upon the merits of the case. An objection was raised by the respondent-company

to the competency and maintainability of both the appeals at the time of final hearing on the following grounds:- .

(a) The appellant-forcing corporation having not complied with the provisions of Sections 451 and 452 of the Companies Ordinance, 1984 though it had a place of business at Dera Allahyar having established a site office therein, in that it did not deliver the required documents to the joint Registrar of Companies, as such, by operation of Section 456 of the said Ordinance, though validity of contract entered into by the said corporation had not been adversely affected but it was debarred from filing any suit or raising any counter claim or initiating any other legal proceedings in respect of the said contract;

(b) That the appeals had not been filed by a duly authorized person, therefore, were liable to be dismissed.

1. In order to appreciate the first mentioned objection, it would be appropriate to reproduce in extenso Sections 451, 452 and 456 of the Companies Ordinance, 1984 for ready reference:-

"451. Document to be delivered to registrar by foreign companies.--(1) Every foreign company which, after the commencement of this Ordinance, establishes a place of business in Pakistan shall within thirty days of the establishment of the place of business, deliver to

the registrar-

(a) a certified copy of the charter^ statute or memorandum articles of the company or other instrument constituting or defining the constitution of the company, and if the instrument is not written in the English or Urdu language, a certified transaction thereof in the English or Urdu language;

(b) the full address of the registered or principal office of thecompany;

(c) a list of the directions, chief executive and secretaries (if any) of the company;

(d) a return showing the full present and former names and surnames, father's name or, in the case of a married woman or widow, the name of her husband or deceased husband, present and former nationality, designation and full address in Pakistan of the principal officer of the company in Pakistan by whatever name called;

(e) the full present and former names and surnames, father's name or, in case of married woman or widow, the name of thehusband or deceased husband, present and former nationality, occupation and full addresses of some one or more persons resident in Pakistan authorized to accept on behalf of the company service of process and any notice or other document required to be served on the company together with his consent to do so; and

(f) the full address of that office of the company in Pakistan which is to be deemed its principal place of business in Pakistan of the company.

(2) "The list referred to in clause ® of sub-section (1) shall contain the following particulars, that is to say.-

(a) with respect to each director,--

(i) in the case of an individual, his present and former name and surname in full, his usual residential address, his nationality, and if that nationality is not the nationality of origin, his nationality of origin, and his business occupation, if any, and any other directionship which he holds;

(ii) in the case of a body corporate, its corporate name and registered or principal office; and the fall name, address, nationality and nationality of origin, if different from that nationality, or each of its directors;

(b) with respect to the secretary, or where there is joint secretariat with respect to each of them—

(i) in the case of an individual, his present and former name and surname, and his usual residential address;

(ii) in the case of a body corporate, its corporate name and registered or principal office :

Provided that, where all the partners in a firm are joint secretaries of the company, the name and principal office of the firm may be stated instead of the particulars mentioned in clause (b).

(i) Every foreign company, other than a company mentioned in sub-section (1) shall, if it has not delivered to the registrar before the commencement of this Ordinance the documents and particulars specified in Section 277 of the Companies Act, 1913 (VII of 1913), shall continue to be subject to the obligation to deliver those documents and particulars and be liable to penalties in accordance with the provisions of that Act.

1. Return to be delivered to registrar by foreign companies whose documents etc., altered.-lt any alteration is made or occurs in-

(a) the charter, statute or memorandum and articles of a foreign company or any such instrument as is referred to in Section 451;

(b) the address of the registered or principal office of the company;

(c) the directors, chief executive or secretaries or ia the particulars contained in the list referred to in Section 451;

(d) the principal office referred to in Section 451;

(e) the name or addresses or other particulars of the persons authorized to accept service of process, notices and other documents on behalf of the company as referred to in the preceding Section 451; or

(f) the principal place of business of the company in Pakistan;

the company, shall, within thirty days of the alteration, deliver to the registrar for registration a return containing the prescribed particulars of the alteration and in the case of change in persons authorized to accept service of process, notices and other documents on behalf of the company, a!so his consent to do so.

1. Company's failure to comply with this part not to affect its liability under contracts, etc.--Any failure by a foreign company to comply with any of the requirements cf Section 451 or Section 452 shall not affect the validity of any contract, dealing or transaction entered into by the company or its liability to be sued in respect thereof; but the company shall not be entitled to bring any suit, claim any set off, make any counter claim or institute any legal proceeding in respect of any such contract, dealing or transaction, until it has complied with the provisions of Section 451 and Section 452".

2. Since the legal consequences of non-compliance of the provisions of Sections 451 and 452 of the Companies Ordinance by operation of Section 456 thereof are far reaching i.e., the company responsible for this non-compliance is debarred from seeking any legal remedy either by way of defence as counter claim or by filing suit in respect of any contact entered into between the said company and the others without adversely affecting the legality of the contract itself which means the adversary party would be fully competent in such a case to enforce its right and the defaulting company rendered defenceless, therefore, it is necessary according to well settled principals of interpretation of such a provision that the same be

construed very strictly and unless the Court finds that the case of defaulting company strictly falls within the scope of such a provisions, the same would not be applied in a given case.

1. Keeping in view this principal of interpretation, we proceed to examine minutely the provisions of Sections 451 and 452 of the Companies Ordinance. It is clear from these provisions that, the same are applicable only here a Foreign Company chooses to establish place of business in Pakistan and not otherwise. The expression "establish" has not been defined in the Companies Ordinance whereas the expression "place of business" has been defined in Section 460 thereof. Learned Judges of the High Court as is clear from the impugned judgment laid emphasis mainly on the expression "place of business" and after considering the meaning of the said expression as given in Section 460 ® of the Companies Ordinance, it was held that merely by maintaining a premises at the spot which was called as site office by the appellant-corporation, the corporation shall be deemed to have established place of business in Pakistan, therefore, its case fell within the mischief of Sections 451, 452 and 456 of the Ordinance. The expression "place of business" in preceded by the use of the word "established" in the relevant provisions, therefore, the Court is required to give meaning to this expression before provisions of Sections 451, 452 and 456 of the Ordinance were held to be attracted. The use of the expression "established" by law is veiy significant and has to be construed strictly before debarring Foreign Company from enforcing its legal right under the contract.

2. We have already observed that the word or the expression "established" has not been defined in the Companies Ordinance, therefore, the meaning assigned to the said expression in the Law Dictionaries are to be looked into and considered. Learned counsel for the appellant-corporation has referred to the meaning of the expression "established" as given in Black's Law Dictionary Sixth Edition which defines the expression "established" as under;-

"(1) The settle firmly, to fix unalterably; to settle, make or fix firmly; place on a permanent footing".

He also referred to the meaning of the said expression assigned in Legal Thesaurus by William C. Burton which defines the expression, established" as under:-

"Cause to endure, confirmare, fix deeply, fix permanently, implant firmly, ingrain, make durable, make firm, make lasting, make permanent, make stable, make steadfast, perpetuate, plant, put on a firm basis."

In Ballentine's Law Dictionary, the said expression has been assigned the following meaning:-

"To originate, to create, to found and set up; to put in a settled or efficient state or condition" and the expression "established business" has been given the meaning as a business which has an element of fixity and permanence."

1. Learned counsel for the appellant relying upon the definition of the expression "established" referred to above maintained that unless it was proved that Foreign Company had established a place of business of permanent nature in Pakistan, the case of such company would not fall within the mischief of the provisions of Sections 451 and 452 of the Companies Ordinance. It was argued that merely because a foreign company had set up premises at the site of the project for the purposes of supervising and looking after the execution of the work at the said project and for establishing contact with it at that place which is temporary in nature, the company could not in any manner be held to have established a place of business in Pakistan as contemplated by the said provisions of law.

2. The argument when examined in relation to the provisions of Sections 451, 452 and 456 of the Companies Ordinance is found to be of considerable force. It may be mentioned here that a Foreign Company ha not been bound down by any provision of the Companies Ordinance to establish in Pakistan a place of business. It is only when such a company decides to establish place of business in Pakistan that it is required to comply with the provisions of Sections 451 & 452 of the Companies Ordinance, 198 and submit documents mentioned therein to the Registrar failing which it would incur the disability to file any legal proceedings by way of suit or take a defence by way of counter claim in respect of any contract executed by it. There is nothing on the record that the appellant-corporation within the contemplation of the meaning of the expression "established" as discussed above had established place of business in Pakistan, therefore, its case did not fall within the mischief of these provisions as such it was not debarred from seeking legal remedies by filings suit and taking plea in defence of counter claim, as such, the finding of the High Court are not sustainable.

3. Independent from the meaning assigned to the words "established" as discussed above in the Law Dictionaries, the view expressed hereinbefore that the word "establish" means establishment of a business of permanent nature gets support from the provisions of Sections 451 and 452 of the Ordinance themselves, for the .nature of information which is required to be provided to the Joint Registrar of the Companies is indicative by itself that those provisions were applicable to such a foreign company which had established place of business in Pakistan on permanent basis. Clause (f) of Section 451 of the Ordinance which is reproduced below has placed the matter beyond any shadow of doubt that these provisions were intended to be applicable only in the case of those foreign companies who had established lace of business in Pakistan on permanent basis, for if it was not so, therewas no necessity to have required such a company to indicate such an information

"(f) the full address of that office of the company in Pakistan which is to be deemed its principal place of business ia Pakistan of the company."

The expression "Principal" place of business" used in this case as distinguished from other places of business is indicative of the fact that the company had established place of business on permanent basis and not otherwise.

1. In the suit filed by the appellant-company which was consolidated as observed above with the suit ,of the respondent, the respondent did not raise any objection before the trial Court in the written statement that the appellant-company was debarred form filing the said suit It was only in appeal filed by the appellant-company before the High Court that such an objection were raised.

2. Mr. Basharatullah, learned counsel for the respondent-company when asked as to how the respondent could maintain the said objection at that stage stated that in the suit filed by the said respondent against the appellant-company, such an objection could not be raised, for the same had been decided in favour of the respondent and an objection raised in the appeal file by appellant-company against the said judgment and decree shall be deemed to have been raised at proper time and stage, for the institution of the appeal could be objected to on the basis of these provisions of tha Companies Ordinance. As to why such an objection was not raised in the suit filed by the appellant-company against the respondent, there is no answer. Both the suits were consolidated and decided by a consolidated judgment. The plea of attack made by the appellant-company in its suit was a plea of defence or counter claim in the suit filed by the respondent against the appellant-company, therefore, the objection as to maintainability of the suit filed by the appellant-company and counter claim should have been raised at the first opportunity before the trial Court which was not done, therefore, the respondent shall be deemed to have impliedly accepted the legal position that these provisions of the Company Ordinance were not attracted because of appellant-company having not established a place of business in Pakistan within the contemplation of the said expression in law

as noted above. It may be mentioned here that such an objection is required to be raised at the earliest so that the plea of fact so raised could be met with by the adversely by producing evidence that no place of business had been established within the meaning of the said expression in Pakistan by the appellant-company.

.14. The next question which falls for consideration is whether the appeals before the High Court were filed by duly authorized person on behalf of the appellant-company. The memo of appeals before the High Court were

signed by Mr. He Yi and the question arose whether he was duly authorized by the appellant-company to institute the said appeals. The learned Judges of the High Court decided this question mostly on the basis of para 4.20 of the Memorandum of the appellant-company whereas in our view, the decision of the question whether Mr. He Yi held the authority to file the appeals, should have been made taking into consideration all the materials and documents available on the record and not in isolation of any of them to the exclusion of the other. The power of attorney dated 20-2-1993 given to Mr. He Yi reads as under:-"Power of Attorney The undersigned:

Mr. He Yi, The President of China Annang Construction Corporation, People's Republic of China, authorize Mr. Duan Songlin to be true and lawful attorney and hereby authorize the said attorney to conduct all matters relating the tender of projects, operating the business and signing the contract in Pakistan.

China Annang Construction Corporation.

President

Sd/-February 20,1993".

The Resolution passed by the Execution Committee of the appellant-coporation (which is equivalent of the Board of Directors according to Pakistani-Laws) dated February 10,1993 in pursuance of which the President of the appellant-company had executed the said power of attorney reads as under:-

"The President of the Corporation is hereby authorized to appoint Mr. Daun Songlin as attorney for the Corporation's Business in Pakistan. Such attorney shall be given authority to conduct all matters relating to the business such as signing of the tenders, receiving and signing documents, conducting the affairs on the projects awarded to the Corporation and representing and acting for the Corporation before the Employer and Consultants and dealing in all legal matters involving the Corporation".

1. The case of the respondent company before the High Court was that according to law, it was the resolution of the Board of Directors which was necessary to constitute a duly authorized agent or attorney of the company for the institution of legal proceedings in support of which judgment in the case of Friendship Textile Mills (Pvt.) Ltd. and others versus Government of Balochistan through Secretary, Local Government and Rural Develooment Ouetta and others (1998 CLC 1767) was relied. In this view of

the matter, it was primarily the resolution passed by the Executive Committee of CACC in pursuance of which the President of the appellant-company executed power of attorney which was relevant to ascertain whether the attorney was duly authorized to institute legal proceedings on behalf of the company and not the power of attorney itself in isolation in which if any of the matters mentioned in the resolution was missing, reference to resolution itself was necessary. In our view, if the resolution and the power of attorney executed in favour of Mr. He. Yi are read together, it is plainly clear that he was authorized by the company to deal in all the legal matters involving the corporation which certainly included the institution of the legal proceedings, for the expression legal matters in the resolution would become redundant. An intention had been unimbiguously expressed by the resolution of the appellant-company that the attorney shall have the power to institute legal proceedings, therefore, the appeals were validly filed by Mr. He. Yi, attorney who was fully empowered to do so and the findings of the High Court are not sustainable.

1. For the foregoing reasons, both these appeals are accepted, judgment dated 5-11-1999 of the Balochiston High Court is set aside and the cases are remanded to the said Court for decision of the appeals on merits in accordance with law.

2. There will be, however, no order as to costs.

(A.A.) Appeal accepted.

PLJ 2002 SC 270

[Appellate Jurisdiction]

Present: iftikhar muhammad chaudhry and hamid ali mirza, JJ. Mst. ANWAR BIBI and others-Petitioners

versus

ABDUL HAMEED-Respondent C.P. No. 2515 of 2001, decided on 17.9.2001.

(On appeal from the judgment dated 13.8.2001 passed by the Lahore High Court, Rawalpindi Bench in C.R. No. 264-D/1991)

Limitation Act, 1908 (IX of 1908)-

—Arts. 120 & 144--Constitution of Pakistan (1973), Art. 185(3)-Suit filed by plaintiff after confirmation of his right to property in question, for removal of structure built after confirmation of his right by Supreme Court, was not barred by time either in terms of Art. 120 and Art. 144 of the Limitation Act-Plaintiffs plea that first suit having been withdrawn by plaintiff to file fresh suit and the same filed within 6 years on different cause of action was also not barred by limitation was justified—Provision of Art. 14 of Limitation Act, 1908, however, would not applicable in as much as, first suit was not withdrawn on ground of defect of jurisdiction or other cause of like nature-Settlement Commissioner as also High Court's interference in concurrent findings of Courts below was justified in as much as, question of limitation decided by courts below was not based on material on record—Findings of High Court are correct and based on material on record would not justify interference-Leave to appeal was refused in circumstances. [P. ] A, B, C, D, E & F

PLD 1964 SC 520; (1886) 12 MIA 244; ILR Cal. 775 (P.C); AIR 1970 SC 987;

ILR 29 Bom. 219; ILR 1939 Mad. 936; AIR 1928 All 402; 2000 SCMR 346;

1997 SCMR 1139; 1984 SCMR 504 ref.

Raja Muhammad Ibrahim Satti, ASC and M.A Zaidi, AOR for Petitioners.

Nemo for Respondent. Date of hearing: 17.9.2001.

judgment

Hamid Ali Mirza, J.-This civil petition for leave to appeal is directed against the judgment dated 13.8.2001 in civil Revision No. 264-D of 1991 passed by the Lahore High Court, Rawalpindi Bench whereby judgments and decrees dated 4.11.1989 and 30.3.1991 passed by learned Civil Judge, Attock and of Additional District Judge Attack respectively were reversed and the revision petition was allowed.

Brief facts of the case are that Ghulam Sarwar, predecessor-in-interest of the petitioners was transferred Shops No. B.IX/3-B and C at Campbellpur while the respondent Abdul Hameed was transferred House No. B.IX/3-A of same building by the Settlement Authorities. The respondent applied before the Additional Settlement Commissioner for the transfer of the shops as well on the ground that the property was one unit but his application was rejected on 14.12.1964 against which order he preferred an appeal wherein he took the plea that in case shops could not be transferred to him then since he was using roof of the said shops as courtyard of his house consequently his right in that behalf be secured. The said appeal was pending before the Settlement Authorities the respondent Abdul Hameed on 17.4.1964 also filed a Suit No. 178/603 of 1964 against said Ghulam Sarwar predecessor-in-interest of the petitioners seeking the permanent injunction restraining said Ghulam Sarwar from blocking respondent's right of way to a latrine constructed over the roof of his house, flow of water from the said roof towards the pernala and access of light and air by raising of any construction on his shops. The said suit was pending when the appeal filed by the respondent was allowed by the Settlement Commissioner as per order dated 17.5.1965 whereby his request for transfer of shops was rejected but his right to the use of roof over the said shops as courtyard was held to

remain undisturbed. Meanwhile the said suit filed by the respondent Abdul Hameed was dismissed on 2.12.1971 by the learned Senior Civil Judge Campbellpur against this judgment and decree Appeal No. 1 of 1972 was preferred and during pendency of appeal the said respondent Abdul Hameed made prayer for withdrawal of suit with permission to file a fresh suit. The prayer was not objected to by the said Ghulam Sarwar predecessor-in-interest of the petitioners consequently withdrawal of the suit with permission to file fresh suit was allowed by the learned District Judge Campbellpur on 10.1.1973.

Petitioners' predecessor, Ghulam Sarwar challenged the order dated 17.5.1965 passed by the Settlement Commissioner through the writ Petition No. 764-R/65 in the High Court, West Pakistan at Lahore. The petition was dismissed by the learned Judge in Chambers on 6.5.1969 with an observation that undertaking was given by the respondent Abdul Hameed that he would not raise any new construction on the roof of the shops. Against the said judgment of learned Judge in Chambers LPA No. 193 of 1970 was filed by late Ghulam Sarwar which was dismissed by learned Division Bench of Lahore High Court on 18.11.1971 against which C.A. No. 61/1974 was filed in this Court which too was dismissed in default on 22.11.1983. Against the said order of dismissal in default CMP No. 136-R/84 was filed for restoration of the appeal which was also dismissed by this Court on 10.6.1984. The review Petition No. 40-R/84 was also dismissed on 8.2.1989.

The respondent Abdul Hameed filed second Suit No. 95 of 1988 which was in fact presented on 20.5.1987 in the Court of Civil Judge Attack Against the petitioners for mandatory injunction seeking directions against the petitioners/defendants to demolish the Ckobara from the roof of the Shop. No. B.IX/3-B-C built by their predecessor Ghulam Sarwar and restore roof of the said shops to its previous position after demolishing of Chobara. The said second suit was dismissed by the learned Civil Judge as per his judgment and decree dated 4.11.1989 Against which civil Appeal No. 190 of 1990 was preferred which was heard by the Additional District Judge-II, Attock and was dismissed on 30.3.1991. The respondent Abdul Hameed preferred civil Revision No. 264-D of 1991 before the Lahore High Court, Rawalpindi Bench Against the judgments and decrees passed by the learned Civil Judge and Additional District Judge, Attock which civil revision was allowed as per impugned judgment dated 13.8.2001 against which decision present civil petition for leave to appeal has been filed.

We have heard learned counsel for the petitioners and perused the record.

The contentions of the learned counsel for the petitioners are that (i) the suit was time barred, (ii) The learned Judge in Chambers has wrongly extended the benefit of Section 14 of Limitation Act to bring the suit within limitation, (iii) the Settlement Commissioner was not competent to give

away the use of roof of the shops to the respondent Abdul Hameed as courtyard of house transferred to him and (iv) that the learned Judge in Chambers under the revisional jurisdiction was not empowered to interfere with the concurrent finding of two Courts below.

Contention of the learned counsel for the petitioners that the suit was time barred has no merit and substance. Admittedly the petitioner's predecessor-in-interest was transferred Shop No. B.IX-3/B-C while the respondent Abdul Hameed was transferred House No. B-Ix/3-A of the same building by settlement authorities. The respondent tried his level best to get the shops in question transferred to him alongwith house transferred to him but he was not transferred the same. However, as per order dated 17.5.1965, learned District Judge with powers of Settlement Commissioner allowed the respondent's prayer for his right to use roof of the disputed shops as courtyard of his house with the following observations:-

"In order to appreciate the factual position I inspected the spot for myself and found that the roof of the disputed shops is to all intents and purposes indispensable as a courtyard for Abdul Hameed appellant.

Appellant's latrine also stands on the roof of the disputed shops. It will not only work genuine hardship on the appellant but will render House No. B. DC/3-A of which the appellant is the transferee occupant wholly unserviceable for the family inmates of the house particularly in short they will be left in the lurch. Therefore whereas dismissing this appeal cum revision I cannot help concluding with the observation that appellant's right to use the roof of the disputed shops as a courtyard shall continue to remain undisturbed.

The petitioner's predecessor-in-interest preferred writ Petition No. 764-R of 1965 before the Lahore High Court which petition was heard by learned Judge in Chambers but same was dismissed on 6th May, 1969 with the following observation:-

"The learned Settlement Commissioner who inspected the site has stated in unmistaken terms that the roof of the disputed shops is to all intents and purposes, indispensable as the courtyard for Abdul Hameed respondent. Not only this but the respondent's latrine also stands on the roof of the disputed shops. According to learned Settlement Commissioner, by depriving the respondent to use roof of the shops not only will it work genuine hardship on him but will also render his house wholly unserviceable for the female inmates of the house. However, Sardar Ataullha, learned counsel for respondent Abdul Hameed has given an under taking that the respondent will not raise any new construction on the roof of the shops....."

The petitioners predecessor-in-interest preferred LPA No. 193 of 1970 which was heard by the learned Division Bench of the Lahore High

Court and was dismissed on 18.11.1971 against which civil Appeal No. 61 of 1974 was preferred before this Court by the petitioners' predecessor-in-interest but was dismissed in default on 22.1.1983 and then CMP 136-R of 1984 was filed for restoration of the said appeal which was also dismissed on 10.6.1984 and thereafter review Petition No. 40-R of 1984 was preferred which was also dismissed on 8.2.1989 by this Court. This would show that the respondent Abdul Hammed's right and interest for the use of roof of the petitioners' shops was finally confirmed on 8.2.1989 when the final attempt of the petitioners to get the right with regard to the use of roof given to the respondent was not set aside by this Court. This would also show that respondent's right for the use of the roof over the shops became conclusive and final after the dismissal of the review petition filed by the petitioners. The respondent Abdul Hameed had presented the plaint of Suit No. 95 of 1988 on 20.5..1987 in the Court of learned Civil Judge Attock wherein he prayed for the judgment and decree that the respondents be directed to remove Chobara subsequently built after the withdrawal of first suit on the roof of the shops and restore him. The same in previous position. It may be pointed out that the earlier Suit No. 178/603 of 1964 field by the respondnets Abdul Hameed was for mandatory injunction restraining the petitioners' predecessor-in-interest from raising any construction over the roof of the said shops on the ground of his alleged easement rights whereas the subsequent Suit No. 95/1988 was filed by the respondent after the clouds over his right to the use of roof of the said shops as his courtyard were cleared as per final judgment of this Court on 8.2.1989 and the said suit was based on altogether different subject matter on the basis of his right to use the roof of said shops as courtyard subject to condition that the respondent would not raise new construction thereon. This Court in F.A. Khan v. Government of Pakistan (PLD 1964 SC 520) at page 526 has observed:-

"The question, however, would always arise whether the very first denial of a right should be held to oblige a person whose right had been invaded or on whose title a cloud had been cast, to go to Court at once. It may be that a right to sue may accrue on the first denial and yet in the particular circumstances of a case, the option may rest with the person concerned to wait till the denial of right acquires finality by some subsequent development."

At Page 532 it has been observed:-

"If the propositions stated above are to be accepted there appears to be good ground for holding that the passing of an order subject to appeal will not necessitate the filing of a suit for it is only a step in a preceding and not a final order. In any case once an appeal is filed the matter becomes sub judice and when the appellate authority passes an order the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order and this order can be made the basis of a suit.

His lordship while referring Privy Council case Mst. Ranee Surno Moyee v. Shooshee Okhee Burmonia (1886) 12 M IA 244 and Baijnath Suhai v. Ramgut Singh (1896) ILR Cal. 775 (PC) reproduced the observation as follows:-

"That principle (as I understand it) is that whenever proceedings are being conducted between the parties bona fide in order to have their mutual rights and obligations in respect of a matter finally settled, the cause of action for an application or for a suit the relief claimable wherein follows naturally on the result of such proceedings should be held to arise only on the date when those proceedings finally settle such rights and liabilities."

At Page 536 it was observed:-

"The second reply to this contention is that when the appeal was in fact filed the matter became sub judice. One it became sub judice a right to sue would arise only when it was decided. Also when it was decided only the order of the appellate tribunal existed, the original order having disappeared and merged in the appellate order which order would then be the basis of a suit."

Admittedly the first suit for mandatory injunction was filed by the respondent on the ground of his alleged easement rights against the predecessor-in-interest of the petitioners while the second instant suit was filed afterthe respondent's right to use the roof of the said shops whose right was denied and to such right cloud had been cast was ultimately cleared by the decisions of dismissal of CMP No. 136-R of 1984 on 10.6.1984 and thereafter of Review Petition No. 40-R of 1984 on 8.2.1989. It became open thereafter to the respondent either to sue the predecessor of the petitioners on the dismissal of CMP No. 136-R of 1984 or the review Petition No. 40-R of 1984.

In the circumstances it could not be said that the suit for removal of Chobara from the roof of the shops and for the restoration of the roof in its previous position was barred by time whether the suit was filed under Article 120 or under Article 144 of the Limitation Act (hereinafter referred said Act) considering that Article 144 of said Act was omitted as per Act No. II of 1995 dated 18.10.1995 whereas suit was filed on 20.5.1987 and the cause of action having arisen then. Admittedly the first suit was based on different cause of action on the basis of the facts that the petitioners' predecessor-in-interest be restrained from raising construction over the roof of the shops while the second suit was filed on the basis of respondent's right of use of roof finally affirmed by this Court with a different relief of removal of Chobara which was constructed after the withdrawal of first suit and restoration of the roof of shops in previous position considering that the limitation would run/start only with reference to a particular event/cause of action/subject matter. In the instant case the subject matter and cause of action in the first suit were different to that in the subsequent suit.

Reference may be made to Vallabh Das, v. Dr. Madanlal and others (AIR 1970 SC 987) wherein it has been observed:-

"Same subject matter" in Order 23, Rule 1 means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first, suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as in the first.

Where in the first suit the plaintiff sought to enforce his right to partition and separate possession and in the second suit, he sought to get possession of the suit properties from a trespasser on the basis

of this title; t

Held that the subject matter in the two suit was not the same although the factum and validity of adoption of the plaintiff in both the suits came up for decision."

It may, however, be observed that as soon as the right to use over the roof was finally confirmed by this Court in favour of respondent, the petitioners would have no right to remain over there or keep their construction over the roof which their predecessor raised during the pendency of litigation therefore petitioners remaining there or keeping Chobara would become unlawful and unauthorized and refusal to restore roof and remove Chobara would give rise fresh cause of action to the respondent who would be entitled under the law to the restoration of the roof and removal of Chobaraas the petitioners had no right to keep their unauthorized construction over the roof the use of which had been given away to the respondent Abdul Hameed. Suit No. 95 of 1988 having been filed on 20.5.1987 could not be said time barred when cause of action accrued to the respondent after the confirmation of this right to the use of roof by this Court. In fact on the dismissal of the appeal and restoration petition by this Court on 22.11.1983 and 10.6.1984 respectively, the right of the respondent over the roof was finally confirmed therefore thereafter the respondent could file suit against the petitioners on the basis of his right before the Court hence it could not be said that suit was barred by time considering the period of limitation provided whether suit was filed under Articles 120 or 144 of the Limitation Act was 6 and 12 years respectively. In view of aforesaid reasoning the contention of the learned counsel for the petitioners has no force.

So far the contention of the learned counsel for the petitioners that Section 14 of Limitation Act would not apply to extend the period for filing of suit. Section 14 of the Limitation Act reads as follows:

"14. Exclusion of time of proceeding bona fide in Court without jurisdiction.--(l) In computing the period of Limitation prescribed for any suit the time during which the plaintiff has been prosecuting with dufe diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same action of section and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation prescribed for any application the time during which the application has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature is unable to entertain it.

Explanation /.--In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceeding therein ended, shall both the be counted.

Explanation //.--For the purposes of this section, a plaintiff or an application resisting an appeal shall be deemed to be prosecuting a proceeding.

Explanation ///.-For the purposes of this section mis-joinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."

Admittedly this provision of Limitation Act would not be attracted to the facts of the instant case considering that it could not be said that the first suit or the proceedings for acquiring right to the use of roof before the Settlement Authorities or before the high Court and this Court were not prosecuted in the Courts which from defect of jurisdiction or other cause of like nature were unable to entertain the same. Section 14 of Limitation Act applies to a case where the Court by its own order has terminated the suit or proceedings on the ground that it has no jurisdiction to entertain it or that; there is some other cause of like nature which makes it impossible for the Court to entertain it. The object behind is the protection against the bar of limitation of a party bona fide pursing his case and seeking adjudication on merits but nevertheless prevented from getting decision on merits on account of defect of jurisdiction or other cause of like nature. The Phrase "other cause of like nature" has a meaning ejusdem generis that the words, "defect of jurisdiction". The first suit it would appear hereinafter was not withdrawn for defect of jurisdiction or other cause of like nature. The order dated 10.1.1973 passed by the learned District judge, Campbellpur in C.A. No. 1 of 1972 mentioned that the respondent had submitted that there was certain technical and formal defects in the suit and it was likely to fail on the said ground, therefore, he requested to permit him to withdraw the suit with opportunity to bring fresh one on the same cause of action. On perusal of the record it would appear no particulars as to technical and formal defects were stated in the submissions made for the withdrawal of the first suit filed by the respondent. It would also appear that second suit was also filed in the same Court. Besides the first suit was withdrawn under Rule 1 of Order XXIII, CPC therefore Section 14 of the Limitation Act was not applicable in view of the provisions of Rule 2 of said Order which provides that in any fresh suit instituted on permission granted under Rule 1 the plaintiff shall be bound by law of limitation in the same manner as if first suit has not been instituted. Reference may be made to (i) Varqjilal Bhaishankar Selat and others v. Shomesh War alias Amraal Raridat Bhat (ILR 29 Bom. 219), (ii) A.L.A.R. Arunachellam Chettiar and others v. Lakshmana Ayyar and another (ILR 39 Mad. 936), and (iii) Rahim All and others v. Yehia Khan and others (AIR 1928 Allahabad 402 (2)).

Admittedly the Court of Civil Judge. Attock so also the said Settlement Authorities, so also the High Court and this Court had jurisdiction in respect of subject matter and there was no other cause of like iature which could make it impossible for the Court to entertain it. Therefore following the ratio laid down in the above precedents we hold provisions of Section 14 of the said Act were not applicable in this case in view of the facts stated above. However, it may be observed that second suit filed by the respondent was filed on different cause of action and relief on the basis of right to use the roof subsequently conferred and confirmed by this Court on 10.6.1984 when CMP No. 136-R of 1984 was dismissed and thereafter on 8.2.1989 when the Review Petition No. 40-R of 1984 was also dismissed. The second suit was presented on 20.5.1987 in the Court of Civil Judge Attock for different relief viz. restoration of the courtyard and demolishing of Chobara. If the period of limitation is counted from the decision of CMP No. 136-R of 1984 or from the date of dismissal of the Review Petition No. 40-R of 1984 the second suit would not be barred by time whether the suit was filed under Articles 120 or 144 of Limitation Act which provide period of six years and 12 years respectively. It may also be stated that learned Judge in Chambers only observed that the respondent was entitled to benefit of Section 14 of Limitation Act by analogy as the respondent bona fide kept on defending the proceedings to defend his right.

The next contention of the learned counsel for the petitioners is that the Settlement Commissioner had no jurisdiction to give away the right to use roof of said shops has also no merit and substance. The order of the Settlement Commissioner whereby the respondent was conferred right to use roof was challenged by the petitioners' predecessor-in-interest before the JHigh Court and ultimately before this Court but the right given to respondent was finally maintained by this Court which right of respondent attained finality. Therefore, it could not be said now that the Settlement Commissioner had no jurisdiction to confer the right to use the roof of the

shops to the respondent Abdul Hameed. In the circumstances the contention is without force.

The last contention of the learned counsel for the petitioners is that the concurrent findings of two Courts below could not have been interfered with by the learned Judge in Chambers of Lahore High Court to which contention also we do not find merit and force. The plea of limitation being a legal and factual plea which was not legally dealt with so also evidence on record was misread by the both Courts below consequently the learned Judge in Chambers was justified in interfering with the concurrent findings which were on the face of record illegal. It would also not be out of place to state here that the High Court has rightly interfered with the concurrent finding as it was just and legal so as to see that complete justice is done to the party who was made to suffer on account of illegality of the two Courts below. Learned counsel has placed reliance upon (i) Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others (2000 SCMR 346), (ii) Abdul Hakeem v. Habibullah and others (1997 SCMR 1139), and (iii) Muhammad Bux v. Muhammad All (1984 SCMR 504).

In Abdul Rahim's case at No. (i), learned counsel for the appellant could not bring his case within the four corners of the provisions of clause (a), (b), and (c) of sub-section (1) of Section 115 CPC and even could not point out to any jurisdictional error in the judgment passed by the learned Judge in Chambers of the High Court whereas in the instant case the learned Civil Judge and the Additional District Judge had acted in exercise of its jurisdiction illegally and had misread the evidence on record holding that the suit was barred by time therefore he was perfectly justified to interfere with the judgments of two Courts below.

In Abdul Hakeem's case at No. (ii) this Court held that concurrent finding of fact could only be interfered with by the High Court under Section 115 CPC if the Courts below had either misread the evidence on record or while assessing or evaluating the evidence had omitted from consideration some important piece of evidence which had direct bearing on the issues involved in the case or that the finding was perverse meaning thereby that no reasonable person would reach the conclusion arrived at by the Courts below on the basis of evidence on record. This Court observed in the cited case that the High Court could not find that the decisions of Courts below suffer from misreading of material evidence on record and further re­assessment of entire evidence and discarding the conclusion of Courts below having found to be inconsistent with its own assessment would not fall within the purview of Section 115 CPC. However, in the instant case learned Judge in Chambers found that there was misreading of evidence so also there was illegal exercise of jurisdiction by two Courts below consequently the concurrent finding of two Courts below was reversed in exercise of the revisional jurisdiction.

In Muhammad Bux'scase at No. (iii), the respondent's suit was decreed by the trial Court, appeal filed by the petitioner was dismissed by District Judge and revision petition was also dismissed by the High Court In this Court in the petition learned counsel submitted that his case would fall in clause (c) of Section 115 CPC on the ground that principle of estoppel as enshrined in Section 115 of Evidence Act should have been applied by the Courts below to estop Pathana's successor-in-interest of the respondents from challenging the power of attorney in favour of the respondent who had himself failed to challenge the same and also participated in fraud of obtaining confirmation of land through bogus power of attorney. This Court in the cited case held that nothing has been alleged which could demonstrate that in exercising jurisdiction vested in it by law the civil Court had in any manner committed illegality or material irregularity. The facts of the instant case are quite different and distinguishable to the cited case, therefore, the said cited case would not help the petitioners.

There is no cavil with the observations made by this Court in the above cited cases that power of High Court in the revisional jurisdiction is limited but in the instant case both the Courts below had acted in the exercise of jurisdiction illegally and had misread the evidence on record, therefore, interference by the High Court was justified and legal. In the circumstances, this petition has no merit and substance consequently the same is dismissed and leave to appeal is declined.

(A.A.) Leave refused.

PLJ 2002 SC 280

[Appellate Jurisdiction]

Present: SH. RlAZ AHMAD, SYED DEEDAR HUSSAIN SHAH AND tanvir ahmed khan, JJ.

RANA SHAHBAZ AHMED and 2 others-Appellants

versus

STATE-Respondent Criminal Appeal No. 122 of 2001, decided on 29.10.2001

(On appeal from the judgment of the High Court of Sindh, at Karachi, dated 27.1.2000, passed in Spl. A.T. Appeal No. 15/1998 and Conf. Case No. 3/98)

Offences Against Zina (Enforcement of Hudood) Ordinance, 1979-

—-S. 10(4)-Pakistan Penal Code (XLV of I860), S. 392-Conviction and sentence of death awarded to petitioners by trial Court as confirmed by High Court-Ocular testimony of prosecution witnesses was natural, reliable, satisfactory and confidence inspiring-Witnesses were inmates of the house where offence was committed-Prosecution had fully proved case against appellants beyond any shadow of doubt-Victim had already supported case of prosecution which also gets support from white coloured "chaddar" secured by Investigation Officer which was found to be stained with semen and blood as per report of Chemical Examiner-Defence has not alleged any enmity, ill will or malice against prosecution witnesses-Courts below have properly analysed, assessed and examined evidence—Keeping in view brutal act of appellants, they do not deserve any leniency and High Court has rightly maintained their conviction-No interference was warranted in impugned judgment. [Pp. 283 & 284] A, B

PLD 1991 SC 412 ref.

S. Rafaqat Hussain Shah, ASC and Miss Wajahat Niaz, AOR (absent) for Appellant No. 1.

Kh. Naveed Ahmad, ASC for Appellants Nos. 2, 3. Raja Abdul Ghafoor, ASC for Respondent. Date of hearing: 29.10.2001.

judgment

Syed Deedar Hussain Shah, J.--This appeal by leave of the Court is directed against the judgment of the High Court of Sindh, Karachi, dated 27.1.2000 passed in Spl. A.T. Appeal No. 15/98.

1. Briefly stated the facts of the case are that on 18.10.1997 the complainant Mst. Khurshid Bibi lodged a report at Police Station Korangi, Karachi, alleging therein that on the night between 18/19th September, 1997, she was sleeping in her house alongwith her family members and the door was lying open due to hot weather, when at about 2.20 a.m. four persons out of whom two had pistols,one was armed with mauzer and the fourth was empty handed entered into their house and threatened them on pistol point giving them fist and kicks belows; the said persons tied their hands, searched the house and took out a sum of Rs. 10/12 thousand from the box lying there; the accused tied hands and feet of her daughter Shazia and thereafter all four accused-persons turn by turn forcibly committed rape upon her in the same room, and thereafter they went away threatening, that if they disclosed about the incident they would be killed. The complainant further states that after untying her hands she went out for making noise, she saw that the said four persons were standing with one. Sabir Ali, who used to work in the Ice Factory situated in front of their house, but due to fear and insult she did not make noise and remained in search of the accused. At last she came to know that accused were Rana Shahbaz, Mohsin Abbas alias Jani, Irfan Ahmad, appellants herein and Umar Daraz, who resided in their Mohallah and committed the Wardatat the instance of Sabir Ali co-accused, (since acquitted).

2. Muhamamd Anwar, Inspector Police Station Korangi (PW. 13) investigated the case. He went to the place of incident which was shown by the complainant Mst. Khurshid, where he inspected room and took into

possession two pairs of sponge chappal, one belt and prepared such memo (Ex. 5) in presence of mashirs Bashir and Niaz Ahmad. He also took into possession a white coloured sheet stained with semen and blood. The complainant also produced nine 'dopatas' of different colours. The Investigating Officer recorded the statements of mashirs and witnesses. On 19.10.1997 the I.O. came to know that Rana Shahbaz Ahmad and Mohsin Abbas accused were confined at P.S. Irbahim Haideri. He contacted on telephone P.S. -Ibrahim Haideri from where he came to know that the accused were also involved in case Crime No. 136/97 and were remanded to Jail custody. He also come to know that the accused were involved in Crime No. 175/97 of P.S. Gizri. On 20.10.1997 the victim Mst. Shazia was produced before the doctor for medical check-up. The Investigating Officer on 21-10-1997 proceeded to Landhi Jail and under the authority of Hlaqa Magistrate arrested Rana Shabbaz accused. On 22.10.1997 he arrested Man from his house. On the same date, on spy information he arrested Mohsin Abbas accused and then arrested Sabir All co-accused. The I.O. then produced Sabir Ali and Mohsin Abbas before the Medico Legal Officer for ascertaining their capability of performing sexual intercourse. On 24.10.1997 he. sent white coloured 'Chaddar' and brassiere to chemical examiner for analysis and report. On 25.10.1997 the I.O. got recorded the statements of Mst. Asia and Shazia under Section 164 O.P.C. On 26.10.1997 the I.O. got the confessional statements of the accused recorded before the DSP and also got prepared video film. After completion of the investigation the I.O. submitted the challan before the Court.

1. At the trial, the prosecution examined 13 witnesses. The appellants accused were examined under Section 342 Cr.P.C. wherein they den d t e commission of offence stating that Fateh Muhammad had enmity with the father of Mohsin Abbas appellant, therefore, they have been implicated in this case at his I stance.

2. The trial Court vide judgment dated 24.4.1998, convicted the appellants under Section 395 PPC and sentenced them to imprisonment for life and fine of Rs. 10,000/- each, in case of default in payment of fine to suffer R.I. for six months. They have also been convicted under Section 10 (4) of Offences Against Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to death, each.

3. The convicts appealed before the High Court of Sindh, Karachi challenging their conviction and sentence. The learned High Court vide judgment dated 27.1.2000, converted the conviction of the appellants from Section 395 PPC to Section 392 PPC and reduced the sentence from life imprisonment to five years R.I. each. The remaining conviction and sentence of fine and death against the appellants were maintained. Sabir Ali co- accu ed was given the benefit of doubt and his appeal was allowed and the sentence awarded to him was set aside on both counts.

4. Learned counsel for the appellants, inter cdia, contended that there is delay in lodging of FIR, inasmuch as for one month the prosecutrixdid not report the matter to the police; that the medical evidence is in conflict with the ocular evidence; that the conviction of the appellants is based on unsatisfactory evidence, which is not supported by the circumstances of the case; that Bashir Ahmad an independent witness was not examined and an inference against the correctness of the prosecution version was to be drawn.

5. On the other hand Raja Abdul Ghafoor, learned Counsel for the State supported the impugned judgment and vehemently pointed out that the trial Court as well as the High Court had considered the evidence in its proper perspective; that the delay in lodging the FIR had been explained in a very plausible manner; that the medical evidence is in conformity with the ocular evidence. He further stated that Dr. Huma, who had examined the victim Shazia unequivocally stated that she was subjected to sexual intercourse, although she was unmarried girl.

6. We have carefully considered the arguments of the learned counsel for the parties and examined the record minutely. The ocular testimony of the PWs is natural, reliable, satisfactory and confidence inspiring. The witnesses are inmates of the house where the offence was committed. The prosecution has fully proved the case against the appellants beyond any shadow of doubt. The victim has also supported the case of the prosecution, which also gets support from white coloured 'Chaddar' secured by the I.O. which was found to be stained with semen and blood as per report of the Chemical Examiner. The defence has not alleged any enmity, ill-will or malice against the prosecution witnesses. This Court in Mst. Nasreen Vs. Fayyaz Khan and another (PLD 1991 SC. 412) has held that the sole testimony of victim is enough for conviction if it is truthful and inspires confidence; whereas in this case the victim is supported by other three-eye­ witnesses, who are inmates of the house. It would be advantageous to refer the following paragraph of the impugned judgment in which the High Court with sound and cogent reasons has repelled the contention regarding delay in lodging of the FIR.. .

"So far the next contention of learned counsel for the appellants/accused that the FIR has been lodged with inordinate delay, therefore, it would lead to an inference that case was false and fabricated. We also do not find substance in the said contention considering that the cases in which moral turpitude, family respects and honour are involved there delay is of no consequence. The people in such situation think seriously for the consequences and come in the Court after a great hesitation, such appears to be the situation in the instant case and, therefore, delay in peculiar circumstances and facts of this case is of not much significant considering also the fact that the complainant knew the appellants/accused from their faces but she had to ascertain their names and when one of the accused disclosed the names then she promptly lodged the report. The factum of terrorism prevalent in the society also comes in the way of people to contact police and promptly lodge the report. The culprits had issued serious threats to complainant party not to inform the police, else, they would be killed. Thus the delay is satisfactorily explained."

We further found that the Courts below have properly analysed, assessed and examined the evidence. There is no misreading or non-reading of evidence. Keeping in view the brutal act of the appellants, they do not

deserve any leniency and-the High Court has rightly upheld their conviction.

1. For the facts, circumstances and reasons mentioned herein

above, we do not find any substance in this appeal, which is hereby dismissed.

(A.A.) Appeal dismissed

PLJ 2002 SC 284

[Appellate Jurisdiction]

Present: nazim hussain siddiqui, javed iqbal and hamid An mirza, JJ. M/s. STAR TEXTILE LTD. KARACHI and 5 others-Petitioners

versus

GOVERNMENT OF SINDH through SECRETARY EXCISE & TAXATION DEPARTMENT SINDH SECRETARIAT KARACHI

and 3 others-Respondents C.Ps Nos. 499-Kto 504-Kof 2001, decided on 22.10.2001.

(On appeal from the judgment dated 27.6.2001 of High Court of Sindh passed in Constn. Ps. Nos. D-1376, D-1377, D-1378, D-1447, D-1448, D-1273of2000)

(i) Interpretation of Statutes —No statute can be strued so as to have retrospective operation unless language employed therein so permits-Legislature is competent to amend, vary or repeal the same- Unequivocal and unambiguous language is used in .taxing tatute and it is to be looked into what is clearly stated therein-Intendment and equity are not to be xplored therefrom-There is no scope of implication, while interpreting tax law in as much as, tax and equity are strangers—Retrospective operation is valid if legislature so

(ii) Sindh Urban Immovable Property Tax Act, 1958--

—S. 8-A [as substituted by Sindh Urban Immovable Property Tax (Amendment) Act, 1987]-Retrospective effect given to S. 8-A of Sindh Urban immovable Property Tax Act 1958, assailed-Legislature having expressly given retrospective operation to S. 8-A of the Act, same could not "be challenged merely on the ground that any party was burdened with certain liability of retrospective operation. [P. 287] B

1988 SCMR 410; PLD 1991 SC 422; PLD 1994 SC 568; 1999 SCMR 1072; PLD 1994 SC 621 and PLD 1973 Karachi 361 ref.

Mr. Kamal Azfar, ASC and Mr K.A. Wahab, AOR (absent) for Petitioners.

Raja Abdul Ghafoor, AOR for Respondents 1 to 3. Sardar Muhammad Aslam, D.A.G. for State. Date of hearing: 22.10.2001.

judgment

Nazim Hussain Siddiqui, J.--This judgment will dispose of Civil Petitions No. 499-K to 504-K of 2001, as common questions of facts and law are involved in these matters.

1. Above matters were disposed of by a learned Division Bench, igh Court of Sindh by a common judgment dated 27-6-2001, passed in Constitutional Petitions Nos. D-1376, D-1377, D-1378 D-1447, D-1448 and D-1273 of 2000, whereby the same were dismissed in limine alongwith Interlocutory applications with costs of Rs. l,000/-in each matter.

2. The facts relevant for decision of these petitions are that the petitioners were paying Property Tax on their industrial properties on the Annual Rental Value assessed by the Government of Sindh (Respondent No. 1) under Section 5 of the Sindh Urban Immovable Property Tax Act, 1958, hereinafter called as "the Act" and the Rules framed there under. On 1-12- 1976 the Respondent No. 2, Director Excise and Taxation (Taxes-I), prepared a Draft Valuation List and invited objections from the property owners. Thereafter, a meeting was convened, which was attended by the representatives of the industrial property owners and the Finance Minister As a result of said meeting, unanimously the Valuation List was revised and the Annual Rental Value of each property was fixed. The petitioners filed appeals, under Section 10 of the Act, against the assessment. During the pendency of the appeals, Section 8-A was added by Sindh Finance Act, 1977 and again it was substituted by the Sindh Act No. VIII of 1987, the Sindh Government Gazette, Extr., Part IV, December 10,1987, which now as it stands, reads as under: -

8-A Validation.--Notwithstanding any thing contained in this Act or judgment, order or decree of any Court, the valuation lists which have been prepared in respect of the properties used wholly or partly for industrial purposes and situated within the limits of the Rating Areas of the Karachi Division and have been enforced from the 1st day of January 1977, shall always be deemed to have been validly prepared and enforced and the tax levied, charged, collected or realized in pursuance of such lists shall always be deemed to have been validly levied, charged, collected or realized."

4.The aforesaid amendment was assailed by the petitioners in High Court and all the petitions were disposed of by a common judgment dated 18-3-1992, whereby impugned notices/challans were set aside and the matters were remanded to the Respondent No. 1, Secretary, Excise and Taxation Department, with a direction to dispose them in accordance with law, after hearing all concerned parties within two months from the date of said order.

1. It is alleged that said Secretary instead of disposing the matters himself sent them to Director, Excise and Taxation (Taxes-1) Karachi, who after hearing, the parties, by order dated 21-10-1999, held that the assessment of industrial properties in the rating area of Karachi Division was in accordance with Valuation List dated 1-1-1997 and further observed that the petitioners were liable to pay properly tax in accordance with Section 8-A, as amended on 10-12-1987.

2. Being aggrieved by order dated 21-10-1999, the petitioners filed Constitutional Petitions before High Court, which were dismissed.

3. It is significant to mention here that the properties of the petitioners were situated either at Landhi or in the Sindh Industrial Trading Estate (S.I.T.E.) and were not within the limits of Karachi rating area but by virtue of amendment dated 10-12-1987 the limits of rating area were extended as to include the entire Karachi Division. Admittedly now the properties of the petitioners are within Karachi Division within the scope of Section 8-A.

4. It was argued before High Court that the petitioners' properties initially were not within rating area and they acquired the vested rights, which could not be taken away by virtue of amendment dated 10-12-1987 in Section 8-A and for above purpose reliance was placed, on the cases reported as New Electronics (Pvt.) Limited through Director vs. The Collector of Customs (Appraisement), Karachi and 2 others (PLD 1994 Karachi 286), (2) The Facto Cement Ltd v. The Collector of Customs Appraisement, (1994 MLD 1136) [Karachi]), (3) Syed Wasey Zafar and 4 others v. Government of Pakistan through Secretary, Finance and others (PLD 1994 SC 621) and Ahmed Corporation v. M/s. The International Food Grain and Oil Seed, Karachi (PLD 1973 Karachi 361).

5. Dictum laid down in above cases is not attracted to these matters as the facts are distinguishable. Under the provisions of the Act the Provincial Government of Sindh is competent by notification to specify urban area where tax shall be levied. It is also competent to divide one urban area into two or more rating areas or several areas to group into one rating area.

6. It also appears from the impugned judgment that at the time of final arguments before High Court, though the petitions were filed on several legal grounds and various declarations were sought, but only one ground was urged i.e. that the amendment of Section 8-A was mala fide, void and it could not be given retrospective effect, taking away the vested rights of the petitioners to be assessed in accordance with the old list. In fact, this is the only point in these petitions, which requires consideration.

7. Mr. Kama! Azfar, learned counsel for the petitioners conceded before us that retrospective effect could he given by the amendment, but strenuously argued that since the respondents accepted from the petitioners the amount of tax according to old GARY, as such, it being past and closed chapter, it could not be reopened by viture of said amendment of Section 8-A. Learned counsel also argued that the cases were remanded by High Court to he Secretary Taxation Department and the Secretary having been authorized only to exercise the delegated powers, he could not further delegate said power to Director Excise and Taxation.

8. The moot point is whether retrospective effect could be given or not to the amendment dated 10-12-1987. Law on this point is absolutely clear and such effect can be given. It is true that no statue shall be construed so as to have a retrospective operation, unless its language so permits. In case of legislative enactment the legislature is competent to amend, vary or appeal the same. Unequivocal and unambiguous language is used in taxing statue and it is to be looked into what is clearly stated therein. Intendment and equity are not to be explored there from. There is no scope of implication, while interpretating tax law, the general rule is that "tax and equity" are strangers. It is significant to note that retrospective operation is valid if the legislature so directs, as has been done clearly in Section 8-A, and such direction cannot be challenged merely on the ground that a party is burdened with the certain liability because of retrospective operation.

9. For above findings reference can be made to the cases reported as (1) Government of Pakistan and another v. M/s. Mardan Industries Ltd and another (1988 SCMR 410), (2) Major General (Retd) Sher Ali Khan v. Commissioner of Income Tax and Gift Tax (PLD 1991 SC 422), (3) Annor Textile Mills Ltd and another v. The Federation of Pakistan and another (PLD 1994 SC 568) and Gatron (Industries) Ltd v. Government of Pakistan and others (1999 SCMR 1072).

10. As regards the plea that the Secretary could not transfer those cases to Director Excise and Taxation, it is clearly mentioned in .the impugned judgment that the petitioners admitted before High Court that the respondent before passing the impugned order, had given an opportunity of being heard. Be that as it may, even if the Secretary would have decided those cases otherwise still the decision of this Court would have been the same as was recorded by High Court. The simple question was of interpretation of Section 8-A with reference to retrospective effect, which was rightly answered by High Court.

11. In consequence, we do not find any merits in these petitions and the same are dismissed with no order as to costs.

(A.A.) Petitions dismissed

PLJ 2002 SC 288

[Appellate Jurisdiction]

Present: nazim hussain siddiqui and javed iqbal, JJ.

M/s. WAHEED BROTHERS (PAKISTAN) LTD. LAHORE through its Chief Executive-Appellant

versus

M/s. IZHAR (PVT.) LTD. LAHORE through its Managing Director-Respondent

C.A. No. 1347 of 1995, heard on 19.9.2001.

(On appeal from the judgment dated 23.2.1994 of Lahore High Court, Lahore passed in FAO No. 214 of 1993)

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

—S. 14-Constitution of Pakistan (1973), Art. 185-Arbitrator with consent of parties modified his award before Court during proceedings when award was before Court for making the same rule of the Court and such modified award was made rule of the Court-Importance of modified award cannot be down played by calling the same as "new agreed which in fact was a consent document and reflected the unanimous view of the parties expressed therein-As for objections to execution both the Executing Court and High Court maintained that specified work assigned to respondent was not completed due to conduct of appellant-Award was not based upon new agreement—Material on record would lead to conclusion that award was made rule of the Court having taken into consideration all the evidence brought on record by parties-Role of Courts under Arbitration Act, 1940, is of supervisory nature and award may be modified or corrected when the same falls within scope of S. 15 of Arbitration Act 1940 and such award can be set aside if the award was governed by S. 30 of the Act-Award however, cannot be reviewed-No legal flaw has been pointed out in concurrent findings of Executing Court and the High Court, therefore, no interference was warranted in findings recorded by High Court. [Pp. 291 & 292] B, C & D

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

—S. 47 & O.XXI, R. 58-Constitution of Pakistan (1973), Art. 185(3)-Execution of decree-Variation of award with consent of parties-Leave toappeal was granted to consider; whether the Executing Court and High Court, without any justification, over-ruled, objections raised by appellant and varied the decree to the disadvantage of appellant. [P. 291] A

K.M.A. Samdani, ASC and Mr. Muhammad Aslam Ch., AOR (absent) for Appellant.

Mr. Anwar Kamal, ASC for Respondent. Date of hearing: 19.9.2001.

judgment

Nazim Hussain Siddiqui, J.--This appeal by leave of this Court is directed against the judgment dated 23-2-1994 of a learned Judge in Chamber, Lahore High Court, whereby FAO No. 214 of 1993 filed by the appellant challenging the order dated 7-11-1993 of learned Civil Judge, Lahore, was dismissed.

1. The facts relevant for decision of this appeal briefly stated are that respondent is a Private Limited Company and it entered into an agreement with the appellant to construct a hatchery for the latter. Dispute arose between the parties over non-payment of due amount, the quality of work and non-completion of the work under taken by the respondent. In cordance with the agreement these disputes were referred to Sole Arbitrator, Anwar Ali, who gave his Award, which on 23-5-1991 was made rule of the Court. By mutual consent, some amendments were brought therein and one of the clauses of the modified Award reads as under:-

"M/s Waheed Brothers (Pakistan) Ltd, shall prepare two bank Cheques in favour of M/s Izhar (Pvt) Ltd., as spelled out in item II above for making payment to the Contractor on satisfactory completion of above repairs. A joint team of representatives one each from both sides shall undertake the inspections and give a certificate to the sole Arbitrator about the satisfactory completion of the work before first cheque covering full payments in respect of items II-(i), (iii) (iv) and (v), is released to the Contractor, as per instructions of the Sole Arbitrator. As for the other payment pertaining to item II (ii), the same shall be released after repainting work is completed to the full satisfaction of the Employer."

1. On 23-1-1992 the respondent moved an application for execution of the Award, as incorporated in the decree. It claimed that it was entitled to receive an amount of Rs. 9,08,325/46 under decree and that said amount was being withheld illegally by the appellant. The appellant filed objections, w ich were" dismissed. Later on, the appellant challenged the order before High Court, but without any success.

2. The case of the appellant is that it was entitled, under the amended Award, to have the work completed at the risk and cost of the respondent and that it had completed the work at the cost of Rs. 19,36,000/- and after deducting the sum payable to the respondent it was entitled to obtain Rs. 10,17,987/- from the respondent.

3. The following issues were settled by the learned executing Court: -

(1) Whether the execution petition filed by Izhar Ltd, is fake, false, vexatious and is not maintainable? OPR

(2) Whether the objection petitioner Waheed Brother is stopped by his conduct to file this objection petition? OPR

(3) Whether the execution is full of misrepresentations and distortions of facts? If so, its effect? OPR

(4) Whether the objection petitioner did not allow the decree holder to carry out the work of Re-filling the cracks as the hatchery Plant/Machinery to ba closed for the completion of the job? OPR

(5) Whether the objection petitioner himself committed the breach of the original contract as well as of the Award? If so, its effect? OPR

(6) Whether the job in question has been completed and the petitioner Izhar Pvt. Ltd. is entitled to recover a sum of Rs 09,08,325/46? OPA

(7) Whether the Izhar(Pvt) Ltd intentionally failed to comply with the terms of the Award and Waheed Brothers are entitled to recover a sum of Rs. 10,17,987/-in view of the averments made in the petition U/0 20, Rule 19 CPC? OPA

(8) Relief . Learned Executing Court decided the Issues Nos. (1), (2), (3), (5) and (6) in favour of the respondent and while doing so in details examined the evidence brought on record by the parties. For Issue No. 4 learned Executing Court held that the respondent had not carried out the work of cracks filling, which could be done at the cost of Rs. 25.000/- said amount was ordered to be deducted from the total amount claimed by the respondent. The finding on Issue No. 7 was that the appellant carried out the chemical treatment against the spirit of the Award without seeking permission from the Arbitrators, whereas the respondent had completed the 7 layer treatment and held that the appellant was not entitled to recover any amount from the respondent. Under the circumstances, learned executing Court accepted the execution application of the respondent to the extent of s. 8,58,325/46 and directed the appellant to pay said amount to the respondent. Said Court also dismissed appellant' application under Order XX, Rule 19 of the CPC.

1. Vide order dated 20-11-1995 leave to appeal was granted to consider whether the Executing Court and High Court, without any justification, over-ruled, the objections raised by the appellant and varied the decree to the disadvantage of the appellant.

2. It is contended on behalf of the appellant that the Award, which learned Civil Court made the rule of Court by its order dated 23-5-1991 was, in fact, a new agreement between the parties and was itself not capable of execution. Learned counsel also argued that the executing Court could not go beyond the decree based on amended Award and all that it could do was to execute the decree as it was. It is also urged that the respondent had never done required work, as such, there was no question of its inspection. Learned counsel also referred to the letters at Pages 70, 72, 80 and 81 of the paper book to contend that the respondent failed to discharge its duties.

3. We have heard learned counsel for the parties and with their assistance perused the record, 10. The contract between the parties was executed on 11-5-1988. It contained an arbitration clause. On 2-5-1989 the parties also executed a contract of indemnity, which also contained an arbitration clause. Pursuance to latter contract Mr. Anwar Ali Architect was appointed as sole arbitrator. Before Civil Court the parties entered in o compromise and with their consent, the arbitrator modified his award and the award so modified wasj made rule of the Court. The importance of modified award cannot be dow Q played by calling it as a "new agreement", which in fact was a consent document and reflected the unanimous view of the parties expressed therein.

4. It is evident from record that the appellant did not approach the sole arbitrator either complaining that the respondent had failed to carry out the work within the stipulated time or the work done by it was not according to the specification and of the same quality, which was agreed between the parties or that the same was defective. The record shows that no representative was appointed by the appellant as was agreed between the Mr. Rauf Ahmed, Civil Engineer, as its representative, who was examined as a witness. It is also established from record that necessary work was completed up to 15-7-1991 and only a portion of roof remained incomplete and that too for the reason that the officials of the appellant working on the site did not allow the respondent to complete the work on the ground that in case they would stop the cooler there was likelihood that the birds would die. The said work, however, was completed on 8-8-1991 when the coolers were topped. This clearly establishes that the delay, if any, in completion of the work was due to the lapse on the part of the appellant.

5. The appellant claimed that the work was got done through chemical treatment for which it claimed an amount of Rs. 10,17,787/-It is noted that this claim was not justified for the reason that, as per Award, the reatment, as such, no claim based on that ground against the respondent was justified. Both the executing Court and High Court held that the works of filling cracks as will as, painting was not completed due to the conduct of the appellant. There is no substance in the argument that the Award of learned Civil Judge dated 23-5-1991 was, in fact, based upon new agreement. If the entire facts are looked into in their true perspective the factual position ecomes absolutely clear and leads to the conclusion that the award was made rule of the Court having taken into consideration all the evidence brought on record by the parties.

6. As regards, the letter referred by learned counsel for the appellant, suffice it to say that these letters are part of the correspondence exchanged between the parties and can neither by looked in isolation nor these letters by themselves are sufficient to discard the entire evidence brought on record. All the circumstances, including mentioned in these letters, were in-depth examined by the two Courts below and thereafter, the findings were recorded.

7. Primarily, the vowed object of getting the dispute settled through arbitration is to by pass lengthy procedure invoked in civil cases. In fact, it.is domestic Tribunal controlled by the chosen representatives arbitrators, of the parties who are imbibed with the spirit of doing complete justice between the parties as early as possible without getting themselves unnecessary involved in technicalities embodied in procedural law. The role of the Courts under Arbitration Act, 1940 principally is of supervisory nature and not that of appellate power under CPC. An award may be modified or corrected when it falls within the scope of Section 15 of the Act and it can be set aside if it is governed by Section 30. There is no provision for review in the Act.

8. The concurrent findings have been recorded by the executing Court and High Court and no legal flaw has been pointed out nor it is the case of mis-reading or non-reading of the evidence nor there is any justification for exercising jurisdiction under Sections 15 and 30 of the Act. No legal point has been raised. The factual aspect in detail has been discussed by the ourts below and we do not find any ground to interfere in the findings recorded by High Court.

9. Inconsequence, the appeal is dismissed with no order as to costs. (A.P.) Appeal dismissed.

PLJ 2002 SC 293

[Appellate Jurisdiction]

Present: muhammad bashir jehangiri, munir A. sheikh and rana bhagwandas, JJ.

KHADIM HUSSAIN-Appellant

versus

MANZOOR HUSSAIN SHAH and 3 others-Respondents Crl. A. No. 43 of 1998, decided on 5.10.2001.

(On appeal from judgment of Lahore High Court dated 21.7.1997 passed in Crl. A. Nos. 52 & 52-A of 1995)

(i) Constitution of Pakistan (1973)--

—- Art. 185-Pakistan Penal Code (XLV of 1860), Ss. 302 & 324-Appeal against acquittal-Limitation on powers of Appellate Court-Appellate Court would not interfere with acquittal merely because on re-appraisal of evidence it comes to conclusion different from that of the Court acquitting the accused, provided hoth conclusions were reasonably possible—Where, however, conclusions reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then Supreme Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion and that too with a view only to avoid grave miscarriage of justice and for no other purpose.

[P. 299] E

(ii) Pakistan Penal Code, 1860 (XLV of 1860)--

—Ss. 302 & 324-Constitution of Pakistan (1973), Art. 185(3)-High Court setting aside conviction and sentence awarded to respondents, by trial Court-Validity-Leave to appeal was granted to consider whether evidence on record had been properly appraised by High Court in conformity with the well established principles laid down by Supreme Court in the context of contention that in an occurrence, which took place in broad daylight and was witnessed by those who were not inimically disposed towards accused, their acquitted from murder charge could not be justified on minor and immaterial contradictions. [P. 296] A

(iii) Pakistan Penal Code, 1860 (XLV of 1860)--

—Ss. 302 & 324-Acquittal of accused from charge of murder by the High Court-Justification-Witnesses remained completely silent with regard to exchange of hot words a few days before occurrence or that both the deceased had hurled abuses at main accused and village people had intervened-Witnesses also did not support motive part of the incident narrated in F.I.R.--Motive set up in F.I.R. having been abandoned at the stage of evidence, such omission would affect inherent quality of evidence furnished by witnesses-Ocular account of incident was not supported by any circumstantial evidence relating to motive for committing the offence of murder-Possibility of addition and substitution of accused, thus, could not be completely ruled' out in peculiar circumstances of present case-Recovery of firearms from the possession of accused was disbelieved by trial Court and High Court did not differ with such appraisement of evidence-No deviation was warranted from such assessment of evidence by two Courts below on recovery of fire-arms, especially when such assessment was neither contrary to material on record nor against principles for appraisement of evidence in criminal cases-Judgment of acquittal rendered by High Court does not suffer from any error of law or jurisdiction, therefore, no interference was warranted therein.

[Pp. 297, 298,299 & SOO] B, C, D & F

PLD 1985 SC 11, PLD 1997 SC 569; PLD 1995 SC 1; PLD 1951 F.C. 107; PLD 1964 SC 426; PLD 1997 SC 408 ref.

Mian Aftab Farrukh, Sr. ASC and Mr. Tanvir Ahmad, AOR (absent) for Appellant.

Sh. Khizar Hayat, ASC and Mr. M.A. Zaidi, AOR for Respondents. Malik Ainul Haq, ASC for State. Dates of hearing; 25,26 and 27.9.2001.

judgment

liana Bhagwandas, J.-This appeal by leave of this Court arises out of judgment dated 21.07.1997, passed by the Lahore High Court, in Criminal Appeal Nos. 52 and 52-A of 1995, whereby learned Judges of the Division Bench accepted the appeal of Respondents Nos. 1 and 2 herein and acquitted them of the charge of murder whereas the State appeal against the acquittal of co-accused Shabbir Hussain Shah and Gulzar Hussain Shah was dismissed.

1. Prosecution case precisely stated is that, complainant Khadim Hussain on 11.10.1992 at 8.30. a.m. alongwith Mureed Hussain son of Ghulam Hussain, Nazir Hussain, Amir Hussain, Mureed Hussain son of Nazar Hussain (since deceased) And Khadim Abbas (since deceased), went to the lands reserved for pasture to take clay for repairing Imam Bargah of the village. When they reached the lands, respondent Manzoor Hussain Shah, whose house was situated adjacent to the pasture land, was standing out side his house and told the complainant party that he would not let them remove earth from the lands. Mureed Hussain (since deceased) thereupon proclaimed that they shall definitely take the earth. It is stated that Manzoor Hussain Shah went to his house and immediately came armed with a riffle alongwith his son Shaheen Haider Shah armed with a riffle and Shabbir Hussain Shah, Gulzar Hussain Shah co-accused, both armed with 12 bore guns. Manzoor Hussain Shah shouted that he would avenge previous insultas also digging of earth, where upon the complainant and others started running towards north, when they were fired upon by Gulzar Hussain Shah and Shabbir Hussain Shah from their respective weapons. Khadim Hussain and others crossed the water channel when Manzoor Hussain Shah fired from his riffle hitting Khadim Abbas on his back, who fell down. The complainant party stopped and Mureed Hussain, (since deceased) tried to hold Khadim Abbas (since deceased) when, in view of the complaintant party, Shaheen Haider Shah fired a riffle shot hitting Mureed Hussain on left side of his neck. Manzoor Hussain Shah fired second shot, which hit Mureed Hussain on his right shoulder. Thereafter, Shabbir Hussain Shah and Gulzar Hussain Shah fired from their respective shot guns; but the complainant party rescued itself by hiding behind the water channel. The firing attracted a large number of co-villagers, where-after, the respondents decamped from the spot. Both the injured were taken to Civil Hospital, Kanewal but they succumbed to their injuries on way to the Hospital. Leaving the dead bodies in the Hospital, Khadim Hussain went to report the matter to police and lodged FIR, the same day, at 10.00 a.m. with Police Station Katcha Khoh, District Khanewal.

2. Motive for the incident is stated to be the sub-division of the pasture lands under 'Seven Marias Housing Scheme' by the villagers and demarcation was carried out, which was demolished by Manzoor Hussain Shah with the help of a tractor, in the absence of the complainant and others. Mureed Hussain, Khadim Abbas (since deceased) and others went to the spot where hot words were exchanged between the parties. It is stated that villagers had intervened but Manzoor Hussain Shah nursed this grudge against the deceased persons for his disgrace which proved to be the forerunner for this incident.

3. After investigation, all the four accused were sent up to stand their trial before the learned Judge, Special Court for Speedy Trial, Multan, where prosecution examined nine witnesses to prove its case. Trial Court, on assessment of evidence, believed the prosecution case to the extent of Manzoor Hussain Shah and his son Shaheen Haider Shah. Both of them were convicted under Section 302/34 PPC and sentenced to death on two counts and directed to pay compensation amounting to Rs. 1,00,000/- each to the legal heirs of the deceased or to suffer R.I for six months in default. They were, however, acquitted of the charge under Section 324 PPC. Shabbir Hussain Shah and Gulzar Hussain Shah were also acquitted of the charge of murder through the judgment dated 08.06.1993.

4. As pointed out hereinabove, appeal against conviction preferred by Manzoor Hussain Shah and Shaheen Haider Shah was accepted setting aside the conviction and sentence whereas State appeal against the acquittal of respondents Shabbir Hussain Shah and Gulzar Hussain Shah, was dismissed, leading to this appellant and Sheikh Khizar Hayat, learned ASC for the respondents at great length as full dressed arguments engaged our attention for almost three days. Mian Aftab Farrukh, learned Sr. ASC for the appellant vehemently urged that the time and manner of the occurrence was not disputed by the defence; the presence of witnesses on the spot was admitted and so was the presence of respondent-Manzoor Hussain Shah and others. He was not at his best while persuading us to hold that there was no conflict between ocular and medical evidence with regard to injuries on the person of deceased Mureed Hussain. He also submitted that from the oral as well as documentary evidence, it was established on record that the complainant party was in settled occupation and physical possession of the pasture lands and even if such possession be treated as unauthorised or illegal, they could not be evicted except in due course of law and not at the point of fire-arais. Learned counsel concluded his arguments with the submission that respondent-Manzoor Hussain Shah had nothing to do with the possession of the complainant party over the pasture lands and that he had no right dispossess them by use of force.

5. Adverting to the first submission of the learned counsel for the appellant, we find that the statements of complainant Khadim Hussain and Mureed Hussain, on the face of the record, appear to be discrepant, inconsistent and not capable of safe reliance for conviction on a capital charge on two counts. In the first instance, it is difficult to believe that both the witnesses alongwith two deceased and other had gone to pasture lands in Square No. 50 for digging earth in the manner as claimed. In fact, witnesses candidly admitted that entire Imam Bargah was cemented and, before Moharrum they used to repair and cleanse the said Imam Bargah, constructed five or seven years earlier. In case Imam Bargah was plastered with R.C.C. there was no occasion for fetching clay from the pasture lands for mud plastering, as claimed by Mureed Hussain, PW-6. In order to circumvent this circumstance, Mureed Hussain stated in his cross- examination that "we were to repair the roof of Imam Bargah and were to plaster katcha well. No repairs were made during the Muharam". This statement is patently at variance from that of complainant-Khadirn Hussain.For the,first time, this witness introduced the theory of leakage of earth (mud) from the Imam Bargah due to rains which required repairs so as to stop the leakage all over again. Both the witnesses are not clear as regards the motive for the occurrence. They have remained completely silent with regard to the exchange of hot words a few days before the occurrence or that both the deceased had hurled abuses at Manzoor Hussain Shah and village people had intervened. They did not support the motive part of the incident narrated in the FIR to the effect that pasture lands had been demaracted for Seven Marias Housing Scheme or that respondent-Manzoor Hussain Shah had demolished such demarcation by means of a tractor.

6. From the evidence of Haq Nawaz, Patwari, PW-2, it is evident that water channel was about 2' high from surface of the land. It was about 2 high from Square No. 50 which, being State land, was admittedly reserved for the construction of Government Girls Middle School. This witnesses further stated that water channel was fairly long and on the southern side of water course reeds/bushes about 10' to 15' high had grown up. He conceded that there were reeds/bushes on the banks of the fields of Square No. 50. He was constrained to admit that Point Nos. 4, 5 and 6 were not visible from Point Nos. 1 to 3 in the site plan as reeds and bushes i tervened. It may not be impertinent to observe that Point No. 1 denotes the place where deceased-Khadim Abbas was fired at by respondent Manzoor Hussain Shah from Point No. 4. Likewise Point No. 2 reflects the place where dec ased-Mureed Hussain sustained injuries statedly at the hands of Manzoor Hussain Shah and Shehecen Haider Shah from Points Nos. 4 and 5 respectively.

7. As regards the possession over the pasture lands, this witness stated hat appellant-Khadim Hussain was in illegal possession of Square No. 51 and that Muhammad Sadiq, a relative of the accused persons and a Headman of the village had moved an application against trespassers of Square No. 50. This witness admitted that relatives of Khadim Hussain were trespassers and they were proceeded against by Sadiq Hussain. The witness added that Khadim Hussain used to sell the land in his illegal occupation and applications were moved against him as well. He went on to state that Muhammad Sadiq, Lamberdar was still moving applications that the complainant and his relatives were trying to sell the land in their illegal possession sanctioned for school consisting of Fields Nos. 3, 4 and 5 of Square No. 50. When called upon to substantiate his statement the witness, in reply to a Court question, explained that record regarding applications moved '.against trespassers was available in the Court of Assistant Commissioner, Khanewal. Learned counsel for the appellant seriously criticised the evidence of this witness on the premise that he had failed to produce the complaints received against Khadim Hussain and his relatives as regards trespass on the State land. Be that as it may, the witness unequivocally explained that the file relating to complaints against respassers was available in the office of Assistant Commissioner, Khanewal. Obviously he did not have domain over such record and it was for the Court to summon the same suo moto or on the application of any of the parties. It is an admitted position that Square Nos. 50/3, 4 and 5, in all Measuring 21 Kanals 10 Marias was reserved for construction of Government Girls Middle School vide Mutation No. 377 dated 30.06.1991. Stance taken by prosecution s that since the Government Primary School had been upgraded, there was no occasion for the construction of a new school-building for which the scheme prepared through MNA's fund could not take off. Similarly, the fact that this land was reserved for such school is supported by entry in Register Haqdaran-Zamin for Chak No. 30/10-R, Tehsil Khanewal. The stance taken by complainant Khadim Husain in his evidence appears to be that this piece of land was obtained on lease by his brother Muhammad Hayat in the year 1984-1985. According to him, "Muhammad Hayat died two or four years later. Khafayat Hussain had cultivated cotton crop on this land. Since the scene of offence and occurrence itself is not disputed, we are not persuaded to comment upon the nature and impact of possession over the pasture land. We find that since this piece of land did not belong to the complainant party, ' accused Manzoor Hussain Shah, a retired Master Warrant Officer from Pakistan Air Force, being an adjoining inhabitant, took an objection to the excavation by the complainant party. In fact, it is his case that the complainant wanted to construct a house on such land which was resisted by him as a respectable of the locality. The question whether the complainant party was legally justified in taking clay from the said lands for carrying out repairs to the Imam. Bargah on the ground that the same was in actual possession of the complainant party and whether respondents had no right to resist the course of action contemplated by complainant party, need not be commented upon in this case and we leave it open for a decision thereon in appropriate proceedings by competent Courtsfora.

8. On the merits of the case, we find that it was the stance of the complainant in the FIR that the pasture land had been demarcated for 'Seven Marias Scheme' but Manzoor Hussain Shah had demolished such demarcation by means of a tractor. Later, both the deceased had gone to the site, exchange hot words with Manzoor Hussain Shah and hurled abuses at him. Surprisingly, both the eye-witnesses in their respective statements have maintained complete silence on this vital aspect of the case and stated that complainant alongwith witnesses and deceased had gone to the lands for taking clay for repair to the Imam Bargah. Motive part of the occurrence was, thus, knowingly and intentionally omitted and abandoned by the r prosecution, which remains unexplained and unaccounted for. Be that as it may, we may not be misunderstood to assume that since motive set up in the FIR was abandoned at the stage of evidence, it would affect the inherent quality of evidence furnished by the witnesses. The fact, however, remains that the ocular account of the incident is not supported by any circumstantial C evidence relating to motive for taking the lives of two innocent persons. Put differently, omission and abandonment of motive does create a serious dent in the case of the prosecution and in all probability the complainant party, ing an animus, against the respondents falsely involved them in this case. Moreover, the possibility of addition and substitution of the accused, thus, cannot be completely ruled out in the peculiar circumstances of this cause.

9. With regard to the contradiction between the ocular account and the medico legal evidence, we are of the view that apparently medical evidence is consistent with the ocular account that Khadim Abbas sustained two fire-arm injuries as a result of a shot, on being entrance-wound and the other being wound of exit Whereas Mureed Hussain sustained two separate and distinct fire-arm injuries. Since no question was asked of the medical witness about the nature of weapon, we are not inclined to accept the far fetched defence version that deceased/Mureed Hussain sustained gun-shot injuries and not rifle-shot injuries. The inference drawn by the learned Members of the Division Bench with regard to Injury No. 2 on the person of deceased-Mureed Hussain, appears to be conjectural and without any support from the nature, size, seat and manner thereof or by any principle of Medical Jurisprudence in that behalf.

10. Adverting to the recoveries of two rifles from the possession of Respondents Nos. 1 and 2 and two shot guns at the instance of Respondents Nos. 3 and 4, it is discernible from the record that this piece of evidence was disbelieved by the trial Court and that the High Court did not find any reason to differ with such appraisement of evidence. We do not find any good " reason to deviate from the assessment of evidence done by the trial Court and affirmed by the learned Members of the Division Bench of the High Court, which is neither contrary to the material on the record nor against the settled principles for appraisement of evidence in criminal cases.

^4i

1. Admittedly, we are dealing with an appeal against a judgment of acquittal. There are certain limitations on the power of the appellate Court to convert acquittal into a conviction. It is well settled that "appellate Court would not interfere with cquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous." The view taken by th s Court in Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11) is well known that "in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so a to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally." This principle was also followed in Muhammad Iqbal v. Sanaullah(PLD 1997 SC 569) and State v. Farman Hussain (PLD 1995 SC

2. We may refer to Ahmed v. Crown (PLD 1951 Federal Court 107), in which it was held that before an order of acquittal is reversed, it must be shown that the judgment of the Sessions Judge was unreasonable or manifestly wrong. If two conclusions were equally possible, an order of acquittal should not have been reversed. This principle was reiterated in Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan (PLD 1964 SC 426), in which it was observed that "where he (trial Judge) had read the evidence fairly and has formulated grounds of doubt which are not perverse or illogical or unreasonable, there is a clear risk of departure from the rule of benefit of doubt in reversing his findings." More or less, similar view was expressed in State v. Bashir (PLD 1997 SC 408), laying down that in an acquittal appeal, superior Courts generally do not interfere unless they find that miscarriage of justice has taken place. The factum that there can be a contrary view on reappraisal of the evidence by the Court hearing the appeal simpliciter would not be sufficient to justify interference with the acquittal judgment. Precedents reported as Muhammad Sharif v. uharrtamd Javed (PLD 1976 SC 452), Shahzado v State (PLD 1977 SC 413) and Farmanullah v. Qadeem Khan (2001 SCMR 1474), in our view, are hardly relevant for the determination of this appeal and do not advance the cause of the appellant.

3. In view of the aforesaid facts and reasons, we are of the considered view that the judgment rendered by the Division Bench of the Lahore High Court does not suffer from any error of law or jurisdiction. The conclusion drawn by the High Court is neither contrary to the evidence on record nor against the settled norms laid down by the superior Courts from time to time. In a case where the witnesses are inimically disposed towards the accused; have a motive against the accused for false implication and the manner of recovery of crime weapon to totally unreliable, the view taken by the High Court can neither be declared illegal nor upset in an appeal from acquittal. We hold that this appeal is without any substance. It is accordingly dismissed.

(A.P.) Appeal dismissed.

PLJ 2002 SC 301

[Appellate Jurisdiction]

Present: MuNm A. sheikh and rana bhagwandas, JJ. Hqji GHULAM SARWAR-Appellant

versus

HABIB-ULLAH and another—Respondents C.A. No. 638 & 639 of 1997, decided on 30.10.2001.

(Appeal against the judgment of Peshawar High Court, D.I. Khan Bench dated 7.2.1996 passed in C. Revision Nos. 41 & 44 of 1995)

N.W.F.P. Pre-emption Act, 1987 (X of 1987)--

—S. I3-Constitution of Pakistan (1973), Art. 185--Suit for pre-emption decreed by trial Court-Appellate Court dismissed suit to the extent of share on the ground that notice as regards talb-i-ishhad was in fact issued in the name of one of the two vendees and that no notice having been issued in the name of other vendee suit to the extent of his share was dismissed-High Court in revision by applying provisions of O.XLI, Rr. 4 & 33 C.P.C. dismissed the suit as a whole-Validity-High Court in revision was to satisfy itself whether judgment passed by First Appellate Court suffered from any irregularity amounting to illegality or jurisdiction not vested in court was exercised or exercise of jurisdiction was refused on erroneous assumption as if the same did not vest in Court—None of such criteria was, however, considered by the Court in dismissing suit-Discretion vested in Appellate Court under O.XLI, Rr. 4 and 33 to reverse judgment and decree of lower Court must be exercised keeping in view attending circumstances of case judicially on relevant consideration having logical nexus with the object of law-Right of pre­ emption being a right of substitution, where a vendee felt satisfied of decree passed against him for \ share, and did not object to the same, such decree could not be interfered with in revision filed by co-vendee, against whom suit had been dismissed-Judgment and decree of Appellate Court decreeing suit to the extent of \ share of land in question was affirmed while that that of High Court dismissing suit in toto, was set aside in circumstances. [Pp. 302 & 303] A & B

1995 SCMR 1510 ref.

Syed Safdar Hussain, AOR for Petitioner.

Mr. Fateh Muhammad Khan, AOR for Respondents.

Date of hearing: 30.10.2001.

judgment

Munir A. Sheikh, J.-This judgment will dispose of Civil Appeals Nos. 638 and 639 of 199^7 as common questions of law and facts are involved in both these appeals.

2.Mst. Zarina etc. sold land in dispute to Amanullah and Habibullah respondents. The appellant in these appeals filed a suit to pre­ empt the said sale. The suit was contested by Amanullah and Habibullah vendees. Trial Court through judgment dated 19.05.1992 decreed the suit. It was held that plaintiff shall pay an amount of Rs. 65621/6 which included charges etc., instead of Rs. 77000/. Amanullah did not file appeal against the judgment and decree whereas Habibullah, the other vendee, filed appeal which was partly accepted through judgment dated 29.01.1995 by learned District Judge by holding that notice as regards, Talb-i-Ishhad was in fact issued in the name of Amanullah, who did receive the same, therefore, the suit to the extent of 1/2 share purchased by him was decreed whereas suit qua Habibullah was dismissed for non-compliance of requirement of Talb-i- Ishhad. Two revision petitions, one by the plaintiff, challenging the dismissal of the suit qua Habibullah and the other by abibullah, challenging the decree to the extent of 1/2 share qua Amanullah were filed before the Peshawar High Court, Dera Ismail Khan Bench. The High Court dismissed the revision petition filed by the appellant whereas accepted that of Habibullah through the impugned judgment dated 07.06.1996 on t following grounds:-

(a) Notice regarding Talb-i-Ishhad was jointly given, which was not legal and valid compliance of the relevant provisions of law as to each vendee notice should have been separately issued.

(b) In the notice of Talb-i-Ishkad no mention had been made about making Talb-i-muwatkibat,which was necessary as per Section 13 of the Pre-emption Act as interpreted in Muhammad Ramzan v. Lai Khan (1995 SCMR 1510).

1. By applying provisions of Order 41 Rule 4 read with Rule 33 CPC, he suit as a whole was dismissed against which two appeals by leave of the Court are directed.

2. Learned counsel for the appellant contended that discretion under Order 41 Rule 4 read with Rule 33 has not been exercised judicially by the High Court. The first appellate Court did not exercise the said discretion for the reasons that Amanullah had not filed any appeal against the judgment and decree of the trial Court. Before the High Court also Amanullah did not file any revision to challenge the decree qua half portion of the land falling to his share and only Habibullah, against whom the suit had been dismissed by the first appellate Court, filed the revision petition.

3. In the revision petition High Court was to satisfy itself whether the judgment passed by first appellate Court suffered from any irregularity amounting to illegality or jurisdiction not vested in the Court was exercised or exercise of jurisdiction was refused on erroneous assumption as if it not vest in the Court. None of these criteria was considered while reversing judgment of the first appellate Court in dismissing the suit of the appellant in toto.

4. No doubt discretion is vested in the appellate Court under Order 41 Rule 4 read with Rule 33 to reverse the decree and judgment of the lower Court in favour of a non-appealing party in an appeal or a revision petition but, according to principles laid down by superior Courts, this discretion is to be exercised keeping in view the attending circumstances of the case judici­ ally on relevant consideration having logical nexus with the object of law.

5. Right of pre-emption, being a right of substitution, therefore, in this case if Amanullah felt satisfied of decree passed against'him for ½ share and accordingly did not object to the same, the same could not be interfered with in the revision petition filed by Habibullah co-vendee, against whom the suit had been dismissed. There is nothing on the record to show that Amanullah had, in the revision petition of Habibullah, made any request oral or in writing that decree passed by first appellate Court against him should also be set aside and he did not want to allow the pre-emptor to get 1/2 share of the land in the sale. It is well established law that a vendee, even without any suit could concede to the pre-emptor his right, out of Court and transfer the property to him in recognition of that right. In this case, inaction of Amanullah co-vendee of not challenging the decree passed against him did constitute an act of his agreement to give 1/2 share of lan in the sale to the pre-emptor, therefore, discretion under Order 41 Rule 4 read with Rule 33 CPC has not been exercised properly and judicially.

6. As regards findings of Courts below that notice was received only by Amanullah to whom it was addressed, it is based on postal receipt placed on the record read with evidence of postal Clerk. These findings are perfectly in accordance with the evidence on record, which we hereby affirm and hold that decree was ightly granted against Amanullah co-vendee to the extent of 1/2 share.

.9. Learned counsel for the respondents argued that the findings of the Courts below as to quantum of amount of consideration should be reversed for the sale in fact was made for an amount of Rs. 77000/-. We have gone through the record and found that no case has been made out for interference in the said findings of fact recorded by Courts below for there is no misreading or non-reading of any material piece of evidence, therefore, the argument is rejected.

1. For the foregoing reasons, both the appeals are accepted, judgment dated 07.2.1996 of the Peshawar High Court passed in civil Revisions Nos. 41 and 44 of 1995 set aside and that of the first appellate ourt dated 29.1.1995 is maintained and restored with the modification that Haji Ghulam Sarwar appellant/pliantiff shall deposit 1/2 of Rs. 65621/6 i.e. total consideration amounting to Rs. 32810/53 within two months from today in the trial Court, failing which the suit against Amanullah shall also stand dismissed without any further order. Parties are left to bearing their own costs. (A.A.) Order accordingly.

PLJ 2002 SC 304

[Appellate Jurisdiction]

Present: SH. RlAZ AHMAD, QAZI MUHAMMAD FAROOQ AND javed iqbal, JJ.

SAFDAR ALI~Petitioner

versus

ZAFAR IQBAL and others-Respondents Crl. Petition for Leave to Appeal No. 117 of 2001, decided on 18.6.2001.

(On appeal from the order dated 11.5.2001 of the Lahore High Court

Rawalpindi Bench Rawalpindi passed in Cr. Misc. No. 622-M/2001

in Crl. Rev. No. 137 of 2000)

Criminal Procedure Code, 1860 (XLV of 1860)--

—Ss. 169, 173 & 190-Constiuttion of Pakistan (1973), Art. 185-Trial Magistrate's order not to discharge accused persons on police report set aside by High Court directing it to decide the case through speaking order-Validity—Trial Magistrate's order showed that entire record had been examined including statements of complainant, prosecution witnesses and F.I.R. and thus, impugned order could not be deemed to have been passed in mechanical manner or arbitrarily-Magistrate was not supposed to pass exhaustive order for the reason that he was not deciding the case, therefore, it was not obligatory for him to dilate upon each and every aspect of the matter which fall within his jurisdictional negative report submitted by Police that accusation was baseless and no case was made out against delinquents-Where Magistrate disagrees with Police report he can take action under clause (b) of S. 190 Cr.P.C. against those whose names have been placed under column 2 of challan and he can issue process against those persons whose names were mentioned in said column who appear to him on the basis of report or other material placed before him, when he has taken cognizance of case, to be concerned in the commission of the offence-Order passed by trial" Magistrate was, thus, neither perverse nor capricious but the same had been passed after having an indepth scrutiny of entire record, therefore, same cannot be termed as non-speaking order as deemed by the High Court in impugned judgment-Petition for leave to appeal was converted into appeal and impugned order of High Court was set aside while that of trial Magistrate was restored. [Pp. 306 to 311] A, B & C

1997 SCMR 304; 1988 SCMR 1428; PLD 1967 SC 425; PLD 1967 Lah. 176;

1972 SCMR 335; 1986 SCMR 1736; 1985 SCMR 1314; 1981 SCMR 267;

26 Cr.L.J. 181 and 31 Cr.L.J. 55.

alik Rab Nawaz Noon, ASC and Ejaz Muhammad Khan, AOR for Respondents Nos. 1 and 2.

Date of hearing: 18.6.2001.

order

Javed Iqbal, J.--This criminal petition for leave to appeal has been preferred on behalf of Safdar Ali (petitioner) under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the orders dated 25.4.2001 and 11.5.2001 passed by learned Lahore High Court Rawalpindi Bench Rawalpindi in Criminal Revision No. 137 of 2000 whereby order dated 8.11.1997 passed by learned Illaqa Magistrate has been set aside and case remanded back with the direction for its disposal after affording an opportunity of hearing to both the parties on questions of law and facts.

1. Briefly stated the facts of the case are that in pursuant to FIR got lodged by Safdar Ali on 6.10.1997 under Sections 302, 324, 147, 148 and 149 PPC a case was registered at Police Station Saddar Berooni and in consequence whereof the respondents were arrested. After completion of iirvestigation an application was moved for discharge of the respondents which was turned down by the learned Illaqa Magistrate vide order dated 8.11.1997. Being dissatisfied the respondents filed a criminal revision before the learned Additional Sessions Judge which was dismissed by means of order dated 25.9.1999. The respondents made another attempt for the redressal of their grievances and filed a writ petition which was dismissed on 24.11.1999. The respondents thereafter preferred air application under Section 265-K Cr.P.C which was dismissed by the learned Additional Sessions Judge on 14.9.1999 which was assailed before the learned Lahore High Court Rawalpindi Bench Rawalpindi and case was remanded to the learned trial Court for its disposal. It mainly prevailed upon the learned High Court that the order passed by learned Illaqa Magistrate on 8.11.1997 hereby discharge application submitted by police was rejected cannot be termed as a speaking order.

2. It is mainly contended by Mr. Muhammad Eyas Siddiqui learned ASC on behalf of petitioner that the provisions as contained in Sections 169 and 173 Cr.P.C. have been misconstrued and misinterpreted which resulted in serious miscarriage of justice. It is next contended that challan has been submitted and after lapse of a few years a remand of case by the learned High Court is not in accordance with settled norms c,f justice as the application submitted under Section 265-K Cr.P.C. by the respondents was rejected videorder dated 14.9.2000 which was' passed after having scrutinized the entire record with care and cautjon by the learned Additional Sessions Judge, Rawalpindi. It is also contended that the discharge order was passed by learned Illaqa Magistral- on 8.11.1997 which was assailed before the learned Additional Sessions Judge by means of revision which was also dismissed on 25.9.1999. It is urged with vehemence that every effortwas made by the respondents to protract the case by one or the other pretext which aspect of the matter escaped notice from the learned High Court.

3. Malik Rabnawaz Noon, learned ASC appeared for caveators and has supported the impugned judgment being free from any illegality or infirmity by arguing that the order passed by Illaqa Magistrate dated 8.11.1997 was laconic as proper opportunity of hearing was not provided to the respondents and discharge order has been passed in a cursory and slipshod manner which resulted in serious miscarriage of justice. It is also contended that the names of the respondents were shown in Column No. 2 of the challan and thus they could not have been summoned to face the trial without recording the evidence establishing that a prima facie case is made out against them. In order to substantiate his version case titled Muhammad Sharif v. State (1997 SCMR 304) has been referred.

4. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have also examined the order of learned Illaqa Magistrate passed on 8.11.1997 which is reproduced herein below for ready reference:-

5. A bare perusal of the said order would reveal that entire record has been examined including the statements of complainant, prosecution witnesses and FIR and thus it can be inferred safely that the same has not been passed in a mechanical manner or arbitrarily. It may not be out of place to mention here that learned Illaqa Magistrate was not supposed to pass anexhaustive order for the simple reason that he was not deciding the case at all and, therefore, it was not obligatory for him to dilate upon each and every aspect of the matter which falls within the jurisdictional domain of learned trial Court. It is well settled by now that the Magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents. There is no cavil to the proposition that the accused placed on Column No. 2 of challan cannot be summoned by the learned trial Court to face the trial and there is not legal bar whatsoever that at first instance the evidence should be recorded to ascertain as to weather the prima facie case is made out against them. In this regard reference can be made to case titled. Waqarul Haq v. State (1988 SCMR 1428). Malik Rabnawaz Noon learned ASC could not mention any provision in Cr.P.C. in support of his contention that evidence should have been recorded prior to summoning the respondents whose names were admittedly placed in Column No. 2 of the challan. In this regard we are fortified by the dictum as laid down in case titled Falak Sher v. State (PLD 1967 SC 425) which has been followed in various judgments passed by this Court and relevant portion whereof is reproduced herein below for ready reference:-

"In our opinion, the action of the Magistrate in issuing summons to these appellants despite the fact that the Investigating Officer in his report under Section 173, Cr.P.C. placed their names in Column 2, was clearly correct. Section 173, Cr.P.C. is in these terms:-

"173.—(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police-station shall--

(a) forward to a Magistrate empowered to take cognizance of the offence on a police report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

(2) Where a superior officer of police has been appointed under Section 158, the report shall, in any cases in which the Provincial Government by general or special order so irects, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police-station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

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

Under sub-section (1), when the investigation is completed the police officer is required to forward to the Magistrate a report in the prescribed form. Under sub-section (3) when it appears from the report forwarded under Section 1, that the accused has been released on his bond "the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit". It is clear that under Section 3 a Magistrate may agree or may not agree with the police report. It, however, does not say what step the Magistrate should take if he disagrees with the police report. If the Magistrate wants to start a proceeding against the accused, he must act under Section 190 of the Code of Criminal Procedure.

Section 190 provides that a Magistrate "may take cognizance of any offence (a) upon a complaint, (b) upon a police report, or (c) upon information received by himself.

Now, the question is, if he disagrees with the report, can he take action under clause (b) against those whose names have been placed under Column 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under Section 173. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the Investigation Officer. There is nothing in Section 190 to prevent a Magistrate from taking cognizance of the case under clause (b) in spite of the police report. This Court in the case of Sardar Ali and others v. The State P.S.L.A. No. 66 of 1966, while dealing with a similar question, observed:-

"Reference to Section 173, Cr.P.C. which prescribes the details that must go into a police report of the relevant kind shows that the requirements are of a factual nature, so that, irrespective of the Investigating Officer's opinion, a Magistrate takes cognizance on a police report, when he proceeds against a person whose name is mentioned therein as one accused of the offence reported upon."

In conclusion, we may observe that this has been the consistent view of the High Court West Pakistan and that Court has correctly interpreted the meaning and scope of

Sections 173 and 190 of the Code of Criminal Procedure in Muhammad Nawaz Khan v. Noor Muhammad and others (PLD 1967 Lah. 176)".

A similar proposition was discussed in case titled Muhammad Akbar v. State (1972 SCMR 335) as under:

"Even on the first report alleged to have been submitted under Section 173, Cr.P.C. the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance, if upon the materials before him he found that aprima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of Section 190(l)(b) of the Code of Criminal Procedure. This view finds support from a decision of this Court in the case GtFalak Sher v. State (PLD 1967 SC 425)".

1. The implications of Sections 173 Cr.P.C. were also discussed in case titled Saeed Muhammad Shah v. State (1993 SCMR 550) wherein it was held as under:

"Report of police officer under Section 173, Cr.P.C. is merely an information of the police officer and the same is not admissible in evidence. Presumption of innocence of accused involved in such report is not diminished by mere fact that the case has been sent up for trial or that particular witness or person had formed opinion against the accused."

The said view also finds support from case titled Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736). An identical issue remained subject of discussion in case titled Khushbakhtur Rehman v. State (1985 SCMR 1314) whereby it was concluded as follows:

"6. Before us, too learned counsel for the petitioner reiterated the contentions that application of mind being a prerequisite of taking cognizance, the Magistrate, who had acted mechanically and without application of mind in sending the case to the Court of Session, could not be said to have legally taken cognizance of the case. In this connection, he urged that the case against the petitioners, who had been found innocent by the police could not have been sent alongwith that of the other accused without express reasons. The arguments addressed by learned counsel in fact showed that he laboured under the impression that cognizance is to be taken of an offender, but that is not the law. Under Section 190(3), Cr.P.C. the Magistrate takes cognizance of an offence and not of an offender. He takes cognizance of the case as a whole and not qua only some of the accused found by the police to be implicated in the case. Cognizance can be taken even if the offenders be unknown. On taking cognizance of the offence the Court acquires jurisdiction over all the persons involved and not only over persons against whom the challan is submitted. The word "cognizance" is a term of art implying application of mind to the facts of a case in order to determine whether the facts disclosed constituted an offence triable. Application of mind for the purpose of cognizance under Section 190 (1) and (3) read with Section 193, Cr.P.C. is for the purpose of determining whether the facts disclosed the commission of an offence triable exclusively by the Court of Session, in which case the Magistrate is bound to send the case to the Court of Sessions for trial. This legal position stands already explained by this Court in Mehar Khan v. Yaqub Khan 1981 SCMR 267 in the words:

"....even under the recently substituted sub-section (3) of Section 190, Cr.P.C., a Magistrate who takes cognizance of any offence under any of the clauses of sub-section (1) of that section, is required to apply his mind in order to ascertain as to whether the case in question is one which he is required to 'send' for trial to the Court of Session or whether it is one which he can proceed to try himself."

Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Sessions, he has to send the case of that Court and it is not open for him to send the case only qua those of the accused who are placed in Column No. 3 of the challan. The order of the Magistrate shows that the challan had been before him when he ordered the sending of the case to the Court of Session. The contention that he had not applied his mind to the facts of the case is thus devoid of merit.

1. As regards the power of the trial Court to summon the etitioners, who had been placed in Column No. 2 learned counsel does not deny that the trial Court is possessed of such power. He contends that the trial Court had not taken proper note of the fact that the petitioners had been found guilty neither by the police nor by the Illaqa Magistrate to whom the case had been referred under Section 202, Cr.P.C. The learned Judge in his order, dated 3.10.1978 has given reasons for summoning the petitioners. thus suffers from no legal infirmity. It is to be noted that the petitioners had dropped their objection to the issue of process against them by withdrawing under Section 190 (1) (b) on a police report he takes cognizance of the offence and not merely of a particular person charged in the report as an offender. He can, therefore, issue process against other persons who also appear to him on the basis of the report and other material placed before him when he has taken cognizance of the case, to be concerned in the commission of the offence when he does so he does not act under clause (c),therefore Section 191 is not applicable." (Mehrab vs Emperor [F.B.] 26 Cr.L.J. 181, Lai Bihari Singh v. Emperor 31 Cr. L.J. 55. On the touchstone of criterion as discussed herein above we are of the considered view that the order passed by learned Rlaqa Magistrate dated 8.11.1997 is neither perverse nor capricious but on the other hand it has been passed after having an in depth scrutiny of the entire record and thus it cannot be termed as non-speaking as held by the learned High Court in the impugned judgment and being unexceptionable it hardly calls for any interference. We are inclined to J convert this petition into appeal and accordingly while allowing the same the impugned order dated 11.5.2001 is hereby set aside being in violative of the relevant provisions of law and consequently order dated 8.11.1997 is restored. The learned trial Court is directed to proceed with the case in accordance with law.

(A.A.) Appeal accepted.

PLJ 2002 SC 311

[Appellate Jurisdiction]

Present: muhammad bashir jehangiri, munir A. sheikh and rana bhagwandas, JJ.

ABDUL GHAFOOR, SUPERVISOR/INSPECTOR N.H.A-Appellant

versus

NATIONAL HIGHWAY AUTHORITY and 12 others-Respondents C.A. No. 1464 of 1997, decided on 22.10.2001.

(On appeal from judgment of Federal Service Tribunal dated 11.7.1996 passed in Service Appeal No. 138(R) of 1996)

National Highway Authority Service Rules, 1995--

—Schd. Ill & R. 20(2)--National Highway Authority's (Appointment and Promotion) Rules 1995, Schd. I & II--Constit.ution of Pakistan (1973), Art. 212--Appellant and respondents employed in respondent Authority on work-charge basis were regularised with effect from specified date-­Appellant claimed supersession in matter of promotion to B-17 and promotion of respondents, in violation of law and Service Rules applicable to his cadre of service-Respondents except one of them were though regularised alongwith appellant, were however, Graduate Engineers possessing degree of B.Sc (Eng.) while appellant possesses Diploma in Engineering-Condition prescribed for eligibility in ten years service for Diploma holders for promotion from B-16 to B-17, while for BSc Engineering it is one year-Respondents having completed one year service in B-16 and being graduates were rightly promoted to B-17,whereas respondent's service being less than 10 years was rightly not promoted being Diploma holder-Promotion of one respondent who was not even Diploma holder was however, not warranted being in violation of law and the Rules applicable-Appellant's appeal to the extent of specified respondent who is not even diploma holder was declared to be without lawful authority and of no legal effect. [Pp. 314 & 316] A, B & C

1991 SCMR 1129; PLD 1994 SC 539; 1996 SCMR 329; 1990 SCMR 1321 ref.

Mr. Habibul Wahab-al-Khairi, ASC and Mr. Imtiaz Muhammad Khan, AOR for Appellant.

Mr. K.M.A Samdani, ASC and Mr. Mehr Khan, AOR for Respondent No. 1.

Respondents Nos. 2 to 13 ex-parte.

Respondent No. 13 (Mushtaq Ahmad) present in person.

Date of hearing: 22.10.2001.

judgment

Rana Bhagwandas, J.--This appeal with the leave to this Court is directed against judgment dated 11.07.1996 of the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal), dismissing appellant's Sen/ice Appeal impugning his supersession in the matter of promotion to B-17 and promotion of Respondents Nos: 2 to 13 in violation of law and the Service Rules applicable to his cadre of service.

1. Appellant was serving as Supervisor/Inspector in. the National Highway Authority on work charge basis since 17.08.1988. His services, alongwit.h other employees of the Authority, were regularised with effect from 09.03.1895 in terms of sub-rule (2) of Rule 20 of the National Highway Authority Service Rules, 1995 (hereinafter referred as Service Rules, 1995). It is the case of the appellant that Respondents Nos. 2 to 6 and 8 to 13 were also regularised in service through the same order. Respondents Nos. 10 to 12 were working as Supervisors but their cadre of service was distinct and not interchangeable, whereas Respondent No. 13 was ineligible for induction as Supervisor/Inspector for not possessing the prescribed qualification of three years diploma in Civil Engineering from an Institute recognised by the Board of Technical Education. It is his grievance that name of Respondent No. 7 did not appear in the office order of regularisation as well as the seniority list. With regard to Respondents Nos. 2 to 6, it is claimed that they were junior to the appellant as per Provisional Seniority List dated 21.05,1995. Appellant asserted that Respondent No. 1 maintained a combined seniority list of Supervisors/Inspectors comprising of Graduate Engineers as well as Diploma holders in Civil Engineering for the purpose of promotion to the office of Assistant Director (Engineering). It is the grievance of the appellant that promotion to various posts in the respondent Authority though required to be made on the basis of seniority-cum-fitness, Respondent No. 1, without any legal justification issued four office orders Bearing No. 11 (8) Admn. (P)NHA/95, dated 14.11.1995, making promotion of 27 Supervisors to the posts of Assistant Director (Enineering) and Assistant Director (Quantity Surveyor) on regular basis and of Respondent No. 13 on acting charge basis with effect from 30.10.1995 in disregard of seniority and fitness and without declaring any promotion policy. According to him, he was not considered for promotion while Respondents Nos. 1 to 7, being junior to him and Respondents Nos. 10 to 13 being outside the cadre were promoted to the higher post. Appellant preferred departmental appeal against his supersession in the matter of promotion, which was rejected. He, therefore, made a Service Appeal under Section 4 of the Service Tribunals Act, 1973 before the Tribunal, impugning office orders dated 14.11.1995 promoting the respondents as illegal and without any lawful authority. He prayed for a declaration that he was entitled to be considered for promotion from the date his juniors were promoted to the higher posts with consequential benefits including seniority in the higher cadre.

2. Respondent Authority contested the appeal and in its comments averred that there were 34 posts available in B-17, one post of Statistical Investigator and one post of Assistant Director (Quantity Surveyor). It was said that as per National Highway Authority's (Appointment and Promotion) Rules 1995 (hereinafter referfod as Promotion Rules 1995) Schedule-I 100% technical posts in B-17 were required to be filled by direct recruitment whereas Schedule-Ill prescribe the length of service for promotion from B-16 to B-17 for a Diploma holder as ten years in B-16 and for a Graduate Engineer only one year. However, according to Government instructions 20% posts in B-17 were reserved for promotion of Diploma holders without amending the relevant Rules. It was claimed that appellant's case was considered alongwith others for promotion but he was not promoted as he did not qualify ten years regular service in B-16. It was averred that Respondents Nos. 10 to 12 were Graduate Engineers. Respondent added that the persons promoted to B-17 were Graduate Engineers and their promotions were not ordered against 12% quota reserved for promotion of Diploma holders.

3. We have heard M/s Habibul Wahab Al-Khairi and K.M.A Samdani, learned ASCs for the parties and examined the record.

4. There is no cavil with the position that services of the appellant as well as a large number of employees, including the respondents employed in respondent Authority on work charge basis were regularised with effect from 09.03.1995 vide office order dated 25.04.1995 as a "One time" exercise under the provisions of Rule 20 (2) of the Service Rules, 1995, which reads as under:-

"Rule 20(2) The erstwhile Workcharge Employees of the Authority serving in the project shall be inducted in the Authority as a "One Time" exercise after they are cleared by the selection committees duly appointed by the competent Authority, They shall be inducted from the date of Notification of these rules. However, their service as workcharge Employee will count towards qualifying service for consideration for promotions and for pay and pension."

1. It may be observed that consequent upon induction of the appellant and his colleagues in regular service of the respondent Authority, their service as work charge employees will count towards qualifying service for consideration for promotion and for pay and pension. It would, however, not count for the purpose of seniority, as misunderstood by the appellant. It was so held by this Court in Civil Appeal Nos. 1237 to 1253, 1255 to 1257, 1333 and 1338 of 1999 decided on 14.09.2001. It is undisputed that Respondents Nos. 2 to 12, though regularised alongwith the appellant, are Graduate Engineers, possessing the degree of B.Sc (Civil) whereas the appellant possesses a Diploma in Civil Engineering from a recognises Institute. Schedule-Ill to Service Rules 1995 at Serial No. 4 prescribes condition of eligibility as ten years service for diploma holders for promotion from B-16 to B-17, while for B.Sc. (Engineering), it is one year. It may be observed that on the date of promotion of the respndents, appellant had served for less than seven years in the respondent Authority and was, therefore, not eligible for promotion to B-17 as wrongly asserted. Learned counsel for the appellant, however, contended that unlike Respondents Nos. 2 to 12, Respondent No. 13 i.e, Mustaq Ahmad was also ineligible for promotion to B-17 but, by virtue of recommendations of the Departmental Selection Committee, he was promoted as Assistant Director (Quantity Surveyor) on acting charge basis. Learned counsel referred to the recommendations of the Selection Committee dated 30.10.1995 and seriously criticised the promotion of this respondent, even on acting charge basis in terms of Rule 1.1 of Promotion Rules, 1995. Admittedly, Respondent No. 13 possessed a certificate in civil estimation but did not hold the diploma in civil engineering, which is the prescribed minimum qualification for induction as Supervisor/Inspector in the respondent Authority. In this behalf reference may be made to Rules 8 to 11, of Promotion Rules 1995 which read as follows:

CHAPTER-II APPOINTMENT BY PROMOTION.

"8. Promotions to posts under the Authority shall be made on the recommendations of he respective Selection Committee.

1. Only such persons who possess the qualifications and meet the conditions laid down in Schedule-IV shall be considered by the respective Selection Committee for initial appointments and only such persons who meet the requirements laid down in Schedule-Ill shall be considered for promotion by the respective Selection Committee.

10 promotion shall be made to posts unless the employee concerned has completed such minimum length of service as specified in Schedule-Ill.

11 (1) Where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior officer/official belonging to the cadre as given in Schedule-IV who is otherwise eligible for promotion does not possess the specified length of service as given in Schedule III, the Authority may appoint him to that post on acting charge basis.

(2) So long as a officer/official holds the acting charge appointment person junior to him shall not be considered for regular promotion but may be appointed on acting charge basis to a higher post.

(3) In the case of a post in Basic Pay Scale 17 to 20 and equivalent, reserved under the rules to be filled by initial appointment where the appointing authority is satisfied that no suitable officer drawing pay in basic pay scale in which the post exists is available in that category and it is expedient to fill the post, it may appoint to that post on acting charge basis the most, senior officer/official otherwise eligible for promotion in cadre in excess of the promotion quota.

(4) Acting charge appointment may be made against posts which are likely to fall vacant for a period of six months or more. Against vacancies occurring for less than six months, current charge appointment may be made according to the orders issued from time to time.

(5) Appointment on acting charge basis shall be made on the recommendations of the selection committee.

(6) Acting charge appointment shall not mean an appointment by promotion on regular basis for any purpose including seniority.

(7) Acting charge appointment shall not confer any vested right for regular promotion to the post held on acting charge basis.

(8) Appointment by transfer shall be made from amongst the persons holding appointment on a regular basis on a post in the same basic pay scale or equivalent to or identical with the posts to be filled and possessing the qualifications and experience prescribed for the post."

1. Although Respondent No. 13 has been proceeded against ex-parte, he was present in person and he frankly conceded that he did not possess a Diploma in Civil Engineering though he claimed that he had long experience in the field of Civil Estimation at his credit and has qualified a course of study in the field of Civil Estimation. Be that as it may, since the prescribed qualification for eligibility to promotion is Diploma in Civil Engineering from a recognised Institute with ten years service experience and as the said respondent did not possess the requisite qualification, therefore, he was wrongly promoted by the respondent Authority. No doubt, Departmental Selection Committee is vested with discretion and the respondent Authority may be competent to promote a person on acting charge basis by relaxing the prescribed length of service, but there is no discretion with the Authority to dispense with or to relax the prescribed academic qualifications. We, therefore, hold that promotion of Respondent No. 13 and his appointment as Assistant Director (Quantity Surveyor) in B-17 on acting charge basis, in preference to the appellant and his colleagues cannot be countenanced. Mr. K.M.A. Samdani, learned ASC for the Respondent No. 1 was not in a position to defend the respondent Authority's act of promoting this respondent, ignoring the appellant and twenty other Supervisors/Inspectors but he raised a legal plea that since by now the appellant and his colleagues have completed ten years of service, they would be considered for regular promotion alognwith Respondent No. 13 in due course and the matter be left for consideration of the respondent Authority. He also relied upon Section 4 (1) (b) of the Sendee Tribunals Act, 1973, laying down that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade. There can be no cavil with the proposition of law canvassed at the Bar but striclty speaking, the appellant is asking for the enforcement of his legal right oa the ground that he was ignored although eligible while other respondents, who were ineligible, were promoted. The issue has been set at rest in a number of cases and in that behalf we may refer to Abdul Malik v. Sabir Zameer Siddiqui (1991 SCMR 1129), Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539) and Z.A Javed Rqja Administrative Officer v. Secretary Establishment Division (1996 SCMR 329). Learned counsel relied upon Government of NWFP, Health and Social Welfare Department v. Muzaffar Iqbal (1990 SCMR 1321) but in our view the said precedent is hardly attracted to the circumstances of the appellant's case. We do not think that the appeal preferred by appellant was incompetent or barred by law. Prima facie, since the appellant was equally eligible for consideration for promotion to B-17 on acting charge basis, we allow his appeal to the extent of Respondent No. 13, whose promotion on acting charge basis in B-17 is declared to be without lawful authority and of no legal effect. Respondent, Authority is directed to processs the promotion cases of Diploma holders against available vacancies as early as possible. Appeal as against the remaining respondents, however, stands dismissed as admittedly they are graduate Engineers with more than one year service and eligible for promotion. We make no order as to costs.

(A.P.) Appeal dismissed.

PLJ 2002 SC 317

[Appellate Jurisdiction]

Present: muhammad bashir jehangiri, munir A. sheikh and rana bhagwandas, JJ.

SWAT CORN PRODUCTS-Petitioners

versus

GRAIN DEALERS and others-Respondents C.P. Nos. 1261, 1820 to 1823 of 2001, decided on 17.10.2001.

(On appeal from the judgments of the Peshawar High Court, Peshawar, dated 9.4.2001 passed in C.R. No. 138/2001 & 18.5.2001 passed

in C.R. Nos. 207-210/2001 respectively)

Shari-Nizam-e-Adl Regulation, 1999 (1 of 1999)-

—S. 8 Constitution of Pakistan (1973), Art. 42-Execution petition for recovery of decretal amount-Objection petition against recovery of any amount as interest being repugnant to injunctions of Islam and Sunnah of Holy Prophet-Such petition was dismissed by all the Courts including the High Court-Validity-Liability to pay additional amount under S. 34 C.P.C. was determined as far back as in 1979, which decree had become final and past and closed transaction—Petiitoners through objection petition, wanted to re-open the case and get that part of the decree annulled, therefore, it has been rightly maintained by Courts below that Executing Court could not go behind the decree-Provisions of Regulation No. 1 of 1999, could be pressed into service at the stage when the rights and liabilities of parties in a suit are determined and the law applicable at that time is to be followed impugned judgments, thus, do not suffer from any legal infirmity or jurisdictional defect, therefore, petitions being without merit, leave to appeal was refused. [P. 320] A

PLD 2000 SC 225 ref.

Raja M. Ibrahim Satti, ASC and Mr. M.A. Zaidi, AOR for Petitioners.

Mr. ImtiazAli, Addl. A.G. (N.W.F.P.) for Respondents. Date of hearing; 17.10.2001.

judgment

Munir A. Sheikh, J.--Through this common judgment, we propose to decide Civil Petitions Nos. 1261 and 1820 to 1823 of 2001 involving identical questions of law and facts.

1. The facts of the case as given by learned counsel for the petitioners relevant for disposal of these petitions shortly stated are that a decree was passed against the petitioners and in favour of the respondents in a suit filed by the latter for the recovery of price of maize supplied to the petitioners. It was contested by the petitioners. The trial Court, however, after considering the evidence produced by the parties decreed the suit alongwith interest at the specified rate under Section 34 CPC and the proceedings for satisfaction of the said decree are still pending before the trial Court.

2. On 14-11-1994, Regulation II of 1994 known as Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah)Regulations, 1994 was enforced. Section 8 of the said Regulation reads as under: -

"(8) Conduct of Judicial Officers.--(l) The Conduct of Judicial Officers specified in the Schedule II shall be in accordance with the Islamic Principles.

(2) Government may, from time to time, take such measures for the purposes of sub-section (1) as it may deem necessary".

1. The petitioners moved an objection petition before the Execution ourt objecting to the recovery of any amount granted in the decree as interest by arguing that Section 8(1) Ibid provides that the Conduct of Judicial Officers specified in the Schedule II shall be in accordance with the Islamic principles, therefore, the Presiding Officer/Executing Court was bound to disallow the interest allowed in the decree. Learned counsel for the petitioners submitted that in view of Section 11 of the said Regulation which provided that notwithstanding the repeal of laws under the said Regulation, the same would not affect the previous operation of law, instrument, etc. and any right, privilege, obligation or liability accrued, therefore, the said objection petition was withdrawn.

2. Subsequently, however, Regulation No. 1 of 1999 known as Shari-Nizam-e-Adl Regulation, 1999 was promulgated with effect from 16.1.1999, Section 8 of which reads as nder:-

"8. Conduct of Judicial Officers.--The Conduct and character of Judicial Officers and Executive Magistrates shall be in accordance with the Islamic principles.

(2) Notwithstanding anything contained in any law for the time being in force, all cases, suits, inquires, matters and proceedings in Courts, pertaining to the said area shall be decided by the Courts concerned in accordance with Shariah:

Provided that cases of non-Muslims in matters of adoption, divorce, do er inheritance, marriage, religion, religious rites, usages and wills shall be conducted and decided in accordance with their respective personal laws.

(3) Government may, from time to time, take such measures for the purposes of sub-Paragraph (1) as it may deem necessary".

1. In view of sub-paragraph (2) of Section 8 of this Regulation, fresh objection petitions were filed against the recovery of any amount as interest being repugnant to Injunctions of Islam and Sunnahof Holy Prophet (PBUM) which have been dismissed through order dated 6-2-2001 by Civil Judge Qazi. Appeals filed by the petitioners against the said order were dismissed by the learned District Judge/Zila Qazi through judgment dated 14-3-2001. Revision Petition filed by them were also dismissed by the Peshawar High Court through the impugned judgment dated 18-5-2001 against which these petitions have been directed.

2. Learned counsel for the petitioners raised the following contentions in support of these petitions:-

(a) That in view of Section 8 (2) of Regulation No. 1 of 1999, all the proceedings pending before any Court are required to be decided according to the Shariah, therefore, any amount under decree as interest could not be recovered and the execution application to that extent was liable to be dismissed.

(b) That according to the law declared by the superior Courts in particular observation made in the judgment reported as Dr. M. Aslam Khaki versus Syed Muhammad Hashim and 2 others (PLD 2000 SC 225), every Court under Article 2A of the Constitution could decide the cases in accordance with Shariah without having recourse to the Federal Shariat Court under Chapter 3-A of the Constitution for getting a declaration that a particular law was repugnant to the Injunctions of Islam and Sunnah of Holy Prophet (PBUH), therefore, by virtue of the said declaration, even independently from sub-paragraph (2) of Section 8 of Regulation No 1 of 1999, the trial Court was bound to decide the execution petition according to Shariah Law.

1. The examination of Regulation No. 1 of 1999 as a whole shows that it was promulgated and enforced with effect from 16-1-1999 and was perative prospectively. In the judgment of Dr. M. Aslam Khaki (supra), Section 34 CPC was declared to be repugnant to Injunctions of Islam and Sunnah of Holy Prophet (PBUH) to the extent that instead of grant of interest, the Court should be empowered to grant compensation for non­ payment of the amount due or for its delayed payment with effect from 30.6.2001. The provisions of Section 34 CPC to that extent ceased to be the law with effect from 30-6-2001 by operation of Chapter 3A of the Constitution. In view of this judgment and the date having been fixed under the provisions of the Constitution as to from which date the said provisions of Civil Procedure Code would cease to be the law, we are not called upon to examine the contention of learned counsel for the petitioners as to the effect of sub-paragraph (2) of Section 8 of Regulation No. 1 of 1999 and the effect of Article 2A of the Constitution. The declaration by the Shariat Appellate Bench of this Court in the said judgment (supra)also provides that the decree holder could be ordered to be paid additional payment on account of compensation. It is also necessary to take notice of Section 12 of Regulation No. 1 of 1999 which reads as under:-

"12. Repeal.--(l) The Provincially Administrated Tribal Areas (Nifaz-Nizam-e-Shariah) Regulation, 1994 (N.W.F.P Regulation II of 1994), is hereby repealed.

(2) Notwithstanding the repeal of the Regulation under sub-paragraph (1) or cessation of any law, instrument, custom or usage under Paragraph 4, the repeal or cessation, as the case may be, shall not-

(a) revive anything not in force or existing at the time at which the repeal or cessation takes effect;

(b) after the previous operation of the law, instrument, custom or usage or anything duly done or suffered thereunder;

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law instrument, custom or usage;

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law, instrument, custom or usage, or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture or punishment may be ceased to have effect, as the case may be."

1. The liability to pay additional amount under Section 34 CPC was determined as far back as in 1979 which decree had become final and past and closed transaction and the above mentioned provisions of Regulation No. I of 1999 if read alongwith judgment of Sharait Appellate Bench of this Court in the case (supra) has left no ambiguity that the same has to be executed and given effect to. Through the objection petitions, the petitioners wanted to reopen the case and get that part of the decree annulled, therefor, it has been rightly held by the Courts below that Executing Court could not go behind the decree. The provisions of Regulation No. I of 1999 could be pressed into service at the stage when the rights and liabilities of the parties in a suit are determined and the law applicable at that time is to be followed.

2. For the foregoing reasons, the judgments impugned in these petitions do not suffer from any legal infirmity or jurisdictional defect, therefore, these petitions have no merits which are accordingly dismissed and leave refused.

3. No order as to costs.

(A.A.) Leave refused.

PLJ 2002 SC 321

[Appellate Jurisdiction]

Present: iftikhar muhammad chaudhry and hamid alt mirza, JJ.

MUHAMMAD RA.SI 11D AHMAD-Appellant

versus

MUHAMMAD SIDDIQUE-Respondent C.A. Nos. 925 £ 926 of 2000, decided.on 31.10.2001.

(On appeal from the judgment/order dated 19.4.2000 passed by Lahore High Court, Lahore in C.R. Nos. 2098-2099 of 1997)

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

—-S. 12-Constitution of Pakistan (1973), Art. 185(3)-Concurrent findings of facts recorded by two Courts below were set aside by High Court-Leave to appeal was granted intcr-alia ,to consider; whether High Court was justified to intervene with concurrent findings of facts recorded by Courts below in favour of petitioner, for it has been argued that High Court has ignored material piece of evidence by reversing such findings.

[P. 322] A

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

.-—S. 12-Constitution of Pakistan (1973), Art. 185-Plaitniff s suit for specific performance of agreement to sell decreed by trial Court and affirmed by Appellate Court was set aside by High Court-Validity-High Court had interfered with concurrent findings recorded by trial and Appellate Courts without indicating misreading or non-reading of evidence or same being in anyway in violation of law-High Court would refrain to interfere in absence of misreading, non-reading or misconstruction of evidence or if appellate forum had no jurisdiction to decide the matter or that it had declined to exercise jurisdiction vested in it or it had acted illegally or with material irregularity-High Court had granted relief to respondent which he had never pleaded either in his written statement or during proceedings-Impugned judgment was set aside while that of Appellate Court decreeing plaintiffs (appellants) suit was restored.

[Pp. 325, 527, 328 & 329] B, C & D

2000 SCMR 346, 1997 SCMR 1139; 1996 SCMR 813; 1984 SCMR 504; PLD 1970 SC 288; PLD 1983 SC 53; PLD 1988 Lah. 632 & 1988 CLC 1152 rel.

Mirza Masood-ur-Rehrnan, ASC and Mr. M.A. Qureshi, AOR Absent for Appellant.

Syed Samar Hussain, ASC and Mr. Walayat Umar Ch., AOR Absent for Respondent.

Date of hearing: 27.9.2001.

Judgment

Iftikhar Muhammad Chaudhry, J.-In Appeals Nos. 925 and 926 leave was granted against the judgment dated 19th April, 2000 passed by Lahore High Court, Lahore in C.Rs. Nos. 2098-2099 of 1997. Relevant para therefrom is reproduced hereinbelow:

"Leave to appeal is granted inter-alia, to consider whether the High Court was justified to interfere with concurrent findings of facts recorded by both the Courts below in favour of the petitioner, for it has been argued that the High Court has ignored material piece of evidence by reversing the said findings."

1. Precisely stating facts of the case are that appellant filed Civil Suit No. 414-1 of 1989 for specific performance of agreement dated 14.11.1968 on the averments that respondent (defendant) is his real brother. Both appellant and defendant came to Pakistan at the time of partition alongwith their families. As parties were landless,, therefore, appellant got allotted 6% Acres of land situated in Square No. 68, Killas No. 528 and Square No. 29 Killas No. 16, 17/225 in Chak No. 285/GB, owned by Government under Guzara Scheme. As tit the relevant time -respondent was minor therefore, appellant made the land cultivable. In they year 1956-1957, Government allotted half land in Square No. 68 to some other person and also auctioned the land of Square No. 29, so the respondent's allotment remained only up to the land in Square No. 68, KHlas No. 51/2 to 8/2. However, subsequently with the efforts of appellant 52 Kanals 13 Marias of land was allotted to respondent from Square No. 66 Killas Nos. 15, 16, 17, 18/2, 23/2, 24 and 25 as alternate. Appellant used to cultivate total land. It was agreed by the respondent vide agreement dated 14.11.1968 that if the appellant bore half expenditure of the disputed land the former would pay half share of the price to him in installments and would make the land cultivable and he would transfer half share of disputed land entering into Square No. 66, Killas Nos. 23/2, 24, 25 and Square No. 68, .Killas Nos. 5/2 and 8/2. Later on due to weak financial position of the respondent, the appellant gave possession of land Square No. 66, Killa No. 25, with the understanding and at the instance of Brathery that when ownership rights will be confirmed in favour of respondent, he would deliver back possession of this land to appellant. After execution of agreement the appellant used to pay his half share of rent regularly/In 1974 when Government granted permission for deposit price in installment, the appellant started depositing the same. At last, in November 1989 the appellant deposited total amount of Rs. 16,220/-to the Government On 22.11.1989, sale-deed was confirmed in favour of respondent After confirmation of sale-deed the appellant through Punchiatrequested the respondent to transfer his share of land in his favour as per agreement but he refused to do so.

2. The suit was contested by respondent vehemently denying claim of the appellant. It was averred by him that no cause of action has accrued to

appellant to institute the suit; the agreement was ab initio void under Section 19 of Colonization of Government Lands (Punjab) Act, 1912. Besides the suit has not been properly valued for the purpose of Court fee and jurisdiction and the suit has been filed to harass the respondent. He also averred that it was agreed between the parties that they would execute lease agreement but the appellant collusively got executed agreement dated 14.11.1968 instead of agreement for lease.

1. On 27.1.1990 respondent also instituted a suit for declaration and cancellation of alleged agreement to sell dated 14.11.1968 being illegal based on fraud consequently ab initio void and ineffective qua his rights. It was also stated that the respondent has paid the total price of the land and got registered sale-deed No. 1121 in his favour on 22.11.1989. In November 1989 appellant got some share of disputed land from respondent. In was agreed between the parties that a lease deed will be executed but the appellant collusively, fraudulently and in connivance with writer and marginal witnesses got executed disputed agreement to sell. The respondent came to know regarding execution of disputed agreement on receipt of notice of the suit filed by appellant for specific performance of contract instituted by him. The appellant contested the suit and denied the claim of the respondent.

2. By means of order dated 20.7.1992 the suits were consolidated by the trial Court as question of law and facts involved in both the suits were similar. On the pleadings of the parties, after striking issues, the trial Court recorded evidence and consequently by means of judgment and decree dated 26.04,1994, the suit filed by the appellant was decreed and the suit filed by respondent was dismissed. The respondent being aggrieved from the judgment and decree of the trial Court filed Civil Appeals Nos. 50-13 and 51- 13 of 1997 in the Court of District Judge, Toba Tek Singh who dismissed the ame vide judgment and decree dated 16.12.1997. The respondent instituted Civil Revision No. 2098 and 2099 of 1997^before the Lahore High Court, Lahore, which have been allowed as per impugned judgment, dated 19.04.2000. Thus instant proceedings.

3. It may be noted that while granting leave to appeal the operation of the impugned order was suspended and status quo relating to possession of appellant over the land in dispute was ordered to be maintained. Subsequent thereto appellant moved Criminal Original No. 15-L/2000 with he prayer to initiate proceedings of contempt of Court against Respondent No. 1 and seven others for forcibly taking over possession of property from him. The respondent and others have repudiated the allegations of contempt of Court by filing concise statement. This matter, however, will be dealt with later on after decision of instant appeals.

4. Learned counsel for appellant contended that interference by the High Court in concurrent findings recorded by the trial and appellate Courts being unwarranted are liable to be set aside. He argued that perusal of impugned order would indicate that learned Judge seized with the matterhad not asserted any where in the judgment that learned trial and appellate Courts disposed of both the suits and appeals respectively without jurisdiction inasmuch as not a single instance was quoted to show misreading or non-reading of the evidence produced by both the parties. Similarly it is not mentioned that the trial and appellate Courts have recorded findings contrary to any mandatory provision of law or proceedings so drawn by these Courts suffered from illegalities or irregularities. So much so neither any perversity nor evasiveness nor erroneous findings if recorded have been pointed out. According to him due to non-existence of essential ingredients for exercise of revisional jurisdiction by High Court under Section 115 CPC impugned order deserves to be set aside.

5. Learned counsel for respondent supported the impugned judgment by referring to its different paras. He argued that learned Judge has advanced cogent reasons for interfering in the judgments/decrees of Courts below. For not accepting the agreement dated 14.11.1968 to be a valid document, the learned Judge has observed that it has not been attested by a marginal witness of the same village and the fact that PW Raja Muhammad Ashraf Larnberdar who allegedly got compromised the matter was not present at the time when agreement Ex. P/l was executed.

6. Leai-ned counsel, however, could not point out any jurisdictional defect in the orders/decrees dated 26.4.1994 and dated 16.12.1997 passed by Civil Judge and Additional District Judge nor in both the orders any instance of non-reading and mis-reading of the evidence was pointed out by him.

7. It is to be observed that appellant Muhammad Rashid had filed a suit for specific performance of the agreement dated 14.11.1968 (Ex.P/1) in respect of the property entering into Khewat No. 160-Min, Khatuni No. 349- 350 Square No. 66, Killas Nos. 15,16, 17, 18/2, 23/2, 24, 25 and Square No. 68 .Killas Nos. 5/2, 6/1, 7/1, 8/1, total area 69 Kanals 15 Marias as per Jamabandi of 1984-1985 with the prayer that respondent be directed to perform his part of agreement and by issuing perpetual injunction he be restrained not to transfer the disputed land to the extent of half share of the appellant and he should also refrain from interfering with his possession and cultivation. The respondent did not deny execution of agreement but his plea was that agreement was executed in respect of lease hold rights in favour of appellant of the land owned by him but the appellant in clandestine manner converted the agreement into the one to sell half of the property in his name. The possession of the appellant over the land in dispute as per assertion made by appellant in plaint was also not disputed. It is equally important to note that in the plaint dated 27th January 1990 filed by respondent the cancellation of agreement dated llth April 1968 was sought being illegal and based on fraud, consequently ab initio void quahis rights. No relief was claimed against appellant to obtain a decree for possession of the land, which was with appellant unauhtorizcdly as per the version of the respondent. Learned trial Court decreed the suit of the appellant vide order/decree dated 26th April 1994 holding that "plaintiff has proved by examining one marginal witness and scribe of document that the disputed document was executed as agreement to sell by the defendant in favour of the plaintiff; whereas defendant could not rebut the plaintiffs version". These findings were maintained by learned Additional District Judge vide judgment-dated 16.12.1997 in appeal proceedings instituted by respondent Muhammad Siddique.

A perusal of the impugned order would show that learned Judge in Chambers of High Court had interfered with concurrent findings recorded by the trial and appellate Courts without indicating misreading or non-reading of evidence or same being in any way in violation of law. It is well settled that High Court can interfere in exercise of its revisional jurisdiction in concurrent finding of facts recorded by the trial and appellate Courts if the petitioner before it has succeeded in proving that either the appellate forum had no jurisdiction to decide the matter or that it has declined to exercise jurisdiction vested in it or has acted illegally or with material irregularity (2000 SCMR 346). Prior to this judgment in another case reported in 1997 SCMR 1139 this Court observed that "the Courts below, therefore, while decreeing the suit of appellant on the basis of evidence on record, neither committed any misreading of evidence nor they omitted from consideration any material piece of evidence on record nor the appreciation of evidence by them could be considered as perverse so as to warrant interference by the High Court under Section 115 CPC. Similarly in the case of Sheikh Muhammad Bashir All and others v. Sufi Gulam Mohi-ud-Din(1996 SCMR 813) it was held that "upsetting the conclusions of the Courts below virtually on the question of fact by way of re-examination of the evidence at revisional stage it has overstepped the limits of its jurisdiction". It may also be noted that in the case of Muhammad Bakhsh vs. Muhammad All (1984 SCMR 504) this Court has held that Section 115 (c) of the Code of Civil Procedure is applicable only to the commission of an illegality relatable to the exercise of jurisdiction by a subordinate Court. There is plethora of judgments in line to the observations reproduced hereinabove from various judgments defining jurisdiction of the High Court under Section 115 CPC. Some of them are reported in PLD 1970 S.C. 288, PLD 1983 S.C. 53, PLD 1988 Lahore 632 and 1988 CLC 1152 etc.

1. Now it would be examined, whether learned High Court had interfered with concurrent finding of facts keeping in view principles noted in the above judgments. Before answering this proposition we deem it appropriate to reproduce hereinabelow the reasons, which prevailed upon the revisional Court to set aside the judgments/decrees of trial and appellate Courts respectively:-

"(i) Bashir Ahmed Petition Writer stated on 7.1.1993 as PW1 that both the brothers i.e. Parties to the suit were known to him for the last 20/25 years. Computing back from 7.1.1993 and the date of the alleged agreement i.e. 14.11.1968 it cannot be heldby the stretch of any imagination that his statement in this regard can be termed to be correct especially when there is nothing on record that both the brothers who were residents of Chak No. 285/GB visited him at the place of his business at Toba Tek Singh in connection with other matters of litigation etc."

"An important fact to be mentioned at this stage is that Lai (PW2), the marginal witness on agreement Ex. PI, is resident of Chak No. 263/GB while both the contesting brothers are the residents of Chak No. 285/GB where the disputed property is situated. Even though Raja Muhammad Ashraf Lurnberdar claimed to have got incepted compromise between both the brothers on the basis of which alleged agreement was executed, he was not present at the time of the execution of Ex. Pi.""No independent person from village Chak No. 285/GB has appeared in favour of Muhammad Rashid Ahmad and adverse presumption in the matter is drawn against him."

"(ii) Muhammad Rashid Ahmad stated that the land in dispute was got allotted by him in the name of his younger brother Muhammad Siddique for the reason that the land could be allotted in the name of one of the members of the family. There is no explanation as to why he (Muhammad Rashid Ahmed) did not get allotted the land in his own name, even though he was elder to his brother Muhammad Siddique who according to him was minor at the alleged time of the allotment of the land. The absence of the motive in this respect has gone to the root of the stand of Muhammad Rashid Ahmad Din the matter and the same has fallen on the ground like a house of cards."

(iii) Muhammad Rashid Ahmad appeared as PW 4 on 15.12.1993 and stated that he had to deposit an amount of Rs. 8000/- as the total price of the land was Rs. 16200/-and that he deposited the aforesaid amount. However, he has not produced any evidence oral or documentary except his solitary statement about the payment of Rs. 8000/- towards the installments of the suit property. He has also not produced evidence to make out that he made culturable the suit property by spending the amount or through the dint of his hard labour. The documentary evidence produced by him and his contesting brother has not supported him as he has not been mentioned therein as having any connection with the suit property on the basis of agreement Ex. PI. A pertinent feature of the matter is that on the basis of alleged agreement Ex. PI both the brothers did not go to the Halqa Patwari to get entered the aforesaid fact in his daily diary, which could be a valuable piece of evidence in avour of Muhammad Rashid Ahmed. This aspect of the matter has also falsified this stand.

(iv) The fact of the matter is that two acres of land is under the possession of Muhammad Rashid Ahmed, which according to his brother Muhammad Siddique is under his unauthorized possession. As expressed above about the delivery of the possession of any portion of the landed property by Muhammad Siddique in favour of Muhammad Rashid Ahmad on the basis of Ex. PI, no intimation was given to Halqa Patwari and got entered in the daily diary and it can safely be expressed and held that Muhammad Rashid Ahmad did not obtain the possession of the suit property in his alleged independent right and the contention of Muhammad Siddique is correct that the possession of his brother Muhammad Rashid Ahmed is un­authorized and illegal to the extent of two acres of land.

(v) The contention of Muhammad Rashid Ahmad is that he is entitled to half of the property allotted in the name of his brother Muhammad Siddique on the basis of an.agreement Ex. P-I brought into black and white on 14.11.1968,'but I hold that view about the performance of the conditions mentioned in Ex. P-l he has not produced any evidence and has failed to establish the compliance of the same. This being the position even if Ex. P-l is held to be an agreement to transfer the land the conditions mentioned therein have not been proved to have been fulfilled and discretionary relief of performance of agreement of sale cannot be granted to him.

1. The examination of above reasons one by one with reference to their substance suggests that none of them individually or collectively constitute reasons for exercising revisional jurisdiction under Section 115 CPC relating to passing orders/decrees by the appellate/trial Court to be termed as without jurisdiction or in excess of jurisdiction or misreading or non-reading of evidence etc. Surprisingly learned Judge has even traveled outside of the pale of provisions of Articles 75 or 76 of Qanoon-e-Shahadat Order 1984 which spell out procedure for proving a document through primary or secondary evidence. To our consideration there is no mandate of law to hold" that testimony of a witness can be disbelieved merely for the reason that witness has failed to explain that in which connection he visited the Petition Writer for executing the',, agreement and due to this reason, version of the petition writer marking presence of parties before him for execution of agreement was held to be inadmissible. Factually such observations were made to show that Agreement Ex. P/l was doubtful considerably that its contents were duly proved accordingly to law. As such, we are of the opinion that learned High Court had illegally interfered with' the findings of two Courts below which were in favour of appellant in purported exercise of its revisional jurisdiction on artificial and whimsical grounds. It is interesting to note that relief has been granted to respondent on the ground which he himself had never pleaded either by submitting his written statement or during the proceedings knowing that on such flimsy grounds appellant cannot be non-suited on legal plane. We regret to observe that learned Judge in the Chambers of High Court (as he then was) omitted to consider the plea of respondent raised by him in written statement and supplemented during trial.

2. A perusal of the judgment of District Judge Toba Tek Singh dated 16.12.1997 would indicate that in the course of arguments before him learned counsel appearing for appellant submitted that during pendency of appeal (appellant Muhammad Siddique) in collusion with Riazul Hasan Alvi has got prepared a rule of Court in f/o Anwar Sultana Wife of Riaz Hasan Alvi on 27.5.1995 without disclosing pendency of appeals against which the respondent (Muhammad Rasheed) has filed an application under Section 12(2) CPC which was pending in Lower Court. The appellant (Muhammad Siddique) has tried to frustrate the impugned judgment and decree". As it has been noted hereinabove that while granting leave to appeal the impugned order dated 19.4.2000 was suspended and with regard to possession of appellant over the land in dispute order of maintaining status quo was passed on 24.7.2000. Subsequently thereto appellant filed Criminal Original No. 15-L of 2000 alleging violation of the order of status-quo against Respondents Nos 1 and 7 others with the averments that one Mr. Riazul Hasan Alvi son of Muhammad Hussain, Caste Alvi, resident of Chak No. 235-GB, who was then District and Sessions Judge and posted as Judge Anti-Terrorism Court at Multan was feeding respondent Muhammad Siddique and all was being done with his help and the respondents in contempt application namely Nawaz, Ashiq and Fateh Patwari who were his personal workers and were providing aid to said Muhammad Siddique at the instance of Mr. Alvi. Mr. Alvi was in the habit of getting properties and transferring same in the name of his wife Munawar Sultana. It was further stated that land in dispute was earlier transferred by respondent Siddique in the name of Munawar Sultana (Mr. Alvi's wife) which was later on cancelled". Keeping in view these facts the record of application under Section 12(2) CPC was summoned from the Court of Mr. Aftab Ahmad Rai Civil Judge, Toba Tek Singh. A perusal whereof prime facie supports contentions of appellant and meddling of Mr. Riazul Hasan Alvi District and Sessions Judge in judicial matters cannot be over-looked. As such possibility of his making efforts for getting the case decided in favour of respondent because allegedly the property was purchased from Muhammad Siddique respondent in the name of his wife (Anwar Sultana) cannot be over-ruled.

CRIMINAL ORIGINAL NO. 15-L/2000.-We are prima facie satisfied that respondent Muhammad Siddique with the collusion of M/s. Nawaz, Ashiq and Fateh has violated the order of status-quo allegedly with the assistance and connivance of Mr. Riazul Hasan Alvi whose interest in this property can be seen while going through the application for contempt of Court as well as File No. 56/6/1995 pending in the Court of Mr. Aftah Ahmad Rai Civil Judge Toba Tek Singh. Therefore, office is directed to issue show-cause notice to Muhammad Siddique and others to appear in person and explain as to why proceedings for contempt of Court under Article 204 of the Constitution of Islamic Republic of Pakistan read with Section 3/4 of Contempt of Courts Act, 1976 be not initiated against them. A separate notice be also issued to Mr. Riazul Hasan AM alongwith copy of this judgment through Registrar of Lahore High Court to explain his position in respect of allegations which have been imputed against him in contempt application either appearing in person or through duly authorized representative.

For the foregoing reasons appeals are allowed with costs. The impugned judgment dated 19.4.2000 is set aside as a result whereof judgments/decree dated 16.12.1997 passed by Distt. Judge. T.T. Singh is restored. Record of the case be returned after retaining photo-copies of File No. 56-6 of 1995 under Section 12(2) CPC.

Criminal Original Petition No. 15-L/2000 is adjourned to a date in office.

(A.A.) Appeal accepted.

PLJ 2002 SC 329

[Appellate Jurisdiction]

Present I FTiKHAR muhammad chaudhry, hamid ali mirza and tanvir ahmed khan, JJ.

DR. SHAHID AMIN HYDER-Petitioner versus

SECRETARY, MINISTRY OF HEALTH GOVERNMENT OF PAKISTAN and another-Respondents

Civil Petition No. 563 of 2001, decided on 8.1.2002.

appeal from the judgment/order dated 11.1.2001 passed by Federal

Service Tribunal Islamabad in Appeal No. 362(R) CS of 2000)

Constitution of Pakistan, 1973--

—Art. 185(3)-Leave to appeal-Adverse remarks-Jurisdiction of Service Tribunal-Federal Service Tribunal declined to exercise jurisdiction for reasons that Tribunal is not competent to substitute its opinion with opinion of departmental authority while examining adverse remarks,\recorded in ACR of an employee-In Supreme Court's opinion this approach is not correct because recording of adverse remarks in ACR of an employee is one of terms and conditions of his service and if adverse remarks have been recorded he enjoys a right to initially challenge same before next higher authority of department on grounds available to him including one that adverse remarks have been recorded on subjective reasons and if his grievance is not redressed, then he can approach tribunal for redressal of his grievance and it is empowered to examine same on basis of available material and if tribunal comes to conclusion that ACR has not been recorded properly or it is based on extraneous consideration or allegation are not supported by material, then tribunal is competent to accept appeal as it has already been observed by Supreme Court in (1981 SCMR 840)--Leave to appeal is granted to examine contention of petitioner. [Pp. 330 & 331] A

Petitioner in person. Nemo for Respondents. Date of hearing: 8.1.2002.

judgment

Iftikhar Muhammad Chaudhry, J.--This petition for leave to appeal has been filed against the judgment dated llth January 2001 whereby service Appeal No. 362(R) CS/2000 filed by the petitioner for expungment of adverse remarks recorded against him in his ACR pertaining to the years of 1996-1997 has been disposed of in the following terms:

"3. The adverse ACRs perused and we will be unable to substitute our own opinion about the same as the ACRs and representation have been recorded and heard by the competent persons/Authorities and that also consisting of responsible medical and executive officers. It is observed that this Tribunal has limited jurisdiction in substituting its opinion about ACR of a civil servant as the powers conferred upon this Tribunal under sub-section (1) of Section 5 of the Service Tribunals Act, 1973 do not provide a specific provisions for the same because recording of ACR in our opinion is not an order which will require to be set aside, varied or modified. Nevertheless this Tribunal hears the appeals in respect of adverse ACRs of the civil servants in spite of limited jurisdiction as mentioned before under Section 4 of sub-section (2)(a) of the Service Tribunals Act, 1973.

1. Petitioner appeared in person and stated that Federal Service Tribunal declined to exercise jurisdiction contrary to the judgment of this Court in the case of Inspector General of Police Punjab, Lahore and an therinterference by this Court in the impugned judgment.

2. We have heard the petitioner and have also gone through the impugned judgment carefully as will as the reported judgment relied upon by the petitioner. A perusal of impugned order prima facie indicates that Federal Service Tribunal declined to exercise jurisdiction for the reasons that the Tribunal is not competent to substitute its opinion with the opinion of departmental authority while examining the adverse remarks, recorded in the ACR of an employee. In our opinion, this approach is not correct because recording of adverse remarks in ACR of an employee is one of the term and condition of his service and if adverse remarks have been recorded he enjoys a right to initially challenge the same before the next higher authority of the department on the grounds available to him including the one that the adverse remarks have been recorded on subjective reasons and if his grievance is not redressed, then he can approach the tribunal for redressal of his grievance an4 it is empowered to examine the same on the basis of available material and if the tribunal comes to the conclusion that ACR has not been recorded properly or it is based on extraneous consideration or the allegation are not supported by the material, then the tribunal is competent to accept the appeal as it has already been observed by this Court in the case noted hereinabove. Therefore, we grant leave to appeal to examine the contention of the petitioner.

(A.P.) Leave granted.

PLJ 2002 SC 331

[Appellate Jurisdiction]

Present:IFTIKHAR MUHAMMAD ClIAUDHRY, HAMID All MlRZA AND

tanvir ahmed khan, JJ.

MUHAMMAD YOUSAF-Petitioner

versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS and another—Respondents

Civil Petition No. 288 of 2001, decided on 10.1.2002.

(On appeal from the judgment/order dated 25.11.2000 passed by Federal Service Tribunal, Islamabad in Service Appeal No. 726(R)/CS/2000)

Constitution of Pakistan, 1973--

—Art. 185(3)-Leave to appeal-Whether Federal Service Tribunal has no authority to issue directions/orders for implementation of its own judgment? It may be noted 'that as far as Service Tribunal Act, 1973 and rules framed there under are concerned, no provisions in respect of passing such direction to execute its own order is available and due to this lacuma in law, Government employees are facing great hardship— Inasmuch as, after getting favourable decision from Tribunal, they have to seek other remedy i.e.by filing writ petition before High Court for purpose of implementation of orders of Tribunal-Leave to appeal .granted. [P. 332] A

Petitioner in person. Respondents not represented. Date of hearing: 10.1.2002.

order

Iftikhar Muhammad Chaudhry, J.-This petition for leave to appeal has been filed against the judgment dated 25th November 2000 passed by Federal Service Tribunal whereby service Appeal No. 726 (R)/2000 filed by the petitioner was dismissed.

1. In instant petition, only question for consideration is whether Federal Service Tribunal has no authority to issue directions/orders for implementation of its own judgment? It may be noted that as far as Servic Tribunals Act, 1973 and the rules framed there under are concerned, no provision in respect of passing such direction to execute its own order is

available and due to this lacuna in the law, the Government employees are facing great hardship. Inasmuch as, after getting favourable decision from the Tribunal, they have to seek other remedy i.e. by filing writ petition before the High Court for the purpose of implementation of the orders of the Tribunal.

1. Therefore, to resolve the above question, leave to appeal is granted.

2. As short question of law of public importance is involved in instant petition, therefore, office is directed to fix this case at an early date longwith other petitions, wherein identical point of law is involved and hose are pending for final adjudication, subject to soliciting necessary approval from Hon'ble Chief Justice. Notice be also issued to Attorney General for Pakistan.

(A.P.) Leave granted.

PLJ 2002 SC 332

[Appellate Jurisdiction]

Present: iftikhar muhammad chaudhry and javed iqbal, JJ.

SHADI KHAN-Petitioner

versus

STATE through ADVOCATE GENERAL OF BALOCHISTAN QUETTA.-Respondent

Crl. P. No. 40-Q of 2001, decided on 5.11.2001.

(On appeal from the judgment/order dated 16.7.2001 passed by High Court of Balochistan, Quetta, in Crl. Appeal No. 26 & J.A. 9 & 10/2001)

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

—Ss. 9(c) & 48-Customs Act (IV of 1969), S. 156(l)(8)-Criminal Procedure Code (V of 1898), S. 403-Constitution of Pakistan (1973), Aits. 13(a) & 185(3)-Recovery of narcotic substances from the possession of appellants—Conviction and sentence awarded to appellants as confirmed by High Court assailed--Leave to appeal was granted to examine whether offence under S. 156(1)(8) of Customs Act, 1969 and offences under S, 9(a)(b)(c) of Control of Narcotics Substances Act, 1997 were same offences and if an accused was convicted/sentenced under any of the provisions out of both of those laws, the trial/conviction/sentence of accused under other law would be bar in view of provisions of Art. 13(a) of the Constitution and S. 403 Cr.P.C. [P. 339] A

PLD 1977 Karachi 144; 1995 SCMR 626; Halsbuiy's Laws of England (2nd Edn.) Vol. 9 pp 152, 153; PLD 1990 FSC 62 ref.

Mr. Salahuddin Mangel,ASC and Mrs. Ashraf Abbas, AOR for Petitioner.

Respondents not represented. Date of hearing: 5.11.2001.

order

Iftikhar Muhammad Chaudhry, J.--Petitioner Shadi Khan seeks leave to appeal against the judgment dated 16.07.2001 passed by High Court of Balochistan, Quetta, whereby appeal filed by him challenging conviction/sentence awarded to him alongwith co-accused (not before this Court) to imprisonment for life with fine of Rs. 5,00,000/- vide judgment dated 18th January 2001 has been dismissed.

1. Precisely stating the facts of the case as have been disclosed by the prosecution during the trial of the case are that on 5th July, 1999, Customs Authorities posted at Punjgoor, during patrolling intercepted an unnumbered Toyota Pick up on crossing of Pir Umar Jan. Statedly Abdul Wahid was driving the vehicle whereas petitioner Shadi Khan alongwith one another person namely Abdul Samad were occupying co-driver seats. On search of the vehicle seven gunny bags containing 84 small cotton bags of liquid opium weighting 2 Kgs each were recovered. Besides it one Kalashnikov, 280 live rounds of Kalashnikou, 4 empty magazines were also taken into possession from the vehicle. After apprehending the petitioner and two others, initially a case under the provisions of the Customs Act, 1969 was registered against them besides registering a separate case under Section 13 (A) of the Arms Ordinance, 1965. It is stated that challan of the case against the petitioner and others under the Customs Act was submitted before the Special Judge, Customs and during the pendency of the trial after about a five months, another challan under Section 9 (c) of the Control of Narcotics Substance Act, 1997 was also filed against all of them.

2. It may be noted that in the case pertaining to violation of the Customs Law, petitioner and two others were found guilty for commission of the offence. They challenged their conviction/sentence before the Customs Special Appellate Tribunal which has also been dismissed and as up till now no petition has been filed before this Court, therefore, safely it can be said that to that extent, the case stands finalized.

As far as the trial under Section 9(c) of the CNS Act, 1997 is concerned, it also proceeded against petitioner alongwith two others and finally they were found guilty for the commission of the offence as such sentenced to life imprisonment with fine of Rs. 5,00,000/- or in default whereof to suffer S.I. for one year. Benefit of Section 382-B Cr.P.C. was also extended to them.

1. Petitioner Shadi Khan alongwith two other accused preferred appeal before the learned High Court of Balochistan under Section 48 of Control of Narcotic Substances Act, 1997 being Criminal Appeal No. 26/2001 and Jail Appeal Nos. 9 and 10/2001 respectively. A learned Division Bench of High Court of Balochistan, dismissed their appeals vide impugned judgment announced on 16th July 2001. As such instant petition has been filed only on behalf or petitioner Shadi Khan.

2. Learned counsel contended that trial of petitioner under Section 9 (c) of NCS Act was barred under Section 403 (1) Cr.P.C. and Article 13 (a) of the Constitution of Islamic Republic of Pakistan because he has already been convicted for the same offence falling within the mischief of Section 156 (1) (8) of Customs Act, 1969 by means of the judgment of even date i.e. 18th January, 2001, therefore, in view of the law laid down by this Court in the case of The State through Collector of Customs v. Naseem Amin Butt and others (2001 SCMR 1083), conviction/sentence against which instant petition has been filed is liable to be dismissed. On merits learned counsel ontended that prosecution has failed to establish guilt against petitioner on account of non-producing of evidence that he had knowledge that Narcotics were being transported in the vehicle in which he was also travelling as a passenger. The prosecution also did not tender/produce expert report in accordance with law, therefore, in absence of evidence that as to whether the recovered articles fall within the definition of Narcotic Substances, conviction against petitioner deserve to be set aside.

3. We have heard the learned counsel for the petitioner and have also gone through the judgment of this Court relied upon by him. Prima facie we are of the opinion that petitioners in both the cases i.e. under Section 156 (1) (8) pf the Customs Act, 1969 and Section 9 (c) of the NCS Act, 1997 was not tried for the same offence because both the offences are distinct and different from each other. A Division Bench of the Karachi High Court in the case of Hoot Khan v. Industries Relation Commission (PLD 1977 Karachi 144) interpreted the provision of Section 403 Cr.P.C. and held that if an accused is not charged for the same offences, then the trial would not be bad in the eye of law. Relevant para from the judgment produced herein below:-

"The provisions of Section 403, Cr.P.C. on the basis of which the above decision was given, however, are substantially different from the provisions contained in Article 13(a) of the Constitution, sub­section (1) of Section 403, Cr.P.C. not only bars subsequent trial of aperson who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted for the same offence, but further bars his trial on the same facts for any other offence for which a different charge from the one made against him might have been framed under Section 236 or for which he might have been convicted under Section 237. It will thus be seen that an extended meaning has been given to 'same offence' by including within its fold other offence for which, on the same facts, a charge under Section 236 might have been framed or a conviction may have been recorded under Section 237. The bar in the Constitution, however, is against prosecution or punishment for the same offence for which a person has been previously tried or convicted. No extended meaning of • same offence, as in Section 403, Cr.P.C. thus can be given to this expression as used in the Constitution. The test for the same offence is whether the former offence and the offence subsequently charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify the conviction of the other, not that the facts relied on by the prosecution are the same at the two trials. Further more the previous prosecution must be before a Court which had jurisdiction to try both the first offence alleged as well as the offence for which the accused is being subsequently prosecuted. There cannot be a valid prosecution before a Court if the Court had no jurisdiction to try the'offence for which the accused is being subsequently tried."

1. Similarly this Court in the case of. Muhammad Ashraf and others v. The State (1995 SCMR 626) interpreted this very proposition in the following words:-

"The rule that on one shall be vexed twice for the same offence has its roots in the ancient maxim "Nemo bis debet pro uno delicto' which means that no one should be subjected to peril twice for the same offence. It is a fundamental rule of criminal law that no one should be exposed to hazards of punishment and convicted twice or one and the same office. This doctrine is enshrined deeply in the legal system of the countries following Anglo-Americans Jurisprudence, it is incorporated in one from or another in the statutory law, or as a Constitutional guarantee in the Constitutions of the some of the countries. The rule is ingrained in the Fifth Constitutional Amendment to the American Constitution, which ordains that 'no person shall be subject for the same offence to be twice put in jeopardy for life or limb'. In halsbury's Laws of England (2nd Edn.) Vol. 9 Pages 152,153, Para 212 it is stated as under:

"The plea of 'utrefois convict' or 'auter-fois acquit' avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The question for the jury on the issue iswhether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence, now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the to trials. A plea of 'autrefois acquit' is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the later."

In our Constitution this rule is enacted in Article 13(a) which provides that:

'No person shall he prosecuted or punished for the same offence more than once, It will be seen that the prosecution given by this Article is against prosecution and double punishment. By prosecution is meant a trial followed by judgment of acquittal of punishment. It includes the entire proceeds stalling with taking cognizance of an offence by the Court, followed by examination of evidence, addressing of arguments and ending with the pronouncement of judgment. It seems to us that if as a result of prosecution for an offence the trial ends in acquittal. Article 13 (a) is not attracted. Constitutional guarantee is available only if the accused is convicted and punished. Thus, if the first prosecution results is acquittal, so far as this Articie is concerned, the second prosecution is not prohibited. It is, however, open to the legislature to enlarge the scope of Constitutional guarantee and further extend the protection envisaged by Article 13(a). Such extension of rule of double jeopardy is to be found in Section 403 (1) of the Criminal Procedure Cede, which is reproduced below: -

"A, person who has once been tried by Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236 or for which he might have been convicted under Section 237."

It is to be noticed that the Constitutional guarantee is confined only to duplicate punishment and is silent in so far as acquittal is concerned. Section 403 (1) however, prohibits the second trial for an offence during the course of existence of conviction or acquittal of a person as the case may be, in consequence of final adjudication of such an offence by a Court of competent jurisdiction. Thus the rule against autrefois acquit finds place in Section 403 (1) and the counterpart of this rule "autrefoisconvict' has

received recognition in the Constitutional guarantee embodied in Article 13 (a).

In the light of these Constitutional and statutory provisions it needs to be examined as to whether the conviction of Muhammad Ashraf appellant and the death sentence awarded to him suffer from any illegality. As already observed that one trial ended in conviction and punishment and in the second case he was acquitted. When the two judgments are placed in juxtaposition it becomes evident that the judgment of conviction in point of time was rendered first and shall hold the field. The appellant's subsequently acquittal cannot reflect upon his conviction and sentence awarded to him on the basis of the trial, (SIC) on the FIR lodged by Muhammad Saleem. Here a reference may also be made to Section 26 of the General Clauses Act, which is reproduced below:-

"Whether an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence".

It will thus appear that under Section 26 of the General Clauses Act there is no bar on the simultaneous prosecution; what is prohibited is duplicate punishment and not the trail. In view of the forgoing analysis of the Constitutional and statutory provisions the judgment impugned, before us in neither violative of the fundamental right nor in contravention of Section 403 (1) Cr.P.C."

1. Likewise, the learned Federal Shariat Court in the case of The State v. Anwar Khattak and others (PLD 1990 FSC 62) interpreted the proposition under consideration as follows:

"In the light of the above discussion we are of the view that whereas the offence under Section 2 read with Sections 16 and 156 (8) arises on the violation of restriction or prohibition issued at the opinion of the Federal Government, the Articles 3 and 4 not only make 'import and export' an offence but even possession, transport, manufacture, processing and sale etc. also. Again the maximum sentence of imprisonment provided under Section 156(8) is 10 years while it is imprisonment for life under Articles 3 and 4 of P.O. 4 of 1979. Further appeal against a conviction under Articles 3 and 4 lies before the Federal Shariat Court whereas the High Court is the appellate authority in respect of offences under the Customs Act. Finally the Customs Court has the exclusive jurisdiction under the Customs Act whereas the Sessions Court and the Courts subordinate to it have the exclusive jurisdiction under Articles 3 and 4. There are thus two separate and distinct offences.

Thus, Section 156(8) deals with all such things with regard to which there is prohibition or restriction of bringing into or taking out of Pakistan. The power to impose restriction or prohibition is given to the Federal Government in Section 16 of the Customs Act. As said above the P.O. 4 of 1979 makes eveiy process or any dealing with the intoxicants an offence. Again it is one of the Hudood laws. The Customs Act on the other hand is an administrative law based on the residuary power of legislation entrusted to human beings. Admittedly, a man-made law cannot supersede a law based on divine Hadd.

The result is that the two laws deal with different situations and create distinct offences and there is no conflict, repugnancy or resulting implied repeal. Again, the Customs Court has got exclusive jurisdiction under the Customs Act in respect of smuggling and it

has not been given any power to try or decide the cases falling under other provisions of law or the PPG."

1. Because of earlier view of this Court in Muhammad Ashraf case (ibid) it is necessary to note that in the judgment of Naseem Amin Butt (ibid), a Bench of this Court comprising of three Hon'ble Judges decided that the Special Courts created under NCS Act, 1997 had the exclusive jurisdiction to try offences under the Act to the exclusion of any other Court under any law inclusive of the Customs, Act, 1969. Relevant para there from is reproduced herein below:-

"10. As has already been observed under the proviso to Section 72 of Act XXV of 1997. All offences relating to narcotic drugs, psychotropic substances or controlled substances, etc., are to be tried under this Act notwithstanding anything contained in the Customs Act, 1969 or any other law, therefore, the Special Courts created under this Act had the exclusive jurisdiction to try these offences to the exclusion of any other Court under any law inclusive of the Customs Act, therefore, the prosecution of the respondents under the Customs Act was without jurisdiction and the proceedings taken there under, conviction recorded and sentence awarded were also illegal having been taken, recorded and passed by a Court which was not vested with jurisdiction to proceed with the matter, as such all these proceedings from the very inception were coram non judice, therefore, the encashment of the prosecution under Act XXV of 1997 in relation to conviction recorded and sentence passed by a Court under the Customs Act which was not vested with the jurisdiction to proceed in thematter was not justified."

1. It is to be noted that perhaps during the hearing of the case of The State through Collector of Customs v. Nasecrn Amin Butt and others (2001 SCMR 1083), the judgments in the cases of Hoot Khan (ibid), Muhammad Ashraf (ibid)and Anwar Khattak (ibid) were not cited.

Therefore, we consider it appropriate to grant leave to appeal in this case to examine whether the offence under Section 156 (1) (8) of the Customs Act, 1969 and the offences under Section 9(a)(b)(c) of the NCS Act, 1997 are same offences and if an accused is convicted/sentenced under any of the provisions out of both these laws, the trial/conviction/sentence of the accused under the other law would be bar in view of the provisions of Article 13 (a) of the Constitution of Islamic Republic of Pakistan and Section 403 Cr.P.C.

1. Office may fix this case before a bench comprising more than three Hon'ble Judges of this Court because judgment in the cases of Muhammad Ashraf (ibid)and Naseem Amin Butt (ibid) have been delivered by a bench of three learned Judges of this Court.

2. Notice be also issued to Attorney General for Pakistan within the provisions of Order XXVII-A, Rule-1, CPC because in this case substantial question as to the interpretation of Article 13 (a) of the Constitution of Islamic of Pakistan is involved.

(A.A.) Leave granted.

PLJ 2002 SC 339

[Appellate Jurisdiction]

Prcscn t: MUHAMMAD BASHIR JEHANGIRI, MUNIR ArSHEIKH AND

rana.bhagwandas, JJ.

GOVERNMENT OF N.W.F.P. through COLLECTOR MARDAN and others-Appellants

versus ABDUL SAMAD KUAN and others-Respondents

C.A. Nos. 1057-1061 & 1858 of 2000, and C.A. Nos. 1693, 1694, 1951 & 1983-1993 of 2001, decided on 25.10.2001.

(On appeal from the judgment of the Peshawar High Court, Peshawar, passed in RFA Nos. 70, 88, 104 & 86/97 dated 18.4.2000 & RFA Nos. 68, 69, 71, 81, 82, 89, 90, 91, 92 & 99/97 dated 13.3.2001)

(i) Land Acquisition Act, 1894(1 of 1894)--

—-Ss. 4, 18 £ 23-Constitution of Pakistan (1973), Art. 185-Acquisition of land-Factum of gift of specific Khasra number in favour of appellant before acquisition of land having not been established on record, finding of Courts below on such aspect does not suffer from any infirmity calling for interference. [P. 348] A

(ii) Land Acquisition Act, 1894 (1 of 1894)--

—S. 4-Acquisition of land through mutation-Objectors failed to state whether such mutation was based on sale either orally or registered document or gift-Objectors were rightly found to be not entitled to compensation of such additional land on basis of said mutation being not owners thereof. ' [P. 348] B

(iii) Land Acquisition Act, 1894(1 of 1894)--

—Ss. 18 & 23-Acquisition of land in question-Fixation of compensation by High Court on basis of evidence on record-Finding of High Court being based on evidence was affirmed. [P. 349] C, D

(iv) Land Acquisition, 1894 (1 of 1894)--

—- Ss. 18 & 23-Constitution of Pakistan (1973), Art. 185-Acquisition of land—Fixation of compensation as to superstructure of factories by referee Court based on evidence produced by parties was not open to exception-Finding of Courts below were not pointed out to be based on misreading or non-reading of any material piece of evidence—No interference was, thus, warranted in such findings. [Pp. 350 & 351] E, F

Mr. Rashid-ul-Haq Qazi, A.G., N.W.F.P. for Appellants/

Respondents (in all Govt. Appeals)

Qazi Muhammad Anwar, ASC and Mr. M.Z. Qureshi, AOR for Appellants/Respondents (in C.A. 1057-58, 1858/00. 1993-94 & .1984-85/01).

'Mr. Saccd Baig, ASC, Mr. M.-Ismail Fahmi, AOR and Mr. M.S. Khattak, AOR for Respondents/Appellants (in C.A. 1059-1061/00, 1951, 1988 & 1990-93/01).

Mr. M. Afzal Siddiqi, ASC. Mr. M.S. Khattak, AOR and Mr. Tasleem Hussain, AOR for Respondents (in C.A. 1983, 1986 & 1987/01). Dates of hearing: 23 to 25.10.2001.

judgment

Munir A. Sheikh, J.--By this common judgment we propose to decide Civil Appeals Nos. 1057 to 1061 and 1851 of 2000, and 1693, 1694, 1951, 1983 to 1993 of 2001, as they arise from the same acquisition proceedings and questions involved in all of them are identical.

1. The facts of the case are that at the instance of Project Director Marclan Development Authority (hereinafter referred to as "MDA"), the District Collector issued a notification under Section 4 of the Land Acquisi­tion Act, 1894 (hereinafter referred to as the "Act") on 13.4.1989 for acquisition of land measuring 545 Kanals 9 Marias situated in revenue estate, Ruria Mardan. On 3.2.1990, a corrigendum notification was issued through which apart from making changes in khasra numbers in the original notification and inclusion of fresh khasra numbers, the total area was increased to 567 kanals 3 marlas. Notification under Section 5 of the Act was issued on 17.12.1991.

2. The case of the Project Director was that owners of the land

measuring 341 kanals 11 marlas had entered into agreement with the acquiring department to accept compensation at the rate of Rs'. 90,000/- per Kanal, therefore, award No. 67/3 qua the said land was made under Section 11 of the Act based on agreement dated 7.7.1992. Since the owners of the other land did not enter into such agreement, therefore, notification was issued qua the said remaining land under Section 17 of the Act on 29.8.1992 and the possession of the land was taken over. Award Bearing No. 70/3 qua the said land was announced on 28.10.1992 whereby the rate of compensation for the front portion of the land measuring 75 kanals 25 marlas was fixed at Rs. 1,25,000/- per Kanal while for the rest of the area, it was fixed at Rs. 90,000/- per Kanal. The affectees land owners were also allowed 15% compulsory acquisition charges.

1. It may be mentioned that Land Acquisition Collector before issuing Award No. 67/3 on 7.7.1992 based on negotiations did not verify the genuineness of agreement on which it was based from the land owners

. concerned. .

1. Feeling aggrieved from the said Award No. 67/3, based on agreement the land owners filed objections under Section 18 of the Act which were entrusted to the learned Senior Civil Judge, Mardan for disposal.

2. It was contested by the acquiring Department mainly on the ground of alleged agreement between the parties. It was, however, conceded that no notice under Section 9 was issued to the objectors. It was also admitted that the acquired land was situated on Mardan-Nowshera Road.

3. The controversy arising from the pleadings of the parties was reflected in the following issues framed by the referee Court :--

4. Whether the petitioners have got a cause of action ?

5. Whether the petitioners have entered into an agreement with the respondents and the price of Rs. 90,000/- per kanal including compulsory acquisition charge was fixed of the acquired land, if so, its effect ?

6. Whether the market price of the suit land is lesser than the awarded compensation ?

7. Whether the petitioners are estopped to sue ?

8. Whether the petitioners have received compensation so the petition is liable to be dismissed ?

9. Whether the plea of excess possession of the petitioners is ncorrect and baseless ?

10. What is the market value of the suit land ? »

11. Whether the petitioners are entitled to the decree for enhancement of compensation as prayed for ?

12. Relief?

13. The objectors/owners examined Muhammad Johar, AOK, Mardan as PW-1 who produced copies of various sale mutations Exh. PW/1/1 to Exh. PW1/12 between 11-10-1986 to 9-1-1990. The sale price in all of them was different. One of the mutations is in respect of the sale made by the Objectors themselves which was on the high side according to which land measuring 2 kanals 10 marlas was sold at the rate of Rs. 15000/- on 22-8-1987 (Exh. PW1/10) i.e. two years before notification under Section 4 of the Act was issued. Zar Ali Assistant Record Keeper, M.C. Mardan was examined as PW2 who produced minutes of meeting dated 22.12.1991 as Exh. PW2/1 whereby the Municipal Corporation and Revenue Authorities had a meeting and different rates of properties situated in different areas within Municipal limits were fixed, for the purpose of recovery of municipal taxes. The relevant is in respect of lands situated in village Ruria and Bagh-e-Aram (Nowshera Road). The minimum rate for lands in Ruria was fixed at Rs. 8000/- per. Maria. This witness was not subjected to cross-examination though opportunity given. Khalid Khan Patwari appeared as PW-3 who produced one year average for the period 3.2.1989 to 3.2.1990 (one year prior to corrigendum notification) as Exh. PW-3/1 showing an average of Rs. 6699.69 per Maria. He also produced an Aks Exh. PW-3/2 showing Kh. Nos and location of acquired land and the adjacent lands. He also produced copy of sale mutation attested on 8.12.1992 Exh. PW-3/3 whereby 50 kanals of land was acquired for a sum of Rs. 60,00,000/- (Rs. 6000/- per Maria) for the construction of Elementary College. The site acquired for Elementary College in the same vicinity and acquired land was highlighted through Exh. PW-3/4. In the cross-examination, it was clarified that Naeem Marble Factory and Svvabi Marble Factory and Kh. Nos. 306, 311 and 312 are the frontal properties of acquired land the rest of the property is in a compact block in the said khasra numbers. Abdul Samad Khan one of the objectors/petitioners appeared as PW-4. Apart from the fact that he supported the averments made in the objection petition, he also placed on record a copy of joint statement of parties in Civil Suit No. 80/1 of 1983 and order of the Court in terms of compromise as Exh. PW-4/1, according to which it was agreed by the MDA through its Deputy Director in the year 1983 that if land of the objectors/petitioners is needed for acquisition, they shall be paid compensation at the rate of Rs. 10,000/- per marla. As to description of acquired land, it was stated that it was situated on the main Mardan-Nowshera Dual Carriage Road and the rate of such land was fixed at Rs. 17000 as minimum in Exh. Exh. PW3/1. (one year average produced by PW-3). The acquired land was adjacent to Sheikh Maltoon Housing Scheme on the same road and Grid Station and WAPDA Colony on its other side. It was a land of commercial nature and highly potential. The MDA in

Sheikh Mai toon Housing Scheme sold an area of \ marla for 2% lacs for the construction of shops. In his court statement, the objector strongly denied any private negotiations by the objectors and signing any agreement to which he was confronted as Exh. PW-4/R-1. It was so found that the signatures and the father's names of the objectors as recorded in the agreement were not correct.

1. As against this evidence of the objectors, Fida Hussain was examined as RW-1 by the acquiring Department who produced copies of the disputed agreement as Exh. RW-1/1, notification u/S. 4 Exh. RW-1/2, Corrigendum Notification Exh. RW-1/3, Notification u/S. 5 Exh. RW-1/4, one year average from 20.8.1988 to 20.8.1989 indicating an average price of Rs. 2867/- per marlas as Exh. RW-1/5, one year average for the period 11.1.1989 to 11.1,1990 according to which average price comes to Rs. 6716/- as Exh. RW-1/6. He also produced goshwara of the various khasra numbers of the land acquired as RW-1/7. Copy of documents Exh. RW-1/8 to xh. RW-1/23 relating to assessment of price of superstructure on the acquired land belonging to different owners, as Exh. RW-1/24, photo copy of AKS and Exh. PR-3/4, which had already been placed on record.

2. Since according to the acquiring Department, it was not a case of compulsory acquisition but an acquisition through negotiations, therefore, he admitted that neither compulsory acquisition charges nor 6% compound interest were paid to the land owners of the land-covered by Award No. 67/3. He admitted that possession was taken from the objectors on 30.9.1992 through Exh. RW-1/1, payment was made in July, 1992 which was received under protest. This witness admitted in cross-examination that this agreement was not signed in his presence and the rate of compensation was fixed solely on the basis of agreement Exh. RW-1/1. He admitted that the acquired land was situated on the main Mardan-Nowshera road. He also admitted that parentage of the objectors had not been correctly given in this agreement. It may be noted that according to this witness, though officials/functionaries of MDA four in members i.e.the acquiring Department were witnesses of the execution of this agreement but strangely enough, none of them was examined to prove its execution.

3. Said Kamal Shah, Assistant/Director, MDA was examined as RW-2 who stated that the acquired land was a waterlogged and saline area and the same had been acquired on the request of the owners whereas the rate of compensation was fixed through private negotiations on the intervention of the land Acquisition Collector. According to him, this portion of the acquired land was situated on the back of Khasra No. 308 and was not in front line of the road. His case was that though the land was of lesser value but to avoid litigation, compensation at higher rate of Rs. 90.000/- per Kanal was fixed through an agreement. This witness admitted the following boundaries of this portion of the acquired land :—

West Dual Carriage Mardan Nowshera Road.

East Abadi Village Daman.

North Bungalows of petitioners/objectors, WAPDA Grid Station and grain Godowns. South Sheikh Maltoon Town.

1. The Trial Court through judgment dated 29.3.1997 recorded a finding that execution of agreement in dispute covered by Award No. 67/3 had not been proved. Considering the above mentioned documentary and oral evidence produced by the parties in relation to quality of land and its potentiality, it was held that the objectors were entitled to enhancement of rate of compensation to Rs. 8000/- per Maria along with 15% compulsory acquisition charges and 6% compound interest for total land acquired from the said objectors. Both the parties feeling aggrieved challenged the same through RFA No. 70/1997 (Abdul samad etc. vs. MDA Mardan), RFA No. 88/1997 (MDA Mardan vs. Abdul'Samad etc.) relating to case No. 37/4 of 1996 and RFA No. 104/1997 ($aifur Rehman etc. vs. Govt. ofNWFP) and RFA No. 86/1997 (Govt. ofNWFP vs. Saifur Rehman etc.) arising from the decree and judgment of the Senior Civil Judge Mardan dated 29.3.1997 in reference Case No. 34/4 of 1999.

2. The High Court after examining the entire documentary and oral evidence produced by the parties in depth came to the conclusion that the findings of the trial Court that execution of agreement between the owners of the land and the acquiring Department had not been proved, therefore, the owners were entitled to get rate of compensation fixed independently from the said agreement in accordance with law. It was held that land comprising Khasra No. 308 which includes Khasra No. 309 in its center was lying adjacent to the Dual Carriage Mardan Nowshera G.T. Road. It was also held that Khasra Nos. 303 to 307 on the North 311 to 315 on the sought of Khasra No. 308 were also of the same situation, sue and character. Khasra Nos. 316, 318 to 324 owned by the objectors were found to be adjacent to Dual Carriage Road of Sheikh Maltoon Housing Scheme as shown in AKS Exh, PW-3/4 and not lesser in value than Khasra No. 308 while the land comprising remaining khasra numbers was lying in rear and was of lesser value comparatively. It was also found that khasra numbers mentioned above were either adjacent to Dual Carriage Mardan Nowshera oad or adjacent to the Dual Carriage Road of Sheikh Maltoon Housing Scheme in the South were equal as regards potentialities and could be utilized equally as commercial market due to the adjacent Sheikh Maltoon Housing Scheme. It was held that compensation at the rate of Rs. 8000/- per Maria for the said land was not correctly fixed whereas relying upon Exh., PW2/1 and the potentialities of the land as mentioned above and other material brought on the record the compensation was enhanced to Rs. 17000/- per marla and for the rest of the khasra numbers, the compensation fixed by the trial Court at Rs. 8000/- per marla was affirmed, therefore, Award No. 67/3 dated 7.7.1992 and judgment dated 29.3.1997 of the trial Court were modified to that extent.

3. Saifur Rehman, etc., had also filed objections u/S. 18 of the Act in hich they had claimed that their predecessor was the owner in Khasra Nos. 333, 335, 348 and 347 measuring 25 kanals 5 marlas through registered sale deed dated 8.10.1971. They further alleged that their predecessor was recorded as owner in the revenue record of land measuring 49 kanals 6 marlaswith reference to Mutation No. 302 attested on 18.12.1973 which included the aforesaid purchased land through registered sale deed. Their case was that the entire land owned by them measuring 49 kanals 6 marlaswas subsequently alienated in their favour by their predecessor through Mutation No. 1032. They also alleged that the Abadi Deh measuring 27 kanals 1 marlas was also owned by them and they constructed the super structure in the shape of houses wherein they were residing. They also objected to the assessment of the superstructure constructed on the acquired land and the trees planted by them on the same, 15. The controversy between the parties in this case was reflected in the following issues framed by the referee court :--

"1. Whether the objectors have got a cause of action ?

1. Whether the objectors are estopped to bring the objection petition ?

2. Whether the compensation for land and abadi has been determined with consent/mutual agreement of parties, if so its effect ?

3. Whether the objectors received compensation without protest?

4. Whether the objectors are exclusive owners of the land in ispute but the revenue staff has wrongly shown other peoples as Co-sharers therein ?

5. Whether the collector wrongly determined the compensation of the suit land and superstructure, if any, thereon if so what should be the correct compensation for the land acquired ?

6. Whether the objectors are entitled to the enhancement of the compensation alongwith other charges ?

7. Relief."

8. In support of their case, the said objectors examined five witnesses in all including Amir Rehman one of the objectors who appeared as attorney, for himself and other objectors. In the statement, grievance highlighted by him was that the compensation paid to them was for lesser area than the area actually acquired from them. He also deposed that compensation for superstructure should be enhanced on the basis of the earlier award drawn in 1987 wherein Rs. 30/- per square feet for Kacha

Abadi was allowed to them while in the instant case, Rs. 68/- per square feet for Kacha Abadi and Rs. 25/- per Square feet for Pakka Abadi had been awarded through the disputed award. He also claimed compensation for the crop and standing trees harvested through the acquisition process but did not claim any enhanced rate for compensation of the land owned itself. Sher Rehman OW-5 who appeared as attorney for a number of other objectors also deposed regarding the rates of compensation for super structure and the crop and trees affected by the acquisition process, but said nothing about the rate of compensation of the land. Hazrat Khan OW-6 also deposed in respect of compensation for the super structure, crop and trees as well as measurement of the acquired land. However, in the memorandum of appeal, the objectors had claimed Rs. 12000/- per marla as compensation for the acquired land but the same was not found to have support of any evidence on the record. Since the objectors in this case mainly stressed the question of quantum of compensation of the super structure and the trees, therefore, the trial Court appointed the local commissioner for assessment of rates of compensation for the trees owned by the objectors, the local commissioner after visiting the spot, examining the parties and the patwari Halqa submitted his report on 2.5.1993 according to which, Ghafoor Rehman, objector was found entitled for the compensation of the trees amount to Rs. 12460/-, Ibrahim, objector Rs. Rs. 14490/-, Saida Khan, objector son of Sher AH for Rs. 8S50/-, Sher Afzal objector for Rs. 250/-, Hazrat Khan, objector for Rs. 100/-, Saida Khan son of Sheradin for Rs. 100/- and Ghafoor Rehman for Rs. 390/-. The objections were filed against the report of the local commissioner by both the parties and the local commissioner was examined in the court who was subjected to cross-examination by both the parties but no mention was made either about the rejection or acceptance of the said report of the local commissioner. As regards size of the land owned by these objectors because they claimed ownership qua land on the strength of mutation No. 302 attested on 18.2.1972 which was also being claimed by Abdus Samad Khan, therefore, the decision of this part of their objection was left to be decided alongwith the case of Abdus Samad Khan.

1. In this case, the trial Court through judgment dated 29.3.1997 had not granted any compensation for the trees. The said objectors filed RFA No. 104/1997 (Saifur Rehman etc. vs. Govt. of NWFP) whereas RFA No. 86/1997 (Gout, of NWFP. vs. Saifur Rehman, etc.) was filed against the same judgment of the trial Court in their cases before the High Court of Peshawar against the compensation of .the land at Rs. 8,000/- per Maria. The High Court in these appeals upheld the compensation of the land as granted by the trial Court but in addition thereto, they were also granted compensation for the super structure and the trees as determined by the local commissioner as aforementioned.

2. On the basis of the classification about potentialities made in these cases, the compensation of the entire land was determined accordingly through the judgment impugned in these appeals by the Peshawar High ourt. Civil Appeals Nos. 1057 to 1059 of 2000 and 1984 to 1993 of 2000 have been filed by the Government/Collector whereas the other appeals have been filed by the land owners.

3. In Civil Appeal No. 1693 of 2001, learned counsel for the appellants submitted that Muhammad Sharif Khan was the owner of half of the land comprising Khasra No. 308 measuring 81 Kanals 17 marlasinherited from his fore-father who through Mutation No. 146 dated 27.4.1966 gifted the said land alongwith other land to them who are their grant children, etc. Muhammad Sharif Khan subsequently sold the same land in Khasra No. 308 measuring 81 Kanals 17^ marlas through registered sale-deed dated 12.11.1968 to the respondents in this appeal. It was claimed by the appellants that on the basis of mutation of gift, a suit for partition of land was filed in which a decree was passed. One Abdul Hakam the contesting respondent including the predecessor-in-interest of the respondents challenged the said proceedings in the civil suit instituted in the year 1977 which was dismissed on 2.11.2000 confirming the partition decree in favour of Abdus Samad. It was claimed that since the respondents could not become the owners of the land on the basis of the said sale-deed executed subsequent to the gift of land by Muhammad Sharif Khan owner as he was eft with no title in the land as such compensation of the said land should be paid to them i.e., Abdus Samad Khan. The trial Court, the first appellate and the High Court found that the factum of gift of the said land by Muhammad Sharif Khan in favour of the appellants had not been proved. Learned counsel for the appellants submitted that alongwith the said land comprising one half share of Muhammad Sharif in the khasra In dispute, Muhammad Sharif through the same mutation by way of gift transferred his land comprising other khasra numbers and the gift qua the other said khasra had not been challenged by any body. The gift being one single individisble transaction could not be held to have proved qua the land in dispute i.e. half of share of Muhammad Sharif in Khasra No. 308.

the names of Abdus Samad Khan, etc. appellants were not appearing in the column of ownership. However, their names were mentioned in the column of cultivation at the bottom. He neither affirmed nor denied the suggestion that the ink used for the names of appellants were different than the ink used for other entries.

1. After examining the record, we find that the concurrent findings of the Courts below on question of gift regarding land in Khasra No. 308 by Muhammad Sharif in favour of the appellants -do not suffer from any legal infirmity calling for interference by this Court. Not only making of gift had been established but delivery of possession thereunder also does not stand established. If Muhammad Sharif Khan had made gift, there was no reason as to why he should have executed a registered sale-deed in favour of the respondents of the same land. We are not convinced by the arguments of he learned counsel for the appellants that merely because the gift of land was made comprising other khasra numbers through the same mutation had not been challenged, the gift made regarding Khasra No. 308 should also be accepted, for in the other case, the land was not sold by Muhammad Sharif to any other person as such it was not contested.

2. Reverting to the question whether the appellants had succeeded in proving that apart from land comprising Khasra Nos. 333, 335, 348 and 347 measuring 25 kanals 5 marlas purchased by them through registered sale-deed dated 8.10.1971, they proved ownership of the other portion of the land allegedly acquired through Mutation No. 302 attested on 18.12.1973 to make total area in the ownership of Saif-ur-Rehman, etc. to 49 kanals 6 marlas.

3. We have examined the objection/reference in which though mention of acquisition of land through the said mutation was made but it was not stated as to whether the said mutation was based on sale either orally or registered document or a gift. No particular of the transaction on the basis of which the said mutation was sanctioned was given. The said objectors were rightly found to be not entitled to the compensation of the said additional land on the basis of said mutation being not its owners.

4. The only question which arises for determination is whether the enhancement of compensation by the High Court of a part of the land to Rs. 17,000/- per rnarla was legally justified and was based on correct appraisal of evidence produced by the parties. Learned Advocate General who appeared on behalf of the NWFP Government submitted that as is apparent from the site-plan, whole of the land for which the compensation was fixed at Rs. 17,000/- peT rnarla was not on the road side whereas a bigger portion of the same comprised rear portion, therefore, compensation of the said land should have been fixed at .par with the other land at Rs. 8,000/- per rnarla.He also pointed out that enhancement of compensation to Rs. 17,000/- based on Exh.PW-2/1 was not justified as the id document was prepared merely for the purpose of recovery of municipal tax on the sale nd purchase of the land within the municipal corporation.

5. We have perused the map of the land Exh.P-3/2 and find that land comprising Khasra No. 308 which included Khasra No. 309 in its center is lying adjacent to the Dual Carriage Mardan Nowshera G.T. Road. Likewise Khasra Nos. 303 to 307 are situated on the North and 311 to 315 are on the South of Khasra No. 308 which is compact block and has approach from Mardan-Nowshera Road from the West. Likewise Khasra Nos. 316, 318 to 324 are also adjacent to the Dual Carriage Road of Sheikh Maltoon Housing Scheme and therefore, were rightly held to be of not lesser in value than Khasra No. 308. The decision of the revenue authorities and the municipal authorities as contained in Exh.PW-2/3, we find was rightly given consideration by the High Court, as supporting evidence in addition to other evidence on the record that the said land on account of its situation and potentialities was valuable and there Was no reason why the compensation should not be fixed on the basis of the said document, though the same as argued by learned Advocate General has been prepared for other purpose. We have already referred a number of mutations produced in evidence regarding sales made either prior or after the acquisition of land which also support the findings recorded by the High Court while making enhancement of compensation on criteria of potentialities of land as determined by it.

6. Coming to the facts of Civil Appeal No. 1983 of 2001, it may be stated that the compensation of land determined by the referee Court underneath the appellants' factoiy measuring 20 Kanals was at the rate of counsel for the appellants has not been able to persuade us that the appellants in this appeal were entitled to enhancement of compensation of he said land. We have already discussed in detail the evidence produced by the parties as regards compensation of land and found that the compensation granted by the referee Court to the tune of Rs. 17,000/- per marla was correctly fixed, therefore, the same is hereby affirmed.

7. The compensation claimed for the superstructure of the two factories standing on the land namely Swabi Marble Factoiy and Brekhna Marble Factory was Rs. 2,11,96,200/- the break up of which is as follows: -

Swabi Marble Factoiy = Rs. 1,06,50,041/-

Brekhana Marble Factoiy = Rs. 5,79,040/-

1. In support of their claim of compensation as to superstructure of the factories, the appellants examined Hamayun Khan, Chief Executive of the National Consulting Engineers as CW-3 who produced the valuation certificate of both the factories, Exh. OW-3/1 as regards Swabi Marble Factory and Exh.OW-3/2 regarding Brekhana Marble Factoiy. He also epared a sketch of the two factories which was produced in evidence as Exh.OW-3/3. The referre Court relying upon the said evidence produced by the appellants granted the compensation accordingly to which no exception can be taken by the appellants.

2. Learned counsel, however, submitted that sufficient overwhelming evidence such as Exh.OW-4/3 to OW-4/6, Exh.OW-4/7 and Exh.OW-4/8 was produced on account of damages caused to the machinery of the Factory which according to learned counsel was not given due onsideration.

3. We have gone through this evidence. Abdullah was examined to prove these documents. He was a person appointed by the appellants themselves. Exh.OW-4/1 is the report which depicts the total alleged damage caused to the spare parts of the two factories. Exh.OW-4/2 contains the details of damage allegedly caused to the gang, saw machine. The details of alleged damage caused to the electric guards, workshop, air compressor, marble tiles/slabs in Swabi Marble Factoiy have been given in Exh.OW-4/3 to Exh.OW-4/6 and the cost of damage to the marble tiles/slabs in Brekhna Marble Factoiy has been shown in Exh.OW-4/7. The estimated cost of the damage caused to the electrical implements of Brekhna Marble Factoiy has been shown in Exh.OW-4/8. This witness admitted in the cross-examination that the assessment/estimates were reflected by an employee of the appellants and he had just put his signatures. The report of this witness was rejected by the referee Court on the ground that the same had been prepared after the two factories had been dismantled. It was also observed that the witness who produced the same was not qualified but a matriculate apart from the fact that the said documents were prepared by the employee of the appellants and the said witness merely put his signatures and handed over to the appellants. It was, therefore, rightly found that sufficient and reliable evidence was not available to prove entitlement to any compensation on account of any alleged damaged to the machine. Learned counsel for the respondents has not been able to persuade us that these findings suffer from any illegality such as misreading or non-reading of any material piece of evidence, therefore, no case has been made out for interference with the findings of the referee Court as regards compensation of superstructure of both the factories which we find has been granted on the higher side on th basis of evidence of the witnesses of the appellants as such no injustice has been done as the appellants have been granted adequate compensation for the-superstructure of the factories and they are not found entitled to nay enhancem

4. In view of what has gone before, we are of the considered view that in all these cases, the compensation of land has been correctly fixed in accordance with law based on relevant considerations and the criteria laid clown by the superior Courts from time to time.

The impugned judgments of the High Court in all these appeals do not suffer from any illegality such as misreading or non-reading of any material piece of evidence. To the contraiy, we find that they are based on careful and elaborate consideration of each item of evidence available on the record. Neither the land owners nor the acquiring department/Provincial Government has been able to persuade us that any interference is justified either to reduce the compensation or enhance the same. In our view, justice has been done to the parties and no interference is called for.

1. For the foregoing reasons, all the appeals are found to be meritless, therefore, they are hereby dismissed with no order as to costs.

(A.A.) Appeal dismissed.

PLJ 2002 SC 351

[Appellate Jurisdiction]

Present:iftikhar muhammad chaudhry; mian muhammad ajmal and

hamid ali mirza, JJ.

AITCIIISON COLLEGE, LAHORE through its Principal-Appellant

versus

MUHAMMAD ZUBAIR and others -Respondents C.As. Nos. 1088 to 1093 of 2000, decided on 14.1.2002.

(On appeal from the judgment/order dated 12.5.2000 passed by Lahore High Cout, Lahore in W.P. No. 15063/1998)

(i) Constitution of Pakistan, (1973)--

—-Arts. 199(5) & 185(3)-Leave was granted to examine inter alia the uestion, whether Aitchison College enjoys the status of a "person" within the contemplation of Art. 199(5) of the Constitution. [P. ] A

(ii) Martial Law Orders (Zone B)--

--M.L.O. 86-Constitution of Pakistan (1973), Art. 185-Dissolution of Aitchison College Society by Governor on llth November 1961, in exercise of powers derived by him under M.L.O. 86 Zone 'B'-Effect-Dissolution of Aitchison College Society in 1961, being a part and closed transaction could not be re-opened through collateral proceedings-­Management of College after issuance of notification in question-, came under the control of Board of Governors who exercised their jurisdiction in pursuance of provisions of M.L.O. 86, thus, Board of Governors would be deemed to have statutory control over the body being headed by them— Board of Governors would thus, be deemed to be working for the affairs of the Province-Even if no financial aid was being provided to Aitchison College from Public Exchequer, still the College remains in dominating Control of Provincial Government through Board of Governors-­Organization of Aitchison College, thus, falls within definition of a "person" in terms of Art. 199(5) of the Constitution-High Court has, thus, rightly concluded that Aitchison College being a "person" was amendable to Constitutional jurisdiction of High Court-Such finding of High Court would not warrant interference.

[Pp. 352, 359 to 364 & 368] B, C, D, E, F & G

PLD 1970 SC 98; PLD 1963 SC 401; PLD 1965 SC 236; PLD 1975 SC 244;

2000 SCMR 928; PLD 1969 Dacca 352; 1997 MLD 2261;

AIR 1975 SC 1329; PLD 1965 SC 201; PLD 1965 SC 90;

PLD 1984 Lah. 35; PLC 1991 (C.S.) 484 and AIR 1981 SC 487 ref.

Kh. Tariq A. Rahim, ASC, Mr. M. Abbas Mirza, ASC and Mr. M.A. Qurcshi, AOR (absent) for Appellants (in all cases).

Mr. A.K. Dogar, Sr. ASC; and Syed Abut Asirn Jafri, AOR (absent) for Respondent (in C.A. 1088/2000).

Ex-parte for Respondents (in CA5-1089-1093/2000). Date of hearing: 15.10.2001.

judgment

Iftikhar Muhammad Chaudhry, J.--Instant appeals arise out of order dated 18th July, 2000 whereby leave was granted to examine inter alia the question "Whether Aitchison College enjoys the status of a 'person' within the contemplation of sub-article (5) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as 'the Constitution')

1. There is no necessity to note facts of each appeal in detail except briefly stating that respondents invoked the Constitutional jurisdiction of Lahore High Court, Lahore under Article 199 of the Constitution for redressal of their grievances against the Principal, Aitchison College, Lahor who objected the maintainability of the Writ Petitions on averment that the College is not a person within the meaning of sub-article (5) of Article 199 of the Constitution nor it falls under the dominating control of the Provincial Government functionaries, therefore, its actions are not amenable to Constitutional jurisdiction of High Court. A Bench of learned High Court-gave its decision as follows:

"The Aitchison College, the most prestigious educational institution of the country having huge property of its own and large establishment which is being governed by the Board of Governors and the dominative control of the said Board is that of the Provincial Government, therefore, it falls within the definition of word 'person' as defined in sub-article (5) of Article 199 of the Constitution, thus it is amenable to the Constitutional jurisdiction of this Court".

1. It is significant to note that prior to the partition of Pakistan and India, a Society was established under the Societies Registration Act, to run Aitchison College and it continued discharging its functions up to 1961, when Martial Law Administration, Zone-B, issued MLO No. 86, dated 22nd May, 1961 in pursuance whereof the Governor of West Pakistan was empowered to dissolve the registered societies, etc. For sake of convenience, text of the MLO is reproduced hereinabove:

"Whereas it is expedient to improve the administration of private educational and training institution and other cultural or learned •registered bodies in Zone 'B' and to ensure their efficient management and control in the best interest of the nation;

Now, therefore, I, Lt. General Bakhtiar Rana, SQA, MC, Martial Law Administration Zone 'B' do hereby empower the Governor of West Pakistan to order the dissolution of the registered Society and/or the governing body of any non-Government educational or training institution or any cultural or learned registered body, which in his opinion needs improvement; to place the institution or body under a Board of Governors to be nominated by him and to do all acts considered fit and expedient by him for the efficient management and control thereof including the framing of rules, regulations and Statutes and removal of the Chairman and the Members at any time without assigning any reason.

No provision of this order shall be called to question in any Court including the High Court and the Supreme Court. No suit or legal proceedings shall lie against any person or authority for anything which is in good faith done or intended to be done in pursuance of this order." Sbsequently, under above MLO, a Notification No. SOX-16/25-61 (Edu) dated llth November 1961 was issued by the Government of West Pakistan, Education Department, Civil Secretariat, under the order of the Governor of West Pakistan. A perusal whereof indicates that in the opinion of the Governor of West Pakistan , the Administration ef the Aitchison College needed improvement, therefore, to achieve the object, the Aitchison Collage Society alongwith its Governing bodies namely the Council and the Committee of management were dissolved and the control of the College was placed under the control of Board of Governors. Composition of the Board of Governoi^ was also noted in the order, according to which Governor of West Pakistan was designated to be its President alongwith six Members including General Officer Commanding (GOC), Lahore, Finance Secretary, Education Secretary, etc. and Principal of the Aitchison College was directed to act as Secretary to the said Board of Governors. It is important to note that as per clause (5) of the order, the Board of Governors was authorized to do all acts considered fit and expedient by them for the efficient management and control of the said College including the framing of rules and regulation and statutes. Admittedly, this order was not challenged according to law either by the Principal of the College Society (appellant) or any one else having interest in the affairs of the College Society, in any manner. Therefore, by another Notification No. SOX-16/25-61 (Edu) Vol, dated 22nd January 1962, the Government of West Pakistan, Education Department issued the statutes of Aitchison Collage, Lahore promulgated by the Governor of West Pakistan. These statutes defined the authority of the Aitchison Collage, which is reproduced herinabelow:

Ill-Authority of the Aitchison College.

(I) The management and control of the College shall vest in a Board of Governors consisting of the Governor of West Pakistan as President and such Members as may be appointed by the governor of West Pakistan from time to time, but for a period not exceeding three years at one time. The relevant appointments made under the Governor of West Pakistan's Order No. SOX-16/25-61 (Edu), dated llth November, 1961 shall be deemed to have been made under this provisions.

Subject to the other provisions of these Statutes, the Board shall have full powers to administer and manage the institution and in particular in respect of the following matters--

(a) to acquire and dispose of property and generally to enter into contracts, in conformity with the purposes of these Statutes;

(b) determination of the terms and conditions of service of the Principal and other Members of the staff of the institution and of other officers and servants of the Board;

(c) to formulate the budget of the institution for the approval of Government;

(d) to set up an Executive Committee, Sub-Committee, and other Standing Committees as may be required for carrying out the purposes of these Statutes;

(e) to delegate powers to the President, the Executive Committee, Sub-Committee Standing, Committee, the Principal, the staff of the institution and other officers and servants of the Board; and;

(f) to frame, subject to the approval of Government, regulations for the conduct of business of the Board.

As far as the powers and duties of the President and the Principal are concerned, those were also defined as follows:

IV-Powers and duties of the President.

(1) The President shall preside over the Meetings of the Board, in the absence of the President, the Member

present who is next in order of warrant of precedence shall preside.

(b) The President shall exercise the powers of the Board of Governors in the event of an emergency.

(3) The President shall act as appellate authority on any disciplinary action taken by the Principal against Members of the staff.

(4) The President shall have authority to approve extra- budgetary capital expenditure upto Rs. 3,000 under the head "Miscellaneous"

IV-Power and duties of the Principal

(1) The Principal shall be personally and directly responsible to the Board for the complete control, proper running and administration of the College.

(2) The Principal shall be responsible for framing the annual budget and shall submit it to the Board for consideration before the commencement of the financial year.

(3) The Principal shall have authority to sanction all expenditure as provided in the sanctioned budget.

(4) The Principal shall operate the accounts of the Board and the College.

(5) The Principal shall recommend to the Board all confirmations and promotions of the teaching and senior administrative staff.

(6) The Principal shall take such disciplinary action not extending to removal or dismissal as he may deem necessaiy against any Member of the teaching and senior administrative staff.

(7) The Principal shall have the power 0 appoint, suspend or dismiss any Member of the Class III or IV Staff.

(8) The Principal shall have the authority to approve extra- budgetary capital expenditure up to Rs. 500 under the head "Miscellaneous".

1. It is equally important to note that later on vide Notification No. CAB-l/2-4/82, dated 29th November 1994, Punjab Government Rules of Business 1974 were amended in pursuance whereof the Institution of Aitchison College, Lahore was reflected to be one of the special Institution, therefore, Education Department, Government of Punjab made the Aitchison College, Lahore to be one of its attached department but with the status of special Institution. Similarly, few other renowned Institutions of the Province of Punjab like Lahore College for Women, Lahore, Government (Central) Model School, Lower Mall, Lahore, Government College Dhobighat, Faisalabad and Punjab Education Foundation, Lahore were also shown to be autonomous bodies attached with the Education Department. Interestingly, such act of the Government was also not called in question by any interested person by instituting proceeding before Jhe Court of law. However, it ,so happened that the respondents in instant appeals and good many other aggrieved parties instituted Constitutional petitions against the Aitchison College, Lahore before the Lahore High Court, Lahore by invoking its jurisdiction under Article 199 of the Constitution. The petitions were opposed by appellant i.e. Principal Aitchison College on strength of arguments that it does not fall within the definition of a 'person' under Article 199 of the Constitution. The learned Division Bench seized with the matter overruled such objection holding that the High Court had jurisdiction to entertain and decide the matter in dispute. Against this order, one of the respondent approached this Court for redressal of his grievance but the case was remanded to the High Court by issuing following direction:

"In the facts and circumstances of the case, we would appreciate if the High Court decides the jurisdiction in the next two or three weeks and, if it comes to the conclusion that it has jurisdiction under Article 199 of the Constitution, it may also decide the Miscellaneous Applications after hearing the view point of both the parties including the College. The petitioners are free to file appropriate application before the Hon'ble Chief Justice of Lahore High Court requesting that all the cases/Writ Petitions raising identical questions, as are raised in the present case, be heard by the same Judge so that there are no conflicting judgments/orders which may create complications at a latter stage."

On remand of the case, a larger bench was constituted and by means of impugned order dated 12.05.2000 appellant Aitchison College, Lahore has been declared to be a 'person' under Article 199(5) of the Constitution, therefore, aggrieved persons could invoke the Constitutional jurisdiction of High Court for redressal of their grievance. Resultantly, respective Division Benches before whom the matters were pending were directed to dispose them of an merits.

1. Khawaja Tariq Rahim, learned counsel for the appellant contended that action of dissolving of registered Society taken by the Government of West Pakistan vide order dated llth November 1961 in pursuance of power conferred upon it under MLO No. Zone-B, 1986/61 was contrary to the provision of Section 13 of the Registered Registration of Societies Act, 1860. Therefore, it should be deemed that the Aitchison College Society, Lahore even now is the only competent body to deal with the Administration of the Aitchison College. As such a Society registered under the Registration of the Societies Act for the purposes of sub-article (5) of Article 199 of the Constitution cannot be considered to be a person nor its'

action can be reviewed by the High Court in exercise of its Constitutional jurisdiction. Because such Society never works under the control of the Federal or Provincial Government nor its function are connected with the affairs of Federation of Pakistan or the Province.

1. Mr. A.K. Dogar, learned ASC for the private respondents meeting with the arguments of appellants counsel urged that the then Governor of West Pakistan in exercise of powers conferred upon him under MLO Zone-B dissolved the Aitchison College society, Lahore and such action on behalf of Government was evidently accepted by the members of the Societies. In as much as after having taken over the affairs of Aitchison College, the Board of Governors was constituted which was headed by the Governor of the West Pakistan alon with senior officials of defence and the Civil Secretariat. In addition to it, the Governor was authorised to nominate the Members of Board of Governors, who after every three years as per statutes of the Aitchison College had been appointing new Members and up till now they are discharging their functions under the President Ship of the Governor of the Province of Punjab. Therefore, this fact abundantly makes it clear that dissolution of Societies has taken place effectively and the affairs of the Society are being run by the Board of Governors for improvement of the Institutions and such action cannot be reversed after the lapse of a period of about 40 years.

2. Learned counsel for the appellant raise above contention before High Court, which was repelled. Relevant observations therefrom are

reproduced herinabelow:

"The plea that the Martial Law Government having also promulgated, President Order (post proclamation) No. 1 of 1958 Le. Laws (continuance in force) Order 1958 whereby the existing laws

remained in force meaning thereby that the Societies Registration Act, 1860 having remained in field, the society managing the affairs of the Aitchison College could not have been dissolved without having recourse to Section 13 of the Societies Registration Act, 1860 which provides for the dissolution of the societies registered under the act is also not tenable for more than one reason; firstly it is admitted that as a matter of fact the college is being run under the Statutes framed in pursuance of Martial Law Order No. 86. Secondly, the change was brought about somewhere in the year 1962 when the present Statutes were promulgated and they have been accepted by the college authorities without any demur. Needless to add that the college or the society has not come forward to challenge the same by way of any proceedings before a Court of law. Thirdly, it is highly doubtful that this decision could also be taken in defence to the petition filed against the college by various aggrieved persons. Fourthly, the position of Martial law Orders being different than the ordinary law which shall have to be given effect because the society itself was dissolved and superseded in exceptional circumstances, Fifthly, it is provided by Section 13 of the same act that whenever any Government is a Member of or a contributor to, or otherwise interested in any society registered under this act, such society shall not be dissolved without the consent of Government of the province of registration. The provision afore-referred refer .to three situations where the consent of the Government of the province of registration is required firstly where the Government is a Member of the society, secondly where the Government is a contributor, thirdly when it is otherwise interested in any society. It would be seen that even if the first two situations may be ignored (which may not be possible for the Government has always remained a Member of the society as also the contributor), the their factor is veiy much existing in the present case for MLO No. 86 had clearly ordained that certain non-Governmental societies are not managing the affairs of the different Colleges, therefore, the Governor of West Pakistan was vested with the power to supersede such societies so as to effectively managing the affairs thereof. The three situations as contemplated in this section are disjunctively mentioned, therefore, they are to be read independent of each other. It is, thus obvious that the provisions of Section-13 of the Societies Registration Act, 1860 were also complied with for the Government proceeded to dissolve the society simultaneously creating board of governors for the management of the College whereafter Statutes of the same was also provided for. Needless to add here that the Martial Law Order had an overriding effect."

1. Learned counsel for the appellant in support of his above contention has relied upon the case of Farzand All v. Province of West Pakistan (PLD 1970 SC 98).

A perusal whereof persuade us to follow the principle laid down therein. Relevant para therefrom is reproduced herein below:

"Be that as it may, since this is not a direct challenge to the right of such persons to be Members of the Assembly but only a collateral attack upon their right to participate in the proceedings of the House in respect of their impugned Constitutional Amendments themselves, I do not consider it necessaiy to deal with this question any further as I have held that even assuming that they were disqualified they participated, in the proceedings bona fide in assertion of a claim of right and, as such, the legislative measures passed by the Assembly with their participation were protected by sub-clause (d) of clause (I) of Article 110 of the 1962 Constitution."

Applying the above test on the facts of the instant cases, one can conveniently observe that even if for sake of arguments it is presumed that dissolution of the Aitchison College Society, Lahore was unwarranted under MLO No. 86, Zone-B, because a registered society can only be dissolved under Section 13 of the Registration of Societies Act, 1860 but even then argument so raised cannot prevail because under Article 250 of the Constitution of 1962, all such actions of the Martial Law authority including promulgation of Martial Law Order were protected, therefore it would be deemed that by providing the Constitutional protection, action of dissolving Aitchison College Society, Lahore stand validated.

1. Mr. A.K.D. Dogar, learned ASC referred to the case of Muhammad Afzal v. Governor Lahore Division (PLD 1963 SC 401) as well as Aziz ur-Rehman Chaudhry v. M. Naseer-ud-din and others (PLD 1965 SC 236). Relevant para from the case of Aziz-ur-Rehman (ibid) is reproduced hereinbelow:-

"It has next to be considered whether, even though the validity of the said orders and acts cannot be challenged, the action purported to be taken thereunder can be questioned, on the ground that they were not in accordance with the Martial Law Order. If these were completed acts and the protection given by Martial Law Regulations Nos. 88 and 93 was available for such acts, then the language of Clause 2 of Martial Law Regulation No. 88 as amended by Martial Law Regulation No. 93, renders them immune from attack. The latter Regulation has expressly widened the immunity so as to include any "order made or anything done whether the order of the thing is within the scope of the Regulation or Order or not, or whether the Authority making the order or doing a thing had jurisdiction in the matter or not." Furthermore, under this even persons authorised by or under a Martial Law Regulation or Order to peiform any function or exercise any power would be Martial Law Authorities within the meaning of the said Regulations. Thus the Provincial Government and the Administrator would have also become Martial Law Authorities pro tanto for the purposes of the said Martial Law Order No. 104 and their acts would not have been bpen to question whilst those Regulations Nos. 88 and 93 were in force. If those acts were consummated acts, then on the principle of past and closed transactions those acts will still enjoy the same immunity given to them by those Regulations by reason of the provisions of Article 250 of the Constitution."

1. Thus, following the above observation, we are of the opinion that there is no further scope of discussion in this behalf and it is held that action of dissolving the Aitchison College Society, Lahore by the Governor vide order NSOX-16/25-61 (Edu) dated llth November, 1961 in exercise of power deri\red by him under MLO-86, Zone-B being a passed and closed transaction could not be reopened through a collateral proceedings. In continuation of these observations it may further be noted that appellant independently never challenged order dated llth November 1961 passed by Governor of Punjab dissolving the Aitchison College Society. Therefore conclusion would be that the Society was rightly dissolved by the Governor on llth November 1961 and due to such order it has now become part of Education Department as a special institute. Therefore the Principal of the College who also acts as Secretary of the Board of Governors of Atichison College, Lahore is not empowered strictly speaking without the consent of Board of Governors to question the dissolution of the Society and if he has acted independently in this behalf, his such action shall be contrary to the stand of the Board of Governors. However, we leave this question for examination by the Board of Governors that if instant legal proceedings have been launched by the Principal Aitchison College challenging the very existence of the Board of Governors then what should be its consequence.

2. Learned counsel for the appellant next contended that the Institution of Aitchison 'College does not fall within the definition of a 'person' under sub-article (5) of Article 199 of the Constitution. In support of his arguments, reliance was placed by him on PLD 1975 SC 244,2000 SCMR 928, PLD 1969 Dacca 352, 1997 MLD 2261, AIR 1975 SC 1329. Therefore, any action by the management of Aitchison College cannot be subjected to judicial review by the High Court in its extraordinary Constitutional jurisdiction.

3. Learned counsel for respondents argued that Institution of Aitchison College does fall within the jurisdiction of a 'person' for the purpose of Article 199 of the Constitution. As in pursuance of MLO No. 86, its management was taken over by the Board of Governors headed by the Governor of the Punjab who is also Constitutional head of the Province and amongst others Secretaries of Finance and Education Departments, Government of Punjab as well as General Officer Commanding Lahore Cantt are Members of the Board of Governors in their official capacity and they are appointed embers of Board of Governors under Statutes of Aitchison College framed by him in exercise of the powers conferred upon him by under MLO No. 86 (Zone-B). In addition to it, the Provincial Government in exercise of the powers conferred upon it under Article 139 of the Constitution had amended the Punjab Government Rules of Business as back as in 1994 and to provide Constitutional petition to the institution it has been brought within the folds of Education Department of the Province as a special Institution. Therefore, according to him viewed from any angle, the status of the College would be of a 'person' for the purpose of Article 199(5) of the Constitution. He referred to the judgments reported in PLD 1965 SC 201, PLD 1965 SC 90, PLD 1975 SC 244, PLD 1974 Lahore 49, PLD 1984 Lahore 35, PLC 1991 (CS) 484, AIR 1981 SC 487, in support of his ontention.

4. We have already held hereinabove that the dissolution of the Society was accepted by its Members and all other concerned persons who had interest in its affairs. Inasmuch as, when the Governor in exercise of powers conferred upon him under MLO No. 86 (Zone-B) issued on llth November 1961, dissolved the Aitchison College Society, its governing bodies i.e. a Council and Committee of the Management and rescinded its Statutes and bylaws and placed the Management and Control of the College under the Board of Governors, no action was taken by questioning it before the judicial forums, therefore, now no exception can be taken against its such acts which have taken place in continuation of dissolution of Society. In addition to it, the Government of West Pakistan Education Department issued the Statutes of the Aitchison College, Lahore promulgated by the Governor of West Pakistan, which have provided device to have dominating control over the sovereign status of the Institution to deal with its affairs by formulating the budget of the Institution for the approval of the Government. Most important aspect of the case is that after the dissolution of the Aitchison College Society, this Institution in 1994 was treated as a special Institution of the Province of the Punjab and to provide it a Constitutional, protection, the Governor of the Punjab in exercise of his powers under Article 139 of the Constitution amended the Punjab Government Rules of Business. According to amendment in the schedule of the Rules of Business, the Aitchison College has been brought under Administrative Control of the Education Department of the Province.

5. We have also attended above proposition from another angle that Society of Aitchison College had lost its status due to Notification dated llth November, 1961 issued by the Government of West Pakistan, Education Department, Civil Secretariat issued in the name of the Governor of the Province, in pursuance of MLO No. 86 (Zone-B). The MLO No. 86 (Zone-B) had bestowed two types of powers upon the Government namely to dissolve the registered body and also to place the Institution under control of the Board of Governors to be nominated by him and to do all acts considered fit and expedite by him for the management and control thereof (emphasis provided) including the framing of rules and regulation and Statutes etc. There is no dispute that after the issuance of the Notification, the management of the College came under the control of Board of Governors comprises of at least three designated senior officers from the civil administration i.e. Secretary Education and Finance and an Officer from Defence Force of Pakistan i.e. General Officer Commanding alongwith other renowned personalities including old students etc. But perusal of Rules would indicate that they had control over the College for efficient Management. Amongst the Members of bo^dy of Governor, its official Members enjoy these powers more effectively being representatives of the Provincial Government and the Defence.

It may not be out of context to remind here that both the Secretaries of Provincial Government are administrative heads of their respective departments, according to the Provincial Rules of business. In their such capacity, both of them deal with matters pertaining to education and finance of the Province respectively. As per Schedule-I, Rules 2(ii), 2(xii) and 3(i) of the Rules of Business, the Education Department consist cf number of attached departments including Director Public Instructions (Colleges) Punjab. By means of valid law i.e. MLO No. 86 (Zone-B), the Aitchison College virtually has been brought under the control of Provincial Government for the reasons assigned hereinbefore as well as for an most important reasons i.e. the President of the Board of Governors himself is a constitutional head of the Province, being the Governor, whose powers and functions have been defined under the Constitution of 1973^ therefore, whenever a body consisting of a Governor and the Secretary of the Province as well as the General Officer Commanding of the Defence acts under the valid law i.e. MLO No. 86 and exercises their jurisdiction in pursuance of the provisions of such law, it would be deemed that they have the statutory control over the body being headed by them. Therefore, such body would be deemed to be working for the affairs of the Province. This aspect of the case can be examined from another angel namely that if the Board of Governors of Atichison College was not under the dominating control of Provincial Government then what was the necessity to grant it constitutional protection by bringing it within the folds of Education Department by amending the Provincial Rules of Business being promulgated by the Provincial Government through the Governor of the Province under Article 139 of the Constitution.

1. There is yet another angle to examine the proposition under consideration i.e. the Board of Governors has framed Statutes in exercise of the delegated powers to deal with the different affairs of the Institution including determination of the terms and conditions of the service of Members of staff of the Institution and other officers and servants of the Board as well as acquiring the service of any employee of the Provincial Government on deputation to manage or look after the affairs of the College. The Board of Governors is also authorized to formulate the budget of the Institution for the approval of the Government Essentially, when the Government functionaries are involved by an Institution in its affairs to this extent that latter agrees to transfer its officer on deputation and also approve the budget of the Institution then no other conclusion can be formed except the Institution is one of the component of a Provincial setup, subscribing its full participation in respective field. As in the case in hand, Aitchison College, Lahore after having entering into the folds of the Provincial Education Department, is discharging its functions towards imparting education like other Educational Institutions functioning in the Province under the command of the Education Department

2. Learned counsel for appellant also stated that the Aitchison College cannot be deemed to be under the control of the Provincial Government because it is not getting any financial assistance from the Government.

But in our opinion merely on account of non-getting financial assistance, the Aitchison College cannot be considered to be an Educational Institution functioning under the control of Provincial Education Department through the Board of Governors headed by the Governor as its President. In this behalf, it would not be out of context to point out that there are certain Provincial Educational Institutions who have sufficient means to generate funds for its functioning but still they are deemed to be under the dominating control of the Government as its affairs are being regularized or being run by adopting such mechanism in which the constitutional head of the Province i.e. the Governor can directly participate. Examining the proposition in hand, adverse to above reasons namely that if the governor of the Province being its President and other officials belonging to the Provincial Government have only the ceremonial representation in the Board of Governors and the affairs of the College can be run without their participation by the private Members of the Board of Governors, then what was the object to take over the management of the College by promulgating MLO. No. 86 (Zone-B) because prior to taking over the management and the control of the College under this provision of law, the College was already functioning under the control of a registered Society. Under MLO No. 86 control of Aitchison College was taken over as back as on llth November 1961 by means of issuing Notification in exercise of powers conferred upon the Government because latter had considered it fit and expedient for the efficient management and control of the College to ensure its improvement and to satisfy the will of law i.e. MLO No. 86 (Zone-B). Admittedly, a ceremonial head or official participants would not make improvement unless it had not taken over management and control of the Institution, therefore, we are of the opinion that notwithstanding the fact that the Aitchison College is not receiving any financial assistance from the Provincial Government but as its management and control and all other matters relating to run its affairs through a statutory body functioning under the system which has been provided under MLO. No 86 (Zone-B) vests in Provincial functionaiy, therefore, the Institution would fall within the definition of a 'person' under Article 199 (5) of the Constitution. At this stage it would be appropriate to make reference to the case of University of Dacca through its Vice Chancellor and another v. Zakir Ahmed (PLD 1965 SC 90). In this report while interpreting the word a 'person' with reference to Article 98(2) of the Constitution, 1962, read with definition of a 'person' [under Section 3 (39) of the General Clauses Act] as well an in view of the provision of Section 3 of the Dacca University Ordinance (No. XXIII of 1961), it was held as follows:-

"It is clear from this definition that the University is an association of persons who have been constituted by the statute into a body corporate and, therefore, the University comes will within the definition of a 'person' given in the General Clauses Act. Again under Article 242 of the Constitution a 'person' is defined as including any 'body' politic or corporate'. As such even under this definition the University comes within the categoiy of a 'person' under the Constitution."

It is to be seen that both the learned counsel for parties in support of their respective contentions have relied upon the case of Salahuddin and 2

others v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244). In this case following test has been laid down to determine^whether functions of a body can be considered to be function of a person for the purpose of the Constitution:-

"The primary test must always by whether the functions entrusted to the" organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not."

Applying the above test on the facts of instant cases, we feel no hesitation in drawing inference that the Board of Governors, Aitchison College, Lahore headed by the Governor of the Province as its President alongwith other officers i.e. Secretaries Education, Finance and General Officer Commanding as well as un-official Members are involved in providing education which is one of the responsibility of the State and -by taking over its management and control the Board, exercises sovereign powers as well as public powers being a statutory functionary of Government who in order to provide it full legal/constitutional protection had brought it into the folds of its Education Department by amending the Provincial Rules of Business as back as in 1994 and even if for sake of arguments if it is presumed that no financial aid is being provided to the College from the Provincial public exchequer, even then, the College remains in dominating control of the Provincial Government through Board of Governors. Therefore, the above test stands fully satisfied and we are persuaded to hold that organization of the Aitchison College, Lahore falls within the definition of a 'person'.

1. Learned counsel for the appellant stated that this Court in the case of Maqsood Ahemd Toor and 4 others v. Federation of Pakistan through Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others (2000 SCMR 928) has held that if an organization is not performing the functions of the State involving some exercise of the public powers, would not fall within the definition of a 'person'. As for as this legal proposition is concerned there is no cavil with it but in this report matter under examination of this Court, was relating to allotment of the residential plots reserved for the Government employees under different categories by the Federal Government Employees Housing Foundation, and because foundation was registered with the Registrar of Companies under Section 32 of the Companies Ordinance, 1984 as a limited company by guarantee, therefore, it was held that because the foundation does not enjoys the status of statutory corporation and controlled by the Federation and neither is performing any sovereign function of the State, therefore, against

it writ is not competent. Learned counsel has also heavily relied upon the case of Syeda Sayceda Bano and another v. Province of East Pakistan and others (PLD 1969 Dacca 352). In this case services of the petitioners being Assistant Teachers were terminated in pursuance of a resolution passed by the Managing Committee of the School, therefore, both of them invoked the jurisdiction of the High Court to impugned the resolution of the Managing Committee and notice of the determination of the service of petitioners. As petitioners instituted writ petition under Article 98 (2) of the Constitution of Pakistan 1962, therefore, question for consideration came up "as to whether the Managing Committee of a private School receiving grant from Provincial Government falls within the definition of a 'person'. In this context, it was resolved that the Members of the Managing Committee of private School are not performing functions in connection with the affairs of the Province of East Pakistan and merely for the fact that such a School receives some monetary help or that the Provincial Government has some amount of control in regard to its affairs will not make the Members of the Managing Committee of that School persons performing functions in connection with the affairs of the Province.

The rule laid down in above case would not be applicable because in instant cases the Members of the Board of Governors are not representing to a private College and they represent to such Institution whose management has been taken over in pursuance of provisions of law by the Governor of the Province and its affairs are being run under the President-ship of the Governor who derives powers from a valid statutory law and exercise such powers with the aid and assistance of the Provincial Government through its Secretaries of Education and Finance as well as by the assistance of the Defence Forces of the Pakistan as its General Officer Commanding, Lahore and the Institution being run by them has come under the Administrative control of the Education Department. Therefore, this authority has not advanced the case of the petitioner in any manner.

1. Learned counsel also referred to the case of Sabhajit Tewary v. Union of India and others (AIR 1975 SC 1329). As per facts of the case, Council of Scientific and Industrial Research asked for an order declaring two letters to be discriminatory and violative of Article 14. The two letters relate to recommendations of the Finance Sub-Committee of the Council of Scientific and Industrial Research with regard to remuneration of Stenographers.

It may be noted that in Article 199 (5) of the Constitution of Islamic Republic of Pakistan word 'a person' has been used, whereas in Indian, Constitution instead of using word 'a person', the word 'an authority' has .been used. As far as the Council of Scientific and Industrial Research is concerned, it has status of a Society registered under the Societies Registration Act. As per its Rule 3, Prime Minister of India is the ex-officio President of the Society and under Rule 30 Governing Body consists of inter alia some persons appointed by Government of India, representing the administrative Ministry under which the Council of Scientific and Industrial Research is included, and the Ministiy of Finance and one or more members appointed by the Government of India. Another feature of the status of the Society is that the Government of India is authorised to terminate the membership of any member or at one and the same time of all members other than the ex-officio member of the Governing Body. Therefore in view of these features, it was concluded that the Society of the Council of Scientific and Industrial Research is not an authority within the meaning of section Article 12 of the Constitution. The writ petition was dismissed.

In our opinion, this judgment as well is not applicable on the facts of instant cases. At it has been discussed hereinabove that presently affairs of the Aitchison College are not being governed by a Society under the Societies Registration Act 1896 because on promulgation of MLO No. 86 (Zone-B), the Society was dissolved on 2nd May 1961 and since then its affairs are being run by the Board of Governors initially notified on llth November 1965. In 1994, by amending the Provincial Government Rules of Business, the Management of the Aitchison College, Lahore has been brought under the Control of the Education Department, therefore, on account of such distinction, principal oflaw discussed in this judgment cannot be applied on these cases.

1. After having dealt with the judgments, which were relied upon by the learned counsel for the appellant, we consider it appropriate to make reference to the judgments, which were referred by the learned counsel in support of respondents. In this behalf, he referred to the case of M/s. Huffaz Seamless Pipe Industries Ltd v. Suit Northern Gas Pipelines Limited and others (1998 CLC 1890). In this case, after reviewing the judgments on the subject, it has been held that any Company/Corporation registered under the Companies Ordinance, 1984 which are funded by the Federal or Provincial Government and which are under dominative control of state (Federal Government, Provincial Government) and which provides amenities of life to citizens and is discharging functions, which fall within the area of the police power of State are amenable to the writ jurisdiction of the High Court under Article 199 of the Constitution.

19-A. Learned counsel for respondents also referred to the case of Ajay Husian v. Khalid Mujib (AIR 1981 SC 487). Relevant para therefrom is reproduced hereinbelow:-

"It is immaterial for determining whether a Corporation is an authority whether the Corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The Corporation may be a statutory corporation created by a statute or it may be a Government company or a company formed under the Companies Act or it may be a society registered under the Societies Registration Act or any other similar statute. Whatever be its genetically origin, it would be an "authority" within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article -12. A juristic entity which may be "State" of the purpose of Parts-Ill and IV would not be so far the purpose of Part XIV.

In the instant case, the Regional Engineering College, Srinagar is one of the 15 engineering colleges in the countiy sponsored by the Government of India. The college is established and its administration and management are carried on by a society registered under the Jammu and Kashmir Registration of Societies Act, 1898. Having regard to the memorandum of association and the rules of the society, it was held that the society is an instrumentality of the agency of the state and the Central Governments and it is an "authority" within the meaning of Article 12. The composition of the society is dominated by the representatives appointed by the Central Government and the Governments of Jammu and Kashmir, Punjab, Rajasthan and Utter Perdesh with the approval of the .Central Government. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu and Kashmir and even if another monies are to be received by the society, it can be done only with the approval of the state and the Central Governments. The rules to be made by the society are also required to have the prior approval of the State and the Central Governments and the accounts of the society have also to be submitted to both the Governments for their scrutiny and satisfaction. The society is also to comply with all such directions as may by issued by the State Government with the approval of the Central Government in respect of any matters dealt within the report of the reviewing committee. The control of the state and the Center Governments is in deed so deep and pervasive that no immovable property of the society can be disposed of in any manner without the approval of both the Governments. The State and the Central Government have even the power to appoint any other person or persons to be members of the society and any member of the society other than a member representing the State or Central Government can be removed from the membership of the society by the State Government with the approval of the Central Government.

The Board of Governors which is incharge of general superintendence, directions and control of the affairs of society and of its income and property is also largely controlled by nominees of the State and the Central Governments. Thus, the state Government and by reason of the provision for approval, the Central Government also, have full control of the working of the society."

1. After having gone through the above observation from the case of Ajay Hasia, no further discussion is called for because, now after the dissolution of Aitchison College Society, it is a fact that in pursuance of MLO No. 86 (Zoiie-B) dated 2nd May 1961 read with Notification No. SOX-16/25-61 (Edu) dated llth November 1961, the Board of Governors of the College are enjoying position of juristic person and the then Governor in capacity of President of the Board of Governors in exercise of the powers conferred upon him by the Notification dated llth November 1961 has promulgated statutes to regulate the affairs of the College including the one to formulate budget of the Institution for the approval of the Government, specifying the powers and duties of the President as well as the powers and duties of the Principal and the most important power, acquiring powers to transfer the services of any person serving or deputing to serve in connection with the affairs of the Province in any capacity to the Board of Governors for the purpose of discharging duties in the Aitchison College Lahore, mainly for the purpose of running the affairs of the management efficiently and also having control over the Institution with is busy in parting education being renowned Institution therefore, the Board of Governors of Aitchison College, Lahore squarely falls within the definition of a 'person' under Article 199 (5) of the Constitution of Islamic Republic of Pakistan.

Thus for the forgoing reasons, the appeals are dismissed and impugned judgment dated 12th May 2000 passed by Lahore High Court, Lahore is up held. No order as to costs, (A.A.) Appeals dismissed.

PLJ 2002 SC 368

[Appellate Jurisdiction]

Present: irshad hasan khan, C.J., muhammad arif and qazi muhammad farooq, JJ.

FEDERAL PUBLIC SERVICE COMMISSION and others-Petitioner

versus Syed MUHAMMAD AFAQ and others-Respondents

Civil Appeals Nos. 4 of 2001 to 10 of 2001, C.Ps. Nos. 1778-1779/2001, 1780/2001, C.A's No. 1283/1999 and 1297/1999, decided on 21.11.2001.

(On appeal from judgments respectively dated 8.8.2000, 26.4.2001, 16.6.2001, 23.6.1999 and 11.11.1998, passed by the High Court of Sindh, Karachi, High

Court of Balochistan, Quetta and Lahore High Court, Rawalpindi Bench, Rawalpindi in respectively C.Ps. Nos. 1119, 1894,1938, 2072-99 and 461, 837

and 933-2000, CP-D-1648-2000, 1653-2000 and 1626-2000

and CP-474-99 and ICA No. 127-98)

Competitive Examination Rules, 1997--

—R. 6(a)(iii)-Constitution of Pakistan (1973), Art. 185-Civil Procedure Code (V of 1908), O.XXXVII-A-R.I-Validity of R. 6(a)(iii) of Competitive Examination Rules 1997, assailed by successful candidates as each one of them felt aggrieved by the application of said Rule—Record indicated that notice was not given to attorney-General of Pakistan in any of the impugned cases by the respective High Courts-Failure of respective High Courts to give effect of mandatory provisions of O.XXXVIA, R. 1 of C.P.C. has, thus, vitiated impugned judgments, in that, such cases involved interpretation of constitutional provisions-Mere hearing of Deputy Attorney General and affording full opport nity to Federal Government or Federal Public Service Commission does not constitute substantial compliance of mandatory provisions of O.XXXVIIA. R. 1, C.P.C.-A11 those appeals which were decided without notice of Attorney-General for Pakistan were remanded to respective High Court with direction to issue notices to Attorney-General of Pakistan and decided the same within specified period.

[Pp. 370 & 371] A, B

PLD 1972 SC 723 ref.

Sardar Muhammad Aslam, D.A.G. and Ch. Akhtar AH, AOR. for Appellants (in C.A. No. 4.10. of 2001.)

Mr. M. Akram Sheikh, Sr. ASC and M.A. Zaidi, AOR for Respondents (in C.A. No. 5-7/2001).

Mr. A. Rahim Kazi, ASC for Respondents (in C.P.. No. 1778-1779 of 2001).

Mr. Abdul Karim Khan Kundi, ASC and Mr. M.S. Khattak, AOR for the respondent (in C.P. 1780 of 2001).

Mr. Muhammad Munir Peracha, ASC and Mr. Ejaz Muhammad Khan, AOR for Appellants (in C.A. 1297/99).

Sardar Muhammad Aslam, DAG and Raja Abdul Ghafoor, AOR for espondents (in C.A. 1283-1297/99).

Mr. Mahmood-ul-Islam,AOR (Absent) for Appellant (in C.A. 1283/99).

Date of hearing: 21.11.2001.

judgment

Irshad Hasan Khan, CJ.--Through this common judgment we intend to dispose of Civil Appeals Nos. 4 to 10 of 2001, Civil Petitions

Nos. 1778-1779 of 2001 and 1780 of 2001, Civil Appeals Nos. 1283/1999 and 1297/1999, which have respectively arisen out of judgments dated 8.8.2000, 26.4.2001, 16.6.2001, 23.6.1999 and 11.11.1998, passed by the High Court of Sindh, Karachi, High Court of Balochistan, Quetta and Lahore High Court, Rawalpindi Bench, Rawalpindi.

1. It would suffice to give brief facts of the case in Civil Appeal No. 4 of 2001, in that, similar facts and circumstances have been stated in other connected appeals/petitions, involving the same questions of law and facts. Respondent No. 1 in the said appeal acquired 509th position in the over-all merit list and 13th position among the candidates of Sindh Urban area eligible for appointment in the Trade and Commerce Group. According to him, the Respondent No. 2 herein, who was placed at Serial No. 462 of the merit list, was required to be treated as a candidate from Sindh Rural on account of birth of his father in rural area and he had no right to claim a seat reserved for those from the urban area of the province under Rule 6(a)(iii) of the Competitive Examination Rules, 1997 (hereinafter called the Rules). But Respondent No. 2 was subsequently appointed against a seat reserved for Sindh Urban in violation of Rule 6(a)(iii) of the Rules and Respondent No. 1 was thus deprived of that seat. Respondent No. 2 took the plea that he was entitled to be appointed against Sindh Urban seat in view of a domicile certificate and the fact that he resided in urban area, in spite of the fact that his father was born in rural area.

2. The respondents in Civil Appeals Nos. 4 to 10 of 2001 and Civil Petitions No. 1778-1780 of 2001 as well as appellants in Civil Appeals No. 1283 and 1297 of 1999, who were successful candidates of CSS examination, assailed the validity of Rule 6(a)(iii) of the Rules by filing Constitution Petitions before the respective High Courts because each of them felt aggrieved by the application of the said rule, which reads thus:

"In the case of candidate whose father belongs by birth or origin to a Pakistan Province/area it is immaterial where he/she has received his/her education or has resided. Such a candidate will be considered for appointment against the quota of vacancies reserved for the province/area to which his/her father belonged."

1. During hearing of the above cases, it transpired that notice was not given to the Attorney General for Pakistan as required under Order XXVIIA Rule 1 of the Civil Procedure Code, 1908 in any of these cases by the respective High Courts. Clearly, failure of the respective High Courts to give effect to the mandatoiy provisions of Order XXVIIA Rule 1 CPC has vitiated the impugned judgments, in that, the cases involved interpretation of Constitutional provisions. It is not controverted by any of the learned counsel for the parties that the controversy raised before the High Courts as to the vires of Rule 6(a)(iii) of the Rules had been examined in the absence of the Attorney General for Pakistan. The material placed on record does not show that any notice was issued to him.

2. When faced with this, Mr. Abdur Rahim Kazi, learned ASC appearing on behalf of respondents in Civil Petitions Nos. 1778-1779 contended that there was substantial compliance of Order XXVIIA Rule 1 CPC, inasmuch as, full hearing was afforded to the Federal Government, which was represented by the Deputy Attorney General.

3. We are afraid, the mere hearing of the Deputy Attorney General and affording full opportunity to the Federal Government or the Federal Public Service Commission does not constitute substantial compliance of the mandatory provisions of Order XXVIIA Rule 1 CPC, which provides in unequivocal terms that; "in any suit in which it appears to the Court that any substantial question as to the interpretation of Constitutional law is involved, the Court shall not proceed to determine the question until after notice has been given to the Attorney General for Pakistan if the question of law concerns the Central Government and to the Advocate General of the Province if the question of law concerns a Provincial Government". Refer Federation of Pakistan v Aftab Ahmed Khan Sherpao (PLD 1992 SC 723). Here, as stated above, no notice was given to the Attorney General for Pakistan, therefore, the impugned judgments stand vitiated on this ground alone.

4. Rcsultantly, we allow Appeals No. 4 to 10 of 2001 and set aside the impugned judgments therein. We also convert Civil Petitions No. 1778, 1779 and 1780 of 2001 into appeals and while allowing the same set aside the impugned judgments rendered therein. These cases are remanded with the direction to the respective High Courts that before proceeding to determine the question involved in the matters, notice be issued to the Attorney General for Pakistan in terms of Order XXVIIA Rule 1 CPC.

5. In so far as Civil Appeals Nos. 1283 and 1297 of 1999 are concerned, the impugned judgments therein have been rendered in favour of the Federal Public Service Commission. As the connected matters have been remanded to the respective High Courts on account of non-issuance of notice to the Attorney General for Pakistan and as the impugned judgments in these appeals also suffer from the same defect, therefore, the judgment in these appeals are also set aside and the matters remanded to the respective High Courts for decision after issuing notice to the Attorney General for Pakistan in terms of Order XXVIIA, Rule 1 CPC.

8-A. All the causes shall be decided by the respective High Courts within 90 days from the receipt of the copy of this judgment.

1. No order as to costs.

Case remanded.

PLJ 2002 SC 372

[Appellate Jurisdiction]

Present: iftikhar muhammad chaudhry and hamid ali mirza, JJ. CAPITAL DEVELOPMENT AUTHORITY-Appellant

versus

SUB. FAQIR SHAH and others-Respondents C.As. Nos, 475 to 478 of 1998, decided on 19.11.2001.

(On appeal from the judgment dated 21.11.1996 in W.Ps. No. 448-449 of 1983 and 136 of 1984 passed by the Lahore High Court, Rawalpindi Bench)

(i) Capital Development Authority Ordinance, 1960 (XIII of 1960)--

—-Ss. 2-K, 30 & 36-Constitution of Pakistan (1973), Art. 185(3)--Leave to appeal was granted to determine; whether or not the compensation was allowed to owners'of land keeping in view the mandate of law contained in Sections 2-K, 30 & 3i6 of Capital Development Authority Ordinance, 19GO. [P. 374] A

(ii) Capital Development Authority Ordinance, 1960 (XIII of 1960)--

—-Ss. 2-K, 30 & 36-Constitution of Pakistan (1973), Art. 185-Compensation awarded to land owners whether or not in accordance with Sections 2-K, 30, 31 £ 36 of Capital Development Authority Ordinance 1960 and whether or not High Court was legally justified to interfere with the order passed on review petition by successor Commissioner of Capital Development Authority—Land in question, admittedly was acquired after first day of January, 1968, therefore, market value of the same in terms of S. 2(k)(ii) of the Ordinance of 1960, would be the aggregate of average market value with reference to classification thereof, recorded in the register of Haqdaran Zarnin as in force on that day plus 25 per cent of such value-Value initially assessed by Commissioner concerned to be awarded to land owners was in terms of Section 2-K, 30 and 31 of the Ordinance of 1960 and the guidelines in such respect of Supreme Court and that of Lahore High Court, therefore, the same cannot be said to be in violation of law liable to be interfered with review petition by successor Commissioner-Successor Commissioner while deciding review petition had not cared to follow either the relevant provisions of law or the mandate of the Superior Courts, therefore, his decision was rightly set aside by the High Court which would warrant no interference, especially when there were neither discoveiy of new and important matter or evidence nor error apparent on the face of record for the exercise of review jurisdiction by successor commissioner.

[Pp. 382, 386 & 387] B, C & E

(iii) Constitution of Pakistan (1973)--

—Arts. 189 & 204-Contempt of Court Act (LXIV of 1976), Ss. 3 & 4-Law laid down by Supreme Court is binding upon all the Courts and on all function of Government and all other formous engaged in the process of administration of justice so as to keep them in limit and Control the exorcise of discretion to be exercised by them--Every Authority whether judicial or otherwise is bound to give effect to the law laid down by Supreme Court-Successor ommissioner while reviewing judgment/ order of his predecessor claimed in his review order that interpretation of Superior Courts would not be shared by him, which would amount to disobedience to decisions of Supreme Court and he further stated that Supreme Court had mis-interpreted the law, therefore, it was mistake patent on the record and amounted to disrespect to the decisions of Supreme Court and High Court and made the same as ground for review of the order of his pre-decessor which prima facie, would amount to contempt of Supreme Court warranting legal consequences-Notice was issued to successor commissioner, as to why proceedings under Art. 204 of the Constitution read with Sections 3, 4 of Contempt of Court Act, 1976, should not be initiated agains him for showing his willful disobedience and disrespect to the dignity and decorum of Supreme Court and High Court in violation of said provisions. [Pp. 386 £ 387] D, F

PLD 1977 Lah. 1200; PLD 1976 SC 752; AIR 1954 SC 170; PLD 1960 Lah. 450; PLD 1985 FSC 221 and PLD 1992 FSC 361 ref.

Sardar Muhammad Aslam,ASC and Ch. Akhtar All, AOR for Appellants (in C.A., 475-477/98) and for Respondent (in CA No. 478/98).

Mr. Gul Zarin Kiani, ASC for Appellants (in C.A. 478/98 and Respondents Nos. 15,18, 21, 22, 40 to 45, 45 to 56 (in C.A 47/91).

Nemo for Respondents (in C.A. 475/98).

Sh. Zameer Hussain, ASC and Mr. Ejaz Muhammad Khan, AOR for Respondents (in C.A 476/98).

Ch. Muhammad Akrarn, AOR for Respondents (in C.A. 477/98).

Date of hearing: 27.9.2001.

judgment

Hamid Ali Mirza, J.-These Civil Appeals with leave of this Court are directed against judgment dated 21.11.1996 in writ Petitions Nos. 448-449 of 1983 and 136 of 1984 passed by learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, whereby order dated 11.10.1983 passed by- Commissioner CDA was declared illegal and without lawful authority consequently orders dated 6.8.1979, 31.5.1981, 20.10.1982 and 28.5.1983 passed by the Deputy Commissioner and Commissioner, C.D.A. were also declared to have been vitiated and'the order dated 17.12.1979 passed by Mr.M.R. Khalid, Commissioner, C.D.A., Rawalpindi Division was restored alongwith consequential orders in respect of the respondents including award dated 31.5.1981 given by Mr. Muhammad Ali, Deputy Commissioner, C.D.A.

Brief facts of the case are that the lands of respondents and others situated in the area of village Mohrian, Chatha Bakhtawar, Tamma and Majuhan, Tehisl and District Islamabad were acquired by the appellant

C.D.A. in the years 1978, 1979, 1981 and 1982 in respect of khasra Nos. stated in the awards under the provisions of Capital Development Authority Ordinance No. XIII of 1960 (hereinafter called the Ordinance). Four Awards dated 26.5.1979, 6.8.1979, 31.5.1981 and 20.10.1982 in respect of the land of the respondents and others were passed by the Deputy Commissioner, C.D.A. However, owner Sub. Faqir Shah whose land was acquired in terms of award dated 26.5.1979 preferred Appeal "No. 356 of 1979 and C.D.A. also preferred Appeal No. 358 of 1979 before the Commissioner (Revenue), C.D.A., Rawalpindi. The Commissioner C.D.A. disposed of above said appeals enhancing the compensation for various categories of land as per order dated 17.12.1979. The land owners preferred appeals and C.D.A. filed a Review Petition against the said order dated 17.12.1979 before the Commissioner C.D.A., who as per his order dated 11.10.1983 accepted all the appeals and review petition with the direction to Deputy Commissioner, C.D.A. to compute compensation in terms of guidelines stated in the said order. As a consequence of the order dated 11.10.1983 passed by the Commissioner C.D.A., the Deputy Commissioner C.D.A, as per his order dated 29,10.1983 disposed of all the cases as per guidelines given to him. The land owners preferred Writ Petitions No. 448-449 of 1983 and 136 of 1984 wherein they challenged the order dated 11.10.1983 passed by Kh. Zaheer Ahmed, Commissioner C.D.A, and order dated 29.10.1983 passed by Deputy Commissioner, C.D.A. in consequence of the order passed by former. The learned Judge in Chambers as per impugned judgment allowed all the writ petitions and restored the order of Commissioner dated 17.12.1979 as stated above.

We have heard learned counsel for the parties and perused the record.

Before we deal with the main appeals we intend to dispose of three misc, applications filed in Civil Appeal No. 477 of 1998. C.M.A. No. 2055 of 2001 is for impleading Said Muhammad as respondent, C.M.A. No. 2057 of 2001 is moved for bringing on record the legal heirs of deceased Respondent No. 1 Muhammad Yousaf and C.M.A. No. 2057 of 2001 is for bringing on record the legal heirs of Abdul Ghani, Respondent No. 4, Muhammad Din, Respondent No. 5 and Qurban AH, Respondent No. 6 in Civil Appeal No. 477 of 1998. All the three said applications are allowed.

This Court as per order dated 12.3.1998 granted leave to appeal. Para-4 of the leave granting order reads as under:

"After hearing the learned counsel for the parties at some length and reading the record with their assistance, we hold that this is a fit case for grant of leave to appeal to determine whether or not the compensation was allowed to the owners of the land keeping in view the mandate of law contained in Sections 2-K, 30 and 36 of the C.D.A. Ordinance, 1960."

Contentions of the learned counsel for the appellant/CDA are that learned Judge in Chambers has misread and mis-interpreted the relevant provisions of law with regard to .the award of compensation of land of the respondents and further that there were legal and factual errors apparent on the face of record therefore Kh. Muhammad Zaheer, Commissioner, CDA had exercised powers on review petition within four corners of law hence the same could not be set-aside. He also submitted that the compensation with regard to the acquisition of land could be awarded in terms of Sections 2(k)(ii), 30 and 31 of the Ordinance and no other factors could be taken into consideration for the award of compensation consequently order dated 11.10.1983 passed by the Commissioner, C.D.A. on review petition and order dated 29.10.1983 passed by Deputy Commissioner, CDA under the guidelines of Commissioner, CDA were legal and not open to exception by the learned High Court.

Learned counsel for the respondents has submitted that order dated 11.10.1983 passed by Kh. Zaheer Ahmed, Commissioner, CDA, Islamabad is illegal and without jurisdiction considering that there was neither discovery of new and important evidence nor there was any error apparent on the face of record nor any other sufficient reason for reviewing the order passed by his predecessor. It was further contended that there was no case before the Commissioner, CDA which could have warranted interference under Section 36 of the said Ordinance. It was also contended that the learned Judge in Chambers has rightly restored the order dated 17.12.1979 passed by Mr. M.R. Khalid, Commissioner, CDA as he had awarded .compensation to the land owners in accordance with the provisions of Sections 2(k)(ii), 30 and 31 of the Ordinance in accordance with the guidelines provided by the superior Courts with regard to the determination of fair compensation in terms of Section 2(k), 30 and 31 of the Ordinance.

The main point for determination in these appeals is whether or not compensation allowed to the land owners was awarded in accordance with Sections 2(k), 30, 31 and 36 of the Ordinance and further whether the High Court was not legally justified to interfere with the order passed on review petition by Kh. Zaheer Ahmed, Commissioner, CDA.

Relevant provisions of the Ordinance with regard to the award of compensation are reproduced below:

"2. Definitions.-

(k) 'market value' means-CD In relation to land acquired, before the first day of January, 1968, the average market value thereof prevailing during the period commencing the first day of January, 1954; and ending on the thirty first day of December, 1958;

(ii) In relation to land acquired on or after the first day of January, 1968, the aggregate of the average market value

as aforesaid determined with reference to its classification recorded in the Register ofHaqdaran Zamin as in force on that day and twenty-five per cent of such value; and

(iii) In relation to land acquired on or after the first day of January, 1966, the market, value as may be determined in accordance with the provisions of the Land Acquisition Act, 1894 as applicable in the Province of the Punjab."

1. Matters To Be Considered Jn Determining Compensation-(l) In determining the amount of compensation to be awarded for land acquired under this Ordinance. The Deputy Commissioner shall take into consideration, 28. first, ,, the market value of the and on the date of order of its acquisition made under Section 25;

secondly, the damage sustained by the person interested, by reason of dispossession of any standing crops or trees which may be on the land;

thirdly, the damage, if any, sustained by the person interested at the time of taking possession of the land by reason of severing such land from his other land.

fourthly, the damage, if any, sustained by the persons interested at the time of taking possession of this land by reasons of the acquisition injuriously affecting his other property, movable or immovable, in any other manner or his earnings; and

fifthly, if in consequence of the acquisition of the land the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.

(2) In addition to the value of the land determined as aforesaid, the Deputy Commissioner shall in every case award a sum of fifteen per centum on such value in consideration of the compulsory nature of the acquisition.

(3) In relation to land, acquired on or after the first day of January, 1996, in addition to the value of the land determined as aforesaid, the Deputy Commissioner shall in eveiy case award a sum of twenty per centum on such value in consideration of the compulsory nature of the acquisition.

1. Fact to be ignored in determining compensation.In determining compensation as aforesaid, the Deputy Commissioner shall not take into consideration-­ first, the degree of urgency which has led to the acquisition.

secondly, any disinclination of the person interested to part with the land acquired;

thirdly, any damage sustained by him, which, if caused by a private person would not render such person liable to a suit;

fourthly, any increase likely to accrue to the value of the land acquired form the use to which such land will be put on acquisition; and

fifthly, any increase likely to accrue to the value of the other land of the person interested from the use to which the land acquired will be put."

Regulation 6 of the Land Acquisition Regulation, 1961, (hereinafter called the said regulation) reads as follows:-

1. (1) The Deputy Commissioner shall, in order to facilitate the enquiry into the value of land and the claims of persons interested cause to be prepared a self-contained report in the Lands Directorate which shall among other things supply the following information in detail for the assessment of the compensation of the land under acquisition:-

(a) The market value of land as defined in the Ordinance and the Rules framed thereunder.

(b) The market value of land in the neighbouring villages. The price paid in private transactions as mentioned in register of mutations during the period intervening the rst day of January, 1954 and the 31st day of December, 1958. ' Sub other information as may be relevant or necessary with due regard to the provisions of Sections 30 and 31 of the Ordinance.

(2) The Lands Directorate may seek expert advice and assistance in the evaluation of built up property and trees, , etc.

(3) A copy of the relevant portion of the settlement field may in which the land is situated, with the boundaries of the land in question marked on it, shall be filed alongwith thePatoarz'-Surveyor's papers and shall form part of theproceeding in each case.of

(1) The Deputy Commissioner or the Commissioner, either, of his own motion or on an application made in this behalf, at any time within five years from the date of an award or order made or passed by himself or by any of his predecessors in Office, including an award or order made or passed before the commencement of the Capital Development Authority (Amendment) Act, 1966, may, after giving the parties concerned a notice and an opportunity of being heard, review the award or order and pass such order thereon as he may deem fit:

Provided that an order under this sub-section shall not, except in so far as it corrects an arithmetical clerical or patent error or mistake in the award or order under review, enhance the amount of compensation awarded.

(4) An amount paid to any person which 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 or order as reviewed under sub-section (3), shall be recoverable by the Authority and the Deputy Commissioner shall call upon such person to refund it.

It terms of Regulation 5 (1) of the above said Regulation, person interested in the land has to submit in writing particulars of his claim to compensation and the amount of claim in respect of land so acquired to the Deputy Commissioner who on receipt of the same has to fix a date for hearing with notice to the claimants. Deputy Commissioner in terms of Regulation 6 in order to facilitate the enquiry into the value of land and claim of the person interested cause to be prepared a self contained report which would supply information in detail for the assessment of the compensation of the land under acquisition. The enquiry as required by the above said Regulation was directed by the Commissioner C.D.A. Rawalpindi Division to be conducted by the local commissioner appointed by him who after his visit on the site in presence of parties submitted report Ex. P.A./1 alongwith site plan P.A., a copy of register Khasra Girdawari P.A./2 and Fard Badal P.A./3 showing classification in respect of the land so acquired stating that no entries in the register Khasra Girdawari were available from Kharif 1969 to Rabi 1972 and Kharif 1974 to Rabi 1979. Mr. M.R. Khalid Commissioner C.D.A., in his order dated 17.12.1979 considered the report of the Local Commissioner with regard to classification of land at the time of acquisition and followed the guidelines laid down in case of Sardar Begum and others v. Capital Development Authority and others (PLD 1977 Lahore 1200) for the determination of fair compensation in terms of Section 2(k)(ii) of the Ordinance. The said guidelines as mentioned at Page 1211 of cited case are-CD the Deputy Commissioner is first to determine and find out as what is the classification of land acquired as recorded in the register afHaqdaran Zamin as in force on 1.1.1968.

(ii) he is to determine and find out as to what was the average market value thereof during the period 1.1.1954 to 31.12.1958, while doing so he has to consider classification recorded in the register Haqdaran Zamin which existed on 1.1.1968 which classification has to be given retrospective effect and is to be considered as classification of 1.1.1968 was in force during the period 1.1.1954 to 31.12.1958.

(iii) to the average value so determined he is then to add 25% thereof.

(iv) the aggregate so obtained by adding the (ii) and (iii) will thus come out and constitute to be the 'market value' of the land with in the meaning of Section 2 (k) (ii) of the Ordinance, which the Deputy Commissioner is inter alia required to keep under consideration while awarding and assessing compensation under Section 31 of the Ordinance.

(v) the material date of compensation however is the date of acquisition and not any other date.

(vi) that while compiling the compensation amount, the potential value of the land as on acquisition day is not to be lost sight of and is to be duly taken into consideration for whatever worth it may be.

(vii) he is also not to exclude from consideration the individual merits of a particular land acquired within the same classification to which that land belongs or in other words without affecting or changing the general classification of that land.

(viii) Potential value of the land on the day of acquisition despite pegging of classification of land on 1.1.1968 can safely be attended which pegging of classification would obviously be as on 1.1.1968 and not the acquisition day because acquisition day in each case being different cannot be considered pegging day. Technically market value would not affect individual merits of particular piece of land while remaining within or without effecting or altering its relevant classification for compensation amount.

The Commissioner in his order dated 17.12.1979 stated that the Deputy Commissioner, C.D.A, had not calculated the data about market value as technically defined under Section 2(k) of the Ordinance. He further observed "that factors as stated in Paragraph 6 of Land Acquisition Regulation, 1961 with regard to market value of the land in the neighbouling villages would also be a relevant factor and the change in classification at the time of acquisition leading to improvement in the classification would also be relevant factor so also considering that the land in dispute being situated

towards Muree Road and Islamabad Highway close of Faizabad Chowk being part of Pindi Town so also adjacent, already having been acquired for Poultry and Vegetable scheme consequently considering all factors stated, above compensation was determined.

Learned Commissioner Kh. Zaheer Ahmad who exercised the review powers under Section 36 of the Ordinance has observed in his order dated 11.10.1983 that-

(i) the respondents could not have pleaded equity in the payment of compensation on the basis of same compensation having already been granted to other affectees of the same land on the ground of estoppel against the law;

(ii) in case the order impugned suffers from infirmities given in sub-section 3 of Section 36 of the Ordinance review would be maintainable.

(iii) Compensation having not been computed or determined as contained in Sections 2 (k), 30 and 31 of the Ordinance would be eventual it and infirmity in the order liable to be rectified in the review.

(iv) Impugned orders did not inspire confidence the same are based on complete disregard of the legislative provisions as contained in Sections 2 (k), 30 and 31 and lack of proper interpretation of ratio in PLD 1977 Lahore 1200 and PLD 1976 SC 752.

(v) The pronouncement in the above cases by the superior Courts, meaning assigned and construction given could not be shared by him which misinterpretation constituted mistake patent on the face of record.

Kh. Zaheer Ahmad, Commissioner CDA/Deputy Commissioner, ICT. in the impugned order stated that "It is therefore, for his reason that varying meaning assigned and construction given to above mentioned rulings of the Superior Courts are not shared by this Court. Among other things this interpretation constitutes mistake patent on the face of the record" and he reviewed the order, dated 17.12.1979 of Mr. M.R. Khalid, Commissioner CDA his predecessor and gave directions to the Deputy Commissioner CDA to proceed to compute compensation in accordance with guidelines given by him. The said order of Kh. Zaheer Ahmad was challenged in writ jurisdiction before the Lahore High Court. The learned Judge in Chambers in the impugned order held that Mr. M.R. Khalid, Commissioner C.D.A., while determining compensation of land followed the judgment reported as Sardar Begum and others v. Capital Development Authority and others (PLD 1977 Lahore 1200) wherein guidelines for determination of fair compensation in terms of Section 2(k) of the Ordinance were laid down and further potential value of land despite pegging of classification of land on 1.1.1968 can be attended to because pegging is only for compiling the average market value of 1954 to 1958 period has to be simply kept in view and is not attracted towards other directions as held in Muhammad Yousafand others v. Capital Development Authority and others (PLD 1976 SC 752) wherein this Court also observed as unden-

"This would be confined to such improvements etc. Which purport to change classification of land for technical market value and is not to effect individual merits of a particular piece of land while remaining within and without affecting or altering its relevant classification for acquisition of amount as distinct from technical values as aforesaid."

The learned Judge in Chambers observed that as Mr. M.R. Khalid the then Commissioner C.D.A. determined the market value keeping in view the principle laid down by this Court and the High Court in the above referred judgments with regard to award of compensation which decisions were binding upon C.D.A. It was further observed that the Deputy Commissioner, C.D.A, in his award dated 31.5.1981 considered the potential value of land as on the day of acquisition in assessing compensation but the Commissioner C.D.A., Kh. Zaheer Ahmed did not consider the potential value of the land as on the day of acquisition in assessing compensation which compensation was unlawfully set-aside by Kh. Zaheer Ahmad, Commissioner C.D.A. A strange formula was evolved by the said Commissioner with regard to the compensation of land which was not in accordance with the law and so also was against the principles of justice.

It was also held by the learned Judge of the High Court that the order dated 17.12.1979 passed by the then Commissioner C.D.A. was based on cogent reasons keeping in view the principles of land acquisition in the Ordinance and that none of the requisite conditions for review of order of his predecessor were available warranting .review .of the said order whereby compensation to the land owners was considerably reduced without considering relevant provision of law with regard to the determination of compensation.

We find that there is no substance and merit in the contentions of the learned counsel for the appellan/C.D.A. The law governing the award of compensation for the land acquired to the owners by the appellant/C.D.A. require that enquiry with regard to compensation is to be conducted in terms of Section 28 of the Ordinance read with Para-6 of Land Acquisition Regulation, 1961 considering (i) the true area of land, (ii)'compensation in his opinion to be allowed, and (iii) apportionment of such compensation among the all persons whose land is acquired considering their claim and information collected and produced keeping in view the factors as contained in Sections 30 and 31 of the Ordinance. The factors which are to be considered (i) would be market value of land, (ii) damage caused by reason of dispossession besides the value of the land so determined is to include 15% per annum of such value in consideration of compulsory nature of acquisition. It may be noted that in terms of Section 31 of the said Ordinance factors mentioned therein are not to be ignored while determining compensation. Admittedly the land in question was acquired after first day of January, 1968 therefor the market value in term of Section 2 (k) (ii) would be the aggregate of average market value as. aforesaid with reference to its classification recorded in the register of Haqdaran Zamin as in force on that day plus 25% of such value. This Court in case of Muhammad Yousaf and others v Capital Development Authority and others (PLD 1976 S.C. 752) held that "while determining 'market value' of the land any improvement made by land owners in the nature and condition of the land on or by the acquisition day would be taken note of in view of technical definition of the word 'market value' in terms of Section 2 (k). This Court in the above cited case observed at Page 757 that while defining 'market value' in terms of Section 2(k) the legislature has simply pegged up the average prices generally prevailing during the period 1954 to 1958 in respect of different kinds of land in general in the locality. There is nothing in the definition either express or necessary intendment to warrant the conclusion that this embargo against the award on account of any rise in level of prices was operative in any other direction as well as precluded the land owners from claiming compensation for the bona fide improvements effected in the quality of their lands acquired made during this period." In the instant case as the land in question was acquired after the first day of January, 1968 the market value would mean aggregate of average market value as aforesaid determined with reference to its classification recorded in the register Haqdaran Zamin as in force on that day and 25% of such value (on the day of acquisition). It would mean that the improvement made on the land so acquired till the acquisition date would be considered while assessing the compensation of the land in view of the said provisions and there was no prohibition to consider rise in level of prices because of the improvement made over the land till the day of acquisition. The word 'as aforesaid' has been held in the above said authority would not Warrant leaving out improvement and improved condition of land rather would lead to follow the same consideration, however it may be noted that it terms of Section 2(k) (ii) of the said Ordinance market value is to be determined with reference to the classification recorded in the register Haqdaran Zamin as in force on that clay therefore the improvement and improved condition as to change of classification would not be taken in to account but the improvements which relate to change of classification of land for technical definition of market value would not affect the individual merits of particular piece of land while remaining within and without effecting or altering its relevant classification for compiling 'compensation amount' as distinct from the market value (PLD 1977 Lah. 1200 at Page 1206). Aggregate of the average market value will have reference to the total of average price during years 1954 to 1958 period plus 25% over and above that while determining market value relevant transaction of the land acquired and of the similar land of the neighbourhood locality is also to be taken into consideration. The learned Judge in

Chambers in case of Sardar Begum and others v. Capital Development Authority and others (PLD 1977 Lahore 1200) at Page 1208 has observed:-

"The market value in other words was just a base and start and not the end of process of compiling the compensation value. The argument seems to be correct. The wording of Sections 28, 30 and 31 of the Ordinance fully bear it out but if support is needed reference may be made to the Supreme Court precedent where at Page 757 it is written that "after having ascertained the average market value, the Deputy Commissioner is then required to exercise his judicial mind and form his own judgment in awarding compensation for the acquired land in question before him. Section 28 does not lay down that having ascertained the average market value and collected the data as the basis, the Deputy Commissioner is left with no discretion. Indeed his real difficulty lies in the task in forming his opinion, in assessing the compensation for the acquired land in question with due regard to its relative merits and demerits and the data of the average price compiled by him."

It was further observed at Page 1209:-

"At this stage, learned counsel for the Capital Development

Authority submitted that this construction of law will do violence to the language of Section 2(k)(ii) of the Ordinance and the concept of 'market value' as technically defined therein and will make the description and classification different from 1.1.1968 as the basis for determining the said 'market value'. The contention has no merit.

Firstly because what I have said above pertain to 'compensation amount' and not 'market value'. Secondly as observed by the Supreme Court pegging for example in Section 2(k) (as it originally stood) was aimed at stopping 'rise in level of prices' and was 'not operative in any other direction as well'. While using the phrase 'not perative in any other direction as well' the Supreme Court did on tabulate all the other possible directions which were thus excluded

from pegging against 'rise in price level'. However, the two aspects which were separately excluded from the aforesaid pegging as noted by the Supreme Court were (a) the improvements in the classification and condition of land and (b) the principle of awarding compensation amount with reference to the value of the land on the acquisition day. By adding clause (ii) to Section 2(k) such improvements which may change the classification of land may now be hit but despite the pegged classification the potential value of land was neither earlier excluded and nor-is it even excluded from

compilation of actual compensation amount. As regards the other aspect, namely, to fix compensation amount with respect to

acquisition day so that it may reasonable be termed, considered felt as real compensation, there again the amended clause 2 (k) (ii) docs not operate in that direction and nowhere fixes any other date as the date for determining compensation amount though no doubt it does fix and retain the pegging period and classification-wise, but there is no indication to alter the acquisition days as the date of compensation, which apart from being otherwise a general law is still clearly ducble (dcducible) from the overall provisions of the Ordinance under discussion as well."

It was further observed "the time of awarding compensation must be construed as meaning the time of compensation, the time at which the right to compensation attaches". Concluding this aspect of discussion, therefore, I would hold that there is nothing in the technical definition of 'market value' in Section 2(k)(i) and 2(k)(ii) to hold that definition opei'ates in altering the date of acquisition from being the date of assessing the compensation. If this is so then potential value of the land on the acquisition day cannot be ignored from consideration when the Deputy Commissioner is to make award of 'the compensation which in his opinion should be allowed for the land', which suggests that he is not ignore the merits and demerits of the particular land involved before him and is not to confine himself merely to the technical aggregate market value which, as already mentioned, is simply one of the material (and not the sole material) to be attended to."

It will not be out of place to refer the case State of West Bengal v. Mrs. Bella Banerjee and others (AIR 1954 SC 170 (F.B) wherein in Para-8 it was observed":-

"Turning now to the provisions relating to compensation under the impugned Act, it will be seen that the latter part of the proviso to Section 8 limits the amount of compensation so as not to exceed the market value of the land on December 31, 1946, no matter when the land is acquired. Considering that the impugned Act is a permanent enactment and lands may be acquired under it many years after it came into force, the fixing of the market value on December 31,1946 as the ceiling on compensation, without reference to the value of the land at the time of the acquisition is arbitrary and cannot be regarded as due compliance in letter and spirit with the requirement of Article 31(2). The fixing of an anterior date for the ascertainment of value may not, in certain circumstances, be a violation of the constitutional requirement, as, for instance, when the proposed scheme of acquisition becomes known before it is launched and prices rise sharply in anticipation of the benefits to be derived under it, but the fixing of an anterior date, which might have no relation to the value of the land when it is acquired, may be many, years later cannot but be regarded as arbitrary....Any principle for determining compensation which denies to the owner this increment in value cannot result in the ascertainment of the true equivalent of the land appropriated.

In case ofM. Salim Ullah and others v. Province of West Pakistan and (2) Land Acquisition Collector, Lyallpur and others (PLD 1960 (W.P.) Lahore 450) at Page 458 it has been observed:-

"This being the true meaning of compensation, it is plain Act, by introducing a new definition of market value, has the effect of reducing it invariably by superseding the advantage of situation, so that in a case like the present one, the owners are 'compensated\ with the payment of about one-tenth of the real market value. For we see no reason at present why the market value of the petitioners' land should have been fixed at Rs. 1.625/- per acre, while, at no great distance from them, though at a greater distance from the heart of the town, the National Silk and Rayon Mills should have paid Rs. 16,245 per acre."

In Para 25 at Page 461 it was observed:-

"We are, therefore, inclined to the view that clause (b) of sub-section (4-A) of Section 299, Government of India Act, 1935, does not accommodate Clause 10 (3) of the Schedule appended to the Punjab Town Improvement (Amendment) At (II of 1953), and that, consequently, compensation should be assessed in the present case under the general provisions of the Land Acquisition Act."

In case of Islamization of Laws, In re: (PLD 1985 FSC 221) Full Bench comprising of four Judges of Federal Shariat Court observed at Page 243 "Market value must have relation to the value prevailing at the time of acquisition and not a notional value fixed in relation to the time when even the question of Acquisition did not arise "At Page 245 "we see no logic or

reasoning behind this provision. The definition of market value as defined in Section 2(k) of C.D.A. Ordinance is extremely arbitrary and must be repealed." After this decision, C.D.A. appealed against before this Court which appeals were allowed by Shariat Appellate Bench of this Court by its Judgment dated 22nd May, 1985 and remanded the case to the Federal Shariat Court on account of omission by the Federal Shariat Court to give reasons by making reference to the Holy Qur'an and Sunnah of Holy Prophet (Peace Be Upon Him). After remand the Full Bench of the Federal Shariat Court disposed of the said matters after citing the relevant verses from the Holy Qur'an and Sunnah as per judgment reported in Syed Nazir All Shah and others v. The Capital Development Authority, Islamabad (PLD 1992 FSC 361) against which judgment, C.D.A. has preferred appeal before this Court which is pending for disposal before this Court. The Federal Shariat Court in the above cited case held "that Section 2(k) of the Capital Development Authority Ordinance, 1960, is extremely arbitrary for the reason that the 'market value" should have relation to the value prevailing at the time of Acquisition and not any notional value fixed in relation to the time when even question of Acquisition did not arise and the said provision of the said Ordinance was held to be repugnant to the Holy Qur'an and

Sunnah" and further held "that the value prevailing at the time of acquisition should be assessed with generosity in the purchase price, keeping in view the tradition of the Holy Prophet (Peace Be Upon Him)", further "as a consequence of the above finding Section 30 (1) of the said Ordinance would have to be amended."

However, in the instant case Mr. M.R. Khalid, Commissioner, C.D.A. has awarded compensation to the land owners in terms of Sections 2-K, 30 and 31 and the guidelines in the said respect of this Court and that of Lahore High Court in the above cited decisions, therefore the same cannot be said to be in violation of the law liable to be interfered with in the review petition by Kh. Zaheer Ahmad, Commissioner, C.D.A. We have referred the above cited decisions in order to show that the owners whose lands are acquired should be paid compensation which should be termed to be just and acquitable keeping in view the consideration of the land at the time of acquisition on the basis of guidelines laid down by this Court and the Lahore High Court.

The perusal of the order passed by the Commissioner in review jurisdiction would show that he has not cared to consider relevant provisions of law for assessment of market value and compensation to the land owners so also has not followed guidelines laid down by this Court and the High Court in the above cited cases with regard to the law enunciated by this Court for the purpose of awarding compensation in respect of land acquired by the appollant/C.D.A. which decisions in fact were binding upon him in view of Article 189 of the Constitution of the Islamic Republic of Pakistan as the law laid clown by this Court is binding upon all the Court was in the country.

The responsibility of interpreting the law of the land is of the Superior Courts and law interpreted by this Court is binding on all other Courts and on all functionaries of the Government and all other forums, considering same are guidance for all the Courts, and tribunals engaged in the process of administration of justice so as to keep them in limit and control the exercise of discretion to be exercised by them. It is the duty of every authority whether judicial or otherwise to give effect to the law laid down by this Court. On the contrary Kh. Zaheer Ahmad, Commissioner C.D.A. stated that the interpretation of the Superior Courts would not be shared by him, which would amount to disobedience to the decisions of this Court and he further stated that this Court has mis-interpreted the law, therefore it was mistake patent on the record thereby showed disrespect to the decisions of this Court and High Court and made the same as ground for review of the order of his predecessor which prime facie would amount to contempt of this Court warranting legal consequences. It would also appear

that Kh. Zaheer Ahmad, Commissioner C.D.A. did not take note of use of land on the date of acquisition nor considered the potential value in terms as said above nor the market value classification wise. He also refused to consider and take notice of compensation granted earlier by the C.D.A. inrespect of the similar land in the same vicinity for the award of compensation considering that the said compensation was awarded earlier in time considering that the compensation normally increase after lapse of time rather than decrease, therefore the order dated 11.10.1983 is based on mis-appreciation of the relevant material on record in terms of law for award of compensation of acquired land by the appellant which in fact was properly considered and appreciated by his predecessor in his order dated 17.12.1979. It could not be said in the circumstances that the market value and compensation awarded by the then Commissioner in his order dated 17,12.1979 was not in accordance with the provisions of law and material on record consequently the High Court was justified in restoring the same after setting-aside the order dated 11.10.1983 passed by Kh. Zaheer Ahmad, Commissioner C.D .A.

So far the next contention as discussed in the preceding paragraph there was neither discovery of new and important matter or evidence nor error apparent on the face of record nor any other sufficient cause for the exercise of review jurisdiction by the Commissioner Kh. Zaheer Ahmad warranting him to review the legal and proper order of his predecessor and thereby reducing the compensation which was rightly awarded to the land owners.

In view of aforesaid discussion we find no merit in the contentions of the counsel for the appellant/C.D.A. consequently Civil Appeals Nos. 475 to 477 of 1998 filed by the C.D.A. have no sustance hence the same are dismissed whereas Civil Appeal No. 478 of 1998 filed by Kfruda Bakhsh and others is allowed with no order as to costs.

Last but not least Kh. Zaheer Ahmad, Commissioner C.D.A. at Page 8 of his judgment has observed:-

"It is, therefore, for this reason that the very meaning assigned and construction given to the above mentioned rulings of the superior Courts are not shared by this Court. Amongst other things this misinterpretation constitutes mistakes patent on the face of the record."

The said observations made by the above said Commissioner C.D.A. constitute a contempt of this Court therefore we order for issuance of notice to Kh. Zaheer Ahmad, former Commissioner C.D.A. through the Secretary, Establishment Division, Islamabad, for a date to be fixed in the month of November, 2001, as to why proceedings under Article 204 of the Constitution of the Islamic Republic of Pakistan read with Sections 3 and 4 of Contempt of Court Act, 1976 should not be initiated against him for showing his wilful disobedience and disrespect to the dignity and decorum of this Court and High Court in violation of the said provisions.

(A.A.) Order accordingly.

PLJ 2002 SC 388

[Appellate Jurisdiction]

Present: iftikhar muhammad chaudhry and tanvir ahmed khan, JJ. Mst. HAJIYANI AYESHA BAI—-Appellant

versus

ZAHID HUSSAIN—Respondent Civil Appeal No. 1198-K of 1998, decided on 2.2.2001.

(On appeal from judgment dated 12-1-1998 passed by Sindh High Court, Karachi in FIR No. 58 of 1991).

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

—-S-15—Constitution of Pakistan (1973), Article 185 (3)-Rent Controller dismissed ejectment application that subject property was not mutated in the name of landlady to give her cover of law; son of landlady had failed to prove that he was jobless and was plying taxi through driver and that existence of shops with Bungalow of landlady was suppressed by her-Leave to appeal was granted by Supreme Court to examine observations made by Rent Controller. [P. 390] A

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

—-S. 15-Where tenant had admitted appellant as his landlady, premises not having been mutated in the name of landlady could not be considered a ground to deny relief to her—Ejectment application was maintainable.

[P. 391] B

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

----- S. 15 (2)—Non-disclsoure of details of shops owned by landlady in eviction application—Effect—Such disclourse in eviction application by landlady was not required under provisions of S. 15 (2) of Sindh Rented Premises Ordinance, 1979. [P. 391 & 392] D

(iv) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)—

—S. 15 (2) (vii)-Obligation upon landlady, under provisions of S. 15 (2) (vii) of Sindh Rented Premises Ordinance, 1979, was only to prove good faith for her own occupation or for occupation or use of her spouse or children.

[P. 392] E

(v) Sindh Rented Premises Ordinance, 1979 (VII of 1979)—

—-S. 15 (2)--Bona fide personal need of landlady-Concurrent findings of fact by Courts below-Premises was required by landlady for use of her son-­Contention of tenant was that another shop owned by landlady attached to her bungalow was let out during ejectment proceedings-Rent Controller dismissed revision application and order of Rent Controller was upheld by High Court-Validity-Noting was on record to show as to when shop attached was given on rent, therefore, in absence of such proof Courts below had wrongly non-suited landlady—Where concurrent findings of fact by Courts below were based on misreading of relevant provisions of law as well as misreading of evidence on record, such findings were set aside by Supreme Court and eviction application was allowed. [P. 393] F & H

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

—S. 15 (2)—Bona fide personal need of landlord-Statement before Income Tax Department-Evidentiary value-Such statement does not constitute a strong reasons to disbelieve plea of the landlady that premises was required by her for use and occupation of her son.

[P. 393] G

Mr. Imran Ahmed, ASC for Appellant. Mr. M. Aqil Awan, ASC for Respondent. Date of hearing: 24.1.2001.

judgment

Iftikhar Muhammad Chaudhry, J.--This appeal by leave of the Court is directed against the order dated 20.01.1998 of the Sindh High Court passed in FRA No. 58/1997 whereby judgment dated 26-03-1997 passed by the rent Controller dismissing the ejectment application of the appellant has been maintained.

1. Precisely stated facts giving- rise to the instant case are that appellant is owner (land lady) of a premises Bearing No. G-15 constructed on Plot No. S.B. 7/77, Stalker Street Mochi Gali, Karachi. Respondent is her tenant at the rate of Rs. 450/-per month. On 30-05-1993 appellant instituted eviction application against the respondent that shop in dispute is required for her son to establish a business of ready made garments with a statement that neither she herself nor her son Muhammad Hanif is in possession of any other premises to carry on the business.

2. The respondent vehemently opposed his ejectment inter alia contending that he had taken the shop in his possession on rent about 27 years ago fromHaji Ibrahim Janu Bai, father in law of the appellant against payment of Rs. 45,000/- as pugree and presently the shop can fetch a sum of Rs. 25/30 lacs as pugree, therefore, it is for this reason the appellant has filed eviction application with mala fide1intention. The claim of the appellant was also resisted on the ground that her son intends to run his business in this shop and the requirement is false and she is not entitled to its possession.

-»

1. Learned Rent Controller settled the issues of controversy arisen out of the pleading of parties after recording evidence vide judgment dated 26-03-1997 dismissed the application. Appellant preferred appeal before the Sindh High Court, Karachi which was also dismissed, as such, instant proceedings.

2. Leave was granted in view of the following three observations of the learned Rent Controller:-

3. Since subject property is not mutated in the name of the appellant to give her cover of law.

4. That Muhammad Hanif has failed to prove that he is jobless and is plying through a driver.

5. That existence of shops with Bungalow was suppressed by the appellant.

6. Learned counsel for the respondent at the very outset stated that he is not relying on the observations of the Rent Controller enlisted at Serial Nos. 1 and 2 in Para 5 above to non suit the appellant. However, his main emphasis to defend the judgment of the Rent Controller and High Court would be on the 3rd observation noted above.

7. In view of the statement so made by the respondent counsel, learned counsel for the appellant has confined his arguments only to the extent of adverse observations recorded by Rent Controller mentioned at Serial No. 3 in Para 5 hereinabove to non-suit the appellant. Thus he contended that under the law appellant was not bound to disclose the details of the properties owned by her at the time of filing of eviction application except disclosing as to whether she is in possession of a premises or got vacated such premises but instead of occupying the same to cater her requirement has further let out the premises and only then such concealment can operate against her adversely. Reference in this behalf is made to Qamar-ud-Din through his legal heirs vs. Hakeem Muhammad Khan 1988 SCMR 819 as well as on the judgment in the case of HaroonKasim and another vs. Azam Suleman Madha PLD 1990 SC 394. He further. stated that previously Muhammad Hanif son of appellant suffered loss in business, therefore, he started plying taxi through driver but now he indents to run another business of ready made garments, therefore, the appellant could not have been non-suited for the reason that her son is not jobless. In this behalf reliance was placed by him on Sheikh Muhammad Yousif vs. District Judge, Rawalpindi and 2 others 1987 SCMR 307.

7-A. Learned counsel for the respondent contended that learned High Court as well as learned Rent Controller has concurrence held that no case has been made out by the appellant to use the premises in question for her son, therefore, such findings admit no interference. He further argued that statement of facts made by appellant in eviction application that her son suffered loss in business has been dis-proved through evidence led by the respondent. Conversely it has been established that for the period in respect of which it was stated that he suffered loss, in fact he earned profit as per return filed before Income Tax Department. He also contended that appellant being land lady was legally bound to disclose the details of shops which are owned by her at the time of filing of eviction application. As per his contention two shops owned by her exist adjacent to the Bungalow of the appellant but she did not disclose this fact in the application and sought ejectment of the respondent from the shop in respect of which more than 3 decades back a purgree in a sum of Rs. 45,000/- was paid by him, therefore, claim being based on mala fide has rightly been rejected by the Rent Controller. Reliance in this behalf has been placed by him on the case reported as (Latif Ahmed vs. Mst. Farrukh Sultana 1996 SCMR 1233), Muhammad Atiq vs. Muhammad HanifKhan 1996 SCMR 1260).

1. We have heard the learned counsel for the parties and have gone through the impugned judgment carefully. Learned Judge in the Chambers of the High Court non-suited the appellant adopting the observations of the Rent Controller which have been' enlisted in Para 3 above. As far as the reasons of non-suiting the appellant that the property has not been mutated in favour of appellant is concerned, it cannot be considered a ground to deny relief to her in view of admitted fact that the respondent admits the appellant to be his land lady, therefore, notwithstanding the fact whether the property is mutated in her favour or not but the respondent cannot challenge her right to file eviction application on this ground.

2. As far as second reason that his son is plying taxi through driver is concerned, in our opinion even by adopting such profession appellant is not personally engaged in the business. Moreover, even otherwise it is not possible for a person seeking ejectment of his tenant from a premiss to use it for his occupation to remain idle for a period of 4/5 years which is ordinarily consumed in final decision of ejectment matters up to the apex Court. In the instant case eviction application was filed on 30th May, 1993, and after about 8 years it has now come up for hearing finally before this Court after the decisions of Rent Controller and High Court.

3. Now turning to the crucial question involved in this case relating to non-disclosure by the appellant details of the shops in eviction application owned by her at the commencement of eviction proceedings against respondent or got possession of such shops during the pendency of the proceedings. A perusal of Section 15 sub-section (2) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as ordinance), reveals that there is no requirement to make such disclosure by the landlord in the eviction application whereas under Section 13 sub-section (3) (ii-C) of the West Pakistan Urban Rent Restrictions Ordinance, 1959, a landlord/lady is required to make statement with reference to a non residential building or a scheduled building that he has not evicted such a building or rented land without sufficient cause after the commencement of the ordinance and after the explanation that the landlord had obtained possession of a residential scheduled or non residential building or rented land but such building is no longer suitable for his/her needs. Therefore, under Section 15 (2) (vii) of the Ordinance, 1979, the obligation upon the landlord is only to prove good faith for his own occupation or for the occupation or use of his spouse or children. Therefore the argument prevailed upon learned High Court and which has also been reiterated by the learned counsel for respondent, merit no consideration. But to ascertain the good faith/bona fide of a landlord to occupy a premises through evidence, it can be asserted that a premises suitable for requirement of landlord/lady was available but it was let out immediately before filing of eviction proceedings or such premises has fallen vacant during pendency of the ejectment proceedings but the landlord instead of occupying the same had further leased it out. As far as being owner of number of properties but without its possession in concern it cannot be considered a ground for non-suiting a lanlord/lady. It seems that observations of the High Court in this behalf were not correct. As it has been observed hereinbefore that the land lady had no legal obligation to make such disclosure in the eviction application, therefore, for such reason the appeal should not have been dismissed. In this behalf this Court in the case of Qamar-ud-Din through his legal heirs vs. Hakim Mehmood Khan 1988 SCMR 819 it is held that only question which would disentitle a landlord to such a relief would be a case where he is in possession of other equally suitable shop in the same locality or had rented out a shop after institution of eviction case and has contumaciously concealed the fact in his application or statement at the trial, then adverse findings can be recorded against the landlord. Similarly, in the judgment relied upon by the learned counsel for the respondent in the case of Latif Ahmed vs. Mst. Farrukh Sultana 1996 SCMR 1233, the appeal filed by the tenant was allowed setting aside the order of the High Court directing his ejectment because in eviction application landlord has not stated anything about obtaining the possession of a shop and changing the same into two shops and letting out the same to two persons and she has stated the reasons as to why these two shops were not occupied by her for the use and occupation of her son etc. Likewise, appeal of the landlord, in the case of Muhammad Atiq vs. Muhammad Hanif Khan 1996 SCMR 1260, was dismissed because the factum of his suppression of facts that in addition to premises in his occupation, he was also in possession of two rooms on the first floor and two rooms in the second floor was found to have reflected adversely on his bona fide. Whereas in the instant case it has not been established by the respondent that appellant was in possession of a shop adjacent to her Bungalow or two shops were in her possession in P.E.C.H.S. when she filed ejectment application against the respondent. In as much as, the High Court in the impugned order has observed that entire evidence is silent to the effect that if the two shops in P.E.C.H.S are vacant or have been given on rent further there is nothing on record to show as to when the shop attached to the Bungalow was given on rent, therefore, in absence of such categoric proof it was contrary to the interest of justice to non-suit the appellants by the Rent Controller as well as by High Court.

4. Undoubtedly, there is concurrent findings of facts by the controller and the first appellate Court but such findings are based on mis­ reading of relevant provisions of law as well as mis-reading the evidence on record. If both the Courts had considered that under Section 15 sub-section (2) clause (vii), landlord is not required to disclose the existence of shops owned by him/her then perhaps ejectment application filed by appellant would not have been rejected for this reason. Be that as it may, in the interest of justice we have gone through the evidence available on record particularly the evidence led by appellant through her son as well as her attorney. He had supported the contents of her application on oath and has successfully established her requirement to occupy the premises in question.

5. So far the argument of the respondent counsel that as per the copies of statements submitted by Muhammad Hanif before Income Tax Department showing profit in the year 1992 is concerned it does not constitute a strong reason to dis-believe the plea of the appellant that the shop is not required to her for use and occupation of her son, therefore, argument in his behalf needs no further discussion.

6. In view of what has been stated above, appeal is allowed. Consequently, eviction application filed by appellant against respondent is accepted and he is directed to hand over the peaceful vacant possession of the premises to the appellant within a period of four months after passing of this Order.

Parties are left to bear their own costs. (T.A.F.) Appeal allowed.

PLJ 2002 SC 394

[Appellate Jurisdiction]

Present: syed deedar hussain shah and javed iqbal, JJ. MUHAMMAD ISMAIL—Appellant

versus

ABDUL HAQ and others—Respondents Civil Appeal No. 1356 of 1995, decided on 31.1.2001, (On appeal from the judgment/order, dated 26-10-1994, of the Lahore High Court, Multan Bench, Multan, passed in R.S.A. No. 1046 of 1970)

Pakistan (Administration of Evacuee Property) Act (XII of 1957)--

—Ss. 22 and 41-Constitution of Pakistan (1973), Art. 185 (3)-Leave to appeal was granted by Supreme Court to consider, whether declaratory suit instituted by plaintiff seeking declaration that suit property was not evacuee property was not competent in view of provisions of Ss. 22 and 41 of Pakistan (Administration of Evacuee Property) Act, 1957-Where allotment order passed by the Settlement Authorities was not proper and was without jurisdiction , applicability of Ss. 22 and 41 of Pakistan (Administration of Evacuee Property) Act, 1957, did not arise-Order of Settlement Authorities allotting suit property as evacuee property, in favour of defendant was without lawful authority and same was rightly struck down by the High Court-Judgment of High Court was based on proper appreciation of evidence as well as Evacuee/Settlement Laws and was in consonance with rules laid down by Supreme Court-No material irregularity or jurisdictional error in the judgment of High Court was noticed and the same did not call for interference by Supreme Court.

[Pp. 395 & 397] A & B

Ch. Noor Elahi, ASC for Appellant.

Rqja Abdul Ghafoor, AOR for Respondents.

Date of hearing: 31.1.2001.

judgment

Syed Deedar Hussain Shah, J.--This appeal by leave of the Court is directed against the judgment, dated 26.10.1994, of the Lahore High Court, Multan Bench, Multan, passed in R.S.A. No. 1046 of 1970.

1. The facts, in brief, are that the respondents filed a suit for "declaration of ownership of House No. 313/B-FV, situate in Ghas Mandi Montgomery (now Sahiwal) and for cancellation of order, dated 13.12.1960, passed by the Deputy Settlement Commissioner, whereby the house was transferred to the appellant under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as evacuee property. The respondents also prayed for possession and consequential relief. The suit was contested by the appellant. Both the parties led their evidence. The learned trial Court vide its judgment dated 25-3-1970, under Order VII, Rule 10 CPC, returned the plaint to the respondents for being presented to the competent forum.

2. Feeling aggrieved, the respondents filed an appeal, which was dismissed on 8.7.1970, by the Learned Additional District Judge, Sahiwal.

3. Feeling dissatisfied with the aforesaid judgment, the respondents filed second appeal in the Lahore High Court, which was accepted vide impugned judgment dated 26.10.1994.

4. Vide order dated 14.11.1995, leave to appeal was granted to consider the following point raised by the learned counsel for the appellant:"that the declaratory suit instituted by the respondents on 26.7.1966 seeking declaration that the suit property was not an evacuee property was not competent in view of the provisions of Section 22 read with Section 41 of Pakistan (Administration of Evacuee Property) Act 1957."

5. Ch. Noor Elahi, learned counsel for the appellant, inter alia, contended that the learned Single Judge of the High Court has erred in decreeing the suit of the respondents in the absence of an issue on merits and the impugned judgment becomes illegal by refusing the right of giving evidence to the appellant; that the learned High Court has also failed to advert to the grounds of appeal in the lower appellate Court specifically relying on Section 41 of the Pakistan Administration of Evacuee Prqperty Act, 1957; that the impugned judgment is based on non-reading of the record; that the suit of the respondents was not within time; and that the abandon­ ment of the possession of the house in dispute and the delivery of possession to Diwan Chand etc., has altogether been ignored by the learned High Court, which circumstance was in itself sufficient for the dismissal of the appeal.

6. Raja Abdul Ghafoor, learned AOR for the respondents, contended that the impugned judgment is based on proper and sound appreciation of evidence and law; and that the property in dispute i.e. the house is/has been a Muslim property. In support of his contention he referred to Jamabandi for the year 1934-1935 Ex. P.3, which shows that Allah Ditta, father of the respondents, was a lawful owner of the piece of land, over which the house in dispute was constructed, and Diwan Chand hindu was a tenant only. He has drawn our attention to documents Ex.P.4 and P.5 pertaining to the Jamabandifor the year 1942-1943 and subsequent mutation made in favour of the respondents after the death of their father. He vehemently argued that the order Ex. P.I was void, ab initio and was passed without jurisdiction because under the law the Deputy Settlement Coir missioner could have transferred only evacuee property, which, as such, had been declared as an evacuee property by the Custodian of the Evacuee Property, but in the instant case such adjudication on the part of the Custodian EvacueProperty is not borne out from the record. He further emphasized that findings of the trial Court as well as the First Appellate Court with regard to limitation i.e. Issue No. 3 were also not based on proper and careful examination of the evidence because Respondent No. 1/P.W.l stated on oath before the trial Court that at the time of independent i.e. 1947 all the respondents (plaintiffs) were minors and they were also residing in Lyallpur District. As soon as they came to know about the order passed by the Deputy Settlement Commissioner, the respondents filed a revision application before the Additional Commissioner, which unfortunately did not find favour and was rejected. Thereafter the respondents filed the suit without loss of time.

7. In order to consider the points raised by the learned Counsel for the parties, it would be appropriate to re-produce below Sections, 3, 22 and 41 of the Pakistan Administration of Evacuee Property Act, 1957:--

"3. Property not to be treated as evacuee property or on after 1st January 1957.~(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date.

(2) Nothing in sub-section (1) shall apply--

(a) to any person in respect of whom' or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or

(b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eight day of February 1947, has not been accepted or approved by the Custodian."

"22. Claims by interested persons.--(1) Any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer a claim to the Custodian on the ground that-

(a) the property is not evacuee property, or

(b) his interest in the property has not been affected by the provisions of this Act.

(2) An application under sub-section (1) shall be made within the prescribed period being a period of not less than thirty days from the prescribed date.

(3) On receiving an application under sub-section (2), the Custodian shall hold a summary inquiring in he prescribed manner, and after taking such evidence as may be produced shall pass an order, staticg the reasons therefore, rejecting the application or allowing it wholly or in part on such terms and conditions as he thinks fit to impose."

"41. Jurisdiction of Courts barred.--(l) Save as expressly provided in this Act no civil or revenue Court or any other authority shall have jurisdiction--

(a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property;

(b) to question the legality of anything done under this Act by or at the instance of the Custodian, or

(c) in respect of any matter which the Custodian is empowered by or under this Act to determine."

1. Perusal of the record shows that neither the Custodian of the Evacuee Property nor any of his subordinate Officer had adjudicate upon the nature of the property as evacuee; whereas in the case in hand the Deputy Settlement and Rehabilitation Commissioner, Montgomery, allotted the disputed property to the appellant by order dated 13.12.1960, which is Ex. P. 1, thereafter the respondents took necessary steps to get their rights from the Additional Settlement Commissioner and finally filed the suit. According to the provisions of Section 3 of the Act, after 1.1.1957 the property could not be declared as evacuee property, whereas in any case there is no adjudication about the nature of the property as evacuee. So, for as Sections 22 and 41 referred to above are concerned, since the allotment order passed by the Deputy Settlement Commissioner was not proper and was without jurisdiction, therefore, applicability of Sections 22 and 41 of the Act, in our view, does not arise. In this matter there is wealth of case law, such as, Azam Ali and others vs. Custodian of Evacuee Property (PLD 1968 Lah. 148), Isab Khan and another v. Muhammad Sher and 2 others (PLD 1975 Lahore 833).

In.Mst. Munira Bibi and 7 others v. Member Board of Revenue, Baluchistan and 8 others (P.L.D. 1978 Quetta 121) it has been observed that: "no person or property could be treated as evacuee or evacuee property on or after the 1st of January 1957, except in cases, where the action has already commenced, proceedings pending or the property is managed or supervised by a person whose rights have not been approved by the Custodian, Department within the prescribed period."

This Court in Abdul Khaliq-Abdul Razzaq v. Kishanchand and others (PLD 1964 S.C. 74) observed that:

"Property declared by Deputy Custodian to be non-evacuee and no appeal or revision, in respect of property, pending immediately before 1.1.1957 cannot be declared as evacuee after 1.1.1957".

Very recently this Court in the case of Mooso through legal heirs and others vs. Allahdito through legal heirs and 7 others (PLD 2001 S.C. 23, at p. 26) has discussed on Sections 3 and 7 of Pakistan (Administration of Evacuee Property) Act (XII of 1957) and observed that: "the land in dispute was not fully paid up and no T.O. Form was even issued in favour of Hindu grantee, therefore, land remained no Kabuli consequently no property rights in land passed in favour of original grantee and was not available for its transfer to the claimant under the Settlement Scheme, therefore, its subsequent transfer by the claimant to the petitioner conferred no right, title or interest in their favour. Besides, three Courts below have given concurrent findings of fact and there being no misreading, non-reading of evidence or legal infirmity in the impugned judgment, consequently no interference is called for in these petitions. We find no substance in these petitions, therefore, leave is refused and the petitions are dismissed."

1. We have considered the arguments of the learned counsel for the parties and have also minutely examined the record. The contentions raised by the learned counsel for the appellant are not tenable. In view of the provisions of the Act, referred to herein above, the property was not declared as evacuee before 1-1-1957, and simple allotment of the property by the Deputy Settlement Commissioner, in any case, does not confer legal rights to the appellant. According to Ex. P. 3, which is a Jamabandi for the year 1934-1935, Allah Ditta, father of the respondents, is shown as owner of the property (agriculture land), over which the house was constructed, and Diwan Chand hindu was a tenant only. Soon after the death of Allah Ditta, the same property was mutated in favour of the respondents, who are his legal heirs. The said mutation in favour of the respondents was also entered in the revenue record, which had been produced before the trial Court as Ex. P. 5.

2. The above evidence furnished on behalf of the respondents has gone unchallenged and there is nothing in rebuttal except the order of the Deputy Settlement Commissioner, which shows that the property was allotted to the appellant herein. The narration of the above facts and documents clearly establishes that the property in question was a Muslim ssioner under the Settlement laws. In our considered opinion, the order of the Deputy Settlement Commissioner, referred to above, was without jurisdiction and was coram non judice, because neither the Custodian of the Evacuee Property, nor any of his subordinate officer had adjudicated upon with regard to the nature of the property as evacuee one.

3. On the touchstone of the facts and evidence adduced by the parties and the dictum laid down by this Court, we are of the considered opinion, that the order of the Deputy Settlement Commissioner allotting the property as evacuee property in favour of the appellant was without lawful authority, which was rightly struck down by the learned Judge in Chambers in the impugned judgment. We further find that the impugned judgment assailed herein is based on the property appreciation of evidence as well as Evacuee/Settlement laws and is in consonance with the rules laid down by this Court. We also not find any material irregularity or jurisdiction error in the impugned judgment, which does not call for any interference by this Court. Resultantly, this appeal is dismissed with no order as to costs.

(T.A.F.) Appeal dismissed.

PLJ 2002 SC 399

[Appellate Jurisdiction]

Present: muhamamd bashir jehangiri and nazim hussain siddiqui, JJ. FIAZ-UL-HASSAN—Petitioner

versus

Mst. JAN SULTAN and 2 others—Respondents Civil Petition No. 1655 of 2000, decided on 29.1.2001.

(On appeal from the order/judgment dated 2-10-2000, or the Peshawar High Court, Peshawar, passed in W.P. No. 272 of 2000).

Family Courts Act, 1964 (XXXV of 1964)--

—-S. 5-Constitution of Pakistan (1973), Art. 185 (3)-Leave to appeal-Recovery of dower-Suit of wife was decreed by Family Court ex parte against husband but same was allowed by Lower Appellate Court with condition to deposit decretal amount as security in cash and decree was set aside-Husband did not deposit amount and suit was again decreed against him-Decree passed against husband was assailed in Constitutional petition which was dismissed by High Court-Validity--Husband completely ignored to challenge order of deposit of decretal amount passed by Lower Appellate Court before same Court for review or before 'High court in Constitutional petition and thus by implication husband had accepted order of Lower Appellate Court and went to Family Court without demur-Where husband had participated in proceedings but did not file written statement as directed by Lower Appellate Court, Family Court rightly struck off defence of husband and passed decree for recovery of dower amount-Both Courts below and High Court were justified to have passed order for deposit of amount of dower before remanding suit to Family Court for trial-Leave refused.

[P. 402] A

Muhammad Ikram Chaudhy, ASC Instructed by Mr. M.S. Khattak, AOR for Petitioner.

Nemo for Respondents. Date of hearing: 29.1.2001.

judgment

Muhammad Bashir Jehangiri, J.-Faiz-ul-Hassan petitioner seeks leave to appeal against the impugned judgment of the Peshawar High Court, Peshawar, dismissing Writ Petition No. 272 of 2000.

1. Mst. Jan Sultan Respondent No. 1 instituted a suit against the petitioner in the Court of Respondent No. 3, for the ecovery of her dower amounting to Rs. 1,00,000/-. It appears that the petitioner had ignored to appear before the trial Court, therefore, ex-parte decree was passed against him on 25-07-1995 in the said suit of Respondent No. 1. The application filed by the petitioner for setting aside the ex-parte decree was, however, dismissed by Respondent No. 3 on 9-9-1999. The petitioner, feeling aggrieved, preferred an appeal against the dismissal of his application for setting aside the ex-parte decree which was accepted by Respondent No. 2 on 25-1-2000 and the case was remanded to the Court of Respondent No. 3 with the direction to dispose of the case on merits subject to deposit of Rs l,00,000/-in cash by way of security. It appears that the petitioner did not deposit the amount of security as ordered by Respondent No. 2 in appeal. Respondent No. 3 decreed the suit again on 13-3-2000.

2. Feeling still dissatisfied with the above mentioned order, the petitioner challenged the decision of Respondent No. 3 (the learned trial Judge) in Writ Petition No. 272 of 2000 principally on the ground that the Learned Appellate Court had ignored the law that ex-parte decree is set aside on the terms only as to costs and no order for deposit of security could be passed by it under the West Pakistan Family Courts Act, 1964.

3. In the written reply filed on behalf of Respondent No. 1, she had repudiated the grounds taken up in the writ petition. The learned Division Bench of the Peshawar High Court took notice of the main contention of the learned counsel for the petitioner that the provisions of the Civil Procedure Code were not applicable to the proceedings under the West Pakistan Family Courts (Act XXXV of 1964) (hereinafter called as the Act) and, therefore, the learned District Judge was not competent to direct the petitioner for payment of Rs. 1,00,000/- as security in cash. In support of this proposition the learned counsel appearing on behalf of the petitioner in the High Court had placed implicit reliance on the precedent of Abdullah v. Mst. Zubaida Begum and others (1988 CLC 1631). Nonetheless the learned Division Bench while disposing of the writ petition pointedly referred to the fact that on passing the conditional order of setting aside the ex-parte decree by the learned District Judge, no review or any other proceedings were initiated by the petitioner and thus accepted the conditions while appearing before the learned trial Court. Again it was held that the writ petition was hit by latches inasmuch the order of the learned District Judge passed on 25-1-2000. It was next observed that the marriage between the parties had been dissolved in 1994 and Respondent No. 1 was locked in litigating for recovery of her dower since 2-1-1995 she instituted her suit which was later decreed ex-parte on 25.7.1995 after completion of substituted service of the process. It was also pointed out that application for setting aside the exparte decree was filed on 28-07-1997 after lapse of more than two years and, therefore, it was dismissed after contest on 9-9-1999. Therefore the appeal of the petitioner was accepted on 25-1-2000 and the case was remanded to the learned trial Court for decision on merits. According to the learned Division Bench of the Peshawar High Court, in view of the peculiar circumstances of the case and the conduct of the petitioner, the learned District Judge in his direction directed the petitioner to deposit Rs. 1,000,000/- as security which was not complied with. The learned Judges of the Division Bench concluded that the petitioner was deliberately prolonging the agonies of his divorced wife who was litigating since early 1995. Reliance was placed by the learned Division Bench on the precedent of Muhammad Faird Khan i>. The Civil Judge, Abbotabad (1989 CLC 1630), wherein it was ruled that the Constitutional jurisdiction of the High Court could not be exercised in aid of injustice or to perpetuate the inequitable conduct of the petitioner as to impede the lawful course of justice. In view of these observations, the writ petition was dismissed in limine.

4. Mr. Muhammad Ikram Chaudhry, learned ASC has reiterated the contentions which were raised before the learned Division Bench of the Peshawar High Court and again relied on the case of Abdullah (supra). The learned counsel for the petitioner has invited our attention to the provisions of Section 14 of the Act to contend that the right of appeal conferred on an aggrieved litigant under Section 14 ibid was not dependent on the deposit of decretal amount as a condition precedent to the entertainment of appeal and, therefore, the invocation of provisions of the Code of Civil Procedure, 1908 was clearly inapt.

5. We find that the facts of the precedent case of Abdullah (supra) are different. In point of fact the learned Appellate Court has not directed the petitioner as a condition precedent to the entertainment of any appeal within the contemplation of Order XLI, Rule 8 but in its inherent jurisdiction when it was going to set aside the ex-parte decree passed against the petitioner after lapse of many years.

6. Looking to the conduct of the petitioner to enhance the agonies of his divorced wife at every occasion that was available to him, we do not find that the learned two Courts below or for that matter, the learned Judges of the Division Bench of the High Court were not justified to have passed an order for the deposit of amount of dower before remanding the suit to the learned trial Judge. In any case, the petitioner completely ignored to challenge the impugned order of the learned District Judge before the same Court for review or before the High Court in the writ jurisdiction at that . juncture. By implication he had accepted the order of the learned Appellate _ " Court and went to the trial Court without demur. He participated in the proceedings but even then he did not file a written statement as directed by the learned Appellate Court and the learned trial Court. The learned Judge Family Court was, therefore, constrained to strike off the defence of the petitioner and pass the ex-parte decree for the recovery of Rs. 1,00,000/-. Thereafter the petitioner chose to challenge before the learned High Court in this Constitutional jurisdiction the order of the leaned appellate authority directing him to deposit the amount of dower as security on setting aside the ex-parte decree but without any success.

7. We, therefore, find no merit in this petition which is accordingly dismissed.

(T.A.F.) Leave refused.

PLJ 2002 SC 402

[Appellate Jurisdiction]

Present: muhammad bashir jehangiri and rana bhagwan das, JJ. Syed JAN MUHAMMAD and another—Appellants

versus

Syed ABDUL KHAIR-Respondent Civil Appeal No. 690 of 1997, decided on 10.1.2001.

(On appeal from the judgment dated 6-8-1996 of the High Court of Balochistan, Quetta, passed in F.A.O. No. 29 of 1996)

(i) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—S. 13 (3) (a)-Bona fide personal need of landlord for his son-Non- appearance of son of landlord in witness-box-Effect-Such appearance is not a sine qua non for grant of relief to landlord. [P. 404] A

(ii> West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—-S. 13 (3) (a)-BoTza fide personal need of landlord-Seope-Where landlord requires residential building in good faith for his own occupation or for occupation of any of children, landlord is permitted to apply under S. 13 (3) (a). [P. 404] B

(iii) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

—S. 13 (3) (a)— Bona fide personal need of landlord—Enhancement of rent, plea personal requirement of premises for use of his son-Tenant resisted application on the ground that landlord only wanted increase rent of premises-Rent Controller allowed application while High Court in exercise of appellate jurisdiction dismissed same-Validity-No support was available on record for assertion or allegation made on behalf of tenant that landlord merely wanted to enhance rent of premises-Where it was found that landlord had succeeded in establishing his bona fide personal need, even then plea of tenant did not militate against claim of landlord-Judgment of High Court was set aside and that of Rent Controller restored. ' [P. 404] C

M. Shakil Ahmad, ASC for Appellants.

Mr. M.K.N. Kohli, AOR (absent) for Respondent;

Date of hearing: 10.1.2001. .

judgment

Muhammad Bashir Jehangiri, J.--Syed Jan Muhammad and Syed Sardar Muhammad appellants have filed the above appeal with the leave of this Court against the order of a learned Single Judge of the High Court of Balochistan, Quetta, accepting FAO No. 29 of 1996 in a rent matter whereby the order of eviction passed by the learned Rent Controller against the tenant-respondent was set aside and the appellants/landlords were non­suited.

1. Brief facts, as gleaned from the leave granting order, are that the appellants/landlords filed eviction application seeking ejectment of the respondent/tenant from the demised shop. The main ground taken in the ejectment application was that of the personal need of the two sons of the appellants/landlords. The learned Rent Controller decided the issue of requirement for the personal use in favour of the appellants/landlords and ordered the eviction of Syed Abdul Khair respondent/tenant by an order dated 25-4-1996. Aggrieved by the said order, Syed Abdul Khair respondent/ tenant filed an appeal before the High Court of Balochistan, Quetta, which was accepted by the learned Judge in Chambers of the High Court on 6-8-1996; the order of the learned Rent Controller was set-aside on the ground

that "the witnesses produced by the landlords had contradicted his stand inasmuch as they did not even known the names of the sons of the appellants/landlords, for whom the shop in question was required bona fide" and further; that the appellant/landlord, has stated in the witness box, that the shop was required by him for his own personal occupation as well as for the use of his sons and that he had not stated at all that the shop was required in good faith for the use and occupation of his sons, namely, Syed Naimatullah and Asmatullah nor the sons had entered in the witness-box to substantial the plea.

1. Leave to appeal was granted to consider whether the learned Judge in Chambers of the High Court had not correctly appreciated the evidence in disallowing the ejectment on the ground of personal need by the appellants.

2. The only ground urged by Haji Shakil Ahmad, learned ASC appearing on behalf of the appellants before us was that the appearance of the sons of the landlords in the witness-box was not a sine qua non for the proof of the bona fide need of the landlords. In support of this proposition, the learned counsel has rightly placed reliance on three authorities of this Court: (1) Muhammad Sharif v. M.S. Sultan (1981 SCMR 844), (2) Muhammad Nasar v. Muhammad Arshad and another(1981 SCMR 894) and ZahoorDin v. MirzaAyub Baig (1981 SCMR 1081).

3. None had appeared on behalf of the respondent to support his case.

4. In the first mentioned two authorities, this Court has already set at rest the controversy raised in this appeal holding that the non-appearance of the son/sons of the landlords in the witness-box was not at all a sine qua requirement for the use by his son/sons. In the third precedent of Zahoor Din (supra), this Court has gone so far as to hold that where in the ejectment application, the landlord even does not mention that he needed the disputed portion of the premises for the residence/use of his son who was to be married soon could not be fatal to his case. The ratio decidendi in the third precedent was that Clause (a) of sub-section (3) of Section 13 of the West Pakistan Rent Restriction Ordinance (VI of 1959) permits a landlord to apply for the ejectment of his tenant, if he requires the residential building in good faith for his own occupation or for the occupation of any of his children. In this context, it was observed that the requirement of his children is really in the nature of an extension of the personal requirement of the landlord himself, as the property does not belong to his children and yet the law permits him to ask for its vacation, if it is needed for their occupation in good faith. According to the learned Judge, it follows, therefore, that even if in the ejectment application, it is not specifically stated that the requirement is for the occupation of any of his children, a landlord would still be entitled to spell out this need in evidence. In the same precedent, the learned Judge - held that the objection raised on behalf of the tenant that the son for whose marriage, the extra accommodation was need, was not examined as a witness was misplaced inasmuch there is no such requirement in law and the need of accommodation will have to be determined in the facts and circumstances of each case. We reiterate the principle enunciated in the precedents of M. Muhammad Sharif, Muhammad Nasar and Zahoor Din supra that there is nothing in the Sindh Rented Premises Ordinance (XVII of 1979) against grant of eviction of the tenant of the landlord on the ground of the letter's bona fide need for his or his son/sons bona fide requirement of the demised premises if the son/sons have not been examined in Court.

5. Having disposed of this objection, we now turn to the evidence led at the trial. We find that, besides the landlord himself, there was the evidence of his witnesses Abdul Zahir (AW-2) and Abdul Ahad (AW-3) to the effect that at least so far as Abdul Zahir, has in categorical terms stated that the landlord intended to get the shop vacated for his personal bona fide need. In the cross-examination, Abdul Ahad (AW-3) stated in categorical terms that the landlord was carrying on his business in a rented shop and further admitted that the "carrying on business in Quetta city and are the tenants of one Sadiq Ali landlord. The observations of the learned Judge in the High Court that it was not shown clearly by his witnesses, as to the bona fide requirement of the premises, for the used of his sons clearly proceed in disregard of the accepted facts, of which the judicial notice, should have been taken that if the two sons of the landlord were carrying on business in the rented premises, it was the legal right of the landlord to have them settled in business in his own shop. Even the witnesses were not cross-examined no the point of bona fide requirement of the shop for the use of his sons. Had it be so done, the two witnesses would have certainly answered the question particularly Abdul Ahad (AW-3). In these circumstances, the finding of fact recorded by the learned Rent Controller in this behalf could not have been reversed in that there was not sufficient evidence in support thereof. We consider, therefore, that this was indeed a case in which the landlord had succeeded in establishing his bona fide personal requirement of the shop for the purpose of accommodation of his sons.

6. There is no support on the record for the assertion or allegation made on behalf of the tenant that the landlord merely wanted to enhance the rent of the shop. In any case, such an allegation must fail once it is found that the landlord had succeeded in establishing his bona fide personal need. Conceding for a while that it so even then it does not militate against the claim of the landlord.

7. For the foregoing reasons, we would accept this appeal, set-aside the impugned judgment of the learned High Court and restore that of the learned Rent Controller. The tenant is allowed four months time to deliver the vacant possession to the appellants-landlords, failing which the writ of procession shall be issued without recourse to due execution proceedings and with the police aid if required. The respondents shall continue to deposit/pay the rent of the premises as before.

(T.A.F.) Appeal accepted

PLJ 2002 SC 406

[Appellate Jurisdiction]

Present: muhammad bashir jehangiri and deedar hussain shah, JJ. LAND ACQUISITION COLLECTOR, NOWSHERA and others-Appellants

versus

SARFARAZ KHAN and others-Respondents Civil Appeals Nos. 1393 and 1496 of 1999, decided on 4.1.2001.

(On appeal from the judgment dated 15.8.1996 of the Peshawar High Court, Peshawar, passed in F.A.O. No. 29 of 1996 and Cross

Objection No. 1 of 1998)

(i) Land Acquisition Act, 1894 (I of 1894)—

S.34 ( as substituted by Land Acquisition North- West Fourntier Provience

(Amendment) Ordinance (V of 1983)]-Land was acquired and compound interest on compensation was allowed till the amount was paid—Validity— Such order of grant of compound interest at the specified rate was in clear violation of S. 34, Land Acquisition Act, 1894, order being nullity in law, the same would not be hit by any bar of limitation—Order of award of compound interest was set aside and the same was substituted with order of award of simple interest from the date o taking over possession of land until the amount has been so paid to the respondents or deposited —S. 34 [as substituted by Land Acquisition North-West Frontier Province in the Court-Judgment of High Court was set aside. [P. 409] B & C

(ii) VoidOrder--

—Bar of limitation does not operate in respect of void order but does in respect of erroneous order-Question of limitation may not arise in respect of a judgment which is nullity in law, void or ultra vires of statute Constitution—Where an order is without jurisdiction and void, the same need not even be formally set aside. [P. 409] A

Mr. M. Younis Khan Tanoli, Advocate-General, N.W.F.P. for Appellants (in C.A. No. 1393 of 1999).

Respondents in person (in C.A. No. 1493 of 1999). Appellants in person (in C.A. No. 1496 of 1999).

Muhammad Yunis Khan Tanoli, AG N.W.F.P. instructed by Haji M.A. Qayyum Mazhar, AOR for Respondents in (C.A. No. 1496 of 1999).

Date of hearing: 4.1.2001.

judgment

Muhammad Bashir Jehangiri J.--The titled two direct appeals under Section 54 of the Land Acquisition Act (No. 1 of 1894) (hereinafter called as the Act) seek to challenge the judgment of a learned Judge in Chambers of the Peshawar High Court, Peshawar, in affirmance of the order of the learned Senior Civil Judge Nowshera, dated 22-1-1998, dismissing FAO. No. 219/1998 filed by the Land Acquisition Collector and others and the cross objections filed by the respondents.

1. The factual background of the case, as gleaned from the impugned judgment of the learned Single Judge of the Peshawar High Court, is that the land in village Babi, Tehsil a»d District Nowshera, was acquired by the Land Acquisition Collector, Nowshera, for the construction of "Pakistan Oil Depot" at the awarded amount. It is not any more in dispute ' that the enhanced amount had been paid to the respondents without any interest. The respondents some how came to know that the payment of compound interest @ 8% per annum to the others had been made but not to them. They, therefore, instituted a suit on 18-6-1991 for a decree for mandatory injunction seeking direction to the appellants to distribute the compensation alongwith interest "strictly in accordance with law" which was decreed. The respondents then initiated execution proceedings in the same Court. The Executing Court while dealing with the interim relief observed that whether it was principal amount or interest, the Collector, Nowshera, was lawfully bound to act consistently in the payment of amount of compound interest @ 8% per annum. The other owners including the respondents filed an objection petition before the Executing Court which was dismissed on 24-4-1994 with the direction to the Collector to distribute the amount of interest amongst the owners including the respondents herein according to their respective shares. The appeal filed by the respondents before the learned District Judge, too was dismissed. Nonetheless during the execution proceedings when the impugned order was passed on 22-1-1998, the respondents were also held entitled to the compound interest at 8% per annum as paid to the other owners from the date of possession till the actual payment and then onward simple interest @ 6% per annum "till the account is closed by the actual payment". This order of the Executing Court was challenged by the Land Acquisition Collector and another in FAO No. 212 of 1998 before the learned Peshawar High Court. The respondents also filed cross-objections for enhancement of the compound interest @ 8% per annum through out. By a single order, the learned Judge in Chambers of the High Court dismissed not only appeal but also the cross-objections on the ground that the appeal before him was barred by time.

2. Feeling aggrieved, the Land Acquisition Collector, Nowshera, and another filed Civil Appeal No. 1393 of 1999 while the respondents, the land owners, filed appeal against the dismissal of their cross-objections by way of Civil Appeal No. 1496 of 1999. Since the FAO and the cross-objections have been disposed of through the impugned common judgment, we also propose to decide them by this single judgment.

3. Mr. Muhammad Younis Khan Tanoli, learned Advocate-General NWFP, submitted that at the outset the proposition to be addressed by this Court was whether the plea of limitation could operate as a bar in the factual background of this case when the impugned order was without jurisdiction; that the department was not a party to Civil Suit No. 149 of 1991 which was not an objection petition under Section 18 of the Act before the learned Referee Judge. In this context, it was contended that if a decree or an order is passed in a suit in utter contravention of the mandatory provisions of law, such order would be a nullity against which no limitation shall run. In this connection reliance was placed on the judgments of this Court in the cases of (1) Mst. Rehmat Bibi and others v. Punnu Khan and others (1986 SCMR 962), (2) Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others (1987 SCMR 1543) and, (3) Muhammad Shaft v. Mushtaque Ahmed through Legal Heirs and others (1996 SCMR 856).

4. Dr. Muhammad Jehangir, Khan, son of Respondent No. 1 has very ably attempted to defend the mpugned order of the learned Single Judge and pointed out that Maj. Gen. (Retd) Naseerullah Khan Babar and another whose land had also been acquired under the same award for the same purpose had been paid compound interest @ 8% per annum and, therefore, if the respondents were held entitled to simple interest @ 6% per annum, it would be a sheer discrimination violating the constitutional mandate enshrined in the Chapter of the Fundamental Rights thereof.

5. The learned Single Judge appears to have been convinced that the learned Executing Court had erred to award compound interest @ 8% per annum with effect from the date of taking over the possession of the acquired land until the enhanced amount has been so paid or deposited in Court. Nonetheless the learned Judge in Chambers of the Peshawar High Court, has, however, fallen into error to grant the compound interest @ 8% per annum as paid to the other owners from the date of possession till the actual payment and then onward simple interest @ 6% per annum "till account is closed by actual payment". Section 34 of the Act had been ubstituted by the NWFP Ordinance V of 1983 whereunder it had been provided that when the amount of compensation is not paid to the objections-owners or deposited in Court before taking possession of the land, the Collector shall pay the amount awarded with simple interest thereon @ 6% per annum from the time of so taking over possession until it shall have been so paid to the objectors or deposited in Court. Obviously the impugned order covering the grant of 8% per annum compound interest, was in contravention of the mandatory provisions of NWFP Ordinance V of 1993 which was accordingly a nullity against which no limitation would run. The three precedents of Mst. Rehmat Bibi, Malik Khawqja Muhammad and Muhammad Shaft (supra) relied upon by the appellants supported the principle which was pressed into service by the learned Advocate-General NWFP. The learned Judge in Chambers of the Peshawar High Court appears to have overlooked difference between void orders and the erroneous orders. It is settled law that the bar of limitation would not operate in respect of void orders but not in respect of erroneous orders. The question of limitation may not, therefore, arise in respect of a judgment which is a nullity in law, void or ultra vires the statute or the constitution. In point of fact, if an order is without jurisdiction and void, it need not even be formally set-aside as has been held in the cases of Alt Muhammad u. Hussain Bakhsh (PLD 1976 SC 37) and Ch. Altaf Hussain and others v. The Chief Settlement Commissioner (1965 SC 68).

6. It would thus be noticed that the impugned order of grant of compound interest at the specified rate was in clear violation of the NWFP Ordinance V of 1983, therefore, it was a nullity in law and Would not be hit by any bar of limitation.

7. For the foregoing reasons, the impugned order of award of compound interest @ 8% per annum to the respondents-owners is set-aside and is substituted with the order of award of simple interest @ 6% per annum from the date of taking over possession of the land until the amount has been so paid to the respondents or deposited in the Court.

8. Civil Appeal No. 1494 of 1999 has no substance which is dismissed.

9. The orders arising out of FAO or Cross Objections were not relatable to any orders under the Act. Conversely thejmpugned orders had arisen out of an execution petition. Civil Appeal No. 1393 of 1999, is, therefore, converted into CPLA and then re-converted into appeal, is accepted and in consequence the impugned judgment of the learned Judge of the High Court is set-aside in the above terms.